This can happen in the 212 of the 351 municipalities in Massachusetts who have Home Rule wetlands protection bylaws (towns) or ordinance (cities). This means more than half of the commissions across the state are simultaneously administering two wetlands permit programs. That is the source of the answer.

A commission has legal authority to approve a project under the state Act, while denying it under a local wetlands bylaw (or theoretically vice versa). The reason is that the state Act and local law are two separate legal regimens. The commission is administering two distinct but parallel permit programs.

An effective wetlands bylaw (and implementing regulations) to be legally valid must in some aspects be more stringent than the WPA and MassDEP’s Wetlands Protection Act Regulations at 310 CMR 10.00 (the “DEP Regulations”). For instance, instead of the DEP’s jurisdiction over certain sized ponds or types of streams, a bylaw may require permits for work affecting smaller water bodies or all streams.

Or instead of DEP’s requirement for flood plain work providing 1:1 compensatory flood storage compensation or for wetland work of 1:1 Bordering Vegetated Wetland (“BVW”) replication, a local bylaw might require 2:1 compensatory flood storage or 2:1 BVW replication. Or a local bylaw may limit the privilege of filling a BVW to 2,500 square feet instead of the 5,000 square feet allowed in the DEP Regulations.

Using this legal opportunity to be stricter than the Act, the usual bylaw will provide that it protects additional interests beyond the eight listed in the WPA. For example, a wetlands bylaw could protect wildlife (not just wildlife habitat), regulate erosion and sedimentation control, protect recreation values, or even consider aesthetics.

Of course, to be effective, a proper local wetlands program will have regulations promulgated by the commission that further implements these expanded legal interests, Resource Areas, submittal requirements, design specifications, and performance standards.

Often an effective wetlands bylaw will cover more natural areas that the Act. Commonly such bylaws treat the state Buffer Zone as its own Resource Area, that is protectable in its own right, and establish setbacks (no structure and no disturbance) within the Buffer Zone. Such a protected area is sometimes called an Adjacent Upland Resource Area.

Some bylaws enlarge this local Buffer Zone or AURA from the state’s 100 feet to 125 or 150 feet. Many bylaws give the commission jurisdiction over isolated wetlands, not just BVWs, or over vernal pools that are located outside the Resource Areas protected by the WPA.

In reviewing a project under these two separate but parallel state and local permit processes, every so often a conservation commission might determine that a project meets the rules under the WPA and DEP Regulations but does not meet the stricter rules under its wetlands bylaw and implementing regulations. For example, if an applicant seeks to fill less than 5,000 square feet of BVW under the state rules (and satisfies the state replication standards), a commission might approve the project under the WPA while denying it under its bylaw if the bylaw limits wetlands filling to 2,500 square feet.

One would expect a well-run commission is to issue separate decisions under the WPA and a local wetlands bylaw when it votes to approve project under the WPA but not under its local bylaw, and of course explain why. The best commissions in such situations issue separate findings and rulings so the applicant or other reader can clearly understand why a project was approved under the WPA and which standards were applied (and what conditions apply), and why a project was disapproved under the local wetlands bylaw and which standards were applied and what evidence in the record supports the decision. Such separate written decisions, which are highly recommended, allow for less confusing appeals, if any are filed, to DEP (under the WPA) or to court (under a local wetlands bylaw).

For a commission to ensure that a disapproval under a local bylaw survives any appeals, it would base its decision on the provisions in its bylaw or regulations that are more stringent than any equivalent standards in the WPA. Otherwise, it risks its decision being pre-empted by DEP’s decision, on appeal there, approving a project in a Superseding Order of Conditions. Or a court could overturn the denial for being arbitrary and capricious or lacking substantial evidence for not citing and discussing the local bylaw and regulations.

This importance is illustrated in the Massachusetts Supreme Judicial Court decision in the case of City of Boston v. Conservation Commission of Quincy, 490 Mass. 342 (2022). There, the City of Quincy lost its challenge to the Long Island Bridge reconstruction project in Boston Harbor for lack of more specific purposes in its wetlands ordinance, lack of regulations fleshing out these extra purposes, and lack of stated reasons for denial based on those ordinance and regulations’ provisions.