Town of Orleans, MA Specific Activities Regulated

For the most part, docks provide private, not public, access to resources which are, themselves, public, and upon which dock construction and use impacts are adverse. Docks and piers are also subject to Orleans Zoning Bylaws.

These adverse impacts cover a broad range. Turbulence and prop dredging generated by boat traffic to and from docks significantly increase turbidity levels that block sunlight necessary for the photosynthetic processes upon which the productivity of our waters depend. Suspended sediments cover shellfish habitat, smothering existing shellfish and altering the quality of the sand bottom essential for spat (mollusk larvae) settlement. Dock structures alter the circulation patterns that affect shellfish settlement. Prop dredging in near shore areas destroys shellfish habitat. Boat traffic generated from docks adds to this disruption and causes erosion of banks and marshes.

Marshes, which provide the food chain for many species of sport and commercial fish and shellfish as well as other wildlife, are also affected. The shaded conditions docks produce can cause a decrease in plant height, population density and leaf thickness as well as alteration of species composition. Reductions in plant density result in loss of sediment normally trapped by roots and culms. Tidal washouts and localized depressions result which concentrate salt through evaporation of trapped water preventing recolonization by the original vegetation. The marsh's ability to absorb wave energy as well as the marsh's contribution toward maintaining ground and surface water quality is also adversely impacted. Displacement of marsh areas by dock pilings and the area immediately surrounding them results in marsh loss. This loss can be substantial when the cumulative impact of increasing numbers of docks is considered.

Docks also impact recreational interests by restricting areas where boating may freely occur.

Cumulative impacts of dock proliferation threaten to decrease the overall productivity of the marsh ecosystem, to reduce its ability to absorb storm wave energy, and to reduce its contribution to groundwater and surface water quality.

Presumptions. Docks are one of the few activities which come before the Commission for regulation which occur entirely within resource areas, i.e., beaches, flats, salt and freshwater wetlands, land under both salt and fresh water bodies, land subject to tidal action, to flooding and to coastal storm flowage. Collectively, these resource areas are presumed significant to all the interests protected under the Act and the Orleans Wetlands Protection Bylaw, Chapter 160. Furthermore, almost without exception, docks occur in ACEC's or in the Town Cove/Nauset estuary system where the performance standard requires that there be no adverse impact upon the interests protected by the Act and Orleans Bylaw.

Pleasant Bay Resource Management Plan.

The Pleasant Bay Resource Management Plan, which has been approved by the Commonwealth of Massachusetts and adopted by the Town of Orleans, provides a framework for state and local permitting of docks and piers in Pleasant Bay. The plan concludes that a significant portion of the shoreline of the ACEC is resource sensitive and not appropriate for siting new docks and piers. In the remaining areas of shoreline within the ACEC, the plan calls for revised standards and criteria to be used in evaluating proposals for docks and piers.

The resource assessment incorporated into the Pleasant Bay Resource Management Plan concludes that the areas listed below are extremely resource-sensitive and therefore are not appropriate for siting new private docks and piers. The resource management plan recommends that the construction of new private docks and piers or the extension of existing private piers be prohibited in these areas. This recommendation does not apply to existing licensed piers or the maintenance of existing licensed piers.

Quanset Pond, from the westerly boundary of the property with Map and Parcel Number 93-9 to the easterly boundary of the property with the Map and Parcel Number 93-12.

On the Northside of Big Pleasant Bay and through the Narrows, from the westerly boundary of the property with Map and Parcel Number 93-17 to the northerly boundary of the property with Map and Parcel Number 89-11, and the Western shore of Sipsons Island from the northerly boundary of the property with Map and Parcel Number 94-7 and all contiguous properties running counterclockwise to the southerly boundary of the property with Map and Parcel Number 94-10.

From the entrance channel of Paw Wah Pond beginning at the southerly boundary of the property with Map and Parcel Number 76-16, and continuing through the River Complex to the southerly boundary of the property with the Map and Parcel Number 64-7, including Paw Wah, Arey's and Meeting House Ponds, the Namequoit River and The River.

Pochet Inlet, from the southerly boundary of the property with Map and Parcel Number 65-02 and continuing northward to the southerly boundary of the property with Map and Parcel Number 52-11, and including the Eastern Shore of Pochet Inlet.

The Pleasant Bay Resource Management Alliance has adopted standards for applications for new docks and piers. The considerations resulting in these standards have equal application to the Inner Cape Cod Bay ACEC and to Town Cove/Nauset Estuary which, under these regulations, is treated as if it were an ACEC.

Requirements.

The dock is located more than 500 feet from any other dock to which the owner has or can obtain legal access.

The dock location is not within a shellfish area identified by the Orleans Shellfish Constable or within shellfish habitat as defined in the Bylaw. No project which would require removal and/or replanting of shellfish in an ACEC will be permitted (310 CMR 10.34).

The depth of water at the dock's seaward end is at least 2.5 feet at all times and is of sufficient depth to be navigable with or without a motor at mean low tide without prop dredging or other disturbance of the bottom except that caused by poling or walking.

The dock shall not impinge upon any channel used by either commercial or recreational boaters and shall not impede navigation in any other way.

The dock is seasonal in construction.

The structure does not impede legitimate passage for fishing, fowling and navigation and sufficient open water is maintained to sustain a variety of activities including but not limited to fishing, swimming and sailing.

The landward approach to the dock must not harm the vegetation on the marsh or bank.

The project is the least intrusive structure which will meet the applicant's goals but will also be the most protective of the wetland resources and values. The applicant must show that all alternatives to the proposed structure have been thoroughly investigated and that the proposed structure will provide at least as great protection to the wetland values cited herein as a less intrusive alternative or the greatest protection to the wetland values cited in the Act and the Bylaw. These alternatives include but are not limited to the use of an offshore mooring with dinghy access, dock sharing, use of a Town dock, reduction in the size of the structure, use of a haul rope and the no-build alternative.

Where possible the proposed structure should serve several lots if by so doing it reduces the total number of structures along the coast and does not increase the density of use which would otherwise obtain. Town docks are exempted.

(10)

The structure must meet the following criteria:

It shall not exceed eighty (80) feet in overall length, including stairs, ramps and floats, measured from mean high water.

It shall not exceed four (4) feet in width as measured from the outside of the structure.

It shall not exceed a height of four (4) feet above mean high water.

Pilings shall not exceed 4 by 4 inches and shall be spaced at least eight (8) feet apart.

(e)

There shall be a minimum of one inch spacing between deck planks.

(f)

The float size shall not exceed three hundred (300) square feet in area and a "T" configuration of the pier and float will be preferred.

(g)

Docks should be sited perpendicular to the coastal bank and, where possible, a north/south orientation will be preferred.

(h)

Docks must be erected no closer than fifty (50) feet from existing boating channels, mooring areas or eelgrass beds.

(i)

Docks must be set back at least fifty (50) feet from the property line, except that docks shared by contiguous properties must be at least fifty (50) feet from the outermost boundary of the contiguous properties.

(j)

No docks should be closer than two hundred fifty (250) feet from the nearest dock or boat ramp.

(k)

Use of nonleaching treated materials is encouraged to prevent the profusion of broken-off, rotted pilings. Installation shall be by boat or floating barge and shall be in accordance with a design and installation plan prepared by a licensed engineer.

(11)

For any dock permitted herein, the applicant must also receive appropriate licenses from the Commonwealth of Massachusetts and the U.S. Army Corps of Engineers. Proof of such licenses shall be forwarded to the Commission before a certificate of compliance will be issued.

(12)

The following special conditions will be applied to all docks:

Human habitation, toilets and the storage of gasoline, oil, grease or other pollutants on any portion of the dock will not be permitted.

No electric lighting will be permitted.

No commercial activity will be conducted on the dock without the prior approval of the Commission.

The dock shall be removed before December 1 and not be reinstalled before April 1. Storage of dock components shall be in a location shown on an approved plan.

Determination of potential shellfish habitat. In areas where it is unknown if the area is likely to be a habitat for shellfish, the applicant may be required to submit evidence of shellfish populations based on a shellfish survey conducted by a qualified shellfish biologist. Survey shall include existing populations of all sizes of commercially important species of shellfish (clams, quahogs, scallops, mussels) and shall also include other species of mollusks that may determine predator/prey relationships and food preferences (i.e., filter feeders or deposit feeders). The presence of these species may indicate the capacity of an area to support commercially important species. The survey shall also include a description of shell fragments to the best extent possible and the survey must also include references to historical information regarding presence or absence of shellfish species.

Maintenance of docks and piers.

Replacement of decking, stringers and railings, ramps or floats will be permitted, in accordance with approved plans on file, as a routine matter. Replacement of pilings, pipes, or other components in the ground will require the filing of a request for determination of applicability. Any construction not in accordance with plans on file will require a notice of intent.

Maintenance of unlicensed docks and piers will require the filing of a notice of intent. Applicants should be aware that the Commonwealth of Massachusetts has the authority to remove any dock that was not properly licensed by October, 1995.

Reinstallation and repair of seasonal docks will be permitted as a matter of course and will require no filing.

Alteration of licensed docks. For any dock licensed by the DEP and approved by the Town of Orleans, any enlargement in height, total footprint including but not limited to addition of size or number of floats, or any movement of the structure relative to its shoreline position, will require the filing of a notice of intent. Changes to the dock must be acceptable to the DEP under the existing license or a new license must be requested and approved before making changes to an existing dock. If a new license is requested, the dock must meet all current regulations for docks.

Licensing of docks and piers.

All existing permanent and seasonal docks and piers in the Town of Orleans must also be licensed by the Massachusetts DEP Division of Waterways, Chapter 91 licensing procedure and by the U.S. Army Corps of Engineers and must also have a valid order of conditions from the Orleans Conservation Commission and the DEP. Owners of unlicensed docks and piers must have filed a notice of intent by September 30, 1996.

Amnesty licensing. Under the amnesty licensing procedure for all unlicensed docks, either in or outside of an ACEC, a notice of intent shall be required accompanied by an engineered plan and providing the information required in the EOEA Pier Guidelines Checklist and in the list of submission requirements prepared by the Orleans Conservation Commission. The engineered drawing is to be on the dock as it presently exists. The only changes in an existing dock design that the Commission will consider are those which reduce the scope and impact of the project.

Interim licensing. Interim licensing must meet the same requirements listed above under amnesty licensing unless the applicant can show that the dock is of such minimal proportions and impact that a lesser application will suffice to provide the Commission with adequate baseline information on the dock's structure, its location and its environmental impacts.

Section 196A-8B of these regulations sets specific performance standards for ACECs and adds the Nauset/Town Cove estuary as requiring no adverse impact on the resources.

Approval of existing unlicensed or licensed docks or new docks. Approval and issuance of an order of conditions for an unlicensed dock, even if existing, is not guaranteed and the Commission will consider the structure under current regulations. Approval of a licensed dock will take into consideration the Chapter 91 license, but where the Commission finds egregious environmental impacts such as loss of shellfish habitat or prop scour or the structure is clearly over-designed, the Commission may deny the project and require its removal or alteration. An applicant will have the burden of demonstrating by a preponderance of credible evidence that there will be no adverse effect either immediate or cumulative.

§ 196A-11.1 Walkways.

Definition and general restrictions.

A walkway is an elevated or at-grade structure used as a walkway to traverse fresh or salt meadow, marsh, bank, dune, or beach. It differs from a dock in that it begins and terminates above mean high water, even though it may cross over a point that is below mean high water.

A walkway may not be attached to a float or structure which would facilitate its use by boat.

A walkway may not be permitted in the future as a pier or a dock unless it meets all the criteria for a new dock.

Performance considerations. A walkway may be permitted in cases where it can be demonstrated to improve the condition of a resource area and when such demonstrated improved condition exceeds the benefit that could be reasonably expected from a restoration effort; or where it can be demonstrated that irreparable erosion and destabilization of a resource area would result from informal access. The owner of the property on which the structure is proposed should submit for review a notice of intent and any other required applications, including clear delineation of property boundaries. In demonstrating the potential improved condition of or preventive benefit to the resource area, the following potential impacts must be considered:

The extent of existing erosion or degradation of vegetation or substrate resulting from foot traffic must be evaluated. Reasonable efforts to regenerate damaged resource areas should be fully explored.

The presence or absence of habitat must be determined. There should be no loss or degradation of habitat for shellfish, finfish, birds, reptiles or other animals, or of fish runs resulting from the proposed structure.

There should be no detrimental impacts on vegetation caused by the proposed structure.

There should be no significant alteration in wind patterns and littoral processes resulting from the proposed structure.

There should be no undue detriment to public views resulting from the proposed structure.

There should be no loss or degradation of public access opportunities resulting from the proposed structure.

There should be no other detrimental impact caused by the proposed structure.

The cumulative effect of the proposed structure must be considered. Cumulative effects are the combined effects of Subsection B(1) through (7) of all existing structures within the same resource system.

Impacts on the resource from the use of the proposed structure must be determined. The frequency, volume and intensity of use must justify the need for the structure. Shared use structures are to be encouraged as a means to provide access to the shore while minimizing the number of structures that might otherwise be permitted.

Design standards for walkways.

Setbacks.

Setbacks from property lines and structures provide a way to reduce density, and the associated intensity of impacts on resource areas, and to encourage shared use structures.

A walkway should be located where it will have the least impact on or can improve the condition of a resource area. A setback of one hundred, but no less than fifty, feet from the property boundaries is preferred unless the structure will be owned and used by two or more contiguous property owners. In such cases the setback requirement may apply to the outermost boundaries of the two or more contiguous properties so that the structure may be placed on a shared property line.

The structure must be at least 500 feet from another structure to which the owner has or can reasonably obtain legal access.

Height and width.

The height of the structure at all points above the marsh shall be equal to or exceed the width of the deck. For the purpose of this condition, height shall be measured from the marsh substrate to the bottom of the longitudinal support beam. The height shall not go above three feet or below one foot as measured from the substrate or, in the case of a creek, mean high water. The laying of planks directly on the ground or substrate is prohibited.

The height of a structure is necessary to allow sufficient light penetration to underlying vegetation, and to prevent storm damage. The height maximum is to protect the natural appearance of the resource area. Similarly, the width limitation is intended to limit adverse impacts on vegetation.

Plank spacing. No less than three-quarter-inch spacing is required between planks to allow light penetration for vegetation. Alternate decking material may be used if it provides a similar or greater degree of light penetration.

Pile size and spacing. Piles shall not exceed 4 inches by 4 inches and should be spaced a minimum of eight feet apart to minimize the impact of installation to the underlying substrate. The use of helical or other alternate technology pilings, or seasonal stub piles, that can be demonstrated to minimize impacts on the substrate, should be encouraged.

Railings. The use of railings should be avoided unless a need can be demonstrated or to conform to the applicable building code.

Orientation. A north to south orientation of the structure results in maximum sunlight penetration to underlying vegetation, and is preferred wherever feasible.

Seasonal installation is encouraged. Permanent 4 by 4 stub piles with removable planks or sections are preferred to prevent storm damage to the structure and potential impacts from storm debris on the adjacent marsh area. The term "seasonal" is intended to mean six months or, generally, May 1 through October 31. Permanent structures may be permitted in cases where the structure will be used consistently year-round, or in cases where more than one property owner is sharing use of the structure.

Materials. Use of nonleaching materials such as plastic lumber and other such building materials that do not leach pollutants into the aquatic ecosystem are preferred over CCA-treated lumber. Use of treated materials is allowed because they minimize the incidence of rotting in structures. Creosote-treated lumber is prohibited.

Installation. Installation should be accomplished with minimal disturbance to surrounding soils or vegetation, using methods in the applicable order of conditions, as determined on a case-by-case basis. A design and installation plan approved by a licensed engineer or surveyor is preferred.

(10)

Storage. All removable portions of seasonal structures must be removed using practices that minimize impacts on the resource, and be stored outside the resource area unless otherwise specified in the applicable order of conditions.

(11)

Lighting. No electric lighting will be permitted.

ACEC. In an ACEC the no adverse effect performance standard shall apply.

§ 196A-11.2 Docks in freshwater resource area.

Definitions.

A dock in a freshwater resource area is an elevated structure used to access the water beyond the shoreline. Note that a walkway which is located above mean annual high water in a freshwater resource area should not be allowed to have affixed to it a float or raft that would extend the use of the structure below mean annual high water where it could function like a dock without meeting the requirements contained within this regulation.

Freshwater resource areas encompass, but are not limited to, all ponds, great ponds, rivers, intermittent streams, and bordering vegetated wetlands (BVW). Some of these resource areas may be brackish through connections to saltwater bodies. Shoreline structures that are proposed below mean high water within great ponds must obtain a Chapter 91 License from the Massachusetts Department of Environmental Protection (DEP).

Performance considerations. All naturally formed ponds and lakes on Cape Cod are groundwater fed and therefore the presumption is that a pond or lake is a coastal plain pond with characteristics including concentric bands of coastal plain pond vegetation, gentle sloping shoreline, and fluctuating water level. Therefore, a new or expanded dock in a freshwater resource area may only be permitted in cases where an improvement to the condition of the resource area can be demonstrated and when such demonstrated improved condition exceeds the benefit that could be reasonably expected from a restoration effort. This presumption can be overcome using verifiable evidence from a credible source. A dock may be approved where it can be demonstrated that irreparable erosion and destabilization of a resource area would result from informal access.

New or expanded structures are not allowed if any of the following criteria apply:

The presence of rare, endangered or threatened species has been documented within 100 feet of any portion of the proposed structure.

Where in the judgment of the Commission the small size of the water body or the proximity of reasonable access alternatives makes a structure unnecessary.

Where in the judgment of the Commission a structure is unnecessary to protect and maintain wetland resources, and particularly the exemplary habitat communities and BVW noted above.

In the event that none of the foregoing criteria apply, a proponent must be able to demonstrate to the satisfaction of the Commission that the proposed structure is able to meet the following performance criteria:

There should be no adverse effect on, loss or degradation of habitat for shellfish, finfish, birds, reptiles or other animals, or of fish runs resulting from the proposed structure.

There should be no adverse effect on submergent or emergent vegetation or BVW caused by the proposed structure.

There should be no adverse effect on water circulation patterns caused by the proposed structure that could result in a decrease in water quality.

There should be a sufficient depth of water at the terminus of the proposed structure to prevent damage to emergent or submergent vegetation.

(e)

There should be no adverse effect on the visual character of the shoreline area resulting from the proposed structure. To the extent practicable, applicants should apply the methodology for assessing visual impacts described in the Cape Cod Commission's Visual Impact Assessment Technical Bulletin.

(f)

There should be no adverse effect on public access opportunities resulting from the proposed structure.

(g)

The cumulative effect of the proposed structure should not result in an adverse effect on wetland resources. Cumulative effects are the combined effects [Subsection B(2)(a) through (f)] of all existing structures within the same water body.

Supporting documentation. In order to assess the applicability of any of the criteria noted above, the proponent must provide all required applications and supporting documentation, including clear delineation of property boundaries, to the Commission. Documentation should be provided to address the site conditions described below.

Existing conditions. The slope and vegetative survey of terrain from observed mean annual low water to the upland edge of bordering vegetated wetland (BVW) (as defined in 310 CMR 10.55) should be evaluated. The extent of existing erosion or degradation of vegetation or substrate (underlying soils) resulting from foot traffic must be evaluated. Reasonable efforts to regenerate damaged resource areas should be fully explored and documented.

Characterization of the water body. The size (acreage) of the water body should be documented. Observed mean annual high water and observed mean annual low water should be documented based on measurements, taken between April 15th and May 15th and between August 15th and September 15th, respectively, and provided to the permit granting body along with groundwater and precipitation data for the year of measurement and the preceding nine years, so that the Commission may determine how characteristic these measurements are of annual levels. Topography and depth of water should be shown in one-foot contours from the upland edge of the BVW to five feet beyond the terminal point of the proposed structure.

Wildlife habitat. The presence or absence of wildlife habitat must be determined. A comprehensive inventory of fish and wildlife, including fisheries, shellfisheries, reptiles, amphibians and other wildlife located within fifty feet laterally from any edge of the proposed structure, conducted by a qualified professional, should be provided.

Vegetation in wetlands. A comprehensive inventory of emergent and submergent vegetation and BVW fifty feet laterally from any edge of the proposed structure, conducted by a qualified professional, should be conducted during the growing season and provided.

Rare and endangered species. Given the delicate and migratory nature of some rare species, the presence or absence of rare or endangered species must be determined through a site survey by a qualified professional. Copies of notice to the Massachusetts NHESP and all responses to the notice from NHESP are required.

Monitoring. Photographs of the surrounding area should be taken before and after initial installation, and on an on-going basis to be determined by the Conservation Commission and specified in the order of conditions.

Use. Impacts on the resource from the use of the proposed structure should be determined. The type, frequency, volume and intensity of use must justify the need for the structure. Secondary impacts Subsection B(2)(a) through (f) should be evaluated to determine impacts from use. Shared-use proposals (i.e., a single structure jointly owned and used by two or more waterfront property owners) are generally to be encouraged as a way of providing access to the water body while reducing the overall number of structures that might otherwise be permitted.

Design standards for docks in freshwater resource areas. The general performance standard for docks in freshwater resource areas shall be the same as in an ACEC no adverse effect. In general, a proposed structure should be designed and constructed so as to cause no adverse effect on the local resource area ecology, including but not limited to, wildlife, fisheries, and BVW. In all cases, structures should be designed to minimize the overall size wherever possible. No structure should be allowed that is designed to accommodate vessels that are not feasible or allowed in the body of water where the structure is proposed.

Width. The width of the structure should not exceed 3 feet at any point.

Length. The length of the structure should be the minimum needed to reach minimum required water depth [see Subsection D(4) below] and clear emergent vegetation. In cases where additional walkway access is warranted to traverse BVW, such additional walkway area should be designed pursuant to Guidelines for Private Walkways and Stairways in Fresh and Marine Resource Areas In Pleasant Bay.

Height. The height of the structure should be no less than two and one-half feet, above the existing grade of the BVW or land under water as measured from the bottom surface of decking.

Water depth. Water depth at the terminal end of the structure should be at least one (1) foot. For water bodies that allow motorized vessels there should be a terminal water depth of 2.5 feet.

Total area. The total area of the walkway and dock structures should be the minimum needed to meet performance standards.

Orientation. Structures should be designed to be located as close to perpendicular to the shoreline as possible. If this requirement cannot be met, the structure should have a grated or transparent surface to allow light penetration. Structures should be designed to have a north-to-south orientation whenever possible. Structures with an east-to west orientation should have a grated surface to allow maximum light penetration.

Setbacks. Structures should be located a minimum of 50 feet from any property line, as measured from the nearest edge of the structure, and should be a minimum of 250 feet from any pre-existing shoreline structure or Town- or association-owned landing. Setback requirements may vary for structures shared by two or more property owners, provided that setback requirements for nonparticipating property owners are maintained.

Seasonality. All structures should be seasonal in nature and should be installed no earlier than May 1st and removed no later than November 1st. All seasonal components should be securely stored at an upland site that is approved by the Conservation Commission.

Pile size and spacing. Pilings, if used, should be four inches by four inches and should be spaced eight feet apart unless the dock is shorter than eight feet. Some innovative design technologies, if used, may not require pilings. However, if pilings are used they should be driven to refusal; no pilings may be jetted.

(10)

Materials. Lightweight materials, such as aluminum, are preferred for their easy removal. Grated surfaces are preferred, to allow maximum light penetration. If planks are used, spacing should be a minimum of 3/4 inches.

(11)

Handrails. Docks should not have handrails unless a compelling safety issue or code requirement necessitates their use.

(12)

Utilities. No utilities or lighting should be allowed on the structure.

(13)

Storage of hazardous materials. Storage of gasoline, oil, grease, pollutants or other hazardous materials on the structure should be prohibited.

(14)

Innovative structures. Innovative structures and materials that can be demonstrated to have less impact on natural resources and public safety than traditional docks may be considered.

§ 196A-12 Coastal Erosion.

[Amended 4-26-2017]

Preamble.

Coastal banks are likely to be significant not only to the interests protected under state law, i.e., storm damage prevention and flood control as cited in 310 CMR 10.30, but to other wetland values protected under the Orleans Bylaw (§ 160-1) i.e., erosion and sedimentation control, fisheries, shellfish habitat, wildlife habitat, recreation and aesthetics. There are adverse impacts on these protected interests when the coastal shoreline is cut off, by revetments or other erosion control measures, from the natural systems of which it is a part.

Among these adverse impacts can be loss or lowering of beaches, or deprivation of bank sediment which would normally be moving in the littoral drift. Limited or altered access along the shoreline impacts hunting, fishing and passive and active recreational opportunities. Wildlife habitat is also destroyed or affected when natural bank vegetation is altered. The aesthetic value of a natural shoreline may also be substantially reduced.

Loss of sand from previously eroding banks may result in the gradual drowning of marshes and changes in shellfish habitat and fisheries, as well as loss of nutrients to these resources. Also marshes which would normally follow an eroding and retreating coastal bank can be blocked by erosion control measures, and their continued growth and health limited.

Presumptions.

When a proposed project involves dredging, removing, filling or altering a coastal bank, the Conservation Commission shall presume that the area is significant to the interests protected under the Orleans Bylaw. This presumption may be overcome by clear and convincing evidence that a coastal bank does not play a role in the protection of these interests and if the Orleans Conservation Commission makes a written determination to that effect.

COASTAL ENGINEERED STRUCTURE (CES)

The Commission further presumes a coastal bank is significant to storm damage prevention and flood control both because it is a vertical buffer to stormwaters and because it supplies sediment to coastal beaches, coastal dunes or barrier beaches. This presumption can be overcome only by a clear showing that a coastal bank does not play a role in the protection of one or more of these interests. This showing may include but may not be limited to studies of bank composition, erosion rate, destination or eroding materials and historical data.

Coastal banks significant to storm damage prevention and flood control as vertical buffers and as sources of sediment to coastal beaches, dunes and barrier beaches. Where a coastal bank is significant to storm damage prevention and flood control, both because it is a vertical buffer to stormwaters and because it supplies sediment to coastal beaches, dunes, or barrier beaches, no new bulkhead, revetment, seawall, groin, or other coastal engineering structure shall be permitted on such coastal bank except that the Orleans Conservation Commission has the discretion to permit such structure if, in its judgment, such structure is required, and there is no reasonable alternative method of protection, to prevent storm damage to buildings constructed prior to August 10, 1978 [see 310 CMR 10.30(3)] and buildings reconstructed subsequent to that date but prior to the adoption of these regulations, unless the orders of conditions under which such reconstruction was performed contain a prohibition against construction of such a structure, including but not limited to bulkhead, revetment or seawall.

Coastal banks significant to storm damage prevention or flood control as vertical buffers to stormwaters. Where a coastal bank is determined to be significant to storm damage prevention or flood control solely because it is a vertical buffer to stormwaters, and such bank is not found to be significant to storm damage prevention or flood control because it supplies sediment to coastal beaches, dunes, or barrier beaches, the Orleans Conservation Commission may, but is not required to do so, permit construction of bulkheads, revetments, seawalls, gabions, groins, or other coastal engineering structure that is designed to alter wave, tidal, or sediment transport processes in order to protect inland or upland structures from the effects of such processes provided that such structures qualify for protection under § 196-12H or I.

Conditions governing new construction within 100 feet of the top of a coastal bank. The order of conditions and the certificate of compliance for any new building within 100 feet landward of the top of a coastal bank permitted by the issuing authority under MGL c. 131, § 40, or the Orleans Wetlands Protection Bylaw and these regulations, shall contain the following specific condition: "No coastal engineering structure shall be permitted on an eroding bank at any time in the future to protect the project allowed by this order of conditions."

Definitions. As used in this section, the following terms shall have the meanings indicated:

BUILDING

The term building includes dwellings and structures essential to commercial operations. The term does not include tennis courts, boathouses, outbuildings, etc. protection of which will be considered on a case-by-case basis.

Means, but is not limited to, any breakwater, bulkhead, groin, jetty, revetment, seawall, weir, riprap, gabions, or any other structure that is designed to alter wave, tidal, or sediment transport processes in order to protect inland or upland structures from the effects of such processes, which shall also include gabions or other structures that effect these processes.

DISTANCE OF THE BUILDING FROM THE TOP OF THE BANK

That distance from the top of the bank to the foundation of the building, not to include decks or foundations or footings under decks.

NEW BUILDING

A new structure, or one of which over 25% of the structure measured by square footage of the foundation, or cubic footage of the structure, has been altered or rebuilt. This definition is applicable only to construction commenced on the date of the adoption of these regulations and thereafter.

STRUCTURES

SOFT STRUCTUREAn erosion control solution comprised entirely of biodegradable materials designed to stabilize a bank and slow the rate of erosion without significantly altering wave, tidal or sediment transport processes and with minimal increase to the existing slope of the bank. Soft structures may include the use of fiber rolls, sand, and/or sandbags, and should be stabilized with plantings of indigenous vegetation as soon as practicable to minimize further erosion.

[ Amended 4-26-2017]

HARD STRUCTUREPermanent bulkheads, revetments, seawalls, gabions, groins, or other coastal engineered structures (CES).

General guidelines.

The Conservation Commission puts emphasis on allowing a coastal bank's natural processes to continue for as long as possible before coastal erosion controls are applied for.

Coastal engineered structures (CES) may be permitted only after the applicant has shown there are no feasible alternatives. The applicant may be required to show that alternatives, such as soft structures, have been tried and failed.

Coastal engineered structures (CES) must be as low and short as consistent with toe protection. Structures designed for complete protection against catastrophic storms, and lot line to lot line protection will be closely scrutinized.

A "return" must be designed to avoid end scour on neighboring land and to prevent flanking of the structure. The Commission shall require that the return be setback from the applicant's lot line to prevent accelerated erosion on the abutter's property.

Multiple projects: Where submitted jointly, these guidelines will be applied as closely as feasible, but with special consideration of a systems approach.

Chink stone may be permitted only where the applicant can prove by clear and convincing evidence that the stone will remain in place. The applicant will be responsible for the removal of such stone that is scattered on the beach in violation of this requirement.

Soft structures that incorporate fiber rolls shall be required to have ID tags sewn on all coir rolls when they are installed to ensure proper ID and disposal if the rolls are dislodged from the project site.

Banks characterized by non-storm lunar cycle wave action and a normally steady rate of erosion. In determining whether the bank complies with the above description, the Commission shall look at the state of bank vegetative cover and the locations of mean high water and spring high tide. Where these locations intersect with the toe of the bank, the Commission shall presume that the banks are normally subject to regular wave action and the following standard shall apply:

No CES will be permitted if the building to be protected is more than 20 years away from the top of the bank based on the long-term average annual erosion rate. For example, if the annual erosion rate is two feet per year or more and the structure is 40 feet or less from the top of the bank, the Commission may consider permitting a CES where there are no feasible alternatives and other conditions had been met.

Where the applicant is unable to document the erosion rate, no CES shall be permitted where the building to be protected is more than 40 feet from the top of the bank or until monitoring the erosion shows an erosion rate that would expose the building foundation in 20 years or less.

Banks subject to erosion primarily from episodic storms.

Where the distance from the building foundation to the top of the bank is greater than 40 feet, only soft solutions will be permitted.

If the distance from the building foundation to the top of the bank is less than 40 feet, a CES may be allowed. However, the greater the distance the building is from the top of the bank, the lower the height of the CES should be. Notwithstanding the above, the height of the CES may be such that following storm-induced bank erosion, or a slump above it, at least 30 feet should remain between the building foundation and the top of the bank.

Where a coastal bank is subject both to episodic storms and steady erosion from lunar cycle tides, protection may be approved for the more severe threat.

§ 196A-13 Staircases over coastal and inland banks.

Preamble.

Informal access over coastal and inland banks may cause erosion and destabilization. Where access improvement is permitted to avoid erosion problems, those improvements shall be minimal and as unobtrusive as is consonant with safe and environmentally sound access. Accessory structures such as recreational or storage decks will not be permitted, and the following guidelines must be observed.

A stairway or stairs is considered any single or set of steps, and any platform or landing connected thereto, connecting different levels to traverse a dune, bluff or coastal bank or other slope.

The choice of whether stairs are to be designed to be dug into the ground or elevated is site specific and depends on factors such as the grade of slope, composition of the substrate, nature of vegetation. The benefits of "dug-in" stairs include their ability to allow vegetative cover, minimal visual impact, tendency to slow the erosion effects of rainfall, and their durability. Elevated stairs may at times be preferred to protect vegetation, or due to the steep slope of a bank.

The stair structure should be located where it will have the least impact on or can improve a resource area. Unless vegetation and contour of slope dictate otherwise, a minimum setback of twenty-five feet from the property boundaries is preferred unless the stairway will be owned and used by two or more contiguous property owners. In such cases the setback requirement shall apply to the outermost boundaries of the two or more contiguous properties so that the stairway may be placed on a shared property line.

In an ACEC the no adverse effect performance standard shall apply.

General conditions.

The stair structure shall be no more than four feet in overall width including but not limited to the supporting posts and handrails, if any.

The structure shall remain unpainted in order to preserve as far as possible the natural appearance of the bank. If nonwood materials are used they should be of a color that will blend in with the natural surroundings.

Railings or handrails shall be allowed if deemed necessary or to conform to the applicable building code.

The stairway must be at least 500 feet from another stairway to which the owner has or can reasonably obtain legal access.

Submerged (dug into ground) treads or risers.

A staircase that is dug into the ground shall follow the slope profile. Treads or risers must be level to prevent erosion. The stairway may be straight or serpentine.

Treads or risers that are not tied into stairway side supports may be permitted with adequate switch backs to prevent erosion.

Use of nonleaching material such as plastic lumber or other such building materials that do not leach pollutants into the aquatic ecosystem are preferred over CCA-treated lumber. Use of treated material is allowed because it minimizes the incidence of rotting in structures. Creosote-treated lumber is prohibited.

Where the Commission finds, due to the height or steepness of the bank, or other factors, that a resting landing is justified, that landing shall meet the above width requirement and shall seat no more than two individuals.

Construction of the stairway must be capable of compliance with the orders of conditions issued by the Commission.

Elevated stairways.

A staircase shall follow the slope profile as closely as possible; provided, however, that with the exception of the supporting posts, no portion of the proposed stairway shall be closer than one foot from the ground. Plans submitted must show the contours and how compliance will be accomplished.

The stairway shall have no risers and there shall be a minimum of one-half inch spacing between deck planks in order to permit light penetration and encourage vegetation.

Any wood preservative must be nontoxic.