[HISTORY: Adopted by the Town Meeting of the Town of Walpole as Article XXIV of the 1973 General Bylaws, as updated through 2002; amended in its entirety 10-20-2014 FATM, Art. 22. Subsequent amendments noted where applicable.]
GENERAL REFERENCES
Enforcement by noncriminal disposition — See Ch. 295, Art. II.
Sewers — See Ch. 465.
Stormwater management — See Ch. 499.
Board of Health groundwater protection regulations — See Ch. 665.
The purpose of this Bylaw is to protect wetlands, water resources, flood-prone areas and adjoining land areas in this municipality by controlling activities deemed by the Conservation Commission ("Commission") likely to have significant or cumulative effect upon wetland values, including but not limited to the following: public or private water supply, groundwater, flood control, water pollution, erosion and sedimentation control, storm damage prevention, fisheries, shellfish, wildlife habitat, recreation, aesthetics, and agricultural values (collectively, the "wetland values protected by the Bylaw").
Except as permitted by the Commission or as provided in this Bylaw, no person shall remove, fill, dredge, build upon or alter protected resource areas as defined in § 561-9.
A. 
The permits and applications required by this Bylaw shall not be required for maintaining, repairing or replacing but not substantially changing or enlarging an existing and lawfully located structure or facility used in the service of the public to provide electric, gas, water, telephone, telegraph or other telecommunication services, provided that written notice is given to the Commission prior to commencement of work, and the work conforms to the performance standards and design specifications in regulations adopted by the Commission.
B. 
The permits and applications required by this Bylaw shall not apply to emergency projects necessary for the protection of the health or safety of the public, provided that the work is to be performed by or has been ordered to be performed by an agency, the Commission, or a political subdivision thereof; advance notice, oral or written, has been given to the Commission prior to commencement of work or within 24 hours after commencement; the Commission or its agent certified the work as an emergency project; the work is performed only for the time and at the place certified by the Commission for the limited purposes necessary to abate the emergency; and within 21 days of commencement of an emergency project, a permit application shall be filed with the Commission for review as provided in this Bylaw. Upon failure to meet these and other requirements of the Commission, the Commission may, after notice and public hearing, revoke or modify an emergency project approval and order restoration and mitigation measures.
C. 
Other than stated in this section, the exceptions provided in the Wetlands Protection Act shall not apply.
A. 
Written application shall be filed with the Commission to perform activities regulated by this Bylaw affecting resource areas protected by this Bylaw or to determine the boundaries of the resources areas defined under § 561-9 of this Bylaw. The application shall include such information and plans as are deemed necessary by the Commission to describe the proposed activities. No activities shall commence without receiving and complying with a permit or determination issued pursuant to this Bylaw.
B. 
The Commission, in an appropriate case, may accept as the application and plans under this Bylaw, any application and plans filed under the Wetlands Protection Act, MGL c. 131, § 40, and regulations set forth at 310 CMR 10,00 et seq., but the Commission is not obligated to do so.
C. 
Any person desiring to know whether or not proposed activity is subject to this Bylaw may, in writing, request a determination from the Commission. Such a request for determination shall contain information and plans as is deemed necessary by the Commission to make such determination.
D. 
At the time of an application or request, the applicant shall pay a filing fee specified in the regulations of the Commission. This fee is in addition to that required by the Wetlands Protection Act, MGL c. 131, § 40. Pursuant to MGL c. 44, § 53G, the Rules for Hiring Outside Consultants, and regulations promulgated by the Commission under this Bylaw, the Commission may impose reasonable fees upon the applicant to aid in the review of a proposed project. The Commission may waive the filing fee and costs and expenses for an application or request filed by a government agency and shall waive them for a request for determination filed by a person having no financial connection with the property which is the subject of the request.
A. 
Any person filing a permit application, a request for resource area delineation, or a request for an amendment with the Commission shall at the same time give written notice thereof, by certified mail, certificate of mailing, or hand delivery, to all the abutters (as defined in § 561-9 of the Bylaw) according to the most recent records of the Assessors. The notice to abutters shall enclose a copy of the application or request, with plans, or shall state where copies may be examined and obtained by abutters free of charge. Notice to abutters is not required for requests for determination for proposed activities. When a person requesting a determination is other than the owner, the request, the notice of the hearing, and determination shall be sent by the Commission to the owner as well as to the person making the request. The Commission shall conduct a public hearing on any application or request for determination, with written notice given at the expense of the applicant, at least five working days prior to the hearing, in a newspaper of general circulation in the municipality.
B. 
The Commission shall commence the public hearing within 21 days from receipt of a completed application or request for determination.
C. 
The Commission shall issue its permit or determination in writing within 21 days of the close of the public hearing thereon.
D. 
The Commission in an appropriate case may combine its hearing under this Bylaw with the hearing conducted under the Wetlands Protection Act, MGL c. 131, § 40, and the regulations.
E. 
The Commission shall have authority to continue the hearing to a date announced at the hearing, for reasons stated at the hearing, which may include receipt of additional information offered by the applicant or others, information and plans required of the applicant deemed necessary by the Commission at its discretion, or comments and recommendations of boards and officials listed in § 561-6. In the event the applicant objects to a continuance or postponement, the hearing shall be closed by the Commission and the Commission shall take action on such information as is available.
[Amended 10-21-2019 FATM, Art. 20]
Any person filing a permit application or a request for determination with the Commission shall provide copies thereof at the same time, for distribution to the Select Board, Planning Board, Board of Appeals, Board of Health, Building Inspector, the Town Engineer, and other departments as deemed necessary. The Commission shall take no final action until such boards and officials have had 14 days from the receipt of the copies to file written comments and recommendations with the Commission, which the Commission shall take into account but which shall not be binding on the Commission. The applicant shall have the right to receive any such comments and recommendations, and to respond to them at a hearing of the Commission, prior to final action.
A. 
If the Commission, after a public hearing, determines that the activities which are the subject of the application are likely to have significant or cumulative effect upon the wetland values protected by this Bylaw, the Commission, within 21 days of the close of the hearing, may issue or deny a permit for the activities requested. If it issues a permit, the Commission may impose conditions which the Commission deems necessary or desirable to protect those values and all activities shall be done in accordance with those conditions.
[Amended 5-7-2018 SATM, Art. 32]
B. 
The Commission is empowered to deny a permit for failure to meet the requirements of this Bylaw, for failure to submit necessary information and plans requested by the Commission; for failure to meet the design specification, performance standards, and other requirements set forth in the regulations of the Commission; for failure to avoid or prevent unacceptable significant cumulative effects upon the wetland values protected by this Bylaw, and where no conditions are adequate to protect those values. Due consideration shall be given to any demonstrated hardship on the applicant that would be caused by denial that is presented at the public hearing.
C. 
A determination of applicability will be made by the Commission in writing and may contain conditions.
D. 
Permits and determinations shall expire three years from the date of issuance. Notwithstanding the above, the Commission, at its discretion, may issue a permit expiring five years from the date of issuance for recurring or continuous maintenance work, provided that annual notification of time and location of work is given to the Commission. Any permit may be renewed for an additional one-year period, provided that a request for a renewal is received in writing by the Commission prior to expiration.
E. 
For good cause, the Commission may revoke or modify a permit issued under this Bylaw after public notice, public hearing and notice to the holder of the permit. The Commission, in an appropriate case, may combine the permit or other action on an application issued under this Bylaw with the Order of Conditions issued under the Wetlands Protection Act.
After public notice and public hearing, the Commission shall promulgate rules and regulations to effectuate the purpose of this Bylaw. Failure by the Commission to promulgate such rules and regulations or a legal declaration of their invalidity by a court of law shall not act to suspend or invalidate the effect of this Bylaw. Regulations shall include filing procedures.
The following definitions shall apply in the interpretation and implementation of this Bylaw:
ABUTTER
Any landowner, as determined by the most recent assessors' records, whose land abuts the property that is the subject of an application or request, including whose land lies directly across any street, road, river, stream, brook or creek from the said property, or whose land is within 300 feet of the subject property.
ACTION BY THE COMMISSION
Where this Bylaw states that a particular action (except receipt of a request or notice) is to be taken by the Commission, that action shall be taken by more than half of the members present at a meeting of at least a quorum.
ALTER
Includes, without limitation, the following activities when undertaken to, upon, within or affecting areas protected by this Bylaw:
A. 
Removal, excavation or dredging of soil, sand, gravel, or aggregate materials of any kind;
B. 
Changing of preexisting drainage characteristics, flushing characteristics, sedimentation patterns, flow patterns, or flood retention characteristics;
C. 
Drainage or other disturbance of water level or water table;
D. 
Dumping, discharging or filling with any material which may degrade water quality;
E. 
Placing of fill, or removal of material, which would alter elevation;
F. 
Driving of piles, erection or repair of buildings, or structures of any kind;
G. 
Placing of obstructions or objects in water;
H. 
Destruction of plant life including cutting trees;
I. 
Changing water temperature, biochemical oxygen demand, or other physical or chemical characteristics of water;
J. 
Any activities, changes or work which may cause or tend to contribute to pollution of any body of water or groundwater.
APPLICANT
As used in these regulations, a person giving notice of intention to remove, fill, dredge, build upon, or alter, or a person on whose behalf such a notice is filed.
BANK
Is defined as it is in 310 CMR 10.00.
BOG
See "marsh."
FRESHWATER WETLAND
Is defined as it is in MGL c. 131, § 40.
LAND ACTIVELY DEVOTED TO AGRICULTURAL USE
Is defined as it is in 310 CMR 10.00.
LAND SUBJECT TO FLOODING OR INUNDATION
Is defined as it is in 310 CMR 10.00.
MARSH, BOG, WET MEADOW AND SWAMP
Are defined as they are in MGL c. 131, § 40, and are collectively known as "vegetated wetlands." Credible evidence as to wetland affinities of other vegetation in an area shall be considered in making wetland determinations.
NORMAL MAINTENANCE AND IMPROVEMENT
Shall be defined as it is in 310 CMR 10.00.
PERSON
Includes any individual, group of individuals, association, partnership, corporation, company, business organization, trust, estate, the commonwealth or political subdivision thereof to the extent subject to town bylaws, administrative agency, public or quasi-public corporation or body, this municipality, and any other legal entity, its legal representatives, agents, or assigns.
PROTECTED RESOURCE AREA
The following areas: any bank, freshwater wetland, marsh, bog, wet meadow, swamp, stream, river, pond, lake, vernal pool, or any land bordering thereon, or any land subject to flooding or inundation. Said resource areas shall be protected whether or not they border surface water. "Bordering" in this context shall mean either: a) 100 feet horizontally lateral from any of the foregoing areas, or b) 100 feet horizontally lateral from the water elevation of the one-hundred-year storm, whichever is the greater of a) or b); and c) land within 200 feet of the mean annual high-water line of any year-round river or stream.
QUORUM
Is defined as it is in 310 CMR 10.05(2).
SWAMP
See "marsh."
WET MEADOW
See "marsh."
As part of a permit issued under this Bylaw in addition to any security required by any other municipal or state board agency or official, the Commission may require that the performance and observance of the conditions imposed hereunder be secured wholly or in part by one or more of the methods described below:
A. 
By a proper bond or deposit of money or negotiable securities or other undertaking of financial responsibility sufficient in the opinion of the Commission;
B. 
By a conservation restriction, easement or other covenant enforceable in a court of law, executed and duly recorded by the owner of record, running with the land to the benefit of this municipality whereby the permit conditions shall be performed and observed before any lot may be conveyed other than by mortgage deed.
A. 
The Commission, its agents, officers, and employees shall have authority to enter upon privately owned land for the purpose of performing their duties under this Bylaw to the extent permitted by law, and make or cause to be made such examination surveys or sampling as the Commission deems appropriate.
B. 
The Commission shall have authority to enforce this Bylaw, its regulations, and permits issued thereunder, by violation notices, administrative orders, and civil and criminal court actions. Upon request of the Commission, the Select Board and the Town Counsel shall take legal action for enforcement under civil law. Upon request of the Commission, the Chief of Police shall take legal action for enforcement under criminal law. Municipal boards and officers, including any police officer or other officer having police powers, shall have authority to assist the Commission in enforcement.
[Amended 5-7-2018 SATM, Art. 32; 10-21-2019 FATM, Art. 20]
C. 
Any person who violates any provision of this Bylaw, regulations thereunder, or permits issued thereunder, shall be punished by a fine of not more than $300 each day or portion thereof during which a violation continues. Each violation shall constitute a separate offense, and each provision of this Bylaw, regulations, or permits violated shall constitute a separate offense.
D. 
In the alternative to criminal prosecution, the Commission may elect to utilize the noncriminal disposition procedure set forth in § 295-4 of the Town's General Bylaws and MGL c. 40, § 21D.
The applicant for a permit shall have the burden of proving by a preponderance of the credible evidence that the work proposed in the application will not have unacceptable significant or cumulative effect upon the wetland values protected by this Bylaw. Failure to provide adequate evidence to the Commission supporting this burden shall be sufficient cause for the Commission to deny a permit or grant a permit with conditions.
This Bylaw is adopted under the Home Rule Amendment of the Massachusetts Constitution and the Home Rule Procedures Act.
The invalidity of any section or provision of this Bylaw shall not invalidate any other section or provision thereof, nor shall it invalidate any permit or determination which previously has been issued.