City of Chicopee, MA
Hampden County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Board of Aldermen (now City Council) of the City of Chicopee 10-16-1990. Amendments noted where applicable.]
GENERAL REFERENCES
Conservation Commission — See Ch. 16, Art. IV.
The purpose of this chapter is to protect the wetlands, related water resources and adjoining land areas in the City of Chicopee by prior review and control of activities deemed by the 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, groundwater quality, flood control, erosion and sedimentation control, storm damage prevention, prevention of water pollution, fisheries, shellfish, wildlife habitat, recreation, aesthetics, agriculture and agriculture values. The values are to be known collectively as the "wetland values protected by this chapter."
Except as permitted by statute or as provided in this chapter, no person shall remove, fill, dredge, alter or build upon or within 100 feet of the wetland resource areas such as:
A. 
Any freshwater wetland, riverine wetland, marsh, wet meadow, bog or swamp.
B. 
Any bank or beach.
C. 
Any lake, river, pond or stream, whether intermittent or continuous, ephemeral, natural or man-made.
D. 
Any land under the aforesaid waters.
E. 
Any land subject to flooding by groundwater, surface water or storm flowage.
F. 
Isolated wetlands, including kettle holes.
G. 
Seasonal wetlands.
H. 
Upstream drainage that has the potential of altering a resource area.
A. 
Exceptions.
(1) 
The application and permit required by this chapter shall not be required for maintaining, repairing or replacing an existing and lawfully located structure or facility which is used in the service of the public to provide electric, gas, water, sanitary sewer, storm drainage, public roadway, telephone, telegraph or other communication services, provided that written notice has been given to the Conservation Commission prior to the commencement of the work, provided that the structure or facility will not be, in the opinion of the Chicopee Conservation Commission, substantially changed or enlarged, and provided that any work done conforms to the performance standards and regulations adopted by the Conservation Commission.
(2) 
Emergency projects.
(a) 
The application and permit required by this chapter shall not apply to emergency projects necessary for the protection of the health or safety of the public, provided that the work is to be performed or ordered to be performed by an agency of the commonwealth or a political subdivision thereof, provided that a request for emergency certification has been filed with the Chicopee Conservation Commission prior to commencement of work or within 24 hours after commencement and emergency certification has been granted by the Chicopee Conservation Commission or its agent, and provided that the work is performed only for the time and place certified by the Conservation Commission for the limited purpose necessary to abate the emergency. Within 21 days of commencement of any emergency project, a permit application shall be filed with the Conservation Commission for review as provided in this chapter.
(b) 
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.
B. 
Application for permit.
(1) 
Written application shall be filed with the Conservation Commission to perform any work which will or which, in the opinion of the Conservation Commission, may affect resource areas within the jurisdiction of this chapter. Upon the petition of 10 residents of the City, the Conservation Commission shall require any work commenced within the jurisdiction of this chapter without a permit to be stopped and may require a written application as approved in this section. The application shall include such plans as are deemed necessary by the Conservation Commission to describe the proposed activities and their effects on the environment. No work or alteration shall commence without receiving and complying with a permit issued pursuant to this chapter.
(2) 
The Conservation Commission may require an application and plans under this chapter in addition to the notice of intent and plans filed pursuant to the Wetlands Protection Act, MGL c. 131, § 40. Any person desiring to know whether or not proposed work on an area is subject to this chapter shall file a request for determination form one with the Conservation Commission. A filing fee may be required for a written request for determination. The applicant shall pay for the notice to be published and mailed.
(3) 
At the time of an application or request, the applicant shall pay a filing fee specified in regulations of the Commission. This fee is in addition to that required by the Wetlands Protection Act, MGL c. 131, § 40. In addition, the Commission is authorized to require the applicant to pay the costs and expenses of any expert consultant deemed necessary by the Commission to review the application or request up to a maximum of 2,500. The Commission may waive the filing fee and costs and expenses for an application or request filed by a government agency.
(4) 
The permit under the Wetlands Protection Ordinance should be applied for prior to application for any other permits, variances and approvals from the municipal government.
A. 
Any person filing a notice of intent or request for determination with the Conservation Commission shall provide a list of abutters residing 300 feet of the proposed project according to the most recent records of the Assessors, including those across a traveled way, or any other persons as the Conservation Commission shall require. When the person requesting a determination is other than the owner, the notice of the hearing and the determination itself shall be sent by the Conservation Commission to the owner as well as to the person making this request.
B. 
The Conservation Commission, in an appropriate case, may combine its hearing under this chapter with the hearing conducted under the Wetlands Protection Act, MGL c. 131, § 40.
C. 
The Conservation Commission may request comments and recommendations from appropriate boards or commissions before final action is taken for a determination or notice of intent hearing, which the Conservation Commission shall take into account but which shall not be binding on the Conservation Commission.
D. 
The Commission shall conduct a public hearing on any application or request for determination, with written notice given at the expense of the applicant, five working days prior to the hearing, in a newspaper of general circulation in the municipality.
E. 
The Commission shall commence the public hearing within 21 days from receipt of a completed application or request for determination, unless an extension is authorized, in writing, by the applicant.
F. 
The Commission shall issue its permit or determination, in writing, within 21 days of the close of the public hearing thereon, unless an extension is authorized, in writing, by the applicant.
G. 
The Commission shall have authority to continue the hearing to a certain date announced at the hearing, for reasons stated at the hearing, which may include receipt of additional information offered by the applicant or others, information and plans required of the applicant, deemed necessary by the Commission in its discretion, or comments and recommendation of boards and officials. In the event that the applicant objects to a continuance or postponement, the hearing shall be closed, and the Commission shall take action on such information as is available.
[Amended 9-1-2009]
Any person filing a permit application or a request for determination with the Commission may be requested to provide a copy thereof at the Commission's request to the City Council, Planning Board, Board of Appeals, Board of Health and Building Inspector (Board of Water Commissioners, etc.). The Commission shall not take final action until such boards and officials have had 14 days from receipt of notice to file written comments and recommendations with the Commission, which the Commission shall take into account but which shall not be binding on the Commission. The applicant shall have the right to receive any such comments and recommendations and to respond to them at a hearing of the Commission prior to final action.
A. 
If the Commission, after a public hearing, determines that the activities which are the subject of the application are likely to have a significant or cumulative effect upon the wetland values protected by this chapter, the Commission, within 21 days of the close of the hearing, shall issue or deny a permit for the activities requested. If it issues a permit, the Commission shall impose conditions which the Commission deems necessary or desirable to protect those values, and all activities shall be done in accordance with those conditions.
B. 
The Commission is empowered to deny a permit for just cause and, among other things, failure to meet any requirement of this chapter; for failure to submit necessary information and plans requested by the Commission; for failure to meet the design specifications of the Commission; for failure to avoid or prevent unacceptable significant or cumulative effects upon the wetland values protected by this chapter; and where no conditions are adequate to protect those values. Due consideration shall be given to any demonstrated hardship on the applicant by reason of denial, as presented at the public hearing.
C. 
A permit shall expire three years from the date of issuance. Any permit may be renewed for an additional one-year period, provided that a request for renewal is received, in writing, by the Commission prior to expiration.
D. 
For good cause, the Commission may revoke or modify a permit issued under this chapter after notice to the holder of the permit and notice to the public, abutters and town boards, pursuant to § 272-4, and a public hearing.
E. 
The Commission, in an appropriate case, may combine the permit with other action on an application issued under the Wetlands Protection Act.
A. 
After public notice and public hearing, the Commission shall promulgate rules and regulations to accomplish the purposes of this chapter. These regulations shall be consistent with the terms of this chapter. The Commission may amend the rules and regulations after public notice and public hearing.
B. 
Failure by the Commission to promulgate 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.
C. 
Unless otherwise stated in this chapter or in the rules and regulations promulgated under this chapter, the definitions, procedures and performance standards of the Wetlands Protection Act, MGL c. 131, § 40, and Associates Regulation 310 CMR 10.00 shall apply.
A. 
The following definitions shall apply in the interpretation and implementation of this chapter:
ALTER
Includes, without limitation, the following actions when undertaken in areas subject to this chapter:
(1) 
Removal, grading, excavation or dredging of soil, sand, gravel or aggregate materials of any kind.
(2) 
Changing drainage characteristics, flushing characteristics, salinity distribution, sedimentation patterns, flow patterns and flood-retention characteristics.
(3) 
Drainage or other disturbance of the water level or water table.
(4) 
Dumping, discharging or filling with any material which may degrade water quality.
(5) 
Driving of piles or erection of buildings or structures of any kind.
(6) 
Placing of obstructions, whether or not they interfere with the flow of water.
(7) 
Destruction of plant life, including cutting of trees.
(8) 
Changing of water temperature, biochemical oxygen demand or other physical or chemical characteristics of surface and ground water.
(9) 
"Wildlife habitat," which shall mean those areas subject to this chapter which, due to their plant community composition and structure, hydrologic regime or other characteristics, provide important food, shelter, migratory or overwintering areas or breeding areas for wildlife.
(10) 
Other changes or modifications which the Conservation Commission in good faith determines to have a potential adverse effect on wetland values.
BANK
The portion of the land surface which normally abuts and confines a water body. It occurs between a water body and a vegetated bordering wetland and its adjacent floodplain or, in the absence of these, occurs between a water body and an upland.
(1) 
A "bank" may be partially or totally vegetated, or it may be comprised of exposed soil, gravel or stone.
(2) 
The upper boundary of a "bank" is the first observable break in the slope or the mean annual flood level, whichever is higher. The lower boundary of a "bank" is the mean annual flow level.
BOGS
Areas where standing or slowly running water is near or at the surface during a normal growing season and where a vegetational community has a significant portion of the ground or water surface covered with sphagnum moss (Sphagnum species) and where the vegetational community is made up of a significant portion of one or more, but not limited to nor necessarily including all, of the following plants or groups of plants: aster (Aster nemoralis), azaleas (Rhododendron canadense and Rhododendron viscosum), black spruce (Picea mariana), bog cotton (Eriophorum), cranberry (Vaccinium macrocarpon), high-bush blueberry (Vaccinium corymbosum, larch (Latrix laricina), laurels (Kalmia augustifolia and Kalmia polifolia), leatherleaf (Chamaedaphne calyculata), orchids (Arethusa, Calopogon, Pogonia), pitcher plant (Sarracenia purpurea), sedges (Cyperaceae), sundews (Droseraceae), sweet gale (Myrica gale) and white cedar (Chamacyparis thyoides).
EPHEMERAL STREAM
[1]
A stream or position of a stream which flows only in direct response to precipitation. It receives little or no water from springs and no long-continued supply from melting snow or other sources. Its channel is at all times above the water table.
FRESHWATER WETLANDS
[2]
Wetland types which are associated with nontidal or saltwater wetlands.
[3]
(1) 
A stream which flows part of the time, as after a rainstorm, during wet weather or during part of the year.
(2) 
One which flows only at certain times when it receives water from springs (spring-fed) or from some surface source (surface-fed) such as melting snow.
KETTLE HOLE
[4]
A bowl-shaped depression, usually from 30 to 50 feet deep to 500 feet deep, that resulted from the resting place or burial place of a huge mass of ice that became detached during glacial melting. The final melting of the ice left a depression. A "kettle pond" is a "kettle hole" which still retains water.
LAKE
Any open body of water with a surface area of 10 acres or more.
LAND IN AGRICULTURAL USE
Any qualifying wetland within a farm which is qualified or eligible to be qualified under the Farmland Assessment Act, MGL c. 61A, §§ 1-5.
(1) 
An area with low, flat topography adjacent to and inundated by floodwaters rising from rivers, streams, ponds or lakes. It extends from the banks of these waterways and water bodies; where a bordering vegetated wetland occurs, it extends from said wetland.
(a) 
The boundary of "bordering land subject to flooding" is the estimated maximum lateral extent of floodwater which will theoretically result from the statistical one-hundred-year frequency storm. Said boundary shall be that determined by reference to the most recently available flood profile data prepared for the community within which the work is proposed under the National Flood Insurance Program (NFIP), currently administered by the Federal Emergency Management Agency. Said boundary so determined shall be presumed accurate. This presumption may be overcome only by credible evidence from a registered engineer or other professional competent in such matters and to the satisfaction of the Conservation Commission.
(b) 
Where NFIP profile data is unavailable, the boundary of "bordering land subject to flooding" shall be the maximum lateral extent of floodwater which has been observed or recorded.
(2) 
An isolated depression or closed basin without an inlet or an outlet, It is an area which at least once a year confines standing water.
(a) 
"Isolated land subject to flooding" may be underlain by pervious material, which in turn may be covered by a mat of organic peat or muck.
(b) 
The boundary of "isolated land subject to flooding" is the perimeter of the largest observed or recorded volume of water confined in said area.
(1) 
Land under water bodies is the land beneath any river, stream, pond or lake. Said land may be composed of organic muck or peat, fine sediments, rocks or bedrock.
(2) 
The boundary of land under water bodies is the mean annual high-water level.
MARSH
Areas where a vegetational community exists in standing or running water during the growing season and where a significant part of the vegetational community is composed, but not limited to nor necessarily including all, of the following plants or groups of plants: arums (Araceae), bladderworts (Utricularia), bur reeds (Sparganiaceae), buttonbush (Cephalanthus occidentalis), cattails (Typha). duckweeds (Lemnaceae), ellgrass (Vallisneria), frog bits Hydrophilic grasses (Oiaceae), leatherleaf (Chamaedaphne calyculata), pickerelweeds (Pontederiaceae), pipeworts (Eriocaulon), pondweeds (Potamogeton), rushes (Juncaceae), sweet gale (Myrica gale), water milfoil (Haloragaceae), water lilies (Nymphaeaceae), water starworts (Callitrichaceae) and water willow (Decodon verticillatus).
(1) 
Includes only:
(a) 
Tilling practices customarily employed in the raising of crops.
(b) 
Pasturing of animals, including such fences and protective structures as may be required.
(c) 
Use of fertilizers, pesticides, herbicides and similar materials subject to state and federal regulations covering their use.
(d) 
Constructing, grading or restoring of field ditches, subsurface drains, grass waterways, culverts, access roads and similar practices to improve drainage, prevent erosion, provide more effective use of rainfall and improve equipment operation and efficiency, in order to improve conditions for the growing of crops.
(2) 
Improvements of land in agricultural use — Also includes more extensive practices such as the building of ponds, dams, structures for water control, water and sediment basins and related activities, but only where a plan for such activity approved by the Conservation District of the Soil Conservation Service is furnished to the Conservation Commission prior to the commencement of work.
(3) 
All such activity shall subsequently be carried out in accord with said plan. In the event that the work is not carried out in accordance with the required plan, the Conservation Commission may place a stop order on said work and have recourse to such measures as if the plan were an order of conditions.
PERSON
Includes any individual, group of individuals, association, partnership, corporation, company, business organization, trust, estate, the commonwealth or political subdivision thereof to the extent subject to City ordinances, administrative agencies, public or quasi-public corporations or bodies, the City of Chicopee and any other legal entity, its legal representatives, agents or assigns.
POND
Any open body of water, either naturally occurring or man-made by impoundment, which is never without standing water due to natural causes, except during periods of extended drought. For purposes of this definition, "extended drought" shall mean any period of four or more months during which the average rainfall for each month is 50% or less of the ten-year average for that same month. Basins or lagoons which are part of wastewater treatment plants shall not be considered "ponds."
QUALIFYING WETLAND
Only inland freshwater areas which are seasonally flooded basins or flats or inland fresh meadows.
RIVER
A natural flowing body of water that empties into any lake or other river and which flows through the year.
RlVERINE WETLAND
[5]
Wetland and deep-water habitats that are contained within a channel. These areas are particularly valuable in reducing the danger of flooding.
SEASONAL WETLANDS
Isolated depressions or closed basins which temporarily confine water during periods of high water table and high input from spring runoff, snow melt or heavy precipitation and support populations of nontransient macroorganisms or serve as breeding habitat for a select species of amphibians. In the absence of those habitat functions, the areas should be considered land subject to flooding.
STREAM
A body of running water, including brooks and creeks, which moves in a definite channel in the ground due to a hydraulic gradient. A portion of a "stream" may flow through a culvert or beneath a bridge. Such a body of running water which does not flow throughout the year is also a "stream."
SWAMPS
Areas where groundwater is at or near the surface of the ground for a significant part of the growing season or where runoff water from surface drainage frequently collects above the soil surface and where a significant part of the vegetational community is made up of but is not limited to nor necessarily includes, all of the following plants or groups of plants: alders (Alnus), ashes (Fraxinus), azaleas (Rhododendron canadense and Rhododendron viscosum), black spruce (Picea mariana), buttonbush (Cophalanthus occidentalis), white hellebore (Veratrum viride), hemlock (Tsuga canadensis), high-bush blueberry (Vaccinium corymbosum), larch (Larix laricina), cowslip (Caltha palustris), poison sumac (Toxicodendron vernix), red maple (Acer rubrum), skunk cabbage (Symplocarpus foetidus), sphagnum mosses (Sphagnum), spicebush (Lindera benzoin), black gum tupelo (Nyssa sylvatica), sweet pepper bush (Clethra alnifolia), white cedar (Chamaecyparis thyoides) and willow (Salicaceae).
UPSTREAM DRAINAGE WITH POTENTIAL OF ALTERING WETLANDS
[6]
Overland or surficial flow (runoff), which may originate from natural sources (springs, snow melt, precipitation, etc.) or human development (roads, driveways, slope changes, lawns, drainage swales, drainage outfalls or other human landscape alterations), which carries a sediment load or pollution that may alter a resource area. Such drainage may not necessarily flow in any discernible channel but may flow as sheet flow (over smooth surfaces), thread flow (through small stems and leaves) or riverlet flow (along small hills on the surface).
WET MEADOW
Where groundwater is at the surface for a significant part of the growing season and near the surface throughout the year and where a significant part of the vegetational community is composed of various grasses, sedges and rushes; made up of, but not limited to nor necessarily including all, of the following plants or groups of plants: blue flag (Iris), vervain (Verbena), thoroughwort (Eupatorium), dock (Rumex), fales loosestrife (Lythrum), marsh fern (Dryopteris thelypteris), rushes (Juncaceae), sedges (Cyperaceae), sensitive fern (Onoclea sensibilis) and smartweed (Polyconum).
[1]
Editor's Note: The source for this definition is from the Dictionary of Geological Terms by the American Geological Institute, 1974 Edition.
[2]
Editor's Note: The source for this definition is from Michael L'Heureux.
[3]
Editor's Note: The source for this definition is from the Dictionary of Geological Terms by the American Geological Institute, 1974 Edition.
[4]
Editor's Note: The source for this definition is from the Dictionary of Geological Terms by the American Geological Institute, 1974 Edition.
[5]
Editor's Note: The source for this definition is from Wetlands by William J. Mitsch and James G. Gosselink 1986.
[6]
Editor's Note: The source for this definition is from Michael L'Heureux.
B. 
The Commission may adopt additional definitions not inconsistent with this section in its regulations promulgated pursuant to § 272-7 of this chapter.
For major projects requiring specialized expertise, the Commission may require, as a permit condition, that the performance and observance of other conditions be secured by one or both of the following methods:
A. 
By a bond or deposit of money or negotiable securities in an amount determined by the Commission to be sufficient and payable to the City of Chicopee.
B. 
By a conservation restriction, easement or other covenant running with the land, executed and properly recorded (or registered, in the case of registered land).
A. 
Normally, in order to promote the wetland values and interests listed in § 272-1, no removal, filling, dredging or altering shall be mitigated by or compensated for in any way by creation of a substitute or artificial wetland.
B. 
Exceptions to this section will be at the sole discretion of the Conservation Commission, whose discretion will not be exercised in an arbitrary, capricious or discriminatory manner.
A. 
The Commission, its agents, officers and employees shall have the authority to enter upon privately owned land for the purpose of performing their duties under this chapter for any verifiable complaint and may make or cause to be made such examinations, surveys or sampling as the Commission deems necessary.
B. 
The Commission shall have authority to enforce this chapter, its regulations and permits issued thereunder by violation notices, administrative orders and civil and criminal court actions.
C. 
Upon request of the Commission, the City Solicitor may take legal action for enforcement under civil and criminal.
D. 
Municipal boards and officers, including any police officer or other officer having police powers, shall have authority to assist the Commission in enforcement.
E. 
Any person who violates any provision of this chapter, 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 chapter, regulations or permit violated shall constitute a separate offense. This fine may be in addition to any levied under the Wetlands Protection Act, MGL c. 131, § 40, to a maximum of $25,000.
F. 
In addition to the procedures for enforcement set forth above, the provisions of the Chicopee Wetlands Ordinance, Chapter 272, may be enforced, by members of the Chicopee Conservation Commission or the Conservation Administrator, through the use of noncriminal complaint pursuant to the provisions of MGL c. 40, § 21D. Each day upon which a violation exists shall be deemed a separate offense. The penalty for violation of any provision of the chapter shall be $25 for the first offense, $50 for the second offense, $100 for the third offense, $200 for the fourth and each subsequent offense.
[Amended 12-20-1994 by Ord. No. 94-93]
The applicant for a permit shall have the burden of proving by a preponderance of credible evidence that the work proposed in the application will not have any significant or cumulative detrimental effect upon the wetland values protected by this chapter. Failure to provide adequate evidence to the Commission supporting this burden shall be sufficient cause for the Commission to deny a permit or grant a permit with conditions.
This chapter is adopted under the Home Rule Amendment of the Massachusetts Constitution and the Home Rule Statutes, independent of the Wetlands Protection Act, MGL c. 131, § 40, and the regulations thereunder.