By Elisabeth Goodman, Cain
Hibbard & Myers, PC.
Summer is a good time to focus on
our lakes. The real estate lawyer
practicing in Massachusetts should be aware of what activities in and near
lakes require permits and how application of herbicides and control of invasive
species are regulated in Massachusetts. Monitoring and treatment of lakes is
expensive. Lake districts are an
effective mechanism for providing governance for lakes and helping to fund lake
management by way of taxation.
Lakes and Ponds are bodies of
freshwater that contain standing water year round, with flora and fauna adapted
to the permanent body of water. Important
criteria that define these water bodies include underlying geology, surface
area, volume of water, flushing rate and watershed area. A Great Pond is defined as any pond or lake
that contained more than 10 acres in its natural state. Ponds that once
measured 10 or more acres in their natural state, but which are now smaller,
are still considered Great Ponds. DEP has a list of Great Ponds, which can be
found at http://www.mass.gov/eea/agencies/massdep/water/watersheds/massachusetts-great-ponds-list.html
Many large lakes are not Great Ponds because they are totally manmade (e.g.,
the Quabbin, and Wachusett).
There is no definition of a lake
in the Wetlands Protection Act, G.L. c. 131 §40. A lake is defined in the regulations at 310
CMR 10.04 as “any open body of fresh water with surface area of 10 acres or
more, and shall include great ponds.” Inland
ponds have a detailed definition in the Wetlands regulations starting with
requirement of surface area of at least 10,000 square feet. Several protected wetland resource areas must be
examined when activities occur in and near lakes, including land under water,
310 CMR 10.56, and banks, defined at 310 CMR 10.54. The definition of a bank includes the lower
boundary which is defined as the mean annual low flow level. For lakes with historic drawdowns, the lower
boundary of the bank extends to the low flow during the drawdown. It is useful to know this because the
restrictions for work on banks are easier to deal with than the restrictions
for working on land under water.
We used to file for work in lakes
and ponds as a resource improvement project under 310 CMR 10.53(4). Now, these projects need to be submitted as
an Ecological Restoration limited project. This includes publishing in
the Environmental Monitor and getting pre-approved by NHESP. Also these Ecological Restoration projects
require submission of an Appendix A. The
DEP will advise the Conservation Commission that it needs to review 310 CMR
10.11, 310 CMR 10.12 and 310 CMR 10.53(4)(e)5 as well as the submitted Appendix
A. These projects still need to conform
to the FGEIR and the Practical Guide to Lake Management in Massachusetts. See In the Matter of Craig Campbell,
2010 WL 2209452 (Mass. Dept. Env. Prot.)(2010), where DEP approved a multi-year program for the
application of herbicides to reduce nuisance levels of aquatic vegetation in a
shallow 1.5 acre pond. This decision includes extensive review of the criteria
considered in interpreting guidance on aquatic land management.
A number of communities are
experiencing similar problems regarding lake management. For many years the state has done no
evaluations or management of many Great Ponds.
Nutrient and other contamination from watersheds cross over town
boundaries. The costs of water quality sampling and control of invasive species
is high. Controlling invasive species when there is public boat access can be
difficult. The cost of maintaining and repairing dams is extraordinary.
To address these problems, some lake
residents are turning to the state legislature seeking approval for the
creation of a lake district. A lake
district is a governmental body, like a municipality. To create a lake
district, first the town adopts the provisions of the special act, then the special
act is approved by the state legislature, which is then signed by the governor.
A district has to comply with the provisions of the special act, but usually
they are run by a committee called a Prudential Committee. The property owners
along the lake, called the Proprietors of the district, vote at an annual town
meeting on the budget and other matters for the district.
The great advantage of creating a
lake district is that the district can assess taxes and use them as a source of
funds. The taxes are based on the annual
budget adopted by the Proprietors of the district. Another advantage of a district is that it can
qualify for grants as a governmental body.
