Vernal Pool Protection

The Massachusetts Wetlands Protection Act Regulations (310 CMR 10.00), the Massachusetts Surface Water Quality Standards (314 CMR 4.00) used to administer section 401 of the federal Clean Water Act, the Massachusetts Environmental Code: Title 5, and the Forest Cutting Practices Act regulations all provide protection to vernal pools that have been officially certified. The regulations for both the Wetlands Protection Act and Forest Cutting Practices Act also provide protection to vernal pools that have not been certified if their occurrence is adequately documented during permit review. Protection under any of these laws requires the following:

1) the vernal pool occurs in an area subject to the jurisdiction of the regulations; and

2) the activities proposed are regulated.

The Massachusetts Wetlands Protection Act regulations (310 CMR 10.00) protect certified vernal pools and up to 100 feet beyond the boundary of the pool (referred to as the “vernal pool habitat”), by preventing alterations which would result in the reduction of the wildlife habitat value of the certified vernal pool. A certified vernal pool is not automatically protected by these regulations, though. Certified vernal pools must occur within a resource area that comes under the jurisdiction of the Act before they receive protection. Similarly, the 100 feet around the vernal pool must also fall within a resource area, and not in non-jurisdictional upland or the buffer zone of a resource area in order to be protected under the Act. The March, 1996 Massachusetts Department of Environmental Protection Wetlands Report Alert established a desire within the DEP to protect vernal pools that occur within any jurisdictional wetlands. Although performance standards exist only for vernal pools that occur within Land Subject to Flooding, vernal pools occurring within any wetlands resource area should be protected through the incorporation of appropriate conditions in an Order of Conditions issued by a conservation commission or the DEP.

Vernal pools that are not certified may also be protected by a local conservation commission or the DEP if credible scientific evidence is presented up until the end of the appeals period for a Superseding Order of Conditions issued by the DEP. A conservation commission, or the DEP on appeal, can incorporate protective conditions into an Order of Conditions that would prevent the alteration of the wildlife habitat value of the pool and it’s 100 foot “vernal pool habitat” if they occur within a regulated wetland even though it is not certified.

Each DEP Regional Office has at least one Vernal Pool Liaison who should be contacted for all questions related to the protection of both certified and uncertified vernal pools. Since regulatory authority rests with the Department, they are best able to answer questions about what may or may not happen in or around vernal pools. Your regional liaison may be reached at the following address:

Western Regional Office
State House West, 4th Floor
Springfield, MA 01103