What is it??
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.
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.
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)
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.
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).