[HISTORY: Adopted by the Conservation Commission
of the Town of Barnstable 10-26-2004; revised 1-11-2005; 3-14-2006. Subsequent amendments noted
where applicable.]
A.
Chapter 237, Wetlands Protection, of the General Ordinances of the Code of the Town of Barnstable, explicitly protects the values of the natural resources of its foreshores, intertidal areas and the Commonwealth of Massachusetts' tidelands and waters as well as inland wetlands, ponds and lakes.
B.
The purpose of these regulations is to establish performance standards for private docks and piers. The authority for these regulations derives from Chapter 237, Wetlands Protection, of the General Ordinances of the Code of the Town of Barnstable § 237-8. These regulations will not apply to freshwater docks unless the Commission specifically finds that they are applicable.
C.
The construction, use, and maintenance of docks, piers
and walkways are likely to have a significant or cumulative adverse
effect on the wetland resource values of storm damage prevention,
fin and shellfisheries, wildlife habitat, erosion and sediment control,
and recreation. Construction, maintenance and use of piers can have
adverse effects on resource areas and on the use of these areas for
recreational purposes. Further, piers destroyed by storm pose a threat
to nearby properties by increasing water-borne debris.
D.
Turbulence, such as caused by jet-drive boats, and
propeller dredging generated by boat use associated with piers significantly
increase turbidity levels. High turbidity levels attenuate light.
Light is necessary for photosynthetic process responsible for the
primary productivity and oxygen regeneration of the water. The suspended
sediments settle on shellfish beds, smothering existing shellfish
and altering the quality of the benthic environment essential for
spat (mollusk larvae) settlement. Resuspension of bottom sediments
causes redistribution of sediments, alteration in sediment grain size
distribution and causes changes in bottom topography relief, elevation
and grade, including creation of depressions in the bottom. Settlement
of sediments into depressions can create deep pockets of highly fluid-like
sediment which may not be able to physically support shellfish or
which can become anoxic and therefore not support shellfish. Disturbance
of sediments during the period of shellfish larval settlement hinders
or prevents the effective settlement of shellfish larvae. Boat traffic
generated from piers will add to this disruption and may cause erosion
of banks and marshes.
E.
Construction of piers and subsequent boat activity
causes resuspension of nutrient-laden sediment particles which may
cause a release of sediment-bound nutrients to the water column resulting
in a "bloom" of vegetation. Release of nutrients to the water column
leads to eutrophication and anoxic bottom conditions. Anoxic sediments
and anoxic bottom conditions create adverse impacts on benthic resources,
including shellfish and fisheries.
F.
While pier construction is typically the least environmentally
destructive method of crossing a marsh, it may adversely affect the
physical characteristics and functional value of marsh. Marsh plants
provide the major energy flow (detritus food chain) between the autotrophic
and heterotrophic levels in a marsh-estuarine system. Many species
of sport and commercial fish and shellfish are dependent upon this
system. Plants adapted to high ambient light intensity, such as marsh
grasses, are ill-adapted to the shaded conditions created by a pier.
Shading may result in the loss of vegetation biomass (decreased plant
height, population density, and leaf thickness) or alteration of species
composition. Reduction in plant density results in the loss of sediment
normally trapped by roots and culms. Tidal washout of sediment can
result in localized depressions which, through evaporation of trapped
water, concentrate salt. High sediment salt levels effectively preclude
recolonization by original vegetation. Localized tidal washout may
lead to further vegetative regression, erosion, and disruption of
natural communities in the area.
G.
Propeller turbulence near or in areas of submerged
aquatic vegetation, such as eel grass, or salt marsh damages vegetation,
thereby increasing the rate at which organic detritus is produced.
If this organic detritus does not completely decompose aerobically,
then anoxic bottom conditions will ensue, which adversely impact shellfish
and fisheries.
H.
Cumulative impacts of the construction, maintenance
and use of piers threaten to decrease the overall productivity of
the marsh ecosystem, to reduce its ability to absorb storm wave energy,
and to reduce its contribution to groundwater and surface water quality.
Cumulative impacts also affect shellfish habitat and shell fishing.
I.
Docks and piers when placed in land containing shellfish or shellfish habitat have an adverse impact on the resource area value of recreation. The placement, length and size of docks and appurtenant floats can interfere with the harvesting of quahogs, soft-shell clams, and scallops. Docks and piers can have an unacceptable significant or cumulative effect on habitat and recreation as defined in § 327-14 of Chapter 237, Wetlands Protection, of the General Ordinances of the Code of the Town of Barnstable.
J.
Piers, depending on their length, can have an adverse
impact on recreation by interfering with recreational boating activities.
Not properly designed, piers can interfere with intertidal lateral
access for recreational fishing and fowling. Any proposal that affects
navigation is likely to have a significant or cumulative adverse effect
on recreation. Excessive lighting on piers may cause temporary "night
blindness" in boaters and may disrupt feeding habits of nocturnal
aquatic animals.
K.
Docks conforming to the following regulations can
be presumed to minimize the aforementioned possible negative impacts.
As used in this chapter, the following terms
shall have the meanings indicated:
A mechanical or electrically driven device attached to a
dock, pier or bulkhead for raising and lowering a vessel vertically
(from one level to another), in and out of the water.
[Added 2-20-2018]
The terms "dock" and "pier" shall be used interchangeably
for the purposes of these regulations and shall mean the entire structure
of any pier, wharf walkway, bulkhead, or float, and any part thereof,
including pilings, ramps, walkways, float, tie-off pilings, dolphins
and/or outhaul posts, that is located on a bank (inland) (310 CMR
10.54), land under water bodies and waterways (310 CMR 10.56), land
under the ocean (310 CMR 10.25), land under a salt pond (310 CMR 10.33),
rocky intertidal shore (310 CMR 10.31), or that portion of a coastal
beach (310 CMR 10.27) seaward of the mean high water line. Notwithstanding
the above, either a swimming float or work float, kept at a mooring,
that receives a permit from the Harbormaster and is not connected
with the shore, is not a float subject to these regulations.
The maximum depth of a vessel as measured from the surface
of the water to the deepest part when loaded to the manufacturer's
maximum load specification. In vessels equipped with outboard or I/0
engines, draft shall be measured with its propulsion unit in its lowest
operating position.
Any dredging under an order of conditions from the Conservation
Commission starting in 1973, or from other agencies prior to 1973,
in an area which has not previously been dredged or which extends
the original dredged width, depth, length or otherwise alters the
boundaries of a previously dredged area.
[Added 2-20-2018]
The movement of sediments, including gravel, sand, or cobbles,
along the shore caused by waves or currents.
[Added 2-20-2018]
Dredging under an order of conditions in any previously dredged
area which does not extend, expand, or exceed the originally dredged
width, depth or length. However, such dredging does not by its very
nature include or mean improvement dredging or backfilling.
[Added 2-20-2018]
The present arithmetic mean of water heights observed at
high tide over a specific 19-year metonic cycle determined by using
hydrographic survey data of the National Ocean Survey and the U.S.
Department of Commerce.
The arithmetic mean of water heights observed at low tide
over a specific 19-year metonic cycle determined by using hydrographic
survey data of the National Ocean Survey and the U.S. Department of
Commerce.
The average of the lower low water heights of each tidal
day as established by the arithmetic mean of water heights observed
at low tide over a specific 19-year metonic cycle determined by using
hydrographic survey data of the National Ocean Survey and the U.S.
Department of Commerce.
The ability to traverse a waterway by watercraft.
A water-dependent structure accessory to a residential use
but shall also include Yacht Club, Association and community piers
and any other noncommercial, nongovernmental pier.
The dock, ramp, floats and all supporting materials are not
in place in any wetland resource area prior to April 1 of each year
and are removed prior to November 1 of each year.
Areas below MHW that exhibit, or can be demonstrated to have
exhibited within a reasonable historical period, characteristics including
but not limited to sediment type, grain size, circulation patterns,
hydrologic regime, water chemistry, plant and algal communities, food
supply, and normal predation patterns necessary to support shellfish
species populations. A determination of shellfish habitat can be based
on the results of a site analysis and/or on current or historic shellfish
productivity, municipal shellfish population development programs,
or as shown on any maps or reports developed by the Marine and Environmental
Affairs Division filed with the Commission and the Town Clerk (for
example "The Significant Shellfish Resource and Habitat Area Mapping
Project for the Three Bay Area," dated August 21, 2000). Shellfish
relay areas are presumed to be good habitat. Absence of shellfish
shall not be solely determinative of the quality of shellfish habitat
due to the cyclic nature of shellfish population.
The average height of the high waters of the spring tides
is called spring high water or mean high water springs (MHWS). The
"spring tide line" is defined as the annual average of the two monthly
lunar spring tides. This information can be obtained from the NOAA
tide tables.
[Added 2-20-2018]
A.
A notice of intent is required for any new pier or
dock, whether fixed or floating, permanent or seasonal; also for any
substantial alteration or extension of an existing pier or dock.
B.
one copy of the notice of intent shall be sent to
each person or office on the following list, by certified mail or
hand-delivered, and a receipt obtained at the time of filing of the
notice of intent with the Conservation Commission:
C.
The applicant shall provide evidence to the Conservation
Commission at the time of the notice of intent filing that such copies
have been mailed or delivered. The project shall be clearly identified
and staked or marked with a buoy at pier end within three weeks prior
to the hearing.
D.
The notice of intent shall include:
(1)
Brief comments, where appropriate, on each of the
Guidelines.
(2)
Length, draft and type of boats, horsepower and type
of propulsion system intended for docking or use at the pier, including
the depth of the propulsion system in its lowest position.
(3)
Locus identified by Town Assessor's map and parcel
number, and by street number, street and village.
(4)
Locus shown on Assessor's map.
(5)
Daytime telephone number of applicant, or name and
telephone number of applicant's agent.
(6)
A shellfish survey, including an analysis of shellfish
habitat suitability, and substrate sediment analysis. The minimum
area surveyed shall include a 50-foot radius from the proposed project.
The actual samples shall represent no less than 0.5% of this area.
(7)
The shellfish survey report shall include as a minimum:
(a)
The resume of the person(s) conducting the survey,
including their qualifications for conducting such a survey;
(b)
The date, time of day and tidal conditions at
the time of the survey;
(c)
A narrative explaining the methodology and equipment
utilized, location and number of transects/quadrants utilized, results
obtained, observations and conclusions.
E.
The project plans shall show:
(1)
A description of all materials to be used and the
method of construction, including the method of pile installation;
when near shellfish habitat, the type of precautions used to insure
the barge and equipment used will not damage shellfish habitat.
(2)
Where the structure is seasonal or includes seasonal
floats, a statement indicating the site for winter storage and the
method of hauling, if any.
(3)
Soundings within 100 feet of the dock and from the
dock to the closest marked channel. Depth shall be measured to the
top surface of soft sediments. Soundings shall be of sufficient density
to allow the exact determination of water depths around the proposed
pier and floats, and to the closest navigable channel. The soundings
shall show the MLW in the areas where the proposed boat will be berthed.
(4)
Data shall be supplied to the Commission showing the
time and date of the depth survey, the existing weather conditions,
the state of the tide and the actual depths measured from water surface
to the bottom. The methodology used to determine MLW and MHW shall
be given. If MLW or MHW is derived from NGVD or other reference Datum,
an explanation of the calculations used must be included in the narrative.
(5)
Eel grass within 200 feet of dock.
(6)
Marked or recognized navigation channels within 200
feet of pier.
(7)
Any moorings within 200 feet of the proposed pier
and information affixed to those moorings.
(8)
Location of existing Town, commercial and private
piers, Town landings (ways to water), public or Association beaches,
shellfish propagation or relay areas and designated Town shellfishing
areas within three hundred feet of the proposed pier.
(9)
Approximate shoreward boundary of any existing public
or commercial mooring area within 200 feet of the pier. (A recent
aerial photograph, taken during the summer boating season, may be
used for this purpose if desired.) Proximate moorings shall be shown
on plan.
(10)
Location of existing Town, commercial or private piers
and docks, and Town landings, within 300 feet of pier.
(11)
The plan shall have the official stamp of a registered
civil engineer or land surveyor.
F.
In addition to the above requirements, the applicant
shall comply with the Submission Requirements Checklist available
at the Conservation Commission Office.
G.
A notice of intent may not be accepted or approved
by the Conservation Commission unless all of the foregoing requirements
have been completed. If any section does not apply, such inapplicability
shall be indicated.
A.
Private, noncommercial docks, being structures accessory
to and appurtenant to dwellings, will be permitted only on land contiguous
to the dwelling being served, except where unusual circumstances of
longstanding may apply, such as where the dwelling is separated from
the shore by a road.
B.
No dock, even if otherwise permitted, may be constructed
when it is appurtenant to a residential dwelling until an occupancy
permit has been issued for that dwelling.
C.
Only non-CCA material may be used in the construction
of the dock. Lead caps are not permitted. No creosote treated materials
may be used. [Note: CCA piles and structural timber three inches or
more in thickness may continue to be used until such time as the Commission
determines that suitable alternatives exist.]
D.
Lighting, if installed, shall not exceed a 25 watt
incandescent bulb, set a minimum of 12 feet apart and a maximum of
two feet high from the walking surface. These lights must be baffled
or shaded to direct light downward only. The lights cannot utilize
timers and should be switched at the beginning and end of dock. No
lighting shall interfere with safe navigation.
E.
All piers and walkways shall be provided with access
stairs at or proximate to MHW or other means provided for along shore
public traverse. All structures shall be provided with suitable signage
notifying the public of its right to free access as provided by the
commonwealth, or equivalent.
F.
The DEP permit number shall be permanently and conspicuously
placed on the dock so as to be visible from seaward.
G.
Storage of floats, other seasonal pier material, and
boats shall not be allowed on marshes, dunes, or coastal banks. All
such materials must be stored in a permitted area and transported
thereto without causing damage to any resource area, or outside of
conservation jurisdiction.
H.
Where the project includes the use of floats, the
combined size of all floats shall be consistent with the impact of
the entire project on the protected values at the site, but not greater
than 200 square feet. A minimum depth of 12 inches of water measured
at MLW is required under the floats.
I.
Plank spacing shall be a minimum of 3/4 inch. However,
where any portion of the dock (walkways, ramps, pier, etc) crosses
a salt marsh, a minimum of 65% light penetration is required. The
maximum dock width shall be 4 feet, measured center of pile to center
of pile. For single pile construction, maximum deck width shall be
four feet.
J.
No dock, including pier, floats, dolphins, etc., shall
extend further from shore than:
(1)
A point equaling 1/2 of the lot's water frontage measured
in a straight line between the lot's waterfront corners. Owners of
two adjoining lots may combine frontage and erect a shared pier, provided
that such agreement is registered in perpetuity at the Registry of
Deeds.
(2)
A point 35 feet from a publicly used channel, either
a marked channel or a channel as defined by historic use. This dimension
includes the beam of the vessel being berthed.
(3)
Is necessary to attain a depth of water at mean low
water suitable for a private use of the pier that is consistent with
protection of the wetland resources adjacent to the site and uses
of the adjacent waters and wetlands by the public in pursuit of the
interests protected under the Town of Barnstable Wetlands Protection
Ordinance, but under no circumstances greater than 100 feet from mean
low water, including all "ells" and "tees," regardless of configuration.
(4)
Twenty percent of the width of a linear waterway at
MLW except where the location of an existing channel shall dictate
otherwise. This width shall include the beam of the berthed vessel.
In such waterways, i.e., rivers, narrow estuaries, etc., sufficient
open water shall be maintained to sustain a variety of activities
not simply related to safe transit.
K.
Notwithstanding any other provision pertaining to
length, no dock shall be longer than is necessary to attain the minimum
depths required herein, and may not obstruct waterways normally used
for recreation.
L.
The base of the pier shall be as close as possible
to the center line of the lot, and it shall project outwards at an
angle as nearly perpendicular to the shoreline as possible.
M.
Within the limits of performance standards governing
overall length of docks, the following depth requirements must be
met for motorized vessels, with these draft requirements continuing
over time:
(1)
In areas determined to be of high-value shellfish habitat, the minimum depth under the draft of the boat must be 30 inches at MLW. High-value shellfish habitats are those found to be significant to the provision or protection of the wetland values protected under Chapter 237, Wetlands Protection, of the General Ordinances of the Code of the Town of Barnstable. Any area rated six or above on any maps or reports developed by the Natural Resources Division and filed with the Commission and the Town Clerk shall be presumptively considered a high-value shellfish area.
(2)
In areas determined not to be high-value shellfish
habitat, the minimum depth under the draft of the boat must be 12
inches at MLW.
(3)
For vessels using unconventional drive systems, such
as but not limited to jet-drives, the applicant, in addition to meeting
the above minimum depth requirements, must further demonstrate that
the water depth is adequate to protect the interests herein referenced.
(4)
To prevent bottom scouring, the above-described minimum
depths must exist not only at the dock where a boat(s) is to be berthed
or used but also between the dock and the nearest navigable channel
or open water.
N.
Notwithstanding any other provisions contained herein,
no new or expansion of an existing dock shall be permitted within
an ACEC (area of critical environmental concern).
O.
Private piers shall be constructed so as to not interfere
with any longstanding public recreational use of the waterway, e.g.,
an area used by sailboats tacking through a narrow waterway, an area
used by boaters or others because of unique wind or current conditions,
a structure that would interfere with public access to or from a way
to water or public.
P.
Where there is a substantial expansion of an existing
dock, the Commission may require compliance with all or part of these
regulations.
Q.
Boat lifts, boat elevators and boat davits.
[Added 2-6-2018]
(1)
Boat lifts, boat elevators and boat davits are prohibited for any
proposed new dock except where necessary for handicapped access for
a resident of the property where the dock is proposed. Where there
is no longer a demonstrated medical need, or when the property is
transferred or sold, the boat lift, elevator or davits must be removed
and the Conservation Division notified.
(2)
Boat lifts, boat elevators and boat davits are prohibited for any
existing, permitted dock except:
(a)
Where necessary for handicapped access for a resident of the
property where the dock is located. Where there is no longer a demonstrated
medical need, or when the property is transferred or sold, the boat
lift, elevator or davits must be removed and the Conservation Division
notified; or
(b)
Where extraordinary circumstances are proven to exist, such
as wind, tides, currents and boat wakes, and where the commonly used
alternatives of boat whips and dolphins/tie-off piles are proven by
the applicant as being unable to provide stability for vessels berthed
at the dock.
(3)
(a)
Be either mechanically operated or electrically driven. The
use of hydraulic fluid is prohibited.
(b)
Be painted a neutral color or anodized.
(c)
Be elevated so that the hull of the vessel is no more than 12
inches above mean high water, except that greater heights can be set
for extreme tides, not to exceed the spring tide line. Notwithstanding
this provision, elevated vessels should be removed during storm events.
Due to extreme tidal range, boat lifts, elevators and davits are prohibited
in Barnstable Harbor.
(d)
Have a specific vessel identified with its use, such vessel
having a neutral hull color and having either no bottom paint or a
nontoxic bottom paint. The applicant will provide bottom paint specifications
to staff for review.
R.
Improvement dredging.
[Added 2-6-2018]
(1)
Improvement dredging to create water depths to otherwise meet the
requirements of these regulations is prohibited. Improvement dredging
is not allowed to provide greater depths at a shallow site that otherwise
would qualify only for either a nonmotorized dinghy dock or a small-draft
motorized dock.
(2)
Improvement dredging to create greater water depths at the site of
an existing, permitted pier and/or in a fairway from the permitted
pier to the nearest channel is prohibited, except that a waiver may
be sought where accretion of subsurface sediments has occurred as
a result of either:
A.
When a proposed project involves the dredging, removing, filling, altering or causing of a potentially adverse effect to an area subject to protection under the ordinance by the construction or enlargement of a dock, the Commission shall presume that the proposed activity will have a significant or cumulative adverse effect upon the resource values specified in Chapter 237, Wetlands Protection, of the General Ordinances of the Code of the Town of Barnstable. These presumptions are rebuttable and may be overcome only by a preponderance of evidence showing that the work does not have a significant or cumulative adverse effect upon the resource values. The burden of proof to overcome the presumption shall be borne by the applicant. Moreover, the Commission will consider the impact of both existing docks and future docks with pending applications in determining the cumulative effects upon the protected resource areas. Where appropriate, the applicant may be required to submit a drawing showing all possible docks (docks that may meet Commission guidelines) within 1/2 mile of the proposed dock or other agreed to cumulative physical location. The cumulative impact of such docks and the related boat use pattern on the values protected by the ordinance will be considered by the Commission. A project which may otherwise comply with these regulations and guidelines may be denied where its cumulative effect would result in an adverse impact upon the protected resource areas.
B.
In most cases seasonal piers present less impact to
the resource because of their seasonal nature and because they can
be constructed entirely with environmentally benign materials. Accordingly,
the presumptions set forth herein may be more easily overcome for
this type of construction.
C.
These regulations notwithstanding, the Conservation
Commission will consider any and all pier proposals on a site-specific
basis, disposing of each according to its merit and to the degree
that the preponderance of evidence shall show that the statutory interests
have been preserved and protected.
A.
The Natural Resources Department shall be given written
notice by the applicant not less than 10 working days before the start
of construction in order to arrange shellfish removal, reseeding,
replanting, monitoring, and subsequent replanting if necessary, at
the applicant's expense.
B.
The Conservation Commission shall be given written
notice by the applicant not less than five business days before the
start of construction.
C.
All construction shall proceed in compliance with
the plan of record and the order of conditions. No alterations for
which revised plans have not been approved prior to construction will
be allowed.
