Herring River Restoration
Technical Working Group (TWG)
January 27, 2010 Meeting
The second meeting of the Herring River Restoration Technical Advisory Committee (TWG) was held at the Massachusetts DEP Offices in Lakeville. Participants included:
Herring River Restoration Committee (HRRC): Tim Smith, Hunt Durey, Steve Block, Stephen Spear, Hillary Greenberg, Eric Derleth and Charleen Greenhalgh
Massachusetts Environmental Policy Act Unit (MEPA): Holly Johnson
Massachusetts Department of Environmental Protection (DEP): Liz Kouloheras, Patti Kellogg and Jim Sprague
Massachusetts Natural Heritage & Endangered Species Program (NHESP): Eve Schluter
Massachusetts State Representative Sarah Peake’s Office: Dottie Smith
Massachusetts Area of Critical Environmental Concern Program (ACEC): Elizabeth Sorenson
Cape Cod Commission (CCC): Heather McElroy, Andy Walsh and Kristy Senatori
U.S. Environmental Protection Agency (EPA): Tim Timmerman, Ed Reiner
U.S. Army Corps of Engineers (USACE): John Sargent
Association to Preserve Cape Cod (APCC): Margo Fenn
Louis Berger Group: Craig Wood
After introductions, Margo Fenn reviewed the draft agenda with the group (included as Attachment A to these meeting notes).~ Tim Smith provided a brief update on the activities of the Herring River Restoration Committee. He noted that HRRC had been primarily focused on defining the Project Alternatives for the EIS/EIR but was also working on refining the hydrodynamic modeling and researching low-lying properties that could be affected by restoration.~ A hydro modeling workshop was scheduled for January 28, 2010 with several outside experts to help design next steps. TWG members expressed interest in reviewing the modeling results.~ Tim Smith noted that the draft modeling report needs to be finalized and then the results can be released to the public.
Margo Fenn asked participants to provide some brief feedback on the meeting materials from the October 2009 session, in particular thoughts and ideas on approaches to permitting the project, using adaptive management over time.~ Holly Johnson noted that the MEPA process is designed to be flexible; it may be possible to create a new special review procedure for future phases, if needed.~ She suggested starting with the big picture elements of the project and estimating “worst case” impacts.~ Future modifications could be handled through the Notice of Project Change (NPC) process. The term of a MEPA Certificate would likely be five years.
Ed Reiner suggested that the Army Corps of Engineers could probably issue a permit for up to ten years duration.~ He suggested laying out all possible aspects of the project in the initial application so that the “worst case” impacts could be evaluated.~ Since this is an ecological restoration project, the wetland impacts should be considered “self-mitigating”.~ Possible models for approaches to permitting include the Route 3 North project or perhaps Green Harbor River Tidal Restoration Project in Marshfield.
Eve Schluter noted that there are two possible permitting routes through the Massachusetts Natural Heritage Program.~ A Conservation Management Permit would be required if there is a “take” of any endangered species.~ However, an exemption might be possible with a habitat management plan.~ This approach allows more flexibility for adaptive management.~ It is critical to identify all species of interest at the beginning of the process.
John Sargent agreed that a ten-year permit is possible from the Army Corps of Engineers.~ Future modifications could be handled through permit amendments.
Tim Timmerman suggested using the NEPA/MEPA process to solicit comments from the regulatory agencies about permitting.~ This would enable the public to review and comment on permitting approaches. Legal analysis will be needed to ensure that public disclosure is properly addressed. He also noted that the TWG should explore the issue of needed project mitigation further.
Liz Kouloheras supported the concept of comprehensive permitting for the main project elements with later amendments, but noted that the state Wetlands Protection Act process may be more complex.~ It might be possible to file a Notice of Intent for the big project components and then file subsequent amendments over time, providing public notice. A variance might be required which would create a special process under the DEP Commissioner, but also might provide a degree of greater flexibility.
Heather McElroy reported that there are two possible permitting routes at the Cape Cod Commission.~ A Development Agreement could allow for flexibility and a longer permit term (up to twelve years).~ However, this process could not commence until the Final EIS/EIR is certified.~ A Development of Regional Impact Approval or Hardship Exemption is also possible (permit term of 7 years).~ This route allows for joint review with MEPA.
Tim Smith reviewed the range of impact topics that will be addressed in the EIS/EIR (included as Attachment C to the October 21, 2009 Meeting Notes). Margo Fenn presented an outline of concept questions prepared by HRRC member Steve Spear to explain the Committee’s approach to developing the project Alternatives (Attachment B of these meeting notes). Tim Smith presented the draft Alternatives (Attachment C of these meeting notes) using some draft flow diagrams prepared by Louis Berger Group to explain the main elements of the Alternatives. (Note: There were some errors in the graphics-Attachment D of these meeting notes is the corrected version.) The current version of the Alternatives includes No Action; Alternative A-Full Flow at Chequessett Neck with various upstream tide control options at Mill Creek and Pole Dike Creek; and
Alternative B-Tide Control at Chequessett Neck for the entire system. We do not yet have water surface elevation numbers for the different Alternatives but that information will be developed using the hydrodynamic model.
Tim Smith pointed out that all the Alternatives are intended to describe the long-term structural configuration and operation of tide control structures in the Herring River, recognizing that there will be an adaptive management period during which tidal exchange will be phased in gradually. TWG members noted that the system would always be changing so it might be better to use the words “long-term” rather than “permanent” to describe the endpoint of active management.
The group discussed the draft Alternatives and made some initial suggestions:
-~~~~~~ Make it clear what is a project element and what is project mitigation
-~~~~~~ Make it clear what can be done with and without mitigation
-~~~~~~ Make sure that the Alternatives are consistent with those called for in the MEPA Certificate
-~~~~~~ Reorder Alternatives to put Alternative B (Tide Control for whole system at Chequessett Neck Road) first, as it is the simplest to explain
Margo Fenn agreed to email the Alternatives narrative and flow diagrams to the TWG for further review and comment.~ The HRRC is interested in comments on both content and presentation of the Alternatives.~ The TWG members agreed to provide written comments within two weeks of receiving the materials.
After a brief lunch break, the group reconvened to discuss regulatory issues and potential permitting models.~ Hunt Durey began the discussion explaining that the HRRC would like to explore an approach based on one comprehensive set of permits issued at the beginning that cover major project elements in full detail (e.g., the main dike, High Toss Road, and Mill Creek). Other project elements would be described in lesser detail (e.g., vegetation management and modifications of culverts in the upper basin)- these elements would need to be informed by monitoring and adaptive management decisions as the project progresses.
The idea is that the EIS/EIR approval and initial set of comprehensive permits could authorize the TWG (or a similar group) to provide additional future review, necessary public process, and approvals, without having to submit separate permits for each of the many other individual project elements as the restoration progresses and adaptive management decisions are made.~
Eve Schluter explained again the options for reviewing rare and endangered species issues, noting that a Conservation Management Permit would require mitigation to achieve a net benefit for any species subject to a “take”. An Exemption process could provide more flexibility. NHESP does take into account the quality of existing habitat (e.g. poor water quality, invasive species, etc.) in evaluating project impacts and designing needed mitigation. The first step is to ensure that there is a complete list of all potentially affected species.
The group discussed the concept of “comprehensive permitting” but agreed that the statutory requirements of each agency must be met. Members mentioned some potential coordinated permitting models including the Nantucket State Beach Project, DEP/USACE work with National Grid, and the Route 3 North project. Several TWG members stressed that the initial set of permits for the project should outline all possible project elements and estimate the “worst case” impacts. This would enable the agencies to later approve permit amendments or modifications more easily. It may be possible to agree on a common set of plan specifications to streamline submission requirements. DEP officials noted that the project would likely require a variance under the Wetlands Protection Act.~ This process is rigorous but could provide some
flexibility.~ It is critical to document the project purpose and need in seeking such a variance.~ The cumulative impact section of the EIS/EIR should try to anticipate what kinds of problems might occur and what actions/adjustments might be necessary to address these problems.
The group agreed on three dates for upcoming TWG meetings:~ April 14, 2010, July 14, 2010, and October 13, 2010-all meetings to be held at DEP Lakeville.~ In concluding the main meeting, Margo Fenn agreed to provide the TWG members with email copies of the Alternatives and flow diagrams for their comments.~ Several potential issues were identified for discussion at the next TWG meeting:
1.~~~~ Initial impact analysis for the draft Alternatives
2.~~~~ Definition of Adaptive Management
3.~~~~ Approach for wetland and floodplain delineations
4.~~~~ Update on low-lying properties
5.~~~~ Feasibility of Mill Creek control structure
The main meeting was adjourned at 2:00 pm.
Representatives of some of the federal agencies stayed to discuss cooperating agency status for their respective agencies.~ NRCS is already a formal cooperating agency and has an MOU with the National Park Service outlining its role. Craig Wood suggested using the “Highway Methodology” with the Army Corps of Engineers to coordinate in the Section 404 review process.~ It is important that the Project Purpose and Need statement meet the requirements of both NEPA and Section 404.
Tim Timmerman said that EPA would agree to be a cooperating agency but cannot provide funding.~ NRCS is providing some funding and some of the other agencies may be able to as well. Tim Smith will arrange for the National Park Service to send letters to USACE, USFWS, EPA, and NOAA inviting them to become cooperating agencies, and providing them with a copy of the NPS Director’s Order 12, describing the Park Service NEPA process.
The meeting was adjourned at 2:40 pm.
| 