Input Sought on Draft Wetlands Ordinance & Regulations

 

The City seeks public input on its draft wetlands ordinance and regulations. The City and its environmental consultant developed these draft documents with a Working Group made up of staff from the Planning and the Engineering Departments along with representatives from the City Council, Planning Board, Conservation Commission, local environmental groups, the development community, and the general public. The Working Group’s efforts have been informed by public input through three forums and an online survey, examples and best practices from other communities, and wetlands science. Recordings of the forums, which include an introduction to wetlands science and protection, are available through the project webpage.

 

The draft ordinance and its implementing regulations provide substantial protections beyond what is currently in place through the state’s Wetlands Protection Act and Salem’s existing ordinance. They establish a new 25’ no-disturb area as well as a 50’ zone that prohibits impacts without mitigation. Vernal pools and isolated vegetated wetlands are now protected resource areas. And by adding climate change adaptation and mitigation as a resource area value, the Conservation Commission for the first time will have the explicit authority to incorporate climate considerations into its review. Furthermore, these drafts propose clear language regarding waiver criteria, enforcement, and appeals.

 

This will be a major leap forward in the protection of Salem’s natural environment, and the work continues beyond the adoption of the new ordinance and regulations. Additional work includes revisions to the City’s subdivision regulations, stormwater ordinance, and green building policies—as well as other initiatives that will come out of the Salem-Beverly Resilient Together Climate Action and Resilience Plan. This wetlands policy initiative has also highlighted the need to review the City’s Flood Hazard Overly District Special Permit zoning ordinance. Furthermore, MassDEP will be promulgating Wetlands Protection Act regulations for coastal flood zones.

 

The City and its environmental consultant will present a summary of the draft ordinance and regulations at its November 23 virtual Public Forum where all are welcome to attend and provide comments.

 

For questions, please contact Tom Devine at [email protected] or 978-619-5685.

DRAFT - Chapter 50 WETLANDS PROTECTION AND CONSERVATION

 

*Cross references: Boats and waterways, ch. 10; building, electricity and plumbing regulations, ch. 12; planning and development, ch. 30; waters and sewers, ch. 46.

State law references: Removal, fill, dredging or altering land bordering waters, M.G.L.A. c. 131, § 40.

Sec. 50-1. Introduction

This Ordinance is intended to utilize the City of Salem’s Home Rule authority to protect additional resource areas, identify additional values, and create additional standards and procedures stricter than those of the Wetlands Protection Act (M.G.L.A. c. 131, § 40; “the WPA”) and Regulations thereunder (310 CMR 10.00).

 

Sec. 50-2. Purpose

The purpose of this Wetlands Protection Ordinance is to protect the wetlands, water resources, and adjoining land areas in Salem by controlling activities deemed by the Conservation Commission likely to have a significant or cumulative effect upon the following resource area values. Those identified with an asterisk* are in addition to the interests protected by the WPA.

  

  • public or private water supply
  • ground water supply
  • flood control
  • storm damage prevention
  • prevention of pollution
  • protection of land containing shellfish
  • protection of fisheries
  • protection of wildlife habitat
  • *climate change adaptation and mitigation,

Collectively, the "resource area values protected by this Ordinance"

 

Sec. 50-3. Jurisdiction       

Except as permitted by the Conservation Commission, no person shall remove, fill, dredge, discharge into, build upon, degrade, or otherwise alter in or over any of the following resource areas: any freshwater wetland (e.g. wet meadows, bogs, swamps); any coastal wetland (e.g. coastal/barrier beaches, coastal dunes, coastal banks, rocky intertidal shores, land under the ocean, salt marsh, land under salt ponds, land containing shellfish, fish runs, land subject to tidal action); vernal pool; river, stream, pond, reservoir, or lake, or any bank to said waters, or any land under said waters; riverfront area; designated port areas or any land subject to inland and/or coastal flooding or inundation.

 

Additionally, except as permitted by the Conservation Commission, no person shall remove, fill, dredge, discharge into, build upon, degrade, or otherwise alter in or over land within 100-feet of the above resource areas, hereinafter the “buffer zone”. Notwithstanding the foregoing, and in accordance with the WPA, the following resource areas do not have an associated buffer zone: riverfront area, land under waters, land containing shellfish, fish runs, land subject to tidal action, and designated port areas.  

 

Sec. 50-4. Exceptions

The above prohibitions shall not apply to emergency projects recognized by the WPA so long as the Conservation Commission or its designee certifies the emergency in accordance with the standards under the WPA and implementing regulations at 310 CMR 10.00.

 

Additionally, the requirements of this Ordinance and its implementing regulations shall not apply to the minor activities and other exemptions recognized by the WPA and its implementing regulations at 310 CMR 10.00 so long as the Conservation Commission is notified of proposed work via certified mail a minimum of 30 days prior to commencement of activities located in areas protected by this Ordinance.

 

Maintenance (but no further alteration, expansion, or change in character or use) of pre-existing lawfully located uses and structures that were in place on or before the promulgation of the Ordinance are permitted without application for a permit to the Conservation Commission, provided that notice of such activities is sent via certified mail a minimum of 30 days prior to commencement of work.

 

Sec. 50-5. Definitions

The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where further definition/clarification is provided through regulation. Except as defined otherwise herein or in regulations adopted by the Conservation Commission, terms follow the definitions found in the WPA and its implementing regulations at 310 CMR 10.00. To the extent not defined herein, words used in these regulations shall have the definitions contained in the WPA.

 

Ancillary Structure shall mean any structure on the same lot or lots in common ownership as the principal use, and whose purpose is customarily incidental to the main or principal building or use of the land.

 

Alter includes, without limitation, the following actions when undertaken in areas subject to this chapter: (1) Removal, excavation or dredging of soil, sand, gravel, or aggregate material of any kind. (2) Changing drainage characteristics, flushing characteristics, salinity distribution, sedimentation patterns, flow patterns and flood retention characteristics. (3) Drainage or other disturbance of the water level or water table. (4) Dumping, discharging or filling with any material. (5) Driving of piles, erection of buildings or structures of any kind. (6) Placing of obstructions, whether or not they interfere with the flow of water. (7) Destruction of plant life, including cutting of trees, but excluding maintenance of landscape areas (provided that no unauthorized expansion of landscaping occurs)  that were in place as of the original Ordinance adoption (DATE). (8) Changing of water temperature, biochemical oxygen demand or other physical or chemical characteristics of the water.

 

Banks means that part of land adjoining any body of water which confines the water. Bank is associated with all intermittent streams, even those upgradient of other wetland resource areas in cases where a defined channel with evidence of flow is observed.

 

Climate Change Adaptation and Mitigation are measures designed or intended to protect resource areas from the impacts of climate change and to protect the ability of resource areas to mitigate the impacts of climate change with consideration of the resource area values protected by the Ordinance.

 

Climate Change Impacts include without limitation: extreme heat; the timing, frequency, intensity, and amount of precipitation, storm surges, and rising water levels; increased intensity or frequency of storm events or extreme weather events; and frequency, intensity, and duration of droughts.

 

Coastal Wetland means any bank, marsh, swamp, meadow, flat or other lowland subject to tidal action or coastal storm flowage.

 

Freshwater Wetland is an area where soils are saturated and/or inundated such that they support wetland indicator plants. The ground water and surface water hydrological regime, soils, and the vegetational community which occur in a freshwater wetland, are defined under this Ordinance based on the definition of “Bordering Vegetated Wetland” at 310 CMR 10.00. The term freshwater wetland shall include isolated vegetated wetlands which are at least 750 square feet in size as defined herein.

 

Isolated Vegetated Wetland (IVW) shall include wetlands which meet the MassDEP manual entitled “Delineating Bordering Vegetated Wetlands Under the Massachusetts Wetlands Protection Act” (1995 and as may be amended from time to time) with respect to the delineation standards for soils, hydrology, and vegetation, are at least 750 square feet in size or greater, but that do not require connectivity to surface waters. The Conservation Commission may, through written determination, exclude areas from being considered IVW if compelling evidence is presented that the IVW exists as a result of stormwater infrastructure or other human-induced disturbance/activity. Additionally, the Conservation Commission may find that areas that would otherwise qualify as IVW, but that are dominated by a prevalence of invasive and/or non-native plant species, are non-jurisdictional.

 

Passive Passage means any pedestrian activity which does not involve the disturbance of the substrate or existing vegetative conditions.

 

Person includes any individual, groups of individuals, association, partnership, corporation, company, business organization, trust, estate, the Commonwealth or political subdivisions thereof to the extent subject to city ordinances, administrative agencies, public or quasi-public corporations or bodies, the city, and any other legal entity, its legal representatives, agents or assigns.

 

Previously Disturbed or Degraded means areas which previously or currently lawfully contain(ed) impervious areas such as buildings, roadways, parking lots, or that were graded or altered by direct human activities not associated with natural resource or land management activities such that their present character is notably different than it would be had it not been altered. Previously Disturbed or Degraded areas may be partially vegetated provided there is a notable absence of topsoil (e.g. O or A Soil Horizon) or other compelling anthropogenic factor which documents the historic land use therein. An Applicant carries the burden of proof to demonstrate that land is Previously Disturbed or Degraded. Previously Disturbed or Degraded areas must have been the result of a lawful use/activity in order to be considered as such.

 

Stream means a body of running water that moves in a definite channel in the ground due to a hydraulic gradient. Such a waterway is a stream regardless of its relationship to other resource areas. Streams do not include manmade channels unless such channels represent channelization or redirection of historically naturally occurring streams, or were created for the purpose of functioning as a stream (such as may be done for ecological projects, or replication/mitigation).

 

Structures include, but are not limited to, commercial and industrial buildings, single family houses, multifamily dwellings, porches, decks, additions, sheds, outbuildings, pools, docks, pile supported features, septic systems and any of their components, underground storage tanks, roadways, fencing (excluding perimeter sediment controls and snow fencing), driveways, and retaining walls supporting more than a 4-foot height of fill. Stormwater management infrastructure and other utilities shall be excluded from the definition of structure.

 

Vernal Pool shall mean an area that provides breeding habitat for species that depend on ephemeral bodies of water for breeding and other life stages. To be considered vernal pools such areas must meet certification criteria as defined by the MA Natural Heritage and Endangered Species Program (NHESP). Certain areas that have been extensively altered by human activities as of the effective date of this Ordinance amendment and maintained as such continuously are not regulated as vernal pools. Such disturbed areas may include, for example, the built and utilized footprints of: paved and graveled areas, golf courses, cemeteries, playgrounds, landfills, fairgrounds, quarries, gravel pits, buildings, lawns, gardens, roadways (including median strips, areas enclosed within highway interchanges, shoulders, and embankments), railroad tracks (including ballast and embankments), and similar areas. Areas mapped by NHESP as potential vernal pools are considered vernal pools under this Ordinance unless the project proponent demonstrates to the Conservation Commission that said area is not certifiable per NHESP criteria. In evaluating the information presented to demonstrate that an area is not a vernal pool, the Commission shall consider appropriate factors, including the extent of the investigations conducted and drought/rainfall conditions, for example.

 

Wildlife Habitat means important food, shelter, migratory or overwintering areas, or breeding areas for wildlife. Certain areas that have been extensively altered by human activities as of the effective date of this Ordinance amendment and maintained as such continuously are not important wildlife habitat. Such disturbed areas may include, for example, the built and utilized footprints of: paved and graveled areas, golf courses, cemeteries, playgrounds, landfills, fairgrounds, quarries, gravel pits, buildings, lawns, gardens, roadways (including median strips, areas enclosed within highway interchanges, shoulders, and embankments), railroad tracks (including ballast and embankments), and similar areas.

 

The Conservation Commission may, through its implementing regulations, expand upon or add additional definitions in order to protect the resource area values established by this Ordinance.

 

Sec. 50-6. Conservation Commission Filing

No person shall remove, fill, dredge, alter or build upon, over, or within areas subject to the Conservation Commission’s jurisdiction without filing a written application for a permit including such plans as may be necessary to describe such proposed activity and its effect on the environment, and receiving and complying with a permit issued pursuant to this chapter. Such application must be identical in form to a Notice of Intent or Request for Determination of Applicability as described in M.G.L.A. c. 131, § 40 and the implementing regulations at 310 CMR 10.00. The Conservation Commission may establish a filing fee schedule for such applications.

 

Notwithstanding the above, activities located solely within the 100-foot Buffer Zone to inland or coastal land subject to flooding or inundation may be reviewed by the Conservation Agent to determine whether a filing is required. In such cases, the Conservation Agent’s administrative determination as to whether or not to require a filing shall be based upon a review of whether the project location is so topographically separated from the flood zone that the Ordinance values do not apply.

 

Sec. 50-7. Hearing on Permit Application; Access to Property

Notice of the time and place of the hearing shall be provided by the Applicant, using a legal notice document to be provided by the Conservation Office, not less than five days prior to the hearing, by publication in a newspaper of general circulation in the City. The Conservation Office may establish submission requirements, including required notifications to other City Departments, for example. The applicant shall provide notice to all abutters in the same form as detailed in M.G.L.A. c. 131, § 40 and the implementing regulations at 310 CMR 10.00. Notwithstanding the foregoing, abutter notification is not required for Request for Determination of Applicability filings.

 

For the purposes of reviewing an application for permit, the Conservation Commission, its agents, officers and employees may enter upon privately owned land for the purpose of performing their duties under this chapter.

 

Sec. 50-8. Buffer Zone and Setbacks

In reviewing activities within the buffer zone, the Conservation Commission shall presume the buffer zone is important to the protection of its subject resource area because activities undertaken in close proximity have been shown to have a high likelihood of adverse impact, either immediately, as a consequence of construction, or over time, as a consequence of daily operation or existence of the activities.

 

Adverse impacts to wetland resource areas from construction and use within their related buffer zone can include, without limitation, erosion, siltation, loss of groundwater recharge, poor water quality, loss of trees and other vegetation, and degradation of wildlife habitat. Therefore, this Ordinance gives the Commission broad discretion to permit, condition, and prohibit work within the buffer zone as the specific situation warrants.

 

This Ordinance further establishes the following areas within the 100-foot buffer zone, which are subject to specific requirements and greater scrutiny:

 

  • 25-foot No Disturbance Zone – the first 25-feet within the buffer zone extending from an applicable resource area in which virtually no activities or work, other than passive passage, stormwater outfall components, and utilities, are permitted. No vegetation may be disturbed, leaf litter and woody debris remains in place, etc. The No Disturbance Zone shall remain unchanged from its pre-development project state when considering both the construction period and the long-term use of the project site. The land use restrictions within the No Disturbance Zone are to be further tabulated in the implementing regulations.
  • 50-foot Mitigation Zone – the first 50-feet within the buffer zone extending from an applicable resource area in which disturbance is prohibited without adequate mitigation as determined by the Conservation Commission. The Mitigation Zone overlaps the No Disturbance Zone detailed above.

 

 

Beyond the above-described zones, the Conservation Commission shall consider proposals for work in the buffer zone in terms of broad forms of disturbance areas. This approach is intended to allow flexibility for property use while maintaining adequate levels of wetland resource area protection. Additional buffer zone disturbance setbacks may be enumerated through implementing regulations.

 

In considering the types of work and activities allowable within the overall 100-foot buffer zone, and conditions to apply, the Conservation Commission shall consider the following,

  1. Values and Functions of the Resource Area. The quantity and quality of resource values and functions should be considered explicitly in placing conditions on buffer zone work.
  2. Pre-Project Characteristics of the Site. Ground slope, soil conditions, vegetation, and prior disturbance are some of the site-specific characteristics that shall be considered in setting conditions for work in the buffer zone.
  3. The nature of the activities proposed and their potential likelihood of impacting the Ordinance values.
  4. The Project’s implementation of climate change adaptation measures.

As appropriate to protect the Ordinance values, the Conservation Commission may expand the minimum setbacks indicated herein or in implementing regulations.

 

The Applicant shall carry the burden of proof for demonstrating to the Commission’s satisfaction that the proposed work or activities in the buffer zone are necessary, and that reasonable alternatives do not exist. Said demonstration may take the form of a written narrative or report with accompanying exhibits as appropriate.

 

Applicants wishing to rebut the presumptions set forth above shall provide the Commission with a written waiver request in accordance with Section 50-10 herein.   

 

Notwithstanding the above, the Conservation Commission may, without requiring a formal waiver request, reduce the setbacks for:

 

  1. Redevelopment of sites that contain previously disturbed or degraded areas regardless of whether such areas are within the relevant setback, so long as work results in an overall improvement to the applicable setback in terms of the ability of the associated resource area to protect the values of this Ordinance.

 

  1. Projects involving work necessary to access buildable upland (including access roads, driveways, and utilities) as long as there is no other means of accessing said buildable upland, and said work meets all the other requirements of the WPA and this Ordinance.

 

  1. If in its judgment such a reduction is necessary to accommodate a project that will have an overall benefit to the public and/or to the environment (such as a project addressing sewer inflow and infiltration, or an environmental enhancement project).

 

  1. If in its judgment such a reduction is necessary to accommodate reasonable recreational access and connectivity by path, including paved or other surface type multiuse paths or other least intrusive means of access, to other portions of a property or the shoreline, as long as there is no other alternative means of accessing the other portions of the property, and that such alteration does not exceed the minimum path necessary to be compliant with state and federal accessibility requirements. Such paths are to include elevated boardwalks as appropriate to minimize impacts. Such alterations may require wetlands replication.

 

  1. Ancillary Structures associated with single-family dwellings constructed prior to the adoption of this Ordinance.

 

The setback requirements shall not apply to:

 

  1. Projects requiring Chapter 91 Licenses pursuant to the water-dependent use provisions, repairs of existing Chapter 91 Licensed structures, or other coastal engineering structures deemed by the Conservation Commission to be necessary to protect the interests of the WPA and this Ordinance.

 

  1. Projects involving the maintenance and repair, but not expansion of or change in character or use of, existing and lawfully located buildings and structures, including roads, culverts, utilities, septic systems, or storm water drainage structures.

 

  1. Remediation activities performed under the Massachusetts Contingency Plan, provided that the activities comply with all other applicable state and local regulations.

 

Sec. 50-9. Climate Change Resiliency

Climate change is an overriding public interest. Consideration of the effects of climate change on the City’s wetlands resource areas is necessary to maintain the values of the Ordinance into the future. Additionally, appropriate protection of wetlands resource areas and their values will facilitate the City’s climate change preparedness and resilience.

 

The Applicant shall, to the maximum extent practicable, integrate considerations of adaptation planning into their project to promote climate change resilience so as to protect and promote resource area values into the future. The Applicant shall consider the resource area’s ability to be resilient to the effects of climate change and protect the values of the Ordinance. These considerations are especially important in Land Subject to Flooding and Coastal Storm Flowage (100-year floodplain), coastal wetlands, and other resource areas which protect the interest of Flood Control and Storm Damage Prevention, including the associated buffer zones. Resource areas may be directly impacted by extreme weather events expected to be more prevalent or more intense due to climate change, in surface runoff of pollutants, and in wildlife habitat due to changes in temperature.

 

In reviewing project climate change resiliency information, the Conservation Commission shall give consideration as to the size and scale of the project and the extent to which resource area impacts are avoided, minimized, and mitigated.

 

The Conservation Commission may, through implementing regulations, adopt additional provisions and mapping related to resource area values respective of climate change in accordance with best available science. Mapping adopted by the Conservation Commission may include, without limitation, projections of Sea Level Rise and future storm events/flood zones for project proponents to consider in applications for work submitted to the Conservation Commission.

 

Sea Level Rise Considerations

The City of Salem recognizes the relative rise in elevation of the sea surface over time. Those portions of coastal floodplains which are immediately landward of salt marshes, coastal beaches, barrier beaches, coastal dunes or coastal banks require special protection as they are likely to be in a state of transition as the entire complex of coastal wetland resources gradually moves landward due to rising relative sea levels.

 

Development activities carried out within the transitional areas of coastal floodplains will be subject to increased storm damage and may interfere with the natural landward migration of the adjacent coastal resource areas. Therefore, the Salem Conservation Commission may adopt, through implementing regulations, performance standards for coastal resource areas with respect to Sea Level Rise.

 

 

 

Sec. 50-10. Waiver Criteria

An Applicant may seek relief from the standards of the Ordinance and any implementing regulation by requesting a waiver to the applicable standards. The Commission may, at its discretion, grant a waiver to the standards of the Ordinance and regulations based on the Applicant’s demonstration of the following:

 

  1. The proposed land-use activity(ies) conforms with the goals and statutory interests of the Ordinance and regulations adopted thereunder, and the activity(ies), including proposed mitigation measures, will have no significant adverse impact on the values protected by this Ordinance;

 

  1. The relief requested by the project proponent is the minimum waiver necessary to achieve the project goals or allow for reasonable use of the property;

 

  1. The requested waiver is not the result of any prior action of the project proponent or any predecessor in title (i.e., the Applicant must document that the waiver is not the result of a self-imposed hardship);

 

  1. The granting of the waiver will not hinder the ability of wetland resource areas or buffer zones to provide climate mitigation or protect the adjacent landscape from storm surge as anticipated based on best available information;

 

  1. Where applicable, work within required setbacks noted herein shall not result in adverse impacts to the resource area values. Project proponents shall provide clear documentation to the Conservation Commission as to the means and methods for avoiding construction-phase impacts and impacts from the future existence of the project within setbacks; and

 

  1. The Applicant shall demonstrate that all other practicable project alternatives to avoid or minimize impacts have been exhausted, including seeking relief from municipal zoning provisions as applicable. 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.
  2.  

Relief in the form of a waiver to a provision of the Ordinance does not remove the Applicant’s responsibility for compliance with all other requirements of the Ordinance.

 

Sec. 50-11. Severability

The invalidity of any section or provision of this Ordinance shall not invalidate any other section or provision thereof, nor shall it invalidate any permit, approval or determination which previously has been issued.

 

Sec. 50-12. Relationship to State Statute

The Conservation Commission shall not impose additional or more stringent conditions pursuant to M.G.L.A. c. 131, § 40 than it imposes pursuant to this chapter, nor shall it require an applicant filing a notice of intention pursuant to M.G.L.A c. 131, § 40 to provide materials or data in addition to those required pursuant to this chapter. 

 

Restoration of land in violation. Any person who purchases, inherits or otherwise acquires real estate upon which work has been done in violation of this chapter or in violation of any permit issued pursuant to this chapter shall forthwith comply with any such order or restore such land to its conditions prior to any such violation; provided, however, than no action, civil or criminal, shall be brought against such person unless commenced within three years following the date of acquisition of the real estate by such person.

 

Sec. 50-13. Promulgation of Regulations

After due notice and public hearing, the Conservation Commission may promulgate rules and regulations to effectuate the purposes of this chapter. Failure by the Conservation Commission to promulgate such rules and regulations or a legal declaration of their invalidity by a court of law shall not act to suspend or invalidate the effect of this chapter.

 

Sec. 50-14. Burden of Proof

The Applicant shall have the burden of proving by a preponderance of the credible evidence that the work proposed in the application for the permit required by this chapter will not harm the interests protected by this chapter. Failure to provide adequate evidence to the Conservation Commission supporting a determination that the proposed work will not harm the values protected by this chapter shall be sufficient cause for the Conservation Commission to deny a permit or to grant a permit with conditions or, in the Conservation Commission's discretion, to continue the hearing to another date to enable the Applicant or others to present additional evidence.

 

Sec. 50-15. Security.

The Conservation Commission may require, as a permit condition, that the performance and observance of other conditions be secured by one or both of the following methods:

  1. A bond or deposit of money or negotiable securities in an amount determined by the Conservation Commission to be sufficient and payable to the Conservation Commission upon default.
  2. A conservation restriction, easement or other covenant running with the land, executed and properly recorded or registered, in the case of registered land, with the Essex South District of Registry of Deeds.

 

Sec. 50-16. Appeal.

A decision of the Conservation Commission shall be reviewable in the Superior Court in accordance with M.G.L.A. Ch. 249, §4.

 

Sec. 50-17. Enforcement

Any person who violates any section of this chapter or any condition of a permit issued pursuant to this chapter shall be punished by a fine of not more than $200.00. Each day or portion thereof during which a violation continues shall constitute a separate offense; if more than one, each condition violated shall constitute a separate offense. This chapter may be enforced by a police officer or other officer having police powers. Upon request of the Conservation Commission or of the City Council, the Mayor and City Solicitor shall take such legal action as may be necessary to enforce this chapter and permits issued pursuant to this chapter.

 

Sec. 50-18. Effective Date

This Ordinance Amendment becomes effective # days following final adoption, and shall apply to all Notices of Intent filed on or after that date and any subsequent procedures related to such filings made on or after that date. This Ordinance Amendment shall not apply to projects for which a Notice of Intent was filed (and for which an Order of Conditions remains valid) prior to the effective date.

Draft Regulation Components

1.  Authority

The Salem Wetland Protection Regulations are promulgated pursuant to the Salem Wetlands Protection Ordinance (Chapter 50 of Code of Ordinances, the “Ordinance”).

2. Definitions

The definitions in Section 2.00 of these regulations are for terms as used in the Ordinance and for terms as used in these regulations. To the extent not defined herein or in the Ordinance, words used in these regulations shall have the definitions contained in the Massachusetts Wetlands Protection Act (M.G.L.A. Chapter 131, Section 40) and the rules and regulations promulgated there under (310 CMR 10.00)

[Add additional definitions not established by the Ordinance]

3. General Provisions and Procedures

[Placeholder for Administrative Processes if needed]

4. Public Hearings

The Conservation Commission shall commence a public hearing for a permit application within 21 days of receipt and acceptance of a completed application (as determined by the Commission staff), unless a waiver of the timeframe has been granted by the Applicant. Notice of time, date and place of hearing shall be given by the Commission as described in the Salem Wetlands Protection Ordinance. All application and advertising fees must be paid in full prior to the opening of a public hearing. Failure to pay these fees constitutes an incomplete application and may result in a denial of the application or delay to the start of the public hearing.

The Conservation Commission’s review and deliberation on a Request for Determination of Applicability (RDA) under the Ordinance or Regulations shall not be considered a public hearing.

 

5.  Abutter Notification Process

Public hearing notification to abutters at the expense of the Applicant is required under the Massachusetts Wetlands Protection Act and the Salem Wetlands Protection Ordinance. The time, date and place of the public hearing for a Notice of Intent (NOI), Abbreviated Notice of Intent (ANOI), or Abbreviated Notice of Resource Area Delineation (ANRAD) application, must be provided to all abutters within 100 feet of the land on which the proposed work is to be done. If abutters within 100 feet are located in an adjacent municipality, they must also be notified. Abutter notification shall be undertaken in accordance with 310 CMR 10.05(4)(a) regardless of whether an area is subject to jurisdiction pursuant to the MA Wetlands Protection Act and implementing Regulations at 310 CMR 10.00 and/or subject to jurisdiction pursuant to the Ordinance. No abutter notification is required for an RDA.

 

 

6. Buffer Zone Standards

A resource area Buffer Zone is an area subject to protection under the Ordinance and is land extending 100 feet horizontally outward from the boundary of all the resource areas subject to protection under the Ordinance (excluding Riverfront Area, Land Under Waters, Land Containing Shellfish, Fish Runs, Land Subject to Tidal Action, and Designated Port Areas). The Buffer Zone is not itself a resource area.

 

  1. Presumptions of Significance; Findings

1.   A Buffer Zone to a wetland resource area is significant to the protection of the resource area values of the Ordinance and serves to protect, maintain, as well as enhance the function of the adjoining resource area. The Commission may require specific No Disturbance Zones, or Mitigation Zones starting at the delineated edge of wetland resource areas in order to adequately protect the resource area values under the Ordinance.

 

The Commission will employ heightened scrutiny for activities proposed within the setbacks described below, including use of peer review consultants to provide expert technical input as needed.

 

  1. The 25-foot No Disturbance Zone is as established in Section 50-8 of the Ordinance. The intent of the 25-foot No Disturbance Zone is that no alterations, other than activities that improve the character of this Zone with regard to its contribution to the associated resource area’s ability to maintain the Ordinance values, shall be allowed other than as may be described in the Ordinance or elsewhere herein. Prohibited alterations within No Disturbance Zones include, but are not limited to, clearing or cutting of vegetation, landscaping, grading, filling, excavating, constructing driveways, roads, septic systems, stormwater management systems and structures. Notwithstanding the foregoing, as specified in the Ordinance, passive passage, stormwater outfall components, and utilities may be allowed within the 25-foot No Disturbance Zone if no other practicable alternative exists.

 

  1. The 50-foot Mitigation Zone is as established in Section 50-8 of the Ordinance.  The Mitigation Zone overlaps with the 25-foot No Disturbance Zone such that even if disturbance is allowed between 0’ to 25’ through an exemption or waiver, the requirements of the Mitigation Zone still apply.

 

The intent of the Mitigation Zone is that disturbance is prohibited without adequate mitigation provided as determined by the Conservation Commission. Such mitigation may be located on or off the site of the proposed work, as long as located in areas subject to Salem Conservation Commission jurisdiction.

 

Mitigation may take the form of public walking paths, tree plantings, other native plantings, select adaptive plantings for climate change planning, creation of additional wetland areas, invasive species management, improved stormwater controls, elevation of structure above heights required by other statute/building code, conservation restrictions, or funding, for example. The extent and type of mitigation required shall be based upon a variety of factors, including but not limited to the impact of proposed activities and nature of the existing buffer zone.

 

The Commission may exclude certain activities that are undertaken for the benefit of the public or that will result in notable public benefits from the mitigation requirements in this Zone. Such activities may include seawall pointing, replacement, and /or improvement, up to 100 linear feet but excluding any filling/grading associated with said work, for example.                                                                                                                         

The Conservation Commission may, at its discretion, require the Applicant to provide a quantitative and/or qualitative assessment of the existing Buffer Zone by a competent source to demonstrate that land use activities within the 50-foot Mitigation Zone will not adversely impact the resource area values of the Ordinance.

 

For all activities within the Mitigation Zone, the Applicant shall demonstrate that such activities will not have an adverse effect on the ability of the wetland resource areas to protect the values of the Ordinance.

 

Additionally, the Applicant shall address how on-going use of the area will not contribute to future degradation of the wetland resource area values of the Ordinance.

 

 

  1. The Commission may, at its discretion, require the installation of permanent, immovable barriers (large rocks, stone walls, fencing, or other types of permanent markers) along the line where the limit of work or disturbance is proposed. Permanent barriers are an effective visual reference, and help avoid “lawn creep” by future landowners who may not be as aware of the wetland resource areas as the original Applicant.

 

  1. The No Disturbance Zone and Mitigation Zone to wetland resource areas are as tabulated below. Where a resource area is not listed, there is not a specified setback; however as with all resource area buffer zones, the Conservation Commission will review each project on a case-by-case basis to evaluate what setbacks are appropriate.

Table A. No Disturbance Zone and Mitigation Zone (in linear feet distance from resource area)

 

Resource Area

Project Site Characteristic & Type of Work

 

Undeveloped

Previously Disturbed or Degraded

Freshwater Vegetated Wetlands, Coastal Wetlands (including Bank), Perennial Stream/River, Intermittent Stream, Water Body[1]

 

 

  No Disturbance Zone

25’

Lesser of Existing Limit of Disturbance or 25’

  Mitigation Zone

50’

Lesser of Existing Limit of Disturbance or 50’

Vernal Pools

 

 

  No Disturbance Zone

75’

Lesser of Existing Limit of Disturbance or 75

  Mitigation Zone

100’

Lesser of Existing Limit of Disturbance or 100’

 

  1. Site plans submitted to the Salem Conservation Commission for either an NOI or an ANRAD shall reflect the resource area setbacks displayed in Table A.

 

  1. The establishment of the No Disturbance Zone and Mitigation Zone as defined by the Ordinance and herein shall not compromise or diminish the Conservation Commission’s jurisdiction over the 100-foot Buffer Zone as established by the WPA or the Ordinance.

 

7. Climate Change Adaptation and Mitigation

Projects shall be evaluated with regard to whether they preclude the ability of a wetland resource area to be resilient to the effects of climate change (e.g. salt marsh migration, increased temperatures, etc.) or if project components will be likely to result in future wetland resource area impacts due to the effects of climate change (e.g. water tight sanitary sewer in areas subject to current, or predicted, future flooding where the latter occurs within other areas subject to the Commission’s jurisdiction).

 

Application Criteria for Climate Change Adaptation and Mitigation

To satisfy the resource area values defined in the Ordinance related to climate change, project proponents submitting a Notice of Intent must provide the following documentation for the Conservation Commission’s review:

 

  1. Describe project design considerations which address storm and flood damage.

 

  1. Describe how the project accounts for potential future increases in stormwater runoff and how best management practices account for storm surges and extreme weather events anticipated due to climate change to the maximum extent practicable.

 

  1. Describe planting plans and other measures such as limiting increases in impervious surface cover to maintain and enhance the resiliency of the resource area to withstand potential temperature and rainfall changes due to climate change, as well as Sea Level Rise. 

 

  1. Describe measures to protect proposed and existing structures and minimize damage to structures due to the impacts of climate change.

 

  1. Any vegetated wetland impacts proposed within areas also situated within Land Subject to Flooding or Coastal Storm Flowage shall be mitigated at a 2:1 ratio within the same flood zone area. Impacts allowed within said resource areas shall be at the discretion of the Conservation Commission’s findings that the resource area values of the Ordinance are not adversely affected by the Project.

The Conservation Commission shall, in its generation of an Order of Conditions, document whether or not the project protects and/or enhances resource area values with relation to Climate Change Adaptation and Mitigation.

Applicants petitioning for a RDA shall not be required to respond to the Climate Change Adaption and Mitigation standards herein.

8. Applications

9. Inland Resource Areas and Performance Standards

10. Coastal Resource Areas and Performance Standards

11. Mitigation

12. Waiver Provisions

An Applicant may seek relief from the standards of the Ordinance or these Regulations. Request(s) for waiver(s) must be submitted in writing. The standards for the granting of waivers is as outlined in Section 50-10 of the Ordinance.

13. Effective Date

14. Enforcement

15. Severability

 

 

 

[1] Includes pond, reservoir, or lake