Town of Southwick, MA Regulations for Resource Areas and Buffer

Isolated wetlands are freshwater wetlands that do not border on creeks, rivers, streams, ponds and/or lakes. Isolated wetlands are likely to be significant to public or private water supply, groundwater, flood control, storm damage prevention, prevention of pollution and the protection of wildlife habitats.

Some isolated wetlands provide temporary storage of water resulting from runoff, rising groundwater or seepage, thereby providing for flood control and prevention of storm damage. Alteration can result in the lateral displacement of retained water into adjacent properties resulting in modified drainage patterns with the potential for property damage.

Under some isolated wetlands, surface water may discharge to the groundwater. Where such areas are underlain by pervious materials, contaminants introduced into such areas, such as septic system discharges, road salts, pesticides or herbicides, may enter the groundwater and may contaminate private or public water supplies. Where such areas are underlain by pervious material covered by a mat of organic peat or muck, they are likely to be significant to prevention of pollution.

Isolated wetlands may provide important habitat for wildlife. Where they provide variation in vegetative, cover type from adjacent uplands, they enhance the diversity, interspersion, and edge effect of vegetative cove type important to wildlife habitat. Early season thawing and dry season moisture availability in some isolated wetlands can provide important food sources for wildlife.

Definition, critical characteristics and boundary.

"Isolated wetlands" are freshwater wetlands as defined in these regulations that do not border on creeks, rivers, streams, ponds and lakes. To be under jurisdiction of this bylaw, isolated wetlands must meet the following requirements:

Fifty percent or more of the natural vegetative community must consist of plants listed in the Massachusetts Wetlands Protection Act or that are obligate or facultative wetland plant species as included or identified in generally accepted scientific or technical publications; or

Groundwater is at or near the surface of the ground for a significant part of the growing season or runoff water from surface drainage frequently collects above the soil surface. The presence of hydric soils as defined by the USDA, Soil Conservation Service, will be considered evidence that these hydrologic criteria are met; and

The isolated wetland must cover an area that is 500 square feet or greater.

The boundary of an isolated wetland is the outer limit of the area meeting the criteria in either Subsection B(1)(a) or (b) above.

Presumption. The Commission shall presume that an isolated wetland is significant to the values specified in the preamble above.[1] This presumption is rebuttable by the applicant and may be overcome only by a clear showing that said land does not play a role in said values. In the event that the presumption is deemed to have been overcome, the Commission shall make a written determination to this effect, setting forth its grounds.

Editor's Note: See Subsection A.

Performance standards.

A proposed project which is in or within 100 feet, or may result in alteration, of an isolated wetland shall not result in the following:

Flood damage or erosion and sedimentation due to filling which causes displacement of water that would otherwise be confined within said area.

An adverse effect on public and private water supply or groundwater, where said area is underlain by pervious material.

An adverse effect on the capacity of said area to prevent pollution of the groundwater, where the area is ' underlain by pervious material which in turn is covered by a mat of organic peat or muck.

(d)

An impairment of its capacity to provide important wildlife habitat, not otherwise provided by an equivalent protected area of adjacent upland.

No project may be permitted which will have any adverse effect on specified habitat sites of rare vertebrate or invertebrate species as identified on the Natural Heritage and Endangered Species Estimated Habitat Maps on file with the Commission and identified under § 450-21 (Rare species) of the regulations to the state Wetlands Protection Act (310 CMR 10.00).

§ 450-18 Land under water bodies and waterways.

See 310 CMR 10.56

§ 450-19 Land subject to flooding.

See 310 CMR 10.57.

§ 450-20 Variance.

See 310 CMR 10.58.

§ 450-21 Rare species.

See 310 CMR 10.59.

§ 450-22 Wildlife habitat.

See 310 CMR 10.60.

§ 450-23 Ponds.

Preamble.

Ponds that are hydrologically connected to a brook, stream (intermittent or continuous), river or wetland as defined in these regulations are likely to be significant to public or private water supply, groundwater, flood control, storm damage prevention, prevention of pollution, protection of wildlife habitat and the protection of fisheries and amphibian breeding habitat.

A pond of any size that is hydrologically connected to a brook, stream (intermittent or continuous), river or wetland will be considered significant.

Definition, critical characteristics and boundary.

POND

Any body of fresh water, either naturally occurring or manmade, that is hydrologically connected to a brook, stream (intermittent or continuous), river or wetland.

Presumptions. The Commission shall presume that a pond is significant to the values specified in the preamble above.[1] This presumption is rebuttable by the applicant and may be overcome only by a clear showing that said land does not play a role in said values. In the event that the presumption is deemed to have been overcome, the Commission shall make a written determination to this effect, setting forth its grounds.

Editor's Note: See Subsection A.

General performance standards. A proposed project in or within 100 feet of a pond shall not result in the following:

Any impairment of the capacity of the pond as well as the area within 100 feet of the resource area to provide obligate amphibian wildlife habitat (as defined in 310 CMR 10.60) or alterations to pond banks as defined in 310 CMR 10.54 (2).

§ 450-24 Model rules for hiring outside consultants under G.L. Ch. 44 § 53G (Massachusetts Association of Conservation Commissions July 11, 2006).

Any undue erosion that could be considered detrimental to the pond and its ability to provide necessary habitat.

[Added 2-4-2008]

Purpose. As provided by G.L. Ch. 44 § 53G, the Southwick Conservation Commission may impose reasonable fees for the employment of outside consultants, engaged by the Conservation Commission, for specific expert services. Such services shall be deemed necessary by the Commission to come to a final decision on an application submitted to the Conservation Commission pursuant to the requirements of: the Wetlands Protection Act (G.L. Ch. 131 § 40), the Southwick non-zoning wetlands bylaw Chapters 182 and 450, Conservation Commission Act (G.L. Ch. 40 § 8C), or any other state or municipal statute, bylaw or regulation, as they may be amended or enacted from time to time. The Conservation Commission may also impose fees for other consultant services, related to application review, or permit conditioning or monitoring, under any of the above-referenced laws or regulations.

Special Account. Funds received pursuant to these rules shall be deposited with the Town Treasurer who shall establish a special account for this purpose. Expenditures from this special account may be made at the direction of the Conservation Commission without further appropriation as provided in G.L. Ch. 44 § 53G. Expenditures from this account shall be made only in connection with a specific project or projects for which a consultant fee has been collected from the applicant. Expenditures of accrued interest may also be made for these purposes.

Consultant Services. Specific consultant services may include but are not limited to resource area survey and delineation, analysis of resource area values, hydrogeologic and drainage analysis, impacts on municipal conservation lands, and environmental or land use law. Services may also include on-site monitoring during construction, or other services related to the project deemed necessary by the Commission. The consultant shall be chosen by, and report only to, the Commission and/or its administrator.

Notice. The Conservation Commission shall give written notice to the applicant of the selection of an outside consultant. Such notice shall state the identity of the consultant, the amount of the fee to be charged to the applicant, and a request for payment of said fee in its entirety. Such notice shall be deemed to have been given on the date it is mailed or delivered. No such costs or expenses shall be incurred by the applicant if the application or request is withdrawn within five days of the date notice is given.

Payment of Fee. The fee must be received prior to the initiation of consulting services. The Commission may request additional consultant fees if necessary review requires a larger expenditure than originally anticipated or new information requires additional consultant services. Failure by the applicant to pay the consultant fee specified by the Commission within ten (10) business days of the request for payment, or refusal of payment, shall be cause for the Commission to deny the application based on lack of sufficient information to evaluate whether the project meets applicable performance standards in 310 CMR 10.00 and the Southwick Wetlands Bylaw or its regulations. An appeal stops the clock on the above deadline; the countdown resumes on the first business day after the appeal is either denied or upheld. A denial for lack of information may be based solely on the lack of the third party consultant review identified as necessary by the Commission. The Commission shall specify in its denial the nature of the information lacking which its chosen consultant would provide, e.g. the questions it needs answered.

For inclusion in Non-Zoning Wetlands Bylaw/Ordinance Regulations Only. Failure by the applicant to pay the consultant fee specified by the Commission within ten (10) business days of the request for payment shall be cause for the Commission to deny the permit application.

Appeals. The applicant may appeal the selection of the outside consultant to the Selectboard, who may only disqualify the outside consultant selected on the grounds that the consultant has a conflict of interest or does not possess the minimum required qualifications. The minimum qualifications shall consist of either an educational degree or three or more years of practice in the field at issue or a related field. Such an appeal must be in writing and received by the Selectboard and a copy received by the Conservation Commission, so as to be received within ten (10) days of the date consultant fees were requested by the Conservation Commission. The required time limits for action upon the application shall be extended by the duration of the administrative appeal.

Return of Unspent Fees. When the Commission's review of a project is completed and an Order of Conditions issued, any balance in the special account attributable to that project shall be returned within 30 days. The excess amount, including interest, shall be repaid to the applicant or the applicant's successor in interest. For the purpose of this regulation, any person or entity claiming to be an applicant's successor in interest shall provide the Commission with appropriate documentation. A final report of said account shall be made available to the applicant or applicant's successor in interest.

§ 450-25 Wetland replication and restoration.

[Added 6-20-2011]

Any replication or restoration areas proposed in a Notice of Intent filed and approved after June 20, 2011 shall be bonded in the manner as described under the authority and provisions as stated in Southwick Wetland Bylaws Chapters 182 and 450. The bond amount shall be reviewed and approved by the Southwick Conservation Commission before the project starts. The Commission may issue partial bond releases if the replication is deemed to deserve a bond reduction by the Commission. The total bond shall be released when the Commission issues a Certificate of Compliance for this Order of Conditions.

All restoration or replication areas shown on the NOI shall be color-coded. A legend shall be created to explain the color-coded areas. Also, colored tags shall be used in the actual replication/restoration areas to verify the planting design. The exact location of the replication/restoration shall be distinctly marked on site with distinct and visible markers. The Commission shall be notified before work proceeds on the replication/restoration areas.

The State of Massachusetts Inland Wetland Replication Guidelines shall be followed during construction. The Commission shall require and receive the submittal of a Replication Checklist as per Appendix 3 and Monitoring Reports as per Appendix 4 of the Replication Manual. The submittal shall include specific monitoring plans and schedules for reporting to Commission.

A project monitor (a qualified professional with training in wetland science) with a minimum 5 years of experience in the construction of wetland replication areas and general construction practices shall be on-site to monitor the excavation, grading, and planting of the replication area (at the end of the first growing season, a professional with less than 5 years experience in wetland replication construction may conduct the monitoring if supervised by a professional with at least 5 years experience).

The Commission reserves the right to impose a fine of $300.00 per day if the Commission deems it that any of the Orders of Conditions are not complied with as written.

§ 450-26 through § 450-41. (Reserved)

§ 450-42 Ephemeral ponds or vernal pools.

Preamble.

Ephemeral ponds or vernal pools are usually isolated depressions or closed basins that serve, in most years, as ponding areas for runoff or high groundwater. Ephemeral ponds or vernal pools are, by definition, of seasonal duration; accordingly, the degree of wetness necessary for the establishment of a typical wetland plant community may not exist. Ephemeral ponds or vernal pools are also distinguished from isolated wetlands in that they frequently serve as temporarily flooded amphibian breeding habitat, as well as habitat for other wildlife, and, as such, are likely to be significant to the protection of amphibian wildlife habitats. Since the temporary nature of ephemeral ponds or vernal pools precludes the presence of fish species, these wetland resource areas are able to support viable populations of several amphibian and invertebrate species which are highly vulnerable to fish predation. The presence of a sustaining population of any species of fish at a site in question would rule it out as an ephemeral pond or vernal pool.

Some amphibians require ephemeral ponds or vernal pools for breeding; other amphibians use ephemeral ponds or vernal pools occasionally for breeding or feeding. A few species of reptiles are known to be occasional users of ephemeral ponds or vernal pools. Invertebrates such as members of the fingernail and pea clam family also use ephemeral ponds or vernal pools as habitat. Wood ducks, mallards, black ducks and occasionally great blue herons will stop at ephemeral ponds or vernal pools with growths of vegetation such as duckweed or abundant populations of mollusks. Thus the presence of mollusks, duckweed residues or other indicators of temporary pooling of water, such as caddis fly cases, are indicative of the presence of an ephemeral pond or vernal pool.

Definition, critical characteristics and boundary.

Definition. "Ephemeral ponds" or "vernal pools" are isolated depressions or closed basins which temporarily confine water during periods of high water table or high input from spring runoff, snowmelt or heavy precipitation and are used by obligate amphibian species for breeding purposes.

Critical characteristics.

Temporarality. Ephemeral ponds or vernal pools generally fill up during the spring rains and snowmelt, dry up during the summer and may fill again during the fall rains or during summer thundershowers. An area where water stands on a year-round basis will not be considered to be an ephemeral pond or vernal pool (it may be an isolated wetland). The cycle of filling and drying may occasionally miss a year due to dry conditions.

"Isolated depressions" are shallow areas where water ponds in response to flooding, high groundwater or inputs from rain and snowmelt water, and which lack permanent inlets and outlets.

Organic accumulation. The presence of a well-developed organic layer is a feature of ephemeral ponds and vernal pools. These pools have generally existed since the end of the glacial period and will probably continue in the semi-open condition for many more thousands of years unless artificially altered. These pools acts as traps for organic matter, especially during the autumn when they trap quantities of airborne leaves. The presence of water-stained leaves in a depression which is otherwise dry is a good indicator that the area temporarily serves to pool water.

Boundary. Because ephemeral ponds or vernal pools are dry much of the year, it may be necessary to determine their boundaries using indicators other than pooled water. Further, because the area inundated varies so widely from year to year, pooled water is not a good indicator of extent. The boundary shall be determined using a combination of pooled water, if present, and by the presence of a depression covered by water-soaked leaves. Other indicators of the temporary pooling of water, such as the presence of caddis fly cases or fingernail or pea clams, can also be used. In the case of disputes, hydrological calculations using the two-year storm may be used to provide a determination of the boundary of an ephemeral pond or vernal pool.

Burden of proof. The burden of proof for identification of the ephemeral pond or vernal pool shall be upon the applicant. The applicant shall provide the right of access to the Commission or its representatives for field investigations necessary for such identification. Identification must be made prior to the close of a public hearing and shall follow the guidelines for vernal pools established by the Massachusetts Division of Fisheries and Wildlife.

Presumption. Where a proposed activity involves the removing, filling, dredging or altering of an ephemeral pond or vernal pool, the Commission shall presume that such an area is significant to the protection of wildlife habitat, particularly amphibian breeding habitat. This presumption is rebuttable by the applicant and may be overcome upon a clear showing that the ephemeral pond or vernal pool does not play a role in the protection of wildlife habitat. In the event that the presumption is deemed to have been overcome, the Commission shall make a written determination to this effect, setting forth its grounds.

General performance standards. A proposed project in or within 100 feet of an ephemeral pond or vernal pool shall not result in the following:

Any impairment of the capacity of the ephemeral pond or vernal pool as well as the area within 100 feet of the resource area to provide obligate amphibian wildlife habitat. Alterations may be permitted if they will have no adverse effect on obligate amphibian wildlife habitat, as determined by the procedures listed in 310 CMR 10.60.

Endangering state-listed species, which shall be protected under the procedures listed in 310 CMR 10.59.

§ 450-43 Buffer zone.

Preamble. It is the Commission's experience that any project undertaken in close proximity to a wetland resource area has a high likelihood of resulting in some alteration of that area, either immediately, as a consequence of construction, or over a longer period of time, as a consequence of daily operation of the completed project. These negative impacts from construction, as well as long-term use, in the buffer zone can include erosion, siltation, loss of groundwater recharge, poor water quality characteristics and loss of wildlife habitat. The Commission's prime concern in the buffer zone is the ultimate impact on the adjacent wetland resource area from both the construction and use phases of the proposed activity. The policy of the Commission is to have the applicant maintain a strip of continuous, undisturbed, indigenous vegetative cove in the buffer zone adjacent to the resource area to reduce erosion and pollution to the adjacent wetland resource area, maintain water quality, improve water recharge and provide wildlife habitat.

Definition, critical characteristics and boundary.

Definition. The "buffer zone" is that area of land extending 100 feet horizontally outward from the boundary of any resource area specified in § 450-4A.

Critical characteristics.

Where surface runoff or groundwater from the buffer zone drains toward the resource area, vegetative cover and soils may filter runoff and provide uptake or removal of pollutants from adjacent areas, thereby protecting water quality within the resource area. The vegetation and soils may slow surface runoff and permit infiltration of precipitation, maintaining the hydrologic regime to which the resource area is adapted.

Indigenous vegetation is often used by wildlife for important functions such as nesting, feeding and protective cover sites. Dense understory in wooded areas may provide nesting sites, travel corridors and protective cover for a wide variety of fauna. Cutting of vegetation, especially canopy trees, alters the physical environment by allowing more light and air, and may increase temperatures during the summer and decrease temperatures in winter.

Presumptions.

A continuous undisturbed fifty-foot vegetated buffer strip between development activities in the buffer zone and the resource area to be protected shall be presumed to be necessary to avoid alteration of the resource area. This presumption is rebuttable by the applicant and may be overcome upon a clear showing that the nature of the proposed work, special design measures, construction or use controls, or site conditions will prevent alteration of the resource area. Depending on site conditions and project characteristics, the Commission may also find that work at greater distances from the resource area will alter the resource area.

The following activities within the fifty-foot buffer strip are presumed not to alter a resource area. This presumption is rebuttable and may be overcome when the nature of the work or site conditions will result in alteration of the resource area unless special preventative measures are taken. As with any work in the buffer zone, these activities still require (at a minimum) the filing of a request for determination of applicability in order for the Commission to determine if these presumptions apply.

On-going landscaping activities on existing developed lots (continued mowing, landscape plantings and selective pruning), provided that soil is not exposed to erosion, there is no change in grade and sod cover or natural litter layer is maintained.

Construction or installation of fences or structures not requiring a building permit.

Construction of footpaths of minimum size.

Performance standards.

Any work within the buffer zone shall not result in alteration of any resource area.

Notwithstanding Subsection D(1), if work within the buffer zone which alters a resource area is permitted by the Commission, the alteration of the resource area shall comply with the applicable performance requirements for the altered resource area and any other conditions the Commission may require to enforce those performance requirements.

Unless as specified above, a continuous fifty-foot no disturbance buffer strip, untouched and in its natural state, shall be left between development activities in the buffer zone and the resource area to be protected.

Any drainage outletting in the buffer zone shall be shown to be non-erosive and uncontaminated.

(5)

Any subsurface sewage disposal system within the buffer zone shall comply with Title 5 and any additional local Board of Health Regulations.

(6)

Water-dependent activities, limited projects approved by the Commission and activities where there is no practicable alternative may be allowed by the Commission where impacts are minimized and mitigated, as necessary. As with any work in the buffer zone, these activities still require the filing of a Request for determination of applicability, or notice of intent, which ever is appropriate under these regulations.

§ 450-44 Perennial and intermittent streams.

[Amended 7-1-2002]

Preamble. It is the Commission's experience that a perennial stream can be more easily defined, identified, and regulated than an intermittent stream because it has a more definite channel and a hydraulic gradient and its watercourse flows more obviously for longer periods of time. The definition and subsequent regulations of an intermittent stream are more difficult but are of equal concern to the Commission. Like perennial streams, intermittent streams can be important for storm damage flood control, groundwater protection, and wildlife habitat. Both allow for larger water to infiltrate the ground, the prevention of dangerous volumes and flows from spilling over roadways and property, and recharge of water supplies. Intermittent streams are an essential source of food and water for wildlife, and the moist soils bordering these streams are rich in herbs and flowering/fruiting plants. During all seasons, intermittent streams act as essential corridors for animal movement when food is scarce. It is the policy of the Commission to preserve and protect both types of streams and their adjacent upland and downstream resource areas within 100 feet through proper identification and appropriate regulation.

Definition, critical characteristics, and boundary.

Definition and critical characteristics.

A perennial stream is a watercourse which flows throughout the year or at least all but four consecutive days in the year in a well-defined channel. It is also called a "live stream." It may receive water from groundwater and/or surface water supplies, such as other streams or rivers. It flows within, into, or out of a wetland plant community or an area subject to protection under the Act, including lands upland of the perennial stream. Streams that are perennial under natural conditions but are affected by drawdown from withdrawals of water supply wells, direct withdrawals, impoundments, or other flow diversions shall be considered perennial. Streams shown on USGS topographic maps are perennial, as are streams shown as intermittent or streams not shown at all which have a watershed size greater than one square mile.

An intermittent stream is that segment of a flowing watercourse with a defined channel which flows into, out of, or within a marsh, swamp, wet meadow, or bog, conveys water from springs or surface sources, and regularly experiences naturally occurring sporadic flow interruptions such that it does not have a continuous sheet of surface water for five or more consecutive days annually.

There are two reasons why a stream may be determined to be intermittent:

[a]

Natural. The stream is too small to sustain its flow all year. Plants, fish, and insects that live in these streams adapt to the seasonal changes in water levels and flow.

[b]

Human induced. Water above the stream may have been artificially impacted by withdrawals, impoundments, or other flow diversion for agricultural, residential, or industrial use, causing it to dry up. Plants, fish, and insects cannot adapt to inconsistent changes in their habitats.

[2]

The Commission further recognizes two types of intermittent streams:

[a]

Type I. Stream segments in which continuous standing water disappears for at least five but not more than 30 consecutive days annually.

[b]

Type II. Streams in which continuous standing water disappears for more than 30 consecutive days annually. These streams may dry up during summer months or only during periods of drought. This watercourse may flow during and shortly after periods of high precipitation, as in an ephemeral stream, and its short-lived pools may be the sites of reproduction for amphibians.

Boundary.

Because intermittent streams may be dry for much or most of the year and their stream banks and channels may be difficult to identify, the Commission may determine boundaries by use of the Stream Management Zone (SMZ). The SMZ recognizes a minimum thirty-five-foot zone between the immediate stream bank (Secondary Zone) and the break in slope at the top of the stream bank (Secondary Zone) as significant to the values cited in the Preamble.

This section shall protect intermittent streams of all kinds and the adjacent resource areas, including those upland, within 100 feet of those streams.

Burden of proof. The burden of proof for identification of a stream as perennial or intermittent, Type I or Type II, shall be upon the applicant. The applicant shall provide the right of access to the Commission, its representatives, or consultants required by the Commission for field investigations necessary for such identification. Identification must be made prior to close of the public hearing and shall follow guidelines for streams established in the Act.

Presumption.

The Commission presumes that perennial and intermittent streams are significant to the values specified in the Preamble.

Under this section all flowing watercourses shall be considered to be perennial streams unless a preponderance of evidence deemed acceptable by the Commission rebutting this presumption includes, but is not limited to, direct observation and documentation of:

Absence of gravel, mineral, and riffle substrate;

[2]

Absence of a clearly defined flow channel;

[3]

Absence of bank undercutting;

[4]

Presence of established nonaquatic plants in the path flow;

[5]

Absence of a continuous sheet of surface water in the stream channel or relevant segment at a time when Commission-designated perennial streams of comparable characteristics are flowing, as witnessed by a member of the Commission or its representative or staff;

[6]

Estimates from modeling studies of surface water and groundwater hydrology in the relevant watershed to be considered as evidence in conjunction with the observable indicators noted above.

Observational evidence shall, in all instances, take precedence over estimates, calculations, and other inferential evidence.

(d)

The Commission shall consider all of the evidence available together, judging the validity and reliability of the information, and base its determination on the preponderance of acceptable evidence.

(e)

Under this section; perennial and intermittent streams may, based on specific values and functions of the resource, use guidelines adapted for the one-hundred-foot Riverfront area for a stream.

General performance standards.

A proposed project in and/or within 200 feet of a perennial or 100 feet of an intermittent stream shall not result in any impairment of the capacity of the stream, its resource area, or that area within 100 feet of the resource area, including upland of the resource area.