FWR 10.01
WETLANDS REGULATIONS
FWR 10.01
FWR 10.00 FALMOUTH CONSERVATION COMMISSION
Falmouth Wetland Regulations
[7-15-1998, effective 8-15-1998]
Part I
Procedures and Regulations for all Wetlands
FWR 10.01
Introduction and Purpose
(1) Introduction. The Falmouth Wetland Regulations, FWR 10.00, is promulgated by the
Falmouth Conservation Commission pursuant to the authority granted to them under the
Falmouth Wetlands Bylaw, Chapter 235 of the Code of Falmouth. The FWR 10.00 shall
complement Chapter 235 of the Code of Falmouth, and shall have the force of law upon
their effective date.
FWR 10.01 through 10.15 provide definitions and procedures. FWR 10.01 through 10.19
pertains to both inland and coastal areas subject to protection under Chapter 235 of the Code of
Falmouth. FWR 10.16 through 10.99 provide standards for work within those areas.
FWR 10.21 through 10.40 pertains only to coastal Resource areas and FWR 10.51 through
10.88 pertains only to resource inland areas. A project may be subject to regulation under
Chapter 235 of the Code of Falmouth in which case Compliance with all applicable regulations
is required.
(2) Purpose. Chapter 235 of the Code of Falmouth sets forth a public review and decisionmaking process by which activities affecting Areas subject to protection under Chapter
235 of the Code of Falmouth are to be regulated in order to contribute to the following
Resource area values:
- Protection of public and private water supply
- Groundwater
- Flood control
- Erosion and sedimentation control
- Storm damage prevention
- Water pollution control
- Fisheries
- Shellfish
- Wildlife habitat
- Agriculture
- Aesthetics
- Recreation
- Aquaculture
In addition to the Resource area values above, in the Black Beach/Great Sippewissett Marsh
District of Critical Planning Concern, the following Resource area values also apply:
- Prevention of flood damage by limiting of development in flood hazard areas;
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- Prevention of damage to structures and natural resources as a result of Erosion;
- Improvement of water quality;
- Protection and enhancement of existing vegetative cover in order to maintain water
quality and Wildlife habitat;
- Protection of Wildlife, waterfowl, and plant habitat and the maintenance of existing
populations and species diversity;
- Prevention of loss or degradation of Critical Wildlife and plant habitat;
- Prevention of new stormwater runoff discharges and the improvement of existing
stormwater runoff discharges;
- Protection of coastal ecosystems which support the continued viability of
Harvestable shellfish and finfish habitat;
- Public access to water and land;
- Improvement of Groundwater recharge; and
- The minimization of the impact of new development, reconstruction and/or
expansion on the Resource area values listed above.
The purpose of FWR 10.00 is to define and clarify that process by establishing standard
definitions and uniform procedures by which the Commission may carry out its responsibilities
under Chapter 235 of the Code of Falmouth.
FWR 10.00 is intended solely for use in administering Chapter 235 of the Code of Falmouth;
nothing contained herein should be construed as preempting or precluding more stringent
protection of wetlands or other natural Resource areas by other bylaws, ordinance or
regulations.
FWR 10.02
Area of Jurisdiction (Resource Areas)
(1) Areas Subject to Protection Under Charter 235 of the Code of Falmouth. The following
areas are subject to protection under Chapter 235 of the Code of Falmouth:
(a) Any:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
Bank,
Freshwater wetland,
Coastal wetland,
Beach,
Dune,
Flat,
Marsh,
Swamp,
Wet meadow,
Bog, or
Vernal pool;
(b) Any:
1.
Reservoir,
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2.
3.
4.
5.
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Creek,
Estuary,
Stream,
Pond, or
Lake;
(c) The Ocean;
(d) Land under water bodies;
(e) Land subject to tidal action;
(f)
Land subject to flooding or inundation by Groundwater or surface water;
(g) Land subject to coastal storm flowage;
(h) Land subject to flooding;
(i)
Land within 100 feet of the areas listed in FWR 10.02(1)(a) through (h)
(j)
Lands and Waters within the Black Beach/Great Sippewissett Marsh District of
Critical Planning Concern, and
(k) Lands and Waters within the Waquoit Bay Area of Critical Environmental Concern.
(2) Activities subject to regulation under the Bylaw
(a) Activities within Resource areas: any activity proposed or undertaken within an area
specified in FWR 10.02(1) which, in the judgment of the Commission, will Remove,
Fill, dredge, build upon, degrade, or otherwise Alter an Area subject to protection
under the Bylaw is subject to regulation under the Bylaw and requires the filing of a
Permit application. If the Applicant is in doubt as to whether a Permit application
shall be required by the Commission, a request for a Determination of applicability
should be filed (FWR 10.05(4)(a)).
(b) Activities Outside the Areas Subject to Protection Under Chapter 235 of the Code of
Falmouth. Any activity proposed or undertaken outside the areas specified in
FWR 10.02(1) is not subject to regulation under Chapter 235 of the Code of
Falmouth, and does not require the filing of a Permit application unless and until that
activity actually Alters an Area subject to protection under Chapter 235 of the Code
of Falmouth referenced in FWR 10.02(1)(a) through (k).
In the event that the Commission determines that such activity has in fact Altered an Area
subject to protection under Chapter 235 of the Code of Falmouth referenced in
FWR 10.02(1)(a) through (k), it shall impose such Conditions on the activity or any
portion thereof as it deems necessary to contribute to the protection of the Resource area
values identified in Chapter 235 of the Code of Falmouth.
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(3) Notwithstanding the provisions of FWR 10.02(1) and (2), any Freshwater wetland, Bank,
Land under water bodies, Land subject to flooding created for the purpose of stormwater
management pursuant to FWR 10.16(3), shall not require the filing of a Permit application
or a Request for Determination of applicability to maintain the stormwater management
system, provided that the work is limited to the maintenance of the stormwater
management system and conforms to a permit issued after August 15, 1998, and that the
area is not Altered for other purposes.
FWR 10.03
General Provisions
(1) Burden of Proof.
Any Person who files a Permit application to perform any work within an Area subject to
protection under Chapter 235 of the Code of Falmouth has the burden of demonstrating to the
Commission:
(a) That the area does not play a role in the protection of any of the Resource area values
identified in Chapter 235 of the Code of Falmouth: or
(b) That the proposed work will contribute to the protection of the Resource area values
identified in Chapter 235 of the Code of Falmouth by complying with the General
performance standards established by FWR 10.00 for that area.
(2) Burden of Production. The burden of production means having to produce at least some
credible evidence from a competent source in support of the position taken.
(3) Subsurface Disposal of Sanitary Sewage (Title 5)
(a) Introduction. The State Environmental Code (310 CMR 15.00 et seq.), administered
locally by the Falmouth Board of Health, is a minimal public health regulation that
may be supplemented at the local level. This code was developed to protect public
health against bacteria-caused disease; it was not designed to protect public health
from viral contamination nor was it designed to protect environmental quality from
septic-derived nutrient and toxic contamination. The use of septic systems is likely to
have a Significant or cumulative effect on the protection of public and private water
supply, protection of Groundwater, Water pollution control, shellfish, and fisheries.
(b) Presumptions concerning Septic Systems.
1.
A septic system is presumed to protect the Resource area values protected by
the Bylaw when it is sited according to the provisions of FWR 10.03(3)(c), and
otherwise meets the provisions of Title 5 and the Board of Health regulations;
2.
Any proposed septic system or repair to an existing septic system that is not in
Compliance with the setback requirements of FWR 10.03(3)(c) shall be
presumed to have a Significant or cumulative Adverse effect on the resource
values specified in FWR 10.03(3)(a); and
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The presumptions in FWR 10.03(3)(b)1. and 2. may be overcome by credible
evidence derived from a competent source, that the proposed septic system will
have no more Significant or cumulative effect to the Resource area values of
the Bylaw than one which would have met the setback requirement. The
Commission may require credible evidence in the form of a hydrogeologic
study, including a report on such parameters as surface and Groundwater
Conditions, Groundwater flow, Groundwater contours, analysis for total and
fecal coliforms, nitrate, total nitrogen, ammonia nitrogen, total phosphate and
any other applicable chemical or biological indicators, as required by the
Commission to determine its effect on the Resource area values of the Bylaw.
When the Resource area setback requirement in FWR 10.03(3)(c)1. are not met
solely due to the location of the system components relative to a Coastal Bank,
the scope of the hydrologic study shall be limited to nitrogen loading of
Groundwater and its effect on public and private water supplies and nitrogen
sensitive embayments, as well as adverse phosphorous loading of freshwater
systems.
(c) Septic System Location. A septic system is considered to be properly sited only if all
of the following Conditions are met:
1.
None of the septic system components is located within a Resource area as
defined in FWR 10.02(1)(a) through (e);
2.
The leaching facility of the disposal system is set back at least 100 feet
horizontally from the Boundary of said Resource areas; and
3.
The system components are not located in a beach, Dune, or V-zone portion of
Land subject to coastal storm flowage.
(d) Septic System Upgrades.
1.
The one-hundred-foot setback requirement shall not be required for the
renovation or routine replacement of septic systems constructed prior to the
date of promulgation of these regulations (except as provided in
FWR 10.03(3)(d)2.) provided that no alternative location is available on the lot
or other parcel under the ownership or control of the owner of the system
proposed for upgrade, and, where applicable, provided that variance of
property line and/or street layout setbacks have been applied for from the
Falmouth Board of Health.
2.
The setback requirement from the wetland Resource areas listed in
FWR 10.02(1)(a) through (e) shall be required for any enlargement of a system
which accompanies the enlargement of an existing building or expanded scope
of use.
(e) If a proposed septic system requires a variance from the requirements of 310 CMR
15.00 and/or the Board of Health regulations, the Applicant must first apply for a
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variance from the Board of Health prior to submitting a Permit application to the
Commission.
(f)
Notwithstanding the provisions of FWR 10.03(3)(b), a proposal for a septic system
located in an Area subject to protection under the Bylaw, but in excess of 200 feet
from the Resource areas specified in FWR 10.02(a)2. through 4., 6 through 11., and
10.02(b) through (e) is exempt from the hydrogeologic study requirement.
(4) Work performed for Normal Maintenance of Land Actively in Agricultural Use Where the
Bylaw requires written notice to the Commission 10 days prior to the commencement of
work performed for the normal maintenance of land actively in agricultural use, such
notice may be provided on Form AG1 found in FWR 10.99.
(5) Where any section of FWR 10.00 provides that a proposed project "may be permitted" in
certain circumstances, no such project shall be undertaken until all of the usual procedures
required by Chapter 235 of the Code of Falmouth and FWR 10.00 have been followed and
a permit has been issued for the work. The Commission shall impose such Conditions on
such projects as may be necessary to contribute to the protection of the Resource area
values of Chapter 235 of the Code of Falmouth.
FWR 10.04
DEFINITIONS
ACEC means an Area of Critical Environmental Concern established pursuant to MGL c. 21A.
Adverse effect means a greater than negligible change in the Resource area or one of its
characteristics or factors that diminishes the value of the Resource area to one or more of the
specific Resource area values of Chapter 235 of the Town of Falmouth, as determined by the
Commission. "Negligible" means small enough to be disregarded.
Aesthetics means the relevant qualities to be protected under the Falmouth Wetlands Bylaw
which are due to those natural and natively scenic impressions of our shores, Ponds, Lakes,
Streams, rivers, and the lands Bordering them.
Agriculture. For the purposes of FWR 10.04 the following words and phrases have the
following meanings:
(a) Land actively in agricultural use means land presently and primarily used in
producing or raising one or more of the following agricultural commodities for
commercial purposes:
1.
Animals, including but not limited to livestock, poultry, and bees;
2.
Fruits, vegetables, berries, nuts, and other foods for human consumption;
1
Editor’s Note: Form AG is on file in the Conservation Administrator's office and may be examined there during regular
office hours.
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3.
Feed, seed, forage, tobacco, flowers, sod, nursery or greenhouse products, and
ornamental plants or shrubs; and
4.
Forest products under a planned program to improve the quantity and quality of
a continuous crop.
Additionally, land actively in agricultural use means land presently and primarily used in a
manner related to, and customarily and necessarily used in, producing or raising such
commodities, including but not limited to: existing access roads and livestock crossings;
windbreaks; hedgerows; bee yards; sand pits; fence lines; water management projects such
as reservoirs, farm Ponds, irrigation systems, field ditches, cross ditches, canals/channels,
grass waterways, dikes, subsurface drainage systems, and watering facilities; agricultural
composting sites; agricultural storage and work areas; and land under farm structures.
Land actively in agricultural shall have produced a commercial crop, and have been
subject to active agricultural practices for three of the five immediately preceding years.
The Commission may require appropriate documentation to demonstrate active
agricultural use.
(b) Normal maintenance of land actively in agricultural use, which in all cases does not
include placing substantial amounts of Fill in Land subject to flooding or Freshwater
wetland, or filling or dredging a salt Marsh, means the following activities, without
enlargement as to geographical extent, that are occurring on land in agricultural use,
when directly related to production or raising of the agricultural commodities
referenced in FWR 10.04 (Agriculture)(a), when undertaken in such a manner as to
prevent Erosion and siltation of adjacent water bodies and wetlands, and when
conducted in accordance with federal and state laws:
1.
All crop management practices, not to include drainage in a Freshwater
wetland, customarily employed to enhance existing growing Conditions,
including but not limited to: tillage, trellising, pruning, mulching, shading, and
irrigating; and all customary harvesting practices such as digging, picking,
combining, threshing, windrowing, baling, curing, and drying;
2.
The use of fertilizers, manures, compost materials, and other soil amendments;
pesticides and herbicides; and other such materials;
3.
The repair or replacement of existing access roads and livestock crossings;
4.
The maintenance of existing windbreaks and hedgerows;
5.
The maintenance and repair of existing fences and the management of
temporary fence lines;
6.
The cleaning, clearing, grading, repairing, dredging, or restoring of existing
man-made water management systems such as reservoirs, farm Ponds,
irrigation systems, field ditches, cross ditches, canals/channels, grass
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waterways, dikes, subsurface drainage systems, watering facilities, and vents,
all in order to provide drainage, prevent Erosion, provide more effective use of
water, or provide for efficient use of equipment, and all for the purpose of
maintaining favorable Conditions for ongoing growing or raising of
agricultural commodities;
7.
The repair and maintenance of existing farm structures;
8.
The seeding of eroded or disturbed areas;
9.
The keeping of livestock and poultry and the management of beehives;
10.
The cultivation of cranberries, including the following practices:
11.
a.
The activities described in FWR 10.04 (Agriculture)(b)1. through 11.;
b.
The application of sand to existing Bogs and the excavation of sand from
sand pits;
c.
The repair and reconstruction of water control structures including flumes,
pumps, dikes, and piping above and below the ground;
d.
The regrading, including modification of drainage, and replanting of
existing cranberry Bogs;
e.
The repair and replacement of dikes;
f.
Water harvesting activities; and
g.
Flooding in a cranberry Bog and flood release from a cranberry Bog;
The cutting and removal of trees for the purpose of selling said trees or any
products derived therefrom, when carried out in the following manner:
a.
Every reasonable effort shall be made to avoid or Minimize access
through Areas Subject to Protection Under the Bylaw;
b.
Where access through Areas Subject to Protection Under the Bylaw is
necessary, every reasonable effort shall be made to gain said access
without constructing new accessways including, but not limited to,
maintaining and improving (but not substantially enlarging) existing
accessways, and operations shall be conducted when the soil is frozen, dry
or otherwise stable;
c.
Where access is determined impracticable without constructing new
accessways, said accessways shall be designed, constructed and
maintained in accordance with U.S. Forest Service logging road standards,
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and shall be removed and the site returned to previously existing
Conditions within one year;
d.
All channel crossings shall be stabilized to prevent Erosion, using
standard U.S. Forest Service methods. When crossings involve Fill or
other closed or semi-closed structures which will obstruct flow, they shall
be designed, constructed and maintained in accordance with U.S. Forest
Service standards, shall allow the unobstructed passage of existing flows
for at least the ten-year storm, and shall be removed and the site returned
to existing Conditions within one year of construction;
e.
All soils which are exposed during and after work shall be stabilized to
prevent said soils from eroding into open water bodies, in accordance with
standard U.S. Forest Service methods;
f.
All operations shall be conducted in accordance with a cutting plan
approved by the Massachusetts Department of Environmental
Management District Forester; and
g.
A written notice describing the proposed cutting and removal of trees
shall be submitted to the Commission not less than 10 days prior to the
commencement of operations.
Alter means to change the Condition of any Area subject to protection 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 temperature, biochemical oxygen demand, or other physical or chemical
characteristics of water;
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(j)
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Any activities, changes or work which may cause or tend to contribute to pollution of
any body of water or Groundwater; or
(k) Application of pesticides or herbicides.
Aquaculture means:
(a) The growing of aquatic organisms under controlled Conditions, including one or
more of the following uses: raising, breeding or producing a specified type of animal
or vegetable life including, but not limited to, finfish such as carp, catfish, black bass,
flatfishes, herring, salmon, shad, smelt, sturgeon, striped bass, sunfishes, trout,
whitefish, eel, tilapia; shellfish such as shrimp, crabs, lobster, crayfish, oysters,
clams, periwinkles, scallops, mussels, squid; amphibians such as frogs; reptiles such
as turtles; seaweeds such as irish moss and dulse; and edible freshwater plants; and
(b) The commercial harvesting of shellfish for the purpose of selling said shellfish or any
products derived therefrom, when carried out in a manner consistent with the rules
and regulations of the Shellfish Constable relative to such commercial harvest.
Area Subject to Protection Under the Bylaw means any area specified in FWR 10.02(1). It is
used synonymously with Resource area, each one of which is defined in greater detail in
FWR 10.18 and 10.20 through 10.60.
Applicant means any Person who files a Request for Determination of applicability or Permit
application, or on whose behalf such a request or application is filed.
Bank (coastal) is defined in FWR 10.30(2)
Bank (inland) is defined in FWR 10.54(2)
Bank (of an Estuary) is defined in FWR 10.36(2)
Bank (of Salt pond) is defined in FWR 10.37(2)
Beach (coastal) is defined in FWR 10.27(2)
Beach (inland): a naturally occurring inland Beach means an unvegetated Bank as defined in
FWR 10.54(2).
Bedroom means any room, other than a closet, hallway, dining room, living room, kitchen, or
bathroom, that affords enough privacy for sleeping.
Best Available Measures means the most up-to-date technology or the best designs, measures or
engineering practices that have been developed and that are commercially available.
Best Practical Measures means technologies, designs, measures or engineering practices that are
in general use to protect similar interests.
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Bog is a type of Freshwater wetland.
Boundary means the Boundary of a Resource area. A description of the Boundary of each
Resource area is found in the appropriate section of FWR 10.00. For coastal areas see
FWR 10.21 through 10.40. For inland areas see FWR 10.51 though 10.60. For Freshwater
wetlands see FWR 10.70 through 10.88, as well as FWR 10.55.
Bordering means touching. An area listed in FWR 10.02(1)(a) is Bordering on a water body
listed in FWR 10.02(1)(b) or (c) if some portion of the area is touching the water body or if
some portion of the area is touching another area listed in FWR 10.02(1)(a) some portion of
which is in turn touching the water body.
Breeding areas mean areas used by Wildlife for courtship, mating, nesting or other reproductive
activity, and rearing of young.
Bylaw means Chapter 235 of the Code of Falmouth.
Certificate of Compliance means a written Determination by the Commission that work or a
portion thereof has been completed in accordance with a permit. A Certificate of Compliance is
issued on Form H2.
Coastal Bank is defined in FWR 10.30(2).
Coastal Wetlands means any Marsh, Swamp, meadow, Bank, Flat or other lowland subject to
tidal action.
Commission means the Conservation Commission of the Town of Falmouth.
Common Dock - A single pier or float serving two or more contiguous waterfront properties
where each of the contiguous lots would qualify for an individual private dock. An essential
element of any common dock shall be a finding by the Commission that the number of potential
docks in the immediate area has been permanently reduced as demonstrated by the legal
documentation submitted by a community dock applicant. (Added 10-5-2003)
Community Dock - A single pier or float located approved by the Planning Board pursuant to
Article XXV of the Zoning Bylaw3 for loading and unloading of passengers and/or cargo and
the tying up of dinghies. (Added 10-5-2003)
Compliance - A project is in Compliance with these regulations and a Certificate of Compliance
will be issued when the requirements set forth in FWR 10.05(11) have been fulfilled (i.e.,
project is consistent with Plans submitted and permit issued).
Conditions means those requirements set forth in a written permit issued by the Commission for
the purpose of permitting, regulating or prohibiting any activity that Removes, fills, dredges,
2
Editor's Note: Form H is on file in the Conservation Administrator's office and may be examined there during regular
office hours.
3
Editor’s Note: See Ch. 240, Zoning.
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builds upon, degrades or otherwise Alters an Area subject to protection under the Bylaw. [See
also FWR 10.05(7).]
Conservation Commission Administrator means the duly authorized representative of the
Commission, with the authority to carry out certain of the Commission's functions. These shall
include, but not be limited to, carrying out site visits, Determination of application
completeness, the issuance of Cease and Desist Orders, and reports to the Commission.
Creek means the same as a Stream, as defined in FWR 10.04.
Critical wildlife and plant habitat means the following areas: areas utilized by threatened, rare,
or endangered species, or species of special concern; or species on the "Watch List"; or Priority
Sites of Rare Species habitat; or Exemplary Natural Communities; all of which are determined
by the Massachusetts Division of Fisheries and Wildlife, Natural Heritage & Endangered
Species Program, and areas utilized by species areas listed in the Cape Cod Critical Habitat
Atlas (Association for the Preservation of Cape Cod, 1990).
Date of Issuance means the date a permit is mailed, as evidenced by a postmark, or the date it is
hand delivered, as evidenced by a signed receipt.
Determination.
(a) A Determination of Applicability means a written finding by the Commission as to
whether a site or the work proposed thereon is subject to the jurisdiction of Chapter
235 of the Code of Falmouth, and is issued on Form B4 .
(b) A Determination of Significance means a written finding by the Commission, after a
public hearing, that the area on which the proposed work is to be done, or which the
proposed work will Alter, is Significant to one or more of the Resource area values
identified in Chapter 235 of the Code of Falmouth. It shall be made as part of the
permit.
(c) A Notification of Non-Significance means a written finding by the Commission, after
a public hearing, that the area on which the proposed work is to be done, or which the
proposed work will Alter, will not have a Significant or cumulative effect on any of
the Resource area values of Chapter 235 of the Code of Falmouth, and is issued on
Form F.5
Dinghy - A rowboat or small vessel powered by an engine less than 9 horsepower used to
transit from a dock or pier to a mooring. (Added 10-5-2003)
Dock means the entire structure of any Pier, wharf, walkway, bulkhead or float, and any part
thereof including pilings, ramps, walkways, float and/or tie-off pilings.
4
Editor's Note: Form B is on file in the Conservation Administrator's office and may be examined there during regular
office hours.
5
Editor's Note: Form F is on file in the Conservation Administrator's office and may be examined there during regular
office hours.
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Dune means coastal Dune, as defined in FWR 10.28(2).
Erosion means the wearing away of the land by running water, wind, ice, or other geological
agents.
Estuary is defined in FWR 10.26(2).
Extension Permit means a written extension of time within which the authorized work shall be
completed, and is issued on Form G6.
FEMA means the Federal Emergency Management Agency.
Fill means to deposit any material so as to raise an elevation, either temporarily or permanently.
Final Decision means a decision made, pursuant to FWR 10.05(10), FWR 10.05(11), or
FWR 10.08, after a hearing; or if no hearing is requested within 10 days after issuance of a
Tentative decision, the Tentative decision.
Flat is defined in FWR 10.27(2)(b).
Freshwater Wetland is defined in FWR 10.55(2).
General Performance Standards means those requirements established by FWR 10.00 for
activities in or affecting each of the Areas subject to protection under the Bylaw, Chapter 235
of the Code of Falmouth.
Groundwater means water below the earth's surface in the zone of saturation.
Hardship means the application of Chapter 235 of the Code of Falmouth to a particular piece of
property, evaluated in its totality, owing to the unique characteristics of the property, that is
unduly oppressive, arbitrary or confiscatory and would involve substantial economic loss to the
Applicant because of the literal enforcement of the Bylaw provided that the Conditions and
characteristics of the property are not the result of the actions of the Applicant, or owner, or
their agents, predecessors, successors or assignees. No Hardship exists where there is
established under the Code of Falmouth a right to transfer development rights.
Harvestable shellfish and finfish means shellfish and finfish species with commercial value.
Improvement of water quality means a reduction in discharges of pollutants to ground and/or
surface waters. This may be accomplished by a reduction in lawn area, a reduction in
impervious surfaces, an increase in distance between pollution sources and sensitive receptors,
the substitution of organic practices for conventional lawn and garden maintenance practices,
the substitution of indigenous tree and shrub species for landscaping requiring pesticides, and
the treatment or improved treatment of stormwater runoff and sewage, or other methods.
Isolated Land Subject to Flooding is defined in FWR 10.57(2)(b).
6
Editor's Note: Form G is on file in the Conservation Administrator's office and may be examined there during regular
office hours.
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Lake means any open body of fresh water with a surface area of 10 acres or more, and shall
include great Ponds.
Land Containing Shellfish is defined in FWR 10.34(2)
Land Subject to Coastal Storm Flowage is defined in FWR 10.38(2).
Land Subject to Flooding is defined in FWR 10.57(2).
Land Subject to Flooding or Inundation by Groundwater or Surface Water means land where
water collects from flooding caused by storms or by flooding caused by high Groundwater
levels, or a combination thereof, and may include Land subject to flooding, Freshwater
wetlands, and/or Vernal pools. Where these areas are utilized by Vernal pool species, they are
defined in FWR 10.58(2). When flooding is caused by rainfall it is defined in FWR 10.57(2).
Where these areas have Groundwater at the surface for a length of time sufficient to produce
hydric Conditions, they may be Freshwater wetlands defined in FWR 10.55(2).
Land Subject to Tidal Action means land subject to the periodic rise and fall of a coastal water
body, including spring tides.
Land Under Estuaries is defined in FWR 10.26(2).
Land Under Salt Ponds is defined in FWR 10.33(2).
Land Under Water Bodies means the bottom of, or land under, the surface of the Ocean or any
Estuary, Creek, Stream, Pond, or Lake. Land under inland water bodies is defined in
FWR 10.56(2)
Lands and Waters within the Black Beach/Great Sippewissett Marsh District of Critical
Planning Concern is defined in FWR 10.39.
Lands and Waters within the Waquoit Bay Area of Critical Environmental Concern is defined
in FWR 10.40.
Lawfully Located Structure or Facility means one that:
(a) Had a building permit and all other permit(s) required by law or regulation at the time
of its construction and was constructed in accordance with state and local laws and
regulations;
(b) By virtue of state law or local zoning bylaw, is deemed to be in Compliance with
applicable regulations; or
(c) On which no action may be taken to compel its removal.
Limit of Work means the Boundary beyond which no work may take place.
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WETLANDS REGULATIONS
FWR 10.04
Marsh is a type of Freshwater wetland.
Minimize means to achieve the least amount of Adverse effect that can be attained using Best
available measures or Best practical measures, whichever is referred to in the pertinent section.
Modify means to amend.
NPDES (National Pollutant Discharge Elimination System) Permit means the permit issued
jointly by the federal and state governments, in accordance with 33 U.S.C. 1342 and MGL c.
21, § 43, regulating liquid discharges from a point source.
Naturally vegetated condition means an area on a lot or parcel of land, or portion thereof, that is
left in a natural, undisturbed vegetative state; has existed in a primarily natural, undisturbed
state, but has been enhanced with indigenous plantings conducive to improved Wildlife habitat
according to a plan approved by the Conservation Commission; or has been disturbed, but is
revegetated with indigenous plantings that will return the land to its pre-disturbance condition
according to a plan approved by the Commission.
Navigation means the ability to traverse a waterway and is part of the Resource area value
Recreation under the Bylaw.
Ocean means Buzzards Bay, Vineyard Sound, Nantucket Sound and all contiguous waters
subject to tidal action except Salt ponds and estuaries.
Permit Application means an application for a permit to Remove, Fill, dredge, build upon,
degrade, or otherwise Alter an Area subject to protection under this Bylaw. It is made on Form
C7.
Person means any individual, group of individuals, association, partnership, corporation,
company, business organization, trust, estate, the commonwealth or political subdivision
thereof to the extent subject to town bylaws, administrative agency, public or quasi-public
corporation or body, Town of Falmouth, or any other legal entity or its legal representatives,
agents or assigns.
Piers means the same as Dock.
Plans means such data, maps, engineering drawings, calculations, specifications, schedules and
other materials, if any, deemed necessary by the Commission to describe the site and/or the
work, to determine the applicability of Chapter 235 of the Code of Falmouth, or to determine
the impact of the proposed work upon the Resource area values identified in Chapter 235 of the
Code of Falmouth.
Pond (coastal) - means Salt pond as defined in FWR 10.33(2)
Pond (inland) means any open body of fresh water with a surface area within the last 10 years
of at least 5,000 square feet. Ponds may be either naturally occurring or man-made by
7
Editor’s Note: Form C is on file in the Conservation Administrator's office and may be examined there during regular
office hours.
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FWR 10.04
impoundment, excavation, or otherwise. Ponds shall contain standing water except for periods
of extended drought. For purposes of this definition, extended drought shall mean any period of
three or more months during which the average rainfall is 50% or less of the ten-year average
for that same period as measured by the Falmouth Department of Public Works.
Notwithstanding the above, the following man-made bodies of open water shall not be
considered Ponds:
(a) Basins or lagoons which are part of wastewater treatment plants;
(b) Swimming pools or other impervious man-made basins; and
(c) Individual gravel pits or quarries excavated from upland areas unless inactive for five
or more consecutive years.
Prevention of damage to structures and natural resources as a result of Erosion means
preventing any activity, or the construction, improvement or repair of any structure, that
inhibits or otherwise restricts beach, barrier beach, or Dune movement. Prevention of damage to
structures and natural resources as a result of Erosion also means preventing the construction or
substantial improvement of a structure in an area likely to be impacted by coastal Erosion.
Prevention of new stormwater runoff discharges and the improvement of existing stormwater
runoff discharges means the prevention of new stormwater discharges without proper
mitigation as provided in FWR 10.39(24), and the implementation of measures to have existing
discharges meet the provisions of FWR 10.39(25).
Protection and enhancement of existing vegetative cover in order to maintain water quality and
wildlife habitat means to maximize the area of land in a Naturally vegetated condition.
Protection of coastal ecosystems which support the continued viability of harvestable shellfish
and finfish habitat means the protection of eel grass beds, Salt ponds and salt Marshes. The
Protection of coastal ecosystems which support the continued viability of Harvestable shellfish
and finfish habitat also means the protection of ecosystem elements such as the salinity regime
and water quality.
Recreation means the use and enjoyment of our natural surroundings in a manner consistent
with their preservation. Activities should not hinder access to coastal and inland resources.
Activities that shall be considered part of the use and enjoyment of our natural surroundings in
a manner consistent with their preservation shall include but not be limited to Recreational
boating swimming and shellfishing. The Commission's analysis of the project's effect on the
Resource area value of Recreation should be relative to a proposal's potential impacts on other
wetland interests, with priority given to enhancing and protecting those Recreational activities
which are not detrimental to the continued natural function of wetlands.
Remove means to take away any type of material, thereby changing an elevation, either
temporarily or permanently.
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WETLANDS REGULATIONS
FWR 10.04
Request for Determination of Applicability means a written request made by any Person to the
Commission for a Determination as to whether a site or work thereon is subject to Chapter 235
of the Code of Falmouth, and is made on Form A.8
Resource Area means any of the areas specified in FWR 10.25 through 10.40 and FWR 10.54
through 10.60. It is used synonymously with Area subject to protection under Chapter 235 of
the Code of Falmouth, each one of which is enumerated in FWR 10.02(1)
Resource Values Identified in Chapter 235 of the Code of Falmouth means protection of public
and private water supply, Groundwater, flood control, Erosion and sedimentation control, storm
damage prevention, Water pollution control, fisheries, shellfish, Wildlife habitat, Agriculture,
Aesthetics, Recreation, and Aquaculture. In the Black Beach/Great Sippewissett Marsh District
of Critical Planning Concern, the following Resource area values also apply: prevention of
flood damage by limiting of development in flood hazard areas; Prevention of damage to
structures and natural resources as a result of Erosion; Improvement of water quality, Protection
and enhancement of existing vegetative cover in order to maintain water quality and Wildlife
habitat; protection of Wildlife, waterfowl, and plant habitat and the maintenance of existing
populations and species diversity; prevention of loss or degradation of Critical Wildlife and
plant habitat, Prevention of new stormwater runoff discharges and the improvement of existing
stormwater runoff discharges; Protection of coastal ecosystems which support the continued
viability of Harvestable shellfish and finfish habitat; public access to water and land;
improvement of Groundwater recharge; and the minimization of the impact of new
development, reconstruction and/or expansion on the Resource area values listed above.
Rocky Intertidal Shore is defined in FWR 10.31(2)
Salt Pond is defined in FWR 10.33(2).
Significant means plays a role. A Resource area is Significant to a Resource area value
identified in Chapter 235 of the Code of Falmouth when it plays a role in the provision or
protection, as appropriate, of that Resource area value.
Stream means a body of running water, including brooks, Creeks, and rivers which moves in a
definite channel in the ground due to a hydraulic gradient, and which flows within, into or out
of an Area subject to protection under Chapter 235 of the Code of Falmouth. 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 except for that portion
upgradient of all Freshwater wetlands, Bogs, Swamps, Wet meadows and Marshes.
Swamp is a type of Freshwater wetland.
Tentative Decision means a decision made, pursuant to FWR 10.05(10), FWR 10.05(11), or
FWR 10.08, where no hearing was held. If no hearing is requested within 10 days after issuance
of a Tentative decision, the Tentative decision becomes a Final decision.
V-zone means Velocity zone.
8
Editor's Note: Form A is on file in the Conservation Administrator's office and may be examined there during regular
office hours.
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FALMOUTH CODE
FWR 10.05
Velocity Zone (including V-, YE-, & Vi-30) Is defined in FWR 10.38(2).
Vernal Pool is defined in FWR 10.58(2).
Vista Pruning means the selective thinning of tree branches or understory shrubs to establish a
specific "window" to improve visibility. Vista pruning does not include the cutting of trees
which would reduce the leaf canopy to less than 90% of the existing crown cover and does not
include the mowing or removal of understory brush.
Water-dependent uses mean those uses and facilities which require direct access to, or location
in, marine, tidal or inland waters and which therefore cannot be located away from said waters,
limited to: marinas, public Recreational uses, navigational and commercial fishing and boating
facilities, water-based Recreational uses, Navigation aids, basins, and channels, crossings over
or under water bodies (but limited to railroad and public roadway bridges, tunnels, culverts, as
well as railroad tracks and public roadways connecting thereto which are generally
perpendicular to the water body).
Water Pollution Control means the prevention or reduction of contamination of surface or
Groundwater.
Wet Meadow is a type of Freshwater wetland.
Wildlife means all animals and vegetation.
Wildlife habitat means areas which, due to their plant community composition and structure,
hydrologic regime or other characteristics, provide food, shelter, migratory or overwintering
areas, or Breeding areas for animals. This includes all areas in a Naturally vegetated condition.
FWR 10.05
Procedures
The following procedures shall apply to all filings under the Falmouth Wetlands Bylaw
(1) Time Periods. All time periods of 10 days or less specified in Chapter 235 of the Code of
Falmouth, and FWR 10.00 shall be computed using business days only. In the case of a
Determination, permit or Tentative decision, such period shall commence on the first day
after the Date of issuance and shall end at the close of business on the tenth business day
thereafter. All other time periods specified in Chapter 235 of the Code of Falmouth, and
FWR 10.00 shall be computed on the basis of calendar days, unless the last day falls on a
Saturday, Sunday or legal holiday, in which case the last day shall be the next business
day following.
(2) Actions by Conservation Commission. Where Chapter 235 of the Code of Falmouth, states
that a particular action (except receipt of a request or notice) is to be taken by the
Commission, that action is to be taken by more than half the members present at a meeting
of at least a quorum. A quorum is defined as a majority of the members then in office.
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FWR 10.05
WETLANDS REGULATIONS
FWR 10.05
Where Chapter 235 of the Code of Falmouth, states that the Commission is to receive a request
or Permit application, Commission means an individual designated by the Conservation
Commission to receive such request or Permit application.
(3) Administrative Review
(a) Scope. Some proposed projects that fall within the Commission's jurisdiction are of
such small scale as to not Remove, Fill, dredge, build upon, degrade, or otherwise
Alter an Area subject to protection under the Bylaw even though they may be
proposed in a Resource area. Such projects should not undergo the scrutiny of a
formal hearing before the Commission and can be adequately reviewed by the
Administrator.
(b) Applicability. If a project meets the criteria in FWR 10.05(3)(b) 1. or 2., the work
may be approved by the Administrator without the filing of a Request for a
Determination of applicability or a Permit application. If the Administrator has any
doubt that a project meets these Conditions, the Applicant will be required to request
a hearing and file a Request for a Determination of applicability or Permit
application.
1.
2.
A project may be approved by the Administrator pursuant to FWR 10.05(3) if
it meets all of the following Conditions:
a.
No work is proposed in any Resource area defined in FWR 10.02(1)(a)
through (e), and/or (j) though (k);
b.
No work is proposed in the Velocity Zone portion of Land Subject to
coastal storm flowage;
c.
Work is not proposed within 75 feet from the inland edge of any Resource
areas defined in FWR 10.02(1)(a) through (e), and the Resource area
buffer is flat or nearly so;
d.
No uprooting of vegetation and no mowing to the ground or clear cutting
is proposed;
e.
Any proposed addition to a principal structure does not exceed 5% of the
first floor footprint, and no alteration to an existing septic system is
proposed or required by other local or state agency; and
f.
No stormwater management system is required by the provisions of
FWR 10.16(3) and FWR 2.00
A project may be approved by the Administrator pursuant to FWR 10.05(3) if
it meets any one of the following Conditions:
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FWR 10.05
3.
FALMOUTH CODE
FWR 10.05
a.
All work is within the A-Zone potion of Land subject to coastal storm
flowage and over 100 feet from those Resource areas specified in
FWR 10.02(1) (a) through (e);
b.
Ordinary repair (but not substantial repair) or maintenance of an existing
single family house that is located over 25 feet from the edge of all those
Resource areas specified in FWR 10.02(1) (a) through (e); or
c.
The project is an upgrade of a septic system that does not require or
involve an increase in design flow or number of Bedrooms, provided the
system components will be over 50 feet from those Resource areas
specified in FWR 10.02(1) (a) through (e).
Notwithstanding the provisions of FWR 10.05(3)(b) 1. and 2., if the
Administrator is of the opinion that in their professional judgment that the
project is not appropriate for Administrative Review, the Administrator may
not approve the project.
(c) Procedure. The process is as follows:
1.
The Applicant will submit on Form AR9 sufficient information to determine
where the project is located and whether it meets the requirements set forth in
(b) above;
2.
The Conservation Administrator will visit the site;
3.
The Conservation Administrator will determine whether all Conditions of this
regulation are met;
4.
The Conservation Administrator will issue an Administrative Review Decision
(Form ARD10) within 21 days of receipt of a written request that fulfills the
information requirements.
5.
The decision will be filed as a permanent record with the Commission.
(d) Appeal. If the decision rendered by the Administrator is opposed by any party in
interest, they may apply for a Request for a Determination of applicability.
(4) Determinations of Applicability.
(a) Requests for Determination of Applicability.
1.
Any Person who desires a Determination as to whether Chapter 235 of the
Code of Falmouth, applies to land, or to work that may affect an Area subject
9
Editor’s Note: Form AR is on file in the Conservation Administrator's office and may be examined there during regular
office hours.
10
Editor's Note: Form ARD is on file in the Conservation Administrator's office and may be examined there during regular
office hours.
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FWR 10.05
WETLANDS REGULATIONS
FWR 10.05
to protection under Chapter 235 of the Code of Falmouth, may submit to the
Commission by certified mail or hand delivery a Request for a Determination
of applicability. Such request shall include such information as required in
FWR 10.99, to enable the Commission to find and view the area and to
determine whether the proposed work will Remove, dredge, Fill, build upon,
degrade or otherwise Alter an Area subject to protection under the Bylaw.
2.
A Request for a Determination of applicability shall include certification that
the owner of the area subject to the request, if the Person making the request is
not the owner, has been notified that a Determination is being requested under
Chapter 235 of the Code of Falmouth.
(b) Determination of applicability.
1.
Within 21 days after the date of receipt of the Request for a Determination of
applicability, the Commission shall issue a Determination of applicability.
Notice of the time and place of the public hearing at which the Determination
will be made shall be given by the Commission at the expense of the Person
making the request not less than five days prior to such meeting, by publication
in The Enterprise and by mailing a notice to the Person making the request, and
the owner. Notice shall also be given in accordance with the Open Meeting
Law, MGL c. 39, § 23B. Said Determination shall be signed by a majority of
the Conservation Commission, and copies thereof shall be sent by the
Commission to the Person making the request, and to the owner. Said
Determination shall be valid for three years from the Date of issuance.
2.
The Conservation Commission shall find that Chapter 235 of the Code of
Falmouth, applies to the land, or a portion thereof, if it is an Area subject to
protection under Chapter 235 of the Code of Falmouth, as defined in
FWR 10.02(1). The Conservation Commission shall find that Chapter 235 of
the Code of Falmouth applies to the work, or portion thereof, if it is an Activity
Subject to Regulation Under Chapter 235 of the Code of Falmouth as defined
in FWR 10.02(2).
3.
Determinations made prior to effective date of FWR 10.39 Lands and Waters
in the Black Beach/Great Sippewissett Marsh District of Critical Planning
Concern. Determinations of applicability issued prior to April 17, 1997 shall be
valid only for the Resource areas specified in the Determination and not for
Land and Waters in the Black Beach/Great Sippewissett Marsh District of
Critical Planning Concern.
4.
If information Significant to the Determination of applicability becomes
available which was previously not available or withheld, the Commission may
issue a Cease and Desist Order pursuant to FWR 10.08. In such a case, the
cease and desist order shall state that no work is to be undertaken until a new or
amended Determination of applicability is issued. The Commission may revoke
or amend a Determination of applicability when new information has become
available to the Commission which was not available at the time of
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FWR 10.05
FALMOUTH CODE
FWR 10.05
Determination of applicability issuance, or the Commission has determined that
information submitted to the Commission upon which the Determination of
applicability was based is false, incorrect or misleading, provided procedures
for a hearing are provided to the Applicant pursuant to the provisions of
FWR 10.05(6).
5.
A Permit application which is filed as a result of a positive Determination shall
be filed with the Commission, and all of the procedures set forth in
FWR 10.05(5) shall apply.
(5) Permit Application
(a) Any Person who proposes to do work that will Remove, Fill, dredge, build upon,
degrade, or otherwise Alter any Area subject to protection under Chapter 235 of the
Code of Falmouth shall submit a Permit application, Form C11 of FWR 10.99, and
other application materials in accordance with the submittal requirements set forth in
FWR 10.99 General Instructions for Filing a Permit Application.
(b) For certain projects, Applicants may at their option use the Abbreviated Permit
Application, Form D12 of FWR 10.99. This latter form may only be used when all
three of the following circumstances exist:
1.
The proposed work is not within the areas specified in FWR 10.02(a) through
(e), or (j) through (k);
2.
The proposed work will Alter less than 1,000 square feet of surface area; and
3.
An order of conditions pursuant to MGL c. 131, § 40 is not required.
(c) Upon receipt of the application materials referred to in FWR 10.05(5)(a) and the
applicable fee in FWR 10.09(2), the Commission, or its agent, shall issue a file
number. The designation of a file number shall not imply that the Plans and
supporting documents have been judged adequate for the issuance of a permit, but
only that copies of the minimum submittal requirements contained in FWR 10.99
General Instructions for filing a Permit application have been filed.
(d) A Permit application shall expire where the Applicant has failed to diligently pursue
the issuance of a permit in proceedings under FWR 10.00. A Permit application shall
be presumed to have expired one year after the date of filing unless the Applicant
submits information showing that (a) good cause exists for the delay of proceedings
under FWR 10.00; and (b) the Applicant has continued to pursue the project
diligently in other forums in the intervening period; provided, however, that
unfavorable financial circumstances shall not constitute good cause for delay. No
Permit application shall be deemed expired under this section when an appeal is
11
Editor's Note: Form C is on file in the Conservation Administrator's office and may be examined there during regular
office hours.
12
Editor's Note: Form D is on file in the Conservation Administrator's office and may be examined there during regular
office hours.
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WETLANDS REGULATIONS
FWR 10.05
pending and when the Applicant has provided all information necessary to continue
with the prosecution of the case.
(e) Abutter Notification for Permit Application Any Person filing a Permit application
with the Conservation Commission shall at the same time give written notification
thereof, by delivery in hand, or certified mail, return receipt requested, to all abutters
and other landowners within 100 feet of the property line of the land where the
activity is proposed, at the mailing addresses shown on the most recent applicable tax
list of the assessors, including, but not limited to, owners of land directly opposite
said proposed activity on any public or private way, and in another municipality or
across a body of water. Said notification shall be at the Applicant's expense, and shall
state where the copies of the Permit application may be examined and obtained or
shall include a copy of the complete Permit application and where information the
date, time and place of the hearing may be obtained. An affidavit of the Person
providing such notice, with a copy of the notice mailed or delivered, shall be filed
with the Commission.
(f)
Permit applications or permits issued before April 17, 1997 do not need to reapply for
the same activities pursuant to FWR 10.39 unless the Permit application or permit has
expired.
(6) Public Hearings.
(a) A public hearing shall be held by the Commission within 21 days of receipt of the
minimum submittal requirements and shall be advertised in accordance with Chapter
235 of the Code of Falmouth and the requirements of the Open Meeting Law, MGL
c. 39, § 23B.
(b) The advertising cost for a public hearing for a permit or Request for Determination
shall paid by the Applicant (see Fees, FWR 10.09). The advertising cost for a public
hearing for any other matter shall be shall be paid by the Person requesting said
hearing.
(c) Public hearings may be continued as follows:
1.
Without the consent of the Applicant to a date announced at the hearing, within
21 days, of receipt of the complete Permit application;
2.
With the consent of the Applicant, to an agreed-upon date, which shall be
announced at the hearing; or
3.
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 Chapter 235 of Code of Falmouth, and notice shall be sent to
any Person at the hearing who so requests in writing.
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FWR 10.05
(7) Permits
(a) Scope. A permit is designed to permit the proposed construction activity while, at the
same time, ensuring that valuable wetlands resources will be protected from either
deliberate or accidental damage. Resource area protection is achieved by a
combination of design elements within the approved plan and by additional
Conditions imposed by the Commission. All construction activities must be
completed in Compliance with the existing permit.
(b) General Requirements. The following shall apply to all permits:
Conditions may be for the construction period (e.g. straw bales for Erosion control)
or may be in perpetuity (e.g. buffer strips for Erosion control 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).
(c) Standard Conditions. A standard set of Conditions will be imposed on all permits
issued by the Commission. These standard Conditions are found in Form E13 in
FWR 10.99.
(d) Special Conditions. A special set of Conditions will be imposed when applicable on
permits issued by the Commission.
(e) If information Significant to the permit becomes available which was previously not
available or withheld, the Commission may issue a cease and desist order pursuant to
FWR 10.08. In such a case, the cease and desist order shall state that no work is to be
undertaken until a new or amended permit is issued. The Commission may revoke or
amend a permit when new information has become available to the Commission
which was not available at the time of permit issuance, or the Commission has
determined that information submitted to the Commission upon which the permit
decision was based is false, incorrect or misleading, provided procedures for a
hearing are provided to the permit holder pursuant to the provisions of
FWR 10.05(6).
(f)
Minimizing Resource Area Impacts
1.
In the Black Beach/Great Sippewissett Marsh District of Critical Planning
Concern, permits can be issued only if the impact to the Resource area is
Minimized by limiting the area which is removed, filled, dredged, built upon,
degraded, or otherwise Altered to less than 6,000 square feet or 10% of the lot,
whichever is greater.
a.
The land area utilized for private subdivision roads and common
driveways existing as of January 17, 1996, shall not be included in the
computation of the area which is removed, filled, dredged, built upon,
degraded, or otherwise permanently Altered.
13
Editor's Note: Form E is on file in the Conservation Administrator's office and may be examined there during regular
office hours.
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FWR 10.05
WETLANDS REGULATIONS
b.
2.
FWR 10.05
The land area used for Determination of lot size shall not include those
areas of the lot that are in the Resource areas of: land under the Ocean;
land under a Salt pond; Land under an Estuary; or salt Marsh.
In a barrier beach system where a proposed project is not proposed on a beach
or Dune, permits shall be issued only if the impact to the Resource area is
Minimized by limiting the area which is removed, filled, dredged, built upon,
degraded, or otherwise permanently Altered to less than 6,000 square feet or
10% of the lot, whichever is greater.
a.
The land area utilized for private subdivision roads and common
driveways existing as of August 15, 1998, shall not be included in the
computation of the area which is removed, filled, dredged, built upon,
degraded, or otherwise permanently Altered.
b.
The land area used for Determination of lot size shall not include those
areas of the lot that are in the Resource areas of: land under the Ocean;
land under a Salt pond; Land under an Estuary; or salt Marsh.
(g) Notwithstanding the provisions of FWR 10.05(7)(f)1. and 2., a permit for a project
that temporarily Alters more than the amount specified in FWR 10.05(7)(f)1 during
construction activities, may be permitted provided the area in excess of that specified
in FWR 10.05(7)(f)1. and 2. is restored to a Naturally vegetated condition
immediately following construction.
(8) Amended Permits
(a) Following the issuance of a permit, unforeseen circumstances sometimes arise which
may require minor deviations from the project approved in that permit. To allow for
the smooth operation of the permitting procedure and to avoid unnecessary and
unproductive duplication of regulatory effort after a permit has been issued, it would
not be reasonable to require a complete refiling of the Permit application when the
changes sought in the permit are relatively minor and will have unchanged or less
impact on the Resource area values protected by the Bylaw. Amended permits
provide assurances to Applicants that modifications undertaken in the course of the
project are within the scope of the deviations allowed for the receipt of a Certificate
of Compliance at FWR 10.05(11). No amended permit shall be issued for a permit
that has expired.
(b) Minor Changes. The most simple changes, such as correcting obvious mistakes such
as citing a wrong file number or typographical errors, may be accomplished by
correction of the permit by the Commission or the Conservation Administrator.
(c) Moderate Changes.
1.
The Applicant shall make a request for an amendment to the Commission. The
request for an amendment of the permit is to be made either orally at a
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FWR 10.05
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FWR 10.05
regularly scheduled meeting of the Commission or by submitting the request to
the Commission in writing.
2.
The Commission shall make a Determination whether the requested change is
of a relatively minor nature and can be considered as an amendment to the
original permit. In making this Determination, the Commission shall consider
such factors as whether the purpose of the project has changed, whether the
scope of the project has increased, whether the project meets relevant
performance standards, and whether the potential for adverse impacts to the
protected statutory Resource area values will be increased. Relatively minor
changes which result in the same or decreased impact on the Resource area
values protected by the Bylaw shall be considered a Minor Change.
3.
If the Commission determines that a new Permit application is not necessary,
the Commission shall publish newspaper notice (at the Applicant's expense) in
the same general manner as outlined in the Bylaw for new Permit applications
and as required by the Open Meeting Law, MGL c. 39, § 23B, to inform the
public that the request for amendment to the permit will be considered by the
Commission at a public hearing.
4.
The Applicant shall follow the requirements of abutter notification as if filing a
Permit application as described in FWR 10.05(5).
5.
The usual appeal procedure of the permit shall apply to the amended permit,
however the issues under appeal will be limited to those issues subject to the
amendment(s) or the change(s) made in the permit. Until there is a final
resolution of the appeal, no work may continue on those portions of the project
not permitted under the permit but only permitted by the amendment(s) which
has been appealed.
6.
Under no circumstances shall the issuance of an amended permit extend the
effective date of the original permit. The amended permit shall run with the
term of the original permit or the effective date of an extended permit.
7.
The amended permit shall be issued on the form provided for a permit, with the
insertion of the word "Amended" and the amendment date. Amended permits
shall be recorded with the Registry of Deeds in the same manner as permits.
(d) Significant Changes. Significant changes require the filing of a new Permit
application.
(9) Denials
(a) Procedural Denials. If the Commission finds that the information submitted by the
Applicant is not sufficient to describe the site, the work, or the effect of the work on
the Resource area values identified in the Bylaw, it may issue a denial prohibiting the
work. The denial shall specify the information which is lacking and why it is
necessary. In writing the procedural denial, the Commission shall:
FWR:26
06 - 01 - 2014
FWR 10.05
WETLANDS REGULATIONS
FWR 10.05
1.
State that the denial is specifically based on lack of information describing the
site, the work and/or the effect of the work on the Resource area values
identified in the Bylaw;
2.
List specific information needed in each of the three possible problem areas
mentioned above, citing appropriate sections of FWR 10.00; and
3.
State that the Commission encourages a resubmittal of a Permit application
with the above requested information.
(b) Substantive Denials. The Commission may deny permission for any activity within
areas under its jurisdiction if, in its judgment, such denial is necessary to protect the
Resource area values identified in the Bylaw. Due consideration shall be given to all
possible effects of the proposal on all Resource area values protected under the
Bylaw. Substantive denials are based on a reasoned analysis of the proposed activity
and the likely effects of this activity on the Resource area values. In most cases,
neither the assumption of protection nor the assumption of damage will be able to be
proven with certainty. The Commission will base its judgment on the best
information available to it at the time and in all cases will act to protect the Resource
area values as defined in the Bylaw.
The written decision will include the reasons for the denial, citing Resource area values
protected, and relevant regulations. The written decision will be signed by a majority of
the Commission.
(10) Extensions of Permits.
(a) The Commission may extend a permit for one or more periods of one year each,
which shall be made on Form G14. The request for an extension shall be made to the
Commission at least 30 days prior to expiration of the permit.
(b) The Commission may deny the request for an extension and require the filing of a
new Permit application for the remaining work in the following circumstances:
1.
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;
2.
Where new information, not available at the time the permit was issued, has
become available and indicates that the permit is not adequate to protect the
Resource area values identified in Chapter 235 of the Code of Falmouth;
3.
Where incomplete work is causing damage to the Resource area values
identified in Chapter 235 of the Code of Falmouth;
4.
Where work has been done in violation of the permit or FWR 10.00; or
14
Editor's Note: Form G is on file in the Conservation Administrator's office and may be examined there during regular
office hours.
FWR:27
06 - 01 - 2014
FWR 10.05
5.
FALMOUTH CODE
FWR 10.05
Where applicable sections of the Chapter 235 of the Code of Falmouth and/or
FWR 10.00 have been changed.
(c) Request for Hearing
1.
Any party specified in FWR 10.10(1)(a) may request a hearing in writing prior
to the issuance of the Extension permit, or within 10 days of the issuance of the
decision relative to the request for an Extension permit.
2.
Any decision regarding an Extension permit where no hearing was held shall
be a Tentative decision.
3.
Where no hearing has been held, and no request for a hearing has been made
pursuant to FWR 10.05(10)(c)1, the Tentative decision shall be final.
4.
Where a request for a hearing is made, the Commission shall conduct a hearing
and issue a Final decision pursuant to the procedures specified in
FWR 10.05(6).
5.
Where a request for an hearing is filed after the Tentative decision is issued, the
Commission shall conduct a hearing regarding the issuance of a Final decision
without prejudice to all parties.
(d) The Extension permit shall be signed by a majority of the Commission.
(e) The final Extension permit shall be recorded in the Land Court or the Registry of
Deeds, whichever is appropriate. Certification of recording shall be sent to the
Commission on the form at the end of Form G15. If work is undertaken without the
Applicant so recording the final Extension permit, the Commission may issue an
enforcement order or may itself record the final Extension permit.
(11) Certificate of Compliance
(a) Upon written request by the Applicant for a Certificate of Compliance, the
Commission shall issue a decision regarding the request within 21 days of receipt
thereof. A Certificate of Compliance is issued by the Commission on Form H16 of
FWR 10.99 and may certify that the activity or portions thereof described in the
Permit application and Plans has been complete in Compliance with the permit. The
Certificate of Compliance shall be signed by a majority of the Commission.
(b) Prior to the issuance of a Certificate of Compliance, a site inspection shall be made
by the Commission, or its agent, with prior notice to the Applicant or the Applicant's
agent, of the date and time of said site inspection.
15
Editor's Note: Form G is on file in the Conservation Administrator's office and may be examined there during regular
office hours.
16
Editor's Note: Form H is on file in the Conservation Administrator's office and may be examined there during regular
office hours.
FWR:28
06 - 01 - 2014
FWR 10.05
WETLANDS REGULATIONS
FWR 10.05
(c) 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 Certificate of
Compliance. Such refusal shall be issued within 21 days of receipt of a request for a
Certificate of Compliance, shall be in writing and shall specify the reasons for denial.
(d) If a project has been completed in accordance with Plans stamped by a registered
professional engineer, architect, landscape architect or land surveyor, a written
statement by such a professional Person certifying substantial Compliance with the
Plans and setting forth what deviation, if any, exists from the Plans approved in the
permit shall accompany the request for a Certificate of Compliance.
(e) If the permit contains Conditions which continue past the completion of the work,
such as maintenance or monitoring, the Certificate of Compliance shall specify
which, if any, of such Conditions shall continue. The Certificate shall also specify to
what portions of the work it applies, if it does not apply to all the work regulated by
the permit.
(f)
The final Certificate of Compliance shall be recorded in the Land Court or Registry
of Deeds, whichever is appropriate. Certification of recording shall be sent to the
Commission. Upon failure of the Applicant to so record, the Commission may do so.
(g) Request for Hearing
1.
Any party specified in FWR 10.10 may request a hearing in writing prior to the
issuance of the Certificate of Compliance, or within 10 days of the issuance of
the decision relative to the request for a Certificate of Compliance.
2.
Any decision regarding a Certificate of Compliance where no hearing was held
shall be a Tentative decision.
3.
Where no hearing has been held, and no request for a hearing has been made
pursuant to FWR 10.05(11)(g)1, the Tentative decision shall be final.
4.
Where a request for a hearing is made, the Commission shall conduct a hearing
and issue a Final decision pursuant to the procedures specified in
FWR 10.05(6).
5.
Where a request for an hearing is filed after the Tentative decision is issued, the
Commission shall conduct a hearing regarding the issuance of a Final decision
without prejudice to all parties.
(12) Recording in Registry of Deeds or Land Court
(a) The following forms issued by the Commission shall be recorded in the Barnstable
County Registry of Deeds or the Land Court, whichever is appropriate:
1.
Permit
FWR:29
06 - 01 - 2014
FWR 10.06
FALMOUTH CODE
2.
Amended permit
3.
Notification of Non-Significance
4.
Final Extension permit
5.
Final Certificate of Compliance
FWR 10.06
(b) If the Applicant fails to timely record any of these documents (unless in accordance
with paragraph c, below), the Commission is empowered to do so. As proof of
recording, the Applicant must deliver to the Commission the recording slip at the
bottom of the permit, amended permit, notification of non-significance, final
Extension, permit or final Certificate of Compliance, as appropriate. If the
Commission must record any of the above documents, the Applicant will be charged
the cost of recording plus a fee of $75. In such cases, the Commission is also
empowered to issue an enforcement order prohibiting any work.
(c) If the Applicant desires to delay the recording of the permit, they shall so state in
writing to the Commission the reasons for the delay, and the estimated date of
recording. In no case shall any construction commence unless and until the permit
has been recorded.
FWR 10.06
Emergency Work
(1) Any Person requesting permission to do an emergency project shall specify why the
project is necessary for the protection of the health or safety of the citizens of the
commonwealth and what agency of the commonwealth or subdivision thereof is to
perform the project or has ordered the project to be performed. If the project is certified to
be an emergency by the Commission, the certification shall include a description of the
work which is to be allowed and shall not include work beyond that necessary to abate the
emergency. A site inspection shall be made prior to certification.
(2) An emergency certification shall be issued only for the protection of public health or
safety.
(3) Within 21 days of commencement of an emergency project a Permit application shall be
filed with the Commission for review as provided by this Bylaw.
(4) Upon failure to meet the requirements of FWR 10.06, the Commission may, after notice
and a public hearing, revoke or Modify an emergency project approval and order
restoration and mitigation measures.
(5) Notwithstanding the provisions of FWR 10.06(2), the Commission may adopt emergency
regulations in conformance with this Bylaw for limited durations after severe coastal
storms, notice of which shall be provided as soon as possible after their adoption.
FWR:30
06 - 01 - 2014
FWR 10.07
FWR 10.07
WETLANDS REGULATIONS
FWR 10.08
Performance Guarantee
(1) Introduction. The performance guarantee is a tool available to the Commission to ensure
that proposed work is done in Compliance with a permit.
(2) Procedure. The Commission may require that the performance and observance of the
Conditions imposed by the permit be secured wholly or in part by one or more of the
methods described in FWR 10.07(2)(a) and (b).
(a) The following forms of security shall be released in whole or in part upon the
issuance of a Certificate of Compliance:
1.
Bond;
2.
Deposit of money;
3.
Negotiable securities; or
4.
Other undertaking of financial responsibility.
(b) The following forms of security shall be executed and duly recorded in the
Barnstable County Registry of Deeds by the owner of record running with the land
the benefit of the Town of Falmouth whereby the applicable permits Conditions shall
be performed and observed before any lot may be conveyed other than by mortgage
deed:
1.
Conservation restriction pursuant to MGL c. 184, §§ 31, 32, and 33;
2.
Easement; or
3.
Other covenant enforceable in a court of law.
(3) The performance guarantee specified in FWR 10.07(2)(a) should be extended to "The
Town of Falmouth Conservation Commission" based on the Permit, (File______),
Special Condition No. _____. and shall state the specific work covered by the
performance guarantee.
(4) If it is required that a time period be stated for a form of performance guarantee specified
in FWR 10.07(2)(a), the Applicant shall ensure that the bond performance guarantee
be continued if the work is not successfully completed at the end of that period, or the
Commission may elect to utilize the performance guarantee to complete the work.
FWR 10.08
Enforcement
(1) Cease and Desist Orders
FWR:31
06 - 01 - 2014
FWR 10.08
FALMOUTH CODE
FWR 10.08
(a) When the Commission determines that an activity is in violation of Chapter 235 of
the Code of Falmouth or a permit, the Commission may issue a cease and desist
order. Violations include, but are not limited to:
1.
Failure to comply with a permit, such as failure to observe a particular
condition or time period specified in the permit;
2.
Failure to complete work described in a permit, when such failure causes
damage to the Resource area values identified in Chapter 235 of the Code of
Falmouth; or
3.
Failure to obtain a valid permit or final Extension permit prior to conducting an
Activity Subject to Regulation Under Chapter 235 of the Code of Falmouth as
defined in FWR 10.02(2).
(b) The members, officers, employees and agents of the Commission may enter upon
privately owned land for the purpose of performing their duties under this section
with prior approval of the property owner, or other legal authority as provided by
law.
(c) A cease and desist order shall be signed by a majority of the Commission. In a
situation requiring immediate action, a cease and desist may be signed by a single
member, agent of the Commission, or Natural Resource officer, if said Order is
ratified by a majority of the members at the next scheduled meeting of the
Commission.
(d) Request for Hearing
1.
Any party specified in FWR 10.10(1)(a) may request a hearing in writing
within 10 days of the issuance of the cease and desist order.
2.
Any decision regarding an cease and desist order where no hearing was held
shall be a Tentative decision.
3.
Where no hearing has been held, and no request for a hearing has been made
pursuant to FWR 10.08(1)(d)1, the Tentative decision shall be final.
4.
Where a request for a hearing is made, the Commission shall conduct a hearing
and issue a Final decision pursuant to the procedures specified in
FWR 10.05(6).
5.
Where a request for an hearing is filed after the Tentative decision is issued, the
Commission shall conduct a hearing regarding the issuance of a Final decision
without prejudice to all parties.
FWR:32
06 - 01 - 2014
FWR 10.08
WETLANDS REGULATIONS
FWR 10.08
(2) Enforcement Orders
(a) When the Commission determines that an activity is in violation of Chapter 235 of
the Code of Falmouth or a permit and that action must be taken to correct the
violation, the Commission may issue an enforcement order. Violations include, but
are not limited to:
1.
Failure to comply with a permit, such as failure to observe a particular
condition or time period specified in the permit;
2.
Failure to complete work described in a permit, when such failure causes
damage to the Resource area values identified in Chapter 235 of the Code of
Falmouth; or
3.
Failure to obtain a valid permit or final Extension permit prior to conducting an
Activity Subject to Regulation Under Chapter 235 of the Code of Falmouth as
defined in FWR 10.02(2).
(b) The members, officers, employees and agents of the Commission may enter upon
privately owned land for the purpose of performing their duties under this section
with prior approval of the property owner, or other legal authority as provided by
law.
(c) An enforcement order shall be signed by a majority of the Commission after a
hearing. Said hearing shall be conducted according to the provisions of
FWR 10.05(6). In a situation requiring immediate action, an enforcement order may
be signed by a single member, agent of the Commission, or Natural Resource officer,
prior to a hearing, provided a hearing is held at the soonest available time and said
order is ratified by a majority of the members after said hearing.
(3) Criminal Complaints filed pursuant to Chapter 1, § 1-1, of the Code of the Town of
Falmouth
(a) Chapter 1, § 1-1 of the Code of the Town of Falmouth provides that "Whoever
violates any provisions of the bylaws contained in the Code of the Town of Falmouth
may be penalized by indictment or on complaint brought in the District Court. Except
as may be provided by law and as the District Court may see fit to impose, the
maximum penalty for each violation or offense, brought in such a manner, shall be
$300."
(b) The Commission, or its agent at the direction of the Commission, may file a criminal
complaint with the District Court if criminal intent has been demonstrated by those
Persons who have violated the provisions of Chapter 235 of the Code of the Town of
Falmouth.
FWR:33
06 - 01 - 2014
FWR 10.09
FALMOUTH CODE
FWR 10.09
(4) Non-Criminal Dispositions pursuant to Chapter 1, section 1-2 of the Code of the Town of
Falmouth and MGL Chapter 40, section 21D
(a) Chapter 1, § 1-2 of the Code of the Town of Falmouth provides that "Whoever
violates any provisions of the bylaws contained in the Code of the Town of
Falmouth, the violation of which is subject to a specific penalty, may be penalized by
a non criminal disposition as provided in MGL c. 40, § 21D. The noncriminal method
of disposition may also be used for violations of any rule or regulation of any
municipal officer, board or department which is subject to a specific penalty."
(b) The Conservation Agent may issue citations to those violating the provisions of
Chapter 235 of the Code of the Town of Falmouth pursuant to Chapter 1, § 1-2 of the
Code of the Town of Falmouth.
FWR 10.09
Fees
(1) General Fee Schedule:
(a) Permit fees shall be calculated by the Commission according to the schedule in
FWR 10.09. The fees shown below do not include an $14.50 advertising fee (which
is subject to change without notice by the Enterprise). Fees should be made payable
to the Town of Falmouth.
(b) The Commission reserves the discretion to waive all or a portion of the required fees
filed by a government agency. No fee shall be required of the Town of Falmouth, or
any political subdivision thereof.
(c) No Certificate of Compliance, permit, Determination of applicability, or Extension
permit shall be issued under the Falmouth Wetlands Bylaw if any required fee
pursuant to FWR 10.09(1) through (3) has not been paid to the town.
(d) Permit fees pursuant to FWR 10.09(2) are payable at the time of application and are
nonrefundable.
(e) There is no fee for a Request for Determination filed by a Person having no financial
connection with the property or project which is the subject of the request.
(2) Fee Schedule (plus the required advertising fee*):
(a)
(b)
(c)
Request for Determination of applicability
Permit application (for single lot and house
and projects thereon)
Permit application (for commercial and
other construction)
FWR:34
Fee
$35.00
$50.00
advtg
14.50
14.50
Total
$49.50
$64.50
$60.00
14.50
$74.50
06 - 01 - 2014
FWR 10.09
WETLANDS REGULATIONS
(d)
Permit application (for coastal projectsincluding Docks)
(e) Extension permit
(f) Consultant Fee
(g) Recording Fee
(h) Administrative Review17
*subject to change reflecting current rates
FWR 10.09
Fee
$80.00
advtg
14.50
$25.00
See FWR 10.09(3)
See FWR 10.05(12)
$25.00
Total
$94.50
$25.00
$25.00
(3) Consultant Fee
(a) The Commission, at its discretion, is authorized to require the posting of a
consultation fee by an Applicant. This fee shall be used to hire an independent, expert
consultant to investigate the site for the proposed project and to examine the Plans or
other information submitted by the Applicant to assist the Commission in evaluating
potential adverse impacts upon a Resource area by the proposed project. This fee will
be required in those cases where the complexity of the activity, the difficulty in
determining the threat to the Resource areas or the size of the request or project
involves and requires more information and analysis than can reasonably be supplied
to the Commission without independent technical professional assistance.
(b) The Commission may require the payment of the consultant fee at any time in the
deliberations prior to a Final decision.
(c) The consultant fee may be required for expert opinions regarding, but not limited to,
wetland Resource area surveys and delineations, analysis of Resource area values,
wetland resources area reports, hydrological and drainage analysis, Wildlife habitat
analysis, shellfish surveys, and environmental land use law.
(d) The Commission is hereby authorized to charge for said consultant fee when the
Permit application, proposes any of the following:
17
1.
500 square feet or greater alteration of a Resource area specified in
FWR 10.02(a);
2.
50 linear feet or greater of Bank alteration to a coastal or inland waterway;
3.
500 square feet or greater alteration to land in a Naturally vegetated condition
that constitutes a Resource area buffer as specified in FWR 10.18;
4.
500 square feet or greater alteration of Land under a water body;
5.
Discharge of any pollutants into or contributing to surface or Groundwater of
the Resource area;
This fee may be applied to the fee for a Request for Determination or Permit application should one be required.
FWR:35
06 - 01 - 2014
FWR 10.09
FALMOUTH CODE
FWR 10.09
6.
Construction of any stormwater control facility, or water control structure; or
7.
Construction of a Dock.
(e) Determination of amount of consultant fee for a Permit application
1.
The maximum consultant fee charged to reimburse the Commission for
reasonable costs and expenses shall be according to the following schedule:
Project Cost
Up to
$100,001
$500,000
$1,000,001
$1,500,001
(f)
-
$100,000
$500,000
$1,000,000
$1,500,000
$2,000,000
Maximum Fee
$500
$2,500
$5,000
$7,500
$10,000
2.
Each additional project cost increment of five hundred thousand dollars
($500,0000) over $2,000,000 shall be charged at an additional $2,500
maximum fee per increment;
3.
The project cost means the estimated, entire cost of the project including, but
not limited to, building construction, site preparation, landscaping, and all site
improvements;
4.
The consultant fee shall be paid on a pro rata basis for that portion of the
project cost applicable to those activities within Resource areas protected by
this Bylaw;
5.
The project shall not be segmented to avoid being subject to the consultant fee;
6.
The Applicant shall submit estimated project costs at the Commission's request,
but the lack of such estimated project costs shall not avoid the payment of the
consultants fee.
The Applicant shall pay the consultant fee to the town to be put into a special purpose
account established by the Commission which may be drawn upon by the
Commission at one of its public meetings.
(g) The Commission shall return any unused portion of the consultant fee to the
Applicant.
(h) Notwithstanding the provisions FWR 10.09(3)(a), no consultant fee shall be assessed
under this section for the construction of a single family dwelling, and appurtenant
facilities thereto, provided the only Resource area impacted is Land subject to coastal
storm flowage and none of the proposed work is within land in a Naturally vegetated
condition in a Resource area buffer as specified in FWR 10.18.
FWR:36
06 - 01 - 2014
FWR 10.10
(i)
WETLANDS REGULATIONS
Notwithstanding the provisions of FWR 10.09(3)(a) through (e), the Commission
may require a the payment of a consultant fee to hire an expert for the purposes to
verify a Resource area Boundary Determination submitted by an Applicant.
1.
The maximum consultant fee charged to reimburse the Commission for
reasonable costs and expenses of hiring an expert for the purpose of verifying a
Resource area Boundary Determination submitted by an Applicant shall be
according to the following schedule:
# Wetland flags
Up to 25
25 - 50
50 - 75
75 - 100
2.
(j)
FWR 10.10
Maximum Fee
$100
$175
$250
$325
Each additional number of wetland flags increment of 25 over 100 shall be
charged at an additional $75 maximum fee per increment;
Notwithstanding the provisions FWR 10.09(3)(e), when the Commission determines
an independent shellfish survey is required, the consultant fee shall be $1,200.
(k) Notwithstanding the provisions FWR 10.09(3)(e), the consultant fee for a variance
request shall be $2,000.
(l)
Any Applicant aggrieved by the imposition of, or the amount of, the consultant fee,
or any act related thereto, may appeal according to the provisions of the
Massachusetts General Laws.
FWR 10.10
Appeal Procedure
(1) Procedure.
(a) The following Persons may appeal a decision under the Bylaw:
1.
Any Applicant;
2.
Owner;
3.
Abutter;
4.
Any party in interest aggrieved; or
5.
Any Person as provided by law.
FWR:37
06 - 01 - 2014
FWR 10.11
FALMOUTH CODE
FWR 10.13
(b) Appeals shall be made to the Superior Court of Barnstable County pursuant to MGL
c. 249, § 4, or as otherwise provided by law.
(2) Mediation. Any Person specified in FWR 10.10(1)(a) may, within 10 days of the issuance
of a decision by the Commission, request that the matter be settled through a mediation
process conducted by a professional environmental service. Any party may refuse to
participate in, or may withdraw from the mediation proceeding at any time, and no
settlement agreement shall be effective unless signed by all parties whose cooperation is
necessary to its implementation.
(a) Professional environmental service shall mean a Person(s) who is qualified to
determine if the decision of the Commission is consistent with the provisions of
FWR 10.00.
FWR 10.11
Incorporation
Where applicable, the definitions, presumptions of significance, and performance standards, set
forth in the Massachusetts Wetlands Regulations, 310 CMR 10.00 et seq., are hereby
incorporated herein only when no definitions, presumptions of significance or performance
standards are given in these regulations.
FWR 10.12
Severability
Should any portion of these regulations be declared invalid by a decision of court, the
legislature or other body having jurisdiction, the remainder of these regulations shall remain in
full force and effect.
FWR 10.13
Variance (Revised 8-13-2003)
(1) Any individual who suffers a Hardship as defined in these regulations may petition for a
variance from Chapter 235 and these regulations provided:
(a) The project does not meet one or more of the performance standards articulated in
FWR 10.16 through 10.60; and
(b) Mitigating measures are proposed by the Applicant that will allow the project to be
conditioned so as to contribute to the protection of the Resource areas identified in
Chapter 235; and
(c) The project will not create a nuisance; and
(d) The hardship was not created by the applicant or the applicant's agents; and
(e) The resource areas delineated in Chapter 235 will be better protected if the project is
allowed than if the project is denied, or the project has an overriding public benefit.
FWR:38
06 - 01 - 2014
FWR 10.14
WETLANDS REGULATIONS
FWR 10.14
(2) Procedure.
(a) A request for a variance shall be made in writing at the time the Permit Application is
filed and shall include, at a minimum, the following information:
1.
A description of how the project qualifies for a variance in accordance with
FWR 10.13(1); and
2.
A description of alternatives explored that would allow the project to proceed
in Compliance with FWR 10.16 through 10.60 and an explanation of why each
is unreasonable or unrealistic; and
3.
A description of the mitigating measures to be used to contribute to the
protection of the Resource area values identified in Chapter 235 of the Code of
Falmouth; and
4.
A description of how the resource areas delineated in Chapter 235 will be
better protected if the project is allowed than if the project is denied; or
5.
Evidence that an overriding public interest is associated with the project which
justifies waiver of FWR 10.16 through 10.60.
(b) The Commission shall consider the request for a variance as part of its review of the
Permit Application pursuant to FWR 10.05(5). The Commission shall grant, grant in
part, deny in part or deny the variance request based upon its findings made pursuant
to FWR 10.13(1).
(c) The Commission may impose Conditions, safeguards and limitations on both of time
and activity.
(3) If the rights authorized by a variance are not exercised within one year of the date of grant
of such variance such rights shall lapse provided, however, that the Commission may
extend the time for the exercise of such rights for a period not to exceed six months
provided further that the application for any extension be submitted prior to the expiration
of such rights.
Commentary
FWR 10.13, which provides that the Commission may waive the application of one or
more of the regulations, is intended to be employed only in rare and unusual cases.
FWR 10.14
Amendments
Amendments to these regulations shall be made in the manner set forth in Section 8 of the
Falmouth Wetlands Bylaw.18
18
Editor’s Note: See § 235-8 of this Code.
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Effective Date
(1) FWR 10.01 through 10.38, FWR 10.40 through 10.99, and FWR 2.00 shall take effect on
August 15, 1998 and shall apply to all Permit applications and Requests for
Determinations of applicability filed on or after that date and any subsequent procedures
related to such filings made on or after that date. FWR 10.01 through 10.38, FWR 10.40
through 10.99, and FWR 2.00 shall not apply to any notice of intent filed prior to the
effective date of FWR 10.00, or to any extensions of any order of conditions the notice of
intent for which was filed prior to said effective date.
(2) The effective date of FWR 10.39 is April 17, 1997. FWR 10.39 shall not apply to any
notice of intent filed prior to April 17, 1997, or to any extensions to an order of conditions
when the notice of intent upon which such order was based was filed prior to April 17,
1997.
(3) All proceedings and actions commenced under Chapter 235 of the Code of Falmouth prior
to the effective date of FWR 10.00 shall remain in full force and effect under the prior
applicable regulations.
FWR 10.16
Specific Activities Regulated
Introduction - Under the Bylaw, activities in the following areas are subject to Conditions by
the Commission. The complexity of these activities warrants the specific requirements set forth
below.
(1) Coastal Docks and Piers.19
(a) Introduction: The construction, use, and maintenance of docks and piers are likely to
have a significant or cumulative adverse effect on the Resource area values of storm
damage prevention, shellfish, fisheries, wildlife habitat, aesthetics, erosion and
sediment control, aquaculture, and recreation. Construction, maintenance and use of
private Docks can have adverse effects on Resource areas and navigation for
recreational purposes. Further, docks destroyed by storm pose a threat to nearby
properties by increasing water-borne debris.
Turbulence and prop dredging generated by boat traffic significantly increase turbidity
levels. High turbidity levels attenuate the sunlight necessary for photosynthetic processes
responsible for the primary productivity and oxygen regeneration of the water. The
suspended sediments settle on shellfish beds, smothering existing shellfish and altering the
quality of the sand bottom essential for spat (mollusk larvae) settlement. Resuspension of
bottom sediments causes redistribution of sediments, alteration in sediment grain size
distribution and causes changes in bottom topography relief, elevation and grade,
including creation of depressions in the bottom. Resuspension of sediments into
19
Editor's Note: For regulations regarding Docks and Piers in inland areas see FWR 10.53(2)(3).
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depressions creates deep pockets of sediment which may not be able to physically support
shellfish or which can become anoxic and therefore not support shellfish. Resuspension of
sediments during the period of shellfish larval settlement hinders or prevents the effective
settlement of shellfish larvae. Boat traffic generated from docks will add to this disruption
and will cause erosion of banks and marshes.
Construction of docks and subsequent boat activity causes resuspension of nutrient-laden
sediment particles which may cause a release of sediment-bound nutrients to the water
column resulting in a "bloom" of vegetation, release of nutrients to the water column leads
to eutrophication and anoxic bottom conditions. Anoxic sediments and anoxic bottom
conditions create adverse impacts on benthic resources, including shellfish and fisheries.
While Dock construction is typically the least environmentally destructive method of
crossing a marsh, it may adversely affect the physical characteristics and functional value
of a marsh. Marsh plants provide the major energy flow (detritus food chain) between the
autotrophic and heterotrophic levels in a marsh-estuarine system. Many species of sport
and commercial fish and shellfish are dependent upon this system. Plants adapted to high
ambient light intensity, such as marsh grasses, are ill-adapted to the shaded conditions
created by a dock. Shading may result in the loss of vegetative biomass (decreased plant
height, population density, and leaf thickness) or alteration of species composition.
Reductions in plant density result in the loss of sediment normally trapped by roots and
culms. Tidal washout of sediment could result in localized depressions which, through
evaporation of trapped water, concentrate salt. High sediment salt levels effectively
preclude recolonization by original vegetation. Localized tidal washout may lead to further
vegetative regression, extension, and disruption of natural communities in the area.
Propeller turbulence near or in areas or submerged aquatic vegetation, such as eel grass
or salt marsh, damages vegetation, thereby increasing the rate at which organic detritus is
produced. If this organic detritus does not completely decompose aerobically, then anoxic
bottom conditions will ensue, which adversely impact shellfish and fisheries.
Cumulative impacts of the construction, maintenance and use of docks threaten to
decrease the overall productivity of the marsh ecosystem, to reduce its ability to absorb
storm wave energy, and to reduce its contribution to groundwater and surface water
quality.
Docks and piers when placed in land containing shellfish have an adverse impact on the
resource area value of aquaculture. The placement length and size of the dock and the
floats can interfere with the harvesting of quahogs and scallops.
Docks, depending on their length, can have an adverse impact on recreation by
interfering with recreational boating activities. Not properly designed, docks can interfere
with intertidal lateral access for recreational fishing and fowling. Any proposal that affects
navigation is likely to have a significant or cumulative adverse effect on recreation.
Depending on their height, length compatibility with surrounding environs and overall
visibility docks can create on adverse impact to the aesthetics of the area. Excessive
lighting on docks can interfere with recreational activities, cause temporary "night
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blindness" in recreational boaters, and have an adverse impact to the aesthetics of the night
sky.
(b) Submission Requirements for all Docks:
If an incomplete submission is received, the Commission shall issue a procedural denial,
without prejudice, in accordance with FWR 10.05(9)(a).
1.
A narrative description of materials used, i.e., size of pilings, deck percent open
area, spacing between planks, flotation materials, toxicity of any materials and
potential for leaching into the water from the materials;
2.
A narrative description of the construction process including the use of barges,
pile driving technique, cranes and heavy equipment;
3.
An accurate, detailed drawing, showing type of construction, size, means for
mooring if floating, exact location, depth of water within a fifty-foot radius of
each side of dock, mean high water line (mhw), mean low water line (mlw),
extreme low water line (elw), location of where boats will be tied to dock or
pier (mooring field), water depths (mlw) throughout the mooring field,
property boundary lines and edge of resource areas;
4.
A note on the plan indicating the site for winter storage of floats and method of
hauling (if any);
5.
The dock's effect on navigation reviewed and approved by the Harbor Master;
6.
A shellfish survey conducted in accordance with FWR 10.34 (4);
7.
A shellfish mitigation plan if required by the performance standards;
8.
Location of all docks and moorings within 200 feet of the proposed Dock and
float;
9.
Location of eel grass within 100 feet of the proposed structure;
10.
Description of lighting, electrical and potable water connections including
sufficient detail to demonstrate compliance with any lighting performance
standards; and
11.
A locus and title box which includes the street address.
12.
A signed statement by the owner, applicant, engineer, shellfish expert and other
professional utilized in preparing the submittal that each such individual has
reviewed the performance standards contained herein and that the proposed
project meets each standard. Any consultant utilized in the application need
only certify those areas that fall within the consultant's area of expertise. In the
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alternative, the applicant may submit an application for a Variance in
accordance with FWR 10.13.
13.
For community and common docks only, sufficient legal documentation to
demonstrate the rights in interest of the locus and that the dock will remain as a
community dock or common dock for the life of any such dock.
(c) Design Specifications and Performance Standards Commercial Harbors:
1.
Docks and piers shall be constructed in proportion to vessel(s) that the dock or
pier will serve. No dock may be constructed of a length that interferes with the
recreational interests protected under the bylaw.
2.
To keep disturbance of the bottom minimal at all times during both
construction and use, the water depth at the end of the Dock shall be a
minimum of four feet at the time of mean low water or three feet greater than
the draft of vessels served by the dock or pier, whichever is the greatest depth.
3.
The landward approach to a dock shall not harm vegetation on a coastal
wetland, freshwater wetland or coastal bank (a marsh shall be crossed by a
raised walkway, and coastal banks must be preserved by use of suitable stairs.);
4.
Except for floating portions of a dock, the decking surface shall not reduce
normal ambient lighting, i.e., sunlight, by more than 50 percent.
(d) Design Specifications and Performance Standards Recreational Harbors.
1.
Docks shall not exceed over 100 feet in length beyond mean high tide, or 100
feet in length beyond the landward edge of salt marsh, or otherwise prohibit or
unreasonably impede legitimate passage along a beach or through navigation
over the waters for recreational or aquacultural purposes;
2.
To keep disturbance of the bottom minimal at all times during both
construction and use, the water depth at the end of the dock shall be a minimum
of three feet at the time of mean low water;
3.
The area of the terminal "L" or "T" shape in a fixed dock, or the float, or
combination thereof, shall not exceed 100 square feet;
4.
The design and construction shall not interfere with recreational intertidal
lateral access;
5.
No portion of the dock or pier may be closer than 10 feet from the property
boundary or extended property boundary line into the intertidal and tidal zone;
6.
Floating docks shall be fixed by piers utilizing a hoop roller or other approved
designed fastening system;
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7.
The landward approach to a dock shall not harm vegetation on a coastal
wetland, freshwater wetland or coastal bank (a marsh shall be crossed by a
raised walkway, and coastal banks must be preserved by use of suitable stairs.);
8.
An area where the float(s), if any, will be stored shall be designated on the
plan;
9.
Except for floating portions of a dock, the decking surface shall not reduce
normal ambient lighting, i.e., sunlight, by more than 50 percent over salt marsh
and bordering freshwater wetland;
10.
The maximum horizontal footcandle level as measured directly below each
complete lighting unit shall not exceed 0.2 footcandle (Fc).
(e) Design Specifications and Performance Standards - Areas of Critical Environmental
Concern and Districts of Critical Planning Concern
(f)
1.
No new docks shall be allowed unless the applicant demonstrates that a public
benefit will derive from the construction of the dock or pier.
2.
The design specifications for recreational harbors shall apply.
Design Specifications and Performance Standards - Community Docks (except in
Areas of Critical Environmental Concern or Districts of Critical Planning Concern)
1.
Docks shall not exceed the following: over 100 feet in length beyond mean
high tide, or 100 feet in length beyond the landward edge of salt Marsh. The
proposed dock or pier shall not otherwise prohibit or unreasonably impede
legitimate passage along a beach or through navigation over the waters for
recreational or aquacultural purposes;
2.
To keep disturbance of the bottom minimal at all times during both
construction and use, the water depth at the end of the dock shall be a minimum
of three feet at the time of mean low water;
3.
The area of the terminal "L" or "T" shape in a fixed Dock, or the float, or
combination thereof, shall not exceed 100 square feet;
4.
The design and construction shall not interfere with recreational intertidal
lateral access;
5.
No portion of the dock or pier may be closer than 10 feet from the property
boundary or extended property boundary line into the intertidal and tidal zones;
6.
Floating docks shall be fixed by piers utilizing a hoop roller or other approved
designed fastening system;
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7.
The landward approach to a dock shall not harm vegetation on a coastal
wetland, freshwater wetland or coastal bank (a marsh shall be crossed by a
raised walkway, and coastal banks must be preserved by use of suitable stairs.);
8.
An area where the float(s), if any, will be stored shall be designated on the
plan;
9.
Except for floating portions of a dock, the decking surface shall not reduce
normal ambient lighting, i.e., sunlight, by more than 50 percent.
10.
The maximum horizontal footcandle level as measured directly below each
complete lighting unit shall not exceed 0.2 footcandle (Fc).
11.
In addition to the marking contained in FWR 10.16(1)(i)(4), the following
message shall be displayed on each section of the dock identified for the
attachment of dinghies - "dinghies only."
(g) Design Specifications and Performance Standards - Common Docks (except in Areas
of Critical Environmental Concern or Districts of Critical Planning Concern)
1.
Docks shall not exceed the following: over 100 feet in length beyond mean
high tide, or 100 feet in length beyond the landward edge of a salt Marsh. The
proposed dock or pier shall not otherwise prohibit or unreasonably impede
legitimate passage along a beach or through navigation over the waters for
recreational or aquacultural purposes;
2.
To keep disturbance of the bottom minimal at all times during both
construction and use, the water depth at the end of the dock shall be a minimum
of three feet at the time of mean low water;
3.
No maximum size of a common dock is established. The Commission shall
consider the reduction of the total number of potential docks in the area in
permitting a common dock. In no case may the mooring field of a common
dock be larger than what would have been permitted by the total area of the
individual potential docks of common owners.
4.
The design and construction shall not interfere with recreational intertidal
lateral access;
5.
Floating docks shall be fixed by piers or pilings utilizing a hoop roller or other
approved designed fastening system;
6.
The landward approach to a dock shall not harm vegetation on a coastal
wetland, freshwater wetland or coastal bank (a marsh shall be crossed by a
raised walkway, and coastal banks must be preserved by use of suitable stairs.);
7.
An area where the float(s), if any, will be stored shall be designated on the
plan;
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8.
Except for floating portions of a dock, the decking surface shall not reduce
normal ambient lighting, i.e., sunlight, by more than 50 percent.
9.
The maximum horizontal footcandle level as measured directly below each
complete lighting unit shall not exceed 0.2 footcandle (Fc).
(h) General Requirements and Prohibitions all Docks and Piers.
1.
No new docks or piers or extension of an existing dock or pier may be
constructed in any portion of FEMA designated velocity zone (V-Zone) unless
the applicant demonstrates that there will be public benefit from the project.
The Commission shall weigh the potential likelihood of damage and harm that
any such dock or pier would cause during a storm event with the public benefit
demonstrated by the applicant in determining whether the project should be
allowed.
2.
No new dock or pier shall be allowed if, within 35 feet of the area designated
by the applicant as the mooring field, designated as Area A in
FWR 10.34(4)(d), there are significant quantities of shellfish as defined by
FWR 10.34 (3) and the area has been historically used for shellfishing or has
potential for shellfishing, and the sediment provides a viable shellfish habitat.
[Amended 5-31-2006]
3.
If, within the area designated as Area B, as in FWR 10.34(4)(d) sampled for
shellfish under FWR 10.34(4) there are significant quantities of shellfish as
defined by FWR 10.34 (3) or the area has been historically used for
shellfishing or has potential for shellfishing, or the sediment provides a viable
shellfish habitat, the applicant shall provide a shellfish mitigation plan.
[Amended 5-31-2006]
4.
The Commission shall presume that there are significant quantities of shellfish
in any area actively shellfished within the previous six months of the shellfish
survey.
5.
No new, replacement, or substantial alteration of an existing dock or pier shall
be permitted within 50 feet of an area of eel grass (Zostera marina).
6.
No CCA-treated materials may be used to construct a dock or pier.
7.
For singular purpose ownership docks, any floating section of a dock or pier
shall have a minimum water depth of three feet under all portions of that
floating section of the dock or pier including times of extreme low water. This
depth shall be measured as the shortest distance from any portion of the bottom
of the floating section to the seabed.
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(i)
(j)
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The following shall be included as special conditions for all dock or pier projects:
1.
Boats at the dock shall not be allowed to leak oil or other pollutants into water,
nor shall oil or fuel be stored on the dock or pier.
2.
Motor boats shall not be run in gear while tied to the dock, since prop wash
disturbs shellfish beds, stirs up sediment and causes bank erosion.
3.
Off-season storage of temporary/seasonal docks and floats shall be in upland
areas.
4.
The street address or business name shall be clearly displayed on the seaward
face of the dock, using three-inch numbers/letters of a contrasting color.
5.
If the use of the dock or pier causes actual damage to any resource areas
through prop dredging, bottom scouring, oil or hazardous discharge, or
destruction of shellfish resources, the dock or pier may be ordered removed at
the owner's expense in accordance with the provisions of FWR 10.16. The
owner shall be responsible for all costs associated with removal of the dock
including any legal or other costs to include attorney's fees incurred by the
Conservation Commission in enforcing this special condition.
6.
If construction is not completed and a Certificate of Compliance issued within
three years of the issuance of this permit, or affirmance of this permit after
appeal, this permit is void. An applicant may request an extension of this time
provided that such request is submitted at least 30 days prior to the end of the
time.
7.
If this permit and the plan of reference are not properly recorded in the
Barnstable Registry of Deeds within 30 days of issuance, or 30 days of
affirmance after appeal, this permit is void.
8.
Normal maintenance and repair of a dock or pier is allowed. No extension,
alteration or change from the plan of reference is permitted without first
obtaining a modification to this permit in accordance with Conservation
Commission procedures.
9.
Boats shall be tied or attached only in those areas of the pier or dock so
identified on the plan.
Permits
1.
Initial permits will be granted for a period of three years. After the initial
period has expired the Conservation Administrator may issue a renewal of the
permit for a period of five years provided there is no measurable adverse
impact from the use of the pier or dock on any resource area protected by the
bylaw.
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2.
If the Conservation Administrator or Agent determines that adverse impacts are
occurring from the use of the dock, the owner shall be notified in writing and
the Commission shall hold a hearing on the renewal.
3.
If the Commission, after hearing, determines that adverse impacts are occurring
from the use of the dock or pier, the owner shall have one year from the
hearing to correct and mitigate all harm caused by the use of the pier or dock.
4.
If, after the one year, all damage has been corrected and properly mitigated, the
Commission shall issue a permit for three years.
5.
If, after the one year, the harm to the resource areas has not been sufficiently
remediated to the degree required by the Conservation Commission, the dock
shall be ordered removed at the owner's expense. Removal shall occur in
accordance with a permit issued by the Commission within the time designated
in the permit. The permit ordering removal of the pier or dock shall be recorded
in the Barnstable Registry of Deeds within 14 days of issuance even if an
appeal is taken.
(2) Projects to Control Coastal Erosion.
(a) Introduction. The function of projects to control coastal Erosion through the use of
coastal engineering structures is likely to have a Significant or cumulative Adverse
effect on storm damage prevention, flood control, shellfish, fisheries, Wildlife
habitat, Aesthetics, Erosion and sediment control, and Recreation.
These projects are typically proposed on beaches, Dunes, barrier beaches, Coastal Banks,
Land subject to coastal storm flowage, and land under the Ocean. Beaches, Dunes, barrier
beaches, and Coastal Banks are made up of unconsolidated sediment materials which
permit a change in form due to wave action. As a result, they dissipate wave energy and
are likely to be Significant to storm damage prevention and flood control. They may
supply essential sediments to "downdraft" and "offshore" areas. The public value of these
Resource areas lies in their dynamic nature and their ability to change shape in response to
high energy situations such as storms. Interruptions of the natural processes of wave
energy dissipation and sediment supply reduce the public value of these processes. Coastal
sediment transport is a natural process that is critical to the Resource area values listed
above.
Groins are used to build a protective beach by trapping sediment along a portion of
shoreline where little beach exists. They are also used to retard Erosion of existing or
restored beaches. Historically groins have been considered necessary when certain updraft
Conditions have cut off the natural supply of sand feeding downdraft areas. For example,
when natural Erosion of bluffs or cliffs is halted, sediment starvation occurs in downdraft
areas. Downdraft beaches start to disappear because their source of sediment is curtailed.
Groins have traditionally been built in such cases to trap what little moving sediment
remained. The usual result has been that while sediment was trapped immediately updraft
of the groin, almost none was left to replenish downdraft areas. This resulted in the
creation of groin fields, where each property owner installed separate groins in an attempt
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to catch whatever sand was available. Since groins do not address the initial cause of the
decrease in littoral drift, i.e., a blockage of sediment transport form the source, groins have
often produced unsatisfactory results.
Jetties are designed to protect inlets. On the flood-tide materials are brought into the inlet.
At ebb-tide, an outer bar is formed. Neither occurrence is desirable when Navigation is the
primary need in the area. Thus, a jetty is constructed on the updraft side of the inlet to
completely trap the sand before it reaches the inlet. To be successful, the jetty must be of
sufficient height to trap all of the sand movement and long enough to extend from the
upper reaches of waves on a beach seaward to the terminus of the zone in which
movement of littoral drift takes place. Because of this impoundment of the sand at the
updraft jetty, the sand supply to downdraft areas is terminated, resulting in Erosion of the
downdraft beach.
Where sediment supply is reduced or interrupted, mitigation may include artificial
nourishment with downdraft areas. Dredge material from channel dredging, if proven to be
clean and made up of similar mineral material, might be used to nourish downdraft areas
adjacent to the dredging activity. Seawalls may require mitigation by a regular
nourishment program.
(b) Submittal requirements.20 For any proposed coastal engineering structure that may
affect sediment supply, a Permit application shall include:
1.
A quantitative description of the natural processes on site, including volume of
sediment lost, size of transport cell, physical characteristics of sediment, and
chemical contaminants;
2.
An appropriate response to Minimize the impact on downdraft areas;
3.
A specific description of the project including construction details, access to
the site, potential damage due to construction and continuing measures to
mitigate downdraft damage; and
4.
A beach profile and a nourishment plan designed to maintain the original beach
profile.
(c) Projects proposed to control coastal Erosion shall meet the performance standards of
FWR 10.21 through 10.40.
(3) Stormwater Management
(a) The design of the system for stormwater management for each project shall
accomplish the following:
1.
20
Reproduce, as nearly as possible the hydrological Conditions in the ground and
surface waters prior to the development, as specified in FWR 10.16(3)(b); and
These requirements are in addition to those specified in FWR 10.99.
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2.
Reduce stormwater pollution to the maximum extent possible using Best
Management Practices (BMP's), as specified in FWR 10.16(3)(c);
3.
Have an acceptable future maintenance plan covering method and execution;
4.
Have a beneficial effect on the Resource area values of the Bylaw;
5.
Be appropriate for the site, given physical constraints; and
6.
Provide a sufficient level of environmental protection during the construction
phase.
(b) The design and construction of each project shall be done in a manner such that postconstruction runoff will not exacerbate or create flooding Conditions, or Alter surface
water flow paths such as to impact adjacent properties to the site during the two-, ten, twenty-five-, and one-hundred-year twenty-four-hour storm events. No increase will
be allowed in the peak rate of runoff for any of the above design storms. The total
volume of post-development runoff shall not exceed the pre-development runoff
volume for the ten-year, twenty-four-hour design storm.
(c) The "first flush" of the stormwater shall be treated prior to discharge. The treatment
system(s) shall be designed to accommodate the first flush from the entire project
area. Treatment shall be provided to achieve eighty-percent removal of total
suspended solids from the first flush. In addition, any development in the watersheds
of a coastal Pond or other nitrogen sensitive embayments shall incorporate physical
treatment processes to Remove nitrogen at an efficiency rate of 30% or greater.
Development in the watershed of a freshwater pond shall incorporate phosphorous
removal at a design rate of 50% or greater.
(d) The treatment volume (Vt) for the "first flush" shall be determined by the following
formula: Vt = (1.25/12 inches)(Rv)(Site Area in square feet), where Rv = 0.05 +
0.009(I), and I = the % impervious area. Impervious area is defined as any manmade
cover that is not vegetated. In residential areas, the % impervious is obtained from the
TR-55 table "Runoff Curve Numbers for Urban Areas, Residential District by
Average Lot Size."
(e) Compliance with FWR 10.16(3) shall be consistent with FWR 2.00 Stormwater
Management.
FWR 10.17
Wildlife Habitat Evaluations
(1) Measuring Adverse Effects on Wildlife Habitat
(a) To the extent that a proposed project will Remove, dredge, Fill, build upon, degrade
or otherwise Alter other Wildlife habitat beyond the thresholds permitted under
FWR 10.36(7)(e), 10.37(7)(e), 10.54(5)(e), 10.56(4)(a)4. and 10.57(4)(a)3., such
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alterations may be permitted only if they will have no Adverse effects on Wildlife
habitat. Adverse effects on Wildlife habitat mean the alteration of any habitat
characteristic listed in FWR 10.17(2), insofar as such alteration will, following two
growing seasons of project completion and thereafter (or, if a project would eliminate
trees, upon the maturity of replanted saplings) substantially reduce its capacity to
provide the important Wildlife habitat functions listed in FWR 10.17(2). Such
performance standard, however, shall not apply to the habitat of rare species, which
are covered by the performance standards established under FWR 10.18 and 10.21
through 10.60.
(b) An evaluation by the Applicant of whether a proposed project will have an Adverse
effect on Wildlife habitat beyond permissible thresholds shall be performed by an
individual with at least a master's degree in Wildlife biology or ecological science
from an accredited college or university, or other competent professional with at least
two year's experience in Wildlife habitat evaluation.
(c) Any Wildlife habitat management practices conducted by the Division of Fisheries
and Wildlife, and any Wildlife management practices of any individual or
organization if reviewed and approved in writing by said Division, or by the Cape
Cod Commission shall be presumed to have no Adverse effect on Wildlife habitat.
Such presumption is rebuttable, and may be overcome by a clear showing to the
contrary.
(2) Wildlife Habitat Characteristics of Resource Areas:
(a) Inland Banks. The topography, soil structure, and plant community composition and
structure of Banks can provide the following important Wildlife habitat functions:
1.
Food, shelter and migratory and Breeding areas for Wildlife
2.
Overwintering areas for mammals and reptiles.
(b) Land Under Water Bodies. The plant community and soil composition and structure,
hydrologic regime, topography and water quality of Land under water bodies can
provide the following important Wildlife habitat functions:
1.
Food, shelter and Breeding areas for Wildlife;
2.
Overwintering areas for mammals, reptiles and amphibians.
(c) Lower Floodplains: Land Subject to Flooding and Land Subject to Coastal Storm
Flowage. The hydrologic regime, plant community and soil composition and
structure, topography, and proximity to water bodies of lower floodplains can provide
the following important Wildlife habitat functions:
1.
Food, shelter, migratory and overwintering areas for Wildlife;
2.
Breeding areas for birds, mammals and reptiles.
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(d) Banks of Estuaries. The hydrologic regime, plant community and soil composition
and structure, topography, and proximity to water bodies of Banks of estuaries can
provide the following important Wildlife habitat functions:
(f)
1.
Food, shelter, and migratory areas for Wildlife;
2.
Breeding areas for birds, mammals and reptiles.
Banks of Salt Ponds. The hydrologic regime, plant community and soil composition
and structure, topography, and proximity to water bodies of Banks of Salt ponds can
provide the following important Wildlife habitat functions:
1.
Food, shelter, and migratory areas for Wildlife;
2.
Breeding areas for birds.
(3) Restoration and Replication of Altered Habitat. Alterations of Wildlife habitat
characteristics beyond permissible thresholds may be restored on site or replicated off site
provided it is permitted by the applicable section of FWR 10.18 and 10.21 through 10.60,
and performed in accordance with the following general Conditions, and any additional
Conditions the Commission deems necessary to ensure that the standard in
FWR 10.17(1)(a) is satisfied:
(a) The surface of the replacement area to be created ("the replacement area") shall be
equal to that of the area that will be lost ("the lost area");
(b) The elevation of Groundwater relative to the surface of the replacement area shall be
approximately equal to that of the lost area;
(c) The replacement area shall be located within the same general area as the lost area. In
the case of Banks and land under water, the replacement area shall be located on the
same water body or waterway if the latter has not been rechanneled or otherwise
relocated. In the case of Bordering Land subject to flooding, the replacement area
shall be located approximately the same distance from the water body or waterway as
the lost area. In the case of Vernal pool habitat, the replacement area shall be located
in close proximity to the lost area;
(d) Interspersion and diversity of vegetation, water and other Wildlife habitat
characteristics of the replacement area, as well as its location relative to neighboring
Wildlife habitats, shall be similar to that of the lost areas, insofar as necessary to
maintain the Wildlife habitat functions of the lost area;
(e) The project shall not Alter five or more acres of Land subject to flooding, land under
water, and/or Land subject to coastal storm flowage found to be Significant to the
protection of Wildlife habitat, 500 feet or more of Bank found to be Significant to the
protection of Wildlife habitat (in the case of a Bank of a Stream or river, this shall be
measured on each side of said Stream or river), 250 feet or more of Bank of an
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Estuary found to be Significant to the protection of Wildlife habitat, or 100 feet or
more of Bank of a Salt pond found to be Significant to the protection of Wildlife
habitat.
(f)
If the replacement area is located in an area subject to Chapter 235 of the Code of
Falmouth, there shall be no Adverse effect on the existing important Wildlife habitat
functions of said area as measured by the standards of FWR 10.17;
(g) The "thresholds" established in FWR 10.36(7)(e), 10.37(7)(e), 10.54(5)(e),
10.56(4)(a)4. and 10.57(4)(a)3. (below which alterations of Resource areas are not
deemed to impair capacity to provide important Wildlife habitat functions) shall not
apply to any replacement area; and
(h) The replacement area shall be provided in a manner which is consistent with all other
General performance standards for each Resource area in FWR 10.18 and 10.21
through 10.60.
FWR 10.18 Resource Area Buffer Zone. (Revised 8-13-2003; revised effective 2-1-2008)
(1) Introduction. The resource area buffer zone is an integral part of a wetland resource
system. The entire 100 feet of the resource area buffer zone is presumed to be significant
to the protection of the resource area values of the wetland. Buffer areas are defined as
resource areas under the Bylaw21 and no one may remove, fill, dredge, build upon, degrade
or otherwise alter a buffer zone without full compliance with these buffer regulations.
Adverse impacts to resource area buffer zones are likely to have cumulative effects on the
following resource area values: protection of public and private water supply, groundwater,
flood control, erosion and sediment control, storm damage protection, water pollution control,
fisheries, shellfish, wildlife habitat, agriculture, aesthetics, recreation, and aquaculture.
Some wetland resources are more sensitive to disturbance than others and will require a larger
No Disturbance Zone adjacent to the resource to be adequately protected than other resource
areas may require. If the No Disturbance Zone is disturbed by previous activities, and if the
outer buffer zone (e.g., the area landward of the No Disturbance Zone) is in a natural state, it
can provide supplemental protection.
Naturally vegetated resource area buffers (buffers) reduce the adverse impacts of adjacent land
uses to wetlands. A buffer of land in a naturally vegetated condition protects an adjacent
wetland, in part, by reducing runoff; absorbing nitrate, phosphorous, and other chemical
pollutants; by filtering suspended sediment; and by stabilizing banks and channels. For
example, a buffer of mature trees can absorb up to 14 times more water than an equivalent area
of grass. In addition, the organic litter within a naturally vegetated buffer can remove 50% to
100% of sediments carried in runoff. Bank and stream channel stability is dependent on the
anchoring ability of root systems and slowing of runoff velocity and flow diffusion provided by
plants within the buffer.
21
Editor’s Note: See Ch. 235, Wetlands Protection.
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Trees in the buffer provide important functions not provided by any other plant type. Trees
provide shade to moderate water temperatures, levels of dissolved oxygen and water flow. They
serve as windbreaks to moderate wind stress and shear during storms, and provide nesting,
roosting and perching areas for birds, and other wildlife. The transitional assemblage of trees,
shrubs and groundcover (containing both wetland and upland elements) frequently found in
buffer zones has been found significant to the support of a greater number of native and
specialist wildlife species in the interior of resource areas, which they border. Trees and other
vegetation, if undisturbed or minimally disturbed, slow the rate of surface runoff providing
flood control and reducing down-gradient storm damage.
The uplands immediately adjacent to the wetland vary in their ability to reduce adverse effects
of development, most importantly in relationship to slope and vegetative cover. Buffers with
dense vegetative cover on slopes less than 15% are most effective for water quality functions.
Dense shrub or forested vegetation with steep slopes provide the greatest protection from direct
human disturbance. Appropriate vegetation for wildlife habitat depends on wildlife species
present in the wetland and buffer.
Buffers not only protect the quality of the adjacent wetland habitat, but also provide critical
habitat for many species of wildlife. Buffers provide essential habitat for feeding, roosting,
breeding and rearing of young, dispersal, migration, and as a refuge from predators and
weather. They also provide essential habitat for wetland-associated species for use in feeding,
roosting, breeding and rearing of young. Without the adjacent buffer to provide these functions,
the function of the wetland is impaired. In addition, buffers reduce the adverse impacts of
human disturbance on wetland habitat by blocking noise and glare; reducing sedimentation and
nutrient input; reducing direct human disturbance from dumped debris, cut vegetation, and
trampling; and providing visual separation. Road crossing or driveways within the buffer can
impede movement of animals and can contribute to increased mortality.
The ability of a resource area buffer to protect a wetland resource, and to provide habitat,
increases with buffer width and continuity. For example, as buffer width increases, direct
human impacts, such as dumped debris, cut or burned vegetation, fill areas, and trampled
vegetation, will decrease. Similarly, the numbers and types of wetland-dependent and wetlandrelated wildlife that can depend on the wetland and buffer for essential life needs increases as
buffer width increases. The effectiveness of riparian forests to perform ecological functions
including acting as dispersal corridors between forest fragments, enhancing the biodiversity of
landscapes, and helping to improve water quality depends upon the width of the riparian forest.
Also, the effectiveness of removing sediments, nutrients, bacteria, and other pollutants from
surface water runoff increases with wider buffers.
Appropriate buffer widths vary according to the desired resource area buffer functions, values,
and sensitivity to disturbance, and buffer function(s) and characteristics, and adjacent land use
and impacts. Wetlands that are extremely sensitive or that have particularly important functions
require larger buffers to protect sensitive resources from disturbances that might be a lesser
threat at another site. Wetlands adjacent to construction sites and many post-development
activities also need greater buffers because of the potential for erosion and sedimentation,
debris disposal, vegetation removal and noise. Post-construction impacts are variable depending
on the land use, but residential and commercial land uses, in particular, can have significant
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WETLANDS REGULATIONS
FWR 10.18
impacts. Land use is associated with yard maintenance debris, domestic animal predation,
removal of vegetation and trampling. Similarly, buffers for wildlife must maintain plant
structure for the maximum distance allowed by the Bylaw; rare or particularly sensitive species
may require even larger buffers to prevent their loss from disturbance or isolation of
subpopulations.
Generally, buffers less than 50 feet wide are ineffective in protecting wetlands or providing
wildlife habitat functions. Buffers larger than 50 feet are necessary to provide wildlife habitat
and to protect wetlands from continuing activities such as inputs of sediments and nutrients,
direct human disturbance, to protect sensitive species from adverse impacts, and to protect
wetlands from the adverse effects of changing water quality, including but not limited to
nutrient concentrations, temperature, salinity and dissolved oxygen concentrations.
To retain wetland-dependent wildlife in important wildlife areas, buffers need to retain plant
structure for the maximum distance allowed by the Bylaw. This is especially the case where
open water is a component of the wetland or where the wetland has heavy use by migratory
birds or provides feeding for resident nesting species as well. The size of the buffer width
needed would depend upon disturbance from adjacent land use and sensitivity of the resources
involved. Priority species may need even larger buffers to prevent their loss due to disturbance
or isolation of subpopulations.
When proposing alterations of buffer areas, the applicant must overcome a strong presumption
of adverse impact on the adjacent wetlands and their functions and values. The Commission
will require a No Disturbance Zone for resource areas specified in FWR 10.02(1)(a) through
(e). No construction activity, removal of vegetative cover or alteration of topography is allowed
in the No Disturbance Zone. If the No Disturbance Zone is in a naturally vegetated state, the
Commission will include a No Structure Zone adjacent to the No Disturbance Zone. These
zones are established because alteration of these areas within a resource area buffer invariably
results in the alteration of the adjacent resource area. Wetland alterations observed during
construction include siltation, overgrading or deposition of construction debris. Alterations
observed after construction include increased runoff, siltation and temperature or nutrient
loading resulting from the change in land use immediately adjacent to the wetlands, as well as
unregulated filling, cutting of vegetation, extension of lawns or the deposition of yard waste
from improper land use . These subsequent alterations cannot be regulated without the
imposition of the restricted zones detailed above. Since the Commission cannot allow
unregulated alterations of wetlands, these restricted zones will likely be imposed on all projects.
(2) Definitions, Critical Characteristics and Boundary.
(a) The resource area buffer is an area adjacent to a resource area specified in
FWR 10.02(1)(a) through (h) [see FWR10.02 (1)(i)], and is "lands within 100 feet of
any of the aforesaid resource areas" as specified in Section 2: Activities subject to
regulation under the Bylaw [FWR 10.02(2)].
(b) The boundary of the resource area buffer is the distance measured horizontally from
the resource to 100 feet landward of the resource.
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(c) For resource areas listed in FWR 10.02 (1) (a) through (e), the resource area buffer is
divided into two zones: Zone A and Zone B, and work in these buffer zones shall be
regulated as prescribed below in the remainder of this section. Resource area buffers
for resources listed in FWR 10.02 (1) (f) through (h) are not subject to FWR 10.18
(3) through (10).
(d) Zone A is a no disturbance area that is the portion of a resource area buffer adjacent
to resource areas specified in FWR 10.02(1) (a) through (e) that is closest to the
resource area(s). Zone A shall be kept in a naturally vegetated state and the
Commission may require re-vegetation of a previously altered Zone A to conform
with the purposes and requirements of the bylaw.
(e) Zone B is the outer portion of the resource area buffer (further from the resource area
than Zone A) in which limited work, conditioned appropriately by the Commission,
may occur.
(f)
Redevelopment means
1.
Replacement, rehabilitation or expansion of legally existing structures, and also
2.
Addition, rehabilitation, or replacement of accessory structures and
appurtenances such as, but not limited to, swimming pools, sheds, freestanding
garages, decks, patios, and landscape features, and improvement of existing
roads, on a previously developed site.
(g) "Naturally vegetated" means a plant community representing a normal successional
developmental stage (appropriate to the habitat) that would develop without continual
interference by man.
(h) "Native" tree, shrub, herb or grass means those plant species that are indigenous to
Cape Cod (i.e., Barnstable County). These species can be found in The Vascular
Plants of Massachusetts. A County Checklist by the Massachusetts Division of
Fisheries and Wildlife.
(3) Presumptions.
(a) Where a project involves removing, building upon, degrading, or otherwise altering
of a resource area buffer zone adjacent to a resource area specified in FWR 10.02(1)
(a) through (e), the Commission shall presume that such area is significant to, or will
have a cumulative effect upon, the resource area values specified in FWR 10.18(1).
This presumption is rebuttable and may be overcome upon a showing by a
preponderance of credible evidence that said land does not play a role in the
protection of said resource area values. In the event that the presumption is deemed to
have been overcome, the Commission shall make a written determination to this
effect, setting forth the grounds.
(b) Where a project:
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WETLANDS REGULATIONS
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1.
Involves removing, building upon, degrading, or otherwise altering of lands
within 100 feet of any of the aforesaid "resource areas" as specified in Section
2: Activities subject to regulation under the Bylaw [FWR 10.02(2)], and said
resource area is specified in FWR 10.02(1)(a) through (e); and
2.
The resource area buffer No Disturbance Zone, Zone A, as specified in
FWR 10.18(5)(a)(1) through (4) is not naturally vegetated, so that buffer
function is already compromised, the Commission shall presume that there is a
significant or cumulative effect upon the resource area values specified in
FWR 10.18(1). This presumption is rebuttable and may be overcome upon a
clear showing that there is no significant or cumulative effect on the protection
of said resource area values. In the event that the presumption is deemed to
have been overcome, the Commission shall make a written determination to
this effect, setting forth the grounds. If the Commission finds that the subject
buffer area was altered after April 2, 1979, it shall first be determined if the
alteration was made in compliance with the Bylaw. If the Commission finds
that the buffer area was altered in violation of the Bylaw, the presumption
cannot be overcome unless there are findings that demonstrate by a
preponderance of credible evidence that the buffer functions have not been
compromised [see FWR 10.18(7)(d)].
(4) General Performance Standards.
A resource area buffer zone that includes a no disturbance area shall be required for all
activities adjacent to resource areas specified in FWR 10.02(1) (a) through (e). Any resource
area created, restored or enhanced as compensation for approved resource area alterations shall
also include the buffer zone required for the corresponding resource area(s). All buffer zones
shall be measured from the resource area boundary as surveyed in the field.
The width of the buffer no disturbance area (Zone A) shall be determined according to
FWR 10.18(5) (a). If the no disturbance area (Zone A) is in a naturally vegetated undisturbed
condition, the width of buffer zone as specified in FWR 10.18(5) (a) is presumed to provide a
minimum acceptable level of protection. Except as otherwise specified in FWR 10.18(10),
resource area buffer Zone A shall be maintained in a naturally vegetated condition.
(5) Buffer Zone Widths.
The regulatory one-hundred-foot buffer zone is divided into two zones: 1) No disturbance area
(Zone A) and 2) the outer buffer area (Zone B). The width of Zone A, the no disturbance area,
is based on which wetland resource specified in FWR 10.02(1) (a) through (e) is of concern and
resource area functions, values and sensitivity to disturbance, buffer functions and
characteristics, and land use impacts.
(a) The no disturbance area, Zone A, extends from the resource area to the boundary
with the outer buffer area, Zone B. The width of the no disturbance area will differ
based on which wetland resource area specified in FWR 10.02(1) (a) through (e) is of
concern.
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1.
2.
3.
FALMOUTH CODE
FWR 10.18
The width of the No Disturbance (Zone A) area shall be 100 feet for the
following resources:
a.
Salt marsh;
b.
Vernal pools;
c.
Freshwater wetlands bordering a water body within Zone 2 of a public
water supply;
d.
Any resource area specified in FWR 10.02(1) (a) through (e) located
within the ACEC with the exception of FWR 10.02(1)(a)(1); and
e.
From the upland edge of any resource area listed in FWR 10.02(1)(a)
through (e) for which there is credible evidence of the presence of any
endangered, threatened, or species of special concern within that resource
area and on or adjacent to the site of the proposed activity.
The width of the no disturbance (Zone A) area shall be 75 feet for the
following resources:
a.
An anadromous/catadromus fish run;
b.
An eroding coastal bank located in a velocity zone; see also
FWR 10.30(7)
c.
Land under water bodies;
d.
Land under the ocean;
e.
Land under a salt pond;
f.
Banks of salt ponds, estuaries, and ponds, lakes, and streams, which flow
throughout the year; and
The width of the no disturbance (Zone A) area shall be 50 feet for the
following resources:
a.
Land subject to tidal action;
b.
Freshwater wetlands not listed in FWR 10.18(5) (a)(1) and (2);
c.
Banks of intermittent streams;
d.
An eroding coastal bank not in a velocity zone; noneroding coastal bank
in a velocity zone
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4.
WETLANDS REGULATIONS
FWR 10.18
e.
All other coastal banks adjacent to other resources as defined in
FWR 10.02(1)(a) through (e), other than those listed above in
FWR 10.18(5)(a)(2).
f.
Coastal dunes;
g.
Coastal beaches;
h.
Rocky intertidal shore; and
The width of the no disturbance (Zone A) area shall be 25 feet for the
following resources: [Effective 12-8-2010]
a. Noneroding coastal banks not in a velocity zone with a slope greater than
4:1 and not adjacent to other wetland resources as defined in FWR
10.02(1)(a) through (e), but within 100 feet of other coastal resources as
defined in FWR 10.02(a) through (e).
(b) The width of Zone B, the outer buffer area, extends from the landward boundary of
Zone A, the no disturbance area, to a distance 100 feet from the resource. If Zone A
is not given a specific width in FWR 10.18(5)(a), then Zone B is presumed to start at
the boundary of the resource area. The width of Zone A (no disturbance area) plus the
width of Zone B (outer area) shall always equal 100 feet.
(6) Repair and routine maintenance of a Legally Permitted Facility, and routine maintenance
of legally permitted landscaping.
The Commission shall allow normal repairs of a legally permitted facility that lies within the
buffer zone if the work proposed does not require any disturbance to any resource area or buffer
zone to a resource area. Routine maintenance which does not alter any of the naturally
vegetated buffer area does not normally require Commission review or approval. Conservation
staff can answer specific questions concerning routine maintenance and normal repairs.
Maintenance and repairs that require operating heavy equipment such as, but not limited to,
trucks, cranes, bulldozers, and cement mixers in buffer areas is not routine.
(7) Work within a 100 foot buffer zone resource area, with the exception of moderate
activities defined in 10.18(10).
(a) If the no disturbance area (Zone A) is a naturally vegetated buffer, no work may take
place in Zone A, and the limit of work must lie outside (landward of) Zone A. Any
work in Zone B must comply with the requirements of FWR 10.18(7)(e)(5).
(b) Limited work which may temporarily or permanently alter the resource area buffer,
when conditioned appropriately, may be permitted. Nevertheless, within the context
of permanent disturbance the Conservation Commission may set specific conditions
prohibiting or restricting those forms of work and activities in the buffer resource
deemed potentially harmful to the resource area values, such as the use of herbicides,
pesticides, and fertilizer, removal of trees, use of interceptor drains, or installation of
in-ground sprinkler systems for irrigating in the adjacent upland resource.
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(c) The Commission may allow work to redevelop legally and previously developed
resource area buffer Zones A or B that do not meet the buffer requirements of
FWR 10.18(5)(a)(1) through (4), provided the proposed work meets the requirements
of FWR 10:18(7)(e). Previously developed resource area buffer means the site has
impervious surfaces from existing structures or pavement, absence of topsoil,
junkyards, abandoned dumping grounds or lack of a naturally vegetated condition
(e.g. lawn, etc.). The Commission shall make appropriate inquiry and make
appropriate findings that the previous developed buffer areas were legally altered.
The Commission can review and consider the Town of Falmouth aerial photographs.
Evidence of a legally altered buffer area must include documented photographs,
either aerial or land based, or written official records (those maintained by a
government agency). Legally developed means the development occurred prior to
adoption of the Wetlands Bylaw (April 2, 1979) or in accordance with the Wetlands
Bylaw.22 The Commission shall take into account the existing use and the proposed
use in determining appropriate mitigation for re-development.
(d) Where the resource area buffer zone has been illegally altered [see FWR 10.18(3)]
and the applicant cannot overcome the presumption in FWR 10.18(3)(b)(2) that the
buffer function is impaired, then the applicant must provide a buffer restoration plan
that will restore the buffer function to substantially reduce cumulative negative
impact to the wetland resources specified in FWR 10.02(1)(a) through (e).
(e) Buffer restoration (mitigation planting) is required for any redevelopment work
activity in the one-hundred-foot buffer zone (Zone A and Zone B). It is the goal of
mitigation plantings for redevelopment to restore the entire no disturbance area (Zone
A) to a naturally vegetated state and, if that is not possible due to structures existing
prior to the redevelopment request, then to revegetate the outer buffer area (Zone B)
to provide protection for the resources.
22
1.
For those resources listed in 10.18(5)(a)(1) and (2), any expansion or addition
of impervious surfaces (e.g. expansion of primary structure such as a house;
addition of accessory structures) in Zone A must not move closer to the
resource area than the present primary structure, or no closer than 25 feet from
the resource, whichever is furthest from the resource area. For those resources
listed in 10.18(5)(a)(3) and (4), expansion or addition of impervious surfaces
(e.g. expansion of primary structure such as a house; addition of accessory
structures) in Zone A must not move closer to the resource area than the
present primary structure. For all resources listed in FWR 10.18(5)(a),
accessory structures in Zone A located closer to the resource than the primary
structure may be modified, but the amount of impervious surface or pervious
surface that cannot support vegetation in this area must not be increased.
2.
Redevelopment within Zone A shall require a 3 to 1 mitigation for the increase
in impervious area and for any increase in pervious areas that will not support a
naturally vegetated buffer (e.g., pervious patios, driveways, and gardens). All
Editor’s Note: See Ch. 235, Wetlands Protection.
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mitigation plantings must be placed in buffer Zone A. Any redevelopment in
Zone A must occur in an area that lacks a naturally vegetated buffer. Any
increase in impervious surface or in pervious area that will not support a
naturally vegetated buffer in Zone A must leave room for the required buffer
plantings. No increase of impervious surface or pervious areas that will not
support a naturally vegetated buffer in Zone A is permitted if the required
mitigation cannot be provided in Zone A.
3.
Any increase in impervious surface in buffer Zone B will require a 2 to 1
mitigation and these plantings must be placed in buffer Zone A, but if prior to
redevelopment, the existing area available for mitigation in Zone A is not
sufficient to accommodate mitigation plantings for redevelopment in Zone B
(because of prior development in Zone A), then the area of mitigation that
cannot be accommodated in Zone A shall be placed in Zone B.
4.
The total area of mitigation plantings required shall not exceed that which
would completely re-vegetate an area equivalent to the No Disturbance area
(Zone A) on the lot. However, additional, voluntary, plantings of native species
are encouraged.
5.
No mitigation buffer plantings shall be required for work within Zone B where
the existing naturally vegetated buffer meets the resource area buffer distances
of FWR 10.18(5)(a), but an improvement to any of the resource areas described
in FWR 10.02(1)(a) through (e) must be provided. Improvements to other
resources may include, but is not limited to, planting of native landscaping or
wildflower meadows in preference to lawns, removal or control of invasive
species and replanting with native woody species, and supplementing the
existing buffer with native trees and shrubs.
6.
The area available for mitigation plantings in Zone A, the no disturbance area,
is the total area of Zone A minus existing impervious area and pervious areas
that will not support a naturally vegetated buffer (e.g., pervious patios,
driveways, and gardens) in Zone A prior to redevelopment. For the purposes of
calculating the required mitigation plantings, the ratio of mitigation plantings
shall be in proportion (3:1 or 2:1) to the increase in impervious areas or
structures and pervious landscape features including, but not limited to,
foundations, decks, terraces, driveways, patios, walkways, etc.
7.
The mitigation plantings shall be in an area of Zone A that is not already
naturally vegetated and is closest to the resource area or, if there is an already
existing vegetated buffer nearest to the resource, then adjacent to the vegetated
buffer area between the structure and the resource.
8.
Mitigation plantings in Zone B should generally be placed adjacent to any
existing buffer plants to maximize the overall buffer width along the resource
area boundary.
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(f)
FALMOUTH CODE
FWR 10.18
9.
To allow for adequate space for structure maintenance without damage to
mitigation plantings, all mitigation plantings must be placed at least 10 feet
from any existing or proposed structure. Plants, regardless of species, closer
than 10 feet to a structure shall not be considered as mitigation, but can be
considered an improvement.
10.
Any trees removed in the course of redevelopment in either Zone A or Zone B
must be replaced with native trees, at a minimum of a 1:1 ratio (tree for tree)
for trees removed and, at a maximum, caliper inch for caliper inch, except if the
entire lot is already densely populated with native trees; then additional woody
shrubs shall be planted as understory. If the site is lacking trees among its
vegetation, more than a 1:1 ratio may be required, and additional shrubs
surrounding these trees shall be added so that the buffer functions of the trees
removed during redevelopment can be replaced and enhanced as the vegetation
matures.
All work within resource area buffer zones to resources defined in FWR 10.02 (a)
through (h) shall provide for stormwater management according to FWR 10.16(3)
(8) Restoration on-site of a degraded resource area buffer.
Restoration shall include:
(a) Removal of all debris, but retain any native trees and mature native shrubs and
groundcover (as defined by The Vascular Plants of Massachusetts. A County
Checklist 1999 by the Massachusetts Division of Fisheries and Wildlife); non-native
species with appealing habitat value may be allowed to remain;
(b) Grading to a topography which reduces runoff and increases infiltration;
(c) Coverage by topsoil at a depth consistent with natural conditions at the site;
(d) Seeding and planting with an erosion control seed mixture, followed by the planting
of woody indigenous species that are appropriate for the habitat and are found on the
current approved Falmouth Conservation Commission plant list. No dwarf species
may be used.
(e) Mitigation buffer plantings shall include a minimum of one native tree and shall
include additional trees at a ratio of a minimum of one tree per every 1,000 square
feet of required buffer plantings. Any trees removed within the one-hundred-foot
resource area buffer defined in FWR 10.02(1)(a) through (e) as a result of
redevelopment must be replaced with native tree species at locations acceptable to the
Commission [see FWR 10.18(7)(e)(10)]. In rare circumstances, the Commission may
determine, based on a preponderance of credible evidence, that planting of trees is
not appropriate due to extreme environmental (e.g., regular exposure to high winds
and salt spray, steep banks) or other conditions on a particular site. In such cases the
Commission shall make a finding to this effect and may require that additional shrubs
be included in the required buffer plantings.
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(f)
WETLANDS REGULATIONS
FWR 10.18
Woody indigenous species buffer plantings may be supplemented by an understory of
native grasses and herbs (including ferns, groundcovers and perennials). Native
grasses and herbs alone cannot be used to replace woody indigenous species, and
areas planted in only native grasses and herbs shall not be counted as mitigation area.
(g) All planted mitigation areas shall be allowed to grow to their full and mature form,
and any pruning shall be in compliance with FWR 10.18(10)(b)
(h) All lawns within the resource area buffers to resources defined in FWR 10.02(1) (a-e)
shall be planted and managed according to the Falmouth Friendly Lawn guidelines
and safe organic practices protocols. Lawns may be irrigated for two growing seasons
after planting, but not thereafter.
(9) Temporary degradation and restoration of a resource area buffer.
The Commission may permit activities within the resource area buffer that will alter the buffer
vegetation temporarily, but will result in a complete restoration of the buffer [see FWR 10.18
(8)]. The Commission may require a performance bond for such activities.
(10) Moderate activities Proposed in a Resource Area Buffer.
The Resource Area Buffer zone should be left intact in a naturally vegetated condition with the
exception of activities regulated under FWR 10.18. However there are some activities that may
be permitted by the Commission that are not likely to have a significant or cumulative effect on
the resource area values of the Bylaw, provided the other provisions of FWR 10.00 are met.
These proposed activities must be reviewed by the Conservation Department to determine the
appropriate permitting procedures, and to determine what, if any, mitigation is required. These
activities are:
(a) Fencing, provided it will not constitute a barrier to wildlife movement;
(b) Vista pruning; according to the following guidelines:
1.
If a vista window already exists (e.g. an opening 15 feet high by 25 feet wide),
vista pruning may not be allowed.
2.
One vista window may be cut that is no more than 15 feet from top to bottom
by 25 feet wide depending on the existing view.
3.
Vista window vegetation removal is minimized to avoid creating "holes"
through uplimbing of the mid-story vegetation. A variety of vegetation layers
should be preserved (shrub understory, lower limbs/mid-canopy, top canopy).
4.
Minimal uplifting of tree branches as measured from existing grade is allowed.
Uplifting may not exceed 1/3 of the tree's height with no more than 10% of the
tree canopy taken off any tree. No uplimbing of trees to form "palm trees" is
allowed.
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FWR 10.18
FALMOUTH CODE
FWR 10.18
5.
No trees are to be cut by "pollarding" or "topping" (shearing the top in a
horizontal plane).
6.
Some sapling trees (not all) may be removed that are three inches diameter
breast height (dbh) or less. If saplings comprise the majority of the proposed
view area, selective removal shall be specified by Conservation staff.
7.
Deadwood should be preserved whenever possible, especially trees four inches
or greater diameter at breast height, to retain potential feeding areas and nesting
cavities for birds.
8.
Deadwood located in a wetland shall not be removed.
9.
Shrubs may be pruned down to five feet above the existing grade when
necessary to obtain a view. Shrubs on a down-slope that do not impair the view
shall not be cut.
10.
Non-native vines growing up trees or over shrubs (e.g., Bittersweet,
Boston/English Ivy, Porcelainberry) shall be cut and should be removed if
possible. Native vines, such as Virginia Creeper, shall not be cut.
11.
Red cedars may not be cut if in a window view, though light thinning may be
allowed on dead trees. American holly and beech trees should not be cut.
12.
Poison Ivy can be removed within four feet of the edge of a path or grass areas.
13.
Vista pruning permits are for the specified pruning only and do not include
maintenance in perpetuity. Any subsequent pruning must be done under an
extension or a new permit application.
(c) Plantings of native species of trees, shrubs, or groundcover, but excluding lawns
regardless of species composition;
(d) The conversion of impervious surfaces to vegetated surfaces, provided erosion and
sedimentation controls are implemented during construction;
(e) Activities that are temporary in nature, have negligible impacts, and are necessary for
planning and design purposes (e.g., installation of monitoring wells, exploratory
borings, sediment sampling and surveying);
(f)
Pervious trails of a width four feet or less;
(g) Nonpermanent wildlife watching blinds; or
(h) Short-term scientific or educational activities.
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FWR 10.19
FWR 10.19
WETLANDS REGULATIONS
FWR 10.21
Rare Species
(1) Introduction.
The protection of rare species is Significant to the protection of fisheries and Wildlife habitat.
Rare species can be animals or plants, and are not necessarily dependent upon Coastal wetlands
or Freshwater wetland during their life cycle. Only a small portion of the areas subject to
protection under Chapter 235 of the Code of Falmouth have rare species present.
(2) Definition and Boundary:
(a) Rare species means those species officially listed as endangered, threatened, of
special concern, or on the "watch list" by the Massachusetts Division of Fisheries and
Wildlife under 321 CMR 8.00, regardless of their preference for specific habitat.
(b) The habitat site of rare species is determined by:
1.
Sightings on file with the Natural Heritage Program;
2.
Data on file with the Commission that was available prior to the filing of the
Permit application; or
3.
Evidence of the presence of such species presented at a public hearing for the
Permit application; together with documentation of the habitat needs and
species range.
(3) Presumption.
Any project proposed in a habitat site of rare species shall be presumed to have an Adverse
effect on Wildlife habitat. This presumption is rebuttable and may be overcome upon a clear
showing that such habitat site is does not play a role in 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 the grounds.
(4) General Performance Standards.
No project shall be permitted which will have any Adverse effect on habitat sites of rare
species.
Falmouth Wetland Regulations
Part II Coastal
FWR 10.21:
Introduction
FWR 10.21 through 10.40 apply to all work subject to Chapter 235 of the Code of Falmouth,
which will Remove, dredge, Fill, build upon, degrade or otherwise Alter any Coastal Beach,
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FWR 10.22
FALMOUTH CODE
FWR 10.23
coastal Dune, tidal Flat, Coastal wetland, Land subject to coastal storm flowage, Coastal Bank,
Bank of an Estuary, Bank of a Salt pond, Land subject to tidal action, or Land under an Estuary,
under a Salt pond, under the Ocean or under certain Streams, Ponds, rivers, Lakes or Creeks
within the coastal zone that are anadromous/catadromous fish runs or the lands and waters
within the Black Beach\Great Sippewissett Marsh District of Critical Planning Concern or the
Lands and waters within the Waquoit Bay Area of Critical Environmental Concern. This Part is
in addition to and does not change the provisions set forth in FWR 10.01 through FWR 10.19.
FWR 10.21 through 10.40 are intended to ensure that development along the coastline is
located, designed, built and maintained in a manner that protects the public Resource area
values in the coastal resources listed in Chapter 235 of the Code of Falmouth. The proponent of
the work must submit sufficient information to enable the Commission to determine whether
the proposed work will comply with FWR 10.21 through 10.40. Any proposed work may be
subject to the requirements of sections concerning Coastal Beaches, coastal Dunes, Land
subject to coastal storm flowage, and Land containing shellfish. Thus, in order to determine
which provisions apply to a proposed project, FWR 10.00 must be read in its entirety. Each
coastal resource section begins with an introduction. The introduction identifies the Resource
area values of Chapter 235 of the Code of Falmouth to which that resource is or is likely to be
Significant and describes the characteristics or factors of the resource which are critical to the
protection of the Resource area values to which the resource is Significant. FWR 10.21 through
10.40 are in the form of performance standards and shall be interpreted to protect those
characteristics and resources to the maximum extent permissible under Chapter 235 of the Code
of Falmouth.
The performance standards are intended to identify the level of protection the Commission must
impose in order to contribute to the protection of the Resource area vales of Chapter 235 of the
Code of Falmouth. It is the responsibility of the Commission to order specific measures and
requirements for each proposed project which will ensure that the project is designed and
carried out consistent with the required level of protection. The Commission must then issue a
Permit which is understandable and enforceable.
FWR 10.22:
Purpose
FWR 10.21 through 10.40 are promulgated pursuant to Chapter 235 of the Code of Falmouth
and are intended to implement it. They are further intended to establish criteria and standards
for the uniform and coordinated administration of the provisions of Chapter 235 of the Code of
Falmouth.
FWR 10.23:
Additional Definitions for FWR 10.21 through 10.40
The definitions contained in FWR 10.23 apply to and are valid for FWR 10.21 through 10.40.
The following definitions are for terms used throughout FWR 10.21 through 10.40. Other terms
that are used only in specific sections of FWR 10.21 through 10.40 are defined in those
sections.
Coastal engineering structure means, but is not limited to, any breakwater, bulkhead, groin,
jetty, revetment, seawall, weir, riprap gabions, marine mattress, sandbags, or any other structure
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FWR 10.24
WETLANDS REGULATIONS
FWR 10.24
that is designed to Alter wave, tidal or sediment transport processes in order to protect inland or
upland structures from the effects of such processes.
DMF means the Division of Marine Fisheries.
Grain Size means a measure of the size of a material or rock particle that makes up sediment.
Improvement Dredging means any dredging under a license in an area which has not previously
been dredged or which extends the original dredged width, depth, length or otherwise Alters the
original Boundaries of a previously dredged area.
Littoral processes means the movement of sediment, including gravel, sand or cobbles, along
the coast caused by waves or currents.
Maintenance Dredging means dredging under a license in any previously dredged area which
does not extend the originally-dredged depth, width, or length but does not mean improvement
dredging or backfilling.
Marine Fisheries means any animal life inhabiting the Ocean or its adjacent tidal waters or the
land thereunder that is utilized by man in a Recreational and/or commercial manner or that is
part of the food chain for such animal life.
Mean High Water Line means the line where the arithmetic mean of the high water heights
observed over a specific nineteen-year metonic cycle (the National Tidal Datum Epoch) meets
the shore and shall be determined using hydrographic survey data of the National Ocean Survey
of the U.S. Department of Commerce.
Mean Low Water Line means the line where the arithmetic mean of the low water heights
observed over a specific nineteen-year metonic cycle (the National Tidal Datum Epoch) meets
the shore and shall be determined using hydrographic survey data of the National Ocean Survey
of the U.S. Department of Commerce.
Productivity means the rate of biomass production over a period of time.
Turbidity means the amount of particulate matter suspended in water.
Water circulation means the pattern of water movement in coastal waters.
FWR 10.24:
General Provisions
(1) If the Commission determines that a Resource area is Significant to an Resource area value
of Chapter 235 of the Code of Falmouth for which no presumption is stated in the
introduction to the applicable section, the Conservation Commission shall impose such
Conditions as are necessary to contribute to the protection of such Resource area value.
(2) When the Commission determines that a project in one Resource area would adversely
affect another Resource area, the Commission shall impose such Conditions as will protect
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FWR 10.24
FALMOUTH CODE
FWR 10.24
the Resource area value to which each resource are Significant to the same degree as
required in FWR 10.00 concerning each Resource area.
(3) A Determination which finds that a Resource area is not Significant to an Resource area
value to which it is presumed in FWR 10.21 through 10.40 to be Significant, or is
Significant to a Resource area value to which it is presumed to be not Significant, shall be
made on Form F23.
(4) (a) FWR 10.21 through 10.40 do not change the requirement of any other Massachusetts
statute or Falmouth Bylaw. A proposed project must comply with all applicable
requirements of other federal, state, Barnstable County Ordinances, and Town of
Falmouth Bylaws, in addition to meeting the requirements of FWR 10.00. Examples
of such laws which may be applicable are the Coastal Restrictions Act (MGL c. 130,
§ 105), the Ocean Sanctuaries Act (MGL c. 132A, §§ 13 through 16 and 18), the
Mineral Resources Act (MGL c. 21, §§ 54 through 58), the Massachusetts Clean
Water Act (MGL c. 21, §§ 26 through 53), the Waterways laws (MGL c. 91), the
Massachusetts Environmental Policy Act (MGL c. 30, §§ 61 through 62H), the act
establishing the Cape Cod Commission, the Wetlands Protection Act (MGL c. 131
§ 40) and the Scenic Rivers Act (MGL c. 21, § 2. 17B).
(b) If an NPDES Permit for any new point-source discharge has or will be obtained prior
to the commencement of the discharge, the effluent limitations established in such
permit shall be deemed to satisfy the water quality standards established in any
section of FWR 10.21 through 10.40 relative to the effects of the new point-source
discharge on water quality. Such effluent limitations shall be incorporated or shall be
deemed to be incorporated into the permit.
(5) FWR 10.24 is not intended to prohibit the Commission from imposing such additional
Conditions as are necessary to contribute to the Resource area values of Chapter 235 of the
Town of Falmouth where the indicated minimizing measures are not sufficient.
(6) Notwithstanding the provisions of FWR 10.25 through 10.38, the Commission may issue a
permit and impose such Conditions as will contribute to the Resource area values
identified in Chapter 235 of the Code of Falmouth permitting the following limited project
(although no such project may be permitted which will have any Adverse effect on habitat
sites of rare species):
(a) Maintenance and improvement of existing public roadways, sidewalks and bicycle
facilities but limited to widening less than a single lane, adding shoulders, correcting
substandard intersections, and improving drainage systems.
(b) The routine maintenance and repair of road drainage structures including culverts and
catch basins, drainage easements, ditches, watercourses and artificial water
conveyances to ensure flow capacities which existed on August 15, 1998.
23
Editor's Note: Form F is on file in the Conservation Administrator's office and may be examined there during regular
office hours.
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FWR 10.24
WETLANDS REGULATIONS
FWR 10.24
(c) Assessment, monitoring, containment, mitigation, and remediation of, or other
response to, a release or threat of release of oil and/or hazardous material in
accordance with the provisions of 310 CMR 40.0000 and the following general
Conditions (although no such measure may be permitted which is designed in
accordance with the provisions of 310 CMR 40.1020 solely to reduce contamination
to a level lower than that which is needed to achieve "No Significant Risk" as defined
in 310 CMR 40. 0006(10)):
1.
2.
There are no practicable alternatives to the response action being proposed that
are consistent with the provisions of 310 CMR 40.0000 and that would be less
damaging to Resource areas. The alternatives analysis shall include the
following:
a.
An alternative that does not Alter Resource areas, which will provide
baseline data for evaluating other alternatives; and
b.
An assessment of alternatives to both temporary and permanent impacts to
Resource areas; and
Such projects shall be designed, constructed, implemented, operated, and
maintained to avoid or, where avoidance is not practicable, to Minimize
impacts to Resource areas, and to meet the following standards to the
maximum extent practicable:
a.
Hydrological changes to Resource areas shall be Minimized;
b.
Best management practices shall be used to Minimize adverse impacts
during construction, including prevention of Erosion and siltation of
Resource areas in accordance with standard U.S.D.A. Soil Conservation
Service methods;
c.
Mitigating measures shall be implemented that contribute to the protection
of the Resource area values identified in the Bylaw;
d.
No access road, assessment or monitoring device, or other structure or
activity shall restrict flows so as to cause an increase in flood stage or
velocity;
e.
Temporary structures and work areas in Resource areas, such as access
roads and assessment and monitoring devices, shall be removed within 30
days of completion of the work. Temporary alterations to Resource areas
shall be substantially restored to preexisting hydrology and topography.
The surface of any area of disturbed vegetation shall be reestablished with
indigenous wetland plant species immediately following work in said area
and prior to said vegetative reestablishment any exposed soil in the area of
disturbed vegetation shall be temporarily stabilized to prevent Erosion in
accordance with standard U.S.D.A. Soil Conservation Service methods.
At least 75% of the surface of said area of disturbed vegetation shall be
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FWR 10.25
FALMOUTH CODE
FWR 10.25
reestablished with indigenous wetland plant species within two growing
seasons. Temporary structures, work areas, and alterations to Resource
areas are those that no longer are necessary to fulfill the requirements of
310 CMR 40.0000; and
f.
Work in Resource areas shall occur only when the ground is sufficiently
frozen, dry, or otherwise stable to support the equipment being used.
FWR 10.25 Land Under the Ocean24
25
(1) Introduction. Land under the Ocean is likely to be Significant to fisheries, where there are
shellfish, to shellfish,26 Aesthetics, and Recreation. Nearshore areas of land under the
Ocean are additionally likely to be Significant to storm damage prevention, flood control,
Wildlife habitat, Aesthetics, and Recreation.
Land under the Ocean provides feeding areas, spawning and nursery grounds and shelter for
many coastal organisms related to marine fisheries. Nearshore areas of land under the Ocean
help reduce storm damage and flooding by diminishing and buffering the high energy effects of
storms. Submerged bars dissipate storm wave energy. Such areas provide a source of sediment
for seasonal rebuilding of Coastal Beaches and Dunes. Nearshore areas of land under the Ocean
also provide important food for birds. For example, waterfowl feed heavily on vegetation (such
as eel grass, widgeon grass, and macrophytic algae) and invertebrates (such as polychaetes and
mollusks) found in shallow submerged land under the Ocean. Land under the Ocean provides
water views that substantially increase property values and Recreational opportunities such as
fishing and boating which are critical to the economic base of Falmouth.
(2) Definitions and critical characteristics.
(a) Land Under the Ocean means land extending from the mean low water line seaward
to the Boundary of Falmouth's jurisdiction, but does not include Land under
estuaries.
(b) Nearshore Areas of land under the Ocean means that land extending from the mean
low water line to the seaward limit of a Falmouth's jurisdiction, but in no case beyond
the point where the land is 80 feet below the level of the Ocean at mean low water.
(c) When near shore areas of land under the Ocean are Significant to storm damage
prevention or flood control, the bottom topography of such land and the volume of
sediment are critical to the protection of those Resource area values.
24
Additional regulations regarding Land under the Ocean in the Black Beach/Great Sippewissett Marsh District of Critical
Planning Concern are found in FWR 10.39. Additional regulations regarding Land under the Ocean in the Waquoit Bay
ACEC are found in FWR 10.40.
25
See FWR 10.16(1) for regulations regarding Docks proposed in land under the Ocean.
26
For regulations concerning Land containing shellfish, see FWR 10.34.
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FWR 10.25
WETLANDS REGULATIONS
FWR 10.25
(d) When near shore areas or other land under the Ocean is Significant to fisheries or
Wildlife habitat, the following factors are critical to the protection of such Resource
area values:
1.
Water circulation,
2.
Distribution of sediment grain size,
3.
Water quality,
4.
Finfish habitat, and
5.
Important food for Wildlife.
(e) When land under the Ocean is Significant to Recreation or Aesthetics the following
factors are critical to the protection of such Resource area values:
1.
A clear line of sight,
2.
Navigable waters
3.
Water quality,
4.
Finfish habitat, and
5.
Shellfish habitat.
(3) Presumptions of Significance.
(a) When a proposed project involves the dredging, removing, filling, building upon,
degrading or otherwise Altering of a nearshore area of land under the Ocean, the
Commission shall presume that the area is Significant to, and the proposed activity
will have a Significant or cumulative effect upon, the Resource area values specified
in FWR 10.25(1).
(b) When a proposed project involves the dredging, removing, filling, building upon,
degrading or otherwise Altering of land under the Ocean beyond the nearshore area,
the Commission shall presume that such land is Significant to, and the proposed
activity will have a Significant or cumulative effect upon, the Resource area values
specified in FWR 10.25(1), except for storm damage prevention, flood control or
Wildlife habitat.
(d) These presumptions are rebuttable and may be overcome only upon a clear showing
that the land under the Ocean does not play a role in the protection of said Resource
area values. In the event that the presumptions are deemed to have been overcome,
the Commission shall make a written Determination to this effect, setting forth the
grounds.
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FWR 10.25
FALMOUTH CODE
FWR 10.25
(4) General Performance Standards
(a) When land under the Ocean underlies an anadromous/catadromous fish run,
FWR 10.35 shall apply.
(b) When land under the Ocean is Land containing shellfish, FWR 10.34 shall apply.
(c) When land under the Ocean or nearshore areas of land under the Ocean are found to
be Significant to fisheries, Wildlife habitat, storm damage prevention, flood control,
Recreation or Aesthetics FWR 10.25(5) through (7) shall apply.
(5) Improvement dredging for navigational purposes affecting land under the Ocean shall be
designed and carried out using the Best available measures so as to Minimize Adverse
effects on such interests caused by changes in:
(a) Bottom topography which will result in increased flooding or Erosion caused by an
increase in the height or velocity of waves impacting the shore;
(b) Sediment transport processes which will increase flood or Erosion hazards by
affecting the natural replenishment of beaches;
(c) Water circulation which will result in an adverse change in flushing rate, temperature,
or turbidity levels; or
(d) Marine productivity which will result from the suspension or transport of pollutants,
the smothering of bottom organisms, the accumulation of pollutants by organisms, or
the destruction of marine fisheries habitat or Wildlife habitat.
(6) Maintenance dredging for navigational purposes affecting land under the Ocean shall be
designed and carried out using the Best available measures so as to Minimize Adverse
effects on such interests caused by changes in marine productivity which will result from
the suspension or transport of pollutants, increases in turbidity, the smothering of bottom
organisms, the accumulation of pollutants by organisms, or the destruction of fisheries
habitat or Wildlife habitat.
(7) Projects not included in FWR 10.25(5) or 10.25(6) which affect nearshore areas of land
under the Ocean shall not cause Adverse effects by Altering the bottom topography so as
to increase storm damage or Erosion of Coastal Beaches, Coastal Banks, coastal Dunes, or
salt Marshes.
(8) Projects not included in FWR 10.25(5) or 10.25(6) which affect nearshore areas of land
under the Ocean shall not cause Adverse effects by Altering the bottom topography so as
to impede Navigation for Recreational vessels, or by impeding an open line of sight.
(9) Projects not included in FWR 10.25(5) which affect land under the Ocean shall if waterdependent be designed and constructed, using Best available measures, so as to Minimize
Adverse effects, and if non-water-dependent, have no Adverse effects, on fisheries habitat
or Wildlife habitat caused by:
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FWR 10.26
WETLANDS REGULATIONS
FWR 10.26
(a) Alterations in water circulation;
(b) Alterations in the distribution of sediment grain size;
(c) Changes in water quality, including, but not limited to, other than natural fluctuations
in the level of dissolved oxygen, temperature or turbidity, or the addition of
pollutants; or
(d) Alterations of shallow submerged lands with high densities of polychaetes, mollusks
or macrophytic algae.
(10) Notwithstanding the provisions of FWR 10.25(5) through (9), no project shall be
permitted which will have any Adverse effect on habitat sites of rare species.
(11) Notwithstanding the provisions of FWR 10.25(5) and (7) through (9), no project shall be
permitted which will result in the destruction of eel grass (Zostera marina) or widgeon
grass (Ruppia maritima) beds;
(12) Where projects are proposed subject to the provisions of FWR 10.25 (5) and 10.25(6) and
the U.S. Army Corps of Engineers dredged material disposal criteria are met, all dredged
material must be disposed of so as to be available for transport to adjacent Coastal Beaches
and Dunes within the littoral transport system.
FWR 10.26
Land Under Estuaries27
(1) Introduction Land under estuaries is likely to be Significant to fisheries, Wildlife habitat,
where there are shellfish, to shellfish,28 Aesthetics, storm damage prevention, flood
control, and Recreation.
Land under estuaries provides feeding areas, spawning and nursery grounds and shelter for
many coastal organisms related to marine fisheries. Land under estuaries help reduce storm
damage and flooding by diminishing and buffering the high energy effects of storms.
Submerged bars dissipate storm wave energy. Such areas provide a source of sediment for
seasonal rebuilding of Coastal Beaches and Dunes. Land under estuaries also provide important
food for birds. For example, waterfowl feed heavily on vegetation (such as eel grass, widgeon
grass, and macrophytic algae) and invertebrates (such as polychaetes and mollusks). Land under
estuaries provides water views that substantially increase property values and Recreational
opportunities such as fishing and boating which are critical to the economic base of Falmouth.
27
Additional regulations regarding land under the Ocean in the Black Beach/Great Sippewissett Marsh District of Critical
Planning Concern are found in FWR 10.39. Additional regulations regarding land under the Ocean in the Waquoit Bay
ACEC are found in FWR 10.40.
28
For regulations concerning Land containing shellfish, see FWR 10.34.
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FWR 10.26
FALMOUTH CODE
FWR 10.26
(2) Definition, Critical Characteristics, and Boundary
(a) An Estuary is the lower course of a river or Stream where its current is met by the
tides. Estuaries are characterized by a salinity of greater than five ppm or by
fluctuations in water elevations due to rise and fall of the tides.
(b) When Land under estuaries are Significant to storm damage prevention, flood
control, fisheries, or Wildlife habitat, the following characteristics are critical to the
protection of those Resource area values:
1.
Bottom topography of such land
1.
Water circulation,
2.
Distribution of sediment grain size,
3.
Water quality,
4.
Finfish habitat,
5.
Important food for Wildlife.
(c) When Land under estuaries is Significant to Recreation or Aesthetics the following
factors are critical to the protection of such Resource area values:
1.
A clear line of sight,
2.
Navigable waters
3.
Water quality,
4.
Finfish habitat, and
5.
Shellfish habitat.
(d) The landward Boundary of Land under estuaries is the mean low water line seaward.
The seaward Boundary is where the Estuary meets the Ocean or a Salt pond.
(3) Presumption
(a) When a proposed project involves the dredging, removing, filling, building upon,
degrading or otherwise Altering of Land under estuaries, the Commission shall
presume that the area is Significant to, and the proposed activity will have a
Significant or cumulative effect upon, the Resource area values specified in
FWR 10.26(1). These presumptions are rebuttable and may be overcome only upon a
clear showing that the Land under estuaries does not play a role in the protection of
said Resource area values. In the event that the presumptions are deemed to have
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FWR 10.26
WETLANDS REGULATIONS
FWR 10.26
been overcome, the Commission shall make a written Determination to this effect,
setting forth the grounds.
(4) General Performance Standards
(a) When Land under estuaries underlies an anadromous/catadromous fish run,
FWR 10.35 shall apply.
(b) When Land under estuaries is Land containing shellfish, FWR 10.34 shall apply.
(c) When Land under estuaries are found to be Significant to fisheries, Wildlife habitat,
storm damage prevention, flood control, Recreation or Aesthetics FWR 10.26(5)
through (7) shall apply.
(5) Maintenance dredging for navigational purposes affecting Land under estuaries shall be
designed and carried out using the Best available measures so as to Minimize Adverse
effects on such interests caused by changes in marine productivity which will result from
the suspension or transport of pollutants, increases in turbidity, the smothering of bottom
organisms, the accumulation of pollutants by organisms, or the destruction of fisheries
habitat or Wildlife habitat.
(6) Projects not included in FWR 10.26(5) which affect Land under estuaries shall not cause
Adverse effects by Altering the bottom topography so as to increase storm damage or
Erosion of Coastal Beaches, Coastal Banks, coastal Dunes, or salt Marshes.
(7) Projects not included in FWR 10.26(5) which affect Land under estuaries shall not cause
Adverse effects by Altering the bottom topography so as to impede Navigation for
Recreational vessels or by impeding an open line of sight.
(8) Projects not included in FWR 10.26(5) which affect Land under estuaries shall if waterdependent be designed and constructed, using Best available measures, so as to Minimize
Adverse effects, and if non-water-dependent, have no Adverse effects, on fisheries habitat
or Wildlife habitat caused by:
(a) Alterations in water circulation;
(b) Alterations in the distribution of sediment grain size;
(c) Changes in water quality, including, but not limited to, other than natural fluctuations
in the level of dissolved oxygen, temperature or turbidity, or the addition of
pollutants; or
(d) Alterations of shallow submerged lands with high densities of polychaetes, mollusks
or macrophytic algae.
(9) Notwithstanding the provisions of FWR 10.26(5) through (8), no project shall be
permitted which will have any Adverse effect on habitat sites of rare species.
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FWR 10.27
FALMOUTH CODE
FWR 10.27
(10) Notwithstanding the provisions of FWR 10.26(5) through (9), no project shall be
permitted which will result in the destruction of eel grass (Zostera marina) or widgeon
grass (Ruppia maritima) beds;
(11) Where projects are proposed subject to the provisions of FWR 10.26(5) and the U.S. Army
Corps of Engineers dredged material disposal criteria are met, all dredged material must be
disposed off so as to be available for transport to adjacent Coastal Beaches and Dunes
within the littoral transport system.
FWR 10.27
Coastal Beaches29
(1) Introduction. Coastal Beaches, which are defined to include tidal Flats, are Significant to
storm damage prevention, flood control, protection of Recreation, Aesthetics, and Wildlife
habitat. In addition, tidal Flats are likely to be Significant to the protection of marine
fisheries and where there are shellfish, to shellfish.30
Coastal Beaches dissipate wave energy by their gentle slope, their permeability and their
granular nature, which permit changes in beach form in response to changes in wave
Conditions.
Coastal Beaches serve as a sediment source for Dunes and subtidal areas. Steep storm waves
cause beach sediment to move offshore, resulting in a gentler beach slope and greater energy
dissipation. Less steep waves cause an onshore return of beach sediment, where it will be
available to provide protection against future storm waves.
A Coastal Beach at any point serves as a sediment source for coastal areas downdrift from that
point. The oblique approach of waves moves beach sediment alongshore in the general
direction of wave action. Thus, the Coastal Beach is a body of sediment which is moving along
the shore.
Coastal Beaches serve the purposes of storm damage prevention and flood control by
dissipating wave energy, by reducing the height of storm waves, and by providing sediment to
supply other coastal features, including coastal Dunes, land under the Ocean and other Coastal
Beaches. Interruptions of these natural processes by man-made structures reduce the ability of
the Coastal Beach to perform these functions.
A number of birds also nest in the coastal berm, between the toe of a Dune and the high tide
line. In addition, isolated Coastal Beaches on small islands are important as haul out areas for
seals.
Coastal Beaches are the most heavily used Recreation areas of the town and serve the purpose
of Recreation. Important to this value is the ability to walk along or sit at the beach at high tide.
29
Additional regulations regarding Coastal Beaches in the Black Beach/Great Sippewissett Marsh District of Critical
Planning Concern are found in FWR 10.39. Additional regulations regarding Coastal Beaches in the Waquoit Bay ACEC
are found in FWR 10.40.
30
For regulations concerning Land containing shellfish see FWR 10.34.
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Coastal Beaches are important to Aesthetics when they are without imposing structures. They
are part of the classic New England landscape.
Tidal Flats are likely to be Significant to fisheries and Wildlife habitat because they provide
habitats for marine organisms such as polychaete worms and mollusks, which in turn are food
sources for fisheries and migratory and wintering birds. Coastal Beaches are extremely
important in recycling of nutrients derived from storm drift and tidal action. Vegetative debris
along the drift line is vital for resident and migratory shorebirds, which feed largely on
invertebrates which eat the vegetation. Below the drift line in the lower intertidal zone are
infauna (invertebrates such as mollusks and crustacea) which are also eaten by shore birds.
Tidal Flats are also sites where organic and inorganic materials may become entrapped and then
returned to the photosynthetic zone of the water column to support algae and other primary
producers of the marine food web.
(2) Definitions and Critical Characteristics.
(a) Coastal Beach means unconsolidated sediment subject to wave, tidal and coastal
storm action which forms the gently sloping shore of a body of salt water and
includes tidal Flats. Coastal Beaches extend from the mean low water line landward
to the Dune line, coastal bankline or the seaward edge of existing man-made
structures, when these structures replace one of the above lines, whichever is closest
to the Ocean.
(b) Tidal Flat means any nearly level part of a Coastal Beach which usually extends from
the mean low water line landward to the more steeply sloping face of the Coastal
Beach or which may be separated from the beach by land under the Ocean.
(c) When Coastal Beaches are determined to be Significant to storm damage prevention
or flood control, the following characteristics are critical to the protection of those
Resource area values:
1.
Volume (quantity of sediments) and form,
2.
The ability to respond to wave action, and
3.
The distribution of sediment grain size.
(d) When Coastal Beaches are Significant to fisheries or Wildlife habitat, the following
characteristics are critical to the protection of those Resource area values:
1.
Distribution of sediment grain size,
2.
Water circulation,
3.
Water quality, and
4.
Relief and elevation.
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FWR 10.27
(e) When Coastal Beaches are Significant to Recreation and Aesthetics, the following
characteristics are critical to the protection of those Resource area values:
1.
Water quality,
2.
An open line of sight, and
3.
An exposed area of beach at high tide.
(3) Presumption of Significance
When a proposed project involves the dredging, removing, filling, building upon, degrading or
otherwise Altering of a Coastal Beach, the Commission shall presume that the area is
Significant to, and the proposed activity will have a Significant or cumulative effect upon, the
Resource area values specified in FWR 10.27(1). These presumptions are rebuttable and may
be overcome only upon a clear showing that the Coastal Beach does not play a role in the
protection of said Resource area values. In the event that the presumptions are deemed to have
been overcome, the Commission shall make a written Determination to this effect, setting forth
the grounds.
(4) General Performance Standards
(a) When tidal Flats are Significant to shellfish, FWR 10.34(4) through (7) shall apply.
(b) When a Coastal Beach is determined to be Significant to storm damage prevention,
flood control, or Wildlife habitat, FWR 10.27(5) through (8) shall apply.
(c) When a tidal Flat is determined to be Significant to fisheries or Wildlife habitat,
FWR 10.27(7) shall apply.
(5) Any project on a Coastal Beach shall not have an Adverse effect by increasing Erosion,
decreasing the volume or changing the form of any such Coastal Beach or an adjacent or
downdrift Coastal Beach.
(6) Notwithstanding FWR 10.27(5), beach nourishment with clean sediment of a grain size
compatible with that on the existing beach may be permitted.
(7) In addition to complying with the requirements of FWR 10.27(5), a project on a tidal Flat
shall have no Adverse effects, on fisheries and/or Wildlife habitat caused by:
(a) Alterations in water circulation,
(b) Alterations in the distribution of sediment grain size, and
(c) Changes in water quality, including, but not limited to, other than natural fluctuations
in the levels of dissolved oxygen, temperature or turbidity, or the addition of
pollutants.
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WETLANDS REGULATIONS
FWR 10.28
(8) Notwithstanding the provisions of FWR 10.27(5) through (7), no project may be permitted
which will have any Adverse effect on habitat sites of rare species.
FWR 10.28
Coastal Dunes31
(1) Introduction. All coastal Dunes are likely to be Significant to storm damage prevention
and flood control, and all coastal Dunes on barrier beaches and the coastal Dune closest to
the Coastal Beach in any area are per se Significant to storm damage prevention and flood
control. Coastal Dunes are also often Significant to the protection of Wildlife habitat, and
the protection of Aesthetics.
Coastal Dunes aid in storm damage prevention and flood control by supplying sand to Coastal
Beaches. Coastal Dunes protect inland coastal areas from storm damage and flooding by storm
waves and storm elevated sea levels because such Dunes are higher than the Coastal Beaches
which they border. In order to protect this function, coastal Dune volume must be maintained
while allowing the coastal Dune shape to conform to natural wind and water flow patterns.
Vegetation cover contributes to the growth and stability of coastal Dunes by providing
Conditions favorable to sand deposition.
On retreating shorelines, the ability of the coastal Dunes Bordering the Coastal Beach to move
landward at the rate of shoreline retreat allows these Dunes to maintain their form and volume,
which in turn promotes their function of protecting against storm damage or flooding.
A number of birds, most commonly terns and gulls, nest at the base or sides of Dunes. In some
Dune systems other birds also nest in the interdunal area, the species being determined by the
plant community structure, topography, and hydrologic regime of the area. In a few Dune
systems, Freshwater wetlands or Vernal pool habitats occur, which serve as important feeding
areas for a wide variety of bird species. Salt tolerate species such as Rosa rugosa can be an
important food source for birds and other Wildlife.
Coastal Dunes (RESERVED STATEMENT ON AESTHETICS)
Artificially constructed Dunes are included in the definition because they also play a role in
protecting inland properties from storm waves and flooding.
(2) Definition, Critical Characteristics, and Boundary
(a) Coastal Dune means any natural hill, mound or ridge of sediment landward of a
Coastal Beach deposited by wind action or storm overwash. Coastal Dune also means
sediment deposited by artificial means and serving the purpose of storm damage
prevention or flood control. Coastal Dunes can be deposited on a Coastal Bank.
31
Additional regulations regarding coastal Dunes in the Black Beach/Great Sippewissett Marsh District of Critical Planning
Concern are found in FWR 10.39. Additional regulations regarding coastal Dunes in the Waquoit Bay ACEC are found in
FWR 10.40.
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(b) When a coastal Dune is Significant to storm damage prevention, flood control or the
protection of Wildlife habitat, the following characteristics are critical to the
protection of those interest(s):
1.
The Ability of Coastal Dunes to Erode in Response to Coastal Beach
Conditions - The Erosion of coastal Dunes by waves, usually during storms,
supplies sand to the adjacent Coastal Beach. This sand helps maintain or
increase the volume of the Coastal Beach as it loses sand during storms to
nearshore areas of the Ocean. Without the supply of sand from Coastal Dunes
and Banks, beaches will gradually be depleted of sediment and disappear. (The
sand which moves from the Dune to the beach originally was carried by wind
from the beach to the Dune);
2.
Dune Form and Volume - The volume (height and width) and form of coastal
Dunes provide a buffer which resists the wave uprush during storms and retards
stormline retreat. Coastal Dune form and volume are the result of a
combination of factors, the most important of which are wind and vegetation.
Natural waters flow, which comes in the form of storm overwash, is also an
important process in controlling the coastal Dune form and volume, because
through this mechanism, sand is carried landward to initiate Dune formation;
3.
Vegetative Cover - Vegetation contributes to the growth and stability of coastal
Dunes by providing Conditions favorable to sand deposition. Coastal Dunes
often originate along the strand line of the beach. "Wrack" material, such as
beach grass stems, is carried to the strand line by wind and wave activity where
it accumulates and is often buried by sand blowing from the Coastal Beach.
Seeds of many plants become mixed with these materials and subsequently
germinate. As the strand line plants grow and begin trapping more sand, the
strand line rises to a height above the high tide line. The beach grass then
begins to act as a baffle, trapping sand moved by the prevailing winds, and
producing the feeding areas for Wildlife.
4.
Landward Movement - On retreating shorelines, coastal Dunes Bordering the
Coastal Beach move landward with the rest of the shoreline. This allows
coastal Dunes to maintain their form and volume. If the Dune did not build
landward, the Dune would gradually be eroded away from the seaward side and
the Dune would become smaller and smaller, and therefore would be more
likely to be completely washed away in a coastal storm;
5.
The ability of the Dune to move laterally; or
6.
The ability of the Dune to continue serving as bird nesting habitat.
(c) The landward extent of coastal Dunes is the landward edge of the sediment deposited
by wind or storm wave overwash. This is usually marked by a change in vegetation
from Dune type vegetation such as Dune grass, beach pea, rosa rugosa, or beach plum
to upland plants such as pine or hardwoods.
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WETLANDS REGULATIONS
FWR 10.28
(3) Presumption. When a proposed project involves the dredging, removing, filling, building
upon, degrading or otherwise Altering of a coastal Dune, the Commission shall presume
that the area is Significant to, and the proposed activity will have a Significant or
cumulative effect upon, the Resource area values specified in FWR 10.28(1). These
presumptions are rebuttable and may be overcome only upon a clear showing that the
coastal Dune does not play a role in the protection of said Resource area values. In the
event that the presumptions are deemed to have been overcome, the Commission shall
make a written Determination to this effect, setting forth the grounds.
(4) General Performance Standards When a coastal Dune is determined to be Significant to
storm damage prevention, flood control, the protection of Wildlife habitat, or Aesthetics,
FWR 10.28(5) through (8) shall apply. FWR 10.28(5) through (8) shall apply to any Dune
that is deposited on Land subject to coastal storm flowage or Coastal Bank, but only to the
Dune deposits in said area.
(5) Any alteration of, or structure on, a coastal Dune or within 100 feet of a coastal Dune shall
not have an Adverse effect on the coastal Dune by:
(a) Affecting the ability of waves to Remove sand from the Dune;
(b) Disturbing the vegetative cover so as to destabilize the Dune;
(c) Causing any modification of the Dune form that would increase the potential for
storm or flood damage;
(d) Interfering with the landward or lateral movement of the Dune;
(e) Causing removal of sand from the Dune artificially; or
(f)
Interfering with mapped or otherwise identified bird nesting habitat.
(6) Notwithstanding the provisions of FWR 10.28(5), when a building already exists upon a
coastal Dune, a project accessory to the existing building may be permitted, provided that
such work, using the best commercially available measures, Minimizes the Adverse effect
on the coastal Dune caused by the impacts listed in FWR 10.28(5)(b) through 10.28(5)(e).
Such an accessory project(s) may include, but is not limited to, a small shed or a small
parking area for residences. It shall not include coastal engineering structures, and in no
case shall cumulatively exceed over 100 square feet in size from the altered area that
existed as of August 15, 1998.
(7) The following projects may be permitted, provided that they adhere to the provisions of
FWR 10.28(3):
(a) Pedestrian walkways, designed to Minimize the disturbance to the vegetative cover
and traditional bird nesting habitat;
(b) Fencing and other devices designed to increase Dune development; and
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FWR 10.29
(c) Plantings compatible with the natural vegetative cover.
(8) Notwithstanding the provisions of FWR 10.28(5) through (7), no project may be permitted
which will have any Adverse effect on habitat sites of rare species.
FWR 10.29 Barrier beaches32
(1) Introduction. Barrier beaches are Significant to storm damage prevention, flood control,
Recreation, Aesthetics and are likely to be Significant to fisheries and Wildlife habitat and,
where there are shellfish, to shellfish. 33
Barrier beaches protect landward areas because they provide a buffer to storm waves and to sea
levels elevated by storms. Barrier beaches protect from wave action such highly productive
wetlands as salt Marshes, estuaries, lagoons, Salt ponds and freshwater Marshes and Ponds,
which are in turn important to fisheries and Wildlife habitat. Barrier beaches and the Dunes
thereon are also important to Wildlife habitat, Recreation and Aesthetics in the ways described
in FWR 10.27(1) (Coastal Beaches) and FWR 10.28(1) (coastal Dunes).
Barrier beaches are maintained by the alongshore movement of beach sediment caused by wave
action. The coastal Dunes and tidal Flats on a barrier beach consist of sediment supplied by
wind action, storm wave overwash and tidal inlet deposition. Barrier beaches in Falmouth
undergo a landward migration caused by the landward movement of sediment by wind, storm
wave overwash and tidal current processes. The continuation of these processes maintains the
volume of the landform which is necessary to carry out the storm and flood buffer function.
(2) Definition, Critical Characteristics and Boundary.
(a) Barrier Beach means a narrow, generally low-lying strip of land generally, but not
always, consisting of Coastal Beaches and coastal Dunes extending roughly parallel
to the trend of the coast. It is separated from the mainland by a narrow body of fresh,
brackish or saline water or a Marsh system. A barrier beach may be joined to the
mainland at one or both ends. A barrier beach may contain areas of glacially
deposited materials.
(b) When a barrier beach is Significant to storm damage prevention and flood control,
the characteristics of Coastal Beaches, tidal Flats and coastal Dunes listed in
FWR 10.27(1) and FWR 10.28(1) and their ability to respond to wave action,
including storm overwash sediment transport, are critical to the protection of the
Resource area values specified in FWR 10.29.
(c) The inland Boundary is the edge of the coastal or inland wetland that is protected by
the barrier beach. The Boundary of the barrier beach extends to that point laterally
32
For regulations concerning Land containing shellfish see FWR 10.34.
Additional regulations regarding barrier beaches in the Black Beach/Great Sippewissett Marsh District of Critical
Planning Concern are found in FWR 10.39. Additional regulations regarding barrier beaches in the Waquoit Bay ACEC
are found in FWR 10.34.
33
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WETLANDS REGULATIONS
FWR 10.30
along the beach to where a perpendicular line to the beach no longer intercepts the
coastal or inland wetland protected by the barrier beach.
(3) Presumption.
(a) When a proposed project involves the dredging, removing, filling, building upon,
degrading or otherwise Altering of a barrier beach including all of its coastal Dunes,
the Commission shall presume that the area is Significant to, and the proposed
activity will have a Significant or cumulative effect upon, the Resource area values
specified in FWR 10.29(1). These presumptions are rebuttable and may be overcome
only upon a clear showing that the coastal Dune does not play a role in the protection
of said Resource area values. In the event that the presumptions are deemed to have
been overcome, the Commission shall make a written Determination to this effect,
setting forth the grounds.
(4) Performance Standards.
(a) When a barrier beach is determined to be Significant to storm damage prevention,
flood control, fisheries, Recreation, Aesthetics, or Wildlife habitat, FWR 10.27(5)
through 10.27(10) (Coastal Beaches) and FWR 10.28(5) through 10.28(8) (coastal
Dunes) shall apply to the Coastal Beaches and to all coastal Dunes which make up a
barrier beach.
(b) When a portion of barrier beach system is not made up of Coastal Beaches or coastal
Dunes, in that portion of the barrier beach the following shall apply:
1.
The project shall be Minimized pursuant to FWR 10.05(7)(f)2.
(5) Notwithstanding the provisions of FWR 10.29(4), no project may be permitted which will
have any Adverse effect on habitat sites of rare species.
FWR 10.30
Coastal Banks34 [Effective 12-8-2010]
(1) Introduction.
Coastal Banks are likely to be Significant to storm damage prevention and flood control, and
may be Significant to Wildlife habitat. Coastal Banks that supply sediment to Coastal Beaches,
coastal Dunes and barrier beaches are per se Significant to storm damage prevention and flood
control. Coastal Banks that, because of their height, provide a buffer to upland areas from storm
waters are Significant to storm damage prevention and flood control.
Coastal Banks composed of unconsolidated sediment and exposed to vigorous wave action
serve as a major continuous source of sediment for beaches, dunes, and barrier beaches (as well
as other land forms caused by coastal processes). The supply of sediment is removed from
34
Additional regulations regarding Coastal Banks in the Black Beach/Great Sippewissett Marsh District of Critical Planning
Concern are found in FWR 10.39. Additional regulations regarding Coastal Banks in the Waquoit Bay ACEC are found in
FWR 10.40.
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FWR 10.30
banks by wave action, and this removal takes place in response to beach and sea conditions. It
is a naturally occurring process necessary to the continued existence of coastal beaches, coastal
dunes and barrier beaches which, in turn, dissipate storm wave energy, thus protecting
structures of coastal wetlands landward of them from storm damage and flooding.
Coastal Banks, because of their height and stability, may act as a buffer or natural wall, which
protects upland areas from storm damage and flooding. While Erosion caused by wave action is
an integral part of shoreline processes and furnishes important sediment to downdrift
landforms, Erosion of a Coastal Bank by wind and rain runoff, which plays only a minor role in
beach nourishment, should not be increased unnecessarily. Therefore, disturbances to a Coastal
Bank which reduce its natural resistance to wind and rain erosion cause cuts and gullies in the
Bank, increase the risk of its collapse, increase the danger to structures at the top of the Bank
and decrease its value as a buffer.
Bank vegetation tends to stabilize the Bank and reduce the rate of Erosion due to wind and rain
runoff. Pedestrian and vehicular traffic damages the protective vegetation and frequently leads
to gully Erosion or deep "blowouts" on unconsolidated banks. Therefore, any project permitted
by FWR 10.30 should incorporate, when appropriate, elevated walkways.
A particular Coastal Bank may serve both as a sediment source and as a buffer, or it may serve
only one (1) role.
(2) Definition, Critical Characteristics and Boundary.
(a) Coastal Bank means the seaward face or side of any elevated landform, other than a
Coastal Dune, which lies at the landward edge of a Coastal Beach, Land Subject to
Tidal Action, Land Subject to Coastal Storm Flowage (LSCSF), or other
wetland/coastal resources. Coastal Bank also means coastal engineering structures
serving the purpose of storm damage prevention or flood control.
(b) The slope of a Coastal Bank must be >10:1 (see Figure 1).
(c) An eroding Coastal Bank is one that serves as a sediment source.
(d) When the Commission determines that a Coastal Bank is Significant to storm damage
prevention or flood control because it is a vertical buffer to storm waters, the stability
of the Bank, i.e., the natural resistance of the Bank to Erosion caused by wind and
rain runoff, is critical to the protection of that Resource area value(s).
(e) The Boundary of the top of the Coastal Bank shall conform to one of the following
models, as appropriate for the site:35
1.
For a Coastal Bank with a slope of > 4:1, the "top of Coastal Bank" is that
point above the one-hundred-year flood elevation where the slope becomes <
4:1. (See Figure 2.)
35
The calculation of slope for the determination of the top of the coastal bank shall not include minor artificial alterations in
slope, such as top of a revetment, cart paths, foot trails etc.
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(f)
WETLANDS REGULATIONS
FWR 10.30
2.
For a Coastal Bank with a slope > 10:1 but < 4:1, the top of Coastal Bank is the
one-hundred-year flood elevation. (See Figure 3.)
3.
The top of Coastal Bank will fall below, the one-hundred-year flood elevation
and is the point where the slope ceases to be > 10:1. (See Figure 4.)
There can be multiple Coastal Banks within the same site. This can occur where the
Coastal Banks are separated by land subject to coastal storm flowage [an area <
10:1]. (See Figures 5 and 6.)
(g) When the Commission determines that a Coastal Bank is significant to storm damage
prevention or flood control because it supplies sediment to Coastal Beaches, coastal
Dunes or barrier beaches, the ability of the Coastal Bank to erode in response to wave
action is critical to the protection of that Resource area value(s).
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FWR 10.30
(3) Presumptions.
(a) When a proposed project involves removal, filling, dredging, building upon,
degrading or otherwise Altering of a Coastal Bank, the Commission shall presume
that the area is Significant to, and the proposed activity will have a Significant or
cumulative effect upon, the Resource area values specified in FWR 10.30(1). These
presumptions are rebuttable and may be overcome only upon a clear showing that the
coastal bank does not play a role in the protection of said Resource area values. In the
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WETLANDS REGULATIONS
FWR 10.30
event that the presumptions are deemed to have been overcome, the Commission
shall make a written determination to this effect, setting forth the grounds.
(b) A Coastal Bank subject to wave action and showing exposed (unvegetated) sand or
soils shall be presumed to be a Significant sediment source.
(c) Activity on a Coastal Bank steeper than four to one or on a Coastal Bank in a
Velocity zone shall be presumed to have an adverse effect on the stability of the
Coastal Bank.
(4) General Performance Standards. When a Coastal Bank is determined to be Significant to
storm damage prevention, flood control, Wildlife habitat, or Erosion and sedimentation
control, FWR 10.30.(5) through FWR 10.30(11) shall apply.
(5) No new bulkhead, revetment, seawall, groin or other coastal engineering structure shall be
permitted on such a Coastal Bank except that such a coastal engineering structure shall be
permitted when required to prevent storm damage to buildings constructed prior March 22,
1989, or constructed pursuant to a Permit application filed prior to March 22, 1989,
including reconstructions of such buildings subsequent to March 22, 1989, provided that
the following requirements are met:
(a) A coastal engineering structure or a modification thereto shall be designed and
constructed so as to Minimize, using Best available measures, Adverse effects on
adjacent or nearby Coastal Beaches due to changes in wave action;
(b) The applicant demonstrates that no method of protecting the building other than the
proposed coastal engineering structure is feasible (Moving the building to an
alternative location on the same lot or adjacent lot under the ownership or control of
the Applicant shall be presumed feasible.); and
(c) The best available measures utilized to minimize adverse effects on adjacent or
nearby Coastal Beaches due to changes in wave action shall include beach
nourishment activities.
(6) Any project on a coastal bank or within one hundred (100) feet landward of the top of a
Coastal Bank, other than a structure permitted by FWR 10.30(5), shall not have an adverse
effect due to wave action on the movement of sediment from the Coastal Bank to Coastal
Beaches or Land subject to tidal action.
(7) Except as permitted under FWR 10.30(5), no project shall be permitted on:
(a) An eroding Coastal Bank;
(b) Any portion of a Coastal Bank that is within a V-zone;
(c) That portion of a Coastal Bank with a slope greater or equal to 4:1;
(d) That portion of a Coastal Bank that is within:
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FWR 10.31
1.
2.
3.
FALMOUTH CODE
FWR 10.31
One hundred (100) feet of:
a.
Land under the Ocean;
b.
Salt Marsh; or
c.
Banks of Salt Ponds, Estuaries, and Ponds, Lakes, and Streams which
flow throughout the year; or
Seventy-five (75) feet of:
a.
Land subject to tidal action;
b.
Freshwater wetlands; or
c.
Banks of intermittent Streams.
Notwithstanding the provisions of FWR 1030(7)(d), activities listed in FWR
10.18(9) and FWR 10.18(10) may be permitted in the areas described in FWR
10.30(7)(d) provided that all other provisions of FWR 10.30 are met.
(8) The permit and the Certificate of Compliance for any new building within one hundred
(100) feet landward of the top of a Coastal Bank permitted by the Commission under
Chapter 235 of the Code of Falmouth shall contain the specific condition: FWR 10.30(5),
promulgated under Chapter 235 of the Code of Falmouth, requires that no coastal
engineering structure, such as a bulkhead, revetment, or seawall shall be permitted on an
eroding bank at any time in the future to protect the project allowed by this permit.
(9) Any project on such a Coastal Bank or within one hundred (100) feet landward of the top
of such Coastal Bank shall have no adverse effects on the stability of the Coastal Bank.
(10) Notwithstanding the provisions of FWR 10.30(5) through (8), protective planting designed
to reduce Erosion may be permitted.
(11) Notwithstanding the provisions of FWR 10.30(5) through (10), no project may be
permitted which will have any Adverse effect on habitat of rare species.
FWR 10.31:
Rocky Intertidal Shores36
(1) Introduction. Rocky intertidal shores are likely to be Significant to storm damage
prevention, flood control, fisheries and Wildlife habitat and where there are shellfish, to
shellfish.37
36
Additional regulations regarding Rocky intertidal shores in the Black Beach/Great Sippewissett Marsh District of Critical
Planning Concern are found in FWR 10.39. Additional regulations regarding Rocky intertidal shores in the Waquoit Bay
ACEC are found in FWR 10.40.
37
For regulations concerning Land containing shellfish, see FWR 10.34.
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WETLANDS REGULATIONS
FWR 10.31
Rocky shore environments are habitats for macroalgae and marine invertebrates and provide
protection to and food for, larger marine organisms such as crabs, lobsters, and such fish
species as winter flounder, as well as a number of birds. Most marine plants and animals found
in rocky shore environments are uniquely adapted to survive there and cannot survive
elsewhere. Harbor seals also use Rocky intertidal shores, such as rock outcroppings or isolated
shores of small islands, as haul out areas.
(2) Definition, Critical Characteristics
(a) Rocky intertidal shores means naturally occurring rocky areas, such as bedrock or
boulder-strewn areas between the mean high water line and the mean low water line.
(b) When a Rocky intertidal shore is determined to be Significant to storm damage
prevention, flood control, or Wildlife habitat the form and volume of exposed
intertidal bedrock and boulders are critical to the protection of those Resource area
values.
(c) When a Rocky intertidal shore is Significant to fisheries or Wildlife habitat, water
circulation and water quality are critical to the protection of those Resource area
values.
(3) Presumption. When a proposed project involves removal, filling, dredging, building upon,
degrading or otherwise Altering of a Rocky intertidal shore, the Commission shall
presume that the area is Significant to, and the proposed activity will have a Significant or
cumulative effect upon, the Resource area values specified in FWR 10.31(1). These
presumptions are rebuttable and may be overcome only upon a clear showing that the
Rocky intertidal shore does not play a role in the protection of said Resource area values.
In the event that the presumptions are deemed to have been overcome, the Commission
shall make a written Determination to this effect, setting forth the grounds.
(4) General Performance Standards
(a) When a Rocky intertidal shore is determined to be Significant to storm damage
prevention, flood control, or Wildlife habitat, any proposed project shall be designed
and constructed, using the Best available measures, so as to Minimize Adverse effects
on the form and volume of exposed intertidal bedrock and boulders.
(b) When a Rocky intertidal shore is determined to be Significant to fisheries or Wildlife
habitat, any proposed project shall have no Adverse effects on water circulation and
water quality. Water quality impacts include, but are not limited to, other than natural
fluctuations in the levels of dissolved oxygen, temperature or turbidity, or the
addition of pollutants.
(5) Notwithstanding the provisions of FWR 10.31(4), no project may be permitted which will
have any Adverse effect on habitat sites of rare species.
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FWR 10.32
FWR 10.32
FALMOUTH CODE
FWR 10.32
Salt Marshes38
(1) Introduction. Salt Marshes are Significant to protection of fisheries, Wildlife habitat, and
where there are shellfish, to shellfish39, Water pollution control, and Aesthetics and are
likely to be Significant to storm damage prevention and Groundwater.
A salt Marsh produces large amounts of organic matter. A Significant portion of this material is
exported as detritus and dissolved organics to estuarine and coastal waters, where it provides
the basis for a large food web that supports many marine organisms, including finfish and
shellfish as well as many bird species. Salt Marshes also provide a spawning and nursery
habitat for several important estuarine forage finfish as well as important food, shelter,
Breeding areas, and migratory and overwintering areas for many Wildlife species.
Salt Marsh plants and substrate Remove pollutants from surrounding waters. The network of
salt Marsh vegetation roots and rhizomes binds sediments together.
The sediments absorb chlorinated hydrocarbons and heavy metals such as lead, copper, and
iron. The Marsh also retains nitrogen and phosphorous compounds, which in large amounts can
lead to algal blooms in coastal waters.
The underlying peat also serves as a barrier between fresh Groundwater landward of the salt
Marsh and the Ocean, thus helping to maintain the level of such Groundwater.
Salt Marsh cord grass and underlying peat are resistant to Erosion and dissipate wave energy,
thereby providing a buffer that reduces wave damage.
(2) Definition, Critical Characteristics.
(a) Salt Marsh means a coastal wetland that extends landward up to the highest high tide
line, that is, the highest spring tide of the year, and is characterized by plants that are
well adapted to or prefer living in, saline soils. Dominant plants within salt Marshes
are salt meadow cord grass (Spartina patens) and/or salt Marsh cord grass (Spartina
alternifiora). A salt Marsh may contain tidal Creeks, ditches and pools.
(b) Spring Tide means the tide of the greatest amplitude during the approximately
fourteen-day tidal cycle. It occurs at or near the time when the gravitational forces of
the sun and the moon are in phase (new and full moons).
(c) When a salt Marsh is Significant to one or more of the Resource area values specified
in FWR 10.32(1), the following characteristics are critical to the protection of such
Resource area values:
1.
The growth, composition and distribution of salt Marsh vegetation, (fisheries
and Wildlife habitat, Water pollution control, storm damage prevention);
38
Additional regulations regarding salt Marshes in the Black Beach/Great Sippewissett Marsh District of Critical Planning
Concern are found in FWR 10.39. Additional regulations regarding salt Marshes in the Waquoit Bay ACEC are found in
FWR 10.40.
39
For regulations concerning Land containing shellfish, see FWR 10.34.
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06 - 01 - 2014
FWR 10.33
WETLANDS REGULATIONS
FWR 10.33
2.
The flow and level of tidal and fresh water (fisheries and Wildlife habitat,
Water pollution control); and
3.
The presence and depth of peat (Groundwater supply, Water pollution control,
storm damage prevention).
(3) Presumption.
(a) When a proposed project involves removal, filling, dredging, building upon,
degrading or otherwise Altering of a salt Marsh, the Commission shall presume that
the area is Significant to, and the proposed activity will have a Significant or
cumulative effect upon, the Resource area values specified in FWR 10.32(1). These
presumptions are rebuttable and may be overcome only upon a clear showing that the
salt Marsh does not play a role in the protection of said Resource area values. In the
event that the presumptions are deemed to have been overcome, the Commission
shall make a written Determination to this effect, setting forth the grounds.
(4) Performance Standards. When a salt Marsh is determined to be Significant to fisheries or
Wildlife habitat, Water pollution control, Groundwater supply, Aesthetics, or storm
damage prevention FWR 10.32(5) through (9) shall apply.
(5) A proposed project in a salt Marsh, on lands within 100 feet of a salt Marsh, or in a body
of water adjacent to a salt Marsh shall not destroy any portion of the salt Marsh and shall
not have an Adverse effect on the productivity of the salt Marsh. alterations in growth,
distribution and composition of salt Marsh vegetation shall be considered in evaluating
Adverse effects on productivity. This section shall not be construed to prohibit the
harvesting of salt hay.
(6) Notwithstanding the provisions of FWR 10.32(4), a Dock or elevated walkway as narrow
as feasible may be permitted provided it meets the requirements of FWR 10.16(1), and of
FWR 10.21 through 10.40
(7) Notwithstanding the provisions of FWR 10.32(5), a project which will restore or
rehabilitate a salt Marsh, or create a salt Marsh, may be permitted.
(8) Notwithstanding the provisions of FWR 10.32(5) through (7), no project may be permitted
which will have any Adverse effect on habitat sites of rare species.
FWR 10.33
Land Under Salt Ponds40
(1) Introduction. Land under Salt ponds is Significant to fisheries and Wildlife habitat,
Recreation and, where there are shellfish, to shellfish.41
40
Additional regulations regarding Land under Salt ponds in the Black Beach/Great Sippewissett Marsh District of Critical
Planning Concern are found in FWR 10.39. Additional regulations regarding Land under Salt ponds in the Waquoit Bay
ACEC are found in FWR 10.40.
41
For regulations concerning Land containing shellfish, see FWR 10.34.
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FWR 10.33
FALMOUTH CODE
FWR 10.33
Land under Salt ponds provides an excellent habitat for fisheries. The high productivity of
plants in Salt ponds provides food for shellfish, crustaceans and larval and juvenile fish. Salt
ponds also provide spawning areas for shellfish and are nursery areas for crabs and fish. In
addition to the many birds which feed on fish found in Salt ponds, waterfowl also eat
invertebrates such as mollusks and crustaceans, which in turn depend on bottom sediment and
vegetation. Some bird species also eat widgeon grass and eel grass which may be rooted in
Land under Salt ponds.
(2) Definition, Critical Characteristics.
(a) Salt Pond means a shallow enclosed or semi-enclosed body of saline water that may
be partially or totally restricted by barrier beach formation, or a barrier beach system.
Salt ponds may receive freshwater from small Streams emptying into their upper
reaches and/or springs in the Salt pond itself.
(b) When Land under a Salt pond is Significant to fisheries or Wildlife habitat, the
following factors are critical to the protection of that Resource area value:
1.
Water circulation,
2.
Distribution of sediment grain size,
3.
Freshwater inflow,
4.
Productivity of plants, and
5.
Water quality.
(c) The Boundary of a Salt pond is the Bank of the pond or the landward edge of any
wetland adjacent to the water.
(3) Presumption.
When a proposed project involves removal, filling, dredging, building upon, degrading or
otherwise Altering of Land under a Salt pond, the Commission shall presume that the area is
Significant to, and the proposed activity will have a Significant or cumulative effect upon, the
Resource area values specified in FWR 10.33(1). These presumptions are rebuttable and may
be overcome only upon a clear showing that the Land under the Salt pond does not play a role
in the protection of said Resource area values. In the event that the presumptions are deemed to
have been overcome, the Commission shall make a written Determination to this effect, setting
forth the grounds.(4) Performance Standards. When Land under a Salt pond is determined to be
Significant to fisheries, Recreation, or Wildlife habitat, FWR 10.33(5) through (7) shall apply.
(5) Any project on Land under a Salt pond, on lands within 100 feet of the mean high water
line of a Salt pond, or on land under a body of water adjacent to a Salt pond shall not have
an Adverse effect on the fisheries, Recreation, or Wildlife habitat of such a Salt pond
caused by:
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FWR 10.34
WETLANDS REGULATIONS
FWR 10.34
(a) Alterations of water circulation;
(b) Alterations in the distribution of sediment grain size and the relief or elevation of the
bottom topography;
(c) Modifications in the flow of fresh and/or salt water;
(d) Alterations in the productivity of plants, or
(e) Alterations in water quality, including, but not limited to, other than normal
fluctuations in the level of dissolved oxygen, nutrients, temperature or turbidity, or
the addition of pollutants.
(6) Notwithstanding the provisions of FWR 10.33(5), activities specifically required and
intended to maintain the depth and the opening of the Salt pond to the Ocean in order to
maintain or enhance the fisheries or for the specific purpose of fisheries management, may
be permitted.
(7) Notwithstanding the provisions of FWR 10.33(5) and (6), no project may be permitted
which will have any Adverse effect on habitat sites of rare species.
FWR 10.34
Land Containing Shellfish42
(1) Preamble. Land containing shellfish is found within certain of the Resource areas under
the jurisdiction of Chapter 235 of the Code of Falmouth. "Shellfish" is specifically one of
the Resource area values of Chapter 235 of the Code of Falmouth. The purpose of
FWR 10.34 is to identify those Resource areas likely to contain shellfish, to provide
criteria for determining the significance of Land containing shellfish, and to establish
regulations for projects which will affect such land.
Land containing shellfish is, under FWR 10.34(3), Significant to fisheries, Recreation,
Aquaculture, as well as to the Resource area value of shellfish. Any proposal that effects
Navigation in Land containing shellfish is likely to have a Significant or cumulative Adverse
effect on Aquaculture.
Shellfish are a valuable renewable resource. The maintenance of productive shellfish beds not
only assures the continuance of shellfish themselves, but also plays a direct role in supporting
fish stocks by providing a major food source. The young shellfish in the planktonic larval stage
that are produced in large quantities during spring and summer are an important source of food
for the young stages of marine fishes and many crustaceans.
42
Additional regulations regarding Land containing shellfish in the Black Beach/Great Sippewissett Marsh District of
Critical Planning Concern are found in FWR 10.39. Additional regulations regarding Land containing shellfish in the
Waquoit Bay ACEC are found in FWR 10.40.
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FWR 10.34
FALMOUTH CODE
FWR 10.34
(2) Definitions and Critical Characteristics.
(a) Land containing shellfish means land under the Ocean, Land under estuaries, Land
under Salt ponds, tidal Flats, Rocky intertidal shores, salt Marshes, Banks of Salt
ponds, Banks of estuaries and beaches when any such land contains shellfish.
(b) Shellfish means the following species: Bay scallop (Argopecten irradians); Blue
mussel (Mytilus edulis); Ocean quahog (Arctica islandica); Oyster (Crassostrea
virginica); Quahog (Mercenaria merceneria); Razor clam (Ensis directus); Sea clam
(Spisula solidissima); Sea scallop (Placopecten magellanicus); Soft shell clam (Mya
arenaria).
(c) Shellfish Constable means the official in Falmouth, whether designated a constable,
warden, natural resources officer, or by some other name, in charge of enforcing the
laws regulating the harvest of shellfish.
(d) When a Resource area is found to be Significant to shellfish under FWR 10.34(3),
and is, therefore, also Significant to fisheries and Recreation, the following factors
are critical to the protection of those Resource area values:
1.
Shellfish,
2.
Water quality,
3.
Water circulation,
4.
The natural relief, evaluation or distribution of sediment grain size of such
land, and
5.
Public access to those areas
(3) Significance. Land containing shellfish shall be found Significant to shellfish, Recreation,
Aquaculture, and to fisheries when it has been identified:
(a) And mapped by the Commission, based upon DMF (MA Division of Marine
Fisheries) maps and/or other written documentation of the Shellfish Constable; or
[Amended 5-31-2006]
(b) Otherwise identified by taking into account and documenting: the density of
shellfish, the size of the area, and the historical use of the area, current importance of
the area and potential use of the area to Recreational or commercial shellfishing.
1.
The area shall be found Significant to shellfish where shellfish sampling
indicates a shellfish density per nine square feet greater than:
a.
One quahog;
b.
One clam;
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FWR 10.34
2.
WETLANDS REGULATIONS
c.
Three oysters; or
d.
Three mussels;
FWR 10.34
Where shellfish sampling indicates a shellfish density less than that specified in
FWR 10.34(3)(b)1., the Commission shall consider the size of the area, and the
historical use of the area, and current importance of the area and potential use
of the area to Recreational or commercial shellfishing.
(4) Shellfish Survey43 Shellfish surveys shall be performed in a manner consistent with the
guidelines below. The survey must be done no more than two years prior to filing an NOI.
The Commission must be notified when any such survey is to be conducted. Surveys not
conducted in this manner shall not be considered by the Commission. The Commission
may conduct random sampling to verify the accuracy of the densities determined in
shellfish surveys. Such verification does not require that an entire shellfish survey, the
method described below, be performed. [Amended 5-31-2006]
(a) Samples shall be taken every five feet along the center line of the proposed structure
starting at mean high water to 35 feet beyond the end of the proposed structure. If the
transect line crosses a marsh at any point and a sample falls on this portion of the
line, it will be noted as marsh on the Shellfish Survey Form, but not sampled for
shellfish. Samples shall be taken every five feet under any Docks or floats. The
sample area size shall be one cubic foot (1 foot x 1 foot x 1 foot). The sediment shall
be sampled from a one foot square open ended metal box inserted one foot deep into
the sediment. If one-foot depth cannot be achieved, this must be noted on the
Shellfish Survey Form. SCUBA gear will need to be used for samples taken in water
greater than two feet depth. Similarly, spaced samples shall also be taken 10 and 20
feet either side of the center line sample at the same frequency as those taken on the
center line of the proposed structure, and 30 feet and 40 feet either side of the center
point of the terminus to the Dock from 35 feet landward of the center point at the
seaward end of the dock (marking the landward edge of the mooring field) to 35 feet
beyond that point.
(b) Samples at each site shall be placed in a sieve tray with one-fourth-inch mesh and
sorted. All live animals shall be counted and measured. Dead or the empty shells
shall also be noted.
(c) A description of the sediments shall be stated for each sample taken.
(d) Results of the shellfish survey shall be recorded on Form SS44 of FWR 10.99.
43
Persons conducting shellfish surveys must notify the Shellfish Constable as to the location, date, and time a survey will take
place at least one (1) week prior to the survey. Lack of notification may result in the issuance of a non-criminal citation for
violation of shellfish regulations. Prior to the survey, the site must be marked with stakes on the shore and an orange buoy
at the proposed end of the structure. Persons conducting shellfish surveys are advised to verify sampling method with the
Shellfish Constable.
44
Editor's Note: Form SS is on file in the Conservation Administrator's office and may be examined there during regular
business hours.
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FWR 10.34
FALMOUTH CODE
FWR 10.34
Two density calculations (for each species of shellfish found) to assess performance
standards of FWR 10.34(3)(b)(1) shall be calculated according to the following
formula: For each area sampled, the total number of shellfish found in samples taken
must be divided by the number of one-square-foot samples taken (this gives number
of shellfish per square foot). This number is multiplied by nine to give a density of
shellfish per nine square feet. These calculations will be performed for two areas:
Area A contains samples from 35 feet beyond the mooring field to 35 feet landward
of the mooring field, and to 40 feet either side of the center point at the seaward end
of the Dock (marking the landward edge of the mooring field); this will equal 135
samples (except if the terminus of the Dock is less than 35 feet from MHW). Area B
contains those samples landward of Area A and extending out to 20 feet from the
center line of the (proposed) Dock. The number of samples in this area will be
variable depending on the length of the Dock.
(e) All shellfish shall be replanted in the sample area from which they were taken.
(5) Performance Standards. When a Resource area, including Rocky intertidal shores, salt
Marshes, land under the Ocean, Coastal Beaches, Land under Salt ponds is determined to
be Significant to the protection of shellfish and therefore to the protection of Recreation
and the protection of fisheries, FWR 10.34(6) through (8) shall apply.45
(6) Any project on Land containing shellfish shall not adversely affect any portion of such
land or marine fisheries by a change in the productivity of such land caused by:
(a) Alterations of water circulation,
(b) Alterations in relief elevation,
(c) The compacting of sediment by vehicular traffic,
(d) Alterations in the distribution of sediment grain size,
(e) Alterations in natural drainage from adjacent land, or
(f)
Changes in water quality, including, but not limited to, other than natural fluctuations
in the levels of salinity, dissolved oxygen, nutrients, temperature or turbidity, or the
addition of pollutants.
(7) Notwithstanding FWR 10.34(6) and 10.34(7), projects approved by DMF that are
specifically intended to increase the productivity of Land containing shellfish may be
permitted.
(8) Notwithstanding the provisions of FWR 10.34(6) and (7), no project may be permitted
which will have any Adverse effect on habitat sites of rare species.
45
Regulations for the construction of Docks and Piers, which may be in Land containing shellfish, are found in
FWR 10.16(1).
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FWR 10.35
WETLANDS REGULATIONS
FWR 10.35
FWR 10.35 Banks of or Land Under the Ocean, Estuaries, Ponds, Streams, Rivers, Lakes. or
Creeks that Underlie an Anadromous/Catadromous Fish Run ("Fish Run")46
(1) Introduction. The Banks of and land under the Ocean, estuaries, Ponds, Streams, rivers,
Lakes or Creeks that underlie an anadromous/catadromous fish run are Significant to
protection of marine fisheries.
Anadromous and catadromous fish ("the fish") are renewable protein resources that provide
Recreational, Aesthetic and commercial benefits. In addition, throughout their life cycle such
fish are important components of freshwater, estuarine, and marine environments and are food
sources for other organisms.
The spawning migrations of such fish also provide a direct link between marine and freshwater
ecosystems. This link plays a role in maintaining the productivity of fisheries.
(2) Definitions, Critical Characteristics.
(a) Anadromous Fish means fish that enter fresh water from the Ocean to spawn, such as
alewives, shad and salmon.
(b) Catadromous Fish means fish that enter salt water from fresh water to spawn, such as
eels.
(c) Anadromous/Catadromous Fish Run means that area within estuaries, Ponds,
Streams, Creeks, rivers, Lakes or coastal waters, which is a spawning or feeding
ground or passageway for anadromous or catadromous fish and which is identified by
DMF, has been mapped on the Coastal Atlas of the Coastal Zone Management
Program or by the Cape Cod Critical Habitat Atlas (Association for the Preservation
of Cape Cod 1990), or identified by evidence of the presence of
anadromous/catadromous fish at a public hearing. Such fish runs shall include those
areas which have historically served as fish runs and are either being restored or are
planned to be restored at the time the Permit application is filed.
(d) When such a Bank of a fish run, or Land under an Estuary or under a Pond, Stream,
river, Lake or Creek which is a fish run is Significant to fisheries, the following
factors are critical to the protection of such Resource area value:
(a)
The fish,
(b)
Accessibility of spawning areas,
(c)
The volume or rate of the flow of water within spawning areas and migratory
routes, and
(d)
Spawning and nursery grounds.
46
Additional regulations regarding fish runs in the Black Beach/Great Sippewissett Marsh District of Critical Planning
Concern are found in FWR 10.39. Additional regulations regarding fish runs in the Waquoit Bay ACEC are found in
FWR 10.40.
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FWR 10.36
FALMOUTH CODE
FWR 10.36
(3) Presumption.
When a proposed project involves removal, filling, dredging, building upon, degrading or
otherwise Altering of a Bank of a fish run, or Land under estuaries, Ponds, Streams, rivers,
Lakes or Creeks that underlie a fish run, the Commission shall presume that the area is
Significant to, and the proposed activity will have a Significant or cumulative effect upon, the
Resource area values specified in FWR 10.35(1). These presumptions are rebuttable and may
be overcome only upon a clear showing that said area does not play a role in the protection of
said Resource area values. In the event that the presumptions are deemed to have been
overcome, the Commission shall make a written Determination to this effect, setting forth the
grounds.
(4) General Performance Standards.
When such land or Bank is determined to Significant to fisheries, FWR 10.35(5) through (7)
shall apply.
(5) Any project on such land or Bank shall not have an Adverse effect on the anadromous or
catadromous fish run by:
(a) Impeding or obstructing the migration of the fish;
(b) Changing the volume or rate of flow of water within the fish run; or
(c) Impairing the capacity of spawning or nursery habitats necessary to sustain the
various life stages of the fish.
(6) Dredging, disposal of dredged material or filling in any portion of a fish run shall be
prohibited between March 15th and June 15th in any year.
(7) Notwithstanding the provisions of FWR 10.35(5), no project may be permitted which will
have any Adverse effect on habitat sites of rare species.
FWR 10.36
Banks of Estuaries47
(1) Introduction Banks of Estuaries are likely to be Significant to flood control, storm damage
prevention, Water pollution control, Erosion and sediment control, to fisheries and
Wildlife habitat, Recreation, Aesthetics, and where there are shellfish, to shellfish48.
Where Banks are composed of concrete, asphalt or other artificial impervious material,
said Banks of Estuaries are likely to be Significant to flood control and storm damage
prevention.
47
Additional regulations regarding Banks of estuaries in the Black Beach/Great Sippewissett Marsh District of Critical
Planning Concern are found in FWR 10.39. Additional regulations regarding Banks of estuaries in the Waquoit Bay ACEC
are found in FWR 10.40.
48
For regulations concerning Land containing shellfish, see FWR 10.34.
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FWR 10.36
WETLANDS REGULATIONS
FWR 10.36
Where Banks of Estuaries are partially or totally vegetated, the vegetation serves to maintain
the Banks' stability, which in turn protects water quality by reducing Erosion and siltation.
Banks of Estuaries may also provide shade that moderates water temperatures, as well as
providing breeding habitat, escape cover and food, all of which are Significant to fisheries and
Wildlife habitat.
The topography, plant community composition and structure, and soil structure of Banks
together provide important food, shelter, migratory and overwintering areas, and Breeding areas
for Wildlife. Topography plays a role in determining the suitability of Banks to serve as
burrowing or feeding habitat. Soil structure also plays a role in determining the suitability for
burrowing, hibernation and other cover. Bank topography and soil structure impact the Bank's
vegetative structure, as well. Bushes and other undergrowth, trees, vegetation extending from
the Bank into the water, and vegetation growing along the water's edge are also important to a
wide variety of Wildlife. A number of tubers and berry bushes also grow in Banks and serve as
important food for Wildlife. Finally, Banks may provide important shelter for Wildlife which
needs to move between wetland areas.
Bank of estuaries act to confine floodwaters during the most frequent storms, preventing the
spread of water to adjacent land.
Because these Banks confine water during such storms to an established channel they maintain
water temperatures and depths necessary for the protection of fisheries. The maintenance of
cool water temperatures during warm weather is critical to the survival of important game
species such as brown trout (Salmo trutta). An alteration of a Bank that permits water to
frequently and consistently spread over a large and more shallow area increases the amount of
property which is routinely flooded, as well as elevating water temperature and reducing fish
habitat within the main channel, particularly during warm weather.
Banks of estuaries may also be a Coastal Bank or Coastal Beach.
(2) Definition, Critical Characteristics, and Boundary
(a) A Bank of an Estuary is the portion of the land surface which normally abuts and
confines an Estuary. It occurs between an Estuary and a Coastal or Freshwater
wetland and adjacent flood plain, or, in the absence of these, it occurs between an
Estuary and an upland. A Bank of an Estuary may be partially or totally vegetated, or
it may be comprised of exposed soil, gravel or stone.
(b) The physical characteristics of a Bank of an Estuary, as well as its location, as
described in the foregoing FWR 10.36(2)(a), are critical to the protection of the
Resource area values specified in FWR 10.36(1).
(c) The upper Boundary of a Bank of an Estuary is the first observable break in the slope
or the mean annual flood level, whichever is higher. The lower Boundary of a Bank
of an Estuary is the mean annual low flow level.
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FWR 10.36
FALMOUTH CODE
FWR 10.36
(3) Presumption
When a proposed project involves removal, filling, dredging, building upon, degrading or
otherwise Altering of a Bank of an Estuary, the Commission shall presume that the area is
Significant to, and the proposed activity will have a Significant or cumulative effect upon, the
Resource area values specified in FWR 10.36(1). These presumptions are rebuttable and may
be overcome only upon a clear showing that said area does not play a role in the protection of
said Resource area values. In the event that the presumptions are deemed to have been
overcome, the Commission shall make a written Determination to this effect, setting forth the
grounds.
(4) General Performance Standards
When a Bank of an Estuary is determined to be Significant to fisheries or Wildlife habitat,
Water pollution control, Erosion and sediment control, shellfish, Aesthetics, flood control or
storm damage prevention FWR 10.36(5) through (9) shall apply.
(5) In addition to the provisions of FWR 10.36(6) through (8), if the Bank of an Estuary is
also a Coastal Bank, the project must also comply with the provisions of FWR 10.30.
(6) In addition to the provisions of FWR 10.36(5) and (7) through (8), if the Bank of an
Estuary is also a Coastal Beach, the project must also comply with the provisions of
FWR 10.27.
(7) Any proposed work on a Bank of an Estuary shall not impair the following:
(a) The physical stability of the Bank;
(b) The water-carrying capacity of the existing channel within the Bank;
(c) Groundwater and surface water quality;
(d) The capacity of the Bank to provide breeding habitat, escape cover and food for
fisheries;
(e) The capacity of the Bank to provide important Wildlife habitat functions. A project or
projects on a single lot, for which a Permit application(s) is filed on or after (effective
date), that (cumulatively) Alter(s) up to 25 feet of the length of the Bank found to be
Significant to the protection of Wildlife habitat, shall not be deemed to impair its
capacity to provide important Wildlife habitat functions. Additional alterations
beyond the above threshold may be permitted if they will have no Adverse effects on
Wildlife habitat.
(8) Notwithstanding the provisions of FWR 10.36(7), structures may be permitted in or on a
Bank when required to prevent flood damage to facilities, buildings and roads constructed
prior to (effective date), including the renovation or reconstruction (but not substantial
enlargement) of such facilities, buildings and roads, provided that the following
requirements are met:
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FWR 10.37
WETLANDS REGULATIONS
FWR 10.37
(a) The proposed protective structure, renovation or reconstruction is designed and
constructed using Best practical measures so as to Minimize Adverse effects on the
characteristics and functions of the Resource area;
(b) The Applicant demonstrates that there is no reasonable method of protecting,
renovating or rebuilding the facility in question other than the one proposed.
(9) Notwithstanding the provisions of FWR 10.36(5) though (8), no project may be permitted
which will have any Adverse effect on habitat sites of rare species.
FWR 10.37
Banks of Salt Ponds49
(1) Introduction. Banks of Salt ponds are likely to be Significant to flood control, storm
damage prevention, Water pollution control, Erosion and sediment control, fisheries and
Wildlife habitat, and where there are shellfish, to shellfish.50 Where Banks of Salt ponds
are composed of concrete, asphalt or other artificial impervious material, said Banks are
likely to be Significant to flood control and storm damage prevention.
Where Banks of Salt ponds are partially or totally vegetated, the vegetation serves to maintain
the Banks' stability, which in turn protects water quality by reducing Erosion and siltation.
Bank of Salt ponds may also provide shade that moderates water temperatures, as well as
providing breeding habitat, escape cover and food, all of which are Significant to the protection
of fisheries.
The topography, plant community composition and structure, and soil structure of Banks
together provide important food, shelter, migratory and overwintering areas, and Breeding areas
for Wildlife. Topography plays a role in determining the suitability of Banks to serve as
burrowing or feeding habitat. Soil structure also plays a role in determining the suitability for
burrowing, hibernation and other cover. Bank topography and soil structure impact the Bank's
vegetative structure, as well. Bushes and other undergrowth, trees, vegetation extending from
the Bank into the water, and vegetation growing along the water's edge are also important to a
wide variety of Wildlife. A number of tubers and berry bushes also grow in Banks and serve as
important food for Wildlife. Finally, Banks may provide important shelter for Wildlife which
needs to move between wetland areas.
Banks of Salt ponds act to confine floodwaters during the most frequent storms, preventing the
spread of water to adjacent land. Because Banks of Salt ponds confine water during such storms
to an established channel they maintain water temperatures and depths necessary for the
protection of fisheries.
Banks of Salt ponds may also be a Coastal Bank or Coastal Beach.
49
Additional regulations regarding Banks of Salt ponds in the Black Beach/Great Sippewissett Marsh District of Critical
Planning Concern are found in FWR 10.39. Additional regulations regarding Banks of Salt ponds in the Waquoit Bay
ACEC are found in FWR 10.40.
50
For regulations concerning Land containing shellfish, see FWR 10.34.
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(2) Definition, Critical Characteristics, and Boundary
(a) A Bank of a Salt pond is the portion of the land surface which normally abuts and
confines a Salt pond. It occurs between a Salt pond and a Coastal or Freshwater
wetland and adjacent flood plain, or, in the absence of these, it occurs between a Salt
pond and an upland. A Bank of a Salt pond may be partially or totally vegetated, or it
may be comprised of exposed soil, gravel or stone.
(b) The physical characteristics of a Bank of a Salt pond, as well as its location, as
described in the foregoing FWR 10.37(2)(a), are critical to the protection of the
Resource area values specified in FWR 10.37(1).
(c) The upper Boundary of a Bank of a Salt pond is the first observable break in the
slope or the mean annual flood level, whichever is higher. The lower Boundary of a
Bank of a Salt pond is the mean low water line.
(3) Presumption
When a proposed project involves removal, filling, dredging, building upon, degrading or
otherwise Altering of a Bank of a Salt pond, the Commission shall presume that the area is
Significant to, and the proposed activity will have a Significant or cumulative effect upon, the
Resource area values specified in FWR 10.37(1). These presumptions are rebuttable and may
be overcome only upon a clear showing that said area does not play a role in the protection of
said Resource area values. In the event that the presumptions are deemed to have been
overcome, the Commission shall make a written Determination to this effect, setting forth the
grounds.
(4) General Performance Standards
When a Bank of a Salt pond is determined to be Significant to fisheries or Wildlife habitat,
Water pollution control, Erosion and sediment control, shellfish, Aesthetics, flood control or
storm damage prevention, FWR 10.37(5) through (8) shall apply.
(5) In addition to the provisions of FWR 10.37(6) through (9), if the Bank of a Salt pond is
also a Coastal Bank, the project must also comply with the provisions of FWR 10.30.
(6) In addition to the provisions of FWR 10.37(5) and (7) through (9), if the Bank of a Salt
pond is also a Coastal Beach, the project must also comply with the provisions of
FWR 10.27.
(7) Any proposed work on a Bank of a Salt pond shall not impair the following:
(a) The physical stability of the Bank:
(b) The water-carrying capacity of the existing channel within the Bank;
(c) Groundwater and surface water quality;
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(d) The capacity of the Bank to provide breeding habitat, escape cover and food for
fisheries;
(e) The capacity of the Bank to provide important Wildlife habitat functions. A project or
projects on a single lot, for which a Permit application(s) is filed on or after (effective
date), that (cumulatively) Alter(s) up to 25 feet of the length of the Bank found to be
Significant to the protection of Wildlife habitat, shall not be deemed to impair its
capacity to provide important Wildlife habitat functions. Additional alterations
beyond the above threshold may be permitted if they will have no Adverse effects on
Wildlife habitat.
(8) Notwithstanding the provisions of FWR 10.37(4) though (7), no project may be permitted
which will have any Adverse effect on habitat sites of rare species.
FWR 10.38
Land Subject to Coastal Storm Flowage51 [Amended effective 7-16-2014]
(1) Introduction
Land subject to coastal storm flowage is Significant to storm damage prevention and flood
control. Land subject to coastal storm flowage is also likely to be Significant to Wildlife
habitat, Recreation, Aesthetics, Erosion and sediment control and Water pollution control.
Storm Damage Prevention, Flood Control and Erosion and Sediment Control:
Velocity zones (VE-zones) and AO-zones of Land subject to coastal storm flowage (VE
zones especially so) are areas which are subject to hazardous flooding, wave impact, and,
in some cases, Significant rates of Erosion as a result of storm wave impact and scour. VE
and AO-zones in coastal areas are generally subject to repeated storm damage which can
result in loss of life and property, increasing public expenditures for storm recovery
activities, historic taxpayer subsidies for flood insurance and disaster relief, and increased
risks for personnel involved in emergency relief programs, alteration of land surfaces in A
zones could change drainage characteristics that could cause increased flood damage on
adjacent properties. A number of complex and interrelated factors determine the wave
height and the landward extent of wave run-up in VE- and AO-zones, including shoreline
orientation, nearshore/off shore bathymetry, on shore topography, wave fetch, storm
frequency and magnitude, and the presence of coastal engineering structures. The
topography, soil characteristics (e.g. composition, size, density, - and shape of soil
material), vegetation, erodibility and permeability of the land surface within VE- and AO
zones are critical characteristics which determine how effective an area is in dissipating
wave energy and in protecting areas within and landward of these zones from storm
damage and flooding. The more gentle and permeable a seaward-sloping land surface is,
the more effective that land surface is at reducing the height and velocity of incoming
storm waves. Wave energy may be expended in eroding and transporting materials
51
Additional regulations regarding Land Subject to Coastal Storm Flowage in the Black Beach/Great Sippewissett Marsh
DCPC are found in FWR 10.39. Additional regulations regarding Land Subject to Coastal Storm Flowage in the Waquoit
Bay ACEC are found in FWR 10.40.
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comprising the land surface within the VE- and AO-zones, as well as by percolation or the
downward movement of the stormwater through more permeable land surfaces, thereby
lessening the effects of backrest, scour and Erosion.
Development in VE- and AO-zones poses environmental problems since construction and
development activities can impair or destroy those characteristics cited above which are
critical to the stated Resource area values.
Dredging or the removal of materials within VE- and AO-zones acts to increase the
landward velocity and height of storm waves, thereby allowing storm waves to break
further inland and to impact upland and wetland Resource areas which might not
otherwise be impacted. Filling and the placement of solid Fill structures within VE- and
AO-zones may cause the refraction, diffraction and/or reflection of waves, thereby forcing
wave energy onto adjacent properties, natural resources, and public or private ways
potentially resulting in otherwise avoidable storm damage. When struck with storm waves,
solid structures within VE- and AO-zones also may increase localized rates of Erosion and
scour.
In some cases, the placement of Fill in hydraulically constricted portions of the coastal
floodplain may increase flood levels in conjunction with heavy rainfall events.
Relative Sea Level Rise Considerations:
Those portions of coastal floodplains which are immediately landward of salt Marshes,
Coastal Beaches, barrier beaches, coastal Dunes or Coastal Banks require special
protection. These areas are likely to be in a state of transition as the entire complex of
Coastal, wetland resources gradually moves landward because of the fact that, "for the
past thousands of years, relative sea level has been rising in Massachusetts, and it is still
rising", (Smith, Clayton, Mayo and Giese, 1978), resulting in inundation of more
landward area. As sea level rises, the shoreline may retreat and areas are successively
inundated more frequently by storm and tidal activity. Activities carried out within these
"special transitional areas" of coastal floodplains may interfere with the natural landward
migration of the adjacent coastal Resource areas. Therefore, maintaining these special
transitional areas in their natural state is necessary to protect the interests of other wetland
resources.
Historical sea level measurements indicate that relative sea level in Massachusetts is
rising at approximately one foot per 100 years. In FEMA designated AE-zones, where
stillwater flooding predominates, the increased flood elevations are proportional to that
increase in the current relative sea level rise rate in Massachusetts. However, in FEMA
designated VE zones, the increased flood elevations will exceed that of a proportional
increase in sea level rise.
Therefore, buildings and other structures should be designed to incorporate a relative sea
level rise of at least one foot per 100 years in AE-zones and at least two feet per 100
years in VE-zones.
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WETLANDS REGULATIONS
FWR 10.38
(2) Definitions, Boundaries, and Critical Characteristics
(a) Definitions
1.
Land Subject to Coastal Storm Flowage
Land subject to coastal storm flowage means land subject to any inundation caused
by coastal storms up to and including that resulting in a one-hundred-year flood,
surge of record, or flood of record, whichever is greater. One-hundred-year flood (or
base flood as it is also referred to) means the flood having a one-percent chance of
being equaled or exceeded in any given year.)
2.
Velocity Zones (VE-)
Velocity zones are those portions of land subject to coastal storm flowage which are
coastal high hazard areas or areas of special flood hazard extending from the inland
limit within the one-hundred-year floodplain seaward supporting waves greater than
three feet in height.
3.
AO-Zones
AO-zones are those portions of Land subject to coastal storm flowage which are
subject to inundation by moving water (usually sheet flow on sloping terrain) where
average depths are between one and three feet. In Massachusetts, coastal AO-zones
are commonly associated with overwash and generally border on the landward side of
V-zones.
4.
A-Zone (AE-)
A-zones are those portions of Land subject to coastal storm flowage which are
subject to inundation by types of one-hundred-year flooding where stillwater
flooding predominates.
5.
Overwash
That portion of storm wave uprush that carries over the crest of a berm, Dune, or
man-made structure, oftentimes depositing sediment or other storm laden material.
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FWR 10.38
(b) Boundary and Boundary Modification Procedure
1.
The Boundaries of the VE- zones within Land subject to coastal storm flowage
shall be determined by reference to the most recently available flood data
prepared for the Town of Falmouth under the National Flood Insurance
Program.52 The landward Boundaries of the AO- zones shown on the Flood
Insurance Rate Map (FIRM) for the community shall be presumed accurate.
2.
The landward Boundary of the AE-zone within Land subject to coastal storm
flowage shall be determined by reference to base flood elevation on the most
recently available flood data prepared for the Town of Falmouth under the
National Flood Insurance Program.52 The Boundaries determined by the base
flood elevation and a topographical plan of the parcel performed by a registered
engineer or other professional competent in such matters and shall be presumed
accurate.
3.
The landward Boundaries of the VE-zones shall be presumed to be 25 feet
landward of the Boundaries shown on the Flood Insurance Rate Map (FIRM).
4.
The landward Boundary of the ten-year floodplain is the estimated maximum
lateral extent of the floodwater which will theoretically result from the
statistical ten-year storm. Said Boundary shall be determined utilizing the tenyear stillwater elevation as published in the community Flood Insurance Study.
5.
Where NFIP flood data are unavailable, the Boundary of any zone within Land
subject to coastal storm flowage shall be the maximum lateral extent of
floodwater typical of that zone which has been observed or recorded.
6.
In the event of a floodplain Boundary conflict, the Commission may require the
Applicant to determine the Boundary by engineering calculations which shall
be:
a.
Based upon the one-hundred-year stillwater flood elevation published in
the effective Flood Insurance Study for the community for the affected
shoreline reach or a revised one-hundred-year stillwater flood elevation
calculated to account for hydrologic changes occurring subsequent to the
effective date of the community Flood Insurance Study;
52
Includes all special flood hazard areas within the Town of Falmouth designated as Zone AE, AO, and VE on the
Barnstable County Flood Insurance Rate Maps (FIRMs) issued by the Federal Emergency Management Agency (FEMA)
for the administration of the National Flood Insurance Program. The map panels of the Barnstable County FIRM that are
wholly or partially within the Town of Falmouth are panel numbers 25001C0492J, 25001C0494J, 25001C0511J,
25001C0513J, 25001C0514J, 25001C0518J, 25001C0707J, 25001C0709J, 25001C0714J, 25001C0716J, 25001C0717J,
25001C0718J, 25001C0719J, 25001C0726J, 25001C0727J, 25001C0728J, 25001C0729J, 25001C0731J, 25001C0732J,
25001C0733J, 25001C0734J, 25001C0736J, 25001C0737J, 25001C0741J, 25001C0742J, 25001C0751J, and 25001C0753J
dated June 17, 2013. Exact boundaries may be defined by the one-hundred-year base flood elevations shown on the FIRM
and further defined by the Barnstable County Flood Insurance Study (FIS) report dated June 17, 2013. The FIRM and FIS
report are incorporated herein by reference and are on file with the Town Clerk, Planning Board and Building Inspector.
The coastal area of the Town shall have base flood elevation levels established according to the Flood Insurance Rate Maps
and Flood Insurance Study for Barnstable County as adopted herein.
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b.
Based upon the appropriate wave height or wave run-up methodology for
the affected shoreline reach as set forth in the FEMA Publication,
Guidelines and Specifications for Flood Hazard Mapping Partners
(Guidelines) - Appendix D: Guidance for Coastal Flooding Analyses and
Mapping. FEMA 2002; and
c.
Prepared and certified by a registered professional engineer.
Notwithstanding FWR 10.38(2)(b)6.a. though c., where a VE-zone has been
depicted on the latest Flood Insurance Rate Map on a barrier beach with a
frontal Dune reservoir less than 540 square feet (as explained in the National
Flood Insurance Program and Related Regulations [44 Code of Federal
Regulations, Chapter 1, Section 65.11]), the VE-zone shall be remapped
pursuant to the provisions of FWR 10.38(2)(b)6.b. and c.
(c) Critical Characteristics
1.
The topography, soil characteristics (i.e., composition, size, shape and density
of material), vegetation, erodibility, and permeability allow for the dissipation
of storm wave energy and, therefore, are the physical characteristics of Land
subject to coastal storm flowage which are critical to the protection of the
statutory interests of flood control and storm damage prevention. In addition,
for areas in A-zones that are hydraulically constricted areas, the ability to store
a volume of floodwater is a critical characteristic. Hydraulically constricted
AE-zones are those in which the base flood elevation is lower on the landward
side of the constriction.
2.
In addition to the above-cited critical characteristics, the proximity of
floodplain areas to water bodies and other wetland resources, makes them
critical to Water pollution control of these abutting Resource areas.
3.
In order to protect existing Coastal or Freshwater wetland Resource area
values, the geographic extent/area of the resource must be maintained. Thus, in
order to maintain the ability of a Resource area to migrate landward in response
to relative sea level rise without loss of area the critical characteristics of Land
subject to coastal storm flowage are topography; frequency, depth and duration
of inundation; and proximity to a Coastal or Freshwater wetland.
(3) Presumptions
(a) Where a project involves removing, dredging, filling, building upon, degrading or
otherwise Altering of Land subject to coastal storm flowage, the Commission shall
presume that said area is Significant to, and the proposed activity will have a
Significant or cumulative effect upon, the Resource area values specified in FWR
10.38(1).
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(b) The following activities proposed within Velocity zones of Land subject to coastal
storm flowage shall be presumed to have a Significant or cumulative adverse effect
on the protected Resource area values;
Construction of:
1.
New structures, including buildings, sheds and garages, and
additions and substantial improvements to existing structures;
reconstruction of any structure which has sustained substantial
damage.
2.
New parallel/shear walls or vertical walls for existing structures;
3.
Impermeable paving for new roads, driveways and parking lots;
4.
New or proposed expansions of coastal engineering structures;
5.
Changes in grade including new mounded septic systems.
(c) The following activities proposed within the AO-zone of a beach, Dune or barrier
beach of Land subject to coastal storm flowage are likely to have a Significant or
cumulative Adverse effect on the protected Resource area values:
Construction of:
1.
New structures, including buildings, sheds and garages, and
additions and substantial improvements to existing structures
supported on a solid foundation or proposed below the base flood
elevation; reconstruction of any structure which has sustained
substantial damage
2.
New parallel walls/shear walls, vertical walls or breakaway walls,
foundation Piers, grade beams, or foundation/structural slabs for
existing structures;
3.
New or proposed expansions of roads, driveways or parking lots, or
impermeable paving for existing unpaved roads, driveways or
parking lots;
4.
New or proposed expansions of coastal engineering structures;
5.
New septic systems.
6.
Alterations to the land form
(d) These presumptions are rebuttable and maybe overcome only upon a clear showing
that said area does not play a role in the protection of said Resource area values. In
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the event that the presumptions are deemed to have been overcome, the Commission
shall make a written Determination to this effect, setting forth the grounds.
(4) General Performance Standards53
(a) When the Commission determines that Land subject to coastal storm flowage (AE,
AO and/or VE zones) overlays other Resource areas listed in FWR 10.00, the
applicable performance standards for each Resource area shall be independently and
collectively applied and the project shall be appropriately conditioned to protect all
stated Resource area values.
(b) When Land subject to coastal storm flowage (AE, AO and/or VE-zones) is
Significant to the Resource area values of flood control and storm damage
prevention, the following performance standards shall apply:
1.
Any activity shall not have an Adverse effect by increasing the elevation or
velocity of floodwaters or by increasing flows due to a change in drainage or
flowage characteristics (e.g., change in direction) on the subject site, adjacent
properties, or any public or private way.
2.
a.
Relative sea level rise and the landward migration of Resource areas in
response to relative sea level rise shall be incorporated into the design and
construction of structures and other activities proposed in Land subject to
coastal storm flowage.
53
In addition to these regulations, all development including structural and non-structural activities, must be in compliance
with Chapter 131, Section 40 of the Massachusetts General Laws and with the following:
—
Section of the Massachusetts State Building Code which addresses floodplain and coastal high hazard
areas (currently 780 CMR);
—
Wetlands Protection Regulations, Department of Environmental Protection (DEP) (currently 310
CMR 10.00);
—
Inland Wetlands Restriction, DEP (currently 310 CMR 13.00);
—
Coastal Wetlands Restriction, DEP (currently 310 CMR 12.00);
—
Minimum Requirements for the Subsurface Disposal of Sanitary Sewage, DEP (currently 310 CMR 15,
Title 5);
Any variances from the provisions and requirements of the above referenced state regulations may only be granted in
accordance with the required variance procedures of these state regulations.
In Zone AE, along watercourses that have not had a regulatory floodway designated, the best available Federal, State, local,
or other floodway data shall be used to prohibit encroachments in floodways which would result in any increase in flood
levels within the community during the occurrence of the base flood discharge.
In a riverine situation the, Building Commissioner, shall notify the following of any alteration or relocation of a
watercourse:
■
Adjacent Communities
■
NFIP State Coordinator
Massachusetts Department of Conservation and Recreation
251 Causeway Street, Suite 600-700
Boston, MA 02114-2104
■
NFIP Program Specialist
Federal Emergency Management Agency, Region I
99 High Street, 6th Floor
Boston, MA 02110
Within Zone AO on the FIRM, adequate drainage paths must be provided around structures on slopes, to guide floodwaters
around and away from proposed structures.
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b.
At a minimum, for activities proposed in AE-zones, the historic rate of
relative sea level rise in Massachusetts of one foot per 100 years shall be
incorporated into the project design and construction.
c.
At a minimum, for activities proposed in the VE-zone, a two-foot
elevation per 100 years shall be incorporated into the project design and
construction.
d.
Any activity within the ten-year floodplain of Land subject to coastal
storm flowage shall not have an Adverse effect by impeding the landward
migration of other Resource areas within this area of the floodplain.
(c) When an A-zone that is hydraulically constricted is Significant to the interests of
flood control or storm damage prevention, the following additional performance
standards shall apply:
1.
A proposed activity, shall not result in flood damage due to filling which
causes lateral displacement of floodwaters that, in the judgment of the
Commission, would otherwise be confined within said area; unless,
2.
Compensatory storage is provided for all flood storage volume that will be lost
as the result of a proposed project within this area when, in the judgment of the
Commission, said loss will cause an increase or contribute incrementally to an
increase in the horizontal extent and level of floodwaters.
Compensatory flood storage shall mean a volume not previously used for flood
storage and shall be incrementally equal to the theoretical volume of
floodwater at each elevation, up to and including the one-hundred-year flood
elevation, which would be displaced by the proposed activity. Compensatory
flood storage shall be provided within the same general area as the lost area and
must maintain or create an unrestricted hydraulic connection within said area.
(d) A proposed project within a Velocity zone shall not destroy or otherwise impair the
function of any portion of said landform and/or shall not have an adverse effect on
adjacent wetland Resource areas. Activities and their ancillary uses in Velocity zones
which result in alterations to vegetative cover, interruptions in the supply of sediment
to other wetland resources, and/or changes to the form or volume of a Dune or beach
will have an Adverse effect on said landform’s ability to provide storm damage
prevention and flood control and are, therefore, prohibited. These activities include,
but are not limited to:
Construction of:
1.
New structures, including buildings, sheds and garages, and additions or
substantial improvements to existing structures;
2.
Foundations other than open pilings or columns;
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3.
New or proposed expansions of roads, driveways or parking lots, or
impermeable paving for existing unpaved roads, driveways or parking lots;
4.
New or proposed expansions of coastal engineering structures;
5.
New septic systems.
(e) Notwithstanding the provisions of FWR 10.38(4)(a) through (d), the Commission
may permit the following activities provided that the Applicant demonstrates, to the
satisfaction of the Commission, that Best available measures are utilized to Minimize
Adverse effects on all critical characteristics of Land subject to coastal storm
flowage, and provided that all other performance standards in FWR are met:
(f)
1.
Beach, Dune and Bank nourishment and restoration projects, including fencing
and other devices designed to increase Dune development and plantings
compatible with natural vegetative cover;
2.
Boat launching facilities used in the service of the public and navigational aids;
3.
Improvements necessary to maintain the structural integrity/stability of existing
coastal engineering structures;
4.
A project which will restore, rehabilitate or create a salt Marsh or Freshwater
wetland;
5.
Projects that are approved, in writing, or conducted by the Division of Marine
Fisheries that are specifically intended to increase the productivity of Land
containing shellfish, or to maintain or enhance fisheries;
6.
Projects that are approved, in writing, or conducted by the Division of Fisheries
and Wildlife that are specifically intended to enhance or increase wildlife
habitat.
Notwithstanding the provisions of FWR 10.38(4)(a) through (e), the Commission
may approve small additions to an existing structure provided:
1.
All other provisions of FWR are met;
2.
The structure is not in any Resource area other than Land subject to coastal
storm flowage;
3.
The structure is not in an area subject to FWR 10.18 Resource Area Buffer and
4.
The cumulative size of addition(s) to the structure since (effective date) does
not exceed 200 square feet.
(g) Notwithstanding the provisions of FWR 10.38(4)(a) through (f), no project may be
permitted which will have any Adverse effect on habitat sites of rare species.
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FWR 10.39:
Land or Waters within Black Beach/Sippewissett Marsh District of Critical
Planning Concern54
(1) Introduction. The land and waters within the Black Beach/Sippewissett Marsh District of
Critical Planning Concern (the District) are likely to be Significant to the prevention of
flood damage by limiting of development in flood hazard areas, Prevention of damage to
structures and natural resources as a result of Erosion, Improvement of water quality,
Protection and enhancement of existing vegetative cover in order to maintain water quality
and Wildlife habitat, protection of Wildlife, waterfowl, and plant habitat and the
maintenance of existing populations and species diversity, prevention of loss or
degradation of Critical wildlife and plant habitat, Prevention of new stormwater runoff
discharges and the improvement of existing stormwater runoff discharges, Protection of
coastal ecosystems which support the continued viability of Harvestable shellfish and
finfish habitat, public access to water and land, improvement of Groundwater recharge,
and the minimization of the impact of new development, reconstruction and/or expansion
on the Resource area values listed above.
The land in this Resource area may also be Significant to protection of public and private water
supply, protection of Groundwater supply, flood control, storm damage prevention, prevention
of pollution, protection of Land containing shellfish, protection of fisheries, protection of
Wildlife habitat, protection of Aesthetics, prevention of Erosion, protection of Recreation,
depending on what other Resource area(s) may be present.
This Resource area contains nationally Significant ecological and natural resources including
freshwater and tidal wetlands, waterfowl, shorebird and migratory bird habitat, rare species,
shellfish and finfish, mud and sand Flats, and a barrier beach/Dune/Marsh system which
possess Recreational, scientific, and educational values.
In recognition of the presence of these resources, the federal Fish and Wildlife Service
completed an Environmental Assessment (1993) which proposed federal designation of the
Sippewissett Marshes National Wildlife Refuge, encompassing a portion of the District. The
District is also located on Buzzards Bay which has been designated by the Environmental
Protection Agency as an Estuary of national significance leading to a program to enhance water
quality and natural resources through the Buzzards Bay Project National Estuary Program.
The Marshes, fresh pond, and two other small Ponds west of Great Sippewissett Marsh (the
Marsh) are designated by the Association for the Preservation of Cape Cod as critical habitat
due to their many functional values. In addition, the Sippewissett Marshes have been identified
54
Pursuant to Barnstable County Ordinance 96-1 and Section 22(c) of the Cape Cod Commission Act, expansions and
alterations of single-family residential dwellings in existence as of July 1, 1989, are not subject to the provisions of FWR 1.39
provided the total gross floor area of such expansion or alteration does not exceed twenty-five percent (25%) of the total
gross floor area of the dwelling in existence as of July 1, 1989. Additions which exceed this threshold are subject to the
provisions of FWR 10.39. Single-family dwellings constructed after July 1, 1989, multifamily dwellings, and nonresidential
structures are subject to the provisions of FWR 10.39 regardless of the size of the expansion or alteration. Exemption from
FWR 10.39 does not exempt the Applicant from any other provision of FWR 10.00 or any other local bylaw, or state and
federal statutes. The definition of total gross floor area is found in § 240-13 of the Code of Falmouth under "GROSS
(LEASABLE) FLOOR AREA."
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by the Northeast Coastal Areas Study as one of seven sites from the Cape and Islands Region
that provide Significant coastal habitat. According to the Fish and Wildlife Service, five coastal
habitat types and approximately 40 species of special emphasis or management concern are
supported by the Sippewissett Marshes ecosystem. These Marshes provide breeding/spawning,
nursery, feeding/staging, wintering and migratory habitat of importance to several species of
regional or national significance.
The area is home to several state-listed rare and endangered species. The Massachusetts Natural
Heritage and Endangered Species program has designated and mapped the area as a "high
priority site of rare species habitat and exemplary natural community" and noted the presence
of two state listed species within the proposed District: the federally listed piping plover
(Charadrius melodus) Arethusa (Arethusa bulbosa) -- a perennial orchid- and New England
Blazing Star (Liatris scariosa v. novae-angliae). The Fish and Wildlife Service identify the
presence of a number of state and federally listed species within the area including Least Terns
(Sterna albifrons), Northern Diamondback Terrapin (Malaclymys terrapin), Salt Pond Grass
(Diplachne maritima), Bushy Rockrose (Helianthemum dumosum).
In addition to rare species present within the District, the Fish and Wildlife Service has
conducted an extensive survey of plant and Wildlife habitat found within the Sippewissett
Marshes area. Their analysis notes that the area provides feeding and overwintering habitat for
American Black Duck (Anas Rubripes), Canada Geese (Branta canadensis), forage for terns,
herons, egrets, and bitterns, nesting habitat for osprey and various songbirds, and migratory
bird habitat for neotropical migrating birds. The Marshes and associated Creeks and shallows
provide nursery areas for commercially important fish species including winter flounder,
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bluefish, striped bass and tautog. Menhaden and American sandlance use the Marsh as a
nursery area and a variety of smaller resident species provide a food source for larger sport and
commercial fish species. Soft shell (Mya arenaria) and hard shell clams (Mercenaria
mercenaria) occur on the mud Flats and along the outer beach, and the area has supported
occasional bay scallop (Argopecten irradians) fisheries providing a potential commercial and
Recreational shellfishing resource. The first shellfish closures of the area due to bacteriological
contamination occurred in approximately 1983. The area is currently classified as "seasonally
approved" and shellfishing is permitted during winter months.
It is important to maintain the features of the beach which make it critical habitat, and a Natural
Heritage high priority site for these species, as well as essential habitat for all species that
depend upon the Marsh/barrier beach complex. However, the water quality and ecological
values of the Marsh/beach complex are threatened by increasing development and current
management practices.
According to the Massachusetts Division of Marine Fisheries Sanitary Survey Report (1993)
stormwater runoff, coupled with poor flushing, is one of the primary sources of shellfish
contamination problems in the District. Site preparation and development activities including
grading, clearing, alteration of topography and the construction of structures, roads and
driveways may Alter drainage patterns and introduce pollutants and sediment to the Marsh
through runoff. Grading and filling activities increase the compaction of subsurface soils,
decrease soil fertility and change permeability and drainage characteristics. Grading of areas
contributing direct discharge to the Marsh also causes increased turbidity, decreased pH,
changes in salinity and reduced dissolved oxygen levels that will adversely affect fish and
invertebrate populations. The Massachusetts Highway Department (MHD) storm drainage
system on Route 28A has two drainage pipes that lead directly to the Marsh. Stormwater runoff
has been indicated to be a primary source of fecal coliform contamination in the Marsh -- an
important indicator of shellfish quality according to the 1993 Sanitary Survey. High fecal
coliform counts have been particularly prevalent during the summer months.
Runoff from developed upland areas other than roads can also contribute Significant amounts
of contaminants to the Marsh. Runoff from upland areas can contain fertilizers and pesticides
from lawns and contaminants from precipitation on roofs and driveways. Natural buffer strips
can significantly reduce contaminant loads from developed areas. The efficiency of buffer strips
depend on their width, slope and type and extent of vegetation.
Buffer strips are also important for the role that they play in protecting and maintaining
Wildlife habitat. According to the Fish and Wildlife Service, the alteration or elimination of
surrounding upland and backdune habitat, and associated transition zones has a pronounced
adverse impact on resident and migratory Wildlife. Additional development within the District
is likely to result in the removal of vegetation, particularly the wooded buffer areas Bordering
the Marsh and associated wetlands. This will result in alteration of vegetative structure, species
composition and distribution patterns, and habitat fragmentation contributing to the direct loss
of Wildlife habitat and biodiversity.
According to the Fish and Wildlife Service, disturbance of piping plover and least tern nesting
areas by human and domestic animal incursions is a serious problem throughout the region, and
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has led to the abandonment of many former piping plover and tern colonies. Human/animal
disturbances are likely to have an adverse impact on many other species as well.
The District contains two barrier spits. These are known as Black Beach and the Saconessett
Hills Barrier Spit. They are designated as Fm-31 and Fm-30 respectively by the Massachusetts
Coastal Zone Management's 1982 Barrier Beach Inventory Project. Black Beach is also a
federally designated unit of the Federal Coastal Barrier Resource System.
The barrier spits protect the Marsh, shoreline areas, and upland areas behind the Marsh by
serving as a buffer to storm waves and storm surges. It is a dynamic area where the beach and
Dunes are constantly changing as a result of wind and wave action, influenced by natural and
human activities as well as relative sea level rise. Like most barrier beaches, Black Beach is
attempting to move landward, as indicated by visible storm overwash fans deposited in the
Marsh behind the Dunes. This landward migration is part of the natural cycle of barrier beaches
and the process of overwash plays an important role in the dissipation of wave energy and
protection of upland areas behind the barrier beach. As storm waves erode the seaward side of
the barrier beach, overwashed material is carried into the Marsh and provides a substrate for the
formation of new Dune areas, shifting the barrier beach landward.
On an undeveloped barrier beach, this process can occur unimpeded, however, development on
barrier beaches including buildings, septic systems, roadways, seawalls, revetments, and groins
Alters this natural cycle. Such structures prevent overwash and interfere with beach grass and
Dune growth, contributing to Erosion in surrounding areas. These disturbances are damaging to
the stability and function of the system as a whole and over the long term will interfere with the
landward migration of the barrier beach and make the beach increasingly susceptible to
breaching. According to "Guidelines for Barrier Beach Management in Massachusetts (1994),"
once the natural beach and Dune rebuilding processes are interrupted, the barrier beach
defenses against future storms are diminished. In an attempt to "stabilize" the barrier beach
through armoring, such as building a seawall or revetment, the beach areas adjacent to and in
front of the armoring erode or scour at an accelerated rate and may entirely disappear over time.
The Guidelines recommend that "whenever possible, Coastal Banks serving as sediment
sources for adjacent barrier beaches remain or be returned to an undeveloped, unarmored state
in order to allow for healthy beaches and Dunes." The same is true for coastal Dunes that
function in the same manner.
Existing houses, the Marsh, adjacent shoreline and upland areas will become vulnerable to
direct wave attack, in the event of a breach in Black Beach. Protecting the integrity and
function of the barrier beach system requires attention to three components -ensuring sediment
supply to the area, maintaining vegetative cover and maintaining the beach elevation.
Existing and future development will continue to adversely affect the natural process of Erosion
and migration on the barrier beach. Expansion of existing houses and increased intensity of use
of a property on the primary Dune or barrier beach may weaken the integrity and elevation of
the bather itself. Septic systems and cesspools within this area may result in the introduction of
bacteria and viruses to the Marsh due to shallow depth to Groundwater and periodic flooding.
In the V-zone, during catastrophic or extreme storms the septic system effluent can be released
into the water. Development on the beach also results in the removal of stabilizing vegetation.
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The continued reliance on revetments, seawalls and jetties to protect property on the beach, will
further starve downdrift areas of sediment and further weaken the barrier beach.
In addition, most of the District is within FEMA V and A flood zones. Approximately 50% of
the District is in the mapped FEMA Velocity zone. This is an area which is subject to hazardous
flooding, wave impact, and Erosion as a result of storm wave impact and scour. Development in
these areas is at extreme risk - and can pose a hazard to nearby areas. For example, dredging or
removal of materials within V-zones acts to increase the landward velocity and height of storm
waves, thereby allowing them to break further inland and to impact adjacent upland and
wetland areas which might not otherwise be impacted. Filling and the placement of solid
structures within V-zones may cause the refraction, diffraction and/or reflection of waves,
thereby forcing wave energy onto adjacent properties, natural resources, and public or private
ways potentially resulting in otherwise avoidable storm damage and/or increased rates of
Erosion and scour. (U.S. Army Corps of Engineers, 1984)
Most of the remainder of the District is located in the FEMA A-zone. Alteration of land
surfaces in FEMA A-zones will change drainage characteristics that can result in increased
flood damage on adjacent properties. In addition, flooding within these areas leads to property
damage. Loss of property resulting from wave and wind damage in V-zones, as well as from
stillwater flooding within A-zones, is responsible for millions of dollars in flood insurance
claims and taxpayer costs in Massachusetts. As a result of just three storms in 1991-1992, the
repair of public roads, seawalls, sewer and water lines, buildings and other public facilities in
Massachusetts cost to taxpayers over $50,000,000 (in addition to moneys paid from the
National Flood Insurance Program).
The area within the District received a Significant amount of storm damage as a result of
Hurricane Bob. In addition, the elevation of the Dunes was lowered due to lack of sediment
supply as a result of revetments and groins along the coastline and redistribution of sand from
Hurricane Bob, leaving the area vulnerable to future storms. Future hurricanes will likely affect
this area in a similar manner.
Finally, storm damage in the future is likely to be even more devastating as a result of relative
sea level rise. Historical sea level measurements indicate that relative sea level is rising at
approximately one foot every 100 years (Giese, et al., 1987). As a result, the Massachusetts
Coastal Zone Management Program and the Barnstable County Regional Policy Plan both
recommend that buildings, septic systems, and other structures be designed to accommodate a
relative sea level rise of at least one foot within FEMA A- and V-zones. More recent research,
indicates that a two-foot increase in elevation within V-zones is likely to be necessary due to
increases in wave height within these areas. Research by the Cape Cod Commission on
naturally vegetated areas adjacent to wetlands and water bodies notes the importance of
maintaining fringing upland areas around these resources in order to allow landward migration
of both inland and Coastal wetlands in response to sea level rise. If these areas are not
protected, wetlands are likely to become flooded and lost as sea level rises.
Much of the available knowledge concerning the function and human value of the New
England salt Marsh, including the information summarized in this preamble, has been learned
from scientific research conducted in the Great Sippewissett Marsh. During the past two or
three decades, over 100 scientific reports and these have been published on all aspects of salt
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Marsh ecology, based on research at the Great Sippewissett Marsh. The accumulated scientific
data is without equal in the world and the protection of this natural system will allow this
important research work to continue to build upon past efforts.
The Black Beach/Marsh area described above qualified under Section 10(a) of the Cape Cod
Commission Act for designation as a District due to the following factors:
- The presence of Significant natural, coastal, and scientific resources; and
- The presence of substantial areas of sensitive ecological Conditions which render the
area unsuitable for development.
As proposed by the town, and in accordance with the District of Critical Planning Concern
Guidance Document, dated December 1990, this District was designated as a Wildlife, Natural,
Scientific and Ecological District; and a Hazard District. The Ecological District contains
important and identifiable Wildlife, natural, scientific and ecological resources including but
not limited to, plant, animal and marine life and their habitats, as well as unusual geological
features. The District is highly susceptible to hazards due to natural or man-made Conditions
including but not limited to, marginal soil, or topographic Conditions which render it unsuitable
for intense development, flooding, waste treatment, Groundwater, Erosion, construction
problems, salt water intrusion, and pollution.
(2) Definition, and Boundary
(a) Land or Waters Within the Black Beach/Great Sippewissett Marsh District of Critical
Planning Concern includes all areas within the Black Beach/Great Sippewissett
Marsh District of Critical Planning Concern that was created by Barnstable County
Ordinance 96-1.
(b) Unless otherwise stated or otherwise specified in the Falmouth Zoning Code,55 the
definitions in Barnstable County Ordinance 96-1 shall apply to FWR 10.39.
(c) Total cumulative Resource area impacts means all areas of a lot and/or parcel of land
not in a Naturally vegetated condition and includes but not is limited to: rooftops,
driveways, parking areas, gardens, lawns, paths, walkways, Docks, and Piers.
(d) Naturally vegetated condition means an area on a lot or parcel of land that:
55
1.
Is left in a natural, undisturbed vegetative state;
2.
Has existed in a primarily natural, undisturbed state, but has been enhanced
with indigenous plantings conducive to improved Wildlife habitat according to
a plan approved by the Conservation Commission; or
3.
Has been disturbed; but is revegetated with indigenous plantings that will
return the land to its predisturbance condition according to a plan approved by
the Conservation Commission.
Editor's Note: See Ch. 240, Zoning.
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(e) The Boundary of the Black Beach/Great Sippewissett Marsh District of Critical
Planning Concern is depicted on the attached map "Black Beach/Great Sippewissett
Salt Marsh DCPC."
(3) Presumption.
(a) Where a project involves removing, filling, dredging, building upon or otherwise
Altering of land or waters within the Black Beach/Great Sippewissett Marsh District
of Critical Planning Concern, the Commission shall presume that such area is
Significant the Resource area values specified in FWR 10.39(1). This presumption is
rebuttable and may be overcome upon a clear showing that said land does not play a
role in the protection of said Resource area values. In the event that the presumption
is deemed to have been overcome, the Commission shall make a written
Determination to this effect, setting forth the grounds.
(b) In the Black Beach/Great Sippewissett Marsh District of Critical Planning Concern,
the following activities shall be presumed to be Significant to some or all of the
Resource area values specified in FWR 10.39(1). This presumption is rebuttable and
may be overcome upon a clear showing that said land does not play a role in the
protection of said Resource area values. In the event that the presumption is deemed
to have been overcome, the Commission shall make a written Determination to this
effect, setting forth the grounds.
1.
The use of septic systems is Significant to Improvement of water quality and
the Protection of coastal ecosystems which support the continued viability of
Harvestable shellfish and finfish habitat;
2.
The construction, use, and maintenance of Docks and Piers is Significant to
impacts on prevention of flood damage by limiting of development in flood
hazard areas, Prevention of damage to structures and natural resources as a
result of Erosion, Protection and enhancement of existing vegetative cover in
order to maintain water quality and Wildlife habitat, protection of Wildlife,
waterfowl, and plant habitat and the maintenance of existing populations and
species diversity, prevention of loss or degradation of Critical Wildlife and
plant habitat, Protection of coastal ecosystems which support the continued
viability of Harvestable shellfish and finfish habitat, public access to water and
land, and the minimization of the impact of new development, reconstruction
and/or expansion on the Resource area values listed above.
(c) In the Black Beach/Great Sippewissett Marsh District of Critical Planning Concern,
the following activities shall be presumed to adversely affect some or all of the
Resource area values specified in FWR 10.39(1). This presumption is rebuttable and
may be overcome upon a clear showing that said land does not play a role in the
protection of said Resource area values. In the event that the presumption is deemed
to have been overcome, the Conservation Commission shall make a written
Determination to this effect, setting forth the grounds.
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1.
Any proposed septic system or repair to an existing septic system proposed that
is not in Compliance with the setback requirements of FWR 10.03(3)(c)
2.
Existing stormwater discharges, where no mitigation is provided pursuant to
FWR 10.39(25);
3.
Existing Docks and Piers; and
4.
Land not in a Naturally vegetated condition.
(4) General Performance Standards. Work in the Black Beach/Great Sippewissett Marsh
District of Critical Planning Concern shall meet the performance standards for any other
Resource areas within which work is proposed and, where the presumption set forth in
FWR 10.39(3) is not overcome, FWR 10.39(5) through (29) shall apply.
(5) When the Commission determines that Land or Waters within Black Beach/Sippewissett
Marsh District of Critical Planning Concern overlays other Resource areas listed in
FWR 10.21 through 10.60, the applicable performance standards for each Resource area
shall be independently and collectively applied and the project shall be appropriately
conditioned to protect all stated Resource area values.
(6) (a) Work on an undeveloped lot shall Minimize the total cumulative Resource area
impacts pursuant to FWR 10.05(7)(f)1..
(b) Work on a developed lot where the existing total cumulative Resource area impacts
are less than that specified in FWR 10.05(7)(f)1., shall be designed so that the total
cumulative Resource area impacts after the proposed project is completed, do not
exceed those specified in FWR 10.05(7)(f)1.
(c) Work on a developed lot where the existing total cumulative Resource area impacts
are greater than FWR 10.05(7)(f)1., may be permitted provided that the total
cumulative Resource area impacts after the proposed project is completed, have been
reduced.
1.
The Conservation Commission shall presume that an Applicant has satisfied
the requirements of FWR 10.39(6)(c) if 10% of the land area in excess of the
amount specified in FWR 10.05(7)(f)1. is returned to a Naturally vegetated
condition. The Determination of which area of a lot is returned to a Naturally
vegetated condition pursuant to this presumption shall be at the discretion of
the Applicant.56
(7) Notwithstanding the provisions of FWR 10.39(6), no project shall Remove, Fill, dredge,
build upon, degrade, or otherwise Alter land that is in a Naturally vegetated condition and
acts as a buffer to the following Resource areas: land under the Ocean; Land under
56
Commentary: A presumption has been created to provide certainty to the Applicants of the maximum reduction in total
cumulative Resource area impact that would be requested by the Conservation Commission pursuant to FWR 10.39(6)(c).
Notwithstanding this presumption, the Conservation Commission may determine that less area returned to its Naturally
vegetated condition meets the requirement of FWR 10.39(6)(c).
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estuaries; salt Marsh; Land under a Salt pond; land containing species that are endangered,
rare, threatened, or of special concern; Freshwater wetlands; Land under water bodies; or
Vernal pool. A buffer width of at least 200 and no more than 300 feet is required unless
otherwise specified in FWR 10.39. The Commission shall determine the exact buffer
width based on the following factors:
(a) Existing wetland functions, values and sensitivity to disturbance;
(b) Buffer characteristics;
(c) Land use impacts; and
(d) Buffer functions.
(8) Notwithstanding the provision of FWR 10.39(7), the distances specified in FWR 10.39(7)
may be Modified in a manner consistent with the provisions of FWR 10.18, but in no case
shall the buffer distance be less than 100 feet.
(9) Notwithstanding the provision of FWR 10.39(7), the Commission may permit the
following in the area specified in FWR 10.39(7)and(8):
(a) Activities having minimal adverse impacts on buffers and no adverse impacts on the
Resource area for which the buffer is provided. These activities may include low
intensity, passive Recreational activities such as pervious trails, nonpermanent
Wildlife watching blinds, short-term scientific or educational activities, and sports
fishing or hunting.
(10) A building setback line of 15 feet is required from the edge of any land in its Naturally
vegetated condition pursuant to FWR 10.39(7). Minor structural intrusions into the area of
the building setback may be allowed if the Conservation Commission determines that such
intrusions will not negatively impact the Resource area values specified in FWR 10.39(1).
The setback shall be identified on a site plan which is filed as an attachment to the order of
conditions.
(11) No new, or expansion and/or enlargement of an existing, bulkhead, revetment, seawall, or
other coastal engineering structure shall be permitted on a Coastal Bank.
(12) Notwithstanding the provisions of FWR 10.39(6) through (11), no project shall be
permitted which will have any Adverse effect on land under the Ocean, or if proposed on
Land under a Salt pond, on lands within 100 feet of the mean high water line of a Salt
pond, or on land under a body of water adjacent to a Salt pond, shall be permitted which
will have any Adverse effect on the marine fisheries or Wildlife habitat of the Salt pond,
or ability of the public to access the land and waters of the Salt pond.
(13) Notwithstanding the provisions of FWR 10.39(6) through (12), the Commission may issue
a permit for limited dredging for the purpose of improving tidal circulation and water
quality, to improve or provide tidal flow through relict or existing tidal channels to
openings through the railroad dike,
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(14) Notwithstanding the provisions of FWR 10.39(6) through (12), no project, including the
reconstruction or repair of existing coastal engineering structures, shall be permitted which
will have any Adverse effect on a Coastal Beach.
(15) Notwithstanding the provisions of FWR 10.39(6) through (14), no project, including the
reconstruction or repair of existing coastal engineering structures, shall be permitted on a
coastal Dune or within 100 feet of a coastal Dune which would have an Adverse effect on
the Dune by:
(a) Affecting the ability of waves to Remove sand from the Dune;
(b) Disturbing the vegetative cover so as to destabilize the Dune;
(c) Causing any modification of the Dune form that would increase the potential for
storm or flood damage;
(d) Interfering with the landward or lateral movement of the Dune;
(e) Causing removal of sand from the Dune artificially; or
(f)
Interfering with mapped or otherwise identified bird nesting habitat.
(16) Notwithstanding the provisions of FWR 10.39(15), the Commission may permit a repair or
replacement to an existing septic system on a coastal Dune or within 100 feet of a coastal
Dune, provided Best available measures are used to Minimize any Adverse effect on the
Dune caused by:
(a) Affecting the ability of waves to Remove sand from the Dune;
(b) Disturbing the vegetative cover so as to destabilize the Dune;
(c) Causing any modification of the Dune form that would increase the potential for
storm or flood damage;
(d) Interfering with the landward or lateral movement of the Dune;
(e) Causing removal of sand from the Dune artificially; or
(f)
Interfering with mapped or otherwise identified bird nesting habitat.
(17) FWR 10.39(14) and (15) shall apply to all Coastal Beaches and to all coastal Dunes which
make up a barrier beach in the Black Beach/Great Sippewissett Marsh District of Critical
Planning Concern.
(18) Notwithstanding the provisions of FWR 10.39(14) through (17), the Commission may
permit a project on a beach, Dune, or barrier beach, provided:
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(a) The project is a Resource area restoration project consistent with the Black
Beach/Great Sippewissett Marsh District of Critical Planning Concern Management
Plan approved by the Cape Cod Commission pursuant to Barnstable County
Ordinance 96-1;
(b) The project meets the other provisions of FWR 10.00; and
(c) The project meets the provisions of 310 CMR 10.00; or
(d) The project is the repair or replacement, but not the expansion and/or enlargement, of
a Lawfully located structure in existence as of January 17, 1996, owned by the Town
of Falmouth and used in the service of the public.
(19) Notwithstanding the provisions of FWR 10.39(6) through (18), when a project is proposed
on a salt Marsh, on lands within 100 feet of a salt Marsh, or in a body of water adjacent to
a salt Marsh, the project shall not destroy any portion of the salt Marsh and shall not have
an Adverse effect on the productivity of the salt Marsh. Alterations in growth, distribution
and composition of salt Marsh vegetation shall be considered in evaluating Adverse effects
on productivity.
(20) Notwithstanding the provisions of FWR 10.39(6) through (18), no project, except for
Resource area restoration project consistent with the Black Beach/Great Sippewissett
Marsh District of Critical Planning Concern Management Plan approved by the Cape Cod
Commission pursuant to Barnstable County Ordinance 96-1, shall be permitted which will
have any Adverse effect on Land under a water body, an inland Bank, Freshwater wetland,
or Vernal pool habitat.
(21) Notwithstanding the provisions of FWR 10.39(6) through (20), the Commission may
approve the reconstruction of roads and common drives existing as of January 17, 1996,
provided such road and common drives are constructed of crushed three-eighths (3/8), 1/2,
3/4 stone, bank run gravel, or like material, and does not contain a binder material such as
asphalt, "processed stone, "stone dust," or like material, or where a town way, private way
or common drive was paved as of January 17, 1996, the Commission may approve
repaving provided the width of the paved surface does not increase.
(22) No new, or replacement, or substantial repair of an existing, Dock or Pier shall be
permitted.
(23) Consistent with FWR 10.28, and 10.38, no septic tank may be placed in ground in a Dune,
and no changes in elevation may take place in the Velocity zone.
(24) The design of the system for stormwater management for new projects shall be consistent
with the provisions of FWR 10.16(3) unless otherwise specified in FWR 10.39(24)(a)
through (d).
(a) No increase will be allowed in the peak rate of runoff for two-, ten-, twenty-five-, and
one-hundred-year twenty-four-hour storm events.
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(b) The total volume of post-development runoff shall not exceed the pre-development
runoff volume for storms up to the two-year, twenty-four hour design storm.
(c) Treatment for the first flush shall be provided to achieve eighty-percent removal of
total suspended solids, and treatment processes to Remove nitrogen at an efficiency
rate of 30% or greater.
(d) No micropool extended detention basins or biofilter shall be approved.
(25) Notwithstanding the provisions of FWR 10.14(3) and 10.39(24),
(a) Any project that contains 10% impervious lot coverage or less shall not be required to
meet the requirements of FWR 10.14(3) and 10.39(24), provided said impervious
cover is not connected57 to a Resource area specified in FWR 10.39(7);
(b) Any redevelopment/reconstruction project that contains more than 10% impervious lot
coverage, or any impervious lot coverage, shall be required to meet the requirements
of FWR 10.39(24)(b) through (d), and shall have a non-erosive discharge for the twoyear storm.
(26) Notwithstanding the provisions of FWR 10.39(6) through (25), the provisions of
FWR 10.39(6) through (25) shall not apply to the routine maintenance of existing roads
and driveways, provided that the overall width of the traveled surface is not widened.
Routine maintenance shall be limited to winter sanding operations, regrading, and filling
of potholes.
(27) Notwithstanding the provisions of FWR 10.39(6) through (25), no project shall be
permitted which will have any Adverse effect on habitat sites of rare species.
(28) Notwithstanding the provisions of FWR 10.39(6) through (27), no project shall be
permitted which will have any adverse impact on Land containing shellfish.
(29) Notwithstanding the provisions of FWR 10.39(6) through (28), the Commission may
permit a research project that requires a location in the Lands and Waters of the Black
Beach/Great Sippewissett Marsh District of Critical Planning Concern.
FWR 10.40
Land and Water in the Waquoit Bay Area of Critical Environmental Concern.
(1) Introduction. The Land and Water in the Waquoit Bay Area of Critical Environmental
Concern is likely to be Significant to the following Resource area values: fisheries,
shellfish58, Water pollution control, storm damage prevention, flood control, and
Aesthetics.
Following an extensive nomination and evaluation process, the ACEC in Falmouth was
designated by the Secretary of Environmental Affairs on November 26, 1979.
57
58
Connected as defined in TR-55.
For regulations concerning Land containing shellfish, see FWR 10.34.
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The natural components of the Waquoit Bay ACEC include a long barrier beach system, Dunes
and sandy beaches, acres of salt Marsh, productive shellfish beds, a large Estuary, anadromous
fish runs, floodplain, and extensive areas for boating and swimming. The Estuary is habitat for
upland species and waterfowl as well as a spawning and nursery ground for many marine
species. The beaches, Dunes and Marshes protect adjacent upland from storm damage.
This unpolluted estuarine system supports a wide range of fin fish and shellfish species. Clean
water must be maintained to protect the fishery resource as well as the public health of
Recreational boaters, fishermen and swimmers. The biological product of this estuarine system
is sustained by the contiguous Salt ponds and salt Marshes which contribute large quantities of
nutrients, carbon and energy to the coastal food chain. Minimum alteration of the natural
features of the ACEC will allow them to function at their natural capacity.
These undeveloped expanses also contribute to the scenic beauty enjoyed by users of the
ACEC.
Both the Moonakis and Childs Rivers are sensitive to pollution due to a limited flushing
capability. Both have anadromous fish runs.
The Moonakis River's mouth is constricted by a large, shifting sand Flat creating a narrow
channel approximately two feet deep at MLW. This Flat is a productive shellfish bed harvested
year round by commercial and Recreational fishermen. There is a successful restoration
program for sea run brown trout in the headwaters and upstream reaches of the Moonakis River,
where it is called the Quashnet River.
(2) Definition, Critical Characteristics, Boundary
(a) Area of Critical Environmental Concern (ACEC) means an area which has been so
designated by the Secretary in accordance with 310 CMR 6.40 through 6.55 of the
CZM Regulations.
(b) The landward extent of the ACEC is the eleven-foot contour.
(3) Presumption
Where a project involves removing, dredging, filling, building upon, degrading or otherwise
Altering of land or waters within the Waquoit Bay Area of Critical Environmental Concern, the
Conservation Commission shall presume that said area is Significant to, and the proposed
activity will have a Significant or cumulative effect upon, the Resource area values specified in
FWR 10.40(1). These presumptions are rebuttable and may be overcome only upon a clear
showing that said area does not play a role in the protection of said Resource area values. In the
event that the presumptions are deemed to have been overcome, the Commission shall make a
written Determination to this effect, setting forth the grounds.
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(4) General Performance Standards
Where the presumption set forth in FWR 10.40(3) has not been overcome, FWR 10.40(5)
through (8) shall apply.
(5) No project proposed in the Waquoit Bay Area of Critical Environmental Concern shall be
permitted which requires removal and/or replanting of shellfish.
(6) Notwithstanding the provisions of FWR 10.55(4), any proposed work shall not destroy or
otherwise impair any portion of a Freshwater wetland that is within the Waquoit Bay Area
of Critical Environmental Concern.
(7) Notwithstanding the provisions of FWR 10.40(4) through (6), no project may be permitted
which will have any Adverse effect on habitat sites of rare species.
Falmouth Wetland Regulations
Part III Inland
FWR 10.51:
Introduction
FWR 10.51 through 10.60 applies to all work which will Remove, Fill, dredge, build upon,
degrade or otherwise Alter any Bank, Freshwater wetland, Land under water bodies, Land
subject to flooding or Vernal pool. FWR 10.51 through 10.60 pertains to inland (as opposed to
coastal) Resource areas, and is promulgated in addition to FWR 10.01 through 10.20 and
FWR 10.21 through 10.40. A project may be subject to regulation under both FWR 10.01
through 10.40 and FWR 10.51 through 10.80, in which case Compliance with all applicable
regulations is required.
FWR 10.51 through 10.60 is grouped into five Resource areas. Each section begins with a
preamble which specifies the Resource area values identified in Chapter 235 of the Code of
Falmouth to which that Resource area is or is likely to be Significant. The next subsection
defines the Resource area and describes the characteristics of that area which are critical to the
protection of the Resource area values so identified. The next subsection sets forth the
presumptions concerning the significance of the Resource area. The last subsection contains the
General performance standards to be applied to any work that will Remove, Fill, dredge, build
upon, degrade or otherwise Alter the Resource area.
FWR 10.52
Purpose
FWR 10.51 through 10.60 is intended to establish criteria and standards for the uniform and
coordinated administration of the provisions of Chapter 235 of the Code of Falmouth. It is
intended to ensure that development in and near inland wetlands is sited, designed, constructed
and maintained in a manner that protects the public Resource area values identified in Chapter
235 of the Code of Falmouth and served by these Resource areas.
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WETLANDS REGULATIONS
FWR 10.53
FWR 10.51 through 10.60 is intended to notify both Persons proposing work in Areas Subject
to Protection Under Chapter 235 of the Code of Falmouth and the Commission that work as to
the performance standards that should be applied. These standards are intended to identify the
level of protection that the Commission must impose in order to contribute to the protection of
the Resource area identified in Chapter 235 of the Code of Falmouth. It is the responsibility of
the Person proposing work to design and complete their project in conformance with these
performance standards. It is the responsibility of the Commission to impose such Conditions on
a proposed project as to ensure that the project is designed and completed in a manner
consistent with these standards.
FWR 10.53:
General Provisions
(1) If the Commission determines that a Resource area is Significant to a Resource area value
identified in Chapter 235 of the Code of Falmouth for which no presumption is stated in
the Preamble to the applicable section, the Commission shall impose such Conditions as
are necessary to contribute to the protection of such Resource area values.
(2) Notwithstanding the provisions of FWR 10.54 through 10.60, the Conservation
Commission may issue a permit and impose such Conditions as will contribute to the
Resource area values identified in Chapter 235 of the Code of Falmouth permitting the
following limited projects (although no such project may be permitted which will result in
a net loss of Freshwater wetland area or function, or which will have any Adverse effect
on habitat sites of rare species):
(a) The construction, reconstruction, operation and maintenance of underground and
overhead public utilities, such as electrical distribution or transmission lines, or
communication, sewer, water and natural gas lines, may be permitted, in accordance
with the following general Conditions and any additional Conditions deemed
necessary by the Commission:
1.
The Commission may require a reasonable alternative route with fewer
Adverse effects for a local distribution or connecting line not reviewed by the
Energy Facilities Siting Council;
2.
Best available measures shall be used to Minimize Adverse effects during
construction;
3.
The surface vegetation and contours of the area shall be substantially restored;
and
4.
All sewer lines shall be constructed to Minimize inflow and leakage.
(b) Maintenance and improvement of existing public roadways, but limited to widening
less than a single lane, adding shoulders, correcting substandard intersections, and
improving inadequate drainage systems.
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(c) The maintenance of beaches and boat launching ramps which existed on August 15,
1998.
(d) The maintenance, repair and improvement (but not substantial enlargement) of
structures, including dams and reservoirs and appurtenant works to such dams and
reservoirs, buildings, Piers, towers, headwalls, bridges, and culverts which existed on
August 15, 1998.
(e) The construction and maintenance of catwalks, footbridges, Docks, Piers, boathouses,
boat shelters, duck blinds, skeet and trap shooting decks and observation decks
(Dock(s), etc.); provided, however, that such structures are constructed consistent
with the provisions below:
1.
Docks etc., shall not exceed over 100 feet in length beyond the upland edge of
the Bank (inland) so that legitimate passage along a beach or through
Navigation over the waters for Recreational or aquacultural purposes or
aquacultural purposes is not prohibited or unreasonably impeded;
2.
To keep disturbance of the bottom minimal at all times during both
construction and use, the water depth at the end of the Dock, etc., shall be a
minimum of three feet at the time of mean low water.
3.
The area of the terminal "L" or "T" shape in a fixed Dock etc., or the float, or
the float, or combination thereof, shall not exceed 100 square feet;
4.
The design and construction shall not interfere with Recreational intertidal
lateral access;
5.
Boats at the Dock, etc. shall not be allowed to leak oil or other pollutants into
water;
6.
Motor boats shall not be run in gear while tied to the Dock, etc. since prop
wash stirs up sediment and causes Bank Erosion;
7.
Floating Docks, etc. shall be fixed by Piers;
8.
Off-season storage of temporary/seasonal Docks, etc. and floats shall be in
upland areas;
9.
The landward approach to a Dock, etc. shall not harm vegetation on a
Freshwater wetland inland Bank (A freshwater Marsh or Bank shall be crossed
by a raised walkway.);
10.
An area where the float(s), if any, will be stored shall be designated on the
plan;
11.
Over Freshwater wetlands the decking surface shall have a minimum of 50%
open area;
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(f)
WETLANDS REGULATIONS
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12.
The maximum horizontal footcandle level as measured directly below each
complete lighting unit shall not exceed 0.2 footcandle (Fc)
13.
Wood material used in the construction of the Dock, etc. shall not be treated
with any type of wood preservative.
14.
The performance standards of FWR 10.53(2)(e) 5, 6, and 8 shall be included in
all permits concerning Docks, etc. as a continuing order, and shall be so
designated on the Certificate of Compliance. Failure to comply with these
Conditions shall be grounds for the Commission to revoke the permit and order
the removal of the Dock, etc.
15.
Notwithstanding the provisions of FWR 10.53(2)(e), no Dock, etc. no project
may be permitted which will have any Adverse effect on habitat sites of rare
species.
The routine maintenance and repair of road drainage structures including culverts and
catch basins, drainage easements, ditches, watercourses and artificial water
conveyances to ensure flow capacities which existed on August 15, 1998.
(g) Lake drawdown projects (except those related to the breaching of a dam or a
reservoir or an appurtenant work to such dam or reservoir) undertaken in response to
written orders or recommendation letters issued by the Department of Environmental
Management Office of Dam Safety (DEM). The Commission shall, in the permit,
limit the duration of the drawdown based on information contained in the written
finding or superseding finding by DEM pursuant to MGL c. 253, §§ 44 through 50,
concerning the time required to repair the dam and the economic practicability of
repairing the dam. In no event shall the drawdown continue longer than three years
without a new or extended permit being obtained. Water levels that existed
immediately prior to such drawdowns shall be restored no later than the expiration
date of the permit or any new or extended permit, and a new Permit application need
not be filed for such restoration.
(h) The exploration, development, construction, expansion, maintenance, operation, and
replacement of public water supply wells or wellfields (including necessary
associated roads, ways, structures, and underground and overhead utility lines)
derived from Groundwater, provided, however, that:
1.
Approval for the water supply has been granted under the Public Water Supply
Source Approval Process pursuant to 310 CMR 22.21 and/or the Water
Management Act, MGL c. 21G. This general condition shall not apply to
exploration, and
2.
Such projects shall be designed, constructed, implemented, operated, and
maintained to avoid or, where avoidance is not practicable, to Minimize
impacts to Resource areas, and to meet the following standards to the
maximum extent practicable:
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(i)
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a.
Hydrological changes to Resource areas shall be Minimized;
b.
Best management practices shall be used to Minimize adverse impacts
during construction, including prevention of Erosion and siltation of
adjacent water bodies and wetlands in accordance with standard U.S.D.A.
Soil Conservation Service methods;
c.
Mitigating measures shall be implemented that contribute to the protection
of the Resource area values identified in Chapter 235 of the Code of
Falmouth;
d.
Compensatory storage shall be provided in accordance with the standards
of 310 CMR 10.57(4)(a)l. for all flood storage volume that will be lost;
e.
No access road or other structure or activity shall restrict flows so as to
cause an increase in flood stage or velocity;
f.
Temporary structures and work areas in Resource areas, including access
roads, shall be removed within 30 days of completion of the work.
Temporary alterations to Resource areas shall be substantially restored to
preexisting hydrology and topography. At least 75% of the surface of any
area of disturbed vegetation shall be reestablished with indigenous
wetland plant species within two growing seasons and prior to said
vegetative reestablishment any exposed soil in the area of disturbed
vegetation shall be temporarily stabilized to prevent Erosion in
accordance with standard U.S.D.A. Soil Conservation Service methods;
and
g.
Work in Resource areas shall occur only when the ground is sufficiently
frozen, dry, or otherwise stable to support the equipment being used.
The closure of landfills when undertaken to comply with the requirements of 310
CMR 19.000; provided, however, that:
1.
A project design alternative analysis shall be prepared in accordance with 310
CMR 19.150; and
2.
Such projects shall be designed, constructed, implemented, operated, and
maintained to avoid or, where avoidance is not practicable, to Minimize
impacts to Resource areas, and to meet the following standards to the
maximum extent practicable:
a.
Hydrological changes to Resource areas shall be Minimized;
b.
Best management practices shall be used to Minimize adverse impacts
during construction, including prevention of Erosion and siltation of
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adjacent water bodies and wetlands in accordance with standard U.S.D.A.
Soil Conservation Service methods;
(j)
c.
Mitigating measures shall be implemented that contribute to the protection
of the Resource area values identified in Chapter 235 of the Code of
Falmouth;
d.
Compensatory storage shall be provided in accordance with the standards
of FWR 10.57(4)(a) 1. for all flood storage volume that will be lost;
e.
No access road, assessment or monitoring device, or other structure or
activity shall restrict flows so as to cause an increase in flood stage or
velocity;
f.
Temporary structures and work areas in Resource areas, such as access
roads and assessment and monitoring devices, shall be removed within 30
days of the Department's written Determination that the closure of the
facility has been completed in accordance with the closure permit.
Temporary alterations to Resource areas shall be substantially restored to
preexisting hydrology and topography. At least 75% of the surface of any
area of disturbed vegetation shall be reestablished with indigenous
wetland plant species within two growing seasons and prior to said
vegetative reestablishment any exposed soil in the area of disturbed
vegetation shall be temporarily stabilized to prevent Erosion in
accordance with standard U.S.D.A. Soil Conservation Service methods.
Temporary structures, work areas, and alterations to Resource areas are
those that no longer are necessary to fulfill the requirements of 310 CMR
19.000;
g.
Except for direct impacts to Resource areas caused by the final cap and
cover on the landfill, no changes in the existing topography or the existing
soil and surface water levels shall be permitted, except for those resulting
from temporary access roads;
h.
Work in Resource areas shall occur only when the ground is sufficiently
frozen, dry, or otherwise stable to support the equipment used; and
i.
Such projects shall not include the construction of new landfills or the
expansion or modification of existing landfills.
Assessment, monitoring, containment, mitigation, and remediation of, or other
response to, a release or threat of release of oil and/or hazardous material in
accordance with the provisions of 310 CMR 40.0000 and the following general
Conditions (although no such measure may be permitted which is designed in
accordance with the provisions of 310 CMR 40.1020 solely to reduce contamination
to a level lower than that which is needed to achieve "No Significant Risk" as defined
in 310 CMR 40.0006(10)):
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1.
2.
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FWR 10.53
There are no practicable alternatives to the response action being proposed that
are consistent with the provisions of 310 CMR 40.0000 and that would be less
damaging to Resource areas. The alternatives analysis shall include, at a
minimum, the following:
a.
An alternative that does not Alter Resource areas, which will provide
baseline data for evaluating other alternatives; and
b.
An assessment of alternatives to both temporary and permanent impacts to
Resource areas.
Such projects shall be designed, constructed, implemented, operated, and
maintained to avoid or, where avoidance is not practicable, to Minimize
impacts to Resource areas, and shall meet the following standards to the
maximum extent practicable:
a.
Hydrological changes to Resource areas shall be Minimized;
b.
Best management practices shall be used to Minimize adverse impacts
during construction, including prevention of Erosion and siltation of
adjacent water bodies and wetlands in accordance with standard U.S.D.A.
Soil Conservation Service methods;
c.
Mitigating measures shall be implemented that contribute to the protection
of the Resource area values identified in Chapter 235 of the Code of
Falmouth;
d.
Compensatory storage shall be provided in accordance with the standards
of FWR 10.57(4)(a)1. for all flood storage volume that will be lost;
e.
No access road, assessment or monitoring device, or other structure or
activity shall restrict flows so as to cause an increase in flood stage or
velocity;
f.
Temporary structures and work areas in Resource areas, such as access
roads and assessment and monitoring devices, shall be removed within 30
days of completion of the work. Temporary alterations to Resource areas
shall be substantially restored to preexisting hydrology and topography.
At least 75% of the surface of any area of disturbed vegetation shall be
reestablished with indigenous wetland plant species within two growing
seasons and prior to said vegetative reestablishment any exposed soil in
the area of disturbed vegetation shall be temporarily stabilized to prevent
Erosion in accordance with standard U.S.D.A. Soil Conservation Service
methods. Temporary structures, work areas, and alterations to Resource
areas are those that no longer are necessary to fulfill the requirements of
310 CMR 40.0000; and
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WETLANDS REGULATIONS
g.
FWR 10.54
Work in Resource areas shall occur only when the ground is sufficiently
frozen, dry, or otherwise stable to support the equipment being used.
(k) The construction and maintenance of a new bike path or walking trail, used in the
service of the public, of minimum practical width where reasonable means of access
is unavailable. Such path or trail shall be constructed in such a manner so as to not
restrict the flow of water.
(3) Notwithstanding the provisions of FWR 10.54 through 10.58, the Commission may issue a
permit for projects which will improve the natural capacity of a Resource area(s) to protect
the Resource area values of Water pollution control, protection of public and private water
supply, Groundwater, flood control, Erosion and sediment control, fisheries, shellfish, and
Wildlife habitat, which are identified in Chapter 235 of the Code of Falmouth (although no
such project may be permitted which will have any Adverse effect on Wildlife habitat sites
of rare species). Such projects include, but are not limited to, the removal of aquatic
nuisance vegetation to retard pond and Lake eutrophication and the thinning or planting of
vegetation to improve habitat value.
FWR 10.54:
Bank (Inland Banks and beaches)59
(1) Introduction. Banks are likely to be Significant to public or private water supply, to
Groundwater, to flood control, Erosion and sedimentation control, storm damage
prevention, Water pollution control and to fisheries and Wildlife habitat. Where Banks are
composed of concrete, asphalt or other artificial impervious material, said Banks are likely
to be Significant to flood control and storm damage prevention.
Banks are areas where Groundwater discharges to the surface and where, under some
circumstances, surface water recharges the Groundwater.
Where Banks are partially or totally vegetated, the vegetation serves to maintain the Banks'
stability, which in turn protects water quality by reducing Erosion and siltation.
Banks may also provide shade that moderates water temperatures, as well as providing breeding
habitat, escape cover and food, all of which are Significant to the protection of fisheries. Banks
which drop off quickly or overhang the water's edge often contain numerous undercuts which
are favorite hiding spots for important game species such as largemouth bass (Micropterus
salmoides).
The topography, plant community composition and structure, and soil structure of Banks
together provide important food, shelter, migratory and overwintering areas, and Breeding areas
for Wildlife. Topography plays a role in determining the suitability of Banks to serve as
burrowing or feeding habitat. Soil structure also plays a role in determining the suitability for
burrowing, hibernation and other cover. Bank topography and soil structure impact the Bank's
vegetative structure, as well. Bushes and other undergrowth, trees, vegetation extending from
59
Additional regulations regarding inland Banks in the Black Beach/Great Sippewissett Marsh District of Critical Planning
Concern are found in FWR 10.39. Additional regulations regarding inland Banks the Waquoit Bay ACEC are found in
FWR 10.40.
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the Bank into the water, and vegetation growing along the water's edge are also important to a
wide variety of Wildlife. A number of tubers and berry bushes also grow in Banks and serve as
important food for Wildlife. Finally, Banks may provide important shelter for Wildlife which
needs to move between wetland areas.
Banks act to confine floodwaters during the most frequent storms, preventing the spread of
water to adjacent land. Because Banks confine water during such storms to an established
channel they maintain water temperatures and depths necessary for the protection of fisheries.
The maintenance of cool water temperatures during warm weather is critical to the survival of
important game species such as brook trout (Salvelinus frontinalis), rainbow trout
(Oncorhynchus Mykiss) and brown trout (Salmo frutta). An alteration of a Bank that permits
water to frequently and consistently spread over a large and more shallow area increases the
amount of property which is routinely flooded, as well as elevating water temperature and
reducing fish habitat within the main channel, particularly during warm weather.
(2) Definition, Critical Characteristics and Boundary.
(a) A Bank is the portion of the land surface which normally abuts and confines a water
body. It occurs between a water body and a Freshwater wetland and adjacent
floodplain, or, in the absence of these, it occurs between a water body and an upland.
A Bank confines a intermittent Stream when the intermittent Stream flows in a
particular location. A Bank may be partially or totally vegetated, or it may be
comprised of exposed soil, gravel or stone.
(b) The physical characteristics of a Bank, as well as its location, as described in the
foregoing FWR 10.54(2)(a), are critical to the protection of the Resource area values
specified in FWR 10.54(1).
(c) The upper Boundary of a Bank is the first observable break in the slope or the mean
annual flood level, whichever is lower. The lower Boundary of a Bank is the mean
annual low flow level.
(3) Presumption. Where a proposed activity involves the removing, filling, dredging, building
upon, degrading or otherwise Altering of a Bank, the Commission shall presume that such
area is Significant to, and the activity shall have a Significant or cumulative effect upon,
the Resource area values specified in FWR 10.54(1). These presumptions are rebuttable
and may be overcome upon a clear showing that the Bank does not play a role in the
protection of said Resource area values. In the event that the presumptions are deemed to
have been overcome, the Commission shall make a written Determination to this effect,
setting forth its grounds.
(4) General Performance Standard.
Where the Bank is determined to be Significant to public or private water supply, to
Groundwater, to flood control, Erosion and sedimentation control, storm damage prevention,
Water pollution control and to fisheries and Wildlife habitat, FWR 10.54(5) through (7) shall
apply.
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(5) Any proposed work on a Bank shall not impair the following:
(a) The physical stability of the Bank,
(b) The water-carrying capacity of the existing channel within the Bank;
(c) Groundwater and surface water quality;
(d) The capacity of the Bank to provide breeding habitat, escape cover and food for
fisheries;
(e) The capacity of the Bank to provide important Wildlife habitat functions. A project or
projects on a single lot, for which a Permit application(s) is filed on or after August
15, 1998., that (cumulatively) Alter(s) up to 25 feet of the length of the Bank found to
be Significant to the protection of Wildlife habitat, shall not be deemed to impair its
capacity to provide important Wildlife habitat functions. Additional alterations
beyond the above threshold may be permitted if they will have no Adverse effects on
Wildlife habitat.
(6) Notwithstanding the provisions of FWR 10.54(5), structures may be permitted in or on a
Bank when required to prevent flood damage to facilities, buildings and roads constructed
prior to August 15, 1998., including the renovation or reconstruction (but not substantial
enlargement) of such facilities, buildings and roads, provided that the following
requirements are met:
(a) The proposed protective structure, renovation or reconstruction is designed and
constructed using Best practical measures so as to Minimize Adverse effects on the
characteristics and functions of the Resource area;
(b) The Applicant demonstrates that there is no reasonable method of protecting,
renovating or rebuilding the facility in question other than the one proposed.
(7) Notwithstanding the provisions of FWR 10.54(5) or (6), no project may be permitted
which will have any Adverse effect on habitat sites of rare species.
FWR 10.55
Freshwater Wetlands (Wet Meadows, Marshes, Swamps and Bogs)60
(1) Introduction. Freshwater wetlands are likely to be Significant to public or private water
supply, Groundwater, flood control, storm damage prevention, Water pollution control,
fisheries, Erosion and sediment control, shellfish and Wildlife habitat.
The plants and soils of Freshwater wetlands Remove or detain sediments, nutrients (such as
nitrogen and phosphorous) and toxic substances (such as heavy metal compounds) that occur in
runoff and floodwaters.
60
Additional regulations regarding Freshwater wetlands in the Black Beach/Great Sippewissett Marsh District of Critical
Planning Concern are found in FWR 10.39. Additional regulations regarding Freshwater wetlands in the Waquoit Bay
ACEC are found in FWR 10.40.
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Some nutrients and toxic substances are detained for years in plant root systems or in the soils.
Others are held by plants during the growing season and released as the plants decay in the fall
and winter. This latter phenomenon delays the impacts of nutrients and toxins until the cold
weather period, when such impacts are less likely to reduce water quality.
In a coastal community such as Falmouth the water quality in the coastal areas is in large part a
function of the water quality that flows out of the Streams. For this reason, inland wetlands
protect water quality in the shellfish beds.
Freshwater wetlands are areas where Groundwater discharges to the surface and where, under
some circumstances, surface water discharges to the Groundwater.
The profusion of vegetation in Freshwater wetlands acts to slow down and reduce the passage
of floodwaters during periods of peak flows by providing temporary floodwater storage and by
facilitating water removal through evaporation and transpiration. This process reduces
downstream flood crests and resulting damage to private and public property. During dry
periods the water retained in Freshwater wetlands is essential to the maintenance of base flow
levels in rivers and Streams, which in turn is important to the protection of water quality and
water supplies.
Hydrology is the driving force which creates wetlands, but it is a transient, temporal parameter.
The presence of water at or near the ground surface during a Significant portion of the year
supports, and in fact promotes, the growth of wetland indicator plants. Prolonged or frequent
saturation or inundation also produces hydric soils, and creates anaerobic Conditions that favor
the growth of wetland indicator plants. Hydric soils are direct indicators of long-term
hydrologic Conditions and are present throughout the year.
Wetland vegetation supports a wide variety of insects, reptiles, amphibians, small mammals and
birds which are a source of food for important game fish. Bluegills (Lepomis macrochirus),
pumpkinseeds (Lepomis gibbosus), yellow perch (Perca flavescens), rock bass (Ambloplites
rupestris) and all trout species feed upon nonaquatic insects. Large-mouth bass (Micropterus
salmoides), chain pickerel (Esox niger) and northern pike (Esox lucius) feed upon small
mammals, snakes, nonaquatic insects, birds and amphibians.
Wetland vegetation provides shade which moderates water temperatures important to fish life.
Wetlands flooded by adjacent water bodies provide food, breeding habitat and cover for fish.
Fish populations in the larval stage are particularly dependent upon food provided by over-bank
flooding which occurs during peak flow periods (extreme storms) because most river and
Stream channels do not provide sufficient quantities of the microscopic plant and animal life
required for food.
Freshwater wetlands are probably Falmouth's most important inland habitat for Wildlife. The
hydrologic regime, plant community composition and structure, soil composition and structure,
topography, and water chemistry of Freshwater wetlands provide important food, shelter,
migratory and overwintering areas, and Breeding areas for many birds, mammals, amphibians
and reptiles. A wide variety of vegetated wetland plants, the nature of which are determined in
large part by the depth and duration of water, as well as soil and water composition, are utilized
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by varied species as important areas for mating, nesting, brood rearing, shelter and food
(directly and indirectly). The diversity and interspersion of the vegetative structure is also
important in determining the nature of its Wildlife habitat. Different habitat characteristics are
used by different Wildlife species during summer, winter and migratory seasons.
Although the vegetational community can often be analyzed to establish an accurate wetland
Boundary, sole reliance on the presence of wetland indicator plants can be misleading because
some species thrive in both uplands and wetlands. Gently sloping areas often produce large
transitional zones where the vegetational Boundary is difficult to delineate. Hydrology can
supplement vegetative criteria to enhance the technical accuracy, consistency, and credibility of
wetland Boundary delineations, and are especially useful for analyzing disturbed sites.
The sole reliance on the presence of a listed hydric soil to establish an accurate wetland
Boundary can also be misleading. Hydric soils lists do not include all hydric soils, nor do lists
of hydric soil morphologies provide a complete list of all soil morphologies in wetlands. The
driving force in wetlands is water. Plant community characteristics and soil morphology are
only indicators of the hydrology of the site.
(2) Definition, Critical Characteristics and Boundary.
(a) The types of Freshwater wetlands include Wet meadows, Marshes, Swamps and
Bogs. Freshwater wetlands are areas where the soils are saturated and/or inundated
such that they support under normal Conditions a predominance of wetland indicator
plants.
(b) The physical characteristics of Freshwater wetlands, as described in
FWR 10.55(2)(a), are critical to the protection of the Resource area values specified
in FWR 10.55(1).
(c) The Boundary of Freshwater wetlands is the line within which saturated or inundated
Conditions exist. Saturated or inundated Conditions can be inferred when 50% or
more of the vegetational community consists of wetland indicator plants. Wetland
indicator plants are those classified in the indicator categories of Facultative,
Facultative+, Facultative Wetland-, Facultative Wetland, Facultative Wetland+, or
Obligate Wetland in the most recent edition of the National List of Plant Species That
Occur in Wetlands (Fish & Wildlife Service, U.S. Department of the Interior) for the
Falmouth area, Canadian hemlock (Tsuga canadensis), sphagnum moss (Sphagnum
spp.) or plants exhibiting physiological or morphological adaptations to life in
saturated or inundated Conditions.
1.
Areas containing a predominance of wetland indicator plants are presumed to
indicate the presence of saturated or inundated Conditions. Therefore, the
Boundary as determined by 50% or more wetland indicator plants shall be
presumed accurate when:
a.
All dominant species have an indicator status of obligate, facultative
wetland+, facultative wetland, or facultative wetland- and the slope is
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distinct or abrupt between the upland plant community and the wetland
plant community;
2.
The Wetland Site Index (WSI)61 is ≥.67
c.
The area where the work will occur is clearly limited to the buffer zone; or
d.
The Commission determines that sole reliance on wetland indicator plants
will yield an accurate delineation.
When the Boundary is not presumed accurate as described in FWR 10.55(2)(c)
l.a. through d. or to overcome the presumption, credible evidence shall be
submitted by a competent source demonstrating that the Boundary of
Freshwater wetlands is the line within which saturated or inundated Conditions
exist. The Commission must evaluate all indicators of saturated or inundated
Conditions if submitted by a credible source, or may require credible evidence
of saturated or inundated Conditions when determining the Boundary.
Indicators of saturated or inundated Conditions shall include one or more of the
following (see FWR 10.70):
a.
Groundwater, including the capillary fringe, within a major portion of the
root zone;
b.
Observation of prolonged or frequent flowing or standing surface water;
c.
Characteristics of hydric soils.
3.
Where an area has been disturbed (e.g. by cutting [lawns], filling, or
cultivation), the lack of wetland indicator plants shall in no way be presumed to
indicate that saturated or inundated Conditions do not exist.
4.
The Determination that 50% of the plant community consists of wetland
indicator plants shall be made by the Commission if any one of the vegetative
analysis methods listed below so indicates (see FWR 10.80):
5.
61
b.
a.
Department of Environmental Protection Dominance Test, ≥50%
dominant plants being wetland indicator plants;
b.
Wetland Site Index, ≥0.45; or
c.
Relative Dominance of Wetland Species by Layering, ≥50% wetland
indicator plants.
Areas containing soils with a water table at the soil surface during any time
during the growing season are presumed to indicate the presence of saturated or
See FWR 10.80.
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inundated Conditions such that they support under normal Conditions a
predominance of wetland indicator plants.
(3) Presumption. Where a proposed activity involves the removing, filling, dredging, building
upon, degrading or otherwise Altering of a Freshwater wetland, the Commission shall
presume that such area is Significant to, and the proposed activity will have a Significant
or cumulative effect upon, the Resource area values specified in FWR 10.55(1). These
presumptions are rebuttable and may be overcome upon a clear showing that the
Freshwater wetland does not play a role in the protection of said Resource area values. In
the event that the presumptions are deemed to have been overcome, the Commission shall
make a written Determination to this effect, setting forth its grounds.
(4) General Performance Standards.
(a) Where the presumption set forth in FWR 10.55(3) is not overcome, any proposed
work in a Freshwater wetland shall not destroy or otherwise impair any portion of
said area.
(b) Notwithstanding the provisions of FWR 10.55(4)(a), the Commission may issue a
permit allowing work which results in the loss of up to 1,000 square feet of
Freshwater wetland when said area is replaced in accordance with the provisions of
FWR 10.55(5) and the impact is both unavoidable and necessary.
(c) If work is permitted in Freshwater wetlands pursuant to FWR 10.55(4)(b), the
following shall apply;
1.
The new wetland must be created before the existing wetland is filled, drained
or destroyed (unless material from the existing wetland is to be used in the
creation of the new wetland). Completion shall include at minimum the
creation of a natural wetlands soil profile, grading to natural water level and
planting of species as conditioned by the Commission. In no case, may other
activities be undertaken until the replication is complete.
2.
The Applicant must monitor the replicated wetland for a minimum of three
years and submit an annual report to the Commission. This report must assess
the soil, water, and plant Conditions of the replicated wetland. The Applicant
may be required, on an annual basis, to remedy any deficiencies at the
replication site; and
3.
The edge of the proposed replicated wetland must be at least 100 feet from any
property line unless written permission is granted by the adjoining property
owner.
(5) Freshwater wetlands shall be replaced according to the following general Conditions and
any additional, specific Conditions the Commission deems necessary to ensure that the
replacement area will function in a manner similar to the area that will be lost:
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(a) The surface of the replacement area to be created ("the replacement area") shall be
equal to that of the area that will be lost ("the lost area");
(b) The Groundwater and surface elevation of the replacement area shall be
approximately equal to that of the lost area;
(c) The overall horizontal configuration and location of the replacement area with respect
to the Bank shall be similar to that of the lost area;
(d) The replacement area shall have an unrestricted hydraulic connection to the same
water body or waterway associated with the lost area;
(e) The replacement area shall be located within the same general area of the water body
or reach of the waterway as the lost area;
(f)
At least 90% of the surface of the replacement area shall be reestablished with
indigenous wetland plant species within two growing seasons, and prior to said
vegetative reestablishment any exposed soil in the replacement area shall be
temporarily stabilized to prevent Erosion in accordance with standard U.S. Soil
Conservation Service methods;
(g) The replacement area has a hydrological regime consistent with Freshwater wetlands.
To achieve said hydrological regime the surface elevation of the replacement
wetlands shall be no higher than the maximum annual Groundwater elevation
recorded for the site; and
(h) The replacement area shall be provided in a manner which is consistent with all other
General performance standards for each Resource area in FWR 10.00.
(6) Notwithstanding the provisions of FWR 10.55(4), no project may be permitted which will
have any Adverse effect on habitat sites of rare species.
FWR 10.56 Land Under Water Bodies (Under any Creek, Stream, Pond or Lake)62
(1) Preamble. Land under water bodies is likely to be Significant to public and private water
supply, to Groundwater, flood control, storm damage prevention, Water pollution control,
to fisheries, Recreation, Aesthetics and Wildlife habitat. Where such land is composed of
concrete, asphalt or other artificial impervious material, said land is likely to be Significant
to flood control and storm damage prevention.
Where Land under water bodies is composed of pervious material, such land represents a point
of exchange between surface and Groundwater.
62
Additional regulations regarding Land under water bodies in the Black Beach/Great Sippewissett Marsh District of
Critical Planning Concern are found in FWR 10.39. Additional regulations regarding Land under water bodies in the
Waquoit Bay ACEC are found in FWR 10.40.
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The physical nature of Land under water bodies is highly variable, ranging from deep organic
and fine sedimentary deposits to rocks and bedrock The organic soils and sediments play an
important role in the process of detaining and removing dissolved and particulate nutrients
(such as nitrogen and phosphorous) from the surface water above. They also serve as traps for
toxic substances (such as heavy metal compounds).
Land under water bodies, in conjunction with Banks, serves to confine floodwater within a
definite channel during the most frequent storms. Filling within this channel blocks flows
which in turn causes backwater and overbank flooding during such storms. An alteration of
Land under water bodies that causes water to frequently spread out over a larger area at a lower
depth increases the amount of property which is routinely flooded. Additionally, it results in an
elevation of water temperature and a decrease in habitat in the main channel, both of which are
detrimental to fisheries, particularly during periods of warm weather and low flows.
Land under rivers, Streams and Creeks that is composed of gravel allows the circulation of
cold, well oxygenated water necessary for the survival of important game fish species such as
brook trout (Salvelinus frontinalis), rainbow trout (Oncorhynchus mykiss), and brown trout
(Salmo trutto). River, Stream and Creek bottoms with a diverse structure composed of gravel,
large and small boulders and rock outcrops provides escape cover and resting areas for the
above mentioned game fish species (salmonids). Such bottom type also provides areas for the
production of aquatic insects essential to fisheries.
Land under Ponds and Lakes is vital to a large assortment of warm water fish during spawning
periods. Species such as large mouth bass (Micropterus salmoides), small mouth bass
(Micropterus dolomieui), blue gills (Lepomis macrochirus), pumpkinseeds (Lepomis gibbosus),
black crappie (Pomoxis nigromaculatus) and rock bass (Ambloplites rupestris) build nests on
the Lake and bottom substrates within which they shed fertilize their eggs.
The plant community composition and structure, hydrologic regime, topography, soil
composition and water quality of Land under water bodies provide important food, shelter,
migratory and overwintering areas, and Breeding areas for Wildlife. Certain submerged, rooted
vegetation is eaten by water fowl and some mammals. Some amphibians (as well as some
invertebrate species eaten by vertebrate Wildlife) attach their eggs to such vegetation. Some
aquatic vegetation protruding out of the water is also used for nesting, and many species use
dead vegetation resting on land under water but protruding above the surface for feeding and
basking. Soil composition is also important for hibernation and for animals which begin to
burrow their tunnels under water. Hydrologic regime, topography, and water quality not only
affect vegetation, but also determine which species feed in an area.
(2) Definition, Critical Characteristics and Boundaries.
(a) Land under water bodies is the land beneath any Creek, reservoir, Stream, Pond or
Lake. Said land may be composed of organic muck or peat, fine sediments, rocks or
bedrock.
(b) The physical characteristics and location of Land under water bodies specified in
FWR 10.56(2)(a) are critical to the protection of the Resource area values specified in
FWR 10.56(1).
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(c) The Boundary of Land under water bodies is the mean annual low water level.
(3) Presumption. Where a project involves removing, filling, dredging, building upon,
degrading or otherwise Altering of Land under water bodies, the Commission shall
presume that such area is Significant to, and the proposed activity will have a Significant
or cumulative effect upon, the Resource area values specified in FWR 10.56(1). These
presumptions are rebuttable and may be overcome upon a clear showing that said land
does not play a role in the protection of said Resource area values. In the event that the
presumptions are deemed to have been overcome, the Commission shall make a written
Determination to this effect, setting forth the grounds.
(4) General Performance Standards.
(a) Where the presumption set forth in FWR 10.56(3) is not overcome, any proposed
work within Land under water bodies shall not impair the following:
1.
The water-carrying capacity within the defined channel, which is provided by
said land in conjunction with the Banks;
2.
Ground and surface water quality;
3.
The capacity of said land to provide breeding habitat, escape cover and food
for fisheries; and
4.
The capacity of said land to provide important Wildlife habitat functions. A
project or projects on a single lot, for which Permit application(s) is filed on or
after August 15, 1998., that (cumulatively) Alter(s) up to 1,000 square feet of
land in this Resource area found to be Significant to Wildlife habitat, shall not
be deemed to impair its capacity to provide important Wildlife habitat
functions. Additional alterations beyond the above threshold may be permitted
if they will have no Adverse effects on Wildlife habitat.
(b) Notwithstanding the provisions of FWR 10.56(4)(a), the Commission may issue a
permit in accordance with Chapter 235 of the Code of Falmouth to maintain or
improve boat channels used in the service of the public within Land under water
bodies when said work is designed and carried out using the Best practical measures
so as to Minimize Adverse effects such as the suspension or transport of pollutants,
increases in turbidity, the smothering of bottom organisms, the accumulation of
pollutants by organisms or the destruction of fisheries habitat or nutrient source areas.
(c) Notwithstanding the provisions of FWR 10.56(4)(a) or (b), no project may be
permitted which will have any Adverse effect on habitat sites of rare species.
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FWR 10.57
WETLANDS REGULATIONS
FWR 10.57
Land Subject to Flooding (Bordering and Isolated Areas)63
(1) Introduction.
(a) Bordering Land Subject to Flooding:
1.
Bordering Land subject to flooding is an area which floods from a rise in a
Bordering water body. Such areas are likely to be Significant to flood control
and storm damage prevention.
2.
Bordering Land subject to flooding provides a temporary storage area for
floodwater which has overtopped the Bank of the main channel of a Creek,
river or Stream or the basin of a pond or Lake. During periods of peak runoff,
floodwaters are both retained (i.e., slowly released through evaporation and
percolation) and detained (slowly released through surface discharge) by
Bordering Land subject to flooding. Over time, incremental filling of these
areas causes increases in the extent and level of flooding by eliminating flood
storage volume or by restricting flows, thereby causing increases in damage to
public and private properties.
3.
All areas on the ten-year floodplain of Bordering Land subject to flooding are
also likely to be Significant to the protection of Wildlife habitat, except for
those portions which have been so extensively Altered by human activity that
their important Wildlife habitat functions have been effectively eliminated
(such "Altered" areas include paved and graveled areas, golf courses,
cemeteries, playgrounds, landfills, fairgrounds, quarries, gravel pits, buildings,
lawns, gardens, roadways (including shoulders and embankments), railroad
tracks (including ballast and embankments), and similar areas lawfully existing
on August 15, 1998. and maintained as such since that time).
The hydrologic regime, plant community composition and structure, topography, soil
composition and proximity to water bodies and Bordering vegetated wetlands of
these portions of Bordering Land subject to flooding provide important food, shelter,
migratory and overwintering areas, and Breeding areas for Wildlife. Nutrients from
floodwaters, as well as the inundation of floodplain soil, create important Wildlife
habitat characteristics, such as richness and diversity of soil and vegetation. A great
many species require or prefer habitat which is as close as possible to water and/or
has moist Conditions, characteristics generally present on lower floodplains.
Similarly, lower floodplains, because of their proximity to water and vegetated
wetlands, can provide important shelter for Wildlife which needs to migrate between
such areas, or between such areas and uplands. The "edge" where floodplain habitat
borders vegetated wetlands or water bodies is frequently very high in Wildlife
richness and diversity. Similar "edges" may be found elsewhere the lower floodplain,
where differences in topography and frequency of flooding have created varied soil
and plant community composition and structure.
63
Additional regulations regarding Land subject to flooding in the Black Beach/Great Sippewissett Marsh District of
Critical Planning Concern are found in FWR 10.39. Additional regulations regarding Land subject to flooding in the
Waquoit Bay ACEC are found in FWR 10.40.
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(b) Isolated Land Subject to Flooding:
1.
Isolated land subject to flooding is an isolated depression or a closed basin
which serves as a ponding area for runoff or high Groundwater which has risen
above the ground surface. Such areas are likely to be locally Significant to
flood control and storm damage prevention. In addition, where such areas are
underlain by pervious material they are likely to be Significant to public or
private water supply and to Groundwater. Where such areas are underlain by
pervious material covered by a mat of organic peat and muck, they are also
likely to be Significant to the Water pollution control.
2.
Isolated land subject to flooding provides a temporary storage area where
runoff and high Groundwater pond and slowly evaporate or percolate into the
substrate. Filling causes lateral displacement of the ponded water onto
contiguous properties, which may in turn result in damage to said properties.
3.
Isolated land subject to flooding, where it is underlain by pervious material,
provides a point of exchange between ground and surface waters.
Contaminants introduced into said area, such as septic system discharges and
road salts, find easy access into the Groundwater and neighboring wells. Where
these Conditions occur and a mat of organic peat or muck covers the substrate
of the area, said mat serves to detain and Remove contaminants which might
otherwise enter the Groundwater and neighboring wells.
(2) Definitions, Critical Characteristics and Boundaries.
(a) Bordering Land Subject to Flooding:
1.
Bordering Land subject to flooding is an area with low, Flat topography
adjacent to and inundated by floodwaters rising from Creeks, reservoirs,
Streams, Ponds or Lakes. It extends from the Banks of these waterways and
water bodies; where a Freshwater wetland occurs, it extends from said wetland.
2.
The topography and location of Bordering Land subject to flooding specified in
the foregoing FWR 10.57(2)(a)1. are critical to the protection of the Resource
area values specified in FWR 10.57(1)(a). Where Bordering Land subject to
flooding is Significant to Wildlife habitat, the physical characteristics as
described in the foregoing FWR 10.57(1)(a)(3) are critical to the protection of
that Resource area value.
3.
The Boundary of Bordering Land subject to flooding is the estimated
maximum lateral extent of floodwater which will theoretically result from the
statistical one-hundred-year frequency storm. Said Boundary shall be that
determined by reference to the most recently available flood profile data
prepared for the community within which the work is proposed under the
National Flood Insurance Program (NFIP, currently administered by the
Federal Emergency Management Agency, successor to the U.S. Department of
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Housing and Urban Development). Said Boundary, so determined, shall be
presumed accurate. This presumption may be overcome only by credible
evidence from a registered professional engineer or other professional
competent in such matters.
Where NFIP Profile data is unavailable, or is available for only Land subject to
coastal storm flowage, the Boundary of Bordering Land subject to flooding shall be
the maximum lateral extent of floodwater which has been observed, recorded, or
determined by hydrologic modeling, whichever is greater. In the event of a conflict,
the Commission may require the Applicant to determine the Boundary of Bordering
Land subject to flooding by engineering calculations which shall be:
4.
a.
Based upon a design storm of 7.2 inches of precipitation in 24 hours (i.e.,
a Type Ill Rainfall, as defined by the U.S. Natural Resource Conservation
Service);
b.
Based upon the standard methodologies set forth in U.S. Natural Resource
Conservation Service Technical Release No. 55, Urban Hydrology for
Small Watersheds and U.S. Natural Resource Conservation Service
Technical Release No. 20; and
c.
Prepared by a registered professional engineer or other professional
competent in such matters.
The Boundary of the ten-year floodplain is the estimated maximum lateral
extent of the floodwater which will theoretically result from the statistical tenyear frequency storm. Said Boundary shall be determined as specified under
FWR 10.57(2)(a)3., except that where NFTP Profile data is unavailable, the
Boundary shall be the maximum lateral extent of floodwater which has been
observed or recorded, or calculated, which ever is greatest, during a ten-year
frequency storm and, in the event of conflict, engineering calculations under
FWR 10.57(2)(a)3.b. and c. shall be based on a design storm of 4.8 inches of
precipitation in 24 hours.
(b) Isolated Land Subject to Flooding:
1.
Isolated land subject to flooding is an isolated depression or closed basin
without an inlet or an outlet. It is an area which at least once a year confines
standing water to a volume of at least 5,000 cubic feet and to an average depth
of at least six inches. Isolated land subject to flooding may be underlain by
pervious material, which in turn may be covered by a mat of organic peat or
muck.
2.
The characteristics specified in the foregoing FWR 10.57(2)(b)1. are critical to
the protection of the Resource area values specified in FWR 10.57(1)(b).
3.
The Boundary of Isolated land subject to flooding is the perimeter of the largest
observed or recorded volume of water confined in said area, or a line bounding
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the area where flooding by runoff from a one-hundred-year storm event is
predicted. In the event of a conflict of opinion regarding the extent of water
confined in an Isolated land subject to flooding, the Applicant may submit an
opinion certified by a registered professional engineer, supported by
engineering calculations, as to the probable extent of said water. Said
calculations shall be prepared in accordance with the general requirements set
forth in FWR 10.57(2)(a)3.a. through c., except that the maximum extent of
said water shall be based upon the total volume (rather than peak rate) of runoff
from the drainage area contributing to the Isolated land subject to flooding and
shall be further based upon the assumption that there is no infiltration of said
runoff into the soil within the Isolated land subject to flooding.
(3) Presumption.
Where a project involves removing filling, dredging, building upon, degrading or otherwise
Altering of Land subject to flooding (both Bordering and isolated areas) the Commission shall
presume that such an area is Significant to, and the proposed activity will have a Significant or
cumulative effect upon, the Resource area values specified in FWR 10.57(1)(a) and (b). These
presumptions may be overcome only upon a clear showing that said land does not play a role in
the protection of said Resource area values. In the event that these presumptions are deemed to
have been overcome, the Commission shall make a written Determination to this effect, setting
forth its grounds.
(4) General Performance Standards.
(a) Bordering Land subject to flooding:
1.
Compensatory storage shall be provided for all flood storage volume that will
be lost as the result of a proposed project within Bordering Land subject to
flooding, when in the judgment of the Commission said loss will cause an
increase or will contribute incrementally to an increase in the horizontal extent
and level of floodwaters during peak flows.
Compensatory storage shall mean a volume not previously used for flood storage
and shall be incrementally equal to the theoretical volume of floodwater at each
elevation, up to and including the one-hundred-year flood elevation, which would be
displaced by the proposed project. Such compensatory volume shall have an
unrestricted hydraulic connection to the same waterway or water body. Further, with
respect to waterways, such compensatory volume shall be provided within the same
reach of the river, Stream or Creek.
2.
Work within Bordering Land subject to flooding, including that work required
to provide the above-specified compensatory storage, shall not restrict flows so
as to cause an increase in flood stage or velocity.
3.
Work in those portions of Bordering Land subject to flooding found to be
Significant to the protection of Wildlife habitat shall not impair its capacity to
provide important Wildlife habitat functions. A project or projects on a single
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lot or parcel, for which Permit application(s) is filed on or after August 15,
1998, that (cumulatively) Alter(s) up to 2,500 square feet of land in this
Resource area found to be Significant to the protection of Wildlife habitat, shall
not be deemed to impair its capacity to provide important Wildlife habitat
functions. Additional alterations beyond the above threshold, or Altering
Vernal pool habitat, may be permitted if they will have no Adverse effects on
Wildlife habitat.
(b) Isolated land subject to flooding: A proposed project in Isolated land subject to
flooding 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 and muck.
(5) Notwithstanding the provisions of FWR 10.57(4)(a) or (b), no project may be permitted
which will have any Adverse effect on Wildlife habitat sites of rare vertebrate or
invertebrate species.
(6) If such a site is available on the Applicant's land, all septic tanks and leaching facilities
shall be located outside the one-hundred-foot buffer to the Isolated land subject to
flooding.
(7) There shall be no subsurface tanks containing fuel, gas, oil or other hazardous substances
within Isolated land subject to flooding.
FWR 10.58:
Vernal Pools64 [Effective 10-29-2009]
(1) Introduction. Vernal pools are unique wetlands of particular importance to Wildlife
habitat. Despite their small size, they are characterized by high productivity and a unique
assemblage of species adapted to breeding in seasonally flooded wetlands. The absence of
fish from Vernal pools makes these wetlands essential breeding sites for amphibian and
invertebrate species whose eggs and larvae are particularly vulnerable to predation by fish.
Many Vernal pool amphibians are sensitive to alteration of their habitat because they
return to breed in the pools where they developed and show little tendency to relocate if
their breeding habitat is disturbed. In addition, many Vernal pool species are sensitive to
changes in water quality. Vernal pools also support a variety of other vertebrates,
invertebrates, and plants that would not otherwise occur in the local landscape. Protection
64
Additional regulations regarding Vernal pools in the Black Beach/Great Sippewissett Marsh District of Critical Planning
Concern are found in FWR 1.39. Additional regulations regarding Vernal pools in the Waquoit Bay ACEC are found in
FWR 1.40.
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of Vernal pools is essential to the preservation of the unique plants and animals that
inhabit them and to the biodiversity of the region.
Vernal pool obligate amphibians found in the Falmouth area include spotted salamanders
(Ambystoma maculatum) and wood frogs (Lithobates sylvatica, a.k.a Rana sylvatica). These
species generally spend less than one month in their breeding pool each year and spend the rest
of the year in the adjacent upland habitat. The quality of the surrounding area is critical to the
survival of these species. Both young and adults of these species require areas of deep,
uncompacted plant litter, coarse woody debris, and shade. In addition, amphibians, reptiles, and
small mammals that use Vernal pools all require suitable upland habitat that connects these
wetlands to allow dispersal to and from pools for breeding, foraging, resting, and replenishing
locally extinct populations. Protection of the one hundred-foot resource area buffer is essential
to protection of Vernal pool obligate amphibians and to other plant and animal species that
inhabit these unique wetlands [see also FWR 10.18 (1)].
Alteration, filling, destruction, or degradation of any Vernal pool and the one-hundredfoot resource area buffer is prohibited, with rare exceptions described herein.
(2) Definition.
(a) Vernal pool means a confined basin depression which, at least in most years, holds
water for a minimum of two (2) continuous months during the spring and/or summer,
and which is free of fish populations. These areas are essential breeding habitat, and
provide other extremely important Wildlife habitat functions during non-breeding
season as well, for a variety of amphibian species such as wood frogs and the spotted
salamanders, and are important habitat for other Wildlife species.
(b) A site is a Vernal pool when it:
1.
Has been certified as a Vernal pool by the Massachusetts Division of Fisheries
and Wildlife; or
2.
Has been mapped prior to the filing of the Permit application or Request for
Determination of Applicability by the Commission as a Vernal pool; or
3.
Meets physical and biological criteria set forth by the Massachusetts Natural
Heritage and Endangered Species Program’s Guidelines for Certification of
Vernal Pool Habitat (March 2009) as amended; or65
4.
Shows evidence of breeding activity by any Vernal pool obligate species,
including but not limited to:
Wood frog;
Spotted salamander;
65
Sites not yet certified by the state will be evaluated by a qualified wetlands biologist.
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WETLANDS REGULATIONS
FWR 10.58
Fairy shrimp;
Or evidence of use by any of the following facultative species:
Caddisfly larvae;
Fingernail clams;
Amphibious air-breathing snails.
(c) The term "Vernal pool habitat" refers to the Vernal pool itself, together with the onehundred-foot resource area buffer.
(d) The Boundary of a Vernal pool is that certified by the Massachusetts Division of
Fisheries and Wildlife, or mapped by the Commission, whichever is greater. In the
event of a lack of a clear Boundary delineation certified by the Division of Fisheries
and Wildlife, or mapped by the Commission, the Boundary shall be determined by
engineering calculations or the high-water line as to the probable extent of said
habitat (Vernal pool habitat will be based on the most landward outcome). The
engineering calculations shall be prepared in accordance with the general
requirements set forth in FWR 10.57(2)(a)3.a. through c., except that the maximum
extent of said water shall be based upon the total volume, rather than peak rate, of
runoff from the drainage area contributing to the Vernal pool. In addition, these
calculations shall be based upon a design storm of two and seven-tenths (2.7) inches
of precipitation in twenty-four (24) hours or by the high-water line, whichever is
greater. The high-water line means the line that is apparent from visible markings or
changes in the character of soils or vegetation due to the presence of water and which
distinguishes between predominantly aquatic and predominantly terrestrial land. The
high-water line may be identified by permanent water marks on boulders, and by
vegetation.
(3) Presumptions.
(a) Where a project involves removing, filling, dredging, building upon, degrading or
otherwise Altering of a Vernal pool or Vernal pool habitat, the Commission shall
presume that such area is significant to, or will have a cumulative effect upon, the
Resource area values specified in FWR 10.58(1). This presumption is rebuttable and
may be overcome upon a showing by a preponderance of credible evidence that said
land does not play a role in the protection of said Resource area values. In the event
that the presumption is deemed to have been overcome, the Commission shall make a
written Determination to this effect, setting forth the grounds.
(4) Performance standards.
(a) In accordance with FWR 10.18(5)(a)(1), the width of the No Disturbance (Zone A)
Area shall be one hundred (100) feet;
(b) No new development shall be permitted in Zone A;
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FALMOUTH CODE
FWR 10.71
(c) Redevelopment may be permitted provided the proposed activity would not result in
alteration of the Vernal pool buffer beyond that which has already been legally
altered. In addition, the footprint of any existing structures and impervious surfaces
(for example, a house or place of business, garage, shed, deck, or impervious
driveway or patio) may be reconfigured but may not be expanded in total within the
Vernal pool buffer. In any case, structures, impervious surfaces, or other alterations
shall not move closer to the Vernal pool.
(d) All work in Vernal pool habitat that requires a Notice of Intent shall include an
improvement to the Resource area. Proposed improvements should be comparable in
scope to the proposed activity. Where there is room on the lot to install mitigation
plantings, the improvement shall include installation of indigenous woody plants.
(e) Small amounts of additional Buffer may be temporarily altered (i.e., during
construction) in order to accommodate activities that otherwise comply with the
performance standards defined in the FWR 10.58(2)(c), provided that the
Commission makes a written Determination that the proposed activity shall have no
adverse effect on the Resources area values of the Vernal pool habitat, setting forth
the grounds. Such areas shall be replanted with native woody plant species.
(f)
Notwithstanding the provision of FWR 10.58(4), no project may be permitted which
will have any Adverse effect on Wildlife habitat sites of rare species.
FWR 10.59 through FWR 10.69
Reserved
FWR 10.70
Indicators of Wetland Hydrology
While vegetation is considered the most reliable indicator of long-term wetland hydrology
because it is generally observable throughout the year, other indicators also may be used to
confirm the presence of wetland hydrology. These other indicators are presented in three
categories: morphological plant adaptations, evidence of surface water, and evidence of soil
saturation. When delineating or reviewing a Freshwater wetland Boundary, note the presence of
any of these other indicators and consider them in the evaluation. At many sites, these
indicators can be used to refine the Boundary delineation. When encountering difficult sites, it
may be necessary to actively seek these other indicators to make the Determination. However,
some of these hydrologic indicators can be affected by recent heavy rain or seasons with above
average amounts of precipitation. Conversely, these indicators may not be present during the
entire year or may be absent during prolonged periods of drought.
FWR 10.71 [Morphological Plant Adaptations to Hydric Conditions
(1) Introduction
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WETLANDS REGULATIONS
FWR 10.71
Morphological adaptations are evident in the form or shape of a plant. Adaptations that result
from inundation or saturation during the growing season are good indicators of wetland
hydrology. In addition, plants demonstrating morphological adaptations are considered wetland
indicator plants. Many species exhibit one or more morphological adaptations for occurrence in
wetlands. However, not all individuals of a species will exhibit these adaptations under field
Conditions, and individuals occurring in uplands characteristically may not exhibit them.
(2) Definition
Morphological adaptations of plants to hydric Conditions include:
(a) Shallow root systems are probably the most useful adaptations that indicate wetland
hydrology in areas near the wetland/upland Boundary. This indicator can be just as
useful with shrubs, saplings, and herbs as it is with trees. For instance, look for
swollen trunks or roots along the surface of the ground as evidence of shallow root
systems, or observe them directly on overturned trees. The key is to compare the root
structures of like or similar species growing further upslope in an upland setting. Be
aware that shallow root systems also form in upland areas where bedrock is close to
the surface or in very stony soils. Use soil maps and topography to confirm that
shallow root systems are the result of wetland hydrology and not stony soils or
bedrock.
(b) Buttressed or fluted trunks are good indicators of hydrology that are often cited in
publications about wetland delineation. In Massachusetts, however, trees and saplings
rarely demonstrate the exaggerated, swollen bases typical of this adaptation. The
moderately swollen bases typically found in Massachusetts usually indicate the
presence of shallow root systems.
(c) Adventitious roots are roots that form on plant stems in positions where roots
normally do not occur. This adaptation is most common on active floodplains and
may be found on box elder (Acer negundo), sycamore (Platanus occidentalis), pin
oak (Quercus palustris), green ash (Fraxinus pennsylvanica), cottonwood (Populus
deltoides), and willows (Salix spp.).
(d) Enlarged (hypertrophied) lenticels on woody plants are indicators of inundated or
saturated growing Conditions. Lenticels are small pores, usually resembling dots or
thin horizontal lines on the stems and twigs of woody plants. In response to saturated
or inundated growing Conditions, these pores can become swollen or enlarged.
Enlarged lenticels can occasionally be found on red maple (Acer rubrum), silver
maple (Acer saccharinum), and willows (Salix spp.).
(e) Polymorphic leaves form on certain plant species when portions of the plant are
submerged while other portions extend above water. Plants like mermaidweed
(Proserpinaca palustris), water parsnip (Sium suave), and arrowheads (Sagittaria
latifolia) have different leaf forms depending on whether they grow above or below
the water surface. Underwater leaves tend to be narrow or finely divided; leaves
above the water surface tend to be broader and less divided. Where both forms occur
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FWR 10.71
on the same plant (polymorphic leaves), these are good evidence of surface water for
an extended period during the growing season.
(f)
Air-filled tissue (aerenchyma) forms in the roots and stems of many plants in
response to prolonged periods of saturation or inundation. These specialized tissues
help move oxygen from plant structures above water to those that are underwater or
in saturated soil. Plants that possess these air-filled tissues are spongy when squeezed
and the air cells are obvious when the plants are cut.
(3) Examples of Morphological adaptations.
Species
Alisma spp.
Brasenia schreberi
Cladium mariscoides
Cyperus app. (most species)
Eleocharis spp. (most
species)
Fraxinus pennsylvanica
Juncus spp.
Limnobium spongia
Ludwigia spp.
Common Name
Water plantain
Watershield
Twig rush
Flats edge
Spikerush
Adaptation
Polymorphic leaves
Inflated, floating leaves
Inflated stems
Inflated stems and leaves
Inflated stems and leaves
Green ash
Rush
Frogbit
Water primrose
Menyanthes trifoliata
Myrica gale
Nymphaea spp.
Nyssa sylvatica var. biflora
Pinus rigida
Buckbean
Sweetgale
Water lily
Swamp black gum
Pitch pine
Pinus strobus
White pine
Platanus occidentalis
Populus deltoides
Quercus palustris
Sagittaria spp.
Salix spp.
Sycamore
Cottonwood
Pin oak
Arrowhead
Willow
Salix nigra
Scirpus spp.
Spartina alternflora
Black Willow
Bulrush
Smooth cordgrass
Buttressed trunk; adventitious roots
Inflated stems and leaves
Inflated, floating leaves
Adventitious roots; inflated floating
stems
Inflated stems (rhizome)
Hypertrophied lenticels
Floating leaves
Buttressed trunks
Shallow root system: buttressed
roots
Shallow root system: buttressed
roots
Adventitious roots
Adventitious roots
Adventitious roots
Polymorphic leaves
Hypertrophied lenticels; adventitious
roots; oxygen pathway to roots
Adventitious roots
Inflated stems and leaves
Oxygen pathway to roots
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FWR 10.72
FWR 10.72
WETLANDS REGULATIONS
FWR 10.72
Evidence of Surface Water
(1) Introduction
The presence of surface water during time of normal hydrological Conditions shall be
considered sufficient evidence of saturation of inundation. Indicators of surface water can be
either biological or physical.
(2) Biological Indicators of Surface Water. The following indicators of wetland hydrology
may be used as evidence of soil saturation:
(a) Fingernail clam and aquatic snail shells can occasionally be found in dry depressions
and are good indicators of extended periods of inundation during the growing season.
Be aware, however, that there are terrestrial snails in Massachusetts; their presence is
not an indicator of wetland hydrology. Freshwater mussels, unlike fingernail clams,
only occur in areas that are permanently flooded. The presence of mussel shells in
areas other than aquatic habitats are not good indicators of wetland hydrology
because they often are transported by predators.
(b) Caddisfly cases. Caddisfly cases can occasionally be found in dry pools or
intermittent Streams. Caddisflies are insects that are aquatic as larvae and winged as
adults. The larvae of many species construct tubelike cases around themselves, made
of leaf fragments, twigs, pine needles, or sand. These cases often persist long after the
water has dried up and serve as good indicators of extended periods of inundation
during the growing season.
(3) Physical Indicators of Surface Water
(a) Direct observation of inundation during the growing season is an obvious indication
of the presence of water. Recent weather Conditions should be taken into
consideration when using this indicator to establish the presence of wetland
hydrology.
(b) Water marks on trees, boulders, bridge abutments, or other objects are good
indicators of extended periods of inundation. Water marks can be stained or silt
covered areas, or an abrupt change in plant or lichen growth that is present on several
objects at a consistent elevation.
(c) Water-stained leaves on the ground are an indicator of inundation. Water-stained
leaves are usually dull gray or black in color, and are flattened compared with those
in surrounding (upland) areas.
(d) Sediment deposits on plants, leaves, or the ground are indicators of surface water, but
generally do not provide much information about the timing or duration of
inundation.
(e) Drift lines are accumulations of plant material or debris that are deposited, usually in
lines parallel to the Stream flow, during flood events. Drift deposits may be evident
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FWR 10.73
on the ground or occasionally in the branches of trees and shrubs. They are good
indicators of surface water, but do not provide much information about the timing or
duration of flooding.
(f)
Scoured areas are good indicators of flowing water. These generally can be
recognized by the relative absence of leaf litter and other debris on the ground, or
where fine soils have been washed away, leaving gravel and cobble. Scoured areas
are good indicators of flowing Conditions, but do not provide much information
about the timing or duration of flowing water.
(g) Drainage patterns left by flowing water indicate the presence of surface water. These
can be water-induced patterns on the ground (washboard or braided patterns in the
sediments), channels in the leaf litter, or where vegetation has been bent in one
direction by the force of running water. Although these patterns do serve as indicators
of surface water, they also may occur in upland areas.
FWR 10.73 Evidence of Soil Saturation.
(1) The following indicators of wetland hydrology may be used as evidence of soil saturation:
(a) Free water in a soil test hole indicates depth to the water table at that particular time.
The depth at which water is observed weeping out of the soil into the hole also is an
indicator of water table depth. Free water or weeping within 12 inches of the surface
is a good indicator of wetland hydrology. However, recent weather Conditions should
be considered when using this indicator.
(b) Saturated soil usually occurs in areas above the water table due to capillary action
within the soil. Saturated soils will yield water when squeezed. Saturated soil within
12 inches of the surface generally is a good indicator of wetland hydrology.
However, recent weather Conditions should be considered when using this indicator.
(c) Oxidized rhizospheres within the A-horizon together with low-chroma colors right
below the A-horizon are good indicators of soil saturation during the growing season.
Roots and other underground plant structures growing in saturated soil Conditions
may produce brightly colored areas in the soil called oxidized rhizospheres. Roots
need oxygen in order to survive and function. Under anaerobic soil Conditions,
oxygen moves to the roots from other parts of the plant. Leakage of this oxygen
results in the oxidation of iron in the soil surrounding the roots. In areas of
fluctuating water tables, this process creates brightly colored root channels (oxidized
rhizospheres) in the soil. Oxidized rhizospheres are often evident within the topsoil
and can be especially useful for confirming the presence of saturated soil Conditions
just below the ground's surface. Look for orange-stained channels along living plant
roots in the soil.
(d) Hydrological records, such as those from U.S. Geological Survey (USGS) Stream
gauging stations, U.S. Army Corps of Engineers data for major water bodies, state
and local flood data, or NRCS state offices, can provide information on flood
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WETLANDS REGULATIONS
FWR 10.74
elevations, as well as the frequency and duration of flooding. Hydrological records
that provide evidence of periods of continuous flooding from seven to 21 days during
the growing season are indicators of wetland hydrology.
(e) Hydric Soils (see FWR 10.74)
FWR 10.74
Hydric Soils
(1) Introduction
Soils found in wetlands are called hydric soils. Hydric soil is a relatively new term developed in
the mid-1970s by wetland scientists working for the U.S. Fish and Wildlife Service with help
from the Natural Resources Conservation Service (NRCS).
Hydric soil is defined as "a soil that is saturated, ponded, or flooded long enough during the
growing season to cause anaerobic Conditions in the upper part." Anaerobic Conditions
produce physical and chemical changes in the soil that are readily observable and serve as
hydric soil indicators. Hydric soil indicators generally require many years to develop. As a
result, soils are good indicators of the long-term hydrology of an area. Once developed, the
physical indicators of saturated Conditions persist even after the hydrology of an area has been
Altered. Hydric soil indicators are especially useful for delineating wetlands where the
vegetation has been Altered.
The NRCS has developed local lists (by county) of soil series that are considered hydric. It is
important to note, however, that Boundaries shown on soil survey maps are approximate. A site
visit is essential to verify the information contained in the soil survey and to accurately
delineate the BVW Boundary.
Hydric soils can be divided into two groups based on characteristics that can be observed in the
field using soil test holes. These are organic soils and hydric mineral soils.
(a) Organic Soils. Organic soils are made up of partially to well decomposed plant
material mixed with mineral elements. Generally, organic matter makes up 20% to
30% or more of the soil (depending on the amount of clay present). Organic soils
form in certain wetlands (especially Bogs, ferns, and Marshes) where anaerobic
Conditions slow the rate of decomposition and organic matter accumulates over time.
They generally can be recognized in the field by their dark color, slippery or fibrous
texture, and tendency to stain fingers when handled. Organic soils also are less
resistant than mineral soils to probing with a knife or shovel. When walking across
these soil areas, they often feel spongy underfoot.
Soils with at least 16 inches of organic material measured from the ground surface are
hydric soils and are referred to as histosols. Histosols are classified as fibrists (peats),
saprists (mucks), and hemists (mucky-peats and peaty-mucks). Soils with eight to 16
inches of organic material measured from the ground surface also are hydric soils and are
referred to as having a histic epipedon (thick organic surface layer). Histosols and soils
with a histic epipedon are always hydric soils.
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FWR 10.74
(b) Hydric Mineral Soils. Mineral soils contain less than 20% to 30% organic matter and
are made up primarily of sand, silt, and clay, with varying amounts of gravel,
cobbles, and stones. Hydric mineral soils are typically characterized by low-chroma
colors (0-2 on the Munsell Soil Color Charts) that result from gleization.
Gleization occurs when iron is reduced and becomes mobile due to anaerobic soil Conditions.
Chemical change resulting from the presence of oxygen is called oxidation. Many of the bright
colors (brown, orange, and red) found in upland soils are the result of oxidized iron on the
surface of soil grains. Chemical change that results from the absence of oxygen (anaerobic
Conditions) is called reduction. When soils are saturated or inundated long enough to produce
anaerobic Conditions, iron is reduced. Unlike oxidized iron, reduced iron is soluble in water
and may move a short distance, or is sometimes entirely leached out of saturated sandy soils.
This leaching process often creates soils that are dull-colored (low-chroma) or gray. These are
hydric soils and are known as gleyed soils. They are typically neutral gray or occasionally
bluish, or greenish-gray in color. The Munsell Soil Color Charts have special pages for gleyed
soils.
Some mineral soils may not readily show hydric soil characteristics due to texture (sandy soils),
or floodplain dynamics. (See FWR 10.74(3) Soils that are Difficult to Analyze)
Under Conditions of prolonged saturation, sulfur may become reduced and is converted by
bacteria into sulfur gas (hydrogen sulfide), giving some wetland soils a smell like "rotten eggs."
In areas where the water table fluctuates, leading to alternating periods of oxidation and
reduction, iron often accumulates in brightly colored mottles or concretions (hard nodules).
(2) Hydric Soil Indicators
The following is a list of some hydric soil indicators - any of which can be used to identify the
presence of wetland hydrology:
(a) Histosols (organic soils). Histosols are soils with at least 16 inches of organic
material measured from the soil surface.
(b) Histic epipedons. These are soils with eight inches to 16 inches of organic material
measured from the soil surface.
(c) Suffidic material. A strong "rotten egg" smell generally is noticed immediately after
the soil test hole is dug.
(d) Gleyed soils. Soils that are predominantly neutral gray, or occasionally greenish or
bluish gray in color within 12 inches from the bottom of the 0-horizon. [The Munsell
Soil Color Charts have special pages for gleyed soils.]
(e) Soils with a matrix chroma of zero or one and values of four or higher within 12
inches from the bottom of the 0-horizon.
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(f)
WETLANDS REGULATIONS
FWR 10.74
Within 12 inches from the bottom of the 0-horizon, soils with a chroma of two or less
and values of four or higher in the matrix, and mottles with a chroma of three or
higher.
(g) Within 12 inches from the bottom of the 0-horizon, soils with a matrix chroma of
three and values of four or higher, with 10% or more low-chroma mottles, as well as
indicators of saturation (i.e., mottles, oxidized rhizospheres, concretions, nodules)
within six inches of the soil surface.
(3) Soils that are Difficult to Analyze
In most cases, the hydric soil indicators listed in FWR 10.74(2) are sufficient to identify
wetland soils. However, certain soils are more difficult to assess, making it harder to determine
whether hydric Conditions exist. Use the most recent edition of Field Indicators for Identifying
Hydric Soils in New England for a more extensive list of hydric soil morphologies. The
following is a list and discussion of soils that are difficult to analyze:
(a) Sandy soils. Soil colors often are not distinctive in most sandy soils. Instead, look for
these indicators of hydric sandy soils (Indicators of hydric soils may be lacking
altogether in the soil of newly formed sand bars and interdunal depressions.):
1.
High organic content in the surface layer [typically darker colors with values
less than three and chroma of two or less] with mottles or other indicators of
saturation directly below;
2.
Organic streaking directly below the A-horizon; or
3.
Matrix chroma of three (from the Munsell Soil Color Charts) in the top 12
inches of soil measured from the bottom of the 0-horizon, with distinct or
prominent mottling.
(b) Floodplain soils. These soils usually are characterized by distinctly layered soil
material. The layers form when new sediment is deposited during flood events. As a
result of this pattern of deposition, hydric soil indicators may never form, or may be
buried even though saturated or inundated Conditions are present long enough to
create wetland hydrology.
(c) A-horizons that are thick and very dark. A-horizons greater than or equal to 12 inches
thick with values less than three and chroma of two or less are difficult to analyze
because indicators of saturation are difficult to see. Therefore, look directly below the
A-horizon for a matrix chroma of one or less and values of four or higher. If the
matrix color directly below the thick and dark A-horizon is chroma two and value
four or higher, other indicators of saturation need to be present in the soil directly
below the A-horizon. In uncommon situations, it may be necessary to dig deeper to
evaluate colors below the A-horizon.
(d) Spodosols/Evergreen forest soils. Sandy soils in Falmouth dominated by evergreen
trees may possess gray colored E-horizons just beneath the surface. These colors are
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FWR 10.81
not necessarily the result of saturation or inundation, but form as a result of the
leaching of organic material and aluminum and iron oxides by organic acids. These
soils are called spodosols and the gray layer that forms below the surface is known as
the E-horizon. Organic material and aluminum and iron oxides are deposited in a
layer below the E-horizon called the spodic horizon. Hydric indicators in spodosols
include a combination of two or more of the following features, with one occurring
within the upper 12 inches of the soil surface and others documented below the soil
surface:
1.
A thick, black, sandy surface layer;
2.
Organic streaking in the E-horizon;
3.
Mottles within the E-horizon;
4.
Oxidized rhizospheres within the A or E-horizon;
5.
Iron concretions/nodules within the E-horizon or spodic horizon;
6.
A partially or wholly cemented spodic horizon usually within 18 inches of the
surface measured from the bottom of the 0-horizon; and mottling within the
spodic horizon.
Non-hydric spodosols can be recognized by brightly colored soil material below the E-horizon
and without mottles or other indicators of saturation.
FWR 10.80
Vegetative Analysis Methods
When determining the edge of the Freshwater wetland, the plant community must be assessed
and assigned a value based on the contribution of the wetland plants to the plant community.
Three analysis techniques are recognized for this purpose. Because each vegetative analysis
method can provide a "false negative" the Applicant must use the method that provides the
highest result for contribution of wetland plants in the plant community. A "false positive" for a
Freshwater wetland using vegetation is prevented by allowing for some other confirmation of
saturated or inundated Conditions.
FWR 10.81
Field Data Form Requirement
A field data form (see FWR 10.88) shall be used when delineating the Boundary of a
Freshwater wetland. It shall be used whether the Boundary is delineated by vegetation alone or
by vegetation and other indicators of wetland hydrology. If detailed vegetative assessment is
not necessary for the site, the Applicant shall make a note on the data form and submit it. The
field data form shall be submitted with a Request for Determination of applicability or a Permit
application.
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FWR 10.82
FWR 10.82
WETLANDS REGULATIONS
FWR 10.83
Additional Definitions for FWR 10.80 through FWR 10.89
The following definitions are in addition to FWR 10.04 and FWR 10.23 and are for terms used
throughout FWR 10.80 through FWR 10.89:
(a) Vegetative Layers means separate strata within the vegetative communities are
divided for analysis. Five layers are used in this assessment: ground cover, shrub,
sapling, climbing woody vine, and tree.
(b) The ground cover layer includes woody vegetation less than three feet in height
(seedlings), non-climbing woody vines less than three feet in height, and all
nonwoody vegetation (herbs and mosses) of any height.
(c) Shrubs are woody vegetation greater than or equal to three feet, but less than 20 feet
in height.
(d) The sapling layer includes woody vegetation over 20 feet in height with a diameter at
breast height (dbh) greater than or equal to 0.4 inches to less than five inches.
Diameter at breast height is measured 4.5 feet from the ground.
(e) Trees are woody plants with a dbh of five inches or greater and a height of 20 feet or
more.
(f)
Climbing woody vines are a separate vegetative layer.
(g) Percent cover is the percent of the ground surface that would be covered if the foliage
from a particular species or layer were projected onto the ground, ignoring small gaps
between the leaves and branches. Foliage from different individual plants in the same
layer can overlap, and as a result, total percent cover may exceed 100%.
(h) Basal area is the cross-sectional area of a tree trunk at breast height [measured 4.5
feet from the ground].
FWR 10.83
Observation Plots
Observation plots are used for measuring or estimating plant abundance. The number of plots
should be based on the complexity of the site. Plots generally should be located in vegetative
communities that are not clearly wetland or upland: Plot locations should be chosen so that the
vegetation within the plot is representative of the vegetation within the community as a whole.
Circular plots with the following dimensions are recommended:
Ground cover:
Shrubs:
Saplings:
Climbing woody vines:
Trees:
five-foot radius
fifteen-foot radius
fifteen-foot radius
thirty-foot radius
thirty-foot radius
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FWR 10.84
Plot size and shape may be varied when site Conditions warrant. Plot locations shall be located
to ensure that the vegetative layer being sampled is representative of the plant community in the
study area. The location of all observation plots shall be shown on the site plan.
FWR 10.84
Measuring Plant Abundance
(1) Percent Cover. Percent cover is a simple method for evaluating plant abundance and can
be used for all layers (ground cover, shrub, sapling, climbing woody vine, and tree), when
using the Dominance Test or the Wetland Site Index.
(a) Plant abundance should be estimated or measured for each layer where the total
percent cover is 5% or greater. All vegetative layers present in an observation plot
must be reported in the evaluation unless the total percent cover of a layer is less than
5%. Within each of those layers, estimate or measure plant abundance for each
species. Any plant species with one-percent cover or less should not be included.
(b) When estimating or measuring percent cover, include any foliage in the layer that
occurs in the observation plot only if the stem or trunk of the plant originates within
the plot.
(c) When estimating percent cover, use the following cover classes:
Cover Class
1
2
3
4
5
6
7
Cover Range
1-5%
6-15%
16-25%
26-50%
51-75%
76-95%
96-100%
Ranges Midpoint
3.0
10.5
20.5
38.0
63.0
85.5
98.0
(2) Measuring Basal Area
Basal area ray be used to estimate percent dominance of trees for vegetative analysis.
(a) When using basal area to estimate abundance for the tree layer, include only those
trees whose trunks originate within the plot.
(b) Trees with multiple trunks that originate below 4.5 feet should be counted as two or
more trees (depending on the number of trunks). Each trunk of a multiple trunk tree
should be counted separately when determining total basal area for a plant species.
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FWR 10.85
WETLANDS REGULATIONS
FWR 10.85
(3) Sampling Grids.
Where more precise Determinations of plant cover in the ground cover vegetative layer are
required than are possible with the use of the estimation of percent cover using the cover classes
specified in FWR 10.84(1), a sampling grid may be used.
FWR 10.85
Department of Environmental Protection Dominance Test
Details on the criteria for delineating a Freshwater wetland Boundary and the terminology used
in this field data form are described in the handbook, Delineating Bordering Vegetated
Wetlands Under the Massachusetts Wetlands Protection Act (MA Department of
Environmental Protection, Division of Wetlands and Waterways, 1995).
(a) The Dominance Test Procedure Summary66
1.
2.
3.
66
Evaluate percent cover: For each observation plot do the following (basal area
may be used for the tree layer):
a.
Determine how many of the vegetative layers (ground cover, shrub,
sapling, climbing woody vine, tree) have a total percent cover of 5% or
more within the observation plot. Only those layers with a total percent
cover of 5% or greater are to be used.
b.
For each vegetative layer, estimate or measure percent cover for each
plant species in the layer. Any plant species with one-percent cover or less
should not be included. If you know a plant species' name, list the name
and its percent cover. If you do not recognize a plant or do not know a
plant's name, call it a generic name (e.g. species x) and list its percent
cover.
Determine percent dominance for plants in each layer: For those layers within
the observation plot with five-percent cover or more, determine percent
dominance for each plant species as follows:
a.
Add up percent cover for all plant species in the layer to determine the
total percent cover for the layer.
b.
Divide the percent cover for each plant species by the total percent cover
for the layer, and multiply this by one hundred (100.) This will yield
percent dominance for each plant species in each layer.
Identify dominant plants: Within the observation plot, identify the dominant
plants in each layer:
Use the Dominance Test delineation form in FWR 10.88.
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FWR 10.86
4.
FWR 10.86
FALMOUTH CODE
FWR 10.86
a.
Beginning with the most abundant species, list the plants in the layer until
the cumulative total for percent dominance meets or exceeds 50%. In
some cases, this will only be one species; in other cases, several species
may be needed to meet the fifty-percent threshold. These species are
dominant plants for the layer.
b.
Other species, not already listed in 3a., with a percent dominance of 20%
or greater also are dominant plants and should be listed.
c.
If additional species in the layer have the same percent dominance as any
species already listed in 3a. and b., those species also are dominant plants
and should be listed.
d.
Those plants that meet a., b., and c. above are dominant plants for the
layer. Identify the scientific name and indicator category for all dominant
plants. The indicator category is taken from the most recent edition of
National List of Plant Species That Occur in Wetlands for the Falmouth
area.
Determine whether the plant community is wetland or upland:
a.
List the dominant plants (from 3.a., b., and c. above) for all layers being
evaluated. A given species may appear more than once on this list, if it is a
dominant plant in more than one layer.
b.
Determine how many of the dominant plants are wetland indicator plants
according to FWR 10.55(2)(c).
c.
Determine total number of wetland indicator plants and total number of
nonwetland indicator plants.
d.
If the number of wetland indicator plants is equal to or greater than the
number of nonwetland indicator plants, the wetland vegetation criterion
has been met. If vegetation alone is presumed adequate for the delineation,
the plot is in a Freshwater wetland. If vegetation alone is not presumed
adequate or to overcome the presumption, other indicators of hydrology
(see FWR 10.70) also should be used to delineate the Freshwater wetland
Boundary.
Wetland Site Index
The Wetland Site Index (WSI) was developed by Dr. Martin C. Michener in 1983.
The WSI Procedure Summary:67
67
Use the WSI delineation form in FWR 10.88.
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FWR 10.87
WETLANDS REGULATIONS
FWR 10.87
1.
Determine plot area. The wetland flag is the center of the plot. The Boundaries of the
plot are the radius of the plot and the wetland edge.
2.
List all species in the ground cover in the study plot. Determine then record the
percent aerial coverage for each species.
3.
List all species in the tree layer in the study plot (thirty-foot radius). Determine then
record the percent aerial coverage for each species.
4.
Repeat Step 3 for climbing woody vines.
5.
In the sapling layer, list all species in the study plot (fifteen-foot radius). Determine
then record the percent aerial coverage for each species.
6.
Repeat Step 5 for the shrub layer.
7.
Record the USFWS indicator status for each entry.
8.
Based on cover class, establish the abundance factor for each entry.
9.
Establish the sum of abundance factors for each USFWS category.
10. Multiply the sum of the abundance factor for each USFWS category by the computed
value for that USFWS category to establish a product for each USFWS category.
11. Add all the products to establish a total product.
12. Add all the abundance factors to establish a total abundance.
13. Establish the WSI by dividing the total product by the total abundance.
14. If WSI < .45 then site is presumed upland. If WSI is ≥.45, and < .67, check soils. If
WSI is .67, you may presume the site is wetland.
FWR 10.87
Relative Dominance of Wetland Species by Layering
Relative Dominance of Wetland Species by Layering (RDL) determines the percent wetland
plant community composition by the relative dominance of wetland species by layers. The RDL
method built upon vegetation mapping practices that had been in use since the turn of the
century.
The RDL Procedure Summary:68
1.
68
Determine plot area. This should be performed in the same manner as the dominance
test (see FWR 10.84).
Use the RDL form in FWR 10.88.
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FWR 10.88
FALMOUTH CODE
FWR 10.88
2.
List all upland species, then all wetland species in the ground cover in a five-foot
radius along the plot Boundary centered on flag location. Determine, then record
percent aerial coverage for each group. Note if a sampling grid is used.
3.
List all upland species present in the tree layer, then all wetland species, in a thirtyfoot radius along the plot Boundary. Determine, then record, the percent basal area
(based on dbh) or percent aerial coverage of upland and wetland species relative to
each other.
4.
Repeat Step 3 for climbing woody vines.
5.
In the sapling layer, list all upland species, then all wetland species, in the shrub layer
in a fifteen-foot radius along the plot Boundary. Determine by visual estimate and
record percent aerial coverage for each group.
6.
Repeat Step 5 for the shrub layer.
7.
Calculate the mean of the percent coverage of wetland species from the results of
each vegetative layer.
8.
If using other than the defaults for the different vegetative layers as defined in
FWR 10.82, note that difference on the RDL form.
FWR 10.88
Delineation Forms69
69
Editor's Note: The Delineation Forms, including Relative Dominance by Layers; Wetland Site Index and DEP Dominance
Test, are on file in the Conservation Administrator's office and may be examined there during regular office hours.
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FWR 2.00
WETLANDS REGULATIONS
FWR 2.01
Stormwater Control Regulations
For Work Performed Pursuant to the
Falmouth Wetlands Bylaw, Chapter 235 of the Code of Falmouth
Falmouth Wetlands Regulation, Section 2.00
FWR 2.00
Standards and Specifications for Stormwater Management Systems
Section
2.01:
2.02:
2.03:
2.04:
2.05:
2.06:
2.07:
2.08:
2.09:
2.10:
2.11:
2.12:
2.13:
2.14:
2.15:
Introduction
Purpose
Additional Definitions for 2.01 through 2.15
Submittal Requirements
Performance Standards and Design Specifications
Stormwater Design Methodology Considerations for Stormwater Management
General Standards and Specifications
Selecting a Water Quality BMP
Specific Standards and Specifications for Water Quality BMPs
Treatment for "Hot Spots"
Maintenance
Inspection
Applicant Check-off List
BMP Maintenance Report Form
Stormwater Management Summary Form
FWR 2.01
Introduction
The Falmouth Wetland Regulations, FWR 2.00, is promulgated by the Falmouth Conservation
Commission pursuant to the authority granted to them under the Falmouth Wetlands Bylaw,
Chapter 235 of the Code of Falmouth. The FWR 2.00 shall complement Chapter 235 of the
Code of Falmouth, and shall have the force of law upon their effective date.
FWR 2.00 is intended solely for use in administering Chapter 235 of the Code of Falmouth;
nothing contained herein should be construed as preempting or precluding more stringent
protection of wetlands or other natural Resource areas by other bylaws, ordinance or
regulations.
FWR 2.01 through 2.15 pertains to work in both inland and coastal areas subject to protection
under Chapter 235 of the Code of Falmouth.
Control of stormwater runoff shall meet the design criteria for both flood (volume and peak
discharge) control and nonpoint source pollution reduction as indicated in FWR 10.16(3). All
assumptions, methodologies, and procedures used to design Best Management Practices
(BMPs) shall accompany the design.
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FWR 2.02
FWR 2.02
FALMOUTH CODE
FWR 2.02
Purpose
FWR 2.00 sets forth a decision-making process by which stormwater management activities
affecting Areas subject to protection under Chapter 235 of the Code of Falmouth are to be
regulated in order to contribute to the following Resource area values:
- Protection of public and private water supply
- Groundwater
- Flood control
- Erosion and sedimentation control
- Storm damage prevention
- Water pollution control
- Fisheries
- Shellfish
- Wildlife habitat
- Agriculture
- Aesthetics
- Recreation
- Aquaculture
In addition to the Resource area values above, in the Black Beach/Great Sippewissett Marsh
District of Critical Planning Concern, the following Resource area values also apply
- Prevention of damage to structures and natural resources as a result of Erosion;
- Improvement of water quality;
- Prevention of loss or degradation of Critical Wildlife and plant habitat;
- Prevention of new stormwater runoff discharges and the improvement of existing
stormwater runoff discharges;
- Protection of coastal ecosystems which support the continued viability of Harvestable
shellfish and finfish habitat;
- Improvement of Groundwater recharge; and
- The minimization of the impact of new development, reconstruction and/or expansion on
the Resource area values listed above.
The purpose of FWR 2.00 is to define and clarify that process by establishing standard
definitions and uniform procedures by which the Commission may determine if the provisions
of FWR 10.16(3) are satisfied.
The performance standards in FWR 10.16(3) are intended to identify the level of protection the
Commission must impose in order to contribute to the protection of the Resource area values of
Chapter 235 of the Code of Falmouth. It is the responsibility of the Commission to order
specific measures and requirements for each proposed project which will ensure that the project
is designed and carried out consistent with the required level of protection.
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FWR 2.03
FWR 2.03
WETLANDS REGULATIONS
FWR 2.03
Additional Definitions for FWR 2.01 through 2.13
Except for the following definitions, terms are defined in the Massachusetts Department of
Environmental Protection's Nonpoint Source Management ("The Mega-Manual"), June 1993.
BMPs - Best management practices are structural, non-structural and managerial techniques
that are recognized to be the most effective and practical means to prevent and/or reduce
nonpoint source pollution.
Extended Detention Pond - An enhanced detention pond that provides both flood control and
treatment of the first flush of stormwater runoff. Storage time for the first flush is a minimum of
48 hours.
First Flush - The volume generated by the first 1.25 inches of stormwater runoff. This first 1.25
inches of runoff carries the majority of accumulated pollutants from impervious surfaces. The
first flush treatment volume in cubic feet (Vt) is determined by the following formula:
Vt = (1:25/12 inches)(Rv)(Site area in square feet)
where, Rv = 0.05 + 0.009(I) I = the percent impervious area. Impervious area is defined as
any man-made cover that is not vegetated. In residential areas, the percent impervious is
obtained from the TR-55 table "Runoff Curve Numbers for Urban Areas, Residential
District by Average Lot Size."
Forebay - A storage area provided near a BMP inlet to trap incoming sediments before they
accumulate in a basin/pond BMP.
Hydrologic Soil Group - A soil characterization classification system defined by the U.S.
Natural Resource Conservation Service. Soils within the same group have the same runoff
potential under similar storm and cover Conditions.
Impervious area means any man-made cover that is not vegetated, but does not include sand
pits.
Peak Discharge - The maximum rate of flow during a storm, usually in reference to a specific
design storm event (i.e. two-year, ten-year, twenty-five-year, one-hundred-year., twenty-fourhour storm event).
Soil Mottling - Redoximorphic features.
Surface Water Quality Classifications - Waters designated for protection under 314 CMR 4.04
(2).
TR-20 - A SCS hydrology procedure for complex watersheds. The computer program
calculates runoff volumes, peak discharges and hydrographs at various locations in the
watershed. Design storms and actual rainfall events can be analyzed.
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FWR 2.04
FALMOUTH CODE
FWR 2.04
TR-55 - Presents simplified hydrology procedures to calculate runoff volumes and peak
discharge in small watersheds. It is based on TR-20 hydrology procedures and actual TR-20
computer runs.
FWR 2.04
Submittal Requirements
(1) It shall be the responsibility of the Applicant to submit a Stormwater Management Plan
(SMP) detailing the existing environmental and hydrological Conditions of the site,
proposed alterations of the site, and all proposed components of the drainage system and
any measures for the detention, retention, or infiltration of water, for the protection of
water quality and protection from flooding. The SMP shall contain sufficient information
for the Conservation Commission to evaluate the effectiveness and acceptability of those
measures proposed by the Applicant for controlling flooding and pollution from
stormwater runoff. The SMP shall contain a table of contents, a summary (FWR 2.15), and
maps, charts, graphs, tables, photographs, narrative descriptions, calculations, Plans
showing construction details of all systems and structures, and citations to supporting
references, as appropriate, to communicate the information as required by these
regulations.
The preexisting environmental and hydrological Conditions of the site, proposed alterations of
the site, all proposed components of the drainage system, and any measures for the detention,
retention, or infiltration of water shall be described in detail as stipulated in FWR 2.04(2)
through (4), with sufficient information to evaluate the proposed Stormwater Management Plan.
(2) Site Characteristic Information to be included in the Stormwater Management Plan (SMP)
as shown on a site plan:
(a) Pre-development Conditions:
1.
The location of all surface waters and wetland resources, on or adjacent to the
site;
2.
The delineation of the one-hundred-year flood elevation as indicated on the
Federal Emergency Management Act (FEMA) maps. If FEMA maps do not
exist or if the water body or watercourse one-hundred-year flood elevation is
not indicated on the FEMA map, the elevation shall be calculated utilizing an
appropriate methodologies such as SCS TR-55, TR-20 or HEC2;
3.
The topography described at one-foot intervals, with areas of steep slopes over
15% highlighted;
4.
The existing watersheds on the property, as well as upgradient areas
contributing runoff to the property;
5.
The principal vegetation types sufficient to determine an appropriate runoff
curve number;
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FWR 2.04
WETLANDS REGULATIONS
FWR 2.04
6.
The soil types on the site and the hydrological soil groups based the most
current Natural Resource Conservation Service (NRCS, formerly SCS) soils
map;
7.
The flow path(s);
8.
Areas of ponding and swamping;
9.
Design points for each watershed;
10.
The location of any public water supplies and mapped or presumed Zone II's on
the property as well as private water supplies within 100 feet;
11.
Soil logs for each proposed BMP location;
12.
Soil observation holes shall extend a minimum of four feet below the bottom of
any stormwater BMP and be observed by the agent of the Board of Health, and
13.
Maximum Groundwater levels at the proposed BMP locations;
a.
The Groundwater elevation measurements in soils with a dominant texture
of loamy fine sand or coarser shall be determined during the time of
probable maximum using monitoring wells, or the reading on a
monitoring well corrected by the method outlined in "Predicting
Maximum Ground Water Elevations on Cape Cod" (Frimpter, 1989)
b.
The Groundwater elevation measurements in soils with a dominant texture
finer than loamy fine sand shall be determined during the time of probable
maximum using monitoring wells, or by soil morphology using
redoximorphic features, whichever is greater;
c.
Monitoring wells shall be installed with the elevation of the top of the
casing indicated on the plan or on the casing;
d.
The time of probable maximum Groundwater shall be determined using
the Board of Health's policy.
(b) Post-development Conditions:
1.
Changes in topography at one-foot intervals;
2.
The proposed watersheds on the property, as well as upgradient areas
contributing runoff to the property;
3.
Areas where vegetation will be cleared or otherwise Altered;
4.
The proposed development layout including;
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FWR 2.04
FALMOUTH CODE
5.
FWR 2.04
a.
Locations of roadways, common parking areas, and undisturbed lands;
b.
Locations of drainage systems and stormwater treatment facilities;
Areas to be utilized in overland flow, i.e. grass swales and filter strips,
showing:
a.
Proposed vegetation;
b.
The soil susceptibility to Erosion (using the NRCS classification);
6.
The flow path(s);
7.
Design point(s) for each proposed watershed;
(3) Water Quantity/Duration/Quality Information to be submitted in the SMP
(a) Pre-development Conditions in narrative form or calculations, including:
1.
Peak discharge rate for the two- , ten- , twenty-five- , and one-hundred-year
twenty-four-hour storm event using NRCS TR-55 or TR-20;
2.
Volume of the surface runoff for the ten-year storm; and
3.
Existing state surface water quality classifications found in 314 CMR 4.04, if
available;
(b) Post-development Conditions in narrative form or calculations, including: [All
calculations, supporting data, and reference materials relating to the design and
construction of flood control and pollution reduction BMPs.]
1.
Peak discharge rate for the two- , ten- , twenty-five- , and one-hundred-year
twenty-four-hour storm event using NRCS TR-55 or TR-20;
2.
Volume of the surface runoff for the ten-year storm;
3.
Detention/retention time, discharge rate, and approximate time of concentration
through the BMP for the water quality storm;
4.
A description of and calculations for the proposed outlet structure(s); both the
principle outlet and emergency spillway; and
5.
A discussion regarding whether the proposed BMPs meet or exceed the
performance standards identified in FWR 10.16(3), as well as an evaluation of
the pollutant removal efficiency of each proposed treatment facility or group of
facilities.
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FWR 2.05
WETLANDS REGULATIONS
FWR 2.05
(3) Stormwater Management Summary
The pre- and post-development Conditions shall be summarized for each watershed on the
Stormwater Management Summary Form (FWR 2.15)70 .
(4) Maintenance Information to be included in the SMP.
Maintenance Plans for each basin including: a maintenance schedule, an outline of responsible
parties and owners, and all pertinent agreements to be executed to ensure proper maintenance.
See FWR 2.11.
FWR 2.05
Performance Standards and Design Specifications
(1) Control of stormwater runoff shall meet the design criteria for both flood (volume and
peak discharge) control and nonpoint source pollution reduction as indicated in
FWR 10.16(3). All assumptions, methodologies, and procedures used to design
stormwater BMPs shall accompany the design.
(2) Notwithstanding the provisions of FWR 10.16(3) and FWR 2.00, any project (except those
regulated by FWR 10.39) that contains 12% impervious lot coverage or less, shall not be
required to meet the requirements of FWR 10.16(3) and FWR 2.00, provided said
impervious cover is not connected71 to a Resource area specified in FWR 10.02(1)(a) 2.
through 4, 6 through 11., and 10.02(1)(b) through (e).
(3) Notwithstanding the provisions of FWR 10.16(3) and FWR 2.00, a single-family house
with an impervious lot coverage of less than 2,500 square feet, or a total lot impervious
less than 4,500 square feet with roof infiltration provided for the first flush, shall not be
required to meet the requirements of FWR 10.16(3) and FWR 2.00, provided the first flush
is infiltrated.
(4) Discharges to Coastal Waters.
(a) Notwithstanding the provisions of FWR 10.16(3)(b), where the discharge of
stormwater is to the Ocean or an Estuary, the project shall maintain the volume of
discharge up to the two-year, twenty-four-hour design storm.
(b) Notwithstanding the provisions of FWR 10.16(3)(b), where the discharge of
stormwater is to a coastal Resource area, the project shall maintain or reduce the rate
of runoff so that said discharge is non-erosive and maintain or reduce the volume of
discharge up to the two-year, twenty-four-hour design storm, provided that there
exists no downstream control, such as a bridge or culvert, that restricts the flow of
water.
70
Editor's Note: The Stormwater Management Summary Form FWR 2.15 is on file in the Conservation Administrator's
office and may be examined there during regular office hours.
71
Connected as defined in TR-55.
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FWR 2.06
FALMOUTH CODE
FWR 2.07
(5) Discharges to Closed Depressions. Notwithstanding the provisions of FWR 10.16(3)(b),
where the discharge of stormwater is to a closed depression (e.g. kettle hole) with no outlet
for storms up to the one-hundred-year, twenty-four-hour design storm, the discharge shall
be non-erosive and no other rate or volume standards are required.
FWR 2.06
Stormwater Design Methodology Considerations for Stormwater Management
(1) Runoff calculations for flood control shall be provided utilizing the rational formula, the
NRCS TR-20 or TR-55, as appropriate for the site. The appropriate methodology shall be
determined from the restrictions on each method described in Basic Hydrological
Calculations for Conservation Commissioners: Runoff, Land subject to flooding, and Flow
in Pipes and Channels, (DEQE 1987). The Rational Method cannot be used to determine
volume.
(2) The appropriate pre- and post-development worksheets as shown in Basic Hydrological
Calculations for Conservation Commissioners: Runoff, Land subject to flooding, and Flow
in Pipes and Channels. (DEQE 1987), shall be submitted with the Subdivision Plan.
(3) The flow length for pre-development sheet flow to determine the time of concentration
(Tc) or travel time (Tt) shall not exceed 50 feet.
(4) The design point(s) shall be at the:
(a) Edge of a Resource area as specified in FWR 10.02(1)(a) 2. through 4, 6 through 11.,
and 10.02(1)(b) through (e).; or, where the edge of the Resource area is off the
property under consideration,
(b) Property line, unless other wise allowed pursuant to FWR 2.07(1); or where the predevelopment discharge is to an existing storm drainage line,
(c) Existing storm drain system.
For each pre-development design point there shall be a corresponding post-development design
point.
FWR 2.07
General Standards and Specifications
The design, construction, and maintenance of Stormwater BMPs shall be consistent with
FWR(1) through (15).
(1) Land not referenced in the Permit application by book and page and owner shall not be
used in the stormwater management plan unless a recordable easement has been granted
for such use, and a copy of the easement has been submitted to the Conservation
Commission as part of the SMP.
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FWR 2.07
WETLANDS REGULATIONS
FWR 2.07
(2) The site shall be graded so that surface water shall be directed into the stormwater
management system.
(3) Intermittent watercourses such as swales shall be vegetated.
(4) Prior to discharging any stormwater runoff into a BMP, the following Conditions must
also be met:
(a) The BMP shall be installed according to applicable standards and specifications of
FWR 2.00;
(b) All components of the BMP shall be stabilized; and
(c) All upland areas contributing stormwater runoff to the BMP shall be stabilized (nonerosive).
(5) All basins/Ponds designed for stormwater runoff control shall:
(a) Be designed in accordance with current NRCS standards and specifications unless
otherwise indicated in FWR 2.09;
(b) Have a two-stage design when pollution reduction and flood control are incorporated
into one BMP. The upper stage shall provide enough storage to control the post
development peak discharge rates for the two- , ten- , twenty-five- and one-hundredyear, twenty-four-hour storm events to the pre-development levels, the lower stage
shall provide enough storage to meet the pollution removal efficiencies as described
in FWR 2.09;
(c) Have energy dissipators at the outlets of all inflow and outflow pipes;
(d) Have outflow pipes designed to Minimize clogging (i.e. through the use of trash
racks);
(e) Have an emergency spillway to allow for the passage of water without damage to the
water quality structure for storms greater than their largest design capacity;
(f)
Have side slopes at a no greater than a 4:1 [Side slopes must be stabilized and planted
with vegetation to prevent Erosion. A ten-foot-wide bench at 0% slope shall surround
any permanent pool.]; and
(g) Except for the sediment forebay, shall have no permanent pool depth in excess of two
and one-half (2 1\2) feet.
(6) All water quality BMPs shall be designed in accordance with the runoff volume indicated
in FWR 10.16(3). Runoff greater than this design criteria shall be controlled using the
peak discharge/volume control criteria in FWR 10.16(3).
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FWR 2.07
FALMOUTH CODE
FWR 2.07
(7) Infiltration basins using redundant sediment removal techniques (i.e. sediment forebay,
grassed swale and filter fabric) may be designed and utilized to act as BMPs for both water
quality and volume control, provided all other standards and specifications are met.
(8) Volume control structures shall not be placed upgradient of any pollution BMP and
(a) Volume control shall be by infiltration;
(b) Infiltration areas designed and constructed to control the volume of runoff shall be
located in areas with a NRCS hydrological soil group of A, B, or C;
(c) Infiltration for volume control shall be designed and constructed with the bottom of
the infiltration area one foot above the maximum high Groundwater elevation; and
(d) The calculations to determine the size of the volume control structure shall assume
the surface of the structure to be impervious.
(9) All water quality basin/Ponds shall have a sediment forebay. These forebays shall:
(a) Consist of a separate cell formed by an earthen berm, gabion, or rip-rap wall;
(b) Be sized to contain 1/4 inches per impervious acre of contributing drainage, unless
otherwise specified by the provisions of FWR 2.09;
(c) Be four feet deep; and
(d) Have nonerosive exit velocities for the two-year design storm.
(10) Where stormwater basins are designed with a permanent pool depth, a post and rail fence
with pressure treated posts or locust posts, with a backing of plastic coated wire fencing
shall be used when the basin is in close proximity to residential units, and shall further
inhibit access by a planting of rugosa rose (Rosa rugosa) surrounding the basin; and
(11) All water quality BMP's shall be designed to accept a return storm of 1/2 inch off the
impervious area 11 days after the water quality storm.
(12) Water velocities in pipes and gutters shall be between two and 10 feet per second. Water
velocities in non-paved areas (eg. swales, ditches) shall not be more than published values
for "Maximum Permissible Velocities" based on surface cover type and soil types.
(13) Storm drains shall be of at least 12 inches diameter inside, with at least 24 inches of cover.
All drain pipes except subdrains shall be reinforced concrete or ADS.
(14) Easements and provisions for vehicular access shall be provided along the entire length of
storm drain lines.
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FWR 2.08
WETLANDS REGULATIONS
FWR 2.09
(15) At cross culverts, drainage easements shall be established upgradient of the culvert and
delineated on the Plan of Record based on the projected one-hundred-year headwater
elevation.
FWR 2.08
Selecting a Water Quality BMP
Four designs for water quality BMPs - Micropool Extended Detention Basins, Wet Extended
Detention Ponds, Infiltration Basins and Biofilters are listed in FWR 2.09. One of these BMPs
may be appropriate for the site. These four BMP types comply with the requirements of the
provisions of FWR 10.16(3)(c), however:
(1) Micropool extended detention basins with a forty-eight-hour detention time will not
adequately Remove bacteria. No extended detention basins proposed within 1,000 feet of a
sensitive receptor for bacteria shall be approved. In Falmouth, these areas are:
(a) Public swimming areas
(b) Zone 2 of public water supply wells,
(2) Due to the high failure rate of conventional infiltration practices, they are not an accepted
method of stormwater management unless redundant pretreatment for sediment removal is
utilized. No underground infiltration practices, such as leaching catch basins, shall be
allowed in residential subdivisions.
(3) Research has shown that biofilters do not reduce fecal coliform bacteria or nitrogen and
may actually increase the loading of these two pollutants. Biofilters should not be utilized
in areas sensitive to bacteria and/or nitrogen.
(4) Oil/grit separators are not needed for the type of pollutants associated with subdivisions.
They shall not be approved for residential subdivisions.
(5) Other water quality BMPs may be approved provided the pollutant removal rate meets or
exceeds the requirements of FWR 1.16(3)(c).
FWR 2.09
Specific Standards and Specifications for Water Quality BMP's
(1) Micropool Extended Detention Basin - In order to provide an estimated removal efficiency
of 80% for suspended solids, 30% total phosphorus, and 15% total nitrogen, micropool
extended detention basins shall be designed in accordance with FWR 2.05 through 2.08
plus the specific criteria stated below. The design of micropool extended detention basins
shall include:
(a) Minimum contributing watershed area of 10 acres;
(b) A minimum of forty-eight-hour detention time for the water quality storm;
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(c) A sediment forebay at the inlet;
(d) A micropool located near the outlet structure to reduce resuspension of sediments;
(e) A minimum of 3:1 length to width ratio with the inlet structure placed a maximum
distance from the outlet structure; and
(f)
The establishment of, and the methodology with which to maintain, wetland
vegetation on the bottom of the basin.
(2) Wet Extended Detention Ponds/Basins (WP) - In order to provide an estimated removal
efficiency of 80% for suspended solids, 65% total phosphorus, and 40% total nitrogen,
WPs shall be designed in accordance with FWR 2.05 through 2.08 plus the specific
criteria stated below. The design of WPs shall include:
(a) A minimum contributing watershed of 25 acres, or measures to maintain a permanent
pool of water;
(b) A permanent pool volume within the permanent pool equal to 40% of the water
quality (first flush) volume;
(c) A sediment forebay volume of 13% of the water quality (first flush) volume;
(d) An extended detention storage volume of 47% of the water quality (first flush)
volume;
(e) A detention time for the water quality (first flush) volume of 48 hours;
(f)
A maximum depth of 2.5 feet;
(g) A Marsh component to be established along the Pond edges;
(h) A minimum of 3:1 length to width ratio with the inlet structure placed at a maximum
distance from the outlet structure;
(3) Infiltration Basin (IB)- In order to provide an estimated removal efficiency of 80% for
suspended solids and 90% bacteria, IBs shall be designed in accordance with FWR 2.05
through 2.08 plus the specific criteria stated below. The design of IBs shall include:
(a) Three redundant pretreatment mechanisms (such as a sediment forebay or detention
pond) adequate to Remove and store 80% of the TSS;
(b) Adequate volume to infiltrate the first flush of runoff;
(c) Compliance with the specifications found in the State of Rhode Island Stormwater
Design & Installation Manual, Sept. 1993, when not specified elsewhere in this
section;
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WETLANDS REGULATIONS
FWR 2.10
1.
Section 6.3 (a), (b)(1)(2)(4), Site Suitability, utilizing the Barnstable County
Soil Survey,
2.
Section 6.4 Infiltration Rates,
3.
Section 6.6 (a through i) Design Requirements,
4.
Section 6.7 (a)(1-11) Separation Distances,
(4) Biofilters - In order to provide an estimated removal efficiency of 80% for suspended
solids, 45% total phosphorus, and 25% total nitrogen, biofilters shall be designed in
accordance with FWR 2.05 through 2.08 plus the specific criteria stated below. The design
of biofilters shall:
(a) Be designed in accordance with the site suitability, design criteria, and maintenance
requirements of Appendix G of Biofiltration Swale Performance Recommendations
and Design Considerations, Washington Department of Ecology, Publication #657,
October 5, 1992;
(b) Be designed to carry only the first flush;.
(c) Have a maximum contributing watershed of five acres;
(d) Stabilized (nonerosive) with dense vegetative cover prior to accepting any
stormwater runoff;
FWR 2.10
Treatment for "Hot Spots"
(1) Introduction
The intent of this section is to provide adequate treatment for stormwater runoff from certain
land uses, or "hot spots", which pose a greater threat to wetland and water Resource areas.
Stormwater from "hot spots" is presumed to be contaminated while stormwater from rooftops
(excepting industrial and other specific roofs) is presumed to be relatively uncontaminated.
(2) Definitions.
(a) A hot spot occurs due to land use or activity that generates higher potential pollutant
loads than are found in typical stormwater runoff, based on existing data. These
activities include but are not limited to:
1.
Stormwater discharges associated with Standard Industrial Classifications;
2.
Auto salvage yards (auto recycle facilities);
3.
Auto fueling facility (gas station);
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4.
Fleet storage areas (cars, buses, trucks, public works);
5.
Vehicle service and maintenance areas;
6.
Vehicle and equipment cleaning facilities;
7.
Commercial parking lots with average trip generation rates of 100 or greater
per day (according to Institute of Transportation Engineers). Such areas
typically include fast-food restaurants, convenience stores, high-turnover
(chain) restaurants, shopping centers and supermarkets;
8.
Road salt storage and loading areas (if exposed to rainfall);
9.
Commercial nurseries;
10.
Metal rooftops including roofs made from aluminum, tin, galvanized steel,
copper, or rooftops which have been documented to contribute Significant
pollutant loads;
11.
Outdoor storage and loading/unloading areas of hazardous substances;
12.
SARA 312 generators (if materials or containers are exposed to rainfall); and
13.
Marinas (service, repainting, and hull maintenance areas).
(b) The hot spots are specific drainage areas where the individual "hot spot" activity or
land use occurs. Stormwater which comes in contact with hot spot activity or land use
is considered to be contaminated by hot spot pollutants. Areas of the project site, not
within the same hot spot drainage area, are not considered to be contaminated by hot
spot pollutants.
(c) Areas not normally considered hot spots are:
1.
Residential development;
2.
Office and institutional development [when they don't include activity or land
uses specified in FWR 2.10(2)(a)]; or
3.
Roads and streets.
(d) Sufficiently treated means that the stormwater management system incorporates
BMPs which are specifically designed to achieve sediment and chemical constituents
removal rates that would adequately protect designated uses of Groundwater or
hydrologically connected surface waters.
(3) Required Practices.
(a) The following are required within hot spot areas:
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FWR 2.10
1.
Source reduction practices which aim to Minimize contact between rainfall and
contaminated sources to Minimize the quantity of contaminated stormwater
that must be treated and
2.
Pretreatment by the use of water quality inlets, sediment traps, drainage
channels, water quality swales, and/or deep sump catch basins;
3.
Stormwater runoff shall be sufficiently treated; and
4.
All other provisions of FWR 10.16(3) and FWR 2.00.
(b) Stormwater management systems in or near public drinking waters and other
sensitive resources should incorporate designs which allow for shut-down and
containment in the event of an emergency spill or other unexpected contamination
event. BMPs with inlets and outlets can be designed with a shutoff and containment
mechanism, using available storage in the BMP. Generally, a shut-off valve or gate
should be installed at the lowest invert point.
(4) Restricted BMPs.
For the treatment of stormwater runoff from hot spots, the following BMPs shall be used only if
sealed or lined to prevent infiltration from the BMP:
(a) Sand or organic filters;
(b) Detention basins;
(c) Wet Ponds; or
(d) Constructed wetlands.
(5) Prohibited BMPs.
The potential concentrations and types of containments found in land uses and activities from
hot spots necessitates that certain Water Quality BMPs shall not be used for treating runoff
from these sources.
(a) No project shall be approved that requires infiltration of water within 400 feet of a
surface public drinking water supply, or within a mapped Zone II or Interim
Wellhead Protection Area.
(b) Infiltration practices for Water Quality BMPs shall not be permitted for the treatment
of stormwater runoff from hot spots.
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FWR 2.11
FWR 2.11
Maintenance
(1) All stormwater management systems shall be maintained in accordance with the
provisions of FWR 1.00 and FWR 2.00. All stormwater management systems shall be
maintained in accordance with the standards set forth in FWR 2.00 at the expense of the
owner of the subdivision road. The Applicant may be required to establish a homeowner's
association, condominium, association, perpetual trust, or some such organization, which
meets the approval of the Conservation Commission, that will own and be responsible for
the maintenance and inspection of the stormwater management system.
(2) To facilitate maintenance each water quality basin/pond shall be constructed with:
(a) Direct maintenance access by heavy equipment to the forebay;
(b) A hardened bottom in the forebay to make sediment removal easier; and
(c) A fixed sediment depth marker installed in the forebay to measure sediment
deposition over time.
(3) Routine maintenance and inspections shall conform to the following:
(a) Stormwater management systems shall be inspected annually and cleared of debris,
sediment and vegetation when they affect the functioning and/or design capacity of
the facility;
(b) Biofilters shall be inspected monthly and mowed or replanted as necessary. Clippings
are to be removed and disposed of properly;
(c) Where lack of maintenance is causing or contributing to a water quality problem,
immediate action shall be taken to correct the problem;
(d) An inspection report shall be submitted to the Conservation Commission using the
BMP Operation and Maintenance Inspection Report (FWR 2.13);
(e) All actions required to maintain the stormwater management system for the purpose it
was designed and constructed must be performed immediately following the
maintenance inspection;
(f)
Accumulated sediment shall be excavated as needed or at the request of Conservation
Commission; and
(g) Any vegetation uprooted by sediment removal shall be replaced.
(4) To ensure future maintenance each basin design shall have a design life of 20 years, as
documented in a peer review publication, third party testing, or other independent means.
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FWR 2.12
WETLANDS REGULATIONS
FWR 2.15
Inspection
After the stormwater management system has been constructed and before the Performance
Guarantee and/or Certificate of Compliance for the project has been released, the Applicant
shall submit an "as-built" plan detailing the actual stormwater management system as installed.
This Commission shall also evaluate the effectiveness of the system in an actual storm. If the
system is found to be inadequate by virtue of physical evidence of operational failure, even
though it was built as called for in the permit, it shall be corrected before the performance
guarantee is released. Examples of inadequacy shall be considered but not limited to: errors in
the infiltrative capability, errors in the maximum Groundwater elevation, failure to properly
define or construct flow paths, or erosive discharges from basins.
FWR 2.13
Applicant Check-off for the Submittal of Stormwater Management Plans72
FWR 2.14
BMP Operation and Maintenance Inspection Report73
FWR 2.15
Stormwater Management Summary Form74
72
Editor's Note: The Applicant Check-off for the Submittal of Stormwater Management Plans is on file in the Conservation
Administrator's office and may be examined there during regular office hours.
73
Editor’s Note: The BMP Operation and Maintenance Inspector Report is on file in the Conservation Administrator's
office and may be examined there during regular office hours.
74
Editor's Note: The Stormwater Management Summary Form is on file in the Conservation Administrator's office and may
be examined there during regular office hours.
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