Section 92A 1/2:5 - Prohibited activities(a) Any alteration, or the generation, storage, disposal, or discharge of pollutants is prohibited within those portions of the watersheds that lie within 200 feet of the bank of a tributary or surface waters or within 400 feet of the bank of a reservoir. (b)(1) The uses and activities set forth in paragraph (2) are prohibited within those portions of the watersheds that lie: (i) within the area between 200 and 400 feet of the bank of a tributary or surface waters; (ii) within the flood plain of a tributary or waters, including that flood plain; (iii) within bordering vegetated wetlands that border on tributaries or surface waters, or reservoirs; (iv) within land that overlays an aquifer with a potential well yield of 100 gallons per minute or more as determined pursuant to subsection (m); or (v) within land that overlays an aquifer with a potential well yield of one or more but less than 100 gallons per minute pursuant to a finding by the division, in consultation with the department of environmental protection, that regulation of the aquifer is necessary for the protection of the quality of the water in the surface waters, aquifers, reservoirs or the tributaries. (2) The following uses are prohibited within the area regulated by paragraph (1): (i) the disposal of pollutants from either private or publicly owned sewage treatment facilities; (ii) the placement of the leaching field of a subsurface waste water disposal system less than 4 feet above the maximum water table level as measured at the time of annual high water; (iii) the storage of liquid petroleum products of any kind; provided, however, that an end user of such product, such as a resident in connection with normal residential use or a person responsible for supplying heat to a residence, may store a reasonable volume of such material so long as such storage is in a free standing container inside of a structure, which structure shall include at a minimum a foundation thereof with a poured cement slab floor or a concrete reservoir of sufficient volume to hold 125 per cent of the tank's capacity; (iv) the treatment, disposal, use, generation, or storage of hazardous material or waste, except a reasonable volume of hazardous material or waste, incidental to normal residential use; (v) the storage and the disposal of solid waste other than a reasonable volume incidental to normal residential use; (vi) the outdoor storage of road salt or other deicing chemicals; provided, however, that this section shall not prohibit the outdoor storage of sand, gravel, or materials used in road construction which are not hazardous materials or waste; (vii) the outdoor storage of fertilizers, herbicides, and pesticides; (viii) the use or storage of pesticides or herbicides which carry a mobility rating as provided for by the United States environmental protection agency or which have been determined by the commonwealth using environmental protection agency standards to pose a threat or potential threat to ground water; (ix) the outdoor uncovered storage of manure; (x) the servicing, washing, or repairing of boats or motor vehicles other than as reasonably incidental to normal residential use; (xi) the operation of junk and salvage yards; (xii) the rendering impervious of more than ten percent of any lot or 2500 square feet, whichever is greater; (xiii) the excavation of gravel and sand to a depth greater than 6 feet above the maximum water table, except where incidental to the construction of permitted structures; (xiv) the altering of bordering vegetated wetlands; (xv) any other activity which could degrade the quality of the water in the watersheds as determined by the division after consultation with the department of environmental protection; provided, however, that de-icing may be performed on a roadway under procedures approved by the secretary of environmental affairs. (c) This section shall not apply to uses, structures or facilities lawfully in existence or for which all applicable municipal, state and federal permits and approvals, other than building permits and permits for septic systems, have been obtained prior to July 1, 1992. This section shall not apply to any reconstruction, extension, or structural change to any structure in lawful existence as of said date; provided, however, that such reconstruction, extension, or structural change (i) does not constitute a substantial change to or enlargement of that lawfully existing structure, and (ii) does not degrade the quality of the water in the watershed.(d) In addition to and without limiting subsection (a) or subsection (b), the construction of a dwelling on land set forth in subsection (b) which exceeds a density of 2 bedrooms per acre is prohibited. No use may generate more than 220 gallons of sanitary sewage per acre per day. In making such calculations all contiguous real property within the area regulated by said subsection (a) or said subsection (b) owned by the same person shall be used in the aggregate to determine the total acreage for density purposes; provided, however, that said area may be so used for determining area density for only 1 parcel. (e) In addition to and without limiting subsection (a), (b) or (d), the construction of any dwelling which exceeds a density of 1 and 1/3 bedrooms per acre is prohibited within those portions of the watersheds that overlay aquifers with potential well yields of between 100 and 300 gallons per minute as determined pursuant to subsection (m) or land whose regulation has been determined to be necessary for the protection of the quality of the water in the surface waters, aquifers, reservoirs and tributaries pursuant to clause (v) of paragraph (1) of subsection (b). No use may generate more than 147 gallons of sanitary sewage per acre per day. (f) In addition to and without limiting subsection (a), (b), (d) or (e), the construction of any dwelling which exceeds a density of 1 bedroom per acre is prohibited within those portions of the watersheds that overlay aquifers with potential well yields of over 300 gallons per minute as determined pursuant to subsection (m). No use may generate more than 110 gallons of sanitary sewage per acre per day. (g) Nothing in subsection (d), (e) or (f) shall be deemed to limit such construction if a sewer system exists prior to July 1, 1992 to which a direct connection shall be made without expansion of capacity and the connection is used for all sanitary sewage of any dwelling or other structure resulting from the construction. (h) Nothing in this section shall prevent the construction of 1 single family dwelling, on any lot existing as such prior to July 1, 1992 within the areas regulated by this section. Nothing in this section shall prevent any owner occupied lot existing as such on July 1, 1992 from being subdivided into 1 additional lot. Wherever possible there shall be no alterations within the area regulated by subsection (a). (i) Subsequent to the issuance of regulations as provided for in this section, any person owning an interest in real property located in a community with land that lies within the watersheds, by written request may submit to the division the determination of a land surveyor registered with the board of registration of professional engineers and of land surveyors as to whether such owner's real property interests are located within areas regulated by this section. The division shall have been deemed to have concurred with the determination unless within 60 days from the submission of the determination the division issues a written notice of denial to the owner. The division shall issue regulations pursuant to section 6 regarding such submissions and any requirements thereto. All surveys and additional materials or studies required to make a determination, whether or not requested by the division, shall be prepared and delivered at the sole cost of the person desiring the determination. (j) A tributary or portions thereof may be exempted from the provisions of this section, if after taking into account the rate of flow, slope, soil characteristics, proximity to a reservoir or the Ware river above the Ware river intake, the current level of water quality and the current degree of development, the division, in consultation with the department of environmental protection, determines that such exemption poses no significant risk to the quality of the water. (k) The division, after consultation with the department of environmental protection, shall issue regulations pursuant to section 6 for appealing the inclusion of a location in the areas regulated by this section. It shall be the responsibility of the appellant to prove that the location was improperly included. If the appeal is decided in the appellant's favor, a court of competent jurisdiction shall award to appellant reasonable attorney fees, costs and expenses incurred in the action. (l) The division, in accordance with procedures for notice and a hearing as provided by chapter 30A, may grant upon appeal or petition with respect to particular uses or structures, and shall grant upon request with respect to crossings of tributaries and bordering vegetated wetlands a variance from the provisions of this section where the division specifically finds that owing to circumstances relating to the soil conditions, slope, or topography of the land affected by such uses or structures, desirable relief may be granted without substantial detriment to the public good and without impairing the quality of water in the watersheds. The division shall issue regulations pursuant to section 6 regarding such proceedings. The division may impose reasonable conditions, safeguards and limitations to any variance as it may find desirable in its sole discretion which, based upon such hearing record, are necessary to protect the water in the watersheds. The division shall issue regulations pursuant to section 6 regarding such proceedings. The division may impose reasonable conditions, safeguards and limitations to any variance as it may find desirable in its sole discretion which, based upon such hearing record are necessary to protect the water in the watersheds. The division shall record and index in the grantor index in the registry of deeds or register in the registry district of the land court for the county or district where the land lies, a notice of said variance, and conditions thereto, which notice shall describe the land by metes and bounds or by reference to a recorded or registered plan showing its boundaries. (m) The location of tributaries and surface waters shall be determined by reference to maps generated by the Massachusetts geographic information service based on the most recent edition of the United States Geological Survey 1 to 25,000 thousand scale quadrangle maps. The location of flood plains shall be determined by reference to the most recent edition of the flood hazard boundary maps issued by the director of the Federal Emergency Management Agency. The location and the potential well yield of aquifers shall be determined by reference to maps generated by the Massachusetts geographic information service based on the United States Geological Survey water resource atlases. The division, in consultation with the department of environmental protection, may adopt more accurate maps pursuant to notice and a public hearing as provided in chapter 30A and shall file such more accurate maps with the clerks of the house of representatives and the senate 90 days prior to such maps taking effect. (n) This section shall not apply to the division in the performance of its responsibilities and duties to protect the quality of the water in the watersheds, or to the Authority in the performance of its responsibilities and duties to maintain, operate and improve the waterworks system. The provisions of this section shall not apply to activities relating to normal maintenance or improvement of land in agricultural use as defined in section 40 of chapter 131, or regulations promulgated thereunder; provided, however, that such activities do not impair the quality of the water. Nothing in this section shall be construed to limit conversion of land for agricultural use, or preparation of land for agricultural use; provided, however, that such conversion shall be made under a plan approved by the United States Department of Agriculture Soil Conservation Service and the department in consultation with the department of agricultural resources. This section shall not apply to the maintenance, repair, replacement or reconstruction of public roadways existing as of September 1, 1989 or railroad track and rail bed existing as of September 1 1990, including associated drainage systems, that are necessary to preserve or restore the facility's serviceability for the number of travel lanes and uses existing as of September 1, 1990; provided, however, that in the case of any replacement the design is substantially the functional equivalent of, and is of similar alignments to that which is being replaced; provided, further, that design plans and specifications for said work on roadways, or railroad track and rail beds are provided to the division prior to the work's commencement. This section shall not apply to theconstruction of public highways, railroad track and rail beds and facilities directly related to their operation; and provided, further, that the secretary of environmental affairs has determined that such highway or transportation service construction project requires direct access to or location in the lands set forth in this section and that said secretary and the division have determined that the construction does not materially impair the quality of the water in the watershed and does not otherwise materially impair the quality of the environment. This section shall not apply to the maintenance, repair or expansion of lawfully located structures or facilities used in the service of the public to provide electric, gas, water, sewer, telephone, telegraph and other telecommunication services; provided, however, that such maintenance, repair or expansion activities, structures, or facilities do not materially impair the quality of water in the watersheds as determined by the division after consultation with the department of environmental protection. This section shall not apply to the maintaining, repairing or replacing but not substantially changing or enlarging an existing and lawfully located structure or facility used in the service of the public and used to provide electric, gas, water, sewer, telephone, telegraph and other telecommunication services in bordering vegetated wetlands; provided, however, that such maintenance and repair activities do not materially impair the quality of water in the watersheds. Nothing herein shall limit the ability of a person, municipality, the United States government or the commonwealth to undertake temporary operations to clean up, prevent or mitigate releases of hazardous materials or wastes. This section shall not be construed to limit changes in agricultural crops produced. Nothing in this section shall be construed to limit the use of new or existing agricultural technologies that do not degrade the quality of the water in the watersheds more than the present agricultural technologies that such new or existing agricultural technologies replace. (o) Upon written request by the division, the department of environmental protection shall have the authority, including the authority to render administrative penalties under section 16 of chapter 21A, to enforce the provisions of this section for violations thereof. (p) The duties and obligations imposed by this chapter shall be in addition to all other duties and obligations imposed by any other general or special law or regulation. (q) The division shall hold in at least 1/2 of the communities in the affected watersheds an informational public hearing, giving notice thereof at least 30 days prior thereto by advertisement in newspapers of general circulation in each such community and by written notification to the boards of selectmen, city councils, or town councils, whichever is appropriate, in each such community. The division, at the time of such hearing, shall make available maps showing the areas affected by this section and shall explain the provisions of this section and the impact this section will have on the affected communities and landowners. (r) Nothing in this section shall impede or prevent the construction of a new municipal sewer system or new municipal water system if the division determines that water quality will not be adversely impacted from the construction and provided that such new systems comply with all existing regulations and standards applicable to water pollution abatement projects. Mass. Gen. Laws ch. 92A 1/2, § 5
Added by Acts 2003, c. 26, § 290, eff. 7/1/2003.