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Meeting Notes
Herring River Restoration
Technical Working Group (TWG)
October 12, 2011 Meeting
The eighth meeting of the Herring River Restoration Technical Working Group (TWG) was held at the Massachusetts DEP Offices in Lakeville. Participants included:
Herring River Restoration Committee (HRRC): Tim Smith, Eric Derleth, Charleen Greenhalgh, Hillary Greenberg, and Hunt Durey
Massachusetts Environmental Policy Act Unit (MEPA): Holly Johnson
Massachusetts Department of Environmental Protection (DEP): Patti Kellogg and Jim Sprague
Cape Cod Commission (CCC): Andy Walsh
U.S. Environmental Protection Agency (EPA): Tim Timmermann (by phone) and Ed Reiner
U.S. Army Corps of Engineers (USACE): John Sargent
Association to Preserve Cape Cod (APCC): Margo Fenn
Massachusetts Natural Heritage & Endangered Species Program (NHESP): Eve Schluter
Adaptive Management/Integrated Restoration Plan: Tim Smith reviewed with the group the status of work on the Adaptive Management (AM) Plan. The AM 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)
Tim Smith and Eric Derleth met with Charles Roman of NPS to discuss the Adaptive Management Plan. They plan to convene a group of science experts this fall to explore what are the key factors to monitor and measure in the Adaptive Management process. The point is to focus on the components that will drive change in the system-and develop a strategy to reduce uncertainty over time.
The group discussed how to address Adaptive Management in the Draft EIS/EIR, noting that it will take time to flesh out the full plan. The EIS/EIR will have at least an outline of the proposed the Adaptive/Integrated Management approach. Holly Johnson supported inclusion of an outline in the EIS/EIR and noted that the commenting agencies could help refine the AM Plan.
Hunt Durey asked how the AM approach could be put into practice through regulatory approvals. The group discussed the idea of structuring the state and federal permits to anticipate changes in management over time, by setting up an oversight group to review management decisions. There was general support for this approach. Eve Schluter noted that NHESP has used advisory committees to manage specific properties. Jim Sprague noted that DEP uses a working group to oversee management of Spectacle Island as part of the Central Artery Project. He stressed that the permit or variance should set the parameters for what kinds of management actions might be undertaken; if an action is not included in the permit, it would likely require a permit amendment. Ed Reiner noted that the Army Corps of Engineers routinely
issues permit amendments for large, complex projects. Patti Kellogg noted, however, that amendments can be appealed. It would be preferable to fully flesh out the range of potential management tools in the original permit(s) so that amendments would not be necessary.
Tim Smith noted that the AM Plan would set out thresholds for when management actions would be needed, but the group agreed that it is important to keep it flexible. A qualified oversight group could determine when specific actions (for example, dredging or filling) are needed to meet the AM objectives. Eve Schluter added that some routine management actions would not even need review and could be undertaken at the discretion of the managing entity (town, NPS, etc.). These activities could be described in an annual O&M report.
Chapter 5 of the EIS/EIR will outline this permitting approach, including:
-List of required permits
-Proposed “umbrella” approach to permitting including:
-Description of the range of potential management actions (with related best management practices)
-Makeup of the Adaptive Management oversight group
The public would have the opportunity to comment on this approach as part of the NEPA/MEPA review.
Project Updates:
Low-Lying Property Analysis/Legal Issues: Hunt Durey reported that the Conservation Law Foundation (CLF) had offered to hire a private law firm to explore legal issues related to the Herring River Restoration Project. The HRRC had earlier identified important draft legal issues and questions related to the project that require analysis and input from attorneys at the local, state, and federal levels. The National Park Service has requested – and is awaiting delivery of – a legal opinion on these issues from the Department of Interior Office of the Solicitor. However, that opinion is expected to primarily address the federal perspective in relation to NEPA and the EIS. The non- federal members of the HRRC (state and two towns) thought that additional legal analysis focused on the
non-federal interests would be beneficial for the project. This work is intended to be complementary to the DOI legal analysis currently in preparation, while also acknowledging there will be significant overlap in the legal issues being addressed.
The Conservation Law Foundation (CLF) has offered to fund and contract with a private law firm to conduct a legal evaluation of the non-federal law issues. The legal analysis and advice is needed prior to formal HRRC engagement with landowners who may be affected by the project, and that engagement must occur before the DEIS/EIR is released for public comment (expected early-mid 2012).
Hunt Durey prepared a memo requesting participation by legal counsel representing the following entities: Town of Wellfleet, Town of Truro, MA Department of Environmental Protection, MA Department of Fish and Game, MA Executive Office of Energy and Environmental Affairs, and Department of Interior Office of the Solicitor.
The private law firm to be retained by CLF is expected to commence work in late October 2011 that will extend over a 3 to 4 month period. Government counsel will be requested to participate in 1-2 consultation meetings in Boston, interact via email and conference calls, and review and comment on draft legal research and any legal opinions or advice produced by the private law firm. Hunt Durey asked DEP and MEPA representatives on the TWG to check and see who from their agencies would participate in the legal review process.
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. Louis Berger Group will have Cape Cod Commission and town staff review the plans
to make sure that they comply with their requirements. 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.
Tim Smith noted that the appraisal will also consider the idea of putting a Conservation Restriction on the golf course property. CYCC is also considering selling a house lot on Chequessett Neck Road.
Hunt Durey asked if DEP had made any further legal determinations about whether proposed filling on the CYCC property could be permitted as flood mitigation. Jim Sprague responded that DEP would not likely make a determination on this matter until all the materials for the variance application have been submitted. The MEPA Certificate for the Herring River Restoration Project stated that if the variance is required from DEP, the DEIS/EIR should provide the information required for a variance request. TWG members discussed this, noting that full engineering plans for different project elements would not be ready for inclusion in the DEIS/EIR. Holly Johnson agreed to check with officials at MEPA to see what kinds of information must be included to meet this requirement.
Tim Smith noted that some of the O&M issues would be addressed in the engineering design for the Chequessett Neck dike funded under a RAE-NOAA grant.
-RAE-NOAA Grant: Tim Smith reported that the Conservation Law Foundation had also received a Restore America's Estuaries Grant of $137,000. These funds will be used to advance design and engineering for the Herring River Restoration, including:
-Wetland delineation in areas of projected construction disturbance
-Engineering design for a new Chequessett Neck Road dike
-Tide gate design for the Chequessett Neck Road dike
-Geotechnical borings in and around the dike site
-An Operations and Maintenance (O&M) plan for the dike.
This work will be completed in the next 12-18 months.
-Cultural Resources-Next Steps: Margo Fenn reported that the Public Archaeology Lab prepared a final Phase 1A Cultural Resources Assessment of the Herring River estuary for the HRRC and National Park Service. NPS has sent the PAL Report to the Massachusetts Historical Commission (MHC) with a recommendation that the Park Service and MHC develop a programmatic agreement to allow for a phased process for further cultural resource investigations. The NPS cover letter suggests that several specific issues need to be addressed in the programmatic agreement, including the level of archaeological investigation necessary when project impacts in specific areas of the Area of Potential Impact (APE) are limited to changes in water level and where potential historical features have already been identified. The
Wampanoag Indian Tribes have been invited to participate in the programatic agreement.
Sediment Modeling: Following a lunch break, Tim Smith presented some of the results of the Woods Hole Group (WHG) sediment modeling to the TWG. WHG used the hydrodynamic model to estimate areas of erosion and deposition potential. Tim Smith presented maps showing how sediment would likely be moved with increased water velocity. Eve Schluter asked about how the dredging of Wellfleet Harbor might affect sediment transport. This issue will be considered under the Cumulative Impact analysis in the EIS/EIR.
EIS/EIR Development: Margo Fenn reported that Chapters 1 (Purpose and Need) & 2 (Project Alternatives) of the Draft EIS/EIR have been reviewed and edited by the HRRC and Louis Berger Group (LBG) and are ready to be distributed for TWG members to review. HRRC is seeking feedback on the content and approach used in these chapters and asked that TWG members provide their comments (referenced to page and line numbers) to Margo Fenn and Tim Smith by November 16, 2011. The HRRC has recently provided LBG with comments on the first draft of Chapter 3 (Affected Environment) and is about to begin review of Chapter 4 (Impact Assessment). The Committee hopes to complete its review of Chapter 4 in the next few weeks and provide those chapters to the TWG for review sometime in November, with a goal of
getting comments back before the December holidays.
The TWG reviewed the revised draft schedule for the EIS/EIR and discussed the timeframes needed for providing the required public notices for the Federal Register and the Massachusetts Environmental Monitor. Holly Johnson stressed that the Draft EIS/EIR must be sent to all the parties of interest (listed in the MEPA Certificate) prior to publication in the Environmental Monitor. MEPA then has a 30-day comment period, which may be extended at the project proponent's request. Given the need to coordinate the public review under NEPA and MEPA, this review period will likely need to be extended.
Eric Derleth noted that the legal issues (described above) need to be resolved before releasing the DEIS/EIR for public review. The HRRC agreed to contact potentially-affected property owners prior to releasing the DEIS/EIR, and this process cannot proceed without some legal guidance.
Cumulative Impact Analysis: The group discussed what will be included in 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 HRRC compiled 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)
This list will be refined for the DEIS/EIR. The group suggested a couple of other possible projects for this list, including the Eagle Creek Restoration Project, and the proposed NHESP mapping change for box turtle habitat.
The group discussed the FEMA remapping process. FEMA will be initiating a project to re-analyze the coastal flood models in Barnstable County. The purpose of the revised model analysis is to evaluate coastal flooding considering factors such as wave height, wave setup, and wave run up analysis. Typically, this would increase the coastal flood elevations. The revised mapping could conclude that the CNR dike would no longer provide flood protection, if elevations increased over the crest height. The result of any mapping revision would require property owners impacted by the change to obtain flood insurance, if they had federally backed mortgages.
Jim Sprague noted that the Town of Wellfleet could challenge a FEMA determination or simply accept the risk, and make no changes to the dike.
EIS/EIR Maps: Tim Smith presented some of the draft maps for Chapters 2-4 of the Draft EIS/EIR. The HRRC reviewed these maps at its last meeting and discussed how to present changes from existing vegetation to the expected inter-tidal habitat. 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 had created four zones to describe projected changes: tidal channels (sub-tidal), inter-tidal accretion zone, inter-tidal marsh and upland transition zone. TWG members made some suggestions as to how to present this information. Jim Sprague noted that using the word “upland” could imply that former wetland areas would become upland-this could be misleading. Eve Schluter suggested just describing the zones on the maps as 1-4 and then providing detailed descriptions in the text of the EIS/EIR about what types of changes are anticipated in each zone. The group agreed that it would be helpful to have “before and after” maps for both vegetation and habitat zones.
Meeting Wrap-up and Next Steps:
-The TWG agreed to meet again on January 11, 2012. Margo Fenn will develop a list of potential quarterly meeting dates for 2012 and circulate that the group.
-Margo Fenn will send out draft Chapters 1 & 2 of the EIS/EIR to TWG members for their review and comment. TWG members will provide their comments (preferably referenced in an excel spreadsheet to page and line numbers in the chapters) to Margo Fenn and Tim Smith no later than November 16, 2011.
-Fenn and Smith will provide Chapters 3 & 4 for TWG review after the HRRC has completed its review of these chapters. The goal is to distribute these chapters in November and get TWG comments prior to the December holidays.
-HRRC will work with LBG to draft Chapter 5, including a proposed strategy for regulatory permitting. The goal is to lay out this proposed strategy in the Draft EIS/EIR so that the regulatory agencies and other interested parties can comment on the process.
-Margo Fenn will schedule a meeting with Louis Berger Group and Cape Cod Commission staff to review regulatory options, procedures and time-frames.
-Holly Johnson will investigate what information should be included in the Draft EIS/EIR to address the DEP variance requirements.
-Holly Johnson and Jim Sprague will follow up with their agencies to determine the participants in the legal research/review for the Herring River project.
The meeting was adjourned at 3:00 pm.
Respectfully submitted,
Hillary Greenberg-Lemos
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