| January
16, 2003
DEP AMENDS WETLAND PROTECTION ACT TO ADDRESS PERENNIAL
& INTERMITTENT RIVERS, & DROUGHT
by:
Patrick Garner
On
December 20, 2002, DEP released the latest amendment to the Wetlands
Protection Act. Changes addressed definitions of perennial and
intermittent rivers, and drought. Copies were mailed to all Conservation
Commissions, and posted on DEP’s web site; a downloadable
PDF version is available at www.state.ma.us/dep/brp/ww/regs.htm.
(Original Act: http://www.mass.gov/dep/water/laws/ch131s40.pdf)
The amendments follow more than two years of work by a DEP technical
advisory committee.
The change in perennial definitions is significant. The presumption
that a perennial river shown on USGS mapping is perennial has
been retained, but criteria for disproving that presumption have
changed completely. More small rivers and streams are protected,
and many previously confusing definitions found in the original
Rivers Protection Act have been dropped entirely. For instance,
“indicators” such as macroinvertebrates and stream
order are no longer found in the regulations. The minimum watershed
area for a perennial river has been lowered from three square
miles to one square mile. Use of the USGS StreamStats program
is required under certain circumstances.
Definitions for impoundments, withdrawal and diversions within
rivers have also been changed for clarification. For instance,
the new definitions recognize that flash boards cannot be raised
to interrupt a normally perennial river to satisfy a claim that
a stream is intermittent. The new emphasis in these revised definitions
is on man-made changes.
The definition of “extended drought” has also been
amended to coincide with an “Advisory” to be issued
under appropriate conditions by a new Massachusetts Drought Management
Task Force. Gone are the labored requirements to compare precipitation,
often from locations many towns away. The permanent Task Force
will now issue advisories based on multiple indicators, including
stream flow, precipitation, ground water levels, snow pack and
reservoir levels. These advisories alone will determine when an
area is in drought. According to DEP, “Monthly maps will
be prepared by DEM detailing the geographic extent of the drought
and the corresponding drought level. Drought information is published
on the web at www.state.ma.us/dem/programs/rainfall/index.htm.”
Regulators and consultants are advised to become familiar with
these amendments. Many of the changes are specifically intended
by DEP to eliminate controversies that arose after promulgation
of the original Rivers Protection Act.
|
