A. 
Any action by the Conservation Commission is to be taken by a majority of the members present at a meeting. A meeting must be attended by a quorum of Commissioners. A quorum is defined as a majority of the members then in office. The Town of Sturbridge Commission has five appointed members; three must be present. A majority of Commissioners in office must vote in favor of a project for it to be approved. The previously held standard for Conservation Commission approval was that a vote of a majority of the Commissioners present would approve a project.
B. 
Where an order or notification shall be signed by a majority of the Conservation Commission, that action is to be taken by a majority of the members then in office, who need not convene as a body in order to sign, provided they met pursuant to the Open Meeting Law when voting on the matter. The administrative clerk, Agent, a member of the Conservation Commission or an individual designated by the Conservation Commission may receive requests or notices, conduct site visits on behalf of the Commission and act on administrative matters.
C. 
Orders of conditions and determinations of applicability shall be signed by a majority of the Conservation Commission. Copies shall be sent by the Conservation Commission to the DEP, the applicant or their legal representative and the property owner. Delivery of the copy to the person making the request shall be by hand delivery or certified mail, return receipt requested. Said permit shall be valid for three years from the date of issuance. Orders of conditions and determinations of applicability issued for utility company right-of-way management shall be valid throughout the effective duration of the vegetation management plan. Wetlands Bylaw permits and tree removal permits are valid for one year unless otherwise specified by the Commission at date of approval and issuance. Amended orders of conditions do not extend the expiration date of the original final order. Extensions of orders of conditions may be granted for up to three years at the discretion of the Commission. Determinations cannot be extended.
D. 
Continuation of public hearings.
(1) 
At the discretion of the Commission, public hearings may be continued as follows:
(a) 
For the purpose of the applicant obtaining and presenting additional information.
(b) 
If the applicant does not request a continuation in advance of the hearing, or is not present to request a continuation at the public hearing, the hearing may be closed and a decision rendered based on the information available to the Commission at that time.
(2) 
The date, time and place certain of said continued hearing shall be stated at the public hearing and notice posted on the Commission office board and the Town Clerk's office board at least 48 hours prior to the continuation date.
All time periods of 10 days or less shall be computed using business days only. In the case of a determination or order, such period shall commence on the first day after the date of issuance and shall end at the close of business on the 10th business day thereafter. All other time periods specified in MGL c. 131, § 40 and 310 CMR 10.00 and the Town of Sturbridge Wetlands Bylaws shall be computed on the basis of calendar days, unless the last day falls on a Saturday, Sunday or legal holiday, in which case the last day shall be the next business day following.
A. 
Any projects possessing a valid order of conditions, or other permit, issued under the Massachusetts Wetlands Protection Act at the time of adoption of these regulations shall not be subject to re-review under these regulations. Any revisions to the projects after adoption of these regulations that require an amended or extended permit will be subject to review under these regulations.
B. 
Effective dates of regulations.
(1) 
Inlands Wetlands Protection Act ("Hatch Act"): 1965.
(2) 
Wetlands Protection Act (MGL c. 131, § 40): 1972.
(3) 
Wetlands Protection Act Regulations: April 1, 1983.
(4) 
Agricultural: May 21, 1993.
(5) 
Endangered Species Act: June 30, 1995.
(6) 
Bordering vegetated wetland protection: April 23, 1993.
(7) 
Areas of critical environmental concerns: April 23, 1993.
(8) 
Rivers Protection Act: August 7, 1996.
(9) 
Town of Sturbridge Wetlands Bylaw: October 6, 1996.
(10) 
Rivers Protection Act Regulations: October 6, 1997.
(11) 
Town of Sturbridge Wetlands Bylaw Regulations: adopted November 22, 2002; Revision 1 adopted February 14, 2004.
A. 
Public hearing notification is required for all Wetlands Protection Act filings. See Article VII of these regulations for complete application requirements.
B. 
The applicant is responsible for the publication of a legal notice of the public hearing review of the application, including time and place, in a newspaper of general circulation in the Town, not less than five days prior to the meeting.
C. 
The Commission shall also require that the applicant mail a letter, giving notice to the abutter(s) within 200 feet of the project, proof of which shall be submitted to the Conservation Commission at the opening of the public hearing. The notice mailed shall be the standard notification to abutters form available online from the Town of Sturbridge website, the DEP website or through the Commission office. Proof of mailing shall be in the form of a certificate of mailing or certified letter return receipt (green card) from the USPS.
A. 
A request for a determination of applicability is filed when the Commission needs to determine whether or not a given area, or planned work in said area, is subject to the Wetlands Protection Act or Sturbridge Wetlands Bylaw. In order for the Commission to make a site visit for an accurate determination, applicant must submit sufficient information for the Commission to find and view the area.
B. 
For work within riverfront areas, an applicant may submit a request for determination of applicability to identify the scope of alternatives to be evaluated, including sufficient information to enable the Conservation Commission to determine the applicable scope. Actual project work within the 200-foot riverfront resource area requires the filing of a notice of intent.
C. 
If the area or work is in or near an area subject to protection under the Wetlands Protection Act, the applicant may submit a request for determination of applicability. If the area or work (proposed) is outside of the Wetlands Protection Act jurisdiction, then bylaw permits are recommended and may be required.
Within 21 days of receiving a complete request for a determination of applicability, the Conservation Commission shall open a public hearing (or obtain written permission from the applicant for a time extension) with the purpose of reviewing the application, conducting a site visit to confirm the information submitted and issuing a determination of applicability. The Commission shall issue a determination within 21 days of the close of the public hearing or obtain permission at the public hearing or in writing from the applicant or applicant's representative for a defined time extension to issue said determination.
A. 
Any person who proposes to do work that will remove, fill, dredge, build upon, degrade, discharge into or otherwise alter any area subject to protection shall file a notice of intent and other application materials in accordance with the submittal requirements set forth in the instructions for completing notice of intent in the NOI application packet. Two copies of the completed notice of intent, with supporting plans and documents, and including digital versions, shall be sent by certified mail or hand delivered to the Conservation Commission, and one copy of the same shall be sent concurrently to the DEP. Copies must also be sent to NHESP (Natural Heritage and Endangered Species Program) when work is being proposed within areas designated as potential habitat for rare and endangered species by NHESP.
B. 
The following provisions shall apply to any notice of intent whenever filed. The Commission may require that supporting plans and calculations be prepared and stamped by a Massachusetts registered professional engineer (PE) when, in its judgment, the complexity of the proposed work warrants this professional certification. The Commission may also require the preparation of supporting materials by other professionals, including, but not limited to, registered landscape architect, registered land surveyor, environmental scientist, geologist or hydrologist, when, in its judgment, the complexity of the proposed work warrants the relevant specialized expertise.
A. 
Orders of condition.
(1) 
The Conservation Commission shall issue an order of conditions within 21 days of the close of the public hearing, unless written or verbal permission for an extension is given by the applicant, the applicant's representative or the landowner during the public hearing.
(a) 
Findings. For work in a resource area or buffer zone, consult the "presumption" of significance for each resource area and identify applicable interests of the Wetlands Protection Act and Wetlands Bylaw that apply.
(b) 
For each order of conditions, the Commission must issue a decision that approves or denies under both the Wetlands Protection Act and the Sturbridge Wetlands Bylaw. The Commission may approve the order under the Wetlands Protection Act and deny under the Sturbridge Wetlands Bylaw.
(2) 
The Commission must first make a decision on whether the proposed plan can be approved under the Wetlands Protection Act.
(a) 
The Commission may:
[1] 
Approve with general conditions, and attach special conditions under the Wetlands Protection Act and Sturbridge Wetlands Bylaw;
[2] 
Deny under the Wetlands Protection Act if the proposed work does not meet the performance standards, citing which performance standards have not been met;
[3] 
Deny under the Wetlands Protection Act if there is a lack of information necessary for making a decision per 310 CMR 10.05(6)(c), citing what information is lacking and necessary for the Commission to make a decision.
(b) 
The Commission must determine the resource area impacts being proposed, the permitted alteration based on WPA performance standards, proposed and permitted replacement.
(c) 
The Commission must make a decision as to whether or not the proposed plan can be conditioned to meet the standards set forth in the municipal ordinance.
(d) 
If denied under both the Wetlands Protection Act and the Sturbridge bylaw, the applicant appeals to DEP for a superseding order of conditions under the Wetlands Act, and appeals to the Worcester County Superior Court for the bylaw.
(e) 
If the Commission approves the plan under the Wetlands Protection Act, but denies under the Sturbridge Wetlands Bylaw, the applicant appeals only to Worcester County Superior Court.
(3) 
An order of conditions or notification of non-significance shall be valid for three years from the date of its issuance except where otherwise specified. No order shall be deemed expired when an appeal is pending.
B. 
Orders of resource area delineation. The Commission must determine whether the boundaries described in the referenced plans were accurately drawn for bordering vegetated wetlands and any other resource areas.
C. 
Recording documents with the Registry of Deeds. It is the responsibility of the applicant to record orders of condition, orders of resource area delineation, and certificates of compliance with the Worcester Registry of Deeds, and provide the proof of recording back to the Sturbridge Commission.
A. 
Combined application to the Conservation Commission for work regulated under the WPA and local Wetlands Bylaw may take the form of a request for determination of applicability (WPA Form 1) or a notice of intent (WPA Form 3).
B. 
Permits may be combined for both the local bylaw and WPA using either a determination of applicability (WPA Form 2) or an order of conditions (WPA Form 5) as appropriate for the project.
A. 
Site visit requirements.
(1) 
After permit applications are received, the Commission (or an agent or a representative) will conduct a visit to the site before the scheduled public hearing. The applicant and/or landowner is required to prepare the site for this visit by clearly flagging or marking the following areas:
(a) 
The boundary of the resource area.
(b) 
The corner and angle points of proposed buildings, wetland crossing or other relevant aspects of the proposed project.
(c) 
The limits of disturbance/erosion control line.
(d) 
The twenty-five-foot, fifty-foot, 100-foot and 200-foot buffer zone lines.
(2) 
Failure to have the site properly marked for a site visit may delay any decision by the Commission, or may be considered grounds to deny the project. An applicant may request a time extension for the Commission to conduct additional site visits. The reasonable time extension must take into account the volunteer status of the Commissioners, and the Commission's conservation-related work load, at the time of the public hearing in question.
(3) 
After receiving a permit from the Commission and prior to the start of any work, the erosion control shall be installed on the site as agreed to as submitted and approved by the Commission. The Commission shall be given seven calendar days' notice to inspect the erosion control and request changes. After that time period, the applicant may start work and the inspection and possible requests for changes in the erosion control will be made at the Commission's earliest convenience.
(4) 
Prior to any work commencing on site, a DEP sign showing DEP File #300-XXX must be installed at the entrance to the site and be clearly visible from the public way, but not placed on a living tree. Per DEP regulations, this sign must be no smaller than 24 inches by 24 inches, and no larger than 36 inches by 36 inches. For a letter permit issued through the SCC, this sign should read "SCC ## - ##".
(5) 
For phased projects, the applicant shall hold pre-construction briefings with the Commission and/or its representative prior to each major phase of work, i.e., erosion control installation, tree clearing, grading, roadway construction, etc.
B. 
Timing of delineations and resource verification.
(1) 
Timing of submittal of proposed plans shall allow for seasonally appropriate resource area delineations and verification of resource areas such as stream status, vernal pool viability or mean annual high water mark for perennial streams. Failure to submit applications with seasonal verification constraints at appropriate times of the year may result in a request by the Commission to continue the public hearing until the appropriate time of year for the project specific review, in a permit which requires a minimum of a 200-foot protective buffer around the resource in question, or in a denial of the proposed project.
(2) 
In the case of challenges to the presumption of vernal pool habitat, the Conservation Commission may require that the determination be postponed until the appropriate time period consistent with the evidence being presented. The Commission will either require its own site visits to confirm the evidence or rely on a neutral, third-party qualified consultant at the applicant's expense.
(3) 
In the case where precise field verification is necessary to confirm a proposed delineation, the Conservation Commission may require that the delineation be postponed until an appropriate time period where weather conditions allow verification of evidence being presented. The Commission will either require its own site visits as necessary to confirm the evidence, or rely on a neutral third-party qualified wetlands consultant at the applicant's expense.
A. 
The Commission may extend an order of conditions for one or more periods of up to three years each. The request for an extension shall be made to the issuing authority at least 30 days prior to expiration of the order. The extension permit shall be signed by a majority of the Commission.
B. 
Extension permits will only be granted for those projects which meet current state and local regulations. Extensions will not be allowed for projects which do not meet regulations, unless the project is also amended and modified to come in compliance with said regulations. Any review by the Commission for an extension to an approved project will be based on the regulations in effect at the current time.
C. 
The Commission may deny the request for an extension and require the filing of a new notice of intent for the remaining work in the following circumstances:
(1) 
Where no work has begun on the project, except where such failure is due to an unavoidable delay, such as appeals, in the obtaining of other necessary permits;
(2) 
Where new information, not available at the time the order was issued, has become available and indicates that the order is not adequate to protect the interests identified;
(3) 
Where incomplete work is causing damage to the interests;
(4) 
Where work has been done in violation of the order, MGL c. 131, § 40, 310 CMR 10.00, the Town of Sturbridge Wetlands Bylaw or these regulations.
D. 
The extension permit for orders of conditions shall be recorded in the Worcester Land Court or the Worcester Registry of Deeds, whichever is appropriate. Proof of recording shall be sent to the Commission prior to the start of any further work. If work is undertaken without the applicant so recording the extension permit, the Commission may issue a cease and desist order, or may itself record the extension permit.
A. 
Upon completion of the work described in a final order of conditions, the applicant shall request in writing the issuance of a certificate of compliance stating that the work has been satisfactorily completed.
B. 
In order to review a request for certificate of compliance, the Commission will need the following information:
(1) 
Completed request for certificate of compliance form.
(2) 
Proof of substantial compliance with the plan approved by SCC:
(a) 
A written statement from an appropriate registered professional, certifying substantial compliance with the approved plan and the order of conditions; or
(b) 
An "as built" plan, also signed and stamped by the above-named professional, showing all features in their "as built" location.
C. 
Upon receipt of a complete request, the Commission or its Agent will conduct a site visit verifying compliance with the plan and stability of the site. The Commission has a period of 21 days within which to hold a review of the request for a certificate of compliance during public meeting. A certificate of compliance shall be issued within 21 days of receipt of the request and shall certify that the activity or portions thereof described in the order of conditions and plans have been completed in substantial compliance with the order. The certificate of compliance shall indicate any ongoing condition required by the order of conditions. The certificate of compliance shall be signed by a majority of the Commission.
D. 
If the issuing authority determines, after review and inspection, that the work has not been done in compliance with the order, it may refuse to issue a certificate of compliance. Notification of denial shall be issued within 21 days of receipt of a request for a certificate of compliance, it shall be in writing and it shall specify the reasons for denial.
E. 
The Commission will decline to issue a certificate of compliance until the project site is fully stabilized and any replication or restoration areas are deemed successful by the Commission. The certificate of compliance shall specify any ongoing conditions.
F. 
The certificate of compliance shall specify which, if any, of such conditions shall continue. The certificate shall also specify to what portions of the work it applies, if it does not apply to all the work regulated by the order.
G. 
The certificate of compliance shall be recorded in the Land Court or Registry of Deeds, whichever is appropriate. Proof of recording shall be sent to the Commission.
A. 
The Commission shall have the power to issue a waiver to an applicant requesting 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 with the Commission and the Commission conducts a public hearing. Such waiver shall be set forth by the issuance of an order of conditions by the Commission.
B. 
In order for the Commission to issue a waiver, the Commission must find, based on clear and convincing evidence set forth by the applicant, that a literal enforcement of the provisions of this bylaw would involve substantial hardship, financial or otherwise, to the applicant. Such a finding would be based upon a review of circumstances relating to soil conditions, hydrological conditions and topography of such land, as well as a conviction that such a decision could be granted without detriment to the values or purposes protected by the Wetlands Bylaw Regulations.
C. 
A waiver (as stated above) to the fifty-foot "no build" and the twenty-five-foot "no disturb" buffer, may also be granted to applicants under the following circumstances: the area is 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. The applicant must show that measures will be incorporated into the project to ensure that there will be no negative impact to the resource area and must provide additional layers of protection equivalent to the value of the resource buffer being altered.
D. 
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 minimum criteria noted in § 365-1.1.
Emergency projects necessary for the protection of the health and safety of the public are not bound by the permit and application process of this bylaw regulation. Notice of an emergency situation, oral or written, must be provided to the Conservation Commission, its Agent or any single Commissioner prior to commencement of any work being performed or within 24 hours after said work has begun. The Conservation Commission, its Agent or any single Commissioner must certify the work as an emergency project, and can act at the immediate onset of the emergency. The emergency certification must then be ratified by a majority of the Conservation Commission at the next regular meeting.
A. 
Work must be performed (or ordered to be performed) by an agency of the Commonwealth or the Town of Sturbridge.
B. 
Work will be performed only for the time and place certified by the Conservation Commission for the limited purposes necessary to abate the emergency.
C. 
Protective measures such as erosion controls or stormwater management required by the Conservation Commission must be in compliance with regulations.
D. 
A permit application must be filed with the Commission within 21 days of the commencement of the emergency project.
E. 
The Commission may, at its discretion, conduct a site visit to view the work being performed and to confirm that the information in the notice is correct.
A. 
Regarding state regulations. Those aggrieved by the Commission's actions based on the Wetlands Protection Act or the Riverfront Protection Act may appeal to DEP and request that DEP issue a superseding determination of applicability or order of conditions. This appeal must be made within 10 business days of the issuance of the order.
B. 
Regarding local bylaw regulations. Those aggrieved by the Commission's actions based on the Sturbridge Wetlands Bylaws may contest the Commission's decision through Massachusetts Superior Court. This appeal must be made within 60 calendar days of the issuance of the order.
C. 
The following persons may request an appeal from the DEP or Superior Court:
(1) 
The applicant.
(2) 
The owner, if not the applicant.
(3) 
Any person aggrieved by an order.
(4) 
Any owner of land abutting the land on which the work is to be done.
(5) 
Any 10 residents of the city or town where the land is located.
(6) 
The Conservation Commission
(7) 
The Department of Environmental Protection.
A. 
Orders.
(1) 
Enforcement orders or cease and desist orders are issued when it is found that an activity is in violation of the Massachusetts Wetlands Protection Act or its regulations, or the Town of Sturbridge Wetlands Bylaw or regulations or a final order by the SCC.
(2) 
Such orders may be issued by the Sturbridge Conservation Agent, or any of the sitting Commissioners, or directly by the DEP or the Division of Law Enforcement of the Department of Fisheries, Wildlife and Environmental Law Enforcement (DFWELE).
B. 
Violations.
(1) 
Violations include, but are not limited to:
(a) 
Conducting activities within a buffer zone or a resource area without a permit;
(b) 
Conducting work which has an adverse impact on a resource area;
(2) 
For permitted projects, violations can include:
(a) 
Failure to comply with a final order of conditions;
(b) 
Failure to complete work described in a final order of conditions;
(c) 
Failure to obtain a final order of conditions or extension permit.
C. 
A final order of conditions may be enforced by the Conservation Commission, its Agent or any individual Commissioner, or designee authorized by the Commission (the Board of Health Agent, the Building Inspector or the Police Department), or the DEP. The members, officers, employees and agents of the Conservation Commission and the DEP may enter upon privately owned land for the purpose of performing their duties under MGL c. 131, § 40, 310 CMR 10.08(2) and the Town of Sturbridge Wetlands Bylaws. Entry onto private property by Town officials or their agents may only take place with the owner's consent or pursuant to an administrative search warrant.
D. 
Enforcement orders shall be signed by a majority of the Commission, unless deemed an emergency. An emergency allows a single Commissioner or the Agent to take immediate action. Consultation with other Commissioners is encouraged. Said order shall then be ratified by a majority of the Commission at the next scheduled meeting or be considered invalid.
E. 
Owners of land on which violations occur will receive written notice of the violation, what measures are to be taken and the day and time on which the owner or the owner's representative is to meet with the Commission. These meetings will usually be held during the next scheduled public meeting. However, in the case of serious impact or threat of immediate serious impact to a resource area, the Commission may schedule the meeting at the earliest possible date. Determination of serious impact will be at the discretion of a majority of the Commission. Failure to attend the meeting scheduled or to notify the Commission and arrange an alternative acceptable time will result in a cease and desist order being issued at the stated meeting time and date. Failure to respond to the cease and desist order will result in the issuing of an enforcement order. Said enforcement order will not be waived until the property and the violation are completely mitigated and restored, and approved by the Conservation Commission.
F. 
Any person who violates the provisions of the Sturbridge Wetlands Bylaw, rules and regulations thereunder, or permits issued thereunder, shall be punished by a fine of not more than $300. Each day or portion thereof during which a violation continues shall constitute a separate offense, and each provision of the bylaw, rules and regulations, and permit violated shall constitute a separate offense.
(1) 
Activities deemed to be violations of wetland/conservation laws, bylaws or regulations, requiring the Commission to initiate enforcement actions, will have penalties imposed.
(2) 
Fines may be issued to both homeowners and contractors. The SCC has the right to fine any contractor for work done without a permit, or for any other violation of the WPA or Sturbridge Wetlands Bylaw, the same as a homeowner.
(3) 
Fines shall be issued and collected using noncriminal disposition. Failure to respond may result in additional enforcement actions.
G. 
The SCC also has the right to consider all circumstances surrounding a violation, and may, at its discretion, choose to suspend some or all of fines imposed for any violation.
H. 
The Commission may also, at its discretion, elevate the offense to the Massachusetts Department of Environmental Protection, which could result in criminal charges depending upon the severity of the action.
The following fees pertain to local bylaw review and are in addition to those required under the Wetlands Protection Act; amounts will be set by the Conservation Commission. Additional fees for other applications or requests may be imposed and set by the Sturbridge Conservation Commission.
A. 
Requests for determination. A local filing fee, made payable to the Town of Sturbridge as a separate check, shall accompany all requests for determinations.
B. 
Resource area delineations. A local filing fee shall accompany all state permit filings where resource area boundary confirmation or work occurs within the 100-foot buffer zone. If a resource area delineation has not been made and approved by the Commission within the three years prior to the submittal of an application, delineation will automatically become part of the project application. Delineations are valid for three years or for the life of the active permit. A local fee, made payable to the Town of Sturbridge, as a separate check, shall be paid by the applicant, whether the delineation is filed as a notice of intent, a request for determination, or a request for resource area delineation.
C. 
Notices of intent. A local fee made payable to the Town of Sturbridge, submitted on a separate check from any NOI filing fees, shall accompany all NOI filings.
D. 
Certificate of compliance. A local filing fee made payable to the Town of Sturbridge as a separate check shall accompany all requests for certificates of compliance.
E. 
Replication, mitigation monitoring. A local fee to cover the Town's cost for monitoring replication or mitigation areas over the five years normally required to monitor these areas, made payable to the Town of Sturbridge, submitted on a separate check, shall accompany all proposals for which replication or mitigation is proposed.
F. 
Site visits. The Commission shall not impose additional fees for site visits unless more than one public-hearing-related site visit is required due specifically to an applicant's failure to properly mark the site or prepare the plan in accordance with § 365-4.10 of these regulations. In this circumstance, to cover the Town's cost and to account for the inconvenience imposed on the Commission and staff, a fee shall be submitted for each site visit necessary due to an applicant's negligence in preparing the field adequately. Multiple site visits necessitated by project complexity or the Commission's discretion to revisit the site will not be charged an additional site visit fee. Failure to submit the fee will result in denial due to incomplete project application.
G. 
Waivers. The Conservation Commission may waive the local filing fee for an application or request filed by a government agency, and may waive the filing fee for a request for determination of applicability filed by a person with no financial connection to the subject property. Said request for waiver shall be made at the time of submittal of the application.
H. 
General permit.
(1) 
Applications will not be considered complete unless all local and state fees are paid at the time of application submittal. The Conservation Commission shall notify the applicant, in writing, when the correct filing fee has not been paid to the Town and the filing is therefore incomplete. Said notification shall specify the correct fee amount. The fee will be based on the original project design as proposed in the notice of intent, the request for determination or the request for resource area delineation and based on any changes or amendments made during the public hearing process which increase the size of the project. Rebates will not be given for projects which decrease in size during the public hearing, due to an applicant's failure to consider alternatives and reasonable use prior to the initial filing.
(2) 
In lieu of paying any disputed amount of the filing fee, the applicant may file a request for determination of applicability with sufficient information to enable the Conservation Commission to determine the extent of the area, or the type and extent of the activity, subject to protection under MGL c. 131, § 40. When a request for determination of applicability is filed by an applicant to resolve a dispute over the filing fee, all proceedings under the permit filed with the SCC shall be stayed until all appeal periods for the determination have elapsed or, if the determination is appealed, until all proceedings before the DEP or Superior Court have been completed. A final determination of applicability as to the area, or the type and extent of the activity, subject to protection shall be binding on all parties and shall be used in calculating the fee.
A. 
The Conservation Commission is empowered to deny a permit:
(1) 
For failure to meet the requirements and performance standards of the Wetlands Protection Act and Regulations, 310 CMR 10.00, and Local Wetlands Bylaw and Regulations;
(2) 
For failure to submit necessary information and plans requested by the Conservation Commission;
(3) 
When the Conservation Commission determines that it is not possible to conduct the requested activity without unacceptable wetlands alterations.
B. 
An order of conditions denial shall include:
(1) 
Identification of missing requested information, as well as why it is important for the review;
(2) 
Specific reasons regarding why the project cannot be conditioned to protect the resource areas.
C. 
Denials must be specific to either or both state and local bylaws and regulations.
A. 
Intermittent stream. Generally, a body of running water which does not flow throughout the year has a watershed less than one square mile and is shown on the USGS topographic map as intermittent. If a stream is indicated on the USGS topographic map as perennial, the Conservation Commission may only consider finding a stream intermittent when an applicant has filed a request for determination of applicability and provided documentation meeting the provisions of 310 CMR 10.58(2)(a)1.d. A determination or finding of the stream as intermittent is only valid for three years (the life of the determination). Occasionally a body of running water, which does not flow throughout the year, is perennial (dryness may be due to drought, impoundment or other unusual or unnatural circumstances).
B. 
Perennial streams/rivers. See § 365-5.5 for a complete and detailed definition and description of river or perennial stream.
C. 
Stream reclassification requirements.
(1) 
The SCC reserves the right to reconsider and overturn a reclassification before the three years has expired if newly available scientific data and evidence is obtained showing the stream to be perennial. This Commission discretion may occur at any time new evidence becomes available; such a finding invalidates a previously issued determination of applicability.
(2) 
In addition to the information required under the above-noted sections of the Wetlands Protection Act, the following additional evidence must be submitted by applicants requesting a reclassification of a stream as shown on current USGS topographical maps:
(a) 
Watershed (i.e., drainage basin) size at the point of the stream for which reclassification is being requested. (A watershed greater than one square mile shall be a strong indicator of a perennial stream or river. A watershed greater than 1/2 square mile with a stratified drift component of 75% or greater shall be a strong indicator of a perennial stream or river.)
(b) 
Rainfall data from at least three, triangulating, climatological data sources for the site.
(c) 
Current State of Massachusetts declared drought conditions for the specific area in question.
(d) 
Flowing water. Flowing water at the site in question shall be a strong indicator of perennial status. Lack of flowing water during unusually dry conditions (as determined by the Commission based on available rainfall data and observation of below-normal water level conditions) shall prohibit reclassification of a stream from perennial to intermittent until normal hydrological conditions exist. Proof of a dry streambed must be present for four consecutive days at a minimum of 24 hours' separation each (i.e., a minimum of 96 consecutive hours). Proof must be documented with field notes and dated, signed photographs. Any information provided must be provided by a credible and competent source (as determined by the Conservation Commission). A credible source is typically classified as a professional in the field with an associated master's degree or a bachelor's degree and three to five years of documented field experience.
(e) 
Impoundments created by beavers or man or evidence of withdrawal of water of any kind upstream from the point in question shall be cause to deny a change from perennial to intermittent unless and until the change has been corrected and normal flow conditions have resumed. In the instance of beaver activity, the applicant should note that beavers typically only build dams in response to running water, thus indicating a stream's perennial nature.
(f) 
Soil type underlying the stream or watercourse channel.
A. 
Failure to submit reports on time required in an order of conditions or other permit shall be cause for the Commission to issue a cease and desist order until all reports and site data have been submitted to the Commission office. Continued failure to submit said reports shall be deemed sufficient cause to revoke the permit issued due to failure on the applicant's or landowner's part to provide adequate assurance that the construction site is creating no potential or actual adverse impact to the resource area.
B. 
All reports submitted by a third-party environmental reviewer shall include:
(1) 
The date a request for compliance is made.
(2) 
The response from the contractor.
(3) 
The date on which the contractor complied with the request.
(4) 
A site plan or locus.