MassDEP To ‘Take a Second Look’ at Development Proposals Near Wetlands

ConCom updates regulation to add a time limit for proving a stream is intermittent

The Tewksbury Conservation Commission met earlier this week with all members present. 

Several continuances were granted, including one Civil Design Consultants requested on behalf of L & G Main Street LLC, developer of the apartment building on the MacLellan Oil site at 1167-87 Main St. that was recently approved by the Planning Board.

Tewksbury Conservation Agent Joe Fontaine clarified that one reason for continuances is that residents have contacted MassDEP directly about flooding concerns, including for Yvon Cormier’s proposed development on 18 acres on Vale St., 12 of which are wetlands. There’s also concern over Darby Brook, which runs through the MacLellan property. 

“With the inquiry to MassDEP, it caused them to take a second look at that site and what was submitted,” said Fontaine. “They’re just going to take a closer look at how the riverfront area regulations apply.”

There has been ongoing discussion over whether Darby Brook, a stream on the Main St. property that eventually flows into the Shawsheen River, is intermittent or perennial. An intermittent stream flows only during certain times of the year, typically during periods of rainfall or snowmelt, and may completely dry up during drier seasons. A stream must be dry for four consecutive days to be designated intermittent. 

A perennial stream flows continuously throughout the year, regardless of the season. The photos used to assert that Darby Brook is intermittent were from 2015. However, abutters showed proof that the stream runs all the time and in fact regularly floods the parking lot of Cottage Place.

Until this week, regulations didn’t specify how current photos needed to be. That changed when the ConCom voted unanimously to adopt a new regulation that establishes a three-year window in which an applicant can submit evidence that a stream is not, in fact, perennial. Having proof of four consecutive dry days in 2020 or earlier will no longer suffice.

MassDEP is also moving to use wetlands data from NOAA, which updates every month, versus more static sources. There is a material difference in development guidelines for a perennial stream.

Image above is from the USGS Wetlands Mapper

According to Fontaine, currently, the state regulation (310 CMR 10.00) allows an applicant to submit evidence proving that an otherwise presumed perennial stream is actually intermittent. However, the issue with this regulation is that it does not specify a timeframe in which evidence can be collected and used in an application. The town’s new regulation is aimed at addressing this issue. 

“This timeframe is three years from the date in which an application is submitted to the Commission,” said Fontaine.

Chair Dan Ronan did clarify that applications currently in play would not be subject to the new, more prescriptive, rule. 

“The point of changing this is to make sure that it’s updated data that we’re looking at,” said member Linda Darveau. “It doesn’t matter what happened five years ago, or eight years ago, or whatever, because the climate is changing so rapidly.”

The new regulation is below. Tewksbury bylaws allow the commission to promulgate regulations that expand on the existing bylaw without going before Town Meeting.

“The new rules remain consistent with state regulation but add clarification that data used for determinations must be relatively current,” said Fontaine.