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View as PDF - Murtha Cullina LLP
March/April 2011
The Newsletter of the Massachusetts Association of Conservation Commissions
President’s Message . . . . . . . . . .2
News from the Hill: MACC Promotes
Municipal Enforcement Legislation . . .3
Take Five Steps Now to Avoid
Problems During Snowmelt
and Spring Rains . . . . . . . . . . . .4
Compensatory Mitigation: A
Federal Perspective . . . . . . . . .11
Spring/Summer 2011 Educational
Offerings . . . . . . . . . . . . . . .12, 13
Spring/Summer 2011
Registration Form . . . . . . . . . . .14
Mass Clean Energy and Climate
Plan for 2020 . . . . . . . . . . . . . .15
AMWS/MACC Networking Event 16
The Future of North Shore’s
Great Marsh . . . . . . . . . . . . . . .17
MACC 2011 Environmental
Service Awards . . . . . . . . . .18-20
Outrageous Excuses for Erosion and
Sediment Control Failure . . . . .21
Thank You to MACC’s 2011
Annual Environmental
Conference Sponsors . . . . . . . .23
Congratulations to Fundamentals
Graduates . . . . . . . . . . . . . . . . .23
Calendar . . . . . . . . . . . . . . . . . . .24
Volume XXXXI Number 2
MassHighway Not Immune from
Local Wetland Regulation
By Nathaniel Stevens, Esq.
Massachusetts' highest court recently ruled
that the Massachusetts Highway Department is
subject to limited regulation by local boards of
health. This decision bodes well for
authority over MassHighway and other state
agency projects under their local wetlands
bylaw or ordinance and related local wetland regulations.
In Town of Boxford v. Massachusetts Highway Department & another,
the Supreme Judicial Court (“SJC”) held that an entity created by the
Massachusetts Legislature, including state agencies such as MassHighway,
is subject to local regulation, but only to the extent that those regulations do
not interfere with the agency's ability to fulfill its “essential governmental
purposes” and such regulations have only a “negligible effect” on its
(MassHighway Not Immune....continued on page 6)
Changes to Massachusetts Endangered
Species Act Regulations
By Heidi Ricci and Patrick Garner
2011 MACC
Fall Conference
October 15
Clark University
2012 MACC
Annual Environmental
March 3
Holy Cross College
On October 15, 2010, revisions took effect on the regulations (321 CMR
10.00) under the Massachusetts Endangered Species Act (MESA). The
regulations, including a summary, filing requirements and various forms
may be found at:
The Natural Heritage and Endangered Species Program (NHESP)
adopted these changes to make the rules more clear and transparent for both
landowners subject to regulation and members of the public interested in
protection of state-listed rare species. These updates to MESA permitting
(Changes to MESA Regulations....continued on page 7)
President's Message
Massachusetts Association of Conservation Commissions
Community Conservation Since 1961
By Patrick Garner
Board of Directors
Patrick Garner
First Vice President
Kathleen E. Connolly, Esq.
Vice President for Education
Michele Grzenda
Vice President for Advocacy
Kenneth F. Whittaker, Ph.D., Esq.
Sally A. Zielinski, Ph.D.
Margaret Carroll
Amy Ball
Walter Bickford
Jo-Anne Burdin
Shepley Evans
Brandon Faneuf
Ingeborg Hegemann
Scott Jackson
Brenda Kelly
Gregor McGregor, Esq.
Tim Purinton
E. Heidi Ricci
Jennifer Steel
Janice Stone
Seth Wilkinson
W. Warwick, RI
Board of Advisors
Bernie McHugh
Edward O. Wilson
Brian Rehrig
George Wilslocki
President’s Council
Alexandra Dawson, J.D.
Judith Eiseman
George Hall, Esq.
Executive Director
Linda Orel
Associate Director & Education Coordinator
Michèle Girard
Newsletter Editor
Membership & Publications Coordinator
Lindsay Martucci
Technology Coordinator
Database Administrator
Rick Chaff
ESC Program Coordinator
Nancy Putnam
Candace Domos
MACC Office
10 Juniper Road, Belmont, MA 02478
Phone 617.489.3930 • Fax 617.489.3935
This regular President's Message will serve to let you
know about ongoing evolutions within MACC. Some of
the more notable happenings and announcements
MACC has begun to receive queries regarding FY2012 dues.
Given the tight budgetary constraints imposed on towns and cities
throughout the state, I'm pleased to confirm that membership dues will
not rise in FY12 by more than three percent.
Starting with the next issue, our Newsletter is off i c i a l l y
becoming a quarterly. In acknowledgment of that change, the hitherto
named MACC Newsletter becomes officially titled, The MAC C
Quarterly. We will continue bringing you the same timely and important
news that we have for years. In addition, we will increase the number of
stories and articles in each edition. Breaking news alerts will be emailed
as necessary. Last, we expect to enhance our publishing software to make
the newsletter more robust and useful. Look for changes over the next
MACC is ramping up its advocacy efforts. Although we have
always been strong advocates for environmental policies, MACC will be
a far more active player in coming years. Thanks to the expertise and
“Hill” connections of our new Executive Director, Linda Orel, MACC
will be a far stronger presence.
We should all be aware that MassDEP will inevitably continue to
change, particularly under the budgetary pressures that have been a
constant reality over the last half decade. We have already met in person
with the new MassDEP Commissioner, Ken Kimmell, and have offered
him ready access to our expertise. Please expect us to reach out to you in
the next year for support and opinions as well. After all, you are MACC,
and our efforts are expended to maintain and enhance the natural
resources throughout the state that you work so hard to protect.
I want to welcome new and returning MACC Board members.
Our Board has a unique mix of attorneys, wetland scientists, commission
agents, educators and business persons. This is a hard working board,
with many members putting in countless hours through the year. No
glamour here, yet each of us believes thoroughly in MACC's mission. I
speak for all when I say that the time we volunteer is well worth it.
Last, I note that any MACC member is welcome to come to
MACC board meetings-just let us know with a call or email that you
expect to sit through one of our Monday evening meetings!
Until the next issue,
MACC Newsletter
March/April 2011
MACC Promotes Municipal
Enforcement Legislation
By Kate Connolly, Esq.
MACC is taking a leading role to enact state legislation
that would enable cities and towns to enforce their
ordinances and bylaws through increased penalties, that is,
General Law Chapter 40, Section 21D, the so-called noncriminal disposition statute. The pending legislation, known
as, An Act Relative to the Effective Enforcement of
Municipal Ordinances and Bylaws (“local enforcement
bill”) seeks to raise the maximum penalty that
municipalities may seek for violations of local laws from
the current $300 to $1,000 (including but not limited to
local wetlands bylaws and ordinances). The bill would also
authorize the superior courts to impose these civil penalties
sought by a municipality, in conjunction with other
equitable relief, such as a stop work order.
Previous attempts to increase the penalty or fine amount
to several thousand dollars per violation have not garnered
sufficient support, so MACC and other proponents are now
MACC Newsletter
March/April 2011
promoting a more
conservative approach:
the maximum allowable
penalty has been limited in
recognition of today's
economic realities.
Nevertheless, if the bill
passes it will be the first
time that the penalty
amount has increased in thirty years.
Under current law and the proposed legislation, a city or
town must first adopt an ordinance or bylaw authorizing
the non-criminal disposition of that law under Section 21D.
In other words, a city or town must independently exercise
this right through adoption of an additional bylaw or
ordinance. Subsequently, the designated municipal
authority may issue a notice of violation such as a ticket or
other local form. The monies collected from civil fines,
whether an individual agrees to pay the fine without
appealing to court or after a court hearing, go back to the
Without a non-criminal disposition addition to local
bylaws and ordinances, when a violator fails to appear in
(MACC Promotes Municipal Enforcement....continued on page 10)
Take Five Steps Now to Avoid Problems
During Snowmelt and Spring Rains
By Brenda Kelly
Record-setting snow volume can lead to erosion, flooded
neighborhoods and wetland degradation. Here are five steps
Conservation Commissions should plan now to
minimize drainage, flooding and washout
challenges caused by snowmelt and spring rains.
(1) Proactive emergency management
Identify likely trouble spots and arrange
vigilance spotters to be on the lookout for
conditions that could lead to washed-out
culverts, bank overflow, bank damage and widearea flooding. Tap members of your committees such as
conservation area, trail and bikeway stewards.
Work with property owners, department of public works
staff as well as city or town boards. Remind them to obtain
permits before working in wetlands, streams and buffer
zones, and to follow correct procedures when doing the
(2) Flooding awareness
Review flooding response protocols with your
municipal boards. When the snow melt
begins, spring rain that normally creates
localized flood conditions will have greater
impact this year. Rain will have nowhere to
go when the ground is frozen. Where the
ground is not frozen, it may be saturated
already. Rivers and floodplains will be
inundated. The usual trouble spots could
become dangerous due to flooding and swiftmoving water. Under-sized culverts may be overwhelmed
and degrade rapidly.
(3) Snow storage siting and operation
Remind residents, commercial property owners,
snowplow operators and town workers that snow storage
siting and runoff should be directed away from wetlands,
MACC Newsletter
March/April 2011
rivers and streams and their buffer zones. Where this is not
feasible, they should contact the Conservation Commission
to discuss site-specific protections and sedimentation
(4) Preventative maintenance
Request residents to monitor storm drains in their
neighborhoods and remove leaves and debris that may
restrict water flow.
Remind all commercial and industrial property owners to
ensure their personnel and subcontractors understand their
operation and maintenance procedures and site plans and
follow them.
Review proactively all active projects where erosion and
sedimentation control may become a problem. Any location
where the soil was not stabilized by vegetation growth in
the autumn is likely to incur a runoff challenge this spring.
Require property owners to inspect, repair and reinforce the
drainage, erosion and sedimentation protections they
installed in the autumn; haybales and silt fencing are
probably degraded by the time the snow melts.
restriction will realize the protection provided by that same
buffer zone in avoiding even more flooding damage during
snowmelt and spring rains.
Remind residents that no treatment occurs for runoff
from winter snow and spring rain. As water flows from
parking lots and driveways to storm sewers to the local
rivers, what's in the runoff goes directly into the streams
and rivers including de-icing chemicals such as road salt
and motor vehicle residue such as gasoline and oil.
Appoint a Commissioner to write a short article for your
local newspaper, your town's newsletter, website and
Facebook page. Consider using photos from March 2010
flooding in your city or town to remind residents and
property owners that their vigilance and compliance are
essential to everyone's safety.
Brenda Kelly is Vice President of Stra t egic
Communications at Atmospheric and Environmental
Research and a MACC Director.
Verify with each project's environmental site supervisor
that the project's (temporary or permanent) stormwater
management system and wetland and buffer protections are
operating properly. We recommend the environmental site
supervisor should provide a short narrative and datestamped photos so the Commission can review quickly and
triage which locations may require additional measures.
Confirm that each environmental site supervisor has
authority to take corrective action on the site on a 24-hour
basis. The Commission may wish to require dated photos to
document the extent of standing water, flooding, and/or
erosion after each spring rainstorm of a specific magnitude,
perhaps 1.5-inch or greater.
Inform project owners that the Commission must be
notified immediately of any adverse environmental impacts
that develop. You may also want to obtain signatures now
so that the Commission's members and agents have rightof-entry onto the property to inspect for compliance.
(5) Education on wetland values and impact
Leverage heightened awareness of flooding and
washouts to educate residents of the value of wetlands,
buffer zones and floodplains in providing flood control,
storm damage prevention, groundwater supply and
protection of public or private water supply. The same
property owner who may complain about a buffer zone
MACC Newsletter
March/April 2011
(Continued from page 1, MassHighway Not Immune....)
Importantly, in its December 28, 2010 decision, the SJC
specifically rejected MassHighway's assertion that it
enjoyed “sovereign immunity” and thus was exempt from
local regulation for health and safety laws, in this case, the
Town of Boxford Board of Health's drinking water well
requirements. Many Commissions have been told, and until
now believed, they could not apply their local wetlands
bylaw or ordinance to MassHighway projects because, as a
state agency, MassHighway was immune from local
municipal bylaws or ordinances. MassHighway is now part
of Massachusetts Department of Transportation or
MassDOT. This impression may have been reinforced by
the occasional bond or other funding bill exempting a
specific bridge, highway repair or upgrade, or a statute in
the General Laws, which, strictly speaking, are something
different than what was involved in this case.
The facts of this case did not appear to be disputed.
MassHighway owns and operates a salt shed in the Town of
Boxford near Exit 53 on Interstate 95. Salt and other
chemicals are stored there for winter use on Interstate 95
and several nearby state roads. MassHighway has
acknowledged that the stored salt has contaminated
neighboring private wells, but refused the Town's request to
relocate the facility. In February 2006, MassHighway
began work to install replacement wells at aff e c t e d
residences. Saying it was immune from local regulation,
MassHighway did not obtain a well permit required by the
local Board of Health's regulations. The “shallow” wells
MassHighway dug are specifically prohibited in Boxford.
The Board of Health brought enforcement actions against
MassHighway, and the matter ended up in Superior Court
where MassHighway again insisted it enjoyed “sovereign
immunity” and sought to have the suit against it dismissed.
The Superior Court judge did not dismiss the case and
MassHighway appealed. The appeal was transferred to the
The SJC sent the case back to the lower court to
determine whether, given the facts in this case, the local
regulation would interfere with MassHighway's “essential
governmental purpose” or if the regulation would have
more than a “negligible effect.”
While the SJC did not in this decision explain these
terms, in prior decisions it has looked to the statute creating
the particular agency to determine what is its “essential
governmental purpose” or “function.” The SJC
acknowledged that this term is construed broadly and often
serves to exempt a state entity from local regulation. The
court said that determining what is more than a “negligible
effect” depends on the facts specific to the case.
If a state agency such as MassHighway asserts
exemption from your local bylaw or ordinance, you should
ask for the specific statute or budget enactment for the
particular project, or class of projects, that the agency
asserts as its basis for being exempt. If it cannot provide a
specific act of the state Legislature exempting it or the
work it proposes (as has been the case for some specific
bridge projects), then your Commission should apply its
local wetlands bylaw or ordinance and your regulations to
the project in such a manner that does not interfere with the
agency's “essential government purpose” or have more
than a “negligible effect” on its operations. That is now the
law in Massachusetts.
Nathaniel Stevens is an Associate at McGregor &
Associates and the Chair of the Arlington Conservation
MACC Newsletter
March/April 2011
(Continued from page 1, Changes to MESA Regulations....)
refine the rules adopted in 2005. They were promulgated in
part as a reasonable alternative to extreme measures
proposed in pending legislation and a lawsuit that, if
successful, would effectively gut MESA.
The revisions cause no change in the procedures for
NHESP review of projects in Estimated Habitat of rare
species under the Massachusetts Wetlands Protection Act
(WPA). For instance, if the proposed project is within
Estimated Habitat for state-listed rare wildlife, a copy of
the filing must be submitted to the NHESP, even if the
project qualifies for a MESA filing exemption. The MESA
and WPA reviews are separate and should not be confused
- only the rules for MESA permitting have changed. There
a r e , h o w e v e r, s e v e r a l c h a n g e s t h a t C o n s e r v a t i o n
Commissions should note, including:
• Schedule and process for updating of Priority
Habitat maps;
• Expanded grandfathering and exemptions,
including limited exemptions for projects
obtaining an Order of Resource Delineation
(ORAD) under the WPA before an area is mapped
as Priority Habitat;
• Mitigation standards and guidance;
• Statewide Conservation Plans and streamlined
permitting for Species of Special Concern; and
• Municipal-wide planning and permitting for
communities with substantial areas of Priority
Endangered species (but not
Species of Special Concern). As
always, it is important that
sightings of rare species be
observations submitted to NHESP
forms. Photo Courtesy of Mass Audubon
Conservation Commissioners and other citizens should
work proactively to document rare species.
The new rules provide for a 60 day public review period
for the draft map revisions. Comments will be accepted and
considered on the “physical or biological features of the
habitat, or the current scope of existing development in the
area.” If you know of rare species in your community,
MACC recommends that you do not wait until the draft
maps are released or a project is proposed. Even reports of
new sightings within existing Priority Habitat should be
reported, since records more than 25 years old are not
included when the maps are updated. NHESP considers the
overall size and viability of a species' local population
when deciding which ones to include in the maps.
Exemptions and Grandfathering
The regulations at 321 CMR 10.14 provide exemptions
(Changes to MESA Regulations....continued on page 8)
Map Updates
NHESP has periodically updated Priority Habitat maps
every two years based on new observations of rare species,
scientific knowledge of species' habitat needs, quality of
habitat in a particular location, changes in land use and
other new information. (Note: Estimated Habitats of rare
wetlands wildlife, used under the WPA, are a subset of the
Priority Habitat maps.) The maps will now be updated
every four years instead of every two. The next update is
scheduled for January 2012.
This new schedule is intended to provide more
consistency and predictability for landowners in planning
for the use of their property. However, it also means that
newly discovered populations of rare species may not be
protected by permitting requirements under MESA if the
population is not within the mapped habitat in effect at the
time a project is proposed. NHESP retains some ability to
review and require permits for sites outside of Priority
Habitat where there are new records of Threatened or
MACC Newsletter
March/April 2011
(Continued from page 7, Changes to MESA Regulations....)
for certain categories of projects. These are mainly projects
that have small impacts or are routine maintenance of
existing development. The revisions add some new
exemptions and clarify other existing ones. One provision
now exempts a new residential unit built on an infill lot no
more than two acres in size if the lot is part of a previously
approved subdivision and does not require an Order of
Conditions under the WPA. Further exemptions are found
in related sections of the regulations, for example 321
CMR 10.18 revises performance standards to result in an
automatic determination of no taking of a rare species for
projects impacting no more than 10,000 square feet of
Priority Habitat. This performance standard applies to
animal species of Special Concern if the project is not
subject to the WPA and is more than 300 feet from a vernal
pool. In addition, under this provision determinations of no
take will now be valid for five years rather than three years,
and the deadline for starting work under a Conservation
and Management Permit can be extended at the agency's
The grandfathering provisions previously issued as
guidelines have now been formally adopted within the
regulations, with a few revisions. A project that has
received an ORAD on a site outside of Priority Habitat will
be exempt from MESA review if
the site is mapped as Priority
Habitat after the ORAD is
issued, provided certain other
permits are secured and an
Order of Conditions is obtained
within three years of issuance of
the ORAD. MACC raised
confusing language of this
Photo Courtesy of Richard Johnson
provision during the comment
period on the draft regulations. We recommend that
Conservation Commissions pay close attention to this
provision and projects that fall under it, and consult with
NHESP if questions arise. MACC is also interested in
hearing from Commissions that encounter difficulties with
this or other provisions of the regulations.
Mitigation Standards and Guidance
Projects receiving permits allowing takings of rare
species are required to provide mitigation that will result in
a long-term net-benefit to the species.
To improve consistency and predictability, the revised
regulations specify general mitigation standards to meet the
“long-term net-benefit standard” (321 CMR 10.23). The
ratios for area of mitigation versus impact are, Endangered
3:1, Threatened 2:1, and Special Concern 1.5:1. NHESP
may allow variances from these standards on a case-bycase basis but must explain those decisions in writing,
including discussing the factors considered. Mitigation
may include habitat protection and/or other measures such
as habitat management or contributions to research on the
NHESP also will post guidelines for meeting the
performance standards for species for which three or more
Conservation and Management Permits are issued in a
three-year period. This will help to ensure that different
projects affecting the same species are subject to consistent
requirements, and guides landowners on what mitigation
should be expected when they are planning projects.
Impacts to species of Special Concern will be afforded
more flexibility than impacts to Threatened or Endangered
species, and NHESP will only exert jurisdiction over new
occurrences of Threatened or Endangered species when
commenting through the MEPA process on projects outside
of Priority Habitat.
(Changes to MESA Regulations....continued on page 9)
MACC Newsletter
March/April 2011
Statewide Conservation Plans for Species of Special
One new major provision allows for the development of
statewide Conservation Plans for species of Special
Concern. These new plans will identify priority areas
essential for the long-term viability of the species in the
Commonwealth. Once the plan is adopted, projects outside
of the conservation protection zones specified in the plan
will be allowed to proceed in accordance with the terms of
a general permit. Mitigation for projects outside the
conservation zones may include contributions toward
protection of land within the zones. No new areas of
Priority Habitat for the species will be mapped after the
plan is approved. The Eastern Box Turtle will be the first
species for which such a conservation plan will be
developed. The draft is scheduled for public comment and
will be released later this spring. The new provision
represents a major shift for NHESP and is intended to
secure the long term viability of the species on large-scale
conservation zones, while de-emphasizing the previous
creation of numerous smaller, scattered sites across the
Municipal-wide Planning and Permitting
For communities with substantial areas of Priority
Habitat, a new NHESP planning tool is now available. The
municipality can work with NHESP to develop a
comprehensive conservation and management plan and
permit for the entire town or selected areas (e.g., a local
industrial park or development zone). This may include
designation of areas for building permits within a large site,
facilitating planning, and development in a more
coordinated manner benefiting both the affected species
and development interests. At the request of MACC and
other commentators, NHESP added a provision requiring a
public participation process for these municipal plans and
Photo Courtesy of Jake Kubel
application of the law, while also improving public
transparency and retaining critical fundamental protections
for our natural heritage. We look forward to seeing annual
reports from NHESP on the results of the new regulations.
We also advise each Conservation Commission to review
the revised regulations to help each city and town develop
a working understanding of the changes.
Heidi Ricci is a Senior Policy Analyst at Mass Audubon
and a MACC Director; Pat Garner is a Wetlands Scientist
and MACC President.
The Massachusetts Endangered Species Act is one of the
Commonwealth's most important environmental statutes,
and one of the most effective tools in the nation for
protecting rare and endangered species at the state level.
Recently, this law has been subject to attack both in court
and through proposed legislation. MACC is working
actively with other environmental groups to oppose those
efforts, which would render MESA ineffective in protecting
rare species. The recent revisions to the MESA regulations
address many of the concerns raised by landowners and
developers seeking more clarity and consistency in the
MACC Newsletter
March/April 2011
(Continued from page 3, MACC Promotes Municipal Enforcement....)
court and/or to pay a penalty or fine, a municipalities' only
recourse is to file a criminal complaint. Any fine paid after
a criminal conviction is paid to court, and a city or town
gets a portion. The cost, time and personnel resources
needed to pursue such a criminal action impose substantial
burdens on municipal efforts to deter or punish egregious
violators of local laws. Further, if a municipality goes to
court seeking equitable enforcement, such as an injunction
to stop a bylaw violation from continuing, under current
law, the superior court lacks the authority to assess a
penalty, even when there has been a willful violation of the
law that harms the public health, safety or environment.
The local enforcement bill would allow municipalities to
seek and the court to impose civil penalties and equitable
enforcement at the same time and through the same
process. (Currently, a Commission can still seek both
equitable remedies and fines, but through separate
proceedings.) As with any type of court proceeding, noncriminal disposition does not provide a guarantee of what a
judge will decide, but this process can be less expensive
and faster for municipal officials to use, without the
expense of town counsel.
The proposed amendment would strengthen, but not
entirely change the legal process for enforcement.
Municipalities still would not possess unilateral authority to
assess fines or penalties and will still need to present a case
in court.
MACC supports the local enforcement bill because it
would provide cities and towns with sharper teeth through
the ability to pursue alleged violators of local laws in
superior court and raise the maximum violation amount to
$1,000. The proposed changes are more likely to garner
more attention from potential and documented violators.
This threat is also enhanced to some degree as each day that
a violation is allowed to stand uncorrected can be
considered as a new and separate violation subject to these
penalties. As wetlands bylaws and ordinances are among
the types of local laws that can utilize non-criminal
disposition, MACC further supports the bill for the benefits
it would bring to Commissions who administer those laws.
MACC, through its Quarterly Newsletter, Environmental
Handbook for Massachusetts Conservation Commissioners,
and Helpline assistance continues to provide information
and support on the drafting and adoption of wetlands
bylaws and ordinances. MACC is working actively to pass
this bill as the lead, statewide organization promoting it.
Watch for E-MACC alerts about the progress of the
legislation and the best times and ways to contact your
elected officials. MACC believes that public support for
this legislation will be key to its passage and strongly
encourages your participation in this effort.
To read the legislation filed by Representative Stephen
Kulik and Senator James Eldridge during the 2011-2012
legislative session, see:
Kate Connolly, First Vice President of MACC, is a land
use and environmental attorney with Murtha Cullina LLP.
She can be reached at 617.457.4096.
Environmental Consulting Services
For Conservation Commissions
Third Party Permit Reviews
Wetland Delineation Reviews
Construction Compliance Monitoring
Erosion Control Plans
Stormwater Management System Evaluations
Wetland Restoration & Mitigation Plans
Rare Species Habitat Studies
Vernal Pool Assessments
Wetland Plant Nursery and Planting
Wetlands Preservation, Inc.
Environmental Consulting Services
475 Ipswich Road, Boxford, MA 01921 (978) 352-7903
47 Newton Road, Plaistow, NH 03865 (603) 382-3435
FAX : (603) 382-3492 E-MAIL: [email protected]
MACC Newsletter
March/April 2011
Compensatory Mitigation: A Federal Perspective
By Ruth M. Ladd, PWS
The US Army Corps of Engineers “(“Corps”) regulates
the discharge of dredged or fill material into waters of the
United States under the Clean Water Act and all work in
navigable waters under the Rivers and Harbors Act. Until
recently, the New England District of the Corps was
usually able to get by with either not requiring mitigation
for projects covered by our Massachusetts General Permit
(“GP”) or accepting the mitigation required by the local
Conservation Commission. This is changing due to a
couple of national shifts in regulation and policy in the past
few years.
First, in 2007, the Corps issued revised Nationwide
Permits (“NWP”) which are used in much of the US, but
not New England where the Corps has a general permit for
each state. The NWP regulations state:
“Compensatory mitigation at a minimum one-for-one
ratio will be required for all wetland losses that exceed 1/10
acre and require pre-construction notification, unless the
district engineer determines in writing that some other form
of mitigation would be more environmentally appropriate
and provides a project-specific waiver of this requirement.
For wetland losses of 1/10 acre or less that require preconstruction notification, the district engineer may
determine on a case-by-case basis that compensatory
mitigation is required to ensure that the activity results in
minimal adverse effects on the aquatic environment. Since
the likelihood of success is greater and the impacts to
potentially valuable uplands are reduced, wetland
restoration should be the first compensatory mitigation
option considered.” [March 12, 2007 Federal Register, p.
11193, C.20(c)]
reduce the adverse effects of the project…” [C.19(g)]
Although the New England District does not use the
NWPs, we use many parts of them in developing our state
Second, on April 10, 2008, the Corps and the US
Environmental Protection Agency published regulations in
the Federal Register entitled, “Compensatory Mitigation
for Losses of Aquatic Resources; Final Rule” [33 CFR Part
332]. This is commonly called the Mitigation Rule
(“Rule”). The Rule has rendered obsolete some previous
guidance and formalized other guidance. The focus is on
mitigation planning and performance so that the result will
be self-sustaining aquatic resources that provide the
desired functions. Key points in the Rule include:
• A preference hierarchy is established: 1) Mitigation
bank credits, 2) In-lieu fee (“ILF”) program credits, 3)
(Compensatory Mitigation....continued on page 22)
“For losses of streams or other open waters that require
pre-construction notification, the district engineer may
require compensatory mitigation, such as stream
restoration, to ensure that the activity results in minimal
adverse effects on the aquatic environment.” [C.20(d)]
Where certain functions and services of waters of the
United States are permanently adversely affected, such as
the conversion of a forested or scrub-shrub wetland to a
herbaceous wetland … mitigation may be required to
MACC Newsletter
March/April 2011
Spring/Summer 2011 Educational Offerings
Valuable MACC educational programs are available to you this
spring. Sign up as soon as possible to reserve your space.
Fundamentals for Conservation Commissioners
(Middleborough Town Hall)
Saturday, April 9
9:00 - 11:30 a.m. (Check-in 8:30 a.m.)
12:30 - 3:00 p.m. (Check-in 12:00 p.m.)
Saturday, April 16
9:00 - 11:30 a.m. (Check-in 8:30 a.m.)
12:30 - 4:00 p.m. (Check-in 12:00 p.m.)
Saturday, April 30
9:00 - 11:30 a.m. (Check-in 8:30 a.m.)
12:30 - 3:00 p.m. (Check-in 12:00 p.m.)
Unit 5 ~ Wetland Types: Their Functions and Values
Unit 6 ~ Writing an Effective Order of Conditions
Unit 2 ~ Getting Home before Midnight: How to Run
an Effective Meeting
Unit 4 ~ Plan Review and Site Visit Procedures (note
longer class time-dress appropriately for field)
Unit 7 ~ Open Space Planning & Protection
Unit 8 ~ Managing Conservation Lands
Fee: MACC members $45 per Unit, Non-members $60 per Unit. Frederick J. Fawcett II
Scholarships are available to MACC members - call the office at 617.489.3930. Anyone is
welcome to sign up for the Units, which can be taken in any order. Times may vary slightly,
depending on location. Confirmation with exact time and directions will be sent via email.
Morning refreshments will be served. Bring a bag lunch.
Soil Erosion and Sediment Control Training Program
Erosion and Sediment Control Problems and Solutions:
What are the Options for Effective Prevention and Control?
This full day workshop is geared toward Conservation Commissioners and inspectors and will
introduce you to effective methods of erosion prevention and sediment control, including
different BMP’s (Best Management Practices) and their applications. A site visit to an active
construction site will be included. All participants will receive certificates for 6 Professional
Development Units! Please dress for the weather.
Workshop: 9:00 a.m. - 4:00 p.m. (Check-in: 8:30 - 9:00 a.m.)
Friday, April 8
Saturday, April 16
Saturday, April 23
Saturday, April 30
Saturday, May 7
S. Egremont Fire Station, Egremont
Wrentham Public Safety Building, Wrentham
Stevens Memorial Library, Ashburnham
Senior Center, Wellfleet
Sturbridge Town Hall, Sturbridge
Fee: Workshop is Free for Conservation Commissioners and other local, state, and federal
regulators. The fee is $85 for private consultants and non-regulators, who are MACC Members
and $100 for non-members. Morning refreshments will be provided. Lunch is provided for a fee
($7.00) or bring your own, indicate preference when registering.
MACC Newsletter
March/April 2011
Basic Wetland Delineation Workshops with John Rockwell
Having delivered his “Basic Wetland Delineation Workshop” to hundreds of Conservation Commissioners and
wetland aficionados in Marion, Massachusetts over the past several years, John Rockwell, Buzzards Bay National
Estuary Program Wetland Specialist, will now split his one-day workshop into two full-day workshops.
Participants in both workshops will become more familiar with the state methodology of wetland delineation
through practice sessions, case studies and a field session; they’ll be introduced to plant identification and be
shown how to use the DEP manual “Delineating Bordering Vegetated Wetlands under the Massachusetts
Wetlands Protection Act”.
Basic Wetland Delineation: Soils
Basic Wetland Delineation: Vegetation
Saturday, May 21
(Check-in: 8:00 a.m.) Class: 8:30 a.m.-4:00 p.m.
Marion Town House, Marion
Saturday, June 11
(Check-in: 8:00 a.m.) Class: 8:30 a.m.-4:00 p.m.
Marion Town House, Marion
MACC Members $95 • Non-members $110
MACC Members $95 • Non-members $110
Focus is on hydric soils, indicators of wetland
h y d rology and understanding the DEP BVW
Delineation Field Data form: Section II. Indicators of
Hydrology (limit 15) (2.0 Advanced Credits)
Focus is on wetland vegetation and understanding the
DEP BVW Delineation Field Data Form: Section I.
Vegetation. (limit 15) (2.0 Advanced Credits)
Lunch and DEP manual Delineating Bordering Vegetated Wetlands under the Massachusetts Wetlands
Protection Act are included in each session. Bring pen/pencil and pocket calculator. Field work in the
afternoon. Presented in cooperation with the Buzzards Bay National Estuary Program.
“Beyond Beginners” Wetland Delineation Workshop
Saturday, May 7
(Check-in: 8:00 a.m.) Class: 8:30 a.m.-4:00 p.m.
Marion Town House, Marion
MACC Members $95 • Non-members $110
Ever heard the expression, “A little bit of knowledge can be a dangerous thing”? This workshop is designed to
expand upon the information and techniques presented in John's two full-day Basic Delineation Workshops: Soils
and Vegetation. Attendees will improve their understanding of the state delineation methodology and their ability
to make those tough soils and vegetation determinations through practice sessions, case studies and field work.
Lunch and workshop materials are included in the fee. Bring pencil/pen and pocket calculator. Optional: soils
auger, sharpshooter and Munsell Color Book. Prerequisites: registrants must have previously attended both of
John's full-day basic delineation workshops (soils and vegetation), provide proof of prior delineation training
(college level) OR be a practicing wetland professional. (limit 15) (2.0 Advanced Credits)
8:00 - 8:30
8:30 - 10:15
10:15 - 10:35
10:35 - 12:00
12:00 - 12:30
12:45 - 4:00
MACC Newsletter
March/April 2011
registration; coffee, etc.
lecture: vegetation & analysis
lecture: difficult to analyze soils
lunch (provided)
field work
MACC Spring-Summer 2011 Registration Form
(or register online at
Name ____________________________________ E-mail _____________________________________
Commission/Organization _______________________________________________________________
Address __________________________ City____________________ State__________ Zip _________
Phone (w) _______________________________
(h) ____________________________
Please include your payment and mail to: MACC, 10 Juniper Road, Belmont, MA 02478. Membership fee applies
to MACC members, Conservation Commissioners, and staff when members dues are paid. Cancellation must be
received in writing (mail, fax, email) at least 2 business days prior to session. No refund or credit for less than 2
days notice. A $10 processing fee will be charged for cancellation. Call 617.489.3930 if you have questions. To
receive program credit, you must attend entire workshop. Fax: 617.489.3935 • Email: [email protected]
Fundamentals for Conservation Commissioners
(MACC Members $45 per unit, non-members $60 per unit)
(✓ unit choices)
Saturday • April 9 • Middleborough Town Hall
Morning: Unit 5 ______ c0448
Afternoon: Unit 6 ______ c0449
$ ________
Saturday • April 16 • Middleborough Town Hall
Morning: Unit 2 ______ c0450
Afternoon: Unit 4 ______c0451
$ ________
Saturday • April 30 • Middleborough Town Hall
Morning: Unit 7 ______ c0452
Afternoon: Unit 8 ______ c0453
$ ________
Delineation Workshops
“Beyond Beginners” Wetland Delineation c0457
(MACC Members $95, Non-members $110) (2.0 Advanced Credits)
Saturday • May 7 • Marion Town House, Marion
$ ________
Basic Wetland Delineation: Soils c0458
(MACC Members $95, Non-members $110) (2.0 Advanced Credits)
Saturday • May 21 • Marion Town House, Marion
$ ________
Basic Wetland Delineation: Vegetation c0459
(MACC Members $95, Non-members $110) (2.0 Advanced Credits)
Saturday • June 11 • Marion Town House, Marion
$ ________
ESC Workshops
Soil Erosion and Sediment Control
(Free for Conservation Commissioners & other local, state & federal regulators)
(For other MACC Members $85, Non-members $100) (2.0 Advanced Credits)
Friday • April 8 • Egremont c0460
Saturday • April 16 • Wrentham c0461
Saturday • April 23 • Ashburnham c0462
Saturday • April 30 • Wellfleet c0463
Saturday • May 7 • Sturbridge c0464
(Yes ___ or No ___ adding $7.00 for lunch)
(Yes ___ or No ___ adding $7.00 for lunch)
(Yes ___ or No ___ adding $7.00 for lunch)
(Yes ___ or No ___ adding $7.00 for lunch)
(Yes ___ or No ___ adding $7.00 for lunch)
$ ________
$ ________
$ ________
$ ________
$ ________
$ ________
Method of Payment:
Check enclosed (payable to MACC ) ❑
❑ Visa
❑ MasterCard
❑ American Express
❑ Discover
Bill my credit card:
Card Number: _____________________________ Expiration Date ________________ CVV Code______
MACC Newsletter
March/April 2011
Massachusetts Clean Energy & Climate Plan for 2020: The
Commonwealth's 10 Year Plan to Meet 25% Emissions Reductions
By Eugenia Gibbons
On December 29, 2010, the Massachusetts Executive
Office of Energy and Environmental Affairs (EOEEA)
revealed the emissions reductions limit for the state had
been set at 25 percent below 1990 levels by 2020 - the
maximum allowed under Massachusetts' Global Warming
Solutions Act (GWSA). Along with this announcement,
the state also released the Massachusetts Clean Energy
and Climate Plan for 2020. The unveiling of the state's
plan and the determination of the 2020 limit further
underscore why Massachusetts is a national leader of
climate policy.
A landmark piece of legislation, the GWSA was passed
in 2008. It mandates that Massachusetts reduce its
greenhouse gas (GHG) emissions, economy-wide, 10-25
percent below 1990 levels by 2020, and 80 percent below
1990 levels by 2050.
The 136-page Massachusetts Clean Energy and Climate
Plan for 2020 was developed by an interagency technical
team at EOEEA and informed by extensive scenario
modeling conducted by a team of expert consultants. It
also reflects recommendations made by the state's Climate
Protection and Green Economy Advisory Committee.
It should be noted that this plan is separate from a
climate adaptation plan also generated by EOEEA per the
GWSA. The adaptation plan, the release of which is
forthcoming, will be informed by the recommendations
made by the Climate Change and Adaptation Advisory
The Massachusetts Clean Energy and Climate Plan
layers new and expanded measures onto existing policies
and programs with a high potential for “generating
significant energy cost savings and to create clean energy
Policy Solutions at a Glance
In total, the report contains more than 20 policy
solutions. Some strategies are regulatory, others require
legislation or executive action, while still others can be led
by local or municipal efforts, but all combine to create
opportunities for clean energy growth and GHG
Tree Retention and Replanting
One new policy, unique in its simplicity, is a measure
related to Tree Retention and Planting to Reduce Heating
and Cooling Loads. The contribution of trees to reduced
heating and cooling loads in buildings is welldocumented; the recent decimation of tree populations by
the Asian Longhorn Beetle has provided an unintended
case study and an unwelcome reminder of precisely how
valuable the cool shade of a tall tree can be on the hottest
of days. The below table outlines the estimated/anticipated
benefits of planting trees through 2020.
Estimated GHG
emission Reductions impact 100,000 tons in 2020, 300,000 tons in 2035
Estimated job gains
Upwards of 500 jobs/year (subject to program scale)
Other cost-saving benefits
Reduced energy costs and fuel imports
Potential resources for pilot
Existing utility efficiency programs. Creating a new regulatory
authority. Municipal adoption of development ordinances that
include incentives for retention and planting
This new policy is rooted in the understanding that
when strategically located around buildings, trees can
significantly reduce cooling and heating loads. In fact, the
Clean Energy and Climate Plan asserts that optimal
placement of trees “on the southeast and southwest sides
of a building [can] provide shade and reduce air
conditioning load. Evergreen trees planted on the north
and northwest sides (given prevailing winds in
Massachusetts) provide wind breaks and can reduce
winter heating needs.” Tree retention and planting yields
aesthetic benefits and achieves significant emissions
reductions, encourages local job growth and contributes to
reduced energy costs and fuel imports. Conservation
Commissions can be vocal and active in municipal
planning and procedures for tree siting, species selection
and ongoing tree maintenance, especially on municipally
owned lands, especially in towns that have a tree warden
or a tree committee.
Next Steps - Plan Implementation
Actions required for implementation vary between
policies stated under the Massachusetts Clean Energy and
(Massachusetts Clean Energy....continued on page 16)
MACC Newsletter
March/April 2011
(Continued from page 15, Massachusetts Clean Energy....)
Join Us at the
Climate Plan. Some can be achieved
through multiple courses of action.
Building energy rating and labeling
for example, can be incorporated
into the existing code governed by
the independent Board of Building
Regulation and Standards, or related requirements can be
pushed through legislation. Still other measures may be
implemented through Executive Order (i.e. sustainable
development principles) and codified through legislation
(i.e. an expanded smart growth package). No matter the
course of action, if Massachusetts is to achieve the
emissions reductions targets mandated by the GWSA, full
implementation of all the measures outlined in the plan
and adoption of many not contained therein is imperative.
Presently, EOEEA is developing an agenda that will
help reach the 25 percent limit by 2020. Separately, several
pieces of legislation aimed at achieving source reductions
have been filed this session, including a transition to a coal
free economy that implies increased investment in
renewable energy and expanding energy eff i c i e n c y
programs. Other approaches include zoning reform that
would help communities plan and develop in ways that
promote more walk-able neighborhoods, support for more
efficient vehicles and more funding dedicated to transit
The release of Massachusetts Clean Energy and Climate
Plan for 2020 and the Patrick Administration's
commitment to reduce emissions represent a significant
step in the right direction; proof that the state is committed
to tackling one of the most important issues of our time.
But it is only the beginning. It provides a blueprint, an
exciting starting point from which to move forward on a
path towards a cleaner, healthier more sustainable future.
April 25, 2011
Buca di Beppo Restaurant
Courtesy of Oxbow Associates
A relaxing evening of appetizers
and social networking.
The MACC Networking Group and the AMWS
Networking Committee organize opportunities
for Conservation Commissioners, agents, and
administrators; city, state, and federal regulatory
officials, wetland scientists, educators, ecologists,
and environmental professionals from all
professional backgrounds to: network socially; learn
about career advancement; develop a diverse
professional skill set; and to share expertise
regarding wetlands, natural and biological
resources, and open space that can help shape
local, state and federal policies, bylaws and
This event is free.
To find out more about implementation of the Global
Warming Solutions Act, or to read the Massachusetts
Clean Energy and Climate Plan for 2020, visit the
Massachusetts Department of Environmental Protection
Eugenia Gibbons is the Program Coordinator for the
Environmental League of Massachusetts.
MACC Newsletter
March/April 2011
The Future of North Shore’s Great Marsh
By Tim Purinton
Scientists are peering into the future, and the fate of the
Great Marsh and other coastal salt marshes is coming into
focus. The United States Geological Survey predicts that
by 2100, rising sea level - driven primarily by a warming
climate - may submerge North Shore's Great Marsh to such
an extent that it will more resemble the mud flats and open
water of Plum Island Sound than the iconic salt-hay
landscape famously painted by Martin Johnson Heade.
So what's at stake if the Great Marsh can't keep up with
sea level rise? As a self-described marsh rat, who grew up
jumping ditches that crisscross the 20,000 acre marsh and
still relishes weekends at a family duck hunting camp on
Shad Creek in Rowley, the loss is difficult to fathom.
Take the commuter train from Ipswich to Newburyport
and the grandeur of the Great Marsh is on full display. The
train bisects the heart of the marsh, elevated just a few feet
from the grass tips. Through the Lexan windows it is not
uncommon to see flocks of birds (greater yellowlegs,
snowy egrets, least sandpipers) alight on the marsh surface
or to glimpse a lone snowy owl perched on the pitch of a
clam shack. Will these species move on or perhaps adapt to
the anticipated changed landscape?
Marshes are incredibly nutrient
rich, processing and filtering
organic material like a fine-tuned,
backyard composter - giving back
these nutrients to a range of other
forms of life. If this enormous
energy processor is gone, what will
be the ripple effect?
Setting aside the profound ecological impacts, there will
be other losses; with the potential disappearance of the
marsh a distinct cultural landscape disappears, like losing
a priceless heirloom. I asked my friend, Geoff Walker,
carver of beautiful marsh bird decoys who put it simply:
“The Great Marsh holds a person's heart in its hands. It
was a gift from my father, Hank Walker, the famous
wildlife artist, to me. I have gifted it to my wife and sons,
Nathan and Joshua. It's hard to believe that this ritual will
be lost forever and a place of such ecological importance
will disappear.” The 20,000-acre question is what can
people and communities do to help these marshes keep up
with rising seas and migrating inland? We are developing
and implementing climate
change adaptation strategies,
but with especially-vulnerable
wetlands like the Great Marsh,
we may only have a generation
or two to make sure we get it
Note: This article was first
published in the Commonwealth
of Massachusetts' Great Outdoors
Blog found at:
Tim Purinton is the Acting Director with the
Massachusetts Department of Fish and Game’s Division of
Ecological Restoration and a MACC Director.
MACC Newsletter
March/April 2011
MACC 2011 Environmental Service Awards
Presented at the Annual Environmental Conference on March 5
(all photos courtesy of Photographer Norm Eggert)
of the Year
Stewart Kennedy
Linda Orel, Stewart Kennedy, Seth Wilkinson
Stewart Kennedy has served on both the Lexington Conservation Commission and Lexington Conservation
Stewards since 2003 and is renowned for his role as liaison between these two organizations–helping to keep the
Commission up to date on stewardship efforts throughout town and facilitating interactions between different
groups. Stewart has amassed an extensive list of achievements as an environmental steward: he has coordinated
several volunteer projects, ranging from invasive species removal to storm drain marking. He also conducts public
outreach to local organizations, advocates for bike-friendly amenities in town, raises funds for environmental
stewardship and participates in resource monitoring projects. Stewart was a key leader in launching a new
Watershed Stewardship Program–working closely with the town Department of Public Works engineers. Stewart
completed both the MACC Fundamentals and Advanced Certificate Training programs.
Outstanding Achievement
in Community
Patricia Loring
Linda Orel, Patricia Loring, Seth Wilkinson
Pat Loring is no stranger to the work of community conservation; she's done it all from being a long-serving
Conservation Commissioner to spearheading land acquisition projects. Pat served as a MACC Director, assisting
MACC early on with developing MACC's first training program for Commissioners. Pat is highly committed to land
acquisition and preservation efforts–leading land acquisition campaigns, negotiating and finalizing easements and
conservation restrictions (19 total), taking a leadership role producing two Open Space and Recreation Plans,
maintaining trails and coordinating other projects. Pat's knowledge of land acquisition has allowed the Town of
Duxbury to acquire significant and strategic parcels, including her extraordinary efforts to protect the historic O'Neil
Dairy Farm. She has served both as Chair and member of the Duxbury Open Space and Recreation Committee since
1996. Pat was instrumental in passing the Community Preservation Act in Duxbury and also serves on the
Community Preservation Committee.
MACC Newsletter
March/April 2011
Long Time
Edward Clancy
Linda Orel, Edward Clancy, Seth Wilkinson
Ed Clancy has served the City of Marlborough for over 43 years. His tenure on the Marlboro Conservation
Commission began in 1968, and he has served as the Chair of the Commission since 1993. Ed's public service also
includes working as a biology teacher and a City Councilman. Ed has reviewed more than 1,500 wetland permits
and has participated in several appeals of Order of Conditions. In all, the Conservation Commission estimates that
he has dedicated over 5,160 hours of volunteer time tending to the Commission's work and its meetings. Other
noteworthy achievements include: successfully advocating for the Water Supply Protection District Ordinance and
the Stormwater Ordinance as a City Counselor, and serving as a working member of two Open Space and Recreation
Plan Committees.
Outstanding Public Service
DEP Circuit Rider Program
Christine Odiaga
Pamela Merrill
Alice Smith
Mark Stinson
Left to right: Mark Stinson, Christine Odiaga, Alice Smith, Pamela Merrill
Since the Circuit Rider Program's inception in 1996, MassDEP's Wetland Circuit Riders have served the
Conservation Commissions and citizens of Massachusetts to strengthen their ability to better protect wetlands. The
Circuit Riders are known for their dedication, enthusiasm and effectiveness in providing service and assistance to
Conservation Commissions. Despite economic downturns and the recent loss of three regional Circuit Riders in the
past two years, the remaining staff has continued to work hard to provide Commissions and others with the essential
help they need. This past year they have offered 50 training sessions on wetland topics; attended 100 Conservation
Commission meetings, and they have responded to over 9,000 e-mail requests for information–all of which improve
the quality of permit submissions and regulation clarification.
MACC Newsletter
March/April 2011
MACC Honors Stuart
DeBard, MACC Founder,
with Nancy Anderson Award
Accepting award, DeBard’s daughter
Ellen Debard Adle & Parvis Adle
MACC is extremely pleased to have bestowed upon Mr. Davis “Stuart” DeBard (posthumously) our most prestigious
honor, the Nancy Anderson Award for his leadership, vision, dedication and lifelong commitment to community
conservation at the Annual Environmental Conference in March.
At a time when the concept of Conservation Commissions was only four years old and the great majority of towns
did not have one, Stuart and other visionaries saw the need for an organization dedicated to supporting Conservation
Commissioners. Stuart helped found MACC in 1961 and served as its first President. He also authored the first
Massachusetts Conservation Commission Handbook, now titled the Environmental Handbook for Massachusetts
Conservation Commissioners currently in its ninth edition. On our Golden Anniversary, MACC can imagine no one
more suitable to receive this award than Stuart DeBard.
Stuart was a dedicated conservationist and a pacesetter; his life was filled with public service. As a member of the
Hingham Planning Board, he sponsored an article at the 1959 Special Town Meeting to create Hingham's
Conservation Commission. He was its Charter Member and continued to serve for twenty years, three of those as
Chair. After battling to save salt marshes, he pioneered the concept of privately held conservation easements (known
in Massachusetts as conservation restrictions), giving speeches starting in 1949 around the United States and drafting
several easements as an attorney. Stuart served for 10 years as President of the Hingham Land Conservation Trust
and brokered several land protection deals, including the acquisition of Wampatuck State Park and several other
stellar land conservation holdings involving state and private financing.
From 1960-1994, Stuart was Executive Secretary of the Massachusetts Association of Town Finance Committees
where he regularly authored the Finance Committee Handbook for ATFC, still a key publication today. He also served
for a time as President of the Boston Junior Chamber of Commerce, and helped found and then served as Vice
President for over 40 years of the World Affairs Council of Boston. He did all this while running a thriving law
practice for the Boston firm of Weston Patrick P.A.
Stuart had a delightful and fun personality. He could juggle oranges and ride a unicycle, and told wonderful stories.
He was an avid dancer, skier, painter, traveler, and sailor and never missed an opportunity to march with the Hingham
Militia, carrying his musket and dressed as a Continental Army Minute Man. He graduated from Harvard College in
1936 and from Harvard Law School in 1939. After serving in World War II as a Commanding Officer aboard the
Destroyer Escort, he moved to Hingham. Stuart passed away in October 2010 at age 95, and is survived by his wife,
children, step children and grandchildren.
About the Nancy Anderson Award
The Nancy Anderson Award is MACC's most prestigious award. It is given to honor an environmental leader best
exemplifying the former MACC President, Nancy Anderson, and is presented in her memory. The Anderson Award is
given only at times the Board of Directors identifies a person with success in sustained environmental leadership,
staying power, creative thinking, fairness to all, love of our planet and a moral certainty in the goodness of all things
great and small. We were pleased to be able to provide this Award for only the second time in MACC's history to Mr.
Davis Stuart DeBard.
Outrageous Excuses for Erosion and Sediment Control Failure
Presented at the 2011 MACC Annual Environmental Conference
Photo Courtesy of Brandon Faneuf
What’s the big deal? Wetlands like sediment.
They didn’t predict that much rain.
Beavers ate all of our stakes.
My supplier ran out of haybales.
Hoped the Japanese Knotweed would stop the erosion.
Construction sites are supposed to be dirty.
Thought state projects were exempt.
So what? The damage is only temporary.
Didn’t know my contractors had even started working.
With climate change, everything’s going to be eroded anyway.
MACC Newsletter
March/April 2011
(Continued from page 11, Compensatory Mitigation....)
Permittee-responsible mitigation with a site selected using
a watershed/ecosystem level approach, 4) Permitteeresponsible mitigation on-site with in-kind aquatic
resource type restoration, creation, enhancement,
preservation, and, 5) Permittee-responsible mitigation onsite but out-of-kind.
• Site selection should consider habitat diversity,
connectivity, land use trends and compatibility with
adjacent uses.
• Preservation-only mitigation is appropriate in some
• Including buffers in mitigation projects is important.
• Use of two mitigation sites may be appropriate to
ensure functions are provided in appropriate settings, e.g.,
flood storage should be proximate to the impact but habitat
should be provided where it is sustainable.
• Deed restrictions with no third-party involvement are
to be avoided in most cases; conservation
easements/restrictions with a third party responsible for
long-term stewardship are preferable.
• There is a need to have greater than 1:1 impact-tomitigation area ratios to address temporal losses,
uncertainty, risk and difficulty.
How does this affect mitigation in Massachusetts?
The New England District is requiring mitigation
for many small (5,000 square feet to one acre) projects
from the federal perspective.
The New England District is requiring mitigation
for secondary/indirect impacts on aquatic resources (e.g.,
loss of critical terrestrial habitat for vernal pools,
fragmentation of aquatic resources and conversion of
aquatic resources from one type to another by removal of
vegetation once jurisdiction has been triggered through the
discharge of fill in inland waters).
If mitigation banking or an ILF program is
established in the state, applicants for small impact
projects, especially, are likely to be directed to them by the
Corps to increase the likelihood of replacement of lost
In many parts of the country, including New Hampshire,
Maine and Vermont, there are alternatives to permitteeresponsible mitigation such as mitigation banks and/or ILF
programs. There is actually a small ILF program for
Essential Fish Habitat (designated by the National Marine
Fishery Service) run by the Department of Marine
Fisheries in Massachusetts. The banks and ILFs are
handled by third-parties and result from the pooling of
impacts so larg e r, more sustainable restoration,
enhancement and/or preservation projects can be
accomplished within watersheds or other bioregions.
The Corps is actively encouraging potential bank or ILF
sponsors to explore the potential for establishing thirdparty mitigation in Massachusetts so that especially smaller
projects will have an option for addressing mitigation
requirements without having to acquire, design, construct,
monitor and steward the work themselves. The costs would
be approximately what it would cost permittees to
construct mitigation themselves.
This article is to help Conservation Commissions
understand the background if they hear that the Corps is
requiring different mitigation than they are requiring.
Whenever possible, the Corps would like to coordinate
with Commissions and see if there is a way for applicants
to satisfy the needs of both the Commission and Corps
without having two completely different mitigation
Any opinions expressed in this article are the opinions of
the author and should not be construed as the position of
the US Army Corps of Engineers including the New
England District.
Ruth Ladd is the Chief, Policy Analysis and Technical
Support Branch Regulatory Division at the New England
District Corps of Engineers and can be re a ched at
978.318.8818 or [email protected]
The Mitigation Rule often precludes Corps
acceptance of the Conservation Commission-required
replication for all lost functions, although on-site
mitigation for flood storage and some water quality
functions is usually acceptable. If the replication involves
loss of healthy upland, the Corps may not be able to accept
any of it.
MACC Newsletter
March/April 2011
Fundamentals for
Conservation Commissioners
National Grid
McGregor and Associates, P.C.
BSC Group, Inc.
LEC Environmental Consultants, Inc.
Murtha Cullina, LLP
New England Environmental, Inc.
Wilkinson Ecological Design, Inc.
MACC Newsletter
March/April 2011
Gretchen Carey
Chris Fallon
Gail Feldman
Sarah Flynn
Russell Gregory, Jr.
Irwin Hendricken
Elizabeth Kelley
Brian Marques
Amy Maxner
Tom Sakshaug
Joseph Teixeira
Greg Young
Massachusetts Association of Conservation Commissions
10 Juniper Road
Belmont, MA 02478
Non-profit Organization
Belmont, MA 02478
Permit No. 56583
April 8, 2011. Soil Erosion and Sediment Control. S.
Egremont Fire Station, Egremont. See page 12 for details
and page 14 for registration.
April 30, 2011. Soil Erosion and Sediment Control.
Senior Center, Wellfleet. See page 12 for details and page
14 for registration.
April 9, 2011. Fundamentals for Conservation
Commissioners Units 5 & 6. Middleborough Town Hall.
See page 12 and page 14 for registration.
May 7, 2011. Soil Erosion and Sediment Control.
Sturbridge Town Hall. See page 12 for details and page 14
for registration.
April 16, 2011. Soil Erosion and Sediment Control.
Wrentham Public Safety Building, Wrentham. See page 12
for details and page 14 for registration.
May 7, 2011. “Beyond Beginners” We t l a n d
Delineation Workshop. Marion Town House, Marion. See
page 13 for details and page 14 for registration.
April 16, 2011. Fundamentals for Conservation
Commissioners Units 2 & 4. Middleborough Town Hall.
See page 12 and page 14 for registration.
May 21, 2011. Basic Wetland Delineation: Soils.
Marion Town House, Marion. See page 13 for details and
page 14 for registration.
April 23, 2011. Soil Erosion and Sediment Control.
Stevens Memorial Library, Ashburnham. See page 12 for
details and page 14 for registration.
June 11, 2011. Basic Wetland Delineation: Vegetation.
Marion Town House, Marion. See page 13 for details and
page 14 for registration.
April 30, 2011. Fundamentals for Conservation
Commissioners Units 7 & 8. Middleborough Town Hall.
See page 12 and page 14 for registration.
MACC is a Member of Earth Share of
New England and the Massachusetts
Environmental Collaborative.
MACC is a private non-profit service corporation. Our
voting members are the Conservation Commissions of
Massachusetts. Nonvoting memberships are available to
others interested in community resource protection and
include receipt of this newsletter. MACC welcomes letters,
articles, drawings and photographs from readers, but
reserves the right to edit or reject submissions. Non-staff
articles do not necessarily represent the opinions of MACC.
Reproduction in whole or in part is permitted with proper
credit. For advertising rates and membership information
call MACC at 617.489.3930.