Shutesbury Conservation Commission told new wetlands regs exceed authority, could bar new septic systems
SHUTESBURY — Observing that the Conservation Commission’s new draft regulations related to wetlands could put Shutesbury at legal risk, through proposed language that could prohibit new septic systems and any sort of development in and near vernal pools, a Boston attorney is advising the Select Board to instead consider bringing a revised wetlands bylaw to Town Meeting to replace one adopted in 1987.
“Your bylaw is so out of date, and has missed so many updates that have been recommended, that in our opinion it’s legally inadequate and insufficient to support this proposed set of regulations, which are large, long, detailed, comprehensive and aggressive,” Gregor McGregor of McGregor, Legere and Stevens PC told the Select Board Tuesday. “They make a new era in wetlands permitting, and several things are banned outright.”
Instead of continuing on with the draft regulations, McGregor is recommending that Shutesbury look to adopt a model wetlands bylaw from the Massachusetts Association of Conservation Commissions that has been approved by the state attorney general and includes criteria focused on combating climate change.
“This step to update at least to the MACC model has been taken by many, many towns,” McGregor said. “This would solve many of the problematic provisions I’ve identified in the regulations.”
His advice comes as draft updates of regulations related to the town’s Wetlands Protection Bylaw, being developed by the Conservation Commission for the past several months, will be discussed at a virtual public hearing Monday at 7 p.m.
In its background information for the hearing, the commission notes that it is not doing anything out of the ordinary and that its efforts to revise the regulations is aligned with the goals and values of town planning as reflected in the Master Plan, Open Space and Recreation Plan, Hazard Mitigation Plan and Municipal Vulnerability Plan. In addition, the commission earlier in the summer provided the Select Board a draft wetlands bylaw that could be brought to voters.
“Hundreds of communities have adopted similar local wetlands protection bylaws and ordinances that protect wetlands and wildlife habitat more than state law,” the commission writes. “Communities enact such bylaws and ordinances to protect water quantity, quality, wildlife habitat and to combat climate change.”
The revised regulations will be in a separate document from the bylaw that includes permitting procedures, definitions, rules and scientific standards that help the commission to administer the bylaw. The commission also states that regulations need to be updated regularly to keep up with evolving science, law, and best practices, and that it has brought in technical advisers and consultants with expertise, including a legal review by attorney Elisabeth Goodman of Cain, Hibbard & Myers of Williamstown.
Goodman told the commission at a meeting Thursday that the regulations are detailed, but taken together are helpful and support the work of the commission, whose mission is to protect wetlands resources.
“I don’t believe the regulations are detrimental or too aggressive or harm your town’s efforts to control wetlands values,” Goodman said. “I think they are more helpful than having no regulations.”
Goodman said towns can exceed the control and authority of the state and that Shutesbury has resource areas that are not protected under state regulations. Goodman said no judge would rule against the town because the commission has exceeded its mission.
“If he does, it’s not because you did it wrong,” Goodman said. “You are doing it right.”
By adopting more exemptions and instituting a small project permit, the commission also states that project planning for landowners will become easier. The new regulations should also lower overall costs for permitting for many projects, while ensuring that complex projects receive appropriate attention.
McGregor said the focus of his review was on legal issues that could lead to claims and appeals, make enforcement difficult, or leave the town vulnerable to have to defend any challenges to the bylaw or decisions made under it. He said there were many favorable changes since his first examination.
“There are, however, remaining issues in the current draft, despite the several improvements that I compliment the commission on,” McGregor said. “The remaining issues are many, and serious.”
He then gave the Select Board information about each of these, such as regulations stating that vernal pools occur everywhere in town and that no work is allowed within 100 feet.
“These regulations announce that virtually nothing will be allowed in vernal pools or the nearby area called the aura. In other words, there’s a presumed prohibition,” McGregor said. “It’s unusual. I’ve never seen it that you need a permit to do anything new in the aura, but we can’t let you do it.”
The burden of proof on applicants would be revised to provide a higher bar of “clear and convincing evidence.” “In our opinion, this is beyond the authority in the bylaw, which is not that strict. That is holding applicants to a stricter standard than the bylaw allows,” McGregor said.
Regulations would also prohibit any impact by anybody on listed endangered species in Massachusetts. “This makes the commission into a wildlife and plant protection board, and is likely to be challenged as being beyond the authority of the bylaw,” McGregor said, adding that the state endangered species program “is not this draconian and unrealistic.”
There is also a seeming ban on all septic systems in resource areas and their buffers, going further than the Department of Environmental Protection’s Ttitle 5 regulations. “This is a very large geographic area in your town. This is a ban on all septic systems.” McGregor said.