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:
(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.
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).
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.
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.
Delineations, outside of those included in NOI filings, must use the ANRAD form. Both state and local filing fees apply. For delineations included in an NOI filing, local filing fees may apply. (See § 365-4.17.)
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.
Failure to comply with conditions in any permit issued by the
Commission shall be cause to revoke the permit.
