Boxborough Wetlands Regulations: Plans that Require Replication Discouraged; Buffer Zone No-Nos

Wetlands regulations in Boxborough (PDF) discuss the replication issue and spell out which activities are prohibited within 100 feet of protected resources areas. Here is an excerpt, which certain passages emphasized:

2.3.3. Wetland Replication.

The history of wetland replication is mixed. Scientific reviews [Brown, S&P Veneman, 1998] conclude that for the most part replications fail to reproduce the range of values–in quantity and quality–of the wetlands they are intended to replace, in particular, difficulties in replicating proper hydrological conditions in a consistent and enduring fashion seem to be a major source of the problem.

The Commission shall strongly discourage any plan that requires wetland replication. In those instances where replication is approved by the Commission the following conditions must be met:

2.3.3.1 The replicated wetland must be constructed in full and conditionally approved prior to construction of any structures.

2.3.3.2 At minimum the replicated wetland must reproduce all the values and functions of the original wetland as determined by the Conservation Commission. The Commission may require that additional values and functions be incorporated into the replication design.

In particular, in circumstances where replacement of specific functions and values would require substantial amounts of time before being completely replicated (for example, those provided by large mature trees) the Commission may require additional compensation of area, functions, values, etc. beyond those required in other sections of the Bylaw and its regulations.

2.3.3.3 The area of replication must be at least as large as the area of the original resource that [will] be destroyed.

The actual area ratio of replacement shall be decided on a case-by-case basis in accordance with 2.3.3.2

2.3.3.4 The top 12” of soil from the original wetland must be transplanted with soil structure–especially lamination and density profile–intact to the replication.

This is intended to preserve plant, invertebrate, and planktonic communities of the wetland and inhibit the blossoming of invasive species.

2.3.3.5 Any replication or restoration work that creates a resource or abutting properties shall require an easement from the abutting property owner covering the full extension of the resource on that property prior to commencement of the work.

2.3.3.6 A bond shall be posted that will enable the Commission to complete the replication should the applicant fail to fulfill obligations set forth in the Order of conditions. Standards for the replication shall be specified and verified in terms of functions, values, and actual performance. Technical and engineering specifications used for design and construction shall be considered approximate. Criteria for acceptance and approval shall be based solely on function and performance as specified in the Order of Conditions. In other words replications will be evaluated on what they are expected to do, not how closely actual construction matched the plan.

For example, although elevations may be used for design and planning of a pond the standards shall be set in terms of volume and depth of water over the course of a year.

Replications that do not properly perform the approved functions and values as specified in the order of conditions will not be deemed acceptable no matter how closely they adhere to approved engineered plans.

The Commission may set other conditions on a project/site specific basis…

2.4 Vernal Pools.

2.4.3. Timing of Evidence Collection.

Many of the indicators of vernal pool habitat are seasonal. For example, certain salamander egg clusters are only found between late March and late May. Wood frog chorusing only occurs between late March and May, and then only at night. Consequently, failure to find evidence of breeding must be tied explicitly to those periods during which the evidence is most likely to be available.

Accordingly, in the case of challenges to the presumption of vernal pool habitat the Conservation Commission may require that the determination be postponed until the appropriate time period consistent with the evidence being presented. The Commission may also require its own site visits as necessary to confirm the evidence.

2.4.4. Performance Standards. There shall be no alteration to any vernal pool which either
(a) is located within a Wetland as defined under the Bylaw; or
(b) is located within an Adjacent Land Resource Area.
There shall be no alteration of any wetland or any Adjacent Land Resource Area within 100 feet of any such vernal pool…

2.5.2. Presumption. The Commission presumes that activities in lands within 100 feet of the above listed resources will result in alteration of protected resource areas. This presumption can be overcome only when the applicant demonstrates by a preponderance of the credible evidence that the proposed use or activity will not have an adverse effect on this or any other resource areas ability to protect wetland resource area values.

2.5.3. Performance Standards.
2.5.3.1 In order to provide for the protection of this adjacent land resource area (lands within 100 feet) the following activities are prohibited:
– Underground fuel storage;
– Underground or outside storage of hazardous materials;
– Parking lots;
– Dumpsters or refuse containers;
– Any part of a new sanitary waste disposal system including the grading required for these systems;
– Permanent structures including but not limited to buildings, barns, garages, or structures attached to same.
– The disturbance of any existing vegetation in the 50 feet of buffer zone closest to the wetlands.
– Stump pits or burial of any other type of construction refuse.
– Work in an adjacent land resource area which supports documented rare species…

2.6 Other.
2.6.1. In all cases, it shall be the applicant that bears the burden of proving that the activity or use proposed will not harm any of the interests protected by the Bylaw.

2.6.2. The presumptions for resource areas can be overcome only when the applicant demonstrates by a preponderance of credible evidence that:

a. The State-of-the-art engineering solution proposed will protect the Bylaw interests, or
b. The activity or use proposed will improve a resource area that has suffered degradation, or
c. The resource area affected by the proposed use or activity is not significant to the Bylaw interests.