Town of Arlington, MA - Town Wetland Regulations

REGULATIONS: WETLANDS PROTECTION

Revised Sept. 20, 2001

Section 1 - Introduction and purpose

A. Introduction. These regulations are promulgated by the Town of Arlington Conservation Commission pursuant to the authority granted to it under the Town of Arlington Wetlands Protection Bylaw (hereinafter referred to as the "Bylaw"). These regulations complement the Wetlands Protection Bylaw and shall have the force of law upon their effective date.

B. Purpose. The Bylaw sets forth a public review and decision making process by which activities affecting areas subject to protection under the Bylaw are to be regulated in order to ensure the protection of the following interests: public or private water supply, ground water supply, flood control, erosion control and sedimentation control, storm damage prevention, other water damage prevention, prevention of pollution, protection of surrounding land and other homes or buildings, wildlife protection, plant or wildlife habitat, aquatic species and their habitats, and the natural character or recreational values of the wetland resources. The purposes of these regulations are to define and clarify that process by establishing standard definitions and uniform procedures by which the Arlington Conservation Commission shall carry out its responsibilities under the Bylaw.

Section 2 - Jurisdiction

A. Areas subject to protection under the Bylaw:

(1) Any marsh, freshwater wetland, vernal pool, wet meadow, bog, swamp.

(2) Any river, stream, creek, pond, reservoir, or lake.

(3) Any bank of the areas set forth in A(1) or A(2) above.

(4) Any land under the areas set forth in A(2) above said waters.

(5) Any land bordering the areas set forth in A(1) or A(2) or A(3) above.

(6) Any riverfront area as hereinafter defined.

(7) Any land subject to flooding or inundation.

B. Activities subject to regulation under the Bylaw:

(1) Any activity proposed or undertaken which constitutes removing, filling, dredging, discharging into, building upon, degrading or otherwise altering any area specified in Subsection A is subject to regulation under the Bylaw and requires the filing of an application for permit.

(2) Any activity proposed or undertaken outside the areas specified in subsection A above shall not be subject to regulation under the Bylaw unless, in the judgment of the Conservation Commission, said activity may result or has resulted in the removing, filling, dredging, discharging into, building upon, degrading or otherwise altering an area specified in Subsection A above. If the applicant wishes to have the Conservation Commission determine whether an activity may be subject to regulation under the Bylaw, he or she shall submit a request for determination for applicability pursuant to Section 7(A) of these regulations.

Section 3 - Burden of going forward and burden of proof

A. The applicant shall have the burden of going forward with credible evidence from a competent source in support of all matters asserted pursuant to Subsection B below by the applicant in accordance with his or her burden of proof.

B. The applicant shall have the burden of proving by a preponderance of the credible evidence from a competent source that the work in the application will not have unacceptable significant or cumulative effect upon the wetland values protected by the Bylaw. Failure to meet the burden of proof shall be cause for the Conservation Commission to deny the application for permit along with any work or activity proposed therein.

Section 4 - Definitions

A. Except as otherwise provided in the Bylaw or these regulations, the definitions of terms in the Bylaw shall be as set forth in the Wetlands Protection Act. MGL c. 131, Section 40, and its regulations, 310 CMR 10.00.

B. As used in these regulations, the following terms shall have the meanings indicated:

1. ABUTTER - shall mean the owner of any land within 100 feet of the property line of the land where the activity is proposed, as determined by the most recent assessors' records including any land located directly across a street, river, stream or pond, or municipal boundary.

2. ACTIVITY – On or in any area subject to protection by the Bylaw and its regulations: any form of draining, dumping, dredging, damming, discharging, excavating, filling or grading, the erection, reconstruction or expansion of any buildings or structures; the driving of pilings; the construction or improvement of roads and other ways; the changing of runoff characteristics; the intercepting or diverging of groundwater or surface water; the installation of drainage, sewage and water systems; the discharging of pollutants; the destruction of plant life; the cutting or removal of 20% or more of the growth or limbs of trees or vegetation; and any other changing of the physical characteristics of land or the physical or chemical characteristics of water.

3. ALTER - shall mean to change the conditions of any area subject to protection by this Bylaw and shall include but not be limited to one or more of the following actions upon the resource areas protected by this Bylaw:

a) fill, removal, excavation or dredging of soil, sand, gravel or aggregate material of any kind;

b) changing of pre_existing drainage characteristics, flushing characteristics, salinity distribution, sedimentation patterns, flow patterns and flood storage retention areas;

c) drainage, disturbance or lowering of the water level or water table; the dumping, discharging or filling with any material which could degrade the water quality;

d) driving of pilings, erection of buildings or structures of any kind;

e) placing of any object or obstruction whether or not it interferes with the flow of water;

f) destruction, extensive trimming (defined as 20% or more of limbs or growth), or removal of plant life, vegetation, or trees;

g) changing of water temperature, biochemical oxygen demand, nutrient concentration or chemical concentration and other natural characteristics of the receiving water;

h) any activities, changes or work which pollutes any stream or body of water, whether located in or out of the Town of Arlington;

i) application of pesticides and herbicides; or

j) any activity, change or work which adversely effects groundwater or drinking water supply.

4. APPLICANT - shall mean a person filing a Request for Determination of Applicability or Notice of Intent or other application with the Commission.

5. AREA OF CRITICAL ENVIRONMENTAL CONCERN - An area so designated by the Secretary of Environmental Affairs of the Commonwealth of Massachusetts pursuant to regulations (301 CMR 12.00), said designation being due to the particular environmental factors which impact upon the areas in question and which highlight the importance of each area so designated.

6. AREA SUBJECT TO PROTECTION UNDER THE BYLAW - Any area specified in Section 2(A). It is used synonymously with "resource area," each of which is defined in greater detail in these regulations.

7. BANK - shall be defined as the portion of the land surface which normally abuts and confines a water body, often between the mean annual low flow level and the first observable break in the slope or the mean annual flood level, whichever is lower;

8. BEST AVAILABLE MEASURES - The most up-to-date technology or the best designs, measures or engineering practices that have been developed and that are commercially available.

9. BEST MANAGEMENT PRACTICES - Technologies, designs, measures or engineering practices that are in general use to protect similar interests.

10. BORDERING shall be defined to include any land within either of the following or the greater thereof:

a) 100 feet horizontally lateral from the edge of any marsh, freshwater wetland, vernal pool, wet meadow, bog, swamp, river, stream, creek, pond, reservoir, or lake; or

b) within the maximum lateral extent of the water elevation of the statistical 100 year frequency storm.

11. BOUNDARY - The boundary of an area subject to protection under the Bylaw. A description of the boundary of each area is found in the appropriate section of these regulations or in the Bylaw.

12. BYLAW – Article 8 Wetlands Protection of Title V of the Bylaws of the Town of Arlington, Massachusetts.

13. CERTIFICATE OF COMPLIANCE - A written determination by the Conservation Commission that work or a portion thereof has been completed in accordance with the permit.

14. CONDITIONS - Those requirements set forth in a written permit issued by a Conservation Commission for the purpose of permitting, regulating or prohibiting any activity that removes, fills, dredges or alters an area subject to protection under the Bylaw.

15. CONSERVATION COMMISSION - That body comprised of members lawfully appointed pursuant to MGL c. 40, Section 8C.

16. CREEK - The same as "stream."

17. CUMULATIVE EFFECT - shall mean an effect that is significant when considered in combination with other activities that have occurred, are going on simultaneously, or that are likely to occur, whether such other activities have occurred or are contemplated as a separate phase of the same project, such as the build-out of a subdivision or an industrial park, or unrelated but reasonably foreseeable actions, including other development projects that are currently under construction, under review or that may be expected to come forward.

18. DATE OF ISSUANCE - The date a permit is mailed, as evidenced by a postmark, or the date it is hand-delivered.

19. DATE OF RECEIPT - The date of delivery to an office, home or usual place of business by mail or hand delivery.

a) DETERMINATION OF APPLICABILITY - A written finding by the Conservation Commission as to whether a site or the work proposed thereon is subject to the jurisdiction of the Bylaw.

b) DETERMINATION OF SIGNIFICANCE - A written finding by the Conservation Commission, after a public hearing, that the area on which the proposed work is to be done or which the proposed work will alter is significant to one or more of the interests identified in the Bylaw.

c) NOTIFICATION OF NONSIGNIFICANCE - A written finding by the Conservation Commission, after a public hearing, that the area on which proposed work is to be done, or which the proposed work will alter, is not significant to any of the interests of the Bylaw.

21. DREDGE - To deepen, widen or excavate, either temporarily or permanently.

22. EXTENSION PERMIT - A written extension of time within which the authorized work shall be completed.

23. FILL - To deposit any material so as to raise the elevation of land surface or ground, either temporarily or permanently.

24. FLOOD CONTROL - The prevention or reduction of flooding and flood damage.

25. GROUNDWATER - shall mean all subsurface water contained in natural geologic formations or artificial fill including soil water in the zone of aeration. Activities within 100 feet of resource areas shall not significantly alter the existing quality or elevation of naturally occurring groundwater.

26. INTERESTS IDENTIFIED IN THE BYLAW - Those interests specified in Section 1 of the Bylaw and Section 1(B) of these regulations.

27. ISSUING AUTHORITY - The Conservation Commission.

28. LAND SUBJECT TO FLOODING OR INUNDATION shall mean the land within the estimated maximum lateral extent of flood water which will theoretically result from the statistical 100-year frequency storm; said boundary shall bet that determined by reference to the most recently available food profile data prepared for Arlington within which the work is proposed under the National Flood Insurance Program (“NFIP”). Where NFIP data are unavailable or deemed by the Commission to be outdated, the boundary of said land shall be based on the maximum lateral extent of flood water which has been observed or recorded, or other evidence presented and considered by the Commission. Said land shall also include isolated areas which frequently or seasonably hold standing water; such areas may or may not be characterized by wetland vegetation or soil characteristics.

29. LAKE - Any open body of fresh water with a surface area of 10 acres or more, and shall include great ponds.

30. LANDS SUBJECT TO FLOODING - Defined in Section 19.

31. LAND UNDER WATER BODIES AND WATERWAYS - The bottom of or land under the surface of a creek, river, stream, pond or lake. Land under water bodies is further defined in Section 18.

32. MAJORITY - More than half of the members of the Conservation Commission then in office.

33. MARSH, FRESHWATER WETLAND, SWAMP, WET MEADOW, BOG shall mean that as defined in General Laws Chapter 131, Section 40 or Regulations thereunder (310 CMR 10.00).

34. MEADOW (or WET MEADOW) - Defined in Section 17.

35. NOTICE OF INTENT - The written notice filed by any person intending to remove, fill, dredge or alter an area subject to protection under the Massachusetts Wetlands Protection Act, MGL c. 131, Section 40.

36. ORDER - An order of conditions, superseding order or final order, whichever is applicable, issued pursuant to MGL c. 131, Section 40.

37. OWNER OF LAND ABUTTING THE ACTIVITY - The owner of land sharing a common boundary or corner with the site of the proposed activity in any direction, including land located directly across a street, way, creek, river, stream, brook or canal.

38. PARTY TO ANY PROCEEDING - The applicant, the Conservation Commission, any person aggrieved, any person pursuant to 310 CMR 10.05(7)(a), and any 10 persons pursuant to MGL c. 30A, Section 10A.

39. PERMIT - shall mean the document issued by the Conservation Commission pursuant to this Bylaw which allows work in accordance with conditions set by the Commission in the resource areas protected by this Bylaw.

40. PERSON - shall include any individual, group of individuals, associations, partnerships, corporations, business organizations, trust, estate, Commonwealth of Massachusetts when subject to town Bylaws, any public or quasi_public corporation or body when subject to town Bylaws or any other legal entity, including the Town of Arlington or its legal representative, agents or assigns.

41. PERSON AGGRIEVED - Any person who, because of an act of failure to act by the Conservation Commission, may suffer an injury in fact which is different either in kind or magnitude from that suffered by the general public and which is within the scope of the interests identified in the Bylaw.

42. PLANS - Such data, maps, engineering drawings, calculations, specifications, schedules and other materials, if any, deemed necessary by the Conservation Commission to describe the site and/or work to determine the applicability of the Act or to determine the impact of the proposed work upon the interests identified in the Act. (See Section 25).

43. POND - Any open body of fresh water, either naturally occurring or man-made by impoundment or excavation, which is never without standing water due to natural causes, except in periods of extended drought. For purposes of this definition, extended drought shall mean any period of four or more months during which the average rainfall for each month is 50% or less of the ten-year average for that same month. Basins or lagoons which are part of wastewater treatment plants, swimming pools or other impervious man-made retention basins shall not be considered ponds.

44. PREVENTION OF POLLUTION - The prevention or reduction of chemicals (e.g., nutrients, hydrocarbons, solvents, metals, vapors) known or suspected of causing harm to humans, plants, or animals via exposure to any media (air, water, soil, sediment)

45. PRIVATE WATER SUPPLY - Any source or volume of surface or groundwater demonstrated to be in any private use or shown to have potential for private use.

46. PROTECTION OF FISHERIES - Protection of the capacity of an area subject to protection under the Bylaw to prevent or reduce contamination or damage to fish and to serve as their habitat and nutrient source.

47. PROTECTION OF WILDLIFE - The protection of any plant or animal species listed as endangered, threatened or special concern, or on the Watch List by the Massachusetts Natural Heritage Program: listed as Federally Endangered or Federally Threatened by the U.S. Fish and Wildlife Service; deemed locally threatened, in writing, by the Conservation Commission; and means protection of the ability of any resource area to provide food, breeding habitat or escape cover and species falling within the definition of wildlife set forth in these regulations.

48. PUBLIC WATER SUPPLY - Any source or volume of surface water or groundwater demonstrated to be in public use or approved for water supply pursuant to MGL c. 111, Section 160 by the Division of Water Supply of the Department of Environmental Protection or shown to have a potential for public use.

49. QUORUM – refers the number of Commissioners who must be present before business may be transacted; here, it shall mean a majority of the number then in office.

50. REMOVE - To take away any type of material, thereby changing the elevation of land surface or ground, either temporarily or permanently.

51. REQUEST FOR DETERMINATION OF APPLICABILITY - A written request made by any person to the Conservation Commission for a determination as to whether a site or work thereon is subject to the Bylaw.

52. RESOURCE AREA - Is used synonymously with "area subject to protection under the Bylaw," each one of which is listed in Section 2.

53. RIVER - shall mean any natural flowing body of water that empties to any ocean, lake, pond, reservoir, or other river.

54. RIVERFRONT AREA - shall mean the area of land between a river’s mean annual high water line and a parallel line measured 200 feet horizontally landward of the mean annual high water line.

55. SIGNIFICANT – shall mean plays a role; e.g., a resource area is significant to an interest identified in the Act when it plays a role in the provisions or protection, as appropriate, of that interest.

56. SMALL PROJECT – shall mean any project of 100 square feet or less of impervious surface, including but not limited to: decks, structures, pools, patios, or foundation enclosing 100 square feet or less.

57. STORM DAMAGE PREVENTION - The prevention of damage caused by water from storms, including but not limited to erosion and sedimentation, damage to vegetation, property or buildings or damage caused by flooding, waterborne debris or waterborne ice.

58. STREAM - A body of running water, including brooks and creeks, which moves in a definite channel in the ground due to hydraulic gradient. A portion of a stream may flow through a culvert or beneath a bridge. Such a body of running water which does not flow throughout the year (i.e., which is intermittent) is a stream.

59. VEGETATED WETLANDS - Defined in Section 17.

60. WILDLIFE - Any non-domesticated mammal, bird, reptile, amphibian, fish, mollusk, arthropod or other invertebrate other than a species of the Class insects which has been determined by the Commonwealth of Massachusetts or any agency thereof to be a pest whose protection under the provisions of the Bylaw would be a risk to man.

61. WILDLIFE HABITAT - shall mean the area necessary to provide breeding or nesting habitat, shelter, food and water for any animal species.

62. WORK – shall mean the same as "activity."

Section 5 - Time Periods

All time periods of 10 days of less specified in the Bylaw and these rules and regulations shall be computed using business days only. In the case of a determination or order, such period shall commence on the first day after the date of issuance and shall end at the close of business on the 10th business day thereafter. All other time periods specified in the Bylaw and these rules and regulations shall be computed on the basis of calendar days, unless the last day falls on a Saturday, Sunday or legal holiday, in which case the last day shall be the next business day following.

Section 6 - Actions by Conservation Commission

A. Where the Bylaw states that a particular action (except receipt of a request or notice) is to be taken by the Conservation Commission, that action is to be taken by more than half the members present at a meeting of at least a quorum. A quorum is defined as a majority of the members then in office.

B. Where the Bylaw states that a determination or permit or notification or certificate of compliance shall be signed and issued by the Conservation Commission, that action is to be taken by the majority of the quorum present at a public meeting or hearing, or by a majority of the members then in office who need not convene as a body in order to sign said permit or notification, provided that the Commission met pursuant to the Open Meeting Law, M.G.L. c. 39, Sections 23A through 23C, when voting on the matter.

C. Where the Bylaw states that the Conservation Commission is to receive a request or notice, Conservation Commission means a member of the Conservation Commission or an individual designated by the Conservation Commission to receive such request or notice.

Section 7 - Determination of Applicability

A. Requests for determination of applicability.

(1) Any person who desires a determination as to whether the Bylaw applies to land, or to work that may affect an area subject to protection under the Bylaw may submit to the Conservation Commission by certified mail, regular mail, or hand delivery a written request for a determination of applicability and other application materials in accordance with the submittal requirements set forth in the filing guidelines for requests for determination of applicability provided in these regulations.

(2) Said request shall include sufficient information to enable the Conservation Commission to find and view the area and determine whether the proposed work will alter an area subject to protection under the Bylaw.

(3) A request for determination of applicability shall include certification that the Conservation Commission and the owner of the area subject to the request, if the person making the request is not the owner, have been notified that a determination is being requested under the Bylaw.

B. Determination of applicability.

(1) Within 21 days after the date of receipt of the request for a determination of applicability, the Conservation Commission shall hold a public hearing on the request for a determination of applicability, Section 23. Notice of the time and place of the public meeting at which the determination will be made shall be given by the Conservation Commission at the expense of the person making the request not less that five business days prior to such meeting, by publication in a newspaper of general circulation in the town in which the land is located, and by mailing a notice to the person making, the applicant, to the Town Manager, Board of Selectmen, Town Clerk, Planning Department, Town Counsel, Department of Public Works, Town Engineer, Zoning Board of Appeals, Board of Health, Building Inspector, Redevelopment Board. Notice shall also be given in accordance with the Open Meeting Law, MGL c. 39, Section 23B, and shall be given to abutters in accordance with the Bylaw.

Said determination shall be signed and issued by the Conservation Commission, and copies thereof shall be sent by the Conservation Commission to the person making the request and to the owner within 21 days of the close of the public hearing or any continuances thereof. Said determination shall be valid for three years from date of issuance and may not be extended or renewed.

(2) The Conservation Commission shall find that the Bylaw applies to the land, or a portion thereof, if it is an area subject to protection under the Bylaw as defined in Section 2(A) above. The Conservation Commission shall find that the Bylaw applies to the work on the portion thereof, if it is an activity subject to the regulations under the Bylaw as defined in Section 2(B) above.

(3) An application for permit shall be filed in the event of a positive determination, and all of the procedures set forth in Section 8 shall apply.

Section 8 - Application for permit

A. Any person who proposed to do work that will remove, fill, dredge or alter any area subject to protection under the Bylaw shall submit an application, also called a Notice of Intent, on forms specified by the Conservation Commission and in conformance with the plan requirements in Section 25.

B. Upon receipt of the application materials referred to in Subsection A above, the Conservation Commission shall issue a file number. The designation of file number shall not imply that the plans and supporting documents have been judged adequate for the issuance of a permit, but only that copies of the minimum submittal requirements have been filed.

C. If only a portion of a proposed project or activity lies within an area subject to protection under the Bylaw and the remainder of the project or activity lies outside those areas, all aspects of the project must be described in the detail, provided also that in such circumstances the Notice of Intent shall also contain a description and calculation of peak flow and estimated water quality characteristics of discharge from a point source (both closed and open channel), when the point of discharge falls within an area subject to protection under the Bylaw.

D. A public hearing shall be held by the Conservation Commission with 21 days of receipt of the complete Notice of Intent.

Section 9 - Public Hearings

A. A public hearing shall be held by the Conservation Commission with 21 days of receipt of the complete Notice of Intent, and shall be advertised in accordance with the Bylaw and the requirements of the Open Meeting Law, M.G.L. c. 39, Section 23B.

B. Continued hearings.

(1) Public hearings may be continued as follows:

(a) Without the consent of the applicant to a certain date announced at the hearing should the applicant or the applicant or the applicant’s representative fail to provide eight (8) copies of any written information or documents intended for discussion at a meeting/hearing less than ten (10) days prior to that scheduled meeting/hearing to the Commission office or Agent, or fail to deliver one copy to the home of each Commissioner and the Commission Office or Agent seven (7) days prior to said meeting/hearing.

(b) Without the consent of the applicant to a certain date announced at the hearing either for receipt of additional information offered by the applicant or others or for information required of the applicant deemed necessary by the Conservation Commission at its discretion.

(d) With the consent of the applicant for a period not to exceed 21 days after the submission of a specified piece of information or the occurrence of a specified action.

(2) The date, time and place of said continued hearing shall be publicized in accordance with the Open Meeting Law, and notice shall be sent by the applicant to any person at the hearing who so requests in writing.

Section 10 - Issuance of permit

A. Within 21 days of the close of the public hearing or any continuance thereof on an application/Notice of Intent for a permit, the Conservation Commission shall either:

(1) Make a determination that the area on which the work is proposed to be done, or which the proposed work will remove, fill, dredge, discharge into, build upon, degrade or otherwise alter, is not significant to any of the interests identified in the Bylaw, and shall so notify the applicant;

(2) Make a determination that the area on which the work is proposed to be done, or which the proposed work will remove, fill, dredge or alter, is significant to one or more of the interests identified in the Bylaw and issue a permit for the protection of said interests;

(3) Make a determination that the proposed work fails to meet the design specifications, performance standards, or other requirements of the Bylaw, its regulations, or policies of the Commission, or that the project fails to avoid or prevent unacceptable significant or cumulative effects upon the resource area values of the Bylaw, or that there are no conditions adequate to protect said values; or

(4) If the Conservation Commission finds that the information submitted by the applicant is not sufficient to describe the site, the work, or the effect of the work on the interests identified in the Bylaw, it may issue a permit prohibiting the work. The permit shall specify the information which is lacking and why such information is necessary.

B. The permit shall impose such conditions as are necessary for the protection of those areas found to be significant to one or more of the interests identified in the Bylaw. The permit shall prohibit any work or any portion thereof that cannot be conditioned to meet said standards. The permit shall impose conditions upon work or the portion thereof that will, in the judgment of the Conservation Commission, result in the filling, dredging, altering, removing or building within or upon an area subject to protection under the Bylaw. The permit shall impose conditions setting limits on the quantity and quality of discharge from a point source (both open and closed channel) when said limits are necessary to protect the interests identified in the Bylaw.

C. The permit shall be valid for three years from the date of its issuance.

D. The permit shall be signed and issued by the Conservation Commission and shall be mailed or hand-delivered to the applicant, his or her agent or attorney.

E. A copy of the plans describing the work and the permit shall be kept on file by the Conservation Commission and shall be available to the public at reasonable hours.

F. Prior to the commencement of any work permitted or required by the permit, the permit shall be recorded in the Registry of Deeds or the Land Court. In the case of recorded land, the permit shall also be noted in the Registry's Grantor Index under the name of the owner of land upon which the proposed work is to be done. In the case of registered land, the permit shall also be noted on the Land Court Certificate of Title of the owner of the land upon which the proposed work is to be done. Certification of recording shall be sent to the Conservation Commission within two weeks of recording. If work is undertaken without the applicant first recording the permit, the Conservation Commission may issue an enforcement order or may itself record the permit.

Section 11 - Extension of permit

A. The Conservation Commission may extend a permit once for a period of up to an additional three-year period from date of issuance. The request for an extension shall be made to the Conservation Commission at least 30 days prior to the expiration of the permit. The Commission shall hold a public hearing in accordance with the Bylaw and these regulations within 30 days of receipt of said request. Should said public hearing be continued past the date of the expiration of the permit, the expiration date shall be stayed to the date on which the Commission votes on whether to extend the permit, should the Commission vote not to grant the request for permit extension.

B. The Conservation Commission may deny the request for an extension and require the filing of a new application for permit for the remaining work in the following circumstances:

(1) Where no work has begun on the project, except where such failure is due to an unavoidable delay, such as appeals and in the obtaining of other necessary permits;

(2) Where new information, not available at the time the permit was issued, has become available and indicates that the permit is not adequate to protect the resource area values identified in the Bylaw;

(3) Where incomplete work is causing damage to the resource area values identified in the Bylaw; or

(4) Where work has been done in violation of the permit or the Bylaw or these regulations.

C. If issued by the Conservation Commission, the extension permit shall be signed by a majority of the quorum of the members of the Conservation Commission present.

D. The extension permit shall be recorded in the Land Court or the Registry of Deeds, whichever is appropriate. If work is undertaken without the applicant recording the extension permit, the Conservation Commission may issue an enforcement order or may itself record the extension permit.

Section 12 - Certificate of compliance

A. Upon written request by the applicant, a certificate of compliance shall be issued by the Conservation Commission within 21 days of receipt thereof, and shall certify if it so determines, that the activity or portions thereof described in the application for permit and plans has been completed in compliance with the permit. If issued by the Conservation Commission, the certificate of compliance shall be signed and issued by the Commission.

B. Prior to the issuance of a certificate of compliance, a site inspection shall be made by the Conservation Commission or its agents, in the presence of the applicant or the applicant's agent.

C. If the Conservation Commission determines, after review and inspection, that the work has not been done in compliance with the permit, it shall refuse to issue a certificate of compliance. Such refusal shall be issued within 21 days of receipt of a request for a certificate of compliance, shall be in writing and shall specify the reasons for denial.

D. If a project has been completed in accordance with plans stamped by a registered professional engineer or a land surveyor, a written statement by such a professional person certifying substantial compliance with the plans and setting forth what deviation, if any, exists from the plans approved in the permit shall accompany the request for a certificate of compliance. The Commission reserves the right to administer the requirements of this paragraph in its sole discretion commensurate with the nature, scope, type, and cost of the proposed project or activity.

E. If the permit contains conditions which continue past the completion of the work, such as maintenance or monitoring, the certificate of compliance shall specify which, if any, of such conditions shall continue. The certificate shall also specify to what portion of the work it applies, if it does not apply to all the work regulated by the permit.

F. The certificate of compliance shall be recorded in the Land Court or Registry of Deeds, whichever is appropriate. Certification of recording shall be sent to the Conservation Commission on the form specified by the Commission. Upon failure of the applicant to so record, the Conservation Commission may do so.

Section 14 - Severability; compliance with court decisions

A. The invalidity of any section or provision of the Bylaw or of these regulations shall not invalidate any other section or provisions thereof, nor shall it invalidate any permit which previously has been issued.

B. If any Court of the Commonwealth shall invalidate any provisions of the Bylaw or of these regulations, the Conservation Commission may promulgate additional rules and regulations or present to the next Town Meeting after such invalidations, amendments to the Bylaw or regulations which are designed to comply with any Court decision invalidating such provisions or regulations, as the case may be.

Section 15 - Effective date

The effective date of these rules and regulations shall be January 4, 2001, and the provisions of these rules and regulations shall apply to all work performed, and all applications or requests for determination of applicability received on or after that date.

Section 16 - Banks

(1) Banks are likely to be significant to wildlife, to plant or wildlife habitat, to public or private water supply, to groundwater supply, to flood control, to storm damage prevention, to the prevention of pollution, to erosion control and sedimentation control, and to the protection of fisheries. Where banks are composed of concrete, asphalt or other artificial impervious material, said banks are likely to be significant to flood control and storm damage prevention.

(2) Banks are areas where groundwater discharges to the surface and where, under some circumstances, surface water recharges the groundwater.

(3) Where banks are partially or totally vegetated, the vegetation serves to maintain their stability, which in turn protects water quality by reducing erosion and siltation. Partially or totally vegetated banks provide habitat for wildlife.

(4) Banks may also provide shade that moderates water temperatures, as well as providing breeding habitat and escape cover and food, all of which are significant to the protection of fisheries. Banks which drip off quickly or overhang the water's edge often contain numerous undercuts which are favorite hiding spots for important species.

(5) Banks act to confine floodwater during the most frequent storms, preventing the spread of water to adjacent land. Because banks confine water during such storms to an established channel, they maintain water temperatures and depths necessary for the protection of fisheries. The maintenance of cool water temperatures during warm weather is critical to the survival of many species. An alteration of a bank that permits water to frequently and consistently spread over a larger and more shallow area increases the amount of property which is routinely flooded, as well as elevating water temperatures and reducing fish habitat within the main channel, particularly during warm weather.

(6) Land bordering or within 100 feet of a bank is likely to be significant to the protection and maintenance of the bank, and therefore to the protection of the interests which these resources serve to protect.

B. Definition, critical characteristics and boundary.

(1) A bank is the portion of the land surface which normally abuts and confines a water body. It occurs between a water body and a vegetated bordering wetland and adjacent floodplain, or, in the absence of these, it occurs between a water body and an upland. A bank may be partially or totally vegetated, or it may be comprised of exposed soil, gravel or stone.

(2) The physical characteristics of a bank, as well as its location, as described in the foregoing Subsection B(1), are critical to the protection of the interests specified in Subsection A.

(3) The upper boundary of a bank is the first observable break in the slope or the mean annual flood level, which ever is higher in elevation. The lower boundary of a bank is the mean annual low flow level.

C. No activity, other than the maintenance of an already existing structure, which will result in the building within or upon, removing, filling, or altering of a bank, or land within 25 feet of any bank unless the Applicant can demonstrate by a preponderance of credible evidence that the resource area values protected by the Bylaw are not significantly or cumulatively effected.

D. Any activity which is allowed under this section on a bank or on land bordering or within 100 feet of a bank shall comply with the following regulations. Any proposed work on a bank or bordering or within 100 feet of a bank shall not impair the following:

(1) The physical stability of the bank.