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					Ordinance
Falmouth Wetland Regulations


FWR 10.00: WETLANDS PROTECTION

Part I - Regulations for All Wetlands

10.01: Introduction and Purpose

10.02: Statement of Jurisdiction

10.03: General Provisions

10.04: Definitions

10.05: Procedures

10.06: Emergencies

10.07: Performance Guarantee

10.08: Enforcement

10.09: Fees

10.10: Appeals

10.11: Incorporation of 310 CMR 10.00

10.12: Severability

10.13: Variance

10.14: Amendments

10.15: Effective Date

10.16: Specific Activities Regulated

10.17: Wildlife Habitat Evaluations

10.18: Resource Area Buffer

10.19: Rare Species
Part II - Regulations for Coastal Wetlands

10.21: Introduction

10.22: Purpose

10.23: Additional Definitions for FWR 10.21 through FWR 10.40

10.24: General Provisions

10.25: Land Under the Ocean

10.26: Land Under Estuaries

10.27: Coastal Beaches

10.28: Coastal Dunes

10.29: Barrier Beaches

10.30: Coastal Banks

10.31: Rocky Intertidal Shores

10.32: Salt Marshes

10.33: Land Under Salt Ponds

10.34: Land Containing Shellfish

10.35: Banks of or Land Under the Ocean, Estuaries, Ponds, Streams, Rivers, Lakes, or
Creeks that Underlie an Anadromous/Catadromous Fish Run ("Fish Run")

10.36: Banks of Estuaries

10.37: Banks of Salt Ponds

10.38: Land Subject to Coastal Storm Flowage

10.39: Land and Water in the Black Beach/Great Sippewisset Marsh District of Critical
Planning Concern

10.40: Land and Water in the Waquoit Bay Area of Critical Environmental Concern

10.41: Reserved
Part III - Regulations for Inland Wetlands

10.51: Introduction

10.52: Purpose

10.53: General Provisions

10.54: Bank (Inland Bank and Beaches)

10.55: Freshwater Wetlands (Wet Meadows, Marshes, Swamps and Bogs)

10.56: Land under Waterbodies (Under any Creek, Stream, Pond or Lake)

10.57: Land Subject to Flooding (Bordering and Isolated Areas)

10.58: Vernal Pools

10.59 through 10.69: Reserved

10.70: Indicators of Wetland Hydrology

10.71: Morphological Plant Adaptations to Hydric Conditions

10.72: Evidence of Surface Water

10.73: Evidence of Soil Saturation

10.74: Hydric Soils

10.75 through 10.79: Reserved

10.80: Vegetative Analysis Methods

10.81: Field Data Form Requirement

10.82: Additional Definitions for FWR 10.80 through FWR 10.89

10.83: Observation Plots

10.84: Measuring Plant Abundance

10.85: Department of Environmental Protection Dominance Test

10.86: Wetland Site Index
10.87: Relative Dominance of Wetland Species by Layering

10.88: Delineation Forms

Forms

10.99:



Falmouth Wetland Regulations

Part I Procedures and Regulations for all Wetlands



FWR 10.01 Introduction and Purpose

(1) Introduction. The Falmouth Wetland Regulations, FWR 10.00, is promulgated by the
Falmouth Conservation Commission pursuant to the authority granted to them under the
Falmouth Wetlands Bylaw, Chapter 235 of the Code of Falmouth. The FWR 10.00 shall
complement Chapter 235 of the Code of Falmouth, and shall have the force of law upon
their effective date.

FWR 10.01 through 10.15 provide definitions and procedures. FWR 10.01 through
10.19 pertains to both inland and coastal areas subject to protection under Chapter 235
of the Code of Falmouth. FWR 10.16 through 10.99 provide standards for work within
those areas. FWR 10.21 through 10.40 pertains only to coastal resource areas and
FWR 10.51 through 10.88 pertains only to resource inland areas. A project may be
subject to regulation under Chapter 235 of the Code of Falmouth in which case
compliance with all applicable regulations is required.

(2) Purpose. Chapter 235 of the Code of Falmouth sets forth a public review and
decision-making process by which activities affecting Areas Subject to Protection Under
Chapter 235 of the Code of Falmouth are to be regulated in order to contribute to the
following resource area values:

- protection of public and private water supply

- groundwater

- flood control

- erosion and sedimentation control
- storm damage prevention

- water pollution control

- fisheries

- shellfish

- wildlife habitat

- agriculture

- aesthetics

- recreation

- aquaculture

In addition to the resource area values above, in the Black Beach/Great Sippewisset
Marsh District of Critical Planning Concern, the following resource area values also
apply:

- prevention of flood damage by limiting of development in flood hazard areas;

- prevention of damage to structures and natural resources as a result of erosion;

- improvement of water quality;

- protection and enhancement of existing vegetative cover in order to maintain water
quality and wildlife habitat;

- protection of wildlife, waterfowl, and plant habitat and the maintenance of existing
populations and species diversity;

- prevention of loss or degradation of critical wildlife and plant habitat;

- prevention of new stormwater runoff discharges and the improvement of existing
stormwater runoff discharges;

- protection of coastal ecosystems which support the continued viability of harvestable
shellfish and finfish habitat;

- public access to water and land;

- improvement of groundwater recharge; and
- the minimization of the impact of new development, reconstruction and/or expansion
on the resource area values listed above.

The purpose of FWR 10.00 is to define and clarify that process by establishing standard
definitions and uniform procedures by which the Commission may carry out its
responsibilities under Chapter 235 of the Code of Falmouth.

FWR 10.00 is intended solely for use in administering Chapter 235 of the Code of
Falmouth; nothing contained herein should be construed as preempting or precluding
more stringent protection of wetlands or other natural resource areas by other by-laws,
ordinance or regulations.

FWR 10.02 Area of Jurisdiction (Resource Areas)

(1) Areas Subject to Protection Under Chapter 235 of the Code of Falmouth. The
following areas are subject to protection under Chapter 235 of the Code of Falmouth:

(a) Any:

1. bank,

2. freshwater wetland,

3. coastal wetland,

4. beach,

5. dune,

6. flat,

7. marsh,

8. swamp,

9. wet meadow,

10. bog, or

11. vernal pool;

(b) any:

1. reservoir,

2. creek,
3. estuary,

4. stream,

5. pond, or

6. lake;

(c) the ocean;

(d) Land under waterbodies;

(e) Land subject to tidal action;

(f) Land subject to flooding or inundation by groundwater or surface water;

(g) Land subject to coastal storm flowage;

(h) Land subject to flooding;

(i) Land within 100 feet of the areas listed in FWR 10.02(1)(a) through (h)

(j) Lands and Waters within the Black Beach/Great Sippewisset Marsh District of Critical
Planning Concern, and

(k) Lands and Waters within the Waquoit Bay Area of Critical Environmental Concern.

(2) Activities subject to regulation under the Bylaw

(a) Activities within resource areas: any activity proposed or undertaken within an area
specified in FWR 10.02(1) which, in the judgment of the Commission, will remove, fill,
dredge, build upon, degrade, or otherwise alter an area subject to protection under the
bylaw is subject to regulation under the bylaw and requires the filing of a Permit
Application. If the applicant is in doubt as to whether a Permit Application shall be
required by the Commission, a Request for a Determination of Applicability should be
filed (FWR 10.05(4)(a)).

(b) Activities Outside the Areas Subject to Protection Under Chapter 235 of the Code of
Falmouth. Any activity proposed or undertaken outside the areas specified in FWR
10.02(1) is not subject to regulation under Chapter 235 of the Code of Falmouth, and
does not require the filing of a Permit Application unless and until that activity actually
alters an Area Subject to Protection Under Chapter 235 of the Code of Falmouth
referenced in FWR 10.02(1)(a) through (k).
In the event that the Commission determines that such activity has in fact altered an
Area Subject to Protection Under Chapter 235 of the Code of Falmouth referenced in
FWR 10.02(1)(a) through (k), it shall impose such conditions on the activity or any
portion thereof as it deems necessary to contribute to the protection of the resource
area values identified in Chapter 235 of the Code of Falmouth.

(3) Notwithstanding the provisions of FWR 10.02(1) and (2), any freshwater wetland,
bank, land under waterbodies, land subject to flooding created for the purpose of
stormwater management pursuant to FWR 10.16(3), shall not require the filing of a
permit Application or a request for Determination of Applicability to maintain the
stormwater management system, provided that the work is limited to the maintenance of
the stormwater management system and conforms to a Permit issued after August 15,
1998, and that the area is not altered for other purposes.

FWR 10.03 General Provisions

(1) Burden of Proof.

Any person who files a permit application to perform any work within an Area Subject to
Protection Under Chapter 235 of the Code of Falmouth has the burden of demonstrating
to the Commission:

(a) that the area does not play a role in the protection of any of the resource area values
identified in Chapter 235 of the Code of Falmouth: or

(b) that the proposed work will contribute to the protection of the resource area values
identified in Chapter 235 of the

Code of Falmouth by complying with the general performance standards established by
FWR 10.00 for that area.



(2) Burden of Production. The burden of production means having to produce at least
some credible evidence from a competent source in support of the position taken.

(3) Subsurface Disposal of Sanitary Sewage (Title 5)

(a) Introduction. The State Environmental Code (310 CMR 15.00 et seq.), administered
locally by the Falmouth Board of Health, is a minimal public health regulation that may
be supplemented at the local level. This code was developed to protect public health
against bacteria-caused disease; it was not designed to protect public health from viral
contamination nor was it designed to protect environmental quality from septic-derived
nutrient and toxic contamination. The use of septic systems is likely to have a significant
or cumulative effect on the protection of public and private water supply, protection of
ground water, water pollution control, shellfish, and fisheries.
(b) Presumptions concerning Septic Systems.

1. A septic system is presumed to protect the resource area values protected by the
bylaw when it is sited according to the provisions of FWR 10.03(3)(c), and otherwise
meets the provisions of Title 5 and the Board of Health regulations;

2. Any proposed septic system or repair to an existing septic system that is not in
compliance with the setback requirements of FWR 10.03(3)(c) shall be presumed to
have a significant or cumulative adverse effect on the resource values specified in FWR
10.03(3)(a); and

3. The presumptions in FWR 10.03(3)(b)1. and 2. may be overcome by credible
evidence derived from a competent source, that the proposed septic system will have
no more significant or cumulative effect to the resource area values of the Bylaw than
one which would have met the setback requirement. The Commission may require
credible evidence in the form of a hydrogeologic study, including a report on such
parameters as surface and ground water conditions, ground water flow, ground water
contours, analysis for total and fecal coliforms, nitrate, total nitrogen, ammonia nitrogen,
total phosphate and any other applicable chemical or biological indicators, as required
by the Commission to determine its effect on the resource area values of the bylaw.
When the resource area setback requirement in FWR 10.03(3)(c)1. are not met solely
due to the location of the system components relative to a coastal bank, the scope of
the hydrologic study shall be limited to nitrogen loading of ground water and its effect on
public and private water supplies and nitrogen sensitive embayments, as well as
adverse phosphorous loading of freshwater systems.

(c) Septic System Location. A septic system is considered to be properly sited only if all
of the following conditions are met:

1. none of the septic system components is located within a resource area as defined in
FWR 10.02(1)(a) through (e);

2. the leaching facility of the disposal system is set back at least one hundred feet (100')
horizontally from the boundary of said resource areas; and

3. the system components are not located in a beach, dune, or v-zone portion of Land
Subject to Coastal Storm Flowage.

(d) Septic System Upgrades.

1. The 100-foot setback requirement shall not be required for the renovation or routine
replacement of septic systems constructed prior to the date of promulgation of these
regulations (except as provided in FWR 10.03(3)(d)2.) provided that no alternative
location is available on the lot or other parcel under the ownership or control of the
owner of the system proposed for upgrade, and, where applicable, provided that
variance of property line and/or street layout setbacks have been applied for from the
Falmouth Board of Health.

2. The setback requirement from the wetland resource areas listed in FWR 10.02(1)(a)
through (e) shall be required for any enlargement of a system which accompanies the
enlargement of an existing building or expanded scope of use.

(e) If a proposed septic system requires a variance from the requirements of 310 CMR
15.00 and/or the Board of Health regulations, the applicant must first apply for a
variance from the Board of Health prior to submitting a Permit Application to the
Commission.

(f) Notwithstanding the provisions of FWR 10.03(3)(b), a proposal for a septic system
located in an area subject to protection under the bylaw, but in excess of 200 feet from
the resource areas specified in FWR 10.02(a)2. through 4., 6

10.03: continued

. through 11., and 10.02(b) through (e) is exempt from the hydrogeologic study
requirement.

(4) Work performed for Normal Maintenance of Land Actively in Agricultural Use Where
the Bylaw requires written notice to the commission ten (10) days prior to the
commencement of work performed for the normal maintenance of land actively in
agricultural use, such notice may be provided on Form AG found in FWR 10.99.

(5) Where any section of FWR 10.00 provides that a proposed project "may be
permitted" in certain circumstances, no such project shall be undertaken until all of the
usual procedures required by Chapter 235 of the Code of Falmouth and FWR 10.00
have been followed and a Permit has been issued for the work. The Commission shall
impose such conditions on such projects

as may be necessary to contribute to the protection of the resource area values of
Chapter 235 of the Code of Falmouth.

FWR 10.04 DEFINITIONS

ACEC means an Area of Critical Environmental Concern established pursuant to MGL
Ch. 21A s.2(7)

Adverse effect means a greater than negligible change in the resource area or one of its
characteristics or factors that diminishes the value of the resource area to one or more
of the specific resource area values of Chapter 235 of the Town of Falmouth, as
determined by the Commission. "Negligible" means small enough to be disregarded.
Aesthetics means the relevant qualities to be protected under the Falmouth Wetlands
Bylaw which are due to those natural and natively scenic impressions of our shores,
ponds, lakes, streams, rivers, and the lands bordering them.

Agriculture. For the purposes of FWR 10.04 the following words and phrases have the
following meanings:

(a) Land actively in agricultural use means land presently and primarily used in
producing or raising one or more of the following agricultural commodities for
commercial purposes:

1. animals, including but not limited to livestock, poultry, and bees;

2. fruits, vegetables, berries, nuts, and other foods for human consumption;

3. feed, seed, forage, tobacco, flowers, sod, nursery or greenhouse products, and
ornamental plants or shrubs; and

4. forest products under a planned program to improve the quantity and quality of a
continuous crop.

Additionally, land actively in agricultural use means land presently and primarily used in
a manner related to, and customarily and necessarily used in, producing or raising such
commodities, including but not limited to: existing access roads and livestock crossings;
windbreaks; hedgerows; bee yards; sand pits; fence lines; water management projects
such as reservoirs, farm ponds, irrigation systems, field ditches, cross ditches,
canals/channels, grass waterways, dikes, sub-surface drainage systems, and watering
facilities; agricultural composting sites; agricultural storage and work areas; and land
under farm structures.

Land actively in agricultural shall have produced a commercial crop, and have been
subject to active agricultural practices for three (3) of the five (5) immediately preceding
years.

The Commission may require appropriate documentation to demonstrate active
agricultural use.

(b) Normal maintenance of land actively in agricultural use, which in all cases does not
include placing substantial amounts of fill in Land Subject to Flooding or Freshwater
Wetland, or filling or dredging a Salt Marsh, means the following activities, without
enlargement as to geographical extent, that are occurring on land in agricultural use,
when directly related to production or raising of the agricultural commodities referenced
in FWR 10.04(Agriculture)(a), when undertaken in such a manner as to prevent erosion
and siltation of adjacent water bodies and wetlands, and when conducted in accordance
with federal and state laws:
1. all crop management practices, not to include drainage in a Freshwater Wetland,
customarily employed to enhance existing growing conditions, including but not limited
to: tillage, trellising, pruning, mulching, shading, and irrigating; and all customary
harvesting practices such as digging, picking, combining, threshing, windrowing, baling,
curing, and drying;

2. the use of fertilizers, manures, compost materials, and other soil amendments;
pesticides and herbicides; and other such materials;

10.04: continued

3. the repair or replacement of existing access roads and livestock crossings;

4. the maintenance of existing windbreaks and hedgerows;

5. the maintenance and repair of existing fences and the management of temporary
fence lines;

6. the cleaning, clearing, grading, repairing, dredging, or restoring of existing man-
made water management systems such as reservoirs, farm ponds, irrigation systems,
field ditches, cross ditches, canals/channels, grass waterways, dikes, sub-surface
drainage systems, watering facilities, and vents, all in order to provide drainage, prevent
erosion, provide more effective use of water, or provide for efficient use of equipment,
and all for the purpose of maintaining favorable conditions for ongoing growing or
raising of agricultural commodities;

7. the repair and maintenance of existing farm structures;

8. the seeding of eroded or disturbed areas;

9. the keeping of livestock and poultry and the management of beehives;

10. the cultivation of cranberries, including the following practices:

a. the activities described in FWR 10.04(Agriculture)(b)1. through 11.;

b. the application of sand to existing bogs and the excavation of sand from sand pits;

c. the repair and reconstruction of water control structures including flumes, pumps,
dikes, and piping above and below the ground;

d. the regrading, including modification of drainage, and replanting of existing
cranberry bogs;

e. the repair and replacement of dikes;
f. water harvesting activities; and

g. flooding in a cranberry bog and flood release from a cranberry bog;

11. the cutting and removal of trees for the purpose of selling said trees or any
products derived therefrom, when carried out in the following manner:

a. every reasonable effort shall be made to avoid or minimize access through Areas
Subject to Protection Under the Bylaw;

b. where access through Areas Subject to Protection Under the Bylaw is necessary,
every reasonable effort shall be made to gain said access without constructing new
accessways including, but not limited to, maintaining and improving (but not
substantially enlarging) existing accessways, and operations shall be conducted when
the soil is frozen, dry or otherwise stable;

c. where access is determined impracticable without constructing new accessways,
said accessways shall be designed, constructed and maintained in accordance with
U.S. Forest Service logging road standards, and shall be removed and the site returned
to previously existing conditions within one year;

d. all channel crossings shall be stabilized to prevent erosion, using standard U.S.
Forest Service methods. When crossings involve fill or other closed or semi-closed
structures which will obstruct flow, they shall be designed, constructed and maintained
in accordance with U.S. Forest Service standards, shall allow the unobstructed passage
of existing flows for at least the ten-year storm, and shall be removed and the site
returned to existing conditions within one year of construction;

e. all soils which are exposed during and after work shall be stabilized to prevent said
soils from eroding into open water bodies, in accordance with standard U.S. Forest
Service methods;

f. all operations shall be conducted in accordance with a cutting plan approved by the
Massachusetts Department of Environmental Management District Forester; and

g. a written notice describing the proposed cutting and removal of trees shall be
submitted to the Commission not less than ten days prior to the commencement of
operations.

Alter means to change the condition of any Area Subject to Protection under the Bylaw.
Examples of alterations include, but are not limited to, the following:

(a) removal, excavation or dredging of soil, sand, gravel, or aggregate materials of any
kind;
(b) changing of preexisting drainage characteristics, flushing characteristics, salinity
distribution, sedimentation patterns, flow patterns, or flood retention characteristics;

(c) drainage or other disturbance of water level or water table;

(d) dumping, discharging or filling with any material which may degrade water quality;

(e) placing of fill, or removal of material, which would alter elevations;

(f) driving of piles, erection or repair of buildings, or structures of any kind;

(g) placing of obstructions or objects in water;

10.04: continued

(h) destruction of plant life, including cutting of trees;

(i) changing temperature, biochemical oxygen demand, or other physical or chemical
characteristics of water;

(j) any activities, changes or work which may cause or tend to contribute to pollution of
any body of water or groundwater; or

(k) application of pesticides or herbicides.

Aquaculture means:

(a) the growing of aquatic organisms under controlled conditions, including one or more
of the following uses: raising, breeding or producing a specified type of animal or
vegetable life including, but not limited to, finfish such as carp, catfish,

black bass, flatfishes, herring, salmon, shad, smelt, sturgeon, striped bass, sunfishes,
trout, whitefish, eel, tilapia; shellfish such as shrimp, crabs, lobster, crayfish, oysters,
clams, periwinkles, scallops, mussels, squid; amphibians such as frogs; reptiles such as
turtles; seaweeds such as irish moss and dulse; and edible freshwater plants; and

(b) the commercial harvesting of shellfish for the purpose of selling said shellfish or any
products derived therefrom, when carried out in a manner consistent with the rules and
regulations of the Shellfish Constable relative to such commercial harvest.


Area Subject to Protection Under the Bylaw means any area specified in FWR 10.02(1).
It is used synonymously with resource area, each one of which is defined in greater
detail in FWR 10.18 and 10.20 through 10.60.
Applicant means any person who files a request for determination of applicability or
permit application, or on whose behalf such a request or application is filed.

Bank (coastal) is defined in FWR 10.30(2)

Bank (inland) is defined in FWR 10.54(2)

Bank (of an estuary) is defined in FWR 10.36(2)

Bank (of salt pond) is defined in FWR 10.37(2)

Beach (coastal) is defined in FWR 10.27(2)

Beach (inland): a naturally occurring inland beach means an unvegetated bank as
defined in FWR 10.54(2).

Bedroom means any room, other than a closet, hallway, dining room, living room,
kitchen, or bathroom, that affords enough privacy for sleeping.

Best Available Measures means the most up-to-date technology or the best designs,
measures or engineering practices that have been developed and that are commercially
available.

Best Practical Measures means technologies, designs, measures or engineering
practices that are in general use to protect similar interests.

Bog is a type of freshwater wetland.

Boundary means the boundary of a resource area. A description of the boundary of
each resource area is found in the appropriate section of FWR 10.00. For coastal areas
see FWR 10.21 through 10.40. For inland areas see FWR 10.51 though 10.60 . For
freshwater Wetlands see FWR 10.70 through 10.88, as well as FWR 10.55.

Bordering means touching. An area listed in FWR 10.02(1)(a) is bordering on a water
body listed in FWR 10.02(1)(b) or (c) if some portion of the area is touching the water
body or if some portion of the area is touching another area listed in FWR

10.02(1)(a) some portion of which is in turn touching the water body.

10.04: continued

Breeding areas mean areas used by wildlife for courtship, mating, nesting or other
reproductive activity, and rearing of young.

Bylaw means Chapter 235 of the Code of Falmouth.
Certificate of Compliance means a written determination by the Commission that work
or a portion thereof has been completed in accordance with a Permit. A Certificate of
Compliance is issued on Form H.

Coastal Bank is defined in FWR 10.30(2).

Coastal Wetlands means any marsh, swamp, meadow, bank, flat or other lowland
subject to tidal action.

Commission means the Conservation Commission of the Town of Falmouth.

Compliance - A project is in compliance with these regulations and a Certificate of
Compliance will be issued when the requirements set forth in FWR 10.05(11) have been
fulfilled (i.e., project is consistent with plans submitted and Permit issued).

Conditions means those requirements set forth in a written Permit issued by the
Commission for the purpose of permitting, regulating or prohibiting any activity that
removes, fills, dredges, builds upon, degrades or otherwise alters an Area Subject to
Protection Under the Bylaw. [See also FWR 10.05(7).]

Conservation Commission Administrator means the duly authorized representative of
the Commission, with the authority to carry out certain of the Commission's functions.
These shall include, but not be limited to, carrying out site visits, determination of
application completeness, the issuance of Cease and Desist Orders, and reports to the
Commission.

Creek means the same as a stream, as defined in FWR 10.04.

Critical wildlife and plant habitat means the following areas: areas utilized by
threatened, rare, or endangered species, or species of special concern; or species on
the "Watch List"; or Priority Sites of Rare Species habitat; or Exemplary Natural
Communities; all of which are determined by the Massachusetts Division of Fisheries
and Wildlife, Natural Heritage & Endangered Species Program, and areas utilized by
species areas listed in the Cape Cod Critical Habitat Atlas (Association for the
Preservation of Cape Cod, 1990).

Date of Issuance means the date a Permit is mailed, as evidenced by a postmark, or
the date it is hand delivered, as evidenced by a signed receipt.

Determination.

(a) a Determination of Applicability means a written finding by the Commission as to
whether a site or the work proposed thereon is subject to the jurisdiction of Chapter 235
of the Code of Falmouth, and is issued on Form B.
(b) a Determination of Significance means a written finding by the Commission, after a
public hearing, that the area on which the proposed work is to be done, or which the
proposed work will alter, is significant to one or more of the resource area values
identified in Chapter 235 of the Code of Falmouth. It shall be made as part of the
Permit.

(c) a Notification of Non-Significance means a written finding by the Commission, after
a public hearing, that the area on which the proposed work is to be done, or which the
proposed work will alter, will not have a significant or cumulative effect on any of the
resource area values of Chapter 235 of the Code of Falmouth, and is issued on Form F.

Dock means the entire structure of any pier, wharf , walkway, bulkhead or float, and any
part thereof including pilings, ramps, walkways, float and/or tie-off pilings.

Dune means coastal dune, as defined in FWR 10.28(2).

Erosion means the wearing away of the land by running water, wind, ice, or other
geological agents.

10.04: continued

Estuary is defined in FWR 10.26(2).

Extension Permit means a written extension of time within which the authorized work
shall be completed, and is issued on Form G.

FEMA means the Federal Emergency Management Agency.

Fill means to deposit any material so as to raise an elevation, either temporarily or
permanently.

Final Decision means a decision made, pursuant to FWR 10.05(10), FWR 10.05(11), or
FWR 10.08, after a hearing; or if no hearing is requested within ten days after issuance
of a tentative decision, the tentative decision.

Flat is defined in FWR 10.27(2)(b).

Freshwater Wetland is defined in FWR 10.55(2).

General Performance Standards means those requirements established by FWR 10.00
for activities in or affecting each of the Areas Subject to Protection Under the Bylaw,
Chapter 235 of the Code of Falmouth.

Ground Water means water below the earth's surface in the zone of saturation.
Hardship means the application of Chapter 235 of the Code of Falmouth to a particular
piece of property, evaluated in its totality, owing to the unique characteristics of the
property, that is unduly oppressive, arbitrary or confiscatory and would involve
substantial economic loss to the applicant because of the literal enforcement of the By-
law provided that the conditions and characteristics of the property are not the result of
the actions of the applicant, or owner, or their agents, predecessors, successors or
assignees. No hardship exists where there is established under the Code of Falmouth a
right to transfer development rights.

Harvestable shellfish and finfish means shellfish and finfish species with commercial
value.

Improvement of water quality means a reduction in discharges of pollutants to ground
and/or surface waters. This may be accomplished by a reduction in lawn area, a
reduction in impervious surfaces, an increase in distance between pollution sources and
sensitive receptors, the substitution of organic practices for conventional lawn and
garden maintenance practices, the substitution of indigenous tree and shrub species for
landscaping requiring pesticides, and the treatment or improved treatment of storm
water runoff and sewage, or other methods.

Isolated Land Subject to Flooding is defined in FWR 10.57(2)(b).

Lake means any open body of fresh water with a surface area of ten acres or more, and
shall include great ponds.

Land Containing Shellfish is defined in FWR 10.34(2)

Land Subject to Coastal Storm Flowage is defined in FWR 10.38(2).

Land Subject to Flooding is defined in FWR 10.57(2).

Land Subject to Flooding or Inundation by Groundwater or Surface Water means land
where water collects from flooding caused by storms or by flooding caused by high
ground water levels, or a combination thereof, and may include land subject to flooding,
freshwater wetlands, and/or vernal pools. Where these areas are utilized by vernal pool
species, they are defined in FWR 10.58(2). When flooding is caused by rainfall it is
defined in FWR 10.57(2). Where these areas have groundwater at the surface for a
length of time sufficient to produce hydric conditions, they may be freshwater wetlands
defined in FWR 10.55(2).

Land Subject to Tidal Action means land subject to the periodic rise and fall of a coastal
water body, including spring tides.

10.04: continued

Land Under Estuaries is defined in FWR 10.26(2).
Land Under Salt Ponds is defined in FWR 10.33(2).

Land Under Waterbodies means the bottom of, or land under, the surface of the ocean
or any estuary, creek, stream, pond, or lake. Land under inland water bodies is defined
in FWR 10.56(2)

Lands and Waters within the Black Beach/Great Sippewisset Marsh District of Critical
Planning Concern is defined in FWR 10.39.

Lands and Waters within the Waquoit Bay Area of Critical Environmental Concern is
defined in FWR 10.40.

Lawfully Located Structure or Facility means one that:

(a) had a building permit and all other permit(s) required by law or regulation at the time
of its construction and was constructed in accordance with state and local laws and
regulations;

(b) by virtue of state law or local zoning bylaw, is deemed to be in compliance with
applicable regulations; or

(c) on which no action may be taken to compel its removal.

Limit of Work means the boundary beyond which no work may take place.

Marsh is a type of freshwater wetland.

Minimize means to achieve the least amount of adverse effect that can be attained
using best available measures or best practical measures, whichever is referred to in
the pertinent section.

Modify means to amend.

NPDES (National Pollutant Discharge Elimination System) Permit means the permit
issued jointly by the federal and state governments, in accordance with 33 U.S.C. 1342
and M.G.L. c. 21, § 43, regulating liquid discharges from a point source.

Naturally vegetated condition means an area on a lot or parcel of land, or portion
thereof, that is left in a natural, undisturbed vegetative state; has existed in a primarily
natural, undisturbed state, but has been enhanced with indigenous plantings conducive
to improved wildlife habitat according to a plan approved by the conservation
commission; or has been disturbed, but is revegetated with indigenous plantings that
will return the land to its pre-disturbance condition according to a plan approved by the
Commission.
Navigation means the ability to traverse a waterway and is part of the resource area
value recreation under the Bylaw.

Ocean means Buzzards Bay, Vineyard Sound, Nantucket Sound and all contiguous
waters subject to tidal action except salt ponds and estuaries.

Permit Application means an application for a permit to remove, fill, dredge, build upon,
degrade, or otherwise alter an area subject to protection under the bylaw. It is made on
Form C.

Person means 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, Town of Falmouth, or any other legal entity or its legal
representatives, agents or assigns.

Piers means the same as dock.

Plans means such data, maps, engineering drawings, calculations, specifications,
schedules and other materials, if any, deemed

necessary by the Commission to describe the site and/or the work, to determine the
applicability of Chapter 235 of the Code of Falmouth, or to determine the impact of the
proposed work upon the resource area values identified in Chapter 235 of the Code

10.04: continued

of Falmouth.

Pond (coastal) - means Salt Pond as defined in FWR 10.33(2)

Pond (inland) means any open body of fresh water with a surface area within the last
ten years of at least 5,000 square feet. Ponds may be either naturally occurring or man-
made by impoundment, excavation, or otherwise. Ponds shall contain standing water
except for periods of extended drought. For purposes of this definition, extended
drought shall mean any period of three or more months during which the average
rainfall is 50% or less of the ten year average for that same period as measured by the
Falmouth Department of Public Works.

Notwithstanding the above, the following man-made bodies of open water shall not be
considered ponds:

(a) basins or lagoons which are part of wastewater treatment plants;

(b) swimming pools or other impervious man-made basins; and
(c) individual gravel pits or quarries excavated from upland areas unless inactive for
five or more consecutive years.

Prevention of damage to structures and natural resources as a result of erosion means
preventing any activity, or the construction, improvement or repair of any structure, that
inhibits or otherwise restricts beach, barrier beach, or dune movement. Prevention of
damage to structures and natural resources as a result of erosion also means
preventing the construction or substantial improvement of a structure in an area likely to
be impacted by coastal erosion.

Prevention of new stormwater runoff discharges and the improvement of existing
stormwater runoff discharges means the prevention of new stormwater discharges
without proper mitigation as provided in FWR 10.39(24), and the implementation of
measures to have existing discharges meet the provisions of FWR 10.39(25).

Protection and enhancement of existing vegetative cover in order to maintain water
quality and wildlife habitat means to maximize the area of land in a naturally vegetated
condition.

Protection of coastal ecosystems which support the continued viability of harvestable
shellfish and finfish habitat means the protection of eel grass beds, salt ponds and salt
marshes. The protection of coastal ecosystems which support the continued viability of
harvestable shellfish and finfish habitat also means the protection of ecosystem
elements such as the salinity regime and water quality.

Recreation means the use and enjoyment of our natural surroundings in a manner
consistent with their preservation. Activities should not hinder access to coastal and
inland resources. Activities that shall be considered part of the use and enjoyment of
our natural surroundings in a manner consistent with their preservation shall include but
not be limited to recreational boating swimming and shellfishing. The Commission's
analysis of the project's effect on the resource area value of recreation should be
relative to a proposal's potential impacts on other wetland interests, with priority given to
enhancing and protecting those recreational activities which are not detrimental to the
continued natural function of wetlands.

Remove means to take away any type of material, thereby changing an elevation, either
temporarily or permanently.

Request for Determination of Applicability means a written request made by any person
to the Commission for a determination as to whether a site or work thereon is subject to
Chapter 235 of the Code of Falmouth, and is made on Form A.

Resource Area means any of the areas specified in FWR 10.25 through 10.40 and FWR
10.54 through 10.60. It is used synonymously with Area Subject to Protection Under
Chapter 235 of the Code of Falmouth, each one of which is enumerated in FWR
10.02(1)
Resource Values Identified in Chapter 235 of the Code of Falmouth means protection of
public and private water supply, groundwater, flood control, erosion and sedimentation
control, storm damage prevention, water pollution control, fisheries, shellfish, wildlife
habitat, agriculture, aesthetics, recreation, and aquaculture. In the Black Beach/Great
Sippewisset Marsh

District of Critical Planning Concern, the following resource area values also apply:
prevention of flood damage by limiting of development in flood hazard areas; prevention
of damage to structures and natural resources as a result of erosion; improvement

10.04: continued

of water quality; protection and enhancement of existing vegetative cover in order to
maintain water quality and wildlife habitat; protection of wildlife, waterfowl, and plant
habitat and the maintenance of existing populations and species diversity; prevention of
loss or degradation of critical wildlife and plant habitat; prevention of new stormwater
runoff discharges and the improvement of existing stormwater runoff discharges;
protection of coastal ecosystems which support the continued viability of harvestable
shellfish and finfish habitat; public access to water and land; improvement of
groundwater recharge; and the minimization of the impact of new development,
reconstruction and/or expansion on the resource area values listed above.

Rocky Intertidal Shore is defined in FWR 10.31(2)

Salt Pond is defined in FWR 10.32(2).

Significant means plays a role. A resource area is significant to a resource area value
identified in Chapter 235 of the Code of Falmouth when it plays a role in the provision or
protection, as appropriate, of that resource area value.

Stream means a body of running water, including brooks, creeks, and rivers which
moves in a definite channel in the ground due to a hydraulic gradient, and which flows
within, into or out of an Area Subject to Protection Under Chapter 235 of the Code of
Falmouth. A portion of a stream may flow through a culvert or beneath a bridge. Such a
body of running water which does not flow throughout the year (i.e., which is
intermittent) is a stream except for that portion upgradient of all freshwater wetlands,
bogs, swamps, wet meadows and marshes.

Swamp is a type of freshwater wetland.

Tentative Decision means a decision made, pursuant to FWR 10.05(10), FWR
10.05(11), or FWR 10.08, where no hearing was held. If no hearing is requested within
ten days after issuance of a tentative decision, the tentative decision becomes a final
decision.
V-zone means velocity zone.

Velocity Zone (including V-, VE-, & Vi-30) Is defined in FWR 10.38(2).

Vernal Pool is defined in FWR 10.58(2).

Vista Pruning means the selective thinning of tree branches or understory shrubs to
establish a specific "window" to improve visibility. Vista pruning does not include the
cutting of trees which would reduce the leaf canopy to less than 90% of the existing
crown cover and does not include the mowing or removal of understory brush.

Water-dependent uses mean those uses and facilities which require direct access to, or
location in, marine, tidal or inland waters and which therefore cannot be located away
from said waters, limited to: marinas, public recreational uses, navigational and
commercial fishing and boating facilities, water-based recreational uses, navigation
aids, basins, and channels, crossings over or under water bodies (but limited to railroad
and public roadway bridges, tunnels, culverts, as well as railroad tracks and public
roadways connecting thereto which are generally perpendicular to the water body).

Water Pollution Control means the prevention or reduction of contamination of surface
or ground water.

Wet Meadow is a type of freshwater wetland.

Wildlife means all animals and vegetation.

Wildlife habitat means areas which, due to their plant community composition and
structure, hydrologic regime or other characteristics, provide food, shelter, migratory or
overwintering areas, or breeding areas for animals. This includes all areas in a naturally
vegetated condition.

FWR 10.05 Procedures

The following procedures shall apply to all filings under the Falmouth Wetlands Bylaw

(1) Time Periods. All time periods of ten days or less specified in Chapter 235 of the
Code of Falmouth, and FWR 10.00 shall be computed using business days only. In the
case of a determination, Permit or tentative decision, such period shall commence on
the first day after the date of issuance and shall end at the close of business on the
tenth business day thereafter. All other time periods specified in Chapter 235 of the
Code of Falmouth, and FWR 10.00 shall be computed on the basis of calendar days,
unless the last day falls on a Saturday, Sunday or legal holiday, in which case the last
day shall be the next business day following.

(2) Actions by Conservation Commission. Where Chapter 235 of the Code of
Falmouth, states that a particular action (except receipt of a request or notice) is to be
taken by the Commission, that action is to be taken by more than half the members
present at a meeting of at least a quorum. A quorum is defined as a majority of the
members then in office.

Where Chapter 235 of the Code of Falmouth, states that the Commission is to receive a
request or permit application, Commission means an individual designated by the
conservation commission to receive such request or permit application.

(3) Administrative Review

(a) Scope. Some proposed projects that fall within the Commission's jurisdiction are of
such small scale as to not remove, fill, dredge, build upon, degrade, or otherwise alter
an area subject to protection under the bylaw even though they may be proposed in a
resource area. Such projects should not undergo the scrutiny of a formal hearing before
the Commission and can be adequately reviewed by the Administrator.

(b) Applicability. If a project meets the criteria in FWR 10.05(3)(b) 1. or 2., the work may
be approved by the Administrator without the filing of a Request for a Determination of
Applicability or a Permit Application. If the Administrator has any doubt that a project
meets these conditions, the applicant will be required to request a hearing and file a
Request for a Determination of Applicability or Permit Application.

1. A project may be approved by the Administrator pursuant to FWR 10.05(3) if it meets
all of the following conditions:

a. No work is proposed in any Resource Area defined in FWR 10.02(1)(a) through (e),
and/or (j) though (k);

b. No work is proposed in the Velocity Zone portion of Land Subject to Coastal Storm
Flowage;

c. Work is not proposed within seventy-five (75') feet from the inland edge of any
resource areas defined in FWR 10.02(1)(a) through (e), and the resource area buffer is
flat or nearly so;

d. No uprooting of vegetation and no mowing to the ground or clear cutting is proposed;

e. Any proposed addition to a principal structure does not exceed five percent (5%) of
the first floor footprint, and no alteration to an existing septic system is proposed or
required by other local or state agency; and

f. No stormwater management system is required by the provisions of FWR 10.16(3)
and FWR 2.00

2. A project may be approved by the Administrator pursuant to FWR 10.05(3) if it meets
any one of the following conditions:
` a. All work is within the A-Zone potion of Land Subject to Coastal Storm Flowage and
over one hundred feet from those resource areas specified in FWR 10.02(1) (a) through
(e);

b. ordinary repair (but not substantial repair) or maintenance of an existing single family
house that is located over twenty-five feet (25 ft.) from the edge of all those resource
areas specified in FWR 10.02(1) (a) through (e); or

c. the project is an upgrade of a septic system that does not require or involve an
increase in design flow or number of bedrooms, provided the system components will
be over fifty feet (50 ft.) from those resource areas specified in FWR 10.02(1) (a)
through (e).

3. Notwithstanding the provisions of FWR 10.05(3)(b) 1. and 2., if the Administrator is of
the opinion that in their professional judgement that the project is not appropriate for
Administrative Review, the Administrator may not approve the project.

(c) Procedure. The process is as follows:

1. The applicant will submit on Form AR sufficient information to determine where the
project is located and whether it meets the requirements set forth in (b) above;

2. The Conservation Administrator will visit the site;

3. The Conservation Administrator will determine whether all conditions of this
regulation are met;

4. The Conservation Administrator will issue an Administrative Review Decision (Form
ARD) within 21 days of receipt of a written request that fulfills the information
requirements.

10.05: continued

5. The decision will be filed as a permanent record with the Commission.

(d) Appeal. If the decision rendered by the Administrator is opposed by any party in
interest, they may apply for a Request for a Determination of Applicability.

(4) Determinations of Applicability.

(a) Requests for Determination of Applicability.

1. Any person who desires a determination as to whether Chapter 235 of the Code of
Falmouth, applies to land, or to work that may affect an Area Subject to Protection
Under Chapter 235 of the Code of Falmouth, may submit to the Commission by certified
mail or hand delivery a Request for a Determination of Applicability. Such request shall
include such information as required in FWR 10.99, to enable the Commission to find
and view the area and to determine whether the proposed work will remove, dredge, fill,
build upon, degrade or otherwise alter an Area Subject to Protection Under the Bylaw.

2. A Request for a Determination of Applicability shall include certification that the
owner of the area subject to the request, if the person making the request is not the
owner, has been notified that a determination is being requested under Chapter 235 of
the Code of Falmouth.

(b) Determination of Applicability.

1. Within 21 days after the date of receipt of the Request for a Determination of
Applicability, the Commission shall issue a Determination of Applicability. Notice of the
time and place of the public hearing at which the determination will be made shall be
given by the Commission at the expense of the person making the request not less than
five days prior to such meeting, by publication in The Enterprise and by mailing a notice
to the person making the request, and the owner. Notice shall also be given in
accordance with the Open Meeting Law, M.G.L. c. 39, § 23B. Said determination shall
be signed by a majority of the conservation commission, and copies thereof shall be
sent by the Commission to the person making the request, and to the owner. Said
determination shall be valid for three years from the date of issuance.

2. The conservation commission shall find that Chapter 235 of the Code of Falmouth,
applies to the land, or a portion thereof, if it is an Area Subject to Protection Under
Chapter 235 of the Code of Falmouth, as defined in FWR 10.02(1). The conservation
commission shall find that Chapter 235 of the Code of Falmouth applies to the work, or
portion thereof, if it is an Activity Subject to Regulation Under Chapter 235 of the Code
of Falmouth as defined in FWR 10.02(2).

3. Determinations made prior to effective date of FWR 10.39 Lands and Waters in the
Black Beach/Great Sippewisset Marsh District of Critical Planning Concern.
Determinations of Applicability issued prior to April 17, 1997 shall be valid only for the
resource areas specified in the Determination and not for Land and Waters in the Black
Beach/Great Sippewisset Marsh District of Critical Planning Concern.

4. If information significant to the Determination of Applicability becomes available which
was previously not available or withheld, the Commission may issue a Cease and
Desist Order pursuant to FWR 10.08. In such a case, the Cease and Desist Order shall
state that no work is to be undertaken until a new or amended Determination of
Applicability is issued. The Commission may revoke or amend a Determination of
Applicability when new information has become available to the Commission which was
not available at the time of Determination of Applicability issuance, or the Commission
has determined that information submitted to the Commission upon which the
Determination of Applicability was based is false, incorrect or misleading, provided
procedures for a hearing are provided to the applicant pursuant to the provisions of
FWR 10.05(6).

5. A Permit Application which is filed as a result of a positive determination shall be
filed with the Commission, and all of the procedures set forth in FWR 10.05(5) shall
apply.

(5) Permit Application

(a) Any person who proposes to do work that will remove, fill, dredge, build upon,
degrade, or otherwise alter any Area Subject to Protection Under Chapter 235 of the
Code of Falmouth shall submit a Permit Application, Form C of FWR 10.99, and other
application materials in accordance with the submittal requirements set forth in FWR
10.99 General Instructions for Filing a Permit Application.

(b) For certain projects, applicants may at their option use the Abbreviated Permit
Application, Form D of FWR 10.99. This latter form may only be used when all three of
the following circumstances exist:

1. The proposed work is not within the areas specified in FWR 10.02(a) through (e), or
(j) through (k);

2. The proposed work will alter less than 1,000 square feet of surface area; and

10.05: continued

3. An Order of Conditions pursuant to M.G.L. Chapter 131, sec. 40 is not required.

(c) Upon receipt of the application materials referred to in FWR 10.05(5)(a) and the
applicable fee in FWR 10.09(2), the Commission, or its agent, 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 a Permit, but only that
copies of the minimum submittal requirements contained in FWR 10.99 General
Instructions for filing a Permit Application have been filed.

(d) A Permit Application shall expire where the applicant has failed to diligently pursue
the issuance of a Permit in proceedings under FWR 10.00. A Permit Application shall be
presumed to have expired one year after the date of filing unless the applicant submits
information showing that (a) good cause exists for the delay of proceedings under FWR
10.00; and (b) the applicant has continued to pursue the project diligently in other
forums in the intervening period; provided, however, that unfavorable financial
circumstances shall not constitute good cause for delay. No permit application shall be
deemed expired under this section when an appeal is pending and when the applicant
has provided all information necessary to continue with the prosecution of the case.
(e) Abutter Notification for Permit Application Any person filing a Permit Application with
the conservation commission shall at the same time give written notification thereof, by
delivery in hand, or certified mail, return receipt requested, to all abutters and other
landowners within 100 feet of the property line of the land where the activity is
proposed, at the mailing addresses shown on the most recent applicable tax list of the
assessors, including, but not limited to, owners of land directly opposite said proposed
activity on any public or private way, and in another municipality or across a body of
water. Said notification shall be at the applicants expense, and shall state where the
copies of the Permit Application may be examined and obtained or shall include a copy
of the complete permit application and where information the date, time and place of the
hearing may be obtained. An affidavit of the person providing such notice, with a copy of
the notice mailed or delivered, shall be filed with the Commission.

(f) Permit Applications or Permits issued before April 17, 1997 do not need to reapply
for the same activities pursuant to FWR 10.39 unless the Permit Application or Permit
has expired.

(6) Public Hearings.

(a) A public hearing shall be held by the Commission within 21 days of receipt of the
minimum submittal requirements and shall be advertised in accordance with Chapter
235 of the Code of Falmouth and the requirements of the Open Meeting Law, M.G.L. c.
39, § 23B.

(b) The advertising cost for a public hearing for a permit or request for determination
shall paid by the applicant (see Fees, FWR 10.09). The advertising cost for a public
hearing for any other matter shall be shall be paid by the person requesting said
hearing.

(c) Public hearings may be continued as follows:

1. without the consent of the applicant to a date announced at the hearing, within 21
days, of receipt of the complete Permit Application;

2. with the consent of the applicant, to an agreed-upon date, which shall be announced
at the hearing; or

3. with the consent of the applicant for a period not to exceed 21 days after the
submission of a specified piece of information or the occurrence of a specified action.
The date, time and place of said continued hearing shall be publicized in accordance
with Chapter 235 of Code of Falmouth, and notice shall be sent to any person at the
hearing who so requests in writing.

(7) Permits
(a) Scope. A Permit is designed to permit the proposed construction activity while, at the
same time, ensuring that valuable wetlands resources will be protected from either
deliberate or accidental damage. Resource area protection is achieved by a
combination of design elements within the approved plan and by additional conditions
imposed by the Commission. All construction activities must be completed in
compliance with the existing Permit.

(b) General Requirements. The following shall apply to all Permits:

Conditions may be for the construction period (e.g. straw bales for erosion control) or
may be in perpetuity (e.g. buffer strips for erosion control and wildlife habitat).
Conditions may be structural (e.g. hay bale barrier for erosion control) or may require a
specified standard of performance (e.g., prevention of erosion).

(c) Standard Conditions. A standard set of conditions will be imposed on all Permits
issued by the Commission. These standard conditions are found in Form E in FWR
10.99.

(d) Special Conditions. A special set of conditions will be imposed when applicable on
Permits issued by the Commission.

(e) If information significant to the Permit becomes available which was previously not
available or withheld, the

10.05: continued

Commission may issue a Cease and Desist Order pursuant to FWR 10.08. In such a
case, the Cease and Desist Order shall state that no work is to be undertaken until a
new or amended Permit is issued. The Commission may revoke or amend a Permit
when new information has become available to the Commission which was not
available at the time of Permit issuance, or the Commission has determined that
information submitted to the Commission upon which the Permit decision was based is
false, incorrect or misleading, provided procedures for a hearing are provided to the
Permit holder pursuant to the provisions of FWR 10.05(6).

(f) Minimizing Resource Area Impacts

1. In the Black Beach/Great Sippewisset Marsh District of Critical Planning Concern,
Permits can be issued only if the impact to the resource area is minimized by limiting
the area which is removed, filled, dredged, built upon, degraded, or otherwise altered to
less than 6000 square feet or 10% of the lot, whichever is greater.

a. The land area utilized for private subdivision roads and common driveways existing
as of January 17, 1996, shall not be included in the computation of the area which is
removed, filled, dredged, built upon, degraded, or otherwise permanently altered.
b. The land area used for determination of lot size shall not include those areas of the
lot that are in the resource areas of: land under the ocean; land under a salt pond; land
under an estuary; or saltmarsh.

2. In a barrier beach system where a proposed project is not proposed on a beach or
dune, Permits shall be issued only if the impact to the resource area is minimized by
limiting the area which is removed, filled, dredged, built upon, degraded, or otherwise
permanently altered to less than 6000 square feet or 10% of the lot, whichever is
greater a. The land area utilized for private subdivision roads and common driveways
existing as of August 15, 1998, shall not be included in the computation of the area
which is removed, filled, dredged, built upon, degraded, or otherwise permanently
altered.

b. The land area used for determination of lot size shall not include those areas of the
lot that are in the resource areas of: land under the ocean; land under a salt pond; land
under an estuary; or saltmarsh.

(g) Notwithstanding the provisions of FWR 10.05(7)(f)1. and 2., a permit for a project
that temporarily alters more than the amount specified in FWR 10.05(7)(f)1 during
construction activities, may be permitted provided the area in excess of that specified in
FWR 10.05(7)(f)1. and 2. is restored to a naturally vegetated condition immediately
following construction.

(8) Amended Permits

(a) Following the issuance of a Permit, unforeseen circumstances sometimes arise
which may require minor deviations from the project approved in that Permit. To allow
for the smooth operation of the permitting procedure and to avoid unnecessary and
unproductive duplication of regulatory effort after a Permit has been issued, it would not
be reasonable to require a complete refiling of the Permit Application when the changes
sought in the Permit are relatively minor and will have unchanged or less impact on the
resource area values protected by the Bylaw. Amended Permits provide assurances to
applicants that modifications undertaken in the course of the project are within the
scope of the deviations allowed for the receipt of a Certificate of Compliance at FWR
10.05(11). No amended permit shall be issued for a permit that has expired.

(b) Minor Changes. The most simple changes, such as correcting obvious mistakes
such as citing a wrong file number or typographical errors, may be accomplished by
correction of the Permit by the Commission or the Conservation Administrator.

(c) Moderate Changes.

1. The applicant shall make a request for an amendment to the Commission. The
request for an amendment of the Permit is to be made either orally at a regularly
scheduled meeting of the Commission or by submitting the request to the Commission
in writing.


2. The Commission shall make a determination whether the requested change is of a
relatively minor nature and can be considered as an amendment to the original Permit.
In making this determination, the Commission shall consider such factors as whether
the purpose of the project has changed, whether the scope of the project has increased,
whether the project meets relevant performance standards, and whether the potential
for adverse impacts to the protected statutory resource area values will be increased.
Relatively minor changes which result in the same or decreased impact on the resource
area values protected by the Bylaw shall be considered a Minor Change.

3. If the Commission determines that a new Permit Application is not necessary, the
Commission shall publish newspaper notice (at the applicant's expense) in the same
general manner as outlined in the Bylaw for new Permit Applications and as required by
the Open Meeting Law, M.G.L. c. 39, §23B, to inform the public that the request for
amendment to the Permit will be considered by the Commission at a public hearing.

4. The applicant shall follow the requirements of abutter notification as if filing a Permit
Application as described in

10.05: continued

FWR 10.05(5).

5. The usual appeal procedure of the Permit shall apply to the amended permit,
however the issues under appeal will be limited to those issues subject to the
amendment(s) or the change(s) made in the Permit. Until there is a final resolution of
the appeal, no work may continue on those portions of the project not permitted under
the Permit but only permitted by the amendment(s) which has been appealed.

6. Under no circumstances shall the issuance of an Amended Permit extend the
effective date of the original Permit. The Amended Permit shall run with the term of the
original Permit or the effective date of an extended Permit.

7. The Amended Permit shall be issued on the form provided for a Permit, with the
insertion of the word "Amended" and the amendment date. Amended Permits shall be
recorded with the Registry of Deeds in the same manner as Permits.

(d) Significant Changes. Significant changes require the filing of a new Permit
Application.

(9) Denials

(a) Procedural Denials.
If the 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 resource area values
identified in the Bylaw, it may issue a denial prohibiting the work. The denial shall
specify the information which is lacking and why it is necessary. In writing the
procedural denial, the Commission shall:

1. State that the denial is specifically based on lack of information describing the site,
the work and/or the effect of the work on the resource area values identified in the
Bylaw;

2. List specific information needed in each of the three possible problem areas
mentioned above, citing appropriate sections of FWR 10.00; and

3. State that the Commission encourages a resubmittal of a Permit Application with the
above requested information.

(b) Substantive Denials. The Commission may deny permission for any activity within
areas under its jurisdiction if, in its judgement, such denial is necessary to protect the
resource area values identified in the Bylaw. Due consideration shall be given to all
possible effects of the proposal on all resource area values protected under the Bylaw.
Substantive denials are based on a reasoned analysis of the proposed activity and the
likely effects of this activity on the resource area values. In most cases, neither the
assumption of protection nor the assumption of damage will be able to be proven with
certainty. The Commission will base its judgement on the best information available to it
at the time and in all cases will act to protect the resource area values as defined in the
Bylaw.

The written decision will include the reasons for the denial, citing resource area values
protected, and relevant regulations. The written decision will be signed by a majority of
the Commission.

(10) Extensions of Permits.

(a) The Commission may extend a Permit for one or more periods of one year each,
which shall be made on Form G. The request for an extension shall be made to the
Commission at least 30 days prior to expiration of the Permit.

(b) The Commission may deny the request for an extension and require the filing of a
new Permit Application for the remaining work in the following circumstances:

1. where no work has begun on the project, except where such failure is due to an
unavoidable delay, such as appeals, in the obtaining of other necessary permits;

2. where new information, not available at the time the Permit was issued, has become
available and indicates that the Permit is not adequate to protect the resource area
values identified in Chapter 235 of the Code of Falmouth;
3. where incomplete work is causing damage to the resource area values identified in
Chapter 235 of the Code of Falmouth;

4. where work has been done in violation of the Permit or FWR 10.00; or

5. where applicable sections of the Chapter 235 of the Code of Falmouth and/or FWR
10.00 have been changed.

(c) Request for Hearing

1. Any party specified in FWR 10.10(1)(a) may request a hearing in writing prior to the
issuance of the Extension Permit, or within 10 days of the issuance of the decision
relative to the request for an Extension Permit.

2. Any decision regarding an Extension Permit where no hearing was held shall be a
tentative decision.

3. Where no hearing has been held, and no request for a hearing has been made
pursuant to FWR 10.05(10)(c)1, the tentative decision shall be final.

10.05: continued

4. Where a request for a hearing is made, the commission shall conduct a hearing and
issue a final decision pursuant to the procedures specified in FWR 10.05(6).

5. Where a request for an hearing is filed after the tentative decision is issued, the
Commission shall conduct a hearing regarding the issuance of a final decision without
prejudice to all parties.

(d) The Extension Permit shall be signed by a majority of the commission.

(e) The Final Extension Permit shall be recorded in the Land Court or the Registry of
Deeds, whichever is appropriate. Certification of recording shall be sent to the
Commission on the form at the end of Form G. If work is undertaken without the
applicant so recording the Final Extension Permit, the Commission may issue an
Enforcement Order or may itself record the Final Extension Permit.

(11) Certificate of Compliance

(a) Upon written request by the applicant for a Certificate of Compliance, the
Commission shall issue a decision regarding the request within 21 days of receipt
thereof. A Certificate of Compliance is issued by the Commission on Form H of FWR
10.99 and may certify that the activity or portions thereof described in the Permit
Application and plans has been completed in compliance with the Permit. The
Certificate of Compliance shall be signed by a majority of the commission.
(b) Prior to the issuance of a Certificate of Compliance, a site inspection shall be made
by the Commission, or its agent, with prior notice to the applicant or the applicant's
agent, of the date and time of said site inspection.

(c) If the Commission determines, after review and inspection, that the work has not
been done in compliance with the Permit, it may refuse to issue a Certificate of
Compliance. Such refusal shall be issued within 21 days of receipt of a request for a
Certificate of Compliance, shall be in writing and shall specify the reasons for denial.

(d) If a project has been completed in accordance with plans stamped by a registered
professional engineer, architect, landscape architect or land surveyor, a written
statement by such a professional person certifying substantial compliance with the
plans and setting forth what deviation, if any, exists from the plans approved in the
Permit shall accompany the request for a Certificate of Compliance.

(e) If the Permit contains conditions which continue past the completion of the work,
such as maintenance or monitoring, the Certificate of Compliance shall specify which, if
any, of such conditions shall continue. The Certificate shall also specify to what portions
of the work it applies, if it does not apply to all the work regulated by the Permit.

(f) The Final Certificate of Compliance shall be recorded in the Land Court or Registry
of Deeds, whichever is appropriate. Certification of recording shall be sent to the
Commission. Upon failure of the applicant to so record, the Commission may do so.


(g) Request for Hearing

1. Any party specified in FWR 10.10 may request a hearing in writing prior to the
issuance of the Certificate of Compliance, or within 10 days of the issuance of the
decision relative to the request for a Certificate of Compliance.

2. Any decision regarding a Certificate of Compliance where no hearing was held shall
be a tentative decision.

3. Where no hearing has been held, and no request for a hearing has been made
pursuant to FWR 10.05(11)(g)1, the tentative decision shall be final.

4. Where a request for a hearing is made, the commission shall conduct a hearing and
issue a final decision pursuant to the procedures specified in FWR 10.05(6).

5. Where a request for an hearing is filed after the tentative decision is issued, the
commission shall conduct a hearing regarding the issuance of a final decision without
prejudice to all parties.

(12) Recording in Registry of Deeds or Land Court
(a) The following forms issued by the Commission shall be recorded in the Barnstable
County Registry of Deeds or the Land Court, whichever is appropriate:

1. Permit

2. Amended Permit

3. Notification of Non-Significance

4. Final Extension Permit

5. Final Certificate of Compliance

(b) If the applicant fails to timely record any of these documents (unless in accordance
with paragraph c, below), the Commission is empowered to do so. As proof of
recording, the applicant must deliver to the Commission the recording slip at the bottom
of the Permit, Amended Permit, Notification of Non-Significance, Final Extension, Permit
or Final

10.05: continued

Certificate of Compliance, as appropriate. If the Commission must record any of the
above documents, the applicant will be charged the cost of recording plus a fee of
$75.00. In such cases, the Commission is also empowered to issue an Enforcement
Order prohibiting any work.

(c) If the applicant desires to delay the recording of the Permit, they shall so state in
writing to the Commission the reasons for the delay, and the estimated date of
recording. In no case shall any construction commence unless and until the Permit has
been recorded.

FWR 10.06 Emergency Work

(1) Any person requesting permission to do an emergency project shall specify why the
project is necessary for the protection of the health or safety of the citizens of the
Commonwealth and what agency of the Commonwealth or subdivision thereof is to
perform the project or has ordered the project to be performed. If the project is certified
to be an emergency by the Commission, the certification shall include a description of
the work which is to be allowed and shall not include work beyond that necessary to
abate the emergency. A site inspection shall be made prior to certification.

(2) An emergency certification shall be issued only for the protection of public health or
safety.
(3) Within 21 days of commencement of an emergency project a permit application
shall be filed with the Commission for review as provided by this bylaw.

(4) Upon failure to meet the requirements or FWR 10.06, the Commission may, after
notice and a public hearing, revoke or modify an emergency project approval and order
restoration and mitigation measures.

(5) Notwithstanding the provisions of FWR 10.06(2), the Commission may adopt
emergency regulations in conformance with this bylaw for limited durations after severe
coastal storms, notice of which shall be provided as soon as possible after their
adoption.

FWR 10.07 Performance Guarantee

(1) Introduction. The performance guarantee is a tool available to the Commission to
insure that proposed work is done in compliance with a Permit.

(2) Procedure. The Commission may require that the performance and observance of
the conditions imposed by the Permit be secured wholly or in part by one or more of the
methods described in FWR 10.07(2)(a) and (b).

(a) The following forms of security shall be released in whole or in part upon the
issuance of a Certificate of Compliance:

1. bond;

2. deposit of money;

3. negotiable securities; or

4. other undertaking of financial responsibility.

(b) The following forms of security shall be executed and duly recorded in the
Barnstable County Registry of Deeds by the owner of record running with the land the
benefit of the Town of Falmouth whereby the applicable permits conditions shall be
performed and observed before any lot may be conveyed other than by mortgage deed:

1. conservation restriction pursuant to Sections 31, 32, and 33 of Chapter 184 of the
General Laws;

2. easement; or

3. other covenant enforceable in a court of law.

(3) The performance guarantee specified in FWR 10.07(2)(a) should be extended to
"The Town of Falmouth Conservation Commission" based on the Permit, ( File ______),
Special Condition No. ____. and shall state the specific work covered by the
performance guarantee.

(4) If it is required that a time period be stated for a form of performance guarantee
specified in FWR 10.07(2)(a), the applicant

10.07: continued

shall insure that the bond performance guarantee be continued if the work is not
successfully completed at the end of that period, or the commission may elect to utilize
the performance guarantee to complete the work.

FWR 10.08 Enforcement

(1) Cease and Desist Orders

(a) When the Commission determines that an activity is in violation of Chapter 235 of
the Code of Falmouth or a Permit, the Commission may issue a Cease and Desist
Order. Violations include, but are not limited to:

1. failure to comply with a Permit, such as failure to observe a particular condition or
time period specified in the

Permit;

2. failure to complete work described in a Permit, when such failure causes damage to
the resource area values identified in Chapter 235 of the Code of Falmouth; or

3. failure to obtain a valid Permit or Final Extension Permit prior to conducting an
Activity Subject to Regulation Under Chapter 235 of the Code of Falmouth as defined in
FWR 10.02(2).

(b) The members, officers, employees and agents of the Commission may enter upon
privately owned land for the purpose of performing their duties under this section with
prior approval of the property owner, or other legal authority as provided by law.

(c) A Cease and Desist Order shall be signed by a majority of the commission. In a
situation requiring immediate action, a Cease and Desist may be signed by a single
member, agent of the commission, or Natural Resource officer, if said Order is ratified
by a majority of the members at the next scheduled meeting of the commission.

(d) Request for Hearing

1. Any party specified in FWR 10.10(1)(a) may request a hearing in writing within 10
days of the issuance of the Cease and Desist Order.
2. Any decision regarding an Cease and Desist Order where no hearing was held shall
be a tentative decision.

3. Where no hearing has been held, and no request for a hearing has been made
pursuant to FWR 10.08(d)(1.), the tentative decision shall be final.

4. Where a request for a hearing is made, the commission shall conduct a hearing and
issue a final decision pursuant to the procedures specified in FWR 10.05(6).

5. Where a request for an hearing is filed after the tentative decision is issued, the
commission shall conduct a hearing regarding the issuance of a final decision without
prejudice to all parties.

(2) Enforcement Orders

(a) When the Commission determines that an activity is in violation of Chapter 235 of
the Code of Falmouth or a Permit and that action must be taken to correct the violation,
the Commission may issue an Enforcement Order. Violations include, but are not limited
to:

1. failure to comply with a Permit, such as failure to observe a particular condition or
time period specified in the Permit;

2. failure to complete work described in a Permit, when such failure causes damage to
the resource area values identified in Chapter 235 of the Code of Falmouth; or

3. failure to obtain a valid Permit or Final Extension Permit prior to conducting an
Activity Subject to Regulation Under Chapter 235 of the Code of Falmouth as defined in
FWR 10.02(2).

(b) The members, officers, employees and agents of the Commission may enter upon
privately owned land for the purpose of performing their duties under this section with
prior approval of the property owner, or other legal authority as provided by law.

(c) An Enforcement Order shall be signed by a majority of the commission after a
hearing. Said hearing shall be conducted according to the provisions of FWR 10.05(6).
In a situation requiring immediate action, an Enforcement Order may be signed by a
single member, agent of the commission, or Natural Resource officer, prior to a hearing,
provided a hearing is held at the soonest available time and said Order is ratified by a
majority of the members after said hearing.



(3) Criminal Complaints filed pursuant to Chapter 1, section 1-1, of the Code of the
Town of Falmouth
(a) Chapter 1, section 1-1 of the Code of the Town of Falmouth provides that "Whoever
violates any provisions of the

10.08: continued

bylaws contained in the Code of the Town of Falmouth may be penalized by indictment
or on complaint brought in the District Court. Except as may be provided by law and as
the District Court may see fit to impose, the maximum penalty for each violation or
offense, brought in such a manner, shall be three hundred dollars ($300)."

(b) The commission, or its agent at the direction of the commission, may file a criminal
complaint with the District Court if criminal intent has been demonstrated by those
persons who have violated the provisions of Chapter 235 of the Code of the Town of
Falmouth.

(4) Non-Criminal Dispositions pursuant to Chapter 1, section 1-2 of the Code of the
Town of Falmouth and M.G.L. Chapter 40, section 21D

(a) Chapter 1, section 1-2 of the Code of the Town of Falmouth provides that "Whoever
violates any provisions of the bylaws contained in the Code of the Town of Falmouth,
the violation of which is subject to a specific penalty, may be

penalized by a non criminal disposition as provided in MGL C40, s. 21D. The
noncriminal method of disposition may also be used for violations of any rule or
regulation of any municipal officer, board or department which is subject to a specific
penalty."


(b) The Conservation Agent may issue citations to those violating the provisions of
Chapter 235 of the Code of the Town of Falmouth pursuant to Chapter 1, section 1-2 of
the Code of the Town of Falmouth.

FWR 10.09 Fees

(1) General Fee Schedule:

(a) Permit fees shall be calculated by the Commission according to the schedule in
FWR 10.09. The fees shown below do not include an $14.50 advertising fee (which is
subject to change without notice by the Enterprise). Fees should be made payable to
the Town of Falmouth.

(b) The Commission reserves the discretion to waive all or a portion of the required fees
filed by a government agency. No fee shall be required of the Town of Falmouth, or any
political subdivision thereof.
(c) No Certificate of Compliance, Permit, Determination of Applicability, or Extension
Permit shall be issued under the Falmouth Wetlands Bylaw if any required fee pursuant
to FWR 10.09(1) through (3) has not been paid to the town.

d) Permit fees pursuant to FWR 10.09(2) are payable at the time of application and are
non-refundable.

(e) There is no fee for a Request for Determination filed by a person having no financial
connection with the property or project which is the subject of the request.

(2) Fee Schedule (plus the required advertising fee*): Fee/ advtg/ Total

(a). Request for

Determination of Applicability $35.00 14.50 $49.50

(b) Permit Application (for single lot and

house and projects thereon) $50.00 14.50 $64.50

(c) Permit Application (for commercial and

other construction) $60.00 14.50 $74.50

(d) Permit Application (for coastal projects-

including docks) $80.00 14.50 $94.50

(e) Extension permit $25.00 $25.00

(f) Consultant Fee See FWR 10.09(3)

(g) Recording Fee See FWR 10.05(12)

(h) Administrative Review(1) $25.00 $25.00

*subject to change reflecting current rates

(3) Consultant Fee

(a) The Commission, at its discretion, is authorized to require the posting of a
Consultant Fee by an applicant. This fee shall be used to hire an independent, expert
consultant to investigate the site for the proposed project and to examine the

10.09: continued
plans or other information submitted by the applicant to assist the Commission in
evaluating potential adverse impacts upon a resource area by the proposed project.
This fee will be required in those cases where the complexity of the activity, the difficulty
in determining the threat to the resource areas or the size of the request or project
involves and requires more information and analysis than can reasonably be supplied to
the Commission without independent technical professional assistance.

(b) The Commission may require the payment of the Consultant Fee at any time in the
deliberations prior to a final decision.

(c) The Consultant Fee may be required for expert opinions regarding, but not limited to,
wetland resource area surveys and delineations, analysis of resource area values,
wetland resources area reports, hydrological and drainage analysis, wildlife habitat
analysis, shellfish surveys, and environmental land use law.

(d) The commission is hereby authorized to charge for said consultant fee when the
Permit Application, proposes any of the following:

1. five hundred (500) square feet or greater alteration of a resource area specified in
FWR 10.02(a);

2. fifty (50) linear feet or greater of bank alteration to a coastal or inland waterway;

3. five hundred (500) square feet or greater alteration to land in a naturally vegetated
condition that constitutes a resource area buffer as specified in FWR 10.18;

4. five hundred (500) square feet or greater alteration of land under a water body;

5. discharge of any pollutants into or contributing to surface or groundwater of the
resource area;

6. construction of any stormwater control facility, or water control structure; or

7. construction of a dock.

(e) Determination of Amount of Consultant Fee for a Permit Application

1.The maximum consultant fee charged to reimburse the commission for reasonable
costs and expenses shall be according to the following schedule:

Project Cost Maximum Fee

UP TO $100,000 $500

$100,001 - $500,000 $2,500
$500,000 - $1,000,000 $5,000

$1,000,001 - $1,500,000 $7,500

$1,500,001 - $2,000,000 $10,000



2. Each additional project cost increment of $500,000 over $2,000,000 shall be charged
at an additional $2,500 maximum fee per increment;

3. The project cost means the estimated, entire cost of the project including, but not
limited to, building construction, site preparation, landscaping, and all site
improvements;

4. The consultant fee shall be paid on a pro rata basis for that portion of the project cost
applicable to those activities within resource areas protected by this bylaw;

5. The project shall not be segmented to avoid being subject to the consultant fee;

6. The applicant shall submit estimated project costs at the Commission's request, but
the lack of such estimated project costs shall not avoid the payment of the consultants
fee.

(f) The applicant shall pay the consultant fee to the Town to be put into a special
purpose account established by the Commission which may be drawn upon by the
Commission at one of its public meetings.

(g) The Commission shall return any unused portion of the consultant fee to the
applicant.

(h) Notwithstanding the provisions FWR 10.09(3)(a), no consultant fee shall be
assessed under this section for the construction of a single family dwelling, and
appurtenant facilities thereto, provided the only resource area impacted is Land Subject
to Coastal Storm Flowage and none of the proposed work is within land in a naturally
vegetated condition in a resource area buffer as specified in FWR 10.18.

(i) Notwithstanding the provisions of FWR 10.09(3)(a) through (e), the Commission may
require a the payment of a consultant fee to hire an expert for the purposes to verify a
resource area boundary determination submitted by an applicant.

1.The maximum consultant fee charged to reimburse the commission for reasonable
costs and expenses of hiring an expert for the purpose of verifying a resource area
boundary determination submitted by an applicant shall be according to the following
schedule:
10.09: continued

# Wetland flags Maximum Fee

UP TO 25 $100

25 - 50 $175

50 - 75 $250

75 - 100 $325

2. Each additional number of wetland flags increment of 25 over 100 shall be charged at
an additional $75 maximum fee per increment;

(j) Notwithstanding the provisions FWR 10.09(3)(e), when the Commission determines
an independent shellfish survey is required, the Consultant Fee shall be $1200.

(k) Notwithstanding the provisions FWR 10.09(3)(e), the Consultant Fee for a variance
request shall be $2000.

(l) Any applicant aggrieved by the imposition of, or the amount of, the consultant fee, or
any act related thereto, may appeal according to the provisions of the Massachusetts
General Laws.

FWR 10.10 Appeal Procedure

(1) Procedure.

(a) The following persons may appeal a decision under the bylaw:

1. Any applicant;

2. owner;

3. abutter;

4. any party in interest aggrieved; or

5. any person as provided by law.

(b) Appeals shall be made to the Superior Court of Barnstable County pursuant to
M.G.L. Chapter 249, section 4, or as otherwise provided by law.

(2) Mediation. Any person specified in FWR 10.10(1)(a) may, within ten (10) days of the
issuance of a decision by the Commission, request that the matter be settled through a
mediation process conducted by a professional environmental service. Any party may
refuse to participate in, or may withdraw from the mediation proceeding at any time, and
no settlement agreement shall be effective unless signed by all parties whose
cooperation is necessary to its implementation.

(a) Professional environmental service shall mean a person(s) who is qualified to
determine if the decision of the commission is consistent with the provisions of FWR
10.00.

FWR 10.11 Incorporation

Where applicable, the definitions, presumptions of significance, and performance
standards, set forth in the Massachusetts Wetlands Regulations, 310 CMR 10.00 et
seq., are hereby incorporated herein only when no definitions, presumptions of
significance or performance standards are given in these regulations.

FWR 10.12 Severability

Should any portion of these regulations be declared invalid by a decision of court, the
legislature or other body having jurisdiction, the remainder of these regulations shall
remain in full force and effect.

FWR 10.13 Variance

(1) Any individual who suffers a hardship as defined in these regulations may petition for
a variance from Chapter 235 and these regulations provided:

(a) The project would or has received a Denial Permit because of the literal enforcement
of Chapter 235 and the FWR

10.13: continued

relative to the project; and

(b) Mitigating measures are proposed are proposed by the applicant that will allow the
project to be conditioned so as to contribute to the protection of the resource areas
identified in Chapter 235; and

(c) The project will not create a nuisance; and

(d) Variance of the Bylaw or FWR is in the public's interest.

(2) Procedure.

(a) A request for a variance shall be made in writing and shall include, at a minimum,
the following information:
1. a description of alternatives explored that would allow the project to proceed in
compliance with FWR 10.16 through 10.60 and an explanation of why each is
unreasonable;

2. a description of the mitigating measures to be used to contribute to the protection of
the resource area values identified in Chapter 235 of the Code of Falmouth; and

3. evidence that an overriding public interest is associated with the project which
justifies waiver of FWR 10.16 through 10.60, or evidence that the decision regarding the
Permit Application so restricts the use of the land that it constitutes an unconstitutional
taking without compensation.

(b) The request for a variance shall be sent to the Commission by certified mail or hand
delivered and a copy thereof shall at the same time be sent by certified mail or hand
delivered to any other parties.

(c) Upon the receipt of a request for a variance, the commission shall within 21 days
select a hearing officer to conduct the hearing and to report to the commission their
findings relative to the request. Said hearing shall be held in a manner consistent with
the provisions of FWR 10.05(6). Notwithstanding the provisions of FWR 10.09(3)(d) and
(e), the applicant shall pay for the services of the hearing officer as provided by FWR
10.09(3)(k).

(d) Within 21 days of receiving the report of the hearing officer, the Commission shall
issue a decision as to whether to grant the variance request.

(e) The Commission may impose conditions, safeguards and limitations on both of time
and activity.

(3) If the rights authorized by a variance are not exercised within one year of the date of
grant of such variance such rights shall lapse provided, however, that the Commission
may extend the time for the exercise of such rights for a period not to exceed six
months provided further that the application for any extension be submitted prior to the
expiration of such rights.

Commentary

FWR 10.13, which provides that the Commission may waive the application of one or
more of the regulations on the basis of overriding public benefit is intended to be
employed only in rare and unusual cases.

The Commission shall consider the availability of Transfer Development Rights, as
provided by law, in determining if a permit decision constitutes an unconstitutional
taking.
FWR 10.14 Amendments

Amendments to these regulations shall be made in the manner set forth in Section 8 of
the Falmouth Wetlands Bylaw.

FWR 10.15 Effective Date

. (1) FWR 10.01 through 10.38, FWR 10.40 through 10.99, and FWR 2.00 shall take
effect on August 15, 1998 and shall apply to all Permit Applications and Requests for
Determinations of Applicability filed on or after that date and any subsequent
procedures related to such filings made on or after that date. FWR 10.01 through
10.38, FWR 10.40 through 10.99, and FWR 2.00 shall not apply to any Notice of Intent
filed prior to the effective date of FWR 10.00, or to any extensions of any Order of
Conditions the Notice of Intent for which was filed prior to said effective date.

(2) The effective date of FWR 10.39 is April 17, 1997. FWR 10.39 shall not apply to
any Notice of Intent filed prior to April 17, 1997, or to any extensions to an Order of
Conditions when the Notice of Intent upon which such Order was based

10.15: continued

was filed prior to April 17, 1997.

(3) All proceedings and actions commenced under Chapter 235 of the Code of
Falmouth prior to the effective date of FWR 10.00 shall remain in full force and effect
under the prior applicable regulations.

FWR 10.16 Specific Activities Regulated

Introduction - Under the Bylaw, activities in the following areas are subject to Conditions
by the Commission. The complexity of these activities warrants the specific
requirements set forth below.

(1) Docks and Piers (Coastal)(2)

(a) Introduction. The construction, use, and maintenance of docks and piers are likely to
have a significant or cumulative adverse effect the resource area values of storm
damage prevention, shellfish, fisheries, wildlife habitat, aesthetics, erosion and
sediment control, aquaculture, and recreation.(3) Construction, maintenance and use of
private docks can have adverse effects on resource areas and navigation for
recreational purposes. Further, docks destroyed by storm pose a threat to nearby

properties by increasing water borne debris.

Turbulence and prop dredging generated by boat traffic significantly increase turbidity
levels. High turbidity levels attenuate the sunlight necessary for photosynthetic
processes responsible for the primary productivity and oxygen regeneration of the
water. The suspended sediments settle on shellfish beds, smothering existing shellfish
and altering the quality of the sand bottom essential for spat (mollusk larvae) settlement.
Resuspension of bottom sediments causes redistribution of sediments, alteration in
sediment grain size distribution and causes changes in bottom topography relief,
elevation and grade, including creation of depressions in the bottom. Resuspension of
sediments into depressions creates deep pockets of sediment which may not be able to
physically support shellfish or which can become anoxic and therefore not support
shellfish. Resuspension of sediments during the period of shellfish larval settlement
hinders or prevents the effective settlement of shellfish larvae. Boat traffic generated
from docks will add to this disruption and will cause erosion of banks and marshes.

Construction of docks and subsequent boat activity causes resuspension of nutrient-
laden sediment particles which may cause a release of sediment-bound nutrients to the
water column resulting in a "bloom" of vegetation. release of nutrients to the water
column leads to eutrophication and anoxic bottom conditions. Anoxic sediments and
anoxic bottom conditions create adverse impacts on benthic resources, including
shellfish and fisheries.

While dock construction is typically the least environmentally destructive method of
crossing a marsh, it may adversely affect the physical characteristics and functional
value of a marsh. Marsh plants provide the major energy flow (detritus food chain)
between the autotrophic and heterotrophic levels in a marsh-estuarine system. Many
species of sport and commercial fish and shellfish are dependent upon this system.
Plants adapted to high ambient light intensity, such as marsh grasses, are ill-adapted to
the shaded conditions created by a dock. Shading may result in the loss of vegetative
biomass (decreased plant height, population density, and leaf thickness) or alteration of
species composition. Reductions in plant density result in the loss of sediment normally
trapped by roots and culms. Tidal washout of sediment could result in localized
depressions which, through evaporation of trapped water, concentrate salt. High
sediment salt levels effectively preclude recolonization by original vegetation. Localized
tidal washout may lead to further vegetative regression, erosion, and disruption of
natural communities in the area.

Propeller turbulence near or in areas or submerged aquatic vegetation, such as ell
grass, or salt marsh damages vegetation, thereby increasing the rate at which organic
detritus is produced. if this organic detritus does not completely decompose aerobically,
then anoxic bottom conditions will ensue, which adversely impact shellfish and fisheries.

Cumulative impacts of the construction, maintenance and use of docks threaten to
decrease the overall productivity of the marsh ecosystem, to reduce its ability to absorb
storm wave energy, and to reduce its contribution to ground water and surface water
quality.

10.16(1): continued
Docks and piers when placed in Land Containing Shellfish have an adverse impact on
the resource area value of aquaculture. The placement length and size of the dock and
the floats can interfere with the harvesting of quahogs and scallops.

Docks, depending on their length, can have an adverse impact on recreation by
interfering with recreational boating activities. Not properly designed, docks can
interfere with intertidal lateral access for recreational fishing and fowling Any proposal
that affects navigation is likely to have a significant or cumulative adverse effect on
recreation. Depending on their height, docks can create on adverse impact to the
aesthetics of the area. Excessive lighting on docks can cause temporary "night
blindness" in recreational boaters and have an adverse impact to the aesthetics of the
night sky.

(b) Submission Requirements for all Docks:(4)

1. a description of materials used, i.e., size of pilings, deck percent open area, spacing
between planks and flotation materials;

2. a description of the construction process;

3. an accurate, detailed drawing showing type of construction, size, means for mooring
if floating, exact location, depth of water within a fifty foot (50') radius of each side of
dock, mean high water line and edge of resource areas;

4. a note on the plan indicating the site for winter storage of floats and method of
hauling (if any);

5. The dock's effect on navigation;

6. A description of the shellfish resources;

7. location of all docks and moorings within 200 feet of the proposed dock and float;

8. water depths;

9. location of eel grass within fifty feet (50 ft.) of the proposed structure;

10. how compliance with FWR 10.16(1)(c)13. (lighting) will be achieved; and

11. a locus and title box which includes the street address.

(c) Design Specifications and Performance Standards:

1. Docks shall not exceed over one hundred feet (100 ft.) in length beyond mean high
tide, one hundred feet (100 ft.) in length beyond the landward edge of saltmarsh, or fifty
feet (50 ft.) beyond mean low water, or otherwise prohibit or unreasonably impede
legitimate passage along a beach or through navigation over the waters for recreational
or aquacultural purposes or aquacultural purposes;

2. To keep disturbance of the bottom minimal at all times during both construction and
use, the water depth at the end of the dock shall be a minimum of three (3) feet at the
time of mean low water.

3. The area of the terminal "L" or "T" shape in a fixed dock, or the float, or combination
thereof, shall not exceed 100 square feet;

4. The design and construction shall not interfere with recreational intertidal lateral
access;

5. Boats at the dock shall not be allowed to leak oil or other pollutants into water, nor
shall oil or fuel be stored on the dock or pier;

6. Motor boats shall not be run in gear while tied to the dock, since prop wash disturbs
shellfish beds, stirs up sediment and causes bank erosion;

7. Floating docks shall be fixed by piers;

8. Off-season storage of temporary/seasonal docks and floats shall be in upland areas;

9. The landward approach to a dock shall not harm vegetation on a coastal wetland,
freshwater wetland or coastal bank (A marsh shall be crossed by a raised walkway, and
coastal banks must be preserved by use of suitable stairs.);

10. The street address shall be clearly displayed on the seaward face of the dock, using
3" numbers of a contrasting color;

11. An area where the float(s), if any, will be stored shall be designated on the plan;

12. Over freshwater wetlands and salt marshes, the decking surface shall have a
minimum of 50% open area;

13. The maximum horizontal footcandle level as measured directly below each
complete lighting unit shall not exceed 0.2 foot-candle (Fc)

10.16(1): continued

(d) The performance standards of FWR 10.16(1)(c)5, 6, and 8 shall be included in all
Permits concerning docks as a continuing order, and shall be so designated on the
Certificate of Compliance. Failure to comply with these conditions shall be grounds for
the Commission to revoke the permit and order the removal of the dock.
(e) Notwithstanding the provisions of FWR 1.16(1)(c) and (d) and FWR 10.34(6) through
(8), no new dock or pier shall be permitted within an area specified in FWR 10.34(3)(a)
or (b). In areas likely to be a habitat for shellfish, the applicant may be required to
submit evidence of shellfish populations based on a shellfish survey conducted by a
shellfish biologist or the Shellfish Warden. This survey must be conducted according to
the criteria found in FWR 10.34(4).

(f) Notwithstanding the provisions of FWR 10.16(1)(c) through (d) and FWR 10.38, no
new dock or pier shall be permitted within a v-zone. Enlargement of a dock or pier shall
only be permitted in a V-zone for those docks and piers that are used in the service of
the public or for the purposes of scientific research.

(g) Notwithstanding the provisions of FWR 10.16(1)(a) through (c) and FWR 10.25(5)
through (12), no new, replacement, or substantial repair of an existing dock or pier shall
be permitted within an fifty feet (50 ft.) of an area of eel grass (Zostera marina).

(2) Projects to Control Coastal Erosion.

(a) Introduction. The function of projects to control coastal erosion through the use of
coastal engineering structures is likely to have a significant or cumulative adverse effect
on storm damage prevention, flood control, shellfish, fisheries, wildlife habitat,
aesthetics, erosion and sediment control, and recreation.

These projects are typically proposed on beaches, dunes, barrier beaches, coastal
banks, land subject to coastal storm flowage, and land under the ocean. Beaches,
dunes, barrier beaches, and coastal banks are made up of unconsolidated sediment
materials which permit a change in form due to wave action. As a result, they dissipate
wave energy and are likely to be significant to storm damage prevention and flood
control. They may supply essential sediments to "downdraft" and

"offshore" areas. The public value of these resource areas lies in their dynamic nature
and their ability to change shape in response to high energy situations such as storms.
Interruptions of the natural processes of wave energy dissipation and sediment supply
reduce the public value of these processes. Coastal sediment transport is a natural
process that is critical to the resource area values listed above.

Groins are used to build a protective beach by trapping sediment along a portion of
shoreline where little beach exists. They are also used to retard erosion of existing or
restored beaches. Historically groins have been considered necessary when certain
updraft conditions have cut off the natural supply of sand feeding downdraft areas. For
example, when natural erosion of bluffs or cliffs is halted, sediment starvation occurs in
downdraft areas. Downdraft beaches start to disappear because their source of
sediment is curtailed. Groins have traditionally been built in such cases to trap what little
moving sediment remained. The usual result has been that while sediment was trapped
immediately updraft of the groin, almost none was left to replenish downdraft areas.
This resulted in the creation of groin fields," where each property owner installed
separate groins in an attempt to catch whatever sand was available. Since groins do not
address the initial cause of the decrease in littoral drift, i.e., a blockage of sediment
transport form the source, groins have often produced unsatisfactory results.

Jetties are designed to protect inlets. On the flood-tide materials are brought into the
inlet. At ebb-tide, an outer bar is formed. Neither occurrence is desirable when
navigation is the primary need in the area. Thus, a jetty is constructed on the updraft
side of the inlet to completely trap the sand before it reaches the inlet. To be successful,
the jetty must be of sufficient height to trap all of the sand movement and long enough
to extend from the upper reaches of waves on a beach seaward to the terminus of the
zone in which movement of littoral drift takes place. Because of this impoundment of the
sand at the updraft jetty, the sand supply to downdraft areas is terminated, resulting in
erosion of the downdraft beach.

Where sediment supply is reduced or interrupted, mitigation may include artificial
nourishment with downdraft areas. Dredge material from channel dredging, if proven to
be clean and made up of similar mineral material, might be used to nourish downdraft
areas adjacent to the dredging activity. Seawalls may require mitigation by a regular
nourishment program.

10.16(2): continued

(b) Submittal requirements.(5) For any proposed coastal engineering structure that may
affect sediment supply, a Permit Application shall include:

1. a quantitative description of the natural processes on site, including volume of
sediment lost, size of transport cell, physical characteristics of sediment, and chemical
contaminants;

2. an appropriate response to minimize the impact on downdraft areas;

3. a specific description of the project including construction details, access to the site,
potential damage due to construction and continuing measures to mitigate downdraft
damage; and

4. a beach profile and a nourishment plan designed to maintain the original beach
profile.

(c) Projects proposed to control coastal erosion shall meet the performance standards
of FWR 10.21 through 10.40.

(3) Stormwater Management

(a) The design of the system for stormwater management for each project shall
accomplish the following:
1. Reproduce, as nearly as possible the hydrological conditions in the ground and
surface waters prior to the development, as specified in FWR 10.16(3)(b); and

2. reduce stormwater pollution to the maximum extent possible using Best Management
Practices (BMP's), as specified in FWR 10.16(3)(c);

3. Have an acceptable future maintenance plan covering method and execution;

4. Have a beneficial effect on the resource area values of the Bylaw;

5. be appropriate for the site, given physical constraints; and

6. provide a sufficient level of environmental protection during the construction phase.

(b) The design and construction of each project shall be done in a manner such that
post-construction runoff will not exacerbate or create flooding conditions, or alter
surface water flow paths such as to impact adjacent properties to the site during the 2,
10, 25, and 100-year 24 hour storm events. No increase will be allowed in the peak rate
of runoff for any of

the above design storms. The total volume of post-development runoff shall not exceed
the pre-development runoff volume for the ten (10) year, twenty-four (24) hour design
storm.

(c) The "first flush" of the stormwater shall be treated prior to discharge. The treatment
system(s) shall be designed to accommodate the first flush from the entire project area.
Treatment shall be provided to achieve 80% removal of total suspended solids from the
first flush. In addition, any development in the watersheds of a coastal pond or other
nitrogen sensitive embayments shall incorporate physical treatment processes to
remove nitrogen at an efficiency rate of 30% or greater. Development in the watershed
of a freshwater pond shall incorporate phosphorous removal at a design rate of 50% or
greater.

(d) The treatment volume (Vt) for the "first flush" shall be determined by the following
formula: Vt =(1.25/12 inches)(Rv)(Site Area in square feet), where Rv = 0.05 + 0.009(I),
and I = the % impervious area. Impervious area is defined as any manmade cover that
is not vegetated. In residential areas, the % impervious is obtained from the TR-55 table
"Runoff Curve Numbers for Urban Areas, Residential District by Average Lot Size."

(e) Compliance with FWR 10.16(3) shall be consistent with FWR 2.00 Stormwater
Management.

FWR 10.17 Wildlife Habitat Evaluations

(1) Measuring Adverse Effects on Wildlife Habitat
(a) To the extent that a proposed project will remove, dredge, fill, build upon, degrade
or otherwise alter other wildlife habitat beyond the thresholds permitted under FWR
10.36(7)(e), 10.37(7)(e), 10.54(5)(e), 10.56(4)(a)4. and 10.57(4)(a)3., such alterations
may be permitted only if they will have no adverse effects on wildlife habitat. Adverse
effects on wildlife habitat mean the alteration of any habitat characteristic listed in FWR
10.17(2), insofar as such alteration will, following two growing seasons of project
completion and thereafter (or, if a project would eliminate trees, upon the maturity of
replanted saplings) substantially reduce its capacity to provide the important wildlife
habitat functions listed in FWR 10.17(2). Such performance standard, however, shall
not apply to the habitat of rare species, which are covered by the performance
standards established under FWR 10.18 and 10.21 through 10.60.

(b) An evaluation by the applicant of whether a proposed project will have an adverse
effect on wildlife habitat beyond

10.17: continued

permissible thresholds shall be performed by an individual with at least a masters
degree in wildlife biology or ecological science from an accredited college or university,
or other competent professional with at least two years experience in wildlife habitat
evaluation.

(c) Any wildlife habitat management practices conducted by the Division of Fisheries
and Wildlife, and any wildlife management practices of any individual or organization if
reviewed and approved in writing by said Division, or by the Cape Cod Commission
shall be presumed to have no adverse effect on wildlife habitat. Such presumption is
rebuttable, and may be overcome by a clear showing to the contrary.

(2) Wildlife Habitat Characteristics of Resource Areas:

(a) Inland Banks. The topography, soil structure, and plant community composition and
structure of banks can provide the following important wildlife habitat functions:

1. Food, shelter and migratory and breeding areas for wildlife

2. Overwintering areas for mammals and reptiles.

(b) Land Under Waterbodies. The plant community and soil composition and structure,
hydrologic regime, topography and water quality of land under water bodies can provide
the following important wildlife habitat functions:

1. Food, shelter and breeding areas for wildlife;

2. Overwintering areas for mammals, reptiles and amphibians.
(c) Lower Floodplains: Land Subject to Flooding and Land Subject to Coastal Storm
Flowage. The hydrologic regime, plant community and soil composition and structure,
topography, and proximity to water bodies of lower floodplains can provide the following
important wildlife habitat functions:

1. Food, shelter, migratory and overwintering areas for wildlife;

2. Breeding areas for birds, mammals and reptiles.

(d) Banks of Estuaries. The hydrologic regime, plant community and soil composition
and structure, topography, and proximity to water bodies of banks of estuaries can
provide the following important wildlife habitat functions:

1. Food, shelter, and migratory areas for wildlife;

2. Breeding areas for birds, mammals and reptiles.

(f) Banks of Salt Ponds. The hydrologic regime, plant community and soil composition
and structure, topography, and

proximity to water bodies of banks of salt ponds can provide the following important
wildlife habitat functions:

1. Food, shelter, and migratory areas for wildlife;

2. Breeding areas for birds.

(3) Restoration and Replication of Altered Habitat. Alterations of wildlife habitat
characteristics beyond permissible thresholds may be restored onsite or replicated
offsite provided it is permitted by the applicable section of FWR 10.18 and 10.21
through 10.60, and performed in accordance with the following general conditions, and
any additional conditions the Commission deems necessary to insure that the standard
in FWR 10.17(1)(a) is satisfied:

(a) the surface of the replacement area to be created ("the replacement area") shall be
equal to that of the area that will be lost ("the lost area");

(b) the elevation of groundwater relative to the surface of the replacement area shall
be approximately equal to that of the lost area;

(c) the replacement area shall be located within the same general area as the lost
area. In the case of banks and land under water, the replacement area shall be located
on the same water body or waterway if the latter has not been rechanneled or otherwise
relocated. In the case of bordering land subject to flooding, the replacement area shall
be located approximately the same distance from the water body or waterway as the
lost area. In the case of vernal pool habitat, the replacement area shall be located in
close proximity to the lost area;

(d) interspersion and diversity of vegetation, water and other wildlife habitat
characteristics of the replacement area, as well as its location relative to neighboring
wildlife habitats, shall be similar to that of the lost areas, insofar as necessary to
maintain the wildlife habitat functions of the lost area;

(e) the project shall not alter five or more acres of Land Subject to Flooding, Land
Under Water, and/or Land Subject to Coastal Storm Flowage found to be significant to
the protection of wildlife habitat, 500 feet or more of Bank found to be significant to the
protection of wildlife habitat (in the case of a bank of a stream or river, this shall be
measured on each side of said stream or river), 250 feet or more of Bank of an Estuary
found to be significant to the protection of wildlife habitat, or 100 feet or more of Bank of
a Salt Pond found to be significant to the protection of wildlife habitat .

(f) if the replacement area is located in an area subject to Chapter 235 of the Code of
Falmouth, there shall be no adverse

10.17: continued

effect on the existing important wildlife habitat functions of said area as measured by
the standards of FWR 10.17;

(g) the "thresholds" established in FWR 10.36(7)(e), 10.37(7)(e), 10.54(5)(e),
10.56(4)(a)4. and 10.57(4)(a)3. (below which alterations of resource areas are not
deemed to impair capacity to provide important wildlife habitat functions) shall not apply
to any replacement area; and

(h) the replacement area shall be provided in a manner which is consistent with all other
General Performance Standards for each resource area in FWR 10.18 and 10.21
through 10.60.

FWR 10.18 Resource Area Buffer(6)(7)

(1) Introduction. Resource area buffers (buffers) are likely to be significant to the
following resource area values: protection of public and private water supply,
groundwater, flood control, erosion and sedimentation control, storm damage
prevention, water pollution control, fisheries, shellfish, wildlife habitat, agriculture,
aesthetics, recreation, and aquaculture.

The buffer to each resource area is presumed to be significant to the resource area
values of that resource area.

Adverse impacts to resource area buffers (buffers) are likely to have a cumulative effect
on the following resource area values: protection of public and private water supply,
groundwater, flood control, erosion and sedimentation control, storm damage
prevention, water pollution control, fisheries, shellfish, wildlife habitat, agriculture,
aesthetics, recreation, and aquaculture.

A buffer of land in a naturally vegetated condition can act much like wetlands in removal
of nitrate and phosphorous from

entering receiving waters by serving as sinks, filters and transformers of suspended and
dissolved nutrients. A buffer can remove 50-100% of sediments through filtration via
organic litter layer. Absorption of ground water via mature trees can take up 14 times
more water than an equivalent area of grass. Bank and stream channel stability is
dependent on the anchoring ability of root systems and slowing of runoff velocity and
flow diffusion provided by the buffer. Vegetation in the buffer can act to moderate water
column temperatures and levels of dissolved oxygen.



The higher the water temperature, the more deleterious the effects of phosphorous
release from sediments. The more phosphorous, the lower oxygen levels and
inducement of algae blooms. The buffer provides corridors and connector and dispersal
routes for wildlife, breeding, cover and migratory habitat for wildlife, perching and
basking strata for herptiles and avifauna.

Buffers reduce the adverse impacts of adjacent land uses to wetlands. Buffers also
provide important habitat for wildlife which utilize wetlands and buffer areas for essential
life needs. Buffers reduce wetland impacts by moderating impacts of stormwater runoff
including stabilizing soil to prevent erosion; filtering suspended solids, nutrients, and
harmful or toxic substances; and moderating water level fluctuations. They reduce the
adverse impacts of human disturbance on wetland habitat including blocking noise and
glare; reducing sedimentation and nutrient input; reducing direct human disturbance
from dumped debris, cut vegetation, and trampling; and providing visual separation.
They also provide essential habitat for wetland-associated species for use in feeding;
roosting; breeding and rearing of young; and cover for safety, mobility and thermal
protection.

Buffer effectiveness increases with buffer width. As buffer width increases, the
effectiveness of removing sediments, nutrients, bacteria, and other pollutants from
surface water runoff increases. However, for incrementally greater sediment removal
efficiency (e.g., from 90 to 95%), disproportionately larger buffer width increases are
required.

As buffer width increases, direct human impacts, such as dumped debris, cut or burned
vegetation, fill areas, and trampled vegetation, will decrease.

10.18: continued
As buffer width increases, the numbers and types of wetland-dependent and wetland-
related wildlife that can depend on the wetland and buffer for essential life needs
increases.

Wetlands with important functions and values or wetlands which are sensitive to
disturbance will require greater buffers to reduce the risk of disturbance. Wetland
functions, values, and sensitivity are attributes that will influence the necessary level of
protection for a wetlands. Those systems which are extremely sensitive or have
important functions will require larger buffers to protect them from disturbances, which
may be of lesser threat to a different site. Where wetland systems are rare or
irreplaceable (e.g., high quality estuarine wetlands, mature swamps, and bogs) larger
buffer widths will ensure a lower risk of disturbance.

The uplands immediately adjacent to the wetland vary in their ability to reduce adverse
effects of development, most importantly in relationship to slope and vegetative cover.
Buffers with dense vegetative cover on slopes less than 15% are most effective for
water quality functions. Dense shrub or forested vegetation with steep slopes provide
the greatest protection from direct human disturbance. Appropriate vegetation for
wildlife habitat depends on wildlife species present in the wetland and buffer.
Effectiveness is also influenced by ownership of the buffer.

Land uses associated with significant construction and post-construction impacts need
greater buffers. Construction impacts include erosion and sedimentation, debris
disposal, vegetation removal and noise. Post-construction impacts are variable
depending on the land use, but residential land use, in particular, can have significant
impacts. Residential land use is associated with yard maintenance debris, domestic
animal predation, removal of vegetation and trampling.

Appropriate buffer widths vary according to the desired buffer function(s). Temperature
moderation, for example, will require smaller buffer widths than some wildlife habitat or
water quality functions. Buffer widths for wildlife may be generalized, but specific habitat
needs of wildlife species depend on individual habitat requirements.

Buffers of less than 50 feet in width are generally ineffective in protecting wetlands.
Buffers larger than 50 feet are necessary to protect wetlands from an influx of sediment
and nutrients, to protect wetlands from direct human disturbance, to protect

sensitive wildlife species from adverse impacts, and to protect wetlands from the
adverse effects of changes in quantity of water entering the wetlands.

To retain wetland-dependent wildlife in important wildlife areas, buffers need to retain
plant structure for the maximum distance allowed by the Bylaw. This is especially the
case where open water is a component of the wetland or where the wetland has heavy
use by migratory birds or provides feeding for heron. The size needed would depend
upon disturbance from adjacent land use and resources involved. Priority species may
need even larger buffers to prevent their loss due to disturbance or isolation of
subpopulations.

A minimum distance of 50 feet is necessary to protect a wetland from direct human
disturbance in the form of human encroachment (e.g., trampling, debris). The
appropriate width to prevent direct human disturbance depends on the type of
vegetation, the slope, and the adjacent land use. Some wetlands are more sensitive to
direct disturbance than others.

(2) Definition, Critical Characteristics and Boundary

(a) The resource area buffer is an area adjacent to a resource area specified in FWR
10.02(1)(a) thorough (e), and is "lands within 100 feet of any of the aforesaid resource
areas" as specified in Section 2: Jurisdiction of the Falmouth Wetlands Bylaw.

(b) Created (referring to parcels created prior to the effective date of this section) as
used in section 10.18(7) and (8)) means the filing of an approved plan, or the filing of a
deed describing said parcel, with the Barnstable County Registry of Deeds. The date
the parcel was created is the date of filing with the Barnstable County Registry of
Deeds.

(c) Appropriate buffer widths are based on four variables:

1. existing resource area functions, values and sensitivity to disturbance;

2. buffer characteristics;

3. land use impacts; and

4. desired buffer functions.

(d) The boundary of the buffer is the distance measure horizontally as specified in FWR
10.18(8).

10.18: continued

(3) Presumptions.

(a) Where a project involves removing, building upon, degrading, or otherwise altering
of a resource area buffer adjacent

to a resource area specified in FWR 10.02(1)(a) through (e), the Commission shall
presume that such area is significant to, or will have a cumulative effect upon, the
resource area values specified in FWR 10.18(1). This presumption is rebuttable and
may be overcome upon a clear showing that said land does not play a role in the
protection of said resource area values. In the event that the presumption is deemed to
have been overcome, the Commission shall make a written determination to this effect,
setting forth the grounds.

(b) Where a project:

1. involves removing, building upon, degrading, or otherwise altering of lands within 100
feet of any of the aforesaid resource areas" as specified in Section 2: Jurisdiction of the
Falmouth Wetlands Bylaw, and said resource area is specified in FWR 10.02(1)(a)
through (e); and

2. the resource area buffer as specified in FWR 10.18(8) is not present,

the Commission shall presume that there is a significant or cumulative effect upon the
resource area values specified in FWR 10.18(1). This presumption is rebuttable and
may be overcome upon a clear showing that there is no significant or cumulative effect
or cumulative effect the protection of said resource area values. In the event that the
presumption is deemed to have been overcome, the Commission shall make a written
determination to this effect, setting forth the grounds.

(4) General Performance Standards.

A resource area buffer shall be required for all activities adjacent to resource areas
specified in FWR 10.02(1)(a) through (e). Any resource area created, restored or
enhanced as compensation for approved resource area alterations shall also include
the buffer required for the corresponding resource area(s). All buffers shall be measured
from the resource area boundary as surveyed in the field. The width of the resource
area buffer shall be determined according to FWR 10.18(5) through (8). The width of the
buffer as determined by FWR 10.18(5) through (8) shall be presumed to protect the
resource area values of the bylaw. Except as otherwise specified in FWR 10.18(9),
resource area buffers shall be retained in a naturally vegetated condition. Where buffer
disturbance has occurred during construction, revegetation with native vegetation may
be required.

(5) Repair or Replacement of a Legally Permitted Facility

The commission shall allow the repair or replacement of a legally permitted facility,
structure, or use existing as of August 15, 1988, but not redevelopment activity pursuant
to FWR 10.18(6), where no practicable alternative exists on the lot(8) that would allow a
resource area buffer of the width described in FWR 10.18(9), provided that the
performance standards of FWR 10.18(8)(a) and (b) are met to the maximum extent
feasible.

(6) Redevelopment Within Previously Developed Resource Area Buffer; Restoration
and Mitigation. The Commission may allow work to redevelop a previously developed
resource area buffer, that does not meet the buffer requirements of FWR 10.18(8)(a)
and(b), provided the proposed work improves existing conditions.
(a) Redevelopment means

1. replacement, rehabilitation or expansion of existing structures and improvement of
existing roads.

2. the construction of docks and piers; and

3. the armoring of a coastal bank.

A previously developed resource area buffer contains areas degraded prior to August
15, 1998 by impervious surfaces from existing structures or pavement, absence of
topsoil, junkyards, abandoned dumping grounds, or lack of a naturally vegetated
condition.

(b) Work to redevelop previously developed resource area buffers shall conform to the
following criteria:

1. At a minimum, proposed work shall result in an improvement over existing conditions
of the capacity of the resource area buffer area to protect the resource area values
identified in Chapter 235 of the Code of Falmouth. When a lot is previously developed
but no portion of the resource area buffer is degraded, the requirements of FWR
10.18(8) shall be met.

10.18: continued

2. Stormwater management is provided according to FWR 10.16(3).

3. Proposed work, including expansion of existing structures, shall be located outside
the resource area buffer or toward the resource area buffer area boundary and away
from the resource area, except in accordance with FWR 10.18(6)(b)5.

4. The area of proposed work shall not exceed the amount of degraded area, except in
accordance with FWR 10.18(6)(b)5.

5. When an applicant proposes restoration on-site of degraded resource area buffer,
alteration may be allowed notwithstanding the criteria of FWR 10.18(6) 3. and 4. at a
ratio in square feet of at least 1:1 of restored area to area of alteration not conforming to
the criteria. Areas immediately along the resource area shall be selected for restoration.
Alteration not conforming to the criteria shall begin at the resource area boundary.
Restoration shall include:

a. removal of all debris, but retaining any trees or other mature vegetation;

b. grading to a topography which reduces runoff and increases infiltration;
c. coverage by topsoil at a depth consistent with natural conditions at the site; and

d. seeding and planting with an erosion control seed mixture, followed by plantings of
herbaceous and woody species appropriate to the site;

(7) Activity on a Parcel Created Prior to August 15, 1998, other than Repair or
Replacement of a Legally Permitted Facility or Redevelopment Activity The commission
may issue a permit for activity on a parcel that existed as of August 15, 1998, where no
practicable alternative exists on the parcel(9) that would allow a resource area buffer
the width required in FWR 10.18(8)(a) and (b) for new construction due to site
constraints provided a resource area buffer is maintained as close as practicable to
those required for new activity in FWR 10.18(8)(a) and (b) and in no case is less than
twenty -five (25) feet.

(8) New Activity on a Parcel Created on or after August 15, 1998

For new activity on a parcel created on or after August 15, 1998, the resource area
buffer distance shall be:

(a) 75-100 feet for:

1. Critical wildlife or plant habitat;

2. Freshwater wetlands bordering a water body within the Zone 2 of a public water
supply; and

a. The Zone 2 shall be presumed to be ½ mile if unmapped.

b. The presumed Zone 2 extent can be overcome by credible evidence from a
competent and credible source based upon site specific evidence submitted to the
commission.

3. A Fish Run;

4. An eroding Coastal Bank located in a velocity zone(10);

5. Land Under Waterbodies;

6. Land Under the Ocean;

7. Salt Marsh;

8. Land Under a Salt Pond;

9. Banks of Salt Ponds, Estuaries, and ponds, lakes, and streams which flow throughout
the year [Bank (Inland)];
(b) 50-100 feet for:

1. Land Subject to Tidal Action;

2. Freshwater wetlands not listed in FWR 10.18(4)(a);

3. Banks of Intermittent streams; and

4. An eroding Coastal Bank not in a v-zone(11).

10.18: continued

(9) Activities Proposed in a Resource Area Buffer

The Resource Area Buffer should be left intact in a naturally vegetated condition.
However there are some activities that may

be allowed by the Commission that are not likely to have a significant or cumulative
effect on the resource area values of the Bylaw, provided the other provisions of FWR
10.00 are met. These activities are:

(a) Fencing, provided it will not constitute a barrier to wildlife movement;

(b) Vista pruning;

(c) Plantings of native species of trees, shrubs, or groundcover, but excluding turf
lawns;

(d) The conversion of impervious to vegetated surfaces, provided erosion and
sedimentation controls are implemented during construction; and

(e) Activities that are temporary in nature, have negligible impacts, and are necessary
for planning and design purposes (e.g., installation of monitoring wells, exploratory
borings, sediment sampling and surveying).

(f) pervious trails of a width 4 feet or less;

(g) nonpermanent wildlife watching blinds; or

(h) short term scientific or educational activities.



FWR 10.19 Rare Species
(1) Introduction.

The protection of rare species is significant to the protection of fisheries and wildlife
habitat. Rare species can be animals or plants, and are not necessarily dependent upon
coastal wetlands or freshwater wetland during their life cycle. Only a small portion of the
areas subject to protection under Chapter 235 of the Code of Falmouth have rare
species present.

(2) Definition and Boundary:

(a) Rare species means those species officially listed as endangered, threatened, of
special concern, or on the "watch list" by the Massachusetts Division of Fisheries and
Wildlife under 321 CMR 8.00, regardless of their preference for specific habitat.

(b) The habitat site of rare species is determined by:

1. sightings on file with the Natural Heritage Program;

2. data on file with the Commission that was available prior to the filing of the Permit
Application; or

3. evidence of the presence of such species presented at a public hearing for the permit
application; together with documentation of the habitat needs and species range.

(3) Presumption.

Any project proposed in a habitat site of rare species shall be presumed to have an
adverse effect on wildlife habitat. This presumption is rebuttable and may be overcome
upon a clear showing that such habitat site is does not play a role in wildlife habitat. In
the event that the presumption is deemed to have been overcome, the Commission
shall make a written determination to this effect, setting forth the grounds.

(4) General Performance Standards.

No project shall be permitted which will have any adverse effect on habitat sites of rare
species.

(NON TEXT PAGE)

1. This fee may be applied to the fee for a Request for Determination or Permit
Application should one be required.

2. For regulations regarding docks and piers in inland areas see FWR 10.53(2)(e).

3. See FWR 10.39 for additional regulations regarding docks and piers in the Black
Beach/Great Sippewisset Marsh District of Critical Planning Concern.
4. Pursuant to FWR 10.02(2), a Permit is required for any new dock, fixed or floating,
permanent or seasonal. A Permit is also required for any change or repair which alters
any dimension, shape or function of an existing dock. Minor repairs involving work
entirely above mean high water may be permitted by Administrative Review or through
the filing of a Request for Determination of Applicability.

5. These requirements are in addition to those specified in FWR 10.99.

6. Additional regulations regarding resource area buffers in the Black Beach/Great
Sippewisset Marsh District of Critical Planning Concern are found in FWR 10.39

7. Regulations for Vernal Pool Habitat are found in FWR 10.58.

8. The repair or replacement of a legally permitted facility must "remove fill dredge,
degrade, or otherwise alter an area subject to protection under the bylaw", for the
Commission to exercise review pursuant to FWR 10.00. Proposed activities that meet
the criteria for the issuance of Administrative Review or a negative Determination of
Applicability are not subject to FWR 10.18.

9. The repair or replacement of a legally permitted facility must "remove, fill, dredge,
degrade, or otherwise alter an area subject to protection under the bylaw", for the
Commission to exercise review pursuant to FWR 10.00. Proposed activities that meet
the criteria for the issuance of Administrative review or a negative Determination of
Applicability are not subject to FWR 10.18.

10. Additional setbacks from the top of a Coastal Bank are found in FWR 10.30.

11. Additional setbacks from the top of the Coastal Bank are found in FWR 10.30.

Part II Coastal

FWR 10.21:        Introduction

FWR 10.21 through 10.40 apply to all work subject to Chapter 235 of the Code of
Falmouth, which will remove, dredge, fill, build upon, degrade or otherwise alter any
coastal beach, coastal dune, tidal flat, coastal wetland, land subject to coastal storm
flowage, coastal bank, bank of an estuary, bank of a salt pond, land subject to tidal
action, or land under an estuary, under a salt pond, under the ocean or under certain
streams, ponds, rivers, lakes or creeks within the coastal zone that are
anadromous/catadromous fish runs or the lands and waters within the Black
Beach/Great Sappiest Marsh District of Critical Planning Concern or the lands and
waters within the Waquoit Bay Area of Critical Environmental Concern. This Part is in
addition to and does not change the provisions set forth in FWR 10.01 through FWR
10.19. FWR 10.21 through 10.40 are intended to ensure that development along the
coastline is located, designed, built and maintained in a manner that protects the public
resource area values in the coastal resources listed in Chapter 235 of the Code of
Falmouth. The proponent of the work must submit sufficient information to enable the
Commission to determine whether the proposed work will comply with FWR 10.21
through 10.40. Any proposed work may be subject to the requirements of sections
concerning coastal beaches, coastal dunes, land subject to coastal storm flowage, and
land containing shellfish. Thus, in order to determine which provisions apply to a
proposed project, FWR 10.00 must be read in its entirety. Each coastal resource section
begins with an introduction. The Introduction identifies the resource area values of
Chapter 235 of the Code of Falmouth to which that resource is or is likely to be
significant and describes the characteristics or factors of the resource which are critical
to the protection of the resource area values to which the resource is significant. FWR
10.21 through 10.40 are in the form of performance standards and shall be interpreted
to protect those characteristics and resources to the maximum extent permissible under
Chapter 235 of the Code of Falmouth.

The performance standards are intended to identify the level of protection the
Commission must impose in order to contribute to the protection of the resource area
vales of Chapter 235 of the Code of Falmouth. It is the responsibility of the Commission
to order specific measures and requirements for each proposed project which will
ensure that the project is designed and carried out consistent with the required level of
protection. The Commission must then issue a Permit which is understandable and
enforceable.

FWR 10.22: Purpose

FWR 10.21 through 10.40 are promulgated pursuant to Chapter 235 of the Code of
Falmouth and are intended to implement it. They are further intended to establish
criteria and standards for the uniform and coordinated administration of the provisions of
Chapter 235 of the Code of Falmouth.

FWR 10.23: Additional Definitions for FWR 10.21 through 10.40

The definitions contained in FWR 10.23 apply to and are valid for FWR 10.21 through
10.40. The following definitions are for terms used throughout FWR 10.21 through
10.40. Other terms that are used only in specific sections of FWR 10.21 through 10.40
are defined in those sections.

Coastal engineering structure means, but is not limited to, any breakwater, bulkhead,
groin, jetty, revetment, seawall, weir, riprap gabions, marine mattress, sandbags, or any
other structure that is designed to alter wave, tidal or sediment transport processes in
order to protect inland or upland structures from the effects of such processes.

DMF means the Division of Marine Fisheries.

Grain Size means a measure of the size of a material or rock particle that makes up
sediment.
Improvement Dredging means any dredging under a license in an area which has not
previously been dredged or which extends the original dredged width, depth, length or
otherwise alters the original boundaries of a previously dredged area.

10.23: continued

Littoral processes means the movement of sediment, including gravel, sand or cobbles,
along the coast caused by waves or

currents.

Maintenance Dredging means dredging under a license in any previously dredged area
which does not extend the originally-dredged depth, width, or length but does not mean
improvement dredging or backfilling.

Marine Fisheries means any animal life inhabiting the ocean or its adjacent tidal waters
or the land thereunder that is utilized by man in a recreational and/or commercial
manner or that is part of the food chain for such animal life.

Mean High Water Line means the line where the arithmetic mean of the high water
heights observed over a specific 19-year metonic cycle (the National Tidal Datum
Epoch) meets the shore and shall be determined using hydrographic survey data of the
National Ocean Survey of the U.S. Department of Commerce.

Mean Low Water Line means the line where the arithmetic mean of the low water
heights observed over a specific 19-year metonic cycle (the National Tidal Datum
Epoch) meets the shore and shall be determined using hydrographic survey data of the
National Ocean Survey of the U.S. Department of Commerce.

Productivity means the rate of biomass production over a period of time.

Turbidity means the amount of particulate matter suspended in water.

Water circulation means the pattern of water movement in coastal waters.

FWR 10.24: General Provisions

(1) If the Commission determines that a resource area is significant to an resource
area value of Chapter 235 of the Code of Falmouth for which no presumption is stated
in the Introduction to the applicable section, the Conservation Commission shall impose
such conditions as are necessary to contribute to the protection of such resource area
value.

(2) When the Commission determines that a project in one resource area would
adversely affect another resource area, the Commission shall impose such conditions
as will protect the resource area value to which each resource are significant to the
same degree as required in FWR 10.00 concerning each resource area.

(3) A determination which finds that a resource area is not significant to an resource
area value to which it is presumed in FWR 10.21 through 10.40 to be significant, or is
significant to a resource area value to which it is presumed to be not significant, shall be
made on Form F.

(4) (a) FWR 10.21 through 10.40 do not change the requirement of any other
Massachusetts statute or Falmouth Bylaw. A proposed project must comply with all
applicable requirements of other federal, state, Barnstable County Ordinances, and
Town of Falmouth bylaws, in addition to meeting the requirements of FWR 10.00.
Examples of such laws which may be applicable are the Coastal Restrictions Act
(M.G.L. c. 130, § 105), the Ocean Sanctuaries Act (M.G.L. c. 132A, §§ 13 through 16
and 18), the Mineral Resources Act (M.G.L. c. 21, §§ 54 through 58), the
Massachusetts Clean Water Act (M.G.L. c. 21, §§ 26 through 53), the Waterways laws
(M.G.L. c. 91), the Massachusetts Environmental Policy Act (M.G.L. c. 30, §§ 61
through 62H), the act establishing the Cape Cod Commission, the Wetlands Protection
Act (M.G.L. c. 131 §40) and the Scenic Rivers Act (M.G.L. c. 21, § 2. 17B).

(b) If an NPDES permit for any new point-source discharge has or will be obtained prior
to the commencement of the discharge, the effluent limitations established in such
permit shall be deemed to satisfy the water quality standards established in any section
of FWR 10.21 through 10.40 relative to the effects of the new point-source discharge on
water quality. Such effluent limitations shall be incorporated or shall be deemed to be
incorporated into the Permit.

(5) FWR 10.24 is not intended to prohibit the Commission from imposing such
additional conditions as are necessary to contribute to the resource area values of
Chapter 235 of the Town of Falmouth where the indicated minimizing measures are

10.24: continued

not sufficient.

(6) Notwithstanding the provisions of FWR 10.25 through 10.38, the Commission may
issue a Permit and impose such conditions as will contribute to the resource area
values identified in Chapter 235 of the Code of Falmouth permitting the following limited
project (although no such project may be permitted which will have any adverse effect
on habitat sites of rare species):

(a) Maintenance and improvement of existing public roadways, sidewalks and bicycle
facilities but limited to widening less than a single lane, adding shoulders, correcting
substandard intersections, and improving drainage systems.
(b) The routine maintenance and repair of road drainage structures including culverts
and catch basins, drainage easements, ditches, watercourses and artificial water
conveyances to insure flow capacities which existed on August 15, 1998.

(c) Assessment, monitoring, containment, mitigation, and remediation of, or other
response to, a release or threat of release of oil and/or hazardous material in
accordance with the provisions of 310 CMR 40.0000 and the following general
conditions (although no such measure may be permitted which is designed in
accordance with the provisions of 310 CMR 40.1020 solely to reduce contamination to a
level lower than that which is needed to achieve "No Significant Risk" as defined in 310
CMR 40.0006(10)):

1. There are no practicable alternatives to the response action being proposed that are
consistent with the provisions of 310 CMR 40.0000 and that would be less damaging to
resource areas. The alternatives analysis shall include the following:

a. an alternative that does not alter resource areas, which will provide baseline data for
evaluating other alternatives; and

b. an assessment of alternatives to both temporary and permanent impacts to resource
areas; and

2. Such projects shall be designed, constructed, implemented, operated, and
maintained to avoid or, where avoidance is not practicable, to minimize impacts to
resource areas, and to meet the following standards to the maximum extent practicable:

a. hydrological changes to resource areas shall be minimized;

b. best management practices shall be used to minimize adverse impacts during
construction, including prevention of erosion and siltation of resource areas in
accordance with standard U.S.D.A. Soil Conservation Service methods;

c. mitigating measures shall be implemented that contribute to the protection of the
resource area values identified in the Bylaw;

d. no access road, assessment or monitoring device, or other structure or activity shall
restrict flows so as to cause an increase in flood stage or velocity;

e. temporary structures and work areas in resource areas, such as access roads and
assessment and monitoring devices, shall be removed within 30 days of completion of
the work. Temporary alterations to resource areas shall be substantially restored to
preexisting hydrology and topography. The surface of any area of disturbed vegetation
shall be reestablished with indigenous wetland plant species immediately following work
in said area and prior to said vegetative reestablishment any exposed soil in the area of
disturbed vegetation shall be temporarily stabilized to prevent erosion in accordance
with standard U.S.D.A. Soil Conservation Service methods. At least 75% of the surface
of said area of disturbed vegetation shall be reestablished with indigenous wetland plant
species within two growing seasons. Temporary structures, work areas, and alterations
to resource areas are those that no longer are necessary to fulfill the requirements of
310 CMR 40.0000; and

f. work in resource areas shall occur only when the ground is sufficiently frozen, dry, or
otherwise stable to support the equipment being used.

FWR 10.25 Land Under the Ocean(1) (2)

(1) Introduction. Land under the ocean is likely to be significant to fisheries, where there
are shellfish, to shellfish,(3)

aesthetics, and recreation. Nearshore areas of land under the ocean are additionally
likely to be significant to storm damage prevention, flood control, wildlife habitat,
aesthetics, and recreation.

Land under the ocean provides feeding areas, spawning and nursery grounds and
shelter for many coastal organisms related to marine fisheries. Nearshore areas of land
under the ocean help reduce storm damage and flooding by diminishing and buffering
the high energy effects of storms. Submerged bars dissipate storm wave energy. Such
areas provide a source of sediment for seasonal rebuilding of coastal beaches and
dunes. Nearshore areas of land under the ocean also provide important food for birds.
For example, waterfowl feed heavily on vegetation (such as eel grass, widgeon grass,
and macrophytic algae) and invertebrates (such as polychaetes and mollusks) found in
shallow submerged land under the ocean. Land under the ocean provides water views
that substantially increase property values and recreational opportunities such as fishing
and boating which are critical to the economic base of Falmouth.

(2) Definitions and critical characteristics.

(a) Land Under the Ocean means land extending from the mean low water line seaward
to the boundary of Falmouth's jurisdiction, but does not include land under estuaries.

(b) Nearshore Areas of land under the ocean means that land extending from the mean
low water line to the seaward limit of a Falmouth's jurisdiction, but in no case beyond
the point where the land is 80 feet below the level of the ocean at mean low water.

(c) When nearshore areas of land under the ocean are significant to storm damage
prevention or flood control, the bottom topography of such land and the volume of
sediment are critical to the protection of those resource area values.

(d) When nearshore areas or other land under the ocean is significant to fisheries or
wildlife habitat, the following factors are critical to the protection of such resource area
values:
1. water circulation,

2. distribution of sediment grain size,

3. water quality,

4. finfish habitat, and

5. important food for wildlife.

(e) When land under the ocean is significant to recreation or aesthetics the following
factors are critical to the protection of such resource area values:

1. a clear line of sight,

2. navigable waters

3. water quality,

4. finfish habitat, and

5. shellfish habitat.

(3) Presumptions of Significance.

(a) When a proposed project involves the dredging, removing, filling, building upon,
degrading or otherwise altering of a nearshore area of land under the ocean, the
Commission shall presume that the area is significant to, and the proposed activity will
have a significant or cumulative effect upon, the resource area values specified in FWR
10.25(1) .

(b) When a proposed project involves the dredging, removing, filling, building upon,
degrading or otherwise altering of land under the ocean beyond the nearshore area, the
Commission shall presume that such land is significant to, and the proposed activity will
have a significant or cumulative effect upon, the resource area values specified in FWR
10.25(1),

10.25: continued

except for storm damage prevention, flood control or wildlife habitat.

(d) These presumptions are rebuttable and may be overcome only upon a clear
showing that the Land Under the Ocean does not play a role in the protection of said
resource area values. In the event that the presumptions are deemed to have been
overcome, the Commission shall make a written determination to this effect, setting
forth the grounds.
(4) General Performance Standards

(a) When land under the ocean underlies an anadromous/catadromous fish run, FWR
10.35 shall apply.

(b) When land under the ocean is land containing shellfish, FWR 10.34 shall apply.

(c) When land under the ocean or nearshore areas of land under the ocean are found to
be significant to fisheries, wildlife habitat, storm damage prevention, flood control,
recreation or aesthetics FWR 10.25(5) through (7) shall apply.

(5) Improvement dredging for navigational purposes affecting land under the ocean
shall be designed and carried out using the best available measures so as to minimize
adverse effects on such interests caused by changes in:

(a) bottom topography which will result in increased flooding or erosion caused by an
increase in the height or velocity of waves impacting the shore;

(b) sediment transport processes which will increase flood or erosion hazards by
affecting the natural replenishment of beaches;

(c) water circulation which will result in an adverse change in flushing rate,
temperature, or turbidity levels; or

(d) marine productivity which will result from the suspension or transport of pollutants,
the smothering of bottom organisms, the accumulation of pollutants by organisms, or
the destruction of marine fisheries habitat or wildlife habitat.

(6) Maintenance dredging for navigational purposes affecting land under the ocean
shall be designed and carried out using the best available measures so as to minimize
adverse effects on such interests caused by changes in marine productivity which will
result from the suspension or transport of pollutants, increases in turbidity, the
smothering of bottom organisms, the accumulation of pollutants by organisms, or the
destruction of fisheries habitat or wildlife habitat.

(7) Projects not included in FWR 10.25(5) or 10.25(6) which affect nearshore areas of
land under the ocean shall not cause adverse effects by altering the bottom topography
so as to increase storm damage or erosion of coastal beaches, coastal banks, coastal
dunes, or salt marshes.

(8) Projects not included in FWR 10.25(5) or 10.25(6) which affect nearshore areas of
land under the ocean shall not cause adverse effects by altering the bottom topography
so as to impede navigation for recreational vessels, or by impeding an open line of
sight.
(9) Projects not included in FWR 10.25(5) which affect land under the ocean shall if
water-dependent be designed and constructed, using best available measures, so as to
minimize adverse effects, and if non-water-dependent, have no adverse effects, on
fisheries habitat or wildlife habitat caused by:

(a) alterations in water circulation;

(b) alterations in the distribution of sediment grain size;

(c) changes in water quality, including, but not limited to, other than natural fluctuations
in the level of dissolved oxygen, temperature or turbidity, or the addition of pollutants; or

(d) alterations of shallow submerged lands with high densities of polychaetes, mollusks
or macrophytic algae.

(10) Notwithstanding the provisions of FWR 10.25(5) through (9), no project shall be
permitted which will have any adverse effect on habitat sites of rare species.

(11) Notwithstanding the provisions of FWR 10.25(5) and (7) through (9), no project
shall be permitted which will result in the destruction of eelgrass (Zostera marina) or
widgeon grass (Ruppia maritima) beds;

(12) Where projects are proposed subject to the provisions of FWR 10.25(5) and
10.25(6) and the US Army Corps of Engineers dredged material disposal criteria are
met, all dredged material must be disposed off so as to be available for transport to
adjacent coastal beaches and dunes within the littoral transport system.

FWR 10.26 Land Under Estuaries (4)

(1) Introduction Land under Estuaries is likely to be significant to fisheries, wildlife
habitat, where there are shellfish, to shellfish,(5)

aesthetics, storm damage prevention, flood control, and recreation.

Land under estuaries provides feeding areas, spawning and nursery grounds and
shelter for many coastal organisms related to marine fisheries. Land under estuaries
help reduce storm damage and flooding by diminishing and buffering the high energy
effects of storms. Submerged bars dissipate storm wave energy. Such areas provide a
source of sediment for seasonal rebuilding of coastal beaches and dunes. Land under
estuaries also provide important food for birds. For example, waterfowl feed heavily on
vegetation (such as eel grass, widgeon grass, and macrophytic algae) and invertebrates
(such as polychaetes and mollusks). Land under estuaries provides water views that
substantially increase property values and recreational opportunities such as fishing and
boating which are critical to the economic base of Falmouth.

(2) Definition, Critical Characteristics, and Boundary
(a) An estuary is the lower course of a river or stream where its current is met by the
tides. Estuaries are characterized by a salinity of greater than 5 ppm or by fluctuations
in water elevations due to rise and fall of the tides.

(b) When land under estuaries are significant to storm damage prevention, flood control,
fisheries, or wildlife habitat, the following characteristics are critical to the protection of
those resource area values:

1. bottom topography of such land

1. water circulation,

2. distribution of sediment grain size,

3. water quality,

4. finfish habitat,

5. important food for wildlife.

(c) When land under estuaries is significant to recreation or aesthetics the following
factors are critical to the protection of such resource area values:

1. a clear line of sight,

2. navigable waters

3. water quality,

4. finfish habitat, and

5. shellfish habitat.

(d) The landward boundary of land under estuaries is the mean low water line seaward.
The seaward boundary is where the estuary meets the ocean or a salt pond.

(3) Presumption

(a) When a proposed project involves the dredging, removing, filling, building upon,
degrading or otherwise altering of land under estuaries, the Commission shall presume
that the area is significant to, and the proposed activity will have a significant or
cumulative effect upon, the resource area values specified in FWR 10.26(1). These
presumptions are rebuttable and may be overcome only upon a clear showing that the
Land Under estuaries does not play a role in the protection of said resource area
values. In the event that the presumptions are deemed to have been overcome, the
Commission shall make a written determination to this effect, setting forth the grounds.

(4) General Performance Standards

(a) When land under estuaries underlies an anadromous/catadromous fish run, FWR
10.35 shall apply.

(b) When land under estuaries is land containing shellfish, FWR 10.34 shall apply.

(c) When land under estuaries are found to be significant to fisheries, wildlife habitat,
storm damage prevention, flood control, recreation or aesthetics FWR 10.26(5) through
(7) shall apply.

10.26: continued

(5) Maintenance dredging for navigational purposes affecting land under estuaries shall
be designed and carried out using the best available measures so as to minimize
adverse effects on such interests caused by changes in marine productivity which will
result from the suspension or transport of pollutants, increases in turbidity, the
smothering of bottom organisms, the accumulation of pollutants by organisms, or the
destruction of fisheries habitat or wildlife habitat.

(6) Projects not included in FWR 10.26(5) which affect land under estuaries shall not
cause adverse effects by altering the bottom topography so as to increase storm
damage or erosion of coastal beaches, coastal banks, coastal dunes, or salt marshes.

(7) Projects not included in FWR 10.26(5) which affect land under estuaries shall not
cause adverse effects by altering the bottom topography so as to impede navigation for
recreational vessels or by impeding an open line of sight.

(8) Projects not included in FWR 10.26(5) which affect land under estuaries shall if
water-dependent be designed and constructed, using best available measures, so as to
minimize adverse effects, and if non-water-dependent, have no adverse effects, on
fisheries habitat or wildlife habitat caused by:

(a) alterations in water circulation;

(b) alterations in the distribution of sediment grain size;

(c) changes in water quality, including, but not limited to, other than natural fluctuations
in the level of dissolved oxygen, temperature or turbidity, or the addition of pollutants; or

(d) alterations of shallow submerged lands with high densities of polychaetes, mollusks
or macrophytic algae.
(9) Notwithstanding the provisions of FWR 10.26(5) through (8), no project shall be
permitted which will have any adverse effect on habitat sites of rare species.

(10) Notwithstanding the provisions of FWR 10.26(5) through (9), no project shall be
permitted which will result in the destruction of eelgrass (Zostera marina) or widgeon
grass (Ruppia maritima) beds;

(11) Where projects are proposed subject to the provisions of FWR 10.26(5) and the US
Army Corps of Engineers dredged material disposal criteria are met, all dredged
material must be disposed off so as to be available for transport to adjacent coastal
beaches and dunes within the littoral transport system.

FWR 10.27: Coastal Beaches (6)

(1) Introduction. Coastal beaches, which are defined to include tidal flats, are
significant to storm damage prevention, flood control, protection of recreation,
aesthetics, and wildlife habitat. In addition, tidal flats are likely to be significant to the
protection of marine fisheries and where there are shellfish, to shellfish.(7)

Coastal beaches dissipate wave energy by their gentle slope, their permeability and
their granular nature, which permit changes in beach form in response to changes in
wave conditions.

Coastal beaches serve as a sediment source for dunes and subtidal areas. Steep storm
waves cause beach sediment to move offshore, resulting in a gentler beach slope and
greater energy dissipation. Less steep waves cause an onshore return of beach
sediment, where it will be available to provide protection against future storm waves.

A coastal beach at any point serves as a sediment source for coastal areas downdrift
from that point. The oblique approach of waves moves beach sediment alongshore in
the general direction of wave action. Thus, the coastal beach is a body of sediment

10.27: continued

which is moving along the shore.

Coastal beaches serve the purposes of storm damage prevention and flood control by
dissipating wave energy, by reducing the height of storm waves, and by providing
sediment to supply other coastal features, including coastal dunes, land under the
ocean and other coastal beaches. Interruptions of these natural processes by man-
made structures reduce the ability of the coastal beach to perform these functions.

A number of birds also nest in the coastal berm, between the toe of a dune and the high
tide line. In addition, isolated coastal beaches on small islands are important as haul out
areas for seals.
Coastal Beaches are the most heavily used recreation areas of the town and serve the
purpose of recreation. Important to this value is the ability to walk along or sit at the
beach at high tide.

Coastal beaches are important to aesthetics when they are without imposing structures.
They are part of the classic New England landscape.

Tidal flats are likely to be significant to fisheries and wildlife habitat because they
provide habitats for marine organisms such as polychaete worms and mollusks, which
in turn are food sources for fisheries and migratory and wintering birds. Coastal
beaches are extremely important in recycling of nutrients derived from storm drift and
tidal action. Vegetative debris along the drift line is vital for resident and migratory
shorebirds, which feed largely on invertebrates which eat the vegetation. Below the drift
line in the lower intertidal zone are infauna (invertebrates such as mollusks and
crustacea) which are also eaten by shore birds.

Tidal flats are also sites where organic and inorganic materials may become entrapped
and then returned to the photosynthetic zone of the water column to support algae and
other primary producers of the marine food web.

(2) Definitions and Critical Characteristics.

(a) Coastal Beach means unconsolidated sediment subject to wave, tidal and coastal
storm action which forms the gently sloping shore of a body of salt water and includes
tidal flats. Coastal beaches extend from the mean low water line landward to the dune
line, coastal bankline or the seaward edge of existing man-made structures, when these
structures replace one of the above lines, whichever is closest to the ocean.

(b) Tidal Flat means any nearly level part of a coastal beach which usually extends from
the mean low water line landward to the more steeply sloping face of the coastal beach
or which may be separated from the beach by land under the ocean.

(c) When coastal beaches are determined to be significant to storm damage prevention
or flood control, the following characteristics are critical to the protection of those
resource area values:

1. volume (quantity of sediments) and form,

2. the ability to respond to wave action, and

3. The distribution of sediment grain size.

(d) When coastal beaches are significant to fisheries or wildlife habitat, the following
characteristics are critical to the protection of those resource area values:

1. distribution of sediment grain size,
2. water circulation,

3. water quality, and

4. relief and elevation.

(e) When coastal beaches are significant to recreation and aesthetics, the following
characteristics are critical to the protection of those resource area values:

1. water quality,

2. an open line of sight , and

3. an exposed area of beach at high tide.

(3) Presumption of Significance

When a proposed project involves the dredging, removing, filling, building upon,
degrading or otherwise altering of a coastal beach, the Commission shall presume that
the area is significant to, and the proposed activity will have a significant

10.27: continued

or cumulative effect upon, the resource area values specified in FWR 10.27(1) . These
presumptions are rebuttable and may be overcome only upon a clear showing that the
coastal beach does not play a role in the protection of said resource area values. In the
event that the presumptions are deemed to have been overcome, the Commission shall
make a written determination to this effect, setting forth the grounds.

(4) General Performance Standards

(a) When tidal flats are significant to shellfish, FWR 10.34(4) through (7) shall apply.

(b) When a coastal beach is determined to be significant to storm damage prevention,
flood control, or wildlife habitat, FWR 10.27(5) through (8) shall apply.

(c) When a tidal flat is determined to be significant to fisheries or wildlife habitat, FWR
10.27(7) shall apply.

(5) Any project on a coastal beach shall not have an adverse effect by increasing
erosion, decreasing the volume or changing the form of any such coastal beach or an
adjacent or downdrift coastal beach.

(6) Notwithstanding FWR 10.27(5), beach nourishment with clean sediment of a grain
size compatible with that on the existing beach may be permitted.
(7) In addition to complying with the requirements of FWR 10.27 (5), a project on a tidal
flat shall have no adverse effects, on fisheries and/or wildlife habitat caused by:

(a) alterations in water circulation,

(b) alterations in the distribution of sediment grain size, and

(c) changes in water quality, including, but not limited to, other than natural fluctuations
in the levels of dissolved oxygen, temperature or turbidity, or the addition of pollutants.

(8) Notwithstanding the provisions of FWR 10.27(5) through (7), no project may be
permitted which will have any adverse effect on habitat sites of rare species.

FWR 10.28 Coastal Dunes (8)

(1) Introduction. All coastal dunes are likely to be significant to storm damage
prevention and flood control, and all coastal dunes on barrier beaches and the coastal
dune closest to the coastal beach in any area are per se significant to storm damage
prevention and flood control. Coastal dunes are also often significant to the protection of
wildlife habitat, and the protection of aesthetics.

Coastal dunes aid in storm damage prevention and flood control by supplying sand to
coastal beaches. Coastal dunes protect inland coastal areas from storm damage and
flooding by storm waves and storm elevated sea levels because such dunes are higher
than the coastal beaches which they border. In order to protect this function, coastal
dune volume must be maintained while allowing the coastal dune shape to conform to
natural wind and water flow patterns.

Vegetation cover contributes to the growth and stability of coastal dunes by providing
conditions favorable to sand deposition.

On retreating shorelines, the ability of the coastal dunes bordering the coastal beach to
move landward at the rate of shoreline retreat allows these dunes to maintain their form
and volume, which in turn promotes their function of protecting against storm damage or
flooding.

A number of birds, most commonly terns and gulls, nest at the base or sides of dunes.
In some dune systems other birds also nest in the interdunal area, the species being
determined by the plant community structure, topography, and hydrologic regime

10.28: continued

of the area. In a few dune systems, freshwater wetlands or vernal pool habitats occur,
which serve as important feeding areas for a wide variety of bird species. Salt tolerate
species such as Rosa rugosa can be an important food source for birds and other
wildlife.

Coastal Dunes (RESERVED STATEMENT ON AESTHETICS)

Artificially constructed dunes are included in the definition because they also play a role
in protecting inland properties from storm waves and flooding.

(2) Definition, Critical Characteristics, and Boundary

(a) Coastal Dune means any natural hill, mound or ridge of sediment landward of a
coastal beach deposited by wind action or storm overwash. Coastal dune also means
sediment deposited by artificial means and serving the purpose of storm damage
prevention or flood control. Coastal dunes can be deposited on a coastal bank.

(b) When a coastal dune is significant to storm damage prevention, flood control or the
protection of wildlife habitat, the following characteristics are critical to the protection of
those interest(s):

1. The Ability of Coastal Dunes to Erode in Response to Coastal Beach Conditions -
The erosion of coastal dunes by waves, usually during storms, supplies sand to the
adjacent coastal beach. This sand helps maintain or increase the volume of the coastal
beach as it loses sand during storms to nearshore areas of the ocean. Without the
supply of sand from coastal dunes and banks, beaches will gradually be depleted of
sediment and disappear. (The sand which moves from the dune to the beach originally
was carried by wind from the beach to the dune);

2. Dune Form and Volume - The volume (height and width) and form of coastal dunes
provide a buffer which resists the wave uprush during storms and retards stormline
retreat. Coastal dune form and volume are the result of a combination of factors, the
most important of which are wind and vegetation. Natural waters flow, which comes in
the form of storm overwash, is also an important process in controlling the coastal dune
form and volume, because through this mechanism, sand is carried landward to initiate
dune formation;

3. Vegetative Cover - Vegetation contributes to the growth and stability of coastal
dunes by providing conditions favorable to sand deposition. Coastal dunes often
originate along the strand line of the beach. "Wrack" material, such as beach grass
stems, is carried to the strand line by wind and wave activity where it accumulates and
is often buried by sand blowing from the coastal beach. Seeds of many plants become
mixed with these materials and subsequently germinate. As the strand line plants grow
and begin trapping more sand, the strand line rises to a height above the high tide line.
The beach grass then begins to act as a baffle, trapping sand moved by the prevailing
winds, and producing the feeding areas for wildlife.
4. Landward Movement - On retreating shorelines, coastal dunes bordering the coastal
beach move landward with the rest of the shoreline. This allows coastal dunes to
maintain their form and volume. If the dune did not build landward, the dune would
gradually be eroded away from the seaward side and the dune would become smaller
and smaller, and therefore would be more likely to be completely washed away in a
coastal storm;

5. the ability of the dune to move laterally; or

6. the ability of the dune to continue serving as bird nesting habitat. (c) The landward
extent of coastal dunes is the landward edge of the sediment deposited by wind or
storm wave overwash. This is usually marked by a change in vegetation from dune type
vegetation such as dune grass, beach pea, rosa rugosa, or beach plum to upland plants
such as pine or hardwoods.

(3) Presumption. When a proposed project involves the dredging, removing, filling,
building upon, degrading or otherwise altering of a coastal dune, the Commission shall
presume that the area is significant to, and the proposed activity will have a significant
or cumulative effect upon, the resource area values specified in FWR 10.28(1) . These
presumptions are rebuttable and may be overcome only upon a clear showing that the
coastal dune does not play a role in the protection of said resource area values. In the
event that the presumptions are deemed to have been overcome, the Commission shall
make a written determination to this effect, setting forth the grounds.

(4) General Performance Standards When a coastal dune is determined to be
significant to storm damage prevention, flood control, the protection of wildlife habitat, or
aesthetics, FWR 10.28(5) through (8) shall apply. FWR 10.28(5) through (8) shall apply
to any dune that is deposited on land subject to coastal storm flowage or coastal bank,
but only to the dune deposits in said area.

10.28: continued

(5) Any alteration of, or structure on, a coastal dune or within 100 feet of a coastal dune
shall not have an adverse effect on the coastal dune by:

(a) affecting the ability of waves to remove sand from the dune;

(b) disturbing the vegetative cover so as to destabilize the dune;

(c) causing any modification of the dune form that would increase the potential for
storm or flood damage;

(d) interfering with the landward or lateral movement of the dune;

(e) causing removal of sand from the dune artificially; or
(f) interfering with mapped or otherwise identified bird nesting habitat.

(6) Notwithstanding the provisions of FWR 10.28(5), when a building already exists
upon a coastal dune, a project accessory to the existing building may be permitted,
provided that such work, using the best commercially available measures, minimizes
the adverse effect on the coastal dune caused by the impacts listed in FWR 10.28 (5)(b)
through 10.28(5)(e). Such an accessory project(s) may include, but is not limited to, a
small shed or a small parking area for residences. It shall not include coastal
engineering structures, and in no case shall cumulatively exceed over one hundred
square feet (100 sq. ft.) in size from the altered area that existed as of August 15, 1998.

(7) The following projects may be permitted, provided that they adhere to the provisions
of FWR 10.28(3):

(a) pedestrian walkways, designed to minimize the disturbance to the vegetative cover
and traditional bird nesting habitat;

(b) fencing and other devices designed to increase dune development; and

(c) plantings compatible with the natural vegetative cover.

(8) Notwithstanding the provisions of FWR 10.28(5) through (7), no project may be
permitted which will have any adverse effect on habitat sites of rare species.

FWR 10.29 Barrier Beaches (9)

(1) Introduction. Barrier beaches are significant to storm damage prevention, flood
control, recreation, aesthetics and are likely to be significant to fisheries and wildlife
habitat and, where there are shellfish, to shellfish.(10) Barrier beaches protect landward
areas because they provide a buffer to storm waves and to sea levels elevated by
storms. Barrier beaches protect from wave action such highly productive wetlands as
salt marshes, estuaries, lagoons, salt ponds and fresh water marshes and ponds, which
are in turn important to fisheries and wildlife habitat. Barrier beaches and the dunes
thereon are also important to wildlife habitat, recreation and aesthetics in the ways
described in FWR 10.27(1) (coastal beaches) and FWR 10.28(1) (coastal dunes).

Barrier beaches are maintained by the alongshore movement of beach sediment
caused by wave action. The coastal dunes and tidal flats on a barrier beach consist of
sediment supplied by wind action, storm wave overwash and tidal inlet deposition.
Barrier beaches in Falmouth undergo a landward migration caused by the landward
movement of sediment by wind, storm wave overwash and tidal current processes. The
continuation of these processes maintains the volume of the landform which is
necessary to carry out the storm and flood buffer function.

(2) Definition, Critical Characteristics and boundary.
(a)Barrier Beach means a narrow, generally low-lying strip of land generally, but not
always, consisting of coastal beaches and coastal dunes extending roughly parallel to
the trend of the coast. It is separated from the mainland by a narrow body of fresh,
brackish or saline water or a marsh system. A barrier beach may be joined to the
mainland at one or both ends. A barrier beach may contain areas of glacially deposited
materials.

(b) When a barrier beach is significant to storm damage prevention and flood control,
the characteristics of coastal beaches,

10.29: continued

tidal flats and coastal dunes listed in FWR 10.27(1) and FWR 10.28(1) and their ability
to respond to wave action, including storm overwash sediment transport, are critical to
the protection of the resource area values specified in FWR 10.29.

(c) the inland boundary is the edge of the coastal or inland wetland that is protected by
the barrier beach. The boundary of the barrier beach extends to that point laterally along
the beach to where a perpendicular line to the beach no longer intercepts the coastal or
inland wetland protected by the barrier beach.

(3) Presumption.

(a) When a proposed project involves the dredging, removing, filling, building upon,
degrading or otherwise altering of a barrier beach including all of its coastal dunes, the
Commission shall presume that the area is significant to, and the proposed activity will
have a significant or cumulative effect upon, the resource area values specified in FWR
10.29(1). These presumptions are rebuttable and may be overcome only upon a clear
showing that the coastal dune does not play a role in the protection of said resource
area values. In the event that the presumptions are deemed to have been overcome,
the Commission shall make a written determination to this effect, setting forth the
grounds.

(4) Performance Standards.

(a) When a barrier beach is determined to be significant to storm damage prevention,
flood control, fisheries, recreation, aesthetics, or wildlife habitat, FWR 10.27(5) through
10.27(10) (coastal beaches) and FWR 10.28(5) through 10.28(8) (coastal dunes) shall
apply to the coastal beaches and to all coastal dunes which make up a barrier beach.

(b) When a portion of barrier beach system is not made up of coastal beaches or
coastal dunes, in that portion of the barrier beach the following shall apply:

1. the project shall be minimized pursuant to FWR 10.05(7)(f)2.
(5) Notwithstanding the provisions of FWR 10.29(4), no project may be permitted which
will have any adverse effect on habitat sites of rare species.

FWR 10.30 Coastal Banks(11)

(1) Introduction.

Coastal banks are likely to be significant to storm damage prevention and flood control,
and may be significant to wildlife habitat. Coastal banks that supply sediment to coastal
beaches, coastal dunes and barrier beaches are per se significant to storm damage
prevention and flood control. Coastal banks that, because of their height, provide a
buffer to upland areas from storm waters are significant to storm damage prevention
and flood control.

Coastal banks composed of unconsolidated sediment and exposed to vigorous wave
action serve as a major continuous source of sediment for beaches, dunes, and barrier
beaches (as well as other land forms caused by coastal processes). The supply of
sediment is removed from banks by wave action, and this removal takes place in
response to beach and sea conditions. It is a naturally occurring process necessary to
the continued existence of coastal beaches, coastal dunes and barrier beaches which,
in turn, dissipate storm wave energy, thus protecting structures of coastal wetlands
landward of them from storm damage and flooding.

Coastal banks, because of their height and stability, may act as a buffer or natural wall,
which protects upland areas from storm damage and flooding. While erosion caused by
wave action is an integral part of shoreline processes and furnishes important sediment
to downdrift landforms, erosion of a coastal bank by wind and rain runoff, which plays
only a minor role in beach nourishment, should not be increased unnecessarily.
Therefore, disturbances to a coastal bank which reduce its natural resistance to wind
and rain erosion cause cuts and gullys in the bank, increase the risk of its collapse,
increase the danger to structures at the top of the bank and decrease its value as a
buffer.

10.30: continued

Bank vegetation tends to stabilize the bank and reduce the rate of erosion due to wind
and rain runoff. Pedestrian and vehicular traffic damages the protective vegetation and
frequently leads to gully erosion or deep "blowouts" on unconsolidated banks.
Therefore, any project permitted by FWR 10.30 should incorporate, when appropriate,
elevated walkways.

A particular coastal bank may serve both as a sediment source and as a buffer, or it
may serve only one role.

(2) Definition, Critical Characteristics and Boundary.
(a) Coastal Bank means the seaward face or side of any elevated landform, other than
a coastal dune, which lies at the landward edge of a coastal beach, land subject to tidal
action, or other wetland. Coastal Bank also means coastal engineering structures
serving the purpose of storm damage prevention or flood control.

(b) The slope of a coastal bank must be >10:1 (see Figure 1).

(c) An eroding coastal bank is one that serves as a sediment source.

(d) When the Commission determines that a coastal bank is significant to storm damage
prevention or flood control because it is a vertical buffer to storm waters, the stability of
the bank, i.e., the natural resistance of the bank to erosion caused by wind and rain
runoff, is critical to the protection of that resource area value(s).

(e) The boundary of the top of the coastal bank shall conform to one of the following
models, as appropriate for the site:(12)

1. For a coastal bank with a slope of >4:1, the "top of coastal bank" is that point above
the 100-year flood elevation where the slope becomes <4:1. (see Figure 2).

2. For a coastal bank with a slope >10:1 but <4:1, the top of coastal bank is the 100-
year flood elevation. (see Figure 3).

3. The top of coastal bank will fall below, the 100-year flood elevation and is the point
where the slope ceases to be >10:1. (see Figure 4).

(f) There can be multiple coastal banks within the same, site. This can occur where the
coastal banks are separated by land subject to coastal storm flowage [an area <10:1 ].
(See Figures 5 and 6).(c) When the Commission determines that a coastal bank is
significant to storm damage prevention or flood control because it supplies sediment to
coastal beaches, coastal dunes or barrier beaches, the ability of the coastal bank to
erode in response to wave action is critical to the protection of that resource area
value(s).
<
Legend - Figures 2 - 6 are not to scale




10.30: continued

(3) Presumptions

(a) When a proposed project involves removal, filling, dredging, building upon,
degrading or otherwise altering of a coastal bank, the Commission shall presume that
the area is significant to, and the proposed activity will have a significant or cumulative
effect upon, the resource area values specified in FWR 10.30(1). These presumptions
are rebuttable and may be overcome only upon a clear showing that the coastal bank
does not play a role in the protection of said resource area values. In the event that the
presumptions are deemed to have been overcome, the Commission shall make a
written determination to this effect, setting forth the grounds.

(b) A coastal bank subject to wave action and showing exposed (unvegetated) sand or
soils shall be presumed to be a significant sediment source.

(c) Activity on a coastal bank steeper than 4:1 or on a coastal bank in a velocity zone
shall be presumed to have an adverse effect on the stability of the coastal bank.

(4) General Performance Standards. When a coastal bank is determined to be
significant to storm damage prevention, flood control, wildlife habitat, or erosion and
sedimentation control , FWR 10.30.(5) through FWR 10.30(11) shall apply.

(5) No new bulkhead, revetment, seawall, groin or other coastal engineering structure
shall be permitted on such a coastal bank except that such a coastal engineering
structure shall be permitted when required to prevent storm damage to buildings
constructed prior March 22, 1989, or constructed pursuant to a Permit Application filed
prior to March 22, 1989, including reconstructions of such buildings subsequent to
March 22, 1989, provided that the following requirements are met:

(a) a coastal engineering structure or a modification thereto shall be designed and
constructed so as to minimize, using best available measures, adverse effects on
adjacent or nearby coastal beaches due to changes in wave action;

(b) the applicant demonstrates that no method of protecting the building other than the
proposed coastal engineering structure is feasible (Moving the building to an alternative
location on the same lot or adjacent lot under the ownership or control of the applicant
shall be presumed feasible.); and

(c) the best available measures utilized to minimize adverse effects on adjacent or
nearby coastal beaches due to changes in wave action shall include beach nourishment
activities.

(6) Any project on a coastal bank or within 100 feet landward of the top of a coastal
bank, other than a structure permitted by FWR 10.30(5), shall not have an adverse
effect due to wave action on the movement of sediment from the coastal bank to coastal
beaches or land subject to tidal action.

(7) No project on a coastal bank, or within 100 feet landward of the top of a coastal
bank, in a naturally vegetated condition, unless permitted under FWR 10.30(5), shall be
permitted on:

(a) an eroding coastal bank, or within a certain distance of said portion of the Bank as
specified in FWR 10.18(8),

(b) that portion of a coastal bank in a v-zone,

(c) that portion of a coastal bank with a slope greater or equal to 4:1, or with twenty-five
feet (25 ft.) of the top of such area of said bank, or

(d) 1. that portion of a coastal bank that is within one hundred feet (100 ft.) of:

a. Land Under the Ocean;

b. Salt Marsh; or

c. Banks of Salt Ponds, Estuaries, and ponds, lakes, and streams which flow throughout
the year [Bank (Inland)];

2. or within seventy-five feet (75 ft.) of:

a. Land Subject to Tidal Action;
b. Freshwater wetlands; or

c. Banks of Intermittent streams;

3. Notwithstanding the provisions of FWR 1030(7)(d) 1. and 2., activities listed in FWR
10.18(9) may be permitted in said areas provided that all other provisions of FWR 10.30
are met.

(8) The Permit and the Certificate of Compliance for any new building within 100 feet
landward of the top of a coastal bank permitted by the Commission under Chapter 235
of the Code of Falmouth shall contain the specific condition: FWR 10.30(5),
promulgated under Chapter 235 of the Code of Falmouth, requires that no coastal
engineering structure, such as a bulkhead, revetment, or seawall shall be permitted on
an eroding bank at any time in the future to protect the project allowed by this

10.30: continued

Permit.

(9) Any project on such a coastal bank or within 100 feet landward of the top of such
coastal bank shall have no adverse effects on the stability of the coastal bank.

(10) Notwithstanding the provisions of FWR 10.30(5) through (8), protective planting
designed to reduce erosion may be permitted.

(11) Notwithstanding the provisions of FWR 10.30(5) through (10), no project may be
permitted which will have any adverse effect on habitat of rare species.

FWR 10.31: Rocky Intertidal Shores (13)

(1) Introduction. Rocky intertidal shores are likely to be significant to storm damage
prevention, flood control, fisheries and wildlife habitat and where there are shellfish, to
shellfish.(14)

Rocky shore environments are habitats for macroalgae and marine invertebrates and
provide protection to and food for, larger marine organisms such as crabs, lobsters, and
such fish species as winter flounder, as well as a number of birds. Most marine plants
and animals found in rocky shore environments are uniquely adapted to survive there
and cannot survive elsewhere. Harbor seals also use rocky intertidal shores, such as
rock outcroppings or isolated shores of small islands, as haul out areas.

(2) Definition, Critical Characteristics

(a) Rocky Intertidal Shores means naturally occurring rocky areas, such as bedrock or
boulder-strewn areas between the mean high water line and the mean low water line.
(b) When a rocky intertidal shore is determined to be significant to storm damage
prevention, flood control, or wildlife habitat the form and volume of exposed intertidal
bedrock and boulders are critical to the protection of those resource area values.

(c) When a rocky intertidal shore is significant to fisheries or wildlife habitat, water
circulation and water quality are critical to the protection of those resource area values.

(3) Presumption. When a proposed project involves removal, filling, dredging, building
upon, degrading or otherwise altering of a rocky intertidal shore, the Commission shall
presume that the area is significant to, and the proposed activity will have a significant
or cumulative effect upon, the resource area values specified in FWR 10.31(1). These
presumptions are rebuttable and may be overcome only upon a clear showing that the
rocky intertidal shore does not play a role in the protection of said resource area values.
In the event that the presumptions are deemed to have been overcome, the
Commission shall make a written determination to this effect, setting forth the grounds.

(4) General Performance Standards

(a) When a Rocky Intertidal Shore is determined to be significant to storm damage
prevention, flood control, or wildlife habitat, any proposed project shall be designed and
constructed, using the best available measures, so as to minimize adverse effects on
the form and volume of exposed intertidal bedrock and boulders.

(b) When a Rocky Intertidal Shore is determined to be significant to fisheries or wildlife
habitat, any proposed project shall have no adverse effects on water circulation and
water quality. Water quality impacts include, but are not limited to, other than natural
fluctuations in the levels of dissolved oxygen, temperature or turbidity, or the addition of
pollutants.

10.31: continued

(5) Notwithstanding the provisions of FWR 10.31(4), no project may be permitted
which will have any adverse effect on habitat sites of rare species.

FWR 10.32 Salt Marshes (15)

(1) Introduction. Salt marshes are significant to protection of fisheries, wildlife habitat,
and where there are shellfish, to shellfish(16), water pollution control, and aesthetics
and are likely to be significant to storm damage prevention and ground water.

A salt marsh produces large amounts of organic matter. A significant portion of this
material is exported as detritus and dissolved organics to estuarine and coastal waters,
where it provides the basis for a large food web that supports many marine organisms,
including finfish and shellfish as well as many bird species. Salt marshes also provide a
spawning and nursery habitat for several important estuarine forage finfish as well as
important food, shelter, breeding areas, and migratory and overwintering areas for many
wildlife species.

Salt marsh plants and substrate remove pollutants from surrounding waters. The
network of salt marsh vegetation roots and rhizomes binds sediments together.

The sediments absorb chlorinated hydrocarbons and heavy metals such as lead,
copper, and iron. The marsh also retains nitrogen and phosphorous compounds, which
in large amounts can lead to algal blooms in coastal waters.

The underlying peat also serves as a barrier between fresh ground water landward of
the salt marsh and the ocean, thus helping to maintain the level of such ground water.

Salt marsh cord grass and underlying peat are resistant to erosion and dissipate wave
energy, thereby providing a buffer that reduces wave damage.

(2) Definition, Critical Characteristics.

(a) Salt Marsh means a coastal wetland that extends landward up to the highest high
tide line, that is, the highest spring tide of the year, and is characterized by plants that
are well adapted to or prefer living in, saline soils. Dominant plants within salt marshes
are salt meadow cord grass (Spartina patens) and/or salt marsh cord grass (Spartina
alterniflora). A salt marsh may contain tidal creeks, ditches and pools.

(b) Spring Tide means the tide of the greatest amplitude during the approximately 14-
day tidal cycle. It occurs at or near the time when the gravitational forces of the sun and
the moon are in phase (new and full moons).

(c) When a salt marsh is significant to one or more of the resource area values specified
in FWR 10.32(1), the following characteristics are critical to the protection of such
resource area values:

1. the growth, composition and distribution of salt marsh vegetation, (fisheries and
wildlife habitat, water pollution control, storm damage prevention);

2. the flow and level of tidal and fresh water (fisheries and wildlife habitat, water
pollution control); and

3. the presence and depth of peat (ground water supply, water pollution control, storm
damage prevention).

(3) Presumption.

(a) When a proposed project involves removal, filling, dredging, building upon,
degrading or otherwise altering of a salt marsh, the Commission shall presume that the
area is significant to, and the proposed activity will have a significant or cumulative
effect upon, the resource area values specified in FWR 10.32(1). These presumptions
are rebuttable and may

10.32: continued

be overcome only upon a clear showing that the salt marsh does not play a role in the
protection of said resource area values. In the event that the presumptions are deemed
to have been overcome, the Commission shall make a written determination to this
effect, setting forth the grounds.

(4) Performance Standards. When a salt marsh is determined to be significant to
fisheries or wildlife habitat, water pollution control, ground water supply, aesthetics, or
storm damage prevention FWR 10.32(5) through (9) shall apply.

(5) A proposed project in a salt marsh, on lands within 100 feet of a salt marsh, or in a
body of water adjacent to a salt marsh shall not destroy any portion of the salt marsh
and shall not have an adverse effect on the productivity of the salt marsh. Alterations in
growth, distribution and composition of salt marsh vegetation shall be considered in
evaluating adverse effects on productivity. This section shall not be construed to prohibit
the harvesting of salt hay.

(6) Notwithstanding the provisions of FWR 10.32(4), a dock or elevated walkway as
narrow as feasible may be permitted provided it meets the requirements of FWR
10.16(1), and of FWR 10.21 through 10.40

(7) Notwithstanding the provisions of FWR 10.32(5), a project which will restore or
rehabilitate a salt marsh, or create a salt marsh, may be permitted.

(8) Notwithstanding the provisions of FWR 10.32(5) through (7), no project may be
permitted which will have any adverse effect on habitat sites of rare species.

FWR 10.33 Land Under Salt Ponds(17)

(1) Introduction. Land under salt ponds is significant to fisheries and wildlife habitat,
recreation and, where there are shellfish, to shellfish.(18)

Land under salt ponds provides an excellent habitat for fisheries. The high productivity
of plants in salt ponds provides food for shellfish, crustaceans and larval and juvenile
fish. Salt ponds also provide spawning areas for shellfish and are nursery areas for
crabs and fish. In addition to the many birds which feed on fish found in salt ponds,
waterfowl also eat invertebrates such as mollusks and crustaceans, which in turn
depend on bottom sediment and vegetation. Some bird species also eat widgeon grass
and eel grass which may be rooted in land under salt ponds.

(2) Definition, Critical Characteristics.
(a) Salt Pond means a shallow enclosed or semi-enclosed body of saline water that
may be partially or totally restricted by barrier beach formation, or a barrier beach
system. Salt ponds may receive freshwater from small streams emptying into their
upper reaches and/or springs in the salt pond itself.

(b) When land under a salt pond is significant to fisheries or wildlife habitat, the following
factors are critical to the protection of that resource area value:

1. water circulation,

2. distribution of sediment grain size,

3. freshwater inflow,

4. productivity of plants, and

5. water quality.

(c) The boundary of a salt pond is the bank of the pond or the landward edge of any
wetland adjacent to the water.

10.33: continued

(3) Presumption.

When a proposed project involves removal, filling, dredging, building upon, degrading or
otherwise altering of land under a salt pond, the Commission shall presume that the
area is significant to, and the proposed activity will have a significant or cumulative
effect upon, the resource area values specified in FWR 10.33(1). These presumptions
are rebuttable and may be overcome only upon a clear showing that the land under the
salt pond does not play a role in the protection of said resource area values. In the
event that the presumptions are deemed to have been overcome, the Commission shall
make a written determination to this effect, setting forth the grounds.

(4) Performance Standards. When land under a salt pond is determined to be significant
to fisheries, recreation, or wildlife habitat, FWR 10.33(5) through (7) shall apply.

(5) Any project on land under a salt pond, on lands within 100 feet of the mean high
water line of a salt pond, or on land under a body of water adjacent to a salt pond shall
not have an adverse effect on the fisheries, recreation, or wildlife habitat of such a salt
pond caused by:

(a) alterations of water circulation;

(b) alterations in the distribution of sediment grain size and the relief or elevation of the
bottom topography;
(c) modifications in the flow of fresh and/or salt water;

(d) alterations in the productivity of plants, or

(e) alterations in water quality, including, but not limited to, other than normal
fluctuations in the level of dissolved oxygen, nutrients, temperature or turbidity, or the
addition of pollutants.

(6) Notwithstanding the provisions of FWR 10.33(5), activities specifically required and
intended to maintain the depth and the opening of the salt pond to the ocean in order to
maintain or enhance the fisheries or for the specific purpose of fisheries management,
may be permitted.

(7) Notwithstanding the provisions of FWR 10.33(5) and (6), no project may be
permitted which will have any adverse effect on habitat sites of rare species.

FWR 10.34 Land Containing Shellfish (19)

(1) Preamble. Land containing shellfish is found within certain of the resource areas
under the jurisdiction of Chapter 235 of the Code of Falmouth. "Shellfish" is specifically
one of the resource area values of Chapter 235 of the Code of Falmouth. The purpose
of FWR 10.34 is to identify those resource areas likely to contain shellfish, to provide
criteria for determining the significance of land containing shellfish, and to establish
regulations for projects which will affect such land.

Land containing shellfish is, under FWR 10.34(3), significant to fisheries, recreation,
aquaculture, as well as to the resource area value of shellfish. Any proposal that effects
navigation in Land Containing Shellfish is likely to have a significant or cumulative
adverse effect on aquaculture.

Shellfish are a valuable renewable resource. The maintenance of productive shellfish
beds not only assures the continuance of shellfish themselves, but also plays a direct
role in supporting fish stocks by providing a major food source. The young shellfish in
the planktonic larval stage that are produced in large quantities during spring and
summer are an important source of food for the young stages of marine fishes and
many crustaceans.

(2) Definitions and Critical Characteristics.

(a) Land containing shellfish means land under the ocean, land under estuaries, land
under salt ponds, tidal flats, rocky intertidal shores, salt marshes, banks of salt ponds,
banks of estuaries and beaches when any such land contains shellfish.

(b) Shellfish means the following species: Bay scallop (Argopecten irradians); Blue
mussel (Mytilus edulis); Ocean quahog
10.34: continued

(Arctica islandica); Oyster (Crassostrea virginica); Quahog (Mercenaria merceneria);
Razor clam (Ensis directus); Sea clam (Spisula solidissima); Sea scallop (Placopecten
magellanicus); Soft shell clam (Mya arenaria).

(c) Shellfish constable means the official in Falmouth, whether designated a constable,
warden, natural resources officer, or by some other name, in charge of enforcing the
laws regulating the harvest of shellfish.

(d) When a resource area is found to be significant to shellfish under FWR 10.34(3),
and is, therefore, also significant to fisheries and recreation, the following factors are
critical to the protection of those resource area values:

1. shellfish,

2. water quality,

3. water circulation,

4. the natural relief, evaluation or distribution of sediment grain size of such land, and

5. public access to those areas

(3) Significance. Land containing shellfish shall be found significant to shellfish,
recreation, aquaculture, and to fisheries when it has been identified:

(a) and mapped by the Commission, based upon maps and/or other written
documentation of the shellfish constable; or

(b) otherwise identified by taking into account and documenting: the density of shellfish,
the size of the area, and the historical use of the area, current importance of the area
and potential use of the area to recreational or commercial shellfishing.

1. The area shall be found significant to shellfish where shellfish sampling indicates a
shellfish density per nine square feet greater than:

a. one (1) quahog;

b. one (1) clam;

c. three (3) oysters; or

d. three (3) mussels;
2. Where shellfish sampling indicates a shellfish density less than that specified in FWR
10.34(3)(b)1., the Commission shall consider the size of the area, and the historical use
of the area, and current importance of the area and potential use of the area to
recreational or commercial shellfishing.

(4) Shellfish Survey(20) Shellfish Surveys shall be performed in a manner consistent
with the following guidelines:

(a) Samples shall be taken every five feet along the center line of the proposed
structure starting at mean high water to five feet beyond the end of the proposed
structure. Samples shall be taken every five feet under any docks or floats. The sample
area size shall be one foot square. Similarly spaced samples shall also be taken spaced
ten and twenty feet either side of the centerline sample at the same frequency as those
taken on the centerline of the proposed structure.

(c) Samples at each site shall be placed in a sieve tray with 1/4 inch mesh and sorted.
All live animals shall be counted and measured. Dead or the empty shells shall also be
noted.

(d) A description of the sediments shall be stated for each sample taken.

(e) Results of the shellfish survey shall be recorded on Form SS of FWR 10.99.

(e) All shellfish shall be replanted in the sample area from which they were taken.

(5) Performance Standards. When a resource area, including rocky intertidal shores,
salt marshes, land under the ocean, coastal beaches, land under salt ponds is
determined to be significant to the protection of shellfish and therefore to the protection
of recreation and the protection of fisheries, FWR 10.34(6) through (8) shall apply.(21)

10.34: continued

(6) Any project on land containing shellfish shall not adversely affect any potion of such
land or marine fisheries by a change in the productivity of such land caused by:

(a) alterations of water circulation,

(b) alterations in relief elevation,

(c) the compacting of sediment by vehicular traffic,

(d) alterations in the distribution of sediment grain size,

(e) alterations in natural drainage from adjacent land, or
(f) changes in water quality, including, but not limited to, other than natural fluctuations
in the levels of salinity, dissolved oxygen, nutrients, temperature or turbidity, or the
addition of pollutants.

(7) Notwithstanding FWR 10.34(6) and 10.34(7), projects approved by DMF that are
specifically intended to increase the productivity of land containing shellfish may be
permitted.

(8) Notwithstanding the provisions of FWR 10.34(6) and (7), no project may be
permitted which will have any adverse effect on habitat sites of rare species.

FWR 10.35: Banks of or Land Under the Ocean, Estuaries, Ponds, Streams, Rivers,
Lakes, or Creeks that Underlie an Anadromous/Catadromous Fish Run ("Fish Run")(22)

(1) Introduction. The banks of and land under the ocean, estuaries, ponds, streams,
rivers, lakes or creeks that underlie an anadromous/catadromous fish run are significant
to protection of marine fisheries.

Anadromous and catadromous fish ("the fish") are renewable protein resources that
provide recreational, aesthetic and commercial benefits. In addition, throughout their life
cycle such fish are important components of freshwater, estuarine, and marine
environments and are food sources for other organisms.

The spawning migrations of such fish also provide a direct link between marine and
freshwater ecosystems. This link plays a role in maintaining the productivity of fisheries.

(2) Definitions, Critical Characteristics.

(a) Anadromous Fish means fish that enter fresh water from the ocean to spawn, such
as alewives, shad and salmon.

(b) Catadromous Fish means fish that enter salt water from fresh water to spawn, such
as eels.

(c) Anadromous/Catadromous Fish Run means that area within estuaries, ponds,
streams, creeks, rivers, lakes or coastal waters, which is a spawning or feeding ground
or passageway for anadromous or catadromous fish and which is identified by DMF,
has been mapped on the Coastal Atlas of the Coastal Zone Management Program or by
the Cape Cod Critical Habitat Atlas (Association for the Preservation of Cape Cod
1990), or identified by evidence of the presence of anadromous/catadromous fish at a
public hearing. Such fish runs shall include those areas which have historically served
as fish runs and are either being restored or are planned to be restored at the time the
Permit Application is filed.
(d) When such a bank of a fish run, or land under an estuary or under a pond, stream,
river, lake or creek which is a fish run is significant to fisheries, the following factors are
critical to the protection of such resource area value:

(a) the fish,

(b) accessibility of spawning areas,

(c) the volume or rate of the flow of water within spawning areas and migratory routes,
and

(d) spawning and nursery grounds.

(3) Presumption.

10.35: continued

When a proposed project involves removal, filling, dredging, building upon, degrading or
otherwise altering of a bank of a fish run, or land under estuaries, ponds, streams,
rivers, lakes or creeks that underlie a fish run, the Commission shall presume that the
area is significant to, and the proposed activity will have a significant or cumulative
effect upon, the resource area values specified in FWR 10.35(1). These presumptions
are rebuttable and may be overcome only upon a clear showing that said area does not
play a role in the protection of said resource area values. In the event that the
presumptions are deemed to have been overcome, the Commission shall make a
written determination to this effect, setting forth the grounds.

(4) General Performance Standards.

When such land or bank is determined to significant to fisheries, FWR 10.35(5) through
(7) shall apply.

(5) Any project on such land or bank shall not have an adverse effect on the
anadromous or catadromous fish run by:

(a) impeding or obstructing the migration of the fish;

(b) changing the volume or rate of flow of water within the fish run; or

(c) impairing the capacity of spawning or nursery habitats necessary to sustain the
various life stages of the fish.

(6) Dredging, disposal of dredged material or filling in any portion of a fish run shall be
prohibited between March 15th and June 15th in any year.
(7) Notwithstanding the provisions of FWR 10.35(5), no project may be permitted
which will have any adverse effect on habitat sites of rare species.

FWR 10.36 Banks of Estuaries (23)

(1) Introduction Banks of Estuaries are likely to be significant to flood control, storm
damage prevention, water pollution control, erosion and sediment control, to fisheries
and wildlife habitat, recreation , aesthetics, and where there are shellfish, to
shellfish(24). Where Banks are composed of concrete, asphalt or other artificial
impervious material, said Banks of Estuaries are likely to be significant to flood control
and storm damage prevention.

Where Banks of Estuaries are partially or totally vegetated, the vegetation serves to
maintain the Banks' stability, which in turn protects water quality by reducing erosion
and siltation.

Banks of Estuaries may also provide shade that moderates water temperatures, as well
as providing breeding habitat, escape cover and food, all of which are significant to
fisheries and wildlife habitat.

The topography, plant community composition and structure, and soil structure of banks
together provide important food, shelter, migratory and overwintering areas, and
breeding areas for wildlife. Topography plays a role in determining the suitability of
banks to serve as burrowing or feeding habitat. Soil structure also plays a role in
determining the suitability for burrowing, hibernation and other cover. Bank topography
and soil structure impact the bank's vegetative structure, as well. Bushes and other
undergrowth, trees, vegetation extending from the bank into the water, and vegetation
growing along the water's edge are also important to a wide variety of wildlife. A number
of tubers and berry bushes also grow in banks and serve as important food for wildlife.
Finally, banks may provide important shelter for wildlife which needs to move between
wetland areas.

Bank of estuaries act to confine floodwaters during the most frequent storms, preventing
the spread of water to adjacent land. 10.36: continued

Because these banks confine water during such storms to an established channel they
maintain water temperatures and depths necessary for the protection of fisheries. The
maintenance of cool water temperatures during warm weather is critical to the survival
of important game species such as brown trout (Salmo trutta). An alteration of a bank
that permits water to frequently and consistently spread over a large and more shallow
area increases the amount of property which is routinely flooded, as well as elevating
water temperature and reducing fish habitat within the main channel, particularly during
warm weather.

Banks of Estuaries may also be a coastal bank or coastal beach.
(2) Definition, Critical Characteristics, and Boundary

(a) A bank of an estuary is the portion of the land surface which normally abuts and
confines an estuary. It occurs between an estuary and a coastal or freshwater wetland
and adjacent flood plain, or, in the absence of these, it occurs between an estuary and
an upland. A bank of an estuary may be partially or totally vegetated, or it may be
comprised of exposed soil, gravel or stone.

(b) The physical characteristics of a bank of an estuary, as well as its location, as
described in the foregoing FWR 10.36(2)(a), are critical to the protection of the resource
area values specified in FWR 10.36(1).

(c) The upper boundary of a bank of an estuary is the first observable break in the
slope or the mean annual flood level, whichever is higher. The lower boundary of a bank
of an estuary is the mean annual low flow level.

(3) Presumption

When a proposed project involves removal, filling, dredging, building upon, degrading or
otherwise altering of a bank of an estuary, the Commission shall presume that the area
is significant to, and the proposed activity will have a significant or cumulative effect
upon, the resource area values specified in FWR 10.36(1). These presumptions are
rebuttable and may be overcome only upon a clear showing that said area does not
play a role in the protection of said resource area values. In the event that the
presumptions are deemed to have been overcome, the Commission shall make a
written determination to this effect, setting forth the grounds.

(4) General Performance Standards

When a bank of an estuary is determined to be significant to fisheries or wildlife habitat,
water pollution control, erosion and sediment control, shellfish, aesthetics, flood control
or storm damage prevention FWR 10.36(5) through (9) shall apply.

(5) In addition to the provisions of FWR 10.36(6) through (8), if the bank of an estuary is
also a coastal bank, the project must also comply with the provisions of FWR 10.30.

(6) In addition to the provisions of FWR 10.36(5) and (7) through (8), if the bank of an
estuary is also a coastal beach, the project must also comply with the provisions of
FWR 10.27.

(7) Any proposed work on a bank of an estuary shall not impair the following:

(a) the physical stability of the bank;

(b) the water carrying capacity of the existing channel within the bank;
(c) ground water and surface water quality;

(d) the capacity of the bank to provide breeding habitat, escape cover and food for
fisheries;

(e) the capacity of the bank to provide important wildlife habitat functions. A project or
projects on a single lot, for which a Permit Application(s) is filed on or after (effective
date), that (cumulatively) alter(s) up to 25 feet of the length of the bank found to be
significant to the protection of wildlife habitat, shall not be deemed to impair its capacity
to provide important wildlife habitat functions. Additional alterations beyond the above
threshold may be permitted if they will have no adverse effects on wildlife habitat.

(8) Notwithstanding the provisions of FWR 10.36(7), structures may be permitted in or
on a Bank when required to prevent flood damage to facilities, buildings and roads
constructed prior to (effective date), including the renovation or reconstruction (but not
substantial enlargement) of such facilities, buildings and roads, provided that the
following requirements are met:

(a) The proposed protective structure, renovation or reconstruction is designed and
constructed using best practical measures so as to minimize adverse effects on the
characteristics and functions of the resource area;

10.36: continued

(b) The applicant demonstrates that there is no reasonable method of protecting,
renovating or rebuilding the facility in question other than the one proposed.

(9) Notwithstanding the provisions of FWR 10.36(5) though (8), no project may be
permitted which will have any adverse effect on habitat sites of rare species.

FWR 10.37 Banks of Salt Ponds (25)

(1) Introduction. Banks of Salt Ponds are likely to be significant to flood control, storm
damage prevention, water pollution control, erosion and sediment control, fisheries and
wildlife habitat, and where there are shellfish, to shellfish.(26) Where banks of salt
ponds are composed of concrete, asphalt or other artificial impervious material, said
Banks are likely to be significant to flood control and storm damage prevention.

Where banks of salt ponds are partially or totally vegetated, the vegetation serves to
maintain the Banks' stability, which in turn protects water quality by reducing erosion
and siltation.

Bank of salt ponds may also provide shade that moderates water temperatures, as well
as providing breeding habitat, escape cover and food, all of which are significant to the
protection of fisheries.
The topography, plant community composition and structure, and soil structure of banks
together provide important food, shelter, migratory and overwintering areas, and
breeding areas for wildlife. Topography plays a role in determining the suitability of
banks to serve as burrowing or feeding habitat. Soil structure also plays a role in
determining the suitability for burrowing, hibernation and other cover. Bank topography
and soil structure impact the bank's vegetative structure, as well. Bushes and other
undergrowth, trees, vegetation extending from the bank into the water, and vegetation
growing along the water's edge are also important to a wide variety of wildlife. A number
of tubers and berry bushes also grow in banks and serve as important food for wildlife.
Finally, banks may provide important shelter for wildlife which needs to move between
wetland areas.

Banks of salt ponds act to confine floodwaters during the most frequent storms,
preventing the spread of water to adjacent land. Because banks of salt ponds confine
water during such storms to an established channel they maintain water temperatures
and depths necessary for the protection of fisheries.

Banks of salt ponds may also be a coastal bank or coastal beach.

(2) Definition, Critical Characteristics, and Boundary

(a) A bank of a salt pond is the portion of the land surface which normally abuts and
confines a salt pond. It occurs between a salt pond and a coastal or freshwater wetland
and adjacent flood plain, or, in the absence of these, it occurs between a salt pond and
an upland. A bank of a salt pond may be partially or totally vegetated, or it may be
comprised of exposed soil, gravel or stone.

(b) The physical characteristics of a bank of a salt pond, as well as its location, as
described in the foregoing FWR 10.37(2)(a), are critical to the protection of the resource
area values specified in FWR 10.37(1).

(c) The upper boundary of a bank of a salt pond is the first observable break in the
slope or the mean annual flood level, whichever is higher. The lower boundary of a bank
of a salt pond is the mean low water line.

10.37: continued

(3) Presumption

When a proposed project involves removal, filling, dredging, building upon, degrading or
otherwise altering of a bank of a salt pond, the Commission shall presume that the area
is significant to, and the proposed activity will have a significant or cumulative effect
upon, the resource area values specified in FWR 10.37(1). These presumptions are
rebuttable and may be overcome only upon a clear showing that said area does not
play a role in the protection of said resource area values. In the event that the
presumptions are deemed to have been overcome, the Commission shall make a
written determination to this effect, setting forth the grounds.

(4) General Performance Standards

When a bank of a salt pond is determined to be significant to fisheries or wildlife habitat,
water pollution control, erosion and sediment control, shellfish, aesthetics, flood control
or storm damage prevention, FWR 10.37(5) through (8) shall apply.

(5) In addition to the provisions of FWR 10.37(6) through (9), if the bank of a salt pond is
also a coastal bank, the project must also comply with the provisions of FWR 10.30.

(6) In addition to the provisions of FWR 10.37(5) and (7) through (9), if the bank of a salt
pond is also a coastal beach, the project must also comply with the provisions of FWR
10.27.

(7) Any proposed work on a bank of a salt pond shall not impair the following:

(a) the physical stability of the bank;

(b) the water carrying capacity of the existing channel within the bank;

(c) ground water and surface water quality;

(d) the capacity of the bank to provide breeding habitat, escape cover and food for
fisheries;

(e) the capacity of the bank to provide important wildlife habitat functions. A project or
projects on a single lot, for which a Permit Application(s) is filed on or after (effective
date), that (cumulatively) alter(s) up to 25 feet of the length of the bank found to be
significant to the protection of wildlife habitat, shall not be deemed to impair its capacity
to provide important wildlife habitat functions. Additional alterations beyond the above
threshold may be permitted if they will have no adverse effects on wildlife habitat.

(8) Notwithstanding the provisions of FWR 10.37(4) though (7), no project may be
permitted which will have any adverse effect on habitat sites of rare species.

FWR 10.38 Land Subject to Coastal Storm Flowage (27)

(1) Introduction

Land Subject to Coastal Storm Flowage is significant to storm damage prevention and
flood control. Land Subject to Coastal Storm Flowage is also likely to be significant to
wildlife habitat, recreation, aesthetics, erosion and sediment control and water pollution
control.
Storm Damage Prevention, Flood Control & Erosion and Sediment Control:

Velocity zones (V-zones) and AO-zones of Land Subject to Coastal Storm Flowage (V-
zones especially so) are areas which are subject to hazardous flooding, wave impact,
and, in some cases, significant rates of erosion as a result of storm wave impact and
scour. V- and AO-zones in coastal areas are generally subject to repeated storm
damage which can result in loss of life and property, increasing public expenditures for
storm recovery activities, historic taxpayer subsidies for flood insurance and disaster
relief, and increased risks for personnel involved in emergency relief programs.
Alteration of land

10.38: continued

surfaces in A-zones could change drainage characteristics that could cause increased
flood damage on adjacent properties.

A number of complex and inter-related factors determine the wave height and the
landward extent of wave run-up in V- and AO-zones, including shoreline orientation,
nearshore/off shore bathymetry, onshore topography, wave fetch, storm frequency and
magnitude, and the presence of coastal engineering structures. The topography, soil
characteristics (e.g. composition, size, density,- & shape of soil material), vegetation,
erodibility and permeability of the land surface within V- and AO-zones are critical
characteristics which determine how effective an area is in dissipating wave energy and
in protecting areas within and landward of these zones from storm damage and
flooding. The more gentle and permeable a seaward-sloping land surface is, the more
effective that land surface is at reducing the height and velocity of incoming storm
waves. Wave energy may be expended in eroding and transporting materials
comprising the land surface within the V- and AO-zones, as well as by percolation or the
downward movement of the stormwater through more permeable land surfaces, thereby
lessening the effects of backrest, scour and erosion.

Development in V- and AO-zones poses environmental problems since construction
and development activities can impair or destroy those characteristics cited above
which are critical to the stated resource area values.

Dredging or the removal of materials within V- and AO-zones acts to increase the
landward velocity and height of storm waves, thereby allowing storm waves to break
further inland and to impact upland and wetland resource areas which might not
otherwise be impacted. Filling and the placement of solid fill structures within V- and
AO-zones may cause the refraction, diffraction and/or reflection of waves, thereby
forcing wave energy onto adjacent properties, natural resources, and public or private
ways potentially resulting in otherwise avoidable storm damage. When struck with storm
waves, solid structures within V- and AO-zones also may increase localized rates of
erosion and scour.
In some cases, the placement of fill in hydraulically constricted portions of the coastal
floodplain may increase flood levels in conjunction with heavy rainfall events. The
placement of fill in AH-zones, where ponding occurs generally as a result of overwash in
coastal floodplains, may increase flood levels on the subject and adjacent properties
above pre-fill flood levels.

Relative Sea Level Rise Considerations:

Those portions of coastal floodplains which are immediately landward of salt marshes,
coastal beaches, barrier beaches, coastal dunes or coastal banks require special
protection. These areas are likely to be in a state of transition as the entire complex of
coastal,wetland resources gradually moves landward because of the fact that, "for the
past thousands of years, relative sea level has been rising in Massachusetts, and it is
still rising", (Smith, Clayton, Mayo and Giese, 1978), resulting in inundation of more
landward area. As sea level rises, the shoreline may retreat and areas are successively
inundated more frequently by storm and tidal activity. Activities carried out within these
`special transitional areas' of coastal floodplains may interfere with the natural landward
migration of the adjacent coastal resource areas. Therefore, maintaining these special
transitional areas in their natural state is necessary to protect the interests of other
wetland resources.

Historical sea level measurements indicate that relative sea level in Massachusetts is
rising at approximately 1 foot per 100 years. In FEMA designated A-zones, where
stillwater flooding predominates, the increased flood elevations are proportional to that
increase in the current relative sea level rise rate in Massachusetts. However, in FEMA
designated V-zones, the increased flood elevations will exceed that of a proportional
increase in sea level rise.

Therefore,, buildings and other structures should be designed to incorporate a relative
sea level rise of at least 1 foot per 100 years in A-zones and at least 2 feet per 100
years in V-zones.

(2) Definitions, Boundaries, and Critical Characteristics

(a) Definitions

1. Land Subject to Coastal Storm Flowage

Land Subject to Coastal Storm Flowage means land subject to any inundation caused
by coastal storms up to and including that resulting in a 100 year flood, surge of record,
or flood of record, whichever is greater. One hundred year flood (or base flood as it is
also referred to) means the flood having a one percent chance of being equaled or
exceeded in any given year.)

10.38: continued
2. Velocity Zones (including V-, VE-, & Vi-30)

Velocity Zones are those portions of Land Subject to Coastal Storm Flowage which are
coastal high hazard areas or areas of special flood hazard extending from the inland
limit within the 100 year floodplain seaward supporting waves greater than three feet in
height.

3. AO-Zones

AO-zones are those portions of Land Subject to Coastal Storm Flowage which are
subject to inundation by moving water (usually sheet flow on sloping terrain) where
average depths are between one and three feet. In Massachusetts, coastal AO zones
are commonly associated with overwash and generally border on the landward side of
V-zones.

4. A-Zone (including A-, AE-, Al-30, & A99)

A-zones are those portions of Land Subject to Coastal Storm Flowage which are subject
to inundation by types of 100 year flooding where Stillwater flooding predominates.

5. AH-Zone

AH-zones are those portions of Land Subject to Coastal Storm Flowage which are
subject to shallow flooding, usually ponding resulting from overwash, where average
water depths are between one and three feet.

6. Overwash

That portion of storm wave uprush that carries over the crest of a berm, dune, or man-
made structure, oftentimes depositing sediment or other storm laden material.

(b) Boundary & Boundary Modification Procedure

1. The boundaries of the V-, AO- and AH-zones within Land Subject to Coastal Storm
Flowage shall be determined by reference to the most recently available flood data
prepared for the Town of Falmouth under the National Flood Insurance Program. The
landward boundaries of the AO- and AH-zones shown on the Flood Insurance Rate
Map (FIRM) for the community shall be presumed accurate

2. The landward boundary of the A-zone within Land Subject to Coastal Storm Flowage
shall be determined by reference to base flood elevation on the most recently available
flood data prepared for the Town of Falmouth under the National Flood Insurance
Program. The boundaries determined by the base flood elevation and a topographical
plan of the parcel performed by a registered engineer or other professional competent in
such matters and shall be presumed accurate.
3. The landward boundaries of the V-zones shall be presumed to be twenty-five feet (25
ft.) landward of the boundaries shown on the Flood Insurance Rate Map (FIRM).

4. The landward boundary of the 10 year floodplain is the estimated maximum lateral
extent of the flood water which will theoretically result from the statistical 10 year storm.
Said boundary shall be determined utilizing the 10 year Stillwater elevation as published
in the community Flood Insurance Study.

5. Where NFIP flood data are unavailable, the boundary of any zone within Land
Subject to Coastal Storm Flowage shall be the maximum lateral extent of flood water
typical of that zone which has been observed or recorded.

6. In the event of a floodplain boundary conflict, the Commission may require the
applicant to determine the boundary by engineering calculations which shall be:

a. based upon the 100-year Stillwater flood elevation published in the effective Flood
Insurance Study for the community for the affected shoreline reach or a revised 100
year Stillwater flood elevation calculated to account for hydrologic changes occurring
subsequent to the effective date of the community Flood Insurance Study;

b. based upon the appropriate wave height or wave run-up methodology for the affected
shoreline reach as set forth in the FEMA Publication, Guidelines and Specifications for
Wave Envelope Determination and V-Zone Mapping, FEMA, 1989; and

c. prepared and certified by a registered professional engineer.

7. Notwithstanding FWR 10.38(2)(b)6.a. though c., where a V-zone has been depicted
on the latest Federal Insurance Rate Map on a barrier beach with a frontal dune
reservoir less than 540 square feet (as explained in the National Flood Insurance
Program and Related Regulations [44 Code of Federal Regulations, Chapter 1, Section
65.11]), the V-zone shall be remapped pursuant to the provisions of FWR
10.38(2)(b)4.b. and c. (see illustration)



(c) Critical Characteristics

1. The topography, soil characteristics (i.e. composition, size, shape & density of material),
vegetation, erodibility, and permeability allow for the dissipation of storm wave energy and,
therefore, are the physical characteristics of Land Subject to Coastal Storm Flowage which are
critical to the protection of the statutory interests of flood control and storm damage prevention. In
addition, for areas in AH-zones that are subject to ponding or A-zones that are hydraulically
constricted areas, the ability to store a volume of flood water is a critical characteristic. Hydraulically
constricted A zones are those in which the base flood elevation is lower on the landward side of the
constriction.
2. In addition to the above cited critical characteristics, the proximity of floodplain areas to water
bodies and other wetland resources, makes them critical to water pollution control of these abutting
resource areas.

3. In order to protect existing coastal or freshwater wetland resource area values, the geographic
extent/area of the resource must be maintained. Thus, in order to maintain the ability of a resource
area to migrate landward in response to relative sea level rise without loss of area the critical
characteristics of Land Subject to Coastal Storm Flowage are topography; frequency, depth and
duration of inundation; and proximity to a coastal or freshwater wetland.

(3) Presumptions

(a) Where a project involves removing, dredging, filling, building upon, degrading or otherwise
altering of Land Subject to Coastal Storm Flowage, the Commission shall presume that said area is
significant to, and the proposed activity will have a significant or cumulative effect upon, the resource
area values Specified in FWR 10.38(1).

(b) The following activities proposed within Velocity zones of Land Subject to Coastal Storm Flowage
shall be presumed to have a significant or cumulative adverse affect on the protected resource area
values;

Construction of:

1. new structures, including buildings, sheds and garages, and additions and substantial
improvements to existing structures;

2. new parallel/shear walls or vertical walls for existing structures;

3. impermeable paving for new roads, driveways and parking lots;

4. new or proposed expansions of coastal engineering structures;

5. changes in grade including new mounded septic systems.

(c) The following activities proposed within the AO-zone of a beach, dune or barrier beach of Land
Subject to Coastal Storm flowage are likely to have a significant or cumulative adverse effect on the
protected resource area values:

Construction of:

1. new structures, including buildings, sheds and garages, and additions and substantial
improvements to existing structures supported on a solid foundation or proposed below the base
flood elevation;

2. new parallel walls/shear walls, vertical walls or breakaway walls, foundation piers, grade beams,
or foundation/structural slabs for existing structures;

3. new or proposed expansions of roads,, driveways or parking lots, or impermeable paving for
existing unpaved roads, driveways or parking lots;

10.38: continued
4. new or proposed expansions of coastal engineering structures;

5. new septic systems.

(d) These presumptions are rebuttable and may be overcome only upon a clear showing that said
area does not play a role in the protection of said resource area values. In the event that the
presumptions are deemed to have been overcome, the Commission shall make a written
determination to this effect, setting forth the grounds.

(4) General Performance Standards

(a) When the Commission determines that Land Subject to Coastal Storm Flowage (A, AO, AH
and/or V zones) overlays other resource areas listed in FWR 10.00, the applicable performance
standards for each resource area shall be independently and collectively applied and the project
shall be appropriately conditioned to protect all stated resource area values.

(b) When Land Subject to Coastal Storm Flowage (A, AO, AH and/or V-zones) is significant to the
resource area values of flood control and storm damage prevention, the following performance
standards shall apply:

1. Any activity shall not have an adverse effect by increasing the elevation or velocity of flood waters
or by increasing flows due to a change in drainage or flowage characteristics (e.g. change in
direction) on the subject site, adjacent properties, or any public or private way.

2. a. Relative sea level rise and the landward migration of resource areas in response to relative sea
level rise shall be incorporated into the design and construction of structures and other activities
proposed in Land Subject to Coastal Storm Flowage.


b. At a minimum, for activities proposed in A-zones, the historic rate of relative sea level rise in
Massachusetts of 1 foot per 100 years shall be incorporated into the project design and construction.

c. At a minimum, for activities proposed in the V-zone, a two foot elevation per 100 years shall be
incorporated into the project design and construction.

d. Any activity within the 10 year floodplain of Land Subject to Coastal Storm Flowage shall not have
an adverse effect by impeding the landward migration of other resource areas within this area of the
floodplain.

(c) When the AH-zone (or an A-zone which is hydraulically constricted) is significant to the interests
of flood control or storm damage prevention, the following additional performance standards shall
apply:

1. A proposed activity. shall not result in flood damage due to filling which causes lateral
displacement of flood waters that, in the judgement of the Commission, would otherwise be confined
within said area; unless,

2. Compensatory storage is provided for all flood storage volume that will be lost as the result of a
proposed project within this area when, in the judgement of the Commission, said loss will cause an
increase or contribute incrementally to an increase in the horizontal extent and level of flood waters.

Compensatory flood storage shall mean a volume not previously used for flood storage and shall be
incrementally equal to the theoretical volume of flood water at each elevation, up to and including the
100 year flood elevation, which would be displaced by the proposed activity. Compensatory flood
storage shall be provided within the same general area as the lost area and must maintain or create
an unrestricted hydraulic connection within said area.

(d) A proposed project within a Velocity-zone shall not destroy or otherwise impair the function of
any portion of said landform and/or shall not have an adverse effect on adjacent wetland resource
areas. Activities and their ancillary uses in Velocity zones which result in alterations to vegetative
cover, interruptions in the supply of sediment to other wetland resources, and/or changes to the form
or volume of a dune or beach will have an adverse effect on said landform's ability to provide storm
damage prevention and flood control and are, therefore, prohibited. These activities include, but are
not limited to:

Construction of:

1. new structures., including buildings, sheds and garages, and additions or substantial
improvements to existing

structures;

2. foundations other than open pilings or columns;

3. new or proposed expansions of roads, driveways or parking lots, or impermeable paving for
existing unpaved roads,

driveways or parking lots;

4. new or proposed expansions of coastal engineering structures;

5. new septic systems.

(e) Notwithstanding the provisions of FWR 10.38(4)(a) through (d), the Commission may permit the
following activities provided that the applicant demonstrates, to the satisfaction of the Commission,
that best available measures are utilized to minimize adverse effects on all critical characteristics of
Land Subject to Coastal Storm Flowage, and provided that all other

10.38: continued

performance standards in FWR are met:

1. Beach, dune and bank nourishment and restoration projects, including fencing and other devices
designed to increase dune development and plantings compatible with natural vegetative cover;

2. Boat launching facilities used in the service of the public and navigational aids;

3. Improvements necessary to maintain the structural integrity/stability of existing coastal
engineering structures;

4. A project which will restore, rehabilitate or create a saltmarsh or freshwater wetland;

5. Projects that are approved, in writing, or conducted by the Division of Marine Fisheries that are
specifically intended to increase the productivity of land containing shellfish, or to maintain or
enhance fisheries;
6. Projects that are approved, in writing, or conducted by the Division of Fisheries and Wildlife that
are specifically intended to enhance or increase wildlife habitat.

(f) Notwithstanding the provisions of FWR 10.38(4)(a) through (e), the Commission may approve
small additions to an existing structure provided:

1. All other provisions of FWR are met;

2. The structure is not in any resource area other than Land Subject to Coasta l Storm Flowage;

3. The structure is not in a area subject to FWR 10.18 Resource Area Buffer; and

4. The cumulative size of addition(s) to the structure since (effective date) does not exceed 200
square feet.

(g) Notwithstanding the provisions of FWR 10.38(4)(a) through (f), no project may be permitted
which will have any adverse effect on habitat sites of rare species.

FWR 10.39: Land or Waters within Black Beach/Sippewisset Marsh District of Critical Planning
Concern (28)

(1) Introduction. The land and waters within the Black Beach/Sippewisset Marsh District of Critical
Planning Concern (the District) are likely to be significant to the prevention of flood damage by
limiting of development in flood hazard areas, prevention of damage to structures and natural
resources as a result of erosion, improvement of water quality, protection and enhancement of
existing vegetative cover in order to maintain water quality and wildlife habitat, protection of wildlife,
waterfowl, and plant habitat and the maintenance of existing populations and species diversity,
prevention of loss or degradation of critical wildlife and plant habitat, prevention of new stormwater
runoff discharges and the improvement of existing stormwater runoff discharges, protection of
coastal ecosystems which support the continued viability of harvestable shellfish and finfish habitat,
public access to water and land, improvement of groundwater recharge, and the minimization of the
impact of new development, reconstruction and/or expansion on the resource area values listed
above.

The land in this resource area may also be significant to protection of public and private water
supply, protection of ground water

supply, flood control, storm damage prevention, prevention of pollution, protection of land containing
shellfish, protection of fisheries, protection of wildlife habitat, protection of aesthetics, prevention of
erosion, protection of recreation, depending on what other resource area(s) may be present.

This resource area contains nationally significant ecological and natural resources including
freshwater and tidal wetlands,

waterfowl, shorebird and migratory bird habitat, rare species, shellfish and finfish, mud and sand
flats, and a barrier beach/dune/marsh system which possess recreational, scientific, and educational
values.

10.39: continued

In recognition of the presence of these resources, the federal Fish and Wildlife Service completed an
Environmental Assessment
(1993) which proposed federal designation of the Sippewisset Marshes National Wildlife Refuge,
encompassing a portion of the District. The District is also located on Buzzards Bay which has been
designated by the Environmental Protection Agency as an estuary of national significance leading to
a program to enhance water quality and natural resources through the Buzzards Bay Project
National Estuary Program.

The marshes, Fresh Pond, and two other small ponds west of Great Sippewisset Marsh (the Marsh)
are designated by the Association for the Preservation of Cape Cod as critical habitat due to their
many functional values. In addition, the Sippewisset Marshes have been identified by the Northeast
Coastal Areas Study as one of seven sites from the Cape and Islands Region that provide significant
coastal habitat. According to the Fish and Wildlife Service, five coastal habitat types and
approximately 40 species of special emphasis or management concern are supported by the
Sippewisset Marshes ecosystem. These marshes provide breeding/spawning, nursery,
feeding/staging, wintering and migratory habitat of importance to several species of regional or
national significance.

The area is home to several state-listed rare and endangered species. The Massachusetts Natural
Heritage and Endangered Species program has designated and mapped the area as a "high priority
site of rare species habitat and exemplary natural community" and noted the presence of two state
listed species within the proposed District: the federally listed piping plover (Charadrius melodus)
Arethusa (Arethusa bulbosa) -- a perennial orchid- and New England Blazing Star (Liatris scariosa v.
novae-angliae). The Fish and Wildlife Service identify the presence of a number of state and
federally listed species within the area including Least Terns (Sterna albifrons), Northern
Diamondback Terrapin (Malaclymys terrapin), Saltpond Grass (Diplachne maritima), Bushy
Rockrose (Helianthemum dumosum).

In addition to rare species present within the District, the Fish and Wildlife Service has conducted an
extensive survey of plant and wildlife habitat found within the Sippewisset Marshes area. Their
analysis notes that the area provides feeding and overwintering habitat for American Black Duck
(Anas Rubripes), Canada Geese (Branta canadensis), forage for terns, herons, egrets, and bitterns,
nesting habitat for osprey and various songbirds, and migratory bird habitat for neotropical migrating
birds. The marshes and associated creeks and shallows provide nursery areas for commercially
important fish species including winter flounder, bluefish, striped bass and tautog. Menhaden and
American sandlance use the marsh as a nursery area and a variety of smaller resident species
provide a food source for larger sport and commercial fish species. Soft shell (Mya arenaria) and
hard shell clams (Mercenaria mercenaria) occur on the mud flats and along the outer beach, and the
area has supported occasional bay scallop (Argopecten irradians) fisheries providing a potential
commercial and recreational shellfishing resource. The first shellfish closures of the area due to
bacteriological contamination occurred in approximately 1983. The area is currently classified as
"seasonally approved" and shellfishing is permitted during winter months.

It is important to maintain the features of the beach which make it critical habitat, and a Natural
Heritage high priority site for these species, as well as essential habitat for all species that depend
upon the marsh/barrier beach complex. However, the water quality and ecological values of the
marsh/beach complex are threatened by increasing development and current management
practices.

According to the Massachusetts Division of Marine Fisheries Sanitary Survey Report (1993)
stormwater runoff, coupled with poor flushing, is one of the primary sources of shellfish
contamination problems in the District. Site preparation and development activities including grading,
clearing, alteration of topography and the construction of structures, roads and driveways may alter
drainage patterns and introduce pollutants and sediment to the Marsh through runoff. Grading and
filling activities increase the compaction of subsurface soils, decrease soil fertility and change
permeability and drainage characteristics. Grading of areas

contributing direct discharge to the marsh also causes increased turbidity, decreased pH, changes in
salinity and reduced dissolved oxygen levels that will adversely affect fish and invertebrate
populations. The Massachusetts Highway Department (MHD) storm drainage system on Route 28A
has two drainage pipes that lead directly to the Marsh. Stormwater runoff has been indicated to be a
primary source of fecal coliform contamination in the Marsh -- an important indicator of shellfish
quality according to the 1993 Sanitary Survey. High fecal coliform counts have been particularly
prevalent during the summer months.

Runoff from developed upland areas other than roads can also contribute significant amounts of
contaminants to the Marsh. Runoff from upland areas can contain fertilizers and pesticides from
lawns and contaminants from precipitation on roofs and

10.39: continued

driveways. Natural buffer strips can significantly reduce contaminant loads from developed areas.
The efficiency of buffer strips depend on their width, slope and type and extent of vegetation.

Buffer strips are also important for the role that they play in protecting and maintaining wildlife
habitat. According to the Fish and Wildlife Service, the alteration or elimination of surrounding upland
and backdune habitat, and associated transition zones has a pronounced adverse impact on
resident and migratory wildlife. Additional development within the District is likely to result in the
removal of vegetation, particularly the wooded buffer areas bordering the Marsh and associated
wetlands. This will result in alteration of vegetative structure, species composition and distribution
patterns, and habitat fragmentation contributing to the direct loss of wildlife habitat and biodiversity.

According to the Fish and Wildlife Service, disturbance of piping plover and least tern nesting areas
by human and domestic animal incursions is a serious problem throughout the region, and has led to
the abandonment of many former piping plover and tern colonies. Human/animal disturbances are
likely to have an adverse impact on many other species as well.

The District contains two barrier spits. These are known as Black Beach and the Saconessett Hills
Barrier Spit. They are designated as Fm-31 and Fm-30 respectively by the Massachusetts Coastal
Zone Management's 1982 Barrier Beach Inventory Project. Black Beach is also a federally
designated unit of the Federal Coastal Barrier Resource System.

The barrier spits protect the Marsh, shoreline areas, and upland areas behind the Marsh by serving
as a buffer to storm waves and storm surges. It is a dynamic area where the beach and dunes are
constantly changing as a result of wind and wave action, influenced by natural and human activities
as well as relative sea level rise. Like most barrier beaches, Black Beach is attempting to move
landward, as indicated by visible storm overwash fans deposited in the marsh behind the dunes.
This landward migration is part of the natural cycle of barrier beaches and the process of overwash
plays an important role in the dissipation of wave energy and protection of upland areas behind the
barrier beach. As storm waves erode the seaward side of the barrier beach, overwashed material is
carried into the marsh and provides a substrate for the formation of new dune areas, shifting the
barrier beach landward.

On an undeveloped barrier beach, this process can occur unimpeded, however, development on
barrier beaches including buildings, septic systems, roadways, seawalls, revetments, and groins
alters this natural cycle. Such structures prevent overwash and interfere with beachgrass and dune
growth, contributing to erosion in surrounding areas. These disturbances are damaging to the
stability and function of the system as a whole and over the long term will interfere with the landward
migration of the barrier beach and make the beach increasingly susceptible to breaching. According
to "Guidelines for Barrier Beach Management in Massachusetts (1994), "once the natural beach and
dune rebuilding processes are interrupted, the barrier beach defenses against future storms are
diminished. In an attempt to "stabilize" the barrier beach through armoring, such as building a
seawall or revetment, the beach areas adjacent to and in front of the armoring erode or scour at an
accelerated rate and may entirely disappear over time. The Guidelines recommend that "whenever
possible, coastal banks serving as sediment sources for adjacent barrier beaches remain or be
returned to an undeveloped, unarmored state in order to allow for healthy beaches and dunes." The
same is true for coastal dunes that function in the same manner.

Existing houses, the marsh, adjacent shoreline and upland areas will become vulnerable to direct
wave attack, in the event of a breach in Black Beach. Protecting the integrity and function of the
barrier beach system requires attention to three components -- ensuring sediment supply to the
area, maintaining vegetative cover and maintaining the beach elevation.

Existing and future development will continue to adversely affect the natural process of erosion and
migration on the barrier

beach. Expansion of existing houses and increased intensity of use of a property on the primary
dune or barrier beach may weaken the integrity and elevation of the barrier itself. Septic systems
and cesspools within this area may result in the introduction of bacteria and viruses to the Marsh due
to shallow depth to groundwater and periodic flooding. In the V-zone, during catastrophic or extreme
storms the septic system effluent can be released into the water. Development on the beach also
results in the removal of stabilizing vegetation. The continued reliance on revetments, seawalls and
jetties to protect property on the beach, will further starve downdrift areas of sediment and further
weaken the barrier beach.

In addition, most of the District is within FEMA V and A flood zones. Approximately 50% of the
District is in the mapped

10.39: continued

FEMA Velocity zone. This is an area which is subject to hazardous flooding, wave impact, and
erosion as a result of storm wave impact and scour. Development in these areas is at extreme risk --
and can pose a hazard to nearby areas. For example, dredging or removal of materials within V-
zones acts to increase the landward velocity and height of storm waves, thereby allowing them to
break further inland and to impact adjacent upland and wetland areas which might not otherwise be
impacted. Filling and the placement of solid structures within V-zones may cause the refraction,
diffraction and/or reflection of waves, thereby forcing wave energy onto adjacent properties, natural
resources, and public or private ways potentially resulting in otherwise avoidable storm damage
and/or increased rates of erosion and scour. (U.S. Army Corps of Engineers, 1984)

Most of the remainder of the District is located in the FEMA A-zone. Alteration of land surfaces in
FEMA A-zones will change drainage characteristics that can result in increased flood damage on
adjacent properties. In addition, flooding within these areas leads to property damage. Loss of
property resulting from wave and wind damage in V-zones, as well as from stillwater flooding within
A-zones, is responsible for millions of dollars in flood insurance claims and taxpayer costs in
Massachusetts. As a result of just three storms in 1991-1992, the repair of public roads, seawalls,
sewer and water lines, buildings and other public facilities in Massachusetts cost to tax-payers over
$50 million (in addition to monies paid from the National Flood Insurance Program).
The area within the District received a significant amount of storm damage as a result of Hurricane
Bob. In addition, the elevation of the dunes was lowered due to lack of sediment supply as a result of
revetments and groins along the coastline and redistribution of sand from Hurricane Bob, leaving the
area vulnerable to future storms. Future hurricanes will likely affect this area in a similar manner.

Finally, storm damage in the future is likely to be even more devastating as a result of relative sea
level rise. Historical sea level measurements indicate that relative sea level is rising at approximately
1 foot very 100 years (Giese, et al., 1987). As a result, the Massachusetts Coastal Zone
Management Program and the Barnstable County Regional Policy Plan both recommend that
buildings, Septic systems, and other structures be designed to accommodate a relative sea level rise
of at least 1 foot within FEMA A- and V-zones. More recent research, indicates that a 2 foot increase
in elevation within V-zones is likely to be necessary due to increases in wave height within these
areas. Research by the Cape Cod Commission on naturally vegetated areas adjacent to wetlands
and waterbodies notes the importance of maintaining fringing upland areas around these resources
in order to allow landward migration of both inland and coastal wetlands in response to sea level
rise. If these areas are not protected, wetlands are likely to become flooded and lost as sea level
rises.

Much of the available knowledge concerning the function and human value of the New England
saltmarsh, including the information summarized in this preamble, has been learned from scientific
research conducted in the Great Sippewisset Marsh. During the past two or three decades, over 100
scientific reports and theses have been published on all aspects of saltmarsh ecology, based on
research at the Great Sippewisset Marsh. The accumulated scientific data is without equal in the
world and the protection of this natural system will allow this important research work to continue to
build upon past efforts.

The Black Beach/ Marsh area described above qualified under Section 10(a) of the Cape Cod
Commission Act for designation as a District due to the following factors:

- the presence of significant natural, coastal, and scientific resources; and

- the presence of substantial areas of sensitive ecological conditions which render the area
unsuitable for development.

As proposed by the Town, and in accordance with the District of Critical Planning Concern Guidance
Document, dated December 1990, this District was designated as a Wildlife, Natural, Scientific and
Ecological District; and a Hazard District. The Ecological District contains important and identifiable
wildlife, natural, scientific and ecological resources including but not limited to, plant,

animal and marine life and their habitats, as well as unusual geological features. The District is
highly susceptible to hazards due to natural or man-made conditions including but not limited to,
marginal soil, or topographic conditions which render it unsuitable for intense development, flooding,
waste treatment, groundwater, erosion, construction problems, salt water intrusion, and pollution.

(2) Definition, and Boundary

(a) Land or Waters Within the Black Beach/Great Sippewisset Marsh District of Critical Planning
Concern includes all

areas within the Black Beach/Great Sippewisset Marsh District of Critical Planning Concern that was
created by Barnstable

10.39: continued
County Ordinance 96-1.

(b) Unless otherwise stated or otherwise specified in the Falmouth Zoning Code, the definitions in
Barnstable County Ordinance 96-1 shall apply to FWR 10.39.

(c) Total cumulative resource area impacts means all areas of a lot and/or parcel of land not in a
naturally vegetated condition and includes but not is limited to: rooftops, driveways, parking areas,
gardens, lawns, paths, walkways, docks, and piers.

(d) Naturally vegetated condition means an area on a lot or parcel of land that:

1. is left in a natural, undisturbed vegetative state;

2. has existed in a primarily natural, undisturbed state, but has been enhanced with indigenous
plantings conducive to improved wildlife habitat according to a plan approved by the conservation
commission; or

3. has been disturbed; but is revegetated with indigenous plantings that will return the land to its
predisturbance condition according to a plan approved by the conservation commission.

(e) The boundary of the Black Beach/Great Sippewisset Marsh District of Critical Planning Concern
is depicted on the attached map "Black Beach/Great Sippewisset Salt Marsh DCPC."

(3) Presumption.

(a) Where a project involves removing, filling, dredging, building upon or otherwise altering of land or
waters within the Black Beach/Great Sippewisset Marsh District of Critical Planning Concern, the
Commission shall presume that such area is significant the resource area values specified in FWR
10.39(1). This presumption is rebuttable and may be overcome upon a clear showing that said land
does not play a role in the protection of said resource area values. In the event that the presumption
is deemed to have been overcome, the Commission shall make a written determination to this effect,
setting forth the grounds.

(b) In the Black Beach/Great Sippewisset Marsh District of Critical Planning Concern, the following
activities shall be presumed to be significant to some or all of the resource area values specified in
FWR 10.39(1). This presumption is rebuttable and may be overcome upon a clear showing that said
land does not play a role in the protection of said resource area values. In the event that the
presumption is deemed to have been overcome, the Commission shall make a written determination
to this effect, setting forth the grounds.

1. The use of septic systems is significant to improvement of water quality and the protection of
coastal ecosystems which support the continued viability of harvestable shellfish and finfish habitat;

2. The construction, use, and maintenance of docks and piers is significant to impacts on prevention
of flood damage by limiting of development in flood hazard areas, prevention of damage to
structures and natural resources as a result of erosion, protection and enhancement of existing
vegetative cover in order to maintain water quality and wildlife habitat, protection of wildlife,
waterfowl, and plant habitat and the maintenance of existing populations and species diversity,
prevention of loss or degradation of critical wildlife and plant habitat, protection of coastal
ecosystems which support the continued viability of harvestable shellfish and finfish habitat, public
access to water and land, and the minimization of the impact of new development, reconstruction
and/or expansion on the resource area values listed above.
(c) In the Black Beach/Great Sippewisset Marsh District of Critical Planning Concern, the following
activities shall be presumed to adversely affect some or all of the resource area values specified in
FWR 10.39(1). This presumption is rebuttable and may be overcome upon a clear showing that said
land does not play a role in the protection of said resource area values. In the event that the
presumption is deemed to have been overcome, the conservation commission shall make a written
determination to this effect, setting forth the grounds.

1. any proposed septic system or repair to an existing septic system proposed that is not in
compliance with the setback requirements of FWR 10.03(3)(c)

2. existing stormwater discharges, where no mitigation is provided pursuant to FWR 10.39(25);

3. existing docks and piers; and

4. land not in a naturally vegetated condition.

(4) General Performance Standards. Work in the Black Beach/Great Sippewisset Marsh District of
Critical Planning Concern shall meet the performance standards for any other resource areas within
which work is proposed and, where the presumption set forth in FWR 10.39(3) is not overcome,
FWR 10.39 (5) through (29) shall apply.

(5) When the Commission determines that Land or Waters within Black Beach/Sippewisset Marsh
District of Critical Planning

10.39: continued

Concern overlays other resource areas listed in FWR 10.21 through 10.60, the applicable
performance standards for each resource area shall be independently and collectively applied and
the project shall be appropriately conditioned to protect all stated resource area values.

(6) (a) Work on an undeveloped lot shall minimize the total cumulative resource area impacts
pursuant to FWR 10.05(7)(f)1..

(b) Work on a developed lot where the existing total cumulative resource area impacts are less than
that specified in FWR 10.05(7)(f)1., shall be designed so that the total cumulative resource area
impacts after the proposed project is completed, do not exceed those specified in FWR 10.05(7)(f)1.

(c) Work on a developed lot where the existing total cumulative resource area impacts are greater
than FWR 10.05(7)(f)1., may be permitted provided that the total cumulative resource area impacts
after the proposed project is completed, have been reduced.

1. The conservation commission shall presume that an applicant has satisfied the requirements of
FWR 10.39(6)(c) if 10% of the land area in excess of the amount specified in FWR 10.05(7)(f)1. is
returned to a natural vegetated condition. The determination of which area of a lot is returned to a
naturally vegetated condition pursuant to this presumption shall be at the discretion of the applicant.
(29)

(7) Notwithstanding the provisions of FWR 10.39(6), no project shall remove, fill, dredge, build upon,
degrade, or otherwise alter land that is in a naturally vegetated condition and acts as a buffer to the
following resource areas: land under the ocean; land under estuaries; salt marsh; land under a salt
pond; land containing species that are endangered, rare, threatened, or of special concern;
freshwater wetlands; land under waterbodies; or vernal pool. A buffer width of at least 200 and no
more than 300 feet is required unless otherwise specified in FWR 10.39. The Commission shall
determine the exact buffer width based on the following factors:

(a) existing wetland functions, values and sensitivity to disturbance;

(b) buffer characteristics;

(c) land use impacts; and

(d) buffer functions.

(8) Notwithstanding the provision of FWR 10.39(7), the distances specified in FWR 10.39(7) may be
modified in a manner consistent with the provisions of FWR 10.18, but in no case shall the buffer
distance be less than one hundred (100) feet.

(9) Notwithstanding the provision of FWR 10.39(7), the Commission may permit the following in the
area specified in FWR 10.39(7) and (8):

(a) activities having minimal adverse impacts on buffers and no adverse impacts on the resource
area for which the buffer is provided. These activities may include low intensity, passive recreational
activities such as pervious trails, nonpermanent wildlife watching blinds, short term scientific or
educational activities, and sports fishing or hunting.

(10) A building setback line of 15 feet is required from the edge of any land in its naturally vegetated
condition pursuant to FWR

10.39(7). Minor structural intrusions into the area of the building setback may be allowed if the
conservation commission determines that such intrusions will not negatively impact the resource
area values specified in FWR 10.39(1). The setback shall be identified on a site plan which is filed as
an attachment to the Order of Conditions.

(11) No new, or expansion and/or enlargement of an existing, bulkhead, revetment, seawall, or other
coastal engineering structure shall be permitted on a coastal bank.

(12) Notwithstanding the provisions of FWR 10.39(6) through (11), no project shall be permitted
which will have any adverse

10.39: continued

effect on land under the ocean, or if proposed on land under a salt pond, on lands within 100 feet of
the mean high water line of a salt pond, or on land under a body of water adjacent to a salt pond,
shall be permitted which will have any adverse effect on the marine fisheries or wildlife habitat of the
salt pond, or ability of the public to access the land and waters of the salt pond.

(13) Notwithstanding the provisions of FWR 10.39(6) through (12), the Commission may issue a
permit for limited dredging for the purpose of improving tidal circulation and water quality, to improve
or provide tidal flow through relict or existing tidal channels to openings through the railroad dike,

(14) Notwithstanding the provisions of FWR 10.39(6) through (12), no project, including the
reconstruction or repair of existing coastal engineering structures, shall be permitted which will have
any adverse effect on a coastal beach.
(15) Notwithstanding the provisions of FWR 10.39(6) through (14), no project, including the
reconstruction or repair of existing coastal engineering structures, shall be permitted on a coastal
dune or within 100 feet of a coastal dune which would have an adverse effect on the dune by:

(a) affecting the ability of waves to remove sand from the dune;

(b) disturbing the vegetative cover so as to destabilize the dune;

(c) causing any modification of the dune form that would increase the potential for storm or flood
damage;

(d) interfering with the landward or lateral movement of the dune;

(e) causing removal of sand from the dune artificially; or

(f) interfering with mapped or otherwise identified bird nesting habitat.

(16) Notwithstanding the provisions of FWR 10.39(15), the Commission may permit a repair or
replacement to an existing septic system on a coastal dune or within 100 feet of a coastal dune,
provided best available measures are used to minimize any adverse effect on the dune caused by:

(a) affecting the ability of waves to remove sand from the dune;

(b) disturbing the vegetative cover so as to destabilize the dune;

(c) causing any modification of the dune form that would increase the potential for storm or flood
damage;

(d) interfering with the landward or lateral movement of the dune;

(e) causing removal of sand from the dune artificially; or

(f) interfering with mapped or otherwise identified bird nesting habitat.

(17) FWR 10.39(14) and (15) shall apply to all coastal beaches and to all coastal dunes which make
up a barrier beach in the Black Beach/Great Sippewisset Marsh District of Critical Planning Concern.

(18) Notwithstanding the provisions of FWR 10.39(14) through (17), the Commission may permit a
project on a beach, dune, or barrier beach, provided:

(a) the project is a resource area restoration project consistent with the Black Beach/Great
Sippewisset Marsh District of Critical Planning Concern Management Plan approved by the Cape
Cod Commission pursuant to Barnstable County Ordinance 96-1;

(b) the project meets the other provisions of FWR 10.00; and

(c) the project meets the provisions of 310 CMR 10.00; or

(d) the project is the repair or replacement, but not the expansion and/or enlargement, of a lawfully
located structure in existence as of January 17, 1996, owned by the Town of Falmouth and used in
the service of the public.
(19) Notwithstanding the provisions of FWR 10.39(6) through (18), when a project is proposed on a
salt marsh, on lands within 100 feet of a salt marsh, or in a body of water adjacent to a salt marsh,
the project shall not destroy any portion of the salt marsh and shall not have an adverse effect on the
productivity of the salt marsh. Alterations in growth, distribution and composition of salt marsh
vegetation shall be considered in evaluating adverse effects on productivity.

(20) Notwithstanding the provisions of FWR 10.39(6) through (18), no project, except for resource
area restoration project consistent with the Black Beach/Great Sippewisset Marsh District of Critical
Planning Concern Management Plan approved by the Cape Cod Commission pursuant to
Barnstable County Ordinance 96-1, shall be permitted which will have any adverse

10.39: continued

effect on land under a water body, an inland bank, freshwater wetland, or vernal pool habitat.

(21) Notwithstanding the provisions of FWR 10.39(6) through (20), the Commission may approve the
reconstruction of roads and common drives existing as of January 17, 1996, provided such road and
common drives are constructed of crushed 3/8, 1/2, 3/4 stone, bank run gravel, or like material, and
does not contain a binder material such as asphalt, "processed stone, "stone dust," or like material,
or where a town way, private way or common drive was paved as of January 17, 1996, the
commission may approve repaving provided the width of the paved surface does not increase.

(22) No new, or replacement, or substantial repair of an existing, dock or pier shall be permitted.

(23) Consistent with FWR 10.28, and 10.38, no septic tank may be placed in ground in a dune, and
no changes in elevation may take place in the velocity zone.

(24) The design of the system for stormwater management for new projects shall be consistent with
the provisions of FWR 10.16(3) unless otherwise specified in FWR 10.39(24)(a) through (d).

(a) No increase will be allowed in the peak rate of runoff for 2, 10, 25, and 100-year 24 hour storm
events.

(b) The total volume of post-development runoff shall not exceed the pre-development runoff volume
for storms up to the two year, twenty-four hour design storm.

(c) Treatment for the first flush shall be provided to achieve 80% removal of total suspended solids,
and treatment processes to remove nitrogen at an efficiency rate of 30% or greater.

(d) No micropool extended detention basins or biofilter shall be approved.

(25) Notwithstanding the provisions of FWR 10.14(3) and 10.39(24),

(a) any project that contains 10% impervious lot coverage or less shall not be required to meet the
requirements of FWR 10.14(3) and 10.39(24), provided said impervious cover is not connected(30)
to a resource area specified in FWR 10.39(7);

(b) any redevelopment/reconstruction project that contains more than 10% impervious lot coverage,
or any impervious lot coverage, shall be required to meet the requirements of FWR 10.39(24)(b)
through (d), and shall have a non-erosive discharge for the two year storm.

(26) Notwithstanding the provisions of FWR 10.39(6) through (25), the provisions of FWR 10.39(6)
through (25) shall not apply to the routine maintenance of existing roads and driveways, provided
that the overall width of the traveled surface is not widened. Routine maintenance shall be limited to
winter sanding operations, regrading, and filling of potholes.

(27) Notwithstanding the provisions of FWR 10.39(6) through (25), no project shall be permitted
which will have any adverse effect on habitat sites of rare species.

(28) Notwithstanding the provisions of FWR 10.39(6) through (27), no project shall be permitted
which will have any adverse impact on land containing shellfish.

(29) Notwithstanding the provisions of FWR 10.39(6) through (28), the Commission may permit a
research project that requires a location in the Lands and Waters of the Black Beach/Great
Sippewisset Marsh District of Critical Planning Concern.

FWR 10. 40 Land and Water in the Waquoit Bay Area of Critical Environmental Concern.

(1) Introduction. The Land and Water in the Waquoit bay Area of Critical Environmental Concern is
likely to be significant to

10.40: continued

the following resource area values: fisheries, shellfish(31), water pollution control, storm damage
prevention, flood control,

and aesthetics.

Following an extensive nomination and evaluation process, the ACEC in Falmouth was designated
by the Secretary of Environmental Affairs on November 26, 1979.

The natural components of the Waquoit Bay ACEC include a long barrier beach system, dunes and
sandy beaches, acres of salt marsh, productive shellfish beds, a large estuary, anadromous fish
runs, floodplain, and extensive areas for boating and swimming. The estuary is habitat for upland
species and waterfowl as well as a spawning and nursery ground for many marine species. The
beaches, dunes and marshes protect adjacent upland from storm damage.

This unpolluted estuarine system supports a wide range of fin fish and shellfish species. Clean water
must be maintained to protect the fishery resource as well as the public health of recreational
boaters, fishermen and swimmers. The biological product of this estuarine system is sustained by
the contiguous salt ponds and salt marshes which contribute large quantities of nutrients, carbon
and energy to the coastal food chain. Minimum alteration of the natural features of the ACEC will
allow them to function at their natural capacity.

These undeveloped expanses also contribute to the scenic beauty enjoyed by users of the ACEC.

Both the Moonakis and Childs Rivers are sensitive to pollution due to a limited flushing capability.
Both have anadromous fish runs.

The Moonakis River's mouth is constricted by a large, shifting sand flat creating a narrow channel
approximately two feet (2') deep at MLW. This flat is a productive shellfish bed harvested year round
by commercial and recreational fishermen. There is a successful restoration program for sea run
brown trout in the headwaters and upstream reaches of the Moonakis River, where it is called the
Quashnet River.

(2) Definition, Critical Characteristics, Boundary
(a) Area of Critical Environmental Concern (ACEC) means an area which has been so designated by
the Secretary in accordance with 310 CMR 6.40 through 6.55 of the CZM Regulations.

(b) The landward extent of the ACEC is the 11-foot contour.

(3) Presumption

Where a project involves removing, dredging, filling, building upon, degrading or otherwise altering of
land or waters within the Waquoit Bay Area of Critical Environmental Concern, the conservation
commission shall presume that said area is significant to, and the proposed activity will have a
significant or cumulative effect upon, the resource area values specified in FWR 10.40(1). These
presumptions are rebuttable and may be overcome only upon a clear showing that said area does
not play a role in the protection of said resource area values. In the event that the presumptions are
deemed to have been overcome, the Commission shall make a written determination to this effect,
setting forth the grounds.

(4) General Performance Standards

Where the presumption set forth in FWR 10.40(3) has not been overcome, FWR 10.40(5) through
(8) shall apply.

(5) No project proposed in the Waquoit Bay Area of Critical Environmental Concern shall be
permitted which requires removal and/or replanting of shellfish.

10.40: continued

(6) Notwithstanding the provisions of FWR 10.55(4), any proposed work shall not destroy or
otherwise impair any portion of

.10.40: continued

a Freshwater Wetland that is within the Waquoit Bay Area of Critical Environmental Concern.

(7) Notwithstanding the provisions of FWR 10.40(4) through (6), no project may be permitted which
will have any adverse effect on habitat sites of rare species.

(NON-TEXT PAGE)



1. Additional regulations regarding Land under the Ocean in the Black Beach/Great Sippewisset
Marsh District of Critical Planning Concern are found in FWR 10.39. Additional regulations regarding
Land under the Ocean in the Waquoit Bay ACEC are found in FWR 10.40.

2. See FWR 10.16(1) for regulations regarding docks proposed in Land Under the Ocean.

3. For regulations concerning land containing shellfish, see FWR 10.34.

4. Additional regulations regarding Land under the Ocean in the Black Beach/Great Sippewisset
Marsh District of Critical Planning Concern are found in FWR 10.39. Additional regulations regarding
Land under the Ocean in the Waquoit Bay ACEC are found in FWR 10.40.
5. For regulations concerning land containing shellfish, see FWR 10.34.

6. Additional regulations regarding Coastal Beaches in the Black Beach/Great Sippewisset Marsh
District of Critical Planning Concern are found in FWR 10.39. Additional regulations regarding
Coastal beaches in the Waquoit Bay ACEC are found in FWR 10.40.

7. For regulations concerning land containing shellfish see FWR 10.34.

8. Additional regulations regarding Coastal Dunes in the Black Beach/Great Sippewisset Marsh
District of Critical Planning Concern are found in FWR 10.39. Additional regulations regarding
Coastal Dunes in the Waquoit Bay ACEC are found in FWR 10.40.

9. Additional regulations regarding barrier beaches in the Black Beach/Great Sippewisset Marsh
District of Critical Planning Concern are found in FWR 10.39. Additional regulations regarding barrier
beaches in the Waquoit Bay ACEC are found in FWR 10.40.

10. For regulations concerning land containing shellfish see FWR 10.34.

11. Additional regulations regarding coastal banks in the Black Beach/Great Sippewisset Marsh
District of Critical Planning Concern are found in FWR 10.39. Additional regulations regarding
coastal banks in the Waquoit Bay ACEC are found in FWR 10.40.

12. The calculation of slope for the determination of the top of the coastal bank shall not include
minor artificial alterations in slope, such as top of a revetment, cart paths, foot trails etc.

13. Additional regulations regarding rocky intertidal shores in the Black Beach/Great Sippewisset
Marsh District of Critical Planning Concern are found in FWR 10.39. Additional regulations regarding
rocky intertidal shores in the Waquoit Bay ACEC are found in FWR 10.40.

14. For regulations concerning land containing shellfish, see FWR 10.34.

15. Additional regulations regarding salt marshes in the Black Beach/Great Sippewisset Marsh
District of Critical Planning Concern are found in FWR 10.39. Additional regulations regarding salt
marshes in the Waquoit Bay ACEC are found in FWR 10.40.

16. For regulations concerning land containing shellfish, see FWR 10.34.

17. Additional regulations regarding land under salt ponds in the Black Beach/Great Sippewisset
Marsh District of Critical Planning Concern are found in FWR 10.39. Additional regulations regarding
land under salt ponds in the Waquoit Bay ACEC are found in FWR 10.40.

18. For regulations concerning land containing shellfish, see FWR 10.34.

19. Additional regulations regarding land containing shellfish in the Black Beach/Great Sippewisset
Marsh District of Critical Planning Concern are found in FWR 10.39. Additional regulations regarding
land containing shellfish in the Waquoit Bay ACEC are found in FWR 10.40.

20. Persons conducting shellfish surveys must notify the shellfish constable as to the location, date,
and time a survey will take place at least one week prior to the survey. Lack of notification may result
in the issuance of a non-criminal citation for violation of shellfish regulations. Prior to the survey, the
site must be marked with stakes on the shore and an orange buoy at the proposed end of the
structure. Persons conducting shellfish surveys are advised to verify sampling method with the
shellfish constable.
21. 21 Regulations for the construction of docks and piers, which may be in Land Containing
Shellfish, are found in FWR 10.16(1).

22. Additional regulations regarding fish runs in the Black Beach/Great Sippewisset Marsh District of
Critical Planning Concern are found in FWR 10.39. Additional regulations regarding fish runs in the
Waquoit Bay ACEC are found in FWR 10.40.

23. Additional regulations regarding banks of estuaries in the Black Beach/Great Sippewisset Marsh
District of Critical Planning Concern are found in FWR 10.39. Additional regulations regarding banks
of estuaries in the Waquoit Bay ACEC are found in FWR 10.40.

24. For regulations concerning land containing shellfish, see FWR 10.34.

25. Additional regulations regarding banks of salt ponds in the Black Beach/Great Sippewisset
Marsh District of Critical Planning Concern are found in FWR 10.39. Additional regulations regarding
banks of salt ponds in the Waquoit Bay ACEC are found in FWR 10.40.

26. For regulations concerning land containing shellfish, see FWR 10.34.

27. Additional regulations regarding land subject to coastal storm flowage in the Black Beach/Great
Sippewisset Marsh District of Critical Planning Concern are found in FWR 10.39. Additional
regulations regarding land subject to coastal storm flowage in the Waquoit Bay ACEC are found in
FWR 10.40.

28. Pursuant to Barnstable County Ordinance 96-1 and Section 22(c) of the Cape Cod Commission
Act, expansions and alterations of single-family residential dwellings in existence as of July 1, 1989,
are not subject to the provisions of FWR 1.39 provided the total gross floor area of such expansion
or alteration does not exceed 25% of the total gross floor area of the dwelling in existence as of July
1, 1989. Additions which exceed this threshold are subject to the provisions of FWR 10.39. Single-
family dwellings constructed after July 1, 1989, multifamily dwellings, and nonresidential structures
are subject to the provisions of FWR 10.39 regardless of the size of the expansion or alteration.
Exemption from FWR 10.39 does not exempt the applicant from any other provision of FWR 10.00
or any other local bylaw, or state and federal statutes. The definition of total gross floor area is found
in Section 240-13 of the Code of Falmouth under "GROSS (Leasable) FLOOR AREA."

29. Commentary: A presumption has been created to provide certainty to the applicants of the
maximum reduction in total cumulative resource area impact that would be requested by the
conservation commission pursuant to FWR 10.39(6)(c). Notwithstanding this presumption, the
conservation commission may determine that less area returned to its natural vegetated condition
meets the requirement of FWR 10.39(6)(c).

30. Connected as defined in TR-55.

31. For regulations concerning land containing shellfish, see FWR 10.34.

Part III Inland


FWR 10.51:        Introduction
FWR 10.51 through 10.60 applies to all work which will remove, fill, dredge, build upon,
degrade or otherwise alter any bank, freshwater wetland, land under water bodies, land
subject to flooding or vernal pool. FWR 10.51 through 10.60 pertains to inland (as
opposed to coastal) resource areas, and is promulgated in addition to FWR 10.01
through 10.20 and FWR 10.21 through 10.40. A project may be subject to regulation
under both FWR 10.01 through 10.40 and FWR 10.51 through 10.80, in which case
compliance with all applicable regulations is required.

FWR 10.51 through 10.60 is grouped into five resource areas. Each section begins with
a Preamble which specifies the resource area values identified in Chapter 235 of the
Code of Falmouth to which that resource area is or is likely to be significant. The next
subsection defines the resource area and describes the characteristics of that area
which are critical to the protection of the resource area values so identified. The next
subsection sets forth the presumptions concerning the significance of the resource area.
The last subsection contains the general performance standards to be applied to any
work that will remove, fill, dredge, build upon, degrade or otherwise alter the resource
area.

FWR 10.52:    Purpose

FWR 10.51 through 10.60 is intended to establish criteria and standards for the uniform
and coordinated administration of the provisions of Chapter 235 of the Code of
Falmouth. It is intended to ensure that development in and near inland wetlands is sited,
designed, constructed and maintained in a manner that protects the public resource
area values identified in Chapter 235 of the Code of Falmouth and served by these
resource areas.

FWR 10.51 through 10.60 is intended to notify both persons proposing work in Areas
Subject to Protection Under Chapter 235 of the Code of Falmouth and the Commission
that work as to the performance standards that should be applied. These standards are
intended to identify the level of protection that the Commission must impose in order to
contribute to the protection of the resource area identified in Chapter 235 of the Code of
Falmouth. It is the responsibility of the person proposing work to design and complete
their project in conformance with these performance standards. It is the responsibility of
the Commission to impose such conditions on a proposed project as to ensure that the
project is designed and completed in a manner consistent with these standards.

FWR 10.53:    General Provisions

(1) If the Commission determines that a resource area is significant to a resource area
value identified in Chapter 235 of the Code of Falmouth for which no presumption is
stated in the Preamble to the applicable section, the Commission shall impose such
conditions as are necessary to contribute to the protection of such resource area
values.
(2) Notwithstanding the provisions of FWR 10.54 through 10.60, the Conservation
Commission may issue a Permit and impose such conditions as will contribute to the
resource area values identified in Chapter 235 of the Code of Falmouth permitting the
following limited projects (although no such project may be permitted which will result in
a net loss of freshwater wetland area or function, or which will have any adverse effect
on habitat sites of rare species):

(a) The construction, reconstruction, operation and maintenance of underground and
overhead public utilities, such as electrical distribution or transmission lines, or
communication, sewer, water and natural gas lines, may be permitted, in accordance
with the following general conditions and any additional conditions deemed necessary
by the Commission:

1. the Commission may require a reasonable alternative route with fewer adverse
effects for a local distribution or connecting line not reviewed by the Energy Facilities
Siting Council;

2. best available measures shall be used to minimize adverse effects during
construction;

3. the surface vegetation and contours of the area shall be substantially restored; and

4. all sewer lines shall be constructed to minimize inflow and leakage.

(b) Maintenance and improvement of existing public roadways, but limited to widening
less than a single lane, adding shoulders, correcting substandard intersections, and
improving inadequate drainage systems.

10.53: continued

(c) The maintenance of beaches and boat launching ramps which existed on August
15, 1998.

(d) The maintenance, repair and improvement (but not substantial enlargement) of
structures, including dams and reservoirs and appurtenant works to such dams and
reservoirs, buildings, piers, towers, headwalls, bridges, and culverts which existed on
August 15, 1998.

(e) The construction and maintenance of catwalks, footbridges, docks, piers,
boathouses, boat shelters, duck blinds, skeet and trap shooting decks and observation
decks (dock(s), etc.); provided, however, that such structures are constructed consistent
with the provisions below:

1. Docks etc., shall not exceed over one hundred feet (100 ft.) in length beyond the
upland edge of the Bank (inland) so that legitimate passage along a beach or through
navigation over the waters for recreational or aquacultural purposes or aquacultural
purposes is not prohibited or unreasonably impeded ;

2. To keep disturbance of the bottom minimal at all times during both construction and
use, the water depth at the end of the dock, etc., shall be a minimum of three (3) feet at
the time of mean low water.

3. The area of the terminal "L" or "T" shape in a fixed dock etc., or the float, or the float,
or combination thereof, shall not exceed 100 square feet;

4. The design and construction shall not interfere with recreational intertidal lateral
access;

5. Boats at the dock, etc. shall not be allowed to leak oil or other pollutants into water;

6. Motor boats shall not be run in gear while tied to the dock, etc. since prop wash stirs
up sediment and causes bank erosion;

7. Floating docks, etc. shall be fixed by piers;

8. Off-season storage of temporary/seasonal docks, etc and floats shall be in upland
areas;

9. The landward approach to a dock, etc. shall not harm vegetation on a freshwater
wetland inland bank (A freshwater marsh or bank shall be crossed by a raised
walkway.);

10. An area where the float(s), if any, will be stored shall be designated on the plan;

11. Over freshwater wetlands the decking surface shall have a minimum of 50% open
area;

12. The maximum horizontal footcandle level as measured directly below each
complete lighting unit shall not exceed 0.2 footcandles (Fc)

13. Wood material used in the construction of the dock, etc. shall not be treated with
any type of wood preservative.

14. The performance standards of FWR 10.53(2)(e) 5, 6, and 8 shall be included in all
Permits concerning docks, etc. as a continuing order, and shall be so designated on the
Certificate of Compliance. Failure to comply with these conditions shall be grounds for
the Commission to revoke the permit and order the removal of the dock, etc.

15. Notwithstanding the provisions of FWR 10.53(2)(e), no dock, etc. no project may be
permitted which will have any adverse effect on habitat sites of rare species.
(f) The routine maintenance and repair of road drainage structures including culverts
and catch basins, drainage easements, ditches, watercourses and artificial water
conveyances to insure flow capacities which existed on August 15, 1998.

(g) Lake drawdown projects (except those related to the breaching of a dam or a
reservoir or an appurtenant work to such dam or reservoir) undertaken in response to
written Orders or Recommendation Letters issued by the Department of Environmental
Management Office of Dam Safety (DEM). The Commission shall, in the Permit, limit
the duration of the drawdown based on information contained in the written finding or
superseding finding by DEM pursuant to M.G.L. c. 253, §§ 44 through 50, concerning
the time required to repair the dam and the economic practicability of repairing the dam.
In no event shall the drawdown continue longer than three years without a new or
extended Permit being obtained. Water levels that existed immediately prior to such
drawdowns shall be restored no later than the expiration date of the Permit or any new
or extended Permit, and a new Permit Application need not be filed for such restoration.

(h) The exploration, development, construction, expansion, maintenance, operation,
and replacement of public water supply wells or wellfields (including necessary
associated roads, ways, structures, and underground and overhead utility lines) derived
from groundwater, provided, however, that:

1. approval for the water supply has been granted under the Public Water Supply
Source Approval Process pursuant to 310 CMR 22.21 and/or the Water Management
Act, M.G.L. c. 21G. This general condition shall not apply to exploration; and

2. such projects shall be designed, constructed, implemented, operated, and
maintained to avoid or, where avoidance is not practicable, to minimize impacts to
resource areas, and to meet the following standards to the maximum extent practicable:

a. hydrological changes to resource areas shall be minimized;

10.53: continued

b. best management practices shall be used to minimize adverse impacts during
construction, including prevention of erosion and siltation of adjacent water bodies and
wetlands in accordance with standard U.S.D.A. Soil Conservation Service methods;

c. mitigating measures shall be implemented that contribute to the protection of the
resource area values identified in Chapter 235 of the Code of Falmouth;

d. compensatory storage shall be provided in accordance with the standards of 310
CMR 10.57(4)(a)1. for all flood storage volume that will be lost;

e. no access road or other structure or activity shall restrict flows so as to cause an
increase in flood stage or velocity;
f. temporary structures and work areas in resource areas, including access roads, shall
be removed within 30 days of completion of the work. Temporary alterations to resource
areas shall be substantially restored to preexisting hydrology and topography. At least
75% of the surface of any area of disturbed vegetation shall be reestablished with
indigenous wetland plant species within two growing seasons and prior to said
vegetative reestablishment any exposed soil in the area of disturbed vegetation shall be
temporarily stabilized to prevent erosion in accordance with standard U.S.D.A. Soil
Conservation Service methods; and

g. work in resource areas shall occur only when the ground is sufficiently frozen, dry,
or otherwise stable to support the equipment being used.

(i) The closure of landfills when undertaken to comply with the requirements of 310
CMR 19.000; provided, however, that:

1. a project design alternative analysis shall be prepared in accordance with 310 CMR
19.150; and

2. such projects shall be designed, constructed, implemented, operated, and
maintained to avoid or, where avoidance is not practicable, to minimize impacts to
resource areas, and to meet the following standards to the maximum extent practicable:

a. hydrological changes to resource areas shall be minimized;

b. best management practices shall be used to minimize adverse impacts during
construction, including prevention of erosion and siltation of adjacent water bodies and
wetlands in accordance with standard U.S.D.A. Soil Conservation Service methods;

c. mitigating measures shall be implemented that contribute to the protection of the
resource area values identified in Chapter 235 of the Coded of Falmouth;

d. compensatory storage shall be provided in accordance with the standards of FWR
10.57(4)(a)1. for all flood storage volume that will be lost;

e. no access road, assessment or monitoring device, or other structure or activity shall
restrict flows so as to cause an increase in flood stage or velocity;

f. temporary structures and work areas in resource areas, such as access roads and
assessment and monitoring devices, shall be removed within 30 days of the
Department's written determination that the closure of the facility has been completed in
accordance with the closure permit. Temporary alterations to resource areas shall be
substantially restored to preexisting hydrology and topography. At least 75% of the
surface of any area of disturbed vegetation shall be reestablished with indigenous
wetland plant species within two growing seasons and prior to said vegetative
reestablishment any exposed soil in the area of disturbed vegetation shall be
temporarily stabilized to prevent erosion in accordance with standard U.S.D.A. Soil
Conservation Service methods. Temporary structures, work areas, and alterations to
resource areas are those that no longer are necessary to fulfill the requirements of 310
CMR 19.000;

g. except for direct impacts to resource areas caused by the final cap and cover on the
landfill, no changes in the existing topography or the existing soil and surface water
levels shall be permitted, except for those resulting from temporary access roads;

h. work in resource areas shall occur only when the ground is sufficiently frozen, dry,
or otherwise stable to support the equipment used; and

i. such projects shall not include the construction of new landfills or the expansion or
modification of existing landfills.

(j) Assessment, monitoring, containment, mitigation, and remediation of, or other
response to, a release or threat of release of oil and/or hazardous material in
accordance with the provisions of 310 CMR 40.0000 and the following general
conditions (although no such measure may be permitted which is designed in
accordance with the provisions of 310 CMR

10.53: continued

40.1020 solely to reduce contamination to a level lower than that which is needed to
achieve "No Significant Risk" as defined in 310 CMR 40.0006(10)):

1. there are no practicable alternatives to the response action being proposed that are
consistent with the provisions of 310 CMR 40.0000 and that would be less damaging to
resource areas. The alternatives analysis shall include, at a minimum, the following:

a. an alternative that does not alter resource areas, which will provide baseline data for
evaluating other alternatives; and

b. an assessment of alternatives to both temporary and permanent impacts to
resource areas.

2. such projects shall be designed, constructed, implemented, operated, and
maintained to avoid or, where avoidance is not practicable, to minimize impacts to
resource areas, and shall meet the following standards to the maximum extent
practicable:

a. hydrological changes to resource areas shall be minimized;

b. best management practices shall be used to minimize adverse impacts during
construction, including prevention of erosion and siltation of adjacent water bodies and
wetlands in accordance with standard U.S.D.A. Soil Conservation Service methods;
c. mitigating measures shall be implemented that contribute to the protection of the
resource area values identified in Chapter 235 of the Code of Falmouth;

d. compensatory storage shall be provided in accordance with the standards of FWR
10.57(4)(a)1. for all flood storage volume that will be lost;

e. no access road, assessment or monitoring device, or other structure or activity shall
restrict flows so as to cause an increase in flood stage or velocity;

f. temporary structures and work areas in resource areas, such as access roads and
assessment and monitoring devices, shall be removed within 30 days of completion of
the work. Temporary alterations to resource areas shall be substantially restored to
preexisting hydrology and topography. At least 75% of the surface of any area of
disturbed vegetation shall be reestablished with indigenous wetland plant species within
two growing seasons and prior to said vegetative reestablishment any exposed soil in
the area of disturbed vegetation shall be temporarily stabilized to prevent erosion in
accordance with standard U.S.D.A. Soil Conservation Service methods. Temporary
structures, work areas, and alterations to resource areas are those that no longer are
necessary to fulfill the requirements of 310 CMR 40.0000; and

g. work in resource areas shall occur only when the ground is sufficiently frozen, dry,
or otherwise stable to support the equipment being used.

(k) The construction and maintenance of a new bike path or walking trail, used in the
service of the public, of minimum practical width where reasonable means of access is
unavailable. Such path or trail shall be constructed in such a manner so as to not
restrict the flow of water.

(4) Notwithstanding the provisions of FWR 10.54 through 10.58, the Commission may
issue a Permit for projects which will improve the natural capacity of a resource area(s)
to protect the resource area values of water pollution control, protection of public and
private water supply, groundwater, flood control, erosion and sediment control, fisheries,
shellfish, and wildlife habitat, which are identified in Chapter 235 of the Code of
Falmouth (although no such project may be permitted which will have any adverse
effect on wildlife habitat sites of rare species). Such projects include, but are not limited
to, the removal of aquatic nuisance vegetation to retard pond and lake eutrophication
and the thinning or planting of vegetation to improve habitat value.


FWR 10.54: Bank (Inland Banks and Beaches)(1)

(1) Introduction. Banks are likely to be significant to public or private water supply, to
ground water, to flood control, erosion and sedimentation control, storm damage
prevention, water pollution control and to fisheries and wildlife habitat. Where Banks are
composed of concrete, asphalt or other artificial impervious material, said Banks are
likely to be significant to flood control and storm damage prevention.
Banks are areas where ground water discharges to the surface and where, under some
circumstances, surface water recharges the ground water.

Where Banks are partially or totally vegetated, the vegetation serves to maintain the
Banks' stability, which in turn protects water quality by reducing erosion and siltation.

Banks may also provide shade that moderates water temperatures, as well as providing
breeding habitat, escape cover and food, all of which are significant to the protection of
fisheries. Banks which drop off quickly or overhang the water's edge often contain
numerous undercuts which are favorite hiding spots for important game species such as
largemouth bass (Micropterus salmoides).

The topography, plant community composition and structure, and soil structure of banks
together provide important food, shelter, migratory and overwintering areas, and
breeding areas for wildlife. Topography plays a role in determining the suitability of
banks to serve as burrowing or feeding habitat. Soil structure also plays a role in
determining the suitability for burrowing, hibernation and other cover. Bank topography
and soil structure impact the bank's vegetative structure, as well. Bushes and other
undergrowth, trees, vegetation extending from the bank into the water, and vegetation
growing along the water's edge are also important to a wide variety of wildlife. A number
of tubers and berry bushes also grow in banks and serve as important food for wildlife.
Finally, banks may provide important shelter for wildlife which needs to move between
wetland areas.

Banks act to confine floodwaters during the most frequent storms, preventing the
spread of water to adjacent land. Because Banks confine water during such storms to
an established channel they maintain water temperatures and depths necessary for the
protection of fisheries. The maintenance of cool water temperatures during warm
weather is critical to the survival of important game species such as brook trout
(Salvelinus frontinalis), rainbow trout (Oncorhynchus Mykiss) and brown trout (Salmo
trutta). An alteration of a Bank that permits water to frequently and consistently spread
over a large and more shallow area increases the amount of property which is routinely
flooded, as well as elevating water temperature and reducing fish habitat within the
main channel, particularly during warm weather.

(2) Definition, Critical Characteristics and Boundary.

(a) A Bank is the portion of the land surface which normally abuts and confines a water
body. It occurs between a water body and a freshwater wetland and adjacent flood
plain, or, in the absence of these, it occurs between a water body and an upland. A
Bank confines a intermittent stream when the intermittent stream flows in a particular
location. A Bank may be partially or totally vegetated, or it may be comprised of
exposed soil, gravel or stone.
(b) The physical characteristics of a Bank, as well as its location, as described in the
foregoing FWR 10.54(2)(a), are critical to the protection of the resource area values
specified in FWR 10.54(1).

(c) The upper boundary of a Bank is the first observable break in the slope or the
mean annual flood level, whichever is lower. The lower boundary of a Bank is the mean
annual low flow level.

(3) Presumption. Where a proposed activity involves the removing, filling, dredging,
building upon, degrading or otherwise altering of a Bank, the Commission shall presume
that such area is significant to, and the activity shall have a significant or cumulative
effect upon, the resource area values specified in FWR 10.54(1). These presumptions
are rebuttable and may be

10.54: continued

overcome upon a clear showing that the Bank does not play a role in the protection of
said resource area values. In the event that the presumptions are deemed to have been
overcome, the Commission shall make a written determination to this effect, setting
forth its grounds.

(4) General Performance Standard.

Where the Bank is determined to be significant to public or private water supply, to
ground water, to flood control, erosion and sedimentation control, storm damage
prevention, water pollution control and to fisheries and wildlife habitat, FWR 10.54(5)
through (7) shall apply.

(5) Any proposed work on a Bank shall not impair the following:

(a) the physical stability of the Bank;

(b) the water carrying capacity of the existing channel within the Bank;

(c) ground water and surface water quality;

(d) the capacity of the Bank to provide breeding habitat, escape cover and food for
fisheries;

(e) the capacity of the Bank to provide important wildlife habitat functions. A project or
projects on a single lot, for which a Permit Application(s) is filed on or after August 15,
1998., that (cumulatively) alter(s) up to 25 feet of the length of the bank found to be
significant to the protection of wildlife habitat, shall not be deemed to impair its capacity
to provide important wildlife habitat functions. Additional alterations beyond the above
threshold may be permitted if they will have no adverse effects on wildlife habitat.
(6) Notwithstanding the provisions of FWR 10.54(5), structures may be permitted in or
on a Bank when required to prevent flood damage to facilities, buildings and roads
constructed prior to August 15, 1998., including the renovation or reconstruction (but not
substantial enlargement) of such facilities, buildings and roads, provided that the
following requirements are met:

(a) The proposed protective structure, renovation or reconstruction is designed and
constructed using best practical measures so as to minimize adverse effects on the
characteristics and functions of the resource area;

(b) The applicant demonstrates that there is no reasonable method of protecting,
renovating or rebuilding the facility in question other than the one proposed.



(7) Notwithstanding the provisions of FWR 10.54(5) or (6), no project may be permitted
which will have any adverse effect on habitat sites of rare species.

FWR 10.55 Freshwater Wetlands (Wet Meadows, Marshes, Swamps and Bogs)(2)

(1) Introduction. Freshwater Wetlands are likely to be significant to public or private
water supply, ground water, flood control, storm damage prevention, water pollution
control, fisheries, erosion and sediment control, shellfish and wildlife habitat.

The plants and soils of freshwater wetlands remove or detain sediments, nutrients (such
as nitrogen and phosphorous) and toxic substances (such as heavy metal compounds)
that occur in run-off and flood waters.

Some nutrients and toxic substances are detained for years in plant root systems or in
the soils. Others are held by plants during the growing season and released as the
plants decay in the fall and winter. This latter phenomenon delays the impacts of
nutrients and toxins until the cold weather period, when such impacts are less likely to
reduce water quality.

In a coastal community such as Falmouth the water quality in the coastal areas is in
large part a function of the water quality that flows out of the streams. For this reason,
inland wetlands protect water quality in the shellfish beds.

10.55: continued

Freshwater Wetlands are areas where ground water discharges to the surface and
where, under some circumstances, surface water discharges to the ground water.

The profusion of vegetation in Freshwater Wetlands acts to slow down and reduce the
passage of flood waters during periods of peak flows by providing temporary flood water
storage and by facilitating water removal through evaporation and transpiration. This
process reduces downstream flood crests and resulting damage to private and public
property. During dry periods the water retained in Freshwater Wetlands is essential to
the maintenance of base flow levels in rivers and streams, which in turn is important to
the protection of water quality and water supplies.

Hydrology is the driving force which creates wetlands, but it is a transient, temporal
parameter. The presence of water at or near the ground surface during a significant
portion of the year supports, and in fact promotes, the growth of wetland indicator
plants. Prolonged or frequent saturation or inundation also produces hydric soils, and
creates anaerobic conditions that favor the growth of wetland indicator plants. Hydric
soils are direct indicators of long-term hydrologic conditions and are present throughout
the year.

Wetland vegetation supports a wide variety of insects, reptiles, amphibians, small
mammals and birds which are a source of food for important game fish. Bluegills
(Lepomis macrochirus), pumpkinseeds (Lepomis gibbosus), yellow perch (Perca
flavescens), rock bass (Ambloplites rupestris) and all trout species feed upon
nonaquatic insects. Large-mouth bass (Micropterus salmoides), chain pickerel (Esox
niger) and northern pike (Esox lucius) feed upon small mammals, snakes, nonaquatic
insects, birds and amphibians.

Wetland vegetation provides shade which moderates water temperatures important to
fish life. Wetlands flooded by adjacent water bodies provide food, breeding habitat and
cover for fish. Fish populations in the larval stage are particularly dependent upon food
provided by over-bank flooding which occurs during peak flow periods (extreme storms)
because most river and stream channels do not provide sufficient quantities of the
microscopic plant and animal life required for food.

Freshwater wetlands are probably Falmouth's most important inland habitat for wildlife.
The hydrologic regime, plant community composition and structure, soil composition
and structure, topography, and water chemistry of freshwater wetlands provide
important food, shelter, migratory and overwintering areas, and breeding areas for many
birds, mammals, amphibians and reptiles. A wide variety of vegetated wetland plants,
the nature of which are determined in large part by the depth and duration of water, as
well as soil and water composition, are utilized by varied species as important areas for
mating, nesting, brood rearing, shelter and food (directly and indirectly). The diversity
and interspersion of the vegetative structure is also important in determining the nature
of its wildlife habitat. Different habitat characteristics are used by different wildlife
species during summer, winter and migratory seasons.

Although the vegetational community can often be analyzed to establish an accurate
wetland boundary, sole reliance on the presence of wetland indicator plants can be
misleading because some species thrive in both uplands and wetlands. Gently sloping
areas often produce large transitional zones where the vegetational boundary is difficult
to delineate. Hydrology can supplement vegetative criteria to enhance the technical
accuracy, consistency, and credibility of wetland boundary delineations, and are
especially useful for analyzing disturbed sites.

The sole reliance on the presence of a listed hydric soil to establish an accurate wetland
boundary can also be misleading. Hydric soils lists do not include all hydric soils, nor do
lists of hydric soil morphologies provide a complete list of all soil morphologies in
wetlands. The driving force in wetlands is water. Plant community characteristics and
soil morphology are only indicators of the hydrology of the site.

(2) Definition, Critical Characteristics and Boundary.

(a) The types of freshwater wetlands include wet meadows, marshes, swamps and
bogs. Freshwater Wetlands are areas where the soils are saturated and/or inundated
such that they support under normal conditions a predominance of wetland indicator
plants.

(b) The physical characteristics of Freshwater Wetlands, as described in FWR
10.55(2)(a), are critical to the protection of the resource area values specified in FWR
10.55(1).

10.55: continued

(c) The boundary of Freshwater Wetlands is the line within which saturated or
inundated conditions exist. Saturated or inundated conditions can be inferred when 50%
or more of the vegetational community consists of wetland indicator plants. Wetland
indicator plants are those classified in the indicator categories of Facultative,
Facultative+, Facultative Wetland-, Facultative Wetland, Facultative Wetland+, or
Obligate Wetland in the most recent edition of the National List of Plant Species That
Occur in Wetlands (Fish & Wildlife Service, U.S. Department of the Interior) for the
Falmouth area, Canadian hemlock (Tsuga canadensis), sphagnum moss (Sphagnum
spp.) or plants exhibiting physiological or morphological adaptations to life in saturated
or inundated conditions.

1. Areas containing a predominance of wetland indicator plants are presumed to
indicate the presence of saturated or inundated conditions. Therefore, the boundary as
determined by 50% or more wetland indicator plants shall be presumed accurate when:

a. all dominant species have an indicator status of obligate, facultative wetland+,
facultative wetland, or facultative wetland- and the slope is distinct or abrupt between
the upland plant community and the wetland plant community;

b. the Wetland Site Index (WSI)(3) is >.67

c. the area where the work will occur is clearly limited to the buffer zone; or
d. the Commission determines that sole reliance on wetland indicator plants will yield
an accurate delineation.

2. When the boundary is not presumed accurate as described in FWR 10.55(2)(c)1.a.
through d. or to overcome the presumption, credible evidence shall be submitted by a
competent source demonstrating that the boundary of Freshwater Wetlands is the line
within which saturated or inundated conditions exist. The Commission must evaluate all
indicators of saturated or inundated conditions if submitted by a credible source, or may
require credible evidence of saturated or inundated conditions when determining the
boundary. Indicators of saturated or inundated conditions shall include one or more of
the following (see FWR 10.70):

a. groundwater, including the capillary fringe, within a major portion of the root zone;

b. observation of prolonged or frequent flowing or standing surface water;

c. characteristics of hydric soils.

3. Where an area has been disturbed (e.g. by cutting [lawns], filling, or cultivation), the
lack of wetland indicator plants shall in no way be presumed to indicate that saturated or
inundated conditions do not exist.

4. The determination that 50% of the plant community consists of wetland indicator
plants shall be made by the commission if any one of the vegetative analysis methods
listed below so indicates (see FWR 10.80):

a. Department of Environmental Protection Dominance Test, >50% dominant plants
being wetland indicator plants;

b. Wetland Site Index, >0.45; or

c. Relative Dominance of Wetland Species by Layering, >50% wetland indicator plants.

5. Areas containing soils with a water table at the soil surface during any time during the
growing season are presumed to indicate the presence of saturated or inundated
conditions such that they support under normal conditions a predominance of wetland
indicator plants.

(3) Presumption. Where a proposed activity involves the removing, filling, dredging,
building upon, degrading or otherwise altering of a Freshwater Wetland, the
Commission shall presume that such area is significant to, and the proposed activity will
have a significant or cumulative effect upon, the resource area values specified in FWR
10.55(1). These presumptions are rebuttable and may be overcome upon a clear
showing that the Freshwater Wetland does not play a role in the protection of said
resource area values. In the event that the presumptions are deemed to have been
overcome, the Commission shall make a written determination to this effect, setting
forth its grounds.

(4) General Performance Standards.

(a) Where the presumption set forth in FWR 10.55(3) is not overcome, any proposed
work in a Freshwater Wetland shall not destroy or otherwise impair any portion of said
area.

(b) Notwithstanding the provisions of FWR 10.55(4)(a), the Commission may issue a
Permit allowing work which results

10.55: continued

in the loss of up to 1000 square feet of Freshwater Wetland when said area is replaced
in accordance with the provisions of FWR 10.55(5) and the impact is both unavoidable
and necessary.

(c) If work is permitted in Freshwater Wetlands pursuant to FWR 10.55(4)(b), the
following shall apply;

1. The new wetland must be created before the existing wetland is filled, drained or
destroyed (unless material from the existing wetland is to be used in the creation of the
new wetland). Completion shall include at minimum the creation of a natural wetlands
soil profile, grading to natural water level and planting of species as conditioned by the
Commission. In no case, may other activities be undertaken until the replication is
complete.

2. The applicant must monitor the replicated wetland for a minimum of three (3) years
and submit an annual report to the Commission. This report must assess the soil, water,
and plant conditions of the replicated wetland. The applicant may be required, on an
annual basis, to remedy any deficiencies at the replication site; and

3. The edge of the proposed replicated wetland must be at least 100 feet from any
property line unless written permission is granted by the adjoining property owner.

(5) Freshwater Wetlands shall be replaced according to the following general conditions
and any additional, specific conditions the Commission deems necessary to ensure that
the replacement area will function in a manner similar to the area that will be lost:

(a) the surface of the replacement area to be created ("the replacement area") shall be
equal to that of the area that will be lost ("the lost area");

(b) the ground water and surface elevation of the replacement area shall be
approximately equal to that of the lost area;
(c) the overall horizontal configuration and location of the replacement area with
respect to the bank shall be similar to that of the lost area;

(d) the replacement area shall have an unrestricted hydraulic connection to the same
water body or waterway associated with the lost area;

(e) the replacement area shall be located within the same general area of the water
body or reach of the waterway as the lost area;

(f) at least 90% of the surface of the replacement area shall be reestablished with
indigenous wetland plant species within two growing seasons, and prior to said
vegetative reestablishment any exposed soil in the replacement area shall be
temporarily stabilized to prevent erosion in accordance with standard U.S. Soil
Conservation Service methods;

(g) the replacement area has a hydrological regime consistent with Freshwater
Wetlands. To achieve said hydrological regime the surface elevation of the replacement
wetlands shall be no higher than the maximum annual groundwater elevation recorded
for the site; and

(h) the replacement area shall be provided in a manner which is consistent with all
other General Performance Standards for each resource area in FWR 10.00.

(6) Notwithstanding the provisions of FWR 10.55(4), no project may be permitted
which will have any adverse effect on habitat sites of rare species.

FWR 10.56: Land Under Waterbodies (Under any Creek, Stream, Pond or Lake)(4)

(1) Preamble. Land Under Waterbodies is likely to be significant to public and private
water supply, to ground water, flood control, storm damage prevention, water pollution
control, to fisheries, recreation, aesthetics and wildlife habitat. Where such land is
composed of concrete, asphalt or other artificial impervious material, said land is likely
to be significant to flood control and storm damage prevention.

Where Land Under Waterbodies is composed of pervious material, such land
represents a point of exchange between surface

10.56: continued

and ground water.

The physical nature of Land Under Waterbodies is highly variable, ranging from deep
organic and fine sedimentary deposits to rocks and bedrock. The organic soils and
sediments play an important role in the process of detaining and removing dissolved
and particulate nutrients (such as nitrogen and phosphorous) from the surface water
above. They also serve as traps for toxic substances (such as heavy metal
compounds).

Land Under Waterbodies, in conjunction with banks, serves to confine floodwater within
a definite channel during the most frequent storms. Filling within this channel blocks
flows which in turn causes backwater and overbank flooding during such storms. An
alteration of Land Under Waterbodies that causes water to frequently spread out over a
larger area at a lower depth increases the amount of property which is routinely flooded.
Additionally, it results in an elevation of water temperature and a decrease in habitat in
the main channel, both of which are detrimental to fisheries, particularly during periods
of warm weather and low flows.

Land under rivers, streams and creeks that is composed of gravel allows the circulation
of cold, well oxygenated water necessary for the survival of important game fish species
such as brook trout (Salvelinus frontinalis), rainbow trout (Oncorhynchus mykiss), and
brown trout (Salmo trutto). River, stream and creek bottoms with a diverse structure
composed of gravel, large and small boulders and rock outcrops provides escape cover
and resting areas for the above mentioned game fish species (salmonids). Such bottom
type also provides areas for the production of aquatic insects essential to fisheries.

Land under ponds and lakes is vital to a large assortment of warm water fish during
spawning periods. Species such as large mouth bass (Micropterus salmoides),
smallmouth bass (Micropterus dolomieui), blue gills (Lepomis macrochirus),
pumpkinseeds (Lepomis gibbosus), black crappie (Pomoxis nigromaculatus) and rock
bass (Ambloplites rupestris) build nests on the lake and bottom substrates within which
they shed fertilize their eggs.

The plant community composition and structure, hydrologic regime, topography, soil
composition and water quality of land under water bodies provide important food,
shelter, migratory and overwintering areas, and breeding areas for wildlife. Certain
submerged, rooted vegetation is eaten by water fowl and some mammals. Some
amphibians (as well as some invertebrate species eaten by vertebrate wildlife) attach
their eggs to such vegetation. Some aquatic vegetation protruding out of the water is
also used for nesting, and many species use dead vegetation resting on land under
water but protruding above the surface for feeding and basking Soil composition is also
important for hibernation and for animals which begin to burrow their tunnels under
water. Hydrologic regime, topography, and water quality not only affect vegetation, but
also determine which species feed in an area.

(2) Definition, Critical Characteristics and Boundaries.

(a) Land Under Waterbodies is the land beneath any creek, reservoir, stream, pond or
lake. Said land may be composed of organic muck or peat, fine sediments, rocks or
bedrock.
(b) The physical characteristics and location of Land Under Waterbodies specified in
FWR 10.56(2)(a) are critical to the protection of the resource area values specified in
FWR 10.56(1).

(c) The boundary of Land Under Waterbodies is the mean annual low water level.

(3) Presumption. Where a project involves removing, filling, dredging, building upon,
degrading or otherwise altering of Land Under Waterbodies, the Commission shall
presume that such area is significant to, and the proposed activity will have a significant
or cumulative effect upon, the resource area values specified in FWR 10.56(1). These
presumptions are rebuttable and may be overcome upon a clear showing that said land
does not play a role in the protection of said resource area values. In the event that the
presumptions are deemed to have been overcome, the Commission shall make a
written determination to this effect, setting forth the grounds.

(4) General Performance Standards.

(a) Where the presumption set forth in FWR 10.56(3) is not overcome, any proposed
work within Land Under Waterbodies shall not impair the following:

1. The water carrying capacity within the defined channel, which is provided by said
land in conjunction with the

10.56: continued

banks;

2. Ground and surface water quality;

3. The capacity of said land to provide breeding habitat, escape cover and food for
fisheries; and

4. The capacity of said land to provide important wildlife habitat functions. A project or
projects on a single lot, for which Permit Application(s) is filed on or after August 15,
1998., that (cumulatively) alter(s) up to 1,000 square feet of land in this resource area
found to be significant to wildlife habitat, shall not be deemed to impair its capacity to
provide important wildlife habitat functions. Additional alterations beyond the above
threshold may be permitted if they will have no adverse effects on wildlife habitat.

(b) Notwithstanding the provisions of FWR 10.56(4)(a), the Commission may issue a
Permit in accordance with Chapter 235 of the Code of Falmouth to maintain or improve
boat channels used in the service of the public within Land Under Waterbodies when
said work is designed and carried out using the best practical measures so as to
minimize adverse effects such as the suspension or transport of pollutants, increases in
turbidity, the smothering of bottom organisms, the accumulation of pollutants by
organisms or the destruction of fisheries habitat or nutrient source areas.
(c) Notwithstanding the provisions of FWR 10.56(4)(a) or (b), no project may be
permitted which will have any adverse effect on habitat sites of rare species.

FWR 10.57 Land Subject to Flooding (Bordering and Isolated Areas)(5)

(1) Introduction.

(a) Bordering Land Subject to Flooding:

1. Bordering Land Subject to Flooding is an area which floods from a rise in a bordering
water body. Such areas are likely to be significant to flood control and storm damage
prevention.

2. Bordering Land Subject to Flooding provides a temporary storage area for flood
water which has overtopped the bank of the main channel of a creek, river or stream or
the basin of a pond or lake. During periods of peak run-off, flood waters are both
retained (i.e., slowly released through evaporation and percolation) and detained (slowly
released through surface discharge) by Bordering Land Subject to Flooding. Over time,
incremental filling of these areas causes increases in the extent and level of flooding by
eliminating flood storage volume or by restricting flows, thereby causing increases in
damage to public and private properties.

3. All areas on the ten year floodplain of Bordering Land Subject to Flooding are also
likely to be significant to the protection of wildlife habitat, except for those portions which
have been so extensively altered by human activity that their important wildlife habitat
functions have been effectively eliminated (such "altered" areas include paved and
graveled areas, golf courses, cemeteries, playgrounds, landfills, fairgrounds, quarries,
gravel pits, buildings, lawns, gardens, roadways (including shoulders and
embankments), railroad tracks (including ballast and embankments), and similar areas
lawfully existing on August 15, 1998. and maintained as such since that time).

The hydrologic regime, plant community composition and structure, topography, soil
composition and proximity to water bodies and bordering vegetated wetlands of these
portions of bordering land subject to flooding provide important food, shelter, migratory
and overwintering areas, and breeding areas for wildlife. Nutrients from flood waters, as
well as the inundation of floodplain soil, create important wildlife habitat characteristics,
such as richness and diversity of soil and vegetation. A great many species require or
prefer habitat which is as close as possible to water and/or has moist conditions,
characteristics generally present on lower floodplains. Similarly, lower floodplains,
because of their proximity to water and vegetated wetlands, can provide important
shelter for wildlife which needs to migrate between such areas, or between such areas
and uplands. The "edge" where floodplain habitat borders vegetated wetlands or water
bodies is frequently very high in wildlife richness and diversity. Similar "edges" may be
found elsewhere the lower floodplain, where differences in topography and frequency of
flooding have created varied soil and plant
10.57: continued

community composition and structure.

(b) Isolated Land Subject to Flooding:

1. Isolated Land Subject to Flooding is an isolated depression or a closed basin which
serves as a ponding area for run-off or high ground water which has risen above the
ground surface. Such areas are likely to be locally significant

to flood control and storm damage prevention. In addition, where such areas are
underlain by pervious material they are likely to be significant to public or private water
supply and to ground water. Where such areas are underlain by pervious material
covered by a mat of organic peat and muck, they are also likely to be significant to the
water pollution control.

2. Isolated Land Subject to Flooding provides a temporary storage area where run-off
and high ground water pond and slowly evaporate or percolate into the substrate. Filling
causes lateral displacement of the ponded water onto contiguous properties, which may
in turn result in damage to said properties.

3. Isolated Land Subject to Flooding, where it is underlain by pervious material,
provides a point of exchange between ground and surface waters. Contaminants
introduced into said area, such as septic system discharges and road salts, find easy
access into the ground water and neighboring wells. Where these conditions occur and
a mat of organic peat or muck covers the substrate of the area, said mat serves to
detain and remove contaminants which might otherwise enter the ground water and
neighboring wells.

(2) Definitions, Critical Characteristics and Boundaries.

(a) Bordering Land Subject to Flooding:

1. Bordering Land Subject to Flooding is an area with low, flat topography adjacent to
and inundated by flood waters rising from creeks, reservoirs, streams, ponds or lakes. It
extends from the banks of these waterways and water bodies; where a freshwater
wetland occurs, it extends from said wetland.

2. The topography and location of Bordering Land Subject to Flooding specified in the
foregoing FWR 10.57(2)(a)1. are critical to the protection of the resource area values
specified in FWR 10.57(1)(a). Where Bordering Land Subject to Flooding is significant
to wildlife habitat, the physical characteristics as described in the foregoing FWR
10.57(1)(a)(3) are critical to the protection of that resource area value.
3. The boundary of Bordering Land Subject to Flooding is the estimated maximum
lateral extent of flood water which will theoretically result from the statistical 100-year
frequency storm. Said boundary shall be that determined by reference to the most
recently available flood profile data prepared for the community within which the work is
proposed under the National Flood Insurance Program (NFIP, currently administered by
the Federal Emergency Management Agency, successor to the U.S. Department of
Housing and Urban Development). Said boundary, so determined, shall be presumed
accurate. This presumption may be overcome only by credible evidence from a
registered professional engineer or other professional competent in such matters.



Where NFIP Profile data is unavailable, or is available for only land subject to coastal
storm flowage, the boundary of Bordering Land Subject to Flooding shall be the
maximum lateral extent of flood water which has been observed, recorded, or
determined by hydrologic modeling, whichever is greater. In the event of a conflict, the
Commission may require the applicant to determine the boundary of Bordering Land
Subject to Flooding by engineering calculations which shall be:

a. based upon a design storm of seven and two-tenths inches of precipitation in 24
hours (i.e., a Type III Rainfall, as defined by the U.S. Natural Resource Conservation
Service);

b. based upon the standard methodologies set forth in U.S. Natural Resource
Conservation Service Technical Release No. 55, Urban Hydrology for Small
Watersheds and U.S. Natural Resource Conservation Service Technical Release No.
20; and

c. prepared by a registered professional engineer or other professional competent in
such matters.

4. The boundary of the ten year floodplain is the estimated maximum lateral extent of
the flood water which will theoretically result from the statistical ten-year frequency
storm. Said boundary shall be determined as specified under FWR 10.57(2)(a)3.,
except that where NFIP Profile data is unavailable, the boundary shall be the maximum
lateral extent of flood water which has been observed or recorded, or calculated, which
ever is greatest, during a 10 year frequency storm and, in the event of conflict,
engineering calculations under FWR 10.57(2)(a)3.b. and c. shall be based on a design
storm of 48/10 (4.8) inches of precipitation in 24 hours.

10.57: continued

(b) Isolated Land Subject to Flooding:

1. Isolated Land Subject to Flooding is an isolated depression or closed basin without
an inlet or an outlet. It is an area which at least once a year confines standing water to a
volume of at least 5000 cubic feet and to an average depth of at least six inches.
Isolated Land Subject to Flooding may be underlain by pervious material, which in turn
may be covered by a mat of organic peat or muck.

2. The characteristics specified in the foregoing FWR 10.57(2)(b)1. are critical to the
protection of the resource area values specified in FWR 10.57(1)(b).

3. The boundary of Isolated Land Subject to Flooding is the perimeter of the largest
observed or recorded volume of water confined in said area, or a line bounding the area
where flooding by runoff from a 100-year storm event is predicted. In the event of a
conflict of opinion regarding the extent of water confined in an Isolated Land Subject to
Flooding, the applicant may submit an opinion certified by a registered professional
engineer, supported by engineering calculations, as to the probable extent of said
water. Said calculations shall be prepared in accordance with the general requirements
set forth in FWR 10.57(2)(a)3.a. through c., except that the maximum extent of said
water shall be based upon the total volume (rather than peak rate) of run-off from the
drainage area contributing to the Isolated Land Subject to Flooding and shall be further
based upon the assumption that there is no infiltration of said run-off into the soil within
the Isolated Land Subject to Flooding.

(3) Presumption.

Where a project involves removing, filling, dredging, building upon, degrading or
otherwise altering of Land Subject to Flooding (both Bordering and Isolated Areas) the
Commission shall presume that such an area is significant to, and the proposed activity
will have a significant or cumulative effect upon, the resource area values specified in
FWR 10.57(1)(a) and (b). These presumptions may be overcome only upon a clear
showing that said land does not play a role in the protection of said resource area
values. In the event that these presumptions are deemed to have been overcome, the
Commission shall make a written determination to this effect, setting forth its grounds.

(4) General Performance Standards.

(a) Bordering Land Subject to Flooding:

1. Compensatory storage shall be provided for all flood storage volume that will be lost
as the result of a proposed project within Bordering Land Subject to Flooding, when in
the judgment of the Commission said loss will cause an increase or will contribute
incrementally to an increase in the horizontal extent and level of flood waters during
peak flows.

Compensatory storage shall mean a volume not previously used for flood storage and
shall be incrementally equal to the theoretical volume of flood water at each elevation,
up to and including the 100-year flood elevation, which would be displaced by the
proposed project. Such compensatory volume shall have an unrestricted hydraulic
connection to the same waterway or water body. Further, with respect to waterways,
such compensatory volume shall be provided within the same reach of the river, stream
or creek.

2. Work within Bordering Land Subject to Flooding, including that work required to
provide the above-specified compensatory storage, shall not restrict flows so as to
cause an increase in flood stage or velocity.

3. Work in those portions of bordering land subject to flooding found to be significant to
the protection of wildlife habitat shall not impair its capacity to provide important wildlife
habitat functions. A project or projects on a single lot or parcel, for which Permit
Application(s) is filed on or after August 15, 1998, that (cumulatively) alter(s) up to 2,500
square feet of land in this resource area found to be significant to the protection of
wildlife habitat, shall not be deemed to impair its capacity to provide important wildlife
habitat functions. Additional alterations beyond the above threshold, or altering vernal
pool habitat, may be permitted if they will have no adverse effects on wildlife habitat.

(b) Isolated Land Subject to Flooding: A proposed project in Isolated Land Subject to
Flooding shall not result in the following:

1. Flood damage due to filling which causes lateral displacement of water that would
otherwise be confined within said area.

2. An adverse effect on public and private water supply or ground water supply, where
said area is underlain by pervious material.

3. An adverse effect on the capacity of said area to prevent pollution of the ground
water, where the area is underlain

10.57: continued

by pervious material which in turn is covered by a mat of organic peat and muck.

(5) Notwithstanding the provisions of FWR 10.57(4)(a) or (b), no project may be
permitted which will have any adverse effect on wildlife habitat sites of rare vertebrate or
invertebrate species.

(6) If such a site is available on the applicant's land, all septic tanks and leaching
facilities shall be located outside the one hundred (100) foot buffer to the Isolated Land
Subject to Flooding.

(7) There shall be no subsurface tanks containing fuel, gas, oil or other hazardous
substances within Isolated Land Subject to Flooding.

FWR 10.58: Vernal Pools(6)
(1) Introduction. Vernal pools are significant to wildlife habitat. Vernal pools may also be
freshwater wetlands or land subject to flooding. Vernal pools flood temporarily when the
level of a bordering waterway or water body rises, or in cases where they are isolated
from other waters, when precipitation or rising groundwater fills them. Such sites furnish
critical breeding habitat for a number of amphibians, reptiles, and invertebrates, many of
them rare, endangered, or threatened. Since flooding is temporary, fish are not present
in these areas, so that for animals vulnerable to fish predation vernal pools are a
sanctuary. A number of species depend on these pools for successful reproduction.

Adjacent upland may be important for migration and overwintering of species
associated with vernal pools. Upland that remains cool and moist is required by various
amphibians after their breeding season. Destruction of such conditions can extinguish a
species locally. Thus the pools and their surrounding upland are an integrated habitat
and must be protected together.

In the Town of Falmouth, the Conservation Commission has determined that the state
criteria leave critical habitat vulnerable. Therefore, the Town assumes jurisdiction over
all vernal pool habitat within its borders. Alteration, filling, destruction, or degradation of
any such habitat is prohibited, with rare exceptions described herein.

A vernal pool is an essential breeding site for certain amphibians which generally
require isolated areas that are generally flooded for at least two continuous months in
the spring and/or summer and are free from fish predators. Most of these amphibians
remain near the breeding pool during the remainder of their lifecycle. Many reptiles,
birds and mammals also feed here.

.(2) Definition.

(a) Vernal pool means a confined basin depression which, at least in most years, holds
water for a minimum of two continuous months during the spring and/or summer, and
which are free of adult fish populations. These areas are essential breeding habitat, and
provide other extremely important wildlife habitat functions during non-breeding season
as well, for a variety of amphibian species such as wood frog (Rana sylvatica) and the
spotted salamander (Ambystoma maculatum), and are important habitat for other
wildlife species.

(b) A site is a vernal pool when it:

1. has been certified as a vernal pool by the Massachusetts Division of Fisheries and
Wildlife,

2. has been mapped prior to the filing of the permit application or Request for
Determination of Applicability by the Commission as a vernal pool; or

3. meets physical and biological criteria set forth by the Massachusetts Natural Heritage
and Endangered Species
10.58: continued

Program in its Guidelines for Certification of Vernal Pool Habitat (May 1988) as
amended.(7)

(c) The term "vernal pool habitat" refers to the vernal pool itself, together with the lands
within 100 feet of the vernal pool used by wildlife for migration and overwintering.

(d). The boundary of a vernal pool is that certified by the Massachusetts Division of
Fisheries and Wildlife, or mapped by the Commission, whichever is greater. In the event
of a lack of a clear boundary delineation certified by the Division of Fisheries and
Wildlife, or mapped by the Commission, the boundary shall be determined by
engineering calculations, as to the probable extent of said habitat, (Said calculations
shall be prepared in accordance with the general requirements set forth in FWR
10.57(2)(a)3.a. through c., except that the maximum extent of said water shall be based
upon the total volume (rather than peak rate) of run-off from the drainage area
contributing to the vernal pool and shall be further based upon a design storm of 27/10
(2.7) inches of precipitation in 24 hours) or by the mean annual high-water line,
whichever is greater. (The mean annual high-water line means the line that is apparent
from visible markings or changes in the character of soil's or vegetation due to the
presence of water and which distinguishes between predominantly aquatic and
predominantly terrestrial land. The mean annual high-water line may be identified by
permanent water marks on boulders, and vegetation.)

(3) Presumption. Where a project involves removing, filling, dredging, building upon,
degrading or otherwise altering of a vernal pool or vernal pool habitat, the Commission
shall presume that such an area is significant to, and the proposed activity will have a
significant or cumulative effect upon, the resource area values specified in FWR
10.58(1). These presumptions may be overcome only upon a clear showing that said
land does not play a role in the protection of said resource area values. In the event that
the presumptions are deemed to have been overcome, the Commission shall make a
written determination to this effect, setting forth its grounds.

(4) Performance Standards.

Where the presumptions set forth in FWR 10.58(3) have not been overcome, any
proposed activity shall have no adverse effect on the vernal pool.

(5) The Commission may permit work in the vernal pool habitat provided that the work
will cumulatively remove, dredge, build upon, degrade, or otherwise alter less than 20%
of the vernal pool habitat under control of the applicant, and that the area proposed to
be removed, dredged, built upon, degraded, or otherwise altered is more than seventy-
five (75) feet from the vernal pool.
(6) Not withstanding the provisions of FWR 10.58(5), where activity is proposed on a
parcel created prior to August 15, 1998. and where no practicable alternative exists on
the parcel that would allow a Vernal Pool buffer the width required in FWR 10.58(5) due
to site constraints, the Commission may issue a permit to allow such activity provided
the activity would not result in the cumulative alteration of more than 20% of the vernal
pool buffer on the lot of the applicant.

(7) Notwithstanding the provision of FWR 10.58(5) and (6) no project may be permitted
which will have any adverse effect on wildlife habitat sites of rare species.

FWR 10.59 through FWR 10.69

Reserved

FWR 10.70 Indicators of Wetland Hydrology

While vegetation is considered the most reliable indicator of long-term wetland
hydrology because it is generally observable throughout the year, other indicators also
may be used to confirm the presence of wetland hydrology. These other indicators are
presented in three categories: morphological plant adaptations, evidence of surface
water, and evidence of soil saturation. When delineating or reviewing a freshwater
wetland boundary, note the presence of any of these other indicators and consider them
in the evaluation. At many sites, these indicators can be used to refine the boundary
delineation. When encountering difficult sites, it may be necessary to actively seek
these other indicators to make the determination. However, some of these hydrologic
indicators can be affected by recent heavy rain or seasons with above average amounts
of precipitation. Conversely, these indicators may not be present during the entire year
or may be absent during prolonged periods of drought.

FWR 10.71 Morphological Plant Adaptations to Hydric Conditions

(1) Introduction

Morphological adaptations are evident in the form or shape of a plant. Adaptations that
result from inundation or saturation during the growing season are good indicators of
wetland hydrology. In addition, plants demonstrating morphological adaptations are
considered wetland indicator plants. Many species exhibit one or more morphological
adaptations for occurrence in wetlands. However, not all individuals of a species will
exhibit these adaptations under field conditions, and individuals occurring in uplands
characteristically may not exhibit them.

(2) Definition

Morphological adaptations of plants to hydric conditions include:
(a) Shallow root systems are probably the most useful adaptations that indicate wetland
hydrology in areas near the wetland/upland boundary. This indicator can be just as
useful with shrubs, saplings, and herbs as it is with trees. For instance, look for swollen
trunks or roots along the surface of the ground as evidence of shallow root systems, or
observe them directly on overturned trees. The key is to compare the root structures of
like or similar species growing further upslope in an upland setting. Be aware that
shallow root systems also form in upland areas where bedrock is close to the surface or
in very stony soils. Use soil maps and topography to confirm that shallow root systems
are the result of wetland hydrology and not stony soils or bedrock.

(b) Buttressed or fluted trunks are good indicators of hydrology that are often cited in
publications about wetland delineation. In Massachusetts, however, trees and saplings
rarely demonstrate the exaggerated, swollen bases typical of this adaptation. The
moderately swollen bases typically found in Massachusetts usually indicate the
presence of shallow root systems.

(c) Adventitious roots are roots that form on plant stems in positions where roots
normally do not occur. This adaptation is most common on active floodplains and may
be found on box elder (Acer negundo), sycamore (Platanus occidentalis), pin oak
(Quercus palustris), green ash (Fraxinus pennsylvanica), cottonwood (Populus
deltoides), and willows (Salix spp.).

(d) Enlarged (hypertrophied) lenticels on woody plants are indicators of inundated or
saturated growing conditions. Lenticels are small pores, usually resembling dots or thin
horizontal lines on the stems and twigs of woody plants. In response to saturated or
inundated growing conditions, these pores can become swollen or enlarged. Enlarged
lenticels can occasionally be found on red maple (Acer rubrum), silver maple (Acer
saccharinum), and willows (Salix spp.).

(e) Polymorphic leaves form on certain plant species when portions of the plant are
submerged while other portions extend above water. Plants like mermaidweed
(Proserpinaca palustris), water parsnip (Sium suave), and arrowheads (Sagittaria
latifolia) have different leaf forms depending on whether they grow above or below the
water surface. Underwater leaves tend to be narrow or finely divided; leaves above the
water surface tend to be broader and less divided. Where both forms occur on the same
plant (polymorphic leaves), these are good evidence of surface water for an extended
period during the growing season.

(f) Air-filled tissue (aerenchyma) forms in the roots and stems of many plants in
response to prolonged periods of saturation or inundation. These specialized tissues
help move oxygen from plant structures above water to those that are underwater or in
saturated soil. Plants that possess these air-filled tissues are spongy when squeezed
and the air cells are obvious when the plants are cut.

10.71: continued
(3) Examples of Morphological adaptations.

Species Common Name Adaptation

Alisma spp. Water plantain Polymorphic leaves

Brasenia schreberi Watershield Inflated, floating leaves

Cladium mariscoides Twig rush Inflated stems

Cyperus spp. (most species) Flat sedge Inflated stems and leaves

Eleocharis spp. (most

species) Spikerush Inflated stems and leaves

Fraxinus pennsylvanica Green ash Buttressed trunks; adventitious roots

Juncus SPP- Rush Inflated stems and leaves

Limnobium spongia Frogbit Inflated, floating leaves

Ludwigia spp. Water primrose Adventitious roots; inflated floating stems

Menyanthes trifoliata Buckbean Inflated stems (rhizome)

Myrica gale Sweetgale Hypertrophied lenticels

Nymphaea spp. Water lily Floating leaves

Nyssa sylvatica Swamp black Buttressed trunks

var. biflora gum

Pinus rigida Pitch pine Shallow root system: buttressed roots

Pinus strobus White pine Shallow root system: buttressed roots

Platanus occidentalis Sycamore Adventitious roots

Populus deltoides Cottonwood Adventitious roots

Quercus palustris Pin oak Adventitious roots

Sagittaria spp. Arrowhead Polymorphic leaves
Salix spp. Willow Hypertrophied lenticels; adventitious roots; oxygen pathway to roots

Salix nigra Black Willow Adventitious Roots

Scirpus spp. Bulrush Inflated stems and leaves

Spartina alterniflora Smooth Oxygen pathway to roots

cordgrass

FWR 10.72 Evidence of Surface Water

(1) Introduction

The presence of surface water during time of normal hydrological conditions shall be
considered sufficient evidence of saturation of inundation. Indicators of surface water
can be either biological of physical.

(2) Biological Indicators of Surface Water. The following indicators of wetland hydrology
may be used as evidence of soil saturation:

(a) Fingernail clam and aquatic snail shells can occasionally be found in dry
depressions and are good indicators of extended periods of inundation during the
growing season. Be aware, however, that there are terrestrial snails in Massachusetts;
their presence is not an indicator of wetland hydrology. Freshwater mussels, unlike
fingernail clams, only occur in areas that are permanently flooded. The presence of
mussel shells in areas other than aquatic habitats are not good indicators of wetland
hydrology because they often are transported by predators.

(b) Caddisfly cases. Caddisfly cases can occasionally be found in dry pools or
intermittent streams. Caddisflies are insects that are aquatic as larvae and winged as
adults. The larvae of many species construct tubelike cases around themselves, made
of leaf fragments, twigs, pine needles, or sand. These cases often persist long after the
water has dried up and serve as good indicators of extended periods of inundation
during the growing season.



(3) Physical Indicators of Surface Water

(a) Direct observation of inundation during the growing season is an obvious indication
of the presence of water. Recent

10.72: continued
weather conditions should be taken into consideration when using this indicator to
establish the presence of wetland hydrology.

(b) Water marks on trees, boulders, bridge abutments, or other objects are good
indicators of extended periods of

inundation. Water marks can be stained or silt covered areas, or an abrupt change in
plant or lichen growth that is present on several objects at a consistent elevation.

(c) Water-stained leaves on the ground are an indicator of inundation. Water-stained
leaves are usually dull gray or black in color, and are flattened compared with those in
surrounding (upland) areas.

(d) Sediment deposits on plants, leaves, or the ground are indicators of surface water,
but generally do not provide much information about the timing or duration of
inundation.

(e) Drift lines are accumulations of plant material or debris that are deposited, usually in
lines parallel to the stream flow, during flood events. Drift deposits may be evident on
the ground or occasionally in the branches of trees and shrubs. They are good
indicators of surface water, but do not provide much information about the timing or
duration of flooding.

(f) Scoured areas are good indicators of flowing water. These generally can be
recognized by the relative absence of leaf

litter and other debris on the ground, or where fine soils have been washed away,
leaving gravel and cobble. Scoured areas are good indicators of flowing conditions, but
do not provide much information about the timing or duration of flowing water.

(g) Drainage patterns left by flowing water indicate the presence of surface water.
These can be water-induced patterns on the ground (washboard or braided patterns in
the sediments), channels in the leaf litter, or where vegetation has been bent in one
direction by the force of running water. Although these patterns do serve as indicators of
surface water, they also may occur in upland areas.

FWR 10.73 Evidence of Soil Saturation.

(1) The following indicators of wetland hydrology may be used as evidence of soil
saturation:

(a) Free water in a soil test hole indicates depth to the water table at that particular time.
The depth at which water is observed weeping out of the soil into the hole also is an
indicator of water table depth. Free water or weeping within 12 inches of the surface is a
good indicator of wetland hydrology. However, recent weather conditions should be
considered when using this indicator.
(b) Saturated soil usually occurs in areas above the water table due to capillary action
within the soil. Saturated soils will yield water when squeezed. Saturated soil within 12
inches of the surface generally is a good indicator of wetland hydrology. However,
recent weather conditions should be considered when using this indicator.

(c) Oxidized rhizospheres within the A-horizon together with low-chroma colors right
below the A-horizon are good indicators of soil saturation during the growing season.
Roots and other underground plant structures growing in saturated soil conditions may
produce brightly colored areas in the soil called oxidized rhizospheres. Roots need
oxygen in order to survive and function. Under anaerobic soil conditions, oxygen moves
to the roots from other parts of the plant. Leakage of this oxygen results in the oxidation
of iron in the soil surrounding the roots. In areas of fluctuating water tables, this process
creates brightly colored root channels (oxidized rhizospheres) in the soil. Oxidized
rhizospheres are often evident within the topsoil and can be especially useful for
confirming the presence of saturated soil conditions just below the ground's surface.
Look for orange-stained channels along living plant roots in the soil.

(d) Hydrological records, such as those from U.S. Geological Survey (USGS) stream
gauging stations, U.S. Army Corps of Engineers data for major water bodies, state and
local flood data, or NRCS state offices, can provide information on flood elevations, as
well as the frequency and duration of flooding. Hydrological records that provide
evidence of periods of continuous flooding from 7 to 21 days during the growing season
are indicators of wetland hydrology.

(e) Hydric Soils (see FWR 10.74)

FWR 10.74 Hydric Soils

(1) Introduction

Soils found in wetlands are called hydric soils. Hydric soil is a relatively new term
developed in the mid-1970s by wetland scientists working for the U.S. Fish and Wildlife
Service with help from the Natural Resources Conservation Service (NRCS). 10.74:
continued

Hydric soil is defined as "a soil that is saturated, ponded, or flooded long enough during
the growing season to cause anaerobic conditions in the upper part." Anaerobic
conditions produce physical and chemical changes in the soil that are readily
observable and serve as hydric soil indicators. Hydric soil indicators generally require
many years to develop. As a result, soils are good

indicators of the long-term hydrology of an area. Once developed, the physical
indicators of saturated conditions persist even after the hydrology of an area has been
altered. Hydric soil indicators are especially useful for delineating wetlands where the
vegetation has been altered.
The NRCS has developed local lists (by county) of soil series that are considered
hydric. It is important to note, however, that boundaries shown on soil survey maps are
approximate. A site visit is essential to verify the information contained in the soil survey
and to accurately delineate the BVW boundary.

Hydric soils can be divided into two groups based on characteristics that can be
observed in the field using soil test holes. These

are organic soils and hydric mineral soils.

(a) Organic Soils. Organic soils are made up of partially to well decomposed plant
material mixed with mineral elements. Generally, organic matter makes up 20-30
percent or more of the soil (depending on the amount of clay present). Organic soils
form in certain wetlands (especially bogs, fens, and marshes) where anaerobic
conditions slow the rate of decomposition and organic matter accumulates over time.
They generally can be recognized in the field by their dark color, slippery or fibrous
texture, and tendency to stain fingers when handled. Organic soils also are less
resistant than mineral soils to probing with a knife or shovel. When walking across these
soil areas, they often feel spongy underfoot.

Soils with at least 16 inches of organic material measured from the ground surface are
hydric soils and are referred to as histosols. Histosols are classified as fibrists (peats),
saprists (mucks), and hemists (mucky-peats and peaty-mucks). Soils with 8 to 16
inches of organic material measured from the ground surface also are hydric soils and
are referred to as having a histic epipedon (thick organic surface layer). Histosols and
soils with a histic epipedon are always hydric soils.

(b) Hydric Mineral Soils. Mineral soils contain less than 20-30 percent organic matter
and are made up primarily of sand, silt, and clay, with varying amounts of gravel,
cobbles, and stones. Hydric mineral soils are typically characterized by low-chroma
colors (0-2 on the Munsell Soil Color Charts) that result from gleization.

Gleization occurs when iron is reduced and becomes mobile due to anaerobic soil
conditions. Chemical change resulting from the presence of oxygen is called oxidation.
Many of the bright colors (brown, orange, and red) found in upland soils are the result of
oxidized iron on the surface of soil grains. Chemical change that results from the
absence of oxygen (anaerobic conditions) is called reduction. When soils are saturated
or inundated long enough to produce anaerobic conditions, iron is reduced. Unlike
oxidized iron, reduced iron is soluble in water and may move a short distance, or is
sometimes entirely leached out of saturated sandy soils. This leaching process often
creates soils that are dull-colored (low-chroma) or gray. These are hydric soils and are
known as gleyed soils. They are typically neutral gray or occasionally bluish, or
greenish-gray in color. The Munsell Soil Color Charts have special pages for gleyed
soils.
Some mineral soils may not readily show hydric soil characteristics due to texture
(sandy soils), or floodplain dynamics. (See FWR 10.74(3) Soils that are Difficult to
Analyze)

Under conditions of prolonged saturation, sulfur may become reduced and is converted
by bacteria into sulfur gas (hydrogen sulfide), giving some wetland soils a smell like
"rotten eggs."

In areas where the water table fluctuates, leading to alternating periods of oxidation and
reduction, iron often accumulates in brightly colored mottles or concretions (hard
nodules).

(2) Hydric Soil Indicators

The following is a list of some hydric soil indicators - any of which can be used to
identify the presence of wetland hydrology:

(a) Histosols (organic soils). Histosols are soils with at least 16 inches of organic
material measured from the soil surface.

(b) Histic epipedons. These are soils with 8 to 16 inches of organic material measured
from the soil surface.

(c) Sulfidic material. A strong "rotten egg" smell generally is noticed immediately after
the soil test hole is dug.

(d) Gleyed soils. Soils that are predominantly neutral gray, or occasionally greenish or
bluish gray in color within 12 inches from the bottom of the 0-horizon. (The Munsell Soil
Color Charts have special pages for gleyed soils.)

10.74: continued

(e) Soils with a matrix chroma of 0 or 1 and values of 4 or higher within 12 inches from
the bottom of the 0-horizon.

(f) Within 12 inches from the bottom of the 0-horizon, soils with a chroma of 2 or less
and values of 4 or higher in the matrix, and mottles with a chroma of 3 or higher.

(g) Within 12 inches from the bottom of the 0-horizon, soils with a matrix chroma of 3
and values of 4 or higher, with 10 percent or more low-chroma mottles, as well as
indicators of saturation (i.e., mottles, oxidized rhizospheres, concretions, nodules) within
6 inches of the soil surface.

(3) Soils that are Difficult to Analyze
In most cases, the hydric soil indicators listed in FWR 10.74(2) are sufficient to identify
wetland soils. However, certain soils are more difficult to assess, making it harder to
determine whether hydric conditions exist. Use the most recent edition of Field
Indicators for Identifying Hydric Soils in New England for a more extensive list of hydric
soil morphologies. The following is a list and discussion of soils that are difficult to
analyze:

(a) Sandy soils. Soil colors often are not distinctive in most sandy soils. Instead, look for
these indicators of hydric sandy soils (Indicators of hydric soils may be lacking
altogether in the soil of newly formed sand bars and interdunal depressions.):


1. high organic content in the surface layer (typically darker colors with values less than
3 and chroma of 2 or less) with mottles or other indicators of saturation directly below;

2. organic streaking directly below the A-horizon; or

3. matrix chroma of 3 (from the Munsell Soil Color Charts) in the top 12 inches of soil
measured from the bottom of the 0-horizon, with distinct or prominent mottling.

(b) Floodplain soils. These soils usually are characterized by distinctly layered soil
material. The layers form when new sediment is deposited during flood events. As a
result of this pattern of deposition, hydric soil indicators may never form, or may be
buried even though saturated or inundated conditions are present long enough to create
wetland hydrology.

(c) A-horizons that are thick and very dark. A-horizons greater than or equal to 12
inches thick with values less than 3 and chroma of 2 or less are difficult to analyze
because indicators of saturation are difficult to see. Therefore, look directly below the A-
horizon for a matrix chroma of 1 or less and values of 4 or higher. If the matrix color
directly below the thick and dark A-horizon is chroma 2 and value 4 or higher, other
indicators of saturation need to be present in the soil directly below the A-horizon. In
uncommon situations, it may be necessary to dig deeper to evaluate colors below the A-
horizon.

(d) Spodosols/Evergreen forest soils. Sandy soils in Falmouth dominated by evergreen
trees may possess gray colored E-horizons just beneath the surface. These colors are
not necessarily the result of saturation or inundation, but form as a result of the leaching
of organic material and aluminum and iron oxides by organic acids. These soils are
called spodosols and the gray layer that forms below the surface is known as the E-
horizon. Organic material and aluminum and iron oxides are deposited in a layer below
the E-horizon called the spodic horizon. Hydric indicators in spodosols include a
combination of two or more of the following features, with one occurring within the upper
12 inches of the soil surface and others documented below the soil surface:

1. a thick, black, sandy surface layer;
2. organic streaking in the E-horizon;

3. mottles within the E-horizon;

4. oxidized rhizospheres within the A or E-horizon;

5. iron concretions/nodules within the E-horizon or spodic horizon;

6. a partially or wholly cemented spodic horizon usually within 18 inches of the surface
measured from the bottom of the 0-horizon; and mottling within the spodic horizon.

Non-hydric spodosols can be recognized by brightly colored soil material below the E-
horizon and without mottles or other indicators of saturation.

FWR 10.80 Vegetative Analysis Methods

When determining the edge of the freshwater wetland, the plant community must be
assessed and assigned a value based on the contribution of the wetland plants to the
plant community. Three analysis techniques are recognized for this purpose. Because
each vegetative analysis method can provide a "false negative" the applicant must use
the method that provides the highest result for contribution of wetland plants in the plant
community. A "false positive" for a freshwater wetland using vegetation is prevented by
allowing for some other confirmation of saturated or inundated conditions.

FWR 10.81 Field Data Form Requirement

A field data form (see FWR 10.88) shall be used when delineating the boundary of a
freshwater wetland. It shall be used whether the boundary is delineated by vegetation
alone or by vegetation and other indicators of wetland hydrology. If detailed vegetative
assessment is not necessary for the site, the applicant shall make a note on the data
form and submit it. The field data form shall be submitted with a Request for
Determination of Applicability or a Permit Application.

FWR 10.82 Additional Definitions for FWR 10.80 through FWR 10.89

The following definitions are in addition to FWR 10.04 and FWR 10.23 and are for terms
used throughout FWR 10.80 through FWR 10.89:

(a) Vegetative Layers means separate strata within the vegetative communities are
divided for analysis. Five layers are used in this assessment: ground cover, shrub,
sapling, climbing woody vine, and tree.

(b) The ground cover layer includes woody vegetation less than 3 feet in height
(seedlings), non-climbing woody vines less than 3 feet in height, and all nonwoody
vegetation (herbs and mosses) of any height.
(c) Shrubs are woody vegetation greater than or equal to 3 feet, but less than 20 feet in
height.

(d) The sapling layer includes woody vegetation over 20 feet in height with a diameter at
breast height (dbh) greater than or equal to 0.4 inches to less than 5 inches. Diameter
at breast height is measured 4.5 feet from the ground.

(e) Trees are woody plants with a dbh of 5 inches or greater and a height of 20 feet or
more.

(f) Climbing woody vines are a separate vegetative layer.

(g) Percent cover is the percent of the ground surface that would be covered if the
foliage from a particular species or layer were projected onto the ground, ignoring small
gaps between the leaves and branches. Foliage from different individual plants in the
same layer can overlap, and as a result, total percent cover may exceed 100 percent.

(h) Basal area is the cross-sectional area of a tree trunk at breast height (measured 4.5
feet from the ground).

FWR 10.83 Observation Plots

Observation plots are used for measuring or estimating plant abundance. The number
of plots should be based on the complexity of the site. Plots generally should be located
in vegetative communities that are not clearly wetland or upland. Plot locations should
be chosen so that the vegetation within the plot is representative of the vegetation within
the community as a whole. Circular plots with the following dimensions are
recommended:

Ground cover: 5 foot radius

Shrubs: 15 foot radius

Saplings: 15 foot radius

Climbing woody vines: 30 foot radius

Trees: 30 foot radius

Plot size and shape may be varied when site conditions warrant. Plot locations shall be
located to ensure that the vegetative layer being sampled is representative of the plant
community in the study area. The location of all observation plots shall be shown on the
site plan.

FWR 10.84 Measuring Plant Abundance
(1) Percent Cover. Percent cover is a simple method for evaluating plant abundance
and can be used for all layers (ground cover, shrub, sapling, climbing woody vine, and
tree), when using the Dominance Test or the Wetland Site Index.

(a) Plant abundance should be estimated or measured for each layer where the total
percent cover is 5 percent or greater. All vegetative layers present in an observation plot
must be reported in the evaluation unless the total percent cover of a layer is less than 5
percent. Within each of those layers, estimate or measure plant abundance for each
species. Any plant species with 1 percent cover or less should not be included.

(b) When estimating or measuring percent cover, include any foliage in the layer that
occurs in the observation plot only

10.84: continued

if the stem or trunk of the plant originates within the plot.

(c) When estimating percent cover, use the following cover classes:

Cover Class Cover Range Ranges Midpoint

1 1-5% 3.0

2 6-15% 10.5

3 16-25% 20.5

4 26-50% 38.0

5 51-75% 63.0

6 76-95% 85.5

7 96-100% 98.0

(2) Measuring Basal Area

Basal area may be used to estimate percent dominance of trees for vegetative analysis.

(a) When using basal area to estimate abundance for the tree layer, include only those
trees whose trunks originate within the plot.

(b) Trees with multiple trunks that originate below 4.5 feet should be counted as two or
more trees (depending on the number of trunks). Each trunk of a multiple trunk tree
should be counted separately when determining total basal area for a plant species.
(3) Sampling Grids.

Where more precise determinations of plant cover in the ground cover vegetative layer
are required than are possible with the use of the estimation of percent cover using the
cover classes specified in FWR 10.84((1), a sampling grid may be used.

FWR 10.85 Department of Environmental Protection Dominance Test

Details on the criteria for delineating a freshwater wetland boundary and the terminology
used in this field data form are described in the handbook, Delineating Bordering
Vegetated Wetlands Under the Massachusetts Wetlands Protection Act (MA
Department of Environmental Protection, Division of Wetlands and Waterways, 1995).

(a) The Dominance Test Procedure Summary(8)

1. Evaluate percent cover: For each observation plot do the following (basal area may
be used for the tree layer):

a. Determine how many of the vegetative layers (ground cover, shrub, sapling, climbing
woody vine, tree) have a total percent cover of 5 percent or more within the observation
plot. Only those layers with a total percent cover of 5 percent or greater are to be used.

b. For each vegetative layer, estimate or measure percent cover for each plant species
in the layer. Any plant species with 1 percent cover or less should not be included. If
you know a plant species' name, list the name and its percent cover. If you do not
recognize a plant or do not know a plant's name, call it a generic name (e.g. species x)
and list its percent cover.

2. Determine percent dominance for plants in each layer: For those layers within the
observation plot with 5 percent cover or more, determine percent dominance for each
plant species as follows:

a. Add up percent cover for all plant species in the layer to determine the total percent
cover for the layer.

b. Divide the percent cover for each plant species by the total percent cover for the
layer, and multiply this by 100. This will yield percent dominance for each plant species
in each layer.

3. Identify dominant plants: Within the observation plot, identify the dominant plants in
each layer:

a. Beginning with the most abundant species, list the plants in the layer until the
cumulative total for percent dominance meets or exceeds 50 percent. In some cases,
this will only be one species; in other cases, several species may be needed to meet
the 50 percent threshold. These species are dominant plants for the layer.

b. Other species, not already listed in 3a., with a percent dominance of 20 percent or
greater also are dominant plants and

10.85: continued

should be listed.

c. If additional species in the layer have the same percent dominance as any species
already listed in 3a. and b., those species also are dominant plants and should be listed.

d. Those plants that meet a., b., and c. above are dominant plants for the layer. Identify
the scientific name and indicator category for all dominant plants. The indicator category
is taken from the most recent edition of National List of Plant Species That Occur in
Wetlands for the Falmouth area.

4. Determine whether the plant community is wetland or upland:

a. List the dominant plants (from 3.a., b., and c. above) for all layers being evaluated. A
given species may appear more than once on this list, if it is a dominant plant in more
than one layer.

b. Determine how many of the dominant plants are wetland indicator plants according to
FWR 10.55(2)(c).

c. Determine total number of wetland indicator plants and total number of non-wetland
indicator plants.

d. If the number of wetland indicator plants is equal to or greater than the number of
nonwetland indicator plants, the wetland vegetation criterion has been met. If vegetation
alone is presumed adequate for the delineation, the plot is in a freshwater wetland. If
vegetation alone is not presumed adequate or to overcome the presumption, other
indicators of hydrology (see FWR 10.70) also should be used to delineate the
freshwater wetland boundary.

FWR 10.86 Wetland Site Index

The Wetland Site Index (WSI)was developed by Dr. Martin C. Michener in 1983.

The WSI Procedure Summary:(9)

1. Determine plot area. The wetland flag is the center of the plot. The boundaries of the
plot are the radius of the plot and the wetland edge.
2. List all species in the ground cover in the study plot. Determine then record the %
aerial coverage for each species.

3. List all species in the tree layer in the study plot (30 ft. radius). Determine then record
the % aerial coverage for each species.

4. Repeat Step 3 for climbing woody vines.

5. In the sapling layer, list all species in the study plot (15 ft. radius). Determine then
record the % aerial coverage for each species.

6. Repeat Step 5 for the shrub layer.

7. Record the USFWS indicator status for each entry.

8. Based on cover class, establish the abundance factor for each entry.

9. Establish the sum of abundance factors for each USFWS category.

10. Multiply the sum of the abundance factor for each USFWS category by the
computed value for that USFWS category to establish a product for each USFWS
category.

11. Add all the products to establish a total product.

12. Add all the abundance factors to establish a total abundance.

13. Establish the WSI by dividing the total product by the total abundance.

14. If WSI < .45 then site is presumed upland. If WSI is > .45, and < .67, check soils. If
WSI is > .67, you may presume the site is wetland.

FWR 10.87 Relative Dominance of Wetland Species by Layering

Relative Dominance of Wetland Species by Layering (RDL) determines the percent
wetland plant community composition by the relative dominance of wetland species by
layers. The RDL method built upon vegetation mapping practices that had been in use
since the turn of the century.

10.87: continued

The RDL Procedure Summary:(10)

1. Determine plot area. This should be performed in the same manner as the
Dominance test (see FWR 10.84).
2. List all upland species, then all wetland species in the ground cover in a 5' radius
along the plot boundary centered on flag location. Determine, then record % aerial
coverage for each group. Note if a sampling grid is used.

3. List all upland species present in the tree layer, then all wetland species, in a 30'
radius along the plot boundary. Determine, then record, the % basal area (based on
dbh) or % aerial coverage of upland and wetland species relative to each other.

4. Repeat Step 3 for climbing woody vines.

5. In the sapling layer, list all upland species, then all wetland species, in the shrub layer
in a 15' radius along the plot boundary. Determine by visual estimate and record %
aerial coverage for each group.

6. Repeat Step 5 for the shrub layer.

7. Calculate the mean of the % coverage of wetland species from the results of each
vegetative layer.

8. If using other than the defaults for the different vegetative layers as defined in FWR
10.82, note that difference on the RDL form.

FWR 10.88 Delineation Forms

FWR 10.88

Freshwater Wetland Determination - Relative Dominance by Layers

Location______________________________
Site:_____________________________________

Date:_________________ Flag No:____________________
UPGRADIENT/DOWNGRADIENT

Data collected by:________________________________

Trees: % Aerial Coverage/Basal Area (circle one)

Saplings: % Aerial Coverage

Shrubs: % Aerial Coverage

Herbaceous: % Sampling Grid Used/Not Used (circle one)

Total: %/____ = ________% wetland plants
SPECIES LIST___________________

_______________________________

_______________________________

_______________________________

_______________________________

_______________________________

_______________________________

_______________________________

_______________________________

_______________________________

_______________________________

_______________________________

_______________________________

_______________________________

_______________________________

_______________________________

_______________________________

_______________________________

_______________________________

_______________________________

_______________________________

_______________________________

_______________________________
_______________________________

INSTRUCTIONS:

If any one vegetative layer has less than 5% absolute cover of the study plot, do not use
that layer to calculate the mean wetland plant contribution.

1. Determine plot area.

2. List all upland species present in the tree layer, then all wetland species, in a 30'
radius along the plot boundary. Determine, then record, the % basal area (based on
dbh) or % aerial coverage of upland and wetland species.

3. Repeat Step 2 for climbing woody vines.

4. In the sapling layer, list all upland species, then all wetland species, in a 15' radius
along the plot boundary. Determine by visual estimate and record % aerial coverage for
each group.

5. Repeat Step 4 for the shrub layer.

6. List all upland species, then all wetland species in the ground cover in a 5' radius
along the plot boundary centered on flag location. Note if sampling grid is used.

7. Calculate the mean of the % coverage of wetland species from the results of each
vegetative layer.

Notes:

TREES: greater than _______ft.

SAPLINGS: >________ ft. & < 5" dbh

SHRUBS: woody vegetation > _______ ft.NON-TEXT PAGE

FWR 10.88Freshwater Wetland Determination - Wetland Site Index

Date:____________________________________
Location:___________________________

Site:____________________________________ Flag
No:____________________________

Data collected by:_________________________ Downgradient/Upgradient (circle one)

LAYER
SPECIES USFWS

INDICATOR COVER

CLASS

ABUNDANCE




USFWS INDICATOR TOTAL ABUNDANCE X COMPUTED VALUE PRODUCT
Obligated Wetland x 1.00
Facultative W+ x .94
Facultative Wetland x .83
Facultative W- x .72
Facultative + x .61
Facultative x .50
Facultative - x .39
Facultative Up+ x .28
Facultative Upland x .17
Facultative Up - x .06
Upland x 00


Total Abundance:________________________ Total Product:_____________

Wetland Site Index = Total Product/Total Abundance__________________

If Wetland Site Index >0.45, then site is vegetative wetland If Wetland Site Index is
>0.67 may presume vegetation is correct.

% Coverage 1-5% 5-15% 15-25% 25-50% 50-75% 75-95% 95-100%

Cover Class 1 2 3 4 5 6 7
Abundance Factor 1 3 7 12 21 28 32

Layer Code: T-Trees SA-Saplings SH-Shrubs G-Ground Cover V-Vines

% Coverage 1-5% 5-15% 15-25% 25-50% 50-75% 75-95% 95-100%

Cover Class 1 2 3 4 5 6 7

Abundance Factor 1 3 7 12 21 28 32

Layer Code: T-Trees SA-Saplings SH-Shrubs G-Ground Cover V-Vines



LAYER

SPECIES USFWS

INDICATOR COVER

CLASS

ABUNDANCE




FWR 10.88Freshwater Wetland Determination - DEP Dominance Test

Applicant: Prepared by: Project location: File #:

Check all that apply:

[ ] Vegetation alone presumed adequate to delineate freshwater wetland boundary: fill
out Section I only
[ ] Vegetation and other indicators of hydrology used to delineate freshwater wetland
boundary: fill out Sections I and II.



Section 1. Vegetation Observation Plot Number: Transect Number: Date of Delineation:

A. Sample Layer and Plant Species B. Percent Cover C. Percent D. Dominant Plant E.
Wetland

(by common/scientific name) (or basal area) Dominance (yes or no) Indicator

Category*

* Use an asterisk to mark wetland indicator plants: plant species listed in the Wetlands
Protection Act (MGL c.131, s.40); plants in the genus Sphagnum; plants listed as FAC,
FAC+, FACW-, FACW, FACW+, or OBL; or plants with physiological or morphological
adaptations. If any plants are identified as wetland indicator plants due to physiological
or morphological adaptations, describe the adaptation next to the asterisk.



Vegetation conclusion:

Number of dominant wetland Indicator plants: Number of dominant non-wetland
Indicator plants:

Is the number of dominant wetland plants equal to or greater than the number of
dominant non-wetland plants? yes no

If vegetation alone is presumed adequate to delineate the freshwater wetland boundary,
submit this form with the Request for Determination of Applicability or Permit
Application.

Section II. Indicators of Hydrology

Hydric Soil Interpretation

1. Soil Survey

Is there a published soil survey for this site? yes no

title/date:

map number:
soil type mapped:

hydric soil inclusions:

Are field observations consistent with soil survey? yes no

Remarks:

2. Soil Description

Horizon Depth Matrix Color Mottles Color

Remarks:

3. Other:

Conclusion: Is soil hydric? yes no

Other Indicators of Hydrology: (check all that apply and describe)

[ ] Site inundated:

[ ] Depth to free water in observation hole:

[ ] Depth to soil saturation in observation hole:

[ ] Water marks:

[ ] Drift lines:

[ ] Sediment deposits:

[ ] Drainage patterns in wetland:

[ ] Oxidized rhizospheres:

[ ] Water-stained leaves:

[ ] Recorded data (stream, lake, or tidal gauge; aerial photo; other):



[ ] Other:

Vegetation and Hydrology Conclusion
yes no

Number of wetland indicator plants [ ] [ ]

> number of non-wetland indicator plants

Wetland hydrology present:

hydric soil present [ ] [ ]

other indicators of hydrology

present [ ] [ ]

Sample location is in a freshwater wetland

wetland [ ] [ ]

Submit this form with the Request for Determination of Applicability or Permit
Application.

1. Additional regulations regarding inland banks in the Black Beach/Great Sippewisset
Marsh District of Critical Planning Concern are found in FWR 10.39. Additional
regulations regarding inland banks the Waquoit Bay ACEC are found in FWR 10.40.

2. Additional regulations regarding freshwater wetlands in the Black Beach/Great
Sippewisset Marsh District of Critical Planning Concern are found in FWR 10.39.
Additional regulations regarding freshwater wetlands in the Waquoit Bay ACEC are
found in FWR 10.40.

3. See FWR 10.80

4. Additional regulations regarding land under waterbodies in the Black Beach/Great
Sippewisset Marsh District of Critical Planning Concern are found in FWR 10.39.
Additional regulations regarding land under water bodies in the Waquoit Bay ACEC are
found in FWR 10.40.

5. Additional regulations regarding land subject to flooding in the Black Beach/Great
Sippewisset Marsh District of Critical Planning Concern are found in FWR 10.39.
Additional regulations regarding land subject to flooding in the Waquoit Bay ACEC are
found in FWR 10.40.

6. Additional regulations regarding vernal pools in the Black Beach/Great Sippewisset
Marsh District of Critical Planning Concern are found in FWR 1.39. Additional
regulations regarding vernal pools in the Waquoit Bay ACEC are found in FWR 1.40.
7. Sites not yet certified by the state will be evaluated by a qualified wetlands biologist.

8. Use the Dominance Test delineation form in FWR 10.88.

9. Use the WSI delineation form in FWR 10.88.

10. Use the RDL form in FWR 10.88.

				
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