Article I Introduction

§ 365-1.1 Statement of jurisdiction; protected interests; general restrictions; waivers.

Areas subject to protection under the Sturbridge Wetlands Bylaw and its Regulations include all resource areas protected under the Wetlands Protection Act and its regulations: bank, land under water bodies and waterways, bordering vegetated wetlands, riverfront area, land subject to flooding and lands within the 100-foot buffer zone of bank and bordering vegetated wetland. In addition, under the Sturbridge Wetlands Bylaw and Regulations, the following resource areas are subject to protection: seasonal wetlands, vernal pools, lands subject to flooding or inundation and lands within the 200-foot buffer zone of any of the aforesaid jurisdictional areas under the Wetlands Protection Act or Sturbridge Wetland Protection Bylaw, whether or not they border surface waters. For the purpose of this document, "resource areas identified" or "resource areas protected" refer to the above-stated areas.

Resource area interests include those listed in the Wetlands Protection Act and its regulations: protection of public and private water supply, protection of groundwater supply, flood control, storm damage prevention, prevention of pollution, protection of fisheries and protection of wildlife habitat (protection of land containing shellfish is not applicable, since this refers to "land under the ocean"). The following five additional interests apply to the Sturbridge Wetlands Bylaw and Regulations: erosion and sedimentation control, protection of water quality, protection of rare species habitat, protection of recreational values and protection of agriculture and aquiculture activities.

Activities within the areas subject to protection, as well as activities within the 200-foot buffer zones to areas subject to protection, and 500-foot buffer zone of areas with 8% slope or greater which will remove, fill, dredge, build upon, degrade, discharge into or otherwise alter said resource areas and buffer zones fall under the jurisdiction of the Sturbridge Conservation Commission ("the Commission"). Said activities, if in an area subject to the Wetlands Protection Act, require a public hearing for prior review and approval by the Commission to insure there will be no significant adverse impact to the resource area. Said activities, if in an area subject to protection under the Sturbridge Wetlands Protection Bylaw and Regulations, require review and approval during a public meeting of the Conservation Commission to insure there will be no significant adverse impact to the resource areas and buffer zones specifically covered by these regulations.

Activities undertaken in close proximity to wetlands and other resource areas have a high likelihood of adverse impact upon the wetland or other resource, either immediately, as a consequence of construction or over time, as a consequence of daily operation or other activities. These adverse impacts from construction and use can include but are not limited to erosion, siltation, loss of groundwater recharge, disruption of hydrologic connections, nutrient runoff, poor water quality, harm to wildlife habitat or disruption of wildlife habitat corridors. The Commission may therefore require that the applicant maintain a strip of continuous, undisturbed vegetative cover in part or all of the 200-foot area and set other conditions on this area, unless the applicant provides evidence deemed sufficient by the Commission that the area or part of it may be disturbed without harm to the values protected by the law.

Work and activity within 200 feet of wetlands and resource areas should be avoided and discouraged and reasonable alternatives pursued. Accordingly, the Conservation Commission shall begin with the presumption that lands within 200 feet of the resource areas previously discussed in this section are best left in an undisturbed and natural state.

Disturbance of vegetation or soils within 25 feet of a resource area creates direct observable impacts to the resource area, including but not limited to those stated elsewhere in these regulations. The minimum strip of continuous undisturbed vegetative cover for any and all resource areas is 25 feet from the outermost edge of the resource area in all directions. The twenty-five-foot buffer is to be considered a "no disturb" buffer.

Any structures less than 50 feet from a resource area can create temporary construction and long-term "normal daily use" impacts within the twenty-five-foot buffer. The minimum distance for a new structure will be 50 feet from any resource area. The fifty-foot "no structure" buffer will not apply to any structure existing prior to the adoption of these regulations. However, structures being removed and replaced must comply with the regulations in effect at the time of the reconstruction. For preexisting structures within the fifty-foot buffer, which are not being removed but for which the footprint is changing, any increase in footprint must take place no closer than 50 feet to the resource area.

Waivers.

(1)

The Commission shall have the power to issue a waiver to perform activities as described in § 365-1.1 of this Town of Sturbridge Wetlands Bylaw Regulation, after said applicant files a notice of intent (if proposed activities are subject to the Wetlands Protection Act) with the Commission and the Commission conducts a public hearing. If said activity is subject to the Sturbridge Bylaw and Regulations, the applicant shall file a wetland bylaw permit application. Such waiver shall be set forth by the issuance of an order of conditions or wetland bylaw permit by the Commission. In order for the Commission to issue a waiver with respect to a particular project, the Commission must find, based on clear and convincing evidence set forth by the applicant, that owing to circumstances relating to soil conditions, hydrological conditions, topography of such land and especially affecting such land but not generally affecting wetlands within the Town, a literal enforcement of the provisions of this bylaw would involve substantial hardship, financial or otherwise, to the applicant, and that desirable relief may be granted without detriment to the values protected by the Town Wetlands Bylaw and these regulations and without substantially derogating from the extent or purpose of the Town Wetlands Bylaw and these regulations.

(2)

A waiver (as stated above) to the fifty-foot "no structure" buffer and the twenty-five-foot "no disturb" buffer may also be granted to applicants under the following circumstances: the area is already previously disturbed and the proposed project will improve the protection to the resource area; or the applicant can prove with documented evidence that there are no other substantially equivalent alternatives available. Said applicant must show that measures will be incorporated into the project to ensure that there will be no significant adverse impact to the resource area and must provide additional protection at a ratio of 2:1 to the value of the resource buffer being altered.

(3)

Single-family homes, existing prior to the adoption of these regulations, on small, lakefront lots may, on a case-by-case basis, be granted a partial waiver from the twenty-five-foot and fifty-foot buffer requirements. Granting of a waiver will be based on the following minimum criteria;

(a)

A plan providing for 2:1 mitigation for area disturbed. Said plan shall include. but not be limited to, plantings of naturally occurring vegetation, along the lakefront, which increase the vegetative cover and decrease erosion within the first twenty-five-foot buffer to the lake.

(b)

Any proposed disturbance shall be minimized and shall be located at the furthest possible distance from the lake.

(c)

Said plan shall prioritize sedimentation and erosion control improvement issues along the most disturbed and vulnerable portions of the lakefront.

(d)

Mitigation must occur within the twenty-five-foot buffer first and work outward until the required mitigative effects are achieved.

(e)

Any additional structure in the fifty-foot buffer must be minimized and placed as far from the lake as possible.

(f)

Walkways and pathways within the fifty-foot buffer shall utilize pervious materials, to be approved by the Commission.

(4)

The Commission may impose conditions, safeguards and limitations in a waiver permit to protect or further the interests protected by the Sturbridge Wetlands Bylaw and Regulations. It should be understood that waivers are intended to be granted only in rare and unusual cases and are issued at the sole discretion of the Commission.

At the discretion of the Commission, concrete bounds or other appropriate permanent markers clearly delineating the twenty-five-foot "no disturb" buffer, or any alternative approved-width "no disturb" buffer the Commission imposes for each property, are to be installed prior to the start of any work on-site.

§ 365-1.2 Practicable alternatives.

Applicants are required to demonstrate that there are no practicable alternatives to the proposed project with less adverse impact on the protected resource and interests. A "practicable alternative" is an available and feasible alternative which will accomplish the project's purpose, taking into account costs, logistics, the proposed use and the most current technology.

The area in consideration must extend to the subdivided lots [this includes approval not required (ANR) lots], any parcel out of which the lots were created, any adjacent parcels held in common ownership or interest, any parcels which are in the process of being obtained, any parcels previously held in common ownership or interest with the subject property and any other land, which can reasonably be obtained, as of the effective date of the related regulation as listed in § 365-4.19 of these regulations 90% upland requirement. (Also see Sturbridge Zoning Bylaws § 300-4.1D.)

The effect of the practicable alternatives analysis and the purpose of evaluating alternatives is to determine whether impacts to resource areas can be avoided. See the Alternatives Analysis Scope of Requirement in the appendices of these regulations for a complete description.[1]

[1]

Editor's Note: The Alternatives Analysis Scope of Requirement is included as an attachment to this chapter.

§ 365-1.3 No significant adverse impacts.

An applicant is required to demonstrate that any work, including proposed mitigation measures, will have no significant adverse impacts on the resource area. The Commission requires a twenty-five-foot undisturbed vegetated corridor ("no disturb" buffer) around all resource area boundaries; with the exception of certified or identified vernal pools, which will require a minimum of a 100-foot undisturbed buffer. This buffer may range up to 200 feet depending on the characteristics and species present. The term "identified vernal pool" refers to a vernal pool for which sufficient evidence to certify the vernal pool is present and is identified by the Commission or a representative of the Commission. The Commission prohibits the use of pesticides, fertilizers and herbicides within the 100-foot buffer to all resource areas and prohibits the use of salts, quick-release pesticides, quick-release fertilizers and quick-release herbicides within the 200-foot buffer to all resource areas except by licensed applicators. Activities which increase the potential for hazardous impact to the resource areas, such as vehicle maintenance, are prohibited within the 200-foot buffer to resource areas.

When determining whether significant adverse impact could occur/has occurred, the Commission shall include in its review all potential cumulative impacts to resource areas and all work conducted within the 200-foot buffer from the time of adoption of the applicable regulation (See § 365-4.19.) through the proposed project time frame.

Additional limitations exist under the Sturbridge Bylaw and Regulations for riverfront resource areas. Riverfront area (RFA) is the area of land extending between a river's mean annual high water line measured horizontally 200 feet (in a horizontal line). The 200-foot RFA consists of a 100-foot inner riparian zone and a 100-foot outer riparian zone. No disturbance is allowed within the inner riparian zone. Disturbance of up to 5,000 square feet or 10% of the riverfront area within the lot, whichever is greater, may be allowed by the Conservation Commission on a case-by-case basis. Alternatives analysis may be required. See § 365-5.5 of these Sturbridge Wetland Regulations. Additional definitions, requirements, conditions and performance standards under the Wetlands Protection Act Regulations can be found at 310 CMR 10.58. Work may not impair the capacity of the riverfront resource area to provide wildlife and vernal pool habitat. A wildlife habitat evaluation may be required for work within riverfront resource areas. A wildlife habitat evaluation may also be required at the discretion of the Commission for work within the 200-foot buffer to any other resource area on a case-by-case basis. Certified and identified vernal pools are protected at the same standard as rare species habitat. Vernal pools, which are state-certified or locally documented during the course of the public hearing, are also protected at the same standard as rare species habitat.

These standards are intended to identify the level of protection that the Commission must impose in order to contribute to the protection of the interests identified. It is the responsibility of the owner to insure that proposed work is designed and completed in conformance with these performance standards. It is the responsibility of the Commission to impose such conditions on a proposed project as to ensure that the project is designed and completed in a manner consistent with these standards.

§ 365-1.4 Buffer zones.

This section is intended as a general overview. Additional regulations, restrictions or waivers may apply to the specific buffer, project or site in question. For additional information, please refer to the chapters and sections noted in the Table of Contents or contact the Commission office.

As of the date of these regulations, a summary of the state and local conservation-related buffer zones are as follows:

25-foot	"No disturb" buffer - for new construction (See § 365-1.1F.)
25-foot	No additional disturbance allowed for reconstruction. Projects must result in better conditions for the resource area based on scientific evidence of benefit to the resource, 2:1 mitigation required for any new work in this buffer. (See § 365-1.1H.)
50-foot	"No structure" buffer - no new structures (See § 365-1.1G.)
50-foot	Addition to existing structures must be no closer to the resource area than the existing structure. 2:1 mitigation required for reconstruction. Change of the footprint is considered new construction. (See § 365-1.1H.)
100-foot	Wetlands Protection Act (WPA) and Sturbridge Wetland Protection Bylaw buffer, work requires the filing of a state WPA permit. A notice of intent will be required for all work in a resource area, or if there is actual or potential resource area alteration. A request for determination of applicability will be required for any work within the WPA 100-foot buffer zone. All new disturbance should be located outside the 100-foot buffer to the extent possible. (See § 365-1.1D and E.) If the proposed activity is considered a minor activity as defined under 310 CMR 10.02(1), Minor Activities, a wetland bylaw permit or tree removal permit will be required.
200-foot	Local Wetlands Bylaw buffer, review by the SCC is required to ensure no significant adverse impact. Any work proposed between the 100- and 200-foot buffer requires the filing of either a request for determination of applicability, a wetland bylaw permit, or a tree removal permit.
200-foot	Riverfront resource area starts at the edge of mean annual high water mark. This area is considered a resource area and not a buffer zone. The Conservation Commission carefully reviews all proposed riverfront area alterations and requires a notice of intent be filed with the Conservation Commission.
	Vernal pool buffer, the first 100 feet is to be considered the minimum "no disturb" buffer. This buffer zone may be extended to 200 feet based on site conditions and impacts to critical wildlife habitat needed to keep the pool viable. A 500-foot buffer may be applied where slopes exceed 8%.