Wetland Flags, a Client Deadline, and a Backdated Plan
A 6.8-acre parcel has a perennial stream along the south boundary and a red maple swamp in the northwest corner. A wetland scientist has flagged the bordering vegetated wetland line; the conservation commission has not yet issued an Order of Resource Area Delineation. The proposed two-lot division would place a septic system 80 ft from the flagged wetland and 150 ft from the stream. The client wants the plan to show only the stream and omit the swamp and buffer zone because 'the swamp is not wet in August' and because the planning board might delay the ANR endorsement. The client also asks you to date the plan before the wetland flags were set so it looks like the flags were not known. The town has a local wetlands bylaw that is stricter than the state act.
1. Which resource areas and buffer zones should be shown on the plan?
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Under the Massachusetts Wetlands Protection Act and 310 CMR 10.00, a perennial stream is likely a riverfront area, and the red maple swamp may be a bordering vegetated wetland. The plan should show the flagged wetland line, the stream and its top of bank, the 100-ft buffer zone to the wetland, and the 200-ft riverfront area if the stream is perennial. The local bylaw may add stricter buffers or other resource areas, so check the town bylaw. The fact that the swamp is dry in August does not remove it; wetland hydrology is seasonal, and the scientist's flags are the best available delineation. Until the conservation commission issues an Order of Resource Area Delineation, label the line as a delineation subject to approval and identify who flagged it. Omitting the swamp or buffer would misrepresent the constraints and could invalidate the plan and permits.
2. The client asks you to omit the wetland and backdate the plan. How do you respond?
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Refuse both requests. Omitting a known resource area is a false or misleading plan; backdating is falsification of a professional record. Both could subject you to discipline and the client to permit denial, stop-work orders, fines, and civil liability. The plan date should be the date of the survey or the date the information was compiled, with revision dates and notes. If the client wants to challenge the delineation, the proper route is to request a formal delineation or an Order of Resource Area Delineation from the conservation commission, submit peer review, or appeal the order, not to hide the flags. Explain that planning board and conservation commission review are separate; an ANR endorsement does not authorize wetland alteration. If the client insists, decline to sign the plan and document the instruction.
3. How can you keep the project moving without compromising the plan?
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Coordinate early. Ask the wetland scientist for the flag locations and a signed delineation report; show the flags and the buffer on the plan with a clear note. File the Notice of Intent or request an Order of Resource Area Delineation, and design the septic system with the required setbacks. You can still prepare an ANR plan while the wetland delineation is pending if the plan discloses the status and does not purport to be final. Consider a revised plan after the order issues. Advise the client that the 100-ft buffer and 200-ft riverfront area may limit the buildable area; a variance or alternative design may be needed. The goal is complete disclosure that supports informed review, not a race to endorsement.