Lincoln: Dry Town/Wet Town

Lincoln is famous for stubbornly sticking to its designation as a “dry town.”  In reality, however, Lincoln is a very wet town.  Glaciers left highly water-retentive clays and silts over much of our land area. Today nearly 30% of Lincoln is water and wetland, and the water table is relatively high. Historically these wetlands have played an important role in maintaining the quality and quantity of Lincoln’s water supply, in preventing flooding, and in preserving our rural character.

Despite our high water table, Lincoln does not experience major problems with flooding because we have managed to preserve of the network of ponds, marshes and lowland areas which act as holding basins (or sponges) during periods of heavy rainfall. Alteration of these wetlands and excessive paving of uplands would reduce water storage areas and increase the speed of runoff, causing potential flooding problems for our residents.

Virtually all of Lincoln’s public and private water supply originates as rainfall within the Town, collected by ponds and stream basins, and percolating through wetlands into the underground aquifers. The wetlands enhance both the quantity and quality of our water by retaining excess storm water and allowing it to enter the aquifers, rather than run off and out of town, and by purifying the water as it filters through them. Alteration of wetlands reduces their capacity to perform these critical functions and thus impairs our water supply recharge system. The recent drought highlighted the impending water problems in our region.  Town wells are going dry, and more towns are petitioning to join the MWRA, whose water supply is already strained.  Here in Lincoln, Flints Pond and the town well have so far been adequate to Lincoln’s water needs. Further development will only increase the demand for water and must be done with careful attention to wetlands protection to avoid undue stress on Lincoln’s water supply.

In addition to these priceless benefits of flood control and water recharge, wetlands also provide less tangible yet very real values to our town.  Lincoln’s rural character has been preserved to a great extent by prudent and foresighted conservation of open space by our forebears, but it has also been preserved by their attention to the importance of maintaining our wetlands in a relatively pristine state. The flora and fauna which contribute so much to our quality of life, and which make Lincoln such a unique place to live, are sustained by these wetland habitats.

Throughout much of history, wetlands have been considered to be wastelands or worse, breeding grounds for pestilence and disease, and for many decades official government policy on national and local levels permitted and even encouraged their elimination.  By the 1950s fully half of the wetlands that existed in the lower 48 states had been drained or filled, and many more were seriously degraded. Deteriorating water quality and continuing flooding problems revealed the folly of these policies. Federal and state governments began to realize the valuable functions, particularly in the area of flood control, water purification, and aquifer recharge, that wetlands provide and to enact laws to protect them. In the 1960s the Federal government passed the Clean Water Act which gave the Army Corps of Engineers jurisdiction over navigable waterways and started the process of cleaning up the nation’s waters. In 1972 the State of Massachusetts passed the Wetlands Protection Act and delegated to local Conservation Commissions the authority to enforce it.  The Massachusetts constitution allows for local cities and towns to retain local control, and so in 1977 towns began enacting their own Wetlands Protection Bylaws tailored to their towns’ individual circumstances and philosophies.

Starting in 1973 Lincoln protected its wetlands through a Zoning Bylaw, which created a wetlands overlay district.  This tool proved to be a rather blunt and cumbersome instrument, however, and in 1989 the town enacted its first Wetlands Protection Bylaw. By this time many towns had experience with wetlands protection and we were able to draw on that experience in drafting our own bylaw.  Fourteen years ago, our bylaw was state of the art, but wetlands science and wetlands regulation has marched on as we have stood still and today we find our bylaw could use a touch-up.

Any law, no matter how carefully drafted, will be subject to varied interpretations. Our experience has shown this to be the case with respect to our bylaw, and we must act now to clarify the intentions of the drafters. Some of this can be done through changes to the bylaw itself, whereas some is more appropriately done through regulations.  Increasing pressure to develop marginal building lots, and increasing willingness of developers to challenge our interpretation of the bylaw’s language have made us aware that these changes must be made now in order to avoid potential lawsuits in the future.

What changes are we proposing, and most importantly, how will they affect homeowners?

v    First I want to emphasize that the changes we are proposing do not expand the powers or the jurisdiction of the Conservation Commission.  The state began requiring a permit for filling inland wetlands in 1965. Since 1972, with the passage of the State Act, the ConCom has had jurisdiction over activities occurring within 100 feet of wetlands. That was expanded in the case of rivers and perennial streams to 200 feet with the passage of the Rivers Act in 1996. We propose to bring the bylaw into conformity with the Rivers Act, but otherwise to leave these jurisdictional parameters unchanged.  Wetlands Protection is one of those areas where there is perceived to be conflict between regulation for the public good and private property rights, and I expect there will always be some tension there.  Just as homeowners do not have absolute and unlimited rights to do whatever they want on their land, so too the ConCom does not have unfettered discretion in its authority. The changes we propose to our Wetland bylaw do not alter this balance.

v    The 1989 bylaw does not give the Conservation Commission the authority to promulgate regulations, and we now believe that it would be very helpful to have this tool available to provide clarification and guidance to applicants. We feel this will benefit homeowners in that we will be able to provide more detailed guidelines on our permitting process; what types of information will be needed in a permit application, what types of activities are likely to be permitted or denied, and what kinds of precautions we are likely to require and in what situations.  Written regulations also serve as an institutional memory for a board comprised of volunteers who usually serve only 3 – 6 years.  Of course, we will continue to consider each application on a case by case basis.  Requirements which may be perfectly acceptable to one homeowner could impose a hardship on another, and so we will be careful to retain the flexibility that we now have in working with homeowners to come up with projects that both meet their needs and protect wetlands resources. We are required to hold public hearings on all regulations we write, so there will be plenty of opportunity for input from homeowners as these are drafted.

v    Another big change is in the area of fees.  At this point our fee schedule is embodied in the bylaw, and thus we are unable to raise fees to cover our costs and keep up with inflation without a warrant article approved by Town Meeting.  Removing the fee structure from the bylaw and putting it in regulations instead will enable us to raise fees after public hearings but without going to full Town Meeting.  Though our filing fees are hardly a major source of revenue for the town, we do feel they ought to at least cover costs.

Another vehicle for saving money for the town is our proposal to require applicants, when necessary, to pay for consultants that we hire to assist us in evaluating their projects.  I emphasize the words “when necessary,” as in most cases we anticipate it will not be necessary, but there have been instances, particularly in the case of larger developments, where we simply have not had the expertise on our volunteer board to adequately evaluate the consequences of proposed projects.  We have hired, and the town has paid for, engineers and wetlands scientists to assist us in these cases.  Many other towns are now requiring developers to pay these consultants’ fees as part of their project costs, and we feel it is appropriate for us to do likewise.

v    There are a few changes we would like to make to the bylaw which won’t make a change in the way we currently operate, but which would essentially codify our interpretation of the current bylaw.  These are changes that will not necessarily have an effect on the status quo with respect to homeowners seeking permits, as we will continue to make our decisions based on how we are now interpreting the bylaw, but which could bolster our position if our decisions are challenged in court. We hope this will also save the town money in legal fees, as suits based on possible alternative interpretations will be avoided.

These include:

¨     A reiteration of the principle that the best way to protect wetlands is to provide uninterrupted strips of undisturbed vegetation around them, and an acknowledgment that the adjacent upland area (aka. buffer zone) is an integral part of the wetland system and needs full protection.

¨     A reiteration of the principle that applicants must demonstrate that they have considered alternatives to proposed work in resource areas.

¨     A reiteration of the principle that the full 100 foot buffer zone should be protected whenever possible.

¨     A reiteration of the principle that the Commission should consider cumulative impacts of activities in resource areas.

¨     A specific definition of “vernal pools” as to which the current bylaw is silent.

Again, I emphasize that these are all changes in the wording of the bylaw rather than changes as to how we currently interpret the slightly more ambiguous wording of the current bylaw, and so we foresee no impact to homeowners as a result of these changes.  We expect our permit applications will continue to be a collaborative process between the homeowner and the Commission, hopefully with the homeowner coming away with both an enhanced appreciation of the wetlands and their functions, and a project they can happily live with.

v    Finally, there are a few changes that are administrative in nature.  These pertain to the requirements for abutter notification, enforcement mechanisms, and procedures for dealing with violations.  Again these changes will have no impact on the typical Lincoln homeowner insofar as adding to your responsibilities or limiting your rights. They just provide ways for us to assure that you do what you’ve always been required to do.

 Mary Lincoln
Chair, Conservation Commission