BBP intervention in a Wetlands Case in Acushnet, MA
Wetlands Protection: The Acushnet wetlands permit form and the tri-town conservation district
A now old and little known wetlands case in the Town of Acushnet had important consequences for the Buzzards Bay NEP and as a result, important consequences for Buzzards Bay municipalities. This case cuts to the heart of some of the major issues in protecting wetlands around Buzzards Bay.
The story begins in 1989 when a report was prepared for the Buzzards Bay NEP to help develop wetlands protection recommendations in the Buzzards Bay Management Plan (CCMP). This report identified a lack of consistency by area Conservation Commissions in the enforcement of state and local wetland regulations. The report also noted that most Buzzards Bay municipalities lacked conservation agents, and this lack of professional staff appeared to play a large part in how consistently the towns enforced wetland regulations. Included in the report was a notation that the town of Acushnet was using an unusual permit application form.
The Acushnet wetlands issue did not garner further attention at the Buzzards Bay NEP until 1991, when the Project received calls by area residents concerned about the wetlands permitting process in the town. The Project quickly determined that the town indeed had a unique wetlands application form (a so-called “AF1” form) that was not consistent with state regulations. Moreover, virtually no state required wetland “Requests for Determinations” permit forms had ever been submitted by the town to the state since the state wetlands permit process was set up in 1978. While the absence of what would seem to be to the average citizen as an arcane, bureaucratic permit form may not seem troubling, to the Buzzards Bay NEP it raised a “red flag” because more than 40% of the town’s area was classified as wetland.
The Project was concerned and felt this was an important issue for several reasons. Most important, the town permit process appeared to lack due process and appeal. In contrast, the state-defined permit process included advertised public meetings. If an abutter or ten residents disagreed with the local board’s decision, they may submit an appeal within ten days to the Department of Environmental Protection (DEP). DEP could also initiate an appeal on its own if irregularities occurred. In contrast, using the Acushnet AF1 form, an applicant could receive a “negative determination” (that is be told that no state permit is required), often without a public hearing, and with no opportunity for an appeal of the board’s decision. We believed that such a process posed financial and legal liabilities to both the town and property owners. For example, if a town board gives an approval for a project but later finds that decision was not legally binding, they may receive no protection under the state wetlands law, and may be forced to make expensive after the fact changes.
Exacerbating the problem was that Acushnet did not have a conservation agent. Like many small towns in the area at the time, funding a full time conservation agent could not be financially justified. Wetlands identification was made by commission members untrained in wetland delineation. Often only one or two Commission members had time to visit a site. Complaints were beginning to come into the Project alleging that the Conservation was allowing development in wetlands.
In meetings, phone calls and in a letter to the Conservation Commission and Board of Selectmen, the Project encouraged the town to abandon the AF1 permit form and adopt the state process. The project also identified areas where wetland permits should have been required to minimize wetland impacts. The Commission defended its past performance and use of its form. Consequently the Project then filed a permit on a lot where complaints were made with construction in what appeared to be wetland. When the town issued the Project a “Negative Determination”(that is, said that no state permit was required), the Project submitted an appeal to DEP for intervention. This action had several consequences.
Most importantly, soon after the Buzzards Bay NEP’s legal appeal, the town abandoned its wetlands AF1 form. Another outcome is that the Project, recognizing that many towns in the watershed had a need for professional staff, set up a grant program for the formation of Conservation Agent districts. In 1992, the town of Acushnet, joined with Rochester and Marion to apply to the Buzzards Bay NEP for funds to hire a shared conservation agent. After receiving one year of seed money from the Project, all three towns were so pleased with the benefits of a shared agent that they continued to fund the position for another two years. In 1995, for financial reasons the town of Marion dropped out of the district and was replaced by New Bedford. In 1997, the towns of Rochester and Acushnet recognized that the work load for three municipalities is too great for one person, and the tri-town district has now dissolved. The city of New Bedford now has its own full time Conservation Agent, as do the Towns of Acushnet and Rochester. Today only the town of Marion lacks either a part time of full time agent for their Conservation Commission.
The Buzzards Bay NEP wrote several letters on the Acushnet usage of their “AF1” form. Below is the key letter that eventually initiated action.
BBP 8/18/92 letter to Acushnet Conservation Commission on town wetland form (62 kb pdf file)
This correspondence is notable because in 1992, Acushnet was one of several Commonwealth communities that created their own wetland permit form and application process. The Buzzards Bay NEP felt that the town’s application process did not provide adequate public notice, due process, or state review. In 1992, the town of Acushnet filed only 3 wetland permits with DEP, whereas 200 “in-house” wetland permits were issued without review. As a result of this letter, and an appeal by the Buzzards Bay NEP of a town-accepted wetland boundary in a particular case, the Town of Acushnet abandoned their in-house wetland permit application form by the following year.