- Help Wanted
- Land Usage
The NorthEast Association of 4WD Clubs and its members formally recognized the water hole on Old Florida Road as an environmentally sensitive area. In keeping with our goals of minimizing our impacts on the environment, we instructed our members and advised all motorized users of Old Florida Road to – not cross the water hole. We understood this issue would be highly contested.
Old Florida RD is not any actively maintained road. In fact, it’s an ‘unmaintained’ road which is what makes it appealing to us in the first place. Unfortunately, by not maintaining it, the owners (the town of Florida) have made a decision to let certain aspects of nature take over. They didn’t give up their legal right to ownership of the road or it s ROW; they just decided not enough people were regularly using it to justify the expense of keeping nature off it regardless of how the wetland encroached and became the waterhole.
The wetland existing there is protected by statute in Massachusetts. There are buffer areas around it, vernal pool issues, etc. The road and its ROW are still legally present, but… use, maintenance, improvements, etc. are all subject to the regulations for the wetland.
How the wetland encroached upon the road would be irrelevant. If this were a town maintained road, there would be no issue. It would be a regularly-maintained, heavily-traveled roadway with a wetland on either side of it. Why either side? Because normal traffic operations would be impossible without having constantly maintained the roadway to keep it relatively dry and operable by average motor vehicles.
This is where the complications begin. In 1996 or 1997, Massachusetts wetland laws became even more strict and painful than they were previously. Regardless, for a public entity (who happens to own a road) to go in and perform maintenance within a designated buffer area of a wetland, they need to file papers (Notice of Intent, etc.) with the local conservation commission or superintendent or whatever. It’s a legally defined process today. It stems from not constantly maintaining the facility in the first place. It doesn’t mean it cannot happen. It doesn’t mean it’s impossible. It just means there is a legally-defined process to follow to address the situation
The following information was received from findings of an Environmental Impact Study contracted by the NEA. The information contains regulations and laws to consider that could be used against you if cited for wetland violations:
MA Division of Fisheries and Wildlife (MA DFW) regulations at 321 CMR 3.05 pertain to the ‘hunting, fishing, trapping, and taking of reptiles and amphibians in all counties of Massachusetts’. The Regulatory provision at 321 CMR 3.05(3) states that: ‘No person shall disturb or harrass or, except as authorized in a special educational or scientific permit from the Director, shall hunt, fish, trap, or take by any means any of the following species or their eggs or young:’ The spotted salamander is one of the 25 species of reptiles and amphibians listed and is found in abundance in the water hole. Although not defined in the DFW regulations, ‘take’ as defined in the MA Endangered Species Act regulations with respect to animals means: ‘to harass, harm, pursue, hunt, shoot, hound, kill, trap, capture, collect, process, disrupt the nesting, breeding, feeding or migratory activity or attempt to engage in any such conduct, or to assist such conduct [321 CMR 10.02]
As previously stated, it is anticipated that vehicular passage though the water hole will result in the direct mortality of spotted salamanders, their young, and eggs. It is also anticipated that travel through this area during the spring and fall would be considered a disruption of the salamanders nesting, breeding, feeding or migratory activity.
The water hole at Old Florida road constitutes a component of the vegetated wetland associated with Tower Brook Swamp and its tributaries. As such are subject to State and Federal jurisdiction. Accordingly and due to Old Florida Road’s presence within the greater Tower Brook Swamp it can be argued that the Old Florida RD acts more like a wetland and less like a roadway. Although the road is not officially declared ‘abandonded’, it is safe to say that Old Florida RD has not been subject to ‘everyday use and maintenance’; otherwise the water hole would not exist.
As set forth in the MA Wetlands Protection Act regulations at 310 CMR 10.02(2)(a), ‘…any activity proposed or undertaken within an area specified in 310 CMR 10.02(1)(a)[ie areas subject to protection under the Act] which will remove, fill, dredge, or alter that area is subject to Regulation under M.G.L. c.131 ss 40 [the Act]. ‘Alter’ as defined at 310 CMR 10.04 means ‘to change the condition of any Area Subject to Protection under M.G.L. c. 131 ss 40. Examples of alterations include, but are not limited to, the following:
(a)the changing of pre-existing drainage characteristics, flushing characteristics, salinity distribution, sedimentation patterns, flow patterns and flood retention areas;
(b)the lowering of the water level or water table;
(c)the destruction of vegetation;
(d)the changing of water temperature, biochemical oxygen demand (BOD), and of other physical, biological or chemical characteristics of the receiving water.’
My advice would be to turn around and not go through the water. I’m not saying you can’t but just giving posting the facts so you can make your own educated decision. If caught and ticketed for traveling through the water you could face massive fines for wetland and wildlife violations. The decision for NEA clubs and their members to turn around is still in place.
On the advice of Tim Wagner the NEA recently approached an Environmental Law Firm in Boston Massachusetts. Here is the question currently being pursued by an attorney; does the status of Old Florida Road as an unmaintained public right-of-way give the public the right to operate legally-registered motor vehicles along the layout, despite the presence of wetland resource areas and potential habitat of a state-listed species, or is such use prohibited where it would impact the habitat and/or alter the resource area.
The NEA has also been approaching companies to survey the center line of Old Florida RD. It is hoped that the actual center line will be near the water s edge allowing us to stay within the ROW and avoid the waterhole. Currently our closet starting reference point is over a mile away. Members of the NEA will be researching old documents, tax maps, and other information to find a closer reference point. Although this will be helpful we are not going to allow this to hinder our efforts. We are waiting for 3 estimates for the surveying and then the NEA will apply for grants from United’s Land Action fund and Tread Lightly to help defer the cost. Our goal is to put this to rest one way or another by mid summer 2006.
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