Intermittent versus perennial is apparently not a simple matter of observation when it comes time to vet a construction project near a stream.
In responding to applicant W. Dale Jones’ Abbreviated Notice of Resource Area Delineation (ANRAD) for the review and confirmation of the wetland resource area boundaries at the vacant lot on Register Road, the Marion Conservation Commission met on March 10 and took a deeper dive into an area uncommon to the commission’s routine cases.
“We’re a coastal town. We don’t deal with riverfront as much as some other towns might do,” said Shaun Walsh, chairman of the Conservation Commission. The wetland flags look reasonable to him, he said, but added, “I’m struggling with the stream.”
Following a second site visit on March 6, consultant Bob Gray addressed the March 10 meeting in which he defined wetlands, referring to the typical red maple swamp and pit-and-mound topography. Gray alluded to the “magical 50-percent point” where the topography dictates the planting of flags.
Gray said he began the wetland delineation at the rear of the site and Jones’ property, comparing soil conditions in the wetland with those in the upland. He described bright soils in the upland and black or gray soils in the wetland before planting flags.
If the commission issues an Order of Resource Area Delineation (ORAD), it means the wetland area delineation on record is accurate, but there are ramifications to the classification of the stream.
“If it’s an intermittent stream, then there is no 200-foot riverfront area. If it is a perennial stream, then there is a 200-foot riverfront area associated with that,” said Walsh, noting that the conclusion can potentially impact what can be done on the site. “I want to make sure that we get it right; that’s where I’m coming from on that.”
Jones said he would not have bought it if he knew he was going to have a problem with the stream. He told the commission he bought the lot sometime around 1978; Walsh told him Marion did not have riverfront regulations at that time.
“I don’t want to issue something that Mass DEP might take a look at and decide to appeal to themselves,” said Walsh. “I always feel that, if you can get it right at the Conservation Commission level without an appeal to DEP, you’re going to get your decision sooner rather than later and at less expense rather than more expense.”
The regulations, Walsh summarized, say that if there is a river, there is a riverfront area, and a stream is a river when it’s a perennial stream (i.e., flowing throughout the year). If shown as a perennial stream on the most-recent USGS map, then it’s perennial and, therefore, a river with riverfront area. Conversely, if it is not thusly shown on the USGS map, it’s not a river. The caveat, said Walsh, is when the stream is shown as perennial, but there are documented field observations, and a DEP official can validate that the stream is, in fact, intermittent.
“And that’s where I am right now,” said Walsh.
Gray, ConCom’s adviser on the matter, suggested that the commission issue an ORAD acknowledging the stream as perennial instead of measuring the application against the performance standards required by the commission for the lot in the current situation. An inspection by DEP personnel, he suggested, could take a month or more just to accomplish.
Despite being listed as intermittent, Gray said he is comfortable determining the stream to be perennial based on the USGS topography map.
Jones said he wants to settle the matter as soon as he can.
Per Gray’s suggestion, Walsh said ConCom would reach out to the state’s wetland circuit rider and continue the public hearing two weeks out to a 7:00 pm hearing on Wednesday, March 24.
Two Request for Determination of Applicability filings continued from February 18 were green-lighted without the need to file a notice of intent.
ConCom voted to issue a Negative 2 determination of applicability for applicant Fikile Portia Ndlovu’s construction of a single-family house in accordance with National Flood Insurance Standards within a FEMA flood zone AE16 at Wilson Road.
ConCom also voted to issue a Negative 3 determination of applicability for the shed that Michael Isabelle intends to build on the outer limits to the buffer zone to a coastal bank at 196 Point Road.
The next meeting of the Marion Conservation Commission is scheduled for Wednesday, March 24, at 7:00 pm.
Marion Conservation Commission
By Mick Colageo