BROOKFIELD’S WETLANDS DOUBLE STANDARD
Mountains of asphalt millings and fill are being staged beside one of Brookfield’s largest natural resource areas. No wetlands application has been filed in recent years — even though, according to a Conservation Commission member, MassDEP previously said an RDA was required for similar activity at the same location.
By Christopher Kelleher
BROOKFIELD — For roughly the past year, state-owned property at 14 Fiskdale Road, beside one of Brookfield’s largest natural resource areas, has been used as a staging area for substantial quantities of asphalt millings, fill, rocks and other material.
Asphalt millings currently form a pile estimated at roughly 10 feet high and have, at times, reached approximately 20 feet. Trucks and equipment have been observed loading and unloading material at the site. Most recently, a wood chipper and a container holding wood chips were also present.
The Brookfield Highway Department has used the area for staging activity, and a private business owner has previously used the same state-owned location in connection with his business. The Brookfield Examiner has not established who owns all of the material presently stored at the site or whether all of the current activity is municipal, private, or a combination of the two.
The permitting record, however, is clear.
“No application has been submitted for 14 Fiskdale Road in recent years,” Brookfield Conservation Commission Chairman Steve Karrmann told The Examiner after the newspaper contacted the Commission about the activity.
The activity at Fiskdale Road is not a new issue for the Conservation Commission. When a private business owner previously used the same location as a staging area for his business, including loading and unloading fill, the matter came before the Commission. The business owner maintained that he had been using the location that way for approximately 25 years.
According to a Conservation Commission member familiar with that matter, the Commission contacted the Massachusetts Department of Environmental Protection for guidance. MassDEP advised the Commission that an RDA — Request for Determination of Applicability — would be required for the loading and unloading of fill at that location, and that permission from the Commonwealth would also be required to use the state-owned land for that purpose.
The private business owner subsequently agreed that he would no longer use the location as a staging area for his business.
The significance of that earlier determination is difficult to overlook. The Conservation Commission had already confronted staging activity at this same property, sought guidance from MassDEP about the loading and unloading of fill there and, according to a Commission member familiar with the matter, was advised that an RDA and permission from the Commonwealth were required.
Now, substantial quantities of material are again being staged at 14 Fiskdale Road, including large piles of asphalt millings, and Karrmann has confirmed that no application has been submitted for the property in recent years.
BROOKFIELD’S OWN WETLANDS LAW
Brookfield’s wetlands bylaw was deliberately written to provide protections greater than those contained in the Massachusetts Wetlands Protection Act. The Town declared that its local standards and procedures were intended to be stricter than those imposed under state wetlands law.
The bylaw protects wetlands and other specified resource areas, as well as land extending 100 feet from certain protected resources and a 200-foot riverfront area adjoining perennial rivers, streams, brooks and creeks. It prohibits regulated removal, filling, dredging, building, degradation, discharge or other alteration within protected areas except as permitted by the Conservation Commission.
The Town expressly included itself within that regulatory framework. The bylaw’s definition of a “person” includes private entities and governmental bodies and specifically includes “this municipality.” Its definition of alteration includes excavation or removal of soil, sand, gravel or aggregate, the placement of fill that alters elevation, dumping or filling with material that may degrade water quality, and activities that may contribute to pollution of surface water or groundwater.
The permitting provision requires a written application for activities affecting resource areas protected by the bylaw and states: “No activities shall commence without receiving and complying with a permit issued pursuant to this bylaw.”
The bylaw contains specific exemptions for certain activities, including qualifying agricultural activity, limited maintenance of existing public-service facilities and emergency work. It contains no general exemption for otherwise regulated activity merely because municipal government is conducting it.
The local bylaw also states that, except as specifically provided in Brookfield’s law, exemptions contained in the state Wetlands Protection Act and regulations do not apply under the local bylaw.
STATE-OWNED LAND
The property at 14 Fiskdale Road is owned by the Commonwealth, adding another layer to the permitting issue.
That ownership was specifically addressed when the Commission previously sought guidance from MassDEP about the private business activity at the same location. According to the Commission member familiar with the matter, MassDEP advised not only that an RDA was required for loading and unloading fill, but that permission from the Commonwealth was required to use the state-owned property as a staging area.
The Examiner has not been provided documentation establishing whether the Commonwealth authorized the current use of 14 Fiskdale Road, the scope of any such authorization, or whether the permission previously identified by MassDEP was obtained.
The identity of the party responsible for all of the material currently at the site has also not been established. Highway Department activity has occurred there, while the same property has previously been used as a staging area by a private business.
THE PUBLIC PROCESS
Brookfield’s wetlands bylaw establishes more than a permitting requirement. It creates a public process for reviewing activity affecting protected resources.
The Commission is required to conduct public hearings on permit applications, Requests for Determination of Applicability and Abbreviated Notices of Resource Area Delineation. The bylaw also contains notice requirements for abutters and other nearby property owners and provides for copies of filings to be distributed to other municipal boards and officials for review and comment.
That process allows the location and nature of proposed activity, erosion and sedimentation controls, runoff, effects on groundwater and other environmental considerations to be examined publicly.
There has been no application-generated public review for the current activity at 14 Fiskdale Road because, according to Karrmann, no application has been submitted in recent years.
The matter will now be discussed publicly by the Conservation Commission.
COMMISSION TO TAKE UP FISKDALE ROAD SEPT. 30
After receiving The Examiner’s questions, Karrmann placed the Fiskdale Road matter on the Conservation Commission’s next agenda.
“I will coordinate it with the Commission, and I added this on our next meeting agenda for discussion,” Karrmann wrote. “We will review and answer your questions as a Commission at our meeting.”
The Conservation Commission will meet Wednesday, Sept. 30 at 5:30 p.m. in the Banquet Hall at Brookfield Town Hall. The meeting is open to the public.
The Commission also provides remote access to the general public through Microsoft Teams, allowing residents to follow the meeting without attending Town Hall in person.
Join the Sept. 30 Brookfield Conservation Commission meeting on Microsoft Teams:
The Commission’s discussion comes after months of staging activity at the state-owned property and after its chairman confirmed that no application has been submitted there in recent years.
Brookfield’s own bylaw gives the Conservation Commission broad authority to regulate activities affecting protected resources, establishes public permitting procedures and expressly includes the municipality within its scope. The Commission previously sought MassDEP guidance when a private business used this same property for loading and unloading fill and, according to a Commission member, MassDEP said an RDA and permission from the Commonwealth were required.
On Sept. 30, that same property now holding substantial piles of asphalt millings and other material beside one of Brookfield’s largest natural resource areas will once again be before the Conservation Commission.
Residents may attend the meeting in person at Town Hall or remotely through Microsoft Teams.