Concord Natural Resources Commission
Wetland Bylaw
OCTOBER 17, 2008
Note: This flyer and other bylaw information can be found at
www.concordma.gov/pages/ConcordMA_NaturalResources
Why do we need a Wetland Bylaw?
More than half the communities in MA (most in the east, including all towns surrounding Concord)
have a wetland bylaw to address deficiencies in the Wetlands Protection Act (the Act). A local bylaw
will provide clarity to a vague state law and better protect Concord’s unique natural resources, as
recommended in the 2004 Open Space and Recreation Plan and 2005 Long Range Plan. To promote
clear, consistent, and fair administration and adequate protection of wetlands, the Commission
proposes three provisions in the Bylaw:
1. codifying the 25-foot No Disturb Zone,
2. establishing vernal pool protection, and
3. enabling the Natural Resources Administrator to issue enforcement fines to ensure compliance,
similar to the Zoning Enforcement Officer and Public Health Administrator.
Buffer Zone protection (the 25-foot No Disturb Zone) to wetlands
The Commission reviews work within 100 feet of wetlands, called the 100-foot buffer zone. The state
Act does not provide direct protection for buffer zones surrounding wetlands. The state Act encourages
the preservation of natural vegetation adjacent to wetlands but does not define any specific setbacks
from wetlands for proposed work.
Under the state Act, the Natural Resources Commission can approve development right up to the edge
of wetlands. Concord does not allow this under a local policy, and most communities in the
Commonwealth require a naturally vegetated buffer strip near wetlands. These buffer strips, often
called Setbacks or No Disturb Zones, are critical because work near wetlands can often damage
wetlands. Scientific research has shown that when vegetation near wetlands is removed there is an
increase in nitrogen and phosphorus loading (such as fertilizers) to wetlands because wetlands act as a
filter. Clean wetlands mean clean drinking water, and protection reduces flooding (including
basements), increases groundwater recharge for drinking water supplies, and provides better wildlife
habitat.
To make the vague state standards clearer to property owners, to ensure consistent administration, and to
provide adequate protection of wetlands, the Natural Resources Commission (NRC) created a local
25-foot No Disturb Zone (NDZ) policy from wetlands in 1994. The Commission presumes that any
proposed work/alteration within 25 feet of a wetland boundary will have a degrade wetlands, and
such proposals are not permitted. Many towns have larger setbacks, up to 100 feet. The Bylaw would
codify this existing 25 NDZ policy to better protect wetlands. The 25-foot NDZ policy can be viewed at
the Natural Resources web site above.
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Concord Natural Resources Commission
Wetland Bylaw
OCTOBER 17, 2008
Vernal Pool Protection
Vernal pools are seasonal pools that usually only hold water during spring and/or fall. The state Act
finds these areas are “essential breeding habitat, and provide other extremely important wildlife habitat
functions during non-breeding seasons as well, for a variety of amphibian species such as wood frog and the
spotted salamander, and are important habitat for other wildlife species.” Look for more information on the
significance and science of vernal pools in the Concord Journal article and on our website.
Vernal pools are not protected under the Act unless they occur in a wetland; many don’t. Often the
vernal pool habitat around a pool is not protected (again, it is only protected if it falls within a wetland
resource area). Species like the blue-spotted salamander and spotted turtle spend most of their lives in
the adjacent habitat, and this land needs to be protected as well so that vernal pool species can survive.
Concord has 45 certified vernal pools; a map of certified vernal pools can be viewed on the town web
site at Concord WebGIS and a map of potential vernal pools (as identified by the state) is available at
the Natural Resources office. This Bylaw would protect all certified vernal pools and create a 100-foot
buffer to vernal pools. Normal single-family work in existing developed areas in this 100-foot buffer
(including lawns and landscaped areas) would continue to be allowed.
Fair Enforcement: Compliance
Although the Commission works to educate people of the Wetlands Protection Act, many are not
aware of the regulations and violations occur, often by new homeowners. Most violations of the Act
are minor and easily addressed. Division of Natural Resources staff provide education and work with
property owners on a regular basis to bring sites into compliance. Usually a simple conversation
followed with a clarification letter is all that is needed. If necessary, the Commission will issue an
Enforcement Order requiring compliance. If compliance is still not forthcoming, the Commission
depends upon an overburdened DEP to order property owners to comply. A Bylaw would enable the
NRC to issue fines for non-compliance, similar to the Building Commissioner for zoning infractions and
the Public Health Administrator for Health infractions. This would ensure fairness between those that
apply for their projects and those that do not. Examples of situations where the Commission would
issue fines are for repeat offenders, for persons who ignore requests for compliance and/or
Enforcement Orders, or for persons who engage in large-scale wetland destruction.
How much wetland is there in Concord?
Concord is a “3-river” community, which offers many unique benefits such as flood protection,
protection of water supplies, and remarkable wildlife habitat. Concord has six public groundwater
well supplies, and many private wells. Your wetlands, rivers, and streams are part of the town’s
infrastructure or natural drainage system. Based on the Wetlands Conservancy District, approximately
24 percent of Concord is regulated as wetland.
What is the difference between a zoning and a non-zoning bylaw?
Before the state Wetlands Protection Act was established, many communities regulated wetlands
protection through Zoning Bylaws. Approximately 80 percent of the communities in the state,
including Concord, developed protection for flood-prone areas; approximately 20 percent, including
Concord, also developed regulations protecting wetlands and groundwater. These zoning bylaws were
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very effective in the early days of wetlands protection, but wetlands protection through the ZBA is
outdated now.
The Wetland Conservancy District (WCD) is a zoning layer that was created in the 1970s as a means of
better enforcement of the Wetlands Protection Act. The WCD was developed using USGS topographic
and surficial geology maps, regional soil surveys, 1960 aerial photography, and a state wetlands
mapping project from UMass Amherst. This data was transferred onto the Town Base Maps to indicate
where wetlands might occur, and groundtruthed in the field. The WCD provides a good estimate of
where wetlands are for planning purposes, but generally is not accurate enough for development
purposes.
Any work proposed in the WCD is currently reviewed by the ZBA under the Zoning Bylaw. Work
within wetlands, 100 feet of wetlands, and 200 feet of perennial streams is reviewed by the Natural
Resources Commission under the Act. Therefore, applicants are often filing with two separate boards
for work within wetlands. The NRC recommends that the Zoning Bylaw be amended to remove the
requirement for applicants to fiel with the ZBA for work within the Wetlands Conservancy District,
and only require review from the Natural Resources Commission. The WCD would continue to be
used for planning purposes.
How would the permitting process change?
 Nothing would change from how the Commission currently administers the state Act.
 No fees would be proposed under the Wetland Bylaw. In addition, there may be reduced filing
fees if applicants do not need to file with the Zoning Board of Appeals (ZBA).
 Only one page would be required in addition to the state application.
 There would be no changes to time frames, abutter notification, or legal notice requirements.
 Other than certified vernal pools, no new resource areas would be added.
 Violations would be able to be enforced, with monetary returns for intransigent violators, such
as they are for zoning and health infractions.
What is the Bylaw appeal process?
If a permit is appealed under the Wetlands Protection Act, the state permit is appealed to DEP. A
Bylaw permit would be appealed to superior court, though the Commission would make every attempt
to mediate a settlement to avoid this. An appeal must be filed within 60 days after the Commission
issues the bylaw decision. The appeal process is simpler than the traditional court trial process. The
judge makes a determination on the record only. This process can take anywhere from 2-3 months to
generally not more than 6 months; appeals under the state Act can drag on for a year or more.
What activities are currently regulated under the Act?
Activities that are Regulated and/or Prohibited in Wetlands and Buffer Zones
The general rule for wetlands is “no alteration.” This sounds fairly straightforward: activities that
obviously change the nature of wetlands, such as dredging or filling or building directly in wetlands.
However, other activities that may not immediately appear to be “alteration” can be detrimental to the
health and function of wetland resources and, therefore, are prohibited in wetlands. Activities in the
buffer zone also fall under Commission jurisdiction, enabling the Commission to require that steps be
taken to minimize the threat of adverse wetland impacts when construction and other work in the
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upland occurs. This may include shifting development further from wetlands or simply establishing
erosion controls, depending on the project. Prohibited or regulated activities under the state Act
include the following activities in or within 100 feet of wetlands, and within 200 feet of perennial (year
round) streams:
Filling and dredging
Dumping – including brush, leaves, grass
clippings, yard waste
Excavating and grading
Removing vegetation – including natural
vegetation such as live or dead trees,
shrubs, groundcover, and invasive
species.
Landscaping – (creating a new lawn or
garden)
Construction or expansion of new or
existing buildings – including additions
such as garages, decks, porches, stairs
Erection of structures – including sheds, dock,
piers,
Construction of tennis courts, sports courts,
swimming pools
Demolition of existing buildings and
structures
Installation or widening of paved driveways
Installation of drainage, sewer, or irrigation
systems
Discharging pollutants
Changing drainage characteristics, flow
patterns, the water table, or water quality
Any addition or removal of fill disturbance of vegetation, including removing trees, soils, hydrology;
within areas protected by the state Act must be approved by the Conservation Commission. Protected
areas include wetland resource areas, 100-foot wide buffer zones around these resource areas,
Some homes include “grandfathered” or permitted landscaped areas that are located within protected
areas. Routine maintenance of these landscaped areas, such as mowing of lawns and maintaining
planting beds, does not require review or approval of the Commission. Removing trees within such
landscaped areas, however, is not generally considered routine maintenance. Creating, enlarging, or
substantially modifying landscaped areas (including lawns) within protected areas requires review and
approval.
What home improvement activities are exempt or allowed under the state Act (that the Bylaw
proposes NO changes to)?
Agricultural and lawn/landscaping maintenance
Under state law, many existing agricultural activities are exempt from NRC review. Agricultural
exemptions would be the same under the Bylaw. Maintenance of existing landscaping, including lawn
mowing and pruning, is exempt from review. Though the Commission always encourages a vegetated
wetland buffer to streams and ponds to improve water quality, existing lawn maintenance would
continue to be a ‘grandfathered’ activity. If in doubt, please call the Natural Resources office.
Tree removal
Removing trees and shrubs in the 100-foot buffer zone is currently an activity that requires approval. If
trees are diseased or dying and pose a threat, it is possible that they can be removed (be sure to check
with the Division of Natural Resources BEFORE removing any trees). Under the state Wetlands
Protection Act, it is also possible to thin or remove vegetation (including trees and shrubs) to improve
habitat value [310 CMR 10.53(4)]. It should be noted that the NRC recognizes that fields and meadows
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are declining locally and regionally, and encourages projects of this sort, especially those that include
removing invasive species.
Septic work
The Board of Health administers a 75-foot setback from wetlands for septic systems (the state requires
50 feet). Variances from the Board of Health may be obtained for system upgrades (but not expansions)
when there are no alternatives to placing systems closer to wetlands. The Commission currently works
with homeowners and the Board of Health to site septic systems as far from wetlands, though in some
cases a waiver from the Board of Health 75-foot setback policy is required. This will continue to be the
case with the proposed wetland bylaw.
Have there been any previous attempts at a Wetland Bylaw?
Yes. Efforts were made in the mid-1990s to pass a Wetland Bylaw, but it was not brought to Town
Meeting. The Bylaw that was proposed then was more extensive than the Bylaw we are proposing now,
for example including the 100-foot buffer zone as a resource area. Also, GIS mapping was not available
to provide a sense of where wetlands exist for residents of Concord.
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