1.1 Introduction
1.1.1 These rules and regulations (hereinafter referred to as the Regulations) are promulgated by the Ashburnham Conservation Commission (hereinafter referred to as the Commission) pursuant to the authority granted to it under Section 13.1 of the Ashburnham Wetlands Protection Bylaw (hereinafter referred to as the Bylaw). These regulations shall compliment the Bylaw. They shall be used to enforce and implement the Bylaw and shall have the same force of law upon their effective date.
1.2 Purpose
1.2.1 The Bylaw sets forth a public review and decision making process by which activities likely to have an impact or cumulative effect upon resource areas under the Bylaw are to be regulated in order to ensure the protection of wetlands including: protection of public and private water supplies, protection of groundwater supply, flood control, storm damage prevention, prevention of pollution, protection fisheries, and protection of wildlife habitat, as identified in the Wetlands Protection Act M.G.L. c.131 s.4
1.2.2 The purpose of these Regulations is to create a uniformity of process and to clarify and define the provisions of the Bylaw by which the Commission shall carry out its responsibilities. Both the bylaw and these regulations may be amended when necessary.
1.2.3 In instances where these Regulations are more stringent than 310 CMR 10.00, these local Regulations shall prevail (see 310 CMR 10.01 (2)).
1.3 Jurisdiction
1.3.1 Except as permitted by the Commission or as provided by this Bylaw, no person shall commence to remove, fill, dredge, build upon, degrade, discharge into, or otherwise alter the following resource areas: any wetlands; marshes; wet meadows; bogs; swamps; lakes; ponds; rivers; streams; creeks; banks; vernal pools; lands under waterbodies; lands subject to flooding or inundation by groundwater or surface water; and, lands within 200 feet of a perennial river or stream, (hereinafter “resource areas”).
1.3.2 Consistent with M.G.L. c.131 s.40 310 CMR 10.02, any activity other than minor activities identified in 310 CMR 10.02(2)(b)1 proposed or undertaken within 100 feet of a resource area (hereinafter called the Buffer Zone) which, in the judgment of the Commission, will alter a resource area is subject to regulation under this Bylaw, and requires the filing of an application with the Commission.
1.4 Definitions
1.4.1 Except as otherwise provided below or in the Ashburnham Wetlands Protection Bylaw, the definitions of terms in these Rules and Regulations shall be as set forth in the Wetlands Protection Act (G.L. Ch. 131 s.40) and Regulations (310 CMR 10.00)
1.4.1.1 Abutter - The owner of land in accordance with the most recent records of the Ashburnham Tax Assessor’s Office. The abutters’ properties are within one hundred (100) feet in any horizontal direction of any boundary of the site, which is listed in the permit.
1.4.1.2 Activity - Any form of removing, filling, grading, dredging, building upon, expansion, reconstruction, altering, changing, enlarging, draining, withdrawing, damming, discharging, excavation, driving of pilings, construction, improvement, intercepting and/or diverging of water, installations of pipes or drainage systems, discharging of pollutants, destruction or cutting of plant life (including, but not limited to trees), and any change to the physical characteristics of land or the physical or chemical characteristics of water.
1.4.1.3 Bylaw - The Town of Ashburnham Wetlands Protection Bylaw
1.4.1.4 In-kind Replication - creation of a wetlands replication area with the use of plants indigenous to the project area, ideally, derived from plant stock with local and New England regional origins.
1.4.1.5 Permanent Alteration - shall include, without limitation, the following actions when undertaken in areas subject to this Bylaw:
1. Removal, excavation or dredging of soil, sand, gravel or aggregate material of any kind;
2. Changing drainage characteristics, flushing characteristics, salinity distribution, sedimentation patterns, low patterns and flood retention characteristics;
3. Drainage or other disturbance of water level or water table;
4. Dumping, discharging or filling with any material which may degrade water quality;
5. Driving of piles, erection of buildings or structures of any kind;
6. Placing of obstructions whether or not they interfere with the flow of water;
7. Destruction of plant life, including cutting or removal of trees proximate to resource areas;
8. Changing of water temperature, biochemical oxygen demand or other physical or chemical characteristics of the water.
9. Any activities, changes or work which may cause or tend to contribute to pollution of any resource area or groundwater;
10. Incremental activities which have, or may have a cumulative adverse impact on the resource areas protected by this Bylaw.
1.4.1.6 Unacceptable Acts, work, etc. – Any activity or disturbance that will have a negative impact on a resource area.
1.4.1.7 Vernal Pool Habitat: a confined basin depression which, at least in most years, holds water for a minimum of two continuous months during the spring and/or the summer, is free of adult fish populations, as well as, the area within one hundred (100) feet of the mean annual boundary of such depression, which is certified or certifiable by the Massachusetts Division of Wildlife and Fisheries Natural Heritage & Endangered Species Program vernal pool certification program.
1.5 Performance Standards
1.5.1 In performance of its duties under the Bylaw and these regulations, the Commission shall apply the following Performance Standards, without limitation, which the Bylaw seeks to protect. Those Standards not listed herein shall be found in the Wetlands Protection Act Regulations (310 CMR 10.00). The Standards of 310 CMR 10.53 through 10.60 are herein incorporated by reference.
1.5.2 The Commission or its agent shall not flag wetlands. The Commission shall only approve or disapprove a wetland delineation. It is the responsibility of the Applicant to hire a qualified Wetlands Consultant or Botanist to flag the wetland boundary.
1.5.3 Bordering any wetland, the Commission may require a zone of natural vegetation of sufficient width to assure that silt, soil, fertilizer in solutions, organic chemicals, herbicides, organic manure, oils or petroleum products which may be carried by surface runoff shall not reach that wetland, but instead shall be trapped by the natural mulch, soil and roots. This requirement would depend on slope, soil type, ground cover and the project proposed. The Commission shall encourage stabilization of upgradient areas beyond the one hundred (100) foot line.
1.5.4 Any proposed work in a Protected Resource Area and any proposed work that involves a new storm drain system or connection to an existing storm drain system that discharges to a Protected Resource Area, shall not result in an increase in the peak rate of surface runoff during either a 2-year, 10-year or 100-year storm event to areas beyond the boundaries of the property on which the activity is to be conducted, or any resource area within the site. All filings involving a new storm drain system or connection to an existing storm drain system shall provide the Commission with a detailed stormwater pollution prevention plan for during construction, as well as, for long-term maintenance of the stormwater system. This plan shall specify detailed construction methods for erosion control, identify responsible parties and shall
include a signed affidavit that all conditions of the pollution prevention plan shall be met. The discharge of any substances in to the storm drain system, other than stormwater, is strictly prohibited.
1.5.5 New proposed side slopes within 100 feet of a resource area shall have a finished grade according to the following:
1. The Commission requires a 3:1 slope unless the 2:1 slope will eliminate the proposal for wetland alteration.
2. Vegetated and mulched slopes shall be no greater than a 3:1 slope.
3. Stone rip-rapped slopes shall be no greater than a 2:1 slope. The use of jutte-matting,
landscaped slopes, or other methods of slope stabilization may be required.
1.6 Burden of Proof
1.6.1 The applicant shall have the burden of proof by clear and convincing evidence that the work proposed in an application, shall not have unacceptable significant cumulative or harmful effects upon the values protected under the Bylaw. Failure by the Applicant to provide sufficient evidence to the Commission shall be sufficient cause for the Commission to deny the application along with any work or activity proposed therein.
1.7 Waiver
1.7.1 Strict compliance with these Regulations may be waived when, in the judgment of a majority of the Ashburnham Conservation Commission, such action is in the public interest or when strict compliance would result in the following, but not limited to, severe economic, physical, legal, contextual hardship far greater in magnitude than the public interest to be served. Any request for a waiver must be submitted to the Commission in writing at a regularly scheduled meeting of the Conservation Commission and must state the public interest involved. The Commission shall act upon the request within 21 days of the date of receipt and will then notify the Applicant in writing within 7 days of said action. The Commission shall include the public interests that are protected or enhanced by issuing a waiver from these Regulations.
1.8 Emergencies
1.8.1 Depending upon their availability, the Chairman, Vice-chairman or the Agent, may make binding decisions upon the Commission in cases of emergency.
1.9 Appeals
1.9.1 Any decision by the Commission made under the jurisdiction of the Bylaw, including, but not limited to, Determinations of Applicability, Order of Conditions, Enforcement Orders, Certificates of Compliance, Partial Certificates of Compliance and Extension Permits. shall be reviewable in Superior Court in accordance with M.G.L. c. 249 sec 4 or as otherwise provided by law, but is subject to the filing of a notice of appeal which must be received by the Commission within 10 days of the issuance of the decision.
1.10 Severability and Invalidity
1.10.1 The invalidity of any section of the Rules and Regulations shall not invalidate any other section or provision nor shall it invalidate any Request for Determination, Determination of Applicability, Notice of Intent, Order of Conditions, Extension Permit, Certificate of Compliance or Enforcement Order which previously has been received or issued.
1.11 Effective Date
1.11.1The effective date of these Rules and Regulations shall be the date on which these rules and regulations are approved by a majority of the Commission after conducting a Public Hearing. These Rules and Regulations shall apply to all Requests for Determination, Determination of Applicability, Notice of Intent, Order of Conditions, Extension Permit, Certificate of Compliance or Enforcement Order, which are filed or issued after that date.
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