Wetlands and floodplains are protected and regulated under a variety of federal and state laws and regulations, and under local bylaws and ordinances. Solving our clients’ wetland, water, and wildlife issues has been a core area of our practice for about 40 years. We track changes in legislation, regulations, published policies, advances in wetland science, and court decisions. We participate in developments in this area of law.

Our clients are industries, developers, landowners, land managers, lenders, government agencies, land trusts, holders of development rights, project sponsors, and project opponents. Many law firms retain us to work for their clients on corporate and real estate transactions, proposed development projects and their problems, taxation and estate issues, and all related litigation.

Our attorneys work with wetland and wildlife scientists, botanists and biologists, hydrogeologists and coastal geologists, and other expert consultants and witnesses to meet the needs of clients.

The state Wetlands Protection Act, G.L. c.131, §40, and Department of Environmental Protection regulations cover basic procedures for protection of wetlands, related water bodies, and flood prone areas. DEP’s Division of Wetlands and Waterways supervises the administration of the Act by promulgating regulations governing work in and near wetlands and related water resources and flood prone areas, all known as Resource Areas.

Section 404 of the federal Clean Water Act (CWA) regulates discharge of dredged or fill material into the waters of the US, which includes federal wetlands, by requiring a United States Army Corps of Engineers (COE) permit, with input from the Environmental Protection Agency (EPA), before such activity. Think of this law are protecting “federal wetlands.” Other federal laws, such as the Rivers and Harbor Act of 1899, govern other activities in waters of the United States.

Many communities also have adopted local Home Rule bylaws and ordinances that are stricter than state law and regulations. About 190 municipalities have this local wetlands protection legislation. This local permit program is administered by the Conservation Commission, in parallel with the Wetlands Protection Act, under authority of the Home Rule Act and Home Rule Amendment to the Massachusetts Constitution.

In Massachusetts, under state and local law, wetlands are broadly defined to include riverfronts, banks, beaches, dunes, flats, wet meadows, and flood prone areas, in addition to vegetated wetlands such as swamps, bogs and marshes.

Any development project which involves filling, dredging, grading, construction, or other alteration to wetlands, water bodies, riverfront areas, or flood prone areas (or in buffer areas around some of these Resource Areas) may trigger the Wetlands Protection Act (WPA) and a local Home Rule wetlands protection bylaw or ordinance by requiring an application, known as a Notice of Intent (NOI), and permit known as an Order of Conditions (OOC) from the conservation commission or from DEP on appeal.

In 1996 the Rivers Protection Act was enacted.  It regulates virtually all activities next to rivers and other flowing bodies of water.  Essentially that Act added a new Riverfront Area to the Resource Areas protectable under the WPA. It also required applicants to prove they meet a two-part test “by a preponderance of the evidence” that the work proposed, including proposed mitigation measures, will have no significant adverse impact on the Riverfront Area, and there is no practicable and substantially equivalent economic alterative with less adverse effects on such purposes.

Work in a 100-foot Buffer Zone around some types of Resource Areas may trigger jurisdiction and the landowner has the option of filing a NOI or, instead, a Request for Determination (RDA) or more formal ruling, known as an Order of Resource Area Delineation (ORAD).

Local conservation commissions, appointed by the selectmen or mayor, are responsible for wetlands protection by administering and enforcing the WPA and any bylaw/ordinance. After abutter notice and public notice, the commission holds a public hearing, considers the NOI, deliberates on the project, and issues an approval or denial. The permits are called Orders of Conditions.

These permits may restrict and prohibit work in order to protect ground water, drinking water supplies, ground water, flood storage capacity, prevent storm damage, or protect shellfish, fisheries, or wildlife habitat. Decisions of the conservation commission may be appealed to DEP and to court.

If appealed to DEP, the decisions of local conservation commissions are subject to Superseding Orders of Conditions (SOC) or Superseding Determinations. DEP will conduct further adjudicatory hearings if requested by the applicant/landowner, the conservation commission, or any person aggrieved if previously a participant in the permit proceedings.

The typical local bylaw has jurisdiction and procedure similar to Wetlands Protection Act. It clarifies and expands jurisdiction and requirements beyond Act and DEP rules, provides fewer exemptions and explicit authority to disapprove projects or impose setbacks and mitigation, and allows the Commission to enforce the bylaw with administrative orders, court actions, and fines.

Most of these bylaws follow the model published by the MACC, in which our firm had a hand in drafting and helps to revise every few years. We track all court cases decided under Home Rule wetlands protection bylaws and ordinances. We are widely regarded as something of an authority on municipal wetlands protection law, policy, procedure, and court decisions over 40 years.

Floodplain protection is a mainstream part of local zoning under the state Zoning Act, G.L. c.40A, ever since the Turnpike Realty Co. v. Town of Dedham case. In roughly 80 percent of municipalities, this involves a floodplain zone, a type of “overlay district,” where some uses like buildings and land changes like filling and excavating are banned, and others need special permits from the zoning board of appeals if they meet specified criteria. “Floodplain zoning” is not to be confused with another overlay district called “wetland zoning.”  

This method of land use control to protect the public health and safety became popular due to related restrictions imposed by the Federal Emergency Management Agency (FEMA) flood insurance program whereby FEMA designates flood prone areas and flood hazard zones depicted on periodically revised Flood Insurance Rate Maps (FIRM).

Under the FEMA program, the federal government has provided what are called Flood Insurance Rate Maps (FIRMs) for communities containing flood-prone area, inundated by so-called 100-year flood, as surveyed and updated by the U.S. Army Corps of Engineers.  These maps, triggering the need for flood insurance to be purchased for certain properties or transaction (and adopted by reference in several regulatory programs, including the Wetlands Protection Act to define the extent of jurisdiction over “land subject to flooding”) are revised by the federal government from time to time.  It is critical to consult the current versions of the FIRMs.
    
Municipalities in Massachusetts have taken up a legal invitation to protect wetlands and flood-prone areas.  Golden v. Board of Selectmen of Falmouth held that the Wetlands Protection Act does not preempt local wetland zoning.  Lovequist v. Conservation Commission of the Town of Dennis ruled in favor of Home Rule bylaws for wetlands protection.  Turnpike Realty Co. v. Town of Dedham upheld the validity municipal floodplain zoning. Gove v. Town of Chatham upheld the validity of coastal floodplain zoning. Our firm is at the forefront of this legal field.