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Herring River Restoration Committee (HRRC)
Cape Cod National Seashore Headquarters
Wellfleet, MA
September 15, 2011
9:30 am-5:00 pm
Members Present: Tim Smith, Eric Derleth, Hunt Durey, Steve Spear, Steve Block, Hillary Greenberg
Others Present: Margo Fenn, Shelley Hall, Don Palladino, Bill Burke, Mark Husbands (by phone)
Administration/Coordination:
Communications/Coordination with Friends of Herring River: Don Palladino provided prints of Peter Watt's Herring River painting for each of the Committee members. He requested some copies of the recent National Park Service (NPS) newsletter to distribute at some upcoming meetings. There are only a limited number of extra copies available so the Committee discussed the idea of having more printed.
Mark Husbands of the NPS Environmental Quality Division (EQD) said that he could likely have more copies of the newsletter printed at the beginning of the new federal fiscal year (October). Hillary Greenberg offered to make some color copies on the town's copier in the meantime. Don Palladino agreed to put a link to the newsletter on the Friends of Herring River Web site.
The Friends Board discussed holding some meetings for stakeholder groups during the fall to update them on the project. The Shellfish Advisory Committee had expressed interest in such a meeting. The Committee discussed this and agreed that it would be preferable for the HRRC to hold meetings of this kind, once the Draft Environmental Impact Statement/Report (DEIS/EIR) is released for public comment in the spring of 2012. The Committee briefly discussed the process that it might use for holding the public hearings on the DEIS in the Spring. Steve Block suggested that it might be helpful to have separate stations to discuss specific issues-so that people can ask questions and submit their comments in writing without having to sit through the full hearing.
Approval of Draft Minutes: The Committee voted to approve the minutes of the August 17, 2011 and August 18, 2011 meetings.
Schedule Next HRRC Meetings: The HRRC agreed to the following meeting dates: October 6, 2011
November 3, 2011
The Technical Working Group is scheduled to meet on October 12, 2011.
Informational Updates:
Legal Update: Tim Smith and Shelley Hall provided additional information regarding the Committee's legal questions to Robin Lepore of the Department of Interior (DOI) Regional Solicitors office. Lepore is working on a legal opinion, but there is no specific target date for completion as yet. The Committee discussed the idea of seeking outside legal counsel to investigate some of the legal questions posed to the DOI Solicitors. Hunt Durey noted that there needs to be coordination with federal, town and state attorneys -and that there will need to be discussion with the Committee as well. Hunt Durey and Steve Block contacted Peter Shelley of the Conservation Law Foundation (CLF) about using some of the RAE/NOAA grant funds to seek legal advice. Peter Shelley expressed interest in the project
and suggested that CLF might have other grant funds (approximately $50,000) that could be used for this purpose.
The Committee agreed to establish a legal subcommittee to work on these issues. Representatives of CLF, the Massachusetts Attorney General's office, the Department of Environmental Protection (DEP), and the town counsels for Wellfleet and Truro, and the DOI Solicitors Office would be invited to participate. The key next steps include:
-Setting up the subcommittee
-Establishing a scope of work for the legal research
-Hiring a law firm to do the research
-Conducting the research (which should take approximately three months) and preparing a written legal opinion-to be reviewed by the subcommittee
-Developing a process to reach out to potentially affected property owners
-Conducting the outreach process
This process needs to be completed prior to the release of the DEIS/EIR. In addition to answering the specific legal questions posed by the Committee, the DOI Regional Solicitors Office will also have to review the DEIS/EIR before it can be released for public comment.
Hunt Durey noted that the CLF grant funds for the legal research would have to be matched. The Committee discussed possible sources of matching contributions.
Hunt Durey and Steve Block agreed to work with Peter Shelley and state officials to set up the subcommittee and develop a scope of work for the legal research.
Hillary Greenberg offered to check with the Wellfleet Town Administrator to see if the Wellfleet Town Counsel can participate in the subcommittee.
RAE-NOAA Grant Scope of Work: Hunt Durey and Steve Block are also working with CLF to finalize a contract for work under the 2011 grant award. The Committee discussed the idea of using some of the grant funds for the Woods Hole Group (WHG) to do some groundwater modeling in the Mill Creek basin. There may be other sources of funds for this work (possibly remaining funds from the Cape Cod Conservation District (CCCD) Watershed Planning Program).
Steve Spear agreed to check to see if there is $8,000 available from the CCCD for the Mill Creek groundwater modeling.
TNC/CYCC/NPS Land Plan and Appraisal: Representatives of the HRRC, the Nature Conservancy (TNC) and the Chequessett Yacht and Country Club (CYCC) met with an appraiser (Jim Czupryna) and land planning consultant (Louis Berger Group) on September 12, 2011 to review six conceptual development plans for the CYCC property. The draft plans evaluated development options for the CYCC property, both before and after a hypothetical sale of 14 acres land along the Herring River to the National Park Service. While the plans were developed using town and Cape Cod Commission regulations, there were a number of questions about the assumptions that the consultants used, especially relating to open space requirements and nitrogen loading limits. The group advised the Louis Berger Group to have Cape Cod Commission and town
staff review the plans to make sure that they comply with their requirements.
The appraiser, Jim Czupryna commented at the meeting that he was not sure it was necessary to do a “before and after” appraisal of the property-since what was proposed was a friendly sale of property. David McGowan of TNC and Jim Czupryna agreed to check with NPS officials about the proper procedure for preparing the appraisal to ensure that it meets the federal “yellow book” standards. The appraisal is expected to be completed during the next month or so-and another meeting to review the results is planned for early November.
Cultural Resources-Next Steps: Bill Burke provided the Committee with copies of a draft letter from the National Park Service to the Massachusetts Historic Commission (MHC) regarding the Phase 1A Research and Assessment Report for the Herring River Restoration Project prepared by the Public Archaeology Lab, Inc, (PAL). The letter proposes that NPS and MHC develop a programmatic agreement in order to allow for a phased process to conduct further archaeological investigations as the project proceeds. Hunt Durey noted that the final PAL Report called for more extensive archaeological investigations than what PAL had earlier indicated would be necessary. The Committee had discussed the issue of inundation with PAL representatives and they had generally agreed that flooding would not be
considered a detrimental impact to archaeological resources. Test pit investigations were to focus on areas of soil disturbance as the project moves forward.
Bill Burke agreed to consult with Jim Harmon on this question and seek revisions to the Final Report, if needed. NPS will hold off sending the Report to MHC until the matter is resolved.
Discussion:
EIS/EIR Chapter 3 Revisions: The Committee discussed the process for reviewing the draft of Chapter 3 provided by LBG. The group agreed to try to focus its comments on the content, rather than style editing.
Tim Smith agreed to provide a first-cut edit of the draft Chapter 3 and circulate it in sections to the rest of the Committee. The rest of the Committee will use track changes to record their suggested edits and provide their edited versions to Tim Smith and Margo Fenn by Monday, October 3, 2011. Bill Burke agreed to review the Cultural Resources section of the Chapter and provide his comments to Tim Smith.
Low-Lying Property Analysis/Outreach Strategy: At its August meeting, the HRRC agreed that a letter should be sent to landowners explaining the project and the EIS/EIR process, and inviting them to work with the Committee representatives regarding any questions or issues specific to their properties. This letter would go out before the draft EIS/EIR is released for public comment. The group agreed that it would be helpful to set up follow-up appointments for interested property owners with a subcommittee of the HRRC after a letter is sent out. Such a subcommittee could include representatives of the towns and the Seashore as well as the Project Coordinator.
The Committee discussed the process and timing for reaching out to property owners. The Committee still needs to refine a draft letter to property owners. The letter would also need further review by NPS officials and would not be sent out until the Committee is able to resolve the key legal questions.
In the meantime, Margo Fenn suggested that the HRRC members copy her and Tim Smith on any correspondence they receive from property owners.
Cape Cod National Seashore officials plan to meet with Town of Wellfleet officials in September to discuss some of the low-lying road issues. Shelley Hall, Tim Smith and Hillary Greenberg agreed to report back to the Committee on the meeting with town officials.
Adaptive Management: Tim Smith presented some additional information on the Adaptive Management process. The Adaptive Management Plan needs to be integrated with both the Operations and Management (O&M) Plan for the Chequessett Neck Road tides gates as well as with the Habitat Management Plan required by the Massachusetts Natural Heritage and Endangered Species Program (NHESP). Tim Smith presented some slides illustrating the key elements of: Monitoring, Adaptive Management, Habitat Management, and Tide Gate O&M. He also presented an outline of what the components of an Integrated Management Plan might include including:
-Project Management Structure (e.g. ownership, decision-making responsibilities)
-Tide Gate Mechanics (e.g. procedures for opening and closing, emergency response)
-Incremental Outcomes: Conceptual Models (e.g. tide range, water quality, vegetation change, etc.)
-Predictable and Unpredictable Outcomes (e.g. which outcomes would be subject to AM approach)
-Adaptive Management Strategy to Reduce Uncertainty (e.g. data feedback loop to improve models)
-Management Actions (e.g. list of available actions and process for implementing them)
-Monitoring Plan (e.g. methods, protocols, procedures, funding plan)
The Committee discussed how to address Adaptive Management in the Draft EIS/EIR, noting that it will take time to flesh out the full plan. Tim Smith noted that some of the O&M issues would be addressed in the engineering design for the Chequessett Neck dike funded under the RAE-NOAA grant. Smith and Eric Derleth plan to meet with Charles Roman of NPS to further discuss the Adaptive Management Plan.
LBG Draft EIS/EIR Chapters 1-3: Mark Husbands joined the meeting by phone. The Committee discussed how to handle the graphics and narrative in Chapter 2 to describe how the system will change over time. The DEIS/EIR needs to explain the incremental process of rebuilding the marsh surface. The Committee discussed the issue of sub-tidal areas that may be created by restoring tides to the estuary. While the hydrodynamic model shows substantial areas of ponding, this represents only the beginning of the restoration process. Over time, natural processes (such as sediment accretion and restoration of the peat) and management actions (such as reestablishing historic channels) will cause these areas to transition to inter-tidal resource areas. The EIS/EIR needs to explain the incremental process of
rebuilding the marsh surface and describe the range of possible sub-tidal acreage. Also, the modeling results will need to be explained very clearly and describe how the results presented in the EIS are artificial and not fully indicative of the actual conditions which will be encountered when the project achieves the tidal elevations prescribed in the alternatives.
The Committee agreed that the maps should show the stream channels (sub-tidal) and another (cross-hatched) area that may be sub-tidal initially but that would likely transition to inter-tidal over time. The group discussed what terminology would best describe these areas. Possible descriptors could be: “evolving”, “dynamic”, or “transition” zones. Mark Husbands stressed that the material in Chapter 2 should present the physical results of each Alternative (i.e. water surface elevations and salinity levels), while Chapter 4 should evaluate the environmental effects of these changes.
Cumulative Impact Analysis- Related Actions: Mark Husbands provided an overview of how to approach the Cumulative Impact Analysis in the EIS/EIR. The Council on Environmental Quality (CEQ) defines Cumulative Impact as “the impact on the environment which results from the incremental impact of the (project) action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.”
The Committee discussed what other activities might be considered cumulative actions related to the Herring River Restoration Project. The following is an initial list of possible projects for consideration under the Cumulative Impact analysis:
-The Town of Wellfleet Comprehensive Wastewater Management Plan
-Possible federal acquisition of 14 acres of the CYCC upland property.
-The CYCC marketing of one or more residential building lots
-“Upland improvements” to CYCC golf course
-The Mayo Creek Salt Marsh Restoration Project
-The East Harbor Restoration Project
-The proposed Cape Cod Rail Trail (bike path) extension project
-Oyster spawning experiments in Wellfleet Harbor
-Dredging of Wellfleet Harbor
-FEMA remapping of flood zones on Cape Cod
-Diamond-back terrapin study (associated with Town pier improvements)
The Committee agreed to review this initial list and refine it further for the DEIS/EIR.
Phone Consultation with LBG and EQD: Louis Berger Group staff joined the meeting by phone. The Committee discussed with LBG the graphics for Chapter 2, noting the changes in the maps that were discussed above. The group also reviewed some draft bar charts showing tide range, mean high tide, mean high spring tide and the 100 year storm for each sub-basin of the estuary under the different Alternatives. The group agreed that these bar charts provide a good overview of the physical changes that can be expected under each Alternative. The detailed results of the hydrodynamic modeling can be presented in an Appendix to the EIS/EIR.
Tim Smith agreed to provide the draft bar charts to Louis Berger Group. LBG will develop similar charts for all of the tidal benchmarks for Chapter 2 of the DEIS/EIR.
Jacklyn Bryant provided the Committee with an overview of the draft Chapter 3, noting that LBG had expanded the water quality and sediment sections at the beginning and shortened up the socioeconomics section at the end. There are a number of notes in the text seeking guidance from the Committee on specific issues.
The Committee agreed to review the draft Chapter 3 and get its comments to Margo Fenn, Tim Smith and Mark Husbands by October 3, 2011. Fenn, Smith and Husbands will consolidate the comments and provide them to LBG.
The group discussed the schedule for completing the remaining sections of the DEIS/EIR. Hunt Durey was particularly concerned about the regulatory appendix: What will be included in this section? Jacklyn Bryant noted that LBG needs guidance regarding how to address Essential Fish Habitat (EFH).
Steve Block agreed to consult NOAA about how to handle EFH in the DEIS/EIR and report back to the group.
The group reviewed an earlier draft Table of Contents for the EIS/EIR and agreed that it needs to be updated. Tim Smith noted that Chapter 5 (Consultation and Coordination) needs to include not just the Cooperating Agencies but the Technical Working Group (TWG) and the Cape Cod Commission (CCC). Jacklyn Bryant said that LBG would need guidance on the CCC requirements. Margo Fenn suggested that LBG meet with CCC legal staff to review both substantive and procedural requirements. It might be possible for the Restoration Project to be considered a Project of Community Benefit; this option could provide more regulatory flexibility and needs to be explored with the Commission.
Jacklyn Bryant offered to prepare a revised Table of Contents and Project Schedule for the EIS/EIR and provide it to the HRRC by September 22, 2011.
Margo Fenn agreed to arrange a meeting or conference call between LBG and CCC staff in the next few months.
LBG staff had a few technical questions regarding NPS sediment sampling, the WHG sediment report, and the low-lying properties analysis.
Other Business: Hunt Durey suggested that the October HRRC agenda include a discussion of budget needs after the EIS/EIR process is completed.
The meeting was adjourned at 5:00 pm.
Documents Referenced in the meeting:
-Minutes of the August 17, and August 18, 2011 HRRC Meetings
-Phase 1A Archaeological Background Research and Sensitivity Assessment Final Report, Public Archaeology Lab (PAL), June 2011
-Draft Chapter 3, EIS/EIR, September 14, 2011
Respectfully submitted,
Hillary Greenberg-Lemos
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