The Massachusetts Rivers Protection Act – A Regulatory

Framework for Protecting Riparian Buffers

Heidi M. Davis, MassDEP

Photo credit Patrick C. GarnerAssabet River

. Along a “River”

. No Buffer Zone

. Extends 200 Ft from Mean Annual High Water 25 Ft in cities and in

designated ‘Densely Developed Areas’

. May Overlap Other Wetland Resources

Riverfront Area

CROSS-SECTION OF A RIVER

RIVERFRONT AREA200’ OR 25’

Top of Bank

Base Flow

Mean Annual High-Water Line

Rivers shown as perennial on a USGS quad are presumed perennial .

Perennial showing may be overcome by 4 dry observations in a non-drought period.

Rivers shown as intermittent are presumed intermittent unless: . watershed is >= 1 square mile; . watershed is >= 0.5 sq mi AND predicted flow rateis >= to 0.01 cfs at 99 % flow duration; or. watershed size is >= 0.5 sq mi AND site contains > 75% stratified drift

310 CMR 10.58(2) - A Riverfront Area is the area of land between a river’s mean annual high water line and a parallel line measured horizontally.

. In most rivers, the 1st observable break in slope is coincident with MAHW.

. In some river reaches, MAHW is represented by bankfull field indicators.

310 CMR 10.58(4) General Performance Standards

• Protect other Resource Areas

• Protect Rare Species

• No Practicable Alternatives

• No Significant Adverse Impacts

310 CMR 10.58(4)(c) –

There must be no practicable and substantially economic alternative to the proposed project with less adverse effects on the interests of the Act.

310 CMR 10.58(4)(d) – No Significant Adverse Impact

• Alteration limited to 5,000 sq ft or 10% of the total RFA, whichever is greater, for lots recorded before 10/6/1997; 10% for lots recorded after 10/6/1997.

• 100 feet of undisturbed vegetation.

• For lots recorded prior to 8/7/1996, issuing authority shall allow construction of a single-family house, driveway & septic system & meet standards to extent feasible.

Exemptions from Rivers Protection Act include Historic Mill Complexes in existence prior to 1946 & existing on 8/7/1996 and “human-made canals”.

Structures and activities subject to a M.G.L. Ch 91 Waterways license are also exempt.

In addition, redevelopment of previously-developed sites do not need to meet performance standards though they must meet several criteria including “improvement over existing conditions”.

What has worked well?

• Over the last 20 years, statewide, there have been thousands of Notice of Intent filings addressing work within the Riverfront Area. Aside from the various exemptions, Orders of Conditions for these filings have effectively kept development out of the “inner” riparian area (1st 100 feet) and have limited development within the “outer” riparian area (2nd 100 feet).

• Faced with a complex set of regulations, Conservation Commissions, have, for the most part, effectively implemented them and have protected the integrity of the riverfront area.

Challenges?

• Intermittent streams receive limited protection, though functionally, they are just as important as perennial streams.

• The drought definition may have led to a loss of jurisdiction (perennial streams determined to be intermittent based upon dry observations in a “non-drought” period).

• The ‘Redevelopment’ section of the regulations is confusing, complex and frequently leads to new infrastructure within the RFA.

• The canal exemption is too broadly applied, as is the Historic Mill Complex exemption.

For the purposes of the RPA, drought is determined by the MA Drought Management Task Force which bases drought on several indices:

. stream flow . groundwater elevations

. precipitation . snow pack

. wild fire danger . crop moisture availability

. Palmer Drought Severity Index . reservoir levels

National Drought Mitigation Center: US Drought Monitor

310 CMR 10.58(5) – Redevelopment of Previously-Developed Areas

Spicket River, 2001 Spicket River, 2013

310 CMR 10.58(5) – Redevelopment means replacement, rehabilitation or expansion of existing structures, improvement of existing roads, or reuse of degraded or previously developed areas. A previously developed area contains areas degraded by impervious surfaces, absence of topsoil, junkyards or abandoned dumping grounds.