EASTHAM CONSERVATION COMMISSION
09 February 2010
MINUTES
PRESENT: Glenn Collins, David Hoerle, Steve Smith, Sandra Larsen, Lorraine Giovinazzo, Steve LaBranche, Dennis Murley.
STAFF PRESENT: Deputy Natural Resource Officer Amy Usowski.
ALSO PRESENT: Gunther Klink, John Dvorsack, Donna Kramer, Donald Kramer, Fred Rollinson, Don Munroe of Coastal Engineering Co., Inc., Bob Pfeifer, Devette Russo, Ed Tarca, Stephanie Sequin of Ryder & Wilcox, Inc., Attorney Sarah Turano-Flores, Theresa Sprague of Wilkinson Ecological Design, Marcia & Jim Sexton, Seth Wilkinson of Wilkinson Ecological Design.
Chairman Murley opened the hearing at 7:00 P.M.
After review and a few minor corrections, Mr. Hoerle MOVED and Ms. Giovinazzo SECONDED the Motion to approve the Minutes of 26 January 2010.
THE VOTE WAS 6 IN FAVOR WITH ONE ABSTENTION.
MOTION CARRIED.
Deputy Usowski explained that she had a request for an Emergency Certification to nourish the Toe of the Coastal Dune at 95 Harmes Way. She said they lost a lot of sand after the last storm and the foundation is maybe 10' from the edge. She reminded Commissioners that they have nourished in the past and they were requesting to add 300 cubic yards of clean sand within the next thirty days, with the knowledge that they will be required to file a Notice of Intent for any future work.
Mr. Collins said he walked that beach during the last week and they really do need the sand. Deputy Usowski said the area is a Coastal Dune and this is not the typical nourishment conditions. Chairman Murley said that he thinks this is doable and he thinks the quality of sand being put on the beaches has improved over the past several
years, but this is a barrier beach and the finer the sand the better. He asked that this be checked diligently. He said that his concern is that this is an active dune and the idea would be to put this nourishment up against the dune material not on top of the dune material.
Mr. Hoerle MOVED and Mr. LaBranche SECONDED the Motion to approve this Emergency Certification.
SO VOTED UNANIMOUSLY.
7:10 P.M. Administrative Review, Ronald Vanderweil, 55 Smith Heights Way, Map 08, Parcel 057.
Deputy Usowski explained the Applicant’s request to remove two damaged Clump River Birch on a bank approximately 100' from an Isolated Freshwater Wetland. She said he is proposing to flush cut them and remove them from the site.
After brief discussion, Mr. Hoerle MOVED and Ms. Giovinazo SECONDED the Motion to ratify this Administrative Review.
SO VOTED UNANIMOUSLY.
7:15 P.M. Continuation of Hearing on Notice of Intent filed by Don & Donna Kramer, 45 Rear Shurtleff Road, Map 10,Parcel 232 O-R.
Chairman Murley announced this hearing. Mr. and Mrs. Kramer were present. Chairman Murley asked Mr. Kramer if he wanted him to participate in this continued hearing since he had not been at the last one and Mr. Kramer said he would prefer Mr. Murley participate.
Deputy Usowski reminded the Commissioners that at the previous hearing she had asked the Applicant to delineate the Top of the Coastal Bank and this is now shown on all the plans. She said she also asked for greater detail on the stairs which is now shown. She said she also requested a limit for the fiber rolls and an alternative analysis which they have supplied. Deputy Usowski said this is a pre-‘78 cottage and in some spots it is only 4-5' away from the Top of the Coastal Bank. She said the Kramers received an Emergency Certification to do nourishment which has been done.
Deputy Usowski said she spoke with Mr. Kramer regarding alternatives. She said the lot is small and all the utilities are either between or in back of the existing cottages. She said they have already tried sandbags which failed. She said she met with Greg Berman, Coastal Processes Specialist from Woods Hole to look at this site and others on Shurtleff Road, and in this particular instance he could not think of any alternatives. It is not feasible to move the cottage because of the location of the septic system and well. He also did not believe that a soft solution would work on such a steep slope.
The Commissioners reviewed the plans for the stairs and agreed that the bottom two posts and any stairs which might come in contact with water would be untreated.
There was no further discussion and Chairman Murley closed this hearing. Ms. Giovinazzo MOVED and Mr. Hoerle SECONDED the Motion to approve this proposal with Order of Conditions 1-18, 19, 20, 21, 22, 25 the bottom two posts and any stairs which come in contact with water, 26, 27, 29 beach grass, 31 42 cubic yards, 32, 34 50% cut off, 36, 38 pre and post-construction on site meetings with the contractor, Conservation Agent, DPW, and owner, 39 bedding stone to be a 12" minimum.
SO VOTED UNANIMOUSLY.
7:30 P.M. Request for Amended Order of Conditions fled by Gunther Klink, Silver Spring Beach Association, DEP SE 19-1259, Silver Springs Beach Road, Map 04.
Chairman Murley announced this hearing. Mr. Klink was present.
Chairman Murley read a letter dated January 12, 2010 into the record. The letter explains that there has been extensive erosion at this site and requests an amendment to the Order of Conditions to nourish the bank, replant, and replace the sand-drift fence.
Mr. Klink said that he would like to add cross braces to further stabilize the stairway. He said that no excavation would have to be done to accomplish this. There was a bit of discussion about anchoring the braces; but, the Commissioners agreed that this would be OK.
Some discussion ensued as to how the sand nourishment would be accomplished, from the beach or from the Top of the Bank.
There was no further comment and Chairman Murley closed this hearing. Mr. Collins MOVED and Mr. Hoerle SECONDED the Motion to Amend Order of Conditions
SE 19-1259 with the following amended and additional conditions, Condition #22 Timbers is amended to read that all sand-drift fence timbers shall be untreated, Condition #24 Stabilization by Planting is amended to read the following nourishment of the bank, the entire area shall be revegetated yearly with jute matting and American Beach Grass 12" on center between the months of March and May, and the following Conditions are added, 31, 500 cubic yards, 34, up to 50%, 36, Beach Access,
38 Installation of Benchmark, 39, Installation of Cross Braces, 40, Work Staging, and
32, On-Site Meeting.
SO VOTED UNANIMOUSLY.
Deputy Usowski told the Commissioners that Mr. Klink would also like an Extension Permit for this Order of Conditions which is about to expire. There was no debate about this request.
Ms. Giovinazzo MOVED and Mr. LaBranche SECONDED the Motion to grant a
three-year Extension Permit for Order of Conditions SE 19-1259.
SO VOTED UNANIMOUSLY.
7:45 P.M. Continuation of Hearing on Notice of Intent filed by Devette Russo & Robert Pfeifer, 295 Corliss Way, Map 21, Parcels 043A and 043B.
Chairman Murley announced this hearing. Mr. Murley reminded the Applicant that he had not been at the previous meeting and asked if they wanted him to participate. The Applicants’ attorney, Sarah Turano-Flores said she is always concerned in these situations and thinks that there is a certain procedure which needs to be followed. Mr. Murley said he had read the Minutes but had not signed any Affidavit; so, Attorney Turano-Flores said she would rather that he not participate.
Deputy Usowski said her understanding is that he can stay and comment but that he cannot vote and Attorney Turano-Flores said that is her understanding as well.
Mr. Hoerle took over as chairman of this hearing. Stephanie Sequin of Ryder & Wilcox, Inc. and Theresa Sprague of Wilkinson Ecological Design were present for the Applicants who were also present along with their architect and builder.
Ms. Sequin reviewed the revised plan, the mitigation plantings, and the proposed erosion control. She said that a Construction Protocol has been supplied explaining the step-by-step construction process.
Theresa Sprague of Wilkinson Ecological Design reviewed the mitigation plan for the Commissioners. She said their goal is to remove the invasive plants, restore the native plant community, increase biodiversity, help enhance the bank stability, stormwater runoff, and flood control functions.
Deputy Usowski asked about herbicide use and Ms. Sprague said they will use mechanical removal for most species and only use a low concentration of herbicide on plants for which mechanical removal is not effective, such as Bittersweet.
Deputy Usowski asked Ms. Sprague to comment on whether the proposed chemicals would leach into the ground. Ms. Sprague turned this question over to Seth Wilkinson who explained that they address the use of synthetic chemicals very seriously by dabbing a diluted solution of the chemical on the stem of the plant. He said that if there were an organic method for the removal of Bittersweet he would be the first one to use it; but, unfortunately there is none. He said the herbicide he uses has been used for 30-35 years and he doesn’t believe that it effects groundwater and it biodegrades. He said it is a very selective, intense method which is used. Mr. Hoerle commented that he feels it is important that the Commission has all the information it can get regarding the herbicide to be used. Mr. Wilkinson
said there is published information; but, they are not using a restricted-use herbicide.
Ms. Larsen reviewed part of the Wetlands Bylaw which states “that no permit shall be issued for any activity in the buffer zone, unless the applicant, in addition to meeting the otherwise applicable requirements of this Bylaw, has proved by a preponderance of the evidence that:
1) there is no technically demonstrated feasible alternative to the project with less adverse effects; and
2) that such activities, including proposed mitigation measures, will have no significant adverse impact on the areas or values protected by the Bylaw.
Ms. Larsen commented that herbicides are not regulated to be safe and are intentionally toxic by design. She went on to explain that because herbicides are registered by the EPA doesn’t mean they are approved. She said that the registration process is not a health and environmental assessment, it is an attempt to balance the adverse effects with the results you’ll get from it. She referenced alternative methods for removal of invasive plants and the use of chemicals in “sensitive” areas. She said that the EPA does not define “sensitive”. She said that she is not talking about the herbicides themselves so much as the inert ingredients about which they know very little.
Mr. Wilkinson responded that the Glyphosate which they use does not contain any of the inert ingredients which Ms. Larsen referred to, and it has been extensively tested on Cape Cod with respect to groundwater. He said this could be verified with Bill Clark of the County Extension Service. He said as land managers they have to review all the options and consider disturbance to the habitat. He reviewed their method of removing Garlic Mustard and said it is totally organic. He said that 80-90% of the plants are managed through rubbing, but they have given the Commission all of the other potential methods which they might need to use. He said they have never had to use all the methods outlined in the management timeline; but, it is a regulatory document, and they don’t want to have to come back
and bother the Commission every time they might need to change something. He said that even if they did need to do everything it would be minuscule compared to the conventional way most folks manage their landscapes. Mr. Wilkinson said they understand all the concerns and they have taken the best literature and combined it with their extensive experience in this field and tried to put together a plan which balances habitat disturbance with habitat benefit.
In answer to a question posed by Mr. Smith, Mr. Wilkinson said they would be using less than a quart of Glyphosate over the three-year period.
Chairman Murley commented that every organization that is a land steward wrestles with this problem and for twenty years or so he has dealt with these types of things working for the Audubon. He said there is a huge difference between spraying and
paint brush touching of these spots. He said that some of these projects are being done by the Nature Conservancy, MA Audubon, and trustees of reservations.
Mr. Murley went on to say that a similar project of this type is being done on Pleasant Bay by Meetinghouse Pond on land owned by the Orleans Conservation Trust which was reviewed by the Conservation Trust and other agencies. He said that one of his concerns has to do with how much will be cleared initially and the possibility of the clearing causing some runoff. He said he thinks that could be mitigated by perhaps placing a condition which states that no more than Fifty Percent (50%) of the area can be cleared at any one time. Mr. Wilkinson said he had no objection to that. He said the Applicants really want to preserve as many trees as possible.
Ms. Larsen said she has read of many instances where the Nature Conservancy did complete things with different methods without herbicides and she feels that it is the Conservation Commission’s obligation to look at all the alternatives. She said that is why she wanted to see some sort of analysis of what else was looked at. She said she has researched this for ten years and cannot accept the comments about things being benign. She said she doesn’t feel that it is clear enough between the plan and the written management plan as to what exactly is to be done.
Chairman Murley and Mr. Collins touched on the fact that there was a problem last year with a plan by Wilkinson Ecological Design which was carried out by someone other than Mr. Wilkinson’s team and was not done correctly. Mr. Collins wondered how the Commission should condition an Order to make sure that the work approved is carried out as it should be.
Mr. Wilkinson said they had submitted language used by other towns that state that if another contractor does the work it must be done exactly according to Wilkinson’s approved plan.
Mr. Hoerle commented that he would like to see a plan which initiates mechanical removal and gives the Commission a chance to see what’s left after mechanical removal. Mr. Wilkinson said the 85-90% of the invasive removal is done mechanically but he feels strongly that it is necessary to wipe the Bittersweet prior to disturbing the ground in order to minimize the intervals of disturbance. He said it is a habitat disturbance every time you have to go into the area. He said that the judicious use of a very, very, small amount of chemical over time really minimizes the habitat disturbance.
Attorney Turano-Flores suggested conditioning the Order to require an on-site meeting between the Conservation Agent and Mr. Wilkinson after the initial mechanical removal, perhaps sometime during the Summer, and a condition requiring that if a contractor other than Wilkinson Ecological Design is to perform the work they will be required to demonstrate their expertise to perform the work to the Conservation Commission. Mr. Wilkinson commented that there is a note on the plan which states that herbicides are to be applied by a knowledgeable, licensed individual, so that would preclude the homeowners from doing the work themselves. He said the he doesn’t want the project being implemented incorrectly any more than the Conservation Commission does.
Deputy Usowski commented that in general she really likes the planting plan and that there is a good variety of native plants in it. She reviewed the planting in the southeast corner which goes up to the 100' Buffer but does not go into the Limit or Work and asked what the intention for that area was. Mr. Wilkinson said they have already spoken to a Certified Arborist about the best way to save the Cedars in that area during construction.
Discussion followed about the house, and Deputy Usowski told the Applicants that she appreciated them moving everything out of the 50' Buffer.
The location of the septic tank pump chamber was discussed and Ms. Sequin said that the grade is too steep if the line was brought of the West side and there would be too much cover over it. More discussion followed about having a 1,500 gallon septic tank in the 50' Buffer. Mr. Smith said he would be a little more comfortable having it just touching the 100' barrier to an intermittent stream than having it 80' from the top of the bank. He said that if there is only one toilet in the basement there are a number of other options available. Ms. Sequin said that 50' is the minimum required by the Board of Health and that is why they have kept it over 50' away from the top of the bank. She said the other advantage to having it in the proposed location is for access for maintenance and pumping. Mr. Smith did not
agree.
Mr. Smith asked about the aggregate size of the bedding stones for the pavers and how far apart the pavers would be spaced. He said that he feels the ratio between hard space and pervious space is exceedingly low. The architect said that the patios would be pitched to drains so there would be alternate methods to capturing the runoff, and reviewed the plan for Mr. Smith.
There was some discussion about additional planting beds around the house and the proposed trickle irrigation system. Deputy Usowski reminded the Applicants that any new plans would need Conservation Commission approval and perhaps and Amended Order of Conditions.
There was brief discussion about the water and power line to the dock area and how it would be installed, and also about float storage.
Mr. Murley, though not voting on this matter, suggested that there should be some condition regarding survival of the trees and shrubs.
There was no further discussion and Mr. Hoerle closed this hearing. Mr. Collins MOVED and Mr. LaBranche SECONDED the Motion for approval with Order of Conditions 1-18, 19, 20, 21, 22, 23, 24, 26, except as outlined on the Wilkinson plan dated 2/1/10, 27, 29, 90% survival rate after three seasons, 30, 33, covered container stored in driveway, 35, 37, as on Wilkinson plan dated 2/1/10 to be mown once a year only and notify Conservation Agent when mowing is to be done, 38, a new plan showing the location of planting beds shall be submitted as a Request for an Amended Order of Conditions, 39, on-site meetings before, at halfway point and upon completion of project, 40, no float storage with the 100' Buffer Zone, 41, Mitigation areas shall not be disturbed more than Fifty Percent (50%) at any one time, 42, a drainage system
shall be installed to control patio runoff, 43, mitigation plan by Wilkinson Ecological Design shall be strictly adhered to and if change in contractor, qualifications and ability to complete plan must be demonstrated to Conservation Commission.
THE VOTE WAS 5 IN FAVOR, ONE OPPOSED AND ONE ABSTENTION.
MOTION CARRIED.
There was a short break at this time.
8:40 P.M. Continuation of Hearing on Notice of Intent filed by Donald Cook, 165 Shurtleff Road, Map 10, Parcel 240; and, 195 and 205 Shurtleff Road, Map 07, Parcels 197 & 195.
Chairman Murley announced this hearing. Don Munroe of Coastal Engineering, Inc. was present for the Applicant. Chairman Murley told Mr. Munroe that he missed one hearing on this matter, but has read the Minutes, and asked if Mr. Munroe was comfortable with him sitting on this hearing. Mr. Munroe said he was.
Mr. Munroe said they had prepared a letter to try to address some of the concerns that came in the email from Eastham’s Town Counsel and also, in their research they found that there are a number of other cases similar to this one in other towns that have received Orders of Conditions and were able to build revetments Mr. Munroe reviewed these cases for the Commission. He said the State upheld the Orders of Conditions and the Commission has the opportunity to do the same thing.
Mr. Munroe said that since the Applicant has exercised all alternatives before this last one, this is a case in fact and the Conservation Commission would not be approving this proposal just because the person needs a wall, but because he has already exercised a number of the requirements prior to approval. He said that addresses the letter from Greg Berman, WHOI Coastal Processes Specialist, who alludes to the number of things an Applicant should try to do an this Applicant has done them.
Mr. Munroe said that he agrees that nourishment should be done and showed photos of the erosion in the area. He said they have tried to address as many of the issues which were mentioned at the last couple of meetings as they could.
Deputy Usowski said that some things for the Commission to consider would be whether or not they feel the Applicant has practiced due diligence, if they have looked at alternatives to doing this and tried all the alternatives, and do they think the alternative analysis is sufficient. She said the foundation wall from the original dwelling is still there.
Ms. Giovinazzo said she feels that the Applicant has done everything they can do. Chairman Murley said the Conservation Commission had trouble in the past with the
pre-‘78 post ‘78 issue. He said that he thinks everyone worried about whether the whole Eastham bay shore line would be armored with revetments; but, he feels that the nourishment program has taken some of the stigma away from this problem.
Deputy Usowski reviewed the plan and there was some discussion about the refusal of the abutters, Brothers, to respond to the abutter notice so the Applicant would have approval to tie into their wall. Mr. Munroe said they will continue to try to contact the Brothers. Mr. Munroe said they intended to shore up the stairway which exists and the bottom part will become stone, incorporated into the revetment.
There was no further discussion. Mr. Collins commented that he feels the Applicant has done his homework and the Commission doesn’t feel the Commission has man options on this particular project.
Chairman Murley closed the hearing and Mr. Collins MOVED approval of this project. Mr. Hoerle SECONDED the Motion with Order of Conditions 1-19, 20, 21, 22, 26, 27, 29, 31, 50 cubic yards annually, 32, 33, 34, 36, 38, an on-site meeting shall take place before the project begins and at the end of the project with the contractor, Conservation Agent, and DPW Superintendent, 39, in addition to the annual nourishment amount, sand shall be added to the area above the revetment in order to re-contour the area before planting. The Contractor shall provide the Conservation Agent with information regarding the exact amount of sand added to this area, 40, bedding stone is to be from 9" - 12" in size and all stone shall be stored on sand in the parking lot or in a covered container on the beach near the site., 41 the
face of the revetment shall be rough.
SO VOTED UNANIMOUSLY.
10:20 P.M. Request for Certificate of Compliance, Gooding, DEP SE 19-1341, 1625 State Highway, Map 18, Parcel 306A.
Deputy Usowski reviewed this filing for the Commission. Ms. Giovinazzo MOVED and Mr. LaBrnche SECONDED the Motion to issue a Certificate of Compliance for
DEP SE 19-1341.
SO VOTED UNANIMOUSLY.
10:22 P.M. Request for Extension Permit, Frank and Margaret Vangeli,
DEP SE 19-1248, 27 Longstreet Lane, Map 10, Parcel 333.
Deputy Usowski reviewed this project, and told the Commissioners that the Vangellis would also like to remove some sand from around their back door.
Mr. Hoerle MOVED and Ms. Giovinazzo SECONDED the Motion to grant an Extension Permit for DEP SE 19-1248, that the limit of work for the well should be re-established, and that the some sand can be removed from around the doorway.
SO VOTED UNANIMOUSLY.
There was no further business. Mr. LaBranche MOVED to adjourn at approximately 10:25 P.M. Ms. Giovinazzo SECONDED the Motion.
SO VOTED UNANIMOUSLY.
Respectfully submitted.
Kay Stewart-Greeley, Clerk
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