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ARTICLE
VII
Wetland Protection
PURPOSE
1.1 The purpose of this Bylaw is to
protect the wetlands, water resources and adjoining land areas in
the Town of Harwich by controlling activities deemed by the
Conservation Commission likely to have a significant or cumulative
adverse effect on the values of Resource Areas, as hereafter
defined, including but not limited to the following:
Protection of Public or Private Water
Supply
Protection
of
Groundwater
Flood
Control
Storm
Damage Prevention (including Coastal Storm
Flowage)
Prevention
of
Pollution
Protection
of Land Containing
Shellfish
Protection
of
Fisheries
Protection
of Wildlife Habitat
Protection of
Rare Species Habitat including Rare Plant Species
Protection
of Water
Quality
Erosion
and Sedimentation
Control
Agriculture
Aquaculture
Recreation
1.2
These values are deemed important to the community
(collectively the “Resource Area Values protected by this Bylaw”).
This Bylaw is intended to utilize the Home Rule authority of
this municipality to protect additional Resource Areas for their
additional values, with additional standards and procedures stricter
than those of the Wetland Protection Act (Massachusetts General Law
(MGL) chapter 131, section 40) and regulations thereunder (310 CMR
10.00).
2.
Jurisdiction
2.1 Except
as permitted by the Conservation Commission or as provided for in
this Bylaw, no person shall commence to remove, fill, dredge, build
upon, degrade, discharge into, or otherwise alter any freshwater or
coastal wetland Resource Areas, including:
2.2
Freshwater Wetland Resource Areas:
Marshes; Wet
Meadows; Bogs; Swamps; Vernal Pools and Vernal Pool Habitat;
Lands Subject to Flooding, both bordering and isolated; Isolated
Wetlands greater than 5000 square feet; Banks; Reservoirs; Lakes;
Ponds greater than 5000 square feet; Rivers, including the
Riverfront Area; Streams and Creeks, including Intermittent Streams;
and the Lands underneath Lakes, Ponds, Streams and
Creeks.
2.3 Coastal Wetland Resource
Areas:
Land under the Ocean; Designated Port Areas; Coastal
Beaches; Coastal Dunes; Barrier Beaches; Coastal Banks; Rocky
Inter-tidal Shores; Salt Marshes; Land under Salt Ponds;
Land
Containing Shellfish and Fish runs; and Lands Subject to Tidal
Action, Coastal Storm Flowage or Flooding;
2.4 And Lands within 100 feet of any of
the Aforesaid Resource Areas, as set out
in Section 2 except for
the Riverfront Area and Vernal Pool Habitat.
Conditional
Exceptions
3.1 The application and permit
required by this Bylaw shall not be required for maintaining,
repairing or replacing, but not substantially changing or enlarging,
an existing and lawfully located structure or facility used in the
service of the public to provide electric, gas, water, telephone,
telegraph or other telecommunication services.
3.2 The
provision of this section shall not apply to any mosquito control
work done under the provisions of clause (36) of section five of
chapter forty, of chapter two hundred and fifty two or any special
act; to maintenance of drainage and flooding systems of
cranberry bogs; and to work performed for normal maintenance or
improvement of land in agricultural use or in aquacultural use; or
to any project authorized by special act prior to January first,
nineteen hundred and seventy-three.
3.3
The application and permit required by this Bylaw shall not be
required for emergency projects necessary for the protection of the
health and safety of the public, provided that the work is to be
performed by or has been ordered to be performed by an agency of the
Commonwealth or a political subdivision thereof; provided that
advance notice, oral or written, has been given to the
Commission prior to commencement of work or within 24 hours after
commencement; provided that the Commission or its agent certifies
the work as an emergency project; provided that the work is
performed only for the time and place certified by the Commission
for the limited purposes necessary to abate the emergency; and
provided that within 21 days of commencement of an emergency project
a permit application shall be filed with the Commission.
Upon failure to meet these and other requirements of the
Commission, the Commission may, after notice and a public hearing,
revoke or modify an emergency project approval and order restoration
and mitigation measures.
Application For Permits And Requests For
Determination
4.1 Written application shall be
filed with the Commission to perform activities affecting Resource
Areas protected by this Bylaw. The application shall include
such information and plans that are deemed necessary by the
Commission to describe proposed activities and their effects on the
Resource Areas protected by this Bylaw. No activities shall
commence without receiving and complying with a permit issued
pursuant to this Bylaw.
4.2 If appropriate, the
Commission may accept as the application and plans under this Bylaw
the Notice of Intent and plans filed under the Wetlands Protection
Act and Regulations.
4.3 Any person desiring to know
whether or not a proposed activity or an area is subject to this
By-law may in writing request a determination from the Commission.
Such a Request for Determination shall include information and
plans as are deemed necessary by the Commission.
5.
Notice And Hearings
5.1
Any person filing a permit application or a Request for
Determination with the Commission shall at the same time give
written notice thereof, by certified mail (return receipt requested)
or hand delivered, to all abutters at their mailing addresses shown
on the most recent applicable assessors tax list. Abutters include
those immediately adjacent, across a road or water body, and in
another municipality if within 100 feet of the boundary of the
property where work is proposed. The notice to abutters
shall state where copies of the permit application and plans may be
obtained or examined by abutters. An affidavit of the person
giving such notice, with a copy of the notice mailed or
delivered, shall be filed with the Commission. When the person
requesting a Determination is other than the owner, a copy of the
Request for Determination shall be sent by the applicant to
the owner, and the notice of the hearing and the Determination
itself shall be sent by the Commission to the owner as well as to
the person making the request.
5.2 The Commission shall
conduct a public hearing on any application or Request for
Determination, with written notice given at the expense of the
applicant, which notice shall be published in a newspaper of general
circulation in the Town of Harwich at least five business days prior
to the hearing.
5.3 The Commission shall commence the
public hearing within 21 days from receipt of a
completed permit
application or Request for Determination unless an extension is
authorized in writing by the applicant.
5.4 The
Commission shall issue its Determination or permit in writing within
21 days of the close of the public hearing or receipt of the File
Number issued by the MA Department of Environmental Protection,
whichever is later, unless and extension is authorized in writing by
the applicant.
5.5 If appropriate, the Commission may
combine its hearing under this By-law with the hearing
required under the Wetlands Protection Act (MGL chapter 131, section
40) and Regulations (310 CMR 10.00).
5.6 Public hearings may be continued as
follows:
without the consent of the applicant to a
date, announced at the hearing, which continued date shall be within
21 days of receipt of the Notice of Intent.
with the consent of
the applicant, to an agreed-upon date, which shall be announced at
the hearing; or
with the consent of the applicant for a period
not to exceed 21 days after the submission of a specified piece of
information or the occurrence of a specified action. The date,
time and place of said continued hearing shall be publicized in
accordance with M.G.L. ch. 131, section 40, and notice shall be sent
to any person at the hearing who so requests in
writing.
6.
Coordination With Other
Communities And Boards
6.1 Any person filing
a permit application or a Request for Determination with the
Commission shall provide a copy thereof at the same time, by
certified mail to the Conservation Commission of the adjoining
municipality, if the application or Request for Determination
pertains to property within 100 feet of that municipality. An
affidavit of the person providing notice, with a copy of the notice
mailed or delivered, shall be filed with the Commission. The
applicant, as well as the Commission, shall have the
right to request any comments and recommendations from other Town
Boards and Departments, and to respond to them at a hearing of the
Commission, prior to final
action.
7.
Permits And Conditions
7.1 If the
Commission, after a public hearing, determines that the activities
which are subject to the application or the land and water uses
which will result therefrom are likely to have a significant
individual or cumulative adverse effect upon the Resource Area
values protected by this Bylaw, the Commission, within 21 days of
the close of the hearing or receipt of the File Number issued by the
MA Department of Environmental Protection, whichever is later, shall
issue or deny a permit for the activities requested. If it
issues a permit, the Commission shall impose conditions which the
Commission deems necessary or desirable to protect the Resource Area
values, and all activities shall be done in accordance with those
conditions.
7.2 The Commission is empowered to deny a
permit for failure to meet the requirements of this Bylaw; for
failure to submit necessary information and plans requested by the
Commission; for failure to meet the design specifications,
performance standards, and other requirements in regulations of the
Commission; for failure to avoid or prevent unacceptable significant
or cumulative effects upon the Resource Area values protected by
this Bylaw; and where no conditions are adequate to protect those
values. Due consideration shall be given to any
demonstrated hardship on the applicant by reason of denial, as
presented at the public hearing.
7.3 Lands within 200
feet of rivers as defined by the M.G.L. c. 131, section 40, and
lands within 100 feet of other Resource Areas, are presumed
important to the protection of these resources because activities
undertaken in close proximity to Resource Areas have a high
likelihood to adversely impact the wetland or other Resource Areas,
either immediately, as a consequence of construction, or over time,
as a consequence of daily operation or existence of the
activities. These adverse impacts from construction and
use can include, without limitation, erosion, siltation, loss of
groundwater recharge, degradation of water quality, and loss of
wildlife habitat. The Commission therefore may, where
practicable, require the applicant to maintain a strip of
continuous, undisturbed vegetative cover within the 200 foot
Riverfront Area or 100 foot buffer zone, of not less than 50 feet
adjacent to any freshwater or coastal wetland, unless the applicant
convinces the Commission that the area or part of it may be
disturbed without harm to the Resource Area values protected
under this Bylaw.
7.4 To prevent wetlands loss, the
Commission shall require applicants to avoid wetlands alteration
wherever feasible; shall minimize wetlands alteration; and, where
alteration is unavoidable, shall require full mitigation. The
Commission may authorize or require replication of wetlands as a
form of mitigation, but only with adequate security, professional
design, and monitoring to assure success, because of the high
likelihood of failure of replication.
7.5 Except
as provided in M.G.L. c. 131, section 40 for maintenance dredging, a
permit shall expire three years from the date of issuance.
Notwithstanding the above, the Commission in its discretion
may issue a permit for up to five years from the date of issuance
where special circumstances warrant and where those special
circumstances are set forth in the permit. A permit may be
extended for one or more periods of up to three years, provided that
a request for renewal is received in writing by the Commission
thirty days prior to the expiration of the permit. The
Commission may deny the request for an extension and require the
filing of a new Notice of Intent for the remaining work in the
following circumstances:
Where no work has begun on the
project, except where such failure is due to an unavoidable delay,
such as appeals, in the obtaining of other necessary
permits.
Where new information, not available at the time the
Order was issued, has become available and indicates that the Order
is not adequate to protect the interests identified in M.G.L. c.131,
§40;
Where work has been done in violation of the order or 310
CMR 10.00.
Notwithstanding the above, a permit may contain
requirements which shall be enforceable for a stated number of
years, indefinitely, or until permanent protection is in place and
shall apply to all owners of the land, now and in the
future.
7.6 For good cause the Commission may revoke or
modify a permit or Determination issued under this Bylaw after
notice to the holder of the Determination or permit, notice to the
public, abutters, and a public hearing.
7.7 The
Commission in an appropriate case may combine the permit or
Determination issued under this Bylaw with the Order of Conditions
or Determination of Applicability issued under the Wetlands
Protection Act (MGL ch. 131 section 40) and Regulations (310 CMR
10.00).
7.8 No activity proposed in any permit
application shall be undertaken until a 10 business day appeal
period under the Wetlands Protection Act has elapsed and the
permit issued by the Commission with respect to such activity
has been recorded in the Barnstable County Registry of Deeds or,
if the land affected is registered land, in the registry section of
the land court for Barnstable County, and until the holder of the
permit certifies in writing to the Commission that the permit has
been recorded.
8. Regulations
8.1
After public notice and public hearing, the Commission shall
promulgate rules and regulations to effectuate the purposes of this
Bylaw effective when voted and filed with the Town Clerk.
Failure by the Commission to promulgate such rules and
regulations or a legal declaration of their invalidity by a court of
law shall not act to suspend or invalidate the effects of this
Bylaw.
8.2 At a minimum these regulations shall define
key terms in this Bylaw not inconsistent with the Bylaw and the
procedures governing the amount and filing of fees.
9.
Definitions
9.1 The following definitions
shall apply in the interpretation and implementation of this
Bylaw.
9.2 The term “Inland Bank” shall include the
land area which normally abuts and confines a water body; the lower
boundary being the mean annual low flow level, and the upper
boundary being the first observable break in the slope or the mean
annual flood level, whichever is LOWER.
9.3 The
term “vernal pool” shall refer to a seasonal fresh water body
contained in a confined basin depression that holds water for a
minimum of two consecutive months in most years, is free of adult
fish populations, and provides breeding habitat for amphibians and
invertebrates. The boundary of vernal pool habitat shall
extend outward 100 feet from the mean annual high water mark of such
a depression. Vernal pools include those areas mapped and
certified by the Massachusetts Natural Heritage and Endangered
Species Program as well as those areas identified in the field as
eligible for certification by a professional wildlife biologist or
other
expert.
9.4
The term “rare species habitat” shall include, without
limitation, habitats for all vertebrate and invertebrate animal
species and plant species listed as endangered, threatened, or of
special concern by the Massachusetts Division of Fisheries and
Wildlife, regardless of whether the site in which they occur has
been previously identified by the Division.
9.5 The
term “person” shall include any individual, group of individuals,
association, partnership, corporation, company, business
organization, trust, state, the Commonwealth or political
subdivision thereof to the extent subject to town Bylaws,
administrative agency, public or quasi-public corporation or body,
this municipality, and any other legal entity, its legal
representatives, agents, or assigns.
9.6 The term
“alter” shall include, without limitation, the following activities
when undertaken to, upon, within or affecting Resource Areas
protected by this Bylaw:
Removal, excavation, or
dredging of soil, sand, gravel or aggregate materials of any
kind.
Changing of preexisting drainage characteristics, flushing
characteristics, salinity distribution, sedimentation patterns, flow
patterns, or flood retention characteristics.
Drainage, or other
disturbance of water level or water table.
Dumping, discharging
or filling with any material which may degrade water
quality.
Placing of fill, or removal of material, which would
alter elevation.
Driving of piles, construction, or repair of
buildings or structures of any kind.
Placing of obstructions or
objects in water.
Destruction of plant life including cutting of
trees.
Changing temperature, biochemical oxygen demand, or other
physical, biological, or chemical characteristics of any
waters.
Any activities, changes or work which may cause or tend
to contribute to pollution of any body of water or
groundwater.
Incremental activities, which have, or may have, a
cumulative adverse impact on the Resource Areas protected by this
Bylaw.
9.7 Except as otherwise provided for in this
Bylaw or in regulations of the Commission, the definitions of terms
in this Bylaw shall be as set forth in the Wetlands Protection Act
(M.G.L. ch. 131, section 40) and Regulations (310 CMR
10.00).
10. Security
10.1 As
part of a permit issued under this Bylaw, in addition to any
security required by any other municipal or state board, agency, or
official, the Commission may require that the performance and
observance of the conditions imposed thereunder (including
conditions requiring mitigation work) be secured wholly or in part
by one or more of the methods described below:
By a proper bond
or deposit of money or negotiable securities or other undertaking of
financial responsibility which is sufficient in the opinion of the
Commission to secure the obligations of the applicant to undertake
the activities so authorized pursuant to the Conditions contained in
the permit. Said security shall be released in whole or in
part upon issuance of a Certificate of Compliance upon completion of
the work performed pursuant to a permit.
By accepting a
conservation restriction, easement or other covenant enforceable in
a court of law, executed and duly recorded by the owner of record,
running with the land to the benefit of this municipality whereby
the permit conditions shall be performed and observed before any lot
may be conveyed other than by mortgage deed. This method shall
be used only with the consent of the applicant.
11. Enforcement
11.1
No person shall remove, fill, dredge, build upon, degrade or
otherwise alter Resource Areas protected by this Bylaw, or cause,
suffer, or allow such activity, or leave in place unauthorized fill,
or otherwise fail to restore illegally altered land to its original
condition, or fail to comply with a permit or an enforcement order
issued pursuant to this Bylaw.
11.2 The Commission, its
agents, officers, and employees shall have authority to enter upon
privately owned land for the purpose of performing their duties
under this Bylaw and may make or cause to be made such examinations,
surveys, or sampling as the Commission deems necessary, subject to
the constitutions and laws of the United States and the
Commonwealth.
11.3 Upon request of the Commission, the
selectmen and the town counsel may take legal action for enforcement
under civil law. Upon request of the Commission, the chief of
police may take legal action for enforcement under criminal
law.
11.4 Municipal boards and officers, including any
police officer or other officer having police powers, shall have
authority to assist the Commission in enforcement of this
Bylaw.
11.5 Any person, who violates any provision of
this Bylaw, any regulations promulgated hereunder, or permits, or
administrative orders issued thereunder, may be punished by a fine
of not more than $200.00. Each day or portion thereof during
which a violation continues, or unauthorized fill or other
alteration remains in place, shall constitute a separate offense,
and each provision of the Bylaw, regulations, permit or
administrative orders violated shall constitute a separate
offense.
11.6 As an alternative to criminal prosecution
in a specific case, the Commission may issue citations under the
non-criminal disposition procedure set forth in M.G.L. Ch. 40 21D,
which has been adopted by the Town in Article VIII, Section 101-103
of the General Bylaws. The penalty for any violation under
non-criminal disposition shall be $50.00 for each offense.
Members of the Commission, its agent, or any police officer
shall have enforcement powers to issue non-criminal disposition
citations.
12. Burden Of
Proof
12.1 The applicant for a permit shall have
the burden of proving by a preponderance of the credible evidence
that the work proposed in the permit application will not have
unacceptable significant or cumulative effect upon the Resource Area
values protected by the Bylaw. Failure to provide adequate
evidence to the Commission supporting this burden shall be
sufficient cause for the Commission supporting this burden shall be
sufficient cause for the Commission to deny a permit or grant a
permit with conditions.
13. Appeals
13.1 A decision of the Commission
under this Bylaw shall be reviewable in the Superior Court in
accordance with M.G.L. Ch. 249, section 4.
14.
Relation To The Wetlands Protection
Act
14.1 This Bylaw is adopted
under the Home Rule Amendment of the Massachusetts Constitution and
the Home Rule statutes, independent of the Wetlands Protection Act
(M. G.L. Ch. 131, section 40) and Regulations (310 CMR 10.00)
thereunder.
15. Severability
15.1
The invalidity of any section or provision of this
Bylaw shall not invalidate any other section or provision thereof,
nor shall it invalidate any permit or Determination which previously
has been issued.
PART 2 Water Dependent
Structures:
7-201. Any water-dependent
structure such as a wharf, float, pier, dock, or similar structure
as hereafter defined, constructed seaward of Mean High Water in any
tidal waters of the Town after the effective date of the By-law
shall be subject to the provisions hereof and be in conformity
hereto. Any water-dependent structure constructed within areas
of Pleasant Bay where structures are allowed shall also be subject
to the provisions of the Pleasant Bay Management Plan’s Guidelines
and Performance Standards for Docks and Piers.
7-202.
For the purpose of the By-law the following words shall have
the following meanings:
Deck – The surface of a
water-dependent structure designed as the walkway for persons using
the same.
Float – A floating structure anchored in
position by pilings chain or otherwise, which is designed to rise
and fall with the tide, used in conjunction with a wharf, pier or
dock to moor and give access to a vessel.
Gangway – A ramp or platform used to provide
access between a float or vessel and a pier, dock or
wharf.
Deep Water Channel – The area of a water body
wherein the depth of water is three feet or more at mean low
water.
Mean High Water: The elevation in
feet above NGVD established by the present arithmetic mean of the
water heights observed at high tide over a specific 19-year Metonic
Cycle (the National Tidal Datum Epoch) as shown on the New England
Coastline Tidal Flood Survey – Tidal Flood Profile No. 9 Barnstable
to Chatham, MA by the New England Division, Corps of Engineers.
Where salt marsh occurs, the mean high tide will be that point
where spartina alternaflora gives way to spartina patents.
Walkways over salt marshes that extend beyond this
intersection will be regulated under the provisions of this
By-law.
Piling – A column constructed from any
material used to support the deck or other structural member of a
wharf, pier or dock or to serve as a mooring spar or dolphin for
vessels or floats.
Water-Dependent Structure – Any
structure or combination of structures, built adjacent to or at an
angle from the shore and extending seaward beyond the mean high
water mark so that vessels may lie alongside to receive and
discharge passengers or cargo or for use as a promenade and shall
include structures commonly referred to as floats, docks, piers, or
wharves.
7-203. No water-dependent structure shall
hereafter be constructed without a permit to do so issued by the
Harwich Conservation Commission (hereinafter “the Commission”) and a
permit approving structural components from the Building
Department.
7-204. No permit shall be issued for
construction of a new, private, water-dependent structure in the
area of Round Cove of Pleasant Bay. This area includes all
contiguous parcels beginning with the northerly boundary of the
property (Map & Parcel Number 115-S1-3) and extending southerly
along the shore to the southerly boundary of the property ) Map
& Parcel Number 109-B1-5), and all shorefront parcels between
these two properties including Round Cove. This prohibition
does not apply to existing, licensed structures or to the
maintenance of existing, licensed structures.
7-205. No
permit shall be issued to construct a water-dependent structure
until a completed permit application has been received and
approved.
7-206. An application for a permit to construct a
water-dependent structure shall be submitted to the
Conservation Commission and shall include the
following:
Fourteen (14) copies of plans of the proposed
work, which shall include all information required by the
Conservation Commission under the regulations applicable to plans to
be filed with a Notice of Intent under G.L c. 131 s. 40, as amended
and 310 CMR 9.0 (Chapter 91 licensing).
Two copies of the Notice
of Intent filed for the project with the Conservation Commission
under G.L. c. 131 s. 40, as amended
A $75.00 application fee
payable to the Town of Harwich in addition to filing fees required
under G.L. c. 131 s. 40.
7-207. Upon receipt of the application,
the Conservation Commission shall date stamp the application and
plans and shall forward copies of the plans to the Waterways
Commission, the Harbormaster, the Shellfish Warden and the Building
Inspector who shall review same and within twenty-eight (28) days of
receipt thereof advise the Conservation Commission of any areas of
non-compliance with this By-law, standards for structural integrity,
and other comments relative to its review. Such comments shall
be included in the review of the application by the
Commission.
7-208. The Conservation Commission shall
hold a hearing within 21 days of receipt of the application; however
the Commission may request a continuation if it has not received
comments by other reviewing entities. The provisions for a
continuation under Article VII, Section 5.6 shall also apply.
Upon review of all information the Commission shall then
determine whether it can issue a permit authorizing the work in
compliance with the conditions stated herein or issue a written
denial stating in detail the reasons therefor.
7-209.
No permit to construct a water-dependent structure shall be
issued unless the following standards are complied with:
No
structure or its related appurtenances, including floats, shall
extend more than eighty (80) feet seaward of the mean high water
mark; nor farther than fifty (50) feet into the deep water channel;
nor be allowed to encroach upon the deep water channel so as to
reduce the usable width thereof to less than fifty (50) feet; and no
vessel shall be moored thereto so as to encroach upon the fifty (50)
foot minimum, nor shall it extend so as to interfere with any
designated vessel mooring areas or established shellfish beds.
In areas of Pleasant Bay where structures are allowed, all
water-dependent structures shall meet the recommended 50-foot
setback from navigational channels and mooring areas.
No new
structure, or any vessel moored thereto, shall be allowed closer
than sixty-five (65) feet to an adjacent structure. In areas
of Pleasant Bay where structures are allowed, the separation between
structures shall be no less than 250 feet. Additionally,
“shared use” proposals (i.e. a single structure to be jointly owned
and used by two or more shorefront property owners) are encouraged
to preserve access by shore front property owners while reducing the
number of structures that might otherwise be
permitted.
Structures shall be constructed as closely as possible
to the perpendicular from the shoreline, excepting shared docks
located on a property line. In areas of Pleasant Bay where
structures are allowed, all water-dependent structures shall be a
minimum of 50 feet from property lines and associated riparian lines
unless the structure will be owned and used by two or more
contiguous shorefront property owners. In such cases, the
50-foot setback requirement shall apply to the outermost boundaries
of the two or more contiguous properties so that the structure may
be placed on a shared property line.
No structure (except floats)
shall exceed four (4) feet of walkway width.
No float or
combinations thereof shall exceed two hundred (200) square feet of
surface area nor shall any float be allowed landward of mean low
water. Preferred float configuration shall be “T” shaped in
order to encourage use of the float at its deepest end. No
permanent “T” or “L” shaped docks or piers are allowed.
In order
to protect the foreshore, all structures (except floats) shall be
supported by pilings. Decks shall have a minimum one ½” inch spacing
between deck planks and shall be at an elevation equal to the width
of the deck above mean high water or, in areas of marsh, above the
marsh vegetation, whichever is higher. Notwithstanding the
forgoing, in all areas where the foreshore is passable on foot, a
flight of stairs on either side of the deck shall be provided to
allow persons to lawfully use the foreshore. A directional
sign shall be placed indicating permission to cross the
structure.
Any structure proposed for siting in a salt marsh, or
in a body of water adjacent to a salt marsh, shall not destroy any
portion of the salt marsh or its substratum, nor have any adverse
impact on the productivity of the salt marsh. Additionally,
the structure should be oriented to minimize the effect of vessels
using the structure on the adjacent salt marsh and in its
substratum.
No structures shall be located within 50 feet of an
existing eelgrass bed nor within a shellfish area defined by the
Town Bylaws or Town Shellfish Warden. The presence or absence
of shellfish at a proposed site must be determined by a shellfish
survey submitted by the applicant. The survey shall include
existing populations of all sizes of commercially important species
of shellfish (clams, quahogs, scallops, mussels) and shall also
include other species of mollusks which may indicate the capacity of
the area to support commercially important species. The survey
shall also include a description of shell fragments, if feasible,
and references, if available, to historical information regarding
the presence or absence of shellfish species. Within the
Pleasant Bay ACEC, relocation of shellfish encountered during
construction of a project is not acceptable mitigation (except when
the project is part of a Town or State-sponsored shellfish relay
program, and then only if it can be clearly shown that the
productivity of that shellfish bed would not be diminished by its
relocation).
Any structure proposed for siting within a Fish Run
or within 100 feet of a Fish Run shall not have any adverse impact
on the fish run by impeding or obstructing the migration of fish or
by impairing the capacity of spawning or nursery habitats necessary
to sustain the life stages of the fish. Construction or
maintenance of structures shall not occur between 15 March and 15
June without specific written permission from the Division of Marine
Fisheries.
In order to provide the underlying seabed full
exposure to sunlight during six months of the year, all proposed
structures shall be seasonal – with seven months maximum use.
Off season storage plans shall be submitted for review and
approval by the Conservation Commission.
7-210. The
Commission shall deny a permit in any case where a proposed
structure or combination of structures, otherwise complying
herewith, would not extend to a point where at mean low water, a
water depth of at least two and one half (2 ½) feet is maintained;
no vessel shall be aground at mean low water.
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