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A RIVERS WORKSHEET: Easier Perennial versus Intermittent Determinations Under the Massachusetts Rivers Protection Act
by Patrick Garner
Under pressure on a recent, particularly controversial project, I developed a one-page checklist for perennial or intermittent river
indicators. An earlier version of this worksheet was created by Heidi Davis, DEP NERO, for the MACC Fall Conferences in October, 1998. Her effort was a personal one as a wetland scientist. She wanted to systemize
key definitional criteria to make repeated determinations simpler.
Last month I took Davis endeavor and created a different format. I made other changes, adding and subtracting items that had relevance from
my own experiences. Although Heidi has seen a draft of this new version, neither she nor DEP has endorsed it. So this is strictly an evolving, private effort to simplify the decision-making process. I have begun
filing it as an attachment to Notices of Intent; a visual summary of the key indicators is helpful to everyone.
How do you use it? The Rivers Worksheet is a weighted, or cumulative checklist. One works
through the key data, categorizing each item appropriately. No one item is assumed to indicate that a particular river section is either perennial or intermittent. The checklist items are taken as a whole. The
Worksheet is a good double-check on the presumptive USGS map criteria (see 310 CMR 10.58 (2) (a) 1.a). My experience is that within typical riverine systems, checked items should dominate one category or the other.
For instance, if a stream on a given site is indicated as perennial on a current USGS map, but no other item on the Worksheet is checked as perennial, the presumption may be flawed, and therefore rebuttable.
This happened to me on a site in Hudson. Although the current USGS showed this particular stream as perennial, the stream was not even indicated on older USGS mapping. Using the Worksheet, I also found that the brook matched no other criteria for a perennial river (a telling contradiction was that its watershed, rather than being >3 square miles, was <.3 square miles). The brook was clearly intermittent. So the checklist works as a strong visual tool, as well as a reminder of key indicators.
Many of the Rivers Worksheet items come directly from 310 CMR 10.58 Riverfront Area, (2) Definitions, Critical Characteristics and Boundaries. Before using the Worksheet, I strongly recommend you review this
section of the regulations. The Worksheet is not intended to be a perfect mirror of the regulationsitems such as soils have questionable validity. (Other items not mentioned in the Critical Characteristics and
Boundaries section which are found in the Worksheet are from current fluvial morphology and/or my own regional field experiences.)
This increasingly troublesome portion of the Rivers Protection Act
exemplifies the need to constantly use good judgment. Is the Worksheet failsafe? Of course not. In fact to use the Rivers Worksheet properly, think, øBPJ--Best Professional Judgment.Ó BPJ? I had a professor years
ago who started all of his federal regulatory discussions by chanting, BPJ, BPJ. We laughed at the time, but the phrase stuck. For many situations there is no manifest answer. The high number of appeals to DEP on
this topic indicates that whether you are a wetland scientist, a regulator or town official, your opinion is likely to be challenged.
The Rivers Worksheet is a work in progress. If you find it helpful, I
encourage you to modify it, circulate it, rewrite it or amend it.
Please download it, copy it or make other use of it as a field tool. If you want a WIN95 Excel copy of the original file, please contact me and Ill send you a disc at cost.
CLICK HERE TO DOWNLOAD RIVERS SHEET
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