Article XVIII

Wetlands Conservation Ordinance

[adopted 1987 Town Mtg., last amended 2006 Town Mtg.]

 

§ 309-73.  Purpose and Intent.

 

The purpose of this ordinance is to promote and protect the public health, safety, and welfare by regulating the development and use of those areas designated as wetlands pursuant to §309-74 below.  This ordinance is adopted pursuant to the authority granted by New Hampshire RSA 674:16-17 and RSA 674:20-21.  This ordinance is intended to affect the following public policy:

  1. To prevent the pollution, by sewage, of surface water and groundwater.
  2. To prevent the destruction or significant changes of natural wetlands which provide flood protection.
  3. To protect unique and unusual natural areas.
  4. To protect residents against the dangers of increased flooding.
  5. To protect wildlife habitats and maintain ecological balances.
  6. To protect potential water supplies and existing aquifers and aquifer recharge areas.
  7. To prevent unnecessary or excessive expenditures of municipal funds for the purpose of providing and/or maintaining essential services and utilities which might be required as a result of misuse or abuse of wetlands.
  8. To encourage those low-intensity uses that can be harmoniously, appropriately, and safely located in wetlands.
  9. To promote conservation corridors along all major rivers, streams, and drainage waterways.

 

§ 309-74.  Wetlands Defined. [Amended 1996 Town Meeting] [Amended 2006 Town Meeting]

  1. The Wetlands Conservation Ordinance applies to wetlands as defined in RSA 482-A:2(X).  Wetlands are defined as those areas that are inundated or saturated by surface water or ground water at a frequency and duration sufficient to support, and that under normal conditions, does support a prevalence of vegetation typically adapted for life in saturated soil conditions.  Wetlands include, but are not limited, to, swamps, marshes, bogs and similar areas.

    Wetlands shall be delineated on the basis of hydrophytic vegetation, hydric soils, and wetlands hydrology, in accordance with the techniques outlined in the Corps of Engineers, Wetlands Delineation Manual (Technical Report Y-87-1, January 1987) and  Field Indicators for Identifying Hydric Soils in New England (Version 3, as amended).  New England Interstate Water Pollution Control Commission. 
  2. The limits of the Wetlands Conservation Ordinance are hereby determined to be the following:
    1. Wetland areas one half acre or more in size;
    2. Wetland areas of any size if contiguous to or containing surface waters (such as lakes, ponds, and streams) or very poorly drained soils.

 

§ 309-75.  Wetlands incorrectly delineated. [Amended 2006 Town Meeting]

 

In the event that an area has been incorrectly delineated as a wetland, or that an area not so designated was subsequently found to meet the criteria for a wetlands designation, the Planning Board shall determine whether the regulations contained herein have application.

  1. When it is believed that an area has been incorrectly designated a wetland, the applicant may present to the Planning Board the findings of an independent certified wetland scientist as defined in RSA 310-A:76II-a.  The Planning Board shall make their judgment based upon the determination of that independent certified wetland scientist. The applicant shall bear the costs of the certified wetland scientist.
  2. Where an area is not designated as a wetland and the Planning Board reasonably believes it to be a wetland, the Planning Board may require the applicant to supply the findings of an independent certified wetland scientist as defined in RSA 310-A:76II-a.  The Planning Board shall make their judgment based upon the determination of the independent qualified soil scientist. The applicant is responsible for bearing the costs of the certified wetland scientist.

§ 309-76.  Permitted uses.

 

Permitted uses are those that will not require the erection or construction of any structure or building; will not alter the natural surface configuration by the addition of fill or by dredging; and that otherwise are permitted by the Zoning Ordinance.  Such uses may include the following or similar uses only:

  1.  Forestry, tree farming;
  2. Cultivation and harvesting of crops according to recognized soil conservation practices;
  3. Wildlife refuge;
  4. Parks and recreation uses consistent with the purpose and intent of this ordinance;
  5. Conservation areas and nature trails.

§ 309-77.   Conditional Use Permit.

  1. A conditional use permit may be granted by the Planning Board for streets, roads and other access ways and utility rights- of-way easements, including power lines and pipe lines if essential to the productive use of land not designated as wetland and if so located and constructed as to minimize the detrimental impact of such uses upon the wetlands, and if no alternative route(s) exist which do not cross the wetlands, or have a less detrimental impact on the wetland. Economic considerations alone are not sufficient reason for granting a conditional use permit.
  2.  Permission for the use of land for other than the permitted uses may be granted by a conditional use permit provided the Planning Board shall find that all other restrictions of this ordinance are met, and that:
    1. the land is reasonably adapted to the use;
    2. there is no diminution of surrounding property values;
    3. there is no impairment of soil conditions on abutting lots;
    4. the proposed use is allowed in the underlying zoning district;
    5. the applicant has received all necessary state and federal permits prior to the issuance of the conditional use permit;
    6. the applicant provides the Planning Board and Conservation Commission findings of an independent qualified soils scientist and plant scientist at his own expense;
    7. applicant follows the direction of the Planning Board and Conservation Commission in providing for a minimum gain of one (1) square foot wetland for each square foot of wetland lost. 
    8. there is Conservation Commission approval.

The Conservation Commission and Planning Board shall conduct a joint public hearing in accordance with the provisions of RSA 676:2 prior to making any decision regarding the issuing of a Conditional Use Permit.[Amended 1989 Town Meeting]

 

§ 309-78.  Minimum lot sizes.

 

Total wetland area used to satisfy minimum requirements shall not exceed 25% of lot size with the following provisions:[Added 1989 Town Meeting]

 

  1. Areas designated as poorly drained may be used to satisfy up to twenty-five percent (25%) of the minimum lot size required by the underlying zoning district.
  2.  Areas designated as very poorly drained or fresh marsh may not be used to fulfill any portion of the minimum lot size required by the underlying zoning district.
    [Amended 1996 Town Meeting]

 

 

§ 309-79.  Special provisions.

  1. No septic tank or leach field may be constructed or enlarged closer than 75 feet to any wetland and no building or surface structure shall be constructed within 40 feet of a wetland area.  An undisturbed natural buffer area of at least 20 feet in width shall be maintained between any wetland as defined in Section 309-74 and new structures, dwellings, and septic systems.  Exempted from this requirement are the construction of additions and extensions to buildings which existed prior to the effective date of this section or the development or redevelopment of a lot where the buffer does not already exist as of the effective date of this section.  Access through the buffer zone shall be granted to allow activities in furtherance of permitted wetland uses as defined in §309-76.  Dead, diseased, unsafe or fallen trees, saplings, shrubs, or ground cover may be removed.  [Amended 1998 Town Meeting]
  2. All paved surfaces shall be setback 40 feet from any wetland.  Paved surfaces shall include but not be limited to, parking lots, fire lanes, and roads.  Residential driveways are exempted from this regulation.  Also exempted are accesses to a property, such access shall not include parking spaces, and road crossings approved under the §309-77A Conditional Use Permit criteria. [Amended 1989 Town Meeting]
  3. Where water and other effluents leave a man-made drainage system, adequate measures, including but not limited to buffer zones and natural treatment swales, shall be provided to protect the wetland from pollution, erosion, or siltation.
  4. Granting variances to this Wetlands Conservation Ordinance shall be considered contrary to its spirit and intent.
  5. The Town of Salem, as a governmental body, shall not be exempt from this ordinance nor the rules and regulations found therein.
  6. Any property on which a conservation easement has been obtained, shall be maintained in perpetuity as open space.  Activities conducted thereon shall be limited to those specifically allowed for in §309-76.
  7. Adequate erosion control, including but not limited to haybales, silt fences, and temporary rip-rap, shall be maintained before, during, and after construction (until site stabilization) to protect undisturbed wetland areas from intrusion and siltation.[Added 1989 Town Meeting]
  8. An undisturbed natural buffer area of at least 100 feet in width shall be maintained between any designated Prime Wetland, as defined in RSA 482-A:15 and adopted by Town Meeting, and any new development, including but not limited to structures, dwellings, septic systems, and roads.  Exempted from this requirement are those uses permitted under §309-76, those lots separated from the Prime Wetlands by an existing public road and the construction of additions and extensions to buildings which existed prior to the effective date of this section.  Nothing herein is intended to prohibit the development or redevelopment of any portion of a lot which has already been improved, or developed, and regularly maintained as of the effective date of this section. (Amended 2006 Town Meeting)

    Conditional Use Permits to allow streets, roads, and other access ways and utility easements, such as power lines and pipe lines, within the 100' buffer, but no closer than 40' to the Prime Wetlands, may be granted by the Planning Board provided the conditions of §309-77A are met. [Amended 1997 Town Mtg.]

 

§ 309-80.  Administration and Enforcement.

 

  1. Administration and primary enforcement of this ordinance shall be the responsibility of the Planning Board.
  2. This ordinance shall take effect immediately upon passage at the 1987 Annual Town Meeting.

 

§ 309-81.  Exemptions.

 

  1. State Statute 674:39 applies.
  2. Notwithstanding other provisions of this Article, the construction of additions and extensions to one and two-family dwellings shall be permitted within the areas controlled by the Wetlands Conservation Ordinance provided that:
    1. The dwelling lawfully existed prior to the effective date of this Article;
    2. That the proposed construction conforms with all other applicable ordinances and regulations of the Town of Salem;
    3. The dwelling continues in its present use.