Sunday, June 4, 2017

Text of Proposed Wetland Regulations.

As promised, here is the text of the proposed wetland regulations that the Lawrence Conservation Commission will be voting on at our next meeting.



Pursuant to the provisions of the Lawrence Wetland Ordinance, Sec. 18.01 of the Lawrence Municipal Code (“The Ordinance”), the Lawrence Conservation Commission (“ The Commission “) is promulgating regulations to codify and update the provisions of The Ordinance as authorized by the amendments approved by the Lawrence City Council on July 2, 2013. The purpose, scope, jurisdiction, definitions, performance standards, procedures and fees specified in the ordinance are incorporated herein and updated as follows:

1. Purpose

The purpose of these regulations is to protect the wetlands, water resources, and adjoining land areas in the City of Lawrence by controlling activities deemed by the Lawrence Conservation Commission (hereinafter "Commission") likely to have a significant or cumulative effect upon resource area values, including but not limited to the following:  public or private water supply, groundwater, flood control, erosion and sedimentation control, storm damage prevention, water quality, water pollution control, fisheries, wildlife habitat, rare species habitat including rare plant species, agriculture, recreation values deemed important to the community, and riverfront area values.

These regulations may be amended by majority vote of the Commission after publication of proposed changes and a public hearing.

2. Jurisdiction

Except as permitted by the Commission or as provided by this ordinance, no person shall commence to remove fill, fill, dredge, build upon, degrade, discharge into, or otherwise alter the following resource areas:  any freshwater wetlands; marshes; wet meadows; bogs; swamps; lakes; ponds; rivers; streams; creeks; banks; beaches; large isolated wetlands; lands within 100 feet of any of the aforesaid resource areas; lands under water bodies; lands subject to flooding or inundation by groundwater or surface waters; land within 750 feet of vernal pools; land within 200 feet of any river or stream, (collectively, the "resource areas protected by this ordinance").  Said resource areas shall be protected whether or not they border surface waters.

2.1 Exceptions

The permit and application required by the Ordinance shall not be required for maintaining, repairing or replacing, but not substantially changing or enlarging, an existing and lawfully located structure or facility used in the service of the public to provide electric, gas, water, telephone, telegraph or other telecommunication services, provided that the structure or facility is not substantially changed or enlarged, provided that written notice has been given to the Commission prior to commencement of work, and provided that the work conforms to performance standards and design specifications in regulations adopted by the Commission.

Permission of the Commission shall not be required for emergency activity necessary for the protection of public health and/or safety. Under an emergency situation, the Commission shall be notified within 24 hours of such activity taking place or, if such notice is not practicable, as soon as possible. Failure to notify the commission within a reasonable amount of time may be considered a violation of these regulations and subject to enforcement action.

2.2 Definitions

The defenitions stated in the Lawrence Wetland Ordinance are incorporated herein by reference. Specifically, the following definitions shall apply in the interpretation and implementation of the Ordinance:

The term "alter" shall include, without limitation, the following activities when undertaken to, upon, within or affecting resource areas protected by this ordinance:

(a)        Removal, excavation or dredging of soil, sand, gravel or aggregate materials of any kind;

(b)        Changing of pre-existing drainage characteristics, flushing characteristics, salinity distribution,           
            sedimentation patterns, flow patterns, or flood retention characteristics;

(c)        Drainage or other disturbance of water level or water table;

(d)        Dumping, discharging or filling with any material which may degrade water quality;

(e)        Placing of fill or removal of material, which would alter elevation;

(f)        Driving of piles, erection or repair of buildings, or structures of any kind;

(g)        Placing of obstructions or objects (including docks and piers) in water;

(h)       Destruction of plant life including the cutting of trees;

(i)        Changing water temperature, biochemical oxygen demand, or other physical, biological or chemical   characteristics of water;

(j)        Any activities, changes, or work that may cause or tend to contribute to pollution of any body of      water or groundwater;

(k)       Incremental activities that have, or may have a cumulative adverse impact on the resource areas                                protected by this ordinance;

(l)        Application of pesticides or herbicides.

(m)      Removing, altering or failing to maintain any structure that provides habitat for migratory or endangered

Banks are the land area which normally abuts and confines a water body; lower boundary being the mean annual low flow level, and the upper boundary being the first observable break in the slope or the mean annual flood level, whichever is higher.

Beach means a natural or man-made unvegetated bank which normally abuts and confines a water body. It may also include sand bodies exposed within the channel above mean low water.

Bogs are areas where standing or slowly running water is near or at the surface during a normal growing season and where a vegetational community has a significant portion of the ground or water surface covered with Sphagnum moss (Sphagnum) and where the vegetational community is made up of a significant portion of one or more of, but not limited to nor necessarily including all, of the following plants or groups of plants; aster (Aster nemoralis), azaleas (Rhododendron canadense and R. viscosum), black spruce (Picea mariana), bog cotton (Eriophorum), cranberry (Vaccinium macrocarpon), high-bush blueberry (Vaccinium corymbosum), larch (Larix laricina), laurels (Kalmia angustifolia and K. polifolia), leatherleaf (Chamaedaphne calyculata), orchids (Arethusa, Calopogon, Pogonia), pitcher plants (Sarracenia purpurea), sedges (Cyperaceae), sundews (Droseraceae), sweet gale (Myrica gale), white cedar (Chamaecyparis thyoides).

Bordering Vegetated Wetlands are freshwater wetlands that border on creeks, streams, rivers, ponds and lakes.  Bordering Vegetated Wetlands are areas where the soils are saturated, near saturation and/or inundated such that they support a predominance (50% or greater) of wetland indicator plants.

Bordering Land Subject to Flooding is an area with low, flat topography adjacent to and inundated by floodwaters rising from creeks, streams, rivers, ponds or lakes.  The boundary of Bordering Land Subject to Flooding is the 500-year flood plain.  It extends from the outer edge of a bank or Bordering Vegetated Wetland.

Buffer Zone means that area of land extending one hundred (100) feet horizontally outward from the boundary of the following resource areas: Freshwater Wetlands, Marshes, Wet Meadows, Bogs, Swamps, Lakes, Ponds, Rivers, Streams, Creeks, Banks, Beaches, large isolated wetlands, lands under water bodies, lands subject to flooding or inundation by groundwater or surface water as specified in 310 CMR 10.02 (1), or 750 feet of any Vernal Pool.

Creek means the same as a stream.

Dredge means to deepen, widen, or excavate, either temporarily or permanently.

Freshwater Wetlands are Wet Meadows, Marshes, Swamps and Bogs.

Historic Mill Complex As defined in 310 CMR 10.04; An historic mill complex means the mill complexes in but not limited to Holyoke, Taunton, Fitchburg, Haverhill, Methuen, and Medford in existence prior to 1946 and situated landward of the waterside façade of a retaining wall, building, sluiceway or other structure existing on August 7, 1996. An historic mill complex also means any historic mill listed in the Massachusetts Registry of Historic Places. An historic mill complex includes only the foot print of the area that is or was occupied by interrelated buildings (manufacturing buildings, housing, utilities, parking areas and driveways) constructed before and existing after1946, used for any type of manufacturing and mechanical processing, and including associated structures to provide water for processing, to generate water power, or for water transportation.

Isolated Land Subject to Flooding is any isolated depression without an inlet or outlet which at least once a year confines standing water to a volume of at least one quarter acre-foot of water with an average depth of at least six inches.  The boundary is the perimeter of the largest observed or recorded volume of water confined in the basin.

Lake means any open body of fresh water with a surface area of ten (10) acres or more, and shall include great ponds.

Isolated Wetlands means isolated wetlands non-contiguous with a river or pond, 1,000 square feet or larger.

Marshes are areas where a plant community exists in standing or running water during the growing season and where a significant part of the vegetational community is composed of, but not limited to nor necessarily including all, of the following plants or groups of plants:  arums (Araceae), bladder worts (Utricularia), burr reeds (Sparganiaceae), button bush (Cephalanthus occidentalis), cattails (Typha), duck weeds (Lemnaceae, eelgrass (Vallisneria), frog bits (Hydrocharitaceae), horsetails (Equisetaceae), hydrophilic grasses (Gramineae), leatherleaf (Chamaedaphne calyculata), pickerel weeds (Pontederiaceae), pipeworts (Eriocaulon), pond weeds (Potamogeton), rushes (Juncaceae), sedges (Cyperaceae), smartweeds (Polygonum), sweet gale (Myrica gale), water milfoil (Haloragaceae), water lilies (Nymphaeaceae), water starworts (Callitrichaceae), water willow (Decodon verticillatus). (1997)

Mean Annual High-Water Line shall be as defined in Wetlands Protection Act Regulations 310 CMR 10.58  (2), as they may be amended.

No Build Buffer Zone Beginning at the outer limit of the No Disturbance Zone and extending outward a minimum of 25 feet measured horizontally.

No Disturbance Buffer Zone Beginning at the wetland resource area boundary and extending outward a minimum of 25 feet measured horizontally from the border of the resource area.

Person The term "person" shall include any individual, group of individuals, association, partnership, corporation, company, business organization, trust, estate, the Commonwealth or political subdivision thereof to the extent subject to City   ordinance, administration agency, public or quasi-public corporation or body, this municipality, and any other legal entity, its legal representatives, agents, or assigns.

Ponds shall include any substantially open body of fresh water with a surface area observed or recorded within ten years prior to the date of application as defined in 310 CMR 10.04 except that the size threshold of 10,000 square feet shall not apply. Ponds may be either naturally occurring or man-made by impoundment, excavation, or otherwise.  Ponds shall contain standing water except for periods of extended drought.  For purposes of this definition, extended drought shall mean any period of 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.

Notwithstanding the above, the following man-made bodies of open water shall not be considered ponds:  swimming pools or other impervious man-made basins; and individual gravel pits or quarries excavated from upland areas unless inactive for five or more consecutive years.

Rare species The term "rare species" shall include, without limitation, all vertebrate and invertebrate animal and plant species listed as endangered, threatened, or of special concern by the Massachusetts Division of Fisheries and Wildlife, regardless of whether the site in which they occur has been previously identified by the Division.

Resource areas The term "resource areas" shall include any freshwater wetlands; marshes; wet meadows; bogs; swamps; lakes; ponds; rivers; streams; creeks; banks; beaches; vernal pools; large isolated wetlands; land under water in each resource area; riverfront area; land subject to flooding or inundation by groundwater or surface waters; and Buffer Zone as defined in this ordinance.

Resource Area Values shall include but are not limited to the following; public or private water supply, ground water, flood control, erosion and sedimentation control, storm damage prevention, water quality, water pollution control, fisheries, wildlife habitat, rare species habitat including rare plant species, agriculture, riverfront area values, and recreation values deemed important to the community.

River means a natural flowing body of water of any size that empties to any ocean, lake or other river and which flows throughout the year.

Riverfront Area is defined in Wetlands Protection Act Regulations 310 CMR 10.58  (2) (a)(3): is the area of land between a river’s mean annual high-water line measured horizontally outward from the river and a parallel line located 200 feet away or as modified for Lawrence. (See Riverfront Area and Table 1) In areas where there riverbank has been altered or constricted by the presence of manmade structures or improvements, ie the GLSD sewer interceptor, or placement of rip rap or other armoring of the riverbank, the riverfront area shall be measured from top of bank, not mean high-water.

Stream is a body of running water, and the land under the water, including brooks, creeks, and man-made water courses, which moves in a definite channel in the ground due to hydraulic gradient.  A portion of a stream may flow through a culvert, or beneath a bridge or beneath the surface of the ground.  A stream may be intermittent (i.e. does not flow throughout the year) except for that portion up gradient of all resource areas.

Swamps are areas where ground water is at or near the surface of the ground for a significant part of the growing season or where runoff water from surface drainage frequently collects above the soil surface, and where a significant part of the vegetational community is made up of, but not limited to nor necessarily include all of the following plants or groups of plants:  alders (Alnus), ashes (Fraxinus), azaleas (Rhododendron canadense and R. viscosum), black alder (Ilex verticillata), black spruce (Picea mariana), buttonbush (Cephalanthus occidentalis), American or white elm (Ulmus americana), white Hellebore (Veratrum viride), hemlock (Tsuga canadensis), highbush blueberry (Vaccinium corymbosum), larch (Larix laricina), cowslip (Caltha palustris), poison sumac (Toxicodendron vernix), red maple (Acer rubrum), skunk cabbage (Symplocarpus foetidus), sphagnum mosses (Sphagnum), spice bush (Lindera benzoin), black gum tupelo (Nyssa sylvatica), sweet pepper bush (Clethra alnifolia), white cedar (Chamaecyparis thyoides), willow (Salicaceae), common reed (Phragmites communis), jewelweed (Impatiens capensis).

Vernal Pool shall include a confined basin depression of any size which, at least in most years, holds water for a minimum of two continuous months during March through August, which is free of naturally occurring fish populations and which contains evidence of breeding by obligate vernal pool species as recognized by Massachusetts Natural Heritage and Endangered Species Program.  A Vernal Pool shall be subject to these regulations without regard to its certification status with NHESP.

Wetland Resource Area is any resource area other than the Buffer Zone.

Wet Meadows are areas where ground water is at the surface for the significant part of the growing season and near the surface throughout the year and where a significant part of the vegetational community is composed of various grasses, sedges, and rushes, made up of, but not limited to nor necessarily including all of the following plants or groups of plants:  blue flag (Iris), vervain (Verbena), thoroughwort (Eupatorium), dock (Rumex), false loosestrife (Ludwigia), hydrophilic grasses (Gramineae), loosestrife (Lythrum), marsh fern (Dryopteris thelypteris), rushes (Juncaceae), sedges (Cyperaceae), sensitive fern (Onoclea sensibilis), smartweed (Polygonum).

Wildlife Habitat is any structure or feature, whether naturally ocurring or human made, or vegetative feature, or landscape features that provides for nesting, breeding, or feeding of animal species.

Except as otherwise provided in the ordinance or in regulations of the Commission, the definitions of terms in this ordinance shall be as set forth in the Wetlands Protection Act MGL Chapter 131, Section 40 and Regulations, 310 CMR 10.00, as they may be amended.

 3.0  Conditions

Lands within 200 feet of the bank of rivers, 750 feet of vernal pools (regardless of their certification status), and lands within 100 feet of ponds or lakes other wetland resource areas are presumed under the ordinance and these regulations important to the protection of these resources because activities undertaken in close proximity to resource areas have a high likelihood of adverse impact upon the wetland or other resource, either immediately, as a consequence of construction, or over time, as a consequence of daily operation or existence of the activities.  No activity that may alter the resource area shall take place within these areas without the issuance of an Order Of Conditions or a Negative Determination of Applicability  from the Commission.

For all proposed work, the Commission shall regard as practicable an alternative which is reasonably available and capable of being done, after taking into consideration the proposed property use, overall project purpose (e.g. residential, institutional, commercial, or industrial purpose), logistics, existing technology, costs of the alternatives and overall project costs.

All activities shall:

1.     Avoid resource areas and their buffer zones. Where that is not possible or practicable;
2.     Minimize resource area alteration. There resource area alteration is unavoidable;
3.     The Commission shall require full mitigation. The Commission may authorize replication or other forms of mitigation. In the event of replication, the Commission shall require adequate security to ensure the completion of replication and impose other requirements as the Commission deems necessary. 
To ensure that stormwater management structures are sufficient to meet likely future demands caused by climate change, the commission shall require the most current rainfall data available be used in all storm water calculations. The Cornell University Rainfall Atlas for New York and New England and NOAA Atlas 14 are currently the only approved rainfall data sources for use in submissions to the Commission.

3.1  Bordering Vegetated Wetlands and Isolated Wetlands

Bordering Vegetated Wetlands and Isolated Wetlands (310 CMR 10.55) and other resource areas shall receive the protection of a Buffer Zone which shall extend 100 feet horizontally beyond the wetland line. The Buffer Zone will include a setback from the wetlands line of a 25 foot vegetative No Disturbance Buffer Zone and an additional 25 foot No Build Buffer Zone. Restoration activities will be allowed in the No Disturbance Zone.

   A property with a No Disturbance Buffer Zone will have the No Disturbance Buffer Zone attach to the deed upon issuance of an order of conditions for the property. This will be the responsibility of the applicant for the Notice of Intent and the final order shall not be approved until suitable proof of compliance is submitted to the Commission.

3.2  Land Subject to Flooding

Land Subject to Flooding 310 CMR 10.57)  Compensatory storage shall be provided, in situ, on a 1:1 basis for any loss of flood storage within the 500 year flood zone. Lands within the 500 year flood plain may be subject to the Bordering vegetated wetlands, Isolated wetlands and or the Riverfront requirements

3.3  Intermittent Streams


Intermittent Streams: Determinations of the intermittent character of a stream made between  June and  September and in years of less than average rainfall shall be subject to review by this board and must meet the criteria of an average year and an average monthly rainfall as determined by NOAA or the DEP. Because a Stream Channel represents the interception of the channel bottom with the water table, both intermittent and perennial streams with enough contact with the ground water table to sustain aquatic, wetland or wetland facultative vegetation within the historic banks shall receive the protection of the by-law during periods of below average rainfall as determined by the Department of Environmental Protection.

  3.4 Riverfront Areas

Activities within 200 feet of any river or stream are subject to regulation.

Man made canals do not have riverfront areas.

The Ordinance created 4 categories of Riverfront areas, 200 foot, 100 foot, 50 foot and 25 foot – each with specific performance standards. The table delineating the riverfront area and the performance standards for each in included herein by reference and can be found in the Appendix to these regulations

            3.5  Historic Mill Complexes

In Historic Mill Complexes where functioning retaining walls, building penstocks and raceways buildings or other structures existed on or before August 7, 1996 (unless specified in Table 1), the 25-foot Riverfront area shall be applied.

3.7  Wildlife Habitat

The Commission may require a wildlife habitat study by a consultant, chosen or approved by the Commission, of the project area to be paid for by the applicant whenever it deems appropriate, regardless of the type of  resource  area or the amount of type of alteration proposed.

3.8 Vernal Pools

The commission shall presume that all areas meeting the definition of vernal pools under section 18.08.010 of the ordinance, including the adjacent area, perform essential habitat functions. No disturbance shall be allowed within 100 feet of the delineated border of a vernal pool. Any activity within 750 feet of the edge of a vernal pool shall be subject to conditions determined necessary by the Commission to protect the habitat functions of the vernal pool.

4.0 Administrative Fees

Each application filed with the Lawrence Conservation Commission pursuant to The City of Lawrence Wetland Protection Ordinance shall be accompanied by a filing fee as specified by the Ordinance (unless modified by this regulation).

Applicants shall be required to pay a $100 advertising fee upon submission in addition to the fees specified in the Schedule of Fees.

The schedule of fees in located in APPENDIX B.

4.1 Application and Public Hearing

For consistency and regulatory efficiency, the application process for filing a Notice of Intent, Request for Determination of Applicability or Abbreviated Notice of Resources Area Delineation under the Ordinance and these regulations shall be as set forth in the Wetlands Protection Act MGL Chapter 131, Section 40 and Regulations, 310 CMR 10.00, as they may be amended.