Slonnwater and Sediment 



SPECIFIC PROGRAM FINDINGS AND CONCERNS 



DEM WETLANDS REGULATION UNDER THE FRESHWATER WETLANDS ACT 

 Findings and Concerns 

 Jurisdictional Issues 



The Wetlands Section of DEM regulates the altering of wetlands and has authority to 

 require that a fifty foot buffer be maintained around swamps, marshes, ponds, and bogs. 

 Activities inducing "alteration" include any filling, excavating, grading, draining, or 

 construction in or near wetiands, and the ctischarge of any effluent into a wetiand. The 

 definition of "wetiands" is broad, covering areas of "storm flowage," and including areas 

 within 100 feet of streams less than 10 feet in width and within 200 feet of streams greater 

 than 10 feet in width. All areas witiiin the 100 year floodplain are also within die 

 program's regulatory jurisdiction. The Wetiands Section involves CRMC in permit review 

 where the area of concern is within the coastal contiguous zone. 



The broad definition of wetiands provided in the Act gives the Wetiands Section 

 authority to consider effects of development on interconnected components of wetiand 

 systems. In the past, evaluation of buffer corridors has been used as a context in which to 

 look at the larger wetiand setting in which an alteration is proposed. The Wetiands 

 Section's authority to take this approach has been confirmed by DEM legal staff. 

 Consideration of impacts on floodplains and flowage characteristics also clearly provides 

 authority to address aquifer protection, as wetlands and recharge areas are inextricably 

 connected (Section 2-1-18). 



In practice, however, permits issued for projects of limited scope and 

 conditioned on the basis of laterally measured buffer zones cannot 

 adequately address cumulative effects on interconnected wetland systems. 



The fifty foot buffer, in particular, may frequentiy be completely inadequate to protect 

 wetiands from non-point source impacts, and provides a smaller separation distance than 

 cuirentiy required for resource separation by other DEM programs (e.g., ISDS separation 

 to water supply sources). Although it is proper for the Wetiands Section to consider an 

 overall plan for a tract in evaluating impacts, no legal mechanism exists to allow the Section 

 to review cumulative impacts. 



The limitations on review of cumulative impacts are exacerbated by the 

 fact that DEM jurisdiction in most wetland types is limited by the size of 

 the resource. Jurisdiction extends to bogs of any size, but only to ft-eshwater marshes 

 an acre or more in size, ponds 1/4 acre or more in size, and wooded swamps exceeding 

 three acres in area. Because diese systems are dynamic, and respond to seasonal and 

 cUmatic factors, boundary definitions artificially restrict consideration of system values, 

 and serve to hmit the broad "area of storm flowage" definition provided by the statute. Size 

 threshold limits present particular problems when interconnected wetland resources are 

 segmented by the classification scheme. For example, a marsh fringe around a pond may 

 extend more than 50 feet from the open water of the pond, but be less than one acre in size, 

 limiting DEM's jurisdiction over a potentially critical protective zone. 



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