A. 
Applicants proposing alteration of 100 square feet or more of any area subject to the jurisdiction of the bylaw may be required to replace not only the function of the area to be disturbed, but also its physical properties, characteristics, and vegetative cover. Inability to do so may be cause for denial. Areas subject to the jurisdiction of the bylaw are presumed to be significant to the values protected by the bylaw until it is demonstrated otherwise by a preponderance of credible evidence to the contrary.
B. 
The introduction, purpose and performance standards stated in the WPA regulations, 310 CMR 10.51 through 10.60, shall apply except as stated below.
As expressed in § 240-1 of the bylaw, the Commission seeks to establish measures to protect the Town's wetlands and ensure that their values, as listed in the bylaw, are maintained. The following measures are required to prevent a net loss of wetlands and their values.
A. 
Rationale for no net loss policy. Natural wetlands perform many functions and it is not possible to replicate all of them. Furthermore, it is difficult even to determine which functions are most probably or exclusively being performed in a given wetland area. Therefore, destruction or alteration of wetlands should only be undertaken most cautiously and only as a last resort. Applicants are advised that the Commission will require wetland replication based on the latest available scientific information and practices and will require replication on at least a 2:1 basis in order to increase the likelihood of success of the replication effort. Design of replacement wetlands should be based upon a quantitative showing of the functions operating in the natural wetland.
B. 
Sequence to prevent wetland loss. The applicant shall submit an analysis of alternatives, with the following "sequencing" approach used to evaluate any proposed wetland loss:
(1) 
Avoidance. A permit will be issued only for the least environmentally damaging practicable alternative. It is the obligation of the proponent to present this alternative for any non-water-dependent activity. Compensatory mitigation or wetland replication will not qualify as avoidance.
(2) 
Minimization. Once the test of avoidance has been met, a proposal should minimize its adverse impacts through project modifications. It is the burden of the applicant to take all appropriate and practicable steps to minimize the impacts.
(3) 
Mitigation. After the avoidance and minimization tests have been met, all lost wetlands and resource areas shall be restored or replicated to previous natural vegetated conditions or better on at least a 2:1 basis, with the focus being on replacement or restoration of function and acreage. All mitigation shall be performed in South Hadley.
The Commission, at its sole and reasonable discretion, may issue a permit for the limited projects identified in the WPA regulations, 310 CMR 10.53(3), with the same or additional performance standards, such as limits on road width, location or number of driveway crossings. The Commission has the discretion to permit with conditions as needed to ensure that the interests of the bylaw are protected.
A. 
Definition; critical characteristics.
(1) 
Freshwater wetlands shall include both bordering and isolated vegetated wetlands. Isolated vegetated wetlands are areas that meet the definition and critical characteristics of bordering vegetated wetlands as described in WPA regulations, 310 CMR 10.55, but do not border on a creek, river, stream, pond or lake. They exist as "pockets" of wetland vegetation that are supported by hydric soils and/or hydrologic conditions.
(2) 
Isolated vegetated wetlands protected under the bylaw must be at least 500 square feet in area. In addition to the minimum size requirement, isolated vegetated wetlands must also meet at least two of the following three criteria:
(a) 
The vegetation community consists of at least 50% or more wetland indicator plants as listed in the U.S. Fish and Wildlife Service's National Wetlands Inventory Plant List for Massachusetts. Wetland indicator plants are classified by the U.S. Fish and Wildlife Service into the following categories: Facultative, Facultative Wetland, or Obligate Wetland based on the estimated percentage of the time they occur in wetlands under natural conditions.
(b) 
Presence of indicators of hydrology such as, but not limited to: site inundation or saturation, water marks, drift lines, sediment deposits, oxidized rhizospheres, water-stained leaves, shallow root systems, buttressed tree trunks, or recorded hydrogeologic data (stream gauge, aerial photo, or other).
(c) 
Presence of hydric soils, as determined by National Resource Conservation Service hydric soil list and the manual Field Indicators for Identifying Hydric Soils in New England.
(3) 
Freshwater wetlands are likely to be significant to the following interests: protection of public or private water supply, protection of groundwater, flood control, erosion and sedimentation control, storm damage prevention, prevention of water pollution, protection of fisheries and wildlife habitat, and rare species habitat, including rare plant species, and recreation and agriculture values.
(4) 
Freshwater wetlands are South Hadley's most important habitat for wildlife. The hydrologic regime, plant community composition and structure, soil composition and structure, topography and water chemistry of freshwater wetlands provide important food, shelter, migratory and overwintering areas, and breeding areas for many birds, mammals, amphibians, and reptiles. A wide variety of vegetative wetland plants, the nature of which are determined in large part by the depth and duration of water, as well as soil and water composition, are utilized by varied species as important areas for mating, nesting, brood rearing, shelter, and (directly and indirectly) food. The diversity and interspersion of the vegetative structure is also important in determining its nature and use for wildlife habitat.
B. 
Presumption of significance. Where a proposed activity involves the removing, filling, dredging, or altering of a freshwater wetland, the Commission shall presume that such an area is significant to the values described in the bylaw and Subsection A of this section. This presumption may be overcome upon a showing of clear and convincing evidence demonstrating that the freshwater wetland does not play a role in the protection of said interests. In the event that the Commission determines that the presumption has been overcome, it shall make a written determination to that effect, setting forth its grounds. This determination may be overcome at a later date by a change in the site and reconsideration of its functions.
C. 
Performance standards for freshwater wetlands.
(1) 
Any proposed work in a freshwater wetland shall not destroy or otherwise impair any portion of said wetland. The cutting of vegetation within a freshwater wetland in order to maintain a specific successional stage, such as a wet meadow, or for removal of invasive plants, may be permitted at the Commission's sole discretion, through the filing of a notice of intent and subsequent order of conditions, as part of a management plan approved by the Commission. In addition, and at its sole discretion, the Commission may issue an order of conditions allowing work that results in the loss of up to 5,000 square feet of freshwater wetland when said area is replaced in accordance with the following conditions and any additional, specific conditions the Commission deems necessary to ensure that the replacement area will function in a manner similar to the area that will be lost.
(2) 
In situations where wetlands loss is unavoidable, a compensatory wetland area shall be provided that is at least twice the size of the lost area; is at or below the same elevation; has the same hydrology and surface water elevation; has the same hydrologic connection to a water body; and is vegetated within two growing seasons with a plant community of at least 75% cover consisting of the same native plant community type and similar species composition to the lost area; and demonstrates a hydrologic regime similar to the lost area within two growing seasons. The Commission may require detailed plans, professional oversight of construction, monitoring for two years, completion of the replication before the project begins, and other conditions as needed to maximize the chance of a successful replication.
(3) 
Isolated vegetated wetlands have a fifty-foot no-disturbance conservation zone the same as bordering vegetated wetlands, unless they qualify only as vernal pools, in which case they follow the setback distances described in § 305-26. The one-hundred-foot buffer zone of an isolated vegetated wetland shall have the same performance standards as described below for buffer zones of other wetlands.
A. 
Definition; critical characteristics.
(1) 
Vernal pools and their associated one-hundred-foot buffer zones are likely to be significant to the protection of wildlife habitat and rare animal habitat. Vernal pools constitute a unique and increasingly rare type of wetland that is used by many species of wildlife, some of which are totally dependent on vernal pools and the surrounding upland area for their survival. The area within 100 feet of a vernal pool is considered vernal pool habitat. These areas provide the "obligate" vernal pool species with important non-breeding habitat functions, such as migratory pathways, feeding, shelter, and over-wintering areas. Many other species utilize vernal pools and vernal pool habitat for breeding and non-breeding functions as well, although they are not restricted to this type of wetland. The protection of vernal pools and vernal pool habitat is essential for the survival of wildlife species that depend on these unique and threatened resource areas. Vernal pools do not need to be certified by the NHESP to be protected under the bylaw and regulations, but must be "certifiable" according to the criteria described in these regulations. The conservation zone for vernal pools under the bylaw is based on the size of the pool, although size does not necessarily indicate value. Vernal pools less than 10,000 square feet in size are protected with a twenty-five-foot conservation zone, and those 10,000 square feet and greater in size have a fifty-foot conservation zone.
(2) 
Vernal pools exhibit great variation in physical, geographic, hydrologic and vegetative conditions, which makes it difficult to easily define them. A vernal pool is a temporary freshwater body which in most years holds water for a minimum of two continuous months, and is free of established, reproducing fish populations. The boundary of a vernal pool is the perimeter of the largest observed or recorded volume of water confined in said area. In the event of conflict of opinion regarding the extent of water confined in the basin, the Commission shall follow the procedures described for vernal pools in the WPA regulations, 310 CMR 10.57(2)(a)6 and 10.57(2)(b)3. A vernal pool is protected under the bylaw if it is shown on the South Hadley Vernal Pool Map in Appendix D[1] and meets one of the following criteria:
(a) 
The vernal pool has been certified by the NHESP.
(b) 
The vernal pool contains evidence of breeding of any one or more of the following obligate indicator species: spotted salamander, blue-spotted salamander, Jefferson salamander, marbled salamander, wood frog, or the presence of fairy shrimp, and evidence that the pool meets the physical criteria described in the NHESP Guidelines for the Certification of Vernal Pool Habitat.
(c) 
In the absence of obligate indicator species, the vernal pool contains evidence of breeding by at least two of the following facultative indicator species: spring peeper, American toad, gray treefrog, or Fowler's toad, and meets the physical criteria described in the NHESP Guidelines for the Certification of Vernal Pool Habitat.
[1]
Editor's Note: Appendix D is included as an attachment to this chapter.
B. 
Timing of evidence collection and type of evidence.
(1) 
Many of the indicators of vernal pools are seasonal. For example, most salamander egg masses are only found between March and May, except marbled salamanders which breed in the fall. Wood frog chorusing usually occurs between late March and late May, and often at night. Not all animals breed every year, depending on site and seasonal conditions, so evidence may be sparse or lacking in some years. Consequently, failure to find evidence of breeding must be tied explicitly to those periods during which the evidence is most likely to be available.
(2) 
Accordingly, in the case of challenges to the presumption of a vernal pool designation, the Commission may require that the determination be postponed until the appropriate time period consistent with the evidence being presented. The Commission may require its own site visits or those of a professional as necessary to confirm the evidence or lack thereof.
(3) 
Type of evidence accepted to verify an area as a vernal pool will be the same as described by the NHESP for its certification program. In addition, the Commission may accept as evidence a statement signed under penalties of perjury attesting to the presence of vernal pool obligate indicator species in a pool, from a competent source.
C. 
Presumption of significance. Where a proposed activity involves the removing, filling, dredging, or altering of a vernal pool or its one-hundred-foot buffer zone, the Commission shall presume that the vernal pool and its one-hundred-foot buffer zone are significant to the protection of wildlife habitat and rare species. This presumption is rebuttable by a showing of clear and convincing evidence that the vernal pool or its buffer zone does not play a role in the protection of said interests. When such evidence is based on the absence of any obligate or facultative indicator species, the Commission may require documentation of such absence of evidence from the spring time of two different years. In the event that the presumption is deemed by the Commission to have been overcome, the Commission shall make a written determination to this effect, setting forth its grounds. The determination that the basin is not a vernal pool is not permanent, and may be overcome at a later date by the criteria listed in Subsection A above.
D. 
Performance standards for vernal pools. When the presumption set forth in Subsection C of this section is not overcome, the following standards shall apply to vernal pools, their one-hundred-foot buffer zone, and their twenty-five-foot or fifty-foot conservation zones:
(1) 
No alteration of vernal pools will be permitted that will have an adverse effect upon wildlife habitat. "Adverse effect" means the alteration of any habitat characteristic listed below, insofar as such alteration will, following two growing seasons of project completion and thereafter, substantially reduce its capacity to provide the important wildlife habitat functions listed in the WPA regulations, 310 CMR 10.60(2). These characteristics include the topography, soil structure, plant community composition and structure, and hydrologic regime. The procedure to evaluate whether a proposed project will have an adverse effect is described in the WPA regulations, 310 CMR 10.60(1) and (2). Restoration and replication of altered vernal pool habitat shall be performed as described in the WPA regulations, 310 CMR 10.60(3), except the Commission requires 2:1 or greater replication and may require other additional conditions as deemed necessary to guarantee success of replication and mitigation for the alteration.
(2) 
The conservation zone is a no-disturbance zone. No activity shall be permitted within 25 feet or 50 feet (depending on the size of the pool, as described above) of the edge of the vernal pool. Prohibited activities include, but are not limited to, grading, filling, vegetation control, excavation, roadway, driveway or building construction. For areas within the twenty-five-foot or fifty-foot conservation zone that are already lawn, gardens, landscaped areas, driveways, or buildings, no new or expansion of clearing, cutting, grading, impervious surface or building construction will be permitted.
(3) 
The one-hundred-foot buffer zone of a vernal pool shall have the same performance standards as described below for the buffer zone.
(4) 
Migratory pathways of vernal pool breeders. Work shall not be allowed that obstructs the migratory pathways of vernal pool breeding species.
A. 
Definition; critical characteristics.
(1) 
For the purpose of these regulations, an intermittent stream is that segment of a flowing watercourse that experiences naturally occurring sporadic flow interruptions such that it does not have a continuous sheet of surface water for four or more consecutive days in any consecutive twelve-month period during non-drought conditions in areas not significantly impacted by beaver or other impoundments.
(2) 
The Streams and Rivers Map in Appendix E[1] shows the maximum possibility of intermittent streams under the protection of the South Hadley Wetland Protection Bylaw, but it does not determine which are intermittent and which are perennial. That determination is made based on this definition and the criteria below:
(a) 
Under these regulations, all flowing watercourses shall be considered perennial streams if they are shown as perennial streams on the most current USGS topographic map, qualify under the DEP perennial stream criteria in the WPA regulations, 310 CMR 10.58(2), or are shown as a perennial stream on any two or more government-issued maps or plans, such as Natural Resource Conservation Service soil surveys, U.S. Fish and Wildlife Service National Wetlands Inventory Maps, or older USGS topographic maps. This presumption may be overturned by a preponderance of evidence presented to and deemed acceptable by the Commission. Information necessary to overcome this presumption includes, but is not limited to, direct observation and documentation of:
[1] 
The absence of a continuous sheet of surface water throughout the watercourse, or relevant segment, for a minimum of four consecutive days in any consecutive twelve-month period (excluding periods when local drought or other conditions abnormally lowering the water table are known to exist, or due to water withdrawals) as witnessed by a member of the Commission or its staff at least one of those days, and by submittal of documentation following procedures described in the WPA regulations, 310 CMR 10:58(2)d, which shall be considered definitive evidence in overcoming the presumption of perennial status.
(b) 
Other information that may be relevant to overcoming the presumption of perennial stream status for a watercourse or a segment of that watercourse includes, but is not limited to, direct observation and documentation of:
[1] 
Absence of a clearly defined flow channel;
[2] 
Absence of bank undercutting;
[3] 
Presence of established nonaquatic plants in the flow path (i.e., plants that are unable to grow in continuously submerged conditions);
[4] 
Absence of continuous sheet water in the stream channel or relevant segment at a time when Commission-designated perennial streams of comparable characteristics are flowing, as witnessed by a member of the Commission or its staff or documented according to the WPA regulations, 310 CMR 10:58(2)d, methods.
(c) 
The Commission will also consider estimates from modeling studies of surface water and groundwater hydrology in the relevant watershed. However, such information will only be considered as evidence in conjunction with the observable indicators noted above. Observational evidence shall, in all instances, take precedence over estimates, calculations, and other inferential evidence. The Commission shall consider all of the evidence available together, judging the validity and reliability of the information, and base its determination on the preponderance of acceptable evidence. The determination of intermittent status of a designated stream shall be only for that segment or portion for which there is documentation. The Commission shall determine whether the distances between documented sites are too far apart to consider it a continuous section of stream, and how far from the documented site the determination shall apply.
[1]
Editor's Note: Appendix E is included as an attachment to this chapter.
B. 
Presumption of significance. Where a proposed activity involves the filling, dredging, or altering of an intermittent stream, the Commission shall presume that protection of the intermittent stream as a resource area is significant to the following values: protection of groundwater, flood control, storm damage prevention, and protection of wildlife habitat. This presumption may be overcome upon a showing of clear and convincing evidence demonstrating that the intermittent stream does not play a role in the protection of said values. In the event that the Commission determines that the presumption has been overcome, it shall make a written determination to that effect, setting forth its grounds. This determination may be overcome at a later date by a change in the site and reconsideration of its functions.
C. 
Performance standards for intermittent streams. No project shall impair the water quality or water-carrying capacity of any stream channel or the capacity of the stream to provide important wildlife habitat functions, protection of groundwater, flood control, and storm damage prevention.
A. 
Definition; critical characteristics.
(1) 
Buffer zones are considered resource areas under the bylaw, as they perform vital functions in protecting the values listed in the bylaw. The buffer zone is the land extending 100 feet horizontally from the delineated edge of the following resource areas:
(a) 
Freshwater wetlands.
(b) 
Vernal pools.
(c) 
Banks.
(d) 
The water column in and land under any creek, river, stream, brook, pond or lake.
(2) 
Note that the riverfront area, bordering land subject to flooding and isolated land subject to flooding (when it is not a vernal pool) do not have a buffer zone.
B. 
Presumption of significance. Where a proposed activity involves the removing, filling, dredging, or altering of a buffer zone, the Commission shall presume that protection of the buffer zone as a resource area is significant to the following values: protection of public or private water supply, protection of groundwater, flood control, erosion and sedimentation control, storm damage prevention, prevention of water pollution, protection of fisheries and wildlife habitat, and rare species habitat including rare plant species, recreation and agriculture. This presumption may be overcome upon a showing of clear and convincing evidence demonstrating that the buffer zone does not play a role in the protection of said interests. In the event that the Commission determines that the presumption has been overcome, it shall make a written determination to that effect, setting forth its grounds. This determination may be overcome at a later date by a change in the site and reconsideration of its functions.
C. 
Performance standards for buffer zone.
(1) 
The Conservation Commission will carefully examine any proposals for work in the buffer zone to determine potential impact on the resource areas and the interests of the bylaw, and how the applicant has designed the project to avoid any adverse impact on them.
(2) 
Work permitted in the one-hundred-foot buffer zone shall be in accordance with the following standards:
(a) 
Fifty-foot no-disturbance conservation zone. No activity is permitted within 50 feet of the edge of any freshwater wetland, bank, or the water column in and land under any creek, river, stream, brook, pond or lake, or vernal pool 10,000 square feet or greater in size.
(b) 
Twenty-five-foot no-disturbance conservation zone applies to vernal pools less than 10,000 square feet in size.
(3) 
No-disturbance conservation zone demarcation. To maintain the integrity of the no-disturbance conservation zone and to ensure that there will be no encroachments into this zone by the applicant or future owners of the property, the Commission may require the no-disturbance conservation zone to be marked on the ground, at the applicant's expense, with permanent markers. These markers shall be of weather-resistant material, and the Commission will decide the type, number, size and locations.
D. 
Wetlands setbacks for existing structures.
(1) 
Work associated with preexisting structures or other improvements not presently in compliance with Subsection C of this section may not increase the degree of nonconformity of those structures or activities.
(2) 
No new activity shall be commenced and no new structure shall be located closer to the edge of a bylaw-protected wetland than existing nonconforming activities or structures. The Commission may permit new activity or structures as close to the wetland as the existing activity or structure if it finds such activity or structure will not adversely impact the wetland.
E. 
Temporary disturbances and water-dependent activities. Notwithstanding the foregoing provisions of this section, the Commission may allow temporary disturbances in the one-hundred-foot buffer zone associated with the installation of underground utilities, the conduct of test pits and other data collection activities, and pruning or other limited removal of vegetation determined by the Commission to be consistent with the purposes and intent of the bylaw. The Commission may also permit water-dependent structures (such as docks and piers), improvements for recreational purposes (such as trails and signs) and other minimally invasive improvements (such as wellheads). Stormwater management structures may be allowed within this area only when there is no practicable alternative, as determined by the Commission.