These Wetlands Protection Administration Bylaw Regulations (hereinafter referred to as the "Wetlands Regulations") are promulgated by the Commission pursuant to the authority granted to it under Chapter 168 of the Code of the Town of Great Barrington (hereinafter the "Wetlands Bylaw"), as it may be from time to time amended. The Wetlands Bylaw was adopted by a vote at the Annual Town Meeting held in May 1987, under the Home Rule Amendment of the Massachusetts Constitution and the Home Rule Statutes, independent of the Wetlands Protection Act, MGL c. 131, § 40, and the regulations thereunder.
The Wetlands Regulations will be used to implement and enforce
the Wetlands Bylaw and are intended to be read together with the Wetlands
Bylaw, which has many provisions that are not repeated in these Wetlands
Regulations.
All of the definitions, resource area descriptions, procedures
and requirements set forth in the Massachusetts Wetlands Protection
Regulations at 310 CMR 10.00 et seq. are hereby incorporated and made
a part of these Wetlands Regulations, except where they differ from
or depart from these Wetlands Regulations. Where these Wetlands Regulations
differ from the state regulations, these Wetlands Regulations will
be applied in addition to the state regulations. In most instances,
the applicant should first address the state regulations at 310 CMR
10.00 et seq. and then supplement them with these Wetlands Regulations.
The purpose of these Wetlands Regulations is to aid in the consistent
and effective implementation of the Wetlands Bylaw by way of further
definition. The Wetlands Bylaw protects the wetlands, related water
resources, and certain adjoining land areas in the Town by providing
for prior review and regulation of activities deemed to have significant
or cumulative adverse effect upon wetlands values, including but not
limited to the following interests:
A.
Protection of public and private water supplies and quality.
B.
Protection of groundwater supply and quality.
C.
Flood control.
D.
Storm damage prevention.
E.
Erosion and sedimentation control.
F.
Prevention of water and soil pollution.
G.
Protection of fisheries.
H.
Protection and preservation of wildlife habitat.
I.
Recreation values, deemed important to the community.
J.
Agriculture and aquaculture values.
§ 217-14.1.
Resource areas.
The following areas, which are referred to as "resource areas,"
are subject to protection under the Wetlands Bylaw:
A.
Freshwater wetland, lake, pond, marsh, wet marsh,
wet meadow, intermittent stream, or any bog, beach, dune or flat.
B.
River or perennial stream, or any land under said
waters, or any land within a two-hundred-foot distance of said river
and perennial stream.
C.
Land subject to flooding, defined as "floodplain"
by the Great Barrington Flood Boundary Map.
D.
Lake, river, pond or stream that is a public or
private water supply, and land area within a five-hundred-foot distance
of said lake, river, pond or stream.
[Amended 5-25-2022]
E.
Land area within a five-hundred-foot distance of
the Green River upstream of the water supply gallery.
[Amended 5-25-2022]
§ 217-14.2.
Buffer zones.
A.
Any land within 100 feet horizontally outward from
Resource Areas A and B protected by the Wetlands Bylaw shall be referred
to as the "buffer zone." (Riverfront areas and land subject to flooding
do not have a buffer zone.)
B.
The purposes of protecting buffer zones include
maintaining a continuous cover of locally indigenous vegetation that:
(1)
Reduces water pollution by providing a natural
filter to absorb nutrients and chemicals contained in road runoff,
fertilizers, pesticides and other contaminants.
(2)
Slows surface water runoff to reduce soil erosion
and siltation of surface waters.
(3)
Maintains ambient shade conditions to preserve
natural water temperature regimes, to protect indigenous aquatic amphibian
and reptilian life.
(4)
Provides wildlife habitat and corridors for wildlife
movement.
(5)
Acts as a filter zone to protect water supplies
and prevent pollution.
§ 217-14.3.
Streams (intermittent).
A.
Intermittent streams are important for storm damage
prevention, flood control, groundwater protection, wildlife habitat,
and recreation values. During spring, summer, and fall, these streams
disperse snow melt and storm runoff across the landscape, thereby
preventing dangerous volumes and flows from spilling over roadways
and property. This broad dispersal also allows for larger volumes
of water to infiltrate into the ground, recharging groundwater supplies.
B.
Intermittent streams are an essential source of
food and water for wildlife and are often the only source of water
in higher-elevation areas of Town. The moist soils that border intermittent
streams are significantly richer in herbs and flowering/fruiting plants,
the base trophic level of food, that surround upland areas.
C.
During all seasons, but especially in winter and
spring, intermittent streams act as essential corridors for animal
movement when food is scarce. Some animals, such as pickerel frogs
and eastern spotted newts, rely heavily on intermittent streams for
movement.
D.
For these reasons, the upland areas surrounding
intermittent streams are heavily utilized by wildlife for living space,
breeding, feeding, migrating, dispersal, and security.
E.
Accordingly, these Wetlands Regulations protect
intermittent streams of all forms and the adjacent buffer zone within
100 feet of those streams.
§ 217-14.4.
Rivers (perennial streams).
A.
For the purposes of the Wetlands Bylaw, the protections
afforded to riverfront areas under the 1996 amendment to the Massachusetts
Wetlands Protection Act shall extend the reach of jurisdiction 200
feet from the mean annual high-water line (MAHWL) of a stream or river
as specified by the Act. Additional regulations apply to the Green
River and its upstream tributaries; see § 217-14.5.
As used in this article, the following terms shall have the
meanings indicated:
Any landowner, as determined by the most-recent Assessor's
records, whose land abuts the property that is the subject of the
request for determination or the notice of intent or whose land lies
directly opposite on any public or private street or way and owners
of land within 300 feet of the property line.
Anyone appointed or assigned by the Commission to serve as
its representative.
Includes, without limitation, the following activities when
undertaken to, upon, within or affecting resource areas protected
by these Wetlands Regulations:
Removal, excavation, or dredging of soil, sand, gravel, or aggregate
materials of any kind.
Changing of preexisting drainage characteristics, flushing characteristics,
sedimentation patterns, flow patterns, or flood retention characteristics.
Drainage or other disturbance of water level or water table.
Dumping, discharging, or filling with any material which may
degrade water quality.
Placing of fill or removal of material which would alter elevation.
Driving of piles or erection or repair of buildings or structures
of any kind.
Dredging or filling of land under water bodies.
Placing of obstructions or fixed objects in water.
Destruction of plant life, including cutting of trees.
Changing temperature, biochemical oxygen demand, or other physical,
biological, or chemical characteristics of any waters.
Any activities, changes, or work which may cause or tend to
contribute to pollution of any body of water or groundwater, including,
without limitation, any activity that may cause surface water runoff
contaminated with sediments, chemicals, or animal wastes.
Application of pesticides or herbicides.
Storage of floodwaters and stormwater runoff waters.
The individual or entity filing an application.
The land area which normally abuts and confines a water body,
the lower boundary being the mean annual low-flow level, and the upper
boundary being the first observable break in the slope or the mean
annual high-water line, whichever is higher.
Touching.
The boundary of an area subject to protection under the Bylaw.
Any land within 100 feet horizontally outward from the edge
of Resource Areas A and B described in § 217-14.1 of these
Wetlands Regulations.
The Great Barrington Conservation Commission.
Those requirements set forth in a written permit issued by
the Commission for the purpose of permitting, regulating, or prohibiting
any activity that removes, fills, dredges, builds upon, or alters
an area subject to protection under the Wetlands Bylaw.
Includes, without limitation, any outfall of water that empties
into the resource area or adjacent upland resource, including infiltration.
To deepen, widen, or excavate, either temporarily or permanently.
The prevention or reduction of the detachment or movement
of soil or rock fragments by water, wind, ice and/or gravity.
Existing in full on or after the effective date of these
Wetlands Regulations, unless specified otherwise in the Wetlands Bylaw.
To deposit any material so as to raise an elevation, either
temporarily or permanently.
The prevention or reduction of flooding and flood damage.
Includes bog, swamp, marsh, wet meadow, pond, or lake as
defined in MGL, c. 131, § 40.
Water below the earth's surface in the zone of saturation.
As defined in MGL, c. 131, § 40.
The bottom of, or land under the surface of, any lake, river,
pond, stream, or watercourse.
More than half of the members of the Commission then in office.
The line represented by bankfull conditions when they occur
above the first observable break in slope. If no break in slope exists,
the MAHWL will be represented by other bankfull indicators as specified
in 310 CMR 10.58.
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.
Such data, maps, engineering drawings, calculations, specifications,
schedules or other materials, if any, deemed necessary by the Commission
to describe the site and the activity; to determine the applicability
of the Wetlands Bylaw; or to determine the impact of the proposal
upon the interests in the Wetlands Bylaw.
Any open body of fresh water with a surface area observed
or recorded within the last 10 years of at least 5,000 square feet.
Ponds shall contain standing water except for periods of extended
drought.
Any source or volume of surface water or groundwater demonstrated
to be in any private use or demonstrated to have a potential for private
use.
Any bank, freshwater wetland, marsh, bog, wet meadow, or
swamp bordering on any creek, river, stream, pond, or lake, or any
land under said waters, or any bordering thereon, or any land subject
to flooding or inundation.
Any source or volume of surface water or groundwater demonstrated
to be in public use or approved for public water supply in accordance
with the Massachusetts Drinking Water Regulations under 310 CMR 22.02
and the Federal Safe Drinking Water Act.
To take away any type of material, thereby changing an elevation,
either temporarily or permanently.
Refers to a perennial stream as defined in § 217-14.4.
The prevention or reduction of the collection or concentration
of sand, soil, or rock fragments by the action of water, wind, ice,
or gravity.
Plays a role. A resource area is significant to an interest
identified in the Wetlands Bylaw when it plays a role in the provision
or protection, as appropriate, of that interest.
Refers to a body of running water, including brooks and creeks,
which moves in a definite channel in the ground due to hydraulic gradient.
An "intermittent stream" is a defined channel with a hydraulic gradient
through which water flows during part of the year and which either
flows out of, into, or within a wetland resource under the Wetlands
Bylaw. A portion may flow through a culvert or under a bridge.
Includes Alford Brook, Seekonk Brook, and Long Pond Brook.
Refers to areas having plant community composition and structure,
hydrologic regime, or other characteristics sufficient to provide
shelter, nutrient sourcing, growing conditions, nesting or breeding
sites conductive to the propagation and preservation of wildlife.
The same as activity, as defined at 310 CMR 10.04.
Within 100 feet horizontally outward from the edge of a resource
area, 200 feet horizontally outward from the mean annual high-water
line (MAHWL) of a river or perennial stream, and within 500 feet of
the Town water supply galleries at the Green River, Long Pond, and
any other bodies of water utilized as Town drinking water, any activity
proposed or undertaken which, in the judgment of the Commission, alters
an area subject to protection under the Wetlands Bylaw is subject
to regulation under the Wetlands Bylaw and requires the filing of
a notice of intent (NOI). If the applicant is in any doubt as to whether
an activity is subject to regulation, a request for a determination
of applicability (RDA) should be filed.
All documentation, including plans, maps, tables, charts, reports,
etc., to be considered as part of a permit filing by the applicant
must be submitted to the Commission in accordance with § 217-18.1
of these Wetlands Regulations.
The purpose of the request for determination of applicability
(RDA) is to allow the Commission to determine whether the proposed
project will alter a resource area such that the filing of a notice
of intent will be required.
§ 217-18.1.
Submission requirements.
A.
It is the applicant's responsibility to provide
all of the information required for this review. All forms used in
the application and permit process under the Wetlands Bylaw may, at
the discretion of the Commission, be the same as those forms used
under the Massachusetts Wetlands Protection Act, MGL, c. 131, § 40,
and 310 CMR 10.00. The form used for a request for determination of
applicability is WPA Form 1. Nine copies of the RDA shall be hand-delivered
to the Town Clerk's office or mailed to the Commission. The RDA shall
be accompanied by a filing fee in the amount of $75, payable to the
Town of Great Barrington.
§ 217-18.2.
Determination by Commission.
A.
Within 21 days of the filing of the RDA, the site
will be visited by the Commissioners and agent, and the Commission
will conduct a public hearing. This hearing will be advertised by
legal notice in a newspaper of general circulation in Great Barrington
at least five business days prior to the public hearing. That applicant
shall give written notice by certified mail or via certificate of
mailing, at least five business days prior to the public hearing,
to all abutters, from a list certified as accurate by the Assessors
according to their most recent records. The notice shall give the
time, date, and location of the public hearing, briefly describe the
request, and shall state where copies of the request may be examined.
Notice of the public hearing may be given concurrently under both
the Wetlands Protection Act and the Wetlands Bylaw.
B.
Before the public hearing is opened, the applicant
shall furnish to the Commission a copy of the Assessors' certified
list of abutters and proof of mailing. If these items are not furnished
to the Commission, the public hearing will not be opened and a new
public hearing will be rescheduled within the next 21 days.
C.
The hearing must be attended by the applicant or
a representative of the applicant who has sufficient knowledge of
the proposed activity and can therefore answer any questions raised
by the Commission. The applicant shall have the boundaries of the
wetland area flagged prior to the site inspection with the Commission.
The Commission may request that the boundary of a resource area be
flagged by a biologist, botanist, or other qualified person who has
demonstrated sufficient expertise in the identification of wetland
vegetation. The vegetated limits of a bordering vegetated wetland
or of an isolated land subject to flooding, and the parameters used
in delineating wetlands, shall be those described in MGL, c. 131,
§ 40, and regulations thereunder.
D.
The Commission may, at its discretion, combine its
public hearing under the Wetlands Bylaw with the hearing conducted
under the Wetland Protection Act, MGL, c. 131, § 40. The
public hearing shall not be closed until all material has been submitted
to the Commission necessary for the Commission to make its determination.
E.
The Commission shall, within 21 days from the close
of the public hearing, issue its determination of applicability. A
negative determination means the proposed project will have a minimal
impact on an area subject to protection, and the project is approved
as presented or approved with written conditions. A negative determination
is valid for three years. A positive determination means the project
may have more than minimal impact on a resource area or that the project
area is determined to be in a resource area, in which case the submission
of a notice of intent is required.
Any person who proposes to do work that will remove, fill, dredge,
build upon, or alter any area subject to protection under the Wetlands
Bylaw shall submit a notice of intent consisting of application materials
required for a notice of intent under MGL c. 131, § 40,
and 310 CMR 10.00.
§ 217-19.1.
Notice of intent submission
requirements.
A.
The applicant will submit nine complete copies of the notice of intent with site plans, and supporting documentation, along with a check to the Town Clerk's office. The filing fee for a notice of intent under the Wetlands Bylaw shall be as set forth in § 217-6. The application fee shall be waived when the applicant is the Town of Great Barrington.
B.
Return the original plus eight copies to:
Great Barrington Conservation Commission
Town Hall, 334 Main Street
Great Barrington, MA 01230
C.
Include plans that show (at a minimum):
(1)
Plans signed, dated and stamped by a professional
engineer, land surveyor or landscape architect.
(2)
Existing conditions, including a North arrow, a
scale, property boundaries, two-foot topographic contours, borders
of any wetland resource areas on or within 100 feet of the applicant's
property, including buffer zones, Natural Heritage data (if applicable),
and high-water mark for all water bodies.
(3)
Proposed conditions, including work limits and
location of erosion controls, areas where vegetation will be altered,
proposed contours and amount of fill required to be added or removed
if needed, construction details and sequence, equipment access routes
and storage/parking areas during proposed work if needed, all aboveground
structures and all physical alterations proposed, existing natural
drainage patterns and proposed alterations if needed, all below-ground
alterations and structures, location, capacity and design details
of on-site septic system, distance of proposed on-site leaching facility
to wetlands, watercourses or other resource areas, and location of
all existing and proposed wells on property.
§ 217-19.2.
Determination by Commission
for review of notice of intent.
A.
Within 21 days of the filing of the NOI, the site
will be visited by the Commissioners and the agent. The following
markings and flagging must be in place before the field inspection,
where applicable:
(1)
Edges of wetlands must be flagged with numbered
flags, as reflected on submitted maps. The boundary of a wetland area
shall be flagged by a biologist, botanist, or other qualified person
who has demonstrated sufficient expertise in the identification of
wetland vegetation. The limits of a vegetated wetland or of an isolated
land subject to flooding, and the parameters used in delineating wetlands,
shall be those described in MGL, c. 131, § 40, and regulations
thereunder (310 CMR 10.55).
(2)
All proposed structures or additions, including
decks, must be staked for identification purposes at all corners;
stakes must be numbered and labeled.
(3)
Septic tank, leaching field, and well locations
must be staked with labeled stakes.
B.
The Commission shall open a public hearing within
21 days of acceptance of a complete notice of intent. The hearing
will be advertised, at the applicant's expense, by legal notice in
a newspaper of general circulation in Great Barrington at least five
business days prior to the public hearing. The applicant shall give
written notice by certified mail or via certificate of mailing, at
least five business days prior to the public hearing, to all abutters,
from a list certified as accurate by the Assessors according to their
most recent records. The notice shall give the time, date, and location
of the public hearing, briefly describe the notice, and shall state
where copies of the notice may be examined.
C.
Before the public hearing is opened, the applicant
shall furnish to the Commission a copy of the Assessors' certified
list of abutters and proof of mailing. If these items are not furnished
to the Commission, the public hearing will not be opened and a new
public hearing will be rescheduled within the next 21 days.
D.
The hearing must be attended by the applicant or
a representative of the applicant who has sufficient knowledge of
the proposed activity and can therefore answer any questions raised
by the Commission. Any public hearing held under the Wetlands Bylaw
may be continued to a date, time, and place announced at the hearing,
or may be continued to a specific date and time at the applicant's
request, so as to allow the applicant sufficient time to produce supplemental
information which the Commission deems necessary to make a decision.
If the applicant does not consent to a continuance of the public hearing,
the Commission may close the public hearing and consider only that
material in the notice of intent obtained at the time of the close
of the public hearing. Failure or refusal of the applicant to produce
additional information as requested by the Commission may be cause
for denial of a permit.
A.
Within 21 days of the close of a public hearing, the Commission shall
issue a permit approving the project or deny approval of the project.
The written decision shall be signed by a majority of the Commission.
If the project is approved, the Commission shall impose such conditions
as are necessary for the protection of the interests identified in
the Wetlands Bylaw.
B.
No work shall be undertaken until the order has been signed by the
Commission and then has been recorded by the applicant in the Registry
of Deeds or the land registration office of the Land Court for Southern
Berkshire County, within the chain of title of the affected property.
A copy of such filing shall be sent to the Commission, including the
book and page or document reference numbers.
C.
If work commences before the permit is recorded, the Commission may
issue an enforcement order.
D.
The Commission must be notified when all erosion controls are in
place to conduct a site visit. Under no circumstances shall work begin
until the erosion controls are inspected and approved by a Commissioner
or agent.
E.
Any change made or intended to be made in the plans shall require
the applicant to file an amended notice of intent or to inquire in
writing of the Commission whether the change is so substantial as
to require a new filing. The applicant shall not proceed with any
change until the Commission issues its written approval.
F.
Under the Wetlands Bylaw, a permit shall prohibit any work or portion
thereof that cannot be conditioned to protect said interests. If the
permit is denied, it shall be for one or more of the following reasons:
(1)
For failure to meet the requirements of the Wetlands Bylaw.
(2)
For failure to submit necessary information or plans requested by
the Commission.
(3)
For failure to avoid or prevent unacceptable or cumulative effects
upon the wetland interests protected by the Wetlands Bylaw.
(4)
Where no conditions are adequate to safeguard the wetland interests
protected by the Wetlands Bylaw.
G.
A permit shall be valid for three years.
A.
The Commission may extend a permit twice for an additional one-year
period. Requests for extensions shall be made to the Commission in
writing at least 30 days prior to the expiration of the permit.
B.
The extension permit shall be signed by the Commission and recorded
by the applicant in the Southern Berkshire Registry of Deeds or land
registration office of the Land Court. A copy of the recording shall
be sent to the Commission, including the book and page or document
number reference of the recording.
C.
If work is undertaken without the applicant so recording the extension
permit, the Commission may issue an enforcement order.
D.
If the applicant does not request an extension for his project at
the end of the three-year period of the order of conditions, any work
on the project must stop until after a new notice of intent has been
filed with the Commission and a new order of conditions duly issued
and recorded.
A.
Upon completion of the work described herein, the applicant shall
submit a written request for a certificate of compliance, WPA Form
8A. The Commission shall act upon the request within 21 days. For
projects completed according to plans stamped by an engineer or other
registered professional, the request must include written indication
(usually a letter) from such a professional that the work was completed
substantially in compliance with the permit and explain any deviations,
if any. Prior to the issuance of a certificate of compliance, a site
inspection shall be made by a Commissioner or agent, in the presence
of the applicant or a representative of the applicant.
B.
If the Commission finds that all general and special conditions have
been met, and the project has proceeded according to the approved
plans, a certificate of compliance is issued.
C.
If the Commission determines, after review and inspection, that the
work has not been done in compliance with the permit, it may refuse
to issue a certificate of compliance. A partial certificate of compliance
may be issued for a portion of a project, as long as all work and
mitigation for that portion have been completed.
D.
If the permit contains conditions which continue past the completion
of the work, such as maintenance or monitoring, the certificate of
compliance shall certify which, if any, of such conditions shall continue.
The certificate shall also specify to what portions of the work it
applies, if it does not apply to all the work regulated by the permit.
E.
The certificate of compliance (including any continuing conditions)
will be recorded by the applicant in the Southern Berkshire Registry
of Deeds or land registration office of the Land Court. Certification
of recording shall be sent to the Commission.
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 these regulations and may make or cause to be made such
examinations, surveys, or sampling as the Commission deems necessary.
B.
The Commission shall have authority to enforce this chapter, its
regulations, and permits issued thereunder by violation notices, administrative
orders, and civil and criminal court actions.
C.
Upon request of the Commission, the Board of Selectmen 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.
D.
Municipal boards and officers, including any police officer or other
officer having police powers, shall have authority to assist the Commission
in enforcement.
E.
Any person who violates any provision of these regulations or permits
issued thereunder shall, upon conviction, be punished by a fine of
not more than $300. Each day or portion thereof during which a violation
continues shall constitute a separate offense, and each provision
of the chapter, regulations or permit violated shall constitute a
separate offense.
F.
In the alternative to criminal prosecution, the Commission may elect
to utilize the noncriminal disposition procedure set forth in MGL,
c. 40, § 21D.
Exemptions clearly stated in the Wetlands Protection Act and
regulations thereunder are not extinguished by these Wetlands Regulations.
As part of a permit issued under these Wetlands Regulations,
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 by a
performance guarantee, as follows:
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; or
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 the Town of Great Barrington,
whereby the permit conditions shall be performed and observed before
any lot may be conveyed other than by mortgage deed.
A.
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 the Wetlands Bylaw. Failure to
provide adequate evidence to the Commission supporting this burden
shall be sufficient cause for the Commission to deny the application
for a permit, along with any work or activity proposed herein.
B.
The invalidity of any section or provision of the rules and regulations
to the Wetlands Bylaw shall not invalidate any other section or provision
thereof, nor shall it invalidate any permit or determination which
previously has been issued.
The effective date of these Wetlands Regulations will be the
date on which these Wetlands Regulations are approved by vote of the
Commission. These Wetlands Regulations will apply to all business
of the Commission conducted after that date. These Wetlands Regulations
were adopted on June 25, 1990, and amended in February 5, 2009.
