Town of Becket - Conservation Commission Minutes 3/13/08

Kathy says that one of the things that she and Mark have discussed is how to write an E/O correctly. Mark says that he’s been pushing the commission for a year to follow the guidance on the cd that they have in terms of writing E/O’s. He says part of the problem is that commissions write E/O’s that aren’t enforceable. He gives an example of one commission that issued an E/O for tree cutting in a riverfront; a stop work order was issued and the applicant was required to file a NOI. Their exact language was to file an NOI by such-and-such a date. The applicant did submit an NOI by such-and-such a date, however, all he had on it was his name, address, location of the project, and not much else. He was in compliance with the E/O even though the NOI was not done properly. Mark says that if you want a proper NOI submitted then say, “Submit a NOI that’s in compliance with the Wetlands Protection Act and regulations.” He says there is a model E/O and model restoration language on the cd. Mercedes asks if this information is available online and Mark says, no, it is only on the cd that the DEP has made available to commissions. Kathy says that she had distributed this information to commissioners at one time but she could do it again.

Mark stresses the level of specificity that must be maintained when issuing E/O’s. He gives another example of the extent and time of activity. He says, “Just don’t put, ‘filling in a wetland’. That’s not adequate for us to do anything with. You say, ‘putting in a garage foundation in bordering vegetated wetlands by a bulldozer, approximate alteration 1500 square feet’.” He says something like that can be worked with – that his boss and he look at all the E/O’s that come in to determine if they’re significant enough for them to get involved in. Or, if the commission asks them for assistance, they then have something good to go on. He goes on to say that what the commission wants done also needs to be specified. He says, “You just don’t say, ‘submit a restoration plan by a certain date’, you expand on that. You say you want a wetlands scientist to determine the actual extent of the alteration . . . you can approve or disapprove of who’s doing it . . .” Kathy has the list which she briefly reviews. Mark says, “You have to set a date because once they blow off one date they’re in violation of the E/O and we can jump in fast. We may not, depending on staff time, but if they blow off one date, they’re in violation of the E/O. Where if you just put, ‘Have a restoration plan done by this date’ . . . you may not even agree with the restoration plan, so then where are you? So you’ve got to be specific in everything you ask for, whether it’s an E/O or an Emergency Permit or an Order of Conditions or a determination. Whatever you guys issue, you have to be specific.”

Mark relates a story of when he was Chair of a commission that issued an Order of Conditions that required ten trees to be planted. At the hearing, the applicant agreed to plant 10’ tall red maples. This was not required in the order though and what he actually planted was little “Charlie Brown” white pines. The applicant was not in violation of the order even though the red maples had been verbally agreed to – it was not in the written order. Mercedes recounts a case where the applicant was required to plant a certain number of trees, a certain height and a certain type; he dug holes, threw the trees in, and left them. They died but he had done what had been required. Mark says that this also is a good point.

Kathy speaks of requiring a monitoring period. Marty asks what happens if you go back after two years and all the trees are dead. Mark asks him to clarify – is he talking about bvw restoration or just trees the commission wants planted? Kathy says, “This one was just a restoration.” Mark says, “So that was actually resource area alteration. If you require trees in there . . . there’s nothing preventing you from saying you want two growing seasons for all vegetation before you’ll issue a Certificate of Compliance.” He says that all the DEP conditions that they’ve ever used are also included on the cd so if commissioners want to pick and choose the DEP vetted special conditions then they could use those. There is a whole file on the cd of all the DEP’s standard buffer zone special conditions.

Kathy asks about allowing an applicant to do other work on their property during the time that it’s being monitored under an Order of Conditions. Mark says other work can be allowed “if it’s in compliance with the order”. Kathy asks, “But that should be written in . . .?” Mark asks for clarification – is she talking Order of Conditions or Enforcement Order? She says Order of Conditions. Mark responds, “Unless you revoke the order and say ‘no work shall take place until this is done’, there’s nothing stopping them from continuing their work. It’s your call. Part of the problem that a lot of towns have is that all the orders you write, you don’t always get out there to monitor what’s going on. There’s nothing stopping you from including in the order that every six months or some time during the life of the order that they have to submit monitoring reports, or just reports of construction activity.”

Marty asks if the commission must get permission to go on the property to check this out. Mark says, “Not for an Order of Conditions as long as you do it during normal business hours – that’s our advice.” Scott asks how about on an E/O and Mark replies that “an Enforcement Order does not give you any special rights to go on the property. If you know that there’s a violation but you don’t have permission to go on, you don’t go out.” He goes on to say that the best thing to do is to have a sign-off sheet for the applicant to give signed permission to go on the property. He says a lot of towns are doing that now, presenting the sign-off sheet for a signature as soon as they walk in the door because the only time you legally have permission to go on somebody’s property is when you have the Order of Conditions. He says, “Somebody can submit an RDA to you; somebody can submit a Notice of Intent to you. This does not automatically give you the right to go on their property. They can say, ‘Here’s a Notice of Intent but you can’t go on my property.’ They legally can say that.”

Mark says that a good thing to do is, when issuing an Order of Conditions, “have one of the conditions be a pre-construction conference. At the pre-construction conference they give you a copy of proof of recording at the Registry of Deeds and you also get a letter from the applicant and a letter from the contractor saying that they have read and they understand the Order of Conditions. That way they have no basis for saying, ‘Well, I didn’t know’.” There is a brief discussion of this and Kathy says it could be incorporated into the commission’s Standard Conditions.

Mercedes says here that, “Becket is different than even Stockbridge or a lot of the towns that you [Mark] would be most involved with in that we have the headwaters of three different rivers. So we’ve got really pristine waters and on top of that, we have small, incremental impacts. We don’t have shopping centers. We don’t have subdivisions. . . . What we are dealing with are what you guys, in most places, would consider really small and really irrelevant, but in sum total it’s where our impacts are. We’re trying to keep there from being any impacts so even though it might seem like – not so important – to us it might be important because that’s our main impact”. Mark responds, “No, I think altering one square foot of bvw is a significant impact. We don’t look at whether it’s five thousand or ten thousand or one hundred. We look at whether it’s one square foot or more – a shovelful is significant to us.”

Mercedes says that she is talking about even things in the buffer zones. Mark says if the commission wants to do more than what the regulations cover, the town needs a bylaw for that. Mercedes replies, “Well, no, it’s in the regulations.” Mark says, “No, it’s not. If you want to work in the buffer zone, there are no general performance standards for work in the buffer zone. All you have is the language found in 10.53(1) which does allow you to do certain things, but there are a lot of towns that want to – for example, in the town of Sturbridge there’s a two hundred foot buffer zone. If you want to work in the two hundred feet you’ve got to file, but not under the Wetlands Protection Act – under the town bylaw. That’s how you get your restrictions. The town of Belchertown has a fifty foot no-disturb buffer.” He says they look at this as a resource area as well.

Purr says here that what is being worked on for Becket’s bylaw is a one hundred foot resource area. Scott says this though does not give any protection under the DEP and Mark concurs, saying that the DEP can not enforce local bylaws. Mercedes agrees, saying that it’s a whole different process and that ultimate enforcement of town bylaws would lie with town counsel. Mark says that if it does come to the point where something that is allowed under the Wetlands Protection Act is not allowed under a town bylaw, that is the type of thing that the commission might want to be sure to put in an Order of Conditions – that it’s allowed under the WPA but denied under local bylaw. He says, “My understanding is that sometimes, in a case like that where the commission denies it under both, where we approve it, the applicant will then take our approval to the superior court judge and the superior court judge says, ‘Well, if it’s good enough for DEP it’s good enough for me’. So just be aware of how you approve or deny things.” He says Janice Stone of South Hadley did a power point for presenting their bylaw at town meeting and he could get us a copy of that.

Mercedes says that she’s been told that under 10.53(1) that the commission has the right to require a vegetated buffer. Mark says, “Yes, but you have to have a legal basis for that. It gives you the criteria you can use,” and he cites some of the criteria that can be used. Mercedes asks, “So we might only consider the first ten or fifteen feet?” Mark replies, “No comment. I can’t get into this.” Mercedes says she just means that could be one criterion that the commission could set up. Mark says, “I can’t even tell you that. All I can say is if you want to get into requiring certain things in the buffer zone, use the provisions in 10.53(1).” Kathy remarks that it’s different for every site and Mark concurs, saying, “Absolutely. It always is. Everything you guys do is site specific.” Mercedes says the commission could have guidelines though, that within a certain distance of the resources, within a certain slope, with all the other things that are criteria. Mark says, “Right. But some towns are known for having fifty foot no-disturb, but if it’s not in a bylaw it’s not going to stand up before an appeal to DEP.”

Mercedes refers to instances where people are building adjacent to a resource area and want to open up an access to the area. She says, “We need to have some kind of guidance amongst ourselves so that we’re not handling one person completely differently than another for no reason.” She says we need a place to start with a certain amount of feet or some such criteria. Mark references BRPC’s vegetated buffer guide [The Massachusetts Buffer Manual – Using Vegetated Buffers to Protect our Lakes and Rivers], saying, “That’s a good book. If you guys want to use that as your ‘bible’ that’s not a bad idea.” Mercedes replies, “But it doesn’t set it up that way. It tells you how to create a vegetated buffer.” Kathy points out that various things (slope, etc.) are given in the regs to look at and Mark says yes, that 10.53(1) says that. Mercedes says that she’s talking about the commission making up their own guidance based on what’s in 10.53(1) and Mark responds that, “Guidance is not the same as a bylaw.” Mercedes says she understands this; that she should say “policy” of the commission, not guidance. Mark says yes, that a lot of towns have policies and once they get known, many times consultants will take that into account when they present a project. He also points out though that sometimes an applicant will tell the consultant, “Look, this is where I want the house, regardless of policy or regulations,” and the consultant will then present it to the commission as per the homeowner. He says in a case like this the commission can’t say, “We have a fifty foot policy,” because that won’t hold up on appeal.

Marty says then, that what Mark is saying is that each one has to be hammered out and Mark agrees, saying, “Using the regulations as guidance, yes.” Mercedes says, “I’m saying that I think we could have a policy that, in general, within eight feet of the resource area, or ten feet . . .” Mark says, “But sometimes seventy-five feet might be what you want and on other sites it might only be five feet that you want.” Mercedes says, “I’ve been to trainings where the best people in the field said, ‘If I were king there’d be a three hundred foot buffer protected along every river’.” Mark refers to a study along the Amazon where they said a four hundred foot riparian corridor. Mercedes concedes that the ideal amount can not be protected, “but at the very least if we could say ten feet from the lake, in stead of having a lawn down to the lake and getting erosion . . . for filtration and wildlife habitat as well. There are a lot of interests that we’re supposed to protect that are protected by having some kind of naturally vegetated buffer.”

Mark points out that one of the files on the cd is one called Buffer Zones and Beyond, Wildlife Use of Habitat Buffer Areas. He says this gets into Massachusetts specific species that need certain buffer distance. He says that knowing a certain species is present that requires a certain buffer – that would be a legal basis for requiring it. Mercedes says in reality though that we don’t have the kind of expertise on the board to ascertain what species are present and Mark adds, “Not only that, you don’t always have the legal ability to ask for a wildlife habitat evaluation – only if you exceed certain thresholds in certain resources areas do you have the ability to ask for it”. Mercedes says that’s when we can have the applicant provide us with a wildlife habitat evaluation by a professional in the process of the evaluation. She says, “We do sometimes have that right.” Mark says, “Riverfront, over five thousand square feet, fifty feet or ten percent or less of bank resource area, ten year flood plain issues you can require it.” Mercedes asks about presence of rare or endangered species. Mark says, “That’s different. Then it’s up to Natural Heritage to decide whether or not the project will be evaluated.” Mercedes says, “But our regs say that we have to consider the wildlife habitat significant. Does that mean that we can require an evaluation of habitat?” Mark replies, “Only if thresholds are exceeded.” He says 10.59 is basically dedicated to Natural Heritage and endangered species issues.

Marty asks if there aren’t regulations to prevent someone who’s building a house from taking their lawn right down to a stream. Mark replies, “Absolutely not. The only time you get that kind of authority is if it’s a perennial stream.” Marty says he’s talking about a lake and Mark says that for a lake, all a commission has is the language found in 10.53(1). Mercedes says then, “So we need to go to the drawing board based on that language and come up with some kind of policy that says, right off the bat, in a general way, that we require a naturally vegetated buffer back so far from the resource area and maybe it can be based on slope that is more than . . .” Mark reads here from 10.53(1):

For work in the buffer zone subject to review [under 310 CMR 10.02(2)(b)3.], the issuing authority shall impose conditions to protect the interests of the Act identified for the adjacent resource area. The potential for adverse impacts to resource areas from work in the buffer zone may increase with the extent of the work and the proximity to the resource area. The issuing authority may consider the characteristics of the buffer zone, such as the presence of steep slopes, that may increase the potential for adverse impacts on resource areas. Conditions may include limitations on the scope and location of work in the buffer zone as necessary to avoid alteration of resource areas. The issuing authority may require erosion and sedimentation controls during construction, a clear limit of work, and the preservation of natural vegetation adjacent to the resource area and/or other measures commensurate with the scope and location of the work within the buffer zone to protect the interests of the Act. Where a buffer zone has already been developed, the issuing authority may consider the extent of existing development in its review of subsequent proposed work and, where prior development is extensive, may consider measures such as the restoration of natural vegetation

He says, “You’ve got the language in there but, again, if you want to use it you’ve got to be specific in terms of why you’re requiring it.” He emphasizes, “Use the language that is there.” Here Purr comments that when the new bylaw is passed the whole hundred foot area will be a resource area in itself – not just a buffer so then for people to do anything in that area they would first have to demonstrate to the commission why it would be acceptable. There is a discussion here of when the bylaw will be ready to go before the town. Mark comments that when he was chair of the West Springfield commission the one thing he wanted above all else was the ability to require that a bond be posted. Kathy tells him that has been included in the bylaw we are constructing. Mark asks if he sent us Richmond’s bylaw and is told that yes, that was one of the ones we worked from and that Bruce Garlow attended the one public meeting that was already held.

Mercedes speaks to the issue of people complaining that they’ve lost land to erosion where they have lawn going right to the shoreline. She gives an example of such an applicant who recently came before the commission wanting to put an addition on his house and says she would like to put a condition on such projects requiring that they allow the natural vegetation to grow back except for “some opening to allow them the access . . . we’ve been talking about up to twenty feet of width . . . that’s a lot, maybe it doesn’t have to be that much, but otherwise, maybe ten feet back, natural vegetation along the bank. Every place has at least some slope. I think if we start from that and we go out there and see a lot more slope we could require that it go back further. Or if we see somebody who’s got none – hardly any slope, we could bring it down. Just something like that, where we have a starting point – that’s our policy and we adjust it based on the application. Does that make sense?” Mark replies, “No comment. I can’t comment on widths or anything like that. All I can do is comment on ‘Use the regulations’.”

Mercedes asks if the other commissioners are in favor of doing this. Marty replies that he thinks it makes sense. Scott says he thinks it’s a good thing to promote but could be a hard sell to people who are used to having lawn down to the sand or down to the bank. Marty opines that a lot of it is in explaining it to people because they don’t understand. Mercedes says it would be easier with new construction. There is a general discussion of requesting that applicants do this. Marty asks about people wanting to put in a sand beach and Mark says they have to file with conservation. Marty asks, “And we can say no?” Mark replies, “If you have a legal basis for it.” Mercedes says, “I thought under the regs there was . . . because you’re altering the . . .” Mark says, “They have to file a Notice of Intent. That’s all I’m saying.” Mercedes continues, “But I thought it said specifically in the regs that that couldn’t be done.” Mark asks, “Where does it say that?” Mercedes says she doesn’t remember. Mark elaborates, saying, “When you work in a resource area you have to file a Notice of Intent which means you must comply with the general performance standards for whatever resource area’s being worked in.”

There is more discussion of asking applicants to take certain steps whether the new bylaw passes or not and working to educate people about why this is helpful and positive. Mercedes speaks again of having a policy. Scott says the policy could be something as simple as just asking for some sort of improvement on every application that comes before the commission. Mercedes wants standard distances. Josh says that someone on the commission needs to take a first pass at writing such a policy. Mercedes volunteers to write a first draft. Josh asks for a show of hands how many think this would be a good step to take. Four hands are raised. Josh suggests that it could be passed around via email. Mark cautions that no specific projects should ever be referenced in email communications and that, in fact, town counsel should be consulted before doing it by email. Josh says then that Mercedes can email the draft to all and then it can be addressed at the next public meeting.

Scott recalls that at the last meeting with Mark the issue of requiring engineered drawings was discussed. Kathy says they would always be required for complex projects. There is a discussion of where the threshold is. Mercedes clarifies that the commission only has the right to require engineered drawings for NOI’s and Kathy says if it’s so complex that the commission wants engineered drawings then it should be an NOI anyway – not an RDA. There is agreement that some things that would definitely require engineered drawings are:

There is discussion of what kind of engineer the commission might require to do these drawings. Mark says, “You can require whatever kind of engineering you want. For example, if somebody’s working in a stream, you want a hydrogeologist. . . . I did a Notice of Intent review for one town and I actually said, ‘this is the kind of consultant/engineer you want: A Fluvial Geomorphologist’.” Mercedes says that a policy of this type is important to help the agent know what to require of applicants. Scott will email something to everyone on this for discussion at the April meeting.

Discussion now moves to what should be checked when an application comes in. Mercedes brings up NHESP, saying that we don’t currently have the ability to do GIS. Mark says that yes we do – that all the data layers can be accessed on the Mass GIS web site. Mercedes asks, “So, Kathy, are you able to do that now? Look at the GIS data layers?” Mark says, “It’s easier if you have your own self contained . . .” Kathy says, “Some of them have been sending in the actual photos themselves and I can’t layer it so it doesn’t do me any good to do any more than what they send me.”

Mercedes says then that it seems we have three choices and asks where the commission is on getting a laptop and sending someone for training. Josh thinks that more than just the minimum required equipment should be obtained. Mark says that a minimum of double the recommended system should be gotten. Mercedes is cautious of spending too much money on this out of the wetlands fund in case it’s needed for other things. Mark says, “Don’t forget, you can always hire a third party review based on Mass General Law Chapter 44 §53G.” Mercedes agrees but says, “Then that requires us to require that they hire or we hire the professional we think should be hired at their expense . . . and that isn’t going to fly very easily now with most applicants.” Scott says he can work with Kathy to get the right equipment. There is some uncertainty about the purchase procedure. Kathy says she hasn’t asked yet, but will. Mark says the specs are on the Mass GIS web site.

Mercedes and Scott examine the maps on the wall. Mercedes says, “I don’t think we’re checking NHESP now, or have been.” Kathy says, “I’ve been looking at it,” and continues, “Basically what I was told when I took the job is first you check the name of the person; you make sure it’s the right owner of the property; you check the map and lot number; you check all that kind of thing. Then you go down and there’s fees to check and then you read through it and make sure that they have filled in the application and make sure they have the plans there. Then look at this map [over her desk] really quickly and see if it looks like it’s in one of those places. And if it’s done by a professional they usually always check that . . . but it’s those basic things you go down through and check. Can I catch everything? No. Because there’s things that I might think are alright that the commission’s going to ask questions about.” There is discussion of the maps on the wall and what information they provide.

Mercedes asks, “Is there a certain data layer, Mark, that GIS automatically provides or do we have to decide what our data layer is?” Mark responds, “No, you’ll get all the data layers . . . for example the primary one they’re focused on is the Open Space because the primary reason for giving you guys a break on the software is because the open space information in Massachusetts is poor – it’s out of date. So your getting the software at a reduced price is because they’re going to have you guys update . . . you get a good price, you give them the open space information for Becket. So basically it’s a two year contract. The first year you basically learn the software and you can still do what you need to do in terms of acquiring the open space information and then eventually, starting the second year you’re supposed to be shooting to Boston the open space information on the town.” Scott wonders how the commission would get that information and Mark says, “In a lot of towns now the assessor’s information has been updated and you can use that information. It might be as simple as digitizing – and they’ll teach you how to do it – around this open space and that goes to Boston. Or it might be just walking in the field with a handheld GPS, uploading the information to the computer and shipping it to Boston.” Purr asks, “What do these maps give us?” Mark says he couldn’t do his job without GIS. Kathy shows a GIS map that was presented at the last meeting.

Mercedes asks again about data layers and Mark lists the data layers he has: National Wetlands Inventory . . . List of Impaired Waters, USGS Hydrography . . . all the dams, Open Space information, all the wetland overlays, ACEC, Natural Heritage file map, Core Habitats, Certified Vernal Pools, Potential Vernal Pools, Estimated Habitat, Priority Habitat, Flood Plains, Wetlands Change, OIW’s, all the wetlands overlays, drinking water data, aerial photos 2001 and 2005; there’s also 1997 black and white. He adds that this spring they’re going to fly over the whole state and that’ll be available in the fall.

Mark says, “So you’ll have all these various overlays. You can just pull it up. In fact I always recommend you go to GIS first to see what presumptively is there, and then you go to the site. Because if you go out to the site first you get a preconceived notion of what’s out there. But you want to go: Does it show up here as a perennial stream? As a rare species habitat? Then go out to the site.” Purr asks, “So that’ll tell you if it’s a perennial stream or a rare species habitat?” Mark, “Yes.” Mercedes says, “But the ones that are intermittent can be either though, in reality.” Mark says, “Yes, but you have to start with the presumption.” Mercedes asks, “Are we supposed to presume that a stream is intermittent?” Mark says, “The presumption is, if it shows up as a dark blue or a solid blue, depending on the age of the map, it’s presumptively intermittent. [Per email rec’d from Mark on 3/17/08: He misspoke here – he meant to say, “dark blue or solid blue is perennial”] If it shows up as an intermittent stream, dashed blue or light blue, it’s presumptively intermittent; however you can tell the applicant to prove one way or the other which it is.”

Josh asks for a clarification of “open space”. Mark says, “One is land with conservation restrictions, another is agricultural preservation restriction, other legal interest . . . federal open space, DCR parks, DCR fish & game, urban parks & recreation, water supply, DAR, Commonwealth of Mass, county, municipal owned land, land trusts, other conservation organizations, 61, 61A, 61D.” Josh says, “So, broad brush, it’s not developed and it’s not municipal, in-town sort of space.” Mark says, “No, it could be municipal. For example, if you guys owned ten acres behind town hall, that would be open space – municipally owned, but not developed.” Mark says, “So the intent is, Mass GIS in Boston wants to know what’s out there and the information they have is out of date so they’re relying on you guys. In stead of having Mass GIS go out and survey the whole state they’re having the conservation commissions do it.” Josh says he hadn’t realized that would be asked of the commission.

Kathy says that she knows the assessors have quite up-to-date information and Blanche says that she knows that at least one of the assessors is very keen on getting GIS into town hall. Josh asks, “All this GIS stuff for the conservation – it has to be done on the office computer?” Mark replies, “All it says is a conservation commission controlled computer.” Scott says this is the first he’d heard that there was something that had to be done on our end. Kathy says she knew it – that it’s on the paperwork she has. Mark says, “The only down side to not doing it is at the end of the two years they won’t take it away. You won’t use your license. They just won’t provide continuing support.” There is discussion of how we would get information from the assessors. Kathy says, “[Blanche] said that one of the assessors is very up-to-date on GIS.” Blanche clarifies, “I don’t know that she’s up-to-date on it but she’s very keen on having it here.”

Mercedes brings up fees for dock applications. There is considerable discussion about this and when Mark’s input is asked he says, “We leave it up to the commission. There are times where I do a Notice of Intent review and I say I won’t issue the file number because I think the fee is wrong and if they complain there is a provision in the regulations.” He cites the fee appeal guidelines from page 329, 10.03(7)(b)1.a. saying, “It tells you how here, they can appeal.” He reads:

Mark continues on to say that there is no procedure for the setting of fees under the Wetlands Protection Act. There is discussion of when an NOI is needed for a dock and when the conservation commission issues the permit or when the harbor master issues it under Chapter 91. Mercedes says, “In a resource area the rule always is NOI but for docks DEP recommendation is different.” Mark says, “Well, I wouldn’t say ‘recommendation’, I would say in a small enough project – a small enough dock, if you want to do it under an RDA we don’t really have a problem with it. . . . Something like two 4x4’s in the ground and something going out . . . do you really want to have the people go through a Notice of Intent process for something like that?” There is now discussion of where the line on size is drawn. Mark points out that there is no grandfathering on docks but DEP doesn’t have the staff to enforce the licensing.

Discussion turns to the Shaw Pond beaver issue. Mark and Purr are briefed on what has happened with it to date. The latest development is that the residents now want to remove all of the beavers. Scott asks, “If they come to us and say, ‘We want to remove the whole beaver dam,’ can we not say, ‘Great. Get a professional’?” Mark says, “You can set conditions on an Emergency Permit. Yes.” Mercedes asks, “Would that be to hire a professional?” Mark replies, “If you determine that you want that as one of your conditions you can require it.” There is discussion of why the residents are resisting the commission’s suggestions and Mercedes says, “They don’t want a water level control device that keeps the water level higher than it was before the beavers came. They want it back to the original level and in order to do that, DFW told me they have to trap all the beavers and they have to confirm they’re all gone – eliminated – before they can pull the dam down.” Mark asks if the commission has been taking pictures of the site. This has not been done to date.

Discussion moves back to the list of possible topics to be addressed this evening. Kathy says she is working on a job description for the Agent, as well as a check list for incoming applications. Mark says to use the models given in the MACC handbook which has these as well as job descriptions for the Chair and the Vice Chair. Kathy is also now funneling all information through Josh, letting him forward it to the other commissioners. This will all be reviewed at the April meeting.

Mercedes asks Mark to define “upland”. He says, “Not a wetland.” Mercedes asks if you wouldn’t look at soils and vegetation. He repeats, “Upland is anything that is not wetland.” He says this is what the BVW delineation guide says. Mercedes asks if it can be determined under snow. Mark says that sometimes wetland can be determined under a snow cover judging by the trees and other vegetation growing there.

Discussion moves to the Seneca Drive site that also came before the commission at the last meeting. Mercedes says, “Kathy was saying that because the lake was here and the house was up here that it had to be upland.” Kathy responds, “I didn’t say it had to be; I said in my opinion it was upland, looking at that and at the trees.” She continues, “Again, in my opinion if the lake is down here and this is up here, it’s in buffer zone. It can be done. You can’t say it can’t be. It’s not in wetland. It was not in any wetland. It was quite obvious to Josh and I it was not in any wetland at all. They’re putting in their silt fence in that area so in my opinion – and that was my opinion – then it was an okay project even though there was snow on the ground.” Mercedes points out that the draft minutes say that it is upland and Josh suggests changing that wording to indicate that it was Josh and Kathy’s opinion that it was upland.

Mercedes refers to the McLaren site where there are wetlands on high ground. Kathy says that everything is site specific. Mark agrees and says that he’s been to the windmill site on top of the mountain at Jiminy Peak and there wetlands there. He then says, “There are some circumstances where, if it’s a close call, you might want to wait until spring. Other times it may not be necessary. It’s a judgment call.” Purr remarks, “And it’s a judgment call of the people who go on the site visit.” Mercedes says, “I actually didn’t go on this site visit because I didn’t believe we could see.” Mark says, “I’m not going to second guess Kathy and Josh’s call.” Scott says, “That’s where it just comes down to we just have to trust to the judgment of the people who went.” Marty adds, “But it’s very difficult for somebody to say, ‘I’m not going and I don’t want to make a decision’.”