[Amended 2-3-2011 by Order No. 2011-045]
The purpose of this chapter is to protect wetlands
and related water resources, and their values and functions, including,
but not limited to, the following: public or private water supply;
groundwater; storm damage prevention; flood control; erosion and sedimentation
control; prevention of water pollution; wildlife habitat; shellfish;
fisheries; recreation; aesthetics; agricultural and aquacultural values;
and historical values (collectively, "the wetlands values protected
by this chapter").
The applicant shall have the burden of proving
by a preponderance of credible evidence that the work proposed in
the application will not have an unacceptable significant and cumulative
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 regulations thereunder, except where specifically included herein.
The following definitions apply to the interpretation
of this chapter. Unless otherwise defined here, definitions found
in 310 CMR also apply to this chapter.
AESTHETICS
Retention or improvement of natural conditions, including
natural lighting, sound, odors and significant trees, as at the time
are experienced by the general public from public ways, including
waterways. Activities in or within 100 feet of any resource area shall
not have significant effects on aesthetic values.
AGRICULTURE
Any work which produces food or other products for commerce or subsistence which occurs in, on, or within 100 feet of a resource area or which is directly or indirectly dependent upon wetlands values for proper agricultural functions, such as prevention of pollution or maintenance of adequate water flow for irrigation. Agriculture includes, but is not limited to the growing of crops, including cranberries, and the raising of livestock. Nonagricultural activities in or within 100 feet of resource areas shall not have a significant effect on existing agriculture. Notwithstanding this definition, new or expanded agricultural activities shall not have a significant effect on other wetlands values identified in §
237-1 of this chapter.
ALTER
To change the condition of areas within jurisdiction of the
Conservation Commission. Activities presumed to alter these areas,
include, but are not limited to, the following:
A.
Removal, excavation or dredging if soil, sand,
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;
E.
Placing of fill or brush or removal of material;
F.
Erection of buildings, or structures of any
kind; installation of piles except in accordance with pier maintenance
regulations of the Commission;
G.
Destruction of plant life including the cutting of trees; application of pesticides or herbicides except in accordance with agricultural exemptions set forth in §
237-3;
H.
Changing water temperature, biochemical oxygen
demand, or other physical or chemical characteristics of water;
I.
Any activities, changes or work which pollute
in any way any body of water or groundwater;
J.
Any activities that change the aesthetics of
a resource area in a significant manner and for more than a temporary
period.
AQUACULTURE
The growing, raising, breeding, storing, or producing of specified aquatic or marine organisms at specified locations for commercial, municipal, or scientific purposes as approved by appropriate agencies. Organisms in aquacultural use include, but are not limited to: shellfish, such as oysters, quahogs, clams, lobsters, mussels, scallops and crabs; finfish, such as trout, eel, herring, salmon, smelt and bass; amphibians, such as frogs; reptiles, such as turtles; seaweeds, such as Irish moss and dulse; edible freshwater plants, such as watercress; and plankton grown as a food source for other organisms. Activities in or within 100 feet of a resource area shall not have a significant effect on existing permitted aquaculture. Notwithstanding this definition, new or expanded aquacultural activities shall not have a significant effect on other wetlands values set forth in §
237-1 of this chapter.
COASTAL BANK
The first significant break in slope beyond the one-hundred-year
storm elevation on a seaward face or elevated landform, other than
a coastal dune, which lies at the landward edge of a coastal beach,
land subject to tidal action, or other coastal wetland. The slope
of the bank must be greater than an 18% and serve to contain storm
flowage, rather than being inundated by it, or function as a sediment
source. A coastal bank may serve one of two functions:
A.
It may serve as a vertical buffer because of
its height and stability which protects upland areas from storm damage
and flooding. Activities shall not increase erosion of a coastal blank,
either from above (by stormwater runoff, brushcutting or other means)
or from below (by tidal action, wind and waves). Any project on such
a coastal bank shall have no adverse impact on the stability of the
coastal bank.
B.
Coastal banks composed of unconsolidated sediment
and exposed to vigorous wave action serve as a source of sediment
for dunes, beaches, barrier beaches and other coastal landforms. Naturally
occurring wave action removes sediment from these banks to replenish
coastal landforms. These landforms protect coastal wetlands and real
property by reducing storm damage and flooding by dissipating storm
wave energy. Any project on or within a coastal bank serving this
function shall not have a significant effect on that bank's ability
to serve as a sediment source.
CUMULATIVE EFFECTS
Activities regulated under this chapter which may be individually
minor, but when considered in relation to other past, present or future
activities in a given area may be significant in the aggregate.
EROSION AND SEDIMENTATION CONTROL
A.
EROSION CONTROLThe ability of the wetland to buffer forces or processes which would threaten or cause to be threatened the stability of landforms and the soil and/or vegetation associated with wetlands and adjoining land areas, in particular, coastal and inland banks. Erosion can be caused by a wearing away of the surface soil or by undermining the interior portion of the landform. Activities in or within 100 feet of resource areas shall not have a significant effect on natural erosion processes.
B.
SEDIMENTATION CONTROLThe ability of wetlands to settle out sediments and other waterborne material by reducing water flow by passing it through vegetation or by diffusing flow and reducing velocity. Activities in or within 100 feet of resource areas shall not accelerate or impede the rate of natural sedimentation significantly.
FLOOD CONTROL
The ability of wetlands to absorb, store and slowly release
floodwaters to minimize peak flood levels. Flooding can be caused
by precipitation or a rising water table. Activities within 100 feet
of resource areas shall not alter the flood control value of wetlands
significantly.
GROUNDWATER
All subsurface water contained in natural geologic formations
or artificial fill, including soil water in the zone of aeration.
Activities in or within 100 feet of resource areas shall not significantly
alter the existing quality or elevation of naturally occurring groundwater.
HISTORICAL VALUES
The importance of wetlands and adjoining land areas as sites
often used for prehistoric and historic occupation, subsistence, industry,
trade, agriculture, burial and other cultural purposes. Resource areas
which are known to contain sites of historic or archaeological resources
(as by being listed of the State Register of Historic Places, the
Inventory of Historic and Archaeological Assets of the Commonwealth,
and/or the Barnstable Historical Commission's Historic Properties
Inventory) are deemed to have historic value. Activities in or within
100 feet of resource areas shall not have a significant effect on
historical values.
PERSON
Any individual, group of individuals, associations, partnership,
corporation, company, business organization, trust, estate, the commonwealth
or political subdivision thereof to the extent subject to Town ordinances,
administrative agency, public or quasi-public corporation or body,
the Town of Barnstable, and any other legal entity, its legal representatives,
agents, or assigns.
PRIVATE WATER SUPPLY
Any source or volume of surface or ground water demonstrated
to be in private use or shown to have potential for private use, including
ground or surface water in the zone of contribution around a private
well. Activities in or within 100 feet of a resource area shall not
have a significant effect on the quality of a private water supply.
PUBLIC WATER SUPPLY
Any source or volume of surface or ground water demonstrated
to be in public use or approved for water supply pursuant to MGL c.
111, § 160 by the Department of Environmental Quality Engineering
Division of Water Supply, or demonstrated to have a potential for
public use, in addition to all surface and ground water in zones of
contribution. Activities within 100 feet of resource areas shall not
have a significant effect on the quality of a public water supply.
RECREATION
Any leisure activity or sport taking place in, on, or within 100 feet of a resource area which is dependent on the resource area and its values directly or indirectly for its conduct and enjoyment. Recreational activities include, but are not limited to, the following: noncommercial fishing and shellfishing, hunting, boating, swimming, walking, painting, birdwatching and aesthetic enjoyment. Structures and activities in or within 100 feet of a resource area shall not have a significant effect on public recreational values. Notwithstanding this definition, new or expanded recreational activities shall not have a significant effect on other wetlands values identified in §
237-1 of this chapter.
STORM DAMAGE PREVENTION
The ability of wetland soils, vegetation and physiography
to prevent damage caused by water from storms, including but not limited
to: erosion and sedimentation; damage to vegetation, property or buildings;
or damage caused by flooding, waterborne debris or waterborne ice.
Activities in or within 100 feet of a resource area shall not have
a significant effect on storm damage protection.
SURFACE WATER BODY
Any area where water or ice stands or flows over the surface
of the ground for at least five months of any calendar year except
in times of severe, extended drought as defined in appropriate section
of 310 CMR. Drainage ditches, exclusive of fish runs and intermittent
streams, and impoundment areas which hold or pass water only during
or for short periods following storms and which, owing to their relationship
to groundwater, do not support wetland vegetation, are excluded from
this definition.
TRUSTLANDS
Lands impressed with public trust rights protected by the
commonwealth, including great ponds; and tidelands, being present
and former submerged lands and tidal flats lying between the natural
high-water mark and the state limit of seaward jurisdiction. Tidelands
including both flowed and filled tidelands, and privately owned and
publicly owned tidelands.
UNVEGETATED WETLAND RESOURCE AREAS
Coastal areas, such as flats and unvegetated intertidal areas;
coastal and freshwater beaches, dunes and banks; and land subject
to flooding. Also, inland areas subject to flooding which do not support
wetland vegetation, but which store at least 1/4 acre feet of water
to an average depth of six inches at least once a year, and land areas
two feet or less vertically above the high-water mark of any lake
or pond defined by 310 CMR. Does not include swimming pools, artificially
lined ponds or pools, wastewater lagoons or stormwater runoff basins,
the construction of which may be regulated, but do not themselves
constitute regulated areas.
VEGETATED WETLANDS
Any area of at least 500 square feet where surface or ground
water, or ice, at or near the surface of the ground support a plant
community dominated (at least 50%) by wetland species.
WETLANDS REPLICATION
The creation of wetland, surface water body or other resource
area to compensate for the filling or other loss or displacement of
all or part of an existing wetland, surface water body or other resource
area.
WILDLIFE HABITAT
Resource areas that provide breeding and nesting habitats,
shelter, food and water to all plant and animal species dependent
on wetlands for any portion of their life cycles. Includes resource
areas identified as containing rare, threatened or endangered species
as listed by the Massachusetts Natural Heritage Program. Structures
and activities in or within 100 feet of any resource area shall not
have a significant effect on wildlife habitat.
ZONE OF CONTRIBUTION
The segment of an aquifer that contributes significant quantities
of ground or surface water to a water supply well.
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.