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Town of Falmouth, MA Black Beach DCPC Regulations
View the Town of Falmouth's GIS Department's Black Beach DCPC Boundary Map (2.5 MB pdf file).
Amendments made to the Falmouth Wetlands regulations, FWR 10.00, pursuant to Chapter 235 of the Code of Falmouth and Barnstable County Ordinance 96-1, with an effective date of April 17, 1997.
[These wetland regulations were prepared with assistance by the Buzzards Bay National Estuary Program.]
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In Section FWR 10.01 Interests Protected by the Falmouth Wetlands Bylaw add:
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
- minimization of the impact of new development, reconstruction and/or expansion on the
resource area values listed above.
In Section FWR 10.02 Area of Jurisdiction (Resource Areas) add:
g) The Lands and waters within the Black Beach/Great Sippewisset Marsh District of Critical
Planning Concern.
In Section FWR 10.04 DEFINITIONS add:
Critical wildlife and plant habitat
Critical wildlife and plant habitat means the following areas: areas utilized by threatened, rare, or endangered species, or species of special concern; or areas listed in the Cape Cod Critical Habitat Atlas (Association for the Preservation of Cape Cod, 1990).
Improvement of water quality
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.
Harvestable shellfish and finfish
Harvestable shellfish and finfish means shellfish and finfish species with commercial value.
Protection of coastal ecosystems which support the continued viability of harvestable shellfish and finfish habitat
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.
Prevention of damage to structures and natural resources as a result of erosion
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
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
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.
In Section FWR 10.05 Procedures, (2) Request for Determination of Applicability (RDA) add:
(e) 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.
In Section FWR 10.05 Procedures, (3) Notice of Intent (NOI) add:
(e) Notices of Intent (NOI) or Order of Conditions (OOC) issued before April 17, 1997 do not need to reapply for the same activities pursuant to FWR 10.39 unless the NOI or OOC has expired.
In Section FWR 10.05 Procedures, (10) Order of Conditions add:
(i) Minimizing Resource Area Impacts
1. In the Black Beach/Great Sippewisset Marsh District of Critical Planning Concern, Orders of Conditions 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.
(j) Notwithstanding the provisions of FWR 10.05(10)(i)1., the Commission may issue a permit for a project that temporarily alters more than the amount specified in FWR 10.05(10)(i)1 during construction activities provided the area in excess of that specified in FWR 10.05(10)(i)1 is restored to a naturally vegetated condition immediately following construction.
Add a new section, FWR 10.39, by adding:
FWR 10.39 Land or Waters within Black Beach/Sippewisset Marsh District of Critical Planning Concern(1)
(1) Preamble. 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.
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 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 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 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 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 every 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 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(2)(b) and (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 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(10)(i)1.
(b) Work on a developed lot where the existing total cumulative resource area impacts are less than that specified in FWR 10.05(10)(i)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(10)(i)1.
(c) Work on a developed lot where the existing total cumulative resource area impacts are greater than FWR 10.05(10)(i)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(10)(i)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. (2)
(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; saltmarsh; land under a salt pond; land containing species that are endangered, rare, threatened, or of special concern; freshwater wetlands; land under waterbodies and waterways; 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 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 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 10.14(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(3) 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.
Amendments made to the Falmouth Wetlands regulations, FWR 10.00, pursuant to Chapter 235
of the Code of Falmouth, effective immediately:
FWR 10.09 Variance
(1) The Commission may waive the application of any regulation(s) in FWR 10.16 through 10.60 when they find, after opportunity for a hearing, that:
(a) there are no reasonable conditions or alternatives that would allow the project to proceed in compliance with FWR 10.16 through 10.60;
(b) mitigating measures are proposed that will allow the project to be conditioned so as to contribute to the protection of the resource area values identified in Chapter 235 of the Code of Falmouth; and
(c) the variance is necessary to accommodate an overriding community public interest; or that it is necessary to avoid a Permit decision that so restricts the use of property as to constitute an unconstitutional taking without compensation.
(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 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). The applicant shall pay for the services of the hearing officer as provided by FWR 10.05(5).
(d) Within 21 days of receiving the report of the hearing officer, the Commissioner shall issue a decision as to whether to grant the variance request.
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.
1. 2. 3.