A.
Introduction. These regulations are promulgated by the Town of Bellingham
Conservation Commission to complement and implement the Town of Bellingham
Wetlands Protection Bylaw (hereinafter, the "Bylaw")[1] and shall have the force of law upon their filing with
the Bellingham Town Clerk. These regulations also contain helpful
guidelines in the Conservation Commission's review of projects
proposed under the Massachusetts Wetlands Protection Act.
B.
Purpose. The Bylaw sets forth a public review and decision-making
process by which activities affecting areas subject to protection
under the Bylaw are to be regulated. The purpose of these regulations
is to define and clarify that process by establishing standard definitions
and uniform procedures and guidelines by which the Bellingham Conservation
Commission shall carry out its responsibilities under the Bylaw.
C.
Interests to be protected under these regulations include the following:
(1)
Public or private water supply.
(2)
Ground water supply.
(3)
Flood control.
(4)
Erosion and sedimentation control.
(5)
Storm damage prevention.
(6)
Other water damage prevention.
(7)
Prevention of pollution.
(8)
Protection of surrounding land, homes, and businesses.
(9)
Wildlife protection.
(10)
Plant or wildlife habitat.
(11)
Aquatic species and their habitat.
(12)
Natural character and recreational values.
D.
Protection and waiver.
(1)
Activities within the areas subject to protection, as well as activities
within the designated buffer zone, which will remove, fill, dredge,
build upon, degrade, discharge into or otherwise alter said resource
areas and buffer zones fall under the jurisdiction of the Bellingham
Conservation Commission ("the Commission"). Said activities require
a public hearing for prior review and approval by the Commission to
ensure there will be no significant adverse impact to the resource
areas and buffer zones thereto.
(2)
Activities undertaken in close proximity to wetlands and other resource
areas have a high likelihood of adverse impact upon the wetland or
other resource, either immediately, as a consequence of construction,
or over time, as a consequence of daily operation or existence of
the activities. These adverse impacts from construction and use can
include but are not limited to, erosion, siltation, loss of groundwater
recharge, disruption of hydrologic connections, poor water quality,
harm to wildlife habitat, or disruption of wildlife habitat corridors.
The Commission may therefore require that the applicant maintain a
strip of continuous, undisturbed vegetative cover in part or all of
the 100-foot area and set other conditions on this area, unless the
applicant provides evidence deemed sufficient by the Commission that
the area or part of it may be disturbed without harm to the values
protected by the law.
(3)
A growing body of research evidence suggests that even "no disturbance"
areas reaching 100 feet from wetlands may be insufficient to protect
many important wetland resource characteristics and values. Problems
of nutrient runoff, water pollution, siltation, erosion, vegetation
change, thermal change and habitat destruction are greatly exacerbated
by activities within 100 feet of wetlands and resource areas. Thus,
in general, work and activity within 100 feet of wetlands and resource
areas should be avoided and discouraged and reasonable alternatives
pursued. Accordingly, the Conservation Commission shall begin with
the presumption that lands within 100 feet of the resource areas identified
in the sections below are best left in an undisturbed and natural
state.
(4)
Based on accepted methodology as well as systematic field observation
in the Town of Bellingham by the Bellingham Conservation Commission,
disturbance of vegetation or soils within 25 feet of a resource area
may create direct and overt impacts to the resource area, including
but not limited to those stated elsewhere in these regulations. In
order to avoid adverse impacts, the Commission may require a minimum
strip of continuous undisturbed vegetative cover for any and all resource
areas of 25 feet from the outermost edge of the resource area in all
directions. [For example, a stream will have a minimum 50-foot corridor
plus the actual width of the stream based on mean annual high water
mark or top of bank, whichever is greater. This 50-foot + corridor
should be considered a minimum starting point and not the maximum
protection.] The 25-foot buffer would be considered a "no disturb"
buffer.
(5)
Based on accepted methodology as well as systematic field observation
in the Town of Bellingham by the Bellingham Conservation Commission,
any structures less than 50 feet from a resource area may create temporary
and/or long-term impacts to the buffer zone or the resource area itself.
In order to avoid such adverse impacts, the Commission may require
a minimum distance of 50 feet from a new structure to any resource
area. This new structure setback will not apply to any structure existing
prior to the adoption of these regulations. However structures being
removed and replaced may be required to comply with the regulations
in effect at the time of the reconstruction. For structures existing
within the 50-foot buffer, which are not being removed but for which
the footprint is changing, any increase in footprint should take place
at the greatest possible distance from the resource area.
(6)
The Commission shall have the power to issue a waiver to an applicant requesting to perform activities as described in § 247-10 of this Town of Bellingham Wetland Regulation, after said applicant files a notice of intent with the Commission and the Commission conducts a public hearing. Such waiver shall be set forth by the issuance of an order of conditions by the Commission. In order for the Commission to issue a waiver with respect to a particular project, the Commission must find, based on clear and convincing evidence set forth by the applicant, that owing to circumstances relating to soil conditions, hydrological conditions, topography of such land and especially affecting such land but not generally affecting wetlands within the Town, a literal enforcement of the provisions of this bylaw would involve substantial hardship, financial or otherwise, to the applicant, and that desirable relief may be granted without detriment to the values protected by the Town wetland bylaw and these regulations and without substantially derogating from the extent or purpose of the Town wetland bylaw and these regulations.
(7)
In the event that the Commission imposes a no-disturb buffer, an
applicant may be required to demarcate the same with concrete bounds
or other Commission-approved methods prior to the start of any work
on site.
A.
Areas subject to protection under the Bylaw:
(1)
Any marsh, freshwater wetland (bordering or isolated), vernal pool,
wet meadow, bog, swamp.
(2)
Any river, stream, creek, pond, reservoir, or lake.
(3)
Any bank of the areas set forth in A(1) or A(2) above.
(4)
Any land under the areas set forth in A(2) above said waters.
(5)
Any land bordering the areas set forth in A(1) or A(2) or A(3) above.
(6)
Any riverfront area as hereinafter defined.
(7)
Any land subject to flooding or inundation.
(8)
Any isolated wetlands
(9)
The 100-foot buffer zone to any of the above noted resources areas,
excepting perennial streams/rivers for which a jurisdictional 200-foot
riverfront area shall apply.
B.
Activities subject to regulation under the Bylaw:
(1)
Any activity proposed or undertaken which constitutes removing, filling, dredging, discharging into, building upon, or otherwise altering any area specified in Subsection A of this section is subject to regulation under the Bylaw and requires the filing of an application for permit (i.e., a request for determination of applicability or "RDA", a notice of intent or "NOI", an abbreviated notice of resource area delineation or "ANRAD").
(2)
Any activity proposed or undertaken outside the areas specified in Subsection A above shall not be subject to regulation under the Bylaw unless, in the judgment of the Conservation Commission, said activity may result or has resulted in the removing, filling, dredging, discharging into, building upon, or otherwise altering an area specified in Subsection A above. If anyone wishes to have the Conservation Commission determine whether an activity may be subject to regulation under the Bylaw, he or she shall submit a request for determination for applicability (RDA) pursuant to § 247-7A of these regulations.
A.
The applicant shall have the burden of going forward with credible evidence from a competent source in support of all matters asserted pursuant to Subsection B below by the applicant in accordance with his or her burden of proof.
B.
The applicant shall have the burden of proving by a preponderance
of the credible evidence from a competent source that the work in
the application will not have unacceptable significant or cumulative
effect upon the wetland values protected by the Bylaw. Failure to
meet the burden of proof may be cause for the Conservation Commission
to deny the NOI along with any work or activity proposed therein.
A.
Except as otherwise provided in the Bylaw or these regulations, the
definitions of terms in the Bylaw shall be as set forth in the Wetlands
Protection Act, M.G.L. c. 131, § 40, and its regulations,
310 CMR 10.00.
B.
ABUTTER
ACTIVITY
ALTER
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
APPLICANT
AREA OF CRITICAL ENVIRONMENTAL CONCERN
AREA SUBJECT TO PROTECTION UNDER THE BYLAW
BANK
BEST AVAILABLE MEASURES
BEST MANAGEMENT PRACTICES
BORDERING
BOUNDARY
BUFFER ZONE
BYLAW
CERTIFICATE OF COMPLIANCE
CONDITIONS
CONSERVATION COMMISSION
CREEK
CUMULATIVE EFFECT
DATE OF ISSUANCE
DATE OF RECEIPT
DETERMINATION
(1)
(2)
(3)
DREDGE
EXTENSION PERMIT
FILL
FLOOD CONTROL
GROUNDWATER
IN or WITHIN
INTERESTS IDENTIFIED IN THE BYLAW
ISOLATED WETLAND
(1)
(2)
(3)
(4)
ISSUING AUTHORITY
LAKE
LAND SUBJECT TO FLOODING OR INUNDATION - BORDERING
LAND SUBJECT TO FLOODING - ISOLATED
LAND UNDER WATER BODIES AND WATERWAYS
MAJORITY
MARSH, FRESHWATER WETLAND, SWAMP, WET MEADOW, BOG
MEADOW (or WET MEADOW)
NOTICE OF INTENT (or "NOI")
ORDER
PERMIT
PERMIT DENIAL
PERSON
PERSON AGGRIEVED
PLANS
POND
PRACTICABLE
PREVENTION OF POLLUTION
PRIVATE WATER SUPPLY
PROTECTION OF FISHERIES
PROTECTION OF WILDLIFE
PUBLIC WATER SUPPLY
QUORUM
REMOVE
REQUEST FOR DETERMINATION OF APPLICABILITY or "RDA"
RESOURCE AREA
RIVER
RIVERFRONT AREA
SIGNIFICANT
SMALL PROJECT
STORM DAMAGE PREVENTION
STREAM
STRUCTURE
VEGETATED WETLANDS
VERNAL POOL
WILDLIFE
WILDLIFE HABITAT
WITHIN
WORK
As used in these regulations, the following terms shall have the
meanings indicated:
The owner of any land within 100 feet of the property line
of the land where the activity is proposed, as determined by the most
recent Assessors' records, including any land located directly
across a street, river, stream or pond.
On or in any area subject to protection by the Bylaw and
its regulations: any form of draining, dumping, dredging, damming,
discharging, excavating, filling or grading; the erection, reconstruction
or expansion of any buildings or structures; the driving of pilings;
the construction or improvement of roads and other ways; the changing
of runoff characteristics; the intercepting or diverging of groundwater
or surface water; the installation of drainage, sewage and water systems;
the discharging of pollutants; the destruction of plant life; the
cutting or removal of 20% or more of the growth or limbs of trees
or vegetation; and any other changing of the physical characteristics
of land or the physical or chemical characteristics of water.
To change the condition(s) of any area subject to protection
by this Bylaw and shall include but not be limited to one or more
of the following actions upon the resource areas protected by this
Bylaw: fill, removal, excavation or dredging of soil, sand, gravel
or aggregate material of any kind;
Changing of preexisting drainage characteristics, flushing characteristics,
salinity distribution, sedimentation patterns, flow patterns or flood
storage retention areas;
Draining, disturbing or lowering of the water level or water
table; the dumping, discharging or filling with any material which
could degrade the water quality;
Driving of pilings, erection of buildings or structures of any
kind;
Placing of any object or obstruction, whether or not it interferes
with the flow of water;
Destruction, extensive trimming (defined as 20% or more of limbs
or growth), or removal of plant life, vegetation, or trees;
Changing of water temperature, biochemical oxygen demand, nutrient
concentration or chemical concentration or other natural characteristics
of the receiving water;
Any activities, changes or work which pollutes any stream or
body of water, whether located in or out of the Town of Bellingham;
Application of pesticides and herbicides; or
Any activity, change or work which adversely affects groundwater
or drinking water supply.
Any incremental activity that has or may have a cumulative adverse
effect on the resource area values protected by the Bylaw.
A person filing a request for determination of applicability
or notice of intent or other application with the Commission.
An area so designated by the Secretary of Environmental Affairs
of the Commonwealth of Massachusetts pursuant to regulations (301
CMR 12.00), said designation being due to the particular environmental
factors which impact upon the areas in question and which highlight
the importance of each area so designated.
Any area specified in § 247-2A. It is used synonymously with "resource area," each of which is defined in greater detail in these regulations.
The portion of the land surface which normally abuts and
confines a water body, often between the mean annual low flow level
and the first observable break in the slope or the mean annual flood
level, whichever is lower.
The most up-to-date technology or the best designs, measures
or engineering practices that have been developed and that are commercially
or readily available.
Technologies, designs, measures or engineering practices
that are in general use to optimally protect the resource area values
of the Bylaw (also referred to as "BMPs").
Includes any land within either of the following or the greater
thereof:
The boundary of an area subject to protection under the Bylaw.
A description of the boundary of each area is found in the appropriate
section of these regulations or in the Bylaw.
Chapter 235 of the Bylaws of the Town of Bellingham, Massachusetts, entitled "Wetlands Protection."
A written determination by the Conservation Commission as
to whether work or a portion thereof has been completed in accordance
with the permit issued under the Bylaw governing said work.
Those requirements set forth in a written permit issued by
a Conservation Commission for the purpose of permitting, regulating
or prohibiting any activity that removes, fills, dredges or alters
an area subject to protection under the Bylaw.
That body in Bellingham comprised of members lawfully appointed
pursuant to M.G.L. ch. 40, § 8C.
The same as "stream."
An effect that is significant when considered in combination
with other activities that have occurred, are going on simultaneously,
or that are likely to occur, whether such other activities have occurred
or are contemplated as a separate phase of the same project, such
as the build-out of a subdivision or an industrial park, or unrelated
but reasonably foreseeable actions, including other development projects
that are currently under construction, under review or that may be
expected to come forward.
The date a permit, order, or determination is mailed, as
evidenced by a postmark, or the date it is hand-delivered.
The date of delivery to an office, home or usual place of
business by mail or hand delivery.
DETERMINATION OF APPLICABILITYA written finding by the Conservation Commission as to whether a site or the work proposed thereon is subject to the jurisdiction of the Bylaw.
DETERMINATION OF SIGNIFICANCEA written finding by the Conservation Commission, after a public hearing, that the area on which the proposed work is to be done or which the proposed work will alter is significant to one or more of the interests identified in the Bylaw.
NOTIFICATION OF NONSIGNIFICANCEA written finding by the Conservation Commission, after a public hearing, that the area on which proposed work is to be done, or which the proposed work will alter, is not significant to any of the interests of the Bylaw.
To deepen, widen, grade or excavate, either temporarily or
permanently, land below ordinary high water of a water body or waterway.
A written extension of time within which the authorized work
shall be completed.
To deposit any material so as to raise the elevation of land
surface or ground, either temporarily or permanently.
The prevention or reduction of flooding and flood damage.
All subsurface water contained in natural geologic formations
or artificial fill including soil water in the zone of aeration. Activities
within resource areas or the buffer zone thereto shall not significantly
alter the existing quality or elevation of naturally occurring groundwater.
An area subject to protection under the Bylaw means in, through,
under, over, cantilevered over, shading; does not require physical
touching of said area subject to protection. With respect to structures,
"in" is measured from the drip-line of the roof or foundation or footing,
whichever is closer to the resource area.
A resource area that due to its vegetation, soils, and/or
hydrology has at least one of the following characteristics:
Wetland plant community;
Holds enough water to provide a breeding habitat for certain
water-dependent fauna species;
Fifty percent or more of the vegetational community is composed
of wetland plant species; or
Otherwise exhibits any of the characteristics of a bordering
vegetated wetland, excepting a hydraulic connection to another water
body.
The Bellingham Conservation Commission.
Any open body of fresh water with a surface area of 10 acres
or more, and shall include great ponds.
The land within the estimated maximum lateral extent of flood water which will theoretically result from the statistical 100-year frequency storm; said boundary shall be that determined by reference to the most recently available flood profile data prepared for Bellingham within which the work is proposed under the National Flood Insurance Program ("NFIP"). Where NFIP data are unavailable or deemed by the Commission to be outdated or inaccurate or not reflecting current conditions, the boundary of said land shall be based on the maximum lateral extent of flood water which has been observed or recorded, or other evidence presented and considered by the Commission. See further definition in § 247-22.
Defined in § 247-22.
The bottom of or land under the surface of a creek, river, stream, pond or lake. "Land under water bodies" is further defined in § 247-21.
More than half of the members of the Conservation Commission.
Defined in § 247-20.
Defined in § 247-20.
The written notice filed by any person intending to remove,
fill, dredge or alter an area subject to protection under the Massachusetts
Wetlands Protection Act, M.G.L. ch. 131, § 40, or the Bylaw,
or both.
An order of conditions, superseding order or final order,
whichever is applicable, issued pursuant to M.G.L. ch. 131, § 40,
or the Bylaw, or both.
The document issued by the Conservation Commission pursuant
to this Bylaw which allows work in accordance with conditions set
by the Commission in the resource areas protected by this Bylaw. A
permit may be in the form of an order of conditions or negative determination
of applicability, with or without conditions.
The document issued by the Conservation Commission pursuant
to the Bylaw which disallows proposed work.
Any individual, group of individuals, associations, partnerships,
corporations, business organizations, trust, estate, Commonwealth
of Massachusetts when subject to Town Bylaws, any public or quasi-public
corporation or body when subject to Town Bylaws or any other legal
entity, including the Town of Bellingham or its legal representative,
agents or assigns.
Any person who, because of an act of failure to act by the
Conservation Commission, may suffer an injury in fact which is different
either in kind or magnitude from that suffered by the general public
and which is within the scope of the interests identified in the Bylaw.
Such data, maps, engineering drawings, calculations, specifications, schedules and other materials, if any, deemed necessary by the Conservation Commission to describe the site and/or work to determine the applicability of the Bylaw or to determine the impact of the proposed work upon the interests identified in the Bylaw (See § 247-29).
Any open body of fresh water, either naturally occurring
or man-made by impoundment or excavation, which is never without standing
water due to natural causes, except in periods of extended drought
and has a surface area of 5,000 square feet or more. For purposes
of this definition, "extended drought" shall mean any period of four
or more months during which the average rainfall for each month is
50% or less of the ten-year average for that same month. Basins or
lagoons which are part of wastewater treatment plants, swimming pools
or other impervious man-made retention basins shall not be considered
ponds.
See § 247-11.
The prevention or reduction of chemicals (e.g., nutrients,
hydrocarbons, solvents, metals, vapors) known or suspected of causing
harm to humans, plants, or animals via exposure to any media (air,
water, soil, sediment).
Any source or volume of surface or groundwater demonstrated
to be in any private use or shown to have potential for private use
for domestic purposes.
Protection of the capacity of an area subject to protection
under the Bylaw to prevent or reduce contamination or damage to fish
and to serve as their habitat and nutrient source.
The protection of any plant or animal species, including
but not limited to those listed as endangered, threatened or special
concern, or on the Watch List by the Massachusetts Natural Heritage
Program; listed as federally endangered or federally threatened by
the U.S. Fish and Wildlife Service; deemed locally threatened, in
writing, by the Conservation Commission; and means protection of the
ability of any resource area to provide food, breeding habitat, shelter
or escape cover and species falling within the definition of wildlife
set forth in these regulations.
Any source or volume of surface water or groundwater demonstrated
to be in public use or approved for water supply pursuant to M.G.L.
ch. 111, § 160 by the Division of Water Supply of the Department
of Environmental Protection or shown to have a potential for public
use.
The minimum number of Commissioners who must be present for
a valid meeting.
To take away any type of material, thereby changing the elevation
of land surface or ground, either temporarily or permanently.
A written request made by any person to the Conservation
Commission for a determination as to whether a site or work thereon
is subject to the Bylaw.
Is used synonymously with "area subject to protection under the Bylaw," each one of which is listed in the Bylaw and in § 247-2 of these regulations.
Any natural flowing body of water that empties to any ocean,
lake, pond, reservoir, stream, or other river.
The area of land between a river, stream, brook or creek's
mean annual high water line or top of bank, whichever is further landward,
and a parallel line measured 200 feet horizontally landward of the
mean annual high water line. The 200-foot riverfront area shall apply
to perennially flowing rivers, streams, brooks, or creeks.
Plays a discernible role; e.g., a resource area is significant
to an interest identified in the Act when it plays a role in the provisions
or protection, as appropriate, of that interest.
Any project of 200 square feet or less of impervious surface,
including but not limited to: decks, structures, pools, patios, or
foundation enclosing 200 square feet or less.
The prevention of damage caused by water from storms, including
but not limited to erosion and sedimentation, damage to vegetation,
property or buildings or damage caused by flooding, waterborne debris
or waterborne ice.
A body of running water, including brooks and creeks, which
moves in a definite channel in the ground due to hydraulic gradient,
and includes streamlets and rivulets. A portion of a stream may flow
through a culvert or beneath a bridge.
A combination of materials or things arranged or constructed
for permanent or temporary occupancy, shelter, or use, such as a building,
bridge, trestle, wireless communications facility, tower, framework,
retaining wall, tank, tunnel, tent, stadium, reviewing stand, platform,
swimming pool, shelters, piers, wharves, bin, fence, sign, or the
like.
Defined in § 247-20.
Defined in § 247-25.
Any non-domesticated mammal, bird, reptile, amphibian, fish,
mollusk, arthropod or other invertebrate, other than a species of
the Class insects which has been determined by the Commonwealth of
Massachusetts or any agency thereof to be a pest whose protection
under the provisions of the Bylaw would be a risk to man.
The area necessary to provide breeding or nesting habitat,
shelter, food and water for any animal species.
See "in" above.
The same as "activity."
All time periods of 10 days or less specified in the Bylaw and
these regulations shall be computed using business days only. In the
case of a determination or order, such period shall commence on the
first day after the date of issuance and shall end at the close of
business on the 10th business day thereafter. All other time periods
specified in the Bylaw and regulations shall be computed on the basis
of calendar days, unless the last day falls on a Saturday, Sunday
or legal holiday, in which case the last day shall be the next business
day following.
A.
Where the Bylaw requires that a particular action (except receipt
of a request or notice) is to be taken by the Conservation Commission
that action is to be taken by at least a majority of the Commission.
B.
Where the Bylaw requires that a determination, order, permit, or
notification or certificate of compliance shall be signed and issued
by the Conservation Commission that action is to be taken by at least
a majority of the members of the Commission. The Commission need not
convene as a body in order to merely sign said permit or notification,
provided that the Commission met pursuant to the Open Meeting Law,
M.G.L. ch. 30A, §§ 18 through 25, when voting on the
matter.
C.
Where the Bylaw requires that the Conservation Commission is to receive
a request or notice, "Conservation Commission" means a member of the
Conservation Commission or an individual designated by the Conservation
Commission to receive such request or notice.
A.
Requests for determination of applicability (or "RDA").
(1)
Any person who desires a determination as to whether the Bylaw applies
to land, or to work that may affect an area subject to protection
under the Bylaw, may submit three copies to the Conservation Commission
by certified mail, regular mail, or hand delivery a written RDA and
other application materials in accordance with the submittal requirements
set forth in the filing guidelines for RDAs provided in these regulations.
(2)
Said RDA shall include sufficient information to enable the Conservation
Commission to find and view the area and determine whether the proposed
work will alter an area subject to protection under the Bylaw.
(3)
An RDA shall include certification that the owner of the area subject
to the request, if the person making the request is not the owner,
has been notified in writing via certified mail (return-receipt requested),
or by certificate of mailing, that a determination is being requested
under the Bylaw.
(4)
An RDA shall be filed with the Commission no less than 10 days prior
to the Commission's next meeting. Failure to meet such filing
and distribution deadline shall be cause for the Commission to continue
or defer discussion of the RDA to the following meeting.
B.
Determination of applicability.
(1)
Within 21 days after the date of receipt of the RDA, the Conservation
Commission shall hold a public meeting. Notice of the time and place
of the public meeting at which the determination will be made shall
be given by the Conservation Commission at the expense of the person
making the request not less than five business days prior to such
meeting, by publication in a newspaper of general circulation in the
Town of Bellingham, and by mailing a notice to the person making the
request, or the property owner if not the applicant. The Commission
will forward the notice of this hearing to the appropriate Town boards
and departments. Said determination shall be signed and issued by
the Conservation Commission, and copies thereof shall be sent by the
Conservation Commission to the person making the request and to the
owner within 21 days of the close of the public hearing or any continuances
thereof. Said determination shall be valid for three years from date
of issuance and may not be extended or renewed.
(2)
The Conservation Commission shall find that the Bylaw applies to the land, or a portion thereof, if the proposed work is in an area subject to protection under the Bylaw as defined in § 247-2A above. The Conservation Commission shall find that the Bylaw applies to the work on the portion thereof, if it is an activity subject to the regulations under the Bylaw as defined in § 247-2B above.
(3)
An NOI shall be filed in the event of a positive determination, and all of the procedures set forth in § 247-8 shall apply.
(4)
If it is determined by the Commission that the activity is minor
in nature, i.e., occurs in a previously altered area or enlarges an
existing structure, etc., the Commission may issue a negative determination
of applicability with special conditions sufficient to protect the
interests of the Bylaw and these regulations.
A.
Any person who proposes to do work or activity that will remove, fill, dredge or otherwise alter any area subject to protection under the Bylaw shall submit a notice of intent, or "NOI", for a permit on forms specified by the Conservation Commission and in conformance with the plan requirements in § 247-29. Simultaneously with filing four copies of the notice of intent and all supporting documentation, the applicant shall provide notification to each abutter by hand delivery or certified mail - return receipt requested, or by certificate of mailing.
B.
Upon receipt of the complete application materials referred to in Subsection A above, the Conservation Commission shall assign a file number. The designation of file number shall not imply that the plans and supporting documents have been accepted or judged adequate for the issuance of a permit. For a notice of intent also filed under the Wetlands Protection Act, the Commission shall issue a file number that corresponds with the file number issued by the DEP. A notice of intent must be filed at least 10 business days prior to the next regularly scheduled public meeting.
C.
If only a portion of a proposed project or activity lies within an
area subject to protection under the Bylaw and the remainder of the
project or activity lies outside those areas, all aspects of the project
must be described in the detail, provided also that, in such circumstances,
the notice of intent shall also contain a description and calculation
of peak flow and estimated water quality characteristics of discharge
from a point source (both closed and open channel), when the point
of discharge falls within an area subject to protection under the
Bylaw.
D.
A public hearing shall be scheduled by the Conservation Commission
within 21 days of receipt of the complete notice of intent. Notice
of the time and place of the public hearing shall be given by the
Conservation Commission at the expense of the person making the request
not less than five business days prior to such meeting, by publication
in a newspaper of general circulation in the Town of Bellingham, and
by mailing a notice to the person making the request, or the property
owner if not the applicant. The applicant shall bear the responsibility
and cost for notification to abutters within 100 feet of the property
borders consistent with the state NOI form. The Commission will forward
the notice of this hearing to the appropriate Town boards and departments.
E.
An abbreviated notice of resource area delineation or "ANRAD" may be filed to confirm the delineated boundary of any area subject to protection under the bylaw on the site. If utilized, an applicant must file an abbreviated notice of resource area delineation prior to filing a notice of intent. The procedures for describing and delineating resource areas under a notice of intent shall be used for an abbreviated notice of resource area delineation. Consistent with § 247-3 of the Bylaw, "applicant's obligation," the applicant shall have the burden of proving by a preponderance of the credible evidence from a competent source that the delineation of area subject to protection under the bylaw is accurate.
Any project filing in which the project relies upon a subsequent
but unfiled project for reasons of access, meeting local bylaw or
regulation requirements, or to be economically-viable, shall be considered
integral to the project filing and may not be segregated. Project
impacts shall not be segregated but considered by the Commission in
the aggregate accordingly. For such interdependent projects, the applicant
shall meet all submission requirements, and comply with all regulatory
thresholds and limits, for the projects in aggregate as required by
this bylaw. The Commission shall consider the project in its whole
rather than its segregated projects in rendering its decision and
may require information, plans, reports, data or peer review for the
unfiled project in order to assess the cumulative impacts.
A.
The permit required by this regulation shall not be required for
work performed for the normal maintenance or improvement of existing
agricultural lands, and normal maintenance of roadways and drainage
structures. An RDA may be submitted in order to determine whether
such exemption applies.
B.
If possible, applicants shall file a written request for waiver at
the same time that an NOI or RDA is filed with the Commission. Such
waiver request shall be made in writing and shall be a separate writing
from the application or request forms.
C.
At any time subsequent to filing of the waiver request, but in no
event less than 10 calendar days prior to the date of commencement
of the public hearing at which the waiver request is to be considered,
the applicant or his or her or its representative shall submit to
the Commission copies of written statements, plans and/or reports
in support of the waiver request. Such materials shall include but
not be limited to the following items:
(1)
A brief statement of the relief sought;
(2)
A description of all reasonably identifiable alternatives to the
applicant's proposal that were considered by the applicant and
that would avoid or minimize the necessity of the requested relief,
along with the reasons why such alternatives were deemed to be inadequate,
unworkable or inadvisable; "reasonably identifiable alternatives"
includes purchasing at market prices if otherwise practicable, as
documented by offers (and any responses). For other land, "reasonably
identifiable alternative" means adequate in size to accommodate the
project purpose and listed for sale within appropriately zoned areas,
at the time of filing a RDA or NOI, within the municipality. Alternatives
extend to any sites which can reasonably be obtained within the appropriate
area.
(3)
A statement of all efforts that will be undertaken to minimize impact
upon resource areas and buffer zones arising out of the work proposed;
(4)
Detailed plans for any mitigation measures proposed;
(5)
Adequate engineering and expert evidence to permit the Commission
to evaluate the basis for the applicant's contentions in support
of the waiver requested; and
(6)
Any and all relevant information which the applicant wishes the Commission
to consider in deliberating the waiver request.
D.
No special consideration will be given for self-imposed hardships.
No special consideration will be given for not being aware of the
requirements of the Wetlands Protection Act, 310 CMR 10.00, the Town
of Bellingham Wetland Bylaw, the Town of Bellingham Conservation Commission
regulations or policies or any part thereof. No special consideration
will be given for those who seek and obtain Planning Board subdivision
approval and partially develop parcels, lots or projects of any type
prior to delineating and determining resource area boundaries and
the buffer zones to same.
E.
The Commission shall have the power to issue a waiver to an applicant requesting to perform activities as described in this Town of Bellingham Wetland Regulation, after said applicant files a notice of intent with the Commission and the Commission conducts a public hearing. Such waiver shall be set forth by the issuance of an Order of Conditions by the Commission. In order for the Commission to issue a waiver with respect to a particular project, the Commission must find, based on clear and convincing evidence set forth by the applicant, that owing to circumstances relating to soil conditions, hydrological conditions, topography of such land and especially affecting such land but not generally affecting wetlands within the Town, a literal enforcement of the provisions of this bylaw would involve substantial hardship, financial or otherwise, to the applicant, that there is no practicable alternative (§ 247-11), and that desirable relief may be granted without detriment to the values protected by the Town wetland bylaw and these regulations and without substantially derogating from the extent or purpose of the Town wetland bylaw and these regulations.
F.
The Commission may impose conditions, safeguards, and limitations
in the issuance of a waiver if necessary in order to protect or further
the interests protected by the Town Wetland Bylaw and these regulations.
It should be understood that waivers [other than for existing, small
home lots] are intended to be granted only in rare and unusual cases
and are issued at the sole discretion of the Commission.
A.
The Commission possesses the discretion to deny any project or activity
that will alter an actual resource area or buffer zone. In general,
the Commission will allow only certain projects or activities to alter
actual resources which maintain an existing legal use or necessary
to address emergency conditions deemed so at the Commission's
discretion.
B.
Additionally, the Commission may issue an order of conditions without
requiring alternatives analysis for activities within a resource area
which will improve the natural capacity of a resource area(s) to protect
the interests identified. No such project may be permitted which will
have any adverse effect on specified wildlife habitat sites of rare
vertebrate or invertebrate species. Such projects include, but are
not limited to, the removal of aquatic nuisance vegetation to retard
pond and lake eutrophication and the thinning or planting of vegetation
to improve habitat value.
C.
For any other projects or activities that will alter an actual resource
area or buffer zone, the Commission may require alternatives analysis.
Applicants are required to demonstrate that there are no practicable
alternatives to the proposed project with less adverse impact on the
protected resource and interests. A practicable alternative is an
available and feasible alternative, which will accomplish the project's
general purpose, taking into account costs, logistics, the proposed
use, and the most current technology.
D.
The area in consideration must extend to the subdivided lots (this
includes approval not required [ANR] lots), any parcel out of which
the lots were created, any adjacent parcels held in common ownership
or interest, any parcels which are in the process of being obtained,
any parcels previously held in common ownership or interest with the
subject property and any other land, which can reasonably be obtained,
as of the effective date of these regulations.
E.
The effect of the practicable alternatives analysis and the purpose
of evaluating alternatives is to determine whether impacts to all
resource areas can be avoided.
F.
Definition of practicable. An alternative is practicable and substantially
equivalent economically if it is obtainable and capable of being done
after taking into consideration costs, existing technology, proposed
use, and logistics, in light of overall project purposes. Project
purposes shall be defined generally (e.g., single family home, residential
subdivision, expansion of a commercial development). The alternatives
analysis may involve the reduction in the scale of the activity or
the number of lots available for development, consistent with the
project purpose and proposed use. Transactions shall not be arranged
to circumvent the intent of alternatives analysis review. The four
factors to be considered are:
(1)
The cost of an alternative must be reasonable for the project purpose,
and cannot be prohibitive. Higher or lower costs taken alone will
not determine whether an alternative is practicable. An alternative
for proposed work in the resource area must be practicable and substantially
equivalently economic. Applicants should not submit, nor should the
Commission request, financial information of a confidential nature,
such as income tax records or bank statements. The Commission may
require documentation of costs, but may also base its determinations
on descriptions of alternatives, knowledge of alternative sites, information
provided by qualified professionals, comparisons to costs normally
associated with similar projects, or other evidence. Any documentation
of costs should be limited to that required for a determination of
whether the costs are reasonable or prohibitive.
(2)
Existing technology, which includes best available measures (i.e.,
the most up-to-date technology or the best designs, measures, or engineering
practices that have been developed and are commercially available);
(3)
The proposed use. This term is related to the concept of project
purpose.
(4)
Logistics. Logistics refers to the presence or absence of physical
or legal constraints. Physical characteristics of a site may influence
its development. Legal barriers include circumstances where a project
cannot meet other applicable requirements to obtain the necessary
permits at an alternative site. An alternative site is not practicable
if special legislation or changes to municipal zoning would be required
to achieve the proposed use or project purpose.
G.
Scope of alternatives. The scope of alternatives under consideration
shall be commensurate with the type and size of the project. The issuing
authority shall presume that alternatives beyond the scope described
below are not practicable and therefore need not be considered. The
applicant or the Commission may overcome the presumption by demonstrating
the practicability of a wider range of alternatives, based on cost,
and whether the cost is reasonable or prohibitive to the owner; existing
technology; proposed use; and logistics in light of the overall project
purpose.
(1)
The area under consideration for practicable alternatives extends
to the original parcel and the subdivided parcels, any adjacent parcels,
and any other land which can reasonably be obtained within the municipality
for adjacent lots, reasonably be obtained, means to purchase at market
prices if otherwise practicable, as documented by offers (and any
responses). For other land, "reasonably be obtained" means adequate
in size to accommodate the project purpose and listed for sale within
appropriately zoned areas, at the time of filing a request for determination
or notice of intent, within the municipality.
(2)
Alternatives extend to any sites which can reasonably be obtained
within the appropriate area.
H.
Evaluation of alternatives. The applicant shall demonstrate that
there are no practicable and substantially equivalent economic alternatives
within the scope of alternatives with less adverse effects on the
interests identified. The applicant shall submit information to describe
sites and the work both for the proposed location and alternative
site locations and configurations sufficient for a determination by
the Commission. The level of detail of information shall be commensurate
with the scope of the project and the practicability of alternatives.
Where an applicant identifies an alternative which can be summarily
demonstrated to be not practicable, an evaluation is not required.
(1)
The purpose of evaluating project alternatives is to locate activities
so that impacts to the resource area are avoided to the extent practicable.
Projects within the scope of alternatives must be evaluated to determine
whether any are practicable. As much of a project as is practicable
shall be sited outside the resource area.
(2)
The Commission shall not approve alternatives which result in greater
or substantially equivalent adverse impacts. If an alternative would
result in no identifiable difference in impact, the issuing authority
shall eliminate the alternative. If there would be no less adverse
effects on the interests identified, the proposed project rather than
a practicable alternative shall be allowed, but the criteria for determining
no significant adverse impact must still be met. If there is a practicable
and substantially equivalent economic alternative with less adverse
effects, the proposed work may be denied, or the applicant may either
withdraw the notice of intent, or the applicant may receive an order
of conditions for the alternative (provided the applicant submitted
sufficient information and the application materials on the alternative
in the notice of intent). While the determination of no practical
alternatives may result in the Commission's approval of work
in a resource area or buffer zone, such a determination is not guarantee
of approval and the Commission shall retain the power to deny or condition
such work.
A.
A public hearing shall be held by the Conservation Commission within 21 days of receipt of the complete notice of intent, and shall be advertised by the Commission at the applicant's expense (§ 247-5). Abutter notification shall be done by and at the expense of the applicant at the time of filing the request for determination of applicability or notice of intent.
B.
Continued hearings. Public hearings may be continued as follows:
(1)
The applicant shall submit payment for the advertising costs to the
Commission prior to opening of the public hearing. Failure to do so
may result in the opening and automatic continuations of the public
hearing until such time as costs are paid.
(2)
Without the consent of the applicant to a certain date announced
at the hearing should the applicant or the applicant's representative
fail to provide the requisite written information or documents (or
number of copies thereof) intended for discussion at a meeting/hearing
less than 10 days prior to that scheduled meeting/hearing to the Commission
office or agent.
(3)
Without the consent of the applicant to a certain date announced
at the hearing either for receipt of additional information offered
by the applicant or others or for information required of the applicant
deemed necessary by the Conservation Commission at its discretion;
or
(4)
With the consent of the applicant, to a reasonably-agreed-upon date,
which shall be announced at the hearing.
(5)
Without the consent of the applicant, for lack of receipt of the
DEP file number, to certain date announced at the hearing; or
(6)
Without the consent of the applicant, for failure to pay the consultant fees pursuant to § 247-17 of the regulations, to a certain date announced at the hearing.
(7)
Without the consent of the applicant due to inclement weather, impeded
access to the facilities, for failure of the facilities mechanical
structures (heating system, etc.), or any other extraordinary unforeseen
events.
A.
Within 21 days of the close of the public hearing or any continuance
thereof, on a notice of intent for an order of conditions, the Conservation
Commission shall:
(1)
Make a determination that the area on which the work is proposed
to be done, or on which the proposed work will remove, fill, dredge,
discharge into, build upon, degrade or otherwise alter, is not significant
to any of the interests identified in the Bylaw and Regulation, and
shall issue an order to the applicant, allowing the proposed work;
or
(2)
Make a determination that the area on which the work is proposed
to be done, or on which the proposed work will remove, fill, dredge
or alter, is significant to one or more of the interests identified
in the Bylaw and Regulation, and issue an order allowing the proposed
work, with any conditions necessary for the protection of said interests;
or
(3)
Make a determination that the proposed work fails to meet the design
specifications, performance standards, or other requirements of the
Bylaw, its regulations, or policies of the Commission, or that the
project fails to avoid or prevent unacceptable significant or cumulative
effects upon the resource area values of the Bylaw and Regulation,
or that there are no conditions adequate to protect said values, and
issue an order denying the proposed work; or
(4)
If the Conservation Commission finds that the information submitted
by the applicant is not sufficient to describe the site, the work,
or the effect of the work on the interests identified in the Bylaw
and Regulation, it may issue an order denying the project. The permit
shall specify the information which is lacking and why such information
is necessary. If the Commission issues a permit denial, no work may
occur until an applicant reapplies and the Commission grants a permit
allowing work.
B.
A permit or order allowing the proposed work may include such conditions
that, in the judgment of the Conservation Commission, are necessary
for the protection of those areas found to be significant to one or
more of the interests identified in the Bylaw and Regulation. Said
permit shall prohibit any work or any portion thereof that cannot
be conditioned to meet said standards.
C.
The permit or order of conditions shall be valid for three years
from the date of its issuance.
D.
The permit or order shall be signed and issued by the Conservation
Commission and shall be mailed or hand-delivered to the applicant,
his or her agent or attorney.
E.
A copy of the plans describing the work and the permit shall be kept
on file by the Conservation Commission and shall be available to the
public at reasonable hours.
F.
Prior to the commencement of any work permitted or required by the
permit, the permit shall be recorded in the Registry of Deeds or the
Land Court. In the case of recorded land, the permit shall also be
noted in the Registry's Grantor Index under the name of the owner
of land upon which the proposed work is to be done. In the case of
registered land, the permit shall also be noted on the Land Court
Certificate of Title of the owner of the land upon which the proposed
work is to be done. Proof of recording shall be sent to the Conservation
Commission within two weeks of recording. If work is undertaken without
the applicant first recording the permit, the Conservation Commission
may issue an enforcement order.
A.
The Conservation Commission may extend a permit for a period of up
to an additional three-year period from date of issuance. No permit
may be extended for more than three total years after its initial
expiration. A permit or order that has expired may not be extended.
The request for an extension shall be made to the Conservation Commission
at least 30 days prior to the expiration of the permit, and shall
be accompanied by a $50 filing fee. The Commission shall consider
the request for extension within 30 days of receipt of said request
and receipt of filing fee. Should the Commission's consideration
be continued past the date of the expiration of the permit, the expiration
date shall then be extended from the original expiration date, if
the permit is extended.
B.
The Conservation Commission may deny the request for an extension
and require the filing of a new application for permit for the remaining
work in the following circumstances:
(1)
Where no work has begun on the project, except where such failure
is due to an unavoidable delay, such as appeals and/or in the obtaining
of other necessary permits;
(2)
Where new information, not available at the time the permit was issued,
has become available and indicates that the permit is not adequate
to protect the resource area values identified in the Bylaw and Regulations;
(3)
Where incomplete work is causing damage to the resource area values
identified in the Bylaw and Regulations;
(4)
Where work has been done in violation of the permit or the Bylaw
or these regulations; or
(5)
Where resource area delineations or function has changed in a manner
that indicates that adverse impacts may increase.
C.
Extensions for orders of conditions and orders of resource area delineations
may be granted with modifications to the original permit in certain
circumstances where new information not available at the time of the
original filing becomes available or where changes in the resource
areas are indicated.
D.
The extension of permit shall be recorded in the Land Court or the
Registry of Deeds, whichever is appropriate, within 10 days of issuance.
If work is undertaken without the applicant recording the extension
of permit, the Conservation Commission may issue an enforcement order.
A.
Upon written request by completion of applicable forms and submission
of as-built plans by the applicant, a certificate of compliance may
be issued by the Conservation Commission within 21 days of receipt
thereof, and shall certify if it so determines, that the activity
or portions thereof described in the application for permit and plans
has been completed in compliance with the permit. If approved by the
Conservation Commission, the certificate of compliance shall be signed
and issued by the Commission.
B.
Prior to the issuance of a certificate of compliance, a site inspection
may be made by the Conservation Commission or its agent, in the presence
of the applicant or the applicant's agent if the applicant so
desires.
C.
If the Conservation Commission determines, after review and inspection,
that the work has not been done in compliance with the permit, it
shall refuse to issue a certificate of compliance. Such refusal shall
be issued within 21 days of receipt of a request for a certificate
of compliance, and the applicant shall be notified of the specific
reasons for denial.
D.
If a project has been completed in accordance with plans stamped by a registered professional engineer or a land surveyor, a written statement by such a professional person certifying substantial compliance with the plans and setting forth what deviation, if any, exists from the plans approved in the permit, shall accompany the request for a certificate of compliance. As-built plans shall meet the submittal requirements of § 247-29, and shall be submitted in paper and digital forms. The Commission reserves the right to administer the requirements of this paragraph in its sole discretion commensurate with the nature, scope, type, and cost of the proposed project or activity.
E.
If the permit contains conditions which continue past the completion
of the work, such as maintenance or monitoring, the certificate of
compliance shall specify which, if any, of such conditions shall continue.
The certificate shall also specify to what portion of the work it
applies, if it does not apply to all the work regulated by the permit.
F.
The certificate of compliance shall be recorded by the applicant
within 10 days in the Land Court or Registry of Deeds, whichever is
appropriate. Proof of recording shall be sent to the Conservation
Commission on the form specified by the Commission.
A.
When the Commission determines that an activity is in violation of
Bellingham Wetlands Bylaw or Regulations or an order of conditions
issued thereunder, the Conservation Commission may issue an enforcement
or cease and desist order. Violations include, but are not limited
to:
(1)
Conducting activities regulated by the Town of Bellingham Wetland
Bylaw and Regulations within a buffer to a resource area without a
permit;
(2)
Conducting work outside the 100-foot buffer zone or 200-foot riparian
zone, which has a direct or indirect adverse impact on a resource
area or buffer zone;
(3)
Failure to comply with an order of conditions, such as failure to
observe a particular condition or time period specified in the order;
(4)
Failure to complete work described in an order of conditions, when
such failure causes damage to the interests identified;
(5)
Failure to obtain a valid order of conditions or extension permit
prior to conducting an activity subject to regulation.
B.
An order of conditions may be enforced by the Conservation Commission
or a member, or designee authorized by the Commission.
C.
An enforcement order issued by the Commission shall be signed by
a majority of the Commission. In a situation requiring immediate action,
an enforcement order may be signed by a single member or agent of
the Commission. Consultation with other members of the Commission
is encouraged. Any emergency enforcement order signed by a single
member or agent of the Commission must be ratified by a majority of
the members at the next scheduled meeting of the Commission or will
be considered invalid.
D.
Owners of land on which violations occur may, where feasible and
practicable, receive a prior written notice of the violation, what
measures are to be taken and the day and time on which the owner or
the owner's representative is to meet with the Commission. These
meetings will usually be held during the next scheduled public meeting.
However, in the case of serious impact or threat of immediate serious
impact to a resource area, the Commission may schedule the meeting
at the earliest possible date, subject to Open Meeting Law requirements.
Determination of serious impact will be at the discretion of a majority
of the Commission. Failure to attend the meeting scheduled or to notify
the Commission and arrange an alternative acceptable time, may result
in the issuance of a formal enforcement order which may be recorded.
Said enforcement order will not be waived until the property and the
violation are completely mitigated and restored. Once the violation
is satisfactorily corrected and remediated, the Commission will issue
a certificate of compliance.
E.
Penalties for actions or violations of wetland/conservation laws,
bylaw or regulations, requiring the Commission to initiate enforcement
action are on a per-site basis and will be as follows:
|
1st violation: notice
|
Written notice
| |
|
2nd violation: notice
|
$125*
| |
|
Each subsequent violation, per diem of violation
|
$150*
| |
|
* Plus recording fees, if applicable.
| ||
A.
The Commission maintains a separate fee schedule for the various
applications and actions that are contemplated under the Bylaw and
these regulations. These fees pertain to local bylaw review and are
in addition to those required under the Wetlands Protection Act. Applications
will not be considered complete unless all applicable fees are paid
at the time of application submittal. The Conservation Commission
shall notify, verbally or in writing, the applicant when the correct
filing fee has not been paid to the Town and the filing is therefore
incomplete. Said notification shall specify the correct fee amount.
The fee will be based on the original project design as proposed in
the notice of intent, the request for determination or the request
for resource area delineation and be based on any changes or amendments
made during the public hearing process which increase the size of
the project. Rebates will not be given for projects which decrease
in size during the public hearing.
B.
Separate checks must be submitted for state and local wetland Bylaw
filing fees as monies are deposited in different accounts and tracked
separately.
C.
Regulations for hiring outside consultants under M.G.L. ch. 44, § 53G.
As provided by M.G.L. ch. 44, § 53G, the Bellingham Conservation
Commission may impose upon and collect from applicants under the Massachusetts
Wetlands Protection Act and the Bellingham Wetlands Bylaw and Regulations
reasonable fees for the employment of outside consultants, including,
but not limited to, scientists, engineers, lawyers, surveyors or consultants
of any other kind engaged by the Conservation Commission, for services
deemed necessary by the Commission to adequately review an application
or request submitted to the Conservation Commission.
D.
Funds received by the Conservation Commission pursuant to these regulations
shall be deposited with the Town Treasurer who shall establish a special
account for this purpose. Expenditures from this special account may
be made at the direction of the Conservation Commission without further
appropriation as provided in M.G.L. ch. 44, § 53G. Expenditures
from this account shall be made only in connection with the review
of a specific project or projects for which a consultant fee has been
collected from the applicant.
E.
After the applicant has presented his/her project to the Commission
at a hearing, the members shall determine whether an outside consultant
will be necessary in order for the Commission to make a fully informed
decision on the application. The Commission shall give written notice
to the applicant of the selection of an outside consultant, which
notice shall state the identity of the consultant, the amount of the
fee to be charged to the applicant, and a request for payment of said
fee in its entirety. Such notice shall be deemed to have been given
on the date it is mailed or delivered. No such cost or expenses shall
be incurred by the applicant if the application or request is withdrawn
within five days of the date notice is given.
F.
The required fee must be received prior to the initiation of consulting
services. The Commission may request additional consultant fees if
necessary review requires a larger expenditure than originally anticipated
or new information requires additional consultant services. Failure
by the applicant to pay the consultant fee specified by the Commission
within 10 business days of the request for payment shall be cause
for the Commission to continue the hearing or deny the permit application
for lack of information.
G.
The applicant may appeal the selection of the outside consultant
to the Board of Selectmen who may disqualify the outside consultant
selected only on the grounds that the consultant has a conflict of
interest or does not possess the minimum required qualifications.
The minimum qualifications shall consist of either an educational
degree or three or more years of practice in the field at issue or
related field. Such an appeal must be in writing and received by the
Board of Selectmen and a copy received by the Conservation Commission,
so as to be received within 10 days of the date consultant fees were
requested by the Conservation Commission. The required time limits
for action upon the application shall be extended by the duration
of the administrative appeal. Should the Selectmen not act on any
such appeal, within 30 days, the Commission's choice shall stand.
The invalidity of any section or provision of the Bylaw or of
these regulations shall not invalidate any other section or provisions
thereof.
A.
Findings.
(1)
Banks are likely to be significant to wildlife, to plant or wildlife
habitat, to public or private water supply, to groundwater supply,
to flood control, to storm damage prevention, to the prevention of
pollution, to erosion control and sedimentation control, and to the
protection of fisheries. Where banks are composed of concrete, asphalt
or other artificial impervious material, said banks are likely to
be significant to flood control and storm damage prevention.
(2)
Banks are areas where groundwater discharges to the surface and where,
under some circumstances, surface water recharges the groundwater.
(3)
Where banks are partially or totally vegetated, the vegetation serves
to maintain their stability, which in turn protects water quality
by reducing erosion and siltation. Partially or totally vegetated
banks provide habitat for wildlife.
(4)
Banks may also provide shade that moderates water temperatures, as
well as providing breeding habitat and escape cover and food, all
of which are significant to the protection of fisheries. Banks which
drop off quickly or overhang the water's edge often contain numerous
undercuts which operate as hiding spots for important species.
(5)
Banks act to confine floodwater during the most frequent storms,
preventing the spread of water to adjacent land. Because banks confine
water during such storms to an established channel, they maintain
water temperatures and depths necessary for the protection of fisheries.
The maintenance of cool water temperatures during warm weather is
critical to the survival of many species. An alteration of a bank
that permits water to frequently and consistently spread over a larger
and more shallow area increases the amount of property which is routinely
flooded, as well as elevating water temperatures and reducing fish
habitat within the main channel, particularly during warm weather.
(6)
Land bordering or within 100 feet of a bank is likely to be significant
to the protection and maintenance of the bank, and therefore to the
protection of the interests which these resources serve to protect.
B.
Definition, critical characteristics and boundary.
(1)
A bank is the portion of the land surface which normally abuts and
confines a water body. It occurs between a water body and a vegetated
bordering wetland and adjacent floodplain, or, in the absence of these,
it occurs between a water body and an upland. A bank may be partially
or totally vegetated, or it may be comprised of exposed soil, gravel
or stone. Bank can be present in all streams.
(3)
The upper boundary of a bank is the first observable break in the
slope or the mean annual flood level, whichever is higher in elevation.
The lower boundary of a bank is the mean annual low flow level or
mean low water level.
C.
The Commission may deny activity, other than the maintenance of an
already existing structure, which will result in the building within
or upon, removing, filling, or altering of a bank.
D.
Any activity which is allowed under this section on a bank or on
land bordering or within 100 feet of a bank shall comply with the
following regulations. Any proposed work on a bank or bordering or
within 100 feet of a bank shall not impair the following:
E.
The Commission may deny any work to be performed within 50 feet of
an inland bank that abuts an estimated habitat area as designated
on the most current map prepared by the Massachusetts Natural Heritage
and Endangered Species Program or within 50 feet of a vernal pool.
A.
Findings.
(1)
Vegetated wetlands, whether bordering or isolated, are likely to
be significant to wildlife, to plant or wildlife habitat, to public
or private water supply, to groundwater supply, to flood control,
to storm damage prevention, to prevention of pollution, and to the
protection of fisheries.
(2)
The plant communities, soils and associated low, often flat topography
of vegetated wetlands remove or detain sediments, nutrients (such
as nitrogen and phosphorous) and toxic substances (such as heavy metal
compounds) that occur in runoff and floodwaters.
(3)
Some nutrients and toxic substances are detained for years in plant
root systems or in the soils. Others are held by plants during the
growing season and released as the plants decay in the fall and winter.
This latter phenomenon delays the impacts of nutrients and toxins
until the cold weather period, when such impacts are less likely to
reduce water quality.
(4)
Vegetated wetlands are areas where groundwater discharges to the
surface and where, under some circumstances, surface water discharges
to the groundwater.
(5)
The profusion of vegetation and the low, flat topography of vegetated
wetlands slow down and reduce the passage of floodwaters during periods
of peak flow by providing temporary floodwater storage, and by facilitating
water removal through evaporation and transpiration. This reduces
downstream flood crests and resulting damage to private and public
property. During dry periods, the water retained in vegetated wetlands
is essential to the maintenance of base flow levels in rivers and
streams, which in turn is important to the protection of water quality
and water supplies.
(6)
Wetland vegetation provides shade that moderates water temperatures
important to fish life. Wetlands flooded by adjacent water bodies
and waterways provide food, breeding habitat and cover for fish. Fish
populations in the larval stage are particularly dependent upon food
provided by overbank flooding which occurs during peak flow periods
(extreme storms), because most river and stream channels do not provide
quantities of the microscopic plant and animal life required.
(7)
Wetland vegetation supports a wide variety of insects, reptiles,
amphibians, mammals and birds which are a source of food for important
fish. Bluegills (Lepomis macrochirus), pumpkinseeds (Lepomis gibbosus),
yellow perch (Perca flavenscens), rock bass (Ambloplites rupestris)
and all trout species feed upon nonaquatic insects. Largemouth bass
(Micropterus salmoides), chain pickerel (Esox niger) and northern
pike (Esox lucius) feed upon small mammals, snakes, nonaquatic insects,
birds and amphibians. These wetlands are also important to the protection
of rare and endangered wildlife species.
(8)
Vegetated wetlands, together with land bordering or within 100 feet
of a vegetated wetland, serve to moderate and alleviate thermal shock
and pollution resulting from runoff from impervious surfaces which
may be detrimental to wildlife, and fisheries downstream of the vegetated
wetlands.
(9)
Land bordering or within 100 feet of a vegetated wetland is likely
to be significant to the protection and maintenance of vegetated wetlands,
and therefore to the protection of the interests which these resource
areas serve to protect.
B.
Definition, critical characteristics and boundary.
(1)
Vegetated wetlands are freshwater wetlands. The types of freshwater wetlands include wet meadows, marshes, swamps, bogs. They are areas where the topography is low and flat, and where the soils are annually saturated. The ground- and surface water regime and the vegetational community which occur in each type of freshwater wetland are specified in Subsection B(3)(a) through (d) below.
(3)
The boundary of vegetated wetlands may be determined by soil analysis indicating inundated conditions for sufficient duration, as determined by current best management practices and/or shall be the line within which 50% or more of the vegetative community consists of recognized wetland plant species including, but not limited to, the wetland plant species identified in Subsection B(3)(a) through (e) below:
(a)
The term "bogs" as used in this section shall mean areas where
standing or slowly running water is near or at the surface during
a normal growing season and where a vegetative community has a significant
portion of the ground or water surface covered with sphagnum moss
(Sphagnum spp.) and where the vegetative community is made up of a
significant portion of one or more of, but not limited to or necessarily
including all of the following plants or groups of plants: aster (Aster
nemoralis), azaleas (Rhododendron canadense and R. viscocum), black
spruce (Picea marana), bog cotton (Eriophorum), cranberry (Vaccinium
macrocarpon), high-bush blueberry (Vaccinium corymbosum), larch (Larix
laricina), laurels (Kalmis augustifolia and K. polifolia), leatherleaf
(Chamaedaphne calyculata), orchids (Arethusa, Calopogon, Pogonia),
pitcher plants (Sarracenia purpurea), sedges (Cyperaceae), sundews
(Droseaceae), sweet gale (Myrica gale) and white cedar (Chamaecyparis
thyoides).
(b)
The term "swamps," as used in this section, shall mean areas
where groundwater is at or near the surface of the ground for a significant
part of the growing season or where runoff water from surface drainage
frequently collects above the soil surface, and where a significant
part of the vegetative community is made up of, but not limited to
nor necessarily including all of the following plants or groups of
plants: alders (Alnus), ashes (Fraxinus), azaleas (Rhododendron canadense
and R. viscosum), black alder (Ilex Verticillata), black spruce (Picea
mariana), button bush (Cephalanthus occidentalis), American or white
elm (Ulmus americana), white Hellebore (Veraturm viride), hemlock
(Tsuga canadensis), highbush blueberry (Vaccinium corymbosum), larch
(Larix laricina), cowslip (Caltha palustris), poison sumac (Toxicodendron
vernix), red maple (Acer rubrum), skunk cabbage (Symplocarpus foetidus),
sphagnum mosses (Sphagnum), spicebush (Lindera benzoin), black gum
tupelo (Nyssa sylvatica), sweet pepper bush (Clethra alnifolia), white
cedar (Chamaecyparis thyoides) and willow (Salicaceae);
(c)
The term "wet meadow" as used in this section shall mean areas
where groundwater is at the surface for a significant part of the
growing season and near the surface throughout the year and where
a significant part of the vegetative community is composed of various
grasses, sedges and rushes, made up of, but not limited to nor necessarily
including all of the following plants or groups of plants: blue flag
(Iris), vervain (Verbena), thoroughwort (Eupatorium), dock (Rumex),
false loosestrife (Ludwigia), hydrophilic grasses (Gramineae), loosestrife
(Lythrum), marsh fern (Dryopteris thelypteris), rushes (Juncaceae),
sedges (Cyperaceae), sensitive fern (Onoclea sensibilis) and smartweed
(Polygonum).
(d)
The term "marshes," as used in this section, shall mean areas
where a vegetative community exists in standing or running water during
the growing season and where a significant part of the vegetative
community is composed of, but not limited to nor necessarily including
all of the following plants or groups of plants: arums (Araceae),
bladder worts (Ultricularia), bur reeds (Sparganiaceae), button rush
(Cephalanthus occidentalis), cattails (Typha), duck weeds (Lemnaceae),
eelgrass (Vallisneria), frog bits (Hydrocharitaceae), horsetails (Equisetaceae),
hydrophilic grasses (Gramineae), leatherleaf (Chamaedaphne calcyculata),
pickerel weed (Pontederiaceae), pipeworts (Eriocaulon), Phragmites
(Phragmites Australis), pond weeds (Potamogeton), rushes (Juncaeae),
sedges (Cyperaceae), smartweeds (Polygonum), sweet gale (Myrica gale),
water milfoil (Haloragacaea), water lilies (Nymphaeaceae), water starworts
(Callitrichaceae) and water willow (Decodon verticillatus).
C.
The Commission may deny any activity, other than the maintenance
of an already existing structure, which will result in the building
within or upon, removing, filling or altering of a vegetated wetland.
D.
The Commission may deny any activity to be performed within 50 feet
of a vegetated wetland that abuts on an estimated habitat area as
designated on the most current map prepared by the Massachusetts Natural
Heritage and Endangered Species or within 50 feet of a vernal pool.
E.
Timing of delineations and resource verification.
(1)
Timing of submittal of proposed plans shall allow for seasonally
appropriate resource area delineations and verification of resource
areas such as stream status, vernal pool viability or mean annual
high water mark for streams. Failure to submit applications with seasonal
verification constraints at appropriate times of the year may result
in either:
(2)
In the case of challenges to the presumption of vernal pool habitat,
the Conservation Commission may require that the determination be
postponed until the appropriate time period consistent with the evidence
being presented. The Commission will either require its own site visits
as necessary to confirm the evidence or reliance on a neutral, third-party
qualified consultant at the applicant's expense.
(3)
In the case where precise field verification is necessary to confirm
a proposed delineation, the Conservation Commission may require that
the delineation be postponed until an appropriate time period where
weather conditions allow verification of evidence being presented.
The Commission will either require its own site visits as necessary
to confirm the evidence or reliance on a neutral, third-party qualified
consultant at the applicant's expense.
(4)
In general, the Commission requires that delineations must be conducted
between March 15 and November 15 in any one year for any vegetated
resource area. The Commission may waive or modify the above time frame
when an applicant requests such a waiver or modification and such
waiver or modification is warranted due to the condition of the subject
resource area.
F.
Wetland replication.
(1)
Introduction. Notwithstanding the provisions of § 247-20, paragraphs A through D, and subject to § 247-11, the Commission in its sole discretion may allow work in vegetated wetland which results in the loss of up to 5,000 square feet of vegetated wetland when such area is replaced or replicated in a manner to ensure that the replacement area will provide a viable and sustainable wetland that replaces the functions and values of the area lost. Detailed project design is required to guarantee that wetland impacts are avoided to the maximum extent possible, to minimize absolutely necessary impacts and lastly, to successfully replicate losses that cannot be avoided. The design of replication areas shall carefully consider and incorporate to the extent practicable, the Massachusetts Inland Wetland Replication Guidelines (DEP, 2002) or any other applicable best management practices. Restoration of a degraded wetland may be accepted by the Commission as satisfying the foregoing replication requirement.
(2)
Required design criteria. Projects involving wetlands replication
areas shall meet the requirements of 310 CMR 10.60(3) and 310 CMR
10.55(4) and the following requirements of the Commission:
(a)
The proposed replication area design must be submitted to the
Commission for approval as part of the submittal of the project notice
of intent.
(b)
The replication area must be shown to sufficiently duplicate
the functions of the wetland proposed to be altered.
(c)
The area of the wetland replication shall be at a 2:1 ratio
to that area of wetland loss. If space is limited and adherence to
a 2:1 ratio would result in hardship as determined by the Commission,
this ratio may be reduced to as low as 1.5:1.
(d)
The type of wetland created shall be similar to that lost in
terms of physical characteristics and function (e.g., similar plant
species, hydrologic regime, and soils) except where an improvement
in physical characteristics and function is proposed.
(e)
The replication area must have similar groundwater and surface
elevation as the lost area.
(f)
The replication area must have a similar location relative to
the bank as the lost area when replicating bordering vegetated wetland.
(g)
The replication area must have an unrestricted surface hydraulic
connection to the same water body or waterway as the lost area when
replicating bordering vegetated wetland.
(h)
The location of the replication areas must be in the same general
area as the lost wetland.
(i)
The replication area shall be constructed prior to alteration
of the existing wetland and during the same growing season. When replication
involves transplanting plants and materials from existing wetland
to the replicated wetland, the replication area shall be constructed,
to the extent possible, immediately after alteration of the existing
wetland. When transporting, all care shall be taken to prevent the
transporting of invasive plants and invasive materials in soils.
(j)
The replication area shall not receive post-development stormwater,
as such may impair the habitat value or negatively impact fauna.
(k)
The proposed replication area must be clearly flagged for Commission
site inspection before the notice of intent filing.
(l)
The proposal for a replication area (submitted with the notice
of intent) shall include a detailed plan of the wetland replication
showing:
[1]
Cross-section with indication of groundwater level, soil profile
and thickness of organic soil in the existing and proposed wetlands;
[2]
Plant species detail, including number, type and location of
species found in the replication area to be altered, and number, types
and locations of species to be introduced into the replacement area;
[3]
Detail of stabilization plans for replication area of banks;
[4]
Wildlife habitat diversity plan;
(m)
If wetlands replication is to occur as part of a project, the
applicant shall hire a wetlands scientist, and present this individual
to the Commission for approval. This person shall be employed for
the duration of the project and will be responsible for assurance
that no additional resource area impacts other than those allowed
by permit shall occur. The person shall work with the general contractor's
staff to review all siltation controls, temporary stormwater management
systems, construction impacts in regulated resource areas, construction
impacts in or near the buffer zones, and this individual shall bear
complete responsibility for adherence to the wetlands replication
plan approved in the review process. While site work is ongoing, this
person shall submit monthly monitoring reports to the Commission.
(n)
If, after three growing seasons, the Commission determines that
the replication area has not satisfactorily developed into a wetland
replacing the wetland area lost, the applicant or owner may be required
to submit new plans to successfully replicate said lost wetland. No
certificate of compliance shall be issued until the Commission has
determined that satisfactory replication area has been completed at
the end of three growing seasons.
A.
Findings.
(1)
Land under water bodies and waterways is likely to be significant
to wildlife, to public and private water supply, to groundwater supply,
to flood control, to storm damage prevention, to prevention of pollution
and to the protection of fisheries.
(2)
Where land under water bodies and waterways is composed of pervious
material, such land represents a point of exchange between surface
water and groundwater.
(3)
The physical nature of land under water bodies and waterways is highly
variable, ranging from deep organic soils and fine sedimentary deposits
to rocks and bedrock. The organic soils and sediments play an important
role in the process of detaining and removing dissolved and particulate
nutrients (such as nitrogen and phosphorous) from the surface water
above. They also serve as traps for toxic substances (such as heavy
metal compounds).
(4)
Land under water bodies and waterways, in conjunction with banks,
serves to confine floodwater within definite channel during the most
frequent storms. Filling within this channel blocks flows which in
turn causes backwater and overbank flooding during such storms. An
alteration of land under water bodies and waterways that causes water
to frequently spread out over a larger area at a lower depth increases
the amount of property which is routinely flooded. Additionally, such
alteration results in an elevation of water temperature and a decrease
in habitat in the main channel, both of which are detrimental to fisheries,
particularly during periods of warm weather and low flows.
(5)
Land under rivers, streams and creeks as defined in the definition of "vegetated wetlands" in § 247-4B that is composed of gravel allows the circulation of cold, well-oxygenated water necessary for the survival of fish species. River, stream and creek bottoms with a diverse structure composed of gravel, large and small boulders and rock outcrops provide escape cover and resting areas for fish species. Such bottom type also provides areas for the production of aquatic insects essential to fisheries.
(6)
Land under ponds and lakes is vital to a large assortment of warm-water
fish during spawning periods. Species such as largemouth bass (Micropterus
salmoides), smallmouth bass (Micropterus dolomieui), blue gills (Lepomis
marcrochirus) pumpkinseeds (Lepomis gibbosus), black crappie (Promoxis
nigromaculatus) and rock bass (Ambloplites rupestris) build nests
on the lake and bottom substrates within which they shed and fertilize
their eggs.
(7)
Land within 100 feet of any bank abutting land under a water body
is likely to be significant to the protection and maintenance of land
under a water body, and therefore to the protection of the interests
which these water bodies serve to protect.
B.
C.
The Commission may deny any activity, other than the maintenance
of an already existing structure, which will result in the building
within or upon, or removing, filling, dredging or altering of land
under a water body or within 25 feet of land under a water body.
D.
The Commission may require that any activity which is allowed under
this section on land under a water body or within 100 feet of land
under a water body shall comply with the following regulations. Any
proposed work upon land under a water body or with 100 feet of land
under a water body shall not impair the following:
E.
The Commission may deny any work to be performed within 50 feet of
land under water bodies that abuts an estimated habitat area as designated
on the most current map prepared by the Massachusetts Natural Heritage
and Endangered Species Program or within 50 feet of a vernal pool.
A.
Findings.
(1)
Bordering land subject to flooding.
(a)
Bordering land subject to flooding is an area which floods from
a rise in a bordering waterway or water body. Such areas are presumed
to be significant to flood control and storm damage prevention and
protection of surrounding land and other homes or buildings.
(b)
Bordering land subject to flooding provides a temporary storage
area for floodwater which has overtopped the bank of the main channel
of a creek, brook, river or stream or the basin of a pond or lake.
During periods of peak runoff, floodwaters are both retained (i.e.,
slowly released through evaporation and percolation) and detained
(slowly released through surface discharge) by bordering land subject
to flooding. Over time, incremental filling of these areas causes
increases in the extent and level of flooding by eliminating flood
storage volume or by restricting flows, thereby causing increases
in damage to public and private properties and downstream resource
areas.
(c)
The hydrologic regime, plant community and structure, topography,
soil, and proximity to water bodies or vegetated wetlands provide
important food, shelter, migratory, and overwintering areas, and breeding
for wildlife.
(d)
The hydrologic regime, surrounding plant community, topography,
soil, and proximity to water bodies or vegetated wetlands of bordering
land subject to flooding allows certain vegetation to successfully
grow in these areas.
(2)
Isolated land subject to flooding.
(a)
Isolated land subject to flooding is an isolated depression
or a closed basin irrespective of size which serves as a ponding area
for runoff or high groundwater which has risen above the ground surface,
irrespective of size. Such areas are likely to be locally significant
to flood control and storm damage prevention. In addition, where such
areas are underlain by pervious material they are likely to be significant
to public or private water supply and to groundwater supply. Where
such areas are underlain by pervious material covered by a mat or
organic peat and muck, they are also likely to be significant to the
prevention of pollution. Isolated land subject to flooding provides
important breeding habitat for amphibians and some rare plants. Isolated
land subject to flooding provides a temporary storage area where runoff
and high groundwater pond and slowly evaporate or percolate into the
substrate. Filling causes lateral displacement of the ponded water
onto contiguous properties, which may result in damage to said properties.
(b)
Isolated land subject to flooding, where it is underlain by
pervious material, provides a point of exchange between groundwater
and surface waters. Contaminants introduced into said area, such as
road salts, find easy access into the groundwater. Where these conditions
occur and a mat of organic peat or muck covers the substrate of the
area, said mat serves to detain and remove contaminants which might
otherwise enter the groundwater.
(c)
Isolated land subject to flooding is an isolated depression
or closed basin without an inlet or an outlet. It is an area which
at least once a year confines standing water. Basins or lagoons which
are part of wastewater treatment plants, swimming pools or other impervious
man-made retention basins shall not be considered isolated land subject
to flooding.
(d)
The characteristics specified above are critical to the protection
of the interests identified.
(e)
The boundary of isolated land subject to flooding is the perimeter
of the largest observed or recorded volume of water confined in said
area. In the event of a conflict of opinion regarding the extent of
water confined in an isolated land subject to flooding, the applicant
may submit an opinion certified by a registered professional engineer,
supported by engineering calculations, as to the probable extent of
said water. Said calculations shall be prepared based upon the total
volume (rather than peak rate) of run-off from the drainage area contributing
to the isolated land subject to flooding and shall be further based
upon the assumption that there is no infiltration of said run-off
into the soil within the isolated land subject to flooding. Said calculations
shall also take into consideration any flooding volume contributed
by seasonal high groundwater.
(3)
Where a project will remove, fill, dredge, build upon, degrade, discharge
into or otherwise alter land subject to flooding (both bordering and
isolated areas) the Commission shall presume that such an area is
significant to the respective interests specified above.
B.
Definitions, critical characteristics and boundaries.
(1)
Bordering land subject to flooding.
(a)
Bordering land subject to flooding is an area with low, flat
topography adjacent to and inundated by floodwaters rising from brooks,
creeks, rivers, streams, pond or lakes. It extends from the banks
of these waterways and water bodies; where a bordering vegetated wetland
occurs, it extends from said wetland.
(c)
The boundary of bordering land subject to flooding is the estimated
or observed maximum lateral extent of floodwater which will theoretically
result or has resulted from the statistical one-hundred-year-frequency
storm.
[1]
Said boundary shall be that determined by reference to the most
recently available flood profile data prepared for the Town of Bellingham
within which the work is proposed under the National Flood Insurance
Program (NFIP, currently administered by the Federal Emergency Management
Agency, successor to the U.S. Department of Housing and Urban Development).
Said boundary, so determined, shall be presumed accurate. This presumption
may be overcome only by credible evidence from a registered professional
engineer or other professional competent in such matters.
[2]
Notwithstanding the foregoing, where NFIP profile data is unavailable
or is determined by the Commission to be outdated, inaccurate or not
reflecting current conditions, the boundary of bordering land subject
to flooding shall be the maximum lateral extent of floodwater which
has been observed or recorded.
(2)
Isolated land subject to flooding.
(a)
Isolated land subject to flooding is an isolated depression
or closed basin irrespective of size without an inlet or an outlet.
It is an area which at least once a year confines standing water.
Isolated land subject to flooding may be underlain by pervious material,
which in turn may be covered by a mat of peat or muck.
(c)
The boundary of isolated land subject to flooding is the perimeter of the largest observed or recorded volume of water confined in said area, or as otherwise specified under Subsection B(2)(d) below.
(d)
In the event of a conflict of opinion regarding the extent of
water confined in an isolated land subject to flooding, the applicant
may submit an opinion certified by a registered professional engineer,
supported by engineering calculations, as to the probable extent of
said water. Said calculations shall be prepared based upon the total
volume (rather than peak rate) of run-off from the drainage area contributing
to the isolated land subject to flooding and shall be further based
upon the assumption that there is no infiltration of said run-off
into the soil within the isolated land subject to flooding. Said calculations
shall also take into consideration any flooding volume contributed
by seasonal high groundwater.
C.
The Commission may deny any activity, other than the maintenance
of an already existing structure, which will result in the building
within or upon, or removing, filling, dredging or altering of, land
subject to flooding.
D.
Restrictions on activity.
(1)
Any activity which is allowed under this section on land subject
to flooding shall not result in the following:
(a)
Flood damage due to filling which causes lateral displacement
of water that would otherwise be confined within said area;
(b)
Adverse effect on public and private water supply or groundwater
supply, where said area is underlain by pervious material;
(c)
An adverse effect on the capacity of said area to prevent pollution
of the groundwater, where the area is underlain by pervious material
which in turn is covered by a mat of organic peat and muck.
(2)
Any such activity shall provide compensatory flood storage for all
flood storage volume that will be lost at each elevation. Compensatory
flood storage shall be at a 2:1 ratio, minimum, for each unit volume
of flood storage lost at each elevation. Compensatory flood storage
shall mean a volume not previously used for flood storage, shall have
an unrestricted hydraulic connection to the same waterway or water
body, and, with respect to waterways, shall be provided within the
same reach of the river, stream, or creek. No new parking areas or
garages shall be used as compensatory flood storage. The Commission
has found that use of such areas or garages results in a significant
or cumulative effect upon the resource area values protected by the
Bylaw, and has found that these facilities can result in the uncontrolled
acute or chronic release of these harmful materials into the resource
areas protected by the Bylaw. The Commission has also found that using
these structures for flood storage can result in the damage of vehicles
and property under flooding conditions.
E.
The Commission may deny any work to be performed within 50 feet of
land subject to flooding that abuts a potential vernal pool or an
estimated habitat area as designated on the most current map prepared
by the Massachusetts Natural Heritage and Endangered Species Program
unless the applicant can demonstrate by a preponderance of credible
evidence that the work will not have any short-term or long-term adverse
effect on the resource area values protected by the Bylaw.
A.
Findings. Vegetation in a resource area protected by the Bylaw is
significant for wildlife, wildlife habitat and water quality. In addition,
vegetation controls flood and storm damage. Vegetation provides food,
shelter, and opportunities for socialization, shade, water detention,
sediment control, bank stabilization, biodiversity, and pollutant
uptake, evapotranspiration of water, aesthetics, and atmospheric purification.
In addition, plant size ordinarily is proportional to habitat value;
i.e., large wooded trees are of greatest habitat value, followed by
bushes, and then ground cover. Thus, an adequate quantity of vegetation
must be maintained so that resource areas protected by the Bylaw can
provide the resource area values protected by the Bylaw, including,
but not limited to: flood control, storm damage prevention, pollution
abatement, wildlife protection, aesthetic value, and recreation.
B.
Every reasonable effort shall be taken to avoid and/or minimize damage
or removal of vegetation within a resource area. Where some removal
or damage is required, plans for replacement shall be submitted to
the Commission for approval.
C.
"In-kind replacement" shall refer to a combination of species type
and surface area as defined by the area delineated by the drip line
of the affected plant(s). "In-kind" means the same type and quantity
of plant species that was removed, unless compelling evidence is presented
in writing that explains why the resource area values under the Bylaw
are promoted through an alternative proposal, and planted within the
same resource area or another resource area located in close proximity
on the project site. Notwithstanding the foregoing, only non-invasive
plant species shall be planted as replacements.
D.
In all instances, the reasons for removal must be expressed in writing
before the removal. In administering this standard, the Commission
shall consider species selection, location, and timing of the plantings.
Criteria to be considered by the Commission in determining whether
to allow removal shall include:
(1)
Health of vegetation. Vegetation in a state of irreversible decay,
or undesirable vegetation present as a result of lack of maintenance
may be offered as a reason(s) for removal.
(2)
Bank or slope stabilization. A bank or slope stabilization plan requires
the restructuring of soils occupied by vegetation.
(3)
Invasive species. The vegetation being removed is an aggressive,
invasive, or non-native species as confirmed by wetlands scientist
or as listed on a wetlands plant list acceptable to the Commission,
such as, but not limited to that published by the United States Fish
and Wildlife Service.
(4)
Imminent risk to public health. The vegetation is an imminent risk
to public health or safety as confirmed in writing by the Bellingham
Tree Warden, Fire Department representative, Public Safety Officer,
or a certified arborist.
E.
Application for removal. For all projects, the application for vegetation
removal shall be submitted as part of the notice of intent as described
by the Bylaw and these regulations. At a minimum, the application
will include:
(1)
Narrative. The narrative shall describe the existing conditions, the proposed planting plan, the list of existing and proposed species, the size of existing and proposed species, and number of plants before and after the revegetation event. The narrative shall also provide the rationale for the removal and discuss the proposed maintenance plan [see Subsection E(6) below].
(2)
Affirmation of the revegetation activities. All plans for revegetation
must be accompanied by written testimony and scaled diagram from a
certified arborist or wetland scientist or landscape architect. At
a minimum, this document must include the following information:
(3)
Planting plan. The planting plan must be drawn to scale and identify
properly the resource area and buffer zone and the project site. It
must include the locations of each replacement species. The planting
plan and procedures shall comply with the American Standards for Nurserymen,
Inc. or equivalent. It must also include the location of the erosion
control devices used during the restoration event. A brief narrative
must accompany this planting plan describing the storage location
of all motorized equipment.
(4)
Species list.
(a)
Each species existing before and after the restoration shall
be listed in terms of area of coverage (feet2) and number of individual plants. A rationale for the species and
size choice must be provided if the replacement is not "in-kind."
Native species are the preferred plants of choice; invasive species
are not allowed.
(b)
The Commission may require that the replacement of a tree shall
be with that of equivalent trunk diameter at breast height ("dbh")
or when it is not possible to replace with the same dbh, it shall
be replaced according to the following tables (derived from the American
Standards for Nurserymen, Inc.) which list dbh to measure the tree
to be removed and list the replacement trees in caliper or gallon/height
as that is what is more commonly found at nearby nurseries:
[1]
For deciduous trees:
|
Replacement Guideline
| ||||
|---|---|---|---|---|
|
Existing Trunk
(dbh)
|
(caliper)
|
or
|
(gallon/height)
| |
|
2" to 3.5"
|
1 x 2" to 3.5"
|
TBD
| ||
|
3.5" to 6"
|
2 x 2" to 3.5"
|
TBD
| ||
|
6" to 10"
|
3 x 2" to 3.5"
|
TBD
| ||
|
>10"
|
Discretion of Commission to reach equivalent
| |||
[2]
For evergreen trees:
|
Replacement Guideline
| ||||
|---|---|---|---|---|
|
Existing Trunk
(dbh)
|
(caliper)
|
or
|
(gallon/height)
| |
|
2" to 3.5"
|
1 x 2" to 3.5"
|
TBD
| ||
|
3.5" to 6"
|
2 x 2" to 3.5"
|
TBD
| ||
|
6" to 10"
|
3 x 2" to 3.5"
|
TBD
| ||
|
>10"
|
Discretion of Commission to reach equivalent
| |||
[3]
For bushes and shrubs. The replacement of bushes and shrubs
shall be with bushes and shrubs of equivalent size.
(5)
Rationale for removal. Describe why the interests of wetlands protection
are advanced by the revegetation plan.
(6)
Maintenance plan. Vegetation replacement is not considered successful
until the replacement plants have survived three full growing seasons.
The maintenance plan shall describe how the restoration will be evaluated
annually for three years and reported to the Commission. The Commission
reserves the right to require a revised replanting plan, or additional
plantings on an annual basis in the event that the vegetative plants
decay or die.
F.
Security may be required in accordance with § 247-31, to assure successful survival of replacement vegetation.
G.
The Commission may require one or more of the following measures
to protect vegetation during work:
(1)
Tree protection fencing. Prior to commencing work, four-foot-high
snow fencing shall be installed and secured with wooden stakes (2"
x 4" or 2" x 3") or six-foot steel channel posts so as to create an
enclosure at the drip line of tree(s) or other distance as the site
conditions allow to be protected. Such fencing shall be securely erected,
be vertically plumb and be maintained for the duration of the project
and shall protect individual trees or groups of trees.
(2)
Tree protection blanket. "BarkSavers" or similar armored blankets
shall be installed and maintained according to product specifications.
(3)
No existing trees shall be used for crane stay, guys or other fastening.
(4)
Vehicles shall not be parked below the canopy of any existing tree
or where damage may result to existing trees.
(5)
Construction materials shall not be stored beneath existing trees.
(6)
Following completion of work, have a certified arborist monitor the
health of trees on site for possible damage and take measures to repair
damage.
(7)
Prior to work, preparation of a tree protection plan showing summary
of all trees on site (including dbh, species, extent of canopy, roots
and health) and specifying whether each tree shall be saved or lost.
H.
The requirements of this section shall be met commensurate with the
nature, scope, type, and cost of the proposed project or activity.
A.
Findings.
(1)
The buffer zones usually are significant to wildlife, plant or wildlife
habitat, to public and private water supply, to groundwater supply,
to flood control, to storm damage prevention, to prevention of pollution,
to erosion control and sedimentation control, and to natural character
and recreation.
(2)
Trees in the buffer zones provide important functions not provided
by any other plant type. Trees provide shade to moderate water temperatures,
levels of dissolved oxygen and water flow. They serve as windbreaks
to moderate wind stress and shear during storms, and provide nesting,
roosting and perching areas for birds, and other wildlife. The transitional
assemblage of trees, shrubs and groundcover (containing both wetland
and upland elements) frequently found in buffer zones has been found
significant to the support of a greater number of native and specialist
wildlife species in the interior of resource areas, which they border.
Trees and other vegetation, if undisturbed or minimally disturbed,
slow the rate of surface runoff providing flood control and reducing
down-gradient storm damage.
(3)
Lands within the buffer zones are generally best left in an undisturbed
and natural state.
(4)
There is overwhelming scientific consensus that significant physical,
chemical, or biological alterations to buffer zones will have significant
physical, chemical, or biological impacts on associated or adjacent
wetland resource areas such as banks, creeks, streams, rivers, ponds,
lakes, and wetlands. Buffer zones are presumed important to the protection
of these resources because activities undertaken in close proximity
to wetlands and other resource areas protected by the Bylaw have a
high likelihood of adverse impact upon those areas, either immediately,
as a consequence of construction, or over time, as a consequence of
daily operation or existence of the activities. These adverse impacts
from construction and use can include, without limitation, erosion,
siltation, loss of groundwater recharge, loss of flood control or
storm damage prevention, poor water quality, and harm to wildlife
and wildlife habitat. The ability of the buffer zones to protect a
wetland resource, and to provide habitat, increases with buffer width
and continuity.
(5)
Generally, buffer zones less than 25 feet wide are ineffective in
protecting adjacent wetlands or providing wildlife habitat functions.
Vegetated buffers larger than 25 feet are often necessary to provide
wildlife habitat and to protect wetlands from continuing activities
such as inputs of sediments and nutrients, direct human disturbance,
to protect sensitive species from adverse impacts, and to protect
wetlands from the adverse effects of changing water quality, including
but not limited to nutrient concentrations, temperature, salinity
and dissolved oxygen concentrations.
(6)
A growing body of research evidence also suggests that even "no disturbance"
areas of 25 feet from other resource areas may be insufficient to
protect many important characteristics and values. Problems of nutrient
runoff, water pollution, siltation, erosion, vegetation change, and
habitat destruction are greatly exacerbated by activities within 100
feet of wetlands. Thus, the Commission may determine that work and
activity within that portion of the buffer zones beyond 25 feet shall
be avoided and discouraged and reasonable alternatives pursued as
required above.
B.
Buffer zones.
(1)
In reviewing whether work in the buffer zone may be permitted, the
Commission may review:
(a)
Slope.
(b)
Soil characteristics.
(c)
Drainage patterns.
(d)
Extent and type of existing vegetation.
(e)
Extent and type of invasive vegetation.
(f)
Amount of impervious surface.
(g)
Wildlife and wildlife habitat.
(h)
Intensity and extent of use.
(i)
Intensity and extent of adjacent and nearby uses.
(2)
This approach is intended to allow maximum flexibility for property
use while maintaining adequate levels of protection of the resource
values protected by the Bylaw. Ultimately, the Commission may establish
"no-disturbance zones," "temporary disturbance zones," or permanent
disturbance areas" within a buffer zone.
(a)
No-disturbance zone. The Commission may, as a condition of approval, designate a no-disturbance zone which shall, in general, be designated as a specific number of feet from a regulated resource area. Prohibited activities may include, but are not limited to, mosquito spraying, fertilization, herbicide and pesticide applications, grading, landscaping, vegetation control, pruning, cutting, filling, excavation, roadway construction and/or driveway construction. Enforcement of the no-disturbance zone for existing single- and duplex-family residences is discretionary, if the Commission finds the zone's use to be insignificant or sufficiently mitigated. This is an area within the buffer zones in which virtually no activities or work, other than passive passage, are permitted. No vegetation may be disturbed, and leaf litter and debris shall remain in place. This minimal disturbance area should remain unchanged from its pre-project condition to maintain consistency with Subsection A(5). In general, a no disturbance zone may consist of 0- to 25-foot buffer zone from a resource area but the Commission may impose a smaller or larger no disturbance zone in order to protect the interests under the Bylaw and these Regulations.
(b)
Temporary disturbance area. This is an area within the buffer
zones where temporary disturbance for a limited period of time is
permitted, such as for re-grading or travel by machinery. Once the
activity is completed, however, the area shall be allowed to return
to natural vegetation and function. Any subsequent disturbance or
activity shall require a new filing. The Conservation Commission shall
establish specific time frames and conditions for allowing temporary
disturbances, as well as setting criteria for assessing the successful
return of the buffer zones to natural functions. Normally this discretionary
temporary disturbance area may consist of 25- to 50-foot portion of
the buffer zone but the Commission may impose a smaller or larger
temporary disturbance area in order to protect the interests under
the Bylaw and these Regulations.
(c)
Permanent disturbance area. This is an area within the buffer
zones in which most, if not all, legal activities and permanent disturbances
are permitted. The permanent disturbance area may include the area
from 50 feet to 100 feet of the wetland resource area boundary but
the Commission may impose a smaller or larger permanent disturbance
area. Houses, porches, driveways, gardens, and lawns in the buffer
zone represent permanent disturbance areas. Nevertheless, within the
context of permanent disturbance, the Conservation Commission may
set specific conditions prohibiting or restricting those forms of
work and activities in the buffer zones deemed potentially harmful
to the wetland resource area values protected by the Bylaw, such as
the use of herbicides and pesticides, use of interceptor drains, or
installation of in-ground sprinkler systems for irrigating areas in
the adjacent upland resource.
C.
The following construction activities may be prohibited by the Commission
in any portion of the buffer zone: changing of oil, refueling, or
damage to other vegetation not scheduled for removal.
A.
Findings.
(1)
Vernal pools and their associated 100-foot buffer zone are likely
to be significant to the protection of wildlife habitat and rare plant
and animal habitat. Vernal pools constitute a unique and increasingly
rare type of wetland that is inhabited by many species of wildlife,
some of which are completely dependent on vernal pools and their associated
habitat for their survival. Areas in the immediate vicinity of the
vernal pool provide these species with important non-breeding habitat
functions, such as migratory pathways, feeding, shelter, and over-wintering
sites. Many other species utilize vernal pools and their associated
100-foot buffer zone for breeding and non-breeding functions, although
such species are not limited to this type of wetland. The protection
of vernal pools and the buffer zone thereto are essential for the
survival of wildlife species that depend on these unique and threatened
resource areas. Vernal pools need not be state-certified in order
to be protected under the Wetlands Bylaw or these regulations.
(2)
The extreme edges of vernal pool habitat represent one of the most
ecologically valuable portions of these habitats. Shallow water at
the edges of a pool generally is the first to thaw in the spring.
This provides early access to the pool for the earliest breeding species.
The shallow water zones also tend to be significantly warmer than
the deeper portions of a vernal pool throughout the spring. Egg masses
of early breeding amphibians benefit from the warmer water temperatures
at the pool edges that promote rapid egg development.
B.
Definition, critical characteristics and boundary.
(1)
Vernal pools exhibit a tremendous variation in physical, geographic,
hydrologic and vegetative conditions, and therefore, for the purposes
of these regulations, these conditions are not considered reliable
criteria for their identification. A vernal pool is a temporary freshwater
body, which, in most years, holds water for a minimum of two months
and is free of established, reproducing fish populations, and is protected
by these regulations if it meets any of the following criteria:
(a)
The vernal pool contains breeding evidence of any one of the
following obligate indicator species: Spotted Salamander, Blue-Spotted
Salamander, Jefferson Salamander, Marbled Salamander, Wood Frog or
Fairy Shrimp; or
(b)
In the absence of any obligate indicator species identified
in (a) above, the vernal pool contains evidence of two of any of the
following facultative indicator species: Spring Peeper, American Toad,
Green Frog, Pickerel Frog, Gray Tree Frog, Four-Toed Salamander, Spotted
Turtle, Caddisfly larvae or cases of Caddisfly larvae, Dragonfly or
Damselfly larvae or shed skins (exuvia) of Dragonfly or Damselfly
larvae, adults, juveniles or shells of either Fingernail Clams or
amphibious, air-breathing snails.
(c)
Isolated vegetated wetlands which impound water for a period
of four weeks in the spring are presumed to be vernal pools unless
the applicant demonstrates, during the breeding season, that the pool
does not meet paragraphs (a) and (b) above.
C.
Timing of evidence collection.
(1)
Many of the indicators of vernal pool habitat are seasonal. For example,
certain salamander egg clusters are found only between late March
and late May; Wood Frog chorusing occurs only between late March and
late May, and then only at night. Consequently, failure to find evidence
of breeding must be tied explicitly to those periods during which
the evidence is most likely to be available.
(2)
Accordingly, in the case of challenges to the presumption of vernal
pool habitat, the Commission may require that the determination be
postponed until the appropriate time period consistent with the evidence
being presented. The Commission may also require its own site visit(s)
as necessary to confirm the evidence. Vernal pool investigations shall
be conducted during the amphibian breeding season, or from March 1
to May 31 in any one year. The Commission reserves the right to waive
or modify the above time frame at an applicant's request or when
current weather conditions warrant.
D.
Presumption of significance. Where a proposed activity involves the
removing, filling, dredging, or altering of a vernal pool or its adjacent
buffer zone, the Commission shall presume that the vernal pool and/or
its buffer zone is significant to the protection of wildlife habitat
and rare plant and animal habitat.
E.
Establishment of a no-disturbance zone. Unless the presumption set forth in § 247-25D of these regulations is overcome, the following standards shall apply to a vernal pool and its buffer zone:
(1)
No-disturbance zone. The Commission may require that no activity
shall be permitted within a designated number of feet from the delineated
edge of a vernal pool, or in the case of a wetland resource area that
encompasses the pool, within a designated number of feet from the
delineated edge of said wetland resource area. In many cases, this
no-disturbance zone may extend for 50 feet. Prohibited activities
include, but are not limited to, mosquito spraying, fertilization,
herbicide and pesticide applications, grading, landscaping, vegetation
control, pruning, cutting, filling, excavation, roadway construction
and/or driveway construction.
(2)
No-disturbance zone demarcation. To maintain the perpetual integrity
of the no-disturbance zones and to ensure that there will be no encroachments
into these zones by the applicant or future owners of the subject
property, the Commission may require the no-disturbance zone to be
marked on the ground, at the applicant's expense, with permanent
markers. These markers shall be made of weather-resistant material
(i.e., granite or concrete), and the Commission shall determine their
number, location and size. The Commission may require the maintenance
of such markers in any certificate of compliance issued for the project.
(3)
Vernal pool habitat are those that have been identified as such by the Commission using information such as required by the Massachusetts Division of Fisheries and Wildlife in certifying vernal pools or as in § 247-25B(1), regardless of whether said Division has certified said vernal pool habitat to the Conservation Commission and DEP. The burden of proof of non-significance or non-existence of a vernal pool is on the applicant.
A.
For projects proposed after the effective date of these regulations,
the Commission may prohibit the use of salts, pesticides, fertilizers
and herbicides within the 100-foot buffer zone and within the 200-foot
riparian zone.
B.
Possible exemptions to these regulations are the application of herbicides
within the buffer zone and application of salt in areas for the express
interest of public safety where no other measures are adequate or
practicable. The herbicide exemption applies only if the work is performed
in accordance with such plans as is required by the Department of
Food and Agriculture pursuant to 333 CMR 11.00. rights-of-way management,
consistent with M.G.L. ch. 131, § 40, shall apply only if
the person proposing such activity has requested and obtained a determination
of the boundaries of the buffer zone and areas subject to protection
and has submitted that determination as part of the vegetation management
plan. Such exemptions are allowed for public utilities for work on
structures or facilities used in the service of the public.
C.
The application of herbicides to control nuisance aquatic vegetation
may be a permitted activity after Conservation Commission review in
the notice of intent or request for determination of applicability
process provided all state and federal permitting criteria has been
met.
A.
Any areas within the Town of Bellingham which have been designated
as areas of critical environmental concern, priority habitat or estimated
habitat by the Commonwealth of Massachusetts are so designated due
to the particularly unique environmental factors that affect such
areas and that highlight the unique importance of each area so designated.
B.
As a result of such designation, it is incumbent upon the Commission
to be even more diligent in its review of projects proposed within
such areas. The highest standards of scrutiny as to the impact of
any proposal are required shall be exercised by the Commission.
A.
The permit and application required by the Bylaw and these regulations
shall not apply to emergency projects necessary for the protection
of the health and safety of the public, provided that the work is
to be performed by or has been ordered to be performed by an agency
of the Commonwealth or the Town of Bellingham. Notice, oral or written,
shall be provided to the Conservation Commission prior to commencement
of work or within 24 hours after commencement, provided that:
(1)
The Conservation Commission certifies the work as an emergency project;
and
(2)
The work is performed only for the time and place certified by the
Conservation Commission for the limited purposes necessary to abate
the emergency; and
(3)
Protective measures required by the Conservation Commission are complied
with; and
(4)
Within 21 days of the commencement of an emergency project, a permit
application shall be filed with the Commission for review as provided
by this bylaw.
B.
Such notice shall state the name of the person performing the work,
the name of the property owner (if different), the property and the
location on the property where the work is to be performed, the exact
nature of the emergency and of the work which is to be performed,
and when the work was begun and when it is expected to be completed.
The Commission may, at its discretion, conduct a site visit to view
the work being performed under such notice and to confirm that the
information in the notice is correct.
C.
Other than stated in this section, the exceptions provided in the
Massachusetts Wetlands Protection Act shall not apply.
D.
Any person requesting permission to do an emergency project shall
specify why the project is necessary for the protection of the health
or safety of the citizens of the Town of Bellingham and what agency
of the Town is to perform the project or has ordered the project to
be performed.
E.
A single Commissioner or the Commission's designated Conservation
Agent can act on a request for emergency certification. A single Commissioner
or the Commission's Agent may condition the emergency certification
to assure minimum standards for resource area protection are met while
the project is ongoing. The full Commission will review the emergency
certification within 21 days of issuance and ratify the certificate
and take such other action as it deems appropriate.
F.
Any work undertaken as an emergency activity shall be completed within
30 days from the commencement of such work unless written approval
for a later completion date is given by the Commission.
G.
No emergency work shall be allowed within estimated habitat which
is indicated on the most recent Estimated Habitat Maps of State-Listed
Rare Wetlands Wildlife published by the Natural Heritage and Endangered
Species Program of the Massachusetts DEP of Fisheries, Wildlife, and
Environmental Law Enforcement without express consent of both NHESP
and the Commission.
A.
Plans shall describe the proposed activity and its effect on the
environment. Due regard shall be shown for all natural features such
as large trees, watercourses and water bodies, wildlife habitat and
similar community assets.
(1)
The following items are set out as a minimum standard. The applicant
may submit, or be required to submit, any further information that
will assist in the Commission's review and that is deemed necessary
to determine the proposed effect on the interests protected by the
Bylaw. The Conservation Commission may waive any of these plan requirements
it deems insignificant or irrelevant for a particular project.
(2)
The applicant must submit the original material to the Conservation
Commission, plus four copies of the following:
(a)
Complete and signed permit application.
(b)
An eight-and-one-half-inch-by-eleven-inch reproduction of the
USGS quadrangle sheet showing the project locus, and in the case where
the project requires two or more plans to show the locus, an eight-and-one-half-inch-by-eleven-inch
sheet clearly identifying the proposed site and work in addition to
the labeled boundaries of the resource areas.
(c)
Copies of all submittals in digital form (pdf, dxf and dwg)
unless waived or varied by the Conservation Commission.
B.
Plan content.
(1)
The following information shall be provided:
(a)
The names and addresses of the record owner(s), the applicant(s)
and of all abutters, as determined by the most recent local tax list
as provided by the Assessor's Office, unless the applicant shall
have a more recent knowledge of such abutters.
(b)
Description of any alteration to flood storage capacity on the
site. Include calculations and watershed maps if necessary.
(c)
Soil characteristics in representative portions of the site.
Locate all Town-witnessed test pits on the site plan.
(d)
The Commission may in its sole discretion require the applicant
to provide a runoff plan and calculations using the Rational Method,
"the Cornell" method or any other applicable method, and based on
the ten-year, fifty-year and one-hundred-year-flood frequency event
period. Calculations shall show existing and proposed runoff conditions
for comparative purposes.
(e)
Methods to be used to stabilize and maintain any embankments
facing any wetlands, or show slope on plans of less than or equal
to 3:1.
(f)
Methods to control erosion and sedimentation during and after
construction.
C.
Plan specifications.
(1)
Drawings for a request for determination of applicability must be
to scale unless waived or varied by the Conservation Commission. All
other plans (e.g., for notices of intent) shall be drawn to scale
(one inch equals 40 feet maximum) with the title designating the name
of the project, location, the name(s) of the person(s) preparing the
drawings and the date prepared, including all revision dates; such
drawings shall be stamped and signed by a licensed professional engineer
or a licensed professional land surveyor of the Commonwealth of Massachusetts.
Drawings shall be to NAD88 datum and NAD83 grid coordinate system.
All surveying shall be from the ground for coverage of resource areas,
including ILSF.
(2)
Drawings must include the boundary and location of all resource areas
protected by the Bylaw on the project site and within 100 feet, regardless
of whether or not the applicant believes the work is subject to M.G.L.
ch. 131, § 40, the Wetlands Protection Act or the Bellingham
Wetlands Bylaw
(3)
Alterations.
(5)
Calendar dates of measurements, samplings, contours and so forth
should appear with such data. Datum shall be stated in NAVD88 base.
The contour interval shall be no greater than two feet.
(6)
Indicate existing and final contours and contour interval used, including
pond bottom and stream invert contours.
(7)
Indicate locations and elevations of sills and bottom of foundation(s)
and septic system(s) (if any).
(8)
Indicate soil and groundwater characteristics in representative parts
of property, to be determined by independently-witnessed test pits
or soil borings. A minimum of three test pits is required at the location
for proposed stormwater management structures.
(9)
Indicate locations, sizes and slopes of existing and proposed culverts
and pipes.
(10)
Include cross-section of all wetlands, showing slopes, and bank
and bottom treatments for proposed wetland crossings.
(11)
Include existing and proposed water storage capacity of the
property, including calculations and data on which the capacity is
based. If filling is proposed, determine the effect of loss of storage
on downstream channels and culverts.
(12)
Indicate location and elevation of bench mark used for survey.
(13)
Indicate existing trees of 10-inch caliper or greater where
work is proposed within upland resource areas (those to be preserved
and/or removed), stone walls, fences, buildings, historic sites, rock
ridges and outcroppings.
(14)
Indicate invert elevations on catch basins.
(15)
Indicate proposed on-site pollution control devices, such as
hooded catch basins, oil absorption pillows, detention/retention basins,
flow dissipaters or vegetative buffers.
(16)
Show locations/details of erosion control devices.
(17)
Assessors map and lot number(s) shall be shown.
(18)
If location is within an area of critical environmental concern
or estimated habitat, it shall be so indicated on the plan.
D.
The requirements of this section shall be met commensurate with the
nature, scope, type, and cost of the proposed project or activity.
E.
Verification shall be provided that the project meets or will meet
current zoning bylaw requirements or that zoning variances have been
obtained.
F.
Plans submitted shall be the latest version also before for the Planning
Board, Board of Health or Zoning Board of Appeals.
G.
Record drawings shall be submitted for acceptance before a certificate
of compliance may be issued. Any variations from the approved plans
shall be annotated on the record drawings. Six sets of the final record
drawings shall be submitted in paper and digital form (.dxf or GIS-compatible
format). Record drawings shall be stamped by a professional land surveyor
and certified as accurate, and performed and produced in accordance
with surveying standards.
A.
Before site inspections can be made by the Conservation Commission
or the Commission's agent, the following conditions must be met:
B.
Failure to have the lot staked may result in non-review and thus
delay of a project.
C.
Upon completion of staking, the Conservation Commission shall be
notified and a site inspection shall be arranged prior to the scheduled
public hearing.
D.
The requirements of this section shall be met commensurate with the
nature, scope, type, and cost of the proposed project or activity.
A.
As part of any permit issued under these regulations, 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 hereunder be secured wholly
or in part by one or more of the methods described below:
(1)
By a proper deposit of money, passbook agreement or tri-party (lender's)
agreement sufficient in the opinion of both the Commission and the
applicant. This security may be held in common with another Town board
or agency for which the same permitted activity or restoration work
is being bonded. Written, signed agreement that both boards will sign
off prior to release of funds will be required.
(2)
By a conservation restriction, easement or other covenant approved
by both the Commission and the applicant, where applicable, which
is 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 Bellingham whereby the permit conditions shall be performed and
observed before any lot may be conveyed other than by mortgage deed.
(3)
By a lot-based covenant in lieu of financial surety, provided that
the market value of the designated lot is at least 150% of the cost
of work for which security is required. This is to account for possible
downward fluctuation in market value during the course of the project.
B.
The form of any security instrument, easement, restriction or covenant
is subject to the Commission's or its counsel's approval.
Riverfront area is defined in § 247-4, Definitions, and includes rivers, streams, brooks and creeks. The definitions, critical characteristics, boundaries, presumptions, general performance standards, re-development standards, and grandfathered/exempt projects for riverfront area are identical to those found at 310 CMR 10.58.
A.
Applicability.
(1)
For the protection of resource areas and for flood prevention required
under the MA Wetlands Protection Act and the Bellingham Wetlands Bylaw,
the Bellingham Conservation Commission has established the following
submittal standards for evaluating and mitigating development impacts
from the following types of projects:
B.
General application standards. A development application shall include
information to assess protection of resource areas and flood mitigation.
A stormwater management evaluation shall be provided consistent with
the DEP Stormwater Management Handbook, the Bellingham Stormwater
Management and Erosion Control Handbook, the Bellingham Wetlands Regulations,
and the following. Stormwater management designs shall meet the following
criteria:
(1)
Outside the Water Resource District, 2-foot minimum separation shall
be provided between the stormwater management location[1] bottom and estimated seasonal high groundwater. Within
the Water Resource District, 4-foot minimum separation shall be provided
between the stormwater management location bottom and estimated seasonal
high groundwater. Where seasonal high groundwater is not observable
by redoximorphic features, the Frimpter method shall be used at each
test location. The effects of groundwater mounding shall also be considered
in meeting the minimum separation requirements.
[1]
Note: Stormwater management locations are those where stormwater
is retained, detained or infiltrated, e.g., subsurface or surface
basins or infiltration systems, water quality swales, drywells, etc.
(2)
A minimum of three test pits shall be provided within each stormwater
management location. Soils data from NRCS soils mapping shall be verified
by witnessed, on-site soil and groundwater examinations, and soil
types characterized accordingly.
(3)
For areas storing stormwater for retention or detention, a minimum
1-foot freeboard shall be provided between the 100-year flood elevation
and the emergency overflow elevation.
(4)
Emergency spillways shall be sized for the 100-year peak basin inflow
rate, while providing a 6-inch freeboard to the dike crest.
(5)
Any basin outlet less than a 4-inch orifice or a 2-inch slot shall
be considered plugged for purposes of flood routing calculations.
(6)
Surface basins shall also be sized assuming frozen ground conditions
within the basins — no infiltration — during a 25-year
storm event.
(7)
Pipe and basin sizing shall utilize the latest hydrologic data from
Cornell University (or other current, accepted hydrological data)
to determine the volumes of the 2-, 10-, 25- and 100-year storm for
comparison of pre- and post-development runoff.
(8)
Within the Water Resource District, vegetative pretreatment or equivalently-effective
system shall be utilized for all impervious area stormwater runoff
prior to discharge.
(9)
There shall be no increase in stormwater runoff rate for any of the
above-specified storm events. There shall be no increase in runoff
volume from a development for up to the 25-year storm.
(10)
Other aspects of the stormwater management shall comply with
the requirements of the DEP Stormwater Management Handbook (Volumes
1-3, latest edition).
C.
Hydrogeologic assessment standards.
(1)
A development application shall include a hydrogeologic assessment
of nutrient impacts to groundwater and surface water. The analysis
of the impacts of the development will vary depending on its location
in relation to sensitive water resources within the Town. One of three
categories will apply. They are:
(2)
The standards for large projects do not apply, unless specifically
required by the Commission to subdivisions with upland in excess of
80,000 square feet per buildable lot or developments of less than
two acres.
(3)
An application shall not be deemed complete unless the required information
is submitted. Specific submittal standards may be found at the Town
of Bellingham website at bellinghamma.org, Boards and Committees,
Conservation Commission, Filing under Bellingham Wetlands Bylaw, Submittal
Standards.
