Conservation Commission

The Conservation Commission is the primary permitting authority for working within wetland resource areas and their associated buffer zones. It is responsible for protecting the land, water, and biological resources of the community. The Commission also serves as stewards for open space and conservation properties that are under its ownership, care, and custody.

Conservation commissions are volunteers who work long hours to achieve community conservation goals. The Fairhaven Conservation Commission has seven members, who are residents of Fairhaven, with three-year term lengths. Commissioners are appointed by the Board of Selectmen.

In Massachusetts, Conservation Commissions’ authority comes from several sources: the Conservation Commission Act (MGL Chapter 40 section 8C) for open space protection; the Wetlands Protection Act (MGL Chapter 131 section 40) for protecting wetlands and waterways (commissions issue the permits); and the home rule provisions of the state constitution for non-zoning wetlands bylaws.

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What is the Massachusetts Wetlands Protection Act?

The Massachusetts Wetlands Protection Act (General Laws Chapter 131, §40; the Act) protects important water-related lands such as wetlands (“swamps”), floodplains, riverfront areas, and other areas from destruction or alteration. Most work proposed to be done in those areas requires a permit (known as an Order of Conditions) from the local conservation commission.

Regulations for the Act (310 CMR 10.00), and related guidance and policy documents, are issued by the Massachusetts Department of Environmental Protection (MA DEP).

Many cities and towns have adopted local zoning or non-zoning wetland ordinances or bylaws that are stricter than the Act. Applications for work in wetland resource areas covered by state and local wetland laws are usually processed together by the conservation commission.

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What are wetlands, and do they always have to be wet to qualify as a wetland?

Generally, the word “wetland” conjures up the classic image of a swamp or bog, but wetlands can take many forms, and some may indeed look dry for a major portion of the year. Wetland resources are determined by standardized identification methods established by the Massachusetts Department of Environmental Protection, Army Corps of Engineers, and, in some instances, by local Conservation Commissions. Wetland resources are divided into inland resources and coastal resources. The more commonly encountered resource areas of each type are described below:

Inland Wetland Resources
Bordering Vegetated Wetland	Freshwater wetlands which border on creeks, rivers, streams, ponds, and lakes. They include wet meadows, marshes, swamps, and bogs.
Bank	The portion of the land surface which normally abuts and confines a water body (stream, lake, or pond).
200-foot Riverfront Area	The land area between a river’s mean annual high water (MAHW) line and a parallel line measured horizontally 200 feet from the MAHW line.
Land Under Water Bodies or Waterways	Land underneath any creek, river, stream, pond, or lake.
Vernal Pool	A freshwater body which, in most years, holds water for a minimum of two (2) consecutive months and is free of established reproducing fish populations and provides specialized and critical breeding habitat for certain species of salamanders, frogs, and invertebrates.
100-foot Buffer Zone	The area of land measured 100 feet from the edge of the delineated wetland resource, with the exception of Lands Subject to Flooding, the 200-foot Riverfront Area, and Land under Water Bodies and Waterways.

Coastal Wetland Resources
Rocky Intertidal Shore	Naturally occurring rocky areas such as bedrock or boulder-strewn areas between the mean high water line and the mean low water line.
Coastal Beach/Tidal Flats	Areas of unconsolidated sediment (sand, pebbles, or loose rocks) which slope from the base of a Coastal Dune, Coastal Bank, or any man-made structure replacing Coastal Dune or Bank to the mean low water line.
Coastal Bank	The seaward face or side of any elevated landform, other than a Coastal Dune, which lies at the landward edge of a Coastal Beach, Land Subject to Tidal Action, or other wetland.
Coastal Dunes	Any natural hill, mound, or ridge of sediment landward of a Coastal Beach deposited by wind action or storm overwash.
Barrier Beach	A narrow low-lying strip of land generally consisting of Coastal Beaches and Coastal Dunes extending roughly parallel to the trend of the coast.
Land Subject to Coastal Storm Flowage	Land within the 100-year floodplain (A and V Zones on FEMA maps)
Land Containing Shellfish	Land under the ocean, tidal flats, rocky intertidal shores, salt marshes, and land under salt ponds that contain shellfish (i.e. shellfish beds)
Land Under Ocean	Begins at mean low water and extends to the limit of the municipal jurisdiction or, at most, to a depth of 80 feet
Salt Marsh	A coastal wetland that extends landward up to the highest high tide line, which is noted as the highest spring tide of the year, and is characterized by plants that are well adapted to or prefer living in saline (salty) soils.
100-foot Buffer Zone	The area of land measured 100 feet from the edge of the delineated wetland resource, with the exception of Land Subject to Coastal Storm Flowage, Land Subject to Tidal Action, and Land under Water Bodies and Waterways.

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What is a buffer zone?

A buffer zone is the area of land within 100 feet of coastal banks, inland banks, freshwater wetlands, coastal wetlands, tidal flats, beaches, dunes, marshes, and swamps. Work (activity) in a buffer zone could have an impact on the nearby wetland, depending on the type and location of the work and the wetland. Thus, many activities done in a buffer zone (other than minor activities set forth in the regulations and exempt activities) are subject to regulation under the Act and require prior approval by the Conservation Commission. The Conservation Commission may impose conditions or limits on activity done in a buffer zone so that the nearby wetland is protected.

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Why protect wetlands anyway?

Wetland protection laws don’t just protect wetlands. They also protect people and human interests.

Wetlands and their associated buffer zones function to protect and preserve many things that people care about. Wetland resources and buffer zones work for all of us by functioning to protect the following statutory interests:

• Protection of public and private drinking water supply
• Protection of groundwater supply
• Flood control
• Storm damage prevention
• Prevention of pollution
• Protection of land containing shellfish
• Protection of fisheries
• Protection of wildlife habitat

Additional statutory interests under the Fairhaven Wetlands Bylaw are:

• Protection from and prevention of erosion and sedimentation
• Agriculture
• Recreation

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How do I know if there are wetlands or other resource areas on my property?

The Conservation Agent will be happy to help you determine the presence of resource areas and their associated buffer zones on your property. Please keep in mind that the Agent will not delineate and flag the exact wetland line for you, but she can give you a rough and very conservative idea of the extent of the wetland resources. For a more specific and flagged wetland line, you should consult a qualified wetland scientist or environmental consultant.

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Can I cut down trees in resources areas and their associated buffer zone?

Not without written permission from the Conservation Commission. Contact the Conservation Agent to inquire as to whether your proposed tree or vegetation removal project needs a formal application or other written approval.

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Can I dump my yard waste in a resource area or its associated buffer zone?

No. Yard waste is considered fill, as would excavated soil or other solid waste material. Although yard waste can be considered organic, it nevertheless acts to alter the resource area by introducing invasive plants, reducing flood storage capacity, reducing the ability of the resource area to filter pollutants, as well as encroaching on wildlife habitat.

Dumped refuse of this nature can cause a nuisance to neighboring properties not only by displacing stormwater and causing potential flooding problems, but it can also be unsightly and cause offensive odors. The Commission strongly encourages the use of the Recycling Center on Arsene Street, which provides Fairhaven residents a convenient, centrally located disposal facility for yard waste and related debris. More information on disposal of yard waste here.

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What activities are prohibited in wetlands, riverfront areas, and other resource areas?

Under the Act no one may “remove, fill, dredge, or alter” any wetland, floodplain, bank, land under a water body, land within 100 feet of a wetland, or land within 200 feet of a perennial stream or river (25 feet of a few urban rivers), without a permit (known as an Order of Conditions) from the local conservation commission that protects the wetland “interests” identified in the Act.

The “interests” or values protected by the Act are: flood control; prevention of storm damage; prevention of pollution; and protection of fisheries, shellfish, groundwater, public or private water supply, and wildlife habitat.

The term “alter” is defined to include any destruction of vegetation, or change in drainage characteristics or water flow patterns, or any change in the water table or water quality. The wetland regulations prohibit most destruction of wetlands and naturally vegetated riverfront areas, and require replacement of flood storage loss when floodplains are filled.

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What activities are allowed in wetlands, riverfront areas, and other resource areas?

Most activities, such as construction, landscaping, and grading, require a permit. Some activities, such as normal maintenance, are allowed without a permit.

Normal maintenance and improvement of land currently in agricultural use is exempt from the provisions of the Act. Preparation of new land for agricultural use is not exempt.

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Are there penalties for violating the Massachusetts Wetlands Protection Act and the Bylaw?

Per the Wetlands Protection Act, violations are punishable by a maximum fine of $25,000 and/or not more than two years of imprisonment. In addition, a landowner is usually required to restore illegally altered land to its original condition.

Per the Fairhaven Wetlands Bylaw, violations are punishable by a maximum fine of $300 per each day during which a violation occurs. In addition, a landowner is usually required to restore illegally altered land to its original condition.

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What happens if I don’t provide enough information in my application?

If the Conservation Commission finds that the information submitted by the applicant is not sufficient to describe the site, the work, or the effect of the work on the interests identified in the Wetlands Protection Act, the project may be denied. The denial will specify the information which is lacking and why it is necessary. This kind of denial is often termed a “denial without prejudice” because the commission is denying the work not because it cannot meet the performance standards but because the commission has not been able to determine whether the work meets the standards or not.

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I received abutter Notification. What does it mean?

You have received a notification because you are an abutter to a proposed project that will be reviewed by the Fairhaven Conservation Commission. The Commission must hold a public hearing for projects filed under certain applications that could affect a wetland or its buffer zone. As a property abutter (you live within 100 feet of the property line of the proposed project), you must be notified that a hearing will take place in order to give you an opportunity to comment, ask questions, or voice your concerns. This notice will be the only one that you will receive for this particular project. It is up to you to stay informed regarding the status and progress of the project.

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What will take place at the public meeting?

During the public hearing portion of the meeting, the person(s) proposing the project (the applicant) or their representative provides a short presentation demonstrating how the project conforms (or does not conform) to state and local wetland regulations. If the applicant is proposing work that could adversely affect the wetland, they may offer mitigation measures, which the Commission will consider in determining whether or not to approve the project. After the presentation, during which the Commission and its agent ask their questions and make comments, members of the public are invited to ask questions or offer comments that are relevant to the project and are within the jurisdiction of the Conservation Commission (see more below).

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How do I make my concerns known at the hearing?

In order to make the most effective use of your time at the hearing, it is advised that you learn as much as possible about the project under review. You may do this by requesting project information from the Conservation Agent or coming into the office to review the file. You can get copies or take pictures of documents in the file.

It is also important to understand that only those aspects of a project related to the Massachusetts Wetlands Protection Act, the Fairhaven Wetlands Bylaw, or other related laws under the jurisdiction of the Conservation Commission are appropriate for discussion at the hearing. Comments regarding noise, increased traffic, hours of operation of a business, lighting issues, etc. should be voiced to the Zoning Board of Appeals or Planning Board (if the project is subject to permitting by those Boards), as the Conservation Commission has no jurisdiction over these issues.

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If I am an abutter, could nearby wetlands or other resource areas affect future projects on my property?

As an abutter, you may be located near a resource area. In the future, if you have a project that will take place within the buffer zone of any of the wetland resources areas under the jurisdiction of the Conservation Commission, you will need to apply for the appropriate wetland permit. If you are not sure, contact Fairhaven’s Conservation Agent, who will help you determine if you need a permit for work on your property and what type of permit is appropriate.

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What are some of the special conditions the Commission frequently uses?

The Conservation Commission is able to attach special conditions to permits to assist in protecting nearby resource areas