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Writing an Effective Order of Conditions & Ensuring Compliance Fundamentals for Conservation...
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Transcript of 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?
Hearing Questions and Discussions
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
Hearing Questions and Discussions
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
Drafting an Effective Order of Conditions
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
Drafting an Effective Order of Conditions
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
Drafting an Effective Order of 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
Drafting an Effective Order of Conditions
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
Drafting an Effective Order of Conditions
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.
Drafting an Effective Order of Conditions
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.
Drafting an Effective Order of Conditions
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
Drafting an Effective Order of Conditions
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
Drafting an Effective Order of Conditions
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.
Drafting an Effective Order of Conditions
No alterations beyond installed siltation barrier during or after construction shall be permitted
Temporary/permanent stabilization of exposed soils
During Construction Conditions, Cont.
Drafting an Effective Order of Conditions
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
Drafting an Effective Order of Conditions
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
Ensuring Compliance: Construction Monitoring
April 2004
Case Example: Doeskin Water Betterment, Framingham, MA
Ensuring Compliance: Construction Monitoring
July 2004
September 2004
Ensuring Compliance: Construction Monitoring
September 2004
Ensuring Compliance: Construction Monitoring
Ensuring Compliance: Construction Monitoring
October 2004
October 2004
May 2006
Ensuring Compliance: Construction Monitoring
Buffer Zone Plantings
Ensuring Compliance: Construction Monitoring
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