[HISTORY: Adopted by the Special Town Meeting
of the Town of Harwich 5-5-2009 by Art. 1. Amendments noted where applicable.]
A.Â
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)Â
Protection of public or private water supply.
(2)Â
Protection of groundwater.
(3)Â
Flood control.
(4)Â
Storm damage prevention (including coastal storm flowage).
(5)Â
Prevention of pollution.
(6)Â
Protection of land containing shellfish.
(7)Â
Protection of fisheries.
(8)Â
Protection of wildlife habitat.
(9)Â
Protection of rare species habitat including rare
plant species.
(10)Â
Protection of water quality.
(11)Â
Erosion and sedimentation control.
(12)Â
Agriculture.
(13)Â
Aquaculture.
(14)Â
Recreation.
B.Â
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).
[Added 5-5-2014 ATM by Art. 57[1]]
A.Â
AGRICULTURE
ALTER
(1)Â
(2)Â
(3)Â
(4)Â
(5)Â
(6)Â
(7)Â
(8)Â
(9)Â
(10)Â
(11)Â
AQUACULTURE
COASTAL BANK
(1)Â
(2)Â
DIADROMOUS FISH
FISHERIES and/or MARINE FISHERIES
(1)Â
(2)Â
FLOOD CONTROL
GROUNDWATER
INLAND BANK
NO-DISTURB ZONE
PERSON
PRIVATE WATER SUPPLY
PUBLIC WATER SUPPLY
RARE SPECIES HABITAT
RECREATION
STORM DAMAGE PREVENTION
SURFACE WATER BODY
VERNAL POOL
WILDLIFE HABITAT
The following definitions shall apply in the interpretation and implementation
of this bylaw:
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.
Includes, without limitation, the following activities when
undertaken to, upon, within or affecting resource areas protected
by this bylaw:
Removal, excavation, or dredging of soil, sand, gravel or aggregate
materials of any kind.
Changing of preexisting drainage characteristics, flushing characteristics,
salinity distribution, sedimentation patterns, flow patterns, or flood
retention characteristics.
Drainage, or other disturbance of water level or water table.
Dumping, discharging or filling with any material which may
degrade water quality.
Placing of fill, or removal of material, which would alter elevation.
Driving of piles, construction, or repair of buildings or structures
of any kind.
Placing of obstructions or objects in water.
Destruction of plant life, including cutting of trees.
Changing temperature, biochemical oxygen demand, or other physical,
biological, or chemical characteristics of any waters.
Any activities, changes or work which may cause or tend to contribute
to pollution of any body of water or groundwater.
Incremental activities which have, or may have, a cumulative
adverse impact on the resource areas protected by this bylaw.
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.
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:
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.
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 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.
Means:
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
The recreational or commercial catching of fish or shellfish
from the ocean or from freshwater bodies.
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.
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.
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.
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:
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.
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.
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.
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.
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.
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.
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.
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.
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.Â
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.
[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.Â
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.Â
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.Â
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.
A.Â
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.Â
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.Â
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.Â
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]
A.Â
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)Â
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)Â
No activities shall commence without receiving and complying with
a permit issued pursuant to this bylaw.
B.Â
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.Â
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.Â
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]
A.Â
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.Â
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.Â
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.Â
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.Â
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.Â
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]
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.
[Amended 5-5-2014 ATM by Art. 57]
A.Â
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.Â
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.Â
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.Â
(Reserved)
E.Â
To prevent wetlands loss, the Commission shall require applicants
to:
(1)Â
Avoid wetlands alteration wherever feasible;
(2)Â
Minimize wetlands alteration by using best management practices (BMPs);
and, where alteration is unavoidable,
(3)Â
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.Â
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)Â
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)Â
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)Â
Where work has been done in violation of the order or 310 CMR 10.00.
G.Â
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.Â
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.Â
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.
A.Â
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.
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.Â
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.Â
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.
A.Â
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.Â
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.Â
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.Â
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.Â
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.Â
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.
G.Â
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]
[Amended 5-5-2014 ATM by Art. 57]
A.Â
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.Â
Failure to provide adequate evidence to the Commission supporting
this burden shall be sufficient cause for the Commission to deny a
permit.
A decision of the Commission under this bylaw
shall be reviewable in the Superior Court in accordance with MGL c.
249, § 4.
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.