Town of Harwich, MA Chapter 310 Wetlands Protection

[HISTORY: Adopted by the Special Town Meeting of the Town of Harwich 5-5-2009 by Art. 1. Amendments noted where applicable.]

§ 310-1 Purpose.

A. The purpose of this bylaw is to protect the wetlands, water resources and adjoining land areas in the Town of Harwich by controlling activities deemed by the Conservation Commission likely to have a significant or cumulative adverse effect on the values of resource areas, as hereafter defined, including but not limited to the following:

(1) Protection of public or private water supply.

(2) Protection of groundwater.

(3) Flood control.

(4) Storm damage prevention (including coastal storm flowage).

(5) Prevention of pollution.

(6) Protection of land containing shellfish.

(7) Protection of fisheries.

(8) Protection of wildlife habitat.

(9) Protection of rare species habitat including rare plant species.

(10) Protection of water quality.

(11) Erosion and sedimentation control.

(12) Agriculture.

(13) Aquaculture.

(14) Recreation.

B. These values are deemed important to the community (collectively the "resource area values protected by this bylaw"). This bylaw is intended to utilize the home rule authority of this municipality to protect additional resource areas for their additional values, with additional standards and procedures stricter than those of the Wetland Protection Act (MGL c. 131, § 40) and regulations thereunder (310 CMR 10.00).

§ 310-2 Definitions.

[Added 5-5-2014 ATM by Art. 57[1]]

A. The following definitions shall apply in the interpretation and implementation of this bylaw:

AGRICULTURE

Any work which produces food or other products for commerce or subsistence which occurs in, on, or within 100 feet of a resource area or which is directly or indirectly dependent upon wetlands values for proper agricultural functions, such as prevention of pollution or maintenance of adequate water flow for irrigation. Agriculture includes, but is not limited to the growing of crops, including cranberries, and the raising of livestock. Nonagricultural activities in or within 100 feet of resource areas shall not have a significant effect on existing agriculture.

ALTER

Includes, without limitation, the following activities when undertaken to, upon, within or affecting resource areas protected by this bylaw:

(1) Removal, excavation, or dredging of soil, sand, gravel or aggregate materials of any kind.

(2) Changing of preexisting drainage characteristics, flushing characteristics, salinity distribution, sedimentation patterns, flow patterns, or flood retention characteristics.

(3) Drainage, or other disturbance of water level or water table.

(4) Dumping, discharging or filling with any material which may degrade water quality.

(5) Placing of fill, or removal of material, which would alter elevation.

(6) Driving of piles, construction, or repair of buildings or structures of any kind.

(7) Placing of obstructions or objects in water.

(8) Destruction of plant life, including cutting of trees.

(9) Changing temperature, biochemical oxygen demand, or other physical, biological, or chemical characteristics of any waters.

(10) Any activities, changes or work which may cause or tend to contribute to pollution of any body of water or groundwater.

(11) Incremental activities which have, or may have, a cumulative adverse impact on the resource areas protected by this bylaw.

AQUACULTURE

The growing, raising, breeding, storing, or producing of specified aquatic or marine organisms at specified locations for commercial, municipal, or scientific purposes as approved by appropriate agencies. Organisms in aquacultural use include, but are not limited to: shellfish, such as oysters, quahogs, clams, lobsters, mussels, scallops and crabs; finfish, such as trout, eel, herring, salmon, smelt and bass; amphibians, such as frogs; reptiles, such as turtles; seaweeds, such as Irish moss and dulse; edible freshwater plants, such as watercress; and plankton grown as a food source for other organisms. Activities in or within 100 feet of a resource area shall not have a significant effect on existing permitted aquaculture.

COASTAL BANK

The seaward face or side of any elevated landform, other than coastal dune, which lies at the landward edge of a coastal beach, land subject to coastal storm flowage, or other wetland. A coastal bank may serve one of two functions:

(1) It may serve as a vertical buffer because of its height and stability which protects upland areas from storm damage and flooding. Activities shall not increase erosion of a coastal bank, either from above (by stormwater runoff, brushcutting or other means) or from below (by tidal action, wind and waves). Any project on such a coastal bank shall have no adverse impact on the stability of the coastal bank.

(2) Coastal banks composed of unconsolidated sediment and exposed to vigorous wave action serve as a source of sediment for dunes, beaches, barrier beaches and other coastal landforms. Naturally occurring wave action removes sediment from these banks to replenish coastal landforms. These landforms protect coastal wetlands and real property by reducing storm damage and flooding by dissipating storm wave energy. Any project on or within a coastal bank serving this function shall not have a significant effect on that bank's ability to serve as a sediment source.

DIADROMOUS FISH

Diadromous fish are species of fish that must migrate between fresh and marine waters to complete essential stages of their life history. In Harwich, spring spawning runs (river herring, white perch and Atlantic tomcod) and juvenile migrations (American eel) occur in Muddy Creek, Red River and Herring River. Juvenile eel migrations also occur in Cold Brook and the Andrews River. The coastal rivers serve as migratory habitat, and the freshwater ponds in these watersheds serve as spawning and nursery habitat. Activities in or within 200 feet of a river supporting a diadromous fish run shall not have a significant adverse effect on the fish run.

FISHERIES and/or MARINE FISHERIES

Means:

(1) The fish and shellfish resource itself, including all fish and shellfish found in fresh, salt or brackish waters and any organisms including plants that make up part of the food chain of such animals regardless of their commercial value; and/or

(2) The recreational or commercial catching of fish or shellfish from the ocean or from freshwater bodies.

FLOOD CONTROL

The ability of wetlands to absorb, store and slowly release floodwaters to minimize peak flood levels. Flooding can be caused by precipitation or a rising water table. Activities within 100 feet of resource areas shall not alter the flood control value of wetlands significantly.

GROUNDWATER

All subsurface water contained in natural geologic formations or artificial fill, including soil water in the zone of aeration. Activities in or within 100 feet of resource areas shall not significantly alter the existing quality or elevation of naturally occurring groundwater.

INLAND BANK

Includes the land area which normally abuts and confines a water body; the lower boundary being the mean annual low flow level, and the upper boundary being the first observable break in the slope or the mean annual flood level, whichever is lower.

NO-DISTURB ZONE

The land running 50 feet landward from an abutting resource area. No substantial activity, that will result in the building within or upon, filling, removing or altering of land, shall be permitted, with the following exceptions:

(1) Maintenance of an existing permitted structure

(2) An activity that has been expressly allowed by a variance from the Conservation Commission.

PERSON

Includes any individual, group of individuals, association, partnership, corporation, company, business organization, trust, state, the commonwealth or political subdivision thereof to the extent subject to Town bylaws, administrative agency, public or quasi-public corporation or body, this municipality, and any other legal entity, its legal representatives, agents, or assigns.

PRIVATE WATER SUPPLY

Any source or volume of surface or ground water demonstrated to be in private use or shown to have potential for private use, including ground or surface water in the zone of contribution around a private well. Activities in or within 100 feet of a resource area shall not have a significant effect on the quality of a private water supply.

PUBLIC WATER SUPPLY

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 Department of Environmental Protection Division of Water Supply, or demonstrated to have a potential for public use, in addition to all surface and ground water in zones of contribution. Activities within 100 feet of resource areas shall not have a significant effect on the quality of a public water supply.

RARE SPECIES HABITAT

Includes, without limitation, habitats for all vertebrate and invertebrate animal species and plant species listed as endangered, threatened, or of special concern by the Natural Heritage and Endangered Species Program of the Massachusetts Division of Fisheries and Wildlife, regardless of whether the site in which they occur has been previously identified by the Division.

RECREATION

Any leisure activity or sport taking place in, on, or within 100 feet of a resource area which is dependent on the resource area and its values 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. Structures and activities in or within 100 feet of a resource area shall not have a significant effect on public recreational values.

STORM DAMAGE PREVENTION

The ability of wetland soils, vegetation and physiography to prevent 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. Activities in or within 100 feet of a resource area shall not have a significant effect on storm damage protection.

SURFACE WATER BODY

Any area where water or ice stands or flows over the surface of the ground for at least five months of any calendar year except in times of severe, extended drought as defined in appropriate section of 310 CMR. Drainage ditches, exclusive of fish runs and intermittent streams, and impoundment areas which hold or pass water only during or for short periods following storms and which, owing to their relationship to groundwater, do not support wetland vegetation, are excluded from this definition.

VERNAL POOL

Refers to a seasonal freshwater body contained in a confined basin depression that holds water for a minimum of two consecutive months in most years, is free of adult fish populations, and provides breeding habitat for amphibians and invertebrates. The boundary of vernal pool habitat shall extend outward 100 feet from the mean annual high-water mark of such a depression. Vernal pools include those areas mapped and certified by the Massachusetts Natural Heritage and Endangered Species Program as well as those areas identified in the field as eligible for certification by a professional wildlife biologist or other expert.

WILDLIFE HABITAT

Resource areas that provide breeding and nesting habitats, shelter, food and water to all plant and animal species dependent on wetlands for any portion of their life cycles. Includes resource areas identified as containing rare, threatened or endangered species as listed by the Massachusetts Natural Heritage Program. Structures and activities in or within 100 feet of any resource area shall not have a significant effect on wildlife habitat.

B. Except as otherwise provided for in this bylaw or in regulations of the Commission, the definitions of terms in this bylaw shall be set forth in the Wetlands Protection Act (MGL. c. 131, § 40) and regulations 310 CMR 10.00.

[1] Editor's Note: This article also redesignated former §§ 310-2 through 310-8 as §§ 310-3 through 310-9, respectively.

§ 310-3 Jurisdiction.

[Amended 5-5-2014 ATM by Art. 57]

Except as permitted by the Conservation Commission or as provided for in this bylaw, no person shall commence to remove, fill, dredge, build upon, degrade, discharge into, or otherwise alter any freshwater or coastal wetland resource areas, including:

A. Freshwater wetland resource areas. Marshes; wet meadows; bogs; swamps; vernal pools and vernal pool habitat; lands subject to flooding, both bordering and isolated; isolated wetlands greater than 3,000 square feet; banks; reservoirs; lakes; ponds greater than 3,000 square feet; rivers, including the two-hundred-foot riverfront area; streams and creeks, including intermittent streams; and the lands underneath lakes, ponds, streams and creeks.

B. Coastal wetland resource areas. Land under the ocean; designated port areas; coastal beaches; coastal dunes; barrier beaches; coastal banks; rocky intertidal shores; salt marshes; land under salt ponds; land containing shellfish and fish runs; lands subject to tidal action, coastal storm flowage or flooding.

C. Lands within 100 feet of any of the aforesaid resource areas, as set out in this section, except for the riverfront area and vernal pool habitat.

§ 310-4 Conditional exceptions.

A. The application and permit required by this bylaw shall not be required for maintaining, repairing or replacing, but not substantially changing or enlarging, an existing and lawfully located structure or facility used in the service of the public to provide electric, gas, water, telephone, telegraph or other telecommunication services, provided that written notice has been given to the Commission prior to the commencement of work.

[Amended 5-5-2014 ATM by Art. 57]

B. The provisions of this bylaw shall not apply to any mosquito control work done under the provisions of MGL c. 252 or any special act, to maintenance of drainage and flooding systems of cranberry bogs and to work performed for normal maintenance or improvement of land in agricultural use or in aquacultural use, or to any project authorized by special act prior to January 1, 1973.

C. The application and permit required by this bylaw shall not be required for emergency projects necessary for the protection of the health and safety of the public, provided that the work is to be performed by or has been ordered to be performed by an agency of the commonwealth or a political subdivision thereof; provided that advance notice, oral or written, has been given to the Commission prior to commencement of work or within 24 hours after commencement; provided that the Commission or its agent certifies the work as an emergency project; provided that the work is performed only for the time and place certified by the Commission for the limited purposes necessary to abate the emergency; and provided that within 21 days of commencement of an emergency project a permit application shall be filed with the Commission. Upon failure to meet these and other requirements of the Commission, the Commission may, after notice and a public hearing, revoke or modify an emergency project approval and order restoration and mitigation measures.

D. Conservation variance provision. In rare and unusual circumstances the Commission, at its discretion, may grant a conservation variance from the requirements of the fifty-foot no-disturb zone. Such a conservation variance may be granted upon a clear and convincing showing of evidence by the applicant that the proposed work will not adversely affect the environmental values protected by this bylaw.

[Added 5-5-2014 ATM by Art. 57]

§ 310-5 Application for permit and request for determination.

A. Written application shall be filed with the Commission to perform activities affecting resource areas protected by this bylaw.

[Amended 5-5-2014 ATM by Art. 57]

(1) The application shall include such information and plans that are deemed necessary by the Commission to describe proposed activities and their effects on the resource areas protected by this bylaw.

(2) No activities shall commence without receiving and complying with a permit issued pursuant to this bylaw.

B. If appropriate, the Commission may accept as the application and plans under this bylaw the notice of intent and plans filed under the Wetlands Protection Act (MGL c. 131, § 40) and the Commission's regulations.

[Amended 5-5-2014 ATM by Art. 57]

C. Any person desiring to know whether or not a proposed activity or an area is subject to this bylaw may in writing request a determination from the Commission. Such a request for determination shall include information and plans as are deemed necessary by the Commission.

D. At the time of application the applicant shall pay a filing fee specified in the regulations of the Conservation Commission promulgated in accordance with this chapter.

[Added 5-5-2014 ATM by Art. 57]

§ 310-6 Notice and hearings.

A. Any person filing a permit application or a request for determination with the Commission shall at the same time give written notice thereof, by certified mail (return receipt requested) or hand delivered, to all abutters at their mailing addresses shown on the most recent applicable Assessor's tax list. Abutters include those immediately adjacent, across a road or water body, and in another municipality if within 100 feet of the boundary of the property where work is proposed. The notice to abutters shall state where copies of the permit application and plans may be obtained or examined by abutters. An affidavit of the person giving such notice, with a copy of the notice mailed or delivered, shall be filed with the Commission. When the person requesting a determination is other than the owner, a copy of the request for determination shall be sent by the applicant to the owner, and the notice of the hearing and the determination itself shall be sent by the Commission to the owner as well as to the person making the request.

B. The Commission shall conduct a public hearing on any application or request for determination, with written notice given at the expense of the applicant, which notice shall be published in a newspaper of general circulation in the Town of Harwich at least five business days prior to the hearing.

C. The Commission shall commence the public hearing within 21 days from receipt of a completed permit application or request for determination unless an extension is authorized in writing by the applicant.

D. The Commission shall issue its determination or permit in writing within 21 days of the close of the public hearing or receipt of the file number issued by the Massachusetts Department of Environmental Protection, whichever is later, unless an extension is authorized in writing by the applicant.

E. If appropriate, the Commission may combine its hearing under this bylaw with the hearing required under the Wetlands Protection Act (MGL c. 131, § 40) and regulations (310 CMR 10.00).

F. Continuance of public hearing. The Commission has the authority to continue a hearing to a date certain, which shall be announced at the hearing, for reasons stated at the hearing. The reasons may include receipt of additional information deemed necessary by the Commission, for receipt of information offered by the applicant, or for the Commission to be able to hear comments and recommendations of other local or state boards and officials. In the event that the applicant objects to the continuance, the hearing shall be closed and the Commission shall take action based on the information available.

[Amended 5-5-2014 ATM by Art. 57]

§ 310-7 Coordination with other communities and boards.

Any person filing a permit application or a request for determination with the Commission shall provide a copy thereof at the same time, by certified mail, to the Conservation Commission of the adjoining municipality, if the application or request for determination pertains to property within 100 feet of that municipality. An affidavit of the person providing notice, with a copy of the notice mailed or delivered, shall be filed with the Commission. The applicant, as well as the Commission, shall have the right to request any comments and recommendations from other Town boards and departments, and to respond to them at a hearing of the Commission, prior to final action.

§ 310-8 Permits and conditions.

[Amended 5-5-2014 ATM by Art. 57]

A. If the Commission, after a public hearing, determines that the activities which are subject to the application or the land and water uses which will result therefrom are likely to have a significant individual or cumulative adverse effect upon the resource area values protected by this bylaw, the Commission, within 21 days of the close of the hearing or receipt of the file number issued by the Massachusetts Department of Environmental Protection, whichever is later, shall issue or deny a permit for the activities requested. If it issues a permit, the Commission shall impose conditions which the Commission deems necessary or desirable to protect the resource area values, and all activities shall be done in accordance with those conditions.

B. The Commission is empowered to deny a permit for failure to meet the requirements of this bylaw; for failure to submit necessary information and plans requested by the Commission; for failure to meet the design specifications, performance standards, and other requirements in regulations of the Commission; for failure to avoid or prevent unacceptable significant or cumulative effects upon the resource area values protected by this bylaw; and where no conditions are adequate to protect those values. Due consideration shall be given to any demonstrated hardship on the applicant by reason of denial, as presented at the public hearing.

C. Permits for maintenance dredging shall expire 10 years from the date of issuance. The applicant shall written notice of dredging at least 30 days prior to each commencement. Such notice shall contain the location of the project, permit number, name of applicant, and proposed start date.

D. (Reserved)

E. To prevent wetlands loss, the Commission shall require applicants to:

(1) Avoid wetlands alteration wherever feasible;

(2) Minimize wetlands alteration by using best management practices (BMPs); and, where alteration is unavoidable,

(3) Require full mitigation for disturbance to the wetland resource area or to the buffer zone. The Commission may authorize or require replication of wetlands or restoration of the buffer zone as a form of mitigation, but only with adequate security, professional design, and monitoring to assure success, because of the high likelihood of failure of replication.

F. Except as provided in MGL c. 131, § 40, for maintenance dredging, a permit shall expire three years from the date of issuance. A permit may be extended for one or more periods of up to three years, provided that a request for renewal is received in writing by the Commission 30 days prior to the expiration of the permit. The Commission may deny the request for an extension and require the filing of a new notice of intent for the remaining work in the following circumstances:

(1) Where no work has begun on the project, except where such failure is due to an unavoidable delay, such as appeals, in the obtaining of other necessary permits.

(2) Where new information, not available at the time the order was issued, has become available and indicates that the order is not adequate to protect the interests identified in MGL c. 131, § 40;

(3) Where work has been done in violation of the order or 310 CMR 10.00.

G. Notwithstanding the above, a permit may contain requirements which shall be enforceable for a stated number of years, indefinitely, or until permanent protection is in place and shall apply to all owners of the land, now and in the future. For good cause the Commission may revoke or modify a permit or determination issued under this bylaw after notice to the holder of the determination or permit, notice to the public and abutters, and a public hearing.

H. The Commission in an appropriate case may combine the permit or determination issued under this bylaw with the order of conditions or determination of applicability issued under the Wetlands Protection Act (MGL c. 131, § 40) and regulations (310 CMR 10.00).

I. No activity proposed in any permit application shall be undertaken until an appeal period of 10 business days under the Wetlands Protection Act has elapsed and the permit issued by the Commission with respect to such activity has been recorded in the Barnstable County Registry of Deeds or, if the land affected is registered land, in the registry section of the land court for Barnstable County, and until the holder of the permit certifies in writing to the Commission that the permit has been recorded.

§ 310-9 Rules and regulations.

A. After public notice and public hearing, the Commission shall promulgate rules and regulations to effectuate the purposes of this bylaw effective when voted and filed with the Town Clerk. Failure by the Commission to promulgate such rules and regulations or a legal declaration of their invalidity by a court of law shall not act to suspend or invalidate the effects of this bylaw.

B. At a minimum these regulations shall define key terms in this bylaw not inconsistent with the bylaw and the procedures governing the amount and filing of fees.[1]

[1] Editor’s Note: Former § 310-9, Definitions, which immediately followed, was repealed 5-5-2014 ATM by Art. 57. See now § 310-2.

§ 310-10 Security.

As part of a permit issued under this bylaw, in addition to any security required by any other municipal or state board, agency, or official, the Commission may require that the performance and observance of the conditions imposed thereunder (including conditions requiring mitigation work) be secured wholly or in part by one or more of the methods described below:

A. By a proper bond or deposit of money or negotiable securities in an amount sufficient in opinion of the Commission and payable to the Town of Harwich. Said security shall be released in whole or in part upon issuance of a certificate of compliance upon completion of the work performed pursuant to a permit.

[Amended 5-5-2014 ATM by Art. 57]

B. By accepting a conservation restriction, easement or other covenant enforceable in a court of law, executed and duly recorded by the owner of record, running with the land to the benefit of this municipality whereby the permit conditions shall be performed and observed before any lot may be conveyed other than by mortgage deed. This method shall be used only with the consent of the applicant.

§ 310-11 Enforcement.

A. No person shall remove, fill, dredge, build upon, degrade or otherwise alter resource areas protected by this bylaw, or cause, suffer, or allow such activity, or leave in place unauthorized fill, or otherwise fail to restore illegally altered land to its original condition, or fail to comply with a permit or an enforcement order issued pursuant to this bylaw.

B. The Commission, its agents, officers, and employees shall have authority to enter upon privately owned land for the purpose of performing their duties under this bylaw and may make or cause to be made such examinations, surveys, or sampling as the Commission deems necessary, subject to the constitutions and laws of the United States and the commonwealth.

C. Upon request of the Commission, the Selectmen and the Town Counsel may take legal action for enforcement under civil law. Upon request of the Commission, the Chief of Police may take legal action for enforcement under criminal law.

D. Municipal boards and officers, including any police officer or other officer having police powers, shall have authority to assist the Commission in enforcement of this bylaw.

E. Any person who violates any provision of these bylaws or any regulations promulgated hereunder, or permits or administrative orders issued thereunder, may be punished by a fine of $300 per violation. Each day or portion thereof during which a violation continues, or unauthorized fill or other alterations remain in place, shall constitute a separate offense, and each provision of the regulations, permits or administrative orders violated shall constitute a separate offense.

[Amended 5-5-2014 ATM by Art. 57]

F. In enforcing this section, the Commission may issue citations under the noncriminal disposition procedure set forth in MGL c. 40, § 21D, which has been adopted by the Town.[1] Members of the Commission, its agent or any police officer are authorized to issue noncriminal disposition citations.

[1] Editor's Note: See Ch. 1, General Provisions, § 1-2.

G. The Commission or its agent may also issue a stop work order and/or an enforcement order, or have the offending party file an after-the-fact notice of intent for the work. The Commission may order the offending party to present a restoration plan that is acceptable to the Commission and to complete the planting on-site during the next growing season.

[Added 5-5-2014 ATM by Art. 57]

§ 310-12 Burden of proof.

[Amended 5-5-2014 ATM by Art. 57]

A. The applicant for a permit shall have the burden of proving by a preponderance of the credible evidence that the work proposed in the permit application will not have unacceptable significant or cumulative effect upon the resource area values protected by this bylaw.

B. Failure to provide adequate evidence to the Commission supporting this burden shall be sufficient cause for the Commission to deny a permit.

§ 310-13 Appeals.

A decision of the Commission under this bylaw shall be reviewable in the Superior Court in accordance with MGL c. 249, § 4.

§ 310-14 Relation to Wetlands Protection Act.

This bylaw is adopted under the home rule amendment of the Massachusetts Constitution and the home rule statutes, independent of the Wetlands Protection Act (MGL c. 131, § 40) and regulations (310 CMR 10.00) thereunder.