writing an effective order of conditions & ensuring compliance fundamentals for conservation...

Writing an Effective Order of Conditions

& Ensuring Compliance

Fundamentals for Conservation Commissioners Training Program

Unit 6Massachusetts Association of Conservation Commissions

Creation of this Unit was funded in part with a grant from the Massachusetts Environmental Trust

Prepared with the assistance of Priscilla Ryder & Michele Grzenda, Marlborough & Framingham Conservation Agents

Today’s Schedule

A. Brief overview of Notice of Intent Review

B. Drafting an Order of ConditionsC. Permit Issuance and AppealsD. Ensuring Compliance of OOCE. Amendments/ExtensionsF. After Construction

Con Com Permitting Process

File: Most proposed work within 100 feet of a wetland or 200 feet of a perennial stream, requires the filing of a “Notice of Intent” (NOI) or “Request for Determination of Applicability” (RDA).

Hearing: The Commission schedules a public hearing Review: Before and during the hearing, the

Commission and its agents spend a lot of time reviewing the details of the project.

Permit: If the Commission determines that the project will not impact the functions and values of the wetland resource areas and the project has met all the performance standards of the wetland regulations, the Commission issues an Order of Conditions or Negative Determination of Applicability (permit).

Accepting the Notice of Intent Make sure required number of NOI copies

have been submitted to Commission & DEP USGS Map (or other suitable locus map) Site Plan (s) BVW field data forms Stormwater Mngt Form? Check abutter notification Check filing fee Local Wetlands Bylaw Form?

A. The Notice of Intent Review Process

The Notice of Intent Review Process

Ensure NOI Application is Complete Is work proposed in Resource Areas

(RA)? Ensure appropriate RA boxes are checked

off Has applicant included narrative

describing how project meets performance standards for work in resource area?

Is work proposed in Riverfront Area? Check for required notifications (e.g.

NHESP)

The Notice of Intent Review Process

Schedule Public Hearing within ___ days of receipt 21 days

Advertise in newspaper ____ days before Hearing 5 business days

Public Hearings & Meetings

Make sure there is a Quorum Open hearing and set time limit Describe Review process to the public Request proof that abutters have been notified Typically applicant makes presentation Con Com Members ask questions Chair allows public comments (related to

wetland issues).

Hearing Questions and Discussions

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?


When to continue a Hearing? Commission members request

additional information Plans are unclear or inaccurate Be sure to summarize at

hearing what additional information you are requesting

Commission members wish to conduct site visit

NOTE: Commission must have applicant’s consent to continue a hearing, in most cases*

Importance of Site Visits

Determine presence of resource areas

Verify wetland boundaries Verify staked locations of activity Consider relevant aspects or

features Identify problems and potential

solutions


Document receipt of additional information during the hearing

Commission may vote to close the hearing if sufficient information has been submitted to determine whether the project can be conditioned to: Meet the performance standards of the

regulations Protect the interests of the Act

Decisions and Permit Issuance

After hearing Commission has 21 days to issue an Order of Conditions

During deliberations the Commission should: Discuss the interests of Act and Bylaw

project is significant to Confirm what work (alteration) being

allowed and what mitigation/replication (if any) is required

Discuss specific conditions that should be imposed to protect the interests of the Act

B. Drafting an Effective Order of Conditions

Approval Meets performance standards Ability to protect Interests of the Act

Denials Don’t include any conditions Write “Denial” before “Order of

Conditions” at top of each page

Drafting an Effective Order of Conditions

Findings of Fact: 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


Properly drafted Order of Conditions both guide the applicant and give the Commission a standard to enforce if the required measures fail.

General Conditions (1-18)

Special Conditions added by Commission


General Condition Special Circumstances Pre-construction During Construction Post-Construction/ Conditions in Perpetuity MACC’s list of Special

Conditions: http://www.maccweb.org/resources_templates

Special Conditions


General Conditions Violation of any of these conditions may

result in fines (local bylaw) 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….

prohibits work in….

Drafting an Effective Order of Conditions Consider seasonal concerns (conducting work in dry vs. wet months


Replications 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% re-vegetation requirement)

Special Circumstances


Stormwater Management

All stormwater mngt. shall be conducted in accordance with (list plans titles and dates)

New Development Constructed after initial

site clearing to allow for capture and control of site runoff during construction

Special Circumstances, Cont.


Stormwater Management Redevelopment

Protect Catch basins Maintained as specified in the

O & M Plan Annual maintenance rpt

shall be submitted to the Con Com (during construction and in perpetuity?)

Special Circumstances, Cont.


Pre-construction meeting Applicant, Contractor,

erosion control monitor 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

Prior to Construction


During Construction Conditions Applicant to contact Con Com if

unforeseen problem occur Applicant shall designate and

Environmental Monitor/Erosion Control Monitor to:

Inspect Erosion controls weekly or after rain events of .5 inches or greater

Advise on erosion control practices Ensure adherence to the OOC Be present during *** Provide weekly/monthly updates to the

Commission


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

During Construction Conditions, Cont.


No alterations beyond installed siltation barrier during or after construction shall be permitted

Temporary/permanent stabilization of exposed soils

During Construction Conditions, Cont.


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

Post-Construction


Maintenance of stormwater mngt structures are the responsibility of…

No sodium chloride shall be used within 100 feet of … (vernal pool)

Continued maintenance of *** area, in a manner that assures permanent stabilization shall be the responsibility of the Owner/Assign

Conditions in Perpetuity

C. Permit Issuance and Appeals Be careful; it’s a legal document Check off all relevant boxes

Check off approval vs denial Check correct boxes Sign Order Issue date is date hand delivered or mailed

(not signed) Notarize order The file is a public record

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

Local Orders of Conditions and Wetlands Protection Act Orders

Separate appeal mechanisms (DEP vs Superior Court)

Legally separate, though normally issued at same time

Must clearly differentiate what parts pertain to the WPA versus Bylaw

Best to issue two separate documents

Appeals – Wetlands Protection Act

WPA appeals: To DEP, within 10 business days of issuance. Tell applicants about appeal period at hearing – decreases number of projects that start before appeal period has elapsed

DEP can overturn Commission’s Order, Remand it back to Commission, or affirm the Order

Appeals - Bylaw

Bylaw appeals: Certiorari, Superior Court within 60 days

A clear well written Order is most likely to be upheld as the Judge is constrained to review of the public record only

D. 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

Ensuring Compliance: Pre-construction site visitPresent: Applicant, Contractor, Erosion Control

Monitor, Con Com

Review Order of Conditions Review construction sequencing/schedule Check on DEP File # sign Inspect Erosion Control Confirm Limit of Work Is permit recorded?

Schedule follow-up visit?

Ensuring Compliance: Erosion Controls The Good:

Staked straw wattles and staked/entrenched filter fabric

Silt sacks Hay bales

S&E Maintenance: It is your responsibility to maintain your sedimentation and erosion control in good working order.

General Permit Compliance: Fines may be issued if:

Work is not done according to the approved plans or conditions – CALL US BEFORE YOU MAKE CHANGES.

Work of any sort occurs beyond the sedimentation and erosion control boundary (e.g., dumping, grading, cutting, or construction).

Damage to the wetland or buffer zone occurs as a result of failure of your sedimentation and erosion control.

Ensuring Compliance: Erosion Controls

The Ugly: Improper installation Inadequate

maintenance

Unprotected Catch Basins

Ensuring Compliance: Construction Monitoring


April 2004

Case Example: Doeskin Water Betterment, Framingham, MA


July 2004

September 2004



October 2004

October 2004

May 2006


Buffer Zone Plantings


Wetland Replication

E. Amendments (DWW 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

E. Extensions

Requests 30 days before expiration. Once expires, cannot be extended. Extension is discretionary. Con Com can deny if:

No work has begun, except if there were unavoidable delays

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 amended and the existing

OOC no longer complies

Con Com may grant an extension one or more times for periods of up to three years.

F. After Construction

S&E Removal: It is the Applicants responsibility to remove and properly dispose of your sedimentation and erosion control once your site is fully stable.

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.

Certificates of Compliance

Specify in Order: owner must request Cert. of Compliance as soon as work completed, or 30 days before expiration.

If work completed, but more time needed for sufficient vegetation, “decision” is letter to applicant “Commission cannot issue COC at this time, will reevaluate at a date certain.”

Certificates of Compliance, cont’d

Don’t grant partial Cert. of Comp. if replication not completed

Commission must issue within 21 days of request or deny Cert. of Comp. in writing and list reasons

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

G. Questions and Discussion

Discussion of specific special conditions that have been shown to work or unique construction challenges

writing an effective order of conditions & ensuring compliance fundamentals for conservation...

Documents