Massachusetts Wetlands Rules Amended to Reduce Regulatory Burdens for Certain Stormwater Activities

Beveridge & Diamond, P.C. - Massachusetts Environmental, Land Use & Real Estate Alert, February 2008

Following work with an advisory committee of interested stakeholders, MassDEP recently revised the state Stormwater Management Standards that are incorporated into the Wetlands Protection Act and Water Quality Certification rules, effective January 2, 2008.

The revised Stormwater Management Standards codified in the Wetland Protection Act Regulations (310 CMR 10.00) and 401 Water Quality Certification Regulations (314 CMR 9.00) replace the Stormwater Policy issued in by MassDEP in 1996.  MassDEP also is revising the Massachusetts Stormwater Handbook to provide guidance on the standards adopted in the regulations.  Interim guidance is available in Volume 1 of the Revised Massachusetts Stormwater Handbook.¹

The revisions to the Stormwater Management Standards adopted in the regulations address several concerns that have developed over time with the implementation of the existing rules about impacts of those rules that have tended to hamper the installation and maintenance of modern stormwater protections.  The most significant changes are as follows:

1. The rules now provide that the operation of a stormwater management system designed, constructed and installed on or after January 2, 2008, will not by itself create new buffer zone or wetland resource area subject to jurisdiction under the Wetlands Protection Act.  This change is intended to encourage the use of low impact development techniques on new projects, the adoption of which has been hampered in the past by concerns that the use of these techniques might on its own create new areas subject to wetlands jurisdiction.  Review of proposed modifications to such systems will be limited to the stormwater functions of the system, compliance with the Stormwater Management Standards, and the performance standards that would apply in absence of the stormwater management system.
   
   
2. The rules now provide that the filing of a notice of intent with a local conservation commission is not required in order to conduct maintenance activities on any stormwater management system constructed after November 18, 1996 and in accordance with the stormwater management standards, provided that such work must use best practical measures to minimize impacts to resource areas.  This change is intended to encourage the maintenance of stormwater management systems by reducing the regulatory burdens associated with such maintenance activities.

3. Separate requirements have been  adopted for land uses with higher potential pollutant loads, which are defined in the regulations as including parking lots with high intensity use.  In such cases, source control and pollution prevention are to be implemented to eliminate or reduce the discharge of stormwater runoff to the “maximum extent practicable” and specific best management practices determined by MassDEP may be required.  Stormwater discharges from such uses also must comply with the requirements of the Massachusetts Clean Waters Act.

The Stormwater Management Standards incorporated into the Wetlands Protection Act regulations apply to all projects for which a Notice of Intent or Notice of Resource Area Delineation is filed on or after January 2, 2008.  The Stormwater Management Standards incorporated into the Water Quality Certification regulations apply to all projects for which an application for a water quality certification is submitted on or after January 2, 2008.

For more information on this rule change, please contact Stephen Richmond at srichmond@bdlaw.com or Krista Hawley at khawley@bdlaw.com.

¹  http://www.mass.gov/dep/service/regulations/newregs.htm#stormwater