Section 18 Framingham Wetlands Protection By-law
[Adopted: Article 11, Special Town Meeting of May 20, 1992]
[Approved by Attorney General: August 26, 1992]
NO NET LOSS OF WETLANDS POLICY: There shall be no net loss of wetlands or wetland resource areas in Framingham. It is presumed that non-water dependent projects can always be designed to avoid loss of wetland areas. Projects having no feasible alternative to alteration impacts must be minimized and mitigated.
18.1 Purpose
The purpose of this bylaw is to protect the wetlands, related water resources, and adjoining land areas, and provide Open Space for passive recreation and education in the Town of Framingham by prior review and control of the activities deemed by the Conservation Commission likely to have a significant effect upon values and functions including, but, not limited to the following: public or private water supply, groundwater, storm damage prevention, flood control, erosion and sedimentation control, water pollution prevention, fisheries, wildlife, wildlife habitat, passive recreation, aesthetics, agriculture, and aquaculture (collectively, the "interests and values protected by this By-law").
18.2 Jurisdiction
Except as permitted by the Conservation Commission or as provided by this by-law, no person shall remove, fill, dredge, build upon, or alter the following resource areas: areas within 125 feet of any freshwater wetland, vernal pool, marsh, wet meadow, bog or swamp; areas within 125 feet of any bank, beach, or flat; any lake, river, pond, or stream; any land under said waters; any land subject to flooding; or land subject to inundation by surface water during the 100 year event. The Commission may establish a no work/no alteration zone as appropriate to each application.
18.3 Exceptions
No provision of this by-law shall apply to: (1) activities
lawfully completed prior to the effective date of this by-law,
or (2) activities subject to a negative Determination of
Applicability or an Order of Conditions issued pursuant to the
Wetlands Protection Act, M.G.L.Ch. 131, §40, prior to July
1, 1992.
The permit and application required by this bylaw shall not be
required for maintaining, repairing, or replacing, but, not substantially
enlarging or changing an existing and lawfully located structure
or facility used in the service of the public to provide electric,
gas, water, telephone, telegraph, or other telecommunications
services, provided that written notice has been given to the Commission
prior to the commencement of work, and provided that the work
conforms to performance standards and design specifications in
regulations adopted by this Commission.
The permit and application required by this bylaw shall not apply
to emergency projects necessary for the protection of the health
or safety of the public, provided that the work is to be performed
by or has been ordered to be performed by an agency of the Commonwealth
or subdivision of, provided that advance written notice has been
given to the Commission, prior to the commencement of work or
within twenty four (24) hours after commencement, provided that
the work is performed only for the time and place agreed to by
the Conservation Commission for the limited purposes necessary
to abate the emergency, and provided that within 14 days of commencement
of an emergency project a permit application (Abbreviated Notice
of Intent or Notice of Intent) shall be filed with the Conservation
Commission for review under the provisions of this bylaw. Failure
to meet these and other requirements of the Conservation Commission
may, after appropriate process as provided by this bylaw and applicable
regulations, result in revocation or modification of the emergency
project approval and require restoration and application of mitigating
measures.
Other than as stated in this section the exceptions provided in
the Wetlands Protection Act, M.G.L.Ch.131, §40, will not
apply.
18.4 Application for Permits and Requests for Determination
Permits: Written application shall be filed with the Conservation
Commission to perform activities regulated by this bylaw affecting
resource areas protected by this Bylaw. The application shall
include such information and plans as required by the regulations
and as are deemed necessary by the Conservation Commission to
describe the proposed activities and their effects on the environment.
No activities shall commence without receiving a permit issued
pursuant to this Bylaw.
Determinations: Any person desiring to know whether or
not a proposed activity and/or an area is subject to this bylaw
may submit a Request for Determination to the conservation Commission
on the appropriate form. The request shall contain all necessary
information, plans, data calculations, etc., as specified by the
regulations.
The Conservation Commission, as it deems appropriate, may accept
as the application and plans under this bylaw the Notice of Intent/Request
for Determination and plans filed under the Wetlands Protection
Act, M.G.L. Ch.131, §40.
Applications filed under this by-law are to be delivered via Certified
Mail return receipt or hand delivered to the Commission and shall
be accompanied by the filing fee prescribed in 310 CMR 10.03:(7)
and in accordance with Chapter 287, Act of 1989, §54 Revised
July 26, 1989.
18.5 Notice of Hearings
The applicant filing a request for determination or application
for a permit under the provisions of this bylaw shall give written
notice by certified mail, return receipt or by hand delivery to
all abutters according to the current Assessors records five (5)
days in advance of the scheduled hearing in accordance with provisions
of this bylaw and its regulations. The Conservation Commission
is responsible for notifying the applicant and owner, if not the
same, of the time and place of the scheduled hearing. Also, the
Conservation Commission is responsible, at the applicant's expense,
for placing a notification of the subject hearing in a local newspaper
at least five days prior to the hearing. The Conservation Commission
shall conduct a public hearing within twenty one (21) days of
the receipt of a completed application for permit or request for
determination unless unusual circumstances prevent this scheduling.
In this event the hearing will be scheduled at the next regularly
scheduled Conservation Commission meeting having time available.
The Conservation Commission may, at its option, combine the hearing
under this bylaw and the hearing conducted under the Wetlands
Protection Act, M.G.L. Ch.131, §40.
The Conservation Commission shall have the authority to continue
the hearing to a specific date , agreeable to the applicant, announced
at the hearing without further notification, for reasons stated
at the hearing. Those reasons may include, but, are not limited
to, request from applicant, requirement for additional information,
or request from other boards, officials, or attendees. In the
event that the applicant objects to a continuance, the hearing
will be closed and the Conservation Commission will take action
on available information.
18.6 Coordination with other Boards and Departments
The Conservation Commission will notify appropriate Boards and Departments not less than ten (10) days prior to the hearing in order to allow their review of the submittal on file located in the Administrators office. Written Comments from these Boards and Departments should be submitted to the Conservation Administrator at least three (3) days before the hearing. The applicant shall have the right to receive any such comments and recommendations, and to respond to them at the hearing.
18.7 Permits, Determinations, and Conditions
If the Conservation Commission after a public hearing determines
that the activities which are the subject of the application are
likely to have a significant or cumulative effect upon the wetland
values protected by this bylaw, the Conservation Commission, within
twenty one (21) days of the close of the hearing, unless unusual
circumstances prevent it, shall issue or deny a permit for the
activities requested. Determinations of Applicability will be
issued within 21 days of receipt of the request. If the Conservation
Commission issues a permit, conditions shall be imposed which
are deemed necessary to protect the "interests and values",
and all activities shall be performed in accordance with those
conditions. The Conservation Commission is empowered to deny a
permit for failure to meet the requirements of this bylaw; for
failure to submit necessary information and plans requested by
the Conservation Commission; for failure to meet the design specification,
performance standards, and other requirements in the regulations
of the Conservation Commission; for failure to avoid or prevent
unacceptable significant or cumulative effects upon the wetland
values protected by this bylaw; and where no conditions are adequate
to protect those values.
A permit shall expire three years from the date of issuance. The
Conservation Commission may issue a permit expiring five years
from the date of issuance for recurring or continuous maintenance
work, provided that annual notification of time and location of
work is given to the Conservation Commission. Any permit may be
renewed once for an additional one year period, provided that
a request for renewal is received in writing by the Conservation
Commission thirty days prior to expiration.
The Conservation Commission, for good cause, may revoke or modify
a permit issued under this bylaw after notice to the holder of
the permit, notice to the public, abutters, and town boards pursuant
to the preceding section 5, and a public hearing. The Conservation
Commission in an appropriate case may combine the permit or other
action on an application issued under this bylaw with the Order
of Conditions issued under the Massachusetts Wetlands Protection
Act, M.G.L. Ch.131, §40.
The Commission may deny the request for an extension and require
the filing of a new permit request under the following circumstances:
no work has begun on the project, except where such failure is
due to unavoidable delays, such as appeals, or obtaining other
necessary permits; new information has become available and indicates
that the Order is not adequate to protect the interests covered
by this Bylaw.
No work proposed in any application shall be undertaken until
the applicant has remitted the appropriate fee to the Conservation
Administrator for recording the permit in the registry of deeds
or, if the land affected thereby be registered land, in the registry
section of the land court for the district wherein the land lies.
18.8 Regulations
After public notice and public hearing the Conservation Commission shall promulgate rules and regulations to effectuate the purposes of this bylaw. Failure of the Conservation Commission to promulgate such rules and regulations or a legal declaration of their invalidity by a court of law shall not act to suspend or invalidate the effect of this bylaw.
18.9 Definitions
Except as specifically provided by these Regulations and the Bylaw,
terms used in the Regulations and the Bylaw have the meanings
defined in the Wetlands Protection Act, M.G.L. Ch. 131, §40,
("The Act") and in Regulations currently codified at
310 CMR 10.00, issued pursuant to the Act by the Department of
Environmental Protection, as amended November 10, 1989.
The following definitions shall apply in the interpretation and
implementation of this bylaw.
Abutter means the same as the owner of land abutting the
activity.
Act means the Wetlands Protection Act, M.G.L. c. 131, §40.
Activity means any form of draining, dumping, dredging,
damming, discharging, excavating, filling or grading; the erection,
reconstruction or expansion of any buildings or structures; the
driving of pilings; the construction or improvement of roads and
other ways; the changing of run-off characteristics; the intercepting
or diverging of ground or surface water; the installation of drainage,
sewage and water systems; the discharging of pollutants; the destruction
of plant life; and any other changing of the physical characteristics
of land.
Aggrieved means the same as persons aggrieved.
Agriculture
a. Land in agricultural use means land presently and primarily
used in the raising of animals including, but not limited to,
dairy cattle, beef cattle, poultry, sheep, swine, horses, ponies,
mules, goats, bees and fur-bearing animals, or land presently
and primarily used in a related manner which is incidental thereto
and represents a customary and necessary use in raising such animals.
Additionally, land in agricultural use means land presently and
primarily used in the raising of fruits, vegetables, berries,
nuts and other foods for human consumption, feed for animals,
tobacco, flowers, sod, trees, nursery or greenhouse products,
and ornamental plants and shrubs; or land presently and primarily
used in raising forest products under a planned program to improve
the quantity and quality of a continuous crop; or land presently
and primarily used in a related manner which is incidental thereto
and represents a customary and necessary use in raising such products.
Land in agricultural use may lie fallow for a period of time if
it has been used for agriculture at least three (3) of the five
(5) immediately preceding years.
b. Normal maintenance or improvement of land in agricultural
use means the following activities:
1. all tilling and harvesting practices customarily employed
to enhance existing growing conditions;
2. the pasturing of animals, including the construction
and maintenance of such fences as may be required;
3. the use of fertilizers, pesticides, herbicides, and
other materials, subject to all state and federal laws and regulations
governing their use;
4. the constructing, grading or restoring of field ditches,
subsurface drains, grass waterways, vents, access roads, farm
ponds and similar projects to improve drainage, prevent erosion,
provide more effective uses of rainfall and improve equipment
operation and efficiency, all in order to improve conditions for
the growing of existing crops or raising of animals;
5. the cultivation of cranberries, including the following
practices:
a. sanding operations using existing sand pits;
b. cleaning of cross ditches, canals and natural waterways;
c. repair and replacement but not enlargement of water
control structures, including flumes, pumps, dikes, and piping
above and below ground;
d. repair, replacement and regrading of existing cranberry
bogs, and
e. repair and cleaning of reservoirs, dams and water storage
systems within the limits of existing water rights.
All maintenance and improvement activities shall be undertaken
in such a manner as to prevent erosion and siltation of adjacent
water bodies and wetlands, as specified by the U.S.D.A. Soil Conservation
Service "Guidelines for Soil and Water Conservation".
6. 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 Act;
b. where access through Areas Subject to Protection Under
the Act 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, and shall be removed and the site returned to
previously existing conditions within one (1) 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 unobstructed
passage of the existing flows for at least the 10-year storm,
and shall be removed and the site returned to existing conditions
within one (1) 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 conservation commission
not less than ten (10) days prior to the commencement of operations.
7. The selective cutting of trees by owners for their own
use, when carried out in the following manner:
a. no more than 25,000 board feet or 50 cords shall be
harvested;
b. after the cutting, the crown area of the remaining trees
shall be evenly distributed throughout the site and shall cover
no less than 50 percent of the surface area of the site;
c. the removal of the selectively cut trees shall occur
only during those periods when the ground is sufficiently frozen,
dry or otherwise stable to support the equipment used;
d. the cutting, removal or other destruction of trees and
the understory vegetation shall not occur within twenty-five (25)
feet of the bank of a water body;
e. the placement of slash, branches and limbs resulting
from the cutting and removal operations shall not occur within
twenty-five (25) feet of the bank of a water body; and
f. there shall occur no filling, excavation or other change
in the existing topography.
Alter means to change the condition of any Area Subject
to Protection Under the Act. Examples of alterations include,
but are not limited to, the following:
a. the changing of pre-existing drainage characteristics,
flushing characteristics, salinity distribution, sedimentation
patterns, flow patterns and flood retention areas;
b. the lowering of water level or water table;
c. the destruction of vegetation;
d. the changing of water temperature, biochemical oxygen
demand (BOD), and other physical, biological or chemical characteristics
of the receiving water;
Provided, that when provisions of 310 CMR 10.03(6) and 10.05(3)
or 333 CMR 11.03(9) have been met, the application of herbicides
in the Buffer Zone in accordance with such plans as are required
by the Department of Food and Agriculture pursuant to its rights
of way management regulations, 333 CMR 11.00 effective July 10,
1987, is not an alteration of any area Subject to Protection Under
the Act.
Aquaculture:
a. Land in aquacultural use means land presently and primarily
used in 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, oyster, clams, periwinkles, scallops,
mussels, squid; amphibians such as frogs; reptiles such as turtles;
seaweeds such as irish moss and dulse; and edible freshwater plants.
b. Normal maintenance or improvement of land in aquacultural
use means the following activities, when done in connection with
the production of aquatic organisms as defined above: draining,
flooding, heating cooling, removing, filling, grading, compacting,
raking, tilling, fertilizing, seeding, harvesting, filtering,
rafting, culverting or applying chemicals in conformance with
all state and federal laws; provided, however, that such activities
are clearly intended to improve and maintain land in aquacultural
use and that best available measures are utilized to ensure that
there will be no adverse effect on wetlands outside the area in
aquacultural use, and further provided that removing, filling,
dredging or altering of a salt marsh is not to be considered normal
maintenance or improvement of land in aquacultural use.
Area Subject to Protection Under the Act means any area
specified in 310 CMR 10.02(1). It is used synonymously with Resource
Area, each one of which is defined in greater detail in Parts
II and III of 310 CMR 10.00.
Bank (inland) is defined in Part III, 310 CMR 10.54(2).
Beach (inland): a naturally occurring inland beach means
an unvegetated bank as defined in Part III CMR 10.54(2).
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, measure
or engineering practices that are in general use to protect similar
interests.
Bordering means touching. An area listed in 310 CMR10.02(1)(a)
is bordering on a water body listed in 310 CMR 10.02(1)(a) if
some portion of the area is found in the appropriate section of
310 CMR 10.02(1)(a) some portion of which is in turn touching
the water body.
Bordering Vegetated Wetland is defined in Part III, 310
CMR 10.55(2).
Boundary means the boundary of an Area Subject to Protection
Under the Act. A description of the boundary of each area is found
in the appropriate section of 310 CMR 10.00. For inland areas,
see Part III of 310 CMR 10.00.
Breeding Areas means areas used by wildlife for courtship,
mating, nesting or other reproductive activity, and rearing of
young.
Buffer Zone means that area of land extending one hundred
(125) feet horizontally outward from the boundary of any area
specified in 310 CMR 10.02(1)(a).
Certificate of Compliance means a written documentation
by the issuing authority that work or a portion thereof has been
completed in accordance with an Order. It shall be made on Form
8 of 310 CMR 10.99.
Commissioner means the Commissioner of the Department of
Environmental Protection, pursuant to St. 1989, c. 240, §101.
Conditions means those requirements set forth in a written
Order issued by a conservation commission or the Department for
the purpose of permitting, regulating or prohibiting any activity
that removes, fills, dredges or alters and Area Subject to Protection
Under the Act.[see also 310 CMR10.05(6)]
Conservation Commission means that body comprised of members
lawfully appointed pursuant to M.G.L. c. 40, §8C. For the
purposes of the Act and 310 CMR 10.00, it shall also mean a mayor
or board of selectmen, where no conservation commission has been
established under said M.G.L. c. 40, §8C.
Creek means the same as a stream, as defined in this section.
Date of Issuance means the date an Order is mailed, as
evidenced by a postmark, or the date it is hand delivered.
Date of Receipt means the date of delivery to an office,
home or usual place of business by mail or hand delivery.
Department means the Department of Environmental Protection,
and shall include the Commissioner and any other person employed
by said Department, pursuant to St. 1989, c.240, §101.
Determination
a. Determination of Applicability means a written
finding by a conservation commission or by the Department as to
whether a site or the work proposed thereon is subject to the
jurisdiction of the Act. It shall be made on Form 2 of 310 CMR
10.99
b. A Determination of Significance means a written finding
by a conservation commission, after a public hearing, or by the
Department, 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 interests identified in the Act. It shall be made
as part of the Order, on Form 5 of 310 CMR 10.99.
c. Notification of Non-Significance means a written finding
by a conservation commission, after a public hearing, or by the
Department, that the area on which the proposed work is to be
done, or which the proposed work will alter, is not significant
to any interests of the Act. It shall be made on Form 6 of 310
CMR 10.99.
Dredge means to deepen, widen or excavate, either temporarily
or permanently.
Extension Permit means a written extension of time within
which the authorized work shall be completed. It shall be made
on Form 7 of 310 CMR 10.99.
Fill means to deposit any material so as to raise an elevation,
either temporarily or permanently.
Final Order means the Order issued by the Commissioner
after an adjudicatory hearing or, if no request for hearing has
been filed, the Superseding Order or, if no request for a Superseding
Order has been filed, the Order of Conditions.
Flood Control means the prevention or reduction of flooding
and flood damage.
Freshwater Wetlands shall mean wet meadows, marshes, swamps,
bogs, areas where ground water, flowing or standing surface water
or ice provide a significant part of the supporting substrate
for a plant community for at least five months of the year; emergent
and submergent plant communities in inland waters; that portion
of any bank which touches any inland waters.
General Performance Standards means those requirements
established by 310 CMR 10.00 for activities in or affecting each
of the Areas Subject to Protection Under the Act.
Ground Water Supply means water below the earth's surface
in the zone of saturation.
Important Wildlife Habitat Functions mean important food,
shelter, migratory or overwintering area, or breeding areas for
wildlife.
Interests Identified in the Act means public or private
water supply, ground water supply, flood control, storm damage
prevention, prevention of pollution, protection of land containing
shell fish, protection of fisheries, and protection of wildlife
habitat.
Issuing Authority means a conservation commission, mayor,
the selectmen, or the Department, whichever is applicable.
Lake means an open body of fresh water with a surface area
of ten (10) acres or more, and shall include great ponds.
Land subject to flooding is defined in Part III, 310 CMR
10.57(2).
Land Under Water Bodies and Waterways means the bottom
of, or land under, the surface of a creek, river, stream, pond,
or lake. Land under inland water bodies is further defined in
Part III 310 CMR 10.562).
Lot means an area of land in one ownership, with definite
borders.
Majority means more than half of the members of the conservation
commission then in office.
Marsh is defined in M.G.L. c.131, §40, ¶10.
Meadow (or wet meadow) is defined in M.G.L. c.131, §40,
¶9.
MEPA means the Massachusetts Environmental Policy Act,
M.G.L. c.30, §§6-62H, and the regulations promulgated
pursuant thereto, 301 CMR 11.00 et seq.
Migratory Areas means those areas used by wildlife moving
from one habitat to another, whether seasonally or otherwise.
Notice of Intent means the written notice filed by any
person intending to remove, fill, dredge or alter an area subject
to Protection Under the Act. It shall be made on Form 3 or 4 of
310 CMR 10.99.
Order means an Order of Conditions, Superseding Order or
Final Order, whichever is applicable.
Order of Conditions means the document issued by a conservation
commission containing conditions which regulate or prohibit an
activity. It shall be made on Form 5, 310 CMR 10.99.
Owner of Land Abutting the Activity means the owner of
land sharing a common boundary or corner with the site of the
proposed activity in any direction, including land located directly
across the street, way, creek, river, stream, brook or canal.
Party to any proceeding before the Department means the
applicant, the conservation commission, and the Department, and
pursuant to 310 CMR 10.05(7)(a) may include the owner of the site,
any abutter, any person aggrieved, any ten (10) residents of the
city or town where the land is located and any ten (10) persons
pursuant to M.G.L. c.30A, §10A.
Person Aggrieved means any person who, because of an act
or failure to act by the issuing authority, may suffer an injury
in fact which is different either in kind or magnitude from that
suffered by the general public and which is within the scope of
interests identified in the Act. Such person must specify in writing
sufficient facts to allow the Department to determine whether
or not the person is in fact aggrieved.
Plans mean such data, maps, engineering drawings, calculations,
specification, schedules and other materials, if any, deemed necessary
by the issuing authority to describe the site and/or the work,
to determine the applicability of the Act or to determine the
impact of the proposed work upon the interests identified in the
Act.
Pond (inland) means any open body of fresh water, either
naturally occurring or man-made by impoundment, with surface area
observed or recorded within the last ten (10) years of at least
10,000 square feet, and which is never without standing water
due to natural causes, except during periods of extended drought.
For purposes of this definition, extended drought shall mean any
period of four (4) or more months during which the average rainfall
for each month is 50 percent or less of the ten (10) year average
for that same month. Basins or lagoons which are part of wastewater
treatment plants shall not be considered ponds, nor shall swimming
pools or other impervious man-made retention basins.
Prevention of Pollution means the prevention or reduction
of contamination of surface or ground water.
Private Water Supply means any source or volume of surface
or ground water demonstrated to be in any private use or demonstrated
to have a potential for private use.
Protection of Fisheries means protection of the capacity
of an Area Subject to Protection Under the Act:
a. to prevent or reduce contamination or damage to fish:
and
b. to serve as their habitat and nutrient source. Fish
includes all species of fresh and salt water finfish and shellfish.
Protection of Land Containing Shellfish means protection
of the capacity of an Area Subject to Protection Under the Act:
a. to prevent or reduce contamination or damage to shellfish;
and
b. to serve as their habitat and nutrient source.
Public Water Supply means any source or volume of surface
or ground water demonstrated to be in public use or approved for
water supply pursuant to M.G.L. c.111, §160 by the Division
of Water Supply of the Department, or demonstrated to have a potential
for public use.
Rare Species means those vertebrate and invertebrate animal
species officially listed as endangered, threatened, or of special
concern by the Massachusetts Division of Fisheries and Wildlife
under 321 CMR 8.00.
Remove means to take away any type of material, thereby
changing an elevation, either temporarily, or permanently.
Request for Determination of Applicability means a written
request made by any person to a conservation Commission or the
Department for a determination as to whether a site or work thereon
is subject to the Act. It shall be submitted on Form 1 of 310
CMR 10.99.
Resource Area means any of the areas specified in Part
III, 310 CMR 10.54 through 10.57. It is used synonymously with
Area Subject to Protection Under the Act, each one of which is
enumerated in Part I, 310 CMR 10.02(1).
River means a natural flowing body of water that empties
to any ocean, lake or other river and which flows throughout the
year.
Shelter means protection from the elements or predators.
Significant means plays a role. A resource area is significant
to an interest identified in the Act when it plays a role in the
provision or protection, as appropriate, of that interest.
State-listed Species means the same as rare species, as
defined in this section.
Storm Damage Prevention means the prevention of damage
caused by water from storms including, but not limited to, erosion
and sedimentation, damage to vegetation, property or buildings,
or damage caused by flooding, water-borne debris or water-borne
ice.
Stream means a body of water, including brooks and creeks,
which move in a definite channel in the ground due to hydraulic
gradient, and which flows within, into or out of an Area Subject
to Protection Under the Act. 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 bogs, swamps,
wet meadows and marshes.
Superseding Determination means a determination of applicability,
of significance or non-significance, as the case may be, issued
by the Department. It shall be made on Form 2 of 310 CMR 10.99.
Superseding Order means a document issued by the Department
containing conditions which regulate or prohibit an activity.
It shall be made on Form 5 of 310 CMR 10.99.
Swamp is defined in M.G.L. c.131, §40, ¶8.
Vernal Pool Habitat means confined basin depressions which,
at least in most years, hold water for a minimum of 2 continuous
month during the spring and/or summer, and which are free of adult
fish populations, as well as the area within 100 feet of the mean
annual boundaries of such depressions, to the extent that such
habitat is within and Area Subject to Protection Under the Act
as specified in 310 CMR 10.02(1). 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 frog (Rana sylvatica) and the spotted
salamander (Ambystoma macultum), and are important habitat for
other wildlife species.
Water-dependent uses means those uses and facilities which
require direct access to, or location in inland waters and which
therefore cannot be located away from said waters, including but
not limited to: marinas, public recreational uses, navigational
and commercial fishing and boating facilities, water-based recreational
uses, navigation aids, basins, channels, industrial uses dependent
on waterborne transportation or requiring large volumes of cooling
or process water which cannot reasonably be located or operated
at an upland site, crossing over or under water bodies or waterways
(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 or
waterway), and any other uses and facilities as may further hereafter
be defined as water-dependent in 310 CMR 9.00.
Wildlife means all mammals, birds, reptiles and amphibians
and, for the purposes of 310 CMR 10.37 and 10.59, all vertebrate
and invertebrate animal species which are officially listed by
the Massachusetts Division of Fisheries and Wildlife under 321
CMR 8.00 as endangered, threatened, or of special concern.
Wildlife habitat is defined in paragraph 13 of the Act.
Work means the same as activity.
18.10 Security
As part of a permit issued under this bylaw, in addition to any
security required by any other municipal or state board, agency,
or official, the Conservation Commission may require that the
performance and observation of the conditions imposed hereunder
be secured wholly or in part by one or more of the methods described
below:
a. By a proper bond or deposit of money or other negotiable
securities or other undertaking of financial responsibility sufficient
in the opinion of the Conservation Commission;
b. By a conservation restriction, easement or other covenant
enforceable in a court of law, executed and duly recorded by the
owner of record, running with the land to the benefit of the Town
of Framingham whereby the permit conditions shall be performed
and observed before any lot may be conveyed other than by mortgage
deed.
18.11 Enforcement
The Conservation Commission, its agents, officers, and employees
shall, after proper notification to the owner, have authority
to enter upon privately owned land for the purpose of performing
their duties under this bylaw and may make or cause to be made
such examinations, surveys or sampling as the Conservation Commission
deems necessary.
The Conservation Commission shall have the authority to enforce
this bylaw, its regulation, and permits issued thereunder by violation
notices, administrative order, and civil and criminal court actions.
Upon request of the Conservation Commission, the Board of Selectmen
and the Town Counsel shall take legal action for enforcement under
civil law. Upon request of the Conservation Commission the Chief
of Police shall take legal action for enforcement under criminal
law.
Municipal board and officers, including any police officer or
other officer having police powers, shall have the authority to
assist the Conservation Commission in enforcement.
Any person who violates any provision of this bylaw, or permits
issued thereunder, shall be punished by a fine of not more than
$300.00 each day or portion thereof during which a violation continues
shall constitute a separate offense, and each provision of the
bylaw, or permit violated shall constitute a separate offense.
As the alternative to criminal prosecution, the Conservation Commission
may elect to utilize the non-criminal disposition procedure set
forth in M.G.L. Ch.40, §21D provided the text of that Section
is repeated in the text of this bylaw or elsewhere in Town bylaws.
18.12 Burden of Proof
The applicant for a permit shall have the burden of proof by a preponderance of credible evidence that the work proposed in the application will not have a significant effect upon the wetland values protected by this bylaw. Failure to provide adequate evidence to the Conservation Commission supporting this burden shall be sufficient cause for the Conservation Commission to deny a permit or grant a permit with conditions.
18.13 Relation to the Wetlands Protection Act
This bylaw is adopted under the Home Rule Amendment of the Massachusetts Constitution and the Home Rule statutes, independent of the Wetlands Protection Act, M.G.L. Ch.131, §40, and regulations thereunder.
18.14 Severability
The invalidity of any section or provision of this bylaw shall
not invalidate any other section or provision thereof, nor shall
it invalidate any permit or determination which previously has
been issued.