Except as other specifically provided in these regulations, the Commission shall apply the performance standards contained in the Wetlands Protection Act Regulations (310 CMR 10.00) as they may be amended from time to time. Presumptions of significance contained in 310 CMR 10.00 shall extend to the values protected by the bylaw.
Except as provided in this subsection, the performance standards contained in the DEP Regulations, currently codified at 310 CMR 10.55, shall apply. Prior to permitting work which shall alter a freshwater wetland or isolated wetland, the Commission shall require the applicant to demonstrate by a preponderance of credible evidence that there is no feasible alternative to the work proposed which affords practical use of the land and which would avoid or reduce such alteration. Replacement of freshwater wetlands or isolated wetlands with surface area equal to that altered is a minimum standard. In its discretion, the Commission may require replacement with an area greater than that altered. The applicant will take into consideration the impacts of climate change on selection of plant species and other elements of replacement wetland design, especially resilience to extreme heat, increased/extreme storm events, and changes in precipitation. Plantings within buffer zone should also be climate-change-tolerant/native species. In exercising this discretion, the Commission shall consider the nature and significance of the resource area, the topography and other characteristics of the site, the difficulty of replacement, the area of land available, and other such factors as the Commission may determine to be relevant in a particular case. Replacement may not be required, in the Commission's discretion, when the alteration is temporary (i.e., during pipeline construction) and restoration of the disturbed area can be achieved.
In the review of areas within 200 feet of rivers (including perennial streams), lakes and ponds (over 20,000 square feet), no activities requiring a permit unless the applicant, in addition to meeting the otherwise applicable requirements of the bylaw, has demonstrated by a preponderance of the evidence that: 1) there is no practicable alternative to the proposed project with less adverse effects, and that 2) such activities, including proposed mitigation measures, will have no significant adverse impact on the areas or interests protected by the bylaw. The Commission shall regard as practicable an alternative that is reasonably available and capable of being done after taking into consideration the proposed property use, overall project purpose (e.g., residential, institutional, commercial or industrial), logistics, existing technology, costs of the alternatives, and overall project costs.
Except as provided for in these regulations, the performance standards contained in the DEP Regulations, currently codified at 310 CMR 10.57, shall apply. Prior to permitting any work that will alter land subject to flooding, the Commission shall require the applicant to demonstrate by a preponderance of credible evidence that there is no feasible alternative to the work proposed affording equivalent use of the land and which would avoid or reduce alteration. Creation of compensatory flood storage in volume to twice that displaced by the proposed project is a minimum standard. In its discretion, the Commission may require compensatory flood storage of greater volume, including but not limited to, as a climate change resilient strategy. In exercising this discretion, the Commission shall consider the extent of flooding and the resulting flood hazard, the topography of the site, the area of land available, and such other factors as the Commission may determine to be relevant in a particular case.
Any such activity shall provide compensatory flood storage for all flood storage volume that will be lost at each elevation. Compensatory flood storage shall be at a 2:1 ratio, minimum, for each unit volume of flood storage lost at each elevation. Compensatory flood storage shall mean a volume not previously used for flood storage, shall have an unrestricted hydraulic connection to the same waterway or water body, and, with respect to waterways, shall be provided within the same reach of the river, stream, or creek.
In its discretion, the Commission may require the applicant conduct stormwater modeling using more conservative rainfall projections than in the MA DEP Stormwater Handbook or other MA DEP guidance.
Buffer zones are essential for protection of resource interests and areas subject to protection under the bylaw. A buffer zone adjacent to an area subject to protection reduces adverse impacts to the wetland functions and values from nearby activities. A naturally vegetated buffer zone functions to protect the wetland interests included in the bylaw. The elements of a buffer zone include setback distance, amount and type of vegetation, soil composition and slope of the land. Interaction of all of these elements determines the effectiveness of the buffer zone.
A.
Presumptions. Based on experience to date with projects within 100 feet of area subject to protection, the Commission shall presume that work in the categories below, within the tabulated distances from an area subject to protection, will result in alteration of the area subject to protection. This presumption is rebuttable and may be overcome upon a showing by a preponderance of credible evidence that the nature of the proposed work, special design measures, construction controls or site conditions will prevent alterations of the area subject to protection.
(1)
For the purposes of the table below, "disturb" means filling, excavation, grading, operation of motorized construction equipment and storage or stockpiling of earth or construction materials, alteration of vegetation, and "building" means a structure requiring a building permit or placement of any impervious surface.
Type of Project/Resource | No Disturb Zone (ft) | No Building Zone (ft) |
|---|---|---|
Freshwater/Isolated Wetlands | ||
Residential | 30 | 50 |
Commercial/Industrial | 30 | 75 |
Septic System | 100 | 100 |
Driveways/Utilities/Roads/Drainage | 30 (aside from permitted crossings) | |
Ponds | 100 | 100 |
Rivers and Streams | ||
Perennial | 100 | 200 |
Intermittent | 30 | 50 |
Driveways/Utilities/Roads/Drainage | 30 (aside from permitted crossings) | |
Vernal Pool Resource Area | 50 | 50 |
Land Subject to Flooding | 30 | 50 |
(2)
Notwithstanding the foregoing, the following activities shall not be subject to this section:
(a)
Mowing lawns (planting new lawn areas is subject to this section);
(b)
Activities that are temporary in nature and have a negligible impact and which upon completion, leave the buffer zone in its immediately preexisting condition, examples of which are seasonal storage of boats where there is no impact to natural vegetation, seasonal firewood piles, temporary erection of tents and placement of lawn furniture;
(c)
The maintenance, repair or replacement, but not enlargement, of any structure for which a building permit or certificate of occupancy has been issued as of the effective date of these regulations; however, all other sections of these regulations do apply.
B.
Protective vegetative cover shall be maintained on all embankments facing lakes, ponds, marshes, streams and marine waters. In particular:
(1)
No removal of low brush within 30 feet of a resource area; however, brush may be topped to a height of two feet; and
C.
Any area proposed for removal of vegetation where soil will be exposed for more than 10 days shall be mulched or otherwise treated to prevent erosion.
A.
Vernal pools and their associated uplands are critical to the protection of wildlife habitat and rare plant and animal habitat. Vernal pools constitute a unique and increasingly rare type of wetland that is inhabited by many species of wildlife, some of which are totally dependent on vernal pools and their associated upland habitat for their survival. Areas in the immediate vicinity of the vernal pool provide these species with important non-breeding habitat functions, such as migratory pathways, feeding, shelter, and over-wintering sites. Many other species utilize vernal pools and their associated uplands for breeding and non-breeding functions, although they are not restricted to this type of wetland. The protection of vernal pools and their associated upland habitats is essential for the survival of wildlife species that depend on these unique and threatened resource areas.
B.
The boundary of the resource area for vernal pools is 100 feet outward from the mean annual high-water line defining the depression, but shall not include existing lawns, gardens, landscaped or developed areas. No project or activity shall have an adverse effect on a vernal pool or vernal pool biota by altering the topography, soil structure, plant community composition, hydrologic regime and/or water quality of the vernal pool resource area. It is presumed, unless compelling evidence to the contrary is provided, that the following activities within the vernal pool resource area would fail to meet the aforementioned performance standards:
C.
The applicant shall also demonstrate that any proposed project/activity will not alter the hydrology of the vernal pool. The burden of proof shall be on the applicant to demonstrate that any proposed project/activity within the vernal pool resource area shall meet the performance standards as described above.
Streams, including intermittent streams, are important for storm damage prevention, flood control, ground water protection, wildlife habitat, coldwater fisheries, water quality protection and recreation values. During spring, summer, and fall these streams disperse snowmelt and storm runoff across the landscape thereby preventing dangerous volumes and flows from spilling over roadways and property. This broad dispersal also allows for larger volumes of water to infiltrate into the ground, recharging groundwater supplies.
Intermittent streams are an essential source of food and water for wildlife, and are often the only source of water in higher elevation areas. The moist soils that border intermittent streams are significantly richer in herbaceous vegetation and flowering/fruiting plants - the base trophic level of food - than surrounding upland areas. During all seasons, but especially in winter and spring, intermittent streams act as essential corridors for animal movement when food is scarce. Some animals, such as pickerel frogs and eastern red-spotted newts, rely heavily on intermittent streams for movement.
For these reasons, the upland areas adjacent to intermittent streams are heavily utilized by wildlife for living space, breeding, feeding, migrating, dispersal, and security. Accordingly, the bylaw and these regulations protect streams of all forms (Article II, Definitions) and the buffer zone within 100 feet of those streams.
A.
The impacts of climate change can adversely affect each resource area's ability to provide and promote the resource area values protected by the bylaw. (See definitions of "adaptation" and "impacts of climate change" in Article II above). Resource areas are critical to building a community's resilience/adaptation to the impacts of climate change due to their ability to provide for flood control, storm damage prevention, and other resource area values.
B.
The applicant shall, to the extent practicable and applicable as determined solely by the Commission, integrate considerations of adaptation planning into their project to promote climate change resilience so as to protect and promote resource area values into the future. These considerations are especially important in land subject to flooding (floodplain) and riverfront area and other resource areas which protect the interest of flood control and storm damage prevention, including adjacent upland resource areas. These resource areas may be directly impacted by extreme weather events expected to be more prevalent or more intense due to climate change, in surface runoff of pollutants, and in fisheries and wildlife habitat due to changes in temperature.