Sharon, MA - RULES AND REGULATIONS

RULES AND REGULATIONS OF THE SHARON CONSERVATION COMMISSION

SECTION 1. INTRODUCTION

These rules and regulations of the Sharon Conservation Commission (together with any amendments thereto, these “Rules and Regulations”) are promulgated under the authority of the Home Rule Amendment, Article LXXXIX (89), of the amendments to the Constitution of the Commonwealth of Massachusetts, 1966, and shall be effective upon the fulfillment of all legal requirements for their effectiveness.

These Rules and Regulations are adopted in accordance with the provisions of the Town’s Wetlands Protection By-Law (the “By-Law”), which is Article 23 of the Town’s By-Laws. The By-Law sets forth a public review process by which activities having an impact or cumulative effect upon the wetland, surface and groundwater resources of the Town of Sharon are regulated. In addition, the By-Law identifies additional public interests not recognized by (and expands other interests identified in) the Massachusetts Wetlands Protection Act. These additional public interests are: “erosion and sedimentation control,” “protection of surrounding land, home or buildings,” “protection of rivers, streams, ponds and other bodies of water,” “water quality enhancements,” “scenic vistas,” “recreation,” and “aesthetics.”

These Rules and Regulations are intended to complement and clarify provisions of the By-Law and to assist applicants, and/or their advisors and consultants, in their dealings with the Conservation Commission. More explicitly, the intent is to improve communications, maximize efficiency and consistency in project review, minimize delay in responses by the Commission, and minimize post-application redesign by the applicant.

The Commission recognizes that environmental review is necessarily a site-specific process. The Commission intends that applicants have maximum flexibility in design and freedom to employ innovative techniques to minimize adverse environmental impacts of various projects.

The laws referred to in these Rules and Regulations include:

(a) The Massachusetts Wetlands Protection Act, G.L. Ch. 131 §40, and the regulations promulgated thereunder (codified at 310 CMR 10.00), including the amendments added by the Rivers Protection Act (Acts of 1996, Ch. 258);

(b) The most recent flood profile data available from the National Flood Insurance Program currently administered by the Federal Emergency Management Agency (“FEMA”);

(c) The Massachusetts Environmental Policy Act (“MEPA”), G.L. Ch. 30 §§61-62H, and the regulations promulgated thereunder (codified at 301 CMR 11.00);

(d) The Massachusetts laws governing designated Areas of Critical Environmental Concern, G.L. Ch. 21A §2(7) and the regulations promulgated thereunder (codified at 301 CMR 12.00);

(e) Applicable portions of Sharon’s Zoning By-Law and the rules and regulations promulgated thereunder; and

(f) Applicable portions of the rules and regulations of the Sharon Board of Health.

Applicants are presumed to be familiar with the above-referenced laws. Copies of applicable Town By-Laws may be obtained from Sharon’s Town Clerk or the Commission. Copies of Massachusetts laws and regulations may be obtained from at the State Capitol in Boston. The Commission will provide guidance on the above laws upon request.

Pre-application conferences and site visits, especially for large, complex, or unusual projects, are encouraged by the Commission. Field review of wetland resource delineation and consideration of certain variance requests, prior to filing, is appropriate.

The Resource Areas protected by the By-Law are set forth in Section 3.0 of the By-Law and differ from those protected by the Massachusetts Wetlands Protection Act in that additional areas are protected by the By-Law. These include vernal pools (including those that have not been certified by any Massachusetts regulatory agency) and certain freshwater wetlands that may not meet the definition of bordering vegetated wetlands under the Massachusetts Wetlands Protection Act. In addition, the buffer zone surrounding a Resource Area is itself deemed to be a Resource Area protected by the By-Law.

AREAS OF CRITICAL ENVIRONMENTAL CONCERN (“ACEC”): those critical areas and resources designated by the Commonwealth of Massachusetts Secretary of Environmental Affairs for the purpose of long-term preservation, management and use or stewardship under authority granted by G.L. Ch. 21A §2(7) and §40(e) and the regulations promulgated thereunder (codified at 301 CMR 12.00).

AREA SUBJECT TO PROTECTION UNDER THE BY-LAW: those areas defined in the Massachusetts Wetlands Protection Act or Section 3.0 of the By-Law. It is used synonymously with “Resource Area.”

APPLICANT: any person making a Filing, or on whose behalf a Filing is filed.

AQUIFER RECHARGE AREAS: Areas composed of permeable stratified sand and gravel and certain wetlands that collect precipitation or surface water and then carry it to aquifers.

GROUNDWATER PROTECTION DISTRICT: Area designated to protect, preserve, and maintain the existing and potential groundwater supply and groundwater recharge areas; to preserve and protect present and potential sources of water supply for public health and safety; to conserve the natural resources of the town and to prevent blight and environmental pollution.

BANK: is defined in Section 2.5 of the By-Law.

BEACH: a naturally occurring beach with an unvegetated bank.

BEST AVAILABLE MEANS: the most up-to-date technology or the best designs, measures, or engineering practices that have been developed and that are commercially available. Best available shall not be defined by economics.

BEST PRACTICAL MEASURES: state of the art technologies, designs, measures, or engineering practices that are in general use.

BORDERING VEGETATED WETLANDS (“BVW”): as described in Section 3.02(2) hereof.

BOUNDARY: the boundary of an Area Subject to Protection under the By-Law. A description of the boundary of each area is found in the appropriate section of these Rules and Regulations.

BUFFER ZONE: Land within one hundred (100) feet horizontally landward from the perimeter or outer border of any Resource Area.

CERTIFICATE OF COMPLIANCE: a written determination in recordable form by the Commission that work, or a portion thereof, has been completed in accordance with the issued Order of Conditions.

CONDITIONS: those requirements set forth in an Order of Conditions issued by the Commission for the purpose of permitting, regulating, or prohibiting any activity having an impact or cumulative effect upon a Resource Area.

CONSERVATION COMMISSION OR COMMISSION: that body in Sharon, Massachusetts comprised of members lawfully appointed pursuant to G.L. Ch. 40 §8C.

CREEK: the same as stream.

DATE OF ISSUANCE: the date any document issued by the Commission (including, but not limited to, an Order of Conditions, a Determination of Applicability, or an Enforcement Order) is mailed, as evidenced by a postmark, or the date it is hand delivered and receipted to an applicant or the applicant’s agent.

DATE OF RECEIPT: the date of actual delivery to an office, home address or usual place of business by mail or hand delivery.

DEP: the Massachusetts Department of Environmental Protection.

DETERMINATION OF APPLICABILITY OR DETERMINATION: a written finding, following a public hearing by the Commission, as to whether a site or the work proposed thereon is subject to the jurisdiction of the By-Law. A finding will be one of the following:

(a) Positive Determination: a written finding that the area on which the proposed work is to be done or the activity thereon will cause a significant impact to one or more of the interests protected by the By-Law.

(b) Negative Determination: a written finding that the area on which proposed work is to be done, or the activity thereon will not cause a significant impact to any of the interests protected by the By-Law.

(c) Negative Determination with Conditions: a written finding that the work proposed on the area allowed under the Conditions prescribed by the Commission will not cause a significant impact to any of the interests protected by the By-Law.

FILING: any filing made under the Massachusetts Wetlands Protection Act or the By-Law to the Commission, including, but not limited to, a Request for a Determination of Applicability, Notice of Intent, Abbreviated Notice of Intent, or Abbreviated Notice of Resource Area Delineation.

FLOOD CONTROL: prevention or reduction of flooding and flood damage.

FRESHWATER WETLANDS/VEGETATED WETLANDS: any area of at least 2000 square feet where surface and/or groundwater, or ice at or near the surface of the ground, supports a plant community dominated (at least 50%) by wetland species and/or exhibits other evidence of hydrology. Freshwater wetlands are further described under §3.02 hereof (bogs, swamp, forested wetland) and are otherwise defined in G.L. Ch. 131 §40(7).

GROUNDWATER SUPPLY: water below the earth’s surface in the zone of saturation.

INTERESTS PROTECTED BY THE BY-LAW: those interests specified in Section 1 of the By-Law.

LAKE: any open body of fresh water with a surface area of 10 acres or more, including, but not limited to, great ponds.

LAND SUBJECT TO FLOODING: is described in §3.04(2) hereof.

LAND UNDER WATER BODIES AND WATERWAYS: the bottom of or land under the surface of any creek, river, stream, pond, or lake. Land under water bodies is further described in §3.03(2) hereof.

MAJORITY: more than half of the members of the Conservation Commission then in office.

MARSH: is defined in §3.02 hereof.

MASSACHUSETTS WETLANDS PROTECTION ACT: G.L. Ch. 131 § 40 and the regulations promulgated thereunder (codified at 310 CMR 10.00).

MEAN ANNUAL BOUNDARY: with respect to vernal pools, the highest observed water surface elevation (for example, evidence of water stained tree trunks).

MEPA: Massachusetts Environmental Policy Act, G.L. Ch. 30 §§61-62H, and the regulations promulgated thereunder (codified at 310 CMR 11.00).

NOTICE OF INTENT: written notice filed under the Massachusetts Wetlands Protection Act and/or the By-Law by an applicant intending to remove, fill, dredge, or otherwise alter a Resource Area.

ORDER: an Order of Conditions issued pursuant to the Massachusetts Wetlands Protection Act or the By-Law.

ORDER OF CONDITIONS: the document issued in recordable form by the Commission containing conditions which regulate or prohibit an activity under the Massachusetts Wetlands Protection Act or the By-Law.

OWNER OF LAND ABUTTING THE ACTIVITY: the owner of land sharing a common boundary or corner with the site of the proposed activity in any direction, including land located directly across a street, way, creek, river, stream, brook, canal, lake, or pond.

PLANS: such data, maps, engineering drawings, calculations, specifications, schedules and other materials, if any, deemed necessary by the Commission to describe the site, all areas subject to jurisdiction under the Massachusetts Wetlands Protection Act or the By-Law, and/or to determine the impact of the proposed work upon the interests identified in the Massachusetts Wetlands Protection Act or the interests protected by the By-Law.

POND: means any open body of fresh water with a surface area observed or recorded within the last 10 years of at least 5,000 square feet. Ponds may be either naturally occurring or man-made by impoundment, excavation, or otherwise. Ponds shall contain standing water except for 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.

Notwithstanding the above, the following man-made bodies of open water shall not be considered ponds:

basins or lagoons which are part of wastewater treatment plants;

(b) swimming pools or other impervious man-made basins; or

PREVENTION OF POLLUTION: the prevention or reduction of contamination of soils and/or surface water or groundwater.

PRIVATE WATER SUPPLY: any source or volume of surface or groundwater demonstrated to be in any private use or shown to have potential for private use.

PROTECTION OF FISHERIES: to prevent or reduce contamination or damage to fish and to protect their habitat and nutrient sources.

PROTECTION OF WILDLIFE: (1) the protection of any plant or animal species listed as endangered, threatened or of 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 Commission; and (2) the protection of the ability of any Resource Area to provide food, breeding habitat, or escape cover and species falling within the definition of wildlife as set forth in these Rules and Regulations.

PUBLIC WATER SUPPLY: any source or volume of surface or groundwater demonstrated to be in public use or approved for water supply pursuant to G.L. Ch. 111 §160 by the Division of Water Supply of the DEP or shown to have a potential for public use.

QUORUM: a majority of the members of the Commission then in office.

REQUEST FOR DETERMINATION OF APPLICABILITY: a written request on the proper form made by any person, to the Commission for a determination as to whether a site or work thereon is subject to the By-Law.

RESOURCE AREA: those areas defined in the Massachusetts Wetlands Protection Act or Section 3.0 of the By-Law. It is used synonymously with “Area Subject to Protection Under the By-Law”.

RIVER: a natural flowing body of water that empties into any lake, pond, ocean or other river and which flows throughout the year. River is further defined in the Rivers Protection Act (Acts of 1996, Ch. 258).

RIVERFRONT AREA: is defined in the Rivers Protection Act (Acts of 1996, Ch. 258).

STORM DAMAGE PREVENTION: 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.

STREAM: a body of running water, including brooks and creeks, which moves in a definite channel in the ground due to hydraulic gradient. A stream may flow through a culvert or beneath a bridge. Such a body of running water which does not flow throughout the year (i.e., which is intermittent) is a stream.

VEGETATED WETLANDS: also known as Freshwater Wetlands.

VERNAL POOL: is defined in §2.7 of the By-Law. Note that, as set forth in such definition, the 100 feet from the mean annual boundary of the depression is included in the definition of vernal pool.

WET MEADOW: is defined in §3.02 hereof.

SECTION 2. GENERAL PROVISIONS

1. The Conservation Commission is comprised of seven (7) members appointed by the Selectmen.

2. Any correspondence and/or submittal (including any Filing) should be addressed to:

Sharon Conservation Commission

90 South Main Street

All correspondence submitted to the Commission that is sent through the U.S. post office should be by certified mail. Alternatively, such correspondence may be hand delivered to the Town Clerk’s Office in Town Hall, where it should be date stamped. Three copies of each submittal shall be made to the Conservation Commission.

Filing fees required for applications under the Massachusetts Wetlands Protection Act are determined by the State and filing fees for the Town of Sharon are set forth in the By-Law, as follows:

Fee to the State - determined by the fee schedule contained in the Massachusetts Wetlands Protection Act.

(b) Fee to the Conservation Commission - determined by the fee schedule contained in the Massachusetts Wetlands Protection Act.

(d) Advertising fee to the Town - determined by the Town of Sharon By-Law.

Separate checks are to be submitted at the time of filing. The Commission, or its staff, will assist an applicant in fee determination upon request.

4. Unified forms for filing under both the Massachusetts Wetlands Protection Act and under the By-Law are available from the Commission. Alternatively, the State forms may be used provided their headings are modified to include “and the Sharon Wetlands Protection By-Law” beneath the words “Massachusetts Wetlands Protection Act.”

5. The public hearing held under the provisions of the Massachusetts Wetlands Protection Act shall serve simultaneously as the hearing under the By-Law. Public notices of hearings to be conducted for an applicant are to be inserted in a local newspaper by the Commission. Any hearing may be continued for a reasonable time in order to allow the applicant, or other parties, sufficient time to produce information that the Commission deems necessary to make a decision on the impact of the project. Failure or refusal by the applicant to produce the additional information as requested may result in a denial by the Commission.

6. Any Filing must deal with the entire project, including intended full build-out. A project that is submitted piece-meal will be considered incomplete, and the Commission may deny the project. All proximate, adjoining, opposing or generally contiguous lots must be included under a single Filing, if they are under the control of the same owner. For a subdivision, the entire filed subdivision, and adjoining subdivisions under the control of the same owner but not yet built, shall be considered the same project.

7. The applicant should provide a statement with respect to the effect of the project on the interests protected under the Massachusetts Wetlands Protection Act and the By-Law.

8. An applicant shall provide a written statement describing construction methodology, including the type of machinery and construction equipment to be used, access way to the project site, proposed construction time tables, and other information the Commission deems pertinent.

9. An applicant proposing alteration of any Resource Area may be required to replicate not only the function of the area to be altered, but its physical properties, characteristics, and vegetative cover. Inability to do so, where required, may be cause for denial. The Commission, in issuing an Order of Conditions that requires wetlands replication, will normally require security, as permitted by Section 4.5 of the By-Law, to assure the successful reestablishment of the lost wetlands. At least 75% of the replicated plant species shall survive through two (2) growing seasons and shall be viable prior to release of said security. Replication shall be carried out in accordance with an approved replication plan.

10. No filling of freshwater wetlands will be allowed for the purposes of securing any wetland regulatory setback requirements or to meet any high and dry zoning requirement for a buildable lot.

11. Plans, drawings, sketches, and calculations shall be dated and signed by the person(s) responsible for their preparation. Calculations shall be independently checked by the applicant or the applicant’s representative, with checker identified. Any calculations done by computer program shall be done by an industry-standard program, which shall be identified, or the program and its logic shall be submitted with the calculations. All such programs shall fully identify input data, and intermediate and final results. Plans and drawings involving the practice of surveying or engineering shall be stamped, signed and dated by the appropriate design or surveying professional, who shall be registered in the Commonwealth of Massachusetts.

12. Projects requiring filings under MEPA because of State funding, or the need for State permits, must have the actions on the MEPA filings complete prior to the close of any hearing on a Filing before the Commission, or the Commission may deny the project on the basis of inadequate project information. A project requiring an Environmental Notification Form (“ENF”) under MEPA because it exceeds the MEPA review thresholds relative to areas protected by the Massachusetts Wetlands Protection Act shall have filed the ENF and completed any actions, including an Environmental Impact Report (“EIR”), as a result of the filing, prior to the close of any hearing on a Filing before the Commission, or the Commission may deny the project on the basis of inadequate project information and the desire to ensure that a State permit is obtained.

13. The Commission may order independent investigation, engineering, hydro geological, legal or other review of the filing and/or the site at the applicant's expense. No investigation, engineering, hydro geological or other study or review shall commence until such time as the applicant has agreed in writing to pay the specified study and/or review costs. Selection of a consultant to perform the required work shall be subject to the approval of the Commission.

14. Determinations of Applicability are valid for a three year period from the date of issuance and can not be extended. If a negative Determination of Applicability has been rendered by the Commission for a particular project, construction must be completed within the three year period or the applicant must make another Filing with the Commission.

15. Formal actions by the Commission are under the authority of both the Massachusetts Wetlands Protection Act and the By-Law. Such actions are usually the same under either authority, but need not be because of different interests and authority granted by each law. Appeals of any Commission actions by any applicant or interested parties must be sought under both authorities: to the DEP under the Massachusetts Wetlands Protection Act and to the Superior Court under the By-Law.

16. An Order of Conditions or a negative Determination of Applicability must be filed at the Registry of Deeds in order to be valid under the By-Law. An applicant is expected to file either the Determination of Applicability or Order of Conditions within the statutory appeal period (10 calendar days) and must supply the Commission with the particulars of the recording within 7 calendar days after the recording.

17. The Commission may require, in an Order of Conditions, that an applicant place a conservation restriction or easement upon such applicant’s unaltered Resource Areas, in order to prevent future alteration to these Resource Areas.

18. An Order of Conditions, once it has expired, is not valid. A new Filing, with its own Order of Conditions, is required for construction to continue in this case.

The Commission may grant an extension of time to a valid Order of Conditions upon written request justifying the need for an extension and indicating the reasons construction was not completed within the permitted time. A request for an extension, received after the expiration date of an Order, will be denied by the Commission, unless there are extenuating circumstances satisfactory to the Commission. A request for an extension must be received by the Commission in sufficient time for the Commission to act, normally at least a month prior to the expiration date.

19. An applicant who makes a Filing thereby grants to the Commission, and its agents, the right of entry to the property of concern to determine applicable facts and evidence sufficient for the Commission to make a Determination or issue an Order of Conditions and to check for any non-compliance with State law or the By-Law.

An applicant, by accepting a negative Determination of Applicability or an Order of Conditions and initiating construction, grants to the Commission, and its agents, an unrestricted right of entry to the property of concern for the purpose of viewing the construction with regard to such negative Determination or Order of Conditions and to check for any non-compliance with State law or the By-Law or the Commission’s Order of Conditions including gathering facts and evidence in support of any non-compliance.

20. Any Order of Conditions issued under the By-Law may be revoked by the Commission for good cause after notice to the holder of the Order, public notice, and public hearing.

21. The Commission may in its discretion, issue an Order of Conditions under the By-Law while it has denied an Order of Conditions under the Massachusetts Wetlands Protection Act. This circumstance would normally occur when the Commission has to procedurally deny an applicant an Order under the Massachusetts Wetlands Protection Act because requested alterations exceed local authority under the Massachusetts Wetlands Protection Act, yet the Commission believes the project ultimately is approvable at the State level and finds it approvable under the By-Law.

22. The Commission may, in its discretion, issue an Order of Conditions under the Massachusetts Wetlands Protection Act while it has denied an Order under the By-Law. This circumstance would normally occur when the Commission has to deny an Order under the local By-Law because an interest protected under the By-Law is not adequately protected.

23. Presumption concerning Title 5 of the Massachusetts Environmental Code and more stringent local Board of Health regulations.

(a) A subsurface sewage disposal system that is constructed in compliance with the requirements of Title 5 (310 CMR 15.00, et seq.) or more stringent Sharon Board of Health requirements, shall be presumed to protect any and all interests identified in the By-Law.

(b) Land within 100 feet of a Resource Area is, however, likely to be significant to the protection of the Resource Area. Prohibiting work in this buffer prevents the pollution, degradation and/or contamination of Sharon’s surface and groundwater resources, and public and private water supply.

(c) Therefore, notwithstanding the presumption set forth in (a) above, the leaching facility of any new sewerage disposal systems shall not be constructed within 100 feet of a Resource Area. This setback distance shall not be required for the renovation or replacement (but is required for the substantial enlargement) of septic systems constructed prior to the effective date of the By-Law and/or these Rules and Regulations if no alternative location is available on the lot. Such replacement or renovation is subject to the approval of the Board of Health with prior notice to the Commission.

(d) All distances shall be measured from the natural edge of the Resource Area, and no setbacks may be obtained by filling, altering or relocating a Resource Area.

24. Presumption of Significance of the 100 foot Buffer Zone.

(a) Land within 100 feet of a Resource Area is presumed to be significant to the protection of the Resource Area and therefore to the protection of the interests protected by the By-Law. Section 5.06 hereof sets forth the regulations applicable to the 100 foot buffer zone.

(b) All distances shall be measured from the natural edge of the Resource Area, and no setbacks may be obtained by filling, altering or relocating a Resource Area.

25. Areas of Critical Environmental Concern:

(a) Portions of the Canoe River Aquifer, Watson Pond and Lake Sabbatia ACEC; and the Fowl Meadow Ponkapoag Bog ACEC lie within the Town of Sharon. Applicants are advised of the following heightened review thresholds associated with projects located within an ACEC: 310 CMR 10.55(4)(e): Any proposed work shall not destroy or otherwise impair any portion of a Bordering Vegetated Wetland that is within an ACEC designated by the Secretary of Environmental Affairs under G.L. Ch. 21A §2 (7) and 301 CMR 12.00.

(b) Applicants should also note the following guidelines that apply to 310 CMR 10.55(4)(e):

1. it supersedes the provisions of 310 CMR 10.55(4)(b) and (4)(c) (i.e., eliminates the ability to fill up to 5,000 or 500 square feet of Bordering Vegetated Wetlands, with conditions, within an ACEC);

2. it shall not apply if presumption set forth in 310 CMR 10:53(3) is overcome;

3. it applies only to Bordering Vegetated Wetlands; and

4. it does not prohibit filling Bordering Vegetated Wetlands in an ACEC if such work can be authorized under any other section of the regulations promulgated under the Massachusetts Wetlands Protection Act. For example, it does not prevent an applicant from receiving an Order of Conditions under the limited project for roadway crossings (310 CMR 10:53(3)(e)). It does not prohibit work proposed under 310 CMR 10:53(3)(b) (i.e., water dependent limited projects). It “shall not apply to maintenance of stormwater detention, retention or sedimentation ponds or to maintenance of stormwater dissipating structures, that have been constructed in accordance with a valid Order of Conditions.”

(d) It should be noted that variance requests from these Rules and Regulations, concerning proposals within the aforementioned ACEC’s will be more difficult to obtain.

26. The Town of Sharon operates six groundwater wells in order to supply potable drinking water to the majority of its residents. The public system of wells, distribution lines and storage tanks was not designed nor intended to provide the added capability of unrestricted irrigation of lawns. Such water withdrawal, particularly during the growing season, depletes groundwater levels within the associated recharge zones and can directly impact the hydrology of adjacent wetlands and bodies of water. The Commission finds that tight water conservation measures are needed to prevent such impacts to Resource Area under its jurisdiction. Therefore, the Commission reserves the right to limit the lawn area associated with development proposals and to impose irrigation restrictions that it deems adequate.

27. Delineation of a Resource Area (other than pursuant to an Abbreviated Notice of Resource Area Delineation) approved by the Commission without a project proposal is for planning purposes only and does not constitute final Resource Area boundary delineation. Final approval of a Request for Resource Area Delineation during periods of the year other than the growing season may be delayed or denied by the Commission.

28. The Commission may amend these Rules and Regulations after public notice and public hearing.

SECTION 3. REGULATIONS FOR INLAND WETLANDS

3.01 Inland Banks (Naturally Occurring Banks and Beaches)

Banks are likely to be significant to wildlife, public or private water supply, to ground water supply, to flood control, to storm damage prevention, to the prevention of pollution and to the protection of fisheries and wildlife. 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.

Banks are areas where ground water discharges to the surface and where, under some circumstances, surface water recharges the ground water.

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.

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 and wildlife. Banks which drop off quickly or overhang the water’s edge often contain numerous undercuts which are favorite hiding spots for important game species.

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 temperature 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.

Land 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 Resource Areas serve to protect.

(2) Definition, Critical Characteristics and Boundary

(a) 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 flood plain, 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.

(b) The physical characteristics of a bank, as well as its location, as described in the foregoing subsection (2) (a) are critical to the protection of the interests specified in Section 3.01 (1) hereof.

(c) The upper boundary of a bank is the first observable break in the slope or the mean annual flood level, whichever is higher, and it may be outside the line of the bordering vegetated wetlands. The lower boundary of a bank is the mean annual low flow level.

Permitted Activities; Variances

No 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, on land within 50 feet of any bank, shall be permitted by the Conservation Commission, except for activity which is allowed under a variance from these Rules and Regulations granted pursuant to Section 7 hereof.

Any activity which is allowed under a variance granted pursuant to Section 7 of these Rules and Regulations on a bank or on land within 100 feet of a bank shall not impair the following:

(a) the physical stability of the bank;

(b) the water carrying capacity of the existing channel within the bank;

(d) the capacity of the bank to provide breeding habitat, escape cover and food for fisheries/wildlife.

3.02 Freshwater Wetlands/Vegetated Wetlands/, Wet Meadows, Marshes, Swamps and Bogs (Bordering and Isolated Freshwater Wetlands)

Freshwater/Vegetated wetlands are likely to be significant to wildlife, public or private water supply, to ground water supply, to flood control, to storm damage prevention, to prevention of pollution, to the protection of fisheries and to the protection of shellfish and wildlife.

The plant communities, soils and associated low, 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 run_off and flood waters.

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 plant 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.

Freshwater/vegetated wetlands are areas where ground water discharges to the surface and where, under some circumstances, surface water discharges to the ground water.

The profusion of vegetation and the low, flat topography of vegetated wetlands slow down and reduce the passage of flood waters during periods of peak flow by providing temporary flood water 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.

Wetland vegetation provides shade that moderates water temperatures important to fishlife. Wetlands flooded by adjacent water bodies and waterways provides flood, 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.

Wetland vegetation supports a wide variety of insects, reptiles, amphibians, mammals and birds which are a source of food for important game 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 and other wildlife species. Vegetated wetlands, together with land 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, fisheries, and shellfish downstream of the vegetated wetland.

Land 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 Resources Areas serve to protect.

(2) Definition, Critical Characteristics and Boundary

(a) Freshwater wetlands are vegetated wetlands. The types of freshwater wetlands are wet meadows, marshes, swamps and 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 Sections 3.02(2)(c)(1) through 3.02(2)(c)(4), below. Said Resource Areas shall be protected whether or not they border surface waters.

(b) The physical characteristics of vegetated wetlands, as described in the foregoing subsection (2)(a), are critical to the protection of the interests specified in Section 3.02(1) above.

(c) The boundary of vegetated wetlands is the line within which 50 percent or more of the vegetational community consists of the wetland plant species identified in Section 3.02(2)(c)(1) through 3.02(2)(c)(4), below:

1. 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 vegetational community has a significant portion of the ground or water surface covered with sphagnum moss (Sphagnum spp.) and where the vegetational community is made up of a significant portion of one or more of, but not limited to nor necessarily including all, of the following plants or groups of plants: aster (Aster nemoralis), azaleas (Rhododendron canadense, and R. viscocum), black spruce (Picea mariana), bog cotton (Eriophorum), cranberry (Vaccinium macrocarpon), high_bush blueberry (Vaccinium corymbosum), larch (Larix laricina), laurels (Kalmis augustifoilia and K. polifolia), leatherleaf (Chamaedaphne calyculata), orchids (Arethusa, Calopogon, Pogonia), pitcher plants (Sarracenia purpurea), sedges (Cyperaceae), sundews (Droseac ae), sweet gale (Myrica gale), white cedar (Chamaecyparis thyoides).

2. The term “swamps,” as used in this section, shall mean areas where ground water 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 not limited to nor necessarily include 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), willow (Salicaceae).

3. The term “wet meadow,” as used in this section where ground water 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), false loosestrife (Ludwigia), hydrophilic grasses (Poaceae), loosestrife (Lythrum), marsh fern (Dryopteris thelypteris), rushes (Juncaceae), sedges (Cyperaceae), sensitive fern (Onoclea sensibilis), smartweed (Polygonum).

4. The term “marshes,” as used in this section, shall mean 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 of, but not limited to nor necessarily including all, of the following plants or groups of plants: arums (Araceae), bladder worts (Utricularia), bur reeds (Sparganiaceae), button rush (Cephalanthus occidentalis), cattails (Typha), duck weeds (Lemnaceae), eelgrass (Vallisneria), frog bits (Hydrocharitaceae), horsetails (Equisetaceae), hydrophilic grasses (Poaceae), leatherleaf (Chamaedaphne calyculata), pickerel weeds (Pontederiaceae), pipeworts (Eriocaulon), pond weeds (Potamogeton), rushes (Juncaeae), sedges (Cyperaceae), smartweeds (Polygonum), sweet gale (Myrica gale), water milfoil (Haloragaceae), water lilies (Nymphaeaceae), water starworts (Callitrichaceae), water willow (Decodon verticillatus).

(3) Permitted Activities; Variance

No 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, or of land within 50 feet of a vegetated wetland, shall be permitted by the Conservation Commission, except for activity which is allowed under a variance pursuant to Section 7 hereof.

Any activity which is allowed under a variance granted pursuant to Section 7 of these Rules and Regulations upon or within 100 feet of a vegetated wetland shall not impair in any way the vegetated wetland's ability to perform any of the functions set forth in Section 3.02(1) hereof.

3.03 Land Under Water Bodies (Under any Stream, Pond or Lake, Natural or Man Made)

Land under water bodies and waterways is likely to be significant to wildlife, public and private water supply, to ground water supply, to flood control, to storm damage prevention, to prevention of pollution and to the protection of fisheries. Where land under water bodies and waterways is composed of pervious material, such land represents a point of exchange between surface and ground water.

The physical nature of land under water bodies and waterways is highly variable, ranging from deep organic and fine sedimentary deposits to rocks and bedrock. The organic soils and sediments play and 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).

Land under water bodies and waterways, in conjunction with banks, serves to confine floodwater within a 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, it 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.

Land under rivers, streams and creeks that is composed of gravel allows the circulation of cold, well oxygenated water necessary for the survival of important game fish species. River, stream and creek bottoms with a diverse structure composed of gravel, large and small boulders and rock outcrops provides escape cover and resting areas for game fish species. Such bottom type also provides areas for the production of aquatic insects essential to fisheries.

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), small mouth 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.

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 Resource Areas serve to protect.

(2) Definition, Critical Characteristics and Boundaries

(a) Land under water bodies is the land beneath any creek, river, stream, pond or lake. Said land may be composed of organic muck or peat, fine sediments, rocks of bedrock.

(b) The physical characteristics and location of land under water bodies and waterways specified in the foregoing subsection (2)(a) are critical to the protection of the interests specified in Section 3.03(1) above.

(3) Permitted Activities; Variance

No activity, other than the maintenance of an already existing structure, which will result in the building within or upon, removing, filling, dredging or altering of land under a water body shall be permitted by the Commission, except for activity which is allowed under a variance pursuant to Section 7 hereof.

Any activity which is allowed under a variance granted pursuant to Section 7 of these Rules and Regulations on land under a water body shall not impair the following:

(a) The water carrying capacity within the defined channel, which is provided by said land in conjunction with the banks;

(b) Ground and surface water quality; or

3.04 Land Subject to Flood (Both Bordering and Isolated Areas)

(a) Bordering Land Subject to Flooding:

Bordering land subject to flooding is an area which floods from a rise in a bordering waterway or water body. Such areas are likely to be significant to flood control and storm damage prevention.

Bordering land subject to flooding provides a temporary storage area for flood water which has overtopped the bank of the main channel of a creek, river or stream or the basis of a pond or lake. During periods of peak run_off, flood waters 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.

(b) Isolated Land Subject to Flooding:

Isolated land subject to flooding is an isolated depression or a closed basin which serves as a ponding area for run_off or high ground water which has risen above the ground surface. 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 ground water supply. Where such areas are underlain by pervious material covered by a mat of 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 run_off and high ground water 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.

Isolated land subject to flooding, where it is underlain by pervious material, provides a point of exchange between ground and surface waters. Contaminants introduced into said area, such as septic system discharges and road salts, find easy access into the ground water and neighboring wells. 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 ground water and neighboring wells.

(2) Definitions, Critical Characteristics and Boundaries

(a) Bordering Land Subject to Flooding:

1. Bordering land subject to flooding is an area with low, flat topography adjacent to and inundated by flood waters rising from creeks, 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.

2. The topography and location of bordering land subject to flooding specified in the foregoing subsection (2)(a)(1) are critical to the protection of the interests specified in Section 3.04(1)(a) above.

3. The boundary of bordering land subject to flooding is 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 the community 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. Where NFIP Profile data is unavailable, the boundary of bordering land subject to flooding shall be the maximum lateral extent of flood water which has been observed or recorded.

(b) Isolated Land Subject to Flooding:

1. 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. Isolated land subject to flooding may be underlain by pervious material, which in turn may be covered by a mat of peat or muck.

2. The characteristics specified in the foregoing subsection (2)(b)(1) are critical to the protection of the interests specified in Section 3.04 (1)(b) above.