A.
Vernal pools and their associated habitat, including the 100-foot
no-disturbance zone (as defined above), are significant to the protection
of wildlife habitat and rare plant and animal habitat. Vernal pools
constitute a unique and increasingly rare type of wetland that is
inhabited by many species of wildlife, some of which are totally dependent
on vernal pools and their associated habitat for their survival. Areas
in the immediate vicinity of the vernal pool (including, but not necessarily
limited to, the 100-foot no-disturbance zone) and the airspace above
provide these species with important non-breeding habitat functions,
such as migratory pathways, feeding, shelter, and over-wintering sites.
Many species utilize vernal pools and their associated 100-foot no-disturbance
zone for breeding and non-breeding functions, although they are not
restricted to this type of wetland. The protection of vernal pools
and their associated 100-foot no-disturbance zone are essential for
the survival of wildlife species that depend on these unique and threatened
resource areas. The ordinance and these regulations protect all vernal
pools, whether or not they have been certified as such by the Massachusetts
Division of Fisheries and Wildlife and whether or not they are regulated
under 310 CMR 10.57(2).
B.
Definition, critical characteristics and boundary. Vernal pools exhibit
a tremendous variation in physical, dimensional, geographic, hydrologic
and vegetative conditions, and therefore, for the purposes of this
ordinance, a vernal pool is a freshwater body that, in most years
(or all years in some cases), holds water for a minimum of two months
and that is free of established, reproducing fish populations, and
meets either of the following criteria:
(1)
The vernal pool contains evidence of the presence of any one or more
of the following obligate indicator species: spotted salamander, blue-spotted
salamander, Jefferson salamander, marbled salamander, wood frog or
fairy shrimp;
(2)
In the absence of evidence of the presence of any obligate indicator
species, the vernal pool contains evidence of two or more of any of
the following facultative indicator species: spring peeper, American
toad, green frog, Pickerel frog, gray tree frog, four-toed salamander,
spotted turtle, caddisfly larvae or cases of caddisfly larvae, dragonfly
or damselfly larvae or shed skins (exuvia) of dragonfly or damselfly
larvae, adults, juveniles or shells of either fingernail clams or
amphibious, air-breathing snails, isopods.
C.
Evidence collection.
(1)
Timing. Many of the indicators of vernal pool habitat are seasonal.
For example, certain salamander egg clusters are only found between
late March and late May. Wood frog chorusing only occurs between late
March and late May, and then typically at night. Consequently, failure
to find evidence of breeding or the presence of the indicator species
specified above only has evidentiary value if the investigation is
conducted during those periods in which breeding is likely to occur
or when the indicator species are likely to be present. The Commission
may require that the pool be investigated at least two times during
these months, but not two consecutive days in a row.
(2)
Should any area that the Commission believes may function as a vernal
pool contain any of the following characteristics when dry, the area
shall be presumed to contain a vernal pool and shall be reinvestigated
in the spring during vernal pool breeding season as described above:
(a)
Stained leaves in a depression;
(b)
Water stains or siltation marks on surrounding tree trunks or
vegetation;
(c)
Trees with buttressed trunks or stilt trunks;
(d)
Wetland plants or sphagnum moss growing in a dry depression;
(e)
Wetland or hydric soils;
(f)
Cases of caddisfly larvae (Trichoptera);
(g)
Adults, juveniles or shells of either freshwater clams (Pisidiidae)
or amphibious, air-breathing snails;
(h)
Shed skins or exuvia of dragonfly or damselfly larvae on vegetation
along the edge of the dry depression.
(3)
To overcome the presumption of significance provided for in § 565-8D, the Commission may require that the determination be postponed until evidence is compiled during the appropriate time period as described above. The Commission may also require its own site visits as necessary to confirm any evidence presented to it.
(4)
The Commission may accept and consider evidence that is not in strict
compliance with these requirements if it deems the evidence to be
credible and relevant.
D.
Presumptions of significance. Where a proposed activity involves
the removing, filling, dredging, or altering of a vernal pool, its
100-foot no-disturbance zone, or the airspace above the vernal pool
or 100-foot no-disturbance zone, the Commission shall presume that
the vernal pool and its 100-foot no-disturbance zone are significant
to the protection of wildlife habitat and rare plant and animal habitat.
This presumption may be overcome by the applicant's presentation
of evidence sufficient to demonstrate, by a preponderance of credible
evidence, that the vernal pool or its 100-foot no-disturbance zone
(or some portion of it) does not play a role in the protection of
said interests. In the event 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.
E.
Performance standards. For areas in which the presumption set forth in § 565-8D of these regulations is not overcome, the following standards shall apply to vernal pools and their 100-foot no-disturbance zones:
(1)
Vernal pool and 100-foot no-disturbance zone for vernal pools. No activity shall be permitted within or above (1) the vernal pool, (2) the 100-foot no-disturbance zone for vernal pools, or (3) in the case of a vernal pool located within another wetland resource area [§ 565-3A(1), (3), (4), (5)], the area extending 100 feet of the delineated edge of that wetland resource area. Prohibited activities include, but are not limited to, grading, landscaping, vegetation control, pruning, cutting, filling, excavation, shading, roadway construction and/or driveway construction. It is the opinion of the Commission that due to the uniqueness of vernal pool resource areas, protecting the associated 100-foot no-disturbance zone for vernal pools is necessary to protect wildlife and rare plant and animal habitat. As noted in the definition of the 100-foot no-disturbance zone for vernal pools in § 565-7, the Commission may change the regulated extent and location of this no-disturbance zone based on the results of a biological and/or habitat evaluation, which may be required to determine the migratory pathways and other important habitat usage of vernal pool breeders. These performance standards also do not apply to those portions of the 100-foot no-disturbance zone for vernal pools that the Commission has determined under § 565-8D are not significant to the protection of wildlife habitat and rare plant and animal habitat.
(2)
One-hundred-foot septic system setback. Components of subsurface
sewage disposal systems shall not be permitted within 100 feet of
the delineated edge of a vernal pool or the delineated edge of the
encompassing wetland resource area when the proposed system is located
up-gradient of the vernal pool.
(3)
No-disturbance zone demarcation. To maintain the perpetual integrity
of the 100-foot no-disturbance zone for vernal pools and to ensure
that there will be no encroachments into this zone by the applicant
or future owners of the subject property, the Commission may require
the no-disturbance zone to be marked on the ground, at the applicant's
expense, with permanent markers. These markers shall be made of weather-resistant
material (i.e., granite or concrete), and the Commission shall determine
their number, location and size. The Commission may require one or
more of these markers to bear, on their upland side, writing (i.e.,
a permanent plaque or engraving) that shall read "No Disturbance Beyond
This Point By Order of the Beverly Conservation Commission."
(4)
Migratory pathway of vernal pool breeders. Work or final project
elements shall not be allowed that obstruct the migratory pathways
of vernal pool breeding species.
A.
Isolated vegetated wetlands are likely to be significant to the interests
identified in 310 CMR 10.55(1) that are supported by bordering vegetated
wetlands and other interests identified in the ordinance, including
protection of private and public water supply and groundwater, flood
control, storm damage prevention, prevention of pollution, protection
of fisheries, wildlife habitat, erosion and sedimentation control,
and rare plant and animal habitat.
B.
Definition, critical characteristics, and boundary. Isolated vegetated wetlands protected under the ordinance are freshwater wetlands, of at least 1,000 square feet in area, that do not border on creeks, rivers, streams, ponds or lakes and that do not qualify as a vernal pool under § 565-8 (in which case the area will be regulated as a vernal pool). The types of isolated vegetated wetlands include, but are not limited to, wet meadows, marshes, swamps and bogs. In addition to the minimum size requirement, isolated vegetated wetlands must also meet at least two of the following three criteria:
(1)
The vegetation community of an isolated vegetated wetland consists
of 50% or more wetland indicator plants. Wetland indicator plants
are classified in the following categories: facultative, facultative
+, facultative wetland -, facultative wetland, facultative wetland
+, or obligate wetland (source: U.S. Fish and Wildlife Service); or
(2)
Other indicators of hydrology, including site inundation or saturation,
water marks, drift lines, sediment deposits, oxidized rhizospheres,
water-stained leaves, shallow root systems, buttressed tree trunks,
and recorded hydrologic data (stream gauge, aerial photo, or other);
or
(3)
Presence of hydric soils.
C.
Presumption of significance. Where a proposed activity involves the removing, filling, dredging, or altering of an isolated vegetated wetland or land within the 100-foot buffer zone to an isolated vegetated wetland, the Commission shall presume that the isolated vegetated wetland is significant to the interests specified in § 565-9A of these regulations. This presumption may be overcome by the applicant's presentation of evidence sufficient to demonstrate, by a preponderance of credible evidence, that the isolated vegetated wetland does not play a role in the protection of said interests. If the Commission finds that this presumption has been overcome, it shall make a written determination to this effect, setting forth its grounds.
D.
Performance standards. When the presumption set forth in Subsection C of this section is not overcome, any proposed work in the isolated vegetated wetlands shall comply with the following performance standards:
(1)
No alteration or impairment of isolated vegetated wetland. No activity
is permitted within or above an isolated vegetated wetland. No activity
is permitted within the associated 100-foot buffer zone that is likely
to destroy or otherwise impair the isolated vegetated wetland.
(2)
25-foot no-disturbance zone. Work within the area extending 25 feet from the edge of the isolated vegetated wetland shall be subject to the 25-foot no-disturbance zone standards and demarcation requirements set forth in § 565-10D(2).
A.
Findings.
(1)
Buffer zones are likely to be significant to the interests identified
in the ordinance, including protection of private and public water
supply and groundwater, flood control, storm damage prevention, prevention
of pollution, protection of fisheries, wildlife habitat, prevention
and control of erosion and sedimentation, and the protection of rare
plant and animal species habitat, and recreation. Buffer zones are
protected resource areas under the ordinance because they play a vital
role in protecting the adjacent resource areas and also provide their
own important functions in many ways, including, but not limited to,
the following:
(a)
Scattering sunlight and providing shade, thereby lowering water
temperature within wetlands and adjacent areas;
(b)
Slowing water flow, thereby decreasing water velocities, allowing
infiltration, and reducing the erosion potential of stormwater runoff;
(c)
Storing water, thereby helping to maintain stream base flow
and provide water quality benefits during low flow periods;
(d)
Trapping and filtering sediment and other contaminants (i.e.,
pesticides, heavy metals etc.);
(e)
Producing leaf litter and biomass which increases the humus
content of the soil and increases absorption and infiltration;
(f)
Providing essential habitat for wetland-associated species;
(g)
Reducing nutrient overloading by filtering nutrients bound to
sediment in the surface flow and removing nutrients from groundwater
through uptake in vegetation; and
(h)
Protecting adjacent resource areas.
(2)
Projects located in close proximity to a wetland have a high likelihood
of resulting in adverse impacts to the wetland itself, either immediately
as a consequence of construction or over time as a consequence of
daily operation or maintenance of the completed project. Such adverse
impacts typically result from activities including, but not limited
to, extension of lawns, depositing/dumping of yard waste, over-grading,
siltation, deposition of construction debris, unregulated filling,
and clearing of vegetation.
B.
Definition, critical characteristics, and boundary.
(1)
A buffer zone is the area of land extending 100 feet horizontally
from the delineated edge of the following resource areas:
(2)
Note that riverfront area and bordering and isolated land subject
to flooding do not have a buffer zone.
C.
Presumptions 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 interests specified in Chapter 287, § 287-1, and that the buffer zone is best left in an undisturbed and natural state. This presumption may be overcome by the applicant's presentation of evidence sufficient to demonstrate, by a preponderance of credible evidence, that the buffer zone or that portion of the buffer zone that will be altered by the project 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 this effect, setting forth its grounds.
D.
Performance standards. When the presumption set forth in § 565-10C of these regulations is not overcome, any work proposed in the buffer zone shall comply with the following performance standards:
(1)
No alteration or impairment of adjacent resource area. Except as
otherwise provided in these regulations, no activity is permitted
in the buffer zone that will alter, impair or adversely impact the
adjacent wetland resource areas, unless that alteration, impairment
or impact complies with the applicable performance standard for the
altered resource area and is approved by the Commission.
(2)
25-foot no-disturbance zone.
(a)
Except as otherwise provided in these regulations, no activity
is permitted within or above the area within 25 feet of the delineated
edge of the adjacent wetland resource areas. Prohibited activities
include, but are not limited to, grading, landscaping, shading, vegetation
clearing, mowing, cutting, filling, depositing/dumping of yard waste,
excavating, road construction, and driveway construction. The 25-foot
no-disturbance zone shall remain unchanged from its predevelopment
project state. Notwithstanding the foregoing, the Commission may allow,
in its discretion, without a waiver:
(b)
No-disturbance zone demarcation. To maintain the perpetual integrity
of the no-disturbance zone and to ensure that there will be no encroachments
into this zone by the applicant or future owners of the subject property,
the Commission may require the no-disturbance zone to be marked on
the ground, at the applicant's expense, with permanent markers.
These markers shall be made of weather-resistant material (i.e., granite,
or concrete), and the Commission shall determine their number, size
and location. The Commission may require one or more of these markers
to bear, on their upland side, writing (i.e., permanent plaque or
engraving) that shall read "No Disturbance Beyond This Point By Order
of the Beverly Conservation Commission."
(3)
50-foot no-build zone.
(a)
Except as otherwise provided in these regulations, the following
shall be prohibited from the area within 50 feet of the delineated
edge of the adjacent wetland resource areas:
[1]
Buildings/Structures that require a building permit;
[2]
Structures or other fixtures that do not require a building
permit, including, but not limited to, swimming pools and pool decks,
patios or decks, sports courts, parking lots/areas, driveways/roadways
(except those allowed as limited projects), sheds, utility lines,
stormwater outfalls, and the like, but excluding limited or minor
accessory structures or items such as lawn furniture, sandboxes, swing
sets or the like;
(b)
Notwithstanding the foregoing, the Commission may allow, in
its discretion, without a waiver:
(c)
Replacement of buildings, structures or fixtures that existed
prior to the Commission's adoption of these 50-foot no-build
zone performance standards is exempt from these 50-foot no-building
zone performance standards so long as either:
[1]
The replacement structure is within the same footprint as the
original structure and will not otherwise result in a greater impact
to the fifty-foot buffer zone; or
[2]
The replacement structure is no larger than the existing structure,
is located a greater distance from the boundary of the adjacent resource
area, and will not otherwise result in a greater impact to the fifty-foot
buffer zone.
(4)
100-foot buffer zone. The Commission has discretion to permit, condition,
and prohibit work within the buffer zone as the specific situation
warrants to ensure protection of the interests of the ordinance, taking
into consideration the following factors:
(a)
Values and functions of the buffer zone and those particular
areas of the buffer zone that will be impacted by the proposed project;
(b)
Pre-project characteristics of the buffer zone and the particular
area to be impacted, including, but not limited to, ground slope,
soil conditions, vegetation, and prior disturbances;
(c)
Availability of reasonable alternatives to the project as proposed
that would avoid or further minimize or mitigate impacts to the buffer
zone; and
(d)
The proposed project's likely short-term and long-term
impacts to the buffer zone and/or adjacent resource areas.
