A consideration for the homeowner who is contemplating
construction on his/her property is the presence of wetlands and floodplains.
Massachusetts General Law Chapter 131, Section 40, known as the wetlands Protection Act,
prohibits any filling, excavation, or other alteration of the land surface or vegetation
in wetlands, floodplains, or within 100 feet of wetlands, regardless of ownership, without
a permit from the local Conservation Commission.
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What is a wetland?
Legally, the term wetland includes not only what we typically think of as wetlands,
such as streams, ponds, and cattail marshes, but also areas such as wet meadows, red maple
swamps, and intermittent streams that may be dry for a significant portion of the year.
The technical definitions may be found in the state law and its accompanying regulations,
and for the most part are based on the occurrence of surface water and/or the abundance of
specific wetland plants.
What is a floodplain?
A floodplain is an area that experiences surface flooding during storms. Two types of
floodplain areas are protected under the state act. The more common areas are those
bordering streams or ponds that flood during the 100-year statistical storm, which is the
worst storm that can be expected to occur, on average, once every 100 years. The less
common areas are isolated depressions that flood at least once a year to an average depth
of 6" and to a volume of one-quarter acre-foot (10,890 cubic feet).
What activities are regulated in wetlands and floodplains?
Under the law, no one may "remove, fill, dredge, or alter" any wetland, any
floodplain, or any land within 100 feet of a wetland without a permit from the Lexington
Conservation Commission. The term "alter" is defined to include any destruction
of vegetation, any change in drainage characteristics or flow patterns, or any change in
the water table. Examples of activities requiring a permit include construction of a
house, garage, or shed, filling to enlarge a backyard, installation of drainage ditches,
and disposal of landscaping debris and other materials.
Why are wetlands and floodplains so important?
Wetlands are afforded legal protection because they pay an important role in overall
environmental quality through: protecting the groundwater and the private and pubic water
supply; controlling pollution by acting as a filter for removing sediments, nutrients and
other pollutants from runoff; reducing storm and flood damage by providing areas to retain
and store water; and as habitat for fish and wildlife.
Over half of this country's original wetland acreage has been lost to agricultural and
urban development. The cost of this loss in degraded water quality, increased storm
damage, and depleted fish and wildlife populations has been well documented.
Floodplains are protected because they provide "storage" for flood waters
during storms. Any alteration to the land that reduces this storage capacity will displace
flood waters and cause greater flooding elsewhere. Unfortunately, there are too many
examples of damage to property and even loss of life through the cumulative effect to
incremental filing of floodplains over the years.
How can I find out if my property lies in or near a wetland or floodplain?
Some wetlands, of course, are easily recognizable: streams, ponds, and cattail marshes,
for instance. Distinguishing other wetland areas may be more difficult and can require the
services of a trained botanist. The Conservation Administrator in the Office of Community
Development may be able to assist you in identifying areas of wetlands on your property.
There are a number of engineering firms and wetlands consultants that can provide this
service for a fee. If you wish to develop your land, the wetlands on or near your property
must be mapped.
The floodplain map for Lexington issued by the Federal Emergency Management Agency
shows the floodplain associated with major streams in town. Unfortunately, the map is far
from complete, and many floodplain areas are not indicated. If your property lies near a
stream or in a low-lying area, there is a chance that part of it is flood-prone. Previous
applications to the Conservation Commission may assist you in determining the 100-year
flood level on our property, but in some cases this elevation must be calculated by a
professional engineer.
What must I do if I want to conduct a regulated activity in or near a
wetland or floodplain?
The first thing you may want to do is contact the Conservation Administrator in the
Office of Community Development. The Administrator and staff can explain the law more
completely to you and its effect on the particular project you have in mind. Regulations
issued under both the state act and Lexington's Wetlands By-Law should be consulted, as
they contain specific standards that you should incorporate into your project design. If
your project does not meet these standards, your application will be denied.
The next step is to submit a formal application, known as a Notice of Intent, to the
Conservation Commission. Although the Commission operates under two laws (the state
Wetlands Protection Act and the local By-Law for Wetlands Protection), one form serves as
your application for both and al proceedings are held simultaneously. The Commission will
set a time within 21 days for a public hearing on your project and will advertise the
hearing in the Minuteman at your expense. Once the public hearing is closed, the
Commission must issue its decision, known as an Order of Conditions, within 21 days.
For small projects located only in the 100-foot wetlands buffer, there is a simper,
alternative application process. A landowner or other interested party may submit a form
known as a Request for Determination of Applicability to the Commission. The Commission is
bound to hold a publicly advertised meeting within 21 days to discuss the matter and issue
a decision. The applicant is given permission to proceed as soon as the ten-day appeal
period lapses for projects with no wetland impact.
What if I don't agree with the Order of Conditions?
If you or other interested parties are unhappy with the Order of Conditions, the Order
may be appealed. Since the order is issued under both state law and local by-law, the
appeal involves two routes. Under the state act, appeal is first to the regional office of
the Mass. Dept. of Environmental Protection (DEP) in Woburn, which will consider the
appeal and issue what is known as a Superseding Order. Further appeal of this Order is
possible, first to the Boston office of DEP, and then to Superior Court. Under the by-law,
appeal of the Commission's Order is directly to Superior Court.
What are the penalties for violating these laws?
Violation of the town's By-Law for Wetlands Protection carries a maximum penalty of
$300 for each violation or each day of continuing violation. Under the state act,
violations are punishable by a maximum fine of $1000 and six months imprisonment per day
of continuing violation. In addition, a landowner is usually required to restore any
illegally altered land to its original condition.
How can I get more information?
Contact the Conservation Administrator in the Office of Community Development, or an
attorney, or a consulting engineer. If you wish to read the law, the state Wetlands
Protection Act may be found in Cary Library (Mass. General Law Chapter 131, Section
40);the regulations promulgated pursuant to it are available from the State House
Bookstore (310 CMR 10.00). The local by-law and its accompanying regulations may be
obtained from the Office of Community Development or at Cary Library.
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