https://www.lawyersforgoodgovernment.org/wetlands

1. State Definition of "Waters of the State"

”Waters” and ”waters of the commonwealth” is defined as “all waters within the jurisdiction of the commonwealth, including, without limitation, rivers, streams, lakes, ponds, springs, impoundments, estuaries, coastal waters and groundwaters.” Mass. Gen. Laws ch. 21 § 26A. Regulations add “wetlands” and “vernal pools” to the definition of “waters of the commonwealth. 314 Mass. Code Regs. 4.02.

Does the definition include non-Waters of the United States waters?

Yes. The definition includes springs, groundwaters, and vernal pools. It also includes “streams,” “wetlands,” and “impoundments… without limitation.”

Are there exceptions within this definition of “waters of the state”?

No. There are no specific exceptions.

Is there any relevant case law?

No.

Are there any relevant pending cases?

No.

2. State Definition of "Wetlands"

The Wetlands Protection Act defines coastal and freshwater wetlands separately.

Coastal wetlands are “any bank, marsh, swamp, meadow, flat or other lowland subject to tidal action or coastal storm flowage.” Mass. Gen. Laws ch. 131, § 40.

Freshwater wetlands are “wet meadows, marshes, swamps, bogs, areas where the groundwater, flowing or standing surface water or ice provide a significant part of the supporting substrate for a plant community for at least five months of the year; emergent and submergent plant communities in inland waters; that portion of any bank which touches any inland waters.” Mass. Gen. Laws ch. 131, § 40.

The term "inland wetlands" also includes the definition of "freshwater wetlands" found in section 40, and it shall further include that portion of any bank which touches any inland waters of any freshwater wetland, and any freshwater wetland subject to flooding. Mass. Gen. Laws ch. 131, § 40A.

3. State Agencies Administering Protections to Wetlands

Massachusetts Department of Environmental Protection: The Massachusetts Department of Environmental Protection (MassDEP) is the primary authority for wetlands protection under the Wetlands Protection Act. MassDEP creates regulations, enforces violations, and hears appeals.

Conservation Commissions: Every city and town in the state has a conservation commission, enabled by the Conservation Commission Act. The commissions are supported by the Massachusetts Association of Conservation Commissions (MACC). Conservation commissions have between three and seven volunteer members. The town meeting or city council sets the number. Terms are three years in length. Approximately 100 of the commissions also have full time employees. The commissions have the primary responsibility for wetland protection and permitting under the Wetlands Protection Act. Under this law, commissions across the state process over eight to ten thousand applications every year for permits to do work in and near wetlands, flood plains, banks, riverfront areas, beaches and surface waters. They also play a role in wetlands conservation.

Massachusetts Estuaries Project: The MEP is a joint program between coastal communities, MassDEP, the School of Marine Science and Technology (SMAST) at the University of Massachusetts, Dartmouth, the US Environmental Protection Agency (EPA) Executive Office of Environmental Affairs, and the Cape Cod Commissions. The program determines current nitrogen loads to southeastern Massachusetts estuaries and evaluates reductions that would be necessary to support healthy ecosystems.

Division of Ecological Restoration: DER initiates projects that restore Massachusetts’s rivers, streams, wetlands, and watersheds. DER partners with nonprofits, towns, individuals, and groups to implement projects. These projects improve habitat for wildlife and provide many benefits to communities. Benefits include reduced flooding, improved water quality, and public safety.

4. Existing Laws Protecting Wetlands

Does the state set water quality standards for wetlands and/or limits on discharges or pollution into state-defined wetlands?

Yes. Wetlands bordering Class A Outstanding Resource Waters are designated Class A Outstanding Resource Waters. Vernal pools are designated Class B Outstanding Resource Waters. All wetlands bordering other Class B, SB or SA Outstanding Resource Waters are designated as Outstanding Resource Waters to the boundary of the defined area. All other wetlands are designated Class B, High Quality Waters for inland waters and Class SA, High Quality Waters for coastal and marine waters.

These “classes” include wetlands and have specific water quality standards in place. 314 Mass. Code Regs. 4.06.

Massachusetts requires a permit for filling, dredging, or altering any freshwater wetland or coastal wetland. Mass. Gen. Laws ch. 131, § 40.

The Department of Environmental Protection limits and prohibits discharges of pollutants to surface waters to assure that surface water quality standards of the receiving waters are protected and maintained or attained. 314 Mass. Code Regs. 3.03 (2024); 314 Mass. Code Regs. 4.02.

Does the state regulate dredge and fill activities into wetland areas?

Yes. Massachusetts promulgated regulations to certify that “proposed discharges of dredged or fill material, dredging, and dredged material disposal in waters of the United States within the Commonwealth comply with the Surface Water Quality Standards and other appropriate requirements of state law.” 314 Mass. Code Regs. 9.01; 314 Mass. Code Regs. 9.02.

Does the state have wetland preservation policies or incentives?

Yes. The Massachusetts Division of Fisheries and Wildlife (MassWildlife) provides grants to owners of "conserved land" to invest in habitat restoration and management. "Conserved lands" are those lands protected by a form of conservation restriction or easement. For more information on applying for these grants click here.

The United States Department of Agriculture also offers its Environmental Quality Incentives Program (EQIP) to Massachusetts agricultural producers and non-industrial forest managers who apply for financial assistance in exchange for implementing conservation practices to their land.

Does the protection allow for a private right of action?

Yes. Massachusetts provides a private right of action for municipalities or landowners (or if 10 persons domiciled in Massachusetts join as plaintiffs, Mass. Gen. Laws ch. 214, § 7A) for dredging or altering land bordering waters. Mass. Gen. Laws ch. 131 § 40.

Does the state offer any alternative or indirect ways to protect wetlands?

Yes. See, e.g., DeSanctis v. Lynn Water & Sewer Comm’n, 666 N.E.2d 1292, 1295 (Mass. 1996) (“A determination of unreasonable use is essential to the successful maintenance of a private nuisance claim for diversion of surface waters. Negligence, while relevant to the reasonableness of LWSC’s use of its land, is not determinative of the existence of a private nuisance.”)

5. Have There Been Any Proposed Changes to Wetlands Protection Within the Last Two Years?

Yes. The Massachusetts Department of Environmental Protection is proposing wetlands-related resilience regulation updates that promote environmental protection and public safety to adapt to climate change. The deadline for public comment was April 30, 2024.

Revisions create:

• New Coastal Floodplain Standards,
• Additional Resilience Provisions, and
• Updated Stormwater Standards for Flood Protection and Water Quality Improvements.

6. What is the Process for Amending Existing State Law Definition?

Massachusetts has statutory and regulatory definitions, so amendment would require state legislation and/or agency rulemaking.

Mass Legal Services has a guide to the legislative process in Massachusetts.

The Massachusetts Secretary of the Commonwealth maintains a Regulations Manual that describes the agency rulemaking process.

7. Protections at the Local Level

"[N]othing contained in 310 CMR 10.00 should be construed as preempting or precluding more stringent protection of wetlands or other natural resource areas by local by-law, ordinance or regulation.” 310 Mass. Code Regs. 10.01(2)

Is this a Home Rule or Dillon Rule State?

Home Rule. The Massachusetts constitution grants home rule to municipalities. Ma. Const. art. LXXXIX.

8. Does this State Offer a Model Policy For Protecting Wetlands?

Yes. Massachusetts features:

• Comprehensive inclusion of surface waters as “waters of the state.” (e.g., No minimum flow rate for streams, no minimum size for wetlands and/or ponds, etc.;
• Dredge and fill permitting, including standards for approval, application to draining and dewatering of wetlands, public and private discharges, compensatory migration; and
• Elimination of any state requirement to be “more stringent” than federal law, or provisions that impose additional hurdles to adopting stronger standards.

The state’s use of local conservation commissions to handle planning, permitting, monitoring, and maintenance of wetlands is a good model to have hands-on engagement at the local level to address issues unique to each municipality. These local conservation commissions are also authorized to enact wetlands more stringent protections than state standards require. Delegation of permitting, monitoring, and enforcements then allows MassDEP to focus on broader statewide priorities and handle larger issues like appeals of commission decisions. Lastly, the state’s separate Office of Coastal Zone Management provides a dedicated team to monitor and evaluate any alteration of wetlands near the coast.