Conservation Commission
Minutes of May 24, 2012
Public Hearings
Mashpee Town Hall - Conference Room 1
Commissioners: Chairman John Fitzsimmons, Vice Chairman Ralph Shaw, Brad Sweet, Patty Jalowy, and John Rogers
Staff Present: Drew McManus (Conservation Agent) and Kris Carpenter (Administrative Secretary)
Call Meeting To Order: 6:55 pm
The meeting was called to order with a quorum by Chairman Fitzsimmons at 6:55 pm.
There was no public comment.
Pre/Post Hearing Agenda:
- Minutes: Approval of the following minutes: May 10, 2012
Motion made, seconded and unanimously carried to approve the minutes of May 10, 2012
- Land Stewards Program update: Certificates of Recognition/Trail Mapping – All of the Certificates of Recognition for the volunteer effort at the Noisy Hole Cleanup are completed. Agent McManus asked how to present the certificates because it will be hard to round up everyone for a formal presentation. The Commission states that it would be acceptable to present each one in person although the Chairman would prefer to thank Renee Fudala in person before the Board.
- Refuge Partnership Meeting: Comprehensive Conservation Plan: 6/6/12 & 6/7/12 at 9:00am – 3:00 p.m. at the Waquoit Bay Research Reserve to discuss the plan that the US Fish & Wildlife have been working on. The US Fish & Wildlife have already held a public scoping meeting which involves different components ranging from habitat management, access and law enforcement to educational programs. This Comprehensive Conservation Plan will put in management protocols and getting the Reserve up and running.
HEARINGS
7:00 Richard Cook **043-2692** (Popponesset Bay) Create and operate an aquaculture project with maintenance in perpetuity - RDA **Cont’d to June 14th @ 7:09pm**
Resource Area: Land Under Ocean
Material submitted:
[4:53] Chairman Fitzsimmons states that at the last meeting there were a number of issues that were brought up and have since been resolved with legal counsel and regulatory bodies.
Agent McManus states that he would like to address the assertion from Attorney Wall’s office that this meeting would be precluded by a mandatory review of the Cape Cod Commission because he asserted that the Commission considers this to be a development of regional impact. The Agent has a letter dated May 24, 2012 from Christy Sanitori, Chief Regulatory Officer of the Cape Cod Commission which he reads the letter for the record. The Agent also states that one of the other issues brought up at the last meeting was the clarification of the abutter notifications which the Commission has accepted Town Counsels recommendation which is that the abutter notification shall be within 100’ of the boundary of the activity of where the project is
occurring are required to be notified. The applicant has been instructed to notify the Town of Barnstable by certified mail; all of the areas within 100’ of the grant boundary are mostly the Commonwealth of Massachusetts and they have already been notified by the receipt of letters from the Division of Marine Fisheries as well as Natural Heritage and Endangered Species program. Agent McManus reads the letter from Town Counsel for the record. The Agent says that Attorney Wall states all other applicable permits must be obtained and the agent then reads Regulation 3 Section 8.5 for the record. The agent determines that the Commission may still commence without the applicant being physically issued all other local and applicable permits.
Agent McManus had requested a detailed narrative from the applicant explaining the day-to-day operations of the aquaculture farm along with a detailed contingency plan of what the applicant’s plans are for the gear and infrastructure in the event of adverse weather conditions. Also requested; what plans were in place to retrieve such gear if they become storm born debris. Although, Mr. Cook did submit a revised narrative, it did not contain the detailed information that had been requested. Agent McManus states without this information, the Commission cannot ascertain the full impact of what the operation may present in terms of rare species habitat. Agent McManus recommends continuing for two weeks. Richard Cook explains
that he has hired an environmental engineer that can answer any questions about potential storm born debris. The agent explains that there are more specific details of the operations that need to be provided. Chairman Fitzsimmons explains to Mr. Cook that the narrative had been requested previously and the one that was provided did not include the information that all parties were looking for. Mr. Cook asks the agent what had been specifically requested and Agent McManus verbally provides it to him. Mr. Cook states that he has hired an engineer as he was asked to do and is ready to discuss the entire project. He is only asking that the engineer’s presentation be heard because he believes that all questions will be answered.
Roy O’Graski from Coastal Engineering requests that at this time, at this meeting, if they can address the letter of the concerns with the wetland issues and then request for a continuance to answer the rest of the information for Agent McManus. Mr. O’Graski states that Mr. Cook does not have a contingency plan for removal and that it will be provided at the continued hearing. Chairman Fitzsimmons is concerned that everything will have to be repeated at the next meeting for any Board members that are not present tonight. The Chairman asks the Board for their input on whether or not it should be presented. Mr. Sweet suggests that all parties should air their issues rather than wait until the continuation, Mr. Cook should be
made aware of any other issues that might now surface. Mr. Rogers would like to see it move forward as there is always one thing or another and there has been no progress. Chairman Fitzsimmons agrees and allows Mr. Cook to present.
Attorney Brian Wall states that it is unfair that Mr. Cook comes forward with an inadequate Notice of Intent and is allowed to answer questions. Mr. Wall states that they need time to review the material with their own consultants. The Chairman states that there is no intention of closing tonight.
Mr. O’Graski states that they worked on design modifications of Mr. Cook’s system which was presented to Agent McManus previously along with a response letter from LEC Environmental Consultants. There is a number of concerns; mostly water circulation, scouring, velocity-zone and storm damage. An analysis of the wave forces that could be created in a hurricane event in this area was done. There were actual calculations showing the force of a wave on an object and they found that the holding power designed from Mr. Cook’s system is well beyond secure if an actual wave happens, if it could exist in that area, by using high strain clips and anchors. Mr. O’Graski believes that in this kind of event, the cages would
be 6-10’ under water while these four to five foot waves or swells were flowing along the top. The cages are designed to withstand even big waves crashing on them. Mr. O’Graski states that they have looked at two major aquaculture facilities that are both public in Wellfleet and Dennis and are both in similar if not more active flood zones. They stick four PVC 1” pipes into the ground by hand and then throw the racks on them. These areas are 50 times the size of what Mr. Cook is proposing and there has never been an issue with either of them in 30-40 years of operation. Dennis was permitted in the 80’s and they are in the process of permitting much more. There is a 3000 sf. area in Nantucket being proposed and will eventually be permitted. Mr. Cook has gone way beyond what is normally done for the anchoring system to satisfy all comments and concerns about storm born debris. This type of system allows the water
to pass by under and above the system. The water quality will be improved as they are filter feeders and actually clean the water. Mr. Shaw asks how this design differs from Wellfleet or Dennis. Mr. O’Graski states that the other areas basically stick pipes in the ground and place the racks on them. Mr. Cook’s design uses a string of anchored lines with Danforth Anchors which have solid holding power. Each of the nets are secured with tuna/swordfish clips which hold 400-500 lbs each clip and are clipped right on the string. The Danforth Anchors will keep resetting itself; and will set better with increased forces placed upon it.
Richard Crouse, President of Aquaculture Research Corporation in Dennis, provided testimony that he has been in the aquaculture business for approximately 40 years. He has extensive experience in Wellfleet, Dennis and Barnstable. Mr. Crouse states that he has been through heavy storms and the gear does not go anywhere. Occasionally a bag might get loose and washes up on the shore but they will quickly retrieve it as it is valuable. The physics of the wave does not allow a wave bigger than the depth of the water so the waves are no bigger than foot high. When the damaging waves come in, the gear is well underwater, possibly 6-10’ under water during high tide when a storm is blowing in. Mr. Crouse, in 40 years, has
never seen the gear go anywhere. Agent McManus asks Mr. Crouse if he has ever run into an enforcement situation from a regulatory agency about any adverse impacts to rare species habitat resulting from shellfish aquaculture operations. Mr. Crouse states that they deal with the Audubon extensively in Wellfleet as they have a major presence there and they might have lost a couple of turtles in the last 30 years.
Steve Hyde from Punkhorn Point Road is an abutter to Mr. Cook’s farm in Ockway Bay for 11 years and he has watched the work. Mr Hyde stated that “there is one man in a Boston Whaler, no noise and considers Mr. Cook one of the best neighbors and is in full support of the proposed aquaculture”.
Attorney Brian Wall from Troy Wall Associates is representing 23 property owners from Daniels Island and Popponesset Island. Mr. Wall states that Mr. Cook has relocated his proposed farm but in doing so has increased the size of the grant by two-fold and also increased the number of cages. He is still within the velocity zone and is also primarily within priority habitat of rare species and an estimated habitat of rare wildlife. Mr. Wall explains that he has brought Stan Humphries from LEC Environmental and also wildlife consultant (Call of the Wild-Diane Buretos). Mr. Wall states that they have three categories of concern as it is currently presented; first are the procedural issues and he would like to state for the record that he is
in disagreement of the opinions of counsel regarding notification of abutters. The second category is the informational issues which have somewhat been discussed tonight and then the third is specific issues of compliance to the performance standards. Mr. Wall says that Mass Audubon and The Call of the Wild are both very concerned because this particular area is a staging area for migratory species and the human activity associated with the grant is going to affect and diminish the ability of the birds to forage and utilize the tidal belt area. Mr. Wall mentions that he spoke to Norman Hayes from BSC Group; a consultant who performs a lot of work for Save Popponesset Bay and Mr. Hayes explained that they have an ongoing Order of Conditions that allows for dredging of Popponesset Island Creek which allows the spoils to be placed onto the spit for nourishment purposes. Mr. Hayes concern is if the cages break and get into the bottom of the creek, the damage
that can be done to the dredge as it is designed to pick up siltation only. Mr. Wall also contends that there is also inaccurate information in the NOI which claims that only .04 acres of land is being altered. Mr. Wall’s contention is that the project is 1.99 acres in size with 15,000 bags.
Mr. Wall asks the Commission to look closely at the impacts because the applicable performance standards in 310 CMR 10.27, because if the project goes forward, it cannot have any short or long term adverse effects on habitat of the rare species. He also states that Natural Heritage’s letter response is based on the information that was provided in the NOI for 1,666 sf. and not 90,000 sf. so he contends that the letter is based upon inaccurate information and also not enough time to review the full scope of operations.
Agent McManus reads the Natural Heritage letter for the record which states that the project meets the states listed species performance standards. The agent states that the current plan was submitted along with the narrative which shows the schematics of the grow-out bags.
Chairman Fitzsimmons comments that he did not find the word “tremendous” in the Audubon letter indicating a level of their concern which he says might be exaggerated. The Chairman also states that when he walks the Spit now he sees fishermen, swimmers and lots of people which have not bothered the plovers or terns. During the summer, on the bay side you would see all kinds of power boats from all over and he would consider this a much bigger distraction than an aquaculture project.
Agent McManus states that he feels confident that Natural Heritage certainly took all activities of the proposed aquaculture farm into account as part of their review process.
Stan Humphries, Coastal Geologist with LEC, states that there were two letters that had been submitted to the Commission; March 22 which comments on the resource areas and performance standards and a May 23rd response to Coastal Engineering’s comment. The most important is the migration of the sedimentation over the last 20 years and as it relates to the project which the Commission should be concerned with is the impact of current and wave alteration of the structures being literally on the bottom. Mr. Humphries is more concerned with the lower water elevations and the waves and currents which could result in some erosion and increased sedimentation.
Agent McManus asks Mr. Humphries if he has ever personally heard of any impacts resulting from established aquaculture farms to rare species habitats. Mr. Humphries explains that he was not commenting on the value of the tidal belt as a rare endangered species habitat; he is strictly looking at it as sedimentation and geologic processes. The agent asks Mr. Humphries if there are any examples he could site where existing aquaculture farms have adversely affected geologic processes and Mr. Humphries answers that he does not have any information on that right now.
Rick York, Town of Mashpee Shellfish Constable, states that he is also a marine biologist and would like to point out some information that might be useful. He explains that the Town’s comprehensive plan states that Mashpee wants to promote shellfish aquaculture as long as there is no adverse impact on natural resources. Mr. York states that he does not feel there is any negative impact with this project and the sedimentation will not be altered by the bags as they do not stop the sand from moving at all; the sand will go right through them, by them and around them. Mr. York also says that shellfish aquaculture sites actually enhance bird population and other wildlife as it provides more food and more species diversity which is a benefit for
a healthy eco system.
Roy O’Graski would like clarify some of Mr. Wall’s comments; one being that DEP previously became involved because of an appeal that was filed which required a superseding order. They called DEP to ask them if they have ever dealt with similar projects and they did not know what they were talking about.
Joyce Mason, Town Manager, questions why Mr. Cook wasn’t advised that he did not have all the information needed and she is hopeful that in the future, the applicant will be given ample time to respond. Agent McManus states that he did hand Mr. Cook a written advisement of what should be included in the narrative which was given to Mr. Cook more than a week ago.
Agent McManus would like to comment on the documentation from LEC, specifically the calculations and determination of the maximum wave that could do damage which states the impact on a vertical wall and pressure from linear foot on cages that are stacked too high and that it should be taken into account that the solid surface will be doubled and the potential impact of wave erosion around the cages will be increased. The agent states that the terms “vertical wall” and “solid surface” are not applicable to the structures proposed because they are flow through cages and associated anchoring devices. There are no vertical walls and the cages are not considered solid surfaces as they allow for the flow through circulation of
water.
Agent McManus says that providing more information in the narrative as requested would not only help the Commission make an informed decision but also being able to accurately draft up an Order of Conditions that will safe guard and alleviate concerns.
Agent McManus comments on information that Ms. Buretos submitted. Ms. Buretos points out that identification of an anadromous catadromous fish run by the Division of Marine Fisheries and the proposed project may be a significant barrier for the species as they travel in and out of the inlet. The agent states that the Division of Marine Fisheries deems that this is an acceptable project based on a number of criteria that they look at and that it does meet their performance standards based on 310 CMR 10.35 S-3A.
Chairman Fitzsimmons asks for a date and time for the continuance.
Motion made, seconded and unanimously carried to continue to June 14, 2012 at 7:09pm
Chairman Fitzsimmons asks Mr. York if he can provide the documentation that he mentioned earlier and Mr. York says that he can send it over. The documentation shows that it increases species diversity and they provide more food for all kinds of organisms. He states that one paper from the Audubon Society had created an oyster reef in Wellfleet solely for the purpose of creating a sanctuary of an improved habitat for all kinds organisms including birds.
7:03 Rita Connolly (35 Bearse Road) Replace existing septic system with a Title V. Existing cesspool will be pumped, filled with clean sand and abandoned - RDA
Resource Area: LSCSF
Material submitted: Proposed Septic System 5/7/12 Engineering Works
[1:18:36] Pete McEntee of Engineering Works is presenting for Ms. Connolly and he explains that the owners are requesting to voluntarily upgrade their septic system. Agent McManus states that the area disturbed will be replaced with loam and seed. Three variances were requested by the Board of Health. The agent recommends the conservation seed mix for ground cover.
Motion made, seconded and unanimously carried for a Negative Determination
7:06 John Foley (184 Monomoscoy Road) Remove existing deck and replace with a larger deck - RDA **Continued from May 10, 2012**
Resource Area: LSCSF, Buffer Zone to Salt Marsh/BVW
Material submitted: Proposed Deck 3/16/12 BSS Design
[1:21:30] Jeff Ryther from BSS Design is representing for the applicant and explains that the deck proposal will extend along the back of the house. The original deck was approved in 1987 by a separate application which a note was found in the file and approved by Bob Sherman. Agent McManus confirms that a document was found in the file that gives the specs of the deck and must have been presented to the Commission in some fashion. The agent states that the newly revised plan submitted for the deck replacement shows the placement
of the sonotubes. He also states that it does not encroach any closer to the resource area and occupies previously disturbed areas maintained as lawn.
Motion made, seconded and unanimously carried for a Negative Determination
7:09 Mark & Patricia Thompson**043-2695** (40 Little Neck Lane) License and maintain an existing ramp and float off the existing licensed pier - NOI **Continued from May 10, 2012**
Resource Area: Land Under Ocean, Salt Marsh/BVW
Material submitted: Plans Accompanying Petition 5/18/12 BSS Design
[1:25:15] Jeff Ryther from BSS Design explains they have included the jetski float in this application and submitted the revised plans. Mr. Ryther explains that the timing from the marine contractor is at the end of the season to encapsulate the existing float. Mr. Ryther asks if it is necessary as he does understand the encapsulation regulation on new construction but he is questioning the applicability on existing docks. Agent McManus states that the time can be accepted as long as the float can be encapsulated prior to the next
season. The agent explains to Mr. Ryther that the dock regulations were updated through a public notice and a public hearing. Agent McManus recommends a close and issue with a condition that an encapsulated float be installed for the 2013 season and requiring inspection by the agent.
Motion made, seconded and unanimously carried to Close and Issue with the conditions stipulated by the Agent
7:12 Stratford Pond Condominiums (83 Stratford Ponds Rd) Remove (2) trees and prune (5) trees - RDA **Cont’d to June 14th @ 7:00pm**
Resource Area: Buffer Zone to Inland Bank/Amos Pond
Material submitted:
[1:32:45] Hearing is continued per request of applicant.
Motion made, seconded and unanimously carried to continue to June 14, 2012 at 7:00pm
7:15 Mark & Robin Galante (164 Captains Row) Installation of additional support for an existing deck. Construct new platform, steps and a new walkway on front side of home. Existing brick walkway and platform will be removed and disposed of - RDA
Resource Area: Buffer Zone to Riverfront (Mashpee River)
Material submitted: Site Plan 5/8/12 J.E. Landers-Cauley
[1:33:20] Jack Landers-Cauley is representing the home owner and proposes an existing porch to be incorporated into the living area. They will need to add sonotubes for additional support and also additional support to the existing deck. Agent McManus states that the lot is pre-disturbed with maintained lawn and landscaping and is very minimal.
Motion made, seconded and unanimously carried for a Negative Determination
7:18 Thomas Choate **043-2696** (43 Pickerel Cove Circle) Construct a patio, install a concrete pad (base for a generator & HVAC condensers), reroute electric and water lines - NOI
Resource Area: Buffer Zone to Inland Bank/Land Under Water
Material submitted: Buffer Restoration 5/9/12 Vaccaro Environmental Consulting / Plan to Accompany NOI 5/9/12 David Thulin
[1:35:53] Jack Vaccaro from Vaccaro Environmental is representing for the homeowner and explains that they are proposing to construct a patio and the repair and relocation of an existing utility trench. The activities were started by the applicant without prior approval by the Conservation Commission and were discovered by the agent. Mr. Choate was asked to cease and desist and then instructed to submit a Notice of Intent. The proposed patio is within 50’ of the top of the inland bank as is the concrete pad which will be located off of the southeast corner of the house. The third part of the proposal is the relocation of the utility trench for electricity and water lines that run from the back
of the house down to a naturally vegetated area to the beach area. The Choates would like to relocate the utility lines so that they pass under the patio over to the stairwell and suspend from the stairwell down to the beach area. A portion of the existing trench will be filled to prevent any further scour at the top of the bank. Mr. Vaccaro continues to say that they are also proposing approximately 950 sq ft of buffer restoration in the area of the site that is closest to the top of the inland bank that had previously been maintained as lawn. A portion of the site closest to Mashpee Pond is in Estimated Habitat wetlands wildlife so the only part of the project that enters into that estimated habitat is the utility line relocation. Agent McManus states that standard protocol is to not issue the Order of Conditions without the receipt of a letter from Natural Heritage but in light of the jurisdictional extent of Natural Heritage, the area of
disturbance is really not much of a disturbance because the utility lines are going underneath an existing stairway. The agent states that he does not anticipate any status of “Take Status” or “Adverse Impact” as a result of what is being proposed. Mr. Vaccaro was advised that if such a letter comes back than his client should be made aware that they would have to start over with revised plans. The Agent says that with the submission of the mitigation plan, the site conditions will be improved compared to existing conditions.
Motion made, seconded and unanimously carried to Close and Issue
- Administrative Approval 43-1027 – Regrade Maushop Village Trust’s beach to eliminate a 2-3’ erosion cut created by south-west gales during moon course tides. Nathan Christophorus from BSC Group is asking permission to go in and re-grade Maushop Beach. He explains that the work will be done in one day with equipment that they will bring down Clam Shell Road. Chairman Fitzsimmons asks if they are bringing in any sand and Mr. Christophorus states that there will not be any sand brought in. Agent McManus states that there has been a letter received from New Seabury authorizing use of their access. Mr. Sweet asks if the erosion damage extends for the entire Maushop Beach and Mr. Christophorus confirms that it is.
Motion made, seconded and unanimously carried to approve the Administrative Review
- Tidewatch /New Seabury: Coastal Bank Erosion Project: June 4th at 2:00 p.m. Meeting room 3. June 14th possible hearing date. Agent McManus has planned a meeting for June 4th with representatives from Tidewatch, New Seabury and Town Counsel for the purpose of trying to come to a solution for the existing conditions. The piles that were put in place at the bottom of the bank at 108, 110 & 116 Shore Drive West are acting as a seawall as they are backed up by filter fabric and installed with 2 x 4 boards in between the spaces that were originally allowed to accommodate sand migration. The agent states that he had allowed these changes as a safety precaution because there were sizable sink holes forming behind the piles. Agent McManus says that the sink holes were a legitimate safety
concern but the sink holes were supposed to form as an intention of the project’s overall design. The agent says that he is hoping for a solution at the meeting; at the very least is to remove the filter fabric and 2 x 4’s to allow the sand to filter through as was intended. New Seabury has just completed their 600cuyds of sand nourishment so the piles were semi-buried but they had placed the nourishment on the seaward side of the piles. The agent had explained to Mr. Colasuonno onsite that the narrative had said to put it over the face of the bank so that it would slowly creep in between the properly spaced piles onto the beach. It is not considered a soft solution anymore as it is a hard solution because it is a continuous seawall that has formed as a result of these piles and defeats the entire purpose of the project. Agent McManus says that bringing the two parties together to discuss what can be done to alleviate the situation and also make a
determination of what type of filing will be necessary to accommodate those changes for the Commission to review. Vice Chairman Shaw asks if it is likely to have any kind of agreement between the two parties and the agent thinks it is possible since both parties would like to maintain the beach. Both properties were obligated to put a certain amount of beach nourishment every year. New Seabury is responsible for 600cuyds and Tidewatch is responsible for 1200cuyds. per year. Tidewatch has not conducted nourishment for over six years. Mr. Sweet comments that there is now a deficit of over 7200cuyds of sand that has not been placed and they will need a plan to catch up somehow. The agent says that Tidewatch has stated that New Seabury restricted their access and according to Mr. Colasuonno, they have not but Tidewatch is supposed to pay for the access each year and they have not.
- Agent vacation (5/28-6/1/12) Agent McManus informs the Commission that he will be on vacation the week of May 28 through June 1.
Motion made, seconded and unanimously carried to adjourn the meeting at 8:57 pm. [2:00:26]
Respectfully submitted,
Kris Carpenter
Administrative Secretary
***All material submitted for hearings can be found on Conservation Flash Drive dated 7/1/10***
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