Wetlands bylaw 101: Natural Resources officials explain their proposal

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While Town Moderator Ned Perry told selectmen last week there would not be any “high interest” articles at annual Town Meeting later this month, the proposed wetlands bylaw, Article 43, has sparked as much public interest as any of the other 56 warrant articles. 

In fact, the Natural Resources Division devoted an entire page to the wetlands bylaw on its homepage.

The bylaw seeks to bolster the existing state Wetlands Protection Act by codifying the 25-foot no disturb zone around wetlands, establishing vernal pool protection and enabling the Natural Resources Administrator to issue enforcement fines to ensure compliance. 

But residents, business owners and town officials have all voiced concerns about whether the bylaw goes too far. They have asked why there is a need for a local law when enforcing the state law has worked well to this point, and about whether residents will need to spring for a survey before mowing their lawns. 

In a March 30 interview, Natural Resources Commission Chairman Al Easterday and Natural Resources Administrator Delia Kaye said they are figuring out how many of the 48 certified vernal pools covered under the wetland bylaw are not within the area covered under the state wetlands protection act. In October, they sent out a targeted mailing to 3,186 persons within 200 feet of wetlands, perennial streams and within 100 feet of certified vernal pools. Now they figure the wetlands bylaw would cover about a dozen parcels on top of those 3,186. 

In practice, they say enforcing the wetlands bylaw would not be all that much different from what they’re doing today, as they will continue to use the same discretion when permitting projects.  

“I think our intent was to focus the bylaw to the key concerns to Concord that we as a commission and staff have identified that really will help the community protect our resources going forward,” Easterday said, adding that the bylaw is taking what they have practiced as a policy and codifying it as a local law. “We are not, nor do we have any intention of putting a bylaw in place and coming back next year at Town Meeting and adding on. We want the bylaw to work and to work for the community and not be this burdensome local law with rules and regulations no one can live with.”

Easterday also dispelled rumors that the NRC would shelve the bylaw until next year’s Town Meeting. “It’s a bad rumor,” he said.

CJ: Can you quickly explain the goal of the proposed bylaw and the practical impact it will have on residents and business owners? 

AE: Our overall goal is to get local protection of our town’s valuable natural resources. We feel that the impact to residents and the business community, in particular, will be minimal. Really the only change is the dozen or so certified vernal pools that will have a buffer zone around them. As far as people with home maintenance, gardening and lawn-cutting activities, those are things that we have already considered exempt under the state wetlands protection act, and in addition, we have included some of those activities in our bylaw as exempt, too.

CJ: So unless somebody is doing an addition or something major, they are not going to see a big difference?

DK: It seems that a lot of people are not aware of the state wetlands protection act, and so when they read the bylaw and saw these things about pruning, and maintenance and repairs and mowing that made them think they were not able to do that. Technically, the wetlands protection act does require a permit for a lot of these activities, but the way that we’ve administered it and the way that past staffs and commissions have handled it that these are handled as no filing required. For mowing we never get a call, and we don’t expect that we will in the future. 

 

CJ: It’s been suggested that you bring the bylaw regulations back to Town Meeting, but it doesn’t say that you’ll do that in the final version of the bylaw. Can you explain your plans for the regulations, and whether you think they will satisfy those who wanted them to require a Town Meeting vote?

AE: We asked that we have the same ability of other boards and committees in the town of Concord to be able to effect the regulations for the bylaw, and I think what we have changed in response to our original warrant article was that we’ve added the public notification requirement in our new regulations section, that we will notify all residents by mailing so many days in advance of our public hearing. I think as a commission, as board or committee we’re going above and beyond what’s expected for public notification of a public hearing process. That’s in concern to hearing ‘Well, you guys are developing regulations.’ I think part of it is people aren’t familiar with what a regulation is: it’s a rule.

DK: Some of the concern that we heard from the public is that the commission is judge, jury and executioner, and I think having separated out the rule making – that’s the commission, they’re the rule-making body, and the enforcement is town staff. Those two functions have been appropriately separated. 

AE: And the other thing is that it allows the not only the current commission, but future commissions and town staff, to have the rules, even when the makeup of the commission changes or the staff changes. That’s the other concern that we’ve heard, “Well, you guys are OK, but we don’t know what’s coming down the road in the future.” These rules, combined with the bylaw, provide that stability for the future.

 

CJ: Enforcement is another area people seem to be pretty concerned about. What would you say to those who support the bylaw’s intent, but believe it is taking things too far? 

DK: It takes a lot of time to bring people to the table when you don’t have any tools to encourage them to do so.

AE: The commission always has, and the commission will always work with the property owner or owners on a violation, and it’s our current intent and I’m sure it will be the future intent of commissions to always bring the parties to the table and work through, rather than pull out the ticket book on day one.

DK: There’s the good faith provision in the bylaw, which tries to address that. … With most of the violations that we encounter, we’ll pick up the phone and we talk to people. They say, ‘I didn’t know. What do I need to do?’ And that’s how sites come back into compliance, and that is the vast majority of the violations that we have. We do get a couple where it’s a little more back and forth, and even those ones I would say would not go to a fine. I think there’s only one, maybe two in the three years that I’ve been here where we would have even considered someone not coming close to complying.

 
CJ: Take me through the evolution of the bylaw. 

DK: We published our first draft in November, and even before we had our public hearing in January we had received some public comment. So we clarified the exemptions, removed aesthetics an recreation as values, clarified some of the definitions and put in something about administrative approval so it was clear that we would continue to administer the bylaw as we do state law, changed our compliance as to who administers the fines. Most bylaws in the state give the commission the authority to administer the fines, because every municipality is required to have a conservation commission, but they are not required to have staff. 

CJ: The good faith clause, was that also added after it was drafted?

DK and AE: Yes.
 

CJ: What are the biggest misconceptions that people have about the bylaw?

AE: I think there’s an awakening for a certain segment of the population that wasn’t aware that there was a state wetlands protection act, and that a lot of these activities are covered under the state act.

DK: So a lot of these activities that are routinely exempt, you know, house painting, re-shingling, washing windows. We’ve heard about washing windows. These activities, which are routinely exempt activities, to have people concerned that the bylaw would then regulate those I think is the biggest misconception.

 
CJ: Did the public response surprise you at all?
AE: No.

DK: I think whenever you propose new regulations, people in Concord really take notice and want to fully understand what they’re getting themselves into, so there is bound to be a lot of discussion.

CJ: So was the response beneficial then, because people we’ll be more aware?

AE: Absolutely. I think it has only helped us refine it, to make a better bylaw.

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