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Shop Talk - Wetland or Detention Basin, Timing is Everything

Shop Talk - Wetland or Detention Basin, Timing is Everything

Do you own or are you planning to acquire a Massachusetts property with a detention basin that has turned into a wetland?  When a detention basin is not maintained for several years, there can be standing water, woody growth, wetland plants, and even animals living within what was previously an engineered and constructed stormwater management facility.  In addition to the drainage issues that may result from deferred maintenance, there are legal implications for landowners if a detention basin becomes classified as a wetland area.

Wetlands are protected under the Wetlands Protection Act (310 CMR 10.00).  Alteration of wetlands or even work within 100 feet of a wetland area requires an application to the Massachusetts Department of Environmental Protection (MA DEP).  Protecting wetlands is a good thing, but being unable to modify or improve a detention basin because of a jurisdictional status will affect the redevelopment potential of a property and its value.  However, landowners should not be so quick to concede that a detention basin has become a jurisdictional wetland without first reviewing the timing.

Since October of 2014, there has been a section within the Wetlands Protection Act that addresses the jurisdictional status of detention basins and it all has to do with timing.  310 CMR 10.02(2)(c) provides that stormwater management systems that were designed, constructed, and installed after November 18, 1996, do not create jurisdictional resources or buffer zones.  The understanding here is that the MA DEP Stormwater Policy was in effect in 1996 and presumes that the detention basin was constructed in accordance with the Policy.  Deferred maintenance, regardless of how severe, does not negate this section of the Act.

Are you working with an engineering firm that is familiar with the nuances of the Massachusetts Wetlands Protection Act?  If not, you may unknowingly be giving up land development rights that could affect the long-term development potential of your property. 

If you are thinking about redeveloping an existing property, purchasing a new piece of land, or just want to know your legal rights when it comes to the Wetlands Protection Act, contact us and we will help you navigate through the permitting process.