[HISTORY: Adopted by the Conservation Commission of the Town of Lancaster January 2008; revised July 2008, January 2009 and July 2009. Subsequent amendments noted where applicable.]
Wetlands protection — See Ch. 215.
Authority and purpose: These regulations are promulgated by the Town of Lancaster Conservation Commission to which authority is granted under the Lancaster Wetlands Protection Bylaw (hereinafter called the "bylaw"). These regulations complement the bylaw and provide additional details in order to implement it. The purpose of the bylaw is to protect the wetlands, wildlife, water resources, flood-prone areas, and adjoining upland areas in the Town of Lancaster by controlling activities deemed by the Conservation Commission to have a significant or cumulative effect on resource area values, as outlined in § 215-1 of the Wetlands Protection Bylaw.
The definition of terms in § 215-3, Definitions, of the bylaw shall apply to terms used in these regulations.
These regulations apply to all activities in accordance with § 215-2, Jurisdiction, of the bylaw.
The Conservation Commission, in its judgment, may waive strict compliance with the bylaw if, after an alternatives analysis shows that there are no feasible alternatives that would allow the proposed activity to proceed in compliance with said regulations, an unconstitutional taking without compensation has occurred, or there is an overriding public interest.
The exemptions and exceptions that are listed in § 215-5 of the bylaw shall apply in these regulations.
In cases where a waiver is granted, the Conservation Commission may request that the applicant provide mitigation to offset impacts to the wetlands resource areas. Such mitigation must serve the interest of the bylaw by maintaining or improving the natural functioning of the resource area or its associated upland buffer zone or riverfront area.
Written application shall be filed with the Conservation Commission to perform activities affecting resource areas protected by the Lancaster Wetlands Protection Bylaw (hereinafter "bylaw") and under which these regulations are promulgated. The permit application shall include such information and plans as are deemed necessary by the Commission to describe proposed activities and their effects on the resource areas protected by the bylaw. No activities shall commence without receiving and complying with a permit issued pursuant to the bylaw.
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 (310 CMR 10.00), but the Commission is not obliged to do so.
Any person desiring to know whether or not a proposed activity or an area is subject to the bylaw may in writing request a determination from the Commission. Such a request for determination of applicability (RDA) or abbreviated notice of resource area delineation (ANRAD) filed under the Act shall include information and plans as are deemed necessary by the Commission.
At the time of an application, the applicant shall pay a filing fee. The fee is in addition to that required by the Wetlands Protection Act and regulations.
Pursuant to MGL c. 44, § 53G, the Commission may impose reasonable fees upon applicants for the purpose of securing outside consultants, including engineers, wetlands scientists, wildlife biologists or other experts in order to aid in the review of proposed projects. Such funds shall be deposited with the Town Treasurer, who shall create an account specifically for this purpose. Additional consultant fees may be requested where the requisite review is more expensive than originally calculated or where new information requires additional consultant services. Only costs relating to consultant work done in connection with a project for which a consultant fee has been collected shall be paid from this account, and expenditures may be made at the sole discretion of the Commission.
Any consultant hired under this provision shall be selected by, and report exclusively to, the Commission. The Commission shall provide applicants with written notice of the selection of a consultant, identifying the consultant, the amount of the fee to be charged to the applicant, and a request for payment of that fee. Notice shall be deemed to have been given on the date it is mailed or delivered. The applicant may withdraw the application or request within five business days of the date notice is given without incurring any costs or expenses.
The entire fee must be received before the initiation of consulting services. Failure by the applicant to pay the requested consultant fee within 10 business days of the request for payment shall be cause for the Commission to declare the application administratively incomplete and deny the permit without prejudice, except in the case of an appeal. The Commission shall inform the applicant and the Department of Environmental Protection (DEP) of such a decision in writing.
The applicant may appeal the selection of an outside consultant to the Board of Selectmen, who may disqualify the consultant only on the grounds that the consultant has a conflict of interest or is not properly qualified. The minimum qualifications shall consist of either an educational degree or three or more years of practice in the field at issue, or a related field. The applicant shall make such an appeal in writing, which must be received within 10 business days of the date that request for consultant fees was made by the Commission. Such appeal shall extend the applicable time limits for action upon the application.
Any person filing a permit (notice of intent) with the Conservation Commission shall at the time give written notice by certified mail (return postage requested) or by hand delivery to all abutters at their mailing addresses on the most recent applicable tax list of the assessors, including owners of land directly opposite on any public or private street or way, and abutters to the abutters within 300 feet of the property line of the applicant, including any in another municipality or across a body of water. The notice shall state a brief description of the project or other proposal and the date of any Commission hearing or meeting date if known. The notice to abutters also shall include a copy of the application or request, with plans, or shall state where copies may be examined and obtained by abutters. An affidavit of the person proving such notice, with a copy of the notice mailed or delivered, shall be filed with the Commission.
The Commission shall conduct a public hearing on any permit application, RDA or ANRAD with written notice given at the expense of the applicant, at least five business days prior to the hearing, in a newspaper of general circulation in the municipality.
The Commission shall commence the public hearing within 21 days from receipt of a completed permit application, RDA or ANRAD unless an extension is authorized by the applicant. The Commission shall have authority to continue the hearing to a specific date announced at the hearing, for reasons stated at the hearing, which may include the need for additional information from the applicant or others as deemed necessary by the Commission in its discretion, based on comments and recommendations of the boards and officials listed in § 306-4.
The Commission shall issue its permit, other order or determination within 21 days of the close of the public hearing thereon unless an extension is authorized by the applicant.
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 regulations (310 CMR 10.00).
Any person filing a permit application, RDA or ANRAD with the Conservation Commission shall provide 10 copies thereof at the same time, by certified mail (return receipt requested) or hand delivery, to the Conservation Agent. The Agent will, in turn, distribute copies to the Board of Selectmen, Planning Board, Board of Appeals, Board of Health and Building Commissioner. A copy shall be provided in the same manner to the Conservation Commission of the adjoining municipality, if the application or RDA/ANRAD pertains to property within 300 feet of that municipality. An affidavit of the person providing notice, with a copy of the notice mailed or delivered, shall be filed with the Commission. The Commission shall not take final action until the above boards and officials have had 14 days from receipt of notice 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 comments and recommendations, and to respond to them at a hearing of the Commission, prior to final action.
As part of a permit issued under the Bylaw, in addition to any security required by any other municipal or state board, agency or official, the Conservation Commission may require that the performance and observance of the conditions imposed thereunder (including conditions requiring mitigation work) be secured wholly or in part by one or both of the methods described below:
By a proper bond, deposit of money or negotiable securities under a written third-party escrow arrangement, or other undertaking of financial responsibility sufficient, in the opinion of the Commission, to be released in whole or in part upon issuance of a certificate of compliance for work performed pursuant to the permit.
By accepting 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. This method shall be used only with the consent of the applicant.
No person shall remove, fill, dredge, build upon, degrade, or otherwise alter resource areas protected by the bylaw, or cause, suffer, or allow such activity, or leave in place unauthorized fill, or otherwise fail to restore illegally altered land to its original condition, or fail to comply with a permit or an enforcement order issued pursuant to this bylaw.
The Conservation 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 and may make or cause to be made such examinations, surveys, or sampling as the Commission deems necessary, subject to the constitutions and laws of the United States and the commonwealth.
The Commission shall have authority to enforce the bylaw, its regulations, and permits issued thereunder by letters, phone calls, electronic communication and other informal methods, violation practices, noncriminal citations under MGL c. 40, § 21D, and civil and criminal court actions. Any person who violates provisions of this bylaw may be ordered to restore the property to its original condition and take other action deemed necessary to remedy such violations, or may be fined, or both.
Upon request of the Commission, the Board of Selectmen and Town Counsel shall take legal action for enforcement under civil law. Upon request of the Commission, the Police Chief 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.
Any person who violates any provision of the bylaw, regulations, permits or administrative orders issued thereunder shall be punished by a fine of not more than $300 each day, or portion thereof, during which a violation continues. In addition, any unauthorized fill or other alteration that remains in place shall constitute a separate offense.
As an alternative to criminal prosecution in a specific case, the Commission may issue citations with specific penalties pursuant to the noncriminal disposition procedure set forth in MGL c. 40, § 21D, which has been adopted by the Town of Lancaster in Chapter 1, Article I, Noncriminal Disposition, of the Code of the Town of Lancaster.
Notice of intent plan contents. The plan shall contain sufficient information to describe the nature and purpose of the proposed development, pertinent conditions of the site and the adjacent areas.
The names and addresses of the person(s) responsible for operation and maintenance.
The person(s) responsible for financing maintenance and emergency repairs.
Locus map, taken at 1:25 from USGS. This map should include abutters' properties.
Delineation of all wetlands, rivers, streams, brooks, intermittent streams, ponds, lakes and all riparian areas.
Lines of delineation of twenty-five-foot "no-build" zone; 50 feet from wetlands, 100 feet from wetlands and 200 feet from wetlands.
Drainage area map showing drainage area and stormwater flow paths.
A maintenance schedule for all drainage structures, including swales and ponds.
A list of all existing and proposed easements with the purpose and location of each.
Location of existing and proposed underground utilities.
Location of all existing and proposed stormwater utilities, including structures, swales and detention basins and easements.
Topographic survey showing existing and proposed contours.
Soils investigation, including soil types, borings or test pits, for areas where construction of infiltration practices will occur.
Description of all watercourses, impoundment, and wetlands on or adjacent to the site or into which stormwater flows.
Delineation of one-hundred-year floodplains, if applicable.
Groundwater levels at the time of probable high groundwater elevation (October to May) in areas to be used for stormwater retention, detention or infiltration.
Existing and proposed locations, profiles of all brooks, streams, drainage swales and the method of stabilization.
Proposed improvements, including location of buildings, percentage of impervious surfaces and storm drainage facilities, if applicable.
Structural detail for all components of the proposed drainage systems and stormwater management facilities.
Timing schedules and sequences of development, including clearing, stripping, rough grading, construction, final grading and vegetative stabilization.
Notes on drawings specifying materials to be used, construction specifications.
Location of areas to be cleared of more than 30% of the vegetation.
Plans must be stamped and certified by a qualified Professional Engineer registered in Massachusetts.
An erosion and sediment control plan. An erosion and sediment control plan shall be submitted as part of the application for a notice of intent permit. The plan shall contain sufficient information to describe the proposed erosion and sedimentation controls.
Design requirements. The design requirements of the erosion and sediment control plan are:
No disturbance to any wetland resource area.
Reduced impervious area (redevelopment only).
Sequence activities to minimize simultaneous areas of disturbance.
Use best management practices.
Show review of low-impact development.
Minimize peak rate of runoff in accordance with the Massachusetts stormwater policy.
Minimize soil erosion and control sedimentation during construction, provided that prevention of erosion is preferred over sedimentation control.
Divert uncontaminated water around disturbed areas.
Maximize groundwater recharge.
Install and maintain all erosion and sediment control measures in accordance with the manufacturer's specifications and good engineering practices.
Prevent off-site transport of sediment.
Protect and manage on- and off-site material storage areas (overburden and stockpiles of dirt, borrow areas, or other areas used solely by the permitted project are considered a part of the project).
Comply with applicable federal, state and local laws and regulations, including waste disposal, sanitary sewer or septic system regulations, and air quality requirements, including dust control.
Prevent significant alteration of habitats mapped by the Massachusetts Natural Heritage and Endangered Species Program as endangered, threatened or of special concern, estimated habitats of rare wildlife and certified vernal pools, and priority habitats of rare species from the proposed activities.
Institute interim and permanent stabilization measures, which shall be instituted on a disturbed areas as soon as practicable but no more than 14 days after construction activity has temporarily or permanently ceased on that portion of the site.
Properly manage on-site construction and waste materials.
Prevent off-site vehicle tracking of sediments.
Erosion and sediment control plan contents. The Plan shall contain the following information:
Names, addresses and telephone numbers of the owner, applicant, and person(s) or firm(s) preparing the plan;
Title, date, North arrow, names of abutters, scale, legend, and locus map;
Location and description of natural features, including:
Watercourses and water bodies, wetland resource areas and all floodplain information, including the one-hundred-year flood elevation based upon the most recent Flood Insurance Rate Map, or as calculated by a professional engineer for areas not assessed on these maps;
Existing vegetation, including tree lines, canopy layer, shrub layer, and ground cover, and trees with a caliper of 12 inches or large, noting specimen trees and forest communities;
Habitats mapped by the Massachusetts Natural Heritage and Endangered Species Program as endangered, threatened or of special concern, estimated habitats of rare wildlife and certified vernal pools, and priority habitats of rare species within 500 feet of any construction activity.
Lines of existing abutting streets showing drainage and driveway locations and curb cuts within the wetland buffers;
Existing soils, volume and nature of imported soil materials within the wetland buffers;
Topographical features, including existing and proposed contours at intervals no greater than two feet with spot elevations provided when needed;
Surveyed property lines showing distances and monument locations, and the delineation and number of square feet of the land area to be disturbed;
Drainage patterns and approximately slopes anticipated after major grading activities (construction phase grading plans);
Location and details of erosion and sediment control measures with a narrative of the construction sequencing/phasing of the project, including both operation and maintenance for structural and nonstructural measures, interim grading, and materials stockpiling areas within the wetland buffers;
Path and mechanism to divert uncontaminated water around disturbed areas, to the maximum extent practicable;
Location and description of industrial discharges, including stormwater discharges from dedicated asphalt plans and dedicated concrete plants, which are covered by this permit;
Stormwater runoff calculations in accordance with the Department of Environmental Protection's stormwater management policy;
Location and description of and implementation schedule for temporary and permanent seeding, vegetative controls, and other stabilization measures;
A description of construction and waste materials expected to be stored onsite. The plan shall include a description of controls to reduce pollutants from these materials, including storage practices to minimize exposure of the materials to stormwater, and spill prevention and response;
A description of provisions for phasing the project where one acre of area or greater is to be altered or disturbed;
Plans must be stamped and certified by a qualified professional engineer registered in Massachusetts or a certified professional in erosion and sediment control; and
Such other information as is required by the Conservation Commission.
Operation and maintenance plan. An operation and maintenance plan (OMP) is required at the time of application for all projects. The OMP shall be designed to ensure compliance with the permit, the bylaw and the Massachusetts Surface Water Quality Standards, 314 CMR 4.00, and that they are met in all seasons and throughout the life of the system. The Conservation Commission shall make the final decision of what maintenance option is appropriate in a given situation, and will consider natural features, proximity of site to water bodies and wetlands, extent of impervious surfaces, size of the site, the types of stormwater management structures, and potential need for ongoing maintenance activities when making this decision. The OMP shall remain on file as a part of the order of conditions and shall be a perpetual condition.
The OMP shall include long-term pollution prevention, including:
Good housekeeping practices.
Vehicle washing controls.
Spill prevention and response plans.
Provisions for maintenance of lawns, gardens, and other landscaped areas.
Provisions for operations and maintenance of septic systems.
Requirements for storage and use of fertilizers, herbicides and pesticides.
Snow removal and disposal plans relative to wetlands resource areas.
Winter road salts and/or sand use and storage restrictions.
Street sweeping schedules and disposals.
Provisions for prevention of illicit discharges to the stormwater management system.
Operation and maintenance plan contents.
The name(s) of the owner(s) for all components of the system.
Maintenance agreements that specify:
The names and addresses of the person(s) responsible for operation and maintenance.
The person(s) responsible for financing maintenance and emergency repairs.
A maintenance schedule for all drainage structures, including swales and ponds.
A list of easements with the purpose and location of each.
The signature(s) of the owner(s).
Changes to operation and maintenance plans.
The owner(s) of the stormwater management system must notify the Conservation Commission of changes in ownership or assignment of financial responsibility.
The maintenance schedule in the maintenance agreement may be amended to achieve the purposes of this bylaw by mutual agreement of the Conservation Commission and the responsible parties. Amendments must be in writing and signed by all responsible parties. Responsible parties shall include the owner(s), persons with financial responsibility, and persons with operational responsibility.
Inspections and site supervision.
Preconstruction meeting: Prior to starting any clearing, excavation, construction or land-disturbing activity, the applicant, the applicant's technical representative, the general contractor or any other person with authority to make changes to the project shall meet with the Conservation Agent to review the permitted plans and their implementation.
Board inspection: The Conservation Commission, or its agent, shall make inspections as hereinafter required and shall either approve that portion of the work completed or shall notify the permittee wherein the work fails to comply with the order of condition as approved.
Commercial and housing development addendum. On home/commercial development projects with wetlands/riverfront buffers, wildlife easements or other restrictions, orders of conditions will be written to include the following:
Mark buffers/restrictions before any residential or commercial project commences.
Post a sign at all residential property entrances that informs potential buyers of wetland restrictions that may affect their homeownership. This disclaimer must also be clearly included in all promotional material, including advertising and marketing collateral.
The developer will be required to have from the home purchaser a signed affidavit stating that the purchase understands that he/she is purchasing property with wetlands, riparian areas or wetlands buffers on the property. A copy of this affidavit will be submitted to the Lancaster Conservation Commission within two weeks of sale.
The applicant for a permit shall have the burden of proving by a preponderance of the credible evidence that the work proposed in the permit application will not have unacceptable significant or cumulative effect upon the resource area values protected by this bylaw. Failure to provide adequate evidence to the Conservation Commission supporting this burden shall be sufficient cause for the Commission to deny a permit or grant a permit with conditions.
A decision of the Conservation Commission shall be reviewable in the Superior court in accordance with MGL c. 249, § 4.
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, approval or determination which previously has been issued.
These regulations shall take effect upon approval of the Lancaster Conservation Commission.