Approved Meeting Minutes
Herring River Restoration Committee (HRRC)
Cape Cod National Seashore Headquarters
Wellfleet, MA
March 1, 2012
9:30 am-5:00 pm
Members Present: Gary Joseph, Tim Smith, Eric Derleth, Hunt Durey (by phone), Steve Block (by phone), Steve Spear, Hillary Greenberg
Others Present: Margo Fenn, Bill Burke, Jim Harmon (by phone)
Administration/Coordination:
Minutes: The Committee voted to approve the minutes of the February 2, 2012 meeting.
Communication/Coordination with Friends of Herring River (FHR): Gary Joseph provided an update on the FHR’s activities. There will be an instructional meeting for the 2012 herring count on March 14, 2012 at the Wellfleet Library. The FHR is working on the final script for a short video. The FHR has also received its Certificate of Solicitation from the Massachusetts Attorney General.
Don Palladino and Gary Joseph will meet with the Wellfleet Shellfish Advisory Committee on March 12, 2012 to provide an update on the Herring River Restoration Project. Tim Smith noted that the DEIS/EIR analysis shows that there will be no adverse impacts to Wellfleet aquaculture grants and that restoration of the river could have positive impacts on the wild shellfishery by opening up new areas for colonization and potential harvest.
Minutes: The Committee voted to approve the minutes of the February 2, 2012 meeting.
Next Meetings: The Committee agreed to the following meeting schedule:
HRRC: April 4, 2012
April 5, 2012
May 10, 2012
TWG: April 11, 2012
Massachusetts Environmental Trust (MET) Grant: Margo Fenn presented the latest draft of the MET grant application. Don Palladino prepared the draft application with input from Fenn and APCC staff. The Committee reviewed the scope of work and budget and agreed that the proposal was much improved: The scope of work clarifies the project coordination responsibilities and the proposed deliverables. Eric Derleth suggested that Task 1.1 of the scope add the word “roles” to make the language read: “Agreement on roles and responsibility for raising/reconstructing other roads and culverts”.
Margo Fenn noted that the FHR has support letters for the grant application from the Towns of Wellfleet and Truro, the National Park Service, APCC, and federal and state elected officials. Gary Joseph agreed to sign a letter of support on behalf of the Herring River Restoration Committee. HRRC members agreed to provide any written comments on the grant application to Margo Fenn and Don Palladino no later than Friday, March 9, 2012.
Hunt Durey suggested that it would be helpful to have some kind of master spreadsheet to track funding sources for the Restoration Project, including in-kind and cash matching contributions for grants. Gary Joseph noted that it would also be helpful to keep track of expressions of support from different individuals and organizations.
Meeting with MA Natural Heritage and Endangered Species Program (NHESP): Tim Smith reported on the February meeting with NHESP officials. HRRC discussed potential impacts to several species with NHESP staff, including the water willow stem borer, eastern box turtle and northern harrier. Rare species impacts are tied to the vegetation analysis in the DEIS/EIR, which indicates that hydrologic changes in the upstream sections of the estuary could drive positive ecological changes in freshwater areas and improve habitat quality for some species. It would improve flushing and allow for more emergent and shrub-dominated wetland types to replace woody vegetation. It is also possible that water willow could naturally spread upstream, or could be planted to replace the impacted habitat for the stem
borer.
NHESP officials expressed concern about “fragmenting” habitat for box turtles. However, HRRC members noted that the restoration process would be incremental, allowing time for turtles to migrate to adjacent areas and that no areas would be completely isolated. They do not believe that this is a significant impact or that mitigation is needed.
It appears that the impacts to northern harrier nesting sites would be negligible. However, some NHESP officials expressed concerns about two listed-species not mentioned in their MEPA comment letter: American bittern and least bittern. The HRRC agreed to address them in the DEIR.
Tim Smith, Eric Derleth, and Hunt Durey planned to have a phone conference with Eve Schluter of NHESP to follow up on these issues.
The Committee discussed a related issue regarding project permitting. One of the things that the Towns and the National Park Service (NPS) need to work out is who will apply for the required project permits. It is likely that the Town of Wellfleet would be the applicant for permits under the MA Endangered Species Act (MESA). If there is mitigation needed to address impacts occurring on NPS property, the implementation MOU (MOU III) among the project sponsors would need to make provisions for that.
TNC/CYCC Land Plan and Appraisal: Margo Fenn reported that the appraiser, Jim Czupryna is working on the final report now. The Louis Berger Group (LBG) is doing a bit more planning work in conjunction with the appraisal. ~Everything should be finished in March. David McGowan of the Nature Conservancy will arrange for a meeting with CYCC to discuss the final product when it is completed.
APCC Project Coordination Contract: Steve Spear reported that Cape Cod Conservation District (CCCD) is working with Ed DeWitt of the Association to Preserve Cape Cod to prepare a new Project Coordination contract to cover the period between April 1, 2012 and September 30, 2012. The scope of work for that contract will be similar to the existing contract; the new contract will simply extend the timeframe for Project Coordination and perhaps provide some funding for additional modeling work by the Woods Hole Group (WHG). CCCD officials will monitor ongoing expenses to determine if there are funds available for other HRRC activities such as the hydrodynamic modeling.
Coordination with Wellfleet and Truro Selectmen: The Committee had a very productive workshop session with the Wellfleet Selectmen on February 3, 2012 (see minutes of that session). The group agreed that follow up briefings will be needed when new Selectmen are elected in the spring.
RAE/NOAA Grant: The Committee reviewed a draft Request for Proposals for engineering services prepared by Steve Block. The group reviewed the draft tasks in the scope of work and discussed the process for solicitation. The group agreed that it would make sense to send out the scope of work to a group of qualified consultants and then hold a mandatory bidders conference with interested firms. There are a number of questions about how to best approach the tasks, and it would be good to have the consultants propose options for how to approach it. Ideally, the analysis should include not just design and cost estimates for the Chequessett Neck Road (CNR) dike and tide gates but also for a dike and tide gates at Mill Creek. It would be helpful to have renderings of the dike(s) and tide gates for presentations to
the public, if there are sufficient funds in the grant to cover this. Tim Smith noted that the Committee needs cost estimates for both construction and maintenance of the dike(s).
Steve Block estimated that the engineering work would take approximately 12 months. One of the things that must be determined during the process is whether the new dike(s) would be built to FEMA standards, which would likely require increasing the height of the CNR dike.
Steve Block agreed to rework the Request for Proposals and recirculate it for Committee review. He will also prepare a list of potential firms to invite to bid on the project for discussion at the April HRRC meeting.
Legal Issues: Hunt Durey reported that the legal research project undertaken by the Conservation Law Foundation and Rubin and Rudman was nearing completion. The legal team met three times, first to define the scope of work for the project; second, to review the legal landscape-i.e. analysis of the relevant statutes, regulations, case law, and general causes of action and defenses associated with the key areas of law; and third, to review how the law would apply to the Restoration Project. The group discussed the most likely causes of action and noted that under the Massachusetts Public Trust doctrine, the Commonwealth has both the right and the responsibility to protect fishing, fowling and navigation interests in the intertidal zone.
The legal team recommended that the HRRC determine how regulatory jurisdictions might change on low-lying properties. This may require some additional GIS analysis.
The Committee discussed next steps in the process. The Committee needs to prioritize low-lying properties for further analysis, looking at both physical and regulatory impacts. Each agency representative will need to confer with his/her own legal counsel during the month of March. The HRRC will hold a special meeting in early April to develop its outreach strategy to low-lying property owners, based on the consensus guidance provided by the legal team.
Hunt Durey, Tim Smith and Margo Fenn agreed to plan an agenda for the April meeting, and identify what tasks need to be completed in preparation for that session.
The Committee reviewed a GIS depiction of how the Rivers Act jurisdiction might be affected by the Restoration Project. If the 200 ft. zone is measured from mean high water, large areas of Wellfleet center would be affected. The Committee discussed how other restoration projects have handled this issue.
Hillary Greenberg offered to consult conservation agents in other Cape towns to inquire about how they have handled this issue. Hunt Durey agreed to consult DEP officials about it.
Cultural Resources: Bill Burke provided information to Tim Smith regarding consultation with the Wampanoag Tribes. This information will be incorporated into Chapter 5 of the DEIS/EIR. Burke provided meeting notes from the January 30, 2012 consultation with the Aquinnah Tribe. Jim Harmon joined the meeting by phone to discuss the draft Programmatic Agreement (PA) with the Massachusetts Historical Commission. He noted that it would be helpful to have more background information on the Restoration Project for the PA.
Tim Smith, Eric Derleth, Bill Burke and Jim Harmon agreed to have a phone conference to discuss and refine the PA draft.
DEIS/EIR Chapter 5: Tim Smith noted that LBG had provided a draft of Chapter 5 on February 23, 2012, but it did not include the level of detail that the Committee had requested, especially relating to wetlands impacts. HRRC members had requested that LBG quantify all of the construction-related impacts for each Alternative, but this information was not provided. The Technical Working Group (TWG) met on February 29, 2012 to discuss Chapters 4 and 5; however, the final drafts of these Chapters were not yet completed. The TWG did discuss the draft Regulatory Permitting Strategy proposed for Chapter 5 and generally supported that approach. TWG members agreed to provide comments on the draft Chapters in writing following the meeting.
The Committee discussed LBG’s performance and asked who would replace Craig Wood as the lead wetlands ecologist on the Project. The group stressed that it should be someone with Massachusetts experience.
Tim Smith agreed to complete the editing of DEIS/EIR Chapters 4 and 5. Margo Fenn will send these Chapters to the TWG for review and ask TWG members to provide written comments on the Chapters by the end of March.
DEIS/EIR Schedule and Next Steps: The Committee reviewed the following list of tasks related to the completion of the DEIS:
1. Edit Chapter 4-Get revisions to LBG.
2. Refine Cumulative Impact Analysis
3. Assessment of Significance of Impacts
4. Review Chapters 1-3, including review of maps, tables
5. Write up proposed Permitting Strategy for Chpt 5
6. Prepare revised Chapter 5 with Reg Compliance sections
7. Review Chapter 5 with TWG
8. Receive TWG Comments on Chapter 5
9. Prepare Adaptive Management Appendix
10. Prepare Other Appendices
(Note: Still need WHG Modeling Report for Appendix)
11. Review edited Chapters 1-5 for internal consistency
12. Prepare DEIS/EIR v.2
13. HRRC/NPS review of DEIS/EIR v.2
14. Complete LLP legal analysis
15. Review legal guidance with HRRC
16. Design and implement outreach to LLP owners
-Letter to property owners
-Tracking system for contacts
-Subcommittee process to meet with LLP owners
14. Consult Wellfleet Selectmen re EIS/EIR and Mgt. Issues
15. Prepare Updated CCC Abutters list
16. Submit Notice for Fed Reg/Envir. Monitor
17. Prepare DEIS/EIR v.3
18. HRRC/NPS review of DEIS/EIR v.3
19. Prepare Camera-ready DEIS/EIR
20. NOA Published/DEIS/EIR released
21. Public Hearing(s)
The Committee discussed assignments and timeframes for different tasks. The schedule for completing the DEIS/EIR and conducting public hearings has been delayed because of the extensive editing that has been needed. A new schedule is needed to in order to get a more realistic estimate of when the DEIS/EIR will be ready for public hearings.
Margo Fenn agreed to review the latest LBG drafts of Chapters 2 and 3 to ensure that the HRRC edits were incorporated. Tim Smith and Margo Fenn agreed to consult with Mark Husbands of EQD and LBG about the remaining tasks and develop a revised project schedule.
Cumulative Impacts: The Committee discussed how to address Cumulative Impacts in the DEIS/EIR. The group agreed that there are few projects that would likely have any meaningful interaction with the Restoration Project. Cumulative Impacts could best be addressed using a table that cross-references the projects with the impact topics.
Tim Smith agreed to draft a section on Cumulative Impacts for the DEIS/EIR.
Adaptive Management (AM) Plan: Eric Derleth reported that he had consulted with Mitch Eaton of Cornell University about developing the Adaptive Management Plan. Eaton has agreed to advise the HRRC on this matter. He is reviewing the AM Objectives and will prepare an outline for an AM Plan. This outline will be included in the DEIS/EIR. Tim Smith suggested inviting Mitch Eaton to participate in the April 11, 2012 TWG meeting.
Loose Ends: Eric Derleth commented that the Committee may need more modeling runs for the Adaptive Management Plan in order to assess the effects of smaller tide gate openings. Tim Smith noted that there might be some funds remaining at the Coastal America Foundation (CAF) that could be used for this purpose.
Tim Smith agreed to consult Bill Hubbard of CAF about use of remaining funds. Smith will also consult Kirk Bosma of Woods Hole Group about possibly training HRRC members.
Documents Referred to in the Meeting:
-Minutes of the February 2, 2012 HRRC Meeting
-Draft MET Grant Application, March 1, 2012
-Draft RAE/NOAA Grant Request for Proposals, February 29, 2012
Respectfully submitted,
Hillary Greenberg-Lemos
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