[HISTORY: Adopted by the Board of Aldermen
(now City Council) of the City of Chicopee 10-16-1990. Amendments noted where applicable.]
The purpose of this chapter is to protect the
wetlands, related water resources and adjoining land areas in the
City of Chicopee by prior review and control of activities deemed
by the Conservation Commission likely to have a significant or cumulative
effect upon wetland values, including but not limited to the following:
public or private water supply, groundwater, groundwater quality,
flood control, erosion and sedimentation control, storm damage prevention,
prevention of water pollution, fisheries, shellfish, wildlife habitat,
recreation, aesthetics, agriculture and agriculture values. The values
are to be known collectively as the "wetland values protected by this
chapter."
Except as permitted by statute or as provided
in this chapter, no person shall remove, fill, dredge, alter or build
upon or within 100 feet of the wetland resource areas such as:
A.
Any freshwater wetland, riverine wetland, marsh, wet
meadow, bog or swamp.
B.
Any bank or beach.
C.
Any lake, river, pond or stream, whether intermittent
or continuous, ephemeral, natural or man-made.
D.
Any land under the aforesaid waters.
E.
Any land subject to flooding by groundwater, surface
water or storm flowage.
F.
Isolated wetlands, including kettle holes.
G.
Seasonal wetlands.
H.
Upstream drainage that has the potential of altering
a resource area.
A.
Exceptions.
(1)
The application and permit required by this chapter
shall not be required for maintaining, repairing or replacing an existing
and lawfully located structure or facility which is used in the service
of the public to provide electric, gas, water, sanitary sewer, storm
drainage, public roadway, telephone, telegraph or other communication
services, provided that written notice has been given to the Conservation
Commission prior to the commencement of the work, provided that the
structure or facility will not be, in the opinion of the Chicopee
Conservation Commission, substantially changed or enlarged, and provided
that any work done conforms to the performance standards and regulations
adopted by the Conservation Commission.
(2)
Emergency projects.
(a)
The application and permit required by this
chapter shall not apply to emergency projects necessary for the protection
of the health or safety of the public, provided that the work is to
be performed or ordered to be performed by an agency of the commonwealth
or a political subdivision thereof, provided that a request for emergency
certification has been filed with the Chicopee Conservation Commission
prior to commencement of work or within 24 hours after commencement
and emergency certification has been granted by the Chicopee Conservation
Commission or its agent, and provided that the work is performed only
for the time and place certified by the Conservation Commission for
the limited purpose necessary to abate the emergency. Within 21 days
of commencement of any emergency project, a permit application shall
be filed with the Conservation Commission for review as provided in
this chapter.
(b)
Upon failure to meet these and other requirements
of the Commission, the Commission may, after notice and a public hearing,
revoke or modify an emergency project approval and order restoration
and mitigation measures.
B.
Application for permit.
(1)
Written application shall be filed with the Conservation
Commission to perform any work which will or which, in the opinion
of the Conservation Commission, may affect resource areas within the
jurisdiction of this chapter. Upon the petition of 10 residents of
the City, the Conservation Commission shall require any work commenced
within the jurisdiction of this chapter without a permit to be stopped
and may require a written application as approved in this section.
The application shall include such plans as are deemed necessary by
the Conservation Commission to describe the proposed activities and
their effects on the environment. No work or alteration shall commence
without receiving and complying with a permit issued pursuant to this
chapter.
(2)
The Conservation Commission may require an application and plans under this chapter in addition to the notice of intent and plans filed pursuant to the Wetlands Protection Act, MGL c. 131, § 40. Any person desiring to know whether or not proposed work on an area is subject to this chapter shall file a request for determination form one with the Conservation Commission. A filing fee may be required for a written request for determination. The applicant shall pay for the notice to be published and mailed.
(3)
At the time of an application or request, the applicant shall pay a filing fee specified in regulations of the Commission. This fee is in addition to that required by the Wetlands Protection Act, MGL c. 131, § 40. In addition, the Commission is authorized to require the applicant to pay the costs and expenses of any expert consultant deemed necessary by the Commission to review the application or request up to a maximum of 2,500. The Commission may waive the filing fee and costs and expenses for an application or request filed by a government agency.
(4)
The permit under the Wetlands Protection Ordinance
should be applied for prior to application for any other permits,
variances and approvals from the municipal government.
A.
Any person filing a notice of intent or request for
determination with the Conservation Commission shall provide a list
of abutters residing 300 feet of the proposed project according to
the most recent records of the Assessors, including those across a
traveled way, or any other persons as the Conservation Commission
shall require. When the person requesting a determination is other
than the owner, the notice of the hearing and the determination itself
shall be sent by the Conservation Commission to the owner as well
as to the person making this request.
B.
The Conservation Commission, in an appropriate case, may combine its hearing under this chapter with the hearing conducted under the Wetlands Protection Act, MGL c. 131, § 40.
C.
The Conservation Commission may request comments and
recommendations from appropriate boards or commissions before final
action is taken for a determination or notice of intent hearing, which
the Conservation Commission shall take into account but which shall
not be binding on the Conservation Commission.
D.
The Commission shall conduct a public hearing on any
application or request for determination, with written notice given
at the expense of the applicant, five working days prior to the hearing,
in a newspaper of general circulation in the municipality.
E.
The Commission shall commence the public hearing within
21 days from receipt of a completed application or request for determination,
unless an extension is authorized, in writing, by the applicant.
F.
The Commission shall issue its permit or determination,
in writing, within 21 days of the close of the public hearing thereon,
unless an extension is authorized, in writing, by the applicant.
G.
The Commission shall have authority to continue the
hearing to a certain date announced at the hearing, for reasons stated
at the hearing, which may include receipt of additional information
offered by the applicant or others, information and plans required
of the applicant, deemed necessary by the Commission in its discretion,
or comments and recommendation of boards and officials. In the event
that the applicant objects to a continuance or postponement, the hearing
shall be closed, and the Commission shall take action on such information
as is available.
[Amended 9-1-2009]
Any person filing a permit application or a
request for determination with the Commission may be requested to
provide a copy thereof at the Commission's request to the City Council,
Planning Board, Board of Appeals, Board of Health and Building Inspector
(Board of Water Commissioners, etc.). The Commission shall not take
final action until such boards and officials have had 14 days from
receipt of notice to file written comments and recommendations with
the Commission, which the Commission shall take into account but which
shall not be binding on the Commission. The applicant shall have the
right to receive any such comments and recommendations and to respond
to them at a hearing of the Commission prior to final action.
A.
If the Commission, after a public hearing, determines
that the activities which are the subject of the application are likely
to have a significant or cumulative effect upon the wetland values
protected by this chapter, the Commission, within 21 days of the close
of the hearing, shall issue or deny a permit for the activities requested.
If it issues a permit, the Commission shall impose conditions which
the Commission deems necessary or desirable to protect those values,
and all activities shall be done in accordance with those conditions.
B.
The Commission is empowered to deny a permit for just
cause and, among other things, failure to meet any requirement of
this chapter; for failure to submit necessary information and plans
requested by the Commission; for failure to meet the design specifications
of the Commission; for failure to avoid or prevent unacceptable significant
or cumulative effects upon the wetland values protected by this chapter;
and where no conditions are adequate to protect those values. Due
consideration shall be given to any demonstrated hardship on the applicant
by reason of denial, as presented at the public hearing.
C.
A permit shall expire three years from the date of
issuance. Any permit may be renewed for an additional one-year period,
provided that a request for renewal is received, in writing, by the
Commission prior to expiration.
D.
For good cause, the Commission may revoke or modify a permit issued under this chapter after notice to the holder of the permit and notice to the public, abutters and town boards, pursuant to § 272-4, and a public hearing.
E.
The Commission, in an appropriate case, may combine
the permit with other action on an application issued under the Wetlands
Protection Act.
A.
After public notice and public hearing, the Commission
shall promulgate rules and regulations to accomplish the purposes
of this chapter. These regulations shall be consistent with the terms
of this chapter. The Commission may amend the rules and regulations
after public notice and public hearing.
B.
Failure by the Commission to promulgate rules and
regulations or a legal declaration of their invalidity by a court
of law shall not act to suspend or invalidate the effect of this chapter.
A.
ALTER
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
BANK
(1)
(2)
BOGS
EPHEMERAL STREAM
[1]
FRESHWATER WETLANDS
[2]
INTERMITTENT STREAM
[3]
KETTLE HOLE
[4]
LAKE
LAND IN AGRICULTURAL USE
LAND SUBJECT TO FLOODING (BORDERING AND ISOLATED)
(1)
(a)
(b)
(2)
LAND UNDER WATER
MARSH
NORMAL MAINTENANCE OR IMPROVEMENT OF LAND IN AGRICULTURAL USE
(1)
(a)
(b)
(c)
(d)
(2)
(3)
PERSON
POND
QUALIFYING WETLAND
RIVER
RlVERINE WETLAND
[5]
SEASONAL WETLANDS
STREAM
SWAMPS
UPSTREAM DRAINAGE WITH POTENTIAL OF ALTERING WETLANDS
[6]
WET MEADOW
The following definitions shall apply in the interpretation
and implementation of this chapter:
Includes, without limitation, the following actions when
undertaken in areas subject to this chapter:
Removal, grading, excavation or dredging of
soil, sand, gravel or aggregate materials of any kind.
Changing drainage characteristics, flushing
characteristics, salinity distribution, sedimentation patterns, flow
patterns and flood-retention characteristics.
Drainage or other disturbance of the water level
or water table.
Dumping, discharging or filling with any material
which may degrade water quality.
Driving of piles or erection of buildings or
structures of any kind.
Placing of obstructions, whether or not they
interfere with the flow of water.
Destruction of plant life, including cutting
of trees.
Changing of water temperature, biochemical oxygen
demand or other physical or chemical characteristics of surface and
ground water.
"Wildlife habitat," which shall mean those areas
subject to this chapter which, due to their plant community composition
and structure, hydrologic regime or other characteristics, provide
important food, shelter, migratory or overwintering areas or breeding
areas for wildlife.
Other changes or modifications which the Conservation
Commission in good faith determines to have a potential adverse effect
on wetland values.
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 its adjacent floodplain or, in the absence of
these, 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.
The upper boundary of a "bank" is the first
observable break in the slope or the mean annual flood level, whichever
is higher. The lower boundary of a "bank" is the mean annual flow
level.
Areas where standing or slowly running water is near or at
the surface during a normal growing season and where a vegetational
community has a significant portion of the ground or water surface
covered with sphagnum moss (Sphagnum species) and where the vegetational
community is made up of a significant portion of one or more, but
not limited to nor necessarily including all, of the following plants
or groups of plants: aster (Aster nemoralis), azaleas (Rhododendron
canadense and Rhododendron viscosum), black spruce (Picea mariana),
bog cotton (Eriophorum), cranberry (Vaccinium macrocarpon), high-bush
blueberry (Vaccinium corymbosum, larch (Latrix laricina), laurels
(Kalmia augustifolia and Kalmia polifolia), leatherleaf (Chamaedaphne
calyculata), orchids (Arethusa, Calopogon, Pogonia), pitcher plant
(Sarracenia purpurea), sedges (Cyperaceae), sundews (Droseraceae),
sweet gale (Myrica gale) and white cedar (Chamacyparis thyoides).
A stream or position of a stream which flows only in direct
response to precipitation. It receives little or no water from springs
and no long-continued supply from melting snow or other sources. Its
channel is at all times above the water table.
Wetland types which are associated with nontidal or saltwater
wetlands.
A bowl-shaped depression, usually from 30 to 50 feet deep
to 500 feet deep, that resulted from the resting place or burial place
of a huge mass of ice that became detached during glacial melting.
The final melting of the ice left a depression. A "kettle pond" is
a "kettle hole" which still retains water.
Any open body of water with a surface area of 10 acres or
more.
Any qualifying wetland within a farm which is qualified or eligible to be qualified under the Farmland Assessment Act, MGL c. 61A, §§ 1-5.
BORDERING LAND SUBJECT TO FLOODINGAn area with low, flat topography adjacent to and inundated by floodwaters rising from rivers, streams, ponds or lakes. It extends from the banks of these waterways and water bodies; where a bordering vegetated wetland occurs, it extends from said wetland.
The boundary of "bordering land subject to flooding"
is the estimated maximum lateral extent of floodwater which will theoretically
result from the statistical one-hundred-year frequency storm. Said
boundary shall be that determined by reference to the most recently
available flood profile data prepared for the community within which
the work is proposed under the National Flood Insurance Program (NFIP),
currently administered by the Federal Emergency Management Agency.
Said boundary so determined shall be presumed accurate. This presumption
may be overcome only by credible evidence from a registered engineer
or other professional competent in such matters and to the satisfaction
of the Conservation Commission.
Where NFIP profile data is unavailable, the
boundary of "bordering land subject to flooding" shall be the maximum
lateral extent of floodwater which has been observed or recorded.
ISOLATED LAND SUBJECT TO FLOODINGAn isolated depression or closed basin without an inlet or an outlet, It is an area which at least once a year confines standing water.
Areas where a vegetational community exists in standing or
running water during the growing season and where a significant part
of the vegetational community is composed, but not limited to nor
necessarily including all, of the following plants or groups of plants:
arums (Araceae), bladderworts (Utricularia), bur reeds (Sparganiaceae),
buttonbush (Cephalanthus occidentalis), cattails (Typha). duckweeds
(Lemnaceae), ellgrass (Vallisneria), frog bits Hydrophilic grasses
(Oiaceae), leatherleaf (Chamaedaphne calyculata), pickerelweeds (Pontederiaceae),
pipeworts (Eriocaulon), pondweeds (Potamogeton), rushes (Juncaceae),
sweet gale (Myrica gale), water milfoil (Haloragaceae), water lilies
(Nymphaeaceae), water starworts (Callitrichaceae) and water willow
(Decodon verticillatus).
Includes only:
Tilling practices customarily employed in the
raising of crops.
Pasturing of animals, including such fences
and protective structures as may be required.
Use of fertilizers, pesticides, herbicides and
similar materials subject to state and federal regulations covering
their use.
Constructing, grading or restoring of field
ditches, subsurface drains, grass waterways, culverts, access roads
and similar practices to improve drainage, prevent erosion, provide
more effective use of rainfall and improve equipment operation and
efficiency, in order to improve conditions for the growing of crops.
Improvements of land in agricultural use — Also
includes more extensive practices such as the building of ponds, dams,
structures for water control, water and sediment basins and related
activities, but only where a plan for such activity approved by the
Conservation District of the Soil Conservation Service is furnished
to the Conservation Commission prior to the commencement of work.
All such activity shall subsequently be carried
out in accord with said plan. In the event that the work is not carried
out in accordance with the required plan, the Conservation Commission
may place a stop order on said work and have recourse to such measures
as if the plan were an order of conditions.
Includes any individual, group of individuals, association,
partnership, corporation, company, business organization, trust, estate,
the commonwealth or political subdivision thereof to the extent subject
to City ordinances, administrative agencies, public or quasi-public
corporations or bodies, the City of Chicopee and any other legal entity,
its legal representatives, agents or assigns.
Any open body of water, either naturally occurring or man-made
by impoundment, which is never without standing water due to natural
causes, except during periods of extended drought. 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 shall not be
considered "ponds."
Only inland freshwater areas which are seasonally flooded
basins or flats or inland fresh meadows.
A natural flowing body of water that empties into any lake
or other river and which flows through the year.
Wetland and deep-water habitats that are contained within
a channel. These areas are particularly valuable in reducing the danger
of flooding.
Isolated depressions or closed basins which temporarily confine
water during periods of high water table and high input from spring
runoff, snow melt or heavy precipitation and support populations of
nontransient macroorganisms or serve as breeding habitat for a select
species of amphibians. In the absence of those habitat functions,
the areas should be considered land subject to flooding.
A body of running water, including brooks and creeks, which
moves in a definite channel in the ground due to a hydraulic gradient.
A portion of a "stream" may flow through a culvert or beneath a bridge.
Such a body of running water which does not flow throughout the year
is also a "stream."
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 vegetational community is made
up of but is not limited to nor necessarily includes, all of the following
plants or groups of plants: alders (Alnus), ashes (Fraxinus), azaleas
(Rhododendron canadense and Rhododendron viscosum), black spruce (Picea
mariana), buttonbush (Cophalanthus occidentalis), white hellebore
(Veratrum viride), hemlock (Tsuga canadensis), high-bush 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).
Overland or surficial flow (runoff), which may originate
from natural sources (springs, snow melt, precipitation, etc.) or
human development (roads, driveways, slope changes, lawns, drainage
swales, drainage outfalls or other human landscape alterations), which
carries a sediment load or pollution that may alter a resource area.
Such drainage may not necessarily flow in any discernible channel
but may flow as sheet flow (over smooth surfaces), thread flow (through
small stems and leaves) or riverlet flow (along small hills on the
surface).
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 vegetational 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), fales loosestrife (Lythrum), marsh fern (Dryopteris
thelypteris), rushes (Juncaceae), sedges (Cyperaceae), sensitive fern
(Onoclea sensibilis) and smartweed (Polyconum).
[1]
Editor's Note: The source for this definition
is from the Dictionary of Geological Terms by the American Geological
Institute, 1974 Edition.
[2]
Editor's Note: The source for this definition
is from Michael L'Heureux.
[3]
Editor's Note: The source for this definition
is from the Dictionary of Geological Terms by the American Geological
Institute, 1974 Edition.
[4]
Editor's Note: The source for this definition
is from the Dictionary of Geological Terms by the American Geological
Institute, 1974 Edition.
[5]
Editor's Note: The source for this definition
is from Wetlands by William J. Mitsch and James G. Gosselink 1986.
[6]
Editor's Note: The source for this definition
is from Michael L'Heureux.
For major projects requiring specialized expertise,
the Commission may require, as a permit condition, that the performance
and observance of other conditions be secured by one or both of the
following methods:
A.
By a bond or deposit of money or negotiable securities
in an amount determined by the Commission to be sufficient and payable
to the City of Chicopee.
B.
By a conservation restriction, easement or other covenant
running with the land, executed and properly recorded (or registered,
in the case of registered land).
A.
Normally, in order to promote the wetland values and interests listed in § 272-1, no removal, filling, dredging or altering shall be mitigated by or compensated for in any way by creation of a substitute or artificial wetland.
B.
Exceptions to this section will be at the sole discretion
of the Conservation Commission, whose discretion will not be exercised
in an arbitrary, capricious or discriminatory manner.
A.
The Commission, its agents, officers and employees
shall have the authority to enter upon privately owned land for the
purpose of performing their duties under this chapter for any verifiable
complaint and may make or cause to be made such examinations, surveys
or sampling as the Commission deems necessary.
B.
The Commission shall have authority to enforce this
chapter, its regulations and permits issued thereunder by violation
notices, administrative orders and civil and criminal court actions.
C.
Upon request of the Commission, the City Solicitor
may take legal action for enforcement under civil and criminal.
D.
Municipal boards and officers, including any police
officer or other officer having police powers, shall have authority
to assist the Commission in enforcement.
E.
Any person who violates any provision of this chapter, regulations thereunder or permits issued thereunder shall be punished by a fine of not more than $300. Each day or portion thereof during which a violation continues shall constitute a separate offense, and each provision of the chapter, regulations or permit violated shall constitute a separate offense. This fine may be in addition to any levied under the Wetlands Protection Act, MGL c. 131, § 40, to a maximum of $25,000.
F.
In addition to the procedures for enforcement set forth above, the provisions of the Chicopee Wetlands Ordinance, Chapter 272, may be enforced, by members of the Chicopee Conservation Commission or the Conservation Administrator, through the use of noncriminal complaint pursuant to the provisions of MGL c. 40, § 21D. Each day upon which a violation exists shall be deemed a separate offense. The penalty for violation of any provision of the chapter shall be $25 for the first offense, $50 for the second offense, $100 for the third offense, $200 for the fourth and each subsequent offense.
[Amended 12-20-1994 by Ord. No. 94-93]
The applicant for a permit shall have the burden
of proving by a preponderance of credible evidence that the work proposed
in the application will not have any significant or cumulative detrimental
effect upon the wetland values protected by this chapter. Failure
to provide adequate evidence to the Commission supporting this burden
shall be sufficient cause for the Commission to deny a permit or grant
a permit with conditions.
This chapter is adopted under the Home Rule Amendment of the Massachusetts Constitution and the Home Rule Statutes, independent of the Wetlands Protection Act, MGL c. 131, § 40, and the regulations thereunder.
