Laws & Regulations Affecting a "Great Pond"
Numerous laws and regulations affect life on Foster's Pond. Here's a review of some of them.
includes state laws and regulations, as well as town by-laws. For a
brief primer on legal citations and finding the laws, click here.
Great Ponds. The "great" refers to the size of the pond. A "great pond" is defined in M.G.L. c. 131, s. 1, as "a natural pond the area of which is twenty acres or more." The Massachusetts Department of Environmental Protection, in its regulations governing docks and other structures in waterways, has a longer definition:
Great Pond means any pond which contained more than ten acres in its natural state, as calculated based on the surface area of lands lying below the natural high water mark. The title to such lands is held by the Commonwealth in trust for the public, subject to any rights which the applicant demonstrates have been granted by the Commonwealth. The Department shall presume that any pond presently larger then ten acres is a Great Pond unless the applicant presents topographic, historic, or other information demonstrating that the original size of the pond was less than ten acres, prior to any alteration by damming or other human activity.
DEP includes Foster's Pond in its official list of Great Ponds in the Commonwealth. Whenever you see a reference in Massachusetts laws or regulations to a great pond (for example, M.G.L. c. 131, s. 45), you may pretty much assume that you are looking at something that applies to Foster's Pond. (By the way, Foster's Pond is, at least in part, a natural pond - click on history to read about references dating to the colonial era, prior to any damming. The present area of the Pond has been estimated at 125 to 135 acres.)
The Dam. Our dam, which is owned by the Foster's Pond Corporation, is subject to state regulation, including regular inspections. We are responsible for maintaining the dam. In 2002, the General Court enacted revisions of the laws relating to the inspection, registration, and reconstruction of dams. The new laws, set forth in M.G.L. c. 253, s. 44 to s. 50A, require mandatory registration, on a form to be supplied by the Office of Dam Safety in the Executive Office of Environmental Affairs' Department of Conservation and Recreation. The Office of Dam Safety (which has only three engineers on its staff) finally published new regulations in November, 2005. The new regulations, contained in 302 C.M.R. 10:00, required the registration of all dams beginning in January, 2006, setting a registration fee of $75. The regulations also require owners to hire an engineer to inspect their dams regularly - every five years, in the case of a "signifcant hazard" dam like ours. Owners must apply - and pay for - a permit to repair their dams. By the way, did you know that there are 2847 dams in Massachusetts, of which 1730 (61%) are privately owned?
Motorboats. Under M.G.L. c. 131, s. 45, a town may regulate boating on a great pond. The statute says that any town rule (that is, a by-law) "relative to boating may include, on all or any portion of said pond, for all or any portion of the year, any of the following: a speed limit, a limit on engine horsepower, a prohibition of the use of internal combustion engines, a ban on water skiing and other high speed uses and a limitation of such uses to certain areas and certain times." The law goes on to state that such town boating restrictions are subject to the approval of the director of law enforcement of the State Department of Environmental Protection. Residents of Foster's Pond went to Town Meeting and won the enactment of a by-law prohibiting the use of motorboats with engines larger than 10 horsepower. The by-law (Article XII, Section 29, of the Andover By-Laws) was subsequently approved by the State. The by-law states:
It shall be unlawful for any person to introduce, operate or permit and suffer to be operated on Foster Pond a motor boat powered by any engine with a horsepower in excess of 10. For purposes of this section, the use of any craft designed and utilized solely for the control or removal of aquatic plants is specifically excepted.
Float Planes. M.G.L. c. 131, s. 45 also contains a provision allowing towns to regulate float planes on great ponds. The provision reads as follows:
. . . [A]ny city or town in which is situated the whole or any portion of any great pond, as defined by section one, may, as to so much thereof which is located within its boundaries, make and enforce rules and regulations relative to the use and operation of aircraft equipped with floats or other means of transportation on water; provided, however, that such regulations, ordinances, or by-laws providing for such use and operation shall first be approved by the Massachusetts aeronautics commission.
Since Andover has no by-law regulating the use of float planes on Foster's Pond, takeoffs and landings are currently permitted. The Town of Wakefield enacted a by-law for Lake Quannapowitt in 1992 reading as follows: "No aircraft shall land or take off from the lake, except in the case of an emergency or with the prior written approval of the Board of Public Works of the Town of Wakefield and the approval of the state and federal authorities where applicable." In 2001, the town belatedly sought approval of this by-law by the Massachusetts Aeronautics Commission. After a public hearing, the Commission approved the by-law by a vote of 3 to 2. In the unlikely event you see a float plane landing on the Pond, write down the "N-Number" visible on the side or tail of the plan, and go to the Federal Aviation Administration’s On-Line Registry. Click on N-Number, and type in the number. You'll get info on the plane and its registered owner.
Docks. M.G.L. c. 91, contains a number of provisions relating to docks (as well as lowering the water) in great ponds (see sections 19, 19A, and 23). The Department of Environmental Protection, which administers the permitting program, has adopted detailed regulations relating to the licensing of small docks (including those in great ponds). The regulations are contained in 310 C.M R. 9.00. The "simplified procedures" for small docks - which require a license application (for a ten-year), a fee, newspaper publication, and notice to abutters - are contained in Section 9.10. DEP has also published a short guide to the rules.
Septic Systems (Title V). Comprehensive regulations adopted by the Department of Environmental Protection govern the installation and maintenance of septic systems. These regulations, 310 C.M.R. 15.00, are too complex to summarize here. At the local level, these regulations are enforced by the Board of Health.
Wetlands. Any significant activity within 100 feet of the Pond is almost certain to bring into play the laws and regulations regulating what you can do in a wetland (or the 100-foot buffer zone). The underlying statute is M.G.L. c. 131, s. 40, the Wetlands Protection Act. The Department of Environmental Protection's regulations (all 101 pages of them, excluding appendices) are contained in 310 C.M.R. 10:00. In addition, the Town has adopted its own Wetlands Protection By-Law, Article XIV of the Town's By-Laws, which can be viewed on-line. And under this by-law, the Conservation Commission has adopted its own regulations which - among other things - detail the limited activities which can be undertaken in a 25-foot "non-disturbance zone" bordering a pond or other wetland. Both the State regulations and the Town requirements are enforced locally by the Conservation Commission.
Zoning. The State's zoning laws are set forth in M.G.L. c. 40A. The Town's Zoning By-Law is available on-line. It is set forth in Article VIII of the Town's By-Laws. Copies are also available for a fee at Town Hall. The Zoning Board of Appeals is responsible for determining whether to grant variances and special permits under the zoning by-law.