A.
Introduction. These regulations are promulgated by the Town of Nantucket Conservation Commission (hereinafter referred to as the "Commission") pursuant to the authority granted to it under Chapter 136, Wetlands, § 136-7, of the Code of the Town of Nantucket (hereinafter referred to as the "Bylaw"). The regulations should be read together with the Bylaw, which has many important provisions not to be repeated in these regulations. These regulations shall be used to enforce and implement the Bylaw, and shall have the force of law upon their effective date. These regulations supersede all existing rules and practices previously applicable to procedures and proceedings before the Commission.
B.
Purpose. The purpose of these regulations is to establish definitions,
design standards, and uniform procedures by which the Nantucket Conservation
Commission is to carry out its responsibilities under the Bylaw.
The definitions in this § 390-2 are for terms as used in the Bylaw and for terms as used in these regulations. To the extent not defined herein or in the Bylaw, words used in the Bylaw or in the regulations shall have the definitions contained in the Massachusetts Wetlands Protection Act (MGL c. 131, § 40) and the rules and regulations promulgated thereunder.
An owner of land in any direction sharing a common boundary
with the site of the proposed activity, including any land located
directly across a street, way, stream, pond, or diagonally across
from an intersection of roads. A landowner more than 300 feet across
a pond shall not be considered an abutter.
Same as the definition of "work."
A greater-than-negligible change in the resource area or one of its characteristics, functions or factors that diminishes the value of the resource area to one or more of the specified interests in Chapter 136, Wetlands, of the Code of the Town of Nantucket, as determined by the Commission. "Negligible" means small enough to be disregarded and shall be defined in relation to the wetland resource areas impacted.
LAND IN AGRICULTURAL USEAny qualifying wetland within a farm which is qualified or eligible to be qualified under the Farmland Assessment Act, MGL c. 61A § 1 through § 5.
QUALIFYING WETLANDOnly inland freshwater areas which are seasonally flooded basins or flats or inland fresh meadows.
Shall mean only:
Tilling practices customarily employed in the raising of crops.
Pasturing of animals, including such fences and protective structures
as may be required.
Use of fertilizers, pesticides, herbicides and similar materials,
subject to local, state and federal regulations covering their use.
Construction, grading or restoring of field ditches, subsurface
drains, grass waterways, culverts, access roads and similar practices
to improve drainage, prevent erosion, provide more effective use of
rainfall and improve equipment operation and efficiency in order to
improve conditions for the growing of crops.
"Improvement of land in agricultural use" may also include more
extensive practices such as the building of ponds, dams, structures
for water control, water and sediment basins and related activities,
but only where a plan for such activity is approved by the Conservation
District of the Soil Conservation Service is furnished to the Conservation
Commission prior to the commencement of work. All such activity shall
subsequently be carried out in accordance with said plan. In the event
that the work is not carried out in accordance with the required plan,
the Conservation Commission may place a stop order on said work and
have recourse to such measures as if the plan were an order of conditions.
Includes, without limitation, the following actions when
undertaken in areas subject to these regulations: removal, excavation
or dredging of soils, sand, gravel, or aggregate materials of any
kind; changing drainage characteristics, flushing characteristics,
salinity distribution, sedimentation patterns, flow patterns, and
flood-retention characteristics; drainage or other disturbances of
water level or the water table; dumping, discharging, or filling with
any materials which may degrade water quality; driving of piles or
erection of buildings or structures of any kind; placing of obstructions,
whether or not they interfere with the flow of water; destruction
of plant life, including cutting trees; changing of water temperature,
biochemical oxygen demand, or other physical or chemical disturbances
of the water; placing of fill, or removal of material, which would
alter elevation; any activity, changes, or work which causes or contributes
to the pollution of a body of water or groundwater; application of
herbicides or fertilizers other than in agricultural use; incremental
activities which have a cumulative adverse impact on the interests
protected by these regulations.
The individual filing the Nantucket notice of intent, or
Nantucket request for determination of applicability or other request
for action and/or permit or permit modification with the Commission.
Any rooted or free-floating plant that spends a portion of
its life cycle either immersed or submersed by water.
The seaward face or side of any elevated land form, other
than a coastal dune, which lies at the landward edge of a coastal
beach, coastal dune, land subject to tidal action or coastal storm
flowage, or other coastal wetland. Any minor discontinuity of the
slope notwithstanding, the top of the bank shall be the first significant
break in slope as defined by site-specific topographic plan information,
site inspection, wetland habitat evaluation, geologic origin, and/or
relationship to land subject to coastal storm flowage. A bank may
be partially or totally vegetated, or it may be comprised of exposed
soil, gravel, stone, or sand. A bank may be created by man and/or
made of man-made materials. A bank may or may not contribute sediment
to coastal dunes, beaches and/or to the littoral drift system. A bank
may be significant as a major source of sediment, as a vertical buffer,
for wildlife habitat and for wetland scenic views.
The portion of land surface that normally abuts or confines
a water body. A bank may be partially or totally vegetated, or it
may be comprised of exposed soil, gravel, stone, or sand. The physical
characteristics of a bank, as well as its location, are critical to
the protection of wetland interests. The upper boundary of a bank
is the first observable break in slope above the ten-year flood level.
The lower boundary of a bank is the annual high water elevation of
the water body. A bank may be created by man and/or made of man-made
materials.
Unconsolidated sediment subject to wave, tidal, or storm
action which forms the gently sloping shore of a body of water, including
land which is separated from other land by a body of water or a marsh
system. Beaches extend from the mean low water line landward to the
dune line, bank line, or the edge of existing man-made structures,
when these structures replace one of the above lines, whichever is
closest to the defining water body.
The most up-to-date technology or the best designs, measures,
or engineering practices that have been developed and that are commercially
available.
Technologies, designs, measures, or engineering practices
that are in general use to protect similar interests.
Any structure on or near the water used exclusively for the
storage and maintenance of boats, with related items. A boathouse
may not contain habitable space. Boathouses shall not be used for
storage or maintenance of boats trailered to or from off-site.
Areas where evidence of depth to high groundwater is within
18 inches of the ground surface during a normal growing season, and/or
where soils exhibit hydric characteristics, and/or where a plant community
has a significant portion of the groundwater or water surface covered
with Sphagnum moss (Sphagnum) and where the plant community is made
up of a significant portion of one or more, but not limited to nor
necessarily including all, of the following plants or groups of plants:
aster (Aster nemoralis), azaleas (Rhododendron canadense and R. viscosum),
bog cotton (Eriophorum), cranberry (Vaccinium macrocarpon), high-bush
blueberry (Vaccinium corymbosum), laurels (Kalmia augustifolia and
K. polifolia), leatherleaf (Chamaedaphne calyculata), orchids (Arethusa,
Calopagon, Pagonia), pitcher plants (Sarracenia purpurea), sedges
(Cyperaceae), sundews (Droseracae), and sweet gale (Myrica gale).
Touching at any point.
The boundaries of an area subject to protection under the
Bylaw.
Construction of any kind of structure, whether on land or
in water; placing of obstructions or objects in water (other than
boats, moorings, fish or shellfish traps, pens or trays used in conjunction
with aquaculture, or aids to navigation).
Chapter 136 of the Code of Nantucket Bylaws, entitled "Wetlands."
A written determination by the Commission that the proposed
work or portion thereof has been completed as required by a permit.
In some instances, a certificate of compliance may also be issued
stating that no work has been undertaken or completed within the time
frame allowed by the permit issued.
Any hill, mound, ridge, or field of ridges, hills, or mounds,
composed of sediment, any portion or component of which, over the
course of a year, touches upon, exchanges sediment with, and is landward
of a coastal beach deposited by wind action, storm overwash, and/or
is man-made.
An assemblage or grouping of coastal dunes, at least a portion
of which over the course of a year touches upon, exchanges sediment
with, and is landward of a coastal beach, that may or may not be oriented
parallel to the shoreline or in response to a dominant wind direction
but has been deposited by wind action, wave action, and/or by storm
overwash.
Any bank, beach, dune, estuary, marsh, swamp, meadow, flat,
or other lowland subject to tidal action or coastal storm flowage
from the ocean or an estuary.
The Nantucket Conservation Commission as a body of members
lawfully appointed pursuant to MGL c. 40, § 8c.
Those requirements set forth in a written permit issued by
the Commission for the purpose of permitting, regulating, or prohibiting
any activity that alters an area or adversely impacts an interest
subject to protection under the Bylaw.
Same as a stream.
The date the permit, determination, or a certificate of compliance
is mailed, as evidenced by a postmark, or the date it is hand-delivered.
Massachusetts Department of Environmental Protection (DEP).
Shall be determined by best information available, including
but not limited to the methods listed below:
To deepen, widen, or excavate, either temporarily or permanently.
Any hill, mound, or ridge of sediment landward of a coastal
beach deposited by wind action, storm overwash, or man-made. Coastal
dunes are significant for flood control, as a sediment supply to down
drift coastal resource areas, for rare/significant habitat, for recreation,
and for wetland scenic views.
Any structure that ends landward of mean high water, used
for pedestrian access over a salt marsh, coastal dune, coastal dune
fields, coastal banks, bordering vegetated wetlands, filled and flowed
tidelands. This definition includes beach stairs.
Any bulkhead, revetment, wall, rip-rap, groin, jetty, plastic
sheeting, or other structure intended or constructed so as to prevent,
alter, alleviate, or contribute to storm damage or modify wave action,
littoral flow, erosion, surface water pollution, or groundwater quality
or flow.
Any beach, coastal bank, or dune, the waterside edge of which
has undergone a net retreat due to water and wave action over a six-year
period ending on the date on which an application is filed.
The prevention or reduction of the detachment or movement
of soil or rock fragments by water, wind, ice, and/or gravity.
Any area or partially enclosed coastal body of water where
freshwater and saltwater meet and mix and where tidal effects are
evident.
Begun or completed prior to the effective date of these regulations,
or in accordance with permits issued under these regulations.
To deposit any material so as to change any grades or raise
an elevation, either temporarily or permanently.
All species of freshwater and saltwater finfish, including
the nutrient sources and habitat in which they live all or part of
their life cycles.
Any nearly level part of a shoreline or coastal beach that
usually extends from the extreme low-water line landward to the more
steeply sloping face of a coastal beach or bank. The flat may be separated
from the beach by land under the ocean.
The prevention or reduction of flooding and flood damage.
A wet meadow, freshwater marsh, swamp, bog, pond, lake, creek,
or stream; an area of low topography where groundwater, flowing water,
standing surface water, or ice provides a significant part of the
supporting substrate for a plant community for at least five months
of the year; characterized by emergent and submergent plant communities
in inland waters; and/or where depth to high groundwater is within
18 inches of the ground surface, and/or exhibits hydric soil characteristics
and includes that portion of any inland bank which touches any freshwater
wetland. Freshwater wetlands are not defined to include drainage facilities
constructed to include wetland vegetation as treatment from stormwater
runoff.
Allows that the use and normal maintenance of any structure
or alteration of land, within wetland resource areas and their buffers,
existing at the time of enactment of MGL c. 131, § 40 (effective
date 1972) or the Town of Nantucket Wetlands Protection Bylaw (effective
date 1983), or subsequent revisions, may be continued, subject to
the following:
Existing structures, uses and/or alterations of land may not
be extended and/or modified unless such extension or modification
is permitted by a finding of the Commission that such alteration or
modification shall have no adverse impact on the resource areas and
interests protected by the Town of Nantucket Wetlands Protection Bylaw.
Existing structures, uses and/or alterations of land which have
been abandoned for five years or more shall not be reestablished,
and any future use shall conform with then-current provisions of the
Town of Nantucket Wetlands Protection Bylaw, as appropriate.
Maintenance and/or repair to existing on-site sewage disposal
systems and wells is excluded from this definition.
Water below or seeping from the earth's surface in the zone
of saturation.
Space in a structure for living, sleeping, eating, or cooking.
Bathrooms, toilet compartments, closets, halls, storage or utility
space, and similar areas are not considered habitable space.
Where wildlife find what they need to survive: food, water,
cover from predators and weather, breeding and rearing areas, and
over-wintering areas.
Habitat includes any portion of any wetland resource area:
All flora and fauna listed by the Massachusetts Natural Heritage
and Endangered Species Program and their environs shall be considered
significant to the interests of the Town of Nantucket Wetlands Protection
Bylaw.
"Vernal pool habitats," regardless of whether the site has been certified by the Massachusetts Natural Heritage and Endangered Species Program, are defined as confined basin depressions which, at least most years, hold water for a minimum of two continuous months during the spring and/or summer, and which are free of adult fish populations. Areas within 100 feet of the mean annual boundaries of such depressions, to the extent that such habitat is within an area subject to protection under the Town of Nantucket Wetlands Protection Bylaw as specified in Chapter 136, Wetlands, § 136-3, of the Code of the Town of Nantucket, are deemed essential breeding habitat, and provide other extremely important habitat functions during the nonbreeding season as well, for a variety of amphibian species, and are important habitat for other wildlife species, and shall be considered significant to the interests of the Town of Nantucket Wetlands Protection Bylaw. The Commission must determine, in the case that a vernal pool has not been certified by the Massachusetts Natural Heritage and Endangered Species Program, that it has successfully been identified as eligible for certification by its consultants or a professional wildlife biologist or other expert.
Any open body of freshwater or saltwater, either naturally
occurring or man-made by impoundment, which is never without standing
water due to natural causes except during periods of extended drought,
and the land under the water body. Basins or lagoons which are part
of wastewater treatment plants shall not be considered ponds, nor
shall swimming pools, man-made water bodies that are not hydrologically
connected to adjacent water bodies, groundwater (including perched
groundwater), or other impervious man-made retention basins.
Land subject to any inundation caused by coastal storms up
to and including that caused by the one-hundred-year storm, surge
of record, or storm of record, whichever is greater.
An area of low, flat topography, or a depression or basin
either 1) hydrologically directly connected with a water body, extending
from the banks or the upland edge of the vegetated wetlands surrounding
this water body, or 2) an isolated depression or basin which on the
average at least every five years confines standing water over an
area of at least 1,000 square feet as observed under conditions of
average rainfall. The boundary of land subject to flooding which is
hydrologically connected to a water body is the estimated lateral
extent of the flooding, which shall be based on the one-hundred-year
storm event during a year of average rainfall, or by actual record
if that is higher. Constructed drainage facilities and/or swales will
not be considered as land subject to flooding for the purposes of
the Nantucket Wetlands Protection Bylaw.
Areas where a plant community exists in standing or running
water during the growing season, and/or where depth to high groundwater
is within 18 inches of the surface and/or where soils exhibit hydric
characteristics, and where a significant part of the plant community
is composed of, but not limited to nor necessarily including all,
the following plants or groups of plants: arums (Araceae), bladder
worts (Utricularia), bur reeds (Sparganiaceae), button bush (Cephlanthus
occidentalis), cattails (Typha), duck weeds (Lemnaceae), eelgrass
(Vallisneria), frog bits (Hydrocharitaceae), horsetails (Equisetaceae),
hydrophilic grasses (Graminae), leatherleaf (Chamaedaphne calyculata),
pickerel weeds (Pontederiaceae), pipeworts (Eriocaulon), pond weeds
(Pontederiaceae), rushes (Juncaceae), sedges (Cyperaceae), smartweeds
(Polygonum), sweet gale (Myrica gale), water milfoil (Haloragaceae),
water lilies (Nympheacea), water starworts (Callitrichaceae), or water
willow (Decodon verticillatus).
A coastal wetland that extends from the ocean landward up
to the highest spring tide line, where soils exhibit hydric characteristics,
and where a significant part of the plant community is composed of,
but not limited to nor necessarily including all, the following plants
or groups of plants: salt meadow cord grass (Spartina patens), salt
marsh cord grass (Spartina alterniflora), spike grass (Distichlis
spicata), sea lavender (Limonium nashii), seaside plantagao (Plantagao
juncoides), aster (Aster subulatus), sea-blite (Suaeda maritima),
black-grass (Juncus gerardi), samphire (Salicornia europaea), glasswort
(S. begelovii), reed (Phragmites communis), saltmarsh bulrush (Scirpus
robustus), or cattails (Typha spp.).
Areas where groundwater is at the surface for a significant
part of the growing season, and/or where depth to high groundwater
is within 18 inches of the surface, and/or where soils exhibit hydric
characteristics including mottling within 18 inches of the ground
surface, and where a significant part of the plant community is composed
of various grasses, sedges, and rushes, made up of, but not limited
to nor necessarily including all, the following plants or groups of
plants: blue flag (Iris), vervain (Verbena), thoroughwort (Eupatorium),
dock (Rumex), false loosestrife (Ludwigia), hydrophilic grasses (Graminae),
loosestrife (Lythrum), marsh fern (Dryopterus thelypteris), rushes
(Juncacea), sedges (Cyperaceae), sensitive fern (Onoclea sensibilis),
smartweed (Polygonum), or jewelweed (Impatiens capensis).
The Massachusetts Environmental Policy Act, MGL c. 30, § 62
through § 62H, and regulations promulgated pursuant thereto,
310 CMR 10.00 et seq.
To achieve the least amount of adverse impact that can be
attained through siting or using best available measures or best practical
measures, as deemed appropriate by the Commission.
The written request filed by any person seeking the Commission's
determination as to whether the Bylaw applies to any area or work
thereon.
The written notice filed by any person intending to alter
an area subject to protection under the Massachusetts Wetlands Protection
Act, MGL c. 131, § 40.
The document issued by the Commission containing conditions
that regulate or prohibit an activity under the Bylaw.
Includes any individual, group of individuals, association,
partnership, corporation, company, business organization, trust, estate,
the commonwealth or political subdivision thereof to the extent subject
to Town bylaws, administrative agencies, public or quasi-public corporations
or bodies, the Town of Nantucket and any other legal entity, its legal
representatives, agents or assigns.
Any structure, floating or fixed, attached or adjacent to
land, and placed in or and extending into coastal inland waters (in
the case of tidal waters, seaward of the mean high tide line), which
is designed, or is suitable for use, for access to vessels, or for
swimming or any other similar recreational, commercial, or educational
purpose.
Contamination of land, or surface water or groundwater with
materials not normally present in those waters, or with elevated levels
of naturally occurring materials.
Any open body of water, either naturally occurring or man-made
by impoundment, which is never without standing water due to natural
causes except during periods of extended drought, and the land under
the water body. Basins or lagoons which are part of wastewater treatment
plants shall not be considered ponds, nor shall swimming pools, man-made
water bodies that are not hydrologically connected to adjacent water
bodies, groundwater (including perched groundwater), or other impervious
man-made retention basins.
Any source or volume of surface water or groundwater to be
in private use or demonstrated to have a potential for private use,
including drinking water supply, irrigation, or for fire protection.
A proposal to do work or the performance of such work; an
undertaking.
Any source or volume of surface water or groundwater demonstrated
to be in public use for drinking water or fire protection, or approved
for water supply pursuant to MGL c. 111, § 160 by the Division
of Water Supply of the DEP, or demonstrated to have a potential for
public use as a drinking water supply or for fire protection.
Activities of individuals done for relaxation carried out
in resource areas of the Bylaw, which include but are not limited
to swimming, picnicking, walking, hunting, fishing, and boating.
To take away any type of material, including vegetation,
or thereby change an elevation, either temporarily or permanently.
Any natural flowing body of water that empties to any ocean,
lake, pond, or other river, and which flows throughout the year.
Aquatic mollusks and crustaceans: bay scallop (Argopecten
irradians), blue mussel (Mytilus edulis), ocean quahog (Arctica islandica),
American oyster (Crassostrea virginica), quahog (Mercenaria merceneria),
razor clam (Ensis directus), surf clam (Spisola soldissma), sea scallop
(Placopecten magellamicus), soft-shell clam (Mya arenaria), lobster
(Homarus americanus), and blue crabs (Callinectes sapidus), knobbed
whelk (Busycon carica), waved whelk (Buccinum undatum), and channel
whelk (Busycon canaliculatum). The term "shellfish" also shall include
horsehoe crab (Limulus polyphemus).
The temperature of the soil four inches below the surface
grade as taken by a soil thermometer.
The prevention of 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.
A body of running water, and the land under the water, which
includes brooks, creeks, and man-made watercourses, which moves in
a defined channel or swale due to hydraulic gradient. A stream may
be intermittent, that is, it does not flow throughout the year.
A combination of materials assembled at a fixed location
to give support or shelter, such as a building, framework, retaining
wall, platform, bin, radio antenna mast, or the like. The term "structure"
may also be applied to appurtenances that are constructed of impervious
surfaces, such as but not limited to swimming pools, recreational
playing courts, roads, parking areas, parking lots, driveways, etc.
Drainage basins, split-rail fences, septic tanks, subsurface propane
tanks, and signs are not structures. The word "structure" shall be
construed, where the context requires, as though followed by the words
"or part or parts thereof."
Any structure intended or constructed so as to prevent or
alleviate storm damage, or modify tidal action, wave action, littoral
flow, or erosion. Examples of these structure may include but are
not limited to any bulkhead, revetment, seawall, rip-rap, groin, jetty,
artificial seaweed, geotextile fabric, plastic sheeting, multiple
rows of fencing or other as determined by the Commission.
Cumulative expansion of habitable space greater than 20%.
Areas where depth to high groundwater is within 18 inches
of the surface, and/or where runoff water from surface drainage frequently
collects above the soil surface, and/or where soils exhibit hydric
characteristics, and where a significant portion of the plant community
is made up of, but not limited to nor necessarily including all, the
following plants or groups of plants: alders (Alnus), ashes (Fraxinus),
azaleas (Rhododendron canadense and R. viscosum), black alder (Ilex
verticillata), button bush (Cephalanthus occidentalis), highbush blueberry
(Vaccinium corymbosum), poison sumac (Toxicodendron vernix), red maple
(Acer rubrum), sphagnum mosses (Sphagnum), black gum tupelo (Nyssa
sylvatica), sweet pepper bush (Clethra alnifolia), willow (Salicaceae),
and common reed (Phragmites communis).
Projects which require direct water access for their intended
use and therefore cannot be located out of the area subject to protection
under the Bylaw. Examples include, but are not limited to: docks,
piers, boat landings, boathouses, marinas, stairs to beaches, and
boardwalks over wetland vegetation. Projects which benefit from wetlands
access but which do not require it are not water-dependent uses. Examples
include: restaurants, dwellings, and commercial enterprises servicing
marine-related uses, such as fish markets, repair facilities, ships'
chandleries, and general use recreational trails.
Those areas which provide important visual linkage for the
public with scenic wetlands that are vistas typical of and serve to
define the unique Nantucket environment. Scenic wetlands include but
are not limited to the following features: expansive open space, significant
habitat areas, large areas of natural features, placement and sizing
of both natural and man-made features, or mix of colors and textures
created by interactions among water, sand, and different types of
vegetation. Visual linkage for the public is not restricted to views
from public ways, but also encompasses views from areas used by the
public, such as private and public conservation land, dirt "moor"
roads, major private ways intensively used by the public, great ponds,
beaches, banks (eroding and noneroding, coastal and inland), Nantucket's
harbors, and the ocean.
All nondomesticated mammals, birds, reptiles, amphibians,
fishes, or invertebrates which are dependent upon a wetland resource
defined by the Bylaw for any part of their life cycle. Special consideration
shall only be given to members of the class Insecta if they are rare
or endangered as defined by the Massachusetts Natural Heritage Program
or its successor, or if they are a major food source for other wildlife,
but not if the insect species is determined by the Commission and/or
the Board of Health to constitute a pest whose protection under the
Bylaw would be a health risk to humans at the proposed project site.
A.
Where the Bylaw states that the Commission is to receive a request
or notice, such request or notice shall be given in writing to the
Commission office, or in the case of emergency, the request can be
made directly to the Commission's Chairperson.
B.
Nantucket notice of intent (NNOI).
(1)
Any person who proposes to remove, fill, dredge, alter, or build upon any area subject to protection under the Bylaw, or within 25 feet or 50 feet of any area subject to protection (as deemed necessary), shall submit a Nantucket notice of intent (NNOI) and other application materials in accordance with the submittal requirements set forth on the NNOI form. Such submission shall not be required for use and normal maintenance as defined under "grandfathering/preexisting use" in § 390-2, Definitions, above.
(2)
The Commission may accept plans filed with a notice of intent under
the Wetlands Protection Act, MGL c. 131, § 40, as plans
under the Bylaw. The NNOI shall be filed concurrently with a notice
of intent under the Wetlands Protection Act. This provision shall
also apply to any amended order of conditions request, abbreviated
notice of resource area delineation or request for determination of
applicability.
(3)
When a person filing an application is other than the owner, the
findings and decision of the Commission shall be sent by the Commission
to the owner as well as to the person filing the application, and
the applicant shall supply the Commission with the name and current
address of the owner.
(4)
The Commission shall give the NNOI the same file number as the accompanying notice of intent from the DEP when joint filings under MGL c. 131, § 40 (the State Wetlands Protection Act) and Chapter 136, Wetlands, of the Code of the Town of Nantucket are made. The Commission shall follow this provision to include amended orders of conditions, abbreviated notices of resource area delineation and requests for determination of applicability. When a filing is only required under the provisions of the Town of Nantucket Wetlands Protection Bylaw, a separate bylaw file number will be assigned.
(5)
In the event that only part of the work proposed lies within an area
subject to protection under the Bylaw, all aspects of the work shall
be briefly described on the NNOI form. Only those work components
that lie within areas subject to jurisdiction shall be conditioned.
C.
Public hearings by Conservation Commission.
(1)
The Commission in an appropriate case may combine its hearing under
the Bylaw with the hearing conducted under the Wetlands Protection
Act, MGL c. 131, § 40.
(2)
When a person filing a NNOI is not the owner, notice of the time
and place of a hearing shall be given to the owner, by the Commission,
at the address supplied to the Commission by the applicant.
(3)
Any changes in the plans or the proposed work made by the applicant
during the course of the public hearings shall be made in writing
and shall be filed by the applicant with the Commission. Such changes
must be filed prior to the close of the public hearing on that NNOI,
unless otherwise specified by the Commission during a public hearing.
D.
Extensions of permits.
(2)
All requests for an extension shall be in writing.
(3)
The Commission shall not deny a request for an extension unless it
finds by a preponderance of the evidence any one of the following:
(a)
No work has begun on the project; unless the failure to begin
work is due to an unavoidable delay in obtaining other necessary state
or municipal approvals, permits, or variances, such as in the event
other approvals, permits, or variances are appealed;
(b)
New information, not available at the time the permit was issued,
indicates that the permit is not adequate to protect the interests
identified in the Bylaw;
(c)
Incomplete work is causing damage to the interests identified
in the Bylaw;
(d)
Work has been done in violation of the Bylaw, these regulations,
or conditions in the permit; or
(e)
The extension request is not timely. An extension request shall
be timely if received by the Commission a minimum of 30 days prior
to the expiration of the permit.
(4)
If issued, an extension permit shall be signed by a majority of the
Commission.
E.
Nantucket certificates of compliance.
(1)
Upon written request by the applicant, a Nantucket certificate of
compliance may be issued by the Commission, which shall certify that
the conditions required by the permit as of the date of the application
for a Nantucket certificate of compliance have been completed in compliance
with the permit. If issued by the Commission, the certificate of compliance
shall be signed by a majority of the Commission.
(2)
If a project has been completed in accordance with plans stamped
by a registered professional engineer, architect, landscape architect,
or land surveyor, a written statement by such a professional person
certifying substantial compliance with the plans and setting forth
any deviation that exists from the plans approved in the order shall
accompany the request for a certificate of compliance. The required
as-built plan shall show all wetland areas, buffer zones, topography,
other landscape features relevant to the project and any differences
to the approved project.
(3)
Prior to the issuance of a certificate of compliance, the Commission
may make a site visit, in the presence of the applicant or, if the
applicant so desires, in the presence of the applicant's agent.
(4)
Partial certificates of compliance will not be issued by the Commission,
except for rare and extenuating circumstances. The burden of proof
to substantiate these circumstances shall be with the applicant.
F.
Waivers of requirements.
(1)
All requests for waivers shall be in writing.
(2)
The Commission may, in its discretion, for good cause shown, grant
waivers from the operation of one or more of these regulations pursuant
to this subsection. Such waivers shall be granted only in accordance
with the provisions of this subsection.
(3)
A waiver shall be granted only for the following reasons and upon
the following conditions:
(a)
The Commission may grant a waiver from these regulations when the Commission finds that, given existing conditions, the proposed project will not adversely impact the interests identified in the Bylaw and there are no reasonable conditions or alternatives that would allow that project to proceed in compliance with the regulations. The burden of proof to show no adverse impact to the interests identified in the Bylaw, Chapter 136, Wetlands, § 136-2, of the Code of the Town of Nantucket, shall be the responsibility of the owner/applicant. The burden of proof to show no reasonable alternative shall be the responsibility of the owner/applicant and shall consist of a written alternatives analysis detailing why the proposed project cannot otherwise proceed in compliance with the performance standards in these regulations, with an explanation of why each is not feasible. It shall be the responsibility of the applicant to provide the Commission with any information which the Commission may request in order to enable the Commission to ascertain such adverse effects. The failure of the applicant to furnish any information which has been so requested may result in the denial of a request for a waiver pursuant to this subsection.
(b)
The Commission may grant a waiver from these regulations when
portions of the buffer zone between the proposed project and adjacent
resource area are previously altered and are not within the control
of the project owner/applicant, such as public or semi-public pedestrian
and vehicular accessways.
(c)
The Commission may grant a waiver from these regulations when
the Commission finds that a project will provide a long-term net benefit/improvement
to the resource area, provided any adverse effects are minimized by
carefully considered conditions. However, no such project may be permitted
which could have an adverse effect on rare wildlife species.
(4)
The Commission may impose additional conditions in granting a permit
pursuant to this section, including imposing limits on project size
or effect or requiring other compensatory measures, such as wetland
replication.
G.
Fees.
(1)
Fees for the following, set from time to time by the Conservation
Commission and payable to the Town of Nantucket, must be paid under
the provisions of the Bylaw (and in addition to the fees required
by MGL c. 131, § 40) before the pertinent application can
be accepted by the Commission.
(2)
When the Town or County of Nantucket is the applicant, the fee will
be waived.
H.
Recording of documents. The following documents issued by the Commission
are required to be properly recorded in the Registry of Deeds or the
Land Court, within the chain of title of the affected property:
I.
Additional information.
(1)
Additional information to be provided with filings.
(a)
In addition to information already required by the Commonwealth
of Massachusetts, the following information is required with each
notice of intent filed with the Commission:
[1]
Two sets of notices of intent with all supportive plan, maps,
and documents.
[3]
Supportive plans, maps and documents shall include, at a minimum:
[a]
DEP wetland delineation forms for all vegetated
wetland resource areas (two completed forms required to show boundary,
one wetland and one upland).
[b]
Locus map.
[c]
Project plans shall include:
[i]
Assessor's reference numbers.
[ii]
Book and page number of deed or certificate of
title number.
[iii]
Current certificate of title or deed.
[iv]
Appropriate FEMA floodplain reference.
[v]
Erosion control measures for proposed site work.
[vi]
Work limit line.
[vii]
USDA/NRCS soils map information.
[viii]
All wetland and/or habitat restriction information.
[ix]
All wetland flagging location numbers placed in
field for resource delineation.
[x]
Fifty-foot and one-hundred-foot setbacks from all
wetland resource areas
[xi]
Two-foot interval contours based on mean sea level.
[xii]
Appropriate professional stamp and signature
(engineer, land surveyor, architect, sanitarian, etc.).
[xiii]
All other necessary information to describe
proposed project, including standard plan requirements for title block,
scale, direction, etc.
[4]
Additional information will be required as deemed necessary
on a project -specific basis in accordance with the general filing
requirements established by the Commission for notices of intent revised
June 15, 1994.
(b)
In addition to information already required by the Commonwealth
of Massachusetts, the following information is required with each
request for a determination of applicability filed with the Commission:
[1]
Two sets of RDA with all supportive plans, maps and documents.
[3]
Supportive plans, maps and documents shall include, as a minimum.
[a]
DEP wetland delineation forms for all vegetated
wetland resource areas.
[b]
Nantucket Assessor's reference numbers.
[c]
Locus map.
[d]
Project plans and/or narrative with sufficient
information to evaluate wetland resource and buffer zone impact. (Upon
staff review of filing, additional project-specific information may
be required.)
(2)
Additional Information to be provided before field viewings.
(a)
On-site requirements to be in place before the field inspection:
[1]
DEP wetland delineation forms filed for all vegetated wetland
resource areas present on or affecting the project site.
[2]
Edges of wetland resource areas within 100 feet of proposed
work must be flagged and numbered before the field inspection.
[3]
Corners of proposed structures must be staked (flagged) and
clearly labeled before field inspection.
[4]
Property boundaries must be staked before field inspection.
[5]
A project representative should be present for field inspection.
(b)
Failure to have the lot properly staked may result in non-review.
(c)
Action on a project by the Commission indicates that the above
filing requirements have been met.
The invalidity of any section of these regulations shall not
invalidate any other section or provision, nor shall it invalidate
any permit or determination which previously has been issued.
The effective date of these regulations shall be the date on
which these regulations are approved by vote of the Conservation Commission.
These regulations shall apply to all NNOI or NRDA's filed after that
date.
