5.6 VERNAL POOLS CERTIFIED, POTENTIAL AND IDENTIFIED
5.6.1 Definitions
The term “vernal pool” shall include, in addition to that already defined under the Wetlands Protection Act, G.L. Ch. 131, §40 and Regulations thereunder, 310 CMR 10.00, and as excerpted in the Massachusetts Aerial Photo Survey of Potential Vernal Pools, Massachusetts Natural Heritage & Endangered Species Program, 2001, 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 200 cubic feet of water at some time during most years (an isolated wetland may be determined to be a vernal pool even though it has less than 200 cubic feet of water at some time 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 Wildlife and Fisheries, Natural Heritage and Endangered Species Program. The presumption of essential habitat value may be overcome by the presentation of credible evidence which in the judgment of the Commission demonstrates that the basin or depression does not provide the habitat functions as specified in the Bylaw regulations. The adjacent upland resource area for vernal pools shall extend 200 feet from the mean annual high-water line defining the depression, or one-half of the distance between the vernal pool and any existing house foundation, whichever is greater. In either case the adjacent upland resource area for vernal pools shall not extend over lawns, gardens, landscaped or developed areas existing at the time of the adoption of these regulations.
5.6.2 Presumption of Vernal Pool Habitat
Where a proposed activity involves work within 200 feet of a certified or identified vernal pool, the Commission shall presume that the area is significant to protect: groundwater, water quality, wildlife habitat and/or Rare species habitat.
Based on an overwhelmingly consistent show that those vernal pool identified by NHESP as potential vernal pools are in fact identifiable vernal pools, all potential vernal pools as noted by NHESP shall be considered identified vernal pools. Burden of proof to the contrary is the responsibility of the applicant.
The bylaw/regulation presumes vernal pool habitat exists if a wetland’s physical characteristics conform with those defined above.
This presumptive definition for vernal pools is based on systematic field observations by NHESP, “the Vernal Pool Association”, and SCC staff, showing that virtually all basins that possess the above characteristics, cited in 5.6.1 actually host breeding vernal pool species. The presumption of vernal pool habitat may be overcome, however, with the presentation of credible evidence, which in the judgment of the Conservation Commission demonstrates that the wetland does not provide, or cannot provide, vernal pool habitat functions.
5.6.3 Demonstrating that a Ponding Area is not a Vernal Pool
For the purposes of overcoming the presumption of vernal pool habitat the Commission will consider:
1. Evidence that the ponding area does not hold water for at least two continuous months in most years. As a rule of thumb the term “most years” shall mean three out of five consecutive years.
2. Evidence that vernal pool species do not breed or have not bred in the ponding area. The Conservation Commission shall provide explicit guidelines for this evidence.
3. Evidence that the ponding area could not be a viable breeding site for vernal pool species due to incompatible physical, chemical, biological, or other persistent conditions at the site in most years. Such evidence could include, without limitation, several months of pH and dissolved oxygen measurements yielding values incompatible with amphibian or reptile breeding.
5.6.4 Timing of Evidence Collection
Many of the indicators of vernal pool habitat are seasonal. For example, certain salamander egg clusters are only found between late March and late May. Wood frog chorusing only occurs between late March and May, and then only at night. Consequently, failure to find evidence of breeding must be tied explicitly to those periods during which the evidence is most likely to be available.
Accordingly, in the case of challenges to the presumption of vernal pool habitat the Conservation Commission may require that the determination be postponed until the appropriate time period consistent with the evidence being presented. The Commission may also require its own site visits as necessary to confirm the evidence.
Should the Commission or the NHESP identify or certify a vernal pool (or Habitat for Rare Wildlife) after a public hearing has been closed and an order or other permit issued, the Commission may reopen the public hearing and issue additional conditions to protect said areas. The public hearing may only be reopened after notification has been made to the applicant, the owner, DEP, all abutters within 200 feet. A legal advertisement must be posted in the local newspaper at least 5 days prior to the public hearing. Notice must be posted on the Town Clerk’s Board at least 48 hours in advance of the public hearing.
5.6.5 General Performance Standards
Any work with in the 200-foot buffer zone to a vernal pool shall not cause a significant adverse impact to any function of a vernal pool. It shall not result in a measurable decrease in extant wildlife populations or biological community composition, structure, and species richness of the site or in the vicinity exclusive of the present or future state of adjacent or nearby property or impair, damage, or reduce in value for wildlife purposes, identified specific habitat features. The Commission shall take into account indirect effects including but not limited to effects of nearby human activities on a case-by-case basis.
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