Wetland Bylaw

The purpose of this By-Law is to protect the wetlands of the Town of Tisbury by controlling activities deemed to be of significant effect upon wetland values, including, but not limited to the following: public or private water supply, groundwater, flood control, erosion control, storm damage prevention, water pollution, fisheries, shellfish, wildlife, and recreation (collectively, the "interests protected by this By-Law").

No person shall remove, fill, dredge, alter, or build upon or within one hundred feet of any bank, fresh water wetland, coastal wetland, beach, dune, flat, marsh, meadow, bog, swamp, or upon or within one hundred feet of any land under said waters or upon or within one hundred feet of any land subject to tidal action, coastal storm flowage, flooding or inundation, written, or within one hundred feet of the 100 year storm line, without filing written application for a permit to so remove, fill, dredge, alter, or build upon, including such plans as may be necessary to describe such proposed activity and its effect upon the environment, and receiving and complying with a permit issued pursuant to this By-Law.

The provisions of this section shall not apply to work performed in the course of 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 and used to provide electric, gas, water, telephone or telegraph or other telecommunication services.

The provisions of this section shall also not apply to work performed for normal maintenance or improvement of land in agricultural use as defined under 7.4 of this By-Law.

Such application may be identical in form to a Notice of Intention filed pursuant to MA GENERAL LAWS CH. 131, SEC. 40: shall be sent by certified mail to the Tisbury Conservation Commission (the "Commission"), and must be filed concurrently with or after applications for all other variances and approvals required by the Zoning By-Law, the Subdivision Control Law or any other By-Law or regulation have been obtained. The Commission shall set a filing fee by regulation, but no filing fee is required when the Town of Tisbury files an application for a permit. The Commission will notify the applicant of any other appropriate town boards which shall receive copies of the application.

Upon written request of any person, the Commission shall, within twenty-one days, make a written determination as to whether this By-Law is applicable to any land or work thereon. When the person requesting a determination is other that the owner, notice of the determination shall be sent to the owner as well as to the requesting person.

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The Commission shall hold a public hearing on the application within twenty-one days of its receipt. Notice of the time and place of the hearing shall be given by the Commission at the expense of the applicant, not less than five days prior to the hearing, by publication in a newspaper of general circulation in Tisbury, and by mailing a notice to the applicant, and to such other Boards and persons as the Commission may by regulation determine. The Commission, its agents, officers, and employees may enter upon privately owned land for the purpose of performing their duties under this By-Law.

Section 2.1: Permit & Conditions

If after the public hearing, the Commission determines that the area which is the subject of the application is significant to the interests protected by this By-Law, the Commission shall, within twenty-one days of such hearing, issue or deny a permit for the work requested. If it issues a permit after making such a determination, the Commission shall impose such conditions as it determines are necessary or desirable for protection of those interests, and all work shall be done in accordance with those conditions. If the Commission determines that the area which is the subject of the application is not significant to the interests protected by the By-Law, or that the proposed activity does not require the imposition of conditions, it shall issue a permit without conditions within twenty-one days of the public hearing. Permits shall expire three years from the date of issuance, unless renewed prior to expiration, and all work shall be completed prior to expiration.

Section 2.2: Relationship to Mass. Gen. Laws Ch. 131, Section 40

Since the Wetlands Protection Act, MGL Ch. 131, Section 40, establishes minimum standards, the Commission shall not impose additional or more stringent conditions in an Order pursuant to Mass. General Laws Ch. 131, Section 40 than it imposes pursuant to this By-Law; nor shall it require a Notice of Intention filed under Section 40 to provide additional materials or data to those required under this By-Law.

This By-Law shall not apply to any emergency project as defined in Mass. General Laws. Ch. 131, Section 40.

Any person who purchases, inherits or otherwise acquires real estate upon which work has been done in violation of the provisions of this By-Law or in violation of any permit issued pursuant to this By-Law, shall forthwith comply with any such order or restore such land to its condition prior to any such violation; provided, however, that 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.

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After due notice and public hearing, the Commission may promulgate rules and regulations to effectuate the purposes of this By-Law. Failure by the 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 By-Law.

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

The following definitions shall apply in the interpretation and implementation of the By-Law.

Section 7.1

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 town by-laws, administrative agencies, public or quasi-public corporations or bodies, the Town of Tisbury, and any other legal entity, its legal representatives, agents, or assigns.

Section 7.2

The term "alter" shall include, without limitation, the following actions when undertaken in areas subject to this By-Law:

1. Removal, excavation or dredging of soil, sand, gravel or aggregate materials 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 water level or water table
4. Dumping, discharging or filling with any material which may degrade water quality
5. Driving of piles, erection of buildings or structures of any kind
6. Pacing of obstructions whether or not they interfere with the flow of water
7. Destruction of plant life, including cutting of trees
8. Changing of water temperature, biochemical oxygen demand or other physical or chemical characteristics of the water

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Section 7.3

The term "banks" shall mean that part of land adjoining any body of water which confines the water.

Section 7.4

1. The term "land in agricultural use" shall mean any qualifying wetland within a farm which is qualified or eligible to be qualified under Farmland Assessment Act, Mass. Gen. Laws Ch. 61A, SS. 1-5.
2. The term "qualifying wetland" shall mean only inland fresh water areas which are seasonally flooded basins or flats or inland fresh meadows.
3. The term "normal maintenance or improvement" of land in agricultural use shall mean only:
   1. Tilling practices customarily employed in the raising of crops.
   2. Pasturing of animals, including fences and protective structures as may be required.
   3. Use of fertilizers, pesticides, herbicides, and similar materials subject to state and federal regulations covering their use.
   4. Constructing, grading, or restoring of field ditches, subsurface drains, grass waterways, culverts, access roads, and similar practices to improve drainage, prevent erosion, provide more effective use of rainfall, improve equipment operation and efficiency, in order to improve conditions for the growing of crops.
4. "Improvement of land in agricultural use may also include more extensive practices such as the building of ponds, dams, structures for water control, water and sediment basins, and related activities but only where a plan for such activity approved by the Conservation District of the Soil Conservation Service is furnished to the Conservation Commission prior to the commencement of work.

All such activity shall subsequently be carried out in accord with said plan. In the event that the work is not carried out in accordance with the required plan, the Conservation Commission may place a stop order on said work and have recourse to such measures as if the plan were an order of conditions.

Section 7.5

The Commission may adopt additional definitions not inconsistent with this Section 7 in its regulations promulgated pursuant to Section 5 of this By-Law.

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

1. By a bond or deposit of money or negotiable securities in an amount determined by the Commission to be sufficient and payable to the Town of Tisbury.
2. By a conservation restriction, easement or other covenant running with the land, executed and properly recorded (or registered, in the case of registered land).

Any person who violates any provision of this By-Law or of any condition of a permit issued pursuant to it shall be punished by a fine of not more than $300. 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 By-Law may be enforced pursuant to Massachusetts General Laws, Chapter 40, Section 21d, by a Town Police Officer, other officer having police powers, Commission, members, or the Commission Conservation Officer.