The implementing regulations for the Rivers Act were promulgated
in August 1997. These regulations define the requirements
necessary to comply with the two-prong performance standards contained in the
Rivers Act. Although the Rivers Act does not prohibit all activities within
riverfront areas, the implementing regulations severely regulate such activities.
As a result of the large and extremely complicated regulatory burden that must
be met, a thorough understanding of the Rivers Act regulations is necessary
to ensure that proposed activities within the riverfront area will be permitted
with only minimal alteration or disruption.
Customers or clients with specific
questions may contact legal counsel, professional engineers, and their local
conservation commissions.
According to the law, the riverfront
area provides the eight interests of the Wetlands Protection Act:
protection of public and private
water supply,
protection of groundwater supply,
protection of land containing
shellfish,
protection of wildlife habitat,
flood control,
storm damage
prevention,
prevention of pollution, and
protection of fisheries.
The law also establishes
the policy of the state to protect the natural integrity of rivers and to encourage
and establish open space along rivers.
Where is it??
The riverfront area is a 200-foot wide corridor on each
side of a perennial river or stream, measured from the mean annual high-water
line of the river. However, the riverfront area is 25 feet in the following
municipalities: Boston, Brockton, Cambridge, Chelsea, Everett, Fall River,
Lawrence, Lowell, Malden, New Bedford, Somerville, Springfield, Winthrop,
and Worcester; and in "densely developed areas," designated
by the Secretary of the Executive Office of Environmental Affairs.
A river
is any natural flowing body of water that empties into any ocean, lake, or
other river and that flows throughout the year. The definition includes all
perennial rivers, including streams and brooks that flow throughout the year.
Rivers end where they meet the ocean, a lake, or pond.
Intermittent streams
are not subject to the Rivers Protection Act.
How it Serves the Public Interest
Riverfront areas prevent
pollution by:
Filtering and trapping sediments, oils, metals, and other pollutants; and
Cleaning water through toxic chemical breakdown in soils and plant roots.
Riverfront areas protect public and private water supply
and groundwater supply by:
Removing pollutants that are carried in runoff from nearby land uses, such
as commercial areas, roadways, housing developments, and parking lots, before
they reach surface water and/or groundwater; and
Allowing water to infiltrate, or seep down into the ground, to replenish
groundwater supplies and maintain base flows in streams and wetlands.
Over 60% of Massachusetts communities are dependent in
whole, or part, on surface water as their primary source of drinking water. There
are almost 200 public drinking water supply wells within riverfront areas.Riverfront
areas protect fisheries and land containing shellfish by:
Maintaining water quality by moderating stream temperatures, reducing erosion,
and filtering sediments and pollutants, such as excess nutrients, toxins,
and pathogens, before they reach rivers, and fisheries and shellfish beds
that are important for recreational and commercial harvesting; and
Providing food sources to support the aquatic food chain.
Riverfront areas protect wildlife habitat by:
Providing food, shelter, and water for many plants, birds, and animals,
such as black duck, eagle, deer, raccoon, otter, and beaver;
Serving as critical wildlife travel corridors, year-round and during seasonal
migrations; and
Harboring rare or endangered plants and animals, such as the wood turtle.
Riverfront areas control flooding and prevent storm damage
by:
Absorbing and storing water during storms and releasing the water slowly
back to the river;
Reducing peak runoff during storms; and
Preventing erosion and sedimentation.
In addition to adding a new
resource area, the Rivers Act also adds an additional performance standard
for activities located within the riverfront area. Proposed activities within
the riverfront area must meet two performance standards prescribed in the statute:
(1) that there are no practicable and substantially equivalent
economic alternatives (new standard) and
(2) no significant adverse impacts
on the riverfront area (same as the WPA).
Relevant Law: M.G.L. Chapter 131, Section 40 (as amended
by chapter 258 of the Acts of 1996) and 310 CMR 10.00 (Wetlands Protection
Act Regulation)
Important Issues:
What is a River?
The Rivers Act defines a river as "any natural flowing
body of water that empties into any ocean, lake, or other river and which flows
throughout the year." As a result of this broad statutory definition,
the DEP has attempted to more definitively define what a river is.
The crucial
factor in defining a river is whether it is perennial (continuously flowing)
or intermittent.
The jurisdiction of the Rivers Act includes perennial rivers
only. In order to minimize the large debate that is likely to
exist in determining whether a river is perennial, the regulations allow
for the use of U.S. Geological Survey (U.S.G.S.) or more recent maps provided
by the DEP as presumptively showing perennial streams.
The regulations, however,
allow applicants or others to present credible evidence to show that
the mapped information is inaccurate. Conservation Commissions are strongly
encouraged to perform site visits to verify the location and status of
rivers and streams at project locations.
No Significant Adverse Impacts:
The Rivers Act requires an applicant to demonstrate
that any work, including proposed mitigation measures, will have no significant
adverse impact within the riverfront area on the purposes of the Act (see below
for purposes). The DEP has identified certain criteria that must be met in
order to fulfill this requirement.
At a minimum, a 100 foot wide area of undisturbed vegetation must be provided
closest to the river. If not possible, as much of the undisturbed existing
vegetation must be preserved as feasibly possible. Beyond the 100 foot vegetation
corridor, alteration in the riverfront area may be allowed for up to 5,000
square feet or 10 percent, whichever is greater.
Required project alterations and other mitigation measures will vary depending
on the type of project, the current condition of the riverfront area (e.g.
undisturbed or developed), and other environmental factors. Consulting environmental
experts and legal counsel specializing in environmental law and land use will
provide a more complete understanding of the potential effects of this performance
standard on a particular project.
Practicable Alternatives
Analysis:
The Rivers Act requires applicants to demonstrate
that there is not practicable and substantially equivalent economic alternative
to the proposed project with less adverse impact on the protected interests
within the riverfront area. The purpose of evaluating project alternatives
is to locate activities so that impacts to the riverfront area are avoided
to the extent practicable. Whether an alternative to the project is practicable
is determined by considering four distinct factors:
(1) whether costs associated
with the alternative is unreasonable;
(2) existing technology;
(3) the
proposed use of the project; and
(4) the presence or absence of physical
or legal constraints.
Scope of Alternatives --
The scope of alternatives to be considered will commensurate
with the type and size of the proposed project. The following are examples
of the scope of alternatives for various proposed projects::
Single Family House Project
on lot recorded BEFORE August 1, 1996 -- The
scope of alternatives will be limited to the lot for a single family house
proposed for construction on a lot recorded with the Registry of Deeds
before August 1, 1996.
Single Family House Project
on lot recorded on or AFTER August 1, 1996 -- The scope of alternatives
will be limited to the lot, the subdivided lots, and any adjacent lots
formerly or presently owned by the same owner.
Residential Subdivisions -- The scope of
alternatives will be limited to the original parcel and the subdivided parcels,
any adjacent parcels, and any other land which can be reasonably obtained
(excluding subdivisions that filed a definitive plan on or before August
1, 1996).
Commercial Development -- the scope of alternatives
are lots that can accommodate the project purpose, appropriately zoned, available
for sale, within the town at the time of application, or if no such lot,
a lot located in the market area that meets all other specifications.
Exemptions (Grandfathering): The Rivers Act
specifically exempts (or grandfathers) certain projects. Most projects that
are exempted from complying with the two-pronged riverfront area performance
standards fall into one of the following three categories:
A draft environmental impact report (EIR) has been prepared and submitted
before November 1, 1996;
A building permit conforming to local requirements has been filed on
or before October 1, 1996 and granted on or before April 1, 1997; or
A definitive subdivision plan has been approved or endorsed on or before
August 1, 1996.
The Rivers Act also does not apply to any excavation, structure, road,
clearing, driveway, landscaping, utility lines, or rail lines in existence
as of July 31, 1996. Additional exemptions also exist.
Frequently Asked Questions, By Mass
Assn of REALTORS Legal Counsel
Q: What is the purpose (environmental interests) for creating and regulating
activities within the riverfront area?
A: The purposes for the Rivers Act are to protect the private or public water
supply; to protect the groundwater; to provide flood control; to prevent storm
damage; to prevent pollution; to protect land containing shellfish; to protect
wildlife; and to protect fisheries.
Q: Is the riverfront area always 200 feet from both sides of the river?
A: No. In a majority of circumstances, the riverfront area will be 200 feet
on both sides of the river. However, there are two exceptions. In fourteen
communities (Boston, Brockton, Cambridge, Chelsea, Everett, Fall River, Lawrence,
Lowell, Malden, New Bedford, Somerville, Springfield, Winthrop, and Worcester)
and in densely developed areas (defined as areas of ten acres or more used
for industrial purposes) the riverfront area is reduced to 25 feet.
Q: Does the riverfront area have a buffer beyond the resource area that is
regulated similar to the buffer area in the WPA?
A: No. The Rivers Act specifically states that there is no buffer area beyond
the riverfront area. Only the riverfront area is regulated under the Rivers
Act. This is unlike the WPA which allows for a regulated buffer area of up
to 100 feet beyond the resource area.
Q: What are the procedural requirements for the Rivers Protection Act ?
A: The Rivers Act creates no new procedural requirements
different from the procedural requirements under the WPA. As with the WPA,
the Rivers Act is administered primarily through local conservation commissions.
Any person may ask a local conservation commission to give an Order of
Determination for the proposed project. If the project is deemed to be
within the scope of the Rivers Act, then the project applicant must follow
the designated process (i.e. Notice of Intent, Order of Conditions, Appeals).
Please contact the following DEP offices
with questions about the Massachusetts Rivers Protection Act:
Berkshire County Board of Realtors® -
99 West Street, Suite 200 Pittsfield, MA 01201-5845 413-442-8049 Sandra
J. Carroll, Chief Executive Officer - Sue
O'Brien, Member Services Administrator- Stacy Buhl, Office Clerk
