The purpose of this chapter is to protect the wetlands, related
water resources and adjoining land areas in the Town of Fairhaven
by controlling activities deemed by the Fairhaven Conservation Commission
likely to have a significant or cumulative effect upon wetland values,
including but not limited to the following: public or private water
supply, groundwater, flood control, erosion and sedimentation control,
storm damage prevention, water pollution control, fisheries, land
containing shellfish, wildlife habitat, recreation, aesthetics, agriculture
values, and the ability of resource areas to mitigate impacts from
climate change (collectively, the "wetland values protected by this
chapter").
Except as permitted by the Fairhaven Conservation Commission
or as provided in this chapter, no person shall remove, fill, dredge,
build upon or alter the following resource areas:
A. Any freshwater or coastal wetland, marsh, wet meadow, bog, or swamp;
or within 100 feet of these resource areas.
B. Any bank, beach, creek, dune, lake, river, pond, stream, estuary,
or ocean; or within 100 feet of these resource areas.
C. Any land under lakes, rivers, ponds, streams, estuaries or the ocean.
D. Lands subject to flooding or inundation by groundwater or surface
water, lands subject to tidal action, coastal storm flowage, or flooding.
E. The Coastal Resilience Zone (CRZ).
F. Land in the Nasketucket River Basin Overlay District.
After public notice and public hearing, the Conservation Commission
shall promulgate rules and regulations to achieve the purposes of
this chapter. Failure by the Commission to promulgate such rules and
regulations or a legal declaration of their invalidity by a court
of law shall not act to suspend or invalidate the effect of this chapter.
The following definitions shall apply in the interpretation
and implementation of this chapter:
AESTHETICS
Includes, without limitation, the relevant qualities to be
protected under this chapter which are due to those natural and natively
scenic impressions of all resource areas protected under this chapter,
including but not limited to our shores, ponds, lakes, streams, rivers,
harbors, and the lands bordering them. The aesthetic trust of the
Commission shall be the preservation of a perception of the land which
is most conducive to a natural aquatic system, a wildlife habitat,
and a protective buffer between wetland resources and human development
activities.
ALTER
Includes, without limitation, the following activities when
undertaken to, upon, within or effecting resource areas protected
by this chapter:
A.
Removal, excavation or dredging of soil, sand, loam, peat, gravel
or aggregate materials of any kind.
B.
Changing of preexisting drainage characteristics, flushing characteristics,
salinity distribution, sedimentation patterns, flow patterns or flood
retention characteristics.
C.
Drainage or other disturbance of water level or water table.
D.
Dumping, discharging or filling with any material which may
degrade water quality.
E.
Placing of fill or removal of material which would alter elevation.
F.
Driving of piles, erection, alteration or repair of buildings
or structures of any kind.
G.
Placing of obstructions or objects in water.
H.
Destruction of plant life, including cutting of trees.
I.
Changing water temperature, biochemical oxygen demand or other
physical or chemical characteristics of water.
J.
Any activities, changes or work which may cause or tend to contribute
to pollution or any body of water or groundwater.
CUMULATIVE EFFECT
An effect that is significant when considered in combination
with other activities that have occurred, that are occurring simultaneously,
or that are reasonably foreseeable, whether such other activities
are contemplated as a separate phase of the same project, or arise
from unrelated but reasonably foreseeable future projects. Future
effects of sea level rise, coastal or inland flooding, or other future
climate change effects are included among cumulative effects.
COASTAL FLOOD RISK AREA
Any land which is subject to any inundation caused by coastal
storms up to and including that predicted to be caused by the 1% annual
storm for the target year, as defined by the best available coastal
flooding model.
COASTAL RESILIENCE ZONE (CRZ)
Shall include the following resource areas: a) any land subject
to coastal storm flowage; b) any coastal flood risk area; and (c)
the buffer zone of any other coastal wetland resource located in whole
or in part within a) or b). The CRZ may include within its boundaries
one or more of the following subareas: velocity (V) zone; moderate
wave action area (MoWA); highly developed area; and special transitional
area.
HIGHLY DEVELOPED AREA
As defined in the DEP regulations, and to be applied for
the purposes of this chapter to any applicable subareas within the
CRZ.
MODERATE WAVE ACTION AREA (MoWA)
A subarea of LSCSF, with wave heights between 1.5 and three
feet, as defined in the DEP regulations or by FEMA. If the best available
coastal flooding model projects a broader extent of the MoWA than
that defined in the DEP regulations, the Conservation Commission may
adopt such modified projection by local regulation.
PERSON
Any individual, group of individuals, association, partnership,
corporation, company, business organization, trust, estate, the Commonwealth
of Massachusetts or political subdivision thereof to the extent subject
to Town bylaws, administrative agency, public or quasi-public corporation
or body, the Town of Fairhaven and any other legal entity, its legal
representatives, agents or assigns.
SPECIAL TRANSITIONAL AREA
Subareas within the CRZ that are located immediately landward
of coastal beaches, coastal dunes, barrier beaches, coastal banks,
or salt marshes, and extending in a direction perpendicular from the
nearest adjoining land under water to the interior boundary of the
CRZ.
TARGET YEAR
The year specified by the Conservation Commission for projections
of sea level rise and flood risk. If the best available coastal flooding
model is based on a single target year, then the Conservation Commission
shall adopt that year as the target year. If the model includes multiple
target years, then the Conservation Commission shall adopt, by local
regulation, the target year for the best available coastal flooding
model.
As part of a permit issued under this chapter, in addition to
any security required by any other Town or state board, agency or
official, the Conservation Commission may require that the performance
and observance of any conditions imposed hereunder be secured wholly
or in part by one or more of the methods described below:
A. By a proper bond or deposit of money or negotiable securities or
other undertaking of financial responsibility in an amount sufficient
in the opinion of the Commission.
B. By a conservation restriction, easement or other covenant enforceable
in a court of law, executed and duly recorded by the owner of record,
running with the land to the benefit of the Town of Fairhaven, requiring
the permit conditions to be performed before any interest may be conveyed
other than a mortgage interest.
The applicant for a permit shall have the burden of proving
by a preponderance of the credible evidence that the work proposed
in the application will not have unacceptable significant or cumulative
effect upon the wetland values protected by this chapter.
This chapter is adopted under the Home Rule Amendment of the
Massachusetts Constitution and the Home Rule Statutes, independent
of MGL c. 131, § 40 (the Wetlands Protection Act), and regulations
thereunder.
The invalidity of any section or provision of this chapter shall
not invalidate any other section or provision thereof nor shall it
invalidate any permit or determination which previously has been issued.