Inland Wetlands Commission
MINUTES
Regular Meeting
October 14, 2009 7:30 pm
31 Pecks Lane, Newtown, CT
Commissioners Present: Peters, Salling, Pieragostini, Kotch, and Bryan.
Staff Present: Rob Sibley, Deputy Director of Planning and Land Use; George Benson,
Director of Planning and Land Use; Ann Astarita, Conservation Official; and Tammy Hazen, Clerk
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Commissioner Peters convened the meeting at 7:30 pm.
PUBLIC HEARING
#09-27 Hattertown LLC, 22 and 24 Hattertown Road. Application for a five lot subdivision.
Public Hearing will be continued on October 28, 2009
#09-29 Newtown Transload, LLC, 30 Hawleyville Road (Housatonic Railroad Company). Application for the removal of a violation.
Commissioner Pieragostini read the notice. Commissioner Peters explained the process of the public hearing for participants in the audience.
Matthew Whitney, Attorney for Housatonic Railroad, distributed an amendment to the original plan, provided opening remarks, and introduced members of the team. He noted that Ed Rodriguez could not attend the meeting.
Colin Pease, Vice President of Housatonic Railroad submitted and discussed a written statement (copy in file). He said railroad is holding its position regarding jurisdiction but that they intend to work voluntarily with the commission. He explained the history and importance the Hawleyville terminal to the railroad and discussed global environmental benefits of railroad vs. over-the-road trucks. He understands the issues of being near a residential area but said they may not be able to do everything asked of them. Mr. Pease went on to explain that the application is for a track extension and not for a waste transfer station and that they have removed the building from the original application. He explained they need the extension to be able to stage, load and unload rail cars and noted that
they have not stopped working since the initial submission.
Bill Walters, licensed Civil Engineer and Land Surveyor, John Paul Garcia & Associates, explained the railroad’s intention to build a 900 foot extension of track, with an initial project being to build the first 350 feet of track. He explained the eight foot high berm, made with fill, is to be used for the track extension and staging area. He explained the swale and water quality detention basin as well.
Commissioner Peters asked where on the map the fill currently ends compared to what they propose. Mr. Walters explained the areas on the map. Commissioner Salling asked him to point out the staging area. Mr. Walters noted the area. Commissioner Kotch asked where the present unloading area is and where the wetlands are marked on his drawings. Mr. Walters showed the areas. Commissioner Peters asked how they plan to protect the wetlands, specifically east and west of the property, during the construction process. Mr. Walters said they will have hay bales and silt fence as erosion controls. Commissioner Kotch said it looks like they are filling to within six to ten feet of the wetlands. Mr. Walters confirmed that they are. Commissioner Kotch asked how high the berm is. Mr.
Walters said it’s from six to eight feet high. The Commissioners Kotch and Peters both stated that the map was very difficult to decipher. Commissioner Peters asked if the applicant plans to speak on the functionality of the wetlands. Mr. Walters said that Ken Stevens can answer that question. Commissioner Pieragostini asked about the material that will be used for fill and if it will be the same material that has been used. Mr. Walters said that they will use suitable material. Commissioner Pieragostini said there is a great deal of construction debris that was used and when on the site, she had difficulty breathing from all the dust. She asked if there were aerosols in the dust and if they have received any complaints about it.
Commissioner Peters stated she was concerned about construction debris (brick, metals, fine particles) being next to the wetlands. Mr. Walters said they will use hay bales and silt fence as barriers and that the slopes will be stabilized. Commissioner Peters asked if they intend to use those E & S controls as permanent stabilization and that the commission needs information for a permanent stabilization plan. She was concerned that the site is surrounded by wetlands and watercourses that need to be protected. Commissioner Peters also stated concerns over debris blowing or being pushed into the wetlands. She said that the applicant’s 2007 violation had noted large pieces of construction debris in wetlands, both on and off site. She asked what kind of barriers they plan to
create to make sure it doesn't continue and that the wetlands are protected.
Commissioner Salling shared her concerns over the steep slopes and asked for details of plantings and stabilization plans. She also asked if they could explain the details on Page D1. Mr. Walters explained the details. Commissioner Kotch said he was very dissatisfied with their plans and that the wetlands are not defined on the map, it doesn’t show where the tracks or construction will be. Commissioner Peters emphasized that the commission needs further details. Mr. Walter said they are essentially in the same form as previously submitted. Commissioner Pieragostini asked for the site to be staked.
Kenneth C. Stevens, Jr., Registered Soil Scientist with Soil Science and Environmental Services, distributed a report prepared for Transload, LLC. They assessed the wetlands on September 23, 2009. The wetlands were mapped by Thomas Pietrasi, Registered Professional Soil and Wetlands Scientist with Soil Science and Environmental Services, on September 28, 2009. He said the most recent material brought in for the fill was crushed cement, brick, and other construction debris. He said there are four wetlands (three on-site and one off-site) and that a tributary of Pond Brook flows through the site. The first wetland is small and isolated (to the North) where amphibians were found. The largest wetland, across the tracks, may date back 100 years and has quality for amphibian reproduction. They cannot substantiate the vernal pool until the spring, but admits the area has some importance and should be preserved. The second wetlands (finger of wetlands) is where they propose a
detention basin and water quality basin. He believes this area was originally part of the larger wetlands to the east. The third area, a drainage ditch associated with the old railroad spur, has wetland soils and vegetation and is a regulated area. He noted that the fourth wetland, off site and to the east, is a very large extremely high-quality wetlands. The amphibian pool was shallow but had tadpoles, which were expected to survive because of the heavy rain in the summer.
Mr. Stevens said there is a direct wetland impact in the detention water quality basin and indirect wetland impacts within the review area. They have looked at feasible alternatives and their plans have undergone a series of changes. Their plans include the planting of a row of white pine trees on the edge of the berm. Water quality basin will be planted although there are no plans for this yet.
Commissioner Kotch said that although the applicant admits there would be impacts to the wetlands, they have not provided information on the effects to the functionality of the huge wetlands and Pond Brook. He is concerned about debris falling out of rail cars into the wetlands. Mr. Stevens said the area will be stabilized and there would be some areas with vegetation and trees to act as a buffer. Commissioner Pieragostini asked if they have future plans that extend beyond the 900 foot extension. Mr. Stevens said they are limited to a certain amount of area. Commissioner Peters asked how much wetlands (north of the building) were actually filled in with the recent activity and what were the soil scientist’s findings about this area. Mr. Stevens said he feels there were no wetlands
filled.
Mr. Benson said that he wants to know what was under the eight feet of fill prior to the area being covered. Mr. Stevens he doesn’t think there are wetlands there. Mr. Benson said there are wetlands to the west and that the area was filled before the Town could inspect it. He also stated that the Town’s GIS shows that the area that has been filled was previously a wetland. This information is based on NRCS’ (National Resource Conservation Service) GIS wetlands layer.
Commissioner Peters said she wants more information about the filled area and their plans to compensate for the loss of wetlands. She asked why the applicant has not provided mitigation plans. Mr. Stevens said that they can look at it more accurately. Commissioner Peters said she is especially concerned about the area immediately north of the building.
Bill Walters said that they can review DEP’s aerial photos from the 1960’s to give an idea of what the area looked like then. Commissioner Pieragostini asked if there are any alternate plans they can provide. The answer was No. She then stated that she would like to see the track moved south so it’s farther away from the wetlands and the brook. Mr. Stevens said they would have to talk to the railroad people about that.
Mr. Sibley listed items that the commission is requesting from the applicant. He stated: (1) that the water quality devices should include best management practices and maintenance plans; (2) a functionality report with the Army Corp. worksheet or DEP Bulletin 9 to help with the analysis of functionality; (3) a report on the water shed and its impact from all activities associated with this application; (4) a report concerning the change, diminishment, or enhancement of the ecological communities and functionalities of the wetlands and watercourses involved; (5) details for each of the activities and supporting documentation; (6) an explanation why prudent and feasible alternatives have not been used for this application; and (7) a full report and analysis (chemical and physical) of all the fill that has been
brought onto the site to date, the management practices associated with bringing in that fill; and details on how it was deposited and placed. He also noted that the amount of associated affected wetlands is .05 acres and that it is the policy of the commission that mitigation requires 1 ½ times that of which has been destroyed. Since it hasn’t been qualified whether or not wetlands have been destroyed beyond what is being shown on the application, it would be beneficial to show where mitigation can be completed on site along with a possible alternative for off-site mitigation (which can be discussed with staff). He stated he believes there are opportunities for on-site mitigation. He also stated that storm water basins can not be considered for Inland Wetlands mitigation.
Mr. Benson stated concerns for isolating wetlands #1 where setbacks for vernal pools are usually over 100 feet. Mr. Stevens said he feels it is an indirect impact. Mr. Benson said they are diminishing upland areas for the amphibians and there is concern about using trap rock for the slope. He said the plans showed they were using vegetation. Mr. Stevens said they plan to use crushed stone. Mr. Benson asked if they are excavating a wetlands for the proposed detention basin. Mr. Stevens answered yes, half of it. Mr. Benson said there was no fill on the eastern side of the slope when they filled in the area. Mr. Stevens said there was fill there. Mr. Benson asked how much fill was in that wetlands area. Mr. Stevens said he believed the entire area was uplands. Mr. Benson
also stated concerns over the fill being placed up against the property line.
Ann Astarita said that it's important to show the actual extent of the fill and that the applicant needs to think of a better way to stabilize the steep slope. She said hay bales and silt fence will not be enough. She also said there is no mitigation along the vernal pool area and asked if there are wetlands in the planned access way, west of the vernal pool and said it would further damage an already impacted wetlands. She also asked why the applicant is using an offsite wetland to take discharge - the overflow will go into the detention berm but then slated to flow east. She asked if they have considered oil leaks or spills from trucks and equipment running into the wetlands. Mr. Stevens said that because of roughness of the material, the oil would only seep down only about a foot.
Ms. Astarita shared concerns of run off flowing off to adjacent property owners and that it should be addressed on site, discharges offsite are not acceptable.
Keith Ainsworth, attorney and partner with Evans, Feldman & Ainsworth, LLC, New Haven, CT, representing adjacent property owners, Howard and Catherine Winkler from 149 Currituck Road, stated his clients have filed an intervention application pursuant to CT General Statute 22a-19 (Environmental Protection Act). His clients intervened in this matter due to potential impacts to wetlands resources. The Winklers own a high-quality wetlands to the north that is being used as a detention basin by the railroad. The Winklers hired a surveyor and wetlands scientist (Steven Danzer, Ph.D.) to determine what has happened on their property. It was found that there is fill from the railroad across their property line and that any exemption the railroad claims on their own property does not exist on adjacent
properties. He noted that the applicant needs to test the material for metals and other leachable materials. Construction debris can contains lead, asbestos and other materials of concern. He noted a 12" plastic pipe that is discharging out of the berm and into their wetlands. There is another 15" pipe proposed where discharge will flow onto the Winker’s property. He stated that the applicant should pay for testing. Dr. Danzer found that the railroad has significantly filled and destroyed wetlands resources to a greater extent than the commission is aware of or that is noted on the applicant’s plans. There are wetland soils around the recent fills and around the older incursion. He said their actions fall within the commission's jurisdiction and that the commission needs to give the railroad specific orders, the violation needs to be mitigated, and the slopes need to be pulled back and stabilized. He said
the applicant should sample the flows, the soils, and the ground water.
Steven Danzer, Ph.D., Soil Scientist, Professional Wetlands Soil Scientist from Stamford CT, was retained by the Winkler’s to investigate the trespass by the Housatonic Railroad. He said the nine acres of wetlands on the Winkler’s property is being affected by the railroad. Dr. Danzer believes the wetlands extend to underneath the current fill and that the current activity by the railroad is having a significant impact to his client’s wetlands with polluted run off and the alteration of drainage patterns. He noted the 12" pipe and said there are erosion and sedimentation issues around the property. The intrusions onto the Winkler property are mapped and documented in his report. Three photographs were submitted to the commission.
Joe Borst, 10 Beechwood Drive in Sandy Hook, First Selectman of Newtown, said that as a resident of Newtown for 55 years, he is concerned over this application and wants to know what has been used for fill. He has stated to the Land Use Agency that water testing should be completed and has also suggested that the people in the surrounding residential area should have their water tested. He thinks the application is ridiculous and that Newtown doesn't need this kind of operation. Mr. Borst urged the commission to spend time on the site. He noted the 2008 Clean Railroad Act and that the DEP has a responsibility for the health and safety of the residents of the State of Connecticut. He stated that rules and regulations should be set up.
Gina Wolfman, 30 Obtuse Road in Newtown, asked about the maintenance of the basins and what their long term plans are. Since the building has been eliminated and the staging area is outdoors, she is concerned that the materials will not being contained. She asked for more information about the staging area.
Ross Carley, 66 Currituck Road, said as a member of the Executive Board for the Lake Lillinonah Authority, he shared concerns for the quality of Pond Brook and asked the commission to order constant testing of the water there, similar to DEP’s requirements to make the Danbury facilities test the water in Still River. He stated they are in a constant uphill fight to keep the lake waters clean.
George Ferguson, 49 Taunton Hill Road, said that he has not heard the applicant address the violation nor any plans for mitigation and that they have not acknowledged that the purpose of the meeting is to deal with the violation. He said there seems to be a total disconnect on part of the railroad with regard to the purposes of this hearing and that they seem to be submitting an application for a great deal of expansion, instead of addressing and fixing the damage that has already been done.
A gentleman from Currituck Road, a resident of Newtown for 18 years, urged the commission to keep an open mind about the railroad application. He said he was speaking both as a concerned citizen and as a state and Newtown tax payer. He said the State of Connecticut spent $400,000 in expanding the track. He asked the commission to consider the case the merit of the wetlands and not be influenced by the "not in my backyard" attitude. He also feels, though, that the water should be tested. He said he feels the railroad is a service to the country and that it all starts locally.
Jim Ruopp, 46 Hawleyville Road said that this is in his backyard and that his property abuts the railroads’. He is alarmed at the dramatic scale of the operation and said there has been a lot of grading and filling with construction rubble. He said the general fill began at least by June 14th and thinks the area they filled was wetlands. He said that if the east and west are wetlands, the area in the middle that was filled was probably wetlands. He said the stream, that leaves the wetlands and feeds into Pond Brook, is a high quality trout stream and that beavers that have been there have not bee there for a year. He also said the level of the pond has diminished. He discussed a classroom program where students release trout and monitor the area.
Commissioner Peters asked if the students would be interested in sharing their findings with the commission. Mr. Ruopp said he will ask the teachers. Mrs. Ruopp, a biology teacher, said that they have four classrooms that monitor the area and take samples. She will look into submitting their findings to the commission.
Bill Thiesson, 103 Currituck Road, shared concerns about the type of materials being taken out of the area, especially dredging materials. Commissioner Peters stated that waste is in the DEP’s jurisdiction. Mr. Thiesson will e-mail information for the commission’s review. Commissioner Peters will check with the DEP on this.
Kevin Fitzgerald, 24 Old Farm Hill Road, stated that this issue is clearly a poster child for the not-in-my-backyard issue. He feels the violation issue should be addressed first and corrected and that everything else should wait.
Jim Gaston, 18 Main Street, member of the Board of Finance and Warden of the Borough of Newtown, stated that the experts’ credibility should be key and the track record of the railroad provides lack of credibility. He is concerned that additional trucks on other road can affect wetlands along the other roads, i.e., Rams Pasture, if debris spills out of the trucks.
Mrs. Ruopp, 46 Hawleyville Road, was concerned that the application contains more than a plan to remove their violation. Commissioner Peters said that it isn’t uncommon when a notice of violation is issued, an applicant will submit an application that also plans for activities that have not been completed. Mrs. Ruopp asked if this application includes the 2007 violation. Commissioner Peters said that it does not.
The hearing will be continued on October 28th.
PENDING APPLICATIONS
#09-15 William Joyce, Sherman Road & Berkshire Road. Application for a 38-Lot Subdivision.
Commissioner Salling recused herself. Commissioner Pieragostini motioned to deny this application:
1. Specifically, that the applicant has not provided the commission with complete detailed plans describing the extent of impact and the restoration of the disturbed area for the revised submitted plans.
2. Specifically, that the applicant has not provided the commission with complete significantly detailed alternative plans describing the extent of impact as requested by the commission.
3. Specifically, the submitted expert testimony which states there is potential likelihood for short and long term impacts to the wetlands and watercourses due to:
a) Lack of “assessable, feasible, and prudent alternatives”;
b) Changes to stream channel morphology and water quality as plans and design of the storm water treatment system are not in compliance with the 2002 CT Guidelines for Soil Erosion and Sediment Control and the 2004 Storm Water Quality Manual.
c) The lack of drainage reports which account for flows from off site areas which drain through the subject site.
Motion seconded by Commissioner Kotch. Motion carried unanimously.
Commissioner Kotch left at 9:55 pm.
#09-23 David & Wendy Clark, 9 Taunton Lake Road. Application to cut down trees.
Agnes Kochanowicz, Project Manager, Pediment Construction, Inc., from Southbury, CT, provided an overview of the application. A letter from Southbury Tree Service, Inc., regarding their evaluation of the trees on October 10, 2009, was submitted. After discussion, the applicant decided to withdraw their application.
#09-28 H & F, LLC, 29 Canterbury Lane. New England Woods Lot #3 - Jet Brook Road. Application for a single family residence.
Commissioner Bryan motioned to approve the application with standard conditions A, B, C, E, and:
1. The approved plan for the development is “Proposed Site Plan Lot 3 New England Woods, Newtown, CT, prepared for New England Woods, dated July 27, 2009.
2. On the first day of each quarter the applicant will submit a completed quarterly report to the commission, on a form provided by the town office, containing the status of the permit; until the permit activity is completed. Completion of the permit will be approved by the wetlands agent.
Motion seconded by Commissioner Salling. Motion approved unanimously.
#09-30 63 Taunton Lake Road, Jeremy Frommer. Application related to a violation (IW #08-73).
Alan Shepherd, submitted restoration plan for the violation. The commissioners will visit the site.
#09-31 56 Schoolhouse Hill Road, Alan Laurenco. Application related to a violation (IW #09-18)
Alan Laurenco was present and discussed why he asked for an extension for the violation. He explained what has been completed on his property so far. The commissioners will walk the site.
#09-32 61 Taunton Lake Road, Sam Capon. Application for activities within a regulated area
Commissioner Pieragostini motioned to approve with standard conditions A, B, C, and:
1. The approved plan for the development is “61 Taunton Lake Road, plan for installation of new lawn seeding area, dated October 2009”
2. On the first day of each quarter the applicant will submit a completed quarterly report to the commission, on a form provided by the town office, containing the status of the permit; until the permit activity is completed. Completion of the permit will be approved by the wetlands agent.
Motion seconded by Commissioner Bryan. Motion carried unanimously.
OTHER BUSINESS
New Applications
Approval of Minutes – Commissioner Pieragostini motioned to approve the minutes of the September 23, 2009 meeting as amended. Seconded by Commissioner Salling. Motion approved unanimously.
The meeting was adjourned at 10:45 pm.
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