Wetland Regulations

Table of Contents

Attachment A – Filing Fee, Notice of Intent specs, and on-site requirements

Part I Introduction 

1.01 Introduction 3
1.02 Waivers 3
1.03 Severability 3
1.04 Effective Date 3-4
1.05 Definitions 4-10
1.07 Filing and Hearing Procedures 10
1.08 Extension of Permits 10-11

Part II Regulations for coastal Wetlands

2.01 Land under the ocean 11-13
2.02 Coastal Beaches and Tidal Flats 13-15
2.03 Coastal Dunes 16-18
2.04 Barrier Beaches 18-20
2.05 Coastal Banks 20-22
2.06 Salt Marshes 22-25
2.07 Salt Ponds 25-27
2.08 Land Containing Shellfish 27-29
2.09 Land Subject to Storm Flowage 29-31

Part III - Regulations for Inland Wetlands

3.01 Vegetated Wetlands 31-33

DCPC Overlay Districts Regulations

1.06 Lagoon Pond and Tashmoo 33
1.06A Pier Regulations 34-35
1.06B Submittal Requirements for piers 35
1.06C Fertilizers and Pesticide use 35-36

Non Criminal Disposition Regulations

1.09 Violations and Fines 36-37

Dates of Approval

1.01 – 1.05 (first page only) and 1.06A, B & C January 3, 1989
1.05 (last eight pages) – 3.01 March 6, 1990
1.09 February 20, 1990

Attachment A
Preface: Submittal requirements for filing under the Tisbury Wetlands By-law.

Number of Copies: 2

All applications materials must be submitted to the Conservation Office in time for the application to be advertised in the newspaper five (5) days prior to the public hearing.

Filing Fees

• Notice of Intent: Residential: $25.00 (per lot, each lot in a subdivision must be filed separately)
• Commercial: $40.00 per building

Specifications for Notice of Intent Plans:

• Edge of Wetland: Outlined in green
• Limit of Work Area: Delineated in black
• Current Grades: Dashed Lines
• Proposed Grades: Solid lines
• Title box: Date/owner/prepared for/bar scale
• North arrow labeled
• Assessor's reference: sheet number and lot
• Lot areas
• Appropriate Engineers/Land Surveyors stamp and signatures
• Two foot interval contours based on NGVD for coastal areas and benchmark for inland resource areas.
• 100 year floor elevations: Delineated in red
• High water mark for all bodies of water from best available data
• Scale: 1:40 maximum
• 100 foot radius from wetland to be indicated
• Location, species and dbh of all trees (over 3"dbh) to be removed
• Top and toe of any coastal bank, beach or dune
• Location of any temporary erosion control barrier, i.e. walls, haybales, retaining walls, etc.

All above ground structures, roadways, access ways and other physical alterations proposed. Identify roadway material.

All below ground alterations and structures, including utility lines, drainage structures, on-site septic systems, wells and storage tanks.

Distance of leaching facility to wetlands, water bodies and resource areas.

Capacity of septic system

Surface drainage directions and destinations when applicable (requires engineers stamp and signature)

• On Site Requirements: (to be in place by noon on Friday prior to the hearing date)
• Lot number must be posted (in difficult to locate areas as sign or flagging off a major road would be helpful)
• House number must be visible if existing house
• New structures or additions must be staked for identification purposes to all corners. Stakes must be flagged or painted.
• Wetland boundary must be flagged. First flag to read, "start" #1, last flag to read "end" #.
• Any proposed clearing for paths, access ways, etc. should be indicated.

Tisbury Wetlands By-law Regulations

Part I: General Provisions

Section 1.01.1 Introduction and Purpose

• These regulations are promulgated by the Town of Tisbury Conservation Commission (hereinafter referred to as the Commission) pursuant to the authority granted to it under section five (5) of the Town of Tisbury Wetlands By-law, (hereinafter referred to as the By-law). The regulations should be read together with the By-law, which has many important provisions not repeated in these regulations. These regulations shall be used to enforce and implement the By-law, and shall have the force of law upon their effective date. These regulations supersede all existing rules and practices previously applicable to procedures and proceedings before the Commission.
• Purpose: The purpose of these regulations is to establish definitions, design standards, and uniform procedures by which the Tisbury Conservation Commission is to carry out its responsibilities under the By-law.

Section 1.02 Waivers of Requirements
The Commission may, in its discretion for good cause shown, grant waivers from the operation of one or more of these regulations pursuant to this sections. Such waivers are intended to be granted only in rare and unusual cases, and shall be granted only in accordance with the provisions of this section. A waiver may be granted only for the following reasons and upon the following conditions:

The Commission may grant a waiver from these regulations and impose such additional or substituted requirements as it deems necessary, upon a clear and convincing showing by the applicant that: 1) There are no reasonable conditions or alternatives that would allow the project to proceed in compliance with the regulations: 2) the project, or its natural and consequential effects, will not have any adverse effect upon any of the interests protected by the By-law. It shall be the responsibility of the applicant to provide the Commission with any information which the Commission may in writing request in order to enable the Commission to ascertain such adverse effects. The failure of the applicant to furnish any information which has been so requested shall result in the denial of a request for a waiver pursuant to this subsection.

The Commission may grant a waiver from these regulations when it is necessary to avoid so restricting the use of the property as to constitute an unconstitutional taking without compensation. If an application for a waiver pursuant to this subsection is received by the Commission, the Commission may request an opinion from Town Counsel as to whether the application of these regulations to a particular case will result in such taking without compensation.

The Commission may impose additional conditions in granting a permit pursuant to this subsection, including imposing limits on projects size or effect or requiring other compensatory measures, such as wetland replication.

Section 1.03 Severability and Invalidity
The invalidity of any section of these regulations shall not invalidate any other section or provision, nor shall it invalidate any permit or determination which previously has been issued.

Section 1.04 Effective Date
The effective date of these regulations shall be the date on which these regulations are approved by vote of the Conservation Commission. These regulations shall apply to all Notices of Intent and Request for Determinations filed after that date.

Section 1.05 Definitions
The definitions in Section 1.05 of these regulations are for terms as used in the by-law and for terms as used in these regulations. To the extent not defined herein or in the By-law, words used in the By-law or in these regulations shall have the definitions contained in the Massachusetts Wetlands Protection Act (MGL Ch. 131, S. 40) and the rules and regulations promulgated thereunder.

Adverse effects: A greater than negligible change in the resource area or one of its characteristics or factors that diminish the value of the resource area to one or more of the specific interests of the By-law, as determined by the Commission. "Negligible" means small enough to be disregarded.

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

Fisheries: All species of fresh and saltwater fin fish including the nutrient sources and the habitat in which they live all or part of their life cycle.

Salt marsh vegetation: Vegetation which is well adapted to living in a saline environment, including, but not limited to salt meadow cord grass (Spartina patens) and salt marsh cord grass (Spartina alterniflora)

Shellfish: Includes the following species: Bay scallop (Argopecten irradians); Blue mussel (Mytilus edulis); Ocean quahog (Arctica islandica); Oyster (Crassostrea virginica); Sea clam (Spisula solidissima); Sea scallop (Placopecten magellanicus); soft shell clam (Mya arenaria).

Shellfish constable: The official in a city or town, whether designated a constable, warden, natural resources officer, or by some other name, in charge of enforcing the laws regulating the harvest of shellfish.

Water dependent projects or uses: Projects which require direct wetlands access for their intended use and therefore cannot be located out of an Area Subject to Protection under the By-law. Examples include by are not limited to, docks, piers, boat landing, boathouses, marinas, stairs to beaches, and boardwalks over wetland vegetation. Projects which benefit from wetlands access but which do not require it are not water dependent projects or uses.

• Examples include, but are not limited to restaurants, dwellings, and commercial enterprises servicing marine-related uses such as fish markets, repair facilities, and ships chandleries.

Additional Definitions – Section 1.05
Abutter: An owner of land in any direction sharing a common boundary with the site of the proposed activity, including any land located directly across a street, way, stream, pond or diagonally across from an intersection of roads. A landowner more than 300 feet across a pond shall not be considered an abutter.

Activity: Same as work

Applicant: The individual for whom the work is being performed.

Agent: The individual filing the Request for Determination or Notice of Intent other than the property owner. If the agent is not a Registered Land Surveyor, Registered Professional Engineer, Registered Architect, or lawyer, the agent must have a letter from the owner authorizing the work.

Areas subject to protection: Land Areas and/or water bodies subject to protection under this By-law, as set forth in Section 1, subsection 104, of the By-law.

Bank (Coastal): The seaward face or side of any elevated land form, other than a coastal dune, which lies at the landward edge of a coastal beach, land subject to tidal action or storm flooding, or other wetland. Any minor discontinuity of the slope notwithstanding, the top of the bank shall be the top of the face of the bank or the break in slope above the relevant 100-year flood plain elevation. A bank may be partially or totally vegetated, or it may comprise exposed soil, gravel, stone or sand. A bank may be created by man and/or man-made materials.

Bank (Inland): The portion of land surface which normally abuts and confines a water body. A bank may be partially or totally vegetated, or it may be comprised of exposed soil, gravel, stone or sand. The upper boundary of a bank is the first observable break in the slope above the ten-year flood level. The lower boundary of a bank is the water body and/or a marsh. A bank may be created by man and/or man made materials.

Barrier Beach: A narrow low-lying strip of land generally consisting of coastal beaches and coastal dunes extending roughly parallel to the direction of the coast, lies predominately within the ten(10) foot elevation contour line; on the ocean side, is characterized by highly permeable soil (typically and, gravel or mixed sand and gravel); is flood prone; severely constrains the safe siting of on-site wastewater disposal systems and potable wells; is a high risk area with respect to human health and safety as well as environmental and ecological concerns arising from human habitation and other uses and includes but is not limited to those designated by the CZM Barrier Beach Inventory Maps, April 1982. It is separation 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. Beach Road is exempt from this definition.

Beach: Unconsolidated sediment subject to wave, tidal or coastal storm action which forms the gently sloping shore of a body of salt water, including land which is separated from other land by a body of water or a marsh system. Beaches extend from the mean low water line landward to the dune line, coastal bank line, or the seaward edge of existing manmade structures, when these structures replace one of the above lines, whichever is closest to the ocean. The following definitions apply to different regions of the beach:

Foreshore: The area of beach between normal low tide and normal high tide.

High beach: The area of beach between normal high tide and spring high tide.

Backshore: The area of beach between normal high tide and the toe of the dune, the start of the coastal bank or the seaward edge of an existing manmade structure. The backshore of the beach is made up of a significant portion of one or more, but not limited to nor necessarily including all of the following plants or groups of plants: Beach grass (Ammophila brevigulata); dusty miller (Artemisia stelleriana); sea rocket (Cakile edentula); beach heath (Husonia tomentosa); jointweed (Polygonella articulata); rushes (Juncus sp.)

Bogs: Areas where standing or slowly running water is near or at the surface during a normal growing season and where a plant community has a significant portion of the ground or water surface covered with Sphagnum moss (Sphagnum) and where the plant community is made up of a significant portion of one or more, but not limited to nor necessarily including all of the following plants or groups of plants: aster (Aster nemoralis); azaleas (Phododendron canadense and R. viscosum); bog cotton (Eriophorum); cranberry (Vaccinium macrocarpon); high bush blueberry (Vaccinium corymbosum); laurels (Kalmia augustifolia and K. polifolia); leatherleaf (Chamaedaphne calyculata); orchids (Arethusa, Calopagon, Pagonia); pitcher sundew (Droseracae); sweet gale (Myrica gale); and white cedar (Chamaeacyparis thyoides).

Bordering: Touching at any point

Building upon: Construction of any kind of structure, whether on land or in water; placing of obstructions or objects in water (other than fish or shellfish traps, pens or trays used in conjunction with aquaculture, or aids to navigation). 

Bulkhead: Coastal engineering structure placed parallel to the shore, intended to prevent or alleviate storm damage, tidal wave action or erosion. For the sake of bevity, within these regulations can also mean rip rap, seawall or revetment.

Coastal Engineering Structure: Any bulkhead, revetment, seawall, rip-rap, groin, jetty, plastic sheeting or other structure intended to prevent or alleviate storm damage, tidal action, wave action, littoral flow or erosion.

Coastal Wetland: Any bank, beach, dune, estuary, marsh, swamp, meadow, flat, stream which flows into coastal Great Ponds, other lowland subject to tidal action or coastal storm flowage; an area composed of hydric soils.

Commission or Conservation Commission: Tisbury Conservation Commission as a body of members lawfully appointed pursuant to MGL, ch. 40, s. 8c.

Conditions: Those requirements set forth in a written Permit issued by the Commission for the purpose of permitting, regulating, or prohibiting any activity that alters an area subject to protection under the By-law.

Creek: Same as a stream.

Department: Massachusetts Department of Environmental Protection (DEP) or any successors thereto.

Dredge: To deepen, widen or excavate, either temporarily or permanently a waterbody or watercourse.

Drift Line Zone: The area of beach between spring high tide and the toe of the dune which consists chiefly of organic material deposited on the backshore during spring tides or storms.

Dune: Any natural hill, or manmade structure, 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.

Erosion Control: The prevention or reduction of the detachment or movement of soil or rock fragments by water, wind, ice, gravity and/or man's activities.

Estuary: Any area or partially enclosed coastal body of water where fresh and salt water meet and mix and where tidal effects are evident.

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

Fisheries: All species of fresh and saltwater fin fish including the nutrient sources and the habitat in which they live all or part of their life cycles.

Flat: Any nearly level part of a shoreline or coastal beach which usually extends from the extreme low water line landward to the more steeply sloping face of a coastal beach or bank. The flat may be separated from the beach by land under the ocean. The sediment making up a tidal flat is usually, but not necessarily, a fine grained material.

Flood control: The prevention or reduction of flooding and flood damage.

Freshwater wetland: A wet meadow, freshwater marsh, swamp, bog, pond, lake, creek, verbal pool or stream; an area of low topography where ground water, flowing water, standing surface water or ice provides a significant part of the supporting substrate for any plant community for at least five months of the year; disturbed areas where the substrate is composed of hydric soils; emergent and submergent plant communities in inland waters; that portion of any bank which touches any inland waters.

Ground water: Water below or seeping from the earth's surface in the zone of saturation.

Hydric soils: A soil that in its undrained condition is saturated, flooded, or ponded long enough during the growing season to develop anaerobic conditions that favor the growth and regeneration of hydrophytic vegetation including but not limited in future definition to those soils in, "Hydric Soils of New England:, 1987.

Interest Protected by the By-law: The wetland values either singly or collectively specified in Section 1, of the By-law.

Lake: Same as pond

Land Subject to Coastal Storm Flowage: Land subject to any inundation caused by coastal storms up to and including that caused by the 100 year storm, surge of record, or storm of record, whichever is greater.

Land Subject to Flooding: An area of low, flat topography, or a depression or basin either 1) hydrologically directly connected with a water body, extending from the banks or the upland edge of the vegetated wetlands surrounding this water body; or 2) an isolated depression or basin which on the average at least every five years confines standing water as observed under conditions of average rainfall. The boundary of Land Subject to Flooding which is hydrologically directly connected to a water body is the estimated lateral extent of the flooding, which shall be based on the 100 year storm event during a year of average rainfall, or by actual record if that is higher.

Marsh (freshwater): Areas where a plant community exists in standing or running water during the growing season and where a significant part of the plant community is composed of, but not limited to nor necessarily including all, the following plants: arums (Araceae); bladder worts (Utricularia); bur reeds (Sparganiaceae); button bush (Cephlanthus occidentalis); cattails (Typha); duc weeds (Lemnaceae); eelgrass (Vallisneria); frog bits (Hydrocharitaceae); horsetails (Equisetaceae); hydrophilic grasses (Graminae); leatherleaf (Chamaedaphne calyculata); picerel weeks (Pontedericaceae); pipeworts (Eriocaulon); pond weeds (Pontederiaceae); rushes (Juncaceae); sedges (Cyperaceae); smartweeds (Polygonum); sweet gale (Myrica gale); wate milfoil (Haloragaceae); water lilies (Nympheacea); water starworts (Callitrichaceae); or water willow (Decodon verticillatus).

Marsh (saltwater): A coastal wetland that extends from the ocean landward up to the highest spring tide line, and where a significant part of the plant community is composed of, but not limited to nor necessarily including all, the following plants or groups of plants; salt meadow cord grass (Spartina patens); salt marsh cord grass (Spartina alterniflora); spike grass (Distichlis spicata); Sea lavender (Limonium nashii); seaside plantain (Plantago juncoides); salt marsh aster (Aster tenuifolius and A. subulatus); sea blite (Suaeda maritima); black grass (Juncus gerardi); samphire (Salicornia Bigelovii and S. europaea); woody glasswort (Salicornia virginica); silverweed (Potentilla anserina); nodding ladies' tresses (Spiranthes cernua); saltmarsh bulrush (Scirpus maritimus); sea milkwort (Glaux maritima); marsh elder (Iva frutenscens); groundsel-tree (Baccharis halimifolia); soft rush (Juncus effusus): chair maker's rush (Scirpus americanus); panic grass (Panicum longifolium) or horned rush (Rhynchospora macrostachya).

Meadows: Areas where ground water is at the surface for a significant part of the growing season and near the surface throughout the year and where a significant part of the plant community is composed of various grasses, sedges, and rushes, made up of, but not limited to nor necessarily including all of the following plants or groups of plants: blue flag (iris); varvain (Verbena); thoroughwort (Eupatorium); dock (Rumex); falso loosestrife (Ludwigia); hydrophilic grasses (Graminae); loosestrife (Lythrum); marsh fern (Dryopterus thgelypteris); rushes (Juncacea); sedges (Cyperaceae); ensitive fern (Onoclea sensibilis); smartweed (Polygonum); or Jewelweed (Impatiens capensis).

MEPA: The Massachusetts Environmental Policy Act, MGL, c. 30, s. 62-62H and the regulations promulgated pursuant thereto, 301 CMR 11.00 et seq.

Permit: The document issued by the Commission containing conditions which regulate or prohibit an activity under the By-law.

Pollution: Contamination of land, surface or ground water with materials not normally present in those water or with elevated level of naturally occurring materials.

Pond: Any open body of fresh, brackish or salt water, habitually more than 5,000 square feet in area, either naturally occurring or man-made by impoundment, which is never without standing water due to natural causes except during periods of extended drought and the land under the water body, Basins or lagoons which are part of waste water treatment plants shall not be considered ponds, nor shall swimming pools or other impervious man-made retention basins.

Private Water Supply: Any source or volume of surface or ground water in any private use or demonstrated to have a potential for private use.

Recreation: Activities of individuals done for relaxation carried out in a resource area of this By-law, including, but not limited to, swimming, walking, hunting, fishing, bird watching, shellfishing and boating.

Remove: To take away any type of material including vegetation, or thereby changing elevation, either temporarily or permanently.

River: Same as a stream. 

Shellfish: Includes, but is not limited to, Bay scallop (argopecten irradians); Blue mussel (Mytilus edulis); Ocean Quahog (Arctica islandica): Oyster (Crassostrea virginica); Quahog (Mercenarai merceneria); Raxor clam (Ensis direcctus); Sea clam (Spislola soldissma); Sea scallop (Placopecten magellamicus); soft shell clam (Mya arenaria); lobster (Homarus americanus); and blue crabs (Callinectes sapidus).

Storm Damage Prevention: The prevention of damage caused by water from storms, including but not limited to: erosion and sedimentation; introduction of contaminants to any water bodies, wetlands, or private and public water supplies; damage to vegetation, property or buildings; or damage caused by flooding, waterborne debris or waterborne ice.

Stream: A body of running water and the land under the water, including brooks, creeks, and man-made water courses, which flows along in an identifiable path. A portion of a stream may flow through a culvert, pipe or beneath a bridge. A stream may be intermittent (i.e., does not flow throughout the year).

Structure: A combination of materials assembled at a fixed location to give support or shelter. A "structure" includes any building. A fence or wall over six (6) feet high shall be considered a "structure"; an open terrace not more than thirty (30) inches above grade shall not be considered to be a "structure." A vessel shall not be considered to be a "structure."

Swamps: Areas where ground water is at or near the surface of the ground for a significant part of the growing season or where runoff water from surface drainage frequently collects above the soil surface, and where a significant portion of the plant community is made up of, but not limited to and not necessarily including all, of the following plants or groups of plants: alders (Alnus); ashes (Fraxinus); azaleas (Rhododendron canadense and R. viscosum); black alder (Ilex verticillata); button bush (Caphalanthus occidentalis); highbush blueberry (Vaccinium corymbosum); poison sumac (Toxicodendron vernix); red maple (Acer rubrum); sphagnum mosses (Sphagnum); black gum, tupelo & beetlebung (Nyssa sylvatica); sweet pepper bush (Clethra alnitolia); willow (Salicaceae); and common reed (Phragmites communis).

Water Dependent Projects or Uses: Projects which require direct wetlands access for their intended use and therefore cannot be located out of an Area Subject to Protection Under the By-law. Examples include but are not limited to: docks, piers, boat landings, boathouses, marinas and stairs to beaches, boardwalks over wetland vegetation. Projects which benefit from wetlands access but which do not require it are not water dependent uses. Examples include restaurants, dwellings, and commercial enterprises servicing marine-related uses such as fish markets and ships chandleries.

Wildlife: All non-domesticated mammals, birds, reptiles, amphibians, fishes or invertebrates which use and Area Subject to Protection Under the By-law for any part of their life cycle. Special consideration shall only be given to members of the class Insecta if they are rare or endangered as defined by the Massachusetts Natural Heritage Program or its successor, or if they are a major food source of other wildlife, but not if the insect species is determined by the Commission and the Board of Health to constitute a pest whose protection under the By-law would be a risk to man at the proposed project site.

Section 1.07: Filing and Hearing Procedures
If the Notice of Intent is deemed by the Commission to be insufficient to fully describe the proposed activity and its effect on the environment, the Commission may, at its discretion: a) Notify the applicant, by certified mail within 10 days of receipt of notice, of the additional information that will be necessary to render the notice sufficiently complete for acceptance. The filing fee shall be returned and the review period shall not begin until a complete application is submitted; or b) inform the applicant at or prior to the public hearing of the additional information required, and offer the applicant the opportunity to continue the public hearing so that the additional information can be submitted for review.

When a person filing an application is other than the owner, the findings and decision of the Commission shall be sent by the Commission to the owner as well as to the person filing the application, and the applicant shall supply the Commission with the name and current address of the owner.

In the event that only part of the work proposed lies within an Area Subject to Protection Under the By-law, all aspects of the work shall be briefly described on the application form.

When the individual filing the Request for Determination or Notice of Intent is other than the property owner, a Registered Professional Engineer, a registered land surveyor or lawyer, then the Commission must receive a letter from the property owner authorizing the work.

When a person filing a Request for Determination or Notice of Intent is not the owner, notice of the time and place of a hearing shall be given to the owner, by the Commission at the address supplied to the Commission by the applicant.

If a hearing is to be continued, all revised plans and requested information must be received by the Conservation Commission Staff two days prior to the Commission meeting.

Section 1.08: Extensions of Permits

1. The Commission may extend a Permit as provided by the By-law Section 2.
2. The Commission shall not deny a request for an extension unless it finds by a preponderance of the evidence any one of the following:

• No work has begun on the project; unless the failure to begin work is due to an unavoidable delay in obtaining other necessary state or municipal approvals, permits or variances are appealed;
• New information, not available at the time the Permit was issued, indicates that the Permit is not adequate to protect the interests identified in the By-law;
• Incomplete work is causing damage to the interests identified in the By-law;
• Work has been done in violation of the By-law, these regulations or conditions in the Permit; or the extension request is not timely.

An extension request shall be timely if received by the Commission for review at a normally scheduled meeting of the Commission prior to the expiration date of the Permit.

Part II – Regulations for Coastal Wetlands

Section 2.01 Land Under the Ocean
Characteristics and Protected Interests

1. The Commission finds that regulations applicable to activities involving land under the ocean are necessary and proper for the following reasons:
   1. Land under the ocean provides feeding areas, spawning and nursery grounds and shelter for many coastal organisms related to marine fisheries and wildlife. Destruction of eelgrass beds (Zoster marina) will harm scallop production. Nearshore areas, and in some cases offshore areas, of land under the ocean help reduce storm damage, erosion and flooding by diminishing and buffering the high energy effects of storms. Submerged sand bars dissipate wave energy. Such areas provide a source of sediment for seasonal rebuilding of coastal beaches and dunes. The bottom topography and sediment type of nearshore areas of land under the ocean is critical to erosion control, storm damage protection, and flood control. Water circulation and flushing rates, distribution of sediment grain size, water quality (including but not limited to turbidity, temperature, nutrients, pollutants, salinity and dissolved oxygen), and the habitat of wildlife, fin fish and shellfish are all factors critical to the protection of wildlife and marine fisheries and shell fisheries. Land under the ocean in an unobstructed state is important to recreational swimming, fishing and shellfishing to recreational boating and sailing, and to commercial fishing and shellfishing.
2. In view of the foregoing, whenever a proposed project involves removing, filling, dredging, altering or building upon land under the ocean, the Commission shall find that such land is significant to the protection of the following interests: flood control, erosion control, storm damage prevention, fisheries, shellfish, wildlife and recreation. These findings may be overcome only upon a clear showing that the Land Under the Ocean does not play a role in protecting one or more of the interests given above and only upon a specific written determination to that effect by the Commission.

Section 2.01
When Land Under the Ocean is Determined to be significant to an Interest Protected by the By-law, the following regulations shall apply:

Improvement and maintenance dredging for navigational purposes shall be designed and carried out using the best available measures as determined by the Commission so as to have the least possible adverse effects or changes in marine productivity caused by changes in, or resulting from suspension or transport of pollutants, sediment transport, smothering of bottom organisms, accumulation of pollutants by organisms, destruction of habitat or nutrient source areas, or changes in water circulation and water quality. Dredging, particularly important dredging shall also use such best available measures to minimize adverse effects caused by changes in bottom topography resulting in an increase in height and velocity of waves hitting the shore or in changes in sediment transport which affect natural replenishment of beaches or maintenance of channels.

Construction of residential piers shall be accomplished as determined by the Commission so as not to change shoreline movement of sediments, harm significant shellfish resources, obstruct commercial shellfishing or obstruct the reserved public rights of fishing, fowling, navigation or passage. No solid fill piers shall be permitted.

The regulations contained in regulations 4 and 8 of this section do not apply to water dependent commercially zoned uses except where DCPC regulations supercede.

Regulations for piers in all town waters shall be those contained in Section 1.06 A and 1.06 B. The inner harbor is exempt from these requirements.

Construction of commercial piers shall not affect sediment transport, and shall not destroy or pollute fisheries and shellfish habitat or nutrient source areas for those resources. No solid-fill piers shall be permitted.

Best available measures as determined by the Commission shall be used to minimize adverse effects of a commercial or residential pier on the interests protected by the By-law.

Aquaculture projects shall be undertaken pursuant to such means as may be established by the Commission so as to have the least possible adverse effect on wildlife, erosion control, storm damage prevention, flood control, recreation or public access. No destruction of habitat or areas where shellfish feed, or change in water quality or circulation in any manner which adversely affects productivity or marine fisheries or shellfish beds shall be permitted.

No new bulkheads or coastal engineering structures shall be permitted to protect structures built after August 10, 1978. Existing bulkheads may be repaired or reconstructed in a similar location and according to the guidelines in the Army Corps of Engineers "Shore Protection Manual," so as to minimize, using best available measures, adverse effects on adjacent or nearby coastal beaches and structures due to changes in wave action, and only to its original length, if it is protecting an existing house. Bulkheads may be rebuilt only if the Commission determines there is no environmentally better way to control an erosion problem, including in appropriate cases the moving of the threatened building.

Water dependent projects shall be designed and performed so as to cause no adverse effects on wildlife, erosion control, marine fisheries, shellfish beds, storm damage prevention, flood control and recreation.

No activity on land under the ocean which is not water dependent shall be permitted by the Commission, except activity allowed pursuant to a waiver from these regulations, as set forth in Section 1.02.

The Commission may impose such additional requirements as are necessary to protect the Interests protected by the By-law.

Section 2.02 Coastal Beach and Tidal Flats
Characteristics and Protected Interests

1. The Commission finds that regulations applicable to activities involving coastal beaches and tidal flats are necessary and proper for the following reasons:
   1. 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 which is moving along the shore. Coastal beaches serve the purpose of storm damage prevention, erosion control, 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 reduces the ability of the coastal beach to perform these functions.
   2. Tidal flats are important to the protection of marine fisheries because they provide habitats for marine organisms, such as polycheate worms and mollusk which in turn are food sources for fish. Tidal flats are also sites where organic and inorganic materials are entrapped and then returned to the photosynthetic zone of the water column to support algae and other primary producers of the marine food web. Coastal beaches and flats serve as important habitats for a wide variety of wildlife. They are used in particular by coastal birds for feeding areas and nesting sites. The natural erosional and depositional cycles, sediment grain size, water quality (including but not limited to turbidity, temperature, nutrients, pollutants, salinity and dissolved oxygen) and circulation and elevation of the land surface are all features of wildlife habitat which are critical characteristics for the protection of wildlife. Characteristics of coastal beaches and flats which are critical to the protection of marine fisheries and shellfish include: distribution of sediment grain size, movement of sediment, water quality (including the characteristics given above) and circulation and beach relief and elevation. Characteristics of coastal beaches and flats which are critical to storm damage prevention, erosion control, or flood control include sediment volume and form, their depositional cycles, and wave intensities. Characteristics of coastal beaches which are critical to recreation are topography, sediment grain size, water quality, water circulation rates and patters, unobstructed access along the shore, natural erosional and depositional cycles and wave intensity. Land within 100 feet of a coastal beach or tidal flat is considered to be important to the protection and maintenance of coastal beaches and tidal flats and therefore to the protection of the wetland values which these areas contain.
2. In view of the foregoing, whenever a proposed project involves removing, filling, dredging, altering or building upon a coastal beach or flat, the Commission shall find that the beach or flat is significant to the protection of the following interests: flood control, erosion control, storm damage prevention, fisheries, shellfish, wildlife and recreation. These findings may be overcome only upon a clear showing that the beach or flat does not play a role in protecting one or more of the interests given above and upon only a specific written determination to that effect by the Commission.

Section 2.02
When a coastal beach, tidal flat or land within 100 feet of a coastal beach or tidal flat is determined to be significant to an Interest Protected by the By-law, the following regulations shall apply:

The provisions of Section 2.01 B (1-8) (Land Under the Ocean) shall apply to coastal beaches and tidal flats.

No new bulkheads or coastal engineering structures shall be permitted. Existing bulkheads may be repaired or reconstructed in a location similar to the existing location and only to its original length, if it is protecting an existing house built prior to August of 1978. Bulkheads may be rebuilt according to guidelines in the Army Corps of Engineers "Shore Protection Manual," so as to minimize, using best available measures, adverse effects on adjacent, nearby coastal beaches and structures due to changes in wave action, and only if the Commission determines there is no environmentally better way to control an erosion problem, including in appropriate cases the moving of the threatened building. Existing coastal engineering structures, other than bulkheads, may not be repaired, re-built or re-habilitated.

Dredging projects in flats must be done in accordance with such procedures as the Commission determines would disturb the absolute minimum amount of habitat possible.

No fill shall be placed within 25 feet of a coastal beach. If a project is water dependent, the Commission may allow limited placement of fill after making a written finding that there is no feasible way to avoid filling the beach or within 25 feet of the beach. All possible mitigation measures shall be taken as determined by the Commission to limit the adverse effects of the fill.

No newly constructed, except for an upgrade/replacement of a failed cesspool or septic system (as determined and/or ordered by the Board of Health or other such Agency), or determined to fail in the immediate future, (as determined by a R.P.E., Registered sanitician or the Health inspector) shall be placed in shifting sands or on a coastal beach. No newly constructed septic system shall be within 100 feet of the landward edge of a coastal beach or tidal flat. No newly constructed septic system shall be installed in soils with a percolation rate of five (5) minutes per inch where the distance to naturally occurring ground elevation to maximum ground water elevation is less than five feet, and in soils with a percolation rate of less than five (5) minutes per inch where the distance between naturally occurring ground elevation to maximum ground water elevation is less than seven (7) feet.

All work on projects which are not water dependent shall maintain at least a 25 foot natural undisturbed area adjacent to a coastal beach. All structures which are not water dependent shall be at least 50 feet from a coastal beach.

In areas of eroding shoreline, the distance from all buildings to the coastal beach shall be at least 20 times the average annual shoreline erosion or 50 feet, whichever is the greater. The average annual shoreline erosion rate shall be determined by averaging the annual erosion over a 150-year period ending the date the notice of intent was filed, or if no notice of intent was filed, the date construction began. If erosion data is not available for the 150-year period, the Commission shall determine the average annual erosion rate from the such lesser time period for which erosion data is available.

Cleaning, raking of coastal beaches must be accomplished using a rake in such a manner as to preserve the existing form, volume and grain size distribution of the beach. Cleaning of the beach is permitted on the areas of the beach between mean high tide and the spring high tide. Exceptions to this shall be taken into account when the area adjacent to the spring high tide zone is designated a nesting habitat for any species of tern or the piping plover. The party responsible for the cleaning, raking, shall provide the Commission with a description of the rake, this information if required in order to insure that the rake teeth are sufficiently separated so that the beach sediment will not be removed and that the beach form will not be altered.

Cleaning, raking, of a coastal beach is prohibited in the Drift line zone due to the sensitive nature of this portion of the high beach. The drift line zone consists chiefly or organic material deposited on the backshore during high spring tides or storms. Drift lines may contain large quantities of marine algae, eelgrass, and marsh detritus. Bacteria and fungi quickly break down this organic matter, releasing nutrients into the sand and eventually back to the sea.

The application of any inorganic fertilizers, pesticides, fungicides or other quick release chemicals is prohibited within 100 feet of a coastal beach or tidal flat. The Commission may grant a waiver for the application of all but inorganic fertilizers upon a clear and convincing showing the application of such chemicals is necessary to control:

• A pest deemed a health hazard by the Local Board of Health or,
• A pest which has damaged twenty percent (20%) of a commercial crop or a crop necessary for livestock.

Conditions:

• The request for the waiver must be accompanied by a recommendation including the amount, frequency and specific chemical to be applied by the Dukes County Extension Service or Pesticide Bureau.
• Applications of organic fertilizers are prohibited within 100 feet of a coastal beach or tidal flat unless a permit is first granted by the Commission. The permit request must be accompanied by the results of a soil analysis and recommendations from the Dukes County Extension Service.
• The Commission may impose such additional requirements as are necessary to protect the Interests Protected by the Bylaw.

Section 2.03 COASTAL DUNES
Characteristics and Protected Interests

The Commission finds that regulations applicable to activities involving coastal dunes are necessary and proper for the following reasons:

Coastal dunes aid in storm damage prevention, erosion control, and flood control by supplying sand to coastal beaches. Coastal dunes protect inland coastal areas from storm damage and flooding by storm waves and elevated sea levels because such dunes are higher then the coastal beaches which they border. Vegetated cover contributes to the growth and stability of coastal dunes by providing conditions favorable to sand deposition. On retreating shorelines, the ability of coastal dunes bordering a coastal beach to move landward at the rate of shoreline retreat allows these dunes to maintain their form and volume. Characteristics of coastal dunes which are critical for storm damage prevention, flood control, and erosion control include; ability of dune to erode and change in response to coastal beach conditions; dune volume, sediment grain size and slope; dune form which can change with wind and natural water flow; amount, continuity and density of vegetative cover; and ability of dune to move landward or laterally. Coastal dunes are important habitats for a wide variety of wildlife, particularly birds for feeding and nesting areas. Amount of vegetation, dune height and slope, sediment grain size and degree of isolation from human-caused disturbances are all features of dunes which are critical characteristics for the protection of wildlife. Land within 100 feet of a coastal dune is considered to be significant to the protection and maintenance of coastal dunes, and therefore to the protection of the wetland values which these areas contain.

In view of the foregoing, whenever a proposed project involves removing, filling, dredging, altering or building upon a coatal dune, the Commission shall find that the dune is significant to the protection of the following interests: flood control, erosion control, storm damage prevention and wildlife. These findings may be overcome only upon a clear showing that the dune does not play a role in protecting one or more of the interests given above and only upon a specific written determination to that effect by the Commission.

Section 2.03
When a Coastal Dune or Land within 100 feet of a Coastal dune is determined to be significant to an Interest Protected by the Bylaw, the following regulations shall apply:

• No coastal revetments or coastal engineering structures of any type shall be constructed, rebuilt or repaired.
• All projects which are water dependent shall maintain at least a 25 foot natural undisturbed area adjacent to the landward edge of a coastal dune. All structures which are not water dependent shall be at least 50 feet from the landward edge of a coastal dune.
• No excavation or disturbance of vegetative cover shall be allowed on a coastal dune unless the area is completely and successfully restored, replanted and stabilized to its original form and volume.
• Fill may be used only if the Commission authorizes its use and only if such fill is to be used for beach and dune nourishment projects or for habitat improvement for rare and endangered species.
• No newly constructed, except for an upgrade/replacement of a failed cesspool or septic system, (as determined and/or offered by the Board of Health or other such agency) or a system determined to fail in the immediate future, as determined by a R.P.E., Registered Sanitician or Health Inspector shall be placed on a coastal dune. Newly constructed septic systems shall be at least 100 feet from the landward edge of the coastal dunes. No newly constructed septic system shall be installed in any area with soils with a percolation rate of five (5) minutes per inch where the distance from naturally occurring ground elevation to maximum ground water elevation is less than five feet or in soils with a percolation rate faster than five (5) minutes per inch where the distance from naturally occurring ground elevation to maximum ground water elevation is less than seven (7) feet.

Any activity allowed on a coastal dune or within 100 feet of a dune shall be restricted to such activity that is determined by the Commission not to have any adverse effect on the dune by altering the ability of waves to remove sand from or deposit sand on a dune; by disturbing vegetative cover in a manner sufficient to destabilize the dune; by causing any modification of the dune form and slope which would increase the potential for erosion, storm or flood damage; by interfering with landward or lateral movement of the dune; or by causing the rate of sand removal to increase through manmade means or structures.

No activity shall be permitted, other than the maintenance and repair of a structure existing on the effective date of these regulations, that will result in construction of a building upon a coastal dune or within 50 feet of any coastal dune.

Any pedestrian walkways must be designed as determined by the Commission so as to minimize disturbances of vegetative cover and traditional bird nesting habitat.

In areas of eroding shoreline, the distance from all buildings to the coastal dune shall be a t least 20 times the average annual shoreline erosion or 50 feet, whichever is the greater. The average annual shoreline erosion rate shall be determined by averaging the annual erosion over a 150 year period, ending the date the Notice of Intent was filed, or if no Notice of Intent was filed, the date construction began. If erosion data is not available for the 150 year period, the Commission shall determine the average annual erosion rate from such lesser time of which erosion data is available.

Cleaning, raking of the beach which is associated with a dune system is prohibited from the dunes and from the drift line zone. Raking is likely to destroy or impair dune vegetation and thereby destabilize the dune. Raking may modify the dune form, thereby increasing the potential for storm and flood damage. Raking of the drift line zone would remove the fragments and seeds of dune plants which would impede the development of new dunes. Regeneration of beach grass on open sand and new dune development on open sand is almost exclusively composed of plant fragments washed from eroding dunes and re-deposited on the beach as drift. Once the plants are established, embryonic dunes can develop, provided they are not destroyed by raking or other impacts.

Vehicular traffic through or within 100 feet of a coastal dune for access to existing houses, fishing areas, shellfishing areas, beaches and or other recreational areas shall be in accordance with such procedures as the Commission determines will minimize any adverse effect(s) on the dunes.

Applications of any inorganic pesticides, herbicides, fungicides, or other quick release chemicals is prohibited within 100 feet of coastal dunes. The Commission may grant a waiver for the application of all but inorganic fertilizers upon a clear and convincing showing that the application of such chemicals is necessary to control:

• A pest deemed a health hazard by the local Board of Health, or;
• A pest which had damaged twenty percent (20%) of a commercial crop or a crop necessary for livestock food.
• The request for the waiver must be accompanied by a recommendation including the amount, frequency and specific chemical to be applied by the Dukes County Extension Service or Pesticide Bureau.

Applications of organic fertilizers are prohibited within 100 feet of a vegetated wetland unless a permit is first granted by the Commission. The permit request must be accompanied by the results of a soil analysis and recommendations from the Dukes Extension Service.

The Commission may impose such additional requirements as are necessary to protect the Interests Protected by the Bylaw.

Section 2.03
The following projects may be permitted, provided that they adhere to the provisions listed in 2.03 (B) (1-10).

Pedestrian walkways, designed to minimize the disturbance to the vegetative cover and traditional bird nesting habitat;

Fencing and other devices designed to increase dune development; and Plantings compatible with the natural vegetative cover.

Section 2.04: BARRIER BEACHES
Characteristics and Protected Interests

The Commission finds that the regulations applicable to activities involving barrier beaches are necessary and proper for the following reasons:

Barrier beaches protect landward areas from flooding and erosion because they provide a buffer to storm waves and to sea levels elevated by storms. Barrier beaches protect from wave action such highly productive areas as salt marshes, estuaries, lagoons, harbors, slat ponds and freshwater marshes and ponds, which are in turn important to fisheries and shellfish. Barrier beaches are maintained by the alongshore movement of beach sediment caused by wave action. The coastal dunes, beaches, and tidal flats of a barrier beach are made up of sediment supplied by wind action, storm wave overwash and tidal inlet deposition. Barrier beaches in Massachusetts undergo a landward or alongshore migration caused by the landward and alongshore movement of sediment by wind, storm waves and tidal current processes. The continuation of these processes maintains the volume of the land form which is necessary to carry out its storm and flood buffer functions.

The ability of barrier beaches to respond to wave action, including storm overwash sediment transport, is critical to the protection of the wetlands values of barrier beaches. The Characteristics and Protected Interests of Coastal Beaches, set forth in 2.02A of these regulations and the Characteristics and Protected Interests of Coastal Dunes, set forth in Section 2.03A also apply to Barrier Beaches.

In view of the foregoing, whenever a proposed project involves removing, filling, dredging, altering or building upon a barrier beach, the Commission shall find that the barrier beach is significant to the protection of the following interests: flood control, erosion control, storm damage prevention, fisheries, shellfish, wildlife and recreation. Barrier beaches shall be found significant to private water supply and ground water if there are existing houses with wells on or near the barrier beach or if the barrier beach abuts, creates, or protects a swamp, freshwater marsh or pond. These findings may be overcome only upon a clear showing that the barrier beach does not play a role in protecting one or more of the interests given above and only upon a specific written determination to that effect by the Commission.

Section 2.04
When a Barrier Beach or land within 100 feet of a Barrier Beach is determined to be significant to an Interest Protected by the Bylaw, the following regulations shall apply:

• No coastal revetments or coastal engineering structures of any type shall be constructed, rebuilt or repaired unless they are designed to maintain historic navigational channels using best available measures. Commercially zoned water dependent properties and uses along Beach Road are exempt.
• Fill may be used only if the Commission authorizes its use and only if such fill is to be used for beach and dune nourishment projects.
• No septic systems or buildings shall be constructed on a barrier beach. Buildings and septic systems which pre-exist these regulations may be maintained and repaired, but not enlarged.
• Excavation of sand around existing houses may be permitted, but no new projects shall be permitted which will require periodic sand removal for maintenance. All disturbed areas (including blowouts) shall be stabilized through planting of vegetation. The evacuated sand must be retained in the area and be a part of the barrier beach.
• Vehicular access for existing houses, fishing areas or shellfishing areas shall be done in accordance with such procedures as the Commission determines will minimize any adverse effect on the beach.
• Projects such as Pond openings for the enhancement of fisheries and shellfisheries, may be permitted if they are performed in a manner which will not permanently adversely effect the interests of storm damage prevention and flood control.
• Piers are prohibited from barrier beaches, including, but not limited to those State (CZM) and/or Federally listed barrier beaches. Commercially zoned properties and uses on Beach Road are exempt.
• Asphalt or bituminous paving is prohibited.
• The use, storage or possession of fertilizers, herbicides or insecticides, fungicides or other quick release chemicals are prohibited.

The storage possession of any hazardous chemical substance, as classified by the Federal Environmental Protection Agency or the Mass. Department of Environmental Protection, other than common household substances in volumes or concentrations not to exceed twice that found in the normal retail size container is prohibited.

The Commission may impose such additional requirements as are necessary to protect the Interests Protected by the Bylaw.

Section 2.05: COASTAL BANKS
Characteristics and Protected Interests

The Commission finds that regulations applicable to activities involving coastal banks are necessary and proper for the following reasons:

Coastal banks composed of unconsolidated sediment and exposed to wave action serve as a major source of sediment of other coastal landforms, including beaches, dunes, and barrier beaches. The supply of sediment is removed from banks by wave action. It is a naturally occurring process necessary to the continued existence of coastal beaches, coastal dunes and barrier beaches. These areas dissipate storm wave energy, thus protecting structures and coastal wetlands landward of them from storm damage, erosion and flooding. Coastal banks, because their height and stability may act as a buffer or natural wall, which protects upland areas from storm damage, erosion 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 play only a minor role in beach nourishment, should not be increased unnecessarily. Disturbances to a coastal bank which reduce its natural resistance to wind and rain erosion cause cuts and gullies in the bank, and decrease its value as a buffer. Vegetation tends to stabilize a coastal bank and reduce the rate of erosion due to wind and rain runoff. Undisturbed, vegetated areas along banks are critical to reducing wind and rain erosion from the top of the bank. A particular coastal bank may serve both as a sediment source and as a buffer or it may serve only one role. Coastal banks provide habitat for wildlife, particularly nesting birds. Characteristics of coastal banks which are critical to wildlife are bank steepness, height, stability and soil grain size compaction.

In view of the foregoing, whenever a proposed project involves removing, filling, dredging, altering or building upon a coastal bank, the Commission shall find that the bank is significant to the protection of the following interests: flood control, erosion control, storm damage prevention and wildlife. These findings may be overcome only upon a clear showing that the coastal bank does not play a role in protecting one or more of the interests given above and only upon a specific written determination to that effect by the Commission.

Section 2.05
When a Coastal Bank or land within 100 feet of a Coastal Bank is determined to be significant to an Interest Protected by the Bylaw, the following regulations shall apply:

No new coastal engineering structures may be permitted. Existing bulkheads, may be repaired or reconstructed to its original length, if it is protecting an existing house built prior to August 10, 1978, or a house built prior to August 10, 1978 which has been rebuilt increasing its floor area by 10 percent or less or for repairs or alterations totaling fifty percent or more of the actual cash value of the structure. Commercially zone properties and uses are exempt from the above regulations. All coastal engineering structures built or re-built, shall be designed as pre Army Corps of Engineer, "Shore Protection Manual," guidelines so as to minimize, using best available measures, adverse effects on adjacent or nearby coastal beaches and structures due to changes in wave action. Bulkheads and groins may be rebuilt only if the Commission determines there is no environmentally better way to control an erosion problem, including in appropriate cases the moving of the threatened building. Commercially zoned uses and properties are exempt.

Piers shall be constructed using procedures determined by the Commission to be the best available measures to minimize adverse effects on Interests Protected by the Bylaw.

All projects shall be restricted to activity as determined by the Commission to have no adverse effect on bank height, bank stability, or the use of the bank as a sediment source.

Elevated walkways designed not to affect bank vegetation shall be required for pedestrian passage over a bank.

All projects which are not water dependent shall maintain at least a 25 foot natural undisturbed area adjacent to a coastal bank. All structures which are not water dependent shall be at least 50 feet from a coastal bank.

New septic leach facilities of a septic system shall be at least 100 feet from the top of the coastal bank. No newly constructed septic system shall be installed in soils with a percolation rate of five minutes per inch any area where the distance from naturally occurring ground elevation to maximum ground water elevation in less than five feet or in soils with a percolation rate faster than five minutes per inch in any area where the distance from naturally occurring ground elevation to maximum ground water elevation is less than seven feet.

In areas of eroding shoreline the distance from all buildings to the coastal bank shall be at least 20 times the average annual shoreline erosion or 50 feet, whichever is the greater. The average annual shoreline erosion rate shall be determined by averaging the annual erosion over a 150 year period ending the date the Notice of Intent was filed, or if no Notice of Intent was filed, the date construction began. If erosion data is not available for the150-year period, the Commission shall determine the average annual erosion rate from such lesser time period for which such erosion data is available.

All permits issued for the construction of buildings under the Bylaw within 100 feet landward of the top of a coastal bank shall contain the specific condition that no coastal engineering structure of any kind shall be permitted an eroding bank in the future to protect the project allowed by this permit, except those coastal engineering structures allowed by a waiver issued pursuant to Section 1.02 of these regulations. The specific condition regarding no coastal engineering structures is on-going, applies to all successors, heirs, assigns and shall not expire with the issuance of a Certificate of Compliance.

The Commission may impose such additional requirements as are necessary to protect the Interests Protected by the Bylaw.

Section 2.05
The following projects may be permitted, provided that they adhere to the provisions listed in 2.05 (B) (1-8).

Pedestrian walkways, designed to minimize the disturbance to the vegetative cover and traditional bird nesting habitat.

Plantings compatible with the natural vegetative cover.

Section 2.06: SALT MARSHES
Characteristics and Protected Interests

The Commission finds that regulations applicable to activities involving salt marshes are necessary and proper for the following reasons:

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. Salt marshes also provide spawning and nursery habitat for several important estuarine forage finfish. Salt marsh plants and substrate remove pollutants from surrounding waters. The network of saltmarsh vegetation roots and rhizomes bind sediments together. The sediments absorb chlorinated hydrocarbons and heavy metals such as lead, copper and iron. The marsh also helps retain nitrogen and phosphorus compounds which can cause algal blooms and changes in ocean plankton and plant communities, particularly eelgrass. The underlying peat serves as a barrier between fresh groundwater landward of the marsh and the ocean, this helping to maintain the level of the groundwater. Slat marsh cord grass and underlying peat are resistant to erosion and dissipate waver energy, thereby providing a buffer that reduces wave damage and coastal erosion. A salt marsh is an important feeding area for many types of fish and aquatic and terrestrial wildlife. The marsh, including its creeks and open water, also provide important shelter for many aquatic migratory birds. Marshes help absorb pollutants, but there is a careful balance of nutrient and pollutant input which if exceeded will result in accumulation of pollutants and/or changes in the marsh community. As sea level rises, marshes shall migrate landward in response to the increase in tidal action and depth. Because the marsh is the basis for such a large food web, bioaccumulation of pollutants and toxins can mean that relatively low levels of pollutants may be detrimental. Some of the characteristics of slat marshes which are critical to their health and ability to protect wetland values include: the growth, composition and distribution of slat marsh vegetation; the amount of flow and level of both tidal and fresh water; the water quality (including but not limited to turbidity, temperature, nutrients, pollutants, salinity and dissolved oxygen) of both tidal and fresh water; the presence and depth of pet; rate of marsh productivity; and the diversity of the animals and plants making up the marsh community. Salt marshes provide excellent areas for bird watching, canoeing and hunting.

In view of the foregoing, whenever a proposed project involves removing, filling, dredging, altering or building upon a salt marsh, the Commission shall find that the salt marsh is significant to the protection of the following interests: groundwater, erosion control, storm damage prevention, water pollution prevention, fisheries, shellfish, wildlife and recreation. These findings may be overcome only upon a clear showing that the salt marsh does not play a role in protecting one or more of the interests given above and only upon a specific written determination to that effect by the Commission

When a salt marsh or land within 100 feet of a salt marsh is determined to be significant to an Interest Protected by the Bylaw, the following regulations shall apply:

• Salt marshes shall not be filled.
• Salt marsh hay may be harvested from a salt marsh only if performed in a manner which does not disturb the marsh substrate.
• A project which will create, restore or rehabilitate a salt marsh, such as removal of debris, removal of invasive exotic vegetation or restoring normal tidal action, may be permitted if performed in a manner which does not disturb or adversely effect the substrate of the marsh.
• No proposed project in a salt marsh, or in lands within 100 feet of a salt marsh, shall destroy any portion of the salt marsh, have an adverse effect on salt marsh productivity, pollute the salt marsh or adversely effect water quality.
• All projects which are not water dependent shall be no closer than 50 feet from a salt marsh. All projects which are not water dependent shall maintain at least a 25 foot natural undisturbed area adjacent to the salt marsh.
• Elevated walkways may be constructed over a salt marsh if they are constructed in a manner which does not adversely effect marsh productivity and/or height and/or density. Minimum walkway height over Spartina alterniflora is 3.5 feet, minimum height over S. patens is 4.5 feet and minimum height over Distichlis spicata is 4.5 feet.
• Any grading, alteration in topography or removal/addition of vegetation within 100 feet of a salt marsh shall not change the direction of or amount of water flow towards the marsh.
• New septic leach facility of a septic system shall be at least 100 feet from the salt marsh. No newly constructed septic system shall be installed in soils with a percolation rate faster than five (5) minutes per inch in any area where the distance from naturally occurring ground elevation to maximum ground water elevation is less than five feet or in soils with a percolation rate faster than five minutes per inch in any area where the distance from naturally occurring ground elevation to maximum ground water elevation is less than seven (7) feet.

The application of any inorganic fertilizers, pesticides, herbicides, fungicides, or other quick release chemicals is prohibited within 100 feet of a salt marsh. The Commission may grant a waiver for the application of all but inorganic fertilizers upon a clear and convincing showing that the application of such chemicals is necessary to control:

• A pest deemed a health hazard by the local Board of Health, or:
• A pest which had damaged twenty percent (20%) of a commercial crop or a crop necessary for livestock food.

The request for the waiver must be accompanied by a recommendation including the amount, frequency, and specific chemical to be applied by the Dukes County extension service or the Pesticide Bureau.

Applications of organic fertilizers are prohibited within 100 feet of a salt marsh unless a permit is first granted by the Commission. The permit request must be accompanied by the results of a soil analysis and recommendations from the Dukes County Extension Service.

Salt marsh ditching, or drainage of any way shape or form, whether new or maintenance is prohibited unless the local Board of Health, or other such agency, deems such activity necessary as the only method, other than the application of pesticides, to control a pest deemed a hazard to the health of the people in the surrounding area.

The Commission may impose such additional requirements as are necessary to protect the Interests Protected by the Bylaw.

Section 2.06
The following projects may be permitted, provided that they adhere to the provisions listed in 2.06 (B) (1-12).

• Pedestrian walkways (as per 2.06 (B) (6).
• Plantings compatible with the natural vegetative cover.

Section 2.07 SALT PONDS
Characteristics and Protected Interests

The Commission finds that regulations applicable to activities involving salt ponds are necessary and proper for the following reasons:

Salt ponds provide excellent habitat for marine fisheries. The high productivity of plants and phytoplankton provides food for shellfish, crustaceans, and juvenile fish. The bottom sediments and shallow water are excellent areas for many bivalves. The ponds also serve as spawning and nursery areas for crabs and fish. The productivity of salt ponds and the food web they support provides ideal habitat for many types of wildlife, particularly various ducks and shore birds. The enclosed nature of the ponds also provides shelter for wildlife. Salt ponds and the area around them provide the public many recreational opportunities including: shellfishing, fishing, sailing, swimming, hunting, and wildlife observation.

Because of their semi-enclosed nature, salt ponds are sensitive to pollution or nutrient input. These inputs can change the plant and animal species composition of the pond, and thus can be detrimental to fish, shellfish and wildlife. Bioaccumulation through food webs can also create dangerous levels of pollutants or toxins for wildlife and humans. Characteristics of salt ponds which are critical to various wetland values include water circulation, distribution of sediment grain size, amount of freshwater and saltwater inflow, productivity of plants and water quality (including but not limited to amounts of dissolved oxygen, nutrients, temperature, turbidity, pollutants, and salinity). Land within 100 feet of a salt pond is considered to be significant to the protection and maintenance of a salt pond and the land beneath it and therefore to the protection of the wetlands values of the pond.

In view of the foregoing, whenever a proposed project involves removing, filling, dredging, altering or building upon a slat pond, the Commission shall find that the salt pond is significant to the protection of the following interests: fisheries, shellfisheries, wildlife and recreation. These findings may be overcome only upon a clear showing that the salt pond does not play a role in protection of one or more of the interests given above and only upon a specific written determination to that effect by the Commission.

Section 2.07
When a salt pond or land within 100 feet of a salt pond is determined to be significant to an Interest Protected by the Bylaw, the following regulations shall apply:

The work shall be done in accordance with procedures determined by the Commission to have no adverse effect on wildlife, fisheries, shellfish, or existing water quality and so as not to pollute the pond or alter the critical characteristics of salt ponds.

All projects which are not water dependent shall maintain at least a 25 foot natural undisturbed area adjacent to a salt pond. All structures which are not water dependent shall be at least 50 feet from a salt pond.

The septic leach facility of a new septic system shall be at least 100 feet from the salt pond spring high tide or the associated wetlands whichever is the greater. No newly constructed septic system shall be installed in soils with a percolation rate of five (5) minutes per inch where the distance from naturally occurring ground elevation to maximum ground water elevation is less than five (5) feet or in soils with a percolation rate faster than five (5) minutes per inch where the distance from naturally occurring ground elevation to maximum ground water elevation is less than seven (7) feet.

Projects designed to enhance a particular fishery or shellfish shall be designed in accordance with such procedures as the Commission determines will minimize adverse ecological effects on the salt pond, including adverse effects on plants and animals which are not the species targeted for management. If such management projects have adverse effects on any of the Protected Interests of the Bylaw, such projects shall be permitted only pursuant to a waiver, as set forth in section 1.05(F) of these regulations.

The application of inorganic fertilizers, pesticides, herbicides, fungicides or other quick release chemicals is prohibited within 100 feet of a salt pond. The Commission may grant a waiver from the application of all but inorganic fertilizers upon a clear and convincing showing that the application of such chemicals is necessary to control:

• A pest deemed a health hazard by the local Board of Health;
• A pest which had damaged twenty percent (20%) of a commercial crop or a crop necessary for livestock food.

Permits for the application of organic fertilizers must be accompanied by the results of a soil analysis and recommendations from the Dukes County Extension Service. These recommendations shall become part of the Order of Conditions.

Regulations for the placement of piers shall be those contained in Section 1.06(A) and 1.06(B). Commercially zoned water dependent properties and uses are exempt.

The Commission may impose additional requirements as are necessary to protect the Interests Protected by the Bylaw.

Section 2.07
The following projects may be permitted, provided that they adhere to the provisions listed in 2.07(B) (1-8).

Pedestrian walkways, designed to minimize the disturbance to the vegetative cover and traditional bird nesting habitat.

Plantings compatible with the natural vegetative cover.

Section 2.08 LAND CONTAINING SHELLFISH
Characteristics and Protected Interests

The Commission finds that regulations applicable to activities involving land containing shellfish are necessary for the following reasons.

Shellfish are one of the Interests protected by the Bylaw. Land containing shellfish is found within many of the areas protected by this Bylaw. In addition to their regulations, this section discusses additional protection for shellfish. Shellfish in Tisbury, particularly scallops, are a very important recreational, commercial and economic resource. Shellfish used as a human food resource, as they are in Tisbury, need very clean, uncontaminated and relatively competitor and predator free environment. 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. Characteristics of land containing shellfish which are critical to the protection of shellfish include, but are not limited to: water circulation patterns, rates of waterflow, and amounts of water; the relief, elevation, distribution, grain size analysis and pollutant load of the sediments; the presence and population of competitive and predative flora and fauna; and water quality (including but not limited to: turbidity, temperature, pollutants, nutrients, salinity and dissolved oxygen).

In view of the foregoing, whenever a proposed project involves removing, filling, dredging, altering or building upon land containing shellfish or the water overland containing shellfish, the Commission shall find that the land containing shellfish is significant to the protection of the following interests; shellfish, fisheries and recreation. These findings may be overcome only upon a clear and convincing showing that the land containing shellfish does not play a role in protecting one or more of the interests given above and only upon a specific written determination to that effect by the Commission.

Section 2.08
When land containing shellfish or land within 100 feet of land containing shellfish is determined to be significant to an interest protected by the by-law, the following regulations shall apply:

Projects shall not change water quality (including, but not limited to: changes in turbidity, temperature, salinity, dissolved oxygen, and additional nutrients and pollutants), water circulation, the elevation of the land, the sediment grain size of the substrate, competitor and predator populations or natural drainage from adjacent lands.

Regulations for piers in all coastal water bodies containing shellfish shall be those contained in Section 1.06 (A) and 1.06 (B). The inner harbor and commercially zoned uses/properties are exempt.

In determining the potential impact of the pier and the importance of the shellfish bed or eel grass bed the Commission shall solicit and review comments from The Martha's Vineyard Shellfish Group.

Land containing shellfish shall not be compacted by vehicular traffic or other means.

Projects shall not obstruct the ability of the public to gather shellfish recreationally or the ability of commercial fishermen to harvest shellfish.

Any project which will release pollutants shall use such procedures the Commission determines to utilize the best known technology to remove pollutants or prevent risk of pollution.

All septic leach facilities shall be at least 100 feet from land containing shellfish. No newly constructed septic system shall be installed in any soils with a percolation rate of five (5) minutes per inch where the distance from naturally occurring ground elevation to maximum ground water elevation is less than five (5) feet or in soils with a percolation rate greater than five minutes per inch where the distance from naturally occurring ground elevation to maximum groundwater elevation is less than seven (7) feet.

No project detrimental to shellfish shall be permitted, except activity allowed pursuant to a waiver from these regulations, as set forth in Section 1.02.

The application of any inorganic fertilizers, pesticides, fungicides or other quick release chemicals is prohibited within 100 feet of land containing shellfish. The Commission may grant a waiver for the application of all but inorganic fertilizers upon a clear and convincing showing that the application of such chemicals is necessary to control:

• A pest deemed a health hazard by the local Board of Health or:
• A pest which had damaged twenty percent (20%) of a commercial crop or crop necessary for livestock food.

The request for the waiver must be accompanied by a recommendation including the amount, frequency and specific chemical to be applied by the Dukes County Extension Service or Pesticide Bureau.

The permit for the application of organic fertilizers must be accompanied by the results of a soil analysis and recommendations from the Dukes County Extension Service.

The Commission may impose such additional requirements as are necessary to protect the Interests Protected by the Bylaw.

Section 2.09: LAND SUBJECT TO COASTAL STORM FLOWAGE
Characteristics and Protected Interests

The Commission finds that regulations applicable to activities involving land subject to coastal storm flowage are necessary and proper for the following reasons:

Land subject to coastal storm flowage (the coastal flood plain) buffers and protects upland areas from severe storm conditions. Since the flood plain contains areas where the water table is close to the surface (as well as other wetland resource areas) pollutants in a flood plain, including contents of septic systems and fuel tanks, may affect private water supply, groundwater quality, wildlife fisheries and shellfish during and after a storm. Direct and collateral damage to man-made structures in the flood plain are caused by wave impacts and inundation by flood waters and storm driven debris. Protecting lives and property in flood plains during a storm can be expensive to the Town of Tisbury and unsafe for its Police, Fire and Medical personnel involved in such efforts. Desires of property owners to protect themselves from the effects of storms can lead to pressure on the Town and its regulatory bodies to erect engineering structures in wetlands which can have detrimental effects on wetland values and surrounding lands.

In view of the foregoing, whenever a proposed project involves removing, filling, dredging, altering or building upon land subject to coastal storm flowage, the Commission shall find that the land is significant to the protection of the following interests: flood control, erosion control and storm damage prevention. These findings may be overcome only upon a clear and convincing showing that the land subject to coastal storm flowage does not play a role in one or more of the interests given above and only upon a specific written determination to that effect by the Commission.

Section 2.10
When land subject to coastal storm flowage or land within 100 feet of land subject to coastal storm flowage is determined to be significant to an Interest Protected by the Bylaw, the following regulations shall apply:

The work shall not reduce the ability of the land to absorb and contain floodwaters, or to buffer inland areas from flooding and wave damage.

Projects shall not cause ground, surface, or salt water pollution triggered by coastal storm flowage. All newly constructed septic tanks and leach facilities shall be outside the100 year flood plain.

All private underground fuel tanks shall be outside the 100yearflood plain. Commercial tanks shall be outside the100 year flood plain, or if the Commission determines this is not practical, the commercial tanks shall be secured so that they cannot float loose.

The application of inorganic fertilizers, pesticides, fungicides or other quick release chemicals is prohibited within land subject to coastal storm flowage and within 100 feet of the100 year flood. The Commission may grant a waiver for the application of all but inorganic fertilizers upon a clear and convincing showing that the application of such chemicals is necessary to control:

• A pest deemed a health hazard by the local Board of Health, or:
• A pest which has damaged twenty percent (20%) of a commercial crop or crop necessary for livestock food.

The request for a waiver must be accompanied by a recommendation, including the amount, frequency and specific chemical to be applied by the Dukes County Extension of Pesticide Bureau.

Applications of organic fertilizers are prohibited within 100 feet of land subject to coastal storm flowage unless a permit is first granted by the Commission. Permit requests for the application of organic fertilizers must be accompanied by the results of a soil analysis and recommendations from the Dukes County Extension Service.

No newly constructed, except for an upgrade/replacement of a failed cesspool or septic system, (as determined and/or offered by the Board of Health or other such agency) or a system determined to fail in the immediate future, as determined by a R.P.E., Registered Sanitician or Health Inspector shall be placed in land subject to coastal storm flowage in soils with a percolation rate of five (5) minutes per inch where the distance from naturally occurring ground elevation to maximum ground water elevation is less than five (5) feet or in soils with a percolation rate faster than five (5) minutes per inch where the distance from naturally occurring ground water elevation to maximum ground water elevation is less than seven (7) feet.

The Commission may impose such additional requirements as are necessary to protect the Interests Protected by the Bylaw.

INLAND WETLANDS

Section 3.01: VEGETATED WETLANDS (MEADOWS, MARSHES, SWAMPS, BOGS AND VERNAL POOLS)
Characteristics and Protected Interests

The Commission finds that regulations applicable to activities involving vegetated wetlands are necessary and proper for the following reasons:

The plant communities, soils, and associated low, flat topography of vegetated wetlands remove or detain sediments, nutrients and toxic substances that occur in run-off and floodwaters. Some nutrients and toxic substances are retained 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. This latter phenomenon delays the effect of nutrients and toxins until the winter, when the release of these substances is less likely to reduce water quality. Wetlands help maintain water quality or improve degraded water by removing, transforming and retaining nutrients; processing chemical and inorganic wastes and pollutants; and reducing sediment loads. Wetlands intercept runoff from uplands before it reaches the water and help filter sediments, nutrients and wastes from flood water. It is important, however, to recognize, that wetlands have a finite capacity to perform this function. The profusion of vegetation and the low, flat topography of vegetated wetlands slow down and reduce the passage of flood waters during periods of peak flow by temporarily storing flood water, slowing water velocities, reducing bank and shoreline erosion and slowly releasing stored water, thereby saving lives and property. This function is especially important in areas with developed flood plains, where the potential for flood damage is high. Inland wetlands located along major streams and around lakes stabilize shorelines and channel banks and buffer developed uplands from storm, wave or erosion damage. During dry periods the water retained in vegetated wetlands is essential to the maintenance of base flow levels in streams or into the groundwater.

Wetland and buffer vegetation provide shade that moderates water temperatures important to fish. Vegetated wetlands that are always wet or that are flooded by adjacent water bodies, waterways or overland floodwaters, provide food, breeding habitat and cover for many species of wildlife including those listed by the Mass. Natural Heritage Program. Wetlands are important as natural areas containing diverse plant and animal life. Since wetlands constitute one of the smallest percentages of lands in the country, these communities are rare. Undisturbed natural wetland communities have high value as prime examples of their community type, as areas of study and comparison for protection as a unique resource. The existence of a buffer area of undisturbed natural vegetation adjacent to a wetland is important because many wetlands species spend the majority of their non-breeding and non-feeding lives in the areas immediately adjacent to a wetland. Vegetated wetlands along with land within 100 feet of a vegetated wetland, serve to moderate and alleviate thermal shock and pollution resulting from runoff from impervious surfaces which may be detrimental to wildlife, fisheries and shellfisheries downstream of the wetland. The maintenance of base flows by vegetated wetlands is significant to the maintenance of a proper salinity ratio in estuarine areas downstream of the vegetated wetland. Vegetated wetlands support sport fishing, hunting, bird watching, nature observation and study and other wetland-related uses which in turn generate capital for a local economy and pure enjoyment for those participating in these forms of recreation. Land within 100 feet of a vegetated wetland is considered to be significant to the protection and maintenance of vegetated wetlands, and therefore to the protection of interests which these resource areas serve to protect.

In view of the foregoing, whenever a proposed involves the removing, filling, dredging, altering or building upon a vegetated wetland, the Commission shall find that the vegetated wetland is significant to the protection of the following interests: public and private water supply, groundwater, flood control, erosion control, storm damage prevention, fisheries, shellfisheries, wildlife, wildlife habitat and recreation. These findings may be overcome only upon a clear showing that the vegetated wetland does not play a role in protecting one or more of the interests given above and only upon a specific determination to that effect by the Commission.

Section 3.01
When a vegetated wetland or land within 100 feet of a vegetated wetland is determined to be significant to an interest protected by the By-law, the following regulations shall apply:

Proposed projects which are not water dependent shall maintain at least a 25 foot natural undisturbed area adjacent to vegetated wetlands, this includes the existence of this natural area during any site preparation and further construction.

Proposed projects shall not use methods or procedures that the Commission determines shall change the flood protection function of vegetated wetlands by significantly changing the flow through the wetlands unless the project is to control an insect or other pest deemed a life threatening hazard by the local Board of Health or other such agency.

The Commission may issue a permit for the excavation of wetlands vegetation and or buffer vegetation to, create ponds for fire protection, (granted such protection is deemed necessary by the local Fire Chief), or if the project is designed to increase wildlife habitat for those species listed by the Massachusetts Natural Heritage Endangered Species Program as rare, endangered, threatened or of special concern.

The septic leach facility of a septic system shall be at least 100 feet from the vegetated wetland. No newly constructed septic system shall be installed in soils with a percolation rate faster than five (5) minutes per inch in any area where the distance from naturally occurring ground elevation to maximum ground water elevation is less than five (5) feet or in soils with a percolation rate faster than five (5) minutes per inch in any area where the distance from naturally occurring ground elevation to maximum ground water elevation is less than seven (7) feet.

The application of any inorganic fertilizers, pesticides, fungicides or other quick release chemicals is prohibited within 100 feet of a vegetated wetland. The Commission may grant a waiver for the application of all but inorganic fertilizers upon a clear and convincing showing the application of such chemicals is necessary to control:

• A pest deemed a health hazard by the local board of Health, or;
• A pest which had damaged nearly twenty (20%) percent of a commercial crop or a crop necessary for livestock food.
• Erosion (necessary to establish ground cover).

The request for the waiver must be accompanied by a recommendation including the amount, frequency and specific chemical to be applied by the Dukes County Extension Service or Pesticide Bureau.

Applications of organic fertilizers are prohibited within 100 feet of a vegetated wetland unless a permit is first granted by the Commission. The permit request must be accompanied by the results of a soil analysis and recommendations from the Dukes County Extension Service.

The Commission may impose such additional requirements as are necessary to protect the Interests Protected by the By-law.

Section 3.01
The following projects may be permitted, provided that they adhere to the provision listed in 3.01 (B) (1-6).

Pedestrian walkways, designed to minimize the disturbance to the vegetative cover and the traditional nesting and feeding habitats of wildlife.

Plantings compatible with the natural vegetative cover.

1.06 LAGOON POND D.C.P.C. AND LAKE TASHMOO REGULATIONS:

Preface: Projects in and within 100 feet of Lagoon Pond and Lake Tashmoo or any resource area adjacent to Lagoon Pond and Lake Tashmoo 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 the interests outlined in Section I of the Tisbury Wetlands By-law caused by:

• Alterations in water circulation;
• Destruction of eelgrass (Zostera Marina) beds;
• Alterations in the distribution of sediment grain size;
• 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;
• Alterations of shallow submerged lands with high densities of polychaetes, mollusks, or macrophytic algae;
• Alterations in relief elevations;
• The compacting of sediment by vehicular traffic;
• Alterations in natural drainage from adjacent lands; or
• The growth, composition and distribution of salt marsh vegetation.

1.06 A REGULATIONS FOR PIERS IN LAGOON POND AND LAKE TASHMOO:
Permanent/fixed piers are prohibited from proven shellfish beds and from proven eelgrass beds and from areas with a high probability of development for shellfish and eelgrass beds when identified and/or mapped as follows;

• By the Conservation Commission based upon maps and/or designations of the Division of Marine Fisheries, or
• By the Conservation Commission based upon maps and/or designations by the Martha's Vineyard Commission, or
• By the Conservation Commission, based upon maps and/or designations and/or written documentation from the shellfish constable, or
• By the Conservation Commission, based upon maps and/or designations and/or written documentation from the Martha's Vineyard Shellfish Group.

In making such identification and/or maps, the following factors shall be taken into account and documented:

• The density of shellfish, the size of the area and the historical and current importance of the area to recreational or commercial shellfishing.
• Piers with removable floating extensions are prohibited from proven and potential shellfish and eelgrass beds (when identified and/or mapped as described in Section 1.06 (A-1) (a-c).
• No pier shall exceed fifty (50) feet in length from mean high water; if necessary, floating extensions may be constructed to reach appropriate depth of water.
• Floating extensions must be removed during the off-season, November 1st to April 1st.
• Piers shall be designed with piles spaced at least ten (10) feet apart so as to allow water to pass relatively unimpeded through them.
• During construction, turbidity must be contained using best available measures.
• Non-leaching wood preservatives must be used to treat the pier.
• Mechanical pile driving is required.
• Construction is to be done from floating barges.
• Planks on the piers shall have a minimum spacing of one (1) inch so as to allow sunlight penetration.
• No pier shall interfere with alongshore navigation or restrict maneuverability.
• Piers are prohibited from State and Federally designated barrier beaches.
• Rafting of boats on piers is prohibited.
• Piers shall not restrict lateral access along the shore.
• Piers with permits from the Tisbury Conservation Commission shall clearly display the assigned D.E.P. number at all times.

Storage of prohibited products on piers, including but not limited to the following:

• fuel
• solvents
• paints
• chemicals 
• cleansers 

The maximum width of a pier shall not exceed five (5) feet, with the exception of a "T" or "L" at the end of the pier.

Piers within one hundred (100) feet of proven or potential shellfish or eelgrass beds shall be constructed during the period between November 1st and April 1st.

1.06 B. MINIMUM SUBMITTAL REQUIREMENTS FOR APPLICATIONS FOR PIERS AND DOCKS:
The presence of any shellfishing areas must be indicated within 100 feet of the proposed project. This pertains to both seeded and naturally occurring beds.

• The presence of any eel grass beds must be indicated within 100 feet of the proposed project.
• Marked navigation channels within 100 feet.
• Location of existing public or commercial moorings within 100 feet of the pier.
• Location of existing Town, commercial or private piers and docks, and Town landings within 300 feet of the proposed pier.
• Provisions for ensuring the continued public access to the foreshore and the tidelands must be given.
• Applicant must submit description of removal and/or storage of any removable portions of the structure.
• Description of how Mean High Water was determined.

1.06 C. REGULATIONS FOR FERTILIZER AND PESTICIDE APPLICATION:
The application of organic and inorganic fertilizers and pesticides within 100 feet of a coastal bank, salt marsh or the 100 year flood zone adjacent to Lagoon Pond and Lake Tashmoo or the tidewaters of Lagoon Pond and Lake Tashmoo is prohibited. The Commission may grant a waiver from this regulations only after:

• A clear and convincing showing by the applicant that the application of fertilizers is necessary to establish a ground cover adequate enough to prevent soil erosion, and;
• Upon receipt of the results of a soil analysis and recommendations from the Dukes County Extension Service. These recommendations shall become part of the Order of Conditions, or;
• Upon a clear and convincing showing by the applicant that the application of pesticides is necessary to control:
• A pest deemed a health hazard by the local Board of health or,
• A pest which has damaged twenty percent (20&) of a commercial crop or a crop necessary for livestock food. This must be accompanied by a recommendation for application and the appropriate pesticide to be applied from the Dukes County Extension Service.

1.09 A. Provision: Any person who violates any provisions of the Tisbury Wetlands Protection By-law, or any condition of a permit issued pursuant to it shall be punished by a fine of not more than $300.00. Each day or portion thereof during which a violation continues shall constitute a separate offense. This By-law may be enforced pursuant to Mass. General Laws, C. 40, S. 21D, by a Town Police Office, other Officer having Police Powers, Commission members agents or employees. The aforementioned parties shall have the authority to issue citations assessing monetary fines, depending on the seriousness of the violation. Failure to pay a fine assessed under this By-law within twenty-one (21) calendar days may result in criminal prosecution.

The current owner(s) of a property on which a violation has occurred is the party responsible and therefore liable for any fines and/or legal action regardless of any contract with a second party to obtain necessary permits, perform work or adhere to conditions of a permit.

Citations issued by individual Commission members, staff or agents shall subsequently be presented to the Conservation Commission for approval.

Section 1.09
The Conservation Commission shall consider the following factors in determining the amount of the fine:

• Actual and potential impact on public health, safety and the environment.
• Actual and potential damages suffered and actual or potential cost incurred by the Town of Tisbury or any other person.
• Whether the applicant took steps to prevent the failures to comply.
• Whether the applicant took steps to promptly come into compliance after the occurrence of the failures to comply.
• Whether the applicant took steps to remedy and mitigate whatever harm occurred as a result of the failures to comply.
• Whether the applicant has previously failed to comply with any regulations, orders, licenses or approval issued or adopted by the Tisbury Conservation Commission or any laws which the Tisbury Conservation Commission has the authority or responsibility to enforce.
• Making compliance less costly than the failures to comply.
• Deterring future noncompliance by both the applicant and others.
• The applicants financial condition.
• The public interest.

Section 1.09 C. VIOLATIONS
Any activity undertaken without a valid Order of Conditions or Negative Determination which constitutes removing, dredging or altering the following resource areas: any surface water body, any coastal or inland bank, any dune, coastal beach, coastal or inland vegetated wetland, any land under said waters, any land subject to flooding or inundation by ground water, surface water, tidal action or coastal storm flowage.

Any activity undertaken without a valid Order of Conditions or negative Determination by the Conservation Commission within 100 feet of the above-named wetland resource areas.

Failure to Comply with Conditions contained in any Order or Negative Determination issued pursuant to Section 2.1 of the Wetland By-law.

Violation of an Enforcement Order issued by the Tisbury Conservation Commission, its agents or employees.

*Section 1.09 A, B & C adopted February 20, 1990.