[HISTORY: Adopted by the Conservation Commission of the Town of Belchertown 11-5-1991, effective 1-1-1992. Amendments noted where applicable.]
GENERAL REFERENCES
Wetlands protection (bylaw) — See Ch. 139.
Zoning — See Ch. 145.
Subdivision of land — See Ch. 270.
A. 
The purpose of these regulations is to clarify and define the 1989 Belchertown Wetlands Protection Bylaw[1] (hereafter referred to as the "bylaw") administered by the Belchertown Conservation Commission (hereafter "Commission"). The bylaw identifies and protects certain wetland resource areas and the interests the general public has in these areas. These regulations establish a uniform process by which the Commission can review and regulate activities that affect the resource areas and interests identified by the bylaw.
[1]
Editor's Note: See Ch. 139, Wetlands Protection.
B. 
In addition, the Commission wishes to provide clear guidance to applicants regarding the policies that the Commission has determined are necessary to protect wetland resource areas, based on Belchertown's particular topography and hydrology, by the special value these resource areas have to Belchertown and to neighboring communities and by the Commission's past experience with wetlands protection.
A. 
No net loss policy. It is the policy of the Belchertown Conservation Commission to follow the "no net loss" guidelines set forth by the Massachusetts Department of Environmental Protection. Therefore, applicants who propose to alter resource areas under the Commission's jurisdiction must:
(1) 
Demonstrate that there is no practicable alternative.
(2) 
Minimize impacts where they are unavoidable.
(3) 
Mitigate losses of wetland resource area, where applicable or appropriate, on at least a 1:1 basis. Limited projects are included in this requirement.
B. 
No net change in stormwater runoff. It is the policy of the Belchertown Conservation Commission to require applicants to demonstrate that no significant change in off-site runoff will result from proposed work. Because increased runoff impacts land downstream and reduces natural groundwater recharge, the Commission may require measures (such as stormwater detention basins) to prevent increased runoff. Direct discharge of runoff into a resource area will not be allowed.
C. 
Resource areas.
(1) 
The Conservation Commission has determined that certain additional areas of jurisdiction are significant to the protection of interests identified in the Belchertown Wetlands Bylaw.
(a) 
The Commission presumes that the following additional resource areas are significant to those interests:
[1] 
Isolated wetlands greater than 5,000 square feet.
[2] 
Ponds greater than 5,000 square feet.
[3] 
Ephemeral pools.
(b) 
These presumptions are rebuttable and may be overcome upon a clear showing that said land does not play a role in the protection of interests identified in the bylaw.
(2) 
In addition, it is the policy of the Commission to advise applicants on three nonregulated wetland resource areas:
(a) 
Intermittent streams upgradient of wetland resource areas.
(b) 
Isolated land subject to flooding below 310 CMR 10.57 size thresholds.
(c) 
Isolated wetlands less than 5,000 square feet.
(3) 
The Commission will make every effort to identify these areas at the site, will recommend locating them on the plans, will encourage applicants to avoid impacts to these areas and will suggest possible measures to mitigate unavoidable impacts with respect to drainage and flood control.
D. 
Vegetated buffer strip. Development proposed in the buffer zone can negatively impact the abutting resource area(s). Negative impacts, both from the construction and use phases of the project, can include erosion, siltation, loss of pollution attenuation, loss of groundwater recharge, reduced water quality and loss of wildlife habitat. A twenty-five-foot strip of continuous, undisturbed, indigenous vegetative cover along the resource area boundary within the one-hundred-foot buffer zone shall be maintained, where practicable, in order to protect water quality, improve water recharge, reduce erosion and pollution to the adjacent wetland resource areas and provide wildlife habitat.
E. 
Request for determination versus notice of intent. Many times applicants are confused regarding when to file a request for determination and when to file of a notice of intent for work in the buffer zone. For a project to be issued a negative determination, the Commission must be assured that the potential for alteration of a resource area is so insignificant as to not require the oversight provided by an order of conditions and subsequent certificate of compliance. Therefore, the Commission may typically consider issuing a negative determination to projects that meet the following minimum criteria:
(1) 
There is no alteration of a wetland resource area.
(2) 
There is less than 1,000 square feet of alteration in the buffer.
(3) 
No work will occur within 50 feet of a wetland resource area.
(4) 
Leach field of a septic system is 100 feet from resource area.
(5) 
A plan is included for permanent stabilization, including loaming, seeding and mulching.
(6) 
Erosion-control measures are maintained until permanent vegetation is established.
The following are the values under the Belchertown Wetlands Bylaw:
A. 
Protection of public and private water supply.
B. 
Protection of groundwater and groundwater quality.
C. 
Protection of surface water and surface water quality.
D. 
Flood control.
E. 
Storm damage prevention.
F. 
Prevention of pollution.
G. 
Protection of fisheries.
H. 
Protection of wildlife habitat.
I. 
Erosion and sedimentation control.
J. 
Storm drainage.
K. 
Protection of agriculture.
L. 
Protection of aquaculture.
M. 
Recreation.
A. 
Areas subject to jurisdiction under the local bylaw. Except as permitted by the Conservation Commission or as provided for in the bylaw, no person shall remove, fill, dredge, build upon or alter the following resource areas or within 100 feet of these resource areas, an area known as the "buffer zone to the resource areas":
(1) 
Any freshwater wetland as determined by vegetational community, soil composition and/or hydrologic regime, including isolated wetlands, and any marsh, wet meadow, bog or swamp.
(2) 
Any pond, lake, river and any perennial or intermittent stream.
(3) 
Any land under such waters.
(4) 
Any bank or beach.
(5) 
Any land subject to flooding or inundation by groundwater, surface water or storm flowage, including ephemeral pools, vernal pools and kettle holes.
B. 
Activities subject to regulation under the bylaw.
(1) 
Activities within the resource areas. Any activity proposed or undertaken within an area specified in Subsection A which, in the judgment of the Commission, will remove, fill or alter an area subject to protection under the bylaw is subject to regulation under the bylaw and requires the filing of an application for permit (§ 290-7D).
(2) 
Activities within the buffer zone. Any activity proposed or undertaken within 100 feet of an area specified in Subsection A(1) through (5) (hereinafter called the "buffer zone") which, in the judgment of the Commission, will alter an area subject to protection under the bylaw is subject to regulation under the bylaw and requires the filing of an application for permit.
(3) 
Activities outside the areas subject to protection and the buffer zone. See 310 CMR 10.02(c).
C. 
Where natural vegetation is absent as a result of mowing, grazing or other disturbance, the presence of hydric soils (soils that are annually saturated, as evidenced by the observed groundwater, soil gleying or soil mottling within 18 inches of the surface) shall provide positive determination of jurisdiction. In cases where natural vegetation is absent as a result of filling or draining, historic evidence and record may provide positive determination of jurisdiction.
A. 
Burden of proof and going forward. It is the applicant's responsibility to note those requirements contained in these regulations which are in addition to those set forth in 310 CMR 10.03.
B. 
Incorporation. All of the procedures and requirements set forth in the Wetlands Protection Regulations of 310 CMR 10.00 et seq. are hereby incorporated and made a part of these regulations, except where they differ from or depart from these regulations. Where these regulations differ from the state regulations, they shall take precedence over the state regulations. The applicant should first address the regulations at 310 CMR 10.00 et seq. and then supplement them with the Belchertown Wetlands Regulations.
C. 
Title V.
(1) 
Preamble. The State Environmental Code (310 CMR 15.00 et seq.), administered locally by the Belchertown Board of Health, is a minimal public health regulation that may be supplemented at the local level. Where they concern septic-derived contaminants, the Belchertown Wetlands Regulations complement local health regulations, which are independently authorized and administered.
(2) 
Septic system location. Within the area of the Commission's jurisdiction, a septic system is considered to be properly sited only if all of the following conditions are met:
(a) 
None of the septic components is located within a resource area as defined in the Belchertown Wetland Bylaw [§ 290-4A(1) through (5)]; and
(b) 
Setback.
[1] 
The leaching facility of a disposal system is set back at least 100 feet from a resource area defined under the bylaw, as required by local Board of Health regulations, except:
[a] 
The setback for areas which are defined as resource areas only under the bylaw.
[b] 
The setback required for the renovation, replacement or maintenance of septic systems constructed prior to the date of these regulations, provided that no alternative location is available on the lot.
[2] 
In these instances, if the proposed leaching facility setback is greater than 50 feet and receives Belchertown Board of Health approval, the Commission will presume that the design meets requirements for effluent impacts, and the Commission will only review construction impacts. If the proposed leaching facility setback is less than 50 feet from a resource area under these regulations, Commission review will cover both effluent and construction impacts.
[3] 
The setback distance is to be determined as specified in 310 CMR 10.03(3). The Commission shall determine the edge of the resource area for the Board of Health upon request.
D. 
Presumption concerning point source discharge. See 310 CMR 10.03(4).
E. 
Presumption of significance. Each area subject to protection under the Belchertown Wetlands Regulations is presumed to be significant to one or more of the values identified in § 290-3. The presumptions are rebuttable and are set forth in §§ 290-11 through 290-13.
F. 
Presumption concerning application of herbicides. See 310 CMR 10.03(6).
G. 
Fees. Fees shall be the same as 310 CMR 10.03(7), except that a request for determination of applicability for any lot other than a single-family lot, or for work on any lot other than a single-family lot, shall be $50.
H. 
Savings. Should any portion of these regulations be declared invalid by a decision of the court, the legislature or other body having jurisdiction, the remainder of these regulations shall remain in full force and effect.
I. 
Reservation. These regulations should not be construed to limit the authority under the Belchertown Wetlands Bylaw. The Commission reserves the right to act in a manner consistent with the bylaw upon any matter within its jurisdiction.
J. 
Effective date. The effective date of these regulations shall be January 1, 1992. These regulations apply to all applications made on or after the effective date.
The definitions applicable to the Belchertown Wetlands Bylaw shall be the same as set forth in 310 CMR 10.00 et seq., except for the following modifications to those definitions and additional definitions:
ALTER
To change the condition of any area subject to jurisdiction under the bylaw. Examples of alterations include, but are not limited to, the following:
A. 
Removal, excavation or dredging of 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 which may degrade water quality.
E. 
Placing of fill, or removal of material, which would alter elevations.
F. 
Driving of piles, erection or repair of buildings or structures of any kind.
G. 
Placing of obstructions or objects in water.
H. 
Destruction of plant life, including cutting of trees.
I. 
Changing water temperature, biochemical oxygen demand or other physical, chemical or biological characteristics of surface and ground water.
J. 
Excavation for the purpose of percolation or deep hole testing or the crossing of a resource area with heavy equipment for this purpose.
K. 
Any activities, changes or work which may cause or tend to contribute to pollution of water or groundwater.
BUFFER ZONE
That area of land extending 100 feet horizontally outward from the boundary of any resource area described in § 290-4 of these regulations.
EPHEMERAL POOL
An isolated depression or closed basin which temporarily confines water during periods of high water table and high input from spring runoff, snowmelt or heavy precipitation and serves as vernal pool habitat. It is an essential breeding site for certain amphibians which require isolated areas that are generally flooded for at least two continuous months in the spring and/or summer and are free from fish predators. Most of these amphibians remain near the breeding pool during the remainder of the life cycle. Many reptiles, birds and mammals also feed here.
ISOLATED WETLAND
An area of at least 5,000 square feet where groundwater, flowing or standing surface water or ice supports a community composed of at least 50% wetland plant species as included or identified in generally accepted scientific technical publications.
POND
Any open body of freshwater, either naturally occurring or man-made by impoundment, with a surface area observed or recorded within the last 10 years of at least 5,000 square feet and which is never without standing water due to natural causes, except during periods of extended drought. For the 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, nor shall swimming pools or other impervious man-made retention basins.
PRACTICABLE ALTERNATIVE
A measure that is available and capable of being done after taking into consideration cost, existing technology and logistics in light of overall project purposes.
VEGETATED BUFFER STRIP
A continuous buffer strip, undisturbed and in its natural state, between development activities in the buffer zone and the resource area to be protected.
WATER-DEPENDENT USE
Those uses and facilities which require direct access to, or location in, inland waters and which therefore cannot be located away from those waters.
The following procedures shall apply to all filings under the Belchertown Wetlands Bylaw (unless specifically stated).
A. 
Time periods. See 310 CMR 10.05(1).
B. 
Actions by Conservation Commission. See 310 CMR 10.05(2).
C. 
Request for determination of applicability (RDA).
(1) 
Explanation. Any person who desires a written determination as to whether the bylaw applies to an area, or work to be performed in an area, shall submit a written request to the Commission. This request, called a "request for determination of applicability," shall include a description of the area and/or work to be performed and maps/plans as appropriate.
(2) 
Filing procedure. It is the applicant's responsibility to provide all of the information required for this review. The applicant must complete the combination of filing form (Form A)[1] and all information on the request for determination.
(a) 
Return the original and one copy by certified mail or hand delivery to:
Belchertown Conservation Commission
Lawrence Memorial Town Hall
2 Jabish Street
Belchertown, MA 01007
(b) 
Mail a copy to the landowner, when the applicant is not the landowner, and:
DEP Western Regional Office
Division of Wetlands and Waterways Regulation
State House West, 4th Floor
436 Dwight Street
Springfield, MA 01103
(c) 
Include an accurate description of the location (including Assessor's Map and lot number), the boundaries of the proposed work, all structures and the approximate distance to wetlands, water bodies or other resource areas to be protected.
(d) 
When considering filing a request for determination for work in the buffer zone, an applicant must assure the Commission that the potential for alteration of a resource area is so insignificant as not to require the oversight provided by an order of conditions and subsequent certificate of compliance.
[1] 
Therefore, the Commission may typically consider issuing a negative determination when a project meets the following minimum criteria:
[a] 
There is no alteration of a wetland resource area.
[b] 
There is less than 1,000 square feet of alteration in the buffer.
[c] 
A fifty-foot undisturbed, vegetated buffer strip is left between the proposed work and the resource area.
[d] 
There is less than five-percent slope toward the resource area.
[e] 
Leach field of a septic system is sited at least 100 feet from any wetland resource area.
[f] 
A plan for permanent stabilization is included: loaming, seeding and mulching.
[g] 
Erosion-control measures are maintained until permanent vegetation is established.
[2] 
Any activity not meeting these criteria must be filed under a notice of intent filing. (See Subsection B.)
[1]
Editor's Note: Form A is available in the office of the Conservation Commission.
(3) 
Public hearing. The Commission shall hold a public hearing on the request for determination within 21 days of receipt of the request. Public notice shall be provided in the Belchertown Sentinel or other local paper at the applicant's expense. The Commission shall issue a written determination within 21 days from receipt of the request.
(a) 
Prior to making a determination, the Commission may require the submission of additional data deemed pertinent to the determination and shall inspect the property for which the request was made. The Commission's determination shall be issued on Form B[2] and may be combined with a determination made under the Wetlands Protection Act[3] and sent to the Massachusetts Department of Environmental Protection.
[2]
Editor's Note: Form B is available in the office of the Conservation Commission.
[3]
Editor's Note: See MGL c. 131, § 40.
(b) 
Resource areas will be identified based on their definitions as provided in these regulations. In cases where the natural vegetative community has been disturbed by removal of the vegetative cover, the Commission may determine the boundary of a freshwater wetland based on the presence of hydric soils or may defer determination of a wetland boundary until the natural vegetation has regrown.
(c) 
If a positive determination is issued, the applicant must file an application for permit. A positive determination may be issued to delineate the boundaries of a wetland when the area is determined to be under jurisdiction and when the work requires a permit.
(d) 
If a negative determination is issued, it means that the area is not subject to jurisdiction or that the work will not alter an area subject to protection. In appropriate situations, the Commission may require the recording of a negative determination.
(e) 
If the application for a request for determination of applicability is incomplete, the request must be resubmitted or a positive determination will be issued due to lack of sufficient information.
(f) 
The Commission may defer action on a request when snow cover makes the determination of resource area boundaries unfeasible. Under these circumstances, the applicant will be advised to request an extension, and the Commission shall continue the public hearing and make a determination at the first available opportunity. If the applicant refuses to request an extension, upon majority vote of the Commission, a positive determination may be issued.
D. 
Application for permit.
(1) 
Explanation. The role of the Commission is that of a reviewing agency. It is the applicant's responsibility to provide all of the information required in the application for a permit necessary for proper review. It is in the applicant's interest to submit as complete and accurate a description of the project as possible to ensure that requests for additional information do not result in an unnecessary delay.
(2) 
Filing procedure. An application for permit consists of the completion of the combination filing form (Form A), completion of a notice of intent form [310 CMR 10.05(4)] and/or completion of Form C of the Belchertown Wetlands Regulations, depending upon whether the resource area to be altered is under state jurisdiction or only under local jurisdiction.[4]
(a) 
An original and one copy of the application for permit and accompanying plans and data shall be sent by mail or hand delivered to:
Belchertown Conservation Commission
Lawrence Memorial Town Hall
2 Jabish Street
Belchertown, MA 01007
(b) 
The applicant shall send two copies of the notice of intent/application for permit and accompanying plans and data to:
DEP Western Regional Office
Division of Wetlands and Waterways Regulation
State House West, 4th floor
436 Dwight Street
Springfield, MA 01103
[4]
Editor's Note: Forms A and C are available in the office of the Conservation Commission.
(3) 
Other permits. The applicant is required to obtain or apply for all other permits, variances and approvals required by any other applicable statute, bylaw or regulation prior to, or concurrently with, filing an application under the bylaw. This requirement shall include only those approvals which are obtainable at the time the application is filed.
(4) 
Submission requirements. For an application to be reviewed, a completed combination of filing form (Form A), notice of intent and/or Belchertown Wetlands Regulations Form C must be submitted, along with a site plan (scale of one inch equals not more than 50 feet). Following receipt of the above information, the Commission will schedule a site visit to view the proposed project in the field. For the Commission to complete its visit, wetlands must be flagged and the project staked 10 days prior to the public hearing.
(a) 
Features to be shown on the plan:
Item No.
Feature
1
Title box: date, owner, scale and North arrow
2
Assessor's reference: map, section, parcel and lot
3
Engineer's stamp and signature, when required
4
Boundaries of all resource areas as defined by the Belchertown Wetland Regulations
5
One-hundred-foot buffer from resource areas
6
Location, extent and area of all present and proposed structures and paved areas
7
Limit of work (construction envelope)
8
Location of temporary erosion and sedimentation control measures
9
Distance (100 feet minimum) of leaching facility from resource areas, § 290-5C(2)(b)[1][a] and [b]
10
Existing contours
11
Proposed new contours
12
Soil characteristics in representative portions of the site, including characteristics of hydric soils and depth of peat and muck in wetlands; sampling sites shall be specified
13
The maximum groundwater elevation at the period of the year when the groundwater table is at its highest elevation, including calendar dates of measurements, samplings and percolation tests, if any
14
Location of resource areas to be filled or altered
15
Amount (square feet) of filled or altered resource areas
16
Location of replacement areas
17
One-hundred-year floodplain, with elevations
18
Amount of fill in floodplain
19
Location of compensatory storage areas
20
Cross sections showing slope, bank and bottom treatment of each watercourse to be altered
21
Existing natural drainage patterns and proposed alterations
22
Drainage easements and ways
23
Location of proposed and existing water detention areas and all existing and proposed storm drainage pipes
24
Ditches, structures, culverts and outfalls, fully described with information on inverts, slopes, materials, entrance and outlet conditions, bedding in unstable soils, details of drainage structures and endwalls and other standard engineering data on such work
25
Details of storm drainage outlets showing no direct discharge into a resource area
(b) 
The following guidelines are intended to aid the applicant in deciding which plan items must be submitted to the Commission for review. For final clarification of what items will be required for a given project, please contact the Conservation Commission Office.
Work Description
Plan Item Number
Work in Buffer
Grading/landscaping activities on single-family lot
1 to 11
Addition to single-family house
1 to 11
Single-family house with leach field
1 to 13
Subdivision
1 to 13; 21 to 25
Commercial/industrial
1 to 13; 21 to 25
Work in Resource Area
Work in wetland
1 to 11; 12 to 14
Work in stream
1 to 11; 14 to 20
Single-family house with limited access
1 to 20
Highway work
1 to 11
14 to 16 possibly
17 to 20
21 to 25 possibly
(c) 
Engineering calculations.
[1] 
Engineering calculations are required to show the effect of the proposed activity on soil and water. Calculations and watershed modeling shall normally be performed using a hyrograph analysis based on the techniques developed by the United States Department of Agriculture, Soil Conservation Service. Calculations shall be made that show the impact for two-year, ten-year and one-hundred-year storms using the SCS Type II or III twenty-four-hour rainfall or other storms consistent with Belchertown Planning Board policy (Chapter 270, Subdivision of Land, § 270-29). The calculations shall be prepared by a registered professional civil engineer or qualified hydrologist.
[2] 
Engineering calculations are required to fully support the design of compensatory flood storage areas and stormwater management systems, including detention or retention basins and infiltration systems.
(d) 
Soil and vegetation data. This information is required to describe alterations to and replication of resource areas.
(e) 
Wildlife habitat evaluation. A wildlife habitat evaluation will be required where alterations exceed the threshold specified in 310 CMR 10.60.
E. 
Public hearing.
(1) 
The Commission shall hold a public hearing within 21 days from the receipt of an application for permit. Notice of the public hearing will be provided in the Belchertown Sentinel or other local paper in accordance with the Open Meeting Law[5] at the applicant's expense. Prior to issuing its permit, the Commission may require the submission of additional data pertinent to the application. The Commission may continue the hearing to receive such information in accordance with Section 5 of the bylaw.[6]
[5]
Editor's Note: See MGL c. 39, § 23B.
[6]
Editor's Note: See Ch. 139, Wetlands Protection, § 139-5.
(2) 
Consolidation with hearing under the Wetlands Protection Act. Pursuant to Section 4b of the bylaw,[7] the Commission may consolidate the hearing under the Act with the hearing under the bylaw.
[7]
Editor's Note: See Ch. 139, Wetlands Protection, § 139-4B.
F. 
Permit. Within 21 days of the close of the hearing, the Commission will issue a permit/order of conditions with conditions to protect the interests as identified under the bylaw. The written decision will be signed by a majority of the Commission and shall be valid for three years. Permits written under the Belchertown Wetlands Bylaw and regulations may be on the same form as the state regulations or on Form D, whichever may be appropriate.[8] Permits shall be valid for three years.
(1) 
Conditions may be for the construction period (e.g., straw bales for temporary erosion control) or may be in perpetuity (e.g., permanent buffer strips for erosion control, water supply protection and wildlife habitat). Conditions may be structural (e.g., hay bale barrier for erosion control) or may require a specified standard of performance (e.g., prevention of erosion).
(a) 
Standard conditions. A standard set of conditions will be imposed on all projects approved by the Commission. See Appendix A.[9]
[9]
Editor's Note: Appendix A is on file in the office of the Conservation Commission.
(b) 
Special conditions. A special set of conditions will be imposed on all projects approved by the Belchertown Conservation Commission where it is deemed that such conditions are necessary to protect the values of wetlands, related water resources and adjoining land areas under its jurisdiction.
(2) 
Amended permits. If at any time after a permit has been issued there is a change in the proposed activity, the applicant or owner must notify the Commission, in writing, of the proposed changes not less than 48 hours before a regularly scheduled meeting. No work associated with these changes shall be conducted until the Commission has reviewed the changes and issued a written decision. The person making this request shall be notified by the Commission of its decision within 21 days of the receipt of this request. The Commission may determine that:
(a) 
The changes represent a significant departure from the original proposal and that the potential impacts of the new proposal are sufficiently different from those of the original proposal as to require the filing of a new application for permit.
(b) 
The changes involve a moderate departure from the original proposal and will require an amended permit. The Commission shall publish newspaper notice (at the applicant's expense) and make a decision on the request for an amended permit after a public hearing. An amended permit must be filed at the Registry of Deeds with a marginal reference to the original permit. The following may require an amended permit:
[1] 
Decrease in the distance from the resource area.
[2] 
Increase in potential for erosion.
[3] 
Increase in size and change in location of structure.
[4] 
Increase in the amount of vegetation to be removed.
[5] 
Activity beyond the limit of work.
(c) 
The changes represent an insignificant change in the original proposal and will have no likelihood of greater impact on any wetland resource area. The person proposing these changes may proceed with work upon written notification by the Commission.
(3) 
Denials. If the Commission deems that the interests stated in the bylaw are not adequately protected under the terms of the applicant's proposal, the Commission may refuse to issue a permit. When the Commission votes to deny a permit, it shall issue a written decision.
[8]
Editor's Note: Form D is available in the office of the Conservation Commission.
G. 
Appeals. Any person aggrieved by the permit or decision of the Conservation Commission, whether or not previously a party to the proceeding, may appeal according to the Massachusetts General Laws.
H. 
Extensions of permits. See 310 CMR 10.05(8).
I. 
Final release/certificate of compliance. Upon completion of the work permitted, the applicant shall request, in writing, that the final release/certificate of compliance be issued stating that the work has been satisfactorily completed.
(1) 
Upon written request by the applicant, a final release/certificate of compliance may be issued within 21 days of receipt thereof and shall certify that the activity or portions thereof described in the application for permit and submitted plans have been completed in compliance with the permit. The final release shall not be issued until a site inspection is made by a member of the Commission and shall be signed by a majority of the Commission. Final releases may be combined with certificates of compliance issued under 310 CMR 10.05(6).
(2) 
If the Commission determines, after review and inspection, that the work has not been done in compliance with the permit, it may refuse to issue a final release/certificate of compliance. A refusal will be issued within 21 days of receipt of a request for a final release, will be in writing and will specify the reasons for denial.
(3) 
If the final permit contains conditions which continue past the completion of the work, such as maintenance or monitoring, the final release/certificate of compliance shall specify which, if any, of such conditions shall continue.
(4) 
The final release will be recorded in the Registry of Deeds or Land Court. Certification of the recording shall be sent to the Commission. Upon failure of the applicant to so record, the Commission may do so.
J. 
Recording in Registry of Deeds or Land Court.
(1) 
The following forms issued by the Commission are required to be recorded in the Hampshire County Registry of Deeds or the Land Court, whichever is appropriate:
(a) 
Permit/order of conditions.
(b) 
Amended permit/amended order of conditions.
(c) 
Extension permit.
(d) 
Final release/certificate of compliance.
(e) 
Negative determinations where recording is required by conditions set forth in the determination.
(2) 
As proof of recording, the applicant must deliver to the Commission the recording slip at the bottom of the permit, extension permit or certificate of compliance. When required, proof of recording of a determination of applicability shall be a copy of the determination with recording number. No work can begin under an order of conditions until proof of recording has been received by the Commission. If the applicant fails to record in a timely manner any of these documents (unless in accordance with exception below), the Commission will record the order.
(3) 
If the applicant desires to delay the recording of the permit, he/she or she shall so state, in writing, to the Commission the reasons for the delay and the estimated date of recording before the close of the hearing. In no case shall any construction commence unless and until a permit has been recorded.
K. 
Performance guaranty. (Reserved)
A. 
When the Conservation Commission determines that an activity is in violation of the bylaw or a permit issued under the bylaw, the Commission may:
(1) 
Make an effort to secure voluntary compliance with the bylaw and/or a permit by the applicant or landowner;
(2) 
Issue an enforcement order; and/or
(3) 
Hold an administrative hearing to consider whether the landowner should be fined for the violation.
B. 
Violations include, but are not limited to:
(1) 
Failure to comply with a permit, including failure to observe a particular condition or time period specified in the permit.
(2) 
Failure to complete work as described in a permit when such failure causes damage to the interests identified in the bylaw.
(3) 
Failure to obtain a permit prior to conducting an activity subject to regulation under the bylaw (§ 290-4).
C. 
The Commission may issue an enforcement order under MGL c. 131, § 40 in lieu of, or in addition to, an administrative order under these regulations.
D. 
An enforcement order issued by the Conservation Commission shall be signed by a majority of the Commission. In a situation requiring immediate action, it may be signed by a single member or agent of the Commission if said enforcement order is ratified by a majority of the members at the next scheduled meeting of the Commission.
E. 
If a fine or adjustment of fine for a violation is being considered, the Commission shall hold an administrative hearing to discuss the violation and to give the landowner and/or individuals responsible for the violation an opportunity to respond to the evidence and circumstances. The Commission must give such parties at least 48 hours' notice, in writing, of the date, time and place of an administrative hearing by certified mail or hand delivery to the last known address on record in the Assessor's office. The Commission may grant a continuance, at its discretion, upon appeal by the landowner stating in full the reason for the request. If a majority of the Commission present at the hearing finds that a violation has occurred, the landowner and/or individual responsible for the violation may be fined not more than $300 per violation. The amount of the fine per violation will be determined by the Commission at the administrative hearing.
F. 
The Commission shall develop guidelines for calculating the appropriate amount of the fine.
G. 
The Commission shall take into account the nature of the violation, as follows:
(1) 
Where remedial action is possible, each day or portion thereof during which the violation continues or is repeated shall constitute a separate offense, and each provision of the bylaw, regulations or permit violated shall constitute a separate offense.
(2) 
Where remedial action is not possible or advisable, the Commission will decide what procedural or legal remedies to take.
H. 
The notice of the fine and explanation thereof, including the date or approximate date of the violation from which daily violations are counted, will be sent, in writing, to the responsible landowner and/or individual(s) responsible for the violation by certified mail or hand delivery. The fine is payable to the Town of Belchertown within 21 days of the date of issuance of the notice.
I. 
The Commission may accept a written plan with timetable for full restoration and restitution of the violation and may then withhold sending the notice of fine for a specified time period. If satisfactory restitution is not made within a timely manner, the notice of fine is retroactive.
J. 
Noncriminal disposition. See Chapter 139, Wetlands Protection, § 139-11D, of the Code of the Town of Belchertown.
A. 
Introduction. See 310 CMR 10.51.
B. 
Purpose. See 310 CMR 10.52.
C. 
General provisions. See 310 CMR 10.53 and the following:
(1) 
Any agricultural activity as defined by the Farm Assessment Act, MGL c. 61A, exempt from the provisions of the Wetlands Protection Act, MGL c. 131, § 40, and from the Wetlands Protection Regulations, 310 CMR 10.00 (normal maintenance or improvement of land in agricultural use), will also be exempt under the Belchertown Wetlands Regulations.
(2) 
Additionally, any agricultural activity as defined by the Farm Assessment Act, MGL c. 61A, and on land not under the jurisdiction of the Massachusetts Wetlands Protection Act and implementing regulations (310 CMR 10.00) will be exempt from all local jurisdiction.
D. 
Bank (naturally occurring banks and beaches). See 310 CMR 10.54.
E. 
Freshwater wetlands. Freshwater wetlands include bordering vegetated wetlands, such as marshes, wet meadows, bogs and swamps, as defined in 310 CMR 10.55 and incorporated into these regulations as Subsection F of this section. They are areas of wetland vegetation where 50% or more of the vegetative community consists of obligate or faculative wetland plant species as included or identified in generally accepted scientific or technical publications. Freshwater wetlands also include isolated wetlands greater than 5,000 square feet in area.
F. 
Bordering vegetated wetlands. See 310 CMR 10.55.
G. 
Isolated wetlands.
(1) 
Preamble. Isolated wetlands are freshwater wetlands that do not border on creeks, rivers, streams, ponds and lakes. Isolated wetlands are likely to be significant to public or private water supply, groundwater supply, flood control, storm damage prevention, prevention of pollution and the protection of wildlife habitat.
(a) 
Isolated wetlands may be found either in areas with low, flat topography or below sidehill seeps. These areas provide temporary storage of water resulting from runoff, rising groundwater or where groundwater breaks out of a slope forming a sidehill seep, thereby providing for flood control and prevention of flood damage. Alteration can result in the lateral displacement of retained water into adjacent properties, resulting in modified drainage patterns with the potential for property damage.
(b) 
Isolated wetlands are areas where groundwater may discharge to the surface either by a rising water table or from a sidehill seep. Under some circumstances, surface water may discharge to the groundwater in these areas, particularly where they are underlain by pervious materials. Contaminants introduced into such areas, such as septic system discharges, road salts, pesticides or herbicide, find easy access into the groundwater and may contaminate private or public water supplies.
(c) 
Where such areas are underlain by pervious material covered by a mat of organic peat or muck, they are likely to be significant to prevention of pollution.
(d) 
Isolated wetlands may provide important habitat for wildlife. Isolated wetlands providing seasonal wetland habitats are essential breeding sites for certain amphibians which require isolated areas that generally flood in the spring and/or summer and are free of fish predators. Many reptiles, birds and mammals depend upon such isolated wetlands as a source of food.
(2) 
Definition, critical characteristics and boundary. Isolated wetlands are freshwater wetlands as defined in these regulations that do not border on creeks, rivers, streams, ponds and lakes. Isolated wetlands may occur in a depression or closed basin in otherwise flat topography. In these areas, water may pool above the surface at least once a year or may be contained in the top 18 inches of soil. In addition, some isolated wetlands occur downslope of sidehill seeps, depending on the topography, soils and water regime.
(a) 
Isolated wetlands are areas of wetland vegetation where at least 50% or more of the natural vegetative community must consist of plants listed in the Massachusetts Wetlands Protection Act or which are obligate or facultative wetland plant species as included or identified in generally accepted scientific or technical publications; and
(b) 
The isolated wetland must cover an area that is 5,000 square feet or greater.
(3) 
Presumption. Where a proposed activity involves filling, dredging or altering of an isolated wetland, the Commission shall presume that such an area is significant to the interests specified in the preamble above. This presumption is rebuttable and may be overcome only by a clear showing that said land does not play a role in said interests. In the event that the presumption is deemed to have been overcome, the Commission shall make a written determination to this effect, setting forth its grounds.
(4) 
Performance standards.
(a) 
A proposed project which may result in alteration of an isolated wetland shall not result in the following:
[1] 
Flood damage due to filling which causes lateral displacement of water that would otherwise be confined within said area.
[2] 
An adverse effect on public and private water supply or groundwater supply, where said area is underlain by pervious material.
[3] 
An adverse effect on the capacity of said area to prevent pollution of the groundwater, where the area is underlain by pervious material which in turn is covered by a mat of organic peat or muck.
[4] 
An impairment of its capacity to provide important wildlife habitat.
(b) 
No project may be permitted which will have any adverse effect on specified habitat sites of rare vertebrate or invertebrate species as identified on the Natural Heritage and Endangered Species Estimated Habitat Maps on file with the Commission and identified under Section 10.59 (Rare Species) of the regulations of the State Wetlands Protection Act (310 CMR 10.00).
H. 
Land under water bodies and waterways (under any creek, river, stream, pond or lake). See 310 CMR 10.56, except as where the definition of "pond" (310 CMR 10.04 Pond) applies. In these situations, substitute the definition of "pond" under § 290-6, which defines "pond" as having a surface area of at least 5,000 square feet.
I. 
Land subject to flooding. See 310 CMR 10.57.
J. 
Variance. See 310 CMR 10.58.
K. 
Rare species. See 310 CMR 10.59.
L. 
Wildlife habitat evaluations. See 310 CMR 10.60.
A. 
Preamble.
(1) 
Ephemeral pools are usually isolated depressions or closed basins that serve, in most years, as ponding areas for runoff or high groundwater that has risen to the surface. Ephemeral pools are, by definition, of seasonal duration; accordingly, the degree of wetness necessary for the establishment of a typical wetland plant community does not exist in most cases. Since the temporary nature of ephemeral pools precludes the presence of fish species, these areas are able to support viable populations of several amphibian and invertebrate species which are highly vulnerable to fish predation. The presence of a sustaining population of any species of fish at a site in question would rule it out as an ephemeral pool.
(2) 
Ephemeral pools are not located within resource areas under jurisdiction of the Massachusetts Wetlands Protection Act but serve as vernal pool habitat. Where one of these ponded areas is shown to be vernal pool habitat, it shall be considered an ephemeral pool under these regulations and presumed significant to the protection of wildlife habitat.
B. 
Definition, critical characteristics and boundary.
(1) 
Definition. Ephemeral pools are isolated depressions or closed basins which temporarily confine water during periods of high water table and high input from spring runoff, snowmelt or heavy precipitation and serve as vernal pool habitat. They are essential breeding sites for certain amphibians which require isolated areas that are generally flooded for at least two continuous months in the spring and/or summer and are free from fish predators. Most of these amphibians remain near the breeding pool during the remainder of their life cycle. Many reptiles, birds and mammals also feed here.
(2) 
Critical characteristics.
(a) 
Temporality. Ephemeral pools generally fill up during the spring rains and snowmelt, dry up during the summer and may fill again during the fall rains or during summer thundershowers. An area where water stands on a year-round basis will not be considered to be a temporary wetland (it may be an isolated wetland). The cycle of filling and drying may occasionally miss a year due to dry conditions.
(b) 
Isolated depressions. Shallow areas of no minimum size where water ponds in response to flooding, high groundwater or inputs from rain and snow meltwater and which lack permanent inlets or outlets.
(c) 
Organic accumulation. The presence of a well-developed organic layer is a feature of most ephemeral pools. These pools have generally existed since the end of the glacial period and will probably continue in their semi-open condition for many more thousands of years unless artificially altered. These pools act as traps for organic matter, especially during the autumn when they trap quantities of airborne leaves. The presence of water-stained leaves in a depression which is otherwise dry is a good indicator that the area temporarily serves to pool water.
(3) 
Boundary. Because ephemeral pools are dry much of the year, it may be necessary to determine their boundaries using indicators other than pooled water. Further, because the area inundated varies so widely from year to year, pooled water is not a good indicator of extent. An ephemeral pool boundary shall be determined using a combination of pooled water, if present, and the presence of a depression covered by water-soaked leaves, water marks or lack of moss on trees, buttressed tree trunks, shallow-rooted trees or adventitious roots on trees. Other indicators of the temporary pooling of water, such as the presence of caddis fly cases or fingernail or pea clams, can also be used. The burden of proof for identification of an ephemeral pool shall be upon the Conservation Commission. Identification must be made prior to the close of a public hearing and shall follow the guidelines for vernal pool certification criteria established by the Massachusetts Division of Fisheries and Wildlife. In the case of disputes, hydrological calculations using the two-year storm may be used to provide a determination of the boundary of an ephemeral pool.
C. 
Presumption. Where a proposed activity involves the removing, filling, dredging or altering of an ephemeral pool, the Conservation Commission shall presume that such an area is significant to the protection of wildlife habitat, particularly amphibian breeding habitat. This presumption is rebuttable and may be overcome upon a clear showing that the ephemeral pool does not play a role in the protection of wildlife habitat. In the event that the presumption is deemed to have been overcome, the Commission shall make a written determination to this effect, setting forth its grounds.
D. 
General performance standards. A proposed project in a ephemeral pool shall not result in the following:
(1) 
Any impairment of the capacity of the ephemeral pool, as well as the area within 100 feet of the mean annual boundary of the ephemeral pool, to provide wildlife habitat. Alterations may be permitted if they will have no adverse effects on wildlife habitat, as determined by the procedures listed in 310 CMR 10.60.
(2) 
Endangering state-listed species, which shall be protected under the procedures listed in 310 CMR 10.59.
A. 
Preamble. It is the Commission's experience that any project undertaken in close proximity to a wetland resource area has a high likelihood of resulting in some alteration of that area, either immediately, as a consequence of construction, or over a longer period of time, as a consequence of daily operation of the completed project. These negative impacts from construction, as well as long-term use, in the buffer zone can include erosion, siltation, loss of groundwater recharge, poor water quality characteristics and loss of wildlife habitat. The Commission's prime concern in the buffer zone is the ultimate impact on the adjacent wetland resource area from both the construction and use phases of the proposed activity. The policy of the Commission is to have the applicant maintain a strip of continuous, undisturbed, indigenous vegetative cover in the buffer zone adjacent to the resource area to reduce erosion and pollution to the adjacent wetland resource area, maintain water quality, improve water recharge and provide wildlife habitat.
B. 
Definition and critical characteristics.
(1) 
Definition. The buffer zone is that area of land extending 100 feet horizontally outward from the boundary of any resource area specified in § 290-4A.
(2) 
Critical characteristics.
(a) 
Where surface runoff or groundwater from the buffer zone drains toward the resource area, vegetative cover and soils may filter runoff and provide uptake or renovation of pollutants from adjacent areas, thereby protecting water quality within the resource area. The vegetation and soils may slow surface runoff and permit infiltration of precipitation, maintaining the hydrologic regime to which the resource area is adapted.
(b) 
Indigenous vegetation is often used by wildlife for important functions, such as nesting, feeding and protective cover sites. Dense understory in wooded areas may provide nesting sites, travel corridors and protective cover for a wide variety of fauna. Cutting of vegetation, especially canopy trees, alters the physical environment by allowing more light and air and may increase temperatures during the summer and decrease temperatures in winter.
C. 
Presumption. A continuous twenty-five-foot vegetated buffer strip between development activities in the buffer zone and the resource area to be protected shall be presumed to be significant to the interests specified in the preamble above. This is rebuttable and may be overcome upon a clear showing that said land will not play a role in the protection of said interests. In the event that the presumption is deemed to have been overcome, the issuing authority shall make a written determination to this effect, setting forth the grounds.
(1) 
The following activities within the twenty-five-foot buffer strip shall be presumed not to be significant to interests specified in the preamble above:
(a) 
Ongoing landscaping activities on existing developed lots (continued mowing, landscaped plantings and selective pruning), provided that soil is not exposed to erosion, there is no change in grade and sod cover or natural litter layer is maintained.
(b) 
Construction or installation of fences or structures not requiring a building permit.
(c) 
Construction of footpaths of minimum size.
(2) 
Water-dependent activities, limited projects approved by the Commission and activities where there is no practicable alternative may be allowed by the Commission where impacts are minimized and mitigated, as necessary. As with any work in the buffer zone, these activities still require the filing of a request for determination of applicability or notice of intent, whichever is appropriate under these regulations.
D. 
Performance standards.
(1) 
Any work within the buffer zone shall not result in alteration of any resource area, or, if work within the buffer zone which alters a resource area is permitted by the Commission, the alteration of the resource area shall comply with the applicable performance requirements for the altered resource area and any other conditions the Commission may require to enforce those performance requirements.
(2) 
Unless as specified above, a continuous twenty-five-foot no-disturbance buffer strip, untouched and in its natural state, shall be left between development activities in the buffer zone and the resource area to be protected.
(3) 
Any drainage outletting in the buffer zone shall be shown to be nonerosive and shall demonstrate that there is no significant change in off-site runoff from the proposed work.