Town of Manchester-by-the-Sea
Wetlands Regulations
Index
1. General Provisions
1.1 Authority
1.2 Purpose
1.3 Interpretation
1.4 Revision
2. Definitions
2.1 General
2.2 Abutter
2.3 Aesthetic Views
2.4 Application
2.5 Buffer Zone
2.6 Determination
2.7 Freshwater Wetlands
2.8 Hydric Soils
2.9 Permit
2.10 Pond
2.11 Resource Area
2.12 River
2.13 Routine Stream or Brook Clearance
2.14 Stream
2.15 Vernal Pool
3. Plans and Engineering Information
3.1 General
3.2 Plan Requirements
3.3 Field Requirements
3.4 Engineering Drawings and Information
3.5 Construction Methods
3.6 Timely Submittal of Information
3.7 Environmental Impact Report
3.8 Other Information
3.9 Failure to Provide Information
4. Filing Procedures
4.1 Application
4.2 Other permits
5. Performance Standards
5.1 General
5.2 Vegetated Wetlands
5.3 Bordering Land Subject to Flooding
5.4 Buffer Zone
5.4.1 Presumptions
5.4.2 Protective Vegetative Cover
5.4.3 Exposed Soil
5.5 Coastal Banks
5.6 Isolated Land Subject to Flooding
5.7 Vernal Pool
5.8 Stormwater Management
5.9 Waiver of Regulations
6. Consolidation with Hearing Under the Wetlands Protection Act
6.1 Authority
6.2 Request for Consolidation
7. Severability
8. Effective Date
8.1 Effective Date
8.2 Transition Rule
9. Fee Schedule
9.1 Requests for Determination
9.2 Permit Applications
9.3 Amendments to Orders of Conditions
9.4 Extensions to Permits
9.5 Certificates of Compliance
9.6 Payment
9.7 Fee For Independent Consultants
10. Enforcement and Penalties
11. Security
Town of Manchester-by-the-Sea
Wetlands Regulations
for
Administering the General By-Law Article XVII
Section 1. General Provisions
1.1 Authority. These Wetlands Regulations, hereinafter referred to as the Regulations, are promulgated by the Manchester-by-the-Sea Conservation Commission, hereinafter referred to as the Commission, pursuant to authority granted in Section 8 of the Town of Manchester-by-the-Sea General Wetlands By-Law, Article XVII.
1.2 Purpose. The purpose of the Regulations is to complement and clarify the provisions of the Town of Manchester-by-the-Sea General Wetlands By-Law, Article XVII, Sections 1-12, hereinafter referred to as the Wetlands By-Law. The Regulations shall have the force of law. The Regulations are intended solely for use in administering the Wetlands By-Law, and nothing contained therein shall be construed as preempting or precluding more stringent protection of wetlands or other natural resource areas by Federal or Commonwealth law, ordinance or regulation.
1.3 Interpretation. The Regulations shall be interpreted and applied so as to be consistent with the Wetlands By-Law.
1.4 Revision. The Regulations may be revised from time to time by the Commission after public notice and hearing as required by the Wetlands By-Law.
Section 2. Definitions
2.1 General. Except as otherwise specifically provided by these Regulations and the Wetlands By-Law, capitalized terms used in the Regulations and the Wetlands By-Law have the meanings defined in the Wetlands Protections Act (M.G.L. c. 131, §40) hereinafter referred to as the Act, and in the Regulations, (310 CMR 10.00 et. seq.) issued pursuant to the Act by the Department of Environmental Protection, hereinafter referred to as DEP, as the same may be amended from time to time.
2.2 Abutter means an owner of land in any direction sharing a common boundary or corner with the site of the proposed activity, including any land located directly across a street, way, river, stream, brook, channel, pond, or diagonally across from an intersection of roads, and an owner of land within 300 feet of the property line of the proposed activity. A landowner more than 300 feet across a body of water shall not be considered an abutter.
2.3 Aesthetic Views mean those areas that provide uninterrupted visual linkage for the public, which contain wetlands and resource areas that are subject to the Commission's jurisdiction. Aesthetic views in areas subject to the Commission's jurisdiction include, but are not limited to, the following features: expansive open space, large areas of natural features, placement and sizing of both natural and manmade features. Uninterrupted visual linkage for the public is not restricted to views from public ways, but also views from areas used by the public, such as private and public conservation land, private ways intensively used by the public,
beaches, harbors, and the ocean. For example, where a vegetated buffer strip and concrete wall may have equal capacity to prevent erosion control, the Commission would give preference to the vegetated buffer strip for its additional wetlands interests, including, but not limited to, sedimentation control, pollution prevention, wildlife habitat, and aesthetics.
2.4 Application means a form prescribed by these Regulations, together with all plans or other documents provided by the person seeking a permit for an activity subject to the Wetlands By-Law.
2.5 Buffer Zone means that area of land extending one hundred (100) feet horizontally outward from the boundary of any area specified in 310 CMR 10.02(1)(a) and Section 2.1 of the Wetlands By-Law.
2.6 Determination means a written finding by the Commission, in a form prescribed by these Regulations, as to whether or not a proposed activity or an area is subject to the Wetlands By-Law.
2. 7 Freshwater Wetlands are wet meadows, marshes, swamps and bogs. Also, they
are areas where the topography is low and flat and where soils are annually saturated such that groundwater, flowing or standing surface water or ice provides a significant part of the supporting substrate for a plant community. Also, freshwater wetlands may border creeks, rivers, streams, ponds, lakes or other bodies of water or wetlands, or they may be isolated. Freshwater wetlands also include that portion of any bank, which touches any inland waters. Where isolated, freshwater wetlands shall be at least 5,000 square feet in area. Wetland indicator plants shall include but not necessarily be limited to those plant species identified in the Act. Wetland indicator plants are also those classified in the indicator categories of Facultative, Facultative+, Facultative Wetland-, Facultative Wetland,
Facultative Wetland+, or Obligate Wetland in the National List of Plant Species That Occur in Wetlands: Massachusetts (Fish & Wildlife Service, U.S. Department of the Interior, 1988). The presence of hydric soils or other indicators of wetland hydrology will also be considered when delineating wetland boundaries. The boundary of freshwater wetlands is the line within which the vegetation community is substantially characterized by wetland indicator species and within which hydric soils or other indicators of wetland hydrology are present.
a. Wetland boundary delineations shall be reviewed only between April 15
and October 1 of each year, unless the Commission grants a waiver due to low
probability of error on a particular site, or reserves the right to adjust the boundary
during the growing season.
b. Where the Commission finds that the plant community cannot be
accurately evaluated because of recent or ongoing disturbance, the Commission may require that site soils and hydrology be examined, and/or the Commission may require that the delineation be postponed until such time that the natural plant community has regenerated and grown.
c. The Commission may retain the services of a professional botanist, soil
scientist, wetland scientist or hydrologist, at the applicant’s expense, to evaluate
vegetation, soils and or hydrology.
2.8 Hydric Soil means a soil which, in its undrained condition, is saturated, flooded or ponded long enough during the growing season to develop anaerobic conditions which favor the growth and regeneration of hydrophytic (wetland) vegetation. The following types of soils are hydric:
All organic soils (Histosols) except Folists;
Mineral soils in Aquic suborders, Aquic subgroups, Albolls suborder, Salorthids great group, or Pell great groups of Vertisols which are:
somewhat poorly drained (as the soil type may be defined from time to time by the U.S. Soil Conservation Service) and have a water table less than 15 cm from the surface at some time during the growing season; or
poorly drained or very poorly drained (as those types may be defined from time to time by the U.S. Soil Conservation Service) and have either:
a water table at less than 30 cm from the surface at some time during the growing season if permeability is equal to or greater than 15 cm/hour in all layers within 60 cm; or
a water table at less than 45 cm from the surface at some time during the growing season if permeability is less than 15 cm/hour in any layer within 60 cm;
Mineral soils which are ponded during any part of the growing season; or
Mineral soils which are frequently flooded for long durations (more than 7 days) or flooded for a very long duration (more than one month) during the growing season.
Specific identification of hydric soil conditions will be based on the most current version of Field Indicators for Identifying Hydric Soils in New England issued by the New England Hydric Soils Technical Committee (NEHSTC).
2.9 Permit means the document, in a form prescribed by these Regulations that authorizes work or activity subject to the jurisdiction of the Wetlands By-Law. The Permit includes any findings of fact and conclusions of law, which the Commission may make, and any conditions imposed by the Commission to preserve the values protected by the Wetlands By-Law.
2.10 Pond is defined in 310 CMR 10.04 with the modification that it shall include all bodies of water with a surface area observed or recorded within the last ten years of at least 5,000 square feet. Ponds shall contain standing water except for periods of extended drought.
2.11 Resource Area means any area defined as such in 310 CMR 10.00 et. seq. and as named in Section 2.1 of the Wetlands Bylaw, but does not include the Buffer Zone.
2.12 River means any naturally flowing body of water that flows throughout the year and empties into any ocean, lake, pond, or other river and as further defined in 310 CMR 10.58(2).
2.13 Routine Stream or Brook Clearance means the removal of accumulated debris to restore the natural water flowage, which removal does not change width, depth, or direction of flow as it existed prior to accumulation of the debris, provided that the work does not impair surface water or groundwater quality. Routine stream or brook clearance cannot take place without prior permission from the Commission and a site visit from the Conservation Administrator. All work must adhere to the “town brook clearing guidelines” approved and issued by the Commission on October 14, 1999, as they may be amended from time to time. All brook and stream clearing that will not be done by hand will require a filing with the Commission.
2.14 Stream means a body of running water, including a brook or creek, which moves in a definite channel in the ground due to a hydraulic gradient, and which flows within, into or out of a Resource Area. A portion of a stream may flow through a culvert or beneath a bridge. Such a body of running water which does not flow throughout the year (i.e., which is intermittent) is a stream. A body of water that flows throughout the year is considered a river. See the definition of River.
2.15 Vernal Pool means an intermittent pond which meets the criteria, either as certified, or as determined by the Commission within its discretion and in accordance with criteria set forth in "Guidelines for Certification of Vernal Pool Habitat" issued by the Massachusetts Division of Fisheries and Wildlife. Prior Certification is not required. Vernal pools function as the only breeding habitat for a variety of amphibian species such as wood frog (Rana sylvatica) and various salamander species and provide other important wildlife habitat functions for amphibians and other wildlife. Vernal pool resource area includes the area within 100 feet of the mean annual boundaries of the pool. The buffer zone to a vernal pool
resource area shall mean that area extending outward 100 feet horizontally from the mean annual boundary of the resource area (200 feet from the mean annual boundary of the pool).
Section 3. Plans and Engineering Information
3.1 General. Plans shall describe the proposed activity and its effect on the environment. All plans, drawing, sketches, and calculations shall be dated and signed by the person responsible for their preparation. Plans and drawings involving the practice of surveying or engineering shall be stamped and signed by a professional surveyor or engineer registered in the Commonwealth of Massachusetts, if required by the Commission. Plans shall be consistent with those submitted to the Board of Appeals, Planning Board and/or Board of Health. Plan Requirements. The purpose of plans is to identify the site and nearby
features. Plans shall include, but not be limited to, the following features:
An 8.5 x 11 cut-out of a U.S. Geological Survey Quadrangle Sheet showing the location of the proposed activity;
Names of all nearby roads and streets, and the site street address along with the Assessor Map Number and Parcel Number;
Outline of the watershed areas related to the proposed activity, including floodplains;
Water quality classifications (General Laws Chapter 21, the Clean Waters Act);
Property lines, including distances, bearings, markers at the perimeter, and the names of owners.
3.2 Field Requirements. The purpose of field requirements is to allow the Commission to properly and accurately view existing and proposed site conditions in order to assess compliance with the Wetlands By-Law. Project sites should include, but not be limited to, the following features:
Resource Areas delineated by a professional with knowledge of wetland vegetation and soils;
Location of all Resource Areas marked with a numbered sequence of flags in the field, corresponding to information provided on project plans submitted with a permit application;
Corners of all proposed buildings or structures clearly marked by stakes corresponding to information provided on project plans submitted with a permit application.
3.3 Engineering Drawings and Information. The purpose of engineering drawings and information is to describe the proposed activity and its impact. Engineering drawings may be required by the Commission to include, but not be limited to, the following features:
A title designating the project location, the name of the person preparing the drawings, the date prepared, including latest revision dates, and an identifying reference number;
Present and proposed contours of the entire site and affected adjacent areas. Generally, 2-foot contours should be shown. Contours shall be keyed to U.S. Geological Survey Datum of 1929;
Location, dimensions and area of all present and proposed structures and paved areas;
Location of any underground utilities;
Present and proposed location of all rights of way and easements;
Location of proposed and existing water retention areas and all existing and proposed storm drainage pipes, 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;
Sewage disposal systems, specifically showing the location and type to be used in compliance with state and local environmental codes;
Locations and elevations of cellars or floors and bottoms of septic systems and leaching fields, and any alternate sites;
Delineation of all Resource Areas and the Buffer Zone, whether continuous or intermittent, natural or man-made;
Flood plains and flood hazard areas;
Location of areas to be removed, dredged, filled or altered;
Cross sections showing slope, bank, and bottom treatment of each watercourse to be altered (Locations of cross sections to be specified.);
Typical cross-sections, elevations and stability calculations for water retaining weirs, dams and dikes, and of earth retaining structures alongside open waterways and wetlands;
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.);
Locations, logs, and water table information from all test borings, test pits, percolations tests, and other subsurface explorations (Direction of flow of groundwater across the site shall be indicated to the extent possible from available information.);
The maximum ground water elevation at the period of the year when the ground water table is at its highest elevation, including calendar dates of measurements, samplings, and percolation tests, if any;
All calculations necessary to show the effect of the proposed activity on soil and water;
The location of any spoil areas;
Erosion and sedimentation prevention plans during and after construction;
Based on the drainage areas and physical features shown on the plans, calculation of runoff volumes, peak discharge rates, velocities and times of concentration for 24 hour duration storms of return periods of 2, 10, and 100 years (Calculations must show the existing condition, the condition at completion of the proposed work, and the condition upon further development planned or reasonably anticipated for the site; the 100 year, 24 hour storm shall be evaluated to show that there will be no increase in offsite flooding impacts.).
Layout and site plans drawn at commonly acceptable scales, preferably 20' to the inch, with detail and profile drawings drawn to the appropriate scales;
3.4 Construction Methods. The applicant shall include a description of construction methods and, in particular, measures to minimize erosion, pollution, and damage to the biological environment both within and beyond the actual construction area, including the following:
Methods of erosion control during construction, including sedimentation ponds and slope protection;
Methods for protecting stripped and cleared areas of the site during extended shutdown due to weather, economic conditions, or any other cause;
Methods of stockpiling excavated wetland spoil on the site or of transportation to offsite locations, as applicable;
Proposed sequence of construction of retaining basins, vegetation clearing and landfilling, grading or excavating;
Methods of preventing construction vehicles or equipment from transporting or depositing mud, dirt or debris on roadways as they leave the project site.
Methods of removing erosion control measures after the project site has been stabilized.
3.5 Environmental Impact Report. If an applicant is required by the Executive Office of Environmental Affairs to prepare an Environmental Impact Report (EIR) or if the applicant is required by the Manchester-by-the-Sea Planning Board to prepare an Environmental and Community Impact Analysis (ECIA) and if the EIR or ECIA scope includes impacts on any Resource Area, the Commission shall consider the EIR or ECIA or both in any decision pursuant to the Wetlands By-Law. The Commission shall have authority to continue its hearing under the By-Law until the final EIR is certified by the Secretary of Environmental Affairs as complying with the
Massachusetts Environmental Policy Act.
3.6 Timely Submittal of Information: In order to provide sufficient review time the Commission may continue a public hearing or meeting if new information is submitted by the applicant, or applicant's agent, less than 7 business days before the scheduled public hearing or meeting
3.7 Other Information. The requirements stated above are not definitive or exclusive. Some may be omitted in a particular case, and an applicant may be required to submit other additional information deemed necessary to determine compliance with the Wetlands By-Law. The Commission encourages applicants and their consultants to schedule a pre-filing conference to ascertain information requirements for specific projects.
3.8 Failure to Provide Information. Pursuant to Section 5 of the Wetlands By-Law, failure to provide information required by these regulations or other information requested by the Commission to produce adequate evidence to satisfy the applicant's burden of proof shall constitute sufficient cause for a denial of a Permit.
Section 4. Filing Procedures
4.1 Application. An application shall not be deemed filed pursuant to the Wetlands By-Law unless it is completed in the appropriate form, includes plans and other information as required by these Regulations, and is accompanied by the filing fee.
4.2 Other permits. All other permits, variances and approvals required by any other applicable statute, by-law or regulation must be obtained prior to or concurrently with the filing of an application under the Wetlands By-Law only if those permits, variances and approvals are obtainable at the time the application is filed.
Section 5. Performance Standards
5.1 General. Except as otherwise specifically provided by these Regulations, the Commission shall apply the Performance Standards contained in the DEP Regulations, currently codified at 310 CMR 10.00 et. seq., as they may be amended from time to time. Presumptions of significance contained in the DEP Regulations shall extend to the values protected by the Wetlands By-Law.
5.2 Vegetated Wetlands. Except as provided in this subsection, the Performance Standards contained in the DEP Regulations, currently codified at 310 CMR 10.55, shall apply. Prior to permitting work which shall alter a Bordering Vegetated Wetland or Freshwater Wetland, the Commission shall require the applicant to demonstrate by a preponderance of credible evidence that there is no feasible alternative to the work proposed which affords practical use of the land and which would avoid or reduce such alteration. Replacement of Bordering Vegetated Wetlands or Freshwater Wetlands with surface area equal to that altered is a minimum
standard. In its discretion, the Commission may require replacement with an area greater than that altered. In exercising this discretion, the Commission shall consider the nature and significance of the Resource Area, the topography and other characteristics of the site, the difficulty of replacement, the area of land available, and other such factors as the Commission may determine to be relevant in a particular case. Replacement may not be required, in the Commission’s discretion, when the alteration is temporary (i.e. during pipeline construction) and restoration of the disturbed area can be achieved.
5.3 Bordering Land Subject to Flooding. Except as provided in this subsection, the Performance Standards contained in the DEP Regulations, currently codified at 310 CMR 10.57, shall apply. Creation of compensatory flood storage equal in volume to that displaced by the proposed project is a minimum standard. In its discretion, the Commission may require compensatory flood storage of greater volume. In exercising this discretion, the Commission shall consider the extent of flooding and the resulting flood hazard, the topography of the site, the area of land available, and such other factors as the Commission may determine to be relevant in a
particular case.
5.4 Buffer Zone. Buffer Zones are essential for protection of Resource Areas. A Buffer Zone adjacent to a Resource Area reduces adverse impacts to the wetland functions and values from nearby activities. A naturally vegetated Buffer Zone functions to protect the wetland values included in the Wetlands By-Law. The elements of a Buffer Zone include setback distance, amount and type of vegetation, soil composition and slope of the land. Interaction of all of these elements determines the effectiveness of the Buffer Zone.
5.4.1 Presumptions. Based on experience to date with projects within one hundred (100) feet of wetlands, the Commission shall presume that work in the categories below, within the tabulated distances from a Resource Area, will result in alteration of the Resource Area. This presumption is rebuttable and may be overcome upon a showing by a preponderance of credible evidence that the nature of the proposed work, special design measures, construction controls or site conditions will prevent alterations of the Resource Area. For the purposes of the table below, “disturb” means filling, excavation, grading, operation of motorized construction
equipment and storage or stockpiling of earth or construction materials, alteration of vegetation or the stabling, paddocking, or pasturing of large animals including but not limited to horses, donkeys, cattle, sheep, goats and llamas (this group hereafter termed “large animals”), and "building" means a structure requiring a building permit.
Type of Project No Disturb Zone (ft) No Building Zone (ft)
Existing Residential Lot 30 50
New Residential Lot 50 50
Subdivision lot
(with lot preparation done 50 75
in conjunction with
road construction)
Commercial/Industrial 50 75
Driveways/Utilities
Other roads/Drainage 25 (except for permitted crossings)
Large Animal Paddocks 30 ft with a berm and swale to prevent
contaminated run-off
Notwithstanding the foregoing, the following activities shall not be subject to this Section 5.4.1:
Mowing lawns (planting new lawn areas is subject to Section 5.4.1);
Cutting, pruning, maintaining and replacing in kind landscaped vegetation existing as of the effective date of these Regulations; however, cutting, pruning or altering any naturally occurring vegetation is subject to Section 5.4.1;
Activities that are temporary in nature and have a negligible impact and which upon completion, leave the buffer zone in its immediately pre-existing condition, examples of which are seasonal storage of boats where there is no impact to natural vegetation, seasonal firewood piles, temporary erection of tents and placement of lawn furniture;
The maintenance, repair or replacement, but not enlargement, of any structure for which a building permit or certificate of occupancy has been issued as of the effective date of these Regulations, however, all other Sections of these Regulations do apply.
5.4.2 Protective Vegetative Cover. Protective vegetative cover shall be maintained on all embankments facing lakes, ponds, marshes, streams and marine waters. In particular:
no removal of low brush within 30' of a Resource Area; however, brush may be topped to a height of two feet; and
no clear-cutting of standing trees and surface vegetation, only selective thinning of standing trees with under 4 inch dbh (diameter at breast height), consistent with vista pruning as defined in 310 CMR 10.04.
5.4.3 Exposed Soil. Any area proposed for removal of vegetation where soil will be exposed for more than 10 days shall be mulched or otherwise treated to prevent erosion.
5.5 Coastal Banks. Except as provided in this subsection, the Performance Standards contained in the DEP Regulations, currently codified in 310 CMR 10.30, shall apply. New or the expansion of existing, coastal engineering structures such as, but not limited to, bulkheads, revetments, seawalls, or groins will not be permitted without a clear showing that there is no other method of protecting a building or property other than the proposed coastal engineering structure. Preferred stabilization methods for coastal banks include, but are not limited to, protective plantings and other non-structural stabilization techniques.
5.6 Isolated Land Subject to Flooding. Except as provided in this subsection, the Performance Standards contained in the DEP Regulations, currently codified at 310 CMR 10.57, shall apply. Prior to permitting any work that will alter Isolated Land Subject to Flooding, the Commission shall require the applicant to demonstrate by a preponderance of credible evidence that there is no feasible alternative to the work proposed affording equivalent use of the land and which would avoid or reduce alteration.
5.7 Vernal Pool. No project or activity shall have an adverse effect on a Vernal Pool Resource Area by altering its topography, soil structure, plant community composition, hydrologic regime and/or water quality. It is presumed, unless compelling evidence to the contrary is provided, that the following activities within the Vernal Pool Resource Area would fail to meet the aforementioned Performance Standards:
Disturbing the soil, humus layer and/or leaf litter at any time of the year;
The placement of sediments, brush clippings or other fill;
The changing of drainage patterns;
Alterations to vegetation of the canopy and/or understory (shrub layer).
The burden of proof shall be on the applicant to demonstrate that any proposed project/activity within the Vernal Pool Resource Area shall meet the Performance Standards as described above.
5.8 Stormwater Management. The provisions of the DEP Stormwater Management Policy (March 1997) shall apply to all projects subject to the Wetlands By-Law. The DEP WPA Appendix C – Stormwater Management Form shall be completed and submitted with all applications to the Commission under the Wetlands By-Law. The Stormwater Management Standards shall apply to industrial, commercial, institutional, residential, and roadway projects, including site preparation, construction, redevelopment, and on-going operations.
5.9 Waiver of Regulations. Notwithstanding any other provision of these Regulations, the Commission may in its discretion, waive strict compliance with these Regulations when, in the judgment of the Commission, all of the following are met: 1) there are no reasonable conditions or alternatives to allow the proposed activity to proceed in compliance with these Regulations; and 2) mitigating measures are proposed that will allow the proposed activity to be conditioned so as to contribute to the protection of the wetland values protected by the Wetlands By-Law; and 3) such waiver would either serve a substantial public interest, or strict
compliance with these Regulations would so restrict the use of property so as to constitute a taking of the property without compensation.
Section 6. Consolidation with Hearing Under the Wetlands Protection Act
6.1 Authority. Pursuant to Section 4.3 of the Wetlands By-Law, the Commission may in its discretion consolidate the hearing under the Wetlands By-Law with the hearing under the Act. When the Commission consolidates the hearing under the Wetlands By-Law with the hearing under the Act, the hearings shall be conducted concurrently, provided that the Commission may later sever the hearings if necessary to comply with the Wetlands By-Law or the Act.
6.2 Request for Consolidation. Any applicant desiring to consolidate the hearing under the Wetlands By-Law with the hearing under the Act may so move at the initial public hearing in the application. The Commission shall grant or deny the motion at the hearing. The Commission may in its discretion consolidate on its own motion.
Section 7. Severability
The invalidity of any section or provision of these Regulations shall not invalidate any other section or provision, nor shall it invalidate any Permit or Determination previously issued.
Section 8. Effective Date
8.1 Effective Date. These Regulations shall take effect on April 4, 1988 and modification of the Regulations shall take effect on February 12, 2002. Promulgation of these Regulations shall not affect any action by the Commission prior to their effective date.
8.2 Transition Rule. The Commission may in its discretion determine that its disposition of any Request for Determination or Notice of Intent pursuant to the Act prior to the effective date of the Regulations but after May 5, 1987 constitutes its Determination or Permit disposition under the Wetlands By-Law and Regulations. The Commission shall make such a determination if requested by the applicant and may also do so on its own motion. In deciding whether to do so in a particular case, the Commission shall consider whether its disposition under the Act was sufficient to preserve the interests protected by the Wetlands By-Law and Regulations.
Section 9. Fee Schedule
9.1 Requests for Determination.
To determine if the Wetlands By-Law applies to land or proposed work - $25
To request a formal review of a wetland delineation - $50 plus $10/acre above 5 acres of land or project area subject to the Determination.
9.2 Permit Applications. A fixed fee of $50 when work is proposed at least 75 feet from a Resource Area. Other projects are subject to the following fee schedule:
Minor project (house addition, tennis court, swimming pool, utility work, septic system upgrade which meets Title V requirements for setbacks to wetlands, repairs to existing piers, docks, and coastal engineering structures) - $110;
Single family home (including accessory structures, driveways and utilities) - $500;
Multiple dwelling structure (including accessory structures, driveways and utilities) - $1,050;
Subdivisions (roads, utilities and stormwater management only) -$1,050
Commercial and industrial projects - $1,050
New piers, docks, and coastal engineering structures - $4 per linear foot, not less than 100 or more than $2,000.
New septics, or repair of existing system which does not meet Title V requirements for setbacks to wetlands - $100
Resource area enhancement [pursuant to 310 CMR 10.53(4)] - $50
Dredging activities (not associated with pier or dock construction) - $1,450
Any other activity not included in categories above - $110
An additional $100 fee will be charged if the project requires wetland replication as a result of direct wetland impacts, or requires filling of Land Subject to Flooding.
All permit applications filed after the work has commenced will be charged double the appropriate filing fee.
Permit applications are also subject to a $20 advertising fee and a variable fee to be set by the Commission. The variable fee shall be an amount to be incurred by the Commission to retain independent engineering, scientific or other advice deemed necessary by the Commission to review the application, grant or deny the permit and impose appropriate conditions.
9.3 Amendments to Orders of Conditions (that require a hearing). $25
9.4 Extensions to Permits. $50
9.5 Certificates of Compliance. $25
9.6 Payment. The fixed fee shall be payable upon filing of the application. Failure to pay the fixed fee when due shall cause the application to be deemed incomplete. The advertising fee shall be payable upon commencement of the hearing. Failure to pay the advertising fee when due shall constitute sufficient cause to continue the hearing.
9.7. FEE FOR INDEPENDENT CONSULTANTS:
As provided by MGL Ch. 44 § 53G, the Manchester Conservation Commission may impose reasonable fees, paid by the applicant, for the employment of independent consultants, engaged by the Conservation Commission, for specific expert services deemed necessary by the Commission in order to reach final decisions on applications submitted to the Conservation Commission pursuant to the requirements of the Wetlands Protection Act, MGL Ch. 131 § 40, the Manchester Wetlands General Bylaw, Ch. 62, as they may be amended or enacted from time to time.
Funds received by the Conservation Commission pursuant to these rules shall be
deposited with the Town of Manchester treasurer, who shall establish a special account for this purpose. Expenditures from this special account may be made at the direction of the Conservation Commission without further appropriation as provided in MGL Ch. 44 §53G. Expenditures from this account shall be made only in connection with the review of a specific project or projects for which a consultant fee has been collected from the applicant.
Specific consultant services may include, but are not limited to, resource area survey and delineation, analysis of resource area values, hydrogeologic and drainage analysis, impacts on resource areas, municipal conservation lands, wildlife studies, and environmental or land use law and recommendations for mitigation measures to offset potential impacts to resource areas. The consultant shall be chosen by, and report only to the Commission and/or its Administrator.
The independent consultant selected shall possess the minimum required qualifications, which consist of either an educational degree or three or more years of practice in the field at issue or a related field.
The Conservation Commission shall give written notice to the applicant of the selection of an independent consultant. Such notice shall state the identity of the consultant, the amount of the fee to be charged to the applicant, and a request for payment of said fee in its entirety. Such notice shall be deemed to have been given on the date it is mailed or delivered. No such costs or expenses shall be incurred by the applicant if the application or request is withdrawn within five days of the date notice is given. The fee must be received in its entirety prior to the initiation of consulting services. The Commission may request additional consultant fees if, because of unforeseen circumstances, necessary review requires a larger expenditure than originally anticipated or new information requires
additional consultant services. Failure by the applicant to pay the consultant fee specified by the Commission within ten (10) business days of the request for payment shall be cause for the Commission to determine that the application is administratively incomplete (except in the case of an appeal). The Commission shall state such in a letter to the applicant, copied to the DEP. No additional review or action shall be taken on the permit/order request until the applicant has paid the requested fee. Additionally, under the Wetlands General Bylaw, failure by the applicant to pay the consultant fee specified by the Commission within ten (10) business days of the request for payment shall be cause for the Commission to deny the permit application.
Section 10. Enforcement and Penalties
Any person who violates any provision of the Wetlands By-Law or a permit issued pursuant thereto shall be punished by a fine of not more than $300. Each day or portion thereof during which a violation continues shall constitute a separate offense, and each provision of the Wetlands By-Law or Permit violated shall constitute a separate offense. By administrative order, the Commission may: a) require any person or entity to remediate any damage or harm caused by any violation of the Wetlands By-Law or any applicable permit (such remediation shall be in the manner and to the extent specified by the Commission); and/or b) permit all or a portion of any amount levied as a fine hereunder to be paid, in lieu of all or a portion of such fine, to a non-profit organization approved by the Commission (such payment
shall only be permitted pursuant to the request of the aggrieved party). Any organization selected for such payment must be engaged in the protection or enhancement of the wetland values in the Town of Manchester-by-the-Sea. Each of the foregoing remedies shall be cumulative and not exclusive, and in addition to the remedies set forth under Section 11 of the Wetlands By-Law.
Section 11. Security.
The Commission may require as a permit condition that the performance and observance of the Order of Conditions and Permit be secured by one or both of the following methods:
By a bond or deposit of money or negotiable securities in an amount and form determined by the Commission to be sufficient to secure the completion of all conservation measures specified in the Order of Conditions and Permit; and the Commission may require that the applicant specify the time within which such construction shall be completed. The penal sum of any such bond shall bear a direct and reasonable relationship to the expected costs, including the effects of inflation, necessary to complete the work. Such amounts shall be from time to time reduced as is, in the determination of the Commission, necessary to reflect the actual expected cost of the work remaining to be completed. An amount equal to ten percent (10%) of the original bond amount shall be retained
and not released by the Commission until the Commission has issued a Certificate of Compliance for the work covered by the bond.
By a conservation restriction, easement or other covenant, executed and duly recorded by the owner of record, running with the land whereby such conservation measures as are stated in the Order of Conditions and Permit shall be provided before any lot may be built upon or conveyed. A deed of any part of the subject property in violation hereof shall be voidable by the grantee prior to the release of the covenant, but not later than three years from the date of such deed.
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