HomeMy WebLinkAbout2015-6-17Minutes for June 17 2015, adopted Tune 24
CONSERVATION COMMISSION
PUBLIC MEETING
2 Bathing Beach Road
Nantucket, Massachusetts 02554
ww-w.nantucket- ma.gov
Wednesday, June 17, 2015 4:00 P.M.
Large Group Instruction Room, Nantucket High School 10 Surfside Road
Commissioners: Ernie Steinauer (Chair), Sarah Oktay (Vice- chair), Andrew Bennett,
Michael Glowacki, Ashley Erisman, David LaFleur, Ben Champoux
Called to order at 4:03 p.m.
Staff in attendance: Jeff Carlson, Natural Resources Coordinator
Attending Members: Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Absent Members: None
Late Arrivals: Glowacki, 4:09 p.m.
Earlier Departure: None
Agenda adopted by unanimous consent
I.
A.
11.
A.
1.
2.
3.
4.
5.
Sitting
*flatter has not been heard
PUBLIC MEETING
Public Comment — None
PUBLIC HEARING
Notice of Intent
SBPF - Baxter Road Area (Multiple) SE48 -2581 (Revetment project) (07/08/2015)
Lily Pond R.T. — 27 North Liberty Street (41 -158 Lot A) SE48 -2678 (Cont 08/05/2015)
Lily Pond R.T. — 29 North Liberty Street (41 -158 Lot B) SE48 -2677( Cont 08/05/2015)
Lily Pond R.T. — 31 North Liberty Street (41 -158 Lot C) SE48 -2679 (Cont 08/05/2015)
Duke 57, LLC — 55 Duke Road Lot 16 (56- 185.1) SE48 -2730
Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Recused
None
Documentation
Supporting documents and plans.
Representative
Brian Madden, LEC Environmental — Notice was initially filed in November and heard in December.
Reviewed the proposed project: construction of a new structure, demolition of the old structure,
construction a pool & patio surround, and construction of a detached garage. Within bordering vegetated
wetlands on the south and north portion of site. David M. Haines, Haines Hydrogeologic Consulting, and
Bruce Perry, Laurentide Environmental Consultants, have been out to the site and flagged the wetlands;
no work is proposed within limits. Structures are outside the 50 -foot buffer only a portion of the pool
fence is within the 50 -foot buffer. A landscape buffer is proposed at about 1,760 square feet (SF) which
will be mulched. Areas north and east of structures, we will maintain 3:1 side slope with blueberries, high -
bush blueberries and arrowroot to be planted. South of the structure, we have the ability to reduce the
slope to 5:1. Propose to restore 7,000 SF of wetlands. Will replant any disturbed /regraded areas with
purple love grass and fescue. Sub- surface infiltration is proposed to collect run off. Over 7,800 SF is to be
replanted with native brush and trees. Ground water is an issue so grading will maintain the separation of
the structure above that.
Public
None
Discussion
Erisman — Asked for clarification that only the top area is to be mulched.
Oktay — Asked about the pool fence material.
Madden — Typical black vinyl he believes; doesn't have those specs with him.
Erisman — Wonders if more wet meadows should be incorporated.
Madden — Is trying to avoid roto- tilling the ground.
Oktay — Confirmed the wetland flags are still valid.
Staff Have everything needed to close.
Motion Motion to Close. (made by: LaFleur) (seconded by: Bennett)
Vote Carried unanimously
6. APG/ DRS Realty Trust — 80 & 84 Wauwinet Road (11 -89.2, 28) SE48 -2749 (Cont 06/24/2015)
7. Four Saratoga, LLC — 14 Tennessee Avenue (60.1.2 -6) SE48 -2773 (Cont 06/24/2015)
8. The Great Harbor Yacht Club — 96 Washington Street Ext (55.1.4 -08) SE48 -2774 (07/08/2015)
Page 1 of 7
Minutes for June 17, 2015, adopted June 24
9. Nantucket Land Bank — 158 Orange Street (55 -61.1) SE48 -2784
Sitting
Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Recused
None
Documentation
Supporting documents and plans.
Representative
Paul Santos, Nantucket Surveyors — This project has changed/ expanded from the initial submittal;
Sitting
reviewed those changes to include, the proposed reuse of the elevated walkway and dock. This and the
Recused
abutting property used to have a shared walkway and dock; that is being split. The proposal is to construct
Documentation
a walkway on Nantucket Land Bank property land and constructed an elevated pier within the buffer
Representative
along the creek area. The dock requires a Chapter 91 filing; that will be done shortly. This is a public use
dock and under the square footage thresholds for the Army Corps of Engineers. The walkway will have
6X8 posts driven to refusal, be 3' wide, run from the lawn area to the newly constructed dock, laid out to
Public
maintain 1:1 ratio between the marsh and top of walkway, and spacing is 1/2" on the deck planking. A
Discussion(4:28)
small 6X6 timber retaining wall was damaged during the winter storms and will be replaced in kind. The
Staff
dock will have 8" diameter piles driven to refusal to support the dock structure, be 4' wide by 20' long,
Motion
and sloped to maintain 36" elevation over the marsh. Everything will be transported into the property and
Vote
work done by hand. Have the Department of Environmental Protection (DEP) number and Natural
11. *42 Union
heritage and Endangered Species Program (NHESP) letter. This has yet to go to the HDC. There was a
Sitting
reference to the Division of Fisheries (DF), asked if that had been received. Have not provided mitigation
Recused
or asked for a waiver as this is an in -kind replacement. He will follow up with the Fisheries.
Documentation
Rachel Freemen, Nantucket Islands Land Bank
Public
None
Discussion (4:16)
Oktay — Would like a silt curtain conditioned.
Staff
Have not received the DF letter but they are fast. Have everything needed to close.
Motion
Motion to Close. (made by: Bennett) (seconded by: Oktay)
Vote
Carried Unanimously
10. 181 Taurus Trust —181 Eel Point Road (33 -21) SE48 -2788
Sitting
Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Recused
None
Documentation
Supporting documents and plans.
Representative
Brian Madden, LEC Environmental — This is for the construction of a single - family dwelling, cottage,
and pool within 100 feet of a coastal bank. This was waiting for the Massachusetts Natural Heritage letter
which was received with no take.
Public
None
Discussion(4:28)
None
Staff
Have everything needed to close.
Motion
Motion to Close. (made by: Bennett) (seconded by: Oktay)
Vote
Carried unanimously
11. *42 Union
Street LLC- 9 Fayette Street (42.3.2 -28) SE48 -2792
Sitting
Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Recused
None
Documentation
Supporting documents and plans.
Representative
Don Bracken, Bracken Engineering, Inc. — The overall project is to convert the funeral home to a
dwelling, create a common drive, demolish and existing structure, convert and construct other structures
resulting in 4 dwellings. This particular structure faces Fayette Street. Elevation ranges from 5 to 4.5; not
proposing any grade changes and do anticipate runoff. Groundwater is at about 6 to 8 inches. There will
be dewatering; not proposing a catch basin but tying into an existing catch basin on Fayette Street.
Public
Diane Holdgate, 44 Union Street — Groundwater is actually about 3 inches. Right now the funeral home
has a sump that discharge continuously into that backyard. The addition of impervious surface will
increase flooding; the catch basin is not sufficient to handle the added water; Fayette Street is always
flooded in heavy rains. This will need something more than downspouts for the run off. Reviewed the
level of flooding during storms No Name and Juno.
Diane Coombs, 44 Union Street — In 1978 the road flooded and froze and the front of the foundation of
her house collapsed. During the repair it became apparent that there were some springs under the
basement. The water in these buildings are not just run -off, it is groundwater. Sump pumps run
constantly. A few years ago, 6 Fayette Street raised their back yard grade 1 foot exacerbating the problem.
If something is not done about the groundwater from 42 Union Street, the runoff will come into her yard.
Discussion (4:30)
Bracken — They can look at some issues and work with Department of Public Works about dewatering. It
does look like funeral home sits on springs; it will be on a crawl space with 5 elevation above grade. He
can look to tie in where the Union Street; that elevation is about 7.
Oktay — Explained that no basement above the groundwater is a small improvement; that water won't be
pressed out and away. Should get a calculation of current and proposed roof size and what the infiltration
chambers will look like.
Bracken — Asked for a continuance to 7/8.
Page 2 of 7
Minutes for Tune 17. 2015. adonted Tune 24
Staff None
Motion Continued to July 8 without objection.
Vote N/A
12. *Union Street Partners II, LLC- 42.5 Union Street (42.3.2 -28) SE48 -2793
Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Recused None
Documentation Supporting documents and plans.
Representative Don Bracken, Bracken Engineering, Inc. — There is a substantial amount of paving. He believes the
driveway materials are less impervious than the existing but he will run calculations and get back to
commission on the water table. Asked for continuance to 7/8.
Public None
Discussion (5:43) None
Staff None
Motion Continued to July 8 without objection.
Vote N/A
13. *48 SPR LLC- 48 Shimmo Pond Road (43 -79) SE48 -2789 (07/08/2015)
14. *White - 47A West Chester Street (41- 227.1) SE48 -2790
Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Recused None
Documentation Supporting documents and plans.
Representative Brian Madden, LEC Environmental. — Explained the project. The south side has a pocket wetland and
there are some wetlands to the east. The proposal is for a 472 SF addition on east side extending off a
front, narrow porch with stepdown stairs; it wraps around an goes over an existing bulkhead and bay
window, and adding an outdoor shower. All proposed structures are within exisiting lawn area and within
50 -foot buffer. There is a proposed pool and spa on the upper part of the property. A proposed 480 SF
detached garage will replace a 900 SF shed. A 480 SF cottage is proposed along West Chester Street with a
driveway outside the 25 -foot buffer hugging the zoning setbacks. There is a proposed pervious driveway
spur coming of the driveway within the 25 -foot buffer. The total square footage is a little of 1000 SF.
Proposing mitigation in replanting lawn existing within the wetlands and a small buffer with native brush
and scrape out and replant a remnant spur and replant; the total revegetation foot print is of over 1800
feet. The addition will be on crawl space with 2 -foot separation from groundwater. There is no further
reconfiguration proposed for the driveway.
Public Emily MacKinnon, Nantucket Land Council — Additional concerns include the prospect of asking for
waiver for construction of a structure within the 50 -foot buffer under a net benefit; the proposed
revegetation is being termed as a long -term net benefit. Questions revegetation at the north wetland line
because it is not clear if that clearing was ever permitted; she looked but could only find one permit that
didn't address clearing. Curious about when the permit for the driveway extension was issued. Wonders
also when the shed was permitted; couldn't find a history in the files. Vegetation is being asked for as
mitigation; she doesn't think the board wants to be restoring something that hadn't been permitted.
Sarah Alger, Sarah F. Alger P.C., for 47 West Chester Street — Ms MacKinnon summed up her client's
concerns. Use of land improperly cleared was part of previous enforcement order on this property. The
amount of work in the 50 -foot buffer is something this board has not permitted in other cases. Asked
about the pervious material to be used in the driveway and is it truly pervious or will over time it become
impervious.
Discussion (4:45) Discussion about replanting areas and existing trees.
Steinauer — The cottage shows an 10 -foot zoning setback. Wonders if Zoning Board of Appeals would
allow the cottage to be slid over a couple of feet away from the 50 -foot buffer.
Madden — Can add some mitigation planting on the south side. Can look at scaling back the cottage.
Oktay — Feels they are asking for a lot with the garage.
Madden — Willing to look at reducing the square footage of some of the construction. The porch does
hang over into the buffer. Asked for continuance.
Staff Looking at the plan, he doesn't see a fence around the pool; the building code requires that.
The commission should remember during evaluation, the vegetation is coming in with a waiver as a net
benefit; needs findings that relate to the construction as well. It still must be compliant with the
performance standards.
In regards to the driveway pull out, an enforcement action was submitted against that.
Motion Continued to July 8 without objection.
Vote N/A
Page 3 of 7
Minutes for tune 17, 2015, adopted June 24
15. *Wesquo Capital Partners - 57 Washington Street (42.2.3 -37) SE48 -2791
Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Recused None
Documentation Supporting documents and plans.
Representative Paul Santos, Nantucket Surveyors — For demolishing /removal of 2nd dwelling farthest from Washington
Street. Subject to land subject to coastal storm flowage; this is in excess from the coastal beach 100 -foot
buffer. No grade change will occur. Outside any NHESP map.
Public None
Discussion (5:05) None
Staff
Have everything needed to close.
Motion
Motion to Close. (made by: Bennett) (seconded by: LaFleur)
Vote
Carried unanimously
16. *MNP, LLC
- 17 Ames Avenue (60.2.4 -17) SE48 -
Sitting
Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Recused
None
Documentation
Supporting documents and plans.
Representative
Don Bracken, Bracken Engineering, Inc. — Septic upgrade within flood zone, bordering vegetated
Documentation
wetlands, salt marsh. Explained the septic system. Board of Health has asked to look at pressure
Representative
distribution system. If this is closed ask the conditions allow pressure distribution system. This is
proposed at 5 feet; want to try to get 6 feet. The use now is seasonal and prospective buyers intend to
keep it seasonal. Asked continued to 6/24
Public
None
Discussion (5:07)
Glowacki — He is not aware of pressure distribution systems holding up under seasonal use. They have to
Vote Carried unanimously
3. *LadyBird LLC - 8 Middle Valley Road (43 -160) SE48 -2609
Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Recused None
Documentation Supporting documents and plans.
Representative Arthur D. Gasbarro, Blackwell and Associates Inc. — Maintaining a 50 -foot, no- disturb zone on the
property. Overall project was for a residential development; this is to permit a pool and retaining wall
between the 50- & 100 -foot buffers. Everything else is the same. The grade is steep; that is the reason for
the two 30 -inch retaining walls.
Public None
Discussion (5:16) None
Staff Recommend this can be closed and issued.
Motion Motion to Close and Issue. (made by: Oktay) (seconded by: Bennett)
Vote Carried unanimously
Page 4 of 7
be restarted at ever season.
Staff
Can hold this for next week to get a file number and after the applicant meets with the Board of Health.
Motion
Continued to June 24 without objection.
Vote
N/A
B. Amended Orders of Conditions
1. Thompson-
14 Fargo Way (14 -17) SE48 -2645 (Cont 06/24/2015)
2. *Brett Gordon Trust -10 Bishops Rise (40 -42) SE48 -2390
Sitting
Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Recused
None
Documentation
Supporting documents and plans.
Representative
Don Bracken, Bracken Engineering, Inc. — Existing was for a previous owner; this is a completely
different lay out; had to go back to Massachusetts Natural Heritage, which approved the reconfiguration
with the same area of clearing. The building envelop protects the 50 -foot buffer. The lot rises up to a
knoll then back down northeast towards wetland; the area of construction is on top of the fairly level
knoll. Have a silt fence that will be staked out.
Public
None
Discussion (5:12)
None
Staff
Recommend this can be closed and issued.
Motion
Motion to Close and Issue. (made by: Bennett) (seconded by: LaFleur)
Vote Carried unanimously
3. *LadyBird LLC - 8 Middle Valley Road (43 -160) SE48 -2609
Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Recused None
Documentation Supporting documents and plans.
Representative Arthur D. Gasbarro, Blackwell and Associates Inc. — Maintaining a 50 -foot, no- disturb zone on the
property. Overall project was for a residential development; this is to permit a pool and retaining wall
between the 50- & 100 -foot buffers. Everything else is the same. The grade is steep; that is the reason for
the two 30 -inch retaining walls.
Public None
Discussion (5:16) None
Staff Recommend this can be closed and issued.
Motion Motion to Close and Issue. (made by: Oktay) (seconded by: Bennett)
Vote Carried unanimously
Page 4 of 7
Minutes for June 17 2015 adopted June 24
III. PUBLIC MEETING
A. Request for Determination of Applicability
1. Wright- 40 Pocomo Rd & Medouie Creek Rd (14,19- 37,01) Withdrawn
Sitting (5:20) Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Motion Motion to Accept the withdrawal. (made by: Glowacki) (seconded by: Champoux)
Vote Carried unanimously
2. *Jelleme - 27 & 29 Quaise Rd (26 -11 & 8)
Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Recused None
Documentation Supporting documents and plans.
Representative Arthur D. Gasbarro, Blackwell and Associates Inc. — Wetland boundaries set for previous approved
OofC. Only work outside exist foot print is 4" PVC pipe to tie into septic for office with bathroom; pipe
is about 45 feet from resource area within existing lawn area. Don't think there will be adverse impact.
Public None
Discussion (5:21) None
Staff Recomment this be issued as a Negative 3 allowing work within buffer.
Motion Motion to Issue. (made by: Oktay) (seconded by: Champoux)
Vote Carried unanimously
B. Minor Modifications
1. Thirty-Nine Hulbert LLC — 39 Hulbert Ave (29 -19) SE48 -2503
Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Recused None
Documentation Supporting documents and plans.
Representative Paul Santos, Nantucket Surveyors — Request is for placement of air - conditioning units along back side of
existing garage within land subject to coastal storm flowage and the 100 -foot buffer off a timber bulkhead.
Also asking to incorporate the proposed landscape plan. Access easement, beach easement, and kayak
storage are to be maintained.
Public None
Discussion (5:24) None
Staff
Recommend this be issued as a Minor Modification.
Motion
Motion to Issue. (made by: LaFleur) (seconded by: Champoux)
Vote
Carried unanimously
2. Hunter T.R
— 47 Cliff Rd (43 -43.1) SE48 -2753
Sitting
Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Recused
None
Documentation
Supporting documents and plans.
Representative
Mark Rits, Site Design Engineering — Request is for relocate the retaining wall to align with those on
properties either side; will be outside the 50 -foot buffer to coastal bank and top of bank. Propose a silt
fence.
Public
None
Discussion (5:30) None
Staff Recommend this be issued as a Minor Modification.
Motion Motion to Issue. (made by: LaFleur) (seconded by: Bennett)
Vote Carried unanimously
C. Certificates of Compliance
1. Dolphin Court Realty Trust- 6 Dolphin Court (42.4.1 -113) SE48 -2567
Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Staff Reviewed project. Project is completed and they have submitted the required monitoring reports. It is in
compliance. Recommend this be issued
Discussion (5:32) None
Motion Motion to Issue. (made by: Glowacki) (seconded by: LaFleur)
Vote Carried unanimously
2. Dobies- 22 Brant Point Rd (29 -157) SE48 -2668
Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Staff For construction within the flood zone. It is built in compliance. Recommend this be issued.
Discussion(5:33) None
Motion Motion to Issue. (made by: Oktay) (seconded by: LaFleur)
Vote Carried
Page 5 of 7
Minutes for June 17 2015 adopted June 24
3. James B, Crecca Revocable Trust (14 -37) NAN -118
Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Staff They are asking to invalidate the Order of Conditions. No future work will be under that Order of
Conditions.
Discussion(5:34) None
Motion Motion to Invalidate the Order of Conditions. (made by: Oktay) (seconded by: Erisman)
Vote Carried 6- 1 / /Glowacki opposed.
D. Orders of Condition
1. Duke 57, LLC — 55 Duke Road Lot 16 (56- 185.1) SE48 -2730
Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Staff Normal monitoring; added Condition 24 for Best Management Practices for removal of knotweed if it
comes up. There is a substantial revegetation plan. Photo monitoring of the revegetation is covered under
Condition 20. Will add Condition 25 asking for markers along the mulched area.
Discussion (5:35) Oktay — Wants photo monitoring of revegetation.
Erisman — Up top the mulch; wants a way to delineate between mulch and reveget6ation.
]Motion Motion to Issue as amended. (made by: Erisman) (seconded by: Oktay)
Vote Carried 6- 0 / /Glowacki abstain
2. Nantucket Land Bank — 158 Orange Street (55 -61.1) SE48 -2784
Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Staff He didn't prepare a draft as he didn't know how the discussion would go.
Discussion(5:41) Erisman — Need a Silt curtain.
Oktay — Photo monitoring of salt marsh to ensure it comes back.
Motion None
Vote N/A
3. Squam Partners LLC — 89 Squam Road (13 -3) SE48 -2785
Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Staff Staff — He crafted a denial. This needs to be issued today. He has a positive order prepared as well.
Discus sion(5:43) Steinauer — He doesn't think this is water dependent use connecting two upland areas. They have
alternative a route.
Oktay — Agrees Finding 3 should read "NOT a water dependent use."
Glowacki — Regulations define this walkway over a wetland as a water dependent use. His understanding
is that this application hinges on the more than negligible impact on wildlife; he doesn't argue that point.
Discussion about whether or not this walkway qualifies as water dependent use, citing state and local
regulations.
Oktay — Stated she had spoken with the crafter of the State regulation; he said the intent of water
dependent use is crossing over a wetland is to reach the water. This does not do that.
Erisman — This wetland is large without shrubs.
Staff — The narrative asks for waivers but this board needs to resolve that.
Oktay — Suggested adding that the purpose of the walkway is not reach water.
Majority agrees this does not qualify as water dependent use.
Oktay — Noted a typo.
Glowacki — Asks the commission to approve this project under the state regulations and deny it under the
local by -law. This application hits on four areas that in his opinion the commission has done wrong and in
which he hopes to improve the way the commission operates. Read a written statement (attached as
addendum) into the record addressing four areas of concern: the nature of technical advice the
commission receives; erroneous and inconsistent manner in which this commission applies standards;
inappropriate degree of wandering from meeting protocols; context and cost of compliance. He has the
DEP standards and wildlife and can't see how the DEP won't issue a superseding order due to lack of
evidence.
Oktay — She feels this board listened to all the evidence, and she can list three significant adverse impacts.
She feels the record is clear on that. There is no way this board could condition the project so as to have a
negligible impact. She doesn't support a split decision.
Erisman — It is up to the applicant to meet the burden of proof.
Steinauer — Mike Howard, Epsilon Associates said that in his opinion it would have no impact but he
didn't cite supporting evidence for that. Asked staff about a positive state and negative local.
Erisman — Cited the Page 13 of the Massachusetts Wildlife Habitat Protection Guidance for Inland
Wetlands in regards to findings that the project has no adverse impacts to wildlife habitat.
Steinauer — Asked for a sense of commission on separating. Majority does not support splitting.
Champoux — Asked if Ms Erisman's language can be added. There is a grey area in quantifying negligible
impact.
Bennett — Approved a driveway just down the road in proximity to the wetland.
Steinauer — This fails on the no- reasonable - alternative; they have a driveway.
Motion Motion to Issue as a Denial. (made by: Oktay) (seconded by: Bennett)
Vote Carried 6 -1 / /Glowncki onnosed
Page 6 of 7
Minutes for June 17 2015 adopted June 24
4. 181 Taurus Trust — 181 Eel Point Road (33 -21) SE48 -2788
Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Staff Per instructions, Condition 23 cites that all downed timber is to be removed from the area and alllowed to
revegetate naturally for two growing season. Waiver was for removal of one of the structures.
Discussion(6:25) None
Motion Motion to Issue as drafted. (made by: Champoux) (seconded by: Oktay)
Vote Carried unanimously
5. *Wesquo Capital Partners - 57 Washington Street (42.2.3 -37) SE48 -2791
Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux
Staff Couldn't think of anything additional conditions necessary.
Discussion(6:27) Steinauer - This is very straight forward.
Motion Motion to Issue as drafted. (made by: Champoux) (seconded by: Bennett)
Vote Carried unanimously
6. Discussion of other closed notice of intent public hearings.
E. Enforcement Actions
F. Other Business
1. Approval of Minutes: May 27, 2015, adopted by unanimous consent
2. Reports:
a. CPC, Erisman — Nothing
b. NP &EDC, Bennett — Nothing
c. Mosquito Control Committee, Oktay — Working on the contract and discussion with state.
3. Commission Comments
a. Erisman — In regards to Wildlife Habitat value questions, she would like to have an invasive species expert talk to
the board. Discussion about setting it up as a workshop.
b. Oktay — Got reports of illegal cutting in an area asked to be revegetated at the end of I Street at Tennessee Ave.
4. Application Fees — No discussion at this time.
5. Administrator/ Staff Reports
The regular meeting is next Wednesday, June 24, at 4 Fairgrounds Road in the Training Room, with the site visits
on Monday, June 22.
Motion to Adjourn: 6:35 p.m.
Submitted by:
Terry L. Norton
Page 7 of 7
2015 06 17
To: Nantucket Conservation Commission
From: Mike Glowacki
RE: 89 Squam Road Draft Denial
This Application Highlights four areas where Commission
needs to make improvements. The Denial OOC will not
stand — application is perfectly permissible under the Act.
1) Nature of technical advice Commission receives.
See the May 1, 2015 Report from Laurentide which conflicts with the statements Mr. Perry made at the
hearing: If the Wetland boundaries are correct, then the neighboring drive does not cross the same
wetland, it skirts the southern edge.
The report is all argument and opinion. Whether or not one agrees with the opinion, it remains opinion.
The report does not cite any basis in the regulations for the Commission to conclude that the
information provided by Epsilon Associates (4/29/15, pps 10 -11) is inadequate, misleading or incorrect.
Such technical basis is readily available.
For example, the Division of Fisheries and Wildlife "has determined that this project as presently
proposed, will not adversely affect the Actual Resource Area Habitat of state - protected rare wildlife
species. "
For further Guidance:
• One can look to the DEP standards in 310 CMR 10.00 section III "THE GENERAL APPROACH to
including Wildlife Habitat interests to the Wetlands Protection Act. "The Department has
attempted to keep the regulations from becoming overly burdensome, complex, or
expensive... especially for simple projects with minor effects on wildlife habitat. "And,
• "The addition of wildlife habitat interest does not mean that the mere presence of wildlife in a
resource area is enough to establish habitat value ". The guidance goes on to list and to describe
"significant features" and how their presence or absence may indicate whether or not a
resource area includes "important wildlife habitat ", qualifying as a protected interest.
• 310 CMR Section 10.55 (4) (b) allows the discretion for altering up to 5,000 square feet of
vegetated wetland, with appropriate conditions for mitigation. In discussing this provision in
310 CMR 10.00 section IV SUMMARY OF WILDLIFE REGULATIONS, DEP says "...performance
2015 0617 conservation commission 89 Squam rd
1
standards allow for no large scale alteration of such wetlands, and even small alterations (under
5,000 square feet) must be replicated.
With such guidance classifying a 5,000 square foot project as "Small scale ", what might the commission
expect of DEP in a superseding order of this size? Can there be any doubt? The commission's discretion
is bounded by the regulatory standard and by the context of DEP guidance under the Act.
When the court looks at how the commission came to a decision to deny this project under the Bylaw,
the inadequacy of the technical advice received is apt to weigh heavily. And with statutory authority to
have the applicant address any reasonable concerns that the commission may have, it is not acceptable
for the commission to rely on opinion over sound analysis. The commission does have discretion in
determining whether the project would result in a "greater than negligible change in the resource area
or one of its characteristics, functions or factors... ", but that discretion is not without limits. Thus far,
we have as a basis for denial in this application: "I know" and "Common Sense" and unnamed "Scientific
Studies have shown" and an opinion piece in the New York Times that was submitted after the
submission deadline, and seen by some of the commissioners, and then not included in the record. An
unimpressive record in the light of the applicant's submittals and the detailed DEP guidance available.
Do we just not want to go where the facts and standards take us?
The "no build alternative" is a violation of the local regulations as adopted under the Bylaw, and the
commission must require its consultant to acknowledge the language of section 1.03 — F. 3 (A): "no
reasonable conditions or alternatives that would allow that project to proceed in compliance with the
regulations ". Roberts is unequivocal on this point (Roberts XI, Chapter 1 P 19, 1 10). The subsequent
argument that this standard does not apply because it would allow any project is a false argument. This
standard IS the standard — it is not optional. It would allow only those projects that the commission
finds have no adverse impact (greater than negligible... etc. AND no reasonable alternative that will
allow that project to go forward).
This application hinges on whether there is reason to believe that that it would result in a "Greater than
negligible change in the resource area or one of its characteristics, functions, or factors that
diminishes the value of the resource area..." If that is so, there should be something in the record that
identifies the change.
2) Erroneous and inconsistent manner with which
Commission (repeatedly) misapplies published regulatory
standards.
When exercising the police powers of government to limit individual freedoms in the public interest,
government agencies need be accountable to objective standards.
"Reasonable Alternative ": This standard and the context, within which this standard is assessed, are
applied separately, and with differences under the Bylaw and under the Act. Under the Bylaw (1.03 F 3
a) the standard is: no adverse (greater than negligible) impact and no reasonable conditions or
alternatives that would allow that project... Negligible (small enough to be disregarded) Impact is not
2015 0617 conservation commission 89 squam rd
2
interchangeable with No Impact. Under the Act, (310 CMR 10.53 3) limited projects, except those with
adverse effects on rare species, may be permitted. The issuing authority does have discretion to
consider reasonable alternatives to the proposed project (within a context of DEP guidance on scale
and on impacts). Much of that guidance speaks to projects on the scale of highway interchanges and
airport projects. DEP specifically calls out projects involving 5,000 square feet or less, as "small"
projects, permissible with replication. The DEP is going to approve this project under the wetlands
protection act.
No Build Alternative: Does not exist as an alternative that will allow that project to proceed. See
above on technical advice. Let us please follow the adopted standards. The discretion under the Bylaw
comes to adverse (more than negligible) impacts as defined by regulation.
Fear of "Precedent ". This is articulated through the meetings and in the written record. It is the
antithesis of objective review. If an applicant presents an approvable project, one might expect an
objective review would culminate in approval. One's personal distaste for such a project ought not to
encourage a less than objective review, according to the adopted standards. This unwillingness to go
where an objective review takes us is the stuff of intolerance and bigotry.
The Frequent Fallback denial position citing "Scientific Studies have shown..... ", requires reference to
such named studies so that an applicant might address the findings of whichever study commissioners
believe shows that adverse impacts are likely. In thinking this through, I have found a number of studies
offering proof that the world is flat, after all, and that the moon IS made of green cheese.
3) Inappropriate degree to which the Commission
wanders off of the adopted meeting protocols.
Jumping straight into an argumentative attack w applicant at first opportunity, before applicant has had
an opportunity to fully explain how the application meets the established standards.
Labeling the inconvenient question (What basis do we have for conclusion of adverse impact? ) as
"argument" is tactic of the bully. Chair shut that question off at the hearing. Commission would have
done much better to realize we need articulate a coherent basis for denial under the regulations. Do
the less vocal commissioners choose to acquiesce in such tactics ?
Insistence becomes shrill when the logic of an adversarial argument does not stand. Most applications
received do provide the necessary information for approval. The commission needs to articulate which
standards require further information (whether there is a litigation firm present at the hearings or not).
All applicants are entitled to fair treatment.
4)Context: Cost of Compliance.
Overly burdensome conditions and procedures contribute to mindset that seeking forgiveness is more
expedient than seeking permission. We invite a loss of public support for regulatory standards.
2015 0617 conservation commission 89 squom rd
3
At 89 Squam, the proposal is for enormously more costly project than initially conceived. Regulatory
permitting is adding tremendously to cost. Two technical teams, a legal team and an appellate legal
team are on the case since last October. Here is an applicant with the will and the resources to exercise
their rights to an objective review, and who has shown they will not be bullied. Voting a denial with so
little to back it is going to paint the commission as environmental bully, NOT as environmental
champion.
This commission has sadly fallen into the habit of abusing the limits to its discretion, and relying on the
time and expense involved in an appeal process to intimidate applicants.
Attachments:
Laurentide May 1, 2015
Nantucket Land Council May 7, 2015
310cmr 10.00 wildlife habitat standards
Chapter 136 Nantucket Wetlands Bylaw
310cmr 10.53 3 J Limited Projects
2015 0617 conservation commission 89 squam rd
4
Laurentide Environmental, LLC
14 South Shore Road
Nantucket, MA 02554
e -mail: laurentideenvironmental @comcast.net
Field Inspection Report
Date: May 1, 2015
Applicant / Owner: Squam Partners, LLC
Location: 89 Squam Road
Agent: Blackwell & Associates - Art Gasbarro
(508) - 332 - 9722
Comments: Developed lot off Squam Road acquired by the applicants in
November 2010. Access to the existing dwelling is by driveway easement on the
neighboring property - 87 Squam Road. Both properties have a number of
Commission actions over the years to allow the development that has already
occurred.
The wetland boundary that has recently been re- flagged is correct. X *N -
The proposed project request the construction of an elevated walkway
through the vegetated wetland, a walkway on the undisturbed buffer zone, and the
construction of a replication area to compensate for the alterations to the vegetated
wetland.
A narrative and project justification is contained in a document by Epsilon
Associates included as part of the NOI.
A waiver request has been submitted as part of the NOI.
Both the Epsilon and the waiver request documents down play the
permanent wetland alterations of the project in both the vegetative changes and the
wildlife and wildlife habitat adverse impacts.
Project narrative (Epsilon document):
The path proposes to go through a mature shrub swamp (10 -12 feet high) by
cutting the wetland shrubs to near ground level and constructing the walkway on
top. All these cut shrubs will be permanently altered and if they do survive the
cutting, they will never be higher than 30" tall as they will be continually be cut
below the walkway's elevation. The narrative even anticipates that the shrubs will
be replaced with lower growing vegetation. (page 2)
I
o D l✓-? 5SA-�. b.4i7q)
The path will alter a minimum of approximately 560 sq. ft of wetland,
permanently, and an additional 600+ sq. ft. temporarily through cutting.
The narrative assumes that the mature shrubs cut as part of the initial
clearing and that are outside the walkway footprint will grow back to their pre -cut
condition. Further discussion needs to be on the likelihood of 100% survival of
these cut shrubs and how long to would take for the wetland shrubs to grow to their
pre - altered state.
The narrative fails to discuss the impacts of habitat fragmentation from the
project. (page 10 -11) The project goes through the middle of the wetland and the
25 -foot buffer zone. Even the proposed replication area is fragmented by the
project. I do not see how these ermanent impacts can be mitigated by the proposed,
replication area. S K-- IJ t � 'V%- F\W > A. � ' f, oz— S i AZ.� I VA G apt ,,,\ -
Waiver requests and rationale:
The waiver requests that the purpose of the project is to provide access
between the cottage and the main dwelling. The applicant has perfectly passable,
valid and legal access along the existing driveway. The problem to the applicant is
that the access is on the neighboring property. However, this is not a new condition.
It was present when the applicant bought the property.
The rationale to avoid an alternative analysis is myopic at best. It misses both
the intent and reasoning behind the alternative analysis as part of granting. In v��"c��E�
addition, the no -build alternative is always part of the discussion prior to granting a
waiver. If this project is not built, the applicant would still have legal and valid
access to both the existing dwelling and the unconstructed cottage. It is not NC,0 OL
unreasonable to use it. 1 �" S 8,000 _
Questions and Recommendations: 711V
As discussed above, the proposed project will have a permanent, greater that
negligible adverse impact on the vegetated wetland and its resources.
Inspector: Perry
Board of Directors
Nantucket Land Council, Inc.
Six Ash Lane
Post Office Box 502
Nantucket, Massachusetts 02554
508 228-2818
Fax 508 228 -6456
nlc @nantuckedandcouncil.org
w,%-wnantucketlandcouncil.org
Lucy S. Dillon
May 7, 2015
President
Paul A. Bennett
Dr. Ernie Steinauer, Chair
Vice President
Nantucket Conservation Commission
William Willet
Vice President
11 Bathing Beach Road
Howard N. Blitman
Nantucket, MA 02554
Treasurer
Susan E. Robinson
Re: NO]; Squam Partners LLC, 89 Squam Road (Map 13 Parcel 3)
Clerk & Assistant Treasurer
Karen K. Borchert
Dear Commissioners,
Larry Breakiron
William S. Brenizer
The Nantucket Land Council, Inc is a 501(c)(3) member supported non - profit organization.
Karen K. Clark
Sara P. Congdon
We have reviewed the Notice of Intent filing by Squam Partners LLC for the construction
William M. Crozier, Jr.
of a boardwalk at 89 Squam Road. We would like to make the following comments.
Philip B. Day
Christine Donelan
Robert Friedman
The application includes a proposal to construct a boardwalk through a bordering
Nancy Gillespie
vegetated wetland on the subject property. The property contains one single family
Wade Greene
Mary Heller
dwelling in an upland area to the east. A previously approved permit allows the
Charles A. Kilvert III
Laurel Ried Langworthy
construction of a second dwelling on an upland area to the west, abutting Squam Road.
Matthew B. Liddle
The area between these two upland locations contains a bordering vegetated wetland
Peter McCausland
Eileen P. McGrath
that completely bisects the property.
Paul P. Moran
Carl H. Sjolund
REGULATORY COMPLIANCE
H. Brooks Smith
James W. Sutherland, Ph.D.
Peter Watrous
Under the Nantucket Wetland Protection Regulations the boardwalk requires a waiver
g q
Jon Wisentaner
from Section 3.02 131 which mandates: at least a 25 foot natural.undisturbed area
Honorary Directors
adjacent to vegetated wetlands and that structures which are not water dependent shall
Jean Haffenreffer
be at least 50 feet from a vegetated wetland.
Suzanne Mueller
The applicant is requesting a waiver under Section 1.03 173a of the Regulations stating
Staff
that: the proposed project will not adversely impact the interests identified in the Bylaw
C Collier
and there are no reasonable conditions or alternatives that would alto that proje to
cuti
Executive Director
proceed in compliance with the regulations.
Emily L. MacKinnon
Resource Ecologist
q�
t T t� 6 'r ,4 .iT ST4A1,o v f y"�' /� re) , .A� k- f 6
! ��-N
Linda Spery
Development Director
me 10/00 05;zb �f2
Ems Hudson.. _ _ ._
_._ ............. _,
Developmenl,+Ncwatatucket Land Council, Inc
Planning • Protecting • Preserving
Wildlife Impacts
A letter was submitted from Epsilon Associates evaluating the impacts of the proposed boardwalk on
the surrounding bordering vegetated wetland and its interests as protected by the Regulations. We
disagree with the letter's conclusion that the project will have a negligible impact on wildlife and
wildlife habitat. The construction of a permanent 135 foot long, 3 foot wide boardwalk through the
middle of this vegetated wetland will have a definitive impact on wetland vegetation and the wildlife
it supports. The Regulations presume that the resource area and its buffer zone are significant to the
protected interests and therefore prohibits structures from being built withjll.ihem. ---
T�' /S 1S AA.1 A P_G uM 6� i9419 141.51 0&,r &4l 1 !�/
To the best of our knowle ge :1"t Con Com has never permitted a non -water dependent boardwalk such /
as this through a wetland to two area Ian In addition to the impacts on this site, if the
Commission determines there is no impact from this pr ' ct, it will set a precedent for the construction
of more boardwalks bisecting DVWs and other important wetland habitats. This gradual fragmentation
of habitat will lead to far greater cumulative impacts than those from an individual project.
Alternatives Analysis ';� MI5 5; .4fL/5 '1 H E :9rAA -b-'i A 441 JJ'
As part of the waiver request the applicant must prove that there are no reasonable alternatives. The
applicant provides an alternatives analysis for the proposed boardwalk, but suggests that it is
appropriate to ignore the purpose of the project (provide access to the eastern portion of the property).
This is illogical. The purpose of the project must be considered in order to evaluate alternatives.
The property was purchased by the current owners with a pre- existing easement (see attached)
granting use of the driveway on 87 Squam Road to access the eastern portion of their property in
perpetuity. This is the access they purchased the property with. The application for construction of a
second dwelling on the western portion of the property did not consider crossing the wetland. The only
access between dwellings was across the driveway easement on 87 Squam Road. This Is clearly a
reasonable alternative to the boardwalk being proposed.
CONCLUSION
The application before the Commission is for the construction of a boardwalk through an undisturbed
vegetated wetland. The boardwalk will have a negative impact on the surrounding wildlife and wildlife
habitat and there is an existing reasonable alternative. The waiver required for this project can not be
met.
Thank you for your time.
Sincere ,
Emily Ma in n
Resource Ecologist
Enclosure
21Nantucket Land Council, Inc.
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
PREFACE TO WETLANDS REGULATIONS RELATIVE
TO PROTECTION OF WILDLIFE HABITAT
1987 REGULATORY REVISIONS
I. INTRODUCTION
Under a recent amendment (St. 1986, c. 262) to the Wetlands Protection Act, M.G.L. c. 131,
§ 40, wildlife habitats added to the interests protected by M.G.L. c. 131, § 40. Wildlife habitat is
defined in M.G.L. c. 131, § 40 to mean:
"those areas subject to (M.G.L. c. 131, § 40) which due to their plant community composition and
structure, hydrologic regime or other characteristics, provide important food, shelter, migratory or
overwiotering areas, or breeding areas for wildlife. "
Pursuant to the rulemakmg authority set forth in M.G.L. c. 131, § 40, the Department of
Environmental Protection is promulgating additional regulations, after public comet nt, to protect this
additional interest.
II. THE RULEMAKING PROCESS
During the entire period that its proposed regulations were in preparation, the Department had the
benefit of advice and consuhation from knowledgeable groups and individuals, most particularly
representatives from the development and environmental communities, as well as w0ife and wetland
scientists. Where consensus was attained and deemed consistent with the Departmenf s rrsponsibrlitie�
under M.G.L. c. 131, § 40, the proposed regulations reflected it; in other instances, the Department
weighed conflicting points of view and close a course ofaction that it its judgement best served both
the public interests identified it M.G.L. c. 131, § 40 and private property rights. The proposed
regulations were then subject to public comment at four Public Hearing held around the state, as well
as through extensive written submittals. These comments were caref* weighed by the Department
and, in many cases, incorporated into a revised version of the regulations. As required by M.G.L.
c. 131, § 40, these regulations were submitted to the Clerk of the Massachusetts House of
Representatives for forwardaug to the Joint Committee on Natural Resources, 60 days prior to their
Bing with the Secretary of State for final promulgation The effective date of these regulations is
November 1, 1987.
To briefly summarize the lengthy process by which the regulations were prepared; in The 1986
amendment to M.G.L. c. 131, § 40, the Legislature mandatedthe establishment ofa technical advisory
committee ('TAC') consisting ofa university wildlife biologist; staffmembers from the Department of
Fisheries, Wafidl& & Environmental Law Enlorcement, Department of Public Works, and Office of
CoastalZone Management; a member of the Massachusetts Horreburldens Association; a member of
the Massachusetts Association of Conservation Commissions; a member of the Massachusetts
Audubon Society; a member ofthe NationalAssociation ofIndustrial Office Parks, Boston Chapter,
and a general connector, to advise and assist the Department in drafting proposed regulations.
Numerous meetings of the TAC were held to discuss key policy issues. In addition, a six person
Scientific Advisory Subcommittee was formed to identify the wnldid'e habitat characteristics and
fiinations of each wetland resource area, upon which scientific information the proposed regulations
were based. Marry other scientists, consultants and individuals were contacted informally by the
Department during this time period for their advice and opinions.
The Department proposed regulatory revisions on May 5, 1987, and held three Informational
Meetings around the state to explain the draft regulations on May 12, 14 and 19; four Public Hearing
to receive public comment orally on May 26 and 28 and June 2 and 4; and accepted written comments
fromthe public on the proposed regulations until June 12, 1987. The regulations reflect the benefit of
these commernts.
10/24/2014 310 CMR 10.00
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
10.00: continued
III. THE GENERAL APPROACH
The regulations are based on a number ofimportant principles. The Department has attempted to
keep the regulations from being overly burdensome, complex or expensive for conservation
commissions and applicants, especiallyforsnIdPtojectswithmmorefictsonwildb %habitat Nonew
fees are proposed in these regulations. The Departnent has also tried wherever possible to maintain
the existing regulatory structure, except where protection ofw>ldlifehabitat requires procedures which
are not needed to protect other interests alone. Most importantly, the regulations are based on the
definition of wWffi habitat contained in M.G.L. c. 131, § 40 (see 'T. INTRODUCTION" to this
Preface).
Prior to enactment of the wildlik amendment to M.G.L. c. 131, § 40 by the Legislature, the
Department and most ofthe other interest groups which were party to the legislative debate agreed to
the 'Solent" of a "preamble ", "explaining the eh'ect of this amendment upon the Wetlands Protection
Act" Althoughmt legally binding the Department believes that this'preamble" represents an accurate
interpretation of the statutory language (especially the statutory definition of'wvtldide babitafD as well
as the legislative intent. Consequently, the Department has drafted these regulations to be filly
consistent with this 'j reamble ", which is quoted as follows in its entirety:
It is important to make clear what it means to have added the wildlife habitat interest as an eighth
interest in M.G.L. c. 131, § 40. It does not mean that the geographic jurisdiction of the
conservation commission or the DEP is increased. The resource areas that are pnotectable under
this statute stay the same, only the reasons for their protection are different by adding this wildlife
habitat value. In other words, this amendment does not make M.G.L. c. 131, § 40 a wildlife
habitat protection statute. It is still a wetlands protection statute. The presence of wildlife habitat
on upland (wfh no resource areas) does not give the conservation commission or the DEP power
to control the work therein not altering resource areas.
The addition ofthe wildrk habitat interest likewise does not change the work or activities that are
regui table larder the statute. There still must be dredging Sp¢ig removing or altering ofa resource
area to trigger jurisdiction ofthe conservation commission or DEP. In other words, the amendment
does not increase the scope of activities regulatable, but rather adds another reason for the
conservation commission or the DEP to ask for information about the work and set conditions.
The addition of the wildlik habitat interest also does not change the role or authority of the
conservation commission or the DEP in regard to work in the burr zone. The applicant still has
his option to & either a Request for DewrminatiDn (RFD) or full application (NOI) and the issuing
authority still has the task of deciding if the proposed work will alter resource areas. Commissions
still may issue negative determinations if satisfied that precautions in the project have been taken
so that there will be no alteration of resource areas. In other words, work in a wildlife habitat
found in the buffer zone (not altering resource areas) does not trigger jurisdiction to require a fiA
Notice of Intent.
The addition of the wildlik habitat interest does not mean that the mere presence of wnldlde in a
resource area is enough to establish habitat value. An amendment to the bill during passage makes
clear that something else is necessary, namely the presence ofa'plant commnty composition and
structure, hydrologic regime, or other characteristic' providing significant katures for wild*. In
other words, the amendment does not mean that there is a wildlik habitat value to the resource
area just because some creatures have been seen there. Instead its the presence of plant
community, hydrologic or other characteristics that is determirdtive. The statute protects habitat
value not wildlife per se.
10/24/2014 310 CMR 10.00
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
10.00: continued
Furthemore, the presence of these characteristics establishing woffe habitat does not mean that
it is automatic that every resource area is significant to wHdlil'e habitat. The amendment to the bill
during passage makes it clear that the features present must be enough to 'provide important flood,
shelter, migratory or overwintering areas, or breeding areas for wildlife.' In other words, the
definiion of wrld}ife habitat sets a threshold for a resource area to be significant for wi ife habitat
It must be significant for the particular reasons stated in the definvtion: food, shelter, migratory or
ovenvmtering areas, or breeding areas.
Each point in this 'preamble" is reflected in these regulations. The geographical jurisdiction of the
regulations is in no way increased beyond the resource areas as previously defined, despite the urging
of many individuals and organizations that the Department extend the regulations to cover all "vernal
pool" amphibian breeding areas, even those outside current resource areas. The regulations do not
change any rules regarding uplands or bufl'er zones, nor do they'Wrease the scope of activities
regulatablc ".
Most importantly, the regulations foflows a strict interpretation oftbe statutory definition of"wml*
habitat ", consistent with the agreement expressed in the preamble. Unlike the other interests protected
under the M.G.L. c. 131, § 40, the term "wnldlife habitat" s defined in the legislation Wit * habitat
means those resource areas which, due to certain physicalcbarecterstics, provide 'kWortant" wildTde
habitat firctioffi 4e.,Uportant fn0d, shelter, migratory oroverwihberingareas, or breeding areas for
wildlife'). Thus while resource areas are presumed to be significant to the protection ofother interests
whenever they play a role in protecting the interest, a particular site rust play a role in providing
important wills habitat factions, and must do so because ofthe presence ofspecific physicalhabitat
characteristics, in order to warrant a presumption of s4oificance under the new wfldl* regulatiDw.
The regulations specify what these physical habitat characteristics are and what are (and are wt)
to be considered '"enportant" wiid* habitat finhctions a each resource area This information is
reflected throughout the regulations: in the 'Preamble ", 'Presumptions of Significance" and
'Performance Standard" contained in the regulations for each resource area, as well as in the special
provisions far'4are" wrildlite species (3 10 CMR 10.37 and 10.59) and, for inland resource areas, in
310 CMR 10.60 "Wid}ife Habitat Evaknations ". The Department firtihermore intends to anipldy upon
the complex wildlife habitat characteristics and fnctons ofresource areas through additional policy
guidances. It is only Fbr specified habitat characteristics and the 'Itiportant" wnldlifi: habitat fractions
they serve, that presumptions of sgaificance and performance standards are to be applied. These
provisions reflect the following understanding of the statutory definition of whldli& habitat:
A. By bang the definition of wildlife habitat to include only those areas which "due to (certain
physical) characteristics" provide '%Vortant" wildlife habitat fimctiDw, the Departinent believes the
Legislat re meant to protect onlythose wildlife ball tats which, though they may sometimes be present
elsewhere, are particutarlypn valut and/or valuable it wetland resource areas. The scientific literature
indicates that virtually everything except concrete, provides habitat for at least some wildlife species,
yet the Department does not believe it was the intention ofthe Legshture to protect lawns, cemetai-cs,
golf courses, landfils, or wildlife habitats which typify "upland" areas, just because they happen to be
located in wetland resource areas. Based on detailed scientific assessments ofthe wildlife habitats
found in each resource area, certain resource areas (or portions ofresources areas) whichare generally
lacking in special wetland wildlife habitat characteristics and finctions, are not presumed in the
regulations to be significant to the protection of whikI fe habitat For those resource areas which are
presumed significant, only specified wnldlife habitat characteristics and functions are protected.
1220/02 310 CMR - 443
10/24/2014 310 CMR 10.00
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
10.00: continued
B. By requiring the protection only of'Iiniportant" wildlife habitat fimctions (rather than wildlik, per
se), the Departmentbekves the Legislature did not intend for the Department to tryto save every finod
source, breeding site, etc. for eachindividualan mal. Instead, the Department believes the Legislature
mes>tto protectwetlauxl habitat which is important to wildlife frroma regional or statewide perspective.
Therefore, the regulations allow alteration of smd amounts of wildlife habitat in most resource .areas.
For those portions of inland resource areas found to be sil;nificarit to the protection ofwildr& habitat
(except bordermigveptated wetlands), the regulations refiect the Departmeds concision that small,
one time altutrations ofup to 10% ofthe remaining wetland wildlife bobcat on a given lot will not harm
"important" wildlife habitat frmcdons, and that temporary disruptions of other wildlife habitat is
permiissrble so long as its inportannt wildlife habitat fimctiaons are substantially restored or replicated.
Certain "water dependent" projects (which the Department believes will be relatively uocornuon in
inland areas as compared to coastal areas) may also be allowed to proceed at the discretion of the
issuing authority under a reduced per&rmrance standard without major i Tacts on 'important" wOdlit
habitat fiuections of wetland resource areas in the Commmvealtb. Because most 'li nportart" wildlife
habitat it coastal areas is more livied than that in inland areas, the Department has only set a reduced
performance standard in some coastal resource areas fDr 'water - dependent projects ", those uses and
finalities which require direct access to, or location in coastal waters and which therefore cannot be
located away from such waters. By requiring such projects to mloarrae adverse e&-cts on wildlife
habitat, while allowing most other projects (m matter howsmall) to have no adverse effect, "innportane,
wildlife habitat fimctions of coastal resource areas will be adequately protected. However, because
wetland wildlife habitat ofrare, officially " state - listed" species is always Iportant" mboth coastal and
inland areas, the regulations permit no adverse effects whatsoever on this habitat
.Another alternative for protecting "inportant" wW fe habitat fimctions would have been to protect
only those specific sites which are of a "bW' value lor wmldliie. The Department considered, but
ultimately rejected this alternative. Unfortunately, what is excellent habitat for one species is frequently
inadequate for another. For this and other reasons, scientists are currently incapable of setting
objective standards for rating the relative value to aflwildlife (nanniriab, reptiles, birds, and arrphibians)
of sites within most wetland resource areas. Furthermore, without a comprehensive survey of all
wetland wMf& habitat in the state (which would be prohibitively time- consrrnmrg and expensive), it
would be impossible to design a cut- offpoit for determining when a site is or is not of sufficiDr* high
value to be considered " iWortant". Instead, the regulations generally require no adverse e&cts on all
the "Irnportaat" wildlife habitat fiutnctions existing at eaclrproject site (except for certain small alterations
or specified project types in some resource areas). Those sites providing low valuable wildlife habitat
fimctions will simply have less to protect than sites that are rich in i Wortart wildlik habitat fimetions.
C. Bynot defir>logthe term 'wrldli6e ", the Department feels the Legislature intended that no preference
be given to any particular wildlti'e species over any other . Consequently, the regulations protect
equally all mammals, birds, reptiles, and arriplihiars for which a resource area provides important
wildlife habitat fimctions. Fisheries (except for specified 'Pare" species) are not directly protected by
most of the regulatory revisions, because current regulations already contain provisions protecting
fisheries. Since the habitat needs of most invertebrates overlap those of vertebrate wmM fe and
fisheries, the Department fe$ it was not necessary to set separate standards to protect invertebrates,
unless they are officially designated rare species in need of specialprotections. Furthermore, the goal
of protecting all wildffc species equally led the Department to promulgate regulations which, within
certain Tints, requ re the maintenance ofexisting wildlilo habitat characteristics and fimctions, rather
than allowing development projects to substitute habitat characteristics which, while perhaps helping
some species, could harm others.
12/20/02 310 CMR - 444
10/7.4!2014 310 CMR 10.00
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
10.00: continued
IV. SUMMARY OF WILDLIFE REGULATIONS
A. PnsmVtlons of SWificance. A presumption is created that the folbwing coastal resource areas
are significant to the protection of wildlE habitat: Land Under Water, Coastal Beaches; Coastal
Dunes; Barrier Beaches; Rocky Intertidal Shores; Salt Marshes; and Land Under Salt Ponds.
Presumptions of significance are also made for all inland resource areas, though only for portions of
Land Subject to Flooding. For Bordering Land Subject to Flooding, only those areas are presumed
significant which have not been extensively altered by human activity; firthermore, except for vernal
pool habitat (which is critical to certain amphibians), the presumption is limited to areas on the 10 -year
800dplain orwithin 100 feet of the bank or bordering vegetated wetland (whichever is firther from the
waterbody). Withinisolated LAW Subjectto flooding, only ven alpoolbabitatispresumed significant
to the protection ofwildlife habitat. Veinal pools are presumed to exist, however, only when certified
and mapped by the Massachusetts Division ofFisheries and Wildlife.
Like the presumptions ofsignifimme found in current regulations reganlingotherioterestsprotected
by M.G.L. c. 131, § 40, presumptions regarding wrldlili: habitat are generalimtions based on a generic
study ofeach resource area. (As noted above, however, imlike presumptions ofsignificance regarding
other statutory interests, presumptions regarding wnldl* are predicated on a statutory definition which
requires the presence ofcertain physical characteristics providing important wildlik habitat fiioctions.)
The prima facie force of the presumption can be overcome by the introduction of sufficient evidence
to the contrary; that is, by a showing that the resource area in question fi=tbns atypically.
B. Performance Standards. For coastal resource areas, little orno change inperforrnance standards
are made for Dunes, Salt Marshes or Land Under Salt Ponds. Ibis is because existing standards for
fisheries and otheriuterests protected byM.G.L. c. 131, § 40 are genetaIlyadequate to protectw>'Idbfo
habitat as well Only minor changes are made in performance standards for water - dependent projects
on Land Under the Ocean, Coastal Beaches, Barrier Beaches, and Rocky Intertidal shores. New,
stricter performance standards, however, are set for non- water- dependend projects icnthese resource
areas. Such projects may have m adverse effects on specified wkl* habitat characteristics.
In addition, conservation commissions or the Department may allow maintenance, repair, and/or
improvement (but not substantial enlargement) ofcertain projects such as ex istingroadways, structures
and road drainage facilities in coastal resource areas, subject to whatever conditions are deemed
appropriate.
For aR resource areas (coastal and inland), no project may have any adverse effect on the local
Population of a rare, 'state- listed" vertebrate or invertebrate animal species, where tfie project is
located within the habitat of such species. These habitats are only presumed to exist where mapped
bythe Massachusetts Naturalflentage and Endangered Species Program. These areas make up only
a small percentage of the land subject to these regulations.
For inland resource areas, no changes in performance standards are made for bordering vegetated
wetlands (with the exception of special provisions for rare, state -fisted species, described above),
because exnstengperkmnance standards allow no large scale alteration ofsuchwe*Mds, and evensmal
alterations (under 5,000 sq. 8.) mist be replicated. For other inland resource areas, project size
"thresholds" of 10% ofthe wildlife habitat on each lot (with a maxanunthreshold on each lot of 50 feet
ofBank and 5,000 sq. fl. of Land Under Water and Land Subject to Flooding) are established, below
which projects are allowed without being considered to impair their capacity to provide important
wfldr& habitat functions. Such thresholds do not apply to critical "vernal pool (amphibian) habitat" on
Land Subject to FLooding. Moreover, once this threshold of the wnildMe habitat on a lot has been
altered
1220/02 310 CMR - 445
10/22412014 310 CMR 10,00
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
10.00: continued
after November 1, 1987, all future projects on that lot (no matter how small) must meet the same
performance standard as applies to larger (above - threshold) projects: no adverse effects on wit *
habitat. This performance standard (which applies to inland Banks, Land under Water, and those
portions ofLand Subject to Flooding found to be stnificantto the protection ofwlld* habitat) forbids
alterations of specified habitat characteristics found at the site, insofar as such alterations will after two
(2) growing seasons substantially reduce the pre - project habitat value. Applicants must present
evidence from a wildlife biologist or similar professional that this standard will be met. Replication of
altered habitat off site is permitted, but under a number of strict conditions.
Just as the regulations impose less stringent performance standards regarding protection of wildlife
habitat on "water- dependent" projects in coastal resource areas, the new inland regulations establish
a '%i*ed project" status for water - dependent uses. As with other kneed projects in inland resource
areas, the normal performance standards are suspended and the issuing authority may issue an Order
of Conditions along with'l;uchconditions as willcontribute to the interests identified in M.G.L. c. 131,
§ 40" for water - dependent uses. However, unlike other limited projects these uses remain subject to
the existing performance standards for bordering vegetated wetlands, flood control and storm damage
prevention, and they must miturnae adverse impacts on other statutory interests for wtwheach affected
resource area is found to be significant This new 1m>ded project status was deemed necessary by the
Department in light of the significantly stronger performance standards being imposed on most larger
projects by the new wildlde habitat regulations.
V. ISSUES OF MAJOR CONCERN
Public comment on the Department's proposed lower wetlands /wrldUe regulations was extensive.
While most commentators generally supported the proposed regulations, there were also many
suggested changes. The following represents a summary ofthe most common issues ofmajor concern,
and the Department's response thereto as reflected in the final regulations:
A- Presumptions of Significance. cep. There was some strenuous opposition to the establishment of
prestmlptloas of significance regarding protection of wrldlde habitat, based largely on the language of
the last paragraph oftbe 'preamble"agreed to by numerous interest groups (as well as the Department)
prior to the legislative enactment ofthe weffiWWw>l IU& amendment in 1986. Although this paragraph
of the preamble does not explicitly state that the signatories agreed that the Department would not
extend its practice of the use ofpresumptims; ofs*n&ance to the new wildlife habitat interest, these
commentators argued that such a result was implied by the statement, 'Furthermore, the presence of
these characteristics establishing wildlife habitat does not mean that it is automatic that every resource
area is significant to wildlife habitat."
The Department believes that a reading ofthe entire paragraph ofthe preamble makes it clear that
this language does not smuggest that resource areas should not be presumed significant to the protection
ofwildlde habitat, but only that presumptions must be based strictly on the presence ofcertain physical
habitat characteristics providing specified 'inportant" whiff fe habitat fiunotions in each resource area:
Furthermore, the presence of these characteristics establishingwrldl* habitat does not mean that
it is automatic that every resource areas significant to wrldfilo habitat The amendment to the bill
duritigpassage makes it clear that the features present must be enough to'provide irriportart food,
shelter, migratory or overwmtering areas, or breeding areas for wild*.' In other words, the
definition of wildlife habitat sets a threshold for a resource area to be significant for the
particular reasons stated in the definition: food, shelter, migratory or overwintering areas,
or breeding areas. (emphasis added)
12/20/02 310 CMR - 446
1 a 24, /214 310 CMR 1000
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
10.00: continued
As noted in detail above, this is exactly what the Department has done in creating the presumptions
contained in these regulations and certain tlimholds below which wadlik habitat fimctions are
icrebuttably deemed not to be important (with the exception of rare species habitat). As with
presumptions of significance regrading all other statutory interests, the presumption for wMlife habitat
is based on scientific* supported generalities regarding each resource area, and may be overcome
by clear evidence that a specific project site acts atypically.
B. Expansion of hu Wiction Certain patties suggested that the proposed regulations expanded the
jurisdiction of the regulations by adding what can be strict new performance standards to certain
resource areas which had previously been subject to less strict standards. The Department disagrees.
Adding a new interest to be protected under M.G.L. c. 131, § 40 clearly requires new performance
standards in some resource areas, but in no case has the Department changed the definition or
boundaries of any resource area as previously defined, nor has it changed any rules pertaining to the
buffer zone or uplands. Furthermore, although there were a very large number ofconmen is asking the
Department to protect small, upland vernal pools, the Department has consistently rejected this
suggestion on the basis that such an action would expand the geographic jurisdiction of conservation
comnissiona and the DepartmeM in contradiction to the intension of most pasties supporting the
wetlardsfw0dlife amendment and the Legislature itself
C. Vernal Pools. On the issue of vernal pools, the Department received two groups of comments.
As noted directly above, matey individuals and organizations pressed the Departs to protect all
vernal pools, including those outside currently defined wetland resource areas, but the was rejected
as an unauthorized expansion of jurisdiction. Many parties, including the Depattimds own regional
stag anted that because they are often very small n size and usually ternporary it nature, the proposed
regulatory language on identifying vernal pools would lead to innumerable, inequently isoilable
disputes over the presence ofsuch habitats on Land Subject to Flooding. After extensive research on
vernal pool identification techniques, the Department concluded that it would be un& r to applicants
to retain proposed requirements that could force them to conduct difficult, timely, expensive and often
inconclusive searches for possible vemalpools. Instead, the final regulations create a presumption that
vernal pools are present only when mapped, where such maps have been certified by the Division of
Fisheries and Wildlife. That Division has agreed to establish such a certification progtarr> which will
require evidence of the breeding of amphibian species that need vernal pools. Finally, scientific
evidence was presented to the Department that areas immediately surrounding venial pools generally
serve all the important nonibteeding habitat firnctions of amphibians which regime vernal pools for
breeding Consequently, the regulations cortanperformance standards protecting the area within 100
feet of the boundaries of vernal pools.
D. Fbodplaios. Perhaps the most controversial provisions in the proposed regulations were those
protecting fioodplaios (Bordering Land Subject to Flooding). On the one bard, there were many
comments urging the Department to protect all wildlife habitats (including fields) throughout the 100
year floodplain, except far those portions altered by human activity. On the other hand, others
suggested that the Department has no basis for proposing to presume that woodlands (or other defined
areas) on the entire 100 -year fioodplanwere significant to the protection of"inportane" wildlife habitat
fi=tions. The Department recognized some merit it each of these contentions, and incorporated
aspects of both in the final regulations.
As noted above, presumptions ofsignificance are based on scienfficaly grounded genetalizations
onhow resource areas typicallyfinction; however, regarding protectionofwildlik habitat, they are also
limited to those wedand habitats which, due to certain physical chamcterisdes, provide 'importare
fiatctions for weld 'Lie (ke., those "speciar qualities which, dough they may be present n uplands, are
particularly prevalent or valuable in wetland resource
12/20/02 310 CMR - 447
to�za�zota arocwuc 10.00
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
10.00: continued
areas). The Preamble describing irrportant wildlife habitat functions of flovdplaias n 310 CUR
10.570)(a)(3) indicates that these functions stem from five major fiuctors: frequent flooding, close
proximity to water bodies, moistness of soils, the vegetative corridor which aids movement of wr7dlde
to and from as well as along water bodies, and the "edge" effect which causes wrldKe to thrive is the
area where two different habitat types meet (e.g., where water bodies orbonderingvegetated wetlands
meet other habitat). Such habitat clearly is not k*ed to woodlands, but rather extends to fields and
other areas which have not been so altered by human activities as to effectively of urinate their special
wetland habitat value. The foal regulations reflect this principle. It is also true that the five key factors
which provide 'krportant" wetland wild)rfe' habitat fimctions are generally much more prevalent on the
lower floodplain (that closest to the water body) than the upper floodplain. Indeed, as one moves
away from the water body and bordering vegetated wetland into the infrequently flooded areas of the
100 -year floodplain, the habitat becomes increasingly iodistorguishable in its vegetative and hydrologic
characteristics from upland areas.
Therefore, in the final regulations the Department determined that a presumption ofsigrv6cance for
wildlife habitat was warranted only fDr the lower floodplain (except for vernal pools, which are clearly
essential for certain ampbhuns wherever they appear on the floodplain). The lower floodplain is
defined as areas on the 10 year floodplain or within 100 feet of the bank or bordering vegetated
wetland, whichever is further from the water body or waterway. 'firportant" lloodplair habitat on the
upper floodplain may also be protected on a case by case basis where evidence of its existence has
been demonstrated, though this area is not presumed to be sigrifficant to the protection of wildlife
habitat.
E. Thresholds. The Department proposed the creation of project size thresholds for three resource
areas (inland Banks, Land Under Water, and Land Subject to Flooding) below which alterations are
not deemed to have an adverse effect on the protection ofirportant wrldRE habitat fimctions. Though
there were objections to this concept, the Department found, as explained in detail above, that use of
thresholds is the most sci ntifica ly valid and least complex method of protecting 'Important" wrldlh'e
habitat in these resource areas, whole allowing small, uumnportant alterations (i.e., uminportant from a
regionalor statewide prospective). Manyconnrernatons expressed concern that aithoughtheproposed
threshold alterations may appear small mdw du*, repeated undertakings ofthreshold projects on the
same property could cause large cumulative impacts on wrldhfe' habitat In response to these
con aerits, the Department has added a provision issuing tat such small alterations will not be
allowed, cunnrlatively, to have a major impact on important wild* habitat fimctiom. The thresholds
may only be applied once per lot after the effective date ofthe wildlife regulations. This rule regarding
cumulative nupacts applies on lyto the protection ofwild)te habitat oni land Banks, Land Under Water
and Land Subject to Fbodng. The Department takes no position at this tine as to whether this is the
appropriate method of addressing cumulative impact issues regarding limited projects or performance
standards in effect prior to the promulgation of the new regulations protecting wuldK- habitat. There
were also numerous comments that the proposed thresholds were too small to allow for certain
projects which must necessarily be located on or near water -- for example bridges, marinas,
wastewater treatment plannts, etc. Rather than raising the thresholds for al projects, however, the final
regulations take cognisanceofthose water- dependent uses by creating anew'S ited "project category
for such uses (except those in bordering vegetated wetlands) with their own performance standards.
To balance the net effect on important wild* habitat functions, we have tightened the thresholds for
von- water - dependent uses on inland resource areas (except borderngvegetated wetlands) to no more
than 10 % ofthose portions ofan owner's lot found to be significant to the protection ofw&Uife habitat
(the maximum. . limits of 50 linear feet of Bank and 5,000 sq. L ofland Under Water or Land Subject
to Flooding contained in the proposed regulations, were retained in the final regulations).
1220/02 310 CMR - 448
10124/2014 310 CMR 10.00
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
10.00: continued
F. Rare Species. Most commentators strongly supported protection for rare species, bit a number
of technical changes were suggested and incorporated into the foal regulations. Applicants with
proposed projects on 'Estimated Habitat Maps" may, if they wish, contact the Natural Heritage and
Endanrgered Species program 90 days befDre fififnng their Notice ofhuent and receive a response within
45 days, so as to facilitate project designs which will met rare species performance standards. In al
cases, the Heritage Program wil have at least 30 days to respond to notification that a proposed
project is on the Estimated Habitat map, and no Order ofCorditions maybe issued before that time.
G. WW* Habitat Evaluations. A number of commentators found Section 10.60 (which sets
standards for determi*g whether "above tlaeshold" projects on inland Banks, Land Under Water,
or Bordering Land Subject to Flooding will adversely effect wildlite habitat) to be confismg. The final
regulations, we believe, are clearer. The basic standard for determining adverse effects is whether the
project would substantially reduce specified important wildlife habitat fimctions. Standards for
restoration and replication ofwnldlile habitat were also clarified. Although there were some comments
in opposition to alowing off -site replication, we believe that the performance standards for replication
are suffCierrtly stringent to protect vviki 'e habitat, especkny since off-site replication above 5,000 sq.
1 of bordering vegetated wetlands (the most valuable wildlife habitat) remains prohibited under the
stringent performance standards contained in the present regulations. Furthermore, an Order of
Conditions may require that replicated habitat m fact meets the standard ofm substantial reduction in
habitat value Jnr an indefinite period it the firtuae, so that further efforts can be required if initial
replication is unsuccessfirl
12!20/02 310 CMR - 449
1012412014 310 CMR 10.00
Chapter 136
WETLANDS
§ 136 -1. Definitions.
§ 136 -2.
Purpose.
§ 136 -3.
Permit required; procedure.
§ 136 -4.
Hearing; determination;
§ 136 -8.
enforcement orders; appeals;
§ 136 -9.
plan changes or modifications.
§ 136 -5.
Emergency projects.
§ 136 -6.
Preacquisition violation.
§ 136 -7.
Promulgation of rules and
regulations.
§ 136 -8.
Burden of proof.
§ 136 -9.
Security.
§ 136 -10. Violations and penalties;
enforcement.
[HISTORY: Adopted by the Annual Town Meeting of the Town of Nantucket 4 -5 -1983
by Art. 29, approved 8 -19 -1983. Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 139.
§ 136 -1. Definitions. [Amended 5 -17 -1988 ATM by Art. 95, approved 9 -28 -1988;
4- 8.1996 ATM by Art. 47, approved 7 -15 -1996; 4 -10 -2000 ATM by Art. 62, approved
8 -2- 2000; 4-12 -2004 ATM by Art. 52, approved 9 -3 -20041
Through its authority to promulgate regulations pursuant to § 136 -7, the Conservation
Commission shall adopt definitions to effectuate the purposes of this chapter.
The definitions for "agricultural practices," "alter," and "person" shall be included in the
Nantucket Wetland Regulations, subject to future revision as set forth in § 136 -7. The
Commission is directed to revise its regulations pursuant to § 136 -7 to incorporate the
current definition for "habitat" into the definitions for "habitat" contained within the
Wetland Regulations, prior to this amendment taking effect.
§ 136 -2. Purpose. [Amended 4 -8 -1996 ATM by Art. 47, approved 7 -15 -1996] - . .
The purpose of this chapter is to protect the wetlands of the Town of Nantucket by controlling
activities deemed to have a §iS2jAWt or cumulative effect upon wetland values, including but
not limited to the following: public or private water supply, groundwater, flood control,
erosion control, storm damage prevention, water pollution, fisheries, shellfish, wildlife, rare
species, including rare, threatened or endangered plant species and animals and habitats,
ecreation and wetland scenic views (collectively, "the interests protected by this chapter ").
This chapter is intended to utilize the Horne Rule Authority of this municipality to protect
additional resource, areas for additional values, with additional standards and procedures in
ad ui`d''on to�those of the Wetlands—Protection Act, c. TS—I,—§-40, and regulations
thereunder, 310 CMR 10.00.
�� ADDt�1G�A
/MSG F, iZ
VA L 5TAA. ,b A s
s � %
1A)
i 6 1 1D - 15 - 2004
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
10.53: General Provisions
(1) If the Issuing Authority determines that a Resource Area is significant to an interest
identified in M.G.L. c. 131, § 40 for which no presumption is stated in the Preamble to the
applicable section, the Issuing Authority shall impose such conditions as are necessary to
contribute to the protection of such interests. For work in the Buffer Zone subject to review
under 310 CMR 10.02(2)(b)3., the Issuing Authority shall impose conditions to protect the
interests of the Act identified for the adjacent Resource Area The potential for adverse impacts
to Resource Areas from work in the Buffer Zone may increase with the extent of the work and
the proximity to the Resource Area. The Issuing Authority may consider the characteristics of
the Buffer Zone, such as the presence of steep slopes, that may increase the potential for adverse
impacts on Resource Areas. Conditions may include limitations on the scope and location of
work in the Buffer Zone as necessary to avoid alteration of Resource Areas. The Issuing
Authority may require erosion and sedimentation controls during construction, a clear limit of
work, and the preservation of natural vegetation adjacent to the Resource Area and/or other
measures commensurate with the scope and location of the work within the Buffer Zone to
protect the interests of M.G.L. c. 131, § 40. Where a Buffer Zone has already been developed,
the Issuing Authority may consider the extent of existing development in its review of
subsequent proposed work and, where prior development is extensive, may consider measures
such as the restoration of natural vegetation adjacent to a Resource Area to protect the interest
of M.G.L. c. 131, § 40. The purpose of preconstruction review of work in the Buffer Zone is to
ensure that adjacent Resource Areas are not adversely affected during or after completion of the
work.
(2) When the site of a proposed project is subject to a Restriction Order which has been duly
recorded under the provisions of M.G.L. c. 131, § 40A, such a project shall conform to both the
provisions contained in that Order and 310 CMR 10.51 through 10.60.
�(3) Notwithstanding the provisions of 310 CMR 10.54 through 10.58 and 10.60, the Issuing
ority may issue an Order of Conditions and impose such conditions as will contribute to the
interests identified in M.G.L. c. 131, § 40 permitting the following limited projects (although no
such project may be permitted which will have any adverse effect on specified habitat sites of
Rare Species, as identified by procedures established under 310 CMR 10.59). In determining
whether to exercise its discretion to approve the limited projects listed in 310 CMR 10.53(3), the
Issuing Authority shall consider the following factors: the magnitude of the alteration and the
significance of the project site to the interests identified in M.G.L. c. 131, § 40, the availability
of reasonable alternatives to the proposed activity, the extent to which adverse impacts are
minimized, and the extent to which mitigation measures, including replication or restoration, are
provided to contribute to the protection of the interests identified in M.G.L. c. 131, § 40.
(a) Work on land to be used primarily and directly in the raising of animals, including but
not limited to dairy cattle, beef cattle, poultry, sheep, swine, horses, ponies, mules, goats,
bees and fur - bearing animals or on land to be used in a related manner which is incidental
thereto and represents a customary and necessary use in raising such animals; and work on
land to be used primarily and directly in the raising of fruits, vegetables, berries, nuts and
other foods for human consumption, feed for animals, tobacco, flowers, sod, trees, nursery
or greenhouse products, and ornamental plants and shrubs; or on land to be used in a related
manner which is incidental thereto and represents a customary and necessary use in raising
such products, provided they are carried out in accordance with the following general
conditions and any additional conditions deemed necessary by the issuing authority:
1. there shall occur no change in the existing topography or the existing soil and surface
water levels of the area;
EL
�0 - �3 3
October 2014
178
310 CMR; DEPARTMENT OF ENVIRONMENTAL PROTECTION
2. all fertilizers, pesticides, herbicides and other such materials shall be used in
accordance with all applicable state and federal laws and regulations governing their use;
and
3. all activities shall be undertaken in such a manner as to prevent erosion and siltation
of adjacent water bodies and wetlands as specified by the U.S.D.A. Soil Conservation
Service, Guidelines for Soil and Water Conservation. A plan prepared by the U.S.D.A.
Soil Conservation Service through a county conservation district for the improvement of
land for agriculture shall be deemed adequate to prevent erosion and siltation.
October 2014 179
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
10.53: continued
(b) Work on land to be used primarily and directly in the raising of cranberries or on land
to be used in a related manner which is incidental thereto and represents a customary and
necessary use in raising such products, provided it is carried out in accordance with the
following general conditions and any additional conditions deemed necessary by the issuing
authority:
1. all fertilizers, pesticides, herbicides and other such materials shall be used in
accordance with all applicable state and federal laws and regulations governing their use;
and
2. all activities shall be undertaken in such a manner as to prevent erosion and siltation
of adjacent water bodies and wetlands as specified by the U.S.D.A. Soil Conservation
Service, Guidelines for Soil and Water Conservation.
(c) Work on land to be used primarily and directly in the raising of forest products under
a planned program to improve the quantity and quality of a continuous crop or on land to be
used in a related manner which is incidental thereto and represents a customary and necessary
use in raising such products, provided it is carried out in accordance with the following
general conditions and any additional conditions deemed necessary by the issuing authority:
1. there shall occur no change in the existing topography or the existing soil and surface
water levels of the area except for temporary access roads;
2. the removal of trees shall occur only during those periods when the ground is
sufficiently frozen, dry or otherwise stable to support the equipment used; and
3. all activities shall be undertaken in such a manner as to prevent erosion and siltation
of adjacent water bodies and wetlands as specified by the U.S.D.A. Soil Conservation
Service, Guidelines for Soil and Water Conservation.
4. the placement of slash, branches and limbs resulting from the cutting and removal
operations shall not occur within 25 feet of the bank of a water body.
(d) The construction, reconstruction, operation and maintenance of underground and
overhead public utilities, such as electrical distribution or transmission lines, or
communication, sewer, water and natural gas lines, may be permitted, in accordance with the
following general conditions and any additional conditions deemed necessary by the issuing
authority:
1. the issuing authority may require a reasonable alternative route with fewer adverse
effects for a local distribution or connecting line not reviewed by the Energy Facilities
Siting Council;
2. best available measures shall be used to minimize adverse effects during
construction;
3. the surface vegetation and contours of the area shall be substantially restored; and
4. all sewer lines shall be constructed to minimize inflow and leakage.
(e) The construction and maintenance of anew roadway or driveway of minimum legal and
practical width acceptable to the planning board, where reasonable alternative means of
access from a public way to an upland area of the same owner is unavailable. Such roadway
or driveway shall be constructed in a manner which does not restrict the flow of water.
Reasonable alternative means of access may include any previously or currently available
alternatives such as realignment or reconfiguration of the project to conform to 310 CMR
10.54 through 10.58 or to otherwise minimize adverse impacts on resource areas. The
issuing authority may require the applicant to utilize access over an adjacent parcel of land
currently or formerly owned by the applicant, or in which the applicant has, or can obtain,
an ownership interest. The applicant shall design the roadway or driveway according to the
minimum length and width acceptable to the Planning Board, and shall present reasonable
alternative means of access to the Board. The applicant shall provide replication of
October 2014
180
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
bordering vegetated wetlands and compensatory flood storage to the extent practicable. In
the Certificate of Compliance, the issuing authority may continue a condition imposed in the
Order of Conditions to prohibit further activities under 310 CMR 10.53(3)(e).
(f) Maintenance and improvement of existing public roadways, but limited to widening less
than a single lane, adding shoulders, correcting substandard intersections, and improving
inadequate drainage systems.
(g) The excavation of wildlife impoundments, farm ponds and ponds for fire protection.
The above uses are allowed provided that no fill or other material is placed upon the wetland
except as may be necessary to construct said impoundments or ponds, to provide access
thereto, and to provide bank stabilization.
October 2014
181
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
10.53: continued
(h) The maintenance of beaches and boat launching ramps which existed on the effective
date of 310 CMR 10.51 through 10.60 (April 1, 1983).
(i) The maintenance, repair and improvement (but not substantial enlargement except when
necessary to meet the Massachusetts Stream Crossing Standards) of structures, including
dams and reservoirs and appurtenant works to such dams and reservoirs, buildings, piers,
towers, headwalls, bridges, and culverts which existed on the effective date of 310 CMR
10.51 through 10.60 (April 1, 1983). When water levels are drawn down for the
maintenance, repair, or improvement of dams or reservoirs or appurtenant works to such
dams or reservoirs under 310 CMR 10.53(3)(i), water levels that existed immediately prior
to such projects being undertaken shall be restored upon completion of the work, and a new
Notice of Intent need not be filed for such restoration. Ifthe Department of Conservation and
Recreation Office of Dam Safety determines that it would not be safe to restore the water
level existing prior to the project being undertaken, the applicant shall submit a new Notice
of Intent within ninety days of the date of the determination describing the measures
necessary with a schedule for repairing or replacing the dam and returning water levels to the
previous condition, or removing the dam and restoring the riparian habitat.
--� 0) The construction and maintenance of catwalks, footbridges, wharves, docks, piers,
boathouses, boat shelters, duck blinds, skeet and trap shooting decks and observation decks;
provided, however, that such structures are constructed on pilings or posts so as to permit the
reasonably unobstructed flowage of water and adequate light to maintain vegetation.
(k) The routine maintenance and repair of road drainage structures including culverts and
catch basins, drainage easements, ditches, watercourses and artificial water conveyances to
insure flow capacities which existed on the effective date of 310 CMR 10.51 through 10.60
(April 1, 1983).
(1) The construction, reconstruction, operation or maintenance of water dependent uses;
provided, however that:
1. any portion of such work which alters a bordering vegetated wetland shall remain
subject to the provisions of 310 CMR 10.55,
2. such work in any other resource area(s) found to be significant to flood control or
prevention of storm damage shall meet the performance standards for that interest(s), and
3. adverse impacts from such work in any other resource area(s) shall be minimized
regarding the other statutory interests for which that resource area(s) is found to be
significant.
(m) Lake drawdown projects (except those related to the breaching of a dam or a reservoir
or an appurtenant work to such dam or reservoir) undertaken in response to written Orders
or Recommendation Letters issued by the Department of Conservation and Recreation Office
of Dam Safety (DCR). The issuing authority shall, in the Order of Conditions, limit the
duration of the drawdown based on information contained in the written finding or
superseding finding by DCR pursuant to M.G.L. c. 253, §§ 44 through 50, concerning the
time required to repair the dam and the economic practicability of repairing the dam. In no
event shall the drawdown continue longer than three years without a new or extended Order
of Conditions being obtained permitting the drawdown. Water levels that existed
immediately prior to such drawdowns shall be restored no later than the expiration date of
the Order of Conditions or any new or extended Order of Conditions, and a new Notice of
Intent need not be filed for such restoration.
(n) Airport vegetation removal projects; provided, however, that:
1. such projects must be undertaken in order to comply with Federal Aviation
Administration (FAA) Regulation Part 77 (14 CFR Part 77), FAA Advisory Circular
150 /5300 -13 (Navigational Aids and Approach Light Systems), and FAA Order 6480.4
October 2014
182
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
(Air Traffic Control Tower Siting Criteria), all as amended, or to comply with the airport
approach regulations set forth in M.G.L. c. 90, §§ 40A through 40I;
2. such projects must be undertaken at airports that are managed by the Massachusetts
Port Authority (Massport) or that are subject to certification by the Massachusetts
Aeronautics Commission (MAC);
3. the requirement outlined in 310 CMR 10.53(3)(n)1. must be certified in writing by
the FAA or by the MAC;
4. such projects shall not include the construction of new airport facilities or the
expansion or relocation of existing airport uses;
5. Notices of Intent filed for such projects shall:
a. delineate the vegetation requiring removal;
October 2014
193