Wetland Restrictions Program Deed Restrictions
Wetland Restrictions in the Buzzards Bay Watershed
In the 1960s, 70s, and 80s, the Massachusetts Department of Environmental Management (DEM) mapped wetlands in a number of cities and towns in Massachusetts, and registered these wetlands with restriction orders recorded against property deeds pursuant to either the Coastal Wetlands Restriction Act (M.G.L. Ch.130, s.105) or the Inland Wetlands Restriction Act (M.G.L. Ch. 131, s.40A).
These permanent wetland restriction orders were placed in 53 municipalities, and wetlands orders restricted activities on approximately 46,000 acres of coastal wetlands and 8,000 acres of inland wetlands. Massachusetts has not restricted any wetlands since the 1980s, but the law and deed restrictions remain in full force.
The restriction orders were recorded at the Registry of Deeds in the counties where the properties were located, and are carried forward with future landowners, who should be informed of the restriction at the time of purchase or deed title search. Municipalities where these wetlands orders were placed should have copies of their community’s restricted wetlands plans and restriction orders. However, in some cases the original maps provided to the towns appear to have been lost or forgotten.
The purpose of the Wetland Restriction Program was to provide protection to wetlands by prohibiting certain activities in advance of any work being proposed. The regulations for these laws are 310 CMR 13.00 (inland) and 310 CMR 12.00 (coastal). The law was particularly important when it predated the passage of the state Wetland Protection Act in 1972 and the companion coastal regulations adopted in 1978.
Initially the Massachusetts Department of Natural Resources, then DEM (now DCR) implemented the program. However, the restriction orders are currently implemented by the Massachusetts Department of Environmental Protection (DEP) through the Wetlands Protection Act permitting process. Violations of the Deed Restrictions are enforced by DEP pursuant to 310 CMR 13.00 and 310 CMR 12.00.
How is the program implemented?
According to DEP’s website Protecting Wetlands in Massachusetts, “restriction orders are implemented through the Wetlands Protection Act permitting process. A landowner proposing work in a restricted wetland must file a Notice of Intent (NOI) and check the appropriate box on the form. Upon receipt of the NOI, the conservation commission and DEP regional office should check their copies of the restricted wetlands plans and restriction orders to determine if work is proposed in a restricted wetland and if the work is allowed under the restriction order. Orders of Conditions must not allow work that is prohibited by a restriction order.”
In other words, the NOI form has a box to indicate whether or not the wetland has a deed restriction order pursuant to the wetland restriction acts. Upon receipt of the NOI, the conservation commission and DEP regional office are supposed to check their copies of the restricted wetlands maps and restriction orders to first determine whether the work is proposed in a restricted wetland, and if so, whether the work is allowed under the restriction order.
One difficulty in implementing the program is that some property owners may not be aware of deed restrictions on the property. Moreover, many Conservation Commissioners– unpaid volunteers that may serve their community for two or three years– may not have even heard about the wetland restriction program. A further complication is that wetland restriction maps, which do not show property bounds, are attached to the deed by reference to County Registry of Deeds book and page numbers, listing the owner at the time. There is no information referencing town assessors map plat and lot numbers. Because the maps had never been converted to digital form, complying with the Deed Restriction Program can be challenging for both the property owner and municipal conservation commissions.
In a practical sense, most of these obstacles are now irrelevant because existing Wetland Protection Act regulations are more restrictive than the actual restriction orders recorded in the 1960s through 1980s. There are only a few exceptions to this rule of thumb. For example, it may be possible to construct, with a permit through the Wetlands Protection Act, a house, cabana, or a concession stand on a beach, but these structures might be prohibited because of the boundary of a wetland order deed restriction on the property.
If a property owner objects to past deed restrictions placed upon the property, there is a process for removing restrictions with DEP, and the deeds can be also be amended through Land Court if the wetland boundaries are challenged.
Many types of activities are actually allowed in wetlands on these restricted properties. For example, generally docks and piers are allowed activities in the wetland restriction orders, unless they substantially alter sediment and water flow. Those activities disallowed in the deed restrictions (e.g., filling of wetlands, removal of salt marshes by dredging, and constructing buildings in wetlands) are now difficult to permit under existing state and federal wetland regulations. The actual restriction guidelines are best understood by reading the Town of Falmouth Wetland Restriction order (or view complete order with property owners — larger file), which is typical of the restriction orders issued in the 1980s.
An important nuance of the Wetland Restriction Program is that the boundary of the “wetland resource” feature is not based on current definitions of those features, but the boundary of the feature delineated on a map recorded in a plan book at the deeds office at the time. This is especially important to recognize in beach and dune areas, where the mapped restricted activity area may be broader than the resource areas defined today.
Buzzards Bay Municipalities and Date of Restrictions
Below is a list of Buzzards Bay watershed municipalities with Wetland Restriction Act Deed Restrictions, the date they were enacted, the County Deeds office, the deeds book number and page number (which contains the order and a list of properties affected), and the plan book number and page number (which contains the maps showing the restricted wetlands).
|Town||Date Recorded||County||Deed Book||Plan Book||Acres|
New Use for Wetland Restriction Data
Although these deed restrictions currently have limited utility in protecting wetlands, the Buzzards Bay NEP is in the process of calculating the acreage of restricted wetlands in each of these communities for a very different purpose. Deed restricted wetlands are part of a municipalities permanently protected open space. By having available the acreage of restricted wetlands in the communities, municipalities will be able to improve the score on the Commonwealth Capital application, and thus improve their chances of receiving state grant funds. The open space information must be accepted as part of the MassGIS Open Space database.