4.7 NOTICES OF INTENT
Any person who proposes to do work that will remove, fill, dredge, build upon, degrade, discharge into or otherwise alter any Area Subject to Protection shall file a Notice of Intent and other application materials in accordance with the submittal requirements set forth in the Instructions for Completing Notice of Intent. Two copies of the completed Notice of Intent with supporting plans and documents shall be sent by certified mail or hand delivery to the Conservation Commission, and one copy of the same shall be sent concurrently in like manner to the DEP. (As outlined in chapter 6 of these regulations.)
Applicants may use the Abbreviated Notice of Intent when all four of the following circumstances exist: the proposed work is within the Buffer Zone and not within the resource area itself, the proposed work does not cause any indirect alteration to any resource area, the proposed work will disturb less than 1000 square feet of surface area within the Buffer Zone, and the proposed work will not require any other state or federal permits.
To establish the extent of bordering vegetated wetland and other resource areas on land subject
to protection, applicants may use the Abbreviated Notice of Resource Area Delineation for the confirmation of a delineated boundary of bordering vegetated wetlands and other resource areas on the site, prior to filing a Notice of Intent for proposed work. Alternatively, the boundary of bordering vegetated wetland (or other resource areas) may be determined through the filing of a Notice of Intent or Request for Determination. Please note: due to the time and effort involved in delineating resource area boundaries, a fee will apply. (See section 4.17 for additional information on local fee requirements.)
Upon receipt of the application materials referred to previously, the DEP shall issue a file number. The designation of a file number shall not imply that the plans and supporting documents have been judged adequate for the issuance of an Order, but only that copies of the minimum submittal requirements contained in the General Instructions have been filed.
The Notice of Intent shall also contain a description and calculation of peak flow and estimated water quality characteristics of discharge from a point source (both closed and open channel) when the point of discharge falls within an Area Subject to Protection or within the Buffer Zone for an Area Subject to Protection.
When the issuing authority has determined that an activity outside the Areas Subject to Protection Under the Wetlands Protection Act, Rivers Protection Act and Town of Sturbridge Wetlands Bylaw and outside the Buffer Zone has in fact altered an Area Subject to Protection, it may require such plans, supporting calculations and other documentation as are necessary to describe the entire activity.
When an applicant for a comprehensive permit (under M.G.L. c. 40B, §§ 20 through 23) from a Board of Appeals has received a determination from the board granting or denying the permit and, in the case of a denial, has appealed to the Housing Appeals Committee (established under M.G.L. c. 23B, § 5A), said applicant shall be deemed to have applied for all local permits obtainable at the time of filing. Filing for a Comprehensive Permit from a Board of Appeals does not exempt an applicant of the need to file an application with the Commission for review of applicable state wetlands laws and regulations.
A Notice of Intent shall expire where the applicant has failed to diligently pursue the issuance of a Final Order in proceedings under 310 CMR 10.00. A Notice of Intent shall be presumed to have expired two years after the date of filing unless the applicant submits information showing that good cause exists for the delay of proceedings and that the applicant has continued to pursue the project diligently in other forums in the intervening period. Unfavorable financial circumstances shall not constitute good cause for delay. No Notice of Intent shall be deemed expired when an adjudicatory hearing is pending and when the applicant has provided all information necessary to continue with the hearing of the case. Failure of the applicant to submit all information necessary or requested will be considered a
self-imposed hardship and shall not constitute good cause for allowing a waiver to the expiration date.
The following provisions shall apply to any Notice of Intent whenever filed. The Commission may require that supporting plans and calculations be prepared and stamped by a Massachusetts registered professional engineer (PE) when, in its judgment, the complexity of the proposed work warrants this professional certification. The Commission may also require the preparation of supporting materials by other professionals including, but not limited to, registered landscape architect, registered land surveyor, environmental scientist, geologist or hydrologist when, in its judgment, the complexity of the proposed work warrants the relevant specialized expertise.
4.8 ORDERS OF CONDITIONS REGULATING WORK AND ORDERS OF RESOURCE AREA DELINEATION
Within 21 days of the close of the public hearing, unless a written extension or verbal permission during a public hearing is given by the applicant, the applicant’s representative or the land owner, the Conservation Commission shall:
§ Make a determination that the area on which the work is proposed to be done, or which the
proposed work will remove, fill, dredge or alter, is not significant to any of the interests identified and shall so notify the applicant and the DEP, or
§ Make a determination that the area on which the work is proposed to be done, or which the proposed work will remove, fill, dredge or alter, is significant to one or more of the interests identified and shall issue an Order of Conditions for the protection of said interest(s), or
§ Make a determination that bordering vegetated wetland and other resource areas subject to
jurisdiction have been identified and delineated, and shall issue an Order of Resource Area Delineation to confirm or modify the delineations submitted. The Order of Resource Area Delineation shall be effective for three years, or
§ Make a determination that the area on which the work is proposed to be done cannot be conditioned to protect the interests identified and deny the project, or
§ Make a determination that the applicant has not submitted sufficient information to determine whether the proposed project will result in significant adverse impact to resource areas or interests identified and shall deny the project until the specified information has been submitted and the review completed.
The Order of Conditions shall impose such conditions as are necessary to meet the performance standards for the protection of those areas found to be significant to one or more of the interests identified.
The Order shall prohibit any work or any portion thereof that cannot be conditioned to meet said standards.
The Order shall impose conditions only upon work or the portion thereof that is to be undertaken within an Area Subject to Protection or within the Buffer Zone to an Area Subject to Protection. Additional conditions may be imposed for upland areas to protect the interests identified, which may, by preponderance of evidence submitted by the applicant or applicant’s representative or landowner, or obtained during the review of a submitted application, likely impact an Area Subject to Protection. (See section 1.1)
The Order shall impose conditions setting limits on the quantity and quality of discharge from a point source (both closed and open channel), when said limits are necessary to protect the interests identified; provided, however, that the point of discharge falls within an Area Subject to Protection or within the Buffer Zone to an Area Subject to Protection.
The Order shall impose conditions to control and contain erosion and sedimentation and to avoid significant adverse impacts within resource areas and the Buffer Zone.
When the issuing authority has determined that an activity outside the Areas Subject to Protection and outside the Buffer Zone has in fact altered an Area Subject to Protection, it shall impose such conditions on any portion of the activity as are necessary to contribute to the protection of the interests identified.
If the Conservation Commission finds that the information submitted by the applicant is not sufficient to describe the site, the work or the effect of the work on the interests identified, it may issue an Order prohibiting the work until such information is submitted. The Order shall specify the information which is lacking and why it is necessary.
If the Commission finds that a project cannot be conditioned to protect the resource area or the interests identified it must issue an Order of Conditions prohibiting the work and clearly stating the reasons why the project could not be conditioned.
An Order of Conditions or Notification of Non-Significance shall be valid for three years from the date of its issuance except where otherwise specified. No order shall be deemed expired when an appeal is pending.
The Order of Conditions or Notification of Non-Significance shall be signed by a majority of the Conservation Commission and shall be mailed by certified mail (return receipt requested) or hand delivered to the applicant or his agent or attorney, and a copy mailed or hand delivered at the same time to the DEP.
If the Order imposes conditions necessary to meet any performance standards contained in the Regulations for Estimated Habitat of Rare Wildlife, a copy shall be mailed or hand delivered at the same time to the Massachusetts Natural Heritage and Endangered Species Program.
A copy of the plans describing the work and the Order shall be kept on file by the Commission until the project is closed or a certificate of compliance has been issued by the SCC, and shall be available to the public at reasonable hours.
Prior to the commencement of any work permitted or required by the Final Order or Notification of Non-Significance, the Order or Notification shall be recorded in the Registry of Deeds or the Land Court for the district in which the land is located, within the chain of title of the affected property. Certification of recording shall be sent to the issuing authority. If work is undertaken without the applicant first recording the Order, the issuing authority may issue an Enforcement Order or Cease and Desist Order or may itself record the Order of Conditions.
An Order of Conditions does not grant any property rights or any exclusive privileges; it does not authorize any injury to private property or invasion of property rights. Failure to comply with conditions stated in the Order and with all related statutes and other regulatory measures shall be deemed cause to issue a Cease and Desist Order, which is to remain in effect until all conditions have been complied with, regardless of the financial implications to the applicant. Alternatively failure to comply with conditions stated in the Order and with all related statutes and other regulatory measures shall be deemed cause to revoke or modify the Order of Conditions.
It is the applicant’s responsibility to send a copy of the final approved plan as outlined in the Order of Conditions or Resource Area Delineation to the DEP. Failure to do so is a violation of the Order of Conditions or other permit.
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