A.
Introduction. These regulations are promulgated by the Town of Orleans Conservation Commission pursuant to the authority granted to it under § 160-11 of the Orleans Code, known as the Orleans Wetlands Protection Bylaw (hereinafter referred to as the Bylaw). These regulations (hereinafter referred to as OWR) shall complement the Orleans Wetlands Protection Bylaw, and shall have the force of law upon their effective date.
B.
Purpose.
(1)
The Bylaw sets forth a public review and decisionmaking process by
which activities affecting areas subject to protection under the Bylaw
are to be regulated by controlling activities deemed by the Commission
likely to have a significant or cumulative effect upon wetland values,
including, but not limited to, the following interests:
(a)
Public and private water supply and quality.
(b)
Groundwater supply and quality.
(c)
Storm damage prevention.
(d)
Flood control.
(e)
Fisheries.
(f)
Prevention of pollution.
(g)
Shellfish habitat.
(h)
Wildlife habitat.
(i)
Aesthetics.
(j)
Erosion and sedimentation control.
(k)
Recreation.
(l)
Agriculture.
(m)
Aquaculture.
(2)
The purpose of these regulations is to define and clarify that process
by establishing standard definitions and uniform procedures by which
the Orleans Conservation Commission may carry out its responsibilities
under the Bylaw.
Except as permitted by the Conservation Commission or as provided in this chapter, no person shall remove, fill, dredge, alter or build upon or within one hundred (100) feet of any bank, beach, dune or flat; upon or within one hundred (100) feet of any freshwater wetland, coastal wetland, marsh, wet meadow, bog, or swamp; upon or within one hundred (100) feet of any lake, pond, creek, river, stream, estuary or the ocean; upon any land under said waters; or upon or within one hundred (100) feet of any land subject to flooding or inundation by groundwater, surface water or tidal action; or upon land subject to coastal storm flowage; or upon an Area of Critical Environmental Concern (ACEC) as defined in § 160-4 herein. Any activity proposed or undertaken outside any area specified above shall not be subject to regulation under this chapter unless, in the judgment of the Conservation Commission, said activity will result or has resulted in the removing, filling, altering or building upon any area specified.
A.
Areas subject to protection under the bylaw: Except as permitted
by the Conservation Commission or as provided in this chapter, no
person shall remove, fill, dredge, alter, or build upon any of the
following resource areas or associated buffer zones:
[Amended 4-26-2017]
(1)
Bank, beach, dune, flat, freshwater wetland, marsh, bog, coastal
wetland, swamp, wet meadow.
(2)
Lake, pond, creek, river, stream, estuary, the ocean.
(3)
Upon any land subject to flooding or inundation by tidal action,
groundwater or surface water.
(5)
Upon land subject to coastal storm flowage.
(6)
Upon an Area of Critical Environmental Concern (ACEC).
B.
Activities subject to regulation under the Bylaw.
(1)
Activities within the resource areas. Any activity proposed or undertaken within an area specified in OWR § 196A-2A which, in the judgment of the Commission, will constitute removing, filling, dredging or otherwise altering or building upon any resource area subject to protection under the Bylaw as set forth in § 196A-2A is subject to regulation under the Bylaw and requires notification to the Commission of the intent of such activity, the appropriate filing of documentation and permission from the Conservation Commission to proceed.
(2)
Activities within the buffer zone. Any activity proposed or undertaken within one hundred (100) feet of an area specified in OWR § 196A-2A(1), (2) or (3) (hereinafter called the buffer zone) which, in the judgment of the Commission, will alter an area subject to protection under the Bylaw is subject to regulation under the Bylaw and requires the appropriate filing of documentation and permission from the Conservation Commission to proceed.
(3)
Activities outside resource area or buffer zones. Any activity proposed or undertaken outside the areas specified in § 196A-2A above shall not be subject to regulation under the Bylaw and these regulations unless, in the judgment of the Conservation Commission, said activity will result or has resulted in the removing, filling, altering or building upon an area or adversely affecting either the resource area or buffer zone specified in § 196A-2A above.
A.
Burden of proof. The applicant shall have the burden of proving by
a preponderance of credible evidence:
(1)
That the work proposed by the applicant is not significant to the protection of the interests identified in § 196A-1A above; or
(2)
That the proposed work will contribute to the protection of the interests identified in § 196A-1A above by complying with the performance standards established for that particular resource area.
(3)
That the activity proposed will not have a significant adverse impact
either immediate or cumulative upon the wetland values protected by
the Bylaw.
B.
Burden of going forward. The applicant shall have the burden of going forward with credible evidence from a competent source in support of all matters asserted by the applicant in accordance with his/her burden of proof pursuant to § 196A-3A above.
C.
Title 5; State Sanitary Code.
(1)
In all cases of Title 5 issues, all state and Town regulations will
be followed except that both bordering and nonbordering wetlands are
protected.
(2)
If a septic system is proposed on a lot that cannot meet the local
Board of Health regulations without a variance, the applicant is not
entitled to the presumption that all wetland interests are protected
under 310 CMR 10.3 (3), Presumption concerning 310 CMR 15.00 Subsurface
Disposal of Sanitary Sewage (Title 5). Even with the issuance of a
variance, the applicant is not entitled to the presumption. The Commission
notes that the presumption, were the applicant entitled, only applies
to the impacts of the discharge from a sewage disposal system and
not to the impacts from construction of that system, such as erosion
and siltation from the excavation, placement of fill or removal of
vegetation or other impacts from the construction of that system.
Applicants must demonstrate that all wetland interests are protected
and have an approved current order of conditions before any work can
proceed on these projects.
D.
Water Resource Protection Districts.
(1)
Section 164-17 of the Orleans Zoning Bylaw provides that in certain water resource related districts, namely Zones One and Two, thirty percent (30%) of a lot where development is proposed must remain in its natural state and up to sixty percent (60%) must remain pervious. The main purpose of this section is to maintain water recharge capability. The section provides that the Building Commissioner must approve a plan showing delineation of such areas before any construction can proceed.
(2)
The Conservation Commission will require proof of compliance with
the above requirements before issuing an order of conditions for any
project within its jurisdiction that is also within the regulated
districts.
E.
Continuing liability for compliance with MGL c. 131, § 40
and the Bylaws. MGL c. 131, § 40 provides as follows: "Any
person who purchases, inherits or otherwise acquires real estate upon
which work has been done in violation of the provisions of this section
or in violation of any order issued under this section shall forthwith
comply with any such order or restore such real estate to its condition
prior to such violation; provided, however, that no action, civil
or criminal, shall be brought against such person unless such action
is commenced within three years following the recording of the deed
or the date of the death by which such real estate was acquired by
such person. . ." No further work will be approved on a property with
an outstanding violation, such as unapproved structures or clearing,
until the violation has been remediated.
F.
Incorporation.
(1)
General provisions: The procedures, requirements and definitions
set forth in the Act (MGL c. 131, § 40) and 310 CMR 10.00
et seq. (state regulations) are hereby incorporated and made a part
of these regulations subject to the following:
[Amended 4-26-2017]
(a)
Where they differ from or depart from these regulations or the
Orleans Bylaw, the Orleans Bylaw or regulations shall apply.
(b)
Where the language of the Orleans Bylaw or these regulations
is more definitive or protective, the language of the Bylaw or these
regulations shall prevail.
(c)
Where the Act or state regulations are determined to apply,
all references contained therein to the Act and said regulations shall
be deemed to include a reference to the Orleans Bylaw and regulations.
(d)
Unless otherwise defined in the Orleans Bylaw or these regulations,
those definitions found in the Act or regulations promulgated thereunder,
in effect at the time of the adoption of these regulations, shall
be incorporated.
(2)
Wetlands, bordering and nonbordering.
(a)
Jurisdiction.
[1]
MGL c. 131, § 40 states as follows: "No person shall
remove, fill, dredge or alter any bank, freshwater wetland, coastal
wetland, beach, dune, flat, marsh, meadow, or swamp bordering on the
ocean or on any estuary, creek, river, stream, pond or lake or any
land under said waters." This requirement that any bank, freshwater
wetland, etc., border on the ocean is reiterated in 310 CMR 10.02,
Statement of Jurisdiction.
[2]
The Orleans Wetlands Protection Bylaw, § 160-2, eliminates the requirement that in order to be subject to the Commission's jurisdiction, the wetland resource areas must be "bordering." It did so in order to provide broader protection to these resources than that found in the Act or state regulations as permitted by 310 CMR 10.01(2) which states, "Nothing contained herein should be construed as preempting or precluding more stringent protection of wetlands or other natural resources by local by-law, ordinance or regulation." Thus under the Orleans Bylaw and regulations, these resource areas are subject to the Commission's jurisdiction and regulation whether or not they are "bordering."
[3]
Therefore, if the inclusion of the word "bordering" anywhere
in the Act or 310 CMR 10.00 should result in removing that resource
from the Orleans Conservation Commission's jurisdiction, it shall
be deemed for the purpose of the Orleans Regulations that the word
"bordering" in that instance, has not been incorporated in these regulations.
(b)
Freshwater wetlands.
[1]
The definition of "bordering vegetated wetlands" (wet meadows,
marshes, swamps and bogs) found in 310 CMR 10.55(2) is specifically
not incorporated herein and the following definition is adopted instead:
Vegetated wetlands are freshwater wetlands which may or may
not border on creeks, rivers, streams, ponds, and lakes. 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 MGL c.131, § 40 and in these regulations.
[2]
All other references to "bordering vegetated wetlands" in 310
CMR 10.55 and elsewhere throughout 310 CMR 10.00 et seq. shall be
deemed to refer to both bordering and nonbordering vegetated wetlands.
[3]
Wetland replication. The Orleans Wetlands Bylaw § 160-3, Wetlands Replication, prohibits wetlands replication as a form of mitigation. In accordance with this prohibition, these regulations do not incorporate any part of the performance standard found at 310 CMR 10.55(4)(b) permitting loss of up to 5,000 square feet of wetlands if replicated and (c) permitting loss of up to 500 square feet under other limited circumstances. Nor do these regulations incorporate any other section of the Act or 310 CMR 10.00 et seq. which permits loss of wetlands when mitigating by replication. Nothing in this section prohibits construction of new wetlands as long as such new wetland is not replacement of existing wetlands.
G.
Savings. Should any portion of these regulations be declared invalid
by a decision of court, the legislature or other body having jurisdiction,
the remainder of these regulations shall remain in full force and
effect.
H.
Reservation. These regulations should not be construed to limit the
authority under the Orleans Wetlands Protection Bylaw. The Commission
reserves the right to act in a manner consistent with the Bylaw upon
any matter within its jurisdiction.
I.
Amendments. Amendments to these regulations shall be made in the same manner set forth in § 160-11 of the Orleans Wetlands Protection Bylaw.
J.
Exceptions.
(1)
MGL c. 131, § 40 provides the following exceptions to the application of its provisions: maintenance and repair of lawfully located structures used to provide specific services to the public; certain emergency projects; mosquito control works, some maintenance dredging; normal maintenance and improvement of land in agriculture and aquaculture use; and those exceptions provided by any special act prior to January 1, 1973. The Orleans Wetland Bylaw, § 160-5A and B however, provides exceptions only for maintenance and repair of lawfully located structures used to provide certain services to the public and for limited emergency projects. Both exceptions are subject to notice and performance standard requirements. Section 160-5C provides that "Other than stated in this section, the exceptions provided in the Wetlands Protection Act shall not apply."
(2)
The Orleans Conservation Commission has not in the past exercised
its jurisdiction over the additional activities excepted by the state
but not by the Orleans Bylaw. However, the Commission reserves its
right to exercise such jurisdiction in the future.
K.
Variances.
(1)
The Conservation Commission may, in its discretion, grant variances
from the specific stipulations of one or more of these regulations
pursuant to this section. Such variances may be granted in specific
instances where relief for the property owner may be warranted and
said relief will not adversely affect the wetlands interests. Variances
shall be granted only in accordance with the provisions of this section,
and shall, in no way, set a precedent.
(2)
A variance may be granted for the following reasons and upon the
following conditions:
(a)
The Conservation Commission may, in its discretion, grant a
variance from these regulations upon a clear and convincing showing
by the applicant that the proposed work, or its natural and consequential
impacts and effects, will not adversely affect the interests protected
in the Bylaw. In exercising its discretion the Commission shall take
cognizance of other reasonable alternatives which would permit the
proposed work to be undertaken without deviating from the provisions
of these regulations. It shall be the responsibility of the applicant
to provide the Conservation Commission with any or all information
which the Commission may request, in writing. The failure of the applicant
to furnish any information which has been so requested may result
in the denial of a request for a variance pursuant to this section.
(b)
The Conservation Commission may grant a variance from these
regulations when it is necessary to avoid so restricting the use of
the property as to constitute an unconstitutional taking without compensation.
If an application for a variance pursuant to this section is received
by the Conservation Commission, the Commission may request an opinion
from Town Counsel as to whether the application of these regulations
to a particular case will result in such a taking without compensation.
L.
Amended orders of conditions. Where an applicant seeks permission
to expand or change a use previously prohibited or limited by past
orders, either by an amended order of conditions or a new order of
conditions, the applicant must make a clear showing of changed circumstances
and must present proof that such changed circumstances have rendered
the past prohibition or limitation which the applicant seeks to change,
unnecessary to the preservation and protection of the wetlands interests
of the Act and this Bylaw.
M.
Effective date. The effective date of these regulations shall be
August 8, 1995. These regulations apply to all applications made on
or after the effective date.
N.
Site specificity and precedence. Because each parcel of land and
proposed project thereon has its own unique characteristics and impacts,
every project brought before the Commission for approval will be considered
on a site specific basis. And, because of this site specificity each
project will stand alone and shall not set a precedent in the decisions
to be made on subsequent projects.
As used in this chapter, the following terms shall have the
meanings indicated:
Owner of land sharing a common boundary or corner with the
site of the proposed activity in any direction.
Any person filing a Notice of Intent or requesting a prior
Determination with a Conservation Commission shall at the same time
give written notification thereof, by delivery, in hand or certified
mail, return-receipt requested, to all abutters and owners of property
within one hundred (100) feet of the property line of the land where
the activity is proposed at the mailing addresses shown on the most
recent applicable tax list of the assessors. If any work is to occur
on a property with shoreline on a pond of less than ten (10) acres,
abutter notification shall be extended to all pond shore owners. Said
notification shall be at the applicant's expense, and shall state
where copies of the notice of intent may be examined and obtained
and where information regarding the date, time and place of the public
hearing may be obtained. Proof of such notification, with a copy of
the notice mailed or delivered, shall be filed with the Conservation
Commission.
An Area of Critical Environmental Concern (ACEC) is established
[MGL c. 21A, § 2(7)] in special areas that meet designation
criteria. The performance standard, of "no adverse effect" on any
of the interests protected by these regulations, must be met for activities
in this special area [310 CMR 10.24(5)]. (See Areas of Critical Environmental
Concern, MCZM 1982.)
The Massachusetts Wetlands Protection Act, Chapter 131, Section 40, hereinafter referred to as "the Act."
[Amended 4-26-2017]
Any form of draining, dumping, dredging, damming, discharging,
excavating, filling or grading; the erection, reconstruction, or expansion
of any building or structure; the driving of pilings; the construction
or improvement of roads and other ways; the changing of runoff characteristics;
the intercepting or diverging of ground or surface water systems;
the discharging of pollutants; the destruction of plant life including
cutting or pruning, the application of fertilizer, pesticides or insecticides;
and any other changing of the physical characteristics of land, or
of the physical or chemical characteristics of water. Structures shall
include, but not be limited to, dwellings, garages, patios, tennis
courts, playgrounds, mobile homes, swimming pools, pavement, signs,
fences, retaining walls, antennae, utilities, conduits, fuel storage
tanks, air-conditioning units, subsurface sewage disposal systems,
or other temporary or permanent construction or facility.
A review by the Commission or its agent pursuant to a written request to the Conservation Commission to determine whether or not additional filing will be necessary to perform work of a minor nature in an area subject to protection under § 196A-2A or, if not, whether to approve such work.
A greater than negligible change in the resource area or
one (1) of its characteristics or factors that diminishes the value
of the resource area to one or more of the interests of the Act or
this Bylaw, as determined by the issuing authority. "Negligible" means
small enough to be disregarded.
The performance standard for aesthetics in wetlands, related
water resources and adjoining land areas specifies that placement
of buildings, structures or parking facilities shall not detract from
the site's scenic qualities and shall blend with the natural
landscape. Also, in those areas, building sites should be kept away
from the crest of hills, and foundations should be constructed to
reflect the natural terrain.
Reserved.
Includes, without limitation, the following activities when
undertaken to, upon, within or affecting resource areas protected
by this chapter:
Removal, excavation or dredging of soil, sand, gravel or aggregate
materials of any kind.
Changing preexisting drainage characteristics, flushing characteristics,
sanitary distribution, sedimentation patterns, flow patterns or 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.
Placing of fill or removal of materials, which would alter elevation.
Driving of piles or erection or repair of buildings or structures
of any kind.
Placing of obstructions or objects in water.
Destruction of plant life, including cutting or pruning of trees
and shrubs especially those species that are endangered, threatened,
or of special concern.
Changing water temperature, biochemical oxygen demand or other
physical or chemical characteristics of water.
Any activities, changes or work which may cause or tend to contribute
to pollution of any body of water or groundwater.
Any person who files a notice of intent, request for determination of applicability or administrative review, or on whose behalf such notice is filed either under MGL c. 131, § 40 or the Orleans Wetlands Protection Bylaw, Chapter 160 of the Orleans Code.
Reserved.
The portion of the land surface which normally abuts and
confines a water body. It occurs between a water body and a vegetated
wetland and adjacent floodplain, or, in the absence of these, it occurs
between a water body and an upland.
The seaward face or side of any elevated landform, other
than a coastal dune, which lies at the landward edge of a coastal
beach, land subject to tidal action or other wetland.
See "coastal bank, (top of)."
Any unconsolidated sediment subject to wave, tidal and coastal
storm action which forms the gently sloping shore of a body of salt
water and includes tidal flats. Coastal beaches extend from the mean
low water line landward to the dune line, coastal bank line or the
seaward edge of existing man-made structures, when these structures
replace one of the above lines, whichever is closest to the ocean.
A narrow low-lying strip of land generally consisting of
coastal beaches and coastal dunes extending roughly parallel to the
trend of the coast. It is separated from the mainland by a narrow
body of fresh, brackish or saline water or a marsh system. A barrier
beach may be joined to the mainland at one or both ends.
A naturally occurring inland beach is an unvegetated bank
as defined above (bank inland).
See Orleans Board of Health Code § 185-17.2.
The most up-to-date technology or the best designs, measures
or engineering practices that have been developed and that are commercially
available.
Technologies, designs, measures or engineering practices
that are in general use to protect similar interests.
See "vegetated wetland."
The Orleans Bylaw has omitted the state requirement that any freshwater or coastal wetland, marsh, wet meadow, bog or swamp must border on any lake, pond, creek, river, stream, estuary or the ocean in order to be subject to the jurisdiction of the Orleans Conservation Commission, § 160-2. Therefore, the definition of bordering is omitted from these regulations.
The line which delineates the edge of any resource area or
buffer zone subject to protection under the Act or the OWPB.
A strip of densely vegetated land lying between human activity
and the boundary of a resource area.
The area of land extending one hundred (100) feet horizontally landward from the boundary of any resource area specified in § 160-2, except for an ACEC and land subject to coastal storm flowage.
[Amended 4-26-2017 ]
A written determination by the Conservation Commission that
work or a portion thereof has been completed in accordance with an
order of conditions.
The top of a coastal bank shall be delineated by applying
MA DEP Wetlands Program Policy 92-1 issued March 3, 1992. The buffer
zone for the resource area shall extend inland for 100 feet from the
designated top of the bank.
Any natural, hill, mound or ridge of sediment landward of
a coastal beach deposited by wind action or storm overwash. Coastal
dune also means sediment deposited by artificial means and serving
the purpose of storm damage prevention or flood control.
Any bank, marsh, swamp, meadow, flat or other lowland subject
to tidal action or coastal storm flowage.
Those requirements set forth in a written permit issued by the Conservation Commission for the purpose of permitting and regulating, or prohibiting any activity that removes, fills, dredges, or alters or will alter an area subject to protection under the Bylaw as set forth in § 196A-2A.
That body comprised of members lawfully appointed pursuant
to MGL c.40, § 8C.
The duly authorized agent of the Commission, with the authority
to carry out certain Commission's functions. These shall include,
but not be limited to, administrative reviews, site visits, review
of application compliance with submission requirements, enforcement,
reports to the Commission and any other duties assigned by the Commission.
Means the same as a stream as defined hereinafter.
The effect of activities regulated under this Bylaw which
may be individually insignificant to the interests and values under
this Bylaw, but when considered in relation to other past, or present
activities in a given area may be significant to said interests and
values in the aggregate.
The date a permit is mailed, as evidenced by a postmark,
or the date it is hand delivered or faxed.
The date of delivery to an office, home or usual place of
business by mail, hand delivery or fax.
A determination of applicability is a written finding by the
Conservation Commission after public hearing as to whether a site
or the work proposed thereon is subject to the jurisdiction of the
OWP and does or does not require the filing of a notice of intent.
A determination of significance is a 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 § 160-2.
A notification of nonsignificance is a 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 not significant to any of the interests of the § 160-2.
Any depression through which water flows as drainage in times
of high water. (See also "stream.")
Any structure, accessible by land, including but not limited
to ramp, pier, wharf, dock and float which could be used to access
boats whether or not tied.
To deepen, widen or excavate, either temporarily or permanently.
Erosion control means the regulation of activities or processes
which would threaten, by wearing away the surface soil or by undermining
the interior portions of the landforms, the stability of landforms
and resource areas, and the soil and/or vegetation associated with
protected resources and adjoining land areas.
Sedimentation control means the regulation of activities, or
processes that would threaten the ability of wetlands to settle out
sediments and other waterborne material beyond their capacity to do
so without adverse effect on other wetland functions.
A written extension of time within which the authorized work
shall be completed.
Federal Emergency Management Agency.
Any deposition of material that raises an elevation, either
temporarily or permanently.
310 CMR 10.04.
Flood Insurance Rate Map.
Fish includes all species of fresh and salt water finfish
and shellfish.
See "tidal flat."
Areas designated by the Federal Emergency Management Agency
(FEMA) and depicted on the FEMA Flood Insurance Rate Maps as subject
to wave action or flooding during large coastal events.
VELOCITY ZONEThe area and elevation designated as subject to severe wave action during large coastal storm events.
ZONE— The area and elevation designated as likely to be flooded during a one-hundred-year flood event.
ZONE— The area and elevation designated as likely to be flooded during a five-hundred-year storm event.
ZONE— An area of minimal flooding.
See "vegetated wetlands."
Water below the earth's surface in the zone of saturation.
The occasion when a literal enforcement of the provisions of
these regulations would involve a substantial hardship, financial
or otherwise, to the petitioner or appellant;
The hardship is owing to circumstances relating to the soil
conditions, shape or topography of such land or structures and especially
affecting such land or structures but not affecting generally the
zoning district in which it is located; and
Desirable relief may be granted without either substantial detriment
to the public good or nullifying or substantially derogating from
the intent or purpose of the OWP.
Excessive economic burden placed on an applicant as a result
of the wetlands regulations may be considered to be a hardship. It
is presumed that any proposed private activity within the area of
jurisdiction will place public resources at risk. An applicant is
expected to take steps to protect these public resources. Such steps
may place an economic burden on the applicant that would not be placed
on a person working beyond the area of jurisdiction. Some additional
economic burden is presumed to be a reasonable requirement necessary
to protect the public resource. In order to demonstrate hardship,
the applicant must show that the public resource can be equally protected
at less cost by some other means. Hardship shall in no case be a condition
unique to the applicant. The hardship must be associated with activities
on the property for which the proposal is made.
Conservation Commission, Mayor, Selectmen or the Department,
whichever is applicable.
Any open body of fresh water with a surface area of 10 acres
or more and shall include great ponds.
See "shellfish habitat."
Land subject to any inundation caused by coastal storms up
to and including that caused by a one-hundred-year storm, surge of
record or storm of record, whichever is greater.
An area with low, flat topography and inundated by floodwaters
rising from creeks, rivers, streams, rivers, ponds, lakes, estuaries
or the ocean.
Any land subject to periodic rise and fall of a coastal water
body including spring tides.
Land extending from the mean low water (MLW) line seaward
to the boundary of the municipality's jurisdiction and includes
land under estuaries.
The bottom of, or land under the surface of the ocean or
any estuary, creek, river, stream, pond or lake. Said land may be
composed of sand, gravel, rocks, bedrock, peat, fine sediments, or
organic muck.
A shallow enclosed or semi-enclosed body of saline water
that may be partially or totally restricted by barrier beach formations.
Salt ponds may receive fresh water from small streams emptying into
their upper reaches and/or springs in the salt pond itself (or along
its margin).
That line past which no work or activity is permitted without further application to the Commission. (See § 196A-7H.)
More than one-half of the members of the Conservation Commission
then in office.
Coastal wetland areas that extend landward up to the highest
tide line of the year, and where a significant portion of the vegetation
community is adapted to saline conditions and is composed of, but
not limited to nor necessarily including all of, the following plants
or groups of plants: salt marsh cord grass (Spartina alterniflora),
salt meadow cord grass (Spartina patens), spike grass (Distichlis
spicata), black grass (Juncus gerardi), groundsel tree (Baccharis
halimifolia), sea lavender (Limonium carolinianum), seaside goldenrod
(Solidago sempervirens), sea blite (Suaeda maritima), samphire (Salicornia
europaea), glasswort (Salicornia bigelovii), saltmarsh bulrush (Scirpus
robustus), salt bush (Atriplex patula), seaside plantain (Plantago
juncoides) and aster (Aster tenuifolius).
See "vegetated wetlands."
See "vegetated wetlands."
Those areas used by wildlife moving from one habitat to another
whether seasonally or otherwise.
See "tides."
See "tides."
The Massachusetts Environmental Policy Act, MGL c. 30, §§ 62
through 62H and the regulations promulgated thereto, 301 CMR 10.00
et seq.
The ability to traverse a waterway.
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 (the Act), MGL c. 131, § 40 or the
Orleans Wetlands Protection Bylaw (the Bylaw).
The Atlantic Ocean and all contiguous waters subject to tidal
action.
Order of conditions, superseding order, final order or enforcement
order, whichever is applicable.
The document issued by the Conservation Commission containing
conditions which regulate or prohibit an activity under either the
Act and/or the Orleans Wetlands Protection Bylaw.
Means the applicant, the Conservation Commission and, the Department and pursuant to Article II may include the owner of a site, any abutter, any person aggrieved, any ten residents of the Town where the land is located and any ten persons pursuant to MGL c. 30A, § 10A.
Includes any individual, group of individuals, association,
partnership, corporation, company, business organization, trust, estate,
the commonwealth or political subdivision thereof, administrative
agency, public or quasi-public corporation or body or any other legal
entity or its legal representatives, agents or assigns.
Any person who, because of an act or failure to act by the
issuing authority, 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
facts to allow the Conservation Commission to determine whether or
not the person is in fact aggrieved.
See "docks."
Such data, maps, engineered drawings, calculations, specifications, schedules and other materials, if any, deemed necessary by the issuing authority to describe the site and/or the work, to determine the applicability of the Bylaw or to determine the impact of the proposed work upon the interests identified as set forth in § 196A-1B.
See "salt pond."
Any open body of fresh 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 period of drought" shall
mean any period of four (4) or more months during which the average
rainfall for each month is fifty percent (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 nor shall swimming pools
or other impervious man-made retention basins.
The prevention or reduction of contamination of surface waters,
both fresh and salt, groundwater, and/or soil.
Any source or volume of surface or groundwater demonstrated
to be in any private use or demonstrated to have a potential for private
use.
Protection of the capacity of an area subject to protection under the Bylaw as specified in § 196A-2A to prevent or reduce contamination or damage to fish and to serve as their habitat and nutrient source. Fish includes all species of fresh and salt water finfish and shellfish.
Protection of the capacity of an area subject to protection under the Bylaw, OWPB § 160-2 to prevent or reduce contamination or damage and to shellfish, their nutrient source or their habitat.
The capacity of an area subject to protection under the Bylaw, OWPB § 160-2 to provide necessary wildlife habitat (see "wildlife habitat"); and also the ability of any resource area to provide food, breeding habitat, or escape cover for any species falling within the definition of "wildlife" set forth in these regulations.
Any source or volume of surface or ground water demonstrated
to be in public use or approved for water supply pursuant to MGL c.
111, § 160 by the Division of Water Supply of the DEP or
shown to have a potential for public use.
A majority of members then in office.
Alteration and rebuilding of up to 25% of the structure,
measured by square footage of the foundation, or cubic footage of
the structure. Alteration and rebuilding of over 25% of the structure
shall be considered new construction.
Any leisure activity or sport taking place in, on, or within
100 feet of a resource area which is dependent on the resource area
directly or indirectly for its conduct and enjoyment. Recreational
activities include, but are not limited to, the following: noncommercial
fishing and shellfishing, hunting, boating, swimming, walking, painting,
birdwatching and aesthetic enjoyment.
A written request made by any person to the Conservation
Commission for a decision as to whether a site or work thereon is
subject to the Bylaw and if so, requires the filing of a NOI.
Bank, beach, dune, flat, freshwater wetland, marsh, bog, coastal
wetland, swamp, wet meadow.
Lake, pond, creek, river, stream, estuary, the ocean and any
land under said waters.
Any land subject to flooding or inundation by tidal action,
groundwater or surface water.
Land subject to coastal storm flowage.
Area of Critical Environmental Concern (ACEC).
Definitions of specific resource areas are contained in other
sections of these regulations and the state wetland regulations.
A natural flowing body of water that empties to any ocean,
lake, pond, other wetland, or other river, and which flows throughout
the year.
Naturally occurring rocky areas, such as bedrock or boulder-strewn
areas between the mean high water (MHW) line and the mean low water
(MLW) line.
See "marsh, salt."
A shallow enclosed or semi-enclosed body of saline water
that may be partially or totally restricted by barrier beach formation.
Salt ponds may receive fresh water from small streams emptying into
their upper reaches and/or springs in the salt pond itself.
Plays a role. A resource area is significant to an interest identified in § 196A-1B when it plays a role in the provision or protection, as appropriate, of that interest.
Mollusks and crustaceans including but not limited to various
species of the following: clams, conchs, mussels, oysters, periwinkles,
quahogs, razor clams, scallops, sea clams, lobsters and crabs.
Those areas below the mean high water line in any coastal
resource area that provides or has provided the characteristics, including
but not limited to sediment type and grain size, circulation patterns,
hydrologic regime, water chemistry, plant communities and food supply,
necessary to support shellfish species.
The prevention of damage caused by water and wind 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 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
(i.e., which is intermittent) is also a stream.
A determination of applicability, of significance or nonsignificance,
as the case may be, issued by the Department of Environmental Protection.
A document issued by the Department of Environmental Protection
containing conditions which regulate or prohibit an activity.
MGL c. 131, § 40, pp 8.
SPRING: 10.04Those tides that occur at or near the time when the gravitational forces of the sun and moon are in phase (new and full moons), and which are of the greatest amplitude during the approximately fourteen-day tidal cycle.
NEAPThose tides that occur between the new and full moons and have less variation than the spring tides.
EXTREMEThose tides generally associated with storms or astronomical configurations and are perceptibly higher and lower than the spring tides.
MEAN HIGH WATER: 10.23The line where the arithmetic mean of the high water heights observed over a specific nineteen-year metonic cycle (the National Tidal Datum Epoch) meets the shore and shall be determined using hydrographic survey data of the National Ocean Survey of the U.S. Department of Commerce and local observations.
MEAN LOW WATER: 10.23The line where the arithmetic mean of the low water heights observed over a specific nineteen-year metonic cycle (the National Tidal Datum Epoch) meets the shore and shall be determined using hydrographic survey data of the National Ocean Survey of the U.S. Department of Commerce and local observations.
Any nearly level part of a coastal beach which usually extends
from the mean low water line landward to the more steeply sloping
face of the coastal beach or which may be separated from the beach
by land under the ocean.
The term "freshwater wetlands" as used in this section shall
mean wet meadows, marshes, swamps, bogs, areas where groundwater,
flowing or standing surface water or ice provides a significant part
of the supporting substrate for a plant community for at least five
months of the year; emergent and submergent plant communities in inland
waters; that portion of any bank which touches any inland waters.
Freshwater wetlands are areas where the topography is low and flat,
and where the soils are annually saturated and within which 50% or
more of the species of the vegetational community consists of the
wetland plant species identified below:
BOGS: MGL c. 131, § 40Areas 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) 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. viscosum), black spruce (Picea mariana), bog cotton (Eriophorum), cranberry (Vaccinium macrocarpon), high bush blueberry (Vaccinium corymbosum), larch (Larix laricina), laurels (Kalmia augustifolia and K. polifolia), leatherleaf (Chamaedaphne calyculata), orchids (Arethusa, Calopogon, Pogonia), pitcher plants (Sarracenia purpurea), sedges (Cyperaceae), sundews (Droseraceae), sweet gale (Myrica gale), white cedar (Chamaecyparis thyoides).
SWAMPS, MGL c. 131, § 40Areas where the 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 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 (Veratrum viride), hemlock (Tsuga canadensis), high bush blueberry (Vaccinum 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).
WET MEADOW, MGL c. 131, § 40Areas where the 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), false loosestrife (Ludwigia), hydrophile grasses (Gramineae), marsh fern (Dryopteris thelypteris), rushes (Juncaceae), sedges (Cyperaceae), sensitive fern (Onoclea sensibilis), smartweeds (Polygonum).
MARSHES, MGL c. 131, § 40Areas 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), bladderworts (Utricularia), bur reeds (Sparganiaceae), button bush (Cephalanthus occidentalis), cattails (Typha), common reeds (Phragmites), duck weeds (Lemnaceae), eel grass (Vallisneria), frog bits (Hydrocharitaceae), horsetails (Equisetaceae), hydrophilic grasses (Gramineae), leatherleaf (Chamaedaphne calyculata), pickerel weeds (Pontederiaceae), pipeworts (Ericoaulon), pond weeds, (Potamogeton), rushes (Juncaceae), sedges (Cyperaceae), smartweeds (Polygonum), sweet gale (Myrica gale), water milfoil (Haloragaceae), water lilies (Mymphaeaceae), water starworts (Callitrichaceae), water willow (Decodon verticillatus).
Those areas containing vernal pool habitat.
Confined basin depressions that, at least in most years,
hold water for a minimum of two continuous months during the spring
and/or summer, and that are free of adult fish populations, as well
as the area within 100 feet of the mean annual boundaries of such
depressions. These areas are essential breeding habitat, and provide
other extremely important wildlife habitat functions during nonbreeding
season as well, for a variety of amphibian species such as wood frog
(Rana sylvatica) and the spotted salamander (Ambystoma macultum),
and are important habitat for other wildlife species.
Those uses and facilities that require direct access to,
or location in, marine, tidal or inland waters and therefore cannot
be located away from said waters, including but not limited to: marinas,
public recreational uses, navigational and commercial fishing and
boating facilities, water-based recreational uses, navigation aids,
basins and channels, industrial uses dependent upon waterborne transportation
or requiring large volumes of cooling or process water that cannot
reasonably be located or operated at an upland site, crossings over
or under water bodies or waterways (but limited to railroad and public
roadway bridges, tunnels, culverts, as well as railroad tracks and
public roadways connecting thereto which are generally perpendicular
to the water body or waterway) and any other uses and facilities as
may further hereafter be defined as water-dependent in 310 CMR 9.00.
Wildlife includes all nondomestic animals, including but
not limited to, mammals, birds, reptiles, amphibians, fish and the
habitat required by these animals for nesting, cover and food, with
the exception of species of the Class Insecta which have been determined
by the Commonwealth of Massachusetts to be a pest whose protection
would be a risk to man. The definition encompasses but is not limited
to all vertebrate and invertebrate species listed by state and federal
agencies as endangered, threatened or of special concern.
Those resource areas subject to Conservation Commission jurisdiction
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.
The same as activity.
