Regulations, Bylaws, & Policies

CONSERVATION BY-LAW

Purpose

The purpose of this bylaw is to protect the wetlands, water resources, and adjoining land areas in the Town of Dighton by conditioning activities deemed by the Conservation Commission likely to have a significant or cumulative effect upon the resource area values, including but not limited to the following: public or private water supply, ground water, flood control, erosion and sedimentation control, storm damage prevention including coastal storm flowage, water quality, water pollution control, fisheries, shellfish, wildlife habitat, rare species habitat including rare plant species, agriculture, aquaculture, and recreation values, deemed important to the community. This bylaw is intended to utilize the Home Rule authority of this municipality to protect additional resource areas, for additional values, with additional standards and procedures stricter than those of the Wetlands Protection Act (G.L.Ch.131~40) and Regulations hereunder (310 CMR10.00).

Jurisdiction

Except as permitted by the Conservation Commission or as provided in this bylaw, no person shall commence to remove, fill, dredge, build upon, degrade, discharge into, or otherwise alter the following resource areas: any freshwater or coastal wetlands; marshes; wet meadows; bogs; swamps; vernal pools; banks; reservoirs; lakes; ponds of any size; rivers; streams; creeks; beaches; dunes; estuaries; the ocean; land under water bodies; lands subject to flooding or inundation by groundwater or surface water; land subject to tidal action, coastal storm flowage, or flooding; and lands within 100 feet of any of the aforesaid resource areas; rivers, streams, and creeks whether perennial or intermittent; and lands within 200 feet of any river, stream, or creek; and lands abutting any of the aforesaid areas. Said resource areas shall be protected whether or not they border surface waters.

Applications for Permits and Requests for Determination

Written application shall be filed with this Commission to perform activities affecting resource areas protected by this bylaw. This application should be the standard form as set forth by the Massachusetts Department of Environmental Protection (DEP).

At the time of a permit application, the applicant shall pay a filing fee as set forth by the DEP. A local fee of per the table below made payable to Town of Dighton- is required for all filings in addition to the local portion set forth by the DEP, See Below Section XVI.

The Commission may waive the filing fee, consultant fee and costs and expenses for a permit application or request for determination filed by a government agency and shall waive them for a request for determination filed by a person having no financial connection with the property which is the subject of the request.

 At the time a permit application is received, or at any time during the hearing process, the Commission is authorized to require an applicant to pay the fee for specific expert engineering and other consultant services deemed necessary by the Commission to come to a final decision on the application. The Commission will select the consultant in question. As provided by Massachusetts General Law Chapter 44, Section 53G, The Dighton Conservation Commission may employ reasonable fees for the employment of outside consultants engaged by the Commission, for specific outside expert services. Such services shall be deemed necessary by the Commission to come to a final decision on an application submitted to the Conservation Commission pursuant to the requirements of the Wetlands Protection Act (M.G.L. Ch. 131 Section 40), the Dighton Wetlands Protection Bylaw, the Conservation Commission Act (M.G.L. Ch. 40 Section 8C) or any other state or municipal statute, bylaw, or regulation as they may be amended from time to time. The Conservation

Commission may also impose fees for other consultant services, related to application review, or permit conditioning or monitoring, under any of the above referenced laws or regulations. Said fees for said services shall be set forth in a regulation to be adopted by vote of the Conservation Commission in accordance with applicable law, including but not limited to M.G.L. Chapter 44 Section 53G.

The Commission may waive the filing fee, consultant fee and costs and expenses for a permit application or request for determination by a government agency.

The Commission shall require the payment of the consultant fee prior to the initiation of consulting services. Failure by the applicant to pay the consultant fee specified by the Commission or it’s duly authorized Agent within ten (10) business days of the request for payment, or refusal of payment, shall be cause for the Commission to deny the application based on lack of sufficient information to evaluate whether the project meets applicable performance standards in 310 CMR 10.00 and the Dighton Wetlands Protection Bylaw or its regulations.

The applicant shall pay the fee to the Town of Dighton to fund the 53G consultant services account established by the Commission with the Town Treasurer’s office, which may be drawn upon by the Commission for specific consultant services approved by the Commission at one of its public meetings.

The Commission shall return any unused portion of the consultant fee to the applicant upon the completion of the project along with any accrued interest.

Notices and Hearings

Any person filing a permit application with this Commission at the same time shall give written notice thereof, by certified mail (return receipt) or hand delivered, to all abutters at their mailing address shown on the most recent applicable tax list of the assessors, including owners of land directly opposite on any public street or way, and abutters to the abutters within 300 feet of the property line on which the applicant is proposing work, including any in another municipality or across a body of water.

The Commission may combine its hearing under this bylaw with the hearing conducted with the Wetlands Protection Act (G.L. Ch.131~40) and Regulations (310 CMR 10.00).

The Commission shall have the authority to continue the hearing to a certain date announced at the hearing, for reasons stated at the hearing, which may include receipt of additional information from the applicant or other deemed necessary by the Commission.

Coordination with Other Boards

Any person filing a permit application with the Commission shall provide a copy at the same time, by certified mail or hand delivered, Selectmen, planning board, board of health and building inspector, Stormwater Committee and Highway Superintendent.

Permits and Conditions

If the Commission, after a public hearing, determines that the activities which are subject to the permit application or the land and water uses which will result there from are likely to have a significant individual or cumulative effect upon the resource area values protected by this bylaw, the Commission, within 21 days of the close of the hearing, shall issue or deny a permit for the activity requested. If it issues a permit, the Commission shall impose conditions, which the Commission deems necessary or desirable to protect those values, and all activities shall be done in accordance with those conditions.

The Commission is empowered to deny a permit for failure to meet the requirements of this bylaw; for failure to submit necessary information and plans requested by the Commission; for failure to meet the design specifications, standards, and other requirements in regulations of the Commission; for failure to site the project in an alternative manner with less potential impact, where such siting is clearly possible; for failure to avoid or prevent unacceptable significant or cumulative effects upon the resource area values protected by this bylaw; and where no conditions are adequate to protect those values. Due consideration shall be given to any demonstrated hardship on the applicant by reason of denial, as presented at the public hearing.

Lands within 200 feet of rivers, ponds and lakes and lands within 100 feet of other resource areas are presumed 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 wetlands or other resource. These adverse impacts from construction and use can include, without limitation, erosion, siltation, loss of groundwater recharge, poor water quality, and loss of wildlife habitat. The Commission therefore may require that the applicant maintain a strip of continuous, undisturbed vegetative cover within the 200-foot (or 100-foot) area, unless the applicant convinces the Commission that the area or part of it may be disturbed without harm to the values protected by this bylaw.

To prevent wetlands loss, the Commission shall require applicants to avoid alteration where feasible; shall minimize wetlands alteration; and, where alteration is unavoidable, shall require full mitigation. The Commission may authorize or require replication of wetlands as a form of mitigation.

A permit shall expire three years from the date of issuance. Any permit may be renewed once for an additional one year provided that a request for renewal is received in writing by the Commission prior to expiration.

No work proposed in any permit application shall be undertaken until the permit issued by the Commission has been recorded in the registry of deeds and the permit holder certifies in writing to the Commission that the permit has been recorded.

Setbacks

No subsurface sewage disposal system will be permitted within the 100-foot buffer zone of any wetland or within 200 feet of any perennial stream as shown on the USGS map 1985 or later. This set back will not be required for the renovation or replacement (but is required for the substantial enlargement) of septic systems construction.

No dwelling or structure shall be built less than 50 feet from the outer edge of any wetland.

 A 25-foot minimum undisturbed vegetated buffer zone will be required to protect wetlands and wildlife.

Isolated wetlands and vernal pools will be considered wetlands and afforded the same minimum setback distances for septic systems, construction and undisturbed vegetative zones.

Vernal Pool should hold special protections and will have a migration corridor of at least 100 feet to other wetlands or natural environment from the mean annual high-water mark that will be left in its natural and undisturbed state.

Regulations

Additions, deletions and alterations to the above regulations may be made through public notice and public hearing. The Commission shall then promulgate rules and regulations to effectuate the purposes of the bylaw when voted and filed with the town clerk. 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 bylaw.

Definitions

The following definitions shall apply in the interpretation of this by law.

The term "bank" shall include the land area which normally abuts and confines a water body; the 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.

The term "vernal pool" shall include a confined basin depression which, at least in most years, holds waterfor a minimum of two continuous months during the spring/summer, and which is free of adult fish populations, as well as the area within 100 feet of the mean annual boundary of such a depression, regardless of whether the site has been certified by the Massachusetts Division of Fisheries and Wildlife.

It shall include, in addition to scientific definitions found in the regulations under the Wetlands Protection Act, any confined basin or depression not occurring in existing lawns, gardens, landscaped areas or driveways which, at least in most years, holds water for a minimum of two continuous months during the spring and/or summer, contains at least 200 cubic feet of water at some time during most years, is free of adult predatory fish populations, and provides essential breeding and rearing habitat functions for amphibian, reptile or other vernal pool community species, regardless of whether the site has been certified by the Massachusetts Division of Fisheries and Wildlife. The boundary of the resource area for a Vernal Pool shall be 100 feet outward from the mean annual high-water line defining the depression, but shall not include a lawn, garden, landscaped area or developed area in existence at the time of the effective date of this provision in this chapter.

The term "rare species" shall include, without limitation, all vertebrate and invertebrate animals 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.

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 bylaws, administrative agency, public or quasi-public corporation or body, this municipality, and any other legal entity, its legal representatives, agents, or assigns.

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

1. Removal, excavation, or dredging of soil, sand, gravel, or aggregate materials of any kind
2. Changing of preexisting drainage characteristics, flushing characteristics, salinity distribution, sedimentation patterns, flow patterns, or flood retention characteristics
3. Drainage or other disturbance of water level or table
4. Dumping, discharging, or filling with any material, which may degrade water quality
5. Placing of fill, or removing of material, which would alter elevation
6. Driving of piles, erection, or repair of buildings, or structures of any kind
7. Placing of obstructions or objects in water
8. Destruction of plant life including cutting of trees
9. Changing temperature, biochemical oxygen demand, or other physical, biological, for chemical characteristics of any waters
10. Any activities, changes, or work, which may cause or tend to contribute to pollution of any body of water or groundwater
11. Incremental activities, which have, or may have, a cumulative adverse impact on the resource areas protected by this bylaw.

Except as otherwise provided in this bylaw or in regulations of the Commission, the definitions of terms in this bylaw shall be set forth in the Wetlands Protection Act (G.L. Ch. 131~40) and Regulations (310 CMR 10.00).

Enforcement

No person shall remove, fill, dredge, build upon, or otherwise alter resource areas protected by this bylaw, or cause, suffer, or allow such activity, or leave in place unauthorized fill or otherwise fail to restore illegally altered land to its original condition, or fail to comply with a permit or an enforcement order issued pursuant to this bylaw.

The Commission, its agents, officers, and employees shall have authority to enter upon privately owned land for the purpose of performing their duties under this bylaw and may make or cause to be made such examinations, surveys, or sampling as the Commission deems necessary, subject to the constitutions and laws of the United States and the Commonwealth.

The Commission shall have the authority to enforce this bylaw, its regulations, and permits issued hereunder by violation notices, administrative orders (if Dighton should accept G.L. Ch. 40~21D), and civil and criminal court actions. Any person who violates provisions of this bylaw may be ordered to restore the property to its original condition and take other action deemed necessary to remedy such violation, or may be fined, or both.

Upon request of the Commission, the Selectmen and the town counsel shall take legal action for enforcement under civil law. Upon request of the Commission, the chief of police shall take legal action for enforcement under criminal law.

Municipal boards and officers, including any police officer or other officer having police power, shall have authority to assist the Commission in enforcement.

Any person, who violates any provision of this bylaw, or regulations, permits, or administrative orders issued hereunder, shall be punished by a fine of not more than $300. Each day or portion thereof during which a violation continues, or unauthorized fill or other alteration remains in place, shall constitute a separate offense, and each provision of the bylaw, regulations, permits, or administrative orders violated shall constitute a separate offense. 

Burden of Going Forward and Burden of Proof

The applicant for a permit shall have the burden of proving by a preponderance of the credible evidence that the work proposed in the application will not have unacceptable significant or cumulative effect upon the resource area values protected by this bylaw. Failure to provide adequate evidence to the Commission supporting this burden shall be sufficient cause for the Commission to deny a permit or grant a permit with conditions.

Burden of going forward. The project proponent 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.

Burden of proof

(1) Permit for work. The Applicant shall have the burden of proving by a preponderance of the credible evidence that any proposed work and its natural and consequential cumulative impacts and effects shall have no adverse effect upon any of the Bylaw wetland values and, further, shall contribute to the protection of the Bylaw wetland values by complying with the general performance standards established for each Bylaw resource area. Failure to meet the burden of proof shall be cause for the Conservation Commission to deny the application for a permit for work along with any work or activity proposed therein.

(2) Determinations of applicability and resource delineation. The Applicant shall have the burden of proving by a preponderance of the credible evidence that the Conservation Commission does not have jurisdiction over the proposed activity (work), in a request for a determination of applicability; and that the boundaries of the resource areas subject to protection under the Bylaw (Bylaw resource areas) are accurate, in a request for a determination of resource delineation.

(3) Determination of significance (non-significance). The Applicant requesting a determination of significance or applying for a permit for work shall have the burden of demonstrating by clear and convincing evidence that the Bylaw resource area is not significant (that it does not play a role in) to the protection of one or more Bylaw wetland values.

(4) Waiver. The Commission may waive a performance standard set forth in these Bylaw. The person requesting a waiver of a performance standard shall have the burden of demonstrating by clear and convincing evidence that:

(a) there are no reasonable conditions or alternatives that would allow the proposed activity to proceed in compliance with said Bylaw;

(b) avoidance, minimization and mitigation have been employed to the maximum extent practicable and the proposed work, including all mitigation measures, and the natural and consequential cumulative effects of the work, will have no significant adverse effects upon any of the Bylaw wetland values;

(c) the project provides benefits a demonstrable public interest; and

(d) the project is otherwise in compliance with this Bylaw.

(5) Waiver for Rare Species Habitat. Notwithstanding above, where the project limit of work is within or abuts an estimated rare species habitat as designated on the most current map prepared by the Massachusetts Natural Heritage & Endangered Species Program (NHESP), the Commission shall be diligent in its review of the proposed activity. The Commission may consider waiving the rare species performance standard when the following conditions are met in addition to the requirements in the Bylaw. The Applicant for a waiver of a performance standard shall have the burden of demonstrating by clear and convincing evidence that:

(a) The MA Natural Heritage and Endangered Species Program (NHESP) has been consulted, and has issued a formal determination, prior to filing a request with the Commission; and

(b) The project has been designed in accordance with any formal determination of the NHESP to address the standards in the MA Endangered Species Act and its implementing regulations at 321 CMR 10.00; and

(c) At least 14 days prior to the public hearing, the Applicant must provide to the Commission the NHESP determination and accompanying comments. The Commission cannot close the hearing until the NHESP has been consulted and has submitted written comments.

Appeals

A decision of the Commission shall be reviewable in the Superior Court in accordance with G.L. Ch. 249~4

Relationship to the Wetlands Protection Act

This bylaw is adopted under the Home Rule Amendment of the Massachusetts Constitution and the Home Rule statutes, independent of the Wetlands Protection Act (G.L. Ch. 131) and Regulations (310 CMR 10.00) hereunder.

Severability

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

Amendments - Warrant article # 21 from 2002 meeting " To see if the Town will vote to approve the Dighton Conservation Commission proposal changes in the following paragraph of its bylaws from: Any person who violates any provision of this bylaw, or regulations, permits, or administrative orders issued hereunder, shall be punished by a fine or not more than $300. Each day or portions thereof during which a violation continues, or unauthorized fill or other alteration remains in place, shall constitute a separate offense, and each provision of the bylaw, regulations, permits, or administrative orders violated shall constitute a separate offense. To read as follows: Any person, who violates any provision of this bylaw, or regulations, permits, or administrative orders issued hereunder, shall be punished by a fine of $300. Each day or portion thereof during which a violation continues, or unauthorized fill or other alteration remains in place, shall constitute a separate offense, and each provision of the bylaw, regulations, permits, or administrative orders violated shall constitute a separate offense. The purpose of this change is to comply with the recommendations made by the Office of the Attorney General, or act thereon. 

Exceptions 

1. The application and permit required by this chapter shall not be required for work performed for normal maintenance or improvement of land in agricultural use as defined by the Wetlands Protection Act Regulations at 310 CMR 10.04.  Provided, however, nothing contained within this provision shall prohibit the Commission from exercising its full enforcement powers under this chapter and the Wetlands Protection Act should it determine the activity is not normal maintenance or improvement of land in agricultural use. 

2. The permit and application required by this chapter 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 adopted by the Commission. 

100. The permit and application required by this chapter shall not apply to emergency projects necessary for the protection of the health or safety of the public, provided that the work is to be performed by or has been ordered to be performed by an agency of the Commonwealth or a political subdivision thereof, provided that advance notice, oral or written, has been given to the Commission prior to commencement of work or within 24 hours after commencement, provided that the Conservation Commission or its agent certifies the work as an emergency project, provided that the work is performed only for the time and place certified by the Conservation Commission for the limited purposes necessary to abate the emergency, and provided that within 21 days of commencement of any emergency project a permit application shall be filed with the Commission for review as provided in this chapter. Upon failure to meet these and other requirements of the Commission, the Commission may, after notice and a public hearing, revoke or modify an emergency project approval and order restoration and mitigation measures.

500. The exceptions provided in the Wetland Protection Act[1] and regulations, 310 CMR 10.02(2), shall apply under this chapter.

XVL Fees

(ATM 05/21/01) Amended (ATM 06/20/02) Amended (ATM 06/07/2021-effective 09/15/2021)