Conservation Commission Procedures Standard Flow Chart - NOT

Transcription

1 Conservation Commission Procedures Standard Flow Chart - NOT

2 Mark s Rule of Three Rule 1 - Hearings, site visits, acquire information, close the hearing Rule 2 - Paperwork Issue a great Order of Conditions Rule 3 - Follow-up with site visits/inspections

3 I knew that! Area subject to jurisdiction = Any resource area and any buffer zone Area subject to protection = Any resource area

4 Form 1: Request for Determination of Applicability 310 CMR 10.05(3)

5 Form 1: Request for Determination of Applicability The Commission should only issue a determination in response to what is asked on the Form 1 by the applicant.

6

7

8

9

10

11 Form 3: Notice of Intent Any activity proposed or undertaken within an area specified in 310 CMR 10.02(1) [a resource area], which will remove, fill, dredge or alter that area, is subject to Regulation under M.G.L. c. 131, 40 and requires the filing of a Notice of Intent If in the judgment of the issuing authority, work in the buffer zone will alter a resource area, that requires the filing of an NOI.

12 Hearing - Questions and Discussions Ask a lot of questions & Discuss all alternatives What resource areas are present on site? What work is being proposed? How will work affect resource areas? Is work allowable per performance standards? What evidence has been presented? What alternatives exist? Phasing/sequencing!!! Replication/ mitigation? Erosion controls sufficient? DO NOT GET SIDETRACKED AND START TALKING ABOUT THE COLOR OF THE HOUSE

13 Mark s Recommendation Always continue to a time and date certain. This avoids the need to republish the legal notice and renotify abutters.

14 Permission Slip

15 How do I know which Interests of the Act are presumed significant for that resource area? 10.55: Bordering Vegetated Wetlands (Wet Meadows, Marshes, Swamps and Bogs) (1) Preamble. Bordering Vegetated Wetlands are likely to be significant to public or private water supply, to ground water supply, to flood control, to storm damage prevention, to prevention of pollution, to the protection of fisheries and to wildlife habitat.

16 Form 3: Notice of Intent Supporting Documentation 310 CMR (4) Notices of Intent (h) May require supporting plans & calculations prepared & stamped by a registered professional engineer (PE) when, May also require the preparation of supporting materials by other professionals including, but not limited to, May require a delineation or certification in an ANRAD MGL Chapter 44, Section 53G Hiring Outside Consultants

17 Decisions, decisions Once the Public Hearing is Closed The Commission has 21 days to issue an Order of Conditions During deliberations the Commission should: Acknowledge which Resource Areas on the site Discuss the Public Interests to which the project is significant. Confirm how much alteration is being allowed, and where. Confirm how much replication is required, and when & where. Confirm mitigation, if required. Discuss specific conditions that should be imposed to protect the interests of the Act Set specific dates when activities such as restoration or mitigation must be done. Or, even better, have the applicant come up with the specific timeline in the NOI including a construction sequence. Example, When A is done, then B gets done, when B gets done, then C gets done, etc.

18 Writing an Effective Order of Conditions 310 CMR 10.05(6) Order of Conditions Regulating Work and Orders of Resource Area Delineation Approval Meets performance standards Will protect Interests of the Act or Bylaw Denial Cannot be conditioned to meet the performance standards Insufficient information has been submitted after it has been asked for and a reasonable deadline given for the requested information. Don t include any conditions Write Denial before Order of Conditions at top of each page

19 It is possible to approve under the Wetlands Protection Act and yet deny under the Bylaw/Ordinance

20 Writing an Effective Order of Findings of Fact: Conditions Description of Scope of Approved Project List approved plans and documents Site /Project History Define specific resource areas affected by proposed work (BVW, bank, etc.) Describe how project meets applicable performance standards Clearly describe project s ability to protect the interests of the Act You may also include a finding of fact that you are not approving certain things, such as not approving resource area boundaries.

21 Writing an Effective OOC Properly written Orders of Conditions guide the applicant and give the Commission a standard to enforce if required measures fail. General #1-18 Stormwater #19 (if applicable) Special Conditions added by Commission. Keep separate those conditions relating only to the bylaw/ordinance from the WPA

22 Writing an effectve OOC Special Conditions are added by the Commission Special Circumstances Pre-construction During Construction Post-Construction Ongoing Conditions Site Specific edep WIRe has a drop down menu of Special Conditions that Commissions can select from when writing an Order of Conditions. They are also available on MACC s website.

23 Writing an Effective Order of Conditions Special Conditions If you have a bylaw(town) or ordinance (city), use separate pages clearly identifying which Special Conditions refer to compliance with the WPA vs. Special Conditions only pertaining to bylaw/ordinance. Document shall be included in all construction contracts. Plans and OOC shall be available at the project site at all times. Commission reserves the right to require additional conditions if deemed necessary. This Order shall only pertain to. This Order prohibits work in.

24 This Order of Conditions shall be included with all construction-related documents for this project. All contractors working at the site shall be made aware of the provisions contained within this Order of Conditions and adhere to the Special Conditions herein. At all times, the site foreman, supervising engineer or construction manager shall have a copy of this Order of Conditions and the Plans associated with this Order, at the site and direct compliance with the requirements of this Order. Prior to any work taking place, the Commission shall receive in writing, a letter from the applicant and/or the current property owner stating that they have read the Order of Conditions and that they understand the Order. This letter shall be submitted at the same time as the receipt from the xxxxx County Registry of Deeds for the filing of this Order of Conditions. Pre-construction photographs of all work sites indicated on the plans shall be submitted to the Commission prior to construction. Photographs shall also be taken after construction and shall be submitted to the Commission. These photographs may be submitted in digital format. A pre-construction conference will take place on site at least 48 hours prior to the start of construction. The owner, contractor and at least one member of the conservation commission or agent will attend. At that time, the preconstruction photographs, the proof of recording at the registry and the required letters stating the owner and the contractor have read and

25 Writing an effective OOC Seasonal Considerations - Conducting work in dry months can reduce impacts to resource areas vs. working in wet months

26 Writing an effective OOC Special Circumstances Replication Specify size and location of approved replication Performed in accordance with approved plan Wetland Specialist shall be retained by the Applicant to supervise construction and monitor progress Details of Installation Following Installation (seasonal monitoring reports, weeding program, compliance with meeting the 75% revegetation requirement)

27 BVW Replication Monitoring is critical in wetland replication efforts. Ensure that project is built according to the design specifications Project monitor qualifications Application should include specific monitoring plans and schedules for reporting to the issuing authority. Require submittal of a Replication Checklist and Monitoring Reports

28 Writing an effective OOC Prior to Construction Pre-construction meeting Applicant, Contractor, Agent Minimal disturbance of vegetation may be allowed prior to Pre-construction meeting in order to install erosion controls. Review OOC Discuss sequencing, construction phasing, etc. Submittal of a sequencing plan for construction and implementation of erosion control measures

29 Pre-construction on-site conference

30 Writing an effective OOC During Construction Conditions Applicant to contact Con Com if unforeseen problems occur Applicant shall designate a specific person to: Inspect Erosion controls weekly & after large rainstorms Advise on erosion control practices Ensure adherence to the OOC Be the contact person in case of emergencies

31 Writing an effective OOC During Construction Conditions Phasing and Construction sequence shall comply with approved plans and documents If dewatering proves to be necessary, a dewatering plan shall be submitted to the Con Com for review and approval

32 Writing an Effective Order of Conditions Post-Construction Conditions Within ** days of completion of project, all disturbed areas shall be permanently stabilized Remove and properly dispose of all erosion controls Upon final stabilization, the Applicant shall request a Cert. of Compliance

33 Permit issuance and appeals REMEMBER - It s a Legal Document Details Matter!! Check off all relevant boxes Check off approval vs denial Check correct boxes A majority of Commission members must sign Order Issue date is date hand delivered or mailed (postmark date, not the date signed) edep and new Form 5 s do not require notary The file is a public record It s Recorded on the Owner s Deed Keep well-organized and labeled files. If appealed, critical to have accurate and complete record. Particularly true for Bylaw appeals; Certiorari limited to public record

34 Form 5: Order of Conditions If the Order imposes conditions necessary to meet any performance standard contained in (Estimated Habitats of Rare Wildlife), a copy shall be mailed or hand delivered to the Massachusetts Natural Heritage and Endangered Species Program. Bog Turtle Marbled Salamander

35 Ensuring Compliance Recording: Applicant must record your Order of Conditions with the Registry of Deeds. Sign: Applicant must display a 2 x 2 sign with your DEP file number. Sedimentation and Erosion (S&E) Control: Applicant must properly install sedimentation and erosion control in the appropriate locations. Pre-construction site visit: Contact Conservation Commission

36 Ensuring Compliance, preconstruction meeting Present: Applicant, Contractor, Erosion Control Monitor, Con Com or Representative for the Commission. Review Order of Conditions Review construction sequencing/schedule Check on DEP File # sign Inspect Erosion Control Confirm Limit of Work Is permit recorded?

37 Ensuring Compliance erosion and The Good: sediment controls Staked straw wattles and staked/entrenched filter fabric Silt sacks Hay bales

38 Project Monitoring

39 More ideas For certain projects, require the applicant to hire a monitor that can make reports to the commission on a routine basis or as needed (ask for a copy of the contract)

40 Amending an OOC Policy 85-4 Minor vs. Major amendments Discretionary Only for same or less impact to resource areas. Increased impact, new NOI Effective date of Order remains unchanged Cannot amend expired Order Must advertise in newspaper and notify abutters, just like NOI

41 Extensions Request must be submitted 30 days before expiration. If Order has expired, it cannot be extended. Extension is discretionary on part of the Commission. Reasons to deny: No work has begun, except if there were unavoidable delays, for example, appeals New information indicates the Interests of the WPA are not being protected Incomplete work has led to damage to a Resource Area There is a violation of the OOC Regulations have been changed and the existing OOC no longer complies Now within estimated habitat where it wasn t before

42 After Construction E and S Removal: It is the Applicant s responsibility to remove and properly dispose of your sedimentation and erosion control once the site is fully stable. Require this as a special condition or make sure it is in the NOI. Certificate of Compliance: It is the Applicant s responsibility to request and secure from the Conservation Commission a Certificate of Compliance once the project has been completed.

43 Certificate of Compliance Specify in Order that the owner must request a Certificate of Compliance as soon as work completed, or 30 days prior to the expiration date for the Order of Conditions. If the work is complete, but more time is needed for sufficient vegetation, decision is letter to applicant Commission cannot issue COC at this time, will re-evaluate at a date certain.

44 Certificates of Compliance Have the applicant submit Form 8A to you Don t grant partial Certificate of Compliance if replication/mitigation or restoration not completed Commission must issue within 21 days of request or deny Cert. of Comp. in writing and list reasons

45 Form 8: Certificate of Compliance If the final order contains conditions which continue past the completion of the work, such as maintenance or monitoring, the Certificate of Compliance shall specify which, if any, such conditions shall continue.

46 Common Errors NOI/OOC Failure to issue within 21 days of the close of the public hearing Failure to put referenced plans and dates of those plans on the Form 5 The latest forms should be used Commissions need to verify the Order has been recorded at the Registry Check off the correct Interests of the Act (found in the preamble for each resource area)

47 Common Errors NOI/OOC Failing to note resource area impacts and required replacement Not requiring a limit of work line (limit of work usually is same as erosion control line) Whether work is or is not subject to Stormwater Standards or checking incorrect box off Include Special Conditions that are not clear in terms of what is required. Not separating what is a Special Condition under the WPA vs. a Special Condition under the bylaw.

48

49

50

51

52

53

54

55

56

57

58 Summary Order of Conditions Legal document Statement of the project s ability to protect the Interests of the Wetlands Protection Act Working document A good Order comes from a good review process Monitoring construction activities ensures compliance with an Order of Conditions