Conservation Commission
Minutes of September 13, 2012
Public Hearings
Mashpee Town Hall - Conference Room 1
Commissioners: Chairman John Fitzsimmons, Vice Chairman Ralph Shaw, Mark Gurnee 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: N/A
- Proposal for New Meeting Time (REMINDER) – Chairman Fitzsimmons states that the next meetings scheduled will begin at 5:55pm.
HEARINGS
7:00 Michael Glick**043-2708** (190 Fells Pond Road) Construct an elevated walkway within the 50’ buffer and coastal bank - NOI
Resource Area: Coastal Bank, Land Under Water, LSCSF
Material submitted: Conservation Development Plan (Stairway) 8/10/12 Wet Tech Land Design / Plan of Existing conditions 8/16/12 BSS Design
[2:21] Wayne Tavares from Wet Tech Land Design is the representative and explains that the site is an extremely steep slope and they would like to construct an elevated walkway to provide access to the pond. Chairman Fitzsimmons states that the plans have a note saying the stairs will attach to a dock but there is no dock on shown on the plans. Mr. Tavares states that they do have a floating dock that was approved by the Harbormaster but this project is intended to stay on the upland, non-water dependent portion of the pond. There will be no dock. Mr. Gurnee asks how they intend to get all the concrete down the hill and Mr. Tavares says that they will do as little damage as possible; it will be
dug by hand and the concrete will be moved down the hill in troughs. Mr. Tavares states that they have designed it to dodge all the trees and will only remove one dead oak tree and brush clear only a small portion under the walkway.
Motion made, seconded and unanimously carried to Close and Issue
7:03 Waquoit Bay National Estuarine Research Reserve**043-2710** (WBNERR) (493 Great Oak Road Beach) Construct a temporary elevated boardwalk for collaborative research - NOI
Resource Area: Salt Marsh, LSCSF, BVW, Land Under Salt Ponds
Material submitted: Multiple Photos 8/23/12 WBNERR
[12:40] James Rassman is the representative for WBNERR and explains that they have built an elevated boardwalk which gives temporary access to researchers to get on and off the salt marsh and the ability to transport equipment. The Board had previously thought the best way to proceed was with an MOU between the State and the Commission. At that time, they wrote up the MOU but at some point, DEP preferred it going through as an NOI. The project itself is for an elevated boardwalk which WBNERR constructed and there was no excavation
or fill. There are no footings in the marsh as it sits on milk crates and the walkway is made from lobster trap wire. The problem with this project which is with MBL, the University of Rhode Island and USGS is that the gas analyzers that they need to take onto the marsh weigh over 200 lbs and there was no way to get the equipment down onto the marsh. They are studying carbon sequestration and salt marshes long term carbon budgets. Mr. Rassman states that most of the boardwalk has already been constructed because they had thought they were going to do the MOU process which DEP and Natural Heritage were aware of. They are already one year into the project which will end next year and everything will be removed. Because it sits on milk crates, it has the ability to pool off if a storm event occurs. Mr. Rassman states that it meets light penetration. Mr. Gurnee asks if this design has been used before and Mr. Rassman says that it is
a new design and there is an actual interest from the standpoint of such things like oil spill cleanups. Mr. Rassman states that this boardwalk is not for public use and there are signs posted that say “Research Area”.
Motion made, seconded and unanimously carried to Close and Issue
7:06 Nathan Kalowski **043-2706** (35 Waterline South Drive) Construct home addition & buffer strip restoration – NOI
Resource Area: LSCSF, Buffer Zone to BVW, Salt Marsh
Material submitted: Proposed Addition 8/17/12 BSS Design
[19:50] Jack Vaccaro from Vaccaro Environmental Consulting is presenting for the homeowner and explains that they would like to construct an addition on the back left corner of the dwelling. Mr. Vaccaro states that they are proposing mitigation to compensate for the increase in building footprint within 50’ of the wetland. It is approximately 900sf. of border plantings and native shrubs that will be planted essentially in the entire area that’s available between the dock and across the back yard and along the westerly
sideline of the house. The portion of the proposed addition that is closest to the wetland will be supported on posts. Mr. Gurnee asks what the lot coverage is and Mr. Vaccaro states that the upland lot coverage is about 27% and says that cluster subdivisions are allowed 30%.
Motion made, seconded and unanimously carried to Close and Issue
7:09 Martin Clark **043-2705** (76 Cayuga Avenue) Installation of new seasonal dock to replace existing wooden dock – NOI
Resource Area: Land Under Water, Bordering Land Subject to Flooding
Material submitted: Plan of Dock Replacement 8/13/12 Cape & Islands Engineering
[25:45] Jack Vaccaro from Vaccaro Environmental Consulting is presenting for the homeowner and explains that they would like to replace an existing wooden dock with a seasonal dock that will be installed on permanent concrete footings with a 2” pipe. The reason for the concrete footings is because the dock is located in an area containing rare mussel habitat. Mr. Slavinski from Cape & Islands Engineering explains that this design comes direct from Natural Heritage.
Motion made, seconded and unanimously carried to Close and Issue
7:12 Robert Diverdi **043-2709** (246 Monomoscoy Road) Demo/Rebuild single family home with paved driveway & new Title 5 septic system. Existing cesspool will be filled with sand and abandoned - NOI
Resource Area: LSCSF, Buffer to Coastal Bank/Salt Marsh
Material submitted: Proposed Site Plan 8/29/12 Cape & Islands Engineering / Existing Conditions 8/29/12 Cape & Islands Engineering
[32:10] Jack Vaccaro from Vaccaro Environmental Consulting is presenting for the homeowner and explains that this project involves a full tear down and rebuild with a Title 5 septic upgrade. The new structure will have an additional 20’ setback. The existing cesspool will be pumped, filled with sand and abandoned in place. The new septic is proposed as far back from Great River as possible. The proposed new deck extends a little bit beyond the current structure so the applicant has offered approximately 250sf. of shrub
plantings adjacent to the shore near the bulkhead. Agent McManus states that the area of the new deck is all predisturbed lawn. The agent mentions to Mr. Vaccaro that the new Harbormaster is requiring address identification on all docks. Chairman Fitzsimmons asks what will go in place of the area where the existing structure was. Mr. Vaccaro states that it is a very small area and most likely will be lawn. Mr. Gurnee states that the measurement of the mitigation on the plan only looks to be approximately 150sf. and Mr. Vaccaro says that they look at the shrubs at maturity which will be approximately 5’ diameter.
Motion made, seconded and unanimously carried to Close and Issue
7:15 John & Loren Kovalcik **043-2707** (48 Godfrey Road) Reconstruct a pier, ramp and float - NOI
Resource Area: Buffer Zone to Riverfront/Coastal Bank
Material submitted: Plot Plan – Dock Reconstruction 8/15/12 BSS Design
[39:25] Jeff Ryther with BSS Design is presenting for the homeowner and he explains that this project is to rebuild the dock and pier. The existing dock sits on rotting pipe and the entire dock sways. Mr. Ryther says that they would like to place the new float out a little further to 2.7’ water depth as the existing one is in shallow water; less than a foot at low tide. The piles will set every 12’ out to the ramp. The float is “L” shape to allow for personal crafts. Agent McManus reads the Marine Fisheries comments for the record which suggests a methodology and other typical comments that they send. The Harbormaster would like to see the street address permanently adhered to each section as well as the float. The Shellfish Constable commented that there were no shellfish in the area because of the substrate. Mr. Gurnee asks how the piles will be put in over the salt marsh. Mr. Ryther states that they will use a crane on a barge during high tide. There is approximately 2’
of high tide.
Motion made, seconded and unanimously carried to Close and Issue
7:18 Mc Development **043-2477** (76 Triton Way) Change location of a construction access which will solely traverse the coastal bank - AOC
Resource Area:
Material submitted: Site Plan Showing Revetment 8/13/12 Woods Hole Group
[51:05] Tara Marden from Woods Hole Group is presenting for the applicant and says that the project is for a revetment reconstruction at this property and the adjacent Florence property. The construction access was placed on one property for less disturbance of the coastal bank but they have completed the revetment rebuild on the Florence property and have since restored the area. They now need a new construction access over 76 Triton Way to finish the revetment rebuild. Ms. Marden states that they will not be disturbing anything on the bank because it has already been disturbed. There is a lot of scouring and erosion on the bank. Ms. Marden explains that there is a large construction
platform in the front of the house that will be removed because they are moving the access onto the homeowner’s property.
Motion made, seconded and unanimously carried to Close and Issue the Amended Order
- Administrative Approval: 43-2535 - 38 Seconsett Point Road / Ferris – Minimize/Eliminate grass areas and replace with natural scrubs and flowering plants, create circular driveway, provide a ramp of paver stones for wheel chair accessibility and sprinkler system
Resource Area: LSCSF, Buffer to Salt Marsh/BVW
Material submitted:
Neil Ferris states that they are not changing any of the mitigation on the previously approved plan but would like to add a circular driveway. Mr. Ferris states that the ramp, as stated on the plan is concrete but is probably an overdone; they will have dirt pavers. It will be used mostly by the elderly. They are also proposing a small sprinkler system for the new plants and to minimize/eliminate any grass areas to keep it as natural as possible.
- Bayswater/Tidewatch – Chairman Fitzsimmons states that Attorney Pat Costello is present for this item discussion. Agent McManus explains that a narrative from Tidewatch was submitted describing the beach nourishment obligations moving forward. The narrative mentions other Order of Conditions for similar beach nourishment obligations which Agent McManus will require an investigation of sand that might be owed by other properties. The agent states that in the file for Tidewatch, he did not see any profile information or sand grain analysis since 2000 or any other beach nourishment. There are bullet points listing nourishment for 1998 -2000; 1998 – 1000cy., 1999 – 200cy. and 2000 – 1000cy were placed but there is not any information submitted to the office to show these nourishments. Agent McManus states
that he would also like to discuss where both parties are in terms of the beach nourishment and New Seabury’s pile spacing. Kirk Bosma had explained the difference of the plan and what is actually out there in the field at the last meeting. Mr. Bosma had said that the filter fabric and 2 x 4’s did have an impact on the pile placement because of the pressure placed on the piles and it might have caused the shifting. Mr. Bosma had also said that the two rows were to be placed apart (plus or minus 4”). The agent says that he was onsite recently and while there is spacing in the piles, there is a discrepancy between that and the plan submitted. Agent McManus states that he believes the most important issue is for the Commission to assess the current configuration of the piles because they are separated by varying degrees along the entire stretch and determine whether sand is getting through. The agent says that he spoke with DEP and
they are taking the stance that since the issuing authority issued the Certificate of Compliance, they are not getting involved although they did make it known that they did not think it is in compliance. Agent McManus says that the sand is getting through as desired and but he does not know to what extent it is nourishing the beach and it still remains to be seen.
Attorney Costello states that what is before the Commission is an enforcement matter at this time. As previously noted before, there was an Order of Conditions issued allowing the structure to be constructed but there were 2 x 4’s installed which were not shown on the plan or approved by the Commission. After several meetings, it was agreed to remove the non-compliant components. Attorney Costello says that the fact a Certificate of Compliance was issued, even though it was a matter of record at this point of time, common sense would dictate that they did not truly achieve full compliance with the Order of Condition or they may have achieved it but added the material later which brought it out of compliance. That aspect of the non-compliance has been fully resolved at this point but it is
still in question whether the pile structure itself was installed as shown on the plan. Attorney Costello states that they are entitled to rely upon engineer submissions and plans submitted to the Board to help assist them in making a determination whether or not the structure has been appropriately or suitably constructed. Attorney Costello says that this is one of the reasons why he suggested this supplemental meeting; to have both parties appear before the Commission to give their views on whether or not it’s in compliance although Attorney Costello understands that Bayswater and Tidewatch had appeared at a prior meeting to provide that information in some regard. The attorney states that he never fully understood the 4” on center argument and he would like to hear more. He says the issue that strikes him, having seen the plan, is whether or not there are truly two staggered rows of piles and that they will look at the potential issuances of an
Amended Certificate of Compliance given the changed circumstances. The removal of the filter fabric and 2 x 4’s will be noted in the record. The attorney states that the question now is whether or not the pile structure complies with the approved plans and he believes that a secondary way to approach this is whether or not the performance standards are met or what was intended to be accomplished by the design initially. Chairman Fitzsimmons states that he thought the only question was whether or not the pilings are installed according to the Order of Conditions. Agent McManus states that everything seems to be at a standstill right now because there is sand getting through the piles and yet there is still a discrepancy of the plan but he says he would like to be able to move forward. Attorney Costello states that everyone will need to get together to come up with a compromised solution that will resolve the issues and most importantly; maintain
the environmental interests that are at stake. The Commission will need to determine whether an enforcement action is required. The Commission can issue an Enforcement Order as they deem necessary. Attorney Costello says that this issue has been beaten around for so long and that the facts and issues have been presented in detail to the Commission at various hearings over the course of the summer. He is now requesting to give the parties that have an interest in this matter; one last opportunity to be heard before the Commission and have them present any information that is relevant that way the Commission can make a determination as to whether or not further action is required. Chairman Fitzsimmons asks if the options in the Enforcement Order would be to say if the project is in compliance or not. The attorney says that an Enforcement Order would be issued if a project is not in compliance with the final Order of Conditions but if it is in compliance
then the Commission would decline to issue an Enforcement Order and suggest an Amended Certificate of Compliance acknowledging the fact that the filter fabric 2 x 4’s have been removed and is now, in its current configuration, compliant with the Order of Conditions.
Chairman Fitzsimmons states that that was the first of two issues. The second issue is Tidewatch and their beach nourishment obligation. Attorney Costello states that any Order of Conditions that was issued would form a basis for potential enforcement action if it is determined that Tidewatch has not met its obligations under the Order previously issued, which is to be determined by the Commission. Mr. Gurnee states that his observation is that Bayswater did not construct according to design however it seems to meet the intent in that the sand that was placed earlier this year is gone; washed out through the pilings and distributed to the beach. Mr. Gurnee feels that this design meets the intent of what the Commission wants to happen in terms of protecting the waterway and the beach and it might be
appropriate if a “temporary” Certificate of Compliance can be issued that will include evaluating the project in one year to see if it is still behaving as it was intended to do.
Attorney Barry Fogel states that Tidewatch has reviewed the plans and they feel that it was two rows, two feet on center on each row with the rows spaced four inches apart; not on center but with the front of one row’s timber being 4” from the back of the other row. Attorney Fogel states that currently, the timbers are pretty close together but there is space and their recommendation was to put rubber spacers in between which Bayswater at one point had agreed to do that. The attorney feels that they should be required to install the spacers specifically near the top and near the bottom to keep the timbers from moving and becoming solid again. Chairman Fitzsimmons states that he thought it was previously agreed on to put the rubber spacers in. Bruce Osterhoudt states that originally when
all of them had an agreement to work together and Tidewatch had agreed, they would put the spacers in but unfortunately Tidewatch decided to change their mind and not go forward with the agreement so they pulled back. Mr. Osterhoudt says shortly after that, he received an email from Agent McManus stating that as long as they removed the 2 x 4’s and filter fabric; they would be in compliance so they felt that the spacers were unnecessary. Attorney Fogel states that in order for this to be in compliance with the approved plan, it should be required that Bayswater should remove every other timber and replace them so that there are four inches between the rows. To the extent that the Commission is willing to grant them an amended Certificate of Compliance that leads the status quo where the timber rows have moved close together and essentially have a single row without great space as shown on the plan; there are two alternatives to consider. One is to
either require it to be rebuilt in the manner that was approved or go with the rubber spacers which are an alternative that would be less intrusive than removing and re-installing the timbers. Mr. Fogel states the other thing is that the plan show a proposed sand cover which is a template that runs about halfway up the bank over the top of the timbers and down onto the beach. This is what is shown as a post construction design because this was not intended to be where the timbers stand up and are in the open; this design was proposed to have the sand cover it down to the beach.
Attorney Fogel states the last piece that they feel is a problem is that nowhere in the narrative of the NOI do they talk about existing boulders. The only place that boulders were discussed was on the plan and it says “existing boulders to be replaced”. The attorney states that the pre-construction photographs show no boulders although there was a photo from Mr. Colasuonno that shows boulders at the corner where the stairs are; boulders were placed most likely because of the erosion that was occurring in that corner. Attorney Costello states that there were boulders shown on the plan that was approved by the Concom. Attorney Fogel states that in their view it was a misrepresentation to say that there were existing boulders in the area where they are now placed. Attorney Fogel
states that the problem with the boulders is that they now occupy beach and create high wave energy. Attorney Fogel states that the Commission could, through the action of an Amended Certificate of Compliance or Enforcement Order to direct Bayswater to remove the boulders so that sand could come through all of the timbers. Agent McManus states that he recalls a meeting with Woods Hole on site and part of the project was to dig back the bank to the original sands and that was where the boulders were. They were approximately 20-30’ buried and Attorney Fogel agrees to the 20-30’ feet of boulders in the corner. Attorney Fogel states that he heard Agent McManus say that he saw boulders approximately 20-30’ which he says is not in dispute; there is a photo showing boulders out to 90’ that are jaggered and erratic which the attorney says there were early discussions of taking the boulders that are not natural or existing and placing into the
corner. Attorney Fogel states that the NOI’s only reference is to existing boulders that were to be replaced and out to only 20-30’ in that corner. To bring this back into compliance with the approved plan, the boulders should be brought back. Attorney Fogel sums up that Tidewatch’s position as an abutter who has a beach easement on the property would choose between two ways of configuring the timbers in accordance with the approved plan which is to re-space them or place spacers on them and move the boulders back to the corner which would be consistent with the evidence of where boulders were; the last issue is the sand over the timbers. Chairman Fitzsimmons asks about the easement or entitlement and Attorney Fogel states that it is a beach easement that Tidewatch owners have and gives access to the beach which goes down all the way to the golf course.
Joe Colasuonno submits a photo to the Commission and states that the photo was taken by the engineer before the start of construction which he says clearly shows the rocks present. Each year they place beach nourishment which covers the rocks. Chairman Fitzsimmons asks why the rocks only go down part way and Mr. Colasuonno states that that is how far they go on the plan; the rocks that were there initially were a lot higher so when they spread them out lengthwise, they had to keep the height down. Mr. Colasuonno states that the plan shows the rocks like that.
Attorney Robert Mills asks if he could get some clarification as to why Bayswater was invited to tonight’s meeting since he understood that from the previous minutes, there was a vote on July 26th to issue an Enforcement Order and based on that Order, it was required to remove the 2 x 4’s and filter fabric. Attorney Mills confirms that they did remove the material but because there was no compliance date schedule, it was rescheduled to August. The attorney states that he thought at the August meeting, his understanding was to vote a compliance date for the work that had already been completed; there was a vote taken but because Tidewater did not receive any actual constructive notice, the vote was withdrawn and tonight was just to formalize that vote. Chairman Fitzsimmons states that
they were advised by Town Counsel that they probably did not use the right procedure that day so they had to re-hear it. Attorney Costello says that he was not sure there was adequate notice posted properly for any action to be taken that night by the Commission. Attorney Mills says that he does not believe for an Enforcement Order that it needs to be posted or not and there is not any formal notice required to be given to any particular parties. Attorney Costello states that in order for a Commission to take action, they have to place notice on the agenda at least 48 hours in advance of what the post action will be; at least sufficient to alert potentially impacted parties on what matter will be discussed. Attorney Costello states that there was not any notice of action posted on that evening’s agenda.
Attorney Costello states the issues that he thought they had resolved through agreement apparently haven’t been resolved so he had suggested to the Commission tonight to clear the air and let everyone have their say on the issues. To the extent of making procedural issues, if any, if there are any rights to appeal which there may not be but that’s to be decided on. The attorney says that his objective as Counsel for the Commission is to make sure that the Commission has all the relevant information so that they can make an informed decision. Attorney Mills states that he only asks for a point of order because it is a little disturbing when there are parties such as DEP that is a little dissatisfied with the plan and he states that it doesn’t make a difference at this point because it is a
little late in the game. Attorney Mills says that it is a little late as well for Tidewatch as there was not an appeal filed and he states that he feels it is irregular that they are going through this process again.
Chairman Fitzsimmons asks Kirk Bosma if he agrees with the rubber spacers. Mr. Bosma explains the design from the beginning and how it started with an eroding bank. Mr. Bosma states on the last page of the plans are a lot of maintenance notes. The pile spacing is two rows and the intent was to not have sand slough through it immediately; the plan was when wave energy got in there, it would supply sediment to the beach so the actual spacing of piles was a big consideration in the design. Mr. Bosma states that the intention was 4” on center which they provided a memo that shows the geometry of that measurement; it leaves a 1” space. Mr. Gurnee says that he is more concerned about the piles in about year as they could settle right up against each other unless something is done.
Mr. Bosma says he personally does not have any issue with spacers being installed. Mr. Bosma states that in terms of the cover of the sand; post construction was intended to cover piles and it did but the sand was not meant to be there forever as it is the same as beach nourishing. Mr. Bosma says that the rocks were surveyed; they were there and he says that pictures that were taken in 2006 are not representing what was out there. The rocks extended approximately 30’ down the bank and Mr. Bosma states that is what is out there now. He says during construction the contractor took a lot of stone and put them out in front of the water temporarily to provide a wave block so they could put the filter fabric into the envelopes. Mr. Bosma states he knows the rocks were there although they hadn’t even intended to have rocks as part of the design but they were out there and put back where they were found.
Attorney Fogel states that the photo from 2010 shows boulders extending approximately 30’. The excavation had exposed those boulders which were probably placed there to stabilize the eroding corner but then the designed plan shows replacement of approximately 65’. Attorney Fogel says that Mr. Monroe has a surveyed plan that Tidewatch did last year that shows the rocks extending to approximately 90’. Attorney Fogel says that basically they were found at 30’; composed at 60’ as if that was to replace where they came from - which is really taking a double layer and moving them placed apart; and the actual construction, which was tripled. So at a minimum, Tidewatch would suggest that if the evidence shows there were 30’ of boulder and the approval for the language on
the plan that shows them being replaced where they existed; they would ask that the Commission direct Bayswater to put them back to 30’. Mr. Gurnee states that the plan is vague because on one note it says “to be replaced” and another note says “to be replaced as indicated” which shows them differently. Mr. Monroe says that they had their land surveyor locate and do an existing conditions plan as to what is out there right now which is what the plan presented tonight shows; approximately 95’ of rock. Vice Chairman Shaw asks how the boulders contribute to the function of the design and Attorney Fogel states that the boulders, placed where they are, violate the performance standards by accelerating erosion and by creating wave disruption instead of the waves washing through the timbers. Attorney Fogel did not see anything stated in the NOI that would say the rocks serves an engineering value other than creating a wall.
Attorney Fogel suggests taking at least 60’ of them back. If New Seabury would like to place them in the corner, which they had talked about previously, it would need additional approval by the Commission. Attorney Fogel states that to the extent they were not a party that appealed the Order but if the Commission were to give their final sign-off and Amended Certificate of Compliance for something that did not meet the performance standards; he was asked, as an attorney, to evaluate what Tidewatch’s rights would be to ask the Superior Court to enforce the Wetlands Act as a separate matter. There is a provision in the Wetlands Protection Act that allows a party who is aggrieved by a violation to get remedy from the court.
Bruce Osterhoudt states that Agent McManus had stated he measured the boulders and the boulders conformed to the plan. Mr. Gurnee states that the plan is how you interpret it and Mr. Osterhoudt states that the plan shows exactly where they will be once completed. Mr. Gurnee states that the plan is vague and the dated picture that was submitted shows rocks to be approximately 30’. Attorney Fogel states that the agent did say 90’ but the plan shows 65’ and that’s what the problem is. Mr. Monroe states that he doesn’t understand how the Commission is reading 90’ on the plan when the scale states 1”=30’.
Ms. Dara Metta comments regarding the beach area.
Chairman Fitzsimmons states that the Commission has heard both sides of the argument and will consider and comment with due cause.
Mr. David Pinchin commented about the non-compliance and lack of beach nourishment from Tidewatch and how it has affected his own beach nourishment obligation. Chairman Fitzsimmons tells Mr. Pinchin that the beach nourishment is a separate issue and is the next item to be discussed.
Chairman Fitzsimmons states that the second aspect of the meeting is in regards to the Tidewatch memo submitted and what they are proposing to do about beach nourishment. Attorney Fogel says that the memo was prepared by an engineer and a coastal geologist.
Attorney Fogel states that the material that was received August 31st was a summary of research that Don Monroe had done by checking online and checking town files of the history of the Order of Conditions for Tidewatch property. He says that Robert Sherman had taken some actions to defer nourishment. In 1998, Norman Hayes from BSC Group and Robert Sherman issued a memo that stated they had determined that nourishment would be deferred temporarily awaiting a regional nourishment plan. The amount that was put in to the earliest Orders of Conditions of 1500cy have been scaled back at that point of time. Attorney Fogel states that it caused them to go back and evaluate where the number 1500 cubic yards came from in the first place because they can’t find it anywhere in any of the
records. The length of revetment is approximately 540 feet and Attorney Fogel explains a formula that was used based on erosion rates (CZM data) that go back more than 125 years show an erosion rate of approximately one foot a year of the coastal bank. The second memo that was submitted calculates replacement nourishment for the revetment to 360cy a year. Attorney Fogel states that 1500 cy is close to four times what would be the accurate number and even talking about doing the “catch-up”. The second point is after the revetment at Tidewatch was expanded through a prior Order of Conditions, there was another NOI filed about 1-1½yrs ago for Tidewatch to place the beach nourishment on the lower part of the revetment. The plan for that shows it going out below the average high tide line and mean high water which would have triggered, because of the volume of 1500 cy in a tidal storm zone, a requirement for a Chapter 91 permit and Army
Corp Group; the Chapter 91 has been obtained to place the sand that far down but the Army Corp approval has not yet been obtained so as a technicality, Tidewatch does not have all of the permits needed to place sand below the average high tide line. Chairman Fitzsimmons asks if there has been a request for these permits and Attorney Fogel does not believe that the filing has yet been made with the Army Corp. Mr. Monroe states that the Water Quality Cert and Army Corp Cert have been applied for but not finalized. Agent McManus asks what the time line was for the applications and Mr. Monroe states that it was shortly after the Chapter 91 license was issued which was approximately August 2011 so it is approximately 10 months ago. Attorney Fogel states that they are moving towards a consideration of submitting something that will propose, through an Amended Order for the order that was issued a year and a half ago, that will substantiate that the right number is
closer to 360cy which fits the revetment and not going below the high tide line. Attorney Fogel says that the lesser volume on the revetment would not require going through the Army Corp jurisdiction and would be able to be done immediately. Another proposal to the Amendment would be a “catch-up” volume which would consist of an additional 360-400cy at a different time of year. Attorney Fogel states that his engineer and coastal geologist agrees that once the sand goes into the ocean from the revetment, it probably goes off shore; so if you were to put it on the beach at Bayswater, at their bank behind the timbers, it will make the beach expand and move east in front of the toe stones and revetment at Tidewatch. The attorney is asking for allowance to finish the analysis and bring the proposal for a request to amend the Order of Conditions. Agent McManus says his only comment is, and not to discredit the analysis that was done for beach
nourishment and the effect it would have on rare species habitat, because of the circumstances, the Commission would be advised to take advantage of 44-53G and hire an outside neutral consultant to make a determination of what amount of sand and the rare species habitat. Attorney Fogel states that the memo says there is rare species habitat off shore. Attorney Fogel states that they are not saying that 1500cy is not a good number because it is excessive; they think it doesn’t correspond to the standard approach that is used across the state on the coastline.
Attorney Costello states that Attorney Fogel never said when the proposal will be submitted but suggests to the Commission since they have everything they need, to make a determination. Attorney Costello also suggests that he and Agent McManus can be point persons for handling material when necessary. Chairman Fitzsimmons asks what the disposition is on the rocks and Agent McManus states that in essence, the rocks are functioning as a wall but are clearly shown on the plan and no one has come forward to appeal and should not be part of the consideration. Chairman Fitzsimmons says that he would like to take a good look at the plans but Mr. Gurnee states that the plan is not good; there are a lot of inconsistencies.
- Richard Cook- Litigation Update: Agent McManus states that the Commission has been served a court summons for the Richard Cook Aquaculture approval from Attorney Wall. Town Counsel is aware.
Agent McManus requests a roll call vote to add a discussion of the Moody Pond project to the agenda. All Board members present vote unanimously to add Moody Pond Project as a Post Agenda item.
Agent McManus explains that a $4000 grant was received from the Cape Cod Cooperative Extension. The grants are given every year which Mashpee qualified for $4000 to re-grade and create a small parking area on the opposite side of Moody Pond. The re-grading will change the direction of the excess runoff to the other side of the road, opposite the pond. There is an area that is being proposed for riprap because behind the area is bordering vegetated wetland. The area will be lined with boulders to prevent parking on the beach.
Motion made, seconded and unanimously carried to adjourn the meeting at 9:30 pm. [2:34:10]
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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