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HomeMy WebLinkAboutwetlands protection regulations - 1988 , \ t , , \ ~ / WETLANDS PROTECTION REGULATIONS TOWN OF NANTUCKET CONSERVATION COMMISSION ~ ~ ,lot ~ 1. 01 1. 02 1. 03 1.04 1. 05 2.01 2.02 2.03 2.04 2.05 2.06 2.07 2.08 2.09 2.10 3.01 3.02 3.03 3.04 TABLE OF CONTENTS PART I - GENERAL PROVISIONS INTRODUCTION AND PURPOSE DEFINITIONS PROCEDURES SEVERABILITY AND INVALIDITY EFFECTIVE DATE Page 1 Page 1 Page 8 Page 10 Page 10 PART II - REGULATIONS FOR COASTAL WETLANDS LAND UNDER THE OCEAN COASTAL BEACHES (AND TIDAL FLATS) COASTAL DUNES BARRIER BEACHES COASTAL BANKS SALT MARSHES SALT PONDS LAND CONTAINING SHELLFISH ANI9A.ROMOUS/CATADROHOUS FISH RUNS, AND THE BANKS ALONG FISH RUNS, AND LANDS \rJHICH LIE UNDER FISH RUNS LAND SUBJECT TO COASTAL STORM FLOWAGE Page 11 Page 13 Page 15 Page 17 Page 19 Page 20 Page 22 Page 23 Page 25 Page 26 PART III - REGULATIONS FOR INLAND WETLANDS INLAND BANKS AND BEACHES VEGETATED WETLANDS (WET MEADOWS, MARSHES, SWAMPS, AND BOGS) INLAND WATER BODIES CREEKS, STREAMS, PONDS, DITCHES OR FLATS LAND SUBJECT TO FLOODING (BOTH BORDERING AND ISOLATED AREAS) Page 28 Page 29 Page 31 Page 34 \ ~.. 55d:&2draft.ecg PART I - GENERAL PROVISIONS 1.01 Introduction and Purpose A. Introduction These regulations are promulgated by the Town of Nantucket Conservation Commission (hereinafter referred to as the "Commission") pursuant to the authority granted to it under Section 136-7 of the Town of Nantucket By-law for Wetlands, [hereinafter referred to as the "By-law"). The regulations should be read together with the By-law, which has many important provisions not repeated in these regulations. These regulations shall be used to enforce and implement the By-law, and shall have the force of law upon their effective date. These regulations supersede all existing rules and practices previously applicable to procedures and proceedings before the Commission. B. Purpose The purpose of these regulations is to establish definitions, design standards, and uniform procedures by which the Nantucket Conservation Commission is to carry out its responsibilities under the By-law. 1.02 Definitions The definitions in Section 1.02 of these regulations are for terms as used in the By-law and for terms as used in these regulations. To the extent not defined herein or in the By-law, words used in the By-law or in these regulations shall have the definitions contained in the Massachusetts Wetlands Protection Act (M.G.L. c. 131, sec. 40) and the rules and regulations promulgated thereunder. Abutter- an owner of land in any direction sharing a common boundary with the site of the proposed activity, including any land located directly across a street, way, stream, pond or diagonally across from an intersection of roads. A landowner more than 300 feet across a pond shall not be considered an abutter. Activity - same as definition of work. Applicant - the individual filing the Nantucket Notice of Intent or Nantucket Request for Determination of Applicability. Areas Subject to Protection - land areas and/or water bodies subject to protection under the By-law, as set forth in Section 136-3 of the By-law. Bank (coastal) - the seaward face or side of any elevated land form, other than a coastal dune, which lies at the landward 1 ... ~ . edge of a coastal beach, land subject to tidal action or storm flooding, or other wetland. Any minor discontinuity of the slope notwithstanding, the top of the bank shall be the top of the face of the bank or the break in slope above the relevant lOO-year flood plain elevation. A bank may be partially or totally vegetated, or it may comprise exposed soil, gravel, stone or sand. Bank (inland) - the portion of land surface which normally abuts and confines a water body. A bank may be partially or totally vegetated, or it may comprise exposed soil, gravel, stone, or sand. The physical characteristics of a bank, as well as its location, are critical to the protection of wetland interests. The upper boundary of a bank is the first observable break in the slope above the ten-year flood level. The lower boundary of a bank is the water body. A bank may be created by man and/or made of man-made materials. Beach - unconsolidated sediment subject to wave, tidal, or coastal storm action which forms the gently sloping shore of a body of salt water, including land which is separated from other land by a body of water or a marsh system. Beaches extend from the mean low-water line landward to the dune line, coastal bank line, or the seaward edge of existing man-made structures, when these structures replace one of the above lines, whichever is closest to the ocean. Bogs - areas where standing or slowly running water is near or at the surface during a normal growing season and where a plant community has a significant portion of the ground or water surface covered with Sphagnum moss (Sphagnum) and where the plant community is made up of a significant portion of one or more, but not limited to nor necessarily including all, of the following plants or groups of plants: aster (Aster nemoralis), azaleas (Rhododendron canadense and R. viscosum), bog cotton (Eriophorum), cranberry (Vaccinium macrocarpon), high-bush blueberry (Vaccinium corymbosum), laurels (Kalmia augustifolia and K. polifolia), leatherleaf (Chamaedaphne calyculata), orchids (Arethusa, Calopagon, Pagonia), pitcher plants (Sarracenia purpurea), sedges (Cyperaceae), sundews (Droseracae), and sweet gale (Myrica gale). Bordering - touching at any point. Boundary - the boundaries of an area subject to protection under the By-law. Building Upon - construction of any kind of structure, whether on land or in water; placing of obstructions or objects in water (other than boats, moorings, fish or shellfish traps, pens or trays used in conjunction with aquaculture, or aids to navigation) . By-law - Chapter 136 of the Code of Nantucket Bylaws entitled "Wetlands". Certificate of Compliance (Nantucket) - a written 2 , .determination by the Commission that the proposed work or portion thereof has been completed as required by a Permit. Coastal Engineering Structure - any bulkhead, revetment, seawall, rip-rap, groin, jetty, artificial seaweed, plastic sheeting, or other structure intended to prevent or alleviate storm damage, tidal action, wave action, littoral flow, or erosion. Coastal Wetland - any bank, beach, dune, estuary, marsh, swamp, meadow, flat, or other lowland subject to tidal action or coastal storm flowage. Commission or Conservation Commission - Nantucket Conservation Commission as a body of members lawfully appointed pursuant to M.G.L. c. 40 s. 8c. Conditions - those requirements set forth in a written Permit issued by the Commission for the purpose of permitting, regulating, or prohibiting any activity that alters an area subject to protection under the By-law. Creek - the same as a stream. Date of Issuance - the date a permit, determination, or a certificate of compliance is mailed, as evidenced by a postmark, or the date it is hand delivered. Department - Massachusetts Department of Environmental Quality Engineering (DEQE). Determination of Applicability (Nantucket) - a written finding by the Commission as to whether the By-law is applicable to any area or work thereon, as permitted in Section l36-3D of the By-law. Dredge - to deepen, widen, or excavate, either temporarily or permanently. Dune - 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. Erosion Control - the prevention or reduction of the detachment or movement of soil or rock fragments by water, wind, ice, and/or gravity. Estuary - any area or partially enclosed coastal body of water where fresh and salt water meet and mix and where tidal effects are evident. Existing - begun or completed prior to the effective date of these regulations. Extension Permit - a written extension of time within which the 3 - authorized activity shall be completed, as permitted by Section 136-4B of the By-law. Fill - to deposit any material so as to raise an elevation, either temporarily or permanently. Fisheries - shall mean all species of fresh and saltwater finfish including the nutrient sources and the habitat in which they live all or part of their life cycle. Flat - any nearly level part of a shoreline or coastal beach which usually extends from the extreme low-water line landward to the more steeply sloping face of a coastal beach or bank. The flat may be separated from the beach by land under the ocean. The sediment making up a tidal flat is usually, but not necessarily, a fine-grained material. Flood Control - the prevention or reduction of flooding and flood damage. Freshwater Wetland - a wet meadow, freshwater marsh, swamp, bog, pond, lake, creek, or stream; an area of low topography where ground water, flowing water, standing surface water, or ice provides a significant part of the supporting substrate for a plant community for at least five months of the year; emergent and submergent plant co~munities in inland waters; that portion of any bank which touches any inland waters. Ground Water - water below or seeping from the earth's surface in the zone of saturation. Interests Protected by the By-law - the wetland values either singly or collectively specified in Section 136-2 of the By-law. Lake - same as Pond. Land Subject to Coastal Storm Flowage - land subject to any inundation caused by coastal storms up to and including that caused by the 100-year storm, surge of record, or storm of record, whichever is greater. Land Subject to Flooding - an area of low, flat topography; or a depression or basin either 1) hydrologically directly connected with a water body, extending from the banks or the upland edge of the vegetated wetlands surrounding this water body, or 2) an isolated depression or basin which on the average at least every five years confines standing water over an area of at least 1,000 square feet as observed under conditions of average rainfall. The boundary of Land Subject to Flooding which is hydrologically directly connected to a water body is the estimated lateral extent of the flooding, which shall be based on the 100-year storm event during a year of average rainfall, or by actual record if that is higher. Marsh (Freshwater) - areas where a plant community exists in standing or running water during the growing season and where a 4 . significant part of the plant community is composed of, but not limited to nor necessarily including all, the following plants or groups of plants: arums (Araceae), bladder worts (Utricularia), bur reeds (Sparganiaceae), button bush (Cephlanthus occidentalis), cattails (Typha), duck weeds (Lemnaceae), eelgrass (Vallisneria), frog bits (Hydrocharitaceae), horsetails (Equisetaceae), hydrophilic grasses (Graminae), leatherleaf (Chamaedaphne calyculata), pickerel weeds (Pontederiaceae), pipeworts (Eriocaulon), pond weeds (Pontederiaceae), rushes (Juncaceae), sedges (Cyperaceae), smartweeds (Polygonum), sweet gale (Myrica gale), water milfoil (Haloragaceae), water lilies (Nympheacea), water starworts (Callitrichaceae), or water willow (Decodon verticillatus). Marsh (Saltwater) - a coastal wetland that extends from the ocean landward up to the highest spring tide line, and where a significant part of the plant community is composed of, but not limited to nor necessarily including all, the following plants or groups of plants: salt meadow cord grass (Spartina patens); salt marsh cord grass (Spartina alterniflora); spike grass (Distichlis spicata) Sea Lavender (Limonium nashii); Seaside Plantagao (Plantago juncoides); Aster (Aster subulatus); Sea-Blite (Suaeda maritima); Black-grass (Juncus gerardi); Samphire (Salicornia europaea); Glasswort (S. begelovii); Reed (Phragmites communis), Saltmarsh Bulrush (Scirpus robustus); or Cattails (Typha spp.). Meadows - areas where ground water is at the surface for a significant part of the growing season and near the surface throughout the year and where a significant part of the plant community is composed of various grasses, sedges, and rushes, made up of, but not limited to nor necessarily including all of the following plants or groups of plants: blue flag (Iris), vervain (Verbena), thoroughwort (Eupatorium), dock (Rumex), false loosestrife (Ludwigia), hydrophilic grasses (Graminae), loosestrife (Lythrum) , marsh fern (Dryopterus thelypteris), rushes (Juncacea), sedges (Cyperaceae) sensitive fern (Onoclea sensibilis), smartweed (Polygonum), or Jewelweed (Impatiens capensis) . MEPA - the Massachusetts Environmental Policy Act, H.G.L. c. 30, sec.s 62-62H and the regulations promulgated pursuant thereto, 301 CMR 10.00 et seq. Nantucket Notice of Intent - (NNOI) - the written application filed by any person intending to alter an Area Subject to Protection Under the Nantucket Wetlands By-law, as described in Section 136-3C of the By-law. Nantucket Request for Determination of Applicability - (NRDA) - the written request filed by any person seeking the Commission's determination as to whether the By-law applies to any area or work thereon. Notice of Intent - the written notice filed by any person intending to alter an Area Subject to Protection under the Massachusetts Wetlands Protection Act, M.G.L. c.131 s.40. 5 Permit - the document issued by the Commission containing conditions which regulate or prohibit an activity under the By-law. Pollution - contamination of land, or surface or ground water with materials not normally present in those waters or with elevated levels of naturally occurring materials. Pond - any open body of fresh or salt water, either naturally occurring or man-made by impoundment, which is never without standing water due to natural causes except during periods of extended drought and the land under the water body. Basins or lagoons which are part of waste water treatment plants shall not be considered ponds, nor shall swimming pools or other impervious man-made retention basins. Private Water Supply - any source or volume of surface or ground water to be in any private use or demonstrated to have a potential for private use. Public Water Supply - any source or volume of surface or ground water demonstrated to be in public use for drinking water or fire protection, or approved for water supply pursuant to M.G.L. c. Ill, s. 160 by the Division of Water Supply of the DEQE or demonstrated to have a potential for public use as a drinking water supply or for fire protection. Recreation - activities of individuals done for relaxation carried out in resource areas of this By-law which include but are not limited to swimming, picnicking, walking, hunting, fishing, and boating. Remove - to take away any type of material including vegetation, or thereby changing an elevation, either temporarily or permanently. River - same as Stream. Shellfish - means the following species: Bay scallop (argopecten irradians); Blue mussel (Mytilus edulis); Ocean quahog (Arctica islandica); Oyster (Crassostrea virginica); Quahog (Mercenarai merceneria); Razor clam (ensis direcctus); Sea clam (Spisola soldissma); Sea scallop (Placopecten magellamicus); Soft shell clam (Mya arenaria); lobster (homarus americanus) and blue crabs (callinectes sapidus). Storm Damage Prevention - 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, waterborne debris, or waterborne ice. Stream - a body of running water, and the land under the water, including brooks, creeks, and man-made water courses, which moves in a definite channel in the ground due to hydraulic gradient. A portion of a stream may flow through a culvert, pipe or beneath a bridge. A stream may be intermittent (i.e., does not flow throughout the year). 6 Structure - a combination of materials assembled at a fixed location to give support or shelter such as a building, framework, retaining wall, platform, bin, radio antenna mast, or the like. Drainage basins, fences, signs and roads are not structures. The word "structure" shall be construed, where the context requires, as though followed by the words "or part or parts thereof." Swamps - areas where ground water is at or near the surface of the ground for a significant part of the growing season or where runoff water from surface drainage frequently collects above the soil surface, and where a significant portion of the plant community is made up of, but not limited to nor necessarily including all, the following plants or groups of plants: alders (Alnus), ashes (Fraxinus), azaleas (Rhododendron Canadense and R. viscosum), black alder (Ilex verticillata), button bush (Cephalanthus occidentalis), highbush blueberry (Vaccinium corymbosum), poison sumac (Toxicodendron vernix), red maple (Acer rubrum), sphagnum mosses (Sphagnum), black gum tupelo (Nyssa sylvatica), sweet pepper bush (Clethra alnifolia), willow (Salicaceae), and common reed (Phragmites communis). Water Dependent Projects or Uses - projects which require direct wetlands access for their intended use and therefore cannot be located out of an Area Subject to Protection Under the By-law. Examples include but are not limited to: docks, piers, boat landings, boathouses, marinas, stairs to beaches, and boardwalks over wetland vegetation. Projects which benefit from wetlands access but which do not require it are not water dependent uses. Examples include restaurants, dwellings, and commercial enterprises servicing marine-related uses such as fish markets, repair facilities, and ships' chandleries. Wetland Scenic views - those areas which provide important visual linkage for the public with scenic wetlands that are vistas typical of the unique Nantucket environment. Scenic wetlands include but are not limited to the following features: expansive open space, large areas of natural features, placement and sizing of both natural and man-made features, or mix of colors and textures created by interactions among water, sand, and different types of vegetation. Visual linkage for the public is not restricted to views from public ways, but also views from areas used by the public, such as private and public conservation land, dirt "moor" roads, major private ways intensively used by the public, great ponds, beaches, Nantucket's harbors, and the ocean. wildlife - All non-domesticated mammals, birds, reptiles, amphibians, fishes, or invertebrates which use an Area Subject to Protection Under the By-law for any part of their life cycle. Special consideration shall only be given to members of the class Insecta if they are rare or endangered as defined by the Massachusetts Natural Heritage Program or its successor, or if they are a major food source of other wildlife, but not if the insect species is determined by the Commission and the Board of Health to constitute a pest whose protection under the By-law 7 would be a risk to man at the proposed project site. Work - all activities set forth in the By-law, Section 136- 3A, including altering, removing, filling, dredging or building upon. 1.03 Procedures A. Where the By-law states that the Commission is to receive a request or notice, such request or notice shall be given in writing to the Commission office, or in the case of emergency, the request can be made directly to the Co~mission's chairperson. B. Nantucket Notice of Intent (NNOI) I. Any person who proposes to remove, fill, dredge, alter or build upon any Area Subject to Protection Under the By-law shall submit a Nantucket Notice of Intent (NNOI) and other application materials in accordance with the submittal requirements set forth on the NNOI form. 2. The Commission may accept plans filed with a Notice of Intent under the Wetlands Protection Act, M.G.L. c. 131 s. 40, as plans under this By-law. The NNOI shall be filed concurrently with a Notice of Intent under the Wetlands Protection Act. 3. When a person filing an application is other than the owner, the findings and decision of the Commission shall be sent by the Commission to the owner as well as to the person filing the application, and the applicant shall supply the Commission with the name and current address of the owner. 4. The Commission shall give a NNOI the same file number as the accompanying Notice of Intent record from the D.E.Q.E. 5. In the event that only part of the work proposed lies within an Area Subject to Protection Under the By-law, all aspects of the work shall be briefly described on the NNOI form. C. Public Hearings by Conservation Commission I. The Co~mission in an appropriate case may combine its hearing under the By-law with the hearing conducted under the Wetlands Protection Act, M.G.L. 131, s.40. 2. When a person filing an NNOI is not the owner, notice of the time and place of a hearing shall be given to the owner, by the Commission at the address supplied to the Commission by the applicant. 3. Any changes in the plans or the proposed work made by the applicant during the course of the public hearings, shall be made in writing and shall be filed by the applicant with the Commission. Such changes must be filed prior to the close of the public hearings on that NNOI. 8 ~. Extensions of Permits 1. The Commission may extend a Permit as provided by the By-law Section l36-4B. 2. The Commission shall not deny a request for an extension unless it finds by a preponderance of the evidence anyone of the followi ng : a. No work has begun on the project; unless the failure to begin work is due to an unavoidable delay in obtaining other necessary state or municipal approvals, permits or variances, such as in the event other approvals, permits or variances are appealed; b. New information, not available at the time the Permit was issued, indicates that the Permit is not adequate to protect the interests identified in the By-law; c. Incomplete work is causing damage to the interests identified in the By-law; d. Work has been done in violation of the By-law, these regulations or conditions in the Permit; or e. The extension request is not timely. An extension request shall be timely if received by the Co~mission for review at a normally scheduled meeting of the Commission prior to the expiration date of the Permit. 3. If issued, an Extens ion' Perm i t shall be signed by a majority of the Commission. E. Nantucket Certificates of Compliance I. Upon written request by the applicant, a Nantucket Certificate of Compliance shall be issued by the Commission within 21 days of receipt thereof, and shall certify that the conditions required by the Permit as of the date of the application for a Nantucket Certificate of Compliance have been completed in compliance with the Permit. If issued by the Commission, the Certificate of Compliance shall be signed by a majority of the Co~mission. 2. Prior to the issuance of a Certificate of Compliance, the Commission may make a site visit, in the presence of the applicant or, if the applicant so desires, in the presence of the applicant's agent. F. Waivers of Requirements 1. The Commission may, in its discretion for good cause shown, grant waivers from the operation of one or more of these regulations pursuant to this section. Such waivers are intended to be granted only in rare and unusual cases, and shall be granted only in accordance with the provisions of this section. 9 A waiver may be granted only for the following reasons and upon the following conditions: a. The Commission may grant a waiver from these regulations and impose such additional or substituted requirements as it deems necessary, upon a clear and convincing showing by the applicant that: 1) there are no reasonable conditions or alternatives that would allow the project to proceed in compliance with the regulations; 2) the project, or its natural and consequential effects, will not have any adverse effect upon any of the Interests Protected by the By-law. It shall be the responsibility of the applicant to provide the Commission with any information which the Commission may in writing request in order to enable the Commission to ascertain such adverse effects. The failure of the applicant to furnish any information which has been so requested shall result in the denial of a request for a waiver pursuant to this subsection. b. The Commission may grant a waiver from these regulations when it is necessary to avoid so restricting the use of the property as to constitute an unconstitutional taking without compensation. If an application for a waiver pursuant to this subsection is received by the Commission, the Commission may request an opinion from Town Counsel as to whether the application of these regulations to a particular case will result in such a taking without compensation. c. The Commission may impose additional conditions in granting a permit pursuant to this Section, including imposing limits on project size or effect or requiring other compensatory measures, such as wetland replication. 1.04 Severability and Invalidity The invalidity of any section of these regulations shall not invalidate any other section or provision, nor shall it invalidate any permit or determination which previously has been issued. 1.05 Effective Date The effective date of these regulations shall be the date on which these regulations are approved by vote of the Conservation Commission. These regulations shall apply to all NNOI or NRDA's filed after that date. The effective date of these regulations is February 25, 1988. 10 Part II - Regulations for Coastal Wetlands 2.01 Land Under the Ocean A. Characteristics and Protected Interests 1. The Co~mission finds that regulations applicable to activities involving land under the ocean are necessary and proper for the following reasons: Land under the ocean provides feeding areas, spawning and nursery grounds and shelter for many coastal organisms related to marine fisheries and wildlife. Destruction of eelgrass beds (Zostera marina) will harm scallop production. Nearshore areas, and in some cases offshore areas, of land under the ocean help reduce storm damage, erosion, and flooding by diminishing and buffering the high energy effects of storms. Submerged sand bars dissipate wave energy. Such areas provide a source of sediment for seasonal rebuilding of coastal beaches and dunes. The bottom topography and sediment type of nearshore areas of land under the ocean is critical to erosion control, storm damage protection, and flood control. Water circulation and flushing rates, distribution of sediment grain size, water quality (including but not limited to turbidity, temperature, nutrients, pollutants, salinity, and dissolved oxygen), and the habitat of wildlife, finfish, and shellfish are all factors critical to the protection of wildlife and marine fin and shell fisheries. Land under the ocean in an unobstructed state is important to recreational swimming, fishing, and shellfishing, to recreational boating and sailing, and to commercial fishing and shellfishing. 2. In view of the foregoing, whenever a proposed project involves removing, filling, dredging, altering or building upon land under the ocean, the Commission shall find that such land is significant to the protection of the following interests: flood control, erosion control, storm damages prevention, fisheries, shellfish, wildlife and recreation. These findings may be overcome only upon a clear showing that the Land Under the Ocean does not play a role in protecting one or more of the interests given above and only upon a specific written determination to that effect by the Commission. 2.01 B. When Land Under the Ocean is Determined to be Significant to an Interest Protected by the By-law, the following regulations shall apply: 1. Improvement and maintenance dredging for navigational purposes shall be designed and carried out using the best available measures as determined by the Commission so as to have the least possible adverse effects or changes in marine productivity caused by changes in, or resulting from suspension or transport of pollutants, sediment transport, smothering of bottom organisms, accumulation of pollutants by organisms, destruction of habitat or nutrient source areas, or changes in water circulation and water quality. Dredging, particularly 11 improvement dredging, shall also use such best available measures to minimize adverse effects caused by changes in bottom topography resulting in an increase in height and velocity of waves hitting the shore or in changes in sediment transport which affect natural replenishment of beaches or maintenance of channels. 2. Construction of residential piers shall be accomplished as determined by the Commission so as not to change shoreline movement of sediments, harm significant shellfish resources, obstruct commercial shellfishing, or obstruct the reserved public rights of fishing, fowling, navigation, or passage. No solid fill piers shall be permitted. 3. Construction of commercial piers shall not affect sediment transport, and shall not destroy or pollute fisheries and shellfish habitat or nutrient source areas for those resources. No solid-fill piers shall be permitted. 4. Best available measures as determined by the Commission shall be used to minimize adverse effects of a commercial or residential pier on the interests protected by the By-law. 5. Aquaculture projects shall be undertaken pursuant to such means as may be established by the Commission so as to have the least possible adverse effect on wildlife, erosion control, storm damage prevention, flood control, recreation or public access. No destruction of habitat or areas where shellfish feed, or change in water quality or circulation in any manner which adversely affects productivity of marine fisheries or shellfish beds shall be permitted. 6. No new bulkheads or coastal engineering structures shall be permitted. Existing bulkheads may be repaired or reconstructed in a location similar to the existing location and only to its original length, if it is protecting an existing house. Bulkheads may be rebuilt only if the Commission determines there is no environmentally better way to control an erosion problem, including in appropriate cases the moving of the threatened building. 7. Water dependent projects shall be designed and performed so as to cause no adverse effects on wildlife, erosion control, marine fisheries, shellfish beds, storm damage prevention, flood control, and recreation. 8. No activity on land under the ocean which is not water dependent shall be permitted by the Co~mission, except activity allowed pursuant to a waiver from these regulations, as set forth in Section 1.03F. 9. The Commission may impose such additional requirements as are necessary to protect the Interests Protected By the By- law. 12 .2.02 Coastal Beaches (and Tidal Flats) A. Characteristics and Protected Interests l. The Commission finds that regulations applicable to activities involving coastal beaches and tidal flats are necessary and proper for the following reasons: 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 purpose of storm damage prevention, erosion control, 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. Tidal flats are important to the protection of marine fisheries because they provide habitats for marine organisms, such as polycheate worms and mollusk, which in turn are food sources for fish. Tidal flats are also sites where organic and inorganic materials are entrapped and then returned to the photosynthetic zone of the water column to support algae and other primary producers of the marine food web. Coastal beaches and flats serve as important habitats for a wide variety of wildlife. They are used in particular by coastal birds for feeding areas and nesting sites. The natural erosional and depositional cycles, sediment grain size, water quality (including but not limited to turbidity, temperature, nutrients, pollutants, salinity, and dissolved oxygen) and circulation, and elevation of the land surface are all features of wildlife habitat which are critical characteristics for the protection of wildlife. Characteristics of coastal beaches and flats which are critical to the protection of marine fisheries and shellfish include: distribution of sediment grain size, movement of sediment, water quality (including the characteristics given above) and circulation, and beach relief and elevation. Characteristics of coastal beaches and flats which are critical to storm damage prevention, erosion control, or flood control include sediment volume and form, their ability to respond to wave action, natural erosional and depositional cycles, and wave intensities. Characteristics of coastal beaches and flats which are critical to recreation are topography, sediment grain size, water quality (including the characteristics given above), water circulation rates and patterns, unobstructed access along shore, natural erosional and dispositional cycles, and wave intensity. Characteristics of 13 .coastal beaches which are critical to wetland scenic views are natural erosion and deposition cycles, relief and elevation, sense of openness and solitude. Land within 100 feet of a coastal beach or tidal flat is considered to be important to the protection and maintenance of coastal beaches and tidal flats, and therefore to the protection of the wetland values which these areas contain. 2. In view of the foregoing, whenever a proposed project involves removing, filling, dredging, altering or building upon a coastal beach or flat, the Commission shall find that the beach or flat is significant to the protection of the following interests: flood control, erosion control, storm damage prevention, fisheries, shellfish, wildlife, recreational and wetland scenic views. These findings may be overcome only upon a clear showing that the beach or flat does not play a role in protecting one or more of the interests given above and upon only a specific written determination to that effect by the Commission. 2.02 B. When a Coastal Beach, Tidal Flat or Land within lOa feet of a Coastal Beach or Tidal Flat is determined to be significant to an Interest Protected by the By-law, the following regulations shall apply: I. The provisions of Section 2.01B (1-8) (Land Under the Ocean) shall apply to coastal beaches and tidal flats. 2. No new bulkheads or coastal engineering structures shall be permitted. Existing bulkheads may be repaired or reconstructed in a location similar to the existing location and only to its original length, if it is protecting an existing house. Bulkheads may be rebuilt only if the Commission determines there is no en- vironmentally better way to control an erosion problem, including in appropriate cases the moving of the threatened building. 3. Dredging projects in flats must be done in accordance with such procedures as the Commission determines would disturb the absolute minimum amount of habitat possible. 4. No fill shall be placed on a coastal beach or within 25 feet of a coastal beach. If a project is water dependent, the Commission may allow limited placement of fill after making a written finding that there is no feasible way to avoid filling the beach or within 25 feet of it. All possible mitigation measures shall be taken as determined by the Commission to limit the adverse effects of the fill. 5. No part of any septic system shall be placed in shifting sands or on a coastal beach. The septic leach facility shall be at least 100 feet from the spring high tide line. 6. All work maintain at least a coastal beach. shall be at least on projects which are not water dependent shall a 25-foot natural undisturbed area adjacent to All structures which are not water dependent 50 feet from a coastal beach. 14 7. In areas of eroding shoreline, the distance from all buildings to the coastal beach shall be at least 20 times the average annual shoreline erosion or 100 feet, whichever is the lesser. The average annual shoreline erosion rate shall be determined by averaging the annual erosion over a 150-year period ending the date the NNOI was filed, or if no NNOI was filed, the date construction began. If erosion data is not available for the 150-year period, the Commission shall determine the average annual erosion rate from such lesser time period for which erosion data is available. 8. The Commission may impose such additional requirements as are necessary to protect the Interests Protected By the By- law. 2.03 Coastal Dunes A. Characteristics and Protected Interests 1. The Commission finds that regulations applicable to activities involving coastal dunes are necessary and proper for the following reasons: Coastal dunes aid in storm damage prevention, erosion control, and flood control by supplying sand to coastal beaches. Coastal dunes protect inland coastal areas from storm damage and flooding by storm waves and elevated sea levels because such dunes are higher than the coastal beaches which they border. Vegetated cover contributes to the growth and stability of coastal dunes by providing conditlons favorable to sand deposition. On retreating shorelines, the ability of coastal dunes bordering a coastal beach to move landward at the rate of shore-line retreat allows these dunes to maintain their form and volume. Characteristics of coastal dunes which are critical for storm damage prevention, flood control, and erosion control include: ability of dune to erode and change in response to coastal beach conditions; dune volume, sediment grain size, and slope; dune form which can change with wind and natural water flow; amount, continuity, and density of vegetative cover; and ability of dune to move landward or laterally. Coastal dunes are important habitats for a wide variety of wildlife, particularly birds for feeding and nesting areas. Amount of vegetation, dune height and slope, sediment grain size, and degree of isolation from human-caused disturbances are all features of dunes which are critical characteristics for the protection of wildlife. Characteristics of coastal dunes which are critical to wetland scenic views are dune form, slope, elevation, size of dunefield, proportion and scale of dunes in relationship with other land forms. Land within 100 feet of a coastal dune is considered to be significant to the protection and maintenance of coastal dunes, and therefore to the protection of the wetland values which these areas contain. 2. In view of the foregoing, whenever a proposed project involves removing, filling, dredging, altering or building upon a coastal dune, the Commission shall find that the dune is 15 .significant to the protection of the following interests: flood control, erosion control, storm damage prevention, wildlife, and wetland scenic views. These findings may be overcome only upon a clear showing that the dune does not playa role in protecting one or more of the interests given above and only upon a specific written determination to that effect by the Commission. 2.03 B. When a Coastal Dune or Land within 100 feet of a Coastal Dune is determined to be significant to an Interest Protected by the By-law, the following regulations shall apply: 1. No coastal revetments or coastal engineering structures of any type shall be constructed, rebuilt or repaired. 2. All projects which are not water dependent shall maintain at least a 2S-foot natural undisturbed area adjacent to a coastal dune. All structures which are not water dependent shall be at least 50 feet from a coastal dune. 3. No excavation or disturbance of vegetative cover shall be allowed on a coastal dune unless the area is completely restored, replanted, and stabilized to its original form and volume. 4. Fill may be used only if the Commission authorizes its use and only if such fill is to be used for beach and dune nourishment projects. 5. No part of any septic system shall be placed in shifting sands or on a coastal dune. The septic leach facility shall be at least 100 feet from the spring high-tide line. 6. Any activity allowed on a coastal dune or within 100 feet of a dune shall be restricted to such activity that is determined by the Coromission not to have any adverse effect on the dune by altering the ability of waves to remove sand from or deposit sand on a dune; by disturbing vegetative cover in a manner sufficient to destabilize the dune; by causing any modification of the dune form and slope which would increase the potential for erosion, storm or flood damage; by interfering with landward or lateral movement of the dune; or by causing the rate of sand removal to increase through manmade means or structures. 7. No activity shall be permitted, other than the maintenance and repair of a structure existing on the effective date of these regulations, that will result in construction of a building upon a coastal dune or within 50 feet of any coastal dune. 8. Any pedestrian walkways must be designed as determined by the Commission so as to minimize disturbances of vegetative cover. 9. In areas of eroding shoreline, the distance from all buildings to the coastal dune shall be at least 20 times the 16 .average annual shorelin~ erosion or 100 feet, whichever is the lesser. The distance from all buildings to the coastal dune shall be at least 20 times the average annual shoreline erosion or lOa feet, whichever is the lesser. The average annual shoreline erosion rate shall be determined by averaging the annual erosion over a 150-year period, ending the date the NNOI was filed, or if no NNOI was filed, the date construction began. If erosion data is not available for the 150-year period, the Commission shall determine the average annual erosion rate from such lesser time for which erosion data is available. 10. The Commission may impose such additional requirements as are necessary to protect the Interests Protected By the By- law. 2.04 Barrier Beaches A. Characteristics and Protected Interests 1. The Commission finds that regulations applicable to activities involving barrier beaches are necessary and proper for the following reasons: Barrier beaches protect landward areas from flooding and erosion because they provide a buffer to storm waves and to sea levels elevated by storms. Barrier beaches protect from wave action such highly productive areas as salt marshes, estuaries, lagoons, harbors, salt ponds, and freshwater marshes and ponds, which are in turn important to fisheries and shellfish. Barrier beaches are maintained by the aloDgshore movement of beach sediment caused by wave action. The coastal dunes, beaches, and tidal flats of a barrier beach are made up of sediment supplied by wind action, storm wave overwash, and tidal inlet deposition. Barrier beaches in Massachusetts undergo a landward or alongshore migration caused by the landward and alongshore movement of sediment by wind, storm waves, and tidal current processes. The continuation of these processes maintains the volume of the landform which is necessary to carry out its storm and flood buffer functions. The ability of barrier beaches to respond to wave action, including storm overwash sediment transport, is critical to the protection of the wetlands values of barrier beaches. The Characteristics and Protected Interests of Coastal Beaches, set forth in 2.02A of these Regulations and the Characteristics and Protected Interests of Coastal Dunes, set forth in Section 2.03A also apply to Barrier Beaches. 2. In view of the foregoing, whenever a proposed project involves removing, filling, dredging, altering or building upon a barrier beach, the Commission shall find that the barrier beach is significant to the protection of the following interests: flood control, erosion control, storm damage prevention, fisheries, shellfish, wildlife, recreation, and wetland scenic views. Barrier beaches shall be found significant to private water supply and ground water if there are existing houses with wells on or near the barrier beach or if the barrier beach abuts, creates, or protects a swamp, freshwater marsh, or pond. These findings may be overcome only upon a clear showing that the 17 barrier beach does not play a role in protecting one or more of the interests given above and only upon a specific written determination to that effect by the Commission. 2.04 B. When a Barrier Beach or Land within 100 feet of a Barrier Beach is determined to be significant to an Interest Protected by the By-law, the following regulations shall apply: 1. No coastal revetments or coastal engineering structures of any type shall be constructed, rebuilt, or repaired. 2. Fill may be used only if the Commission authorizes its use and only if such fill is to be used for beach and dune nourishment projects. 3. No septic systems or buildings shall be constructed on a barrier beach. Buildings which pre-exist these regulations may be maintained and repaired. 4. Engineering structures (such as pipes) for the controlled release of water from a saltwater or freshwater pond behind a barrier beach may be constructed, using such procedures as the Commission determines are the best available measures, through or over a barrier beach. Design of said structures shall be accomplished as determined by the Commission to minimize the adverse effect on the barrier beach and in no way to prevent the continuation of the natural processes on a barrier beach, particularly by not disrupting of the barrier beach's sediment source, ability to move, and natural storm wave overwash. s. Excavation of sand around existing houses may be permitted, but no new projects shall be permitted which will require periodic sand removal for maintenance. All disturbed areas (including blowouts) shall be stabilized through planting of vegetation. The evacuated sand must be retained in the area and be a part of the barrier beach. 6. Vehicular access for existing houses or for recreational use shall be unpaved roads and shall be done in accordance with such procedures as the Commission determines will minimize any adverse effect on the barrier beach. 7 . permitted restored, volume. No excavation or disturbance of vegetation shall be on a barrier beach unless the area is completely replanted, and stabilized to its original form and 8. The Commission may impose such additional requirements as are necessary to protect the Interests Protected By the By- law. 18 ~.05 Coastal Banks A. Characteristics and Protected Interests 1. The Commission finds that regulations applicable to activities involving coastal banks are necessary and proper for the following reasons: Coastal banks composed of unconsolidated sediment and exposed to wave action serve as a major source of sediment for other coastal landforms, including beaches, dunes, and barrier beaches. The supply of sediment is removed from banks by wave action. It is a naturally occurring process necessary to the continued existence of coastal beaches, coastal dunes, and barrier beaches. These areas dissipate storm wave energy, thus protecting structures and coastal wetlands landward of them from storm damage, erosion, 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, erosion, 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. Disturbances to a coastal bank which reduce its natural resistance to wind and rain erosion cause cuts and gullies in the bank, and decrease its value as a buffer. Vegetation tends to stabilize a coastal bank and reduce the rate of erosion due to wind and rain runoff. Undisturbed, vegetated areas along banks are critical to reducing wind and rain erosion from the top of the panko A particular coastal bank may serve both as a sediment source and as a buffer or it may serve only one role. Coastal banks provide habitat for wildlife, particularly nesting birds. Characteristics of coastal banks which are critical to wildlife are bank steepness, height, stability, and soil grain size and compaction. 2. In view of the foregoing, whenever a proposed project involves removing, filling, dredging, altering or building upon a coastal bank, the Co~mission shall find that the bank is significant to the protection of the following interests: flood control, erosion control, storm damage prevention, scenic views, and wildlife. These findings may be overcome only upon a clear showing that the coastal bank does not play a role in protecting one or more of the interests given above and only upon a specific written determination to that effect by the Commission. 2.05 B. When a Coastal Bank or Land within 100 feet of Coastal Banks is determined to be significant to an Interest Protected by the By-law, the following regulations shall apply: 1. No new bulkheads, coastal revetments, groin, or other coastal engineering structures shall be permitted. Existing bulkheads, revetments, and groins may be repaired or reconstructed in a location similar to the existing location and only to its original length, if it is protecting an existing house. Bulkheads and groins may be rebuilt only if the 19 '. . ~ Commission determines there is no environmentally better way to control an erosion problem, including in appropriate cases the moving of the threatened building. 2. Piers shall be constructed using procedures determined by the Commission to be the best available measures to minimize adverse effects on Interests Protected by the By-law. 3. All projects shall be restricted to activity as determined by the Commission to have no adverse effect on bank height, bank stability, or the use of a bank as a sediment source. 4. Elevated walkways designed not to affect bank vegetation shall be required for pedestrian passage over a bank. 5. All projects which are not water dependent shall maintain at least a 25 foot natural undisturbed area adjacent to a coastal bank. All structures which are not water dependent shall be at least 50 feet from a coastal bank. 6. The septic leach facility of a septic system shall be at least 100 feet, measured horizontally, from the spring high tide line. 7. In areas of eroding shoreline the distance from all buildings to the coastal bank shall be at least 20 times the average annual shoreline erosion or 100 feet, whichever is the lesser. The distance from all buildings to the coastal bank shall be at least 20 times the average annual shoreline erosion or 100 feet, whichever is the lesser. The average annual shoreline erosion rate shall be determined by averaging the annual erosion over a ISO-year period ending the date the NNOI was filed, or if no NNOI was filed, the date construction began. If erosion data is not available for the ISO-year period, the Commission shall determine the average annual erosion rate from such lesser time period for which erosion data is available. 8. All permits issued for the construction of buildings under the By-law within 100 feet landward of the top of a coastal bank shall contain the specific condition that no coastal engineering structure of any kind shall be permitted on an eroding bank in the future to protect the project allowed by this permit, except those coastal engineering structures allowed by a waiver issued pursuant to Section 1.03F of these regulations. 9. The Commission may impose such additional requirements as are necessary to protect the Interests Protected By the By- law. 2.06 Salt Marshes A. Characteristics and Protected Interests 1. The Commission finds that regulations applicable to activities involving salt marshes are necessary and proper for the following reasons: 20 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. Salt marshes also provide spawning and nursery habitat for several important estuarine forage finfish. Salt marsh plants and substrate remove pollutants from surrounding waters. The network of salt marsh vegetation roots and rhizomes bind sediments together. The sediments absorb chlorinated hydrocarbons and heavy metals such as lead, copper and iron. The marsh also helps retain nitrogen and phosphorus compounds which can cause algal blooms and changes in ocean plankton and plant communities, particularly eelgrass. The underlying peat serves as a barrier between fresh groundwater landward of the marsh and the ocean, thus helping to maintain the level of the groundwater. Salt marsh cord grass and underlying peat are resistant to erosion and dissipate wave energy, thereby providing a buffer that reduces wave damage and coastal erosion. A salt marsh is an important feeding area for many types of fish and aquatic and terrestrial wildlife. The marsh, including its creeks and open water, also provide important shelter for many aquatic and migratory birds. Marshes help absorb pollutants, but there is a careful balance of nutrient and pollutant input which if exceeded will result in accumulation of pollutants and/or changes in the marsh community. Because the marsh is the basis for such a large food web, bioaccumulation of pollutants and toxins can mean that relatively low levels of pollutants may be detrimental. Some of the characteristics of salt marshes which are critical to their health and ability to protect wetland values include: the growth, composition, and distribution of salt marsh vegetation; the amount of flow and level of both tidal and fresh water; the water quality (including but not limited to turbidity, temperature, nutrients, pollutants, salinity, and dissolved oxygen), of both tidal and fresh water; the presence and depth of peat; rate of marsh productivity; and the diversity of the animals and plants making up the marsh community. Salt marshes provide excellent areas for bird watching, canoeing, and hunting. 2. In view of the foregoing, whenever a proposed project involves removing, filling, dredging, altering or building upon a salt marsh, the Commission shall find that the salt marsh is significant to the protection of the following interests: groundwater, erosion control, storm damage prevention, water pollution prevention, fisheries, shellfish, wildlife, recreation, and wetland scenic views. These findings may be overcome only upon a clear showing that the salt marsh does not playa role in protecting one or more of the interests given above and only upon a specific written determination to that effect by the Commission. 21 .2.06 B. When a Salt Marsh or Land within 100 feet of a Salt Marsh is determined to be significant to an Interest Protected by the By-law, the following regulations shall apply: 1. Salt marshes shall not be filled. 2. Salt hay may be harvested from a salt marsh only if performed in a manner which does not disturb the marsh substrate. 3. No proposed project in a salt marsh, or in lands within lOa feet of a salt marsh, shall destroy any portion of the salt marsh, change species composition of the marsh, have an adverse effect on salt marsh productivity, pollute the salt marsh, or adversely affect water quality. 4. All projects which are not water dependent shall maintain at least a 25-foot natural undisturbed area adjacent to a saltmarsh. All structures which are not water dependent shall be not closer than 50 feet from a salt marsh. 5. The septic leach facility of a septic system shall be at least lOa feet from the salt marsh. 6. The Commission may impose such additional requirements as are necessary to protect the Interests Protected By the By- law. 2.07 Salt Ponds A. Characteristics and Protected Interests 1. The Commission finds that regulations applicable to activities involving salt ponds are necessary and proper for the following reasons: Salt Ponds provide excellent habitat for marine fisheries. The high productivity of plants and phytoplankton provides food for shellfish, crustaceans, and juvenile fish. The bottom sediments and shallow water are excellent areas for many bivalves. The ponds also serve as spawning and nursery areas for crabs and fish. The productivity of salt ponds and the food web they support provides ideal habitat for many types of wildlife, particularly various ducks and shore birds. The enclosed nature of the ponds also provides shelter for wildlife. Salt ponds and the area around them provide the public many recreational opportunities including: shellfishing, fishing, sailing, swimming, hunting, and wildlife observation. Because of their semi-enclosed nature, salt ponds are sensitive to pollution or nutrient inputs. These inputs can change the plant and animal species composition of the pond, and thus can be detrimental to fish, shellfish, and wildlife. Bioaccumulation through food webs can also create dangerous levels of pollutants or toxins for wildlife and humans. Characteristics of salt ponds which are critical to various wetland values include water circulation, distribution of sediment grain size, amount of freshwater and saltwater inflow, productivity of plants, and water quality 22 (including but not limited to amounts of dissolved oxygen, nutrients, temperature, turbidity, pollutants, and salinity). Land within lOO feet of a salt pond is considered to be significant to the protection and maintenance of a salt pond and the land beneath it and therefore to the protection of the wetlands values of the pond. 2. In view of the foregoing, whenever a proposed project involves removing, filling, dredging, altering or building upon a salt pond, the Commission shall find that the salt pond is significant to the protection of the following interests: fisheries, shellfish, wildlife, recreation, and wetland scenic view. These findings may be overcome only upon a clear showing that the salt pond does not playa role in protecting one or more of the interests given above and only upon a specific written determination to that effect by the Commission. 2.07 B. When a Salt Pond or Land within lOO feet of a Salt Pond is determined to be significant to an Interest Protected by the By-law, the following regulations shall apply: l. The work shall be done in accordance with procedures determined by the Commission to have no adverse effect on wildlife, fisheries, shellfish or existing water quality and so as not to pollute the pond or alter the critical characteristics of salt ponds. 2. All projects which are not water dependent shall maintain at least a 25-foot natur~l undisturbed area adjacent to a salt pond. All structures which are not water dependent shall be at least 50 feet from a salt pond. 3. The septic leach facility of a septic system shall be at least lOO feet from the salt pond. 4. Projects designed to enhance a particular fishery or shellfish shall be designed in accordance with such procedures as the Commission determines will minimize adverse ecological effects on the salt pond, including adverse effects on plants and animals which are not the species targeted for management. If such management projects have adverse effects on any of the Protected Interests of the By-law, such projects shall be permitted only pursuant to a waiver, as set forth in Section l.03F of these regulations. 5. The Commission may impose such additional requirements as are necessary to protect the Interests Protected by the By- law. 2.08 Land Containing Shellfish A. Characteristics and Protected Interests l. The Coromission finds that regulations applicable to activities involving land containing shellfish are necessary for the following reasons: 23 Shellfish are one of the Interests Protected by the By- law. Land containing shellfish is found within many of the areas protected by this By-law. In addition to the regulations for those resource areas as given above in these regulations, this section discusses additional protection for shellfish. Land obtaining shellfish is important to the protection of marine fisheries in addition to the protection of shellfish. Shellfish on Nantucket are a very important recreational and commercial natural resource. Scallops, in particular, are an important economic resource on Nantucket. Shellfish used as a human food resource, as they are on Nantucket, need very clean, uncontaminated water, since they have the ability to concentrate very low levels of pollutants. 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. Characteristics of land containing shellfish which are critical to the protection of shellfish include, but are not limited to: water circulation patterns, rates of water flow, and amounts of water; the relief, elevation, distribution, grain size, and pollutant load of the sediments; and water quality (including turbidity, temperature, pollutants, nutrients, salinity, and dissolved oxygen). 2. In view of the foregoing, whenever a proposed project involves removing, filling, dredging, altering or building upon land containing shellfish or the water over land containing shellfish, the Commission shall find that the land containing shellfish is significant to the p~otection of the following interests: shellfish, fisheries, and recreation. These findings may be overcome only upon a clear showing that land containing shellfish does not playa role in protecting one or more of the interests given above and only upon a specific written determination to that effect by the Co~mission. 2.08 B. When a Land Containing Shellfish or Land within 100 feet of Land Containing Shellfish is determined to be significant to an Interest Protected by the By-law, the following regulations shall apply: 1. Projects shall not change water quality (including but not limited to changes in turbidity, temperature, salinity, dissolved oxygen, and additional nutrients and pollutants), water circulation, or natural drainage from adjacent land. 2. Land containing shellfish shall not be compacted by vehicular traffic or other means. The land's elevation and sediment grain size shall also not be altered. 3. Projects shall not obstruct the ability of the public to gather shellfish recreationally or the ability of commercial fishermen to harvest shellfish. 4. Any project which will release pollutants shall use such procedures as the Co~mission determines to utilize the best known 24 technology to remove pollutants or prevent risk of pollution. 5. All septic leach facilities shall be at least 100 feet from land containing shellfish. 6. No project detrimental to scallops shall be permitted, except activity allowed pursuant to a waiver from these regulations, as set forth in Section 1.03F. 7. The Commission may impose such additional requirements as are necessary to protect the Interests Protected by the By- law. 2.09 AnadromousjCatadromous Fish Runs, Banks along Fish Runs, and Lands Under Fish Runs. A. Characteristics and Protected Interests l. The Commission finds that regulations applicable to activities involving fish runs are necessary and proper for the following reasons: Fisheries are one of the Protected Interests under the By- law, section 136-2. Anadromous and Catadromous fish are renewable protein resources that provide recreational 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. Fish runs provide habitats for other fish and shellfish. Characteristics of fish runs which are critical to the protection of anadromousjcatadromous fish include: accessibility and location of spawning and nursing grounds, volume and rate of water flow in both migratory and spawning areas, and water quality (including turbidity, temperature, pollutants, nutrients, salinity, and dissolved oxygen). 2. In view of the foregoing, whenever a proposed project involves removing, filling, dredging, altering or building upon a fish run the Commission shall find that the fish run is significant to the protection of the following interests: fisheries, wildlife, and recreation. These findings may be overcome only upon a clear showing that the fish run and the land under a fish run does not playa role in protecting one or more of the interests given above and only upon a specific written determination to that effect by the Commission. 2.09 B. When a Fish Run or Land within lOO feet of a Fish Run is determined to be significant to an Interest Protected by the By-law, the following regulations shall apply: 1. Proposed projects shall not be permitted to fill a fish run, impede the migration of fish, or change the volume, rate or quality of water flow in a fish run. 2. Proposed projects shall not use procedures which the Commission determines are detrimental to spawning or nursery 25 habitats necessary to sustain the various life stages of the fish. 3. All projects which are not water dependent shall maintain at least 25-foot natural undisturbed area adjacent to a fish run. All structures which are not water dependent shall be at least 50 feet from a fish run. 4. The septic leach facility of a septic system shall be at least 100 feet from the fish run. 5. All work in a fish run shall be prohibited between March 15th and June 15th in any year. 6. All projects, including road maintenance, shall use procedures as the Commission determines will minimize the siltation of a fish run. 7. The Commission may impose such additional requirements as are necessary to protect the Interests Protected By the By- law. 2.10 Land Subject to Coastal Storm Flowage A. Characteristics and Protected Interests 1. The Commission finds that regulations applicable to activities involving land subject to coastal storm flowage are necessary and proper for the following reasons: Land subject to coastal storm flowage (the coastal floodplain) buffers and protects upland areas from severe storm conditions. Since the floodplain contains areas where the water table is close to the surface (as well as other wetland resource areas) pollutants in a flood plain, including contents of septic systems and fuel tanks, may affect private water supply, groundwater quality, wildlife, fisheries and shellfish during a storm. Direct and collateral damage to man-made structures in the floodplain are caused by wave impacts and inundation by floodwaters and storm driven debris. Protecting lives and property in floodplains during a storm can be expensive to the Town of Nantucket and unsafe for its police, fire, and medical personnel involved in such efforts. Desires of property owners to protect themselves from the effects of storms can lead to pressure on the Town and its regulatory bodies to erect engineering structures in wetlands which can have detrimental effects on wetland values. 2. In view of the foregoing, whenever a proposed project involves removing, filling, dredging, altering or building upon on land subject to coastal storm flowage, the Commission shall find that the land is significant to the protection of the following interests: flood control, erosion control, and storm damage prevention. These findings may be overcome only upon a clear showing that land subject to coastal storm flowage does not play a role in protecting one or more of the interests given above and only upon a specific written determination to that 26 . effect by the Commission. 2.10 B. When a Land Subject to Coastal Storm Flowage or Land within 100 feet of Land Subject to Coastal Storm Flowage is determined to be significant to an Interest Protected by the By-law, the following regulations shall apply: Specific resource areas that lie within the area of land subject to coastal storm flowage, and the wetland values they protect, are otherwise addressed elsewhere in these regulations. The regulations concerning those areas are additional to the regulations set forth in this section. 1. The work shall not reduce the ability of the land to absorb and contain floodwaters, or to buffer inland areas from flooding and wave damage. 2. Projects shall not cause ground, surface or salt water pollution triggered by coastal storm flowage. All septic tanks and leach facilities shall be outside the 100 year flood plain. 3. All private underground fuel tanks shall be outside the 100 year flood plain. Commercial tanks shall be outside the 100 year flood plain, or if the Commission determines this is not practicable, the commercial tanks shall be secured so they cannot float loose. 4. Building upon areas subject to coastal storm flowage in locations where such structure would be subject to storm damage shall not be permitted. 5. The Commission may impose such additional requirements as are necessary to protect the Interests Protected By the By- law. 27 Part III - Regulations for Inland Wetlands 3.01 Inland Banks and Beaches A. Characteristics and Protected Interests 1. The Commission finds that regulations applicable to activities involving inland banks and beaches are necessary and proper for the following reasons: Banks are areas where ground water discharges to the surface and where, under some circumstances, surface water recharges the ground water. Where banks are partially or totally vegetated, the vegetation serves to maintain the Bank's stability, which in turn protects water quality by reducing erosion and siltation. Banks act to confine floodwaters during most storms, preventing the spread of water to adjacent land. Alterations which permit water to frequently and consistently spread over a larger and more shallow area increase the amount of land routinely flooded and elevate water temperatures. Land within 100 feet of a bank is likely to be significant to the protection and maintenance of the bank, and therefore to the protection of the interests which these resource areas serve to protect. Banks may provide shade that moderates water temperatures as well as providing breeding habitat, escape cover and feeding areas, all of which are important for the protection of fish. Banks may also help channel water and thus maintain a water depth which helps keep the water temperatures cool in warm weather, thus providing habitat necessary for both fish and the food sources for fish. Inland banks may act as a sediment source for inland beaches. By confining floodwaters, banks decrease the erosion of topsoil from adjacent land surfaces and help prevent flood and storm damage to buildings and roads. Confining floodwaters also decreases water pollution by preventing floodwaters from mixing with many contaminants found on roads, near and in dwellings, from fertilized soil, and from septic tanks. Banks may provide nesting habitat for some species of birds. Banks and particularly beaches provide wildlife and human access to water bodies. 2. In view of the foregoing, whenever a proposed project involves removing, filling, dredging, altering or building upon an inland bank or beach, the Commission shall find that the bank or beach is significant to the protection of the following interests: groundwater, flood control, erosion control, storm damage prevention, water pollution, fisheries, scenic views, and wildlife. These findings may be overcome only upon a clear showing that the inland bank or beach does not play a role in protecting one or more of the interests given above and only upon a specific written determination to that effect by the Commission. 28 .3.01 B. When an Inland Bank and Beach or Land within 100 feet of an Inland Bank and Beach is determined to be significant to an Interest Protected by the By-law, the following regulations shall apply: 1. Projects shall be permitted only where no adverse effect exists on bank stability, ground water and surface water quality, the water carrying capacity of an existing channel within a bank, bank height, and the capacity of the bank to provide habitat for fisheries and/or wildlife. 2. Elevated walkways designed not to affect bank vegetation shall be required for pedestrian passage over an inland bank. (but not an inland beach which is gently sloping). 3. All projects which are not water dependent shall maintain at least a 25-foot natural undisturbed area adjacent to an inland bank or beach. All structures which are not water dependent shall be at least 50 feet from an inland bank or beach. 4. The septic leach facility of a septic system shall be at least 100 feet from the seasonal high water line of the water body. 5. No structure of any kind shall be permitted on an eroding bank to protect any building built pursuant to a permit granted after the effective date of these regulations. 6. The Commission may impose such additional requirements as are necessary to protect the Interests Protected By the By- law. 3.02 Vegetated Wetlands (Meadows, Marshes, Swamps, and Bogs) A. Characteristics and Protected Interests 1. The Commission finds that regulations applicable to activities involving vegetated wetlands are necessary and proper for the following reasons: The plant communities, soils, and associated low, flat topography of vegetated wetlands remove or detain sediments, nutrients (such as nitrogen and phosphorous) and toxic substances (such as heavy metal compounds) that occur in run-off and flood waters. Some nutrients and toxic substances are retained 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 effect of nutrients and toxins until the cold weather period, when the release of these materials is less likely to reduce water quality. Vegetated wetlands are areas where ground water discharges to the surface and where, in some circumstances, surface water discharges to the ground water. The profusion of vegetation and the low, flat topography of vegetated wetlands slow down and reduce the passage of flood waters during periods of peak flows by providing temporary flood water storage, and by 29 . facilitating water removal through evaporation and transpiration. This reduces downstream flood crests, erosion, and resulting damage to private and public property. During dry periods the water retained in vegetated wetlands is essential to the maintenance of base flow levels in streams or into the groundwater which in turn is important to the protection of water quality, water supplies, and wildlife. Wetland vegetation provides shade that moderates water temperatures important to fish life. Vegetated wetlands that are always wet or that are flooded by adjacent water bodies and waterways provide food, breeding habitat and cover for fish. Fish populations in the larval stage are particularly dependent upon food provided by these wetlands since they provide large quantities of microscopic plant and animal food material. Wetland vegetation provides habitat for a wide variety of insects, reptiles, amphibians, mammals and birds. Many of these, particularly insects, are food sources for fish. Vegetated wetlands, together with land within 100 feet of a vegetated wetland, serve to moderate and alleviate thermal shock and pollution resulting from runoff from impervious surfaces which may be detrimental to wildlife, fisheries, and shellfish downstream of the vegetated wetland. The maintenance of base flows by vegetated wetlands is significant to the maintenance of a proper salinity ratio in estuarine areas downstream of the vegetated wetland. A proper salinity ratio, in turn, is essential to the ability of shellfish to spawn successfully, and therefore to provide for the continuing procreation of shellfisheries. A proper salinity ratio is also important for many species of fish. Vegetated wetlands are excellent places for birdwatching and hunting. Some vegetated wetlands, particularly bogs, provide habitat for rare plants and animals. Vegetated wetlands along pond edges can prevent erosion by wind driven waves. Land within 100 feet of a vegetated wetland is considered to be significant to the protection and maintenance of vegetated wetlands, and therefore to the protection of the interests which these resource areas serve to protect. 2. In view of the foregoing, whenever a proposed project involves removing, filling, dredging, altering or building upon a vegetated wetland, the Commission shall find that the vegetated wetland is significant to the protection of the following interests: public and private water supply, groundwater, flood control, erosion control, storm damage prevention, water pollution, fisheries, shellfish, wildlife, scenic views, and recreation. These findings may be overcome only upon a clear showing that the vegetated wetland does not play a role in protecting one or more of the interests given above and only upon a specific written determination to that effect by the Commission. 3.02 B. When a Vegetated Wetlands or Land within 100 feet of a Vegetated Wetlands is determined to be significant to an Interest Protected by the By-law, the following regulations shall apply: 1. Proposed projects which are not water dependent shall 30 ." maintain at least a 25-foot natural undisturbed area adjacent to vegetated wetlands. All structures which are not water dependent shall be at least 50 feet from a vegetated wetland. 2. Proposed projects shall not use procedures that the Commission determines changes the flood protection function (leveling out of storm surges by storing and slowly releasing water) of vegetated wetlands by significantly changing the rate of water flow through the wetlands (by channelization or other means) . 3. No permit shall be issued which authorizes the destruction of well-established old growth forested swamps (red maple swamps). The Commission may authorize the excavation of other vegetated wetlands to create ponds or clear the edge of a pond if the project is designed to increase wildlife habitat diversity and to minimize groundwater or surface water loss. 4. The septic leach facility of a septic system shall be at least lOa feet from the vegetated wetland. 5. The Commission may impose such additional requirements as are necessary to protect the Interests Protected Under the By- law. 3.03 Inland Water Bodies - Creeks, Streams, Ponds, Ditches or Flats A. Characteristics and Protected Interests I. The Commission finds that regulations applicable to activities involving inland water bodies are necessary and proper for the following reasons: Where land under water bodies is composed of pervious material, such land represents a point of exchange between surface and ground water. Depending upon the hydrological conditions and water levels at a given point in time, these areas may serve as exchange or discharge points, or both, with groundwater. An area may serve as recharge area at one season and a discharge point at another time. This allows pollutants and nutrients easy access into private wells or the general groundwater supply. The physical nature of land under water bodies is highly variable, ranging from deep organic and fine sedimentary deposits to gravel and large rocks. The organic soils and sediments play an important role in the process of detaining and removing dissolved and particulate nutrients from the surface water above. These also serve as traps for toxic substances (such as heavy metal compounds). Land under water bodies in conjunction with banks serve 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 lower depth increases the amount of property which is routinely flooded. Additionally, it results in an elevation of water temperature and decrease in 31 . . habitat in the main channel, both of which are detrimental to fisheries, particularly during periods of warm weather and low flows. It may also flood waterfowl nesting sites which otherwise would not be disturbed. 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 salomoides), smallmouth 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 and fertilize their eggs. Land within 100 feet of any bank abutting land under a water body is significant to the protection of the interests which these water bodies serve to protect. Characteristics of water bodies which are critical to wildlife and fisheries include water circulation and flushing rates, distribution of sediment grain size, water quality (including amounts of dissolved oxygen, nutrients, and pollutants). Leaving ponds and the land bordering ponds in an unobstructed state may be important to recreational swimming, fishing, and boating. Water bodies and the area around them also provide other recreational opportunities such as hunting and wildlife observation. Cattail borders or other vegetated borders of large ponds are important in reducing shoreline erosion and storm damage by dissipating the high energy of storm waves and by anchoring the sediments. Water bodies provide important feeding and/or drinking areas for many types of aquatic wildlife, birds and animals. Ponds and other water bodies produce insects which hatch and are used as food by several species of birds, particularly swallows. Ducks, geese, swans, and herons all use water bodies and surrounding bord~rs for feeding, shelter, and/or nesting areas. Many other birds, animals, reptiles and amphibians use land under water bodies, water bodies,and the borders of water bodies for various parts of their life cycles. Changes in sediments, water quality, water level, or species composition of food sources or groundcover may be detrimental to any of the above wildlife. Ponds and the land surrounding them often form important wetland scenic views. The enclosed area and limited size of most fresh water bodies on Nantucket make them particularly sensitive to pollution or nutrient inputs. These inputs can change the plant and animal species composition of the water body and thus can be detrimental to fish and wildlife. Bioaccumulation of pollutants through food webs can also create dangerous levels of pollutants or toxins for wildlife and humans. 2. In view of the foregoing, whenever a proposed project involves removing, filling, dredging, altering or building upon water bodies or the land beneath them, the Cowmission shall find that the water bodies and the land beneath them are significant to the protection of the following interests: public and private water supply, ground water, flood control, erosion control, storm damage prevention, water pollution, fisheries, wildlife, scenic views, and recreation. These findings may be overcome only upon a clear showing that the water body or the land beneath it does not playa role in protecting one or more of the interests given above and only upon a specific written determination to that effect by the Commission. 32 ~ . .' 3.03 B. When an Inland Water Body or Land within 100 feet of an Inland Water Body is determined to be significant to an Interest Protected by the By-law, the following regulations shall apply: 1. No proposed project shall use procedures that the Commission determines have an adverse effect on wildlife or fisheries, or alter the critical characteristics of an inland water body. 2. Proposed projects which are not water dependent shall maintain at least a 25-foot natural undisturbed area adjacent to land under a water body. All structures which are not water dependent shall be at least 50 feet from land under a water body. 3. The septic leach facility of a septic system shall be at least 100 feet from the water body. Septic leach facilities shall be separated from each other by 200 feet if the lot containing one of them contains a water body or fronts on a water body and the septic location is within the jurisdiction of this By-law. 4. There shall be no filling of a water body, except as allowed pursuant to a waiver from these regulations as set forth in Section 1.03F. 5. Boat piers shall be: I) designed to accommQdate one boat~ 2) on pilings and not longer than 30 feet~ 3) constructed so that the piers and the landing area do not disturb more than 350 square feet of pond or pond bottom and bordering vegetation in the pond~ and 4) constructed using those procedures that the Commission determines to be the best available measures to minimize adverse effects on Interests Protected by the By-law. 6. Clearing of cattails and other vegetation within a pond shall be permitted only by use of such procedures as the Commission determines will not harm the shoreline protection function of the vegetation. Such projects shall be permitted only in accordance with procedures that the Commission determines shall minimize turbidity, changes in water quality, and adverse changes in wildlife and fish habitat. 7. The Commission may impose such additional requirements as are necessary to protect the Interests Protected Under the By- law. 33 ~ . 4 . . 3.04 Land Subject to Flooding (both Bordering and Isolated Areas) A. Characteristics and Protected Interests 1. The Commission finds that regulations applicable to activities involving land subject to flooding is necessary and proper for the following reasons: Bordering land subject to flooding provides a temporary storage area for flood water which has overtopped the bank of the main channel of a creek, river, or stream or the basis of a pond or lake. During periods of peak run-off, flood waters are both retained (i.e-. slowly released through evaporation and percolation) and detained (slowly released through surface discharge). Over time, incremental filling of these areas causes displacement of flooding effects and 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. Pollutants or contaminants located on bordering land subject to flooding may be washed into surface waters and from there into ground water, or percolate directly into ground water. Sources of pollutants within these areas thus have widespread effect on Interests Protected by the By-law. Bordering land subject to flooding provides an important source of microscopic plant and animal material which enriches the nearby water body and can serve as the basis for a food web which supports many fish or wildlife. Bordering land provides important wildlife habitat and wildlife access to surface water resources. Bordering land subject to flooding is often low and level and thus helps prevent erosion of soil into water bodies by surface water run-off. The topography and location of bordering land subject to flooding is critical for protection of flood control capabilities. Isolated land subject to flooding provides a temporary storage area where run-off and high ground water collect and slowly evaporate or percolate into the ground. These areas, even though often small, are usually numerous and thus very important in preventing more serious flooding somewhere else. Filling causes lateral displacement of ponded water or increased run-off onto contiguous properties, which may result in damage to those properties or others which were not previously affected as much. The additive nature of the flood protection provided by these isolated areas and the fact that filling one may redirect water so as to radically change watershed sizes means that small changes in one area may have large effects in another area. Isolated land subject to flooding helps prevent erosion by breaking up watersheds so that run-off does not become so great as to have enough force to erode soil. Areas where the isolated land subject to flooding is pervious are likely to serve as significant recharge points to the ground water aquifer. Contaminations in the area may find easy access into ground water and neighboring wells. Isolated land subject to flooding which is covered by a mat of organic peat or muck may help remove contaminants before the flood water enters the ground water. Isolated land subject to flooding may provide important habitat for amphibians, particularly during their breeding period, and 34 It\' r ,>:> . .. some rare plants. It may also provide important habitat for several species of birds, including ducks. 2. For the foregoing reasons, whenever a proposed project involves removing, filling, dredging, altering or building upon land subject to flooding, the Commission shall find that the land is significant to the protection of the following interests: private water supply, ground water, flood control, erosion control, and water pollution. These findings may be overcome only upon a clear showing that land subject to flooding does not playa role in protecting one or more of the interests given above, and only upon a specific written determination to that effect by the Co~mission. 3.04 B. Hhen an Isolated Land Subject to Flooding or Land within 100 feet of Isolated Land Subject to Flooding is determined to be significant to an Interest Protected by the By-law, the following regulations shall apply: 1. Work on isolated wetlands and small ponds are subject to the regulations set forth in Section 3.03 (Ponds) and Section 3.02 (Vegetated Wetlands). 2. Projects on land subject to flooding shall be permitted only in connection with such procedures determined by the Commission as not having the effect of reducing the ability of the land to absorb and contain flood waters. 3. If such a site is available on the applicant's land, all septic tanks and leach facilities shall be located outside the 100 year flood plain. 4. Underground fuel oil or gasoline tanks, or tanks designed to hold any hazardous substances, shall not be permitted on land subject to flooding. 5. Proposed projects shall employ such safeguards as determined by the Commission to preclude ground water or surface water pollution triggered by flooding. 6. The Commission may require compensating or greater flood storage capacity in the same watershed if it permits any filling of land subject to flooding, and all filling of areas subject to flooding shall be strictly minimized. Except as stated in the preceeding sentence, no proposed projects shall be permitted to displace or direct flood waters, through fill or other means, to other areas. 7. Proposed projects in land subject to flooding shall use such procedures as the Commission determines will minimize their effect on wildlife. 8. The Commission may impose such additiona~ as are necessary to protect the Interests Protected ~ ~ o<-J~/y/~ ~~~ requirements By the By- 35 /m<<u/ ~ "I{ /fN. ~ /.. .- ~'111. Jil/j4 ~