[HISTORY: Adopted by the Conservation Commission of the Town
of Barnstable 6-1-2010. Amendments noted where applicable.]
A.
Chapter 237, Wetlands Protection, of the General Ordinances of the Code of the Town of Barnstable, explicitly protects the values of the natural resources of its foreshores, intertidal areas and the Commonwealth of Massachusetts' tidelands and waters as well as inland wetlands, ponds and lakes.
C.
The construction, use, and maintenance of shore outhauls are likely
to have a significant or cumulative adverse effect on the wetland
resource values of storm damage prevention, fin and shellfisheries,
wildlife habitat, erosion and sediment control, and recreation. Construction
and use of shore outhauls can have adverse effects on resource areas
and on the use of these areas for recreational purposes. Further,
shore outhauls destroyed by storms pose a threat to nearby properties
by increasing waterborne debris.
D.
Turbulence, such as caused by jet-drive boats, and propeller dredging
generated by boat use with shore outhauls significantly increase turbidity
levels. High turbidity levels attenuate light. Light is necessary
for the photosynthetic process responsible for the primary productivity
and oxygen regeneration of the water. The suspended sediments settle
on shellfish beds, smothering existing shellfish and altering the
quality of the benthic environment essential for spat (mollusk larvae)
settlement. Resuspension of bottom sediments causes redistribution
of sediments, alteration in sediment grain size distribution and causes
changes in bottom topography relief, elevation and grade, induding
creation of depressions in the bottom. Settlement of sediments into
depressions can create deep pockets of highly fluid-like sediment
which may not be able to physically support shellfish or which can
become anoxic and therefore not support shellfish. Disturbance of
sediments during the period of shellfish larval settlement hinders
or prevents the effective settlement of shellfish larvae. Boat traffic
generated from shore outhauls will add to this disruption and may
cause erosion of banks and marshes.
E.
Construction of shore outhauls and subsequent boat activity causes
resuspension of nutrient-laden sediment particles which may cause
a release of sediment-bound nutrients to the water column resulting
in a "bloom" of vegetation. Release of nutrients to the water column
leads to eutrophication and anoxic bottom conditions. Anoxic sediments
and anoxic bottom conditions create adverse impacts on benthic resources,
including shellfish and fisheries.
F.
Propeller turbulence near or in areas of submerged aquatic vegetation,
such as eel grass, or salt marsh damages vegetation, thereby increasing
the rate at which organic detritus is produced. If this organic detritus
does not completely decompose aerobically, then anoxic bottom conditions
will ensue, which adversely impact shellfish and fisheries.
G.
Cumulative impacts of the construction and use of shore outhauls
threaten to decrease the overall productivity of the marsh ecosystem,
to reduce its ability to absorb storm wave energy, and to reduce its
contribution to groundwater and surface water quality. Cumulative
impacts also affect shellfish habitat and shell fishing.
H.
Shore outhauls, when placed in land containing shellfish or shellfish habitat, have an adverse impact on the resource area value of recreation. The placement of shore outhauls can interfere with the harvesting of quahogs, soft shell clams, oysters, and scallops. Shore outhauls can have an unacceptable significant or cumulative effect on habitat and recreation as defined in § 237-13 of Chapter 237, Wetlands Protection, of the General Ordinances of the Code of the Town of Barnstable.
I.
Shore outhauls, depending on their length (distance from shore of
their seaward piling), can have an adverse impact on recreation by
interfering with recreational boating activities. Shore outhauls can
interfere with intertidal lateral access for recreational fishing
and fowling. Any proposal that affects navigation is likely to have
a significant or cumulative adverse effect on recreation. The crowding
or clustering of several outhauls on one parcel may exacerbate the
adverse impacts to recreation.
J.
Shore outhauls conforming to the following regulations can be presumed
to minimize the aforementioned possible negative impacts.
K.
All shore outhauls in Barnstable shall be governed by these regulations,
whether accessory to residential use or serving commercial, yacht
club, association, community, Town or other purpose.
As used in this chapter, the following terms shall have the
meanings indicated:
The maximum depth of a vessel as measured from the surface
of the water to the deepest part when loaded to the manufacturer's
maximum load specification. In vessels equipped with outboard or I/O
engines, draft shall be measured with its propulsion unit in its lowest
operating position.
The present arithmetic mean of water heights observed at
high tide over a specific nineteen-year metonic cycle determined by
using hydrographic survey data of the National Ocean Survey and the
U.S. Department of Commerce.
The average of the lower low water heights of each tidal
day as established by the arithmetic mean of water heights observed
at low tide over a specific nineteen-year metonic cycle determined
by using hydrographic survey data of the National Ocean Survey and
the U.S. Department of Commerce.
The arithmetic mean of water heights observed at low tide
over a specific nineteen-year metonic cycle determined by using hydrographic
survey data of the National Ocean Survey and the U.S. Department of
Commerce.
Any vessel propelled by machinery, whether or not such machinery
is the principal source of propulsion (M.G.L. c. 90B, § 1).
The ability to traverse a waterway by watercraft.
Pier outhauls are similar to shore outhauls but are connected in some way to a pier. Pier outhauls are subject to a different set of regulations (Ch. 703, Private Docks and Piers).
The securing and retrieval system of the shore outhaul, including
the line and seaward piling, is not in place prior to April 1 of each
year and is removed prior to November 1 of each year.
Areas below MHW that exhibit, or can be demonstrated to have
exhibited within a reasonable historical period, characteristics.
including but not limited to sediment type, grain size, circulation
patterns, hydrologic regime, water chemistry, plant and algal communities,
food supply, and normal predation patterns necessary to support shellfish
species populations. A determination of shellfish habitat can be based
on the results of a site analysis and/or on current or historic shellfish
productivity, municipal shellfish population development programs,
or as shown on any maps or reports developed by the Marine and Environmental
Affairs Division filed with the Commission and the Town Clerk (for
example, the "Significant Shellfish Resource and Habitat Area Mapping
Project for the Three Bay Area," dated August 21, 2000). Shellfish
relay areas are presumed to be good habitat. Absence of shellfish
shall not be solely determinative of the quality of shellfish habitat
due to the cyclic nature of shellfish population.
The entire structure of any boat securing and retrieval system
by which a boat is secured to a line connecting a piling located in
the water, and a post or similar structure on or near the shore. The
shore outhaul system enables the craft to be retrieved for boarding
or loading, and returned for securing following use.
A.
Forms to be used to seek approval for new or existing shore outhauls:
(2)
A Request for Determination of Applicability (RDA) is required for any new or existing shore outhaul on which exclusively nonmotorized (and nonregistered) boats are to be secured, or where the application seeks approval based on conditions that satisfy the grandfathering criteria as set forth below under Subsection A(4). Commission Guidelines for Filing an RDA Application shall be followed. Sketch plans are allowed. A copy of the RDA application shall be mailed (first-class postage) to the Harbor Master and, if the shore outhaul is to be located in salt water, to the Shellfish Biologist. Their address is 1189 Phinney's Lane, Centerville, Massachusetts 02632.
(3)
Where an RDA has been filed, the Commission may determine that an
NOI is necessary for any outhaul that is located in a high value shellfish
habitat, or in a shellfish relay area, or where in its opinion the
greater detail provided in the NOI filing requirements is necessary
to aid the Commission in making its decision.
(4)
Grandfathering. An existing shore outhaul may be considered grandfathered only when it qualifies under one of the following Subsections A(4)(a) or (b).
(a)
A Chapter 91 license has been issued by the Commonwealth of
Massachusetts prior to the adoption of these regulations by the Conservation
Commission. Notwithstanding any prior Chapter 91 approval of a currently
existing shore outhaul, an appropriate application for continued use
must be filed with the Commission using the RDA permitting process
described above.
(b)
Grandfathering may also be extended for existing shore outhauls, provided that the applicant submits the following information under either Subsection A(4)(b)[1] or [2] below:
[1]
Written proof of local approval granted prior to the construction and initial deployment of the shore outhaul and prior to the adoption of Chapter 711 by the Conservation Commission. The local approval shall have been granted by a Town authority such as the Board of Selectmen or Town Council, Town Manager, Building Commissioner, Conservation Commission or other Town authority deemed appropriate by the Commission. Proof of the above prior approval shall be in the form of a specific permit, such as a building permit, bearing the date and signature of the issuing authority, or published minutes from a public meeting of a Town Board, or a signed letter from a Town authority on official letterhead or other proof as may be deemed acceptable by the Conservation Commission. Following Commission approval of an appropriate application under the RDA permitting process described above, the local permit holder must apply for and receive a Chapter 91 license from the Massachusetts Department of Environmental Protection.
[2]
Upon submission of evidence, which the Commission deems satisfactory,
that an existing shore outhaul or outhauls were in existence prior
to January 1, 1973, the effective date of wetlands protection permitting
in the Town of Barnstable. This evidence shall include an affidavit,
signed under the pains and penalties of perjury, documenting that
the construction and initial deployment of a shore outhaul or outhauls,
as in the case of a community or association beach, occurred prior
to that date and has been continuously maintained since that date.
The Conservation Commission may require additional information, including,
but not limited to, dated photographs, vessel history, and other documentation
that are reasonably necessary for it to make its determination. Following
Commission approval of an appropriate application under the RDA permitting
process as described above, the local permit holder must apply for
and receive a Chapter 91 license from the Massachusetts Department
of Environmental Protection.
(5)
For all existing shore outhauls (including those to be permitted
as being grandfathered) the deadline for application shall be no later
than October 1, 2010. Upon request, the Conservation Commission or
its staff may extend the deadline.
B.
Notices of intent: Except where noted below, Commission regulation Ch. 707, Submission Requirements for Notice of Intent Applications shall be adhered to. In addition, one copy of the NOI shall be provided to each person on the following list, by certified mail or hand-delivered, with a proof of mailing or receipt included in the NOI.
C.
The applicant shall provide evidence to the Conservation Commission
at the time of the notice of intent filing that such copies have been
mailed or delivered. The project shall be clearly identified, staked
and marked on the landward end, and staked or buoyed at the seaward
end at least two weeks prior to the hearing.
D.
Any Notice of Intent (required for motorcraft use of a shore outhaul)
shall include:
(1)
Brief comments, where appropriate, on each of the guidelines.
(2)
Length, draft and type of boats, horsepower and type of propulsion
system intended for use at the shore outhaul, including the depth
of the propulsion system in its lowest position.
(3)
Locus identified by Town Assessor's map and parcel number, and
by street number, street and village.
(4)
Locus shown on Assessor's map.
(5)
Daytime telephone number of applicant, or name and telephone number
of applicant's agent.
(6)
A shellfish survey (saltwater outhauls only), including an analysis
of shellfish habitat suitability, and substrate sediment analysis.
The minimum area surveyed shall be 50 feet in any direction from the
area to be occupied by the shore outhaul. The actual samples shall
represent no less than 0.5% of this area.
(7)
The shellfish survey report shall include as a minimum:
(a)
The resume of the person(s) conducting the survey, including
their qualifications for conducting such a survey;
(b)
The date, time of day and tidal conditions at the time of the
survey;
(c)
A narrative explaining the methodology and equipment utilized,
location and number of transects/quadrants utilized, results obtained,
observations and conclusions.
E.
The project plans shall show:
(1)
A description of all materials to be used and the method of pile
installation; when near shellfish habitat, the type of precautions
used to ensure the barge and equipment used will not damage shellfish
habitat.
(2)
Soundings within 100 feet of the shore outhaul and from the shore
outhaul to the closest marked channel. Depth shall be measured to
the top surface of soft sediments. Soundings shall be of sufficient
density to allow the exact determination of water depths around the
proposed shore outhaul, and to the closest navigable channel. The
soundings shall show the MLW in the areas where the proposed boat
will be secured.
(3)
Data shall be supplied to the Commission showing the time and date
of the depth survey, the existing weather conditions, the state of
the tide and the actual depths measured from water surface to the
bottom. The methodology used to determine MLW and MHW shall be given.
If MLW or MHW is derived from NGVD or other reference datum, an explanation
of the calculations used must be included in the narrative.
(4)
Marked or recognized navigation channels within 100 feet of the proposed
shore outhaul.
(5)
Any moorings within 100 feet of the proposed shore outhaul and information
affixed to those moorings.
(6)
Location of other existing shore outhauts, Town landings (ways-to-water),
public, association or community beaches, shellfish propagation or
relay areas, and designated Town shellfishing areas within 300 feet
of the proposed shore outhaul.
(7)
Approximate shoreward boundary of any existing public or commercial
mooring area within 200 feet of the proposed shore outhaul. (A recent
aerial photograph, taken during the summer boating season, may be
used for this purpose, if desired.) Proximate moorings shall be shown
on plan.
(8)
Location of existing piers and docks within 200 feet of the proposed
shore outhaul.
(9)
The plan shall have the official stamp of a registered civil engineer
or land surveyor.
F.
In addition to the above requirements, the applicant shall comply
with the Submission Requirements Checklist available at the Conservation
Commission office.
G.
A Notice of Intent may not be accepted or approved by the Conservation
Commission unless all of the foregoing requirements have been completed.
If any section does not apply, such inapplicability shall be indicated.
A.
Private shore outhauls, being structures accessory to and appurtenant
to dwellings, will be permitted only on land contiguous to the dwelling
being served, except where unusual circumstances of longstanding may
apply, such as where the dwelling is separated from the shore by a
road, or at a community or association beach, wherein the outhaul
owner has standing. No private shore outhaul shall be constructed
in the frontage of Town-owned parcels, including, but not limited
to, public ways-to-water, landings, ramps, docks, beaches or conservation
areas.
B.
No shore outhaul, even if otherwise permitted, may be constructed
when it is appurtenant to a residential dwelling until an occupancy
permit has been issued for that dwelling.
C.
Only non-CCA material may be used in the construction of the shore
outhaul. Lead caps are not permitted. No creosote-treated materials
may be used.
D.
The DEP number and permit limitations sign shall be placed on the
seaward piling visible from seaward. The designated color-code decal
shall also be placed on the seaward piling, visible from both landward
and seaward.
E.
No shore outhaul's seaward piling shall extend further from
shore than:
(1)
A point 35 feet from a publicly used channel, either a marked channel
or a channel as defined by historic use.
(2)
Is necessary to attain a depth of water at mean low water suitable
for a private use of the shore outhaul that is consistent with protection
of the wetland resources adjacent to the site and uses of the adjacent
waters and wetlands by the public in pursuit of the interests protected
under the Town of Barnstable Wetlands Protection Ordinance,[1] but not greater than 50 feet from mean low water.
F.
Notwithstanding any other provision pertaining to length, no shore
outhaul shall be longer than is necessary to attain the minimum depths
required herein, and may not obstruct waterways or foreshores normally
used for recreation.
G.
The shore outhaul shall be as close as possible to the center line
of the lot, and it shall project outwards at an angle as nearly perpendicular
to the shoreline as possible.
H.
Within the limits of performance standards governing overall length
of shore outhauls, the following depth requirements must be met for
motorized vessels, with these draft requirements continuing over time:
(1)
In areas determined to be of high-value shellfish habitat, the minimum depth under the draft of the boat must be 30 inches at MLW. High-value shellfish habitats are those found to be significant to the provision or protection of the wetland values protected under Chapter 237, Wetlands Protection, of the General Ordinances of the Code of the Town of Barnstable. Any area rated six or above on any maps or reports developed by the Natural Resources Division and filed with the Commission and the Town Clerk shall be presumptively considered a high-value shellfish area.
(2)
In areas determined not to be high-value shellfish habitat, the minimum
depth under the draft of the boat must be 12 inches at MLW.
(3)
For vessels using unconventional drive systems, such as but not limited
to jet-drives, the applicant, in addition to meeting the above minimum
depth requirements, must further demonstrate that the water depth
is adequate to protect the interests herein referenced.
(4)
To prevent bottom scouring, the above-described minimum depths must
exist not only at the shore outhaul where a boat is to be secured
but also between the shore outhaul and the nearest navigable channel
or open water. When secured to the retrieval system, the boat shall
be kept at the seaward piling.
I.
Notwithstanding any other provisions contained herein, no shore outhaul
shall be permitted within an ACEC (area of critical environmental
concern).
J.
Shore outhauls shall be constructed so as to not interfere with any
longstanding public recreational use of the waterway, e.g., an area
used by sailboats tacking through a narrow waterway, an area used
by boaters or others because of unique wind or current conditions,
a structure that would interfere with public access to or from a way-to-water.
K.
All shore outhauls shall be seasonal, as defined under § 711-2, and pile dimensions shall not exceed four inches by four inches.
L.
Motorboats shall not be operated until minimum permitted depths are
reached.
M.
A permit holder who knowingly violates the regulations listed in § 711-4 or fails to meet the general and special conditions listed in the Order of Conditions, or the special conditions listed in the Determination of Applicability, may be subject to enforcement action by the Conservation Commission, including, but not limited to, temporary or permanent revocation of the shore outhaul permit if deemed appropriate by the Conservation Commission at the conclusion of a public hearing.
A.
When a proposed project involves the dredging, removing, filling, altering or causing of a potentially adverse effect to an area subject to protection under the ordinance by the construction of a shore outhaul, the Commission shall presume that the proposed activity will have a significant or cumulative adverse effect upon the resource values specified in Chapter 237, Wetlands Protection, of the General Ordinances of the Code of the Town of Barnstable. These presumptions are rebuttable and may be overcome only by a preponderance of evidence showing that the work does not have a significant or cumulative adverse effect upon the resource values. The burden of proof to overcome the presumption shall be borne by the applicant. Moreover, the Commission will consider the impact of both existing and future shore outhauls with pending applications in determining the cumulative effects upon the protected resource areas. Where appropriate, the applicant may be required to submit a drawing showing all possible shore outhauls that may meet Commission guidelines within 1/2 mile of the proposed shore outhaul or other agreed to cumulative physical location. The cumulative impact of such shore outhauls and the related boat use pattern on the values protected by the ordinance will be considered by the Commission. A project which may otherwise comply with these regulations and guidelines may be denied where its cumulative effect would result in an adverse impact upon the protected resource areas.
B.
These regulations notwithstanding, the Conservation Commission will
consider any and all shore outhaul proposals on a site-specific basis,
disposing of each according to its merit and to the degree that the
preponderance of evidence shall show that the statutory interests
have been preserved and protected.
A.
The Natural Resources Department shall be given written notice by
the applicant not less than 10 working days before the start of construction
in order to arrange shellfish removal, reseeding, replanting, monitoring,
and subsequent replanting, if necessary, at the applicant's expense.
B.
The Conservation Commission shall be given written notice by the
applicant not less than five business days before the start of construction.
C.
All construction shall proceed in compliance with the plan of record
and the order of conditions. No alterations for which revised plans
have not been approved prior to construction will be allowed.
