Volume 2 | Issue 2 Winter 2012|2013

President’s Message . . . . . . . . . . . .2Growing Pains - New Law

Regulates Fertilizer . . . . . . . . . . . .3Accounting for Gifts to Conservation

Commissions . . . . . . . . . . . . . . . . .4Court Supports MassDEP Policy . . .8Congratulations Fundamentals

Graduates . . . . . . . . . . . . . . . . . .10Annual Environmental

Conference . . . . . . . . . . . . . . .11-14Apps for the Conservation

Commissioner . . . . . . . . . . . . . . .15Supreme Judicial Court SLAPP . . .17New Environmental Handbook . . .18News from State Environmental

Agencies . . . . . . . . . . . . . . . . . . .19Tips from the Conservation Office 21Meet Tricia Bonifacio . . . . . . . . . . .23MACC Officer, Director and

Nominating Committee Election .24Erosion & Sediment Control Guide . . . .26

INSIDE THISISSUE

MACC10 Juniper Road

Belmont, MA 02478www.maccweb.org

617.489.3930 Fish & Game Proposes...continued on page 7

A Good News Update ....continued on page 9

A Good News Update on Chickley RiverRestoration and Enforcement By Patrick Garner

Fish and Game Proposes In-LieuFee Program By Richard Lehan and Tim Purinton

This newsletter

is printable

In September 2012 the Massachusetts

Department of Fish and Game (DFG) sub-

mitted a proposal (“Prospectus”) to the

U.S. Army Corps of Engineering (ACOE) to

become the sponsor of a statewide pro-

gram that would provide compensatory

mitigation associated with ACOE permits

under §404 of the Clean Water Act and/or

§§9 or 10 of the Rivers and Harbors Act of

1899 and related federal regulations at 33

C.F.R. Part 332.

The concept is this: rather than do on-site

mitigation to compensate for project

impacts to aquatic resources of the U.S.,

ACOE permittees would be allowed to

make a payment to an In-Lieu Fee Pro-

gram (ILFP) administered by DFG. As the

ILFP sponsor, DFG, in turn, would

assume legal responsibility for imple-

menting the required compensatory

mitigation, which it would accomplish

by aggregating and expending the in-

lieu funds received from ACOE permit-

tees for enhanced mitigation projects.

Maine, New York and Vermont all have

active ILFPs.

As described in the Prospectus, DFG’s

ILFP would be administered by its

three divisions: Division of Marine

Fisheries, Division of Fisheries and

Wildlife (DFW) and Division of Ecologi-

cal Restoration. These agencies would

As you may recall in my recent Presi-

dents Message, following tropical

storm Irene in the fall of 2011, the

Town of Hawley conducted “clean up”

work over five miles of the Chickley

River, a designated cold water fishery.

Hawley lies just south of Charlemont in

western Massachusetts.

A classic freestone river, the Chickley is

intersected by several Natural Heritage

and Endangered Species Program

(NHESP) estimated habitat polygons for

aquatic species. Until this year, the river

was annually stocked with Atlantic

salmon fry in the spring.

The work conducted in the river in late

2011 was performed under the auspices

of the August 26, 2011, MassDEP “Emer-

gency Regulations for Clean Up Activi-

ties Following Hurricane Irene.” The

Hawley Conservation Commission was

not consulted, and NHESP did not per-

mit the work; remediation was directed

solely by the Hawley Selectmen.

The work on the Chickley River repre-

sents one of the greatest impacts to a

riverine system that has occurred in

Massachusetts in decades. The impacts

include dredging and straightening of

almost five miles of perennial river. In

addition, the following impacts

occurred:

• Loss of some 51,000 linear feet of

Bank,

• Alterations to more than 600,000 sq.

feet (13.7 acres) of Land Under

Water Bodies, and

• Alterations to more than 550,000 sq.

feet (12.6 acres) of Riverfront Area.

2013 Annual Environmental Conference Inside

t

attend the Annual Environmental

Conference the most frequently (61%),

followed by MACC Workshops (57%)

and Fundamentals trainings (32%). The

most important service we offer is the

Environmental Handbook for Massa-

chusetts Conservation Commissioners

(81%) as well as advocacy at MassDEP

(43%) and at the State House (33%).

Only a small percentage of our mem-

bers rely on Conservation Connections

and Facebook, our two online forums,

and only a few members are interest-

ed in participating in MACC’s Annual

Business Meeting. This information

and more from the survey is critically

important if we are to improve our

services and offerings for MACC mem-

bers. Thank you again for your partici-

pation.

I always end by noting that we wel-

come suggestions and comments.

Please feel free to contact me directly.

Your feedback is critical! Thanks!

Patrick Garner

508-393-3200

NEWSLETTER2

MAMACCCC BOBOARD OF DIRECARD OF DIREC TTORSORS

President

Patrick Garner, Northborough

First Vice President

Kathleen Connolly, Esq., Hopkinton

Vice President for Education

Michele Grzenda, Lincoln

Vice President for Advocacy

E. Heidi Ricci, Shirley

Treasurer

Sally Zielinski, Ph.D., Carlisle

Secretary

Margaret Carroll, Upton

Directors

Amy Ball, Sandwich

Walter Bickford, Berlin

Brandon Faneuf, W. Warwick, RI

William Henchy, Esq., Orleans

Scott Jackson, Whately

Charles Katuska, Uxbridge

Gregor McGregor, Esq., Concord

Tim Purinton, Ipswich

Janice Stone, Shutesbury

STSTAFFAFF CCONTONTAACC T INFORMAT INFORMATIONTION

617.489.3930

Executive Director

Linda Orel

linda.orel@maccweb.org

Associate Director

Education Coordinator

Michèle Girard

michele.girard@maccweb.org

Member Services Coordinator

Newsletter Editor

Lindsay Martucci

lindsay.martucci@maccweb.org

Staff Associate

Tricia Bonifacio

tricia.bonifacio@maccweb.org

Finance & Operations Manager

Candace Domos

candace.domos@maccweb.org

President’s Message

Our work on the 10th Edition of the

Environmental Handbook for

Massachusetts Conservation

Commissioners continues full tilt. This is

one of the most exciting revisions we

have proposed. This Edition will be

made in collaboration with UMass

Amherst, and will be in digital, interac-

tive format--a medium that will allow

color photos, video, active web links and

function as a robust and ever-changing

website. This is possible due a large

grant we received from the Massachu-

setts Environmental Trust. Kudos to MET

for sharing our vision. See Linda Orel’s

article on page 18 in this Quarterly for

more information on the roll out of your

new E-Handbook.

Other news? MACC hosted an outstand-

ing Fall Conference on November 10,

Roads & Water: Maintenance & Protection

- well received by over 100 attendees.

We’re grateful to our talented speakers

and to the MACC staff who worked hard

to make the conference a success.

Due to the good services of MassDEP

Commissioner Kimmel, a settlement has

finally been reached on the Chickley

River debacle, and restoration activities

have already begun. Please see my

accompanying article on page one of

this issue of the Quarterly.

This fall, MACC conducted an unscientif-

ic poll of our 2,800 members to find out

what MACC services and programs are

most important and most well utilized.

We received 450 responses, including 17

pages of textual responses. We thank all

of you who took the time to help us fig-

ure out how to better serve you and

improve our offerings. We learned that

members surveyed rely on the MACC

Quarterly Newsletter the most (77%), fol-

lowed by our website (56%) and

eMACCs/Action Alerts (32%). Members

NEWSLETTER3

Growing Pains...continued on page 10

Growing Pains - New Law Regulates Fertilizer

By Christine McDermott

The average person doesn’t think

much about the chemistry of fertilizer.

Sure, they could tell you that fertilizers

provide plants with nutrients. Howev-

er, while a lot of nutrients in fertilizer

perform as intended, some – like phos-

phorus - can do more environmental

harm than good. As a result, many fer-

tilizers impact natural areas that

extend far beyond their application

points.

The problem with phosphorus, which

is commonly found in most fertilizers,

is it fuels the growth of algae. Excess

phosphorus in Massachusetts’ inland

and coastal waters is leading to algal

blooms that can severely degrade

water quality and habitat. As the over-

sized algae populations die, their

decay uses up dissolved oxygen on

which fish and other wildlife depend.

This process is throwing off the balance

of entire ecosystems. Some algae

blooms are even toxic to people and

wildlife. Several ponds across Massachu-

setts have been forced to close to swim-

ming this past summer due to these

explosions in algae populations.

Because of these trends, the US Environ-

mental Protection Agency (EPA) requires

that municipalities, treatment plants,

businesses and other large producers of

wastewater reduce the amount of phos-

phorus being discharged into rivers,

lakes and streams by as much as 65 per-

cent. Along the Charles River, for

instance, stricter storm water and sewer

permits are expected to be applied in

nearby cities and towns that would cut

phosphorus runoff to the river by half.

Fertilizers

factor in dur-

ing precipita-

tion events,

when water

that is not

absorbed

into the

ground is

swept along

as surface

runoff until it is discharged into the

nearest body of water. Along the way,

this runoff picks up and brings with it

nutrients from soils and fertilizers and

dumps them into the river, lake or

stream where the water ends up. Turf

fertilizers (otherwise known as non-

agricultural) are responsible for a sig-

NEWSLETTER4

Accounting for Gifts to ConservationCommissions By Kate Connolly, Esq.

How does a conservation commission

account for gifts - unexpected and

planned - of money or land? Be

thankful for them and move on with

the good work of your commission,

right? Well, of course! But there is still

that task of deciding what accounting

mechanism to use to protect your

windfall from being used by other

town departments. This recent MACC

Helpline question, while wonderful

news, brought with it some confusion.

This article is intended to explain gen-

erally the differences between gifts

and development impact fees, and

how a municipality might use them.

Use of the Conservation Fund for Gifts

If your commission receives a gift of

land or money, the majority of the

time you will want to set up a Conser-

vation Fund – if your town or city does

not already have one – into which

money can be deposited and spent for

general conservation purposes, or for a

more specific, stated purpose. Your city

or town accountant can help establish

the fund and any specific dedication of

the money’s use. Whether the donation

comes from the donor’s whim, or is a

long-planned gift, perhaps from an

estate, a commission can deposit the

money or provide for the land donation,

in the Conservation Fund. Monies given

to a municipality or a specifically-named

board from a development impact fee

must be deposited into the type of

account contemplated in the bylaw or

ordinance authorizing the town to

charge impact fees, typically under

Massachusetts General Laws Chapter 44.

A Conservation Fund is a dedicated

account established by a municipality

to ensure that the commission will

have money that can be spent for any

purpose stated in the Conservation

Commission Act, G.L. Ch. 40 §8C, with-

out further authorization upon a vote

of town meeting or the city council.

Purposes for expenditures include the

purchase of land, maintenance of or

capital improvements to such land,

monitoring of conservation restric-

tions, and expenses directly related to

land purchases, including title search-

NEWSLETTER5

es, legal expenses of deed preparation

and title passing, investigation of land

prior to purchase for conservation pur-

poses. Use of the fund does not

include matters related to the state

Wetlands Protection Act, into which

application filing fees are deposited.

Those funds may only be used for

things related to implementing or

enforcing the Wetlands Act. Donations

of funds are always welcome, and the

establishment of a Conservation Fund

serves as a sort of reminder to the

community that the commission is

available to accept donations for uses

under the fund. Without the fund,

groups and individuals might not

think to make a donation, so establish-

ing one can serve as an advertisement

of sorts of the causes of conservation

commissions and land protection

opportunities for the community. For

further background on accounting

mechanisms, readers may benefit from

reviewing a previous MACC Newsletter

article entitled “Conservation Commis-

sions’ Authority to Collect Fees and

Spend Funds.”1

Development Impact Fees Versus

Donations

Some municipalities have adopted

bylaws or ordinances that allow them

to charge a developer proposing a

large project with attendant impacts

on the community’s infrastructure,

traffic, resources and environment

which is called an impact fee. Essen-

tially, the fee is intended to fund activi-

ties to mitigate any adverse impacts of

1MACC Newsletter, September/October 2009; see also

MACC’s Environmental Handbook for Massachusetts

Conservation Commissioners, Chapters 9 and 12.

the development, and can come in the

form of funds or an in-kind “payment” to

the town of the construction of roadway

improvements or a public park or the

like. Understandably, there are specific

rules governing such fees, to avoid the

various perceptions of impropriety of

the “gift” or the potential for actual

impropriety (e.g. a bribe) that could be

punishable by civil and criminal penal-

ties.

In Massachusetts, most forms of exac-

tions – that is, dedications of land or in

lieu payments, impact fees, or linkage

payments – will withstand legal chal-

lenge only if they are authorized by

some enabling legislation and meet cer-

tain constitutional requirements. A plan-

ning board, more often than a conserva-

tion commission, will be the board

involved in imposing impact fees, where

authorized within a town or city. Dedica-

tions of land cannot be required under

the Subdivision Control Law, G.L. c. 41,

§81U, so those only come into play if the

developer offers such

dedications of land

and not by the direct

request of the munici-

pality. Impact fees dif-

fer in that instead of

an outright dedication

of land, a developer is

charged a fee to pay

for the capital

improvements of the

project that ostensibly

caused by the devel-

opment (usually the

fee covers the impacts

of sewer, roads, water

and other public facili-

ties).

The Home Rule

Amendments to the

Massachusetts Consti-

tution allow cities and

towns to adopt zoning

ordinances or bylaws

containing provisions

for certain forms of

development impact

fees, but they still have to meet the

constitutional test set forth first in

Emerson College v. City of Boston, 391

Mass. 415 (1984) then upheld in Berry

v. Danvers, 34 Mass.App.Ct. 507 (1993)

to establish that it is indeed a user

fee, rather than constituting an illegal

tax. In Emerson College, the City of

Boston attempted to impose a fee for

fire services, on the argument that

certain buildings, due to their size

and other characteristics, required

"augmented" fire services. The Col-

lege was tax-exempt and argued that

this was an impermissible tax rather

than a valid fee. The Court set forth a

three-part test to distinguish a fee

from a tax: (1) fees are charged in

exchange for a particular government

service that benefits the party paying

the fee in a manner not shared by

other members of society; (2) fees are

paid by choice, in that the party pay-

ing the fee has the option of not uti-

lizing the particular government serv-

ice and thereby avoiding the charge;

NEWSLETTER6

and (3) fees are collected not to raise

revenues but to compensate the gov-

ernment entity providing the services

for its expenses. In the Emerson case,

because the benefits of the charge

were not limited to the owners of the

buildings but rather were available to

the general public, the Court found

that it was a tax in violation of the

state Constitution.

In a recent case, the Massachusetts

Supreme Judicial Court (SJC) upheld

a monetary charge placed by a

municipality on developers in

exchange for access to municipal

sewer systems where the towns were

operating under a state administra-

tive order to reduce inflow and infil-

tration in the system. (Denver Street

LLC v. Town of Saugus (and three com-

panion cases), SJC, September 2012).

This decision still does not give

municipalities’ free reign to impose

charges in every sewer tie-in case, let

alone other types of fees. It is also

important to note that other Massachu-

setts courts have struck down certain

other municipal impact fees over the

years as unconstitutional. In Greater

Franklin Developers Association v. Town of

Franklin, 49 Mass. App. Ct. 500 (2000) the

Appeals Court declared unconstitutional

an impact fee ordinance enacted to

fund additional educational infrastruc-

ture, and in Dacey v. Town of Barnstable,

Barnstable Superior Court No. 00-53

(October 18, 2000) the trial invalidated

an impact fee related to a need for more

affordable housing in the town. These

cases, read together, show the complexi-

ties involved in distinguishing between

taxes and valid municipal impact fees.

Thus, even where development impact

fees may be imposed pursuant to a valid

bylaw or ordinance, they must be

imposed reasonably and fairly. Typically,

conservation commissions are not the

boards most likely to impose such fees,

but where your com-

mission may be in a

position to do so, con-

sult with your town

accountant about the

proper procedures for

setting up an account

under Chapter 44.

In some cases, instead

of development

impact fees, towns

have the authority

under Chapter 44 to

accept gifts. Section

53A provides, in perti-

nent part:

An officer or depart-

ment of any city or

town ... may accept

grants or gifts of funds

from the ... a private

corporation, or an

individual, or ... and

may expend ... such

funds for the purposes

of such grant or gift in

cities ... in towns with

the approval of the board of select-

men ....

The money is held in a separate

account that is not subject to further

appropriation. Thus, a developer may

present a gift of money, land, a chari-

table contribution, etc., in any amount

to a municipality and the municipality

must then follow certain accounting

mechanisms described in Chapter 44

and Chapter 40, § 8C. The money

could then be spent by the municipal-

ity to address any of the perceived

impacts of the proposed development

on the community. There is no prohi-

bition against a developer with a

pending application before a town

board presenting a gift in some

acceptable form to the Town while

that application is pending, or even

directly in connection with the Board's

review of its application. Such a gift to

the town is, of course, distinguishable

from a gift to the Board reviewing the

pending application, or to an individ-

ual member of that Board, or to any

other Board or individual town official.

These types of gifts, with certain, few

exceptions2 , are prohibited by the

State Ethics Commission’s Conflicts

rules.

Your city or town accountant and/or

city solicitor or town counsel can

assist in setting up the right account

for your commission if it should be so

fortunate as to receive a gift of dona-

tion or land. If you are simply trying to

make that happen, publicize the fact

that your town or city has a Conserva-

tion Fund. Once people know that the

Fund exists, they may be more likely

to think of a donation of money or

land an estate option or tax benefit.

Kathleen Connolly, First Vice President of

MACC, is a land use and environmental

attorney with Murtha Cullina LLP.

2A Gift of land may be made to a city or town to be

held in the care, custody and control of its conservation

commission under G.L. c. 40 § 8C. This is still, arguably,

a gift to the city or town rather than to the conserva-

tion commission.

NEWSLETTER7

implement restoration and/or preser-

vation of coastal and inland aquatic

resources and upland buffers within

four identified bio-regions and three

coastal sub-basins covering the state

(called “service areas,” depicted

below).

DFG’s mitigation strategies would be

based on a detailed analysis of the

loss of and threats to specific aquatic

resources within the service areas. In

deciding how the in-lieu fee payments

are used, DFG would examine water-

shed-scale stressors, identify land

preservation focus areas and evaluate

ecological restoration opportunities.

DFG would also coordinate the imple-

mentation of its ILFP for Massachu-

setts with a federal and state intera-

gency review team (IRT). The key

goals of DFG’s ILFP are to provide a

more robust in-lieu fee mitigation

option for ACOE permittees and to

supplement – not replace – the com-

pensatory mitigation required by local

conservation commissions and the

Department of Environmental Protec-

tion (MassDEP) under the Wetlands

Protection Act or by MassDEP under

the state Clean Waters Act.

The public comment period on DFG’s

Prospectus ended on November 1,

2012. Under the federal mitigation

regulations, the ACOE will make a

determination on whether to approve

DFG’s Prospectus by early December

(possibly by the time this Quarterly

Newsletter is published). Assuming the

Prospectus is approved, the next step for

DFW will be to develop a comprehen-

sive In-Lieu Fee Program Instrument,

which is also subject to public comment

and approval by the ACOE. The ACOE’s

approval of a final Program Instrument

would authorize DFG to administer its

state-wide ILFP. DFG’s goal is to com-

plete the ILFP approval process by the

summer of 2013.

To read the DFG’s ILFP Prospectus, visit

this site: click here.

Richard Lehan is General Counsel for the

Department of Fish and Game.

Tim Purinton is Director of the Division of

Ecological Restoration and MACC Director.

Editors Note: To view

MACC’s comments in

support of the ILFP

Prospectus, click here.

MACC did not receive

input from Tim

Purinton or any

state agency official

on these comments.

Continued from page 1, Fish & Game Proposes

Thank You to MACC’s

Fall Conference

Sponsors

Mosakowski Institute

MassDOT

The Nature Conservancy

Mass Audubon

Buchanan & Associates

Massachusetts

Environmental Trust

NEWSLETTER8

Most conservation commissioners,

whether intuitively or otherwise, rec-

ognize that once a final determination

is made as part of an approved deter-

mination or delineation, then such a

decision holds for the life of the instru-

ment (after expiration of the appeal

period). This would not apply where a

delineation or determination is

deemed approximate and/or subject

to further clarification. Without such

exceptions however, new applicants

are discouraged from seeking changes

during the life of the instrument.

But does the Wetlands Protection Act

or wetland regulations say that such

determinations control the life of such

permits? Can a commission feel com-

Court Supports MassDEP Policy Regarding“Collateral Attacks” on DeterminationsBy Kenneth F. Whittaker Ph.D., Esq.

fortable relying on such determinations

in later permit applications? If so, then

under what conditions?

Answers to these questions were recent-

ly addressed by the Essex Superior Court

when it upheld MassDEP’s Superseding

Determination of Applicability in

Tompkins v. Department of Environmental

Protection, 30 Mass. L. Rptr. No. 14, 290

(October 29, 2012). In its decision, the

Court explained the regulatory basis for

supporting this practice.

The case involves efforts of the applicant

Trust to challenge the Superseding

Determination of Applicability (SDA)

finding a stream to be perennial rather

than intermittent. (Office of Appeals and

Dispute Resolution

(OADR) Docket No. WET-

2010-035). The Conser-

vation Commission orig-

inally designated the

stream to be perennial

pursuant to 310 CMR

10.58(2)(a)1.f. finding

that the flow within it

was significantly affect-

ed by an impoundment.

The Commission found

the evidence of dry con-

ditions submitted by

the applicant insuffi-

cient to overcome this

presumption of the sig-

nificant effect of the

impoundment on flow.

Upon appeal by the

Trust, MassDEP agreed

with the Commission

and issued a SDA con-

firming the stream as

perennial. A petition by

the Trust for an adjudi-

catory appeal to the

OADR followed.

During the OADR proceeding,

MassDEP and the Commission filed a

Joint Motion To Dismiss the Appeal

claiming in part that the determina-

tion of the perennial nature of the

stream was made pursuant to the local

wetland bylaw which, by not being

appealed to the courts by the appli-

cant, must be considered final and

controlling independent of any deci-

sion under the Wetlands Protection

Act. The OADR Presiding Officer dis-

agreed, finding the denial to have

been firmly rooted in the WPA but

nevertheless supported MassDEP’s

SDA on the grounds that the Trust’s

position was contrary to currently

valid and earlier issued Orders of Con-

ditions which designated the stream

(as a whole) as perennial. One of these

previous orders had been issued to

the Trust with another issued to an

unrelated party, and both were valid

for an additional two years through

the effect of the Permit Extension Act.

On that basis the Presiding Officer

found the Trust’s appeal to represent

“an impermissible [under MassDEP

practice] collateral attack on a binding

Order of Condition and [was] there-

fore, barred as a matter of law.”

NEWSLETTER9

The Trust subsequently appealed to

Superior Court claiming that the Pre-

siding Officer had in his denial incor-

rectly applied the principles of collat-

eral estoppel because necessary pre-

requisites for such determination had

not been met. (“Collateral attack” and

“collateral estoppel” are not common

terms in the conservation commission

lexicon but their definition and dis-

tinction is important here. According

to the Court a collateral attack is “an

attack on a judgment entered in a dif-

ferent proceeding” whereas collateral

estoppel serves as a defense barring a

party from re-litigating the same issue

it raised in an earlier action.) Because

the Trust disputed a currently valid

determination made in a different

matter, its challenge on collateral

estoppel grounds was not applicable.

The Court went on to evaluate

whether MassDEP’s denial of the SDA

(on the basis of the claimed impermis-

sible collateral attack) was valid. It

found substantial legal precedent to

suggest that MassDEP as an adminis-

trative agency has broad authority to

“announce and apply new rules and

regulations” even without a formal

rulemaking (e.g., not in the wetland

regulations) and via adjudicatory

proceedings (as shown in this case).

According to the Court, MassDEP’s

authority to apply new rules and

regulations during adjudicatory

proceedings is valid when such a rule

has been consistently applied in prior

decisions; the rule is not otherwise

barred by statute; the rule is rationally

related to furthering MassDEP’s pur-

pose; as well as several other factors.

This is but one more example of the

deference that the courts apply to the

review of administrative agency

decision-making.

Where an applicant seeks a new deter-

mination on a previous delineation or

determination reviewed and accepted

by the commission and currently

within its permit term, commissioners

can take comfort in the likelihood that

MassDEP will almost certainly support

the earlier determination during appeal.

Kenneth F. Whittaker Ph.D., Esq. is an

attorney with the firm of Bernkopf

Goodman LLP.

The river has been rip-rapped for miles,

from top of bank to top of bank and side

to side. Habitat values were lost, and

almost all riffles and pools destroyed.

With this as discouraging background,

the good news is that MassDEP Commis-

sioner Kimmell recently concluded

enforcement actions with both the Town

and the contractor. All parties involved

have agreed to a Settlement and as of

early December 2012, actual restoration

work has begun.

As the photograph above indicates,

large boulders - previously stripped

from the river channel - are being

returned. Riprap is being scraped from

the banks. Channel elevations are being

returned to an approximation of pre-

existing conditions. Woody debris will

be anchored into the river substrate and

embankments. Limited vegetative

restoration will also be conducted in

spring and early summer of 2013.

The settlement agreement builds in

multiple-year monitoring. Much of that

work will be done by a technical team of

Continued from page 1, A Good News Update

state specialists. Some of the vegeta-

tive restoration will be coordinated by

the Connecticut River Watershed

Council (CRWC), a key intervenor that

acted as a citizen watchdog over the

settlement discussions.

Although the Chickley River’s “clean

up” constitutes one of the worst river-

ine disasters to occur in the Common-

wealth, the restoration of the river

promises to return it in time to some

semblance of its former glory. MACC,

CRWC and many other groups will

follow this story as it continues to

unfold.

Pat Garner is the MACC President and

the Principal of the Patrick C. Ganrer

Company.The Chickley River in late fall, 2012. Photo courtesty of

CRWC. The excavator is beginning to restore banks

and returning boulders to the river channel.

NEWSLETTER10

nificant portion of the excess phos-

phorus that gets deposited. The EPA

has estimated that limiting phospho-

rus in fertilizers could save Massachu-

setts communities an estimated $180

million per year in avoided treatment

costs. According to recent research at

the University of Connecticut, most

soils in New England need no added

phosphorous to grow turf.

During this legislative session, Mass

Audubon and other environmental

and municipal groups successfully

advocated for a statewide phosphorus

reduction measure that further sup-

ports the EPA’s efforts. An act relative

to reducing phosphorus runoff was

passed into law this past August. It

requires the Massachusetts Depart-

ment of Agricultural Resources (DAR)

to develop regulations that will allow

only low-phosphorus or phosphorus-

free fertilizers to be used on lawns.

Agricultural applications, turf farms

and new lawns will be exempt from

the regulations. DAR has until January

1, 2014 to put the new regulations into

effect.

The new law is expected to help cities

and towns comply with EPA regulations

by decreasing the overall amount of

excess phosphorus that ends up in

stormwater. According to the Massachu-

setts Municipal Association, if the

decline in phosphorus is large enough,

the EPA would consider decreasing its

phosphorous reduction requirements. A

possible outcome is that cities and

towns would not be required to build

new storm water treatment facilities to

remove phosphorus.

Several other states have already adopt-

ed similar phosphorus restrictions or

bans in fertilizers, including Vermont,

New Hampshire, Maine, New York and

Michigan.

Scientists at the University of Michigan

studying effects on water quality after a

phosphorus ban in lawn fertilizers in

Ann Arbor saw an average reduction of

28 percent for phosphorus loads in the

Huron River after one year.

Many lawn fertilizer manufacturers are

also moving away from using phospho-

rus. Companies are changing their for-

mulas to remove or significantly reduce

phosphorus from their fertilizers, and

according to the EPA, phosphorus-free

fertilizers cost the same as those con-

taining phosphorus. Improvements

like these should also make it easier

for cities and towns to lower their

phosphorus output.

How can conservation commissions

get involved? DAR will be holding

public meetings in the spring of 2013

to gather public input as they begin

drafting new regulations. If your com-

mission has suggestions or concerns,

keep an eye out for the public meet-

ing announcements at

www.mass.gov/agr and weigh in!

Through thoughtful policy and com-

munity responsibility, Massachusetts is

on our way to ensuring the only

blooms stemming from fertilizers will

be the ones planted in the dirt.

Christina McDermott is Assistant to the

Director of Public Policy and

Government Relations at Mass

Audubon.

Continued from page 3, Growing Pains

CCongrongraatulatulations Ftions Fundamenundamentals Grtals Graduaaduattes!!es!!

Robert Bennett MassDOT-Highway Division

Anne Capra Pioneer Valley Planning Commission

Barry Gradwohl Gloucester Conservation Commission

Russell Holden Uxbridge Conservation Commission

Mary McLaughlin Spencer Conservation Commission

Ramchandra Moennsad Spencer Conservation Commission

William Reynolds Raynham Conservation Commission

Robert Stinson Williamsburg Conservation Commission

Margaret Washburn Spencer Conservation Commission

Annual Environmental Conference Saturday, March 2, 2013 • Holy Cross College • Worcester 11

Fundamentals for ConservationCommissioners

Limit 80 - Pre-registration Required

(Only 1 Unit can be taken during each time slot)

9:45 a.m. - 12:15 p.m.

UNIT 1. Overview of Conservation Commissions:

Relationships, Responsibilities, Funds and Fees

UNIT 2. Getting Home Before Midnight: How

to Run an Effective Meeting

UNIT 5. Wetland Functions and Values

UNIT 7. Open Space Planning and Protection Techniques

1:30 p.m. - 4:00 p.m.

UNIT 3. The Wetlands Protection Act:

Fundamentals, Process and Procedures

UNIT 4. Plan Review and Site Visit Procedures

UNIT 6. Writing Effective Orders of Conditions

UNIT 8. Managing Conservation Land:

Inventories, Goals and Conflicts

Workshop descriptions with speakers and moderators will be

posted in January at: http://maccweb.org/edu_aec.html

WORKSHOP SERIES A-D(Only 1 Workshop can be taken during each time slot)

SERIES A - 9:45 a.m. - 11:00 a.m.

1. Conservation Land Encroachments: Addressing

Them Effectively

2. Defusing Landowner/Conservation Conflicts: Protecting

Habitat for Endangered Species

3. Culvert Replacement Projects and Ecosystem Connectivity

4. Vernal Pools: Natural History, Evalution and Protection

5. Stormwater Management 101: An Overview of

Hydrologic Calculations under the MA Stormwater

Management Standards

6. Fluvial Geomorphology Basics: Understanding a

River’s Form and Function

7. Commissions Behaving Badly: Lessons in Legal Liability

SERIES B - 11:15 a.m. - 12:30 p.m.

8. Biomass Energy: Impacts on Global Warming and

Massachusetts Forests

9. Conducting a Riverfront Area Alternatives Analysis:

Don’t Just Crunch the Numbers

10. MassDEP Wetlands Regulations: Reform Revisited

11. Non-Structural Approaches for Managing

Coastal Erosion: Do They Really Work?

12. Evaluating Stormwater Treatment Best Management

Practices

13. Identifying Bankfull Channel Characteristics and Discharge

14. Key Components of the Open Meeting and Conflict of

Interest Laws

SERIES C - 1:45 p.m. - 3:00 p.m.

15. Managing White-Tailed Deer Populations in MA

16. Mapping Vulnterable Wetlands for Better Water

Protection and Environmental Planning

17. Emergency Response to Flood Damage:

Guidelines for Protecting Rivers

18. From the “Know-Not” to the “Hot-Shot”:

Stormwater 101 for Commissioners (Double Session)

19. Wildlife Habitat Evaluations: When to Require and

How to Use Them

20. Climate Change Strategies for Conservation

Commissions: Wetland Migration Buffer Zones and

Larger Design Storms

21. Writing Denials Under Local Wetlands Bylaws that

can Withstand Judicial Appeal

VOLUNTEERS

RECEIVE FREE ADMISSION

Contact Lindsay Martucci for details

lindsay.martucci@maccweb.org

Workshops and Training Programs SessionsSee page 13 for day’s agenda and page 25 to register or visit www.maccweb.org

SERIES D - 3:15 p.m. - 4:30 p.m.

18. (continuation of 18C)

22. Sustainable Water Management Initiative: Regulatory

Framework and Implementation

23. How to Resolve Vista Issues: Innovative Strategies that

Balance Wetland Interests with Applicant’s Goals

24. New Natural Heritage Tools for Conservation: The Vernal

Pool/Rare Species Information System and BioMap2

Town Reports

25. Trees, Paddlers and Wildlife: Safeguarding Ecological

and Recreational Values on the River

26. Stream Continuity Case Study: Thunder Brook in

Cheshire, MA

27. Invasive Species: Early Detection and Rapid Response

Annual Environmental Conference Saturday, March 2, 2013 • Holy Cross College • Worcester12

Free!!

MACC’s Annual Environmental Conference and

Fundamentals for Conservation Commissioners: Unit 1

MACC Announces its 2013 Fawcett Education Fund Initiative

MACC will award three full scholarships* to attend the Annual Environmental Conference on

March 2, 2013.

MACC is offering competitive scholarships through its Frederick J. Fawcett II Education Fund to MACC

members who want to attend the Annual Environmental Conference for the first time and need finan-

cial support to do so. To receive free registration to the state's premier Annual Environmental Confer-

ence, fill out a one-page application form. The deadline to submit applications is January 21, 2013.

*This opportunity is limited to first-time participants.

How to apply

Download an application form: http://www.maccweb.org/support_fawcett.html

Email to lindsay.martucci@maccweb.org OR fax to 617-489-3935 OR mail to MACC, 10 Juniper Road,

Belmont, MA 02478

MACC will offer three Fundamentals Unit 1 at no cost to 75 Conservation Commissioners.

MACC will sponsor three in-person trainings of Unit 1: “Overview of Conservation Commissions: Rela-

tionships, Responsibilities, Funds and Fees” from its Certificate Training Program, Fundamentals for

Conservation Commissioners, at no charge between March 4 and June 30, 2013. This offer is available to

MACC members who serve on or work for a conservation commission. Dates and locations are still to

be determined, so stay tuned! The schedule will be posted on MACC’s Education Calendar at:

http://maccweb.org/edu_workshops_cal.html

Donate to the Fawcett Fund: https://www.maccweb.org/support_direct.html

The Frederick J. Fawcett II Education Fund exists to assist conservation commissioners and staff who,

because of financial hardship, are not able to attend MACC training programs, workshops or conferences,

and also to enhance the resources available to MACC in designing and offering educational programs for

conservation commissioners and staff.

Annual Environmental Conference Saturday, March 3, 2012 • Holy Cross College • Worcester 13

Annual Environmental Conference Saturday, March 3, 2012 • Holy Cross College • Worcester

Annual Environmental Conference Saturday, March 3, 2012 • Holy Cross College • Worcester

Annual Environmental Conference Saturday, March 2, 2013 • Holy Cross College • Worcester

CONFERENCE INFORMATION

Agenda8:00 a.m. - 8:30 a.m. Registration, Exhibit Hall Opens

8:30 a.m. - 9:30 a.m. Opening Session

Annual Business Meeting

Keynote Speaker - Mary Griffin, Fish and Game Commissioner

9:45 a.m. - 12:15 p.m. Fundamentals Units 1, 2, 5, and 7

9:45 a.m. - 12:30 p.m. Workshop Series A and B

11:15 a.m. - 2:30 p.m. Buffet Lunch served in Kimball Hall

1:30 p.m. - 4:00 p.m. Fundamentals Units 3, 4, 6, and 8

1:45 p.m. - 4:30 p.m. Workshop Series C and D

4:30 p.m. - 5:15 p.m. President’s Reception and Raffle

Registration Fees MACC Members* $115 Non-members*** $130

Other Government and Non-profit Employees** $120 Students $45

Walk-in registration is an additional $10.

Fee is per person and includes morning refreshments, lunch and President’s Reception.

*Member fee applies to: conservation commmissioners and staff when commission’s dues are

paid or accompany this registration; and other MACC members.

**Other municipal and agengy officials or non-profit organization employees when fee is

paid by agency or organization check.

***Non-members may receive member rate by joining MACC. Call for details: 617.489.3930 or

visit: http://maccweb.org/become_individual_member.html.

MACC’s new online registration system will be available by the first of the year!

See paper registration form on page 25.

Notes• Advance registration is highly recommended. Payment or purchase order should

accompany the registration.

• Register early to guarantee workshop choice. Pre-registration and number limits will be

enforced.

• Refunds (minus a $20 processing fee) will be issued only if written cancellation is

received by February 15.

• See adverse weather policy at www.maccweb.org/edu_aec.html

13

Annual Environmental Conference Saturday, March 3, 2012 • Holy Cross College • Worcester14

Annual Environmental Conference Saturday, March 2, 2013 • Holy Cross College • Worcester

EXHIBITOR AND ADVERTISER INFORMATION

The MACC Annual Environmental Conference offers exhibitors and advertisers an extraordinary opportunity toreach an exceptional audience of Conservation Commissioners and others involved in resource protection.Because the conference is the largest of its kind in New England, there is no better way for environmental

businesses, agencies and organizations to connect with those making administrative and purchasing decisions intheir communities. Approximately 800 people will attend the Conference on Saturday, March 2, 2013 including

local state and federal officials as well as attorneys, consultants, engineers and other interested stakeholders. For acomplete brochure that includes sponsorship opportunities, contact Lindsay Martucci: 617.489.3930 or

lindsay.martucci@maccweb.org. For additional details or to register online go to www.maccweb.org.

2013 Program Book Advertising Form

Company/Organization_______________________________ Contact Person ________________________

Address__________________________________ City _______________________State______Zip ________

Phone (_____) _______________ Fax (______) ________________ E-mail _______________________________

Method of Payment: Check enclosed � Invoice me through PayPal � Amount $ ________

2013 Exhibitor Registration Form

Company/Organization________________________________ Contact Person___________________________

Address__________________________________ City _______________________State______Zip _________

Phone (____) _______________ Fax (_____) ________________ E-mail_______________________________

Persons overseeing booth _____________________________ _____________________________________

Fee covers exhibit space, lunch and workshops for up to 2 people.

Corporate Member Business Non-Member Agency/Non-profit

� Shared Half Table $400 $500 $250

� Full Table $650 $750 $350

Amount $ ________

Method of Payment: Check enclosed� Invoice me through PayPal �

Please send this form (if check, make payable to MACC) to: MACC, 10 Juniper Road, Belmont, MA 02478

Corporate Business Agency/

Member Non-Member Non-Profit

1/8 Page (3.75” x 2.5”) $200 $220 $150

1/4 page (3.75” x 5”) $250 $280 $200

1/2 page (7.5” x 5”) $310 $350 $250

Full page (7.5” x 10”) $450 $500 $350

Space Desired

�1/8 page �1/2 page

�1/4 page �Full page

�Full page (color, inside backcover)

only 1 spot-on a first come/first served basis.

Sizes given as width x height (1/8 page is approximately business card size) Deadline: February 4, 2013Please send this form with check payable to: MACC, 10 Juniper Road, Belmont, MA 02478.

Ad copy should be sent to: lindsay.martucci@maccweb.org

Register early.Spaces sell out fast!

14

NEWSLETTER15

With the proliferation of smart phones,

it is becoming feasible to use these

devices to make wetland delineation

easier, or, at least bring a source of

information into the field that, until

now, was only accessible by computer

back in the office.

There are a variety of applications

developed for either the iPhone or

Android devices (or both) that may

facilitate your work as a conservation

commissioner. Factory installed appli-

cations such as Google maps (on

Android devices) enable you to turn on

the aerial photography layer to identify

your position or turn on the terrain

data layer to discern topography. The

voice record feature can be useful for

field notes without taking out your

notepad. And a weather reporting

application is helpful for filling out

data forms and describing real-time

conditions.

A sampling of available marketplace

apps is noted below. Endorsement of

these apps is not implied by inclusion

in the MACC Quarterly Newsletter. If

you have used an app that is not listed

that you wish to share with your fellow

commissioners, please contact MACC

Apps for the Conservation Commissioner By Alyssa Jacobs, PWS

at staff@maccweb.org. The below apps

are free unless otherwise noted.

NRCS Soil Web App (iPhone &

Android) – Developed by the California

Soil Resource Lab but containing nation-

wide data, this is the mobile version of

the online interface for USDA NRCS digi-

tal soil survey data. The application uses

the GPS built into the phone to acquire

your current location and then submits a

request to the server via the SoilWeb

API. A graphical summary of the soils

mapped at your current location is pre-

sented on-screen with links to details

through the online soil survey, or via the

USDA NRCS official series description

archive.

Leafsnap – an Electronic Field Guide

(iPhone) – A collaborative effort from

Columbia University, University of Mary-

land and the Smithsonian Institution,

Leafsnap is an electronic field guide

designed to help identify tree species

from photographs of their leaves. Leaf-

snap contains high-resolution images of

leaves, flowers, fruits, petioles, seeds and

barks. Leafsnap currently includes the

trees of New York City and Washington,

D.C. but is planning on adding the entire

continental U.S. This app has its limita-

tions in that photos of leaves must be

taken with a single leaf on a fully-

white background for the automatic

algorithms to find them.

Project Noah (iPhone & Android) -

Project Noah is a tool one can use to

document and learn about natural

surroundings and is also a technology

platform that research groups can use

to harness the power of citizen scien-

tists everywhere. The application has

three modes:

1. Spotting – this mode lets you

take a photograph of a plant or ani-

mal, add a location and description,

and submit it to the database. If you

need help identifying the species,

species will be suggested upon sub-

mittal by the community.

2. Location-based Field Guide – this

mode allows you to see what plants

and animals have been previously

identified near you. You can view by

map, list or grid based on location

and filter by category.

3. Field Missions – this mode

enables work by laboratories, envi-

ronmental groups or other organiza-

tions to gather data for research

projects.

Audubon Mobile Field Guides

(iPhone & Android) – Audubon’s

popular field guides have been con-

verted to an easy-to-use mobile ver-

sion that feature high quality photo-

graphs, range maps, animal sounds,

and the ability to create your own life

lists and record sightings. Advanced

search functions in the guides allow

you to search by shape, color, habitat,

region or size, among others. Features

include the ability to geo-locate your

sightings on a map, record date, add

notes and then share with friends via

Facebook or email. Each guide costs

$9.99.

Creekwatch (iPhone) – Developed by

IBM Research—Almaden, in consulta-

tion with the California State Water

Resources Control Board's Clean Water

Team. This app enables you to help

monitor the health of your local

watershed. The Creek Watch App uses

four pieces of data:

1. The amount of water: empty, some,

or full.

2. The rate of flow: still, moving slowly,

or moving fast.

3. The amount of trash: none, some (a

few pieces), or a lot (10 or more pieces).

4. A picture of the waterway.

This data helps track pollution, manage

water resources, and plan environmental

programs. Reports in Massachusetts are

limited but the database is growing.

Tracks and Scats of North America

(iPhone & Android) – Produced by Fal-

con Guides, this app includes illustra-

tions of scats, tracks, gait patterns, and

other signs of an animal’s presence,

organized by species, track types, and

scat types. The app includes individual

range maps for all species, descriptions

of all scats and tracks with precise meas-

urements, and an identification key and

glossary of tracking terms. This app

costs $1.99.

ArcGIS Mobile (iPhone) – This is a

mobile version of the familiar ArcGIS

desktop software. You can query the

map, search and find interesting infor-

mation, measure distances and areas of

interest and share maps with others.

One can use community-hosted maps

from ArcGIS Online. Alternatively, one

can use the authoring tools on

ArcGIS.com to create your own maps

that can be used in ArcGIS. One can

collect and edit data via GPS or the

map on your iPhone as well as attach

photos and movies to the data. If you

are an existing ESRI customer, this

application is part of your ArcGIS sys-

tem and you can share your corpo-

rate maps and extend the reach of

your GIS to your devices using ArcGIS

Server.

Alyssa Jacobs is with Epsilon Associates

and may be contacted at 978-461-6271

or ajacobs@epsilonassociates.com.

Editor’s Note: A version of this article

was originally published in the April

2012 AMWS Newsletter titled “Apps for

the Wetland Scientist.”

NEWSLETTER16

NEWSLETTER17

The Massachusetts Supreme Judicial

Court (SJC), recently issued an impor-

tant decision clarifying the application

of the Strategic Litigation Against

Public Participation (SLAPP) statute,

G.L. c. 231, §59H 9. Attorney Kathleen

Connolly, obtained the victory for a

landowner-farmer who was attempt-

ing to comply with a local wetlands

order.

The landowner sued the tenant com-

posting company for failing to remove

mulch from the property which the

landowner argued was preventing his

compliance with a local wetlands

order. Citing the SLAPP statute, the

composting company argued that the

landowner had infringed upon the

company’s constitutionally protected

ability to petition the town. "[The

company] contends that it exercised

its right to petition by seeking redress

from the town for its own grievances

Supreme Judicial Court Rules that Landowner’sLawsuit is Not Barred by SLAPP LawBy Kate Connolly, Esq.

related to the town’s zoning enforce-

ment, and was attempting, by negotiat-

ing and entering into a settlement

agreement," the decision stated. But the

SJC disagreed, finding that the landlord’s

claim was not based on any statement

made by the company in exercising its

right of petition. Rather, the Court

noted, the basis of the landowner’s

claim was not that he was injured by the

company’s advocacy with the town, but

that he was injured by the company’s

failure to remove the mulch.

The SJC determined that the landown-

er’s lawsuit brought by a landowner

against a tenant composting company

for failing to remove mulch from the

property was not unlawful under the

"anti-SLAPP" statute.

This is an important step toward clarify-

ing the Legislature’s intent in enacting

the statute, which was meant to protect

against meritless lawsuits that just

increase the cost, time, stress and

anxiety for parties involved in litiga-

tion. The decision helps to narrow

and define the parameters of the

anti-SLAPP law by clarifying the defi-

nition of ‘petitioning activity’ under

the statute.

The decision, Marabello v. Boston Bark

Corporation, is available by clicking

here.

Kate Connolly is MACC’s First Vice

President. If you have questions, con-

tact Kate at 617-457-4096 or

kconnolly@murthalaw.com.

This content of this article has been

provided by Murtha Cullina LLP

REGISTER NOW!

Fundamentals for Conservation Commissioners

Unit 5 - Wetland Functions and Values

WEBINAR FORMAT

Wednesday January 16, 2013

Check-in time: 5:45 p.m. • Webinar: 6:00 - 8:30 p.m.

To register, go online

https://maccweb.org/edu_workshop_registration.html

or call 617.489.3930

NEWSLETTER18

New Environmental Handbook Coming in Late2013 (to a computer near you)! By Linda Orel

The Environmental Handbook for

Massachusetts Conservation

Commissioners is a mainstay in every

conservation office. In a recent unsci-

entific survey of MACC members, 82%

said the Handbook is the most impor-

tant service MACC provides.

Since its first publication in 1968, the

Handbook has gone through nine edi-

tions. Since its last publication in 2006,

the Ninth Edition of the Handbook is

becoming increasingly out-of-date.

MACC needs to incorporate many

recent changes in technology, science,

local, state and federal laws, regula-

tions, policies and court decisions. Yet

MACC has found that page limits con-

strain the breadth of topics that can

be covered, as well as the level of

detail, and the use of graphs, photos

and illustrations. In response, MACC

began offering the Handbook on DVD

in a searchable PDF format. However,

even this format does not take advan-

tage of opportunities to present infor-

mation in multi-media format made

possible by educational technology.

In response to a growing need for

ever-changing information, MACC is

undertaking a comprehensive update

of the Handbook. The 10th Edition will

be available to our members in late-

2013 -- as an interactive, web-based E-

Handbook. The E-Handbook will provide

a revitalized tool to help you build

knowledge and make informed deci-

sions. It will allow a wide range of topics

to be covered in multiple layers of detail,

with a virtually unlimited capacity to use

hyperlinks, photos, illustrations, anima-

tion, videos, demonstrations and inter-

active graphics to enhance and supple-

ment the content. Click navigation will

allow you to move through the material

in a non-linear fashion seeking out the

information you need. Use will be easy,

interactive and stimulating! Eventually,

built-in assessment capacity (self-test-

ing; certificate units) will provide feed-

back on the effectiveness of educational

material included. The E-Handbook will

also be made available on a CD pub-

lished annually for those who do not

have internet access.

Conservation commissions will be able

to subscribe to the E-Handbook for a

nominal fee each year. The income from

subscriptions will be used to update,

expand and enhance the E-Handbook’s

educational content once each quarter

(four times/year) and to provide techni-

cal support from our partners at the

University of Massachusetts Amherst’s

Center for Educational Software Devel-

opment, who will manage

annual subscriptions and access to

the new E-Handbook.

We are forever grateful for the experts

who contributed to all nine editions of

the Environmental Handbook for

Massachusetts Conservation

Commissioners, especially the late

Alexandra D. Dawson, J.D. who was

the main author of the Handbook

since 1973, and Dr. Sally A. Zielinski,

Ph.D. who co-authored the Handbook

since 1991.

MACC is deeply grateful to the Massa-

chusetts Environmental Trust for a

generous grant helping to fund this

importnat project. Proceeds from the

sale of over $50,000 environmental

license plates have funded more than

$16 million in environmental protec-

tion and education projects through

MET’s grant programs. To support

MET, please purchase a license plate

here:

http://www.mass.gov/eea/grants-and-

tech-assistance/grants-and-

loans/mass-enviro-trust/enviro-

license-plates

Linda Orel is MACC’s Executive Director

NEWSLETTER19

MassDEP Announces New Sustainable

Water Management Plan

On November 29, 2012, the Patrick

Administration unveiled a new plan to

better manage the state’s water

resources by balancing the need for

water consumption and economic

development with ecological health.

The framework is known as the Sus-

tainable Water Management Initiative

(SWMI).

The final SWMI framework will regulate

streamflow criteria - science-based

standards to ensure that rivers and

streams continue to flow, even in peri-

ods of less-than-average rainfall or

drought. The framework also establish-

es a safe yield requirement to be

applied consistently across the state.

The framework relies on the results of a

U.S. Geological Survey peer-reviewed

scientific model to understand the rela-

tionship between water withdrawals

and the health of streams and rivers,

and to flag water basins that have been

impacted by large water withdrawals

and other human alterations.

To inform agencies and water suppliers

on how the framework will be imple-

mented, four pilot projects – in

Amherst, Danvers-Middleton, Dedham-

Westwood, and Shrewsbury – are test-

ing the impacts of the proposed frame-

work to incorporate the lessons

learned.

The state’s goal is to have final regula-

tions in place by December 2013. Draft

regulations will be subject to public

review and comment. The state will

develop a guide to the regulations, and

has committed approximately $11 mil-

lion to assist communities and water

suppliers in implementing new water

withdrawal requirements.

For more information click here.

News from State Environmental Agencies By Linda Orel

Fisheries & Wildlife Creates Online Tool

to Report Vernal Pools and Rare Species

The Division of Fisheries and Wildlife

(DFW) created the Vernal Pool & Rare

Species (VPRS) Information System to

help you electronically submit your

observations of vernal pool and state-

listed species through the web. No need

to fill out paper forms, create copies of

photographs and maps, or put them in

the mail, though it still is an option.

Check out the new system by clicking

here.

Four forms are available through the

VPRS system:

1) Vernal Pool Certification Form

2) NHESP Animal Observation Form

3) NHESP Plant Observation Form

4) Survey Form

Using the VPRS system, observers can

map observations directly into the

online form and upload photos, audio

files or other related documents. Anyone

submitting reports can access and

review the report’s status (in progress,

submitted, accepted, etc.). Users can cre-

ate multiple reports using the bulk

upload feature. Additional information

(e.g. photos) can be added to each

report prior to submittal. Once forms are

submitted, they are reviewed by Natural

Heritage and Endangered Species pro-

gram (NHESP) staff against its usual

strict, standard data acceptance criteria.

Based on this evaluation, as in the past,

NHESP staff accepts or rejects the sub-

mitted reports. Staff can request addi-

tional information from reporting

observers directly through VPRS using a

built-in notification system. An addition-

al benefit is a real time update of accept-

ed data reports which will be incorporat-

ed into the publicly available NHESP

Certified Vernal Pool data layer and town

Rare species lists.

MassDEP Promulgates New Solid

Waste Regulations

On November 23, 2012, MassDEP

promulgated new regulations for Solid

Waste Management Facility Site

Assignment and Recycling, Compost-

ing, and Conversion Permits. These

amendments:

• Exempt from the site assignment

process certain operations that handle

organic or recyclable materials that

have been separated from solid waste;

and recycle, compost or convert these

materials into new products or energy.

• Establish clear and streamlined per-

mitting pathways for these non-solid

waste operations;

• Establish levels of MassDEP review

and oversight for these operations that

are commensurate with the environ-

mental and public health issues they

present; and

• Clarify that composting and other

organics management activities on

Massachusetts farms that are regulat-

ed by the MA Department of Agricul-

tural Resources will not be regulated

by MassDEP.

To view the final regulations, click

here.

NEWSLETTER20

NEWSLETTER21

Tips from the Conservation Office

Editors Note: This article is the first

of a two-part series. Please see

MACC’s Spring 2013 MACC Quarterly

Newsletter to read the second part

of the series.

Site Inspections: Planning,

Preparation and Practices

By Charles J. Katuska, PWS

For any number of reasons, conserva-

tion commissioners find it pleasant,

desirable or necessary to get outside.

Often we describe “gettin’ outside” as a

site inspection. Generally, site inspec-

tions are performed with varying lev-

els of preparation and follow-through

but, whether for a 20-minute foray

with next generation’s conservationists

or to support commission testimony in

superior court, there is no denying

that site inspections are important.

Like many other skills, doing a worth-

while site inspection gets easier with

practice. Read on for pointers to help

you get ready, get set and go.

Make a Commitment

We have just received a situation

report. There is an application before

us or we have received a complaint.

Many situations generate a similar

response - somebody needs to do a

site inspection. Commitment to the

effort is step one.

Next, determine if this is a one-time

inspection, such as the initial project

site review, a resource area boundary

delineation, an impact or mitigation

assessment, open space/wildlife habi-

tat assessment, a compliance drop-in

or a response to a public inquiry or

complaint. These inspections, valuable

as they are, do not demand the same

level of commitment as continuing

This column provides tools you can use to help make conservation

office administration run more smoothly and effectively.

inspections for construction or compli-

ance monitoring or for long-term

research interests. Recognize a continu-

ing series of site inspections for the

opportunity that it is and consider

measures like standardized field forms,

vegetation plots, or permanent photo

stations to maximize the value of your

efforts.

Set Goals

Set goals for the site inspection. Why is

the inspection desired or required and

what will be the planned outcome?

What is the appropriate level of respon-

sibility in terms of record-keeping, docu-

mentation and communication? Goals

vary widely. For example, a violation

inspection requires written notes, pho-

tos and follow-up, while a pond shore

stroll with an inquiring resident may

have an educational goal. But the

process of goal-setting is basic to the

performance of efficient and effective

inspections.

Set Priorities

There are additional commonalities in

planning a site inspection. Setting priori-

ties is especially important for larger

parcels or multi-task inspections and

critical to those who “suffer” from awe

and wonder at the natural elements.

One cannot see everything when out-

side, so set your priorities to maximize

your outcomes.

Keep Records

Consider record-keeping. A formal site

inspection for regulatory purposes

should be supported by field notes. At a

minimum, date, time, attendees, pur-

pose and observations will suffice. A

picture is worth a thousand words, and

even modestly detailed field sketches

may be useful. Consider carrying a

weather-proof journal. Your observa-

tions and sketches can be as simple or

complex as necessary, the pages can

be photocopied for the files and the

value of a record of observations goes

beyond municipal service. Photos are

often desirable, but beware of a loose

hodgepodge of prints or unlabeled

CDs for the file. For maximum value,

photos should be mounted or printed

on 8.5x11 pages, dated and annotated

to highlight observations. Modern

digital photography is an essential

tool in many cases. For much commis-

sion business, “what happens in the

field happens in the file” and, even if

formal documentation is not neces-

sary, early attention to your site

inspections’ record-keeping require-

ments cannot be overstated.

Investigate Site Ownership and Access

Assuming your site inspection is to

take place on private property, investi-

gate ownership and identify property

access constraints that might affect

your inspection. Confer with the

owner or the owner’s representative if

there are questions. Identify yourself

as a member of the town’s commis-

sion, explain the purpose behind your

intended visit, review your schedule

and request permission to access the

site. In questionable cases, asking for

permission is better than begging for

forgiveness. In clear cases, evidence

collected illegally has no value in

court and trespass is not in a commis-

sioner’s best interest.

Conduct Research

Now that you’ve got a plan for your

site inspection and you’re clear on

legal access, review accessible existing

information on the property and, as

necessary, the neighborhood and larg-

er environments. If site inspection is

being driven by proposed alterations,

review the proposed conditions plans

and narratives submitted by the appli-

cant.

Many commissioners make good use

of a personal collection of maps, field

guides and other land use or ecologi-

cal references. In this digital age, valu-

able information is available online,

often for free. Web data are easy to

come by, but an awareness of the

source information is warranted

before relying exclusively on data that

is not deemed official.

Use the Best Plan Possible

A review of general site and land use

information often begins with the BPP

– the Best Plan Possible. This is the

best site plan you have in your hand

right now. Review of the BPP may dis-

close that you need a better plan.

A common follow-up to the assessor’s

map, or other available BPP, is review

of the U.S. Geological Survey (USGS)

Topographic Map for the site area.

With reasonably current information

on topography, slope, general land

use and water resources, the “topo”

map is the primary tool for initial

assessment of runoff flow paths, prox-

imity to streams, lakes or wetlands,

watershed hydrology, and local land

uses. USGS topo maps are nationwide

in coverage, widely available at sport-

ing goods and outdoor stores, and can

be ordered and, in some cases, viewed

online.

Aerial imagery, even historic imagery,

is also available online. Always valu-

able for inspection of larger sites, aeri-

al images provide a range of informa-

tion on vegetation (coverage, compo-

sition), water resources and land uses

– especially large-scale activities that

you cannot see from the “tar road.”

Many will find that images collected

under leaf-off conditions are the most

valuable. With the widespread availabili-

ty of websites like Google Earth, Bing

and the State Office of Geographic Infor-

mation (MassGIS), review of color aerial

imagery should be considered essential

preparation for a substantial site inspec-

tion.

Continuing into the wide gray area

between basic background data and

goal-specific research, consider the U.S.

Department of Agriculture’s Natural

Resource Conservation Service’s (NRCS)

soils mapping, the Federal Emergency

Management Agency’s (FEMA) Floodway

and Flood Boundary Maps, and various

wetland and wildlife habitat mapping

products. NRCS soil maps, prepared by

county, are a primary resource for infor-

mation on the distribution of wetland

(hydric) soils and soil drainage charac-

teristics in general. FEMA Floodway and

Flood Boundary maps, prepared for each

city and town, provide information on

the limits and elevations of the 100-Year

Flood and several more frequent flood

events. Earlier wetland mapping pro-

grams (UMASS’ MacConnell maps, U.S.

Fish and Wildlife Service National Wet-

land Inventory maps) can provide some

historical information but the best cur-

rent, widely available mapping of wet-

lands is by the Massachusetts Depart-

ment of Environmental Protection. This

well-developed statewide product is

available, for free, from the MassGIS

website and can be downloaded to your

own systems or viewed online with a

specific thematic viewer. Likewise, the

state’s best current mapping of informa-

tion on rare wetland wildlife (Estimated

Habitats of Rare Wetlands Wildlife), rare

upland wildlife and rare plants (Priority

Habitats), landscape-level rare species

distribution (BioMap2) and Conservation

Assessment and Prioritization System

(CAPS) are available online, at no charge,

through the MassGIS website or, for the

CAPS conservation planning data, the

University of Massachusetts Amherst.

Summary

Site inspec-

tions vary

widely in

terms of pur-

pose and

goals. Some of

the value that

we, as conser-

vationists,

derive from our site inspection efforts

can be ascribed simply to the value of

being outdoors. Broad and expand-

ing research literature is developing

on the value of time spent outdoors

to the individual. As conservation

commissioners, the value of our site

inspections can best be maximized

through a regular framework of smart

planning and preparation. Once you

have advanced to this level of prepa-

ration for a field inspection, you’re

past Site Inspection 101 and we’ll

move on in the spring when part two

of this series is published in this

Newsletter.

Charles Katuska is a member of MACC’s

Board of Directors and a certified pro-

fessional wetland scientist with 30

years of field experience in

Massachusetts wetlands. In addition to

his past and present public service

appointments and employment, Mr.

Katuska maintains a private consulting

practice through CJK Conservation.

Consulting.

NEWSLETTER22

NEWSLETTER23

Meet Tricia Bonifacio

Tricia Bonifacio is a Staff Associate at

MACC. We asked Tricia a few questions

about herself so our members could

get to know her better.

Where did you go to college and what

did you study?

I’m a lifelong learner; I feel like I’ve

been going to school for-ev-er. I have

an undergraduate degree in Health

Education from the UMass Lowell, a

Master’s in Environmental Health from

California State and am currently

working on a MBA at Simmons…wish

me luck!

When did you become interested in con-

servation and why?

I’ve always been interested in conser-

vation, though didn’t necessarily label

it as such. Growing up, I spent time

outside where I developed a great

appreciation for the unique natural

spaces of New England. In high

school, I was introduced to the writ-

ings of Henry David Thoreau and was

hooked. He put words to my feelings;

I immediately identified with his pas-

sion for nature. My favorite Thoreau

quote: “If the day and the night are

such that you greet them with joy,

and life emits a fragrance like flowers

and sweet-scented herbs, is more

elastic, more starry, more immortal--

that is your success. All nature is your

congratulation, and you have cause

momentarily to bless yourself.”

Do you have a conservation hero?

I don’t have one single conservation

hero, I have lots. Some are well-

known, like Rachel Carson and Jac-

ques Cousteau, but others are com-

mon folk who value our finite and

precious natural resources. Anyone

working or volunteering on behalf of

nature is a hero in my book.

What is your favorite book?

It’s hard to whittle it down to just one;

there are many great works out there.

Books that I’ve particularly enjoyed over

the years include, The Count of Monte

Christo, East of Eden, Eye of the Needle,

Beatrice and Virgil and Life of Pi (I’m

skeptical the movie will be as good as

the book was, but I’d still like to see it).

I’m looking forward to reading Malcolm

Gladwell books over the coming holi-

days.

What are your favorite activities outside of

work?

As a mom, quality time with my family is

important to me. We make a conscious

effort to have dinner together on a regu-

lar basis, which is a great way to con-

nect. When I do have free time (rare as a

mom, employee, student…), I like to

observe nature in the wetlands in my

own back yard (which some call a

swamp) and hiking, biking, jogging,

swimming, skiing, traveling… anything

that gets the heart pumping.

What is the one thing you enjoy the most

about MACC’s Annual Environmental

Conference?

AEC provides a great venue for volun-

teer commissioners to network, learn

about timely environmental topics and

brush-up on Fundamentals. Plus I get to

put faces to voices, names and email

addresses!

Is there a project you are working on at

MACC that you are excited about?

Launching MACC’s first webinar program

was exciting. Working to perfect internal

administrative efficiencies is great, too.

But the best part of my job is helping to

facilitate the conservation of natural

resources. I enjoy connecting with

and working to satisfy the needs of

our clients, the commissioners. It’s

always my goal to provide great cus-

tomer service.

MACC is a private non-profit organiza-

tion. Our voting members are the

Conservation Commissions of Massa-

chusetts. Nonvoting memberships

are available to others interested in

community resource protection and

include receipt of this Newsletter.

MACC welcomes letters, articles,

drawings and photographs from

readers, but reserves the right to edit

or reject submissions. Non-staff arti-

cles do not necessarily represent the

opinions of MACC. Reproduction in

whole or in part is permitted with

proper credit. For advertising rates

and membership information, call

MACC at 617.489.3930.

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NEWSLETTER24

MACC OFFICER, DIRECTOR AND NOMINATING COMMITTEE ELECTION

Annual Business Meeting March 2, 2013

The 2012 Nominating Committee recommends the slates below to the membership.

OFFICERS Serving until Annual Business Meeting 2014

Kathleen Connolly, Esq. President E. Heidi Ricci Vice President for Advocacy

Patrick Garner Past President Margaret Carroll Treasurer

First Vice President Secretary

Michele Grzenda Vice President for Education

DIRECTORS *New Nominee

Serving until Annual Business Meeting 2016 Tim Purinton Matthew Schweisberg* Margaret Stolfa* Sally Zielinski

Serving until Annual Business Meeting 2015 Seth Wilkinson*

2013 NOMINATING COMMITTEE Non-Board Members Ingeborg Hegemann Lealdon Langley

Jason Lederer Nathaniel Stevens

Respectfully submitted, 2012 Nominating Committee: Greg McGregor, Chair Judith Eiseman Patrick Garner

Arleen O’Donnell Kenneth Pruitt Seth Wilkinson

NEW NOMINEES TO THE BOARD *

Matthew Schweisberg is the principal of Wetland Strategies and Solutions, LLC, a company he opened after retiring from more than 32years with the U. S. Environmental Protection Agency at both its Headquarters office in Washington, D.C. and New England Region officein Boston. Prior to retiring from EPA in April 2012, he served concurrently as Chief of the New England Region’s Wetlands Protection Pro-gram and as Senior Mediator with the Region’s Alternative Dispute Resolution Program. He has taught courses in wetland regulation,restoration and creation, wetland ecology, and wetland identification and delineation for federal and state agencies, the MACC, AMWS,and Northeastern University, among others. He served on the MassDEP Wetland Delineation Advisory Committee for developing wet-lands protection regulatory revisions, BVW policy, and the 1995 Manual for Delineating Bordering Vegetated Wetlands. Matt also served onthe West Newbury Conservation Commission from 1986 – 1989. He has made presentations and served on panel discussions at MACCAnnual Environmental Conferences and numerous other symposia. Matt is a certified Professional Wetland Scientist under the Profession-al Certification Program of the Society of Wetland Scientists, and a wildlife biologist. He also is well versed in all aspects of alternative dis-pute resolution. He received his degree in Wildlife Management from the University of Maine.

Margaret “Peg” Stolfa is a partner at Bernkopf Goodman LLP in the Environmental Law Practice Group and represents clients on a widerange of real estate and environmental matters. Prior to private practice, Ms. Stolfa served as General Counsel at MassDEP, an agencyimplementing more than 60 statutes and regulatory programs. Her work included Clean Water Act and Wetlands Protection Act imple-mentation and included the wetlands appeal reforms. Her experience includes development of legislation and participating in legislativeworkgroups, including representing MassDEP on the legislative committee drafting the Oil Spill Act, for which she received the Governor’sAward for Excellence in Government Legal Services. She also represented the Commonwealth in EPA’s Institutional Control Workgroupand is co-author of ASTM’s Sustainable Brownfields Development Guidance, used nationally to achieve economically successful redevel-opments. A frequent lecturer and faculty presenter on all aspects of environmental law, she has presented on wetlands matters at Massa-chusetts Association of Conservation Commissions seminars. In addition, Ms. Stolfa has published materials for the American Bar Associa-tion and is a contributing author on materials regarding Sustainable Brownfields Redevelopment.

Seth Wilkinson is President and Restoration Ecologist of Wilkinson Ecological Design, Inc. Considered one of the regional experts and afrequent instructor in the field of invasive plant management and ecological restoration, Seth has been a leader in hundreds of ecologicalrestoration projects for land trusts, conservation commissions and private individuals in the last decade. Whether through the use ofinnovative equipment to manage invasive species or the inspired blending of bioengineering products with native plants, Seth and histeam at Wilkinson Ecological Design continue to improve the practice and integrity of ecological restoration. Proving that restored habi-tats can support wildlife and become elegantly beautiful spaces in the landscape, whether acre by acre or backyard by backyard, Wilkin-son Ecological has eradicated invasive plants and restored pristine native plant communities throughout Cape Cod and beyond.

OTHER MEMBERS OF THE BOARD OF DIRECTORS (not up for election this year)

Serving until Annual Business Meeting 2014 Amy Ball Walter Bickford Brandon Faneuf Scott Jackson

Serving until Annual Business Meeting 2015 Charles Katuska Gregor McGregor Janice Stone

MACC officers serve one-year terms, though may serve up to three consecutive years in a position; directors have staggered three-year terms. Non-Board members of the Nominating Commitee are elected by the membership;Board members of the committee are chosen by the Board.

NEWSLETTER25

Thank you to the MACC 2012 Annual Environmental Conference Sponsors!

PLATINUM

BRONZEGZA GeoEnvironmental, Inc. • LEC Environmental Consultants, Inc.

McGregor & Associates, PC • Murtha Cullina LLP • National Grid

The Nature Conservancy • The Trust for Public Land • Wilkinson Ecological Design, Inc.

PRESIDENT’S RECEPTION

Nitsch EngineeringFUNDAMENTALS TRAINING

BSC Group, Inc.

FAWCETT FUND SPONSOR

Pam Kohlberg and Curt Greer

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