These regulations are promulgated by the Upton Conservation Commission pursuant to the authority granted to the Commission under § 280-8 of the Town of Upton Wetlands Protection Bylaw. These rules and regulations complement the bylaw and shall have the force of law upon their effective date.
A.
The Upton Wetlands Protection Bylaw sets forth a public review and decision-making process by which activities affecting resource areas subject to protection under the bylaw are to be regulated in order to contribute to the following interests (collectively the "resource interests protected by this bylaw"):
(1)
Protection of public and private water supply;
(2)
Protection of groundwater;
(3)
Flood control;
(4)
Erosion and sedimentation control;
(5)
Storm damage prevention;
(6)
Protection of water quality;
(7)
Water pollution control;
(8)
Protection of wildlife habitat;
(9)
Protection of rare species habitat;
(10)
Protection of agricultural value; and
(11)
Protection of recreation value.
B.
These regulations serve to implement the Upton Wetlands Protection Bylaw by establishing standard definitions, uniform procedures, design specifications, and performance standards by which the Commission may carry out its responsibilities under the bylaw.
A.
Areas subject to protection under the bylaw.
(1)
Any freshwater wetland (including marshes, wet meadows, bogs, and swamp, isolated wetland, vernal pool, bank, reservoir, pond, or intermittent stream);
(3)
Any river, perennial stream, lake or pond (greater than 20,000 square feet in size);
(6)
Any land subject to flooding or inundation by groundwater, surface water, or storm flowage.
B.
Activities subject to regulation under the bylaw.
(1)
Any activity proposed or undertaken which constitutes removing, filling, dredging, building upon, clearing of vegetation from, degrading, discharging into, or otherwise altering any areas specified in Subsection A above is subject to regulation under the bylaw and requires the filing of a notice of intent (NOI).
(2)
Any person desiring to know whether or not a proposed activity or an area is subject to the bylaw may request in writing a determination of applicability from the Commission. Such a request for determination (RFD) shall be submitted pursuant to § 330-9 of these regulations.
(3)
Any person desiring to know the boundaries of area(s) subject to the bylaw may request in writing a determination from the Commission by submitting an abbreviated notice of resource area delineation (ANORAD) pursuant to § 330-9 of these regulations.
(4)
Informal consultations with the Commission regarding the applicability of these regulations are encouraged.
A.
Conditional exceptions.
(1)
The application and permit required by the bylaw shall not be required for maintaining, repairing, or replacing, but not substantially changing or enlarging, an existing and lawfully located structure or facility used in the service of the public to provide electric, gas, water, telephone, telegraph or other telecommunication services, or sanitary or storm sewers, provided that written notice has been given to the Commission prior to the commencement of work, and provided that the work conforms to performance standards and design specifications in regulations adopted by the Commission.
(2)
The application and permit required by the bylaw shall not be required for work performed for normal maintenance or improvement of land in agricultural use as defined by the Wetlands Protection Act Regulations at 310 CMR 10.04.
(3)
The application and permit required by the bylaw shall not be required for emergency projects necessary for the protection of the health and safety of the public, provided that the work is to be performed by or has been ordered to be performed by an agency of the commonwealth or a political subdivision thereof, provided that advance notice, oral or written, has been given to the Commission prior to the commencement of the work or within 24 hours after commencement; provided that the Commission or its agent certifies the work as an emergency project; provided that the work is performed only for the time and place certified by the Commission for the limited purposes necessary to abate the emergency; and provided that within 21 days of commencement of an emergency project a permit application shall be filed with the Commission for review as provided by the bylaw. Upon failure to meet these and other requirements of the Commission, the Commission may, after notice and a public hearing, revoke or modify an emergency project approval and order restoration and mitigation measures.
(4)
Activities in the buffer zone on single-family house lots recorded before and with a house constructed before May 1, 2004, shall be exempt from the bylaw and these regulations. This exemption in no way implies exemption from applicable regulation under the Wetlands Protection Act or MA Endangered Species Act.[1]
(5)
The application and permit required by the bylaw shall not be required for minor activities within the buffer zone or riverfront area, provided they meet the requirements outlined herein. Minor activities include, but are not limited to:
(a)
Unpaved pedestrian walkways for private use;
(b)
Plantings of native species of trees, shrubs, or groundcover, but excluding turf lawns;
(c)
The conversion of impervious to vegetated surfaces, provided erosion and sedimentation controls are implemented during construction;
(d)
Fencing, stonewalls, and stacks of cordwood provided they will not constitute a barrier to wildlife movement and fences to contain livestock are located more than 100 feet from the mean annual high water line within a riverfront area or 50 feet from other resource areas, whichever is farther;
(e)
Mowing of lawns and pruning of preexisting landscaped areas;
(f)
Vista pruning, provided the activity is located more than 100 feet from the mean annual high water line within a riverfront area or 50 feet from other resource areas, whichever is farther;
(g)
Conversion of lawn to uses accessory to existing single-family houses such as decks, sheds, patios, pools, and gardens provided the activity is located more than 100 feet from the mean annual high water line within a riverfront area or 50 feet from other resource areas, and erosion and sedimentation controls are implemented during construction;
(h)
Removal of dead and dying trees that pose a hazard to structures or public safety;
(i)
Repair of existing structures provided footprint of structure does not change and erosion and sedimentation controls are implemented during construction; and
(j)
Activities that are temporary in nature, have negligible impacts, and are necessary for planning and design purposes (e.g., installation of monitoring wells, exploratory borings, sediment sampling and surveying) provided that erosion and sedimentation controls are implemented.
B.
Variances.
(1)
The Commission may waive specifically identified and requested procedures, design specifications, performance standards, or other requirements set forth in its regulations, provided that: the Commission finds in writing after said public hearing that there are no reasonable conditions or alternatives that would allow the proposed activity to proceed in compliance with said regulations; that avoidance, minimization and mitigation have been employed to the maximum extent feasible; and that the waiver is necessary to accommodate an overriding public interest or to avoid a decision that so restricts the use of the property as to constitute an unconstitutional taking without compensation. The applicant must demonstrate that desirable relief may be granted without material detriment to the values protected by the bylaw and without substantially derogating from the intent or purpose of the bylaw. It shall be the responsibility of the applicant to provide the Commission with any and all information which the Commission may request in order to enable the Commission to ascertain any such material detriment to the values protected by the bylaw. The failure of the applicant to furnish any of the information so requested shall result in the denial of a request for a variance pursuant to this subsection.
(2)
The Commission may impose conditions, safeguards, and limitations in a variance to protect further the interests protected by the bylaw or the intent or purpose of the bylaw.
(3)
A variance shall expire on a date specified by the Commission, not later than three years from the date of issuance of the permit, and may be reestablished only after notice and a new hearing pursuant to this section.
A.
The applicant shall have the burden of going forward by providing credible evidence from a competent source in support of all matters asserted by the applicant in accordance with the burden of proof pursuant to Subsection B below.
B.
The applicant shall have the burden of proving by a preponderance of the credible evidence that the activities proposed in the application will not have a significant or cumulative effect on the values protected by the bylaw. Failure to meet the burden of proof shall be cause for the Commission to deny the application for permit, along with any work or activity proposed herein.