Approved Meeting Minutes
Herring River Restoration Committee (HRRC)
Cape Cod National Seashore Headquarters
Wellfleet, MA
April 5, 2012
9:30 am-5:00 pm
Members Present: Tim Smith, Eric Derleth, Hunt Durey, Steve Block, Steve Spear, Hillary Greenberg, Charleen Greehalgh
Others Present: Margo Fenn, Don Palladino, Glenn Wood, Shelley Hall
Review of CLF Legal Analysis: Hunt Durey and Glenn Wood reviewed the legal analysis conducted by the law firm of Rubin and Rudman under contract with the Conservation Law Foundation (CLF). Rubin and Rudman is providing advisory legal assistance to CLF – shared with the HRRC – related to private property impacts, public trust issues and regulatory issues associated with the Herring River Restoration Project. The Committee discussed the legal analysis findings and how relevant legal issues relate to development of plans to discuss the project and its anticipated effects with low-lying property owners. The group noted that each of the project partners need to consult with their respective legal counsel to review the Rubin and Rudman analysis and discuss next steps. HRRC members agreed to consult with their
agency legal counsels to review the R&R findings.
Review of Low-Lying Property Database Information: Tim Smith and Mark Adams prepared an inventory of low-lying properties adjacent to the Herring River estuary. This database is still being refined. Hydrodynamic modeling results, aerial photography, topographic and ground survey data, and property records from the towns assessor’s databases were used to compile a list of privately-owned properties within the project area which could potentially be affected by increased tidal exchange. Potential impacts to identified properties were categorized based on the frequency of tidal water reaching the property, as predicted by the hydrodynamic model, and the nature of the land or structures impacted, without consideration of any impact mitigation measures, as follows:
No Effect—No impact will occur as properties lie outside the extent of maximum tidal influence for all action alternatives and tidal events.
Infrequent Effects on Natural Vegetation—Natural (i.e., non-cultivated, non-landscaped, “wild”) vegetation affected by tides, on average, one time per year or less frequently. The impacts would only occur during the highest predicted tide of the year or during coastal storm events. Depending on the type of vegetation and salinity of tidal water, some species could be temporarily stressed, but would likely recover and persist. Tidal influence would not be frequent enough to convert the vegetation type to salt or brackish marsh.
Infrequent Effects on Cultivated Vegetation—Cultivated, landscaped vegetation (lawns, gardens, planted trees, etc.) affected, on average, one time per year or less frequently. The potential for impacts would only occur during the highest predicted tide of the year or during coastal storm events. Depending on the type of vegetation and salinity of tidal water, some species could be temporarily stressed, but would likely recover and persist. Tidal influence would not be frequent enough to convert the vegetation type to salt or brackish marsh. Properties in this category may also include impacts to natural vegetation on some land parcels.
Frequent Impacts on Cultivated Vegetation—Cultivated, landscaped vegetation (lawns, gardens, planted trees, etc.) affected by daily high tides or monthly high spring tides. This would occur frequently enough to stress and kill salt-intolerant species and convert the area to salt or brackish marsh, depending on the exact frequency and salinity of tidal waters. Properties in this category may also include impacts to natural vegetation on some land parcels.
Infrequent Impacts to of Structures—Buildings (including residences, sheds, garages, etc.), driveways, private lanes, wells, and septic systems affected, on average, one time per year or less frequently. The potential for impacts would only occur during the highest predicted tide of the year or during coastal storm events. Depending on the exact nature of the structure, the impact could render it temporarily unusable or inaccessible (i.e., a flooded driveway) or cause minor, short-term damage. Properties in this category may also include impacts to natural or cultivated vegetation on some land parcels.
Frequent Flooding of Structures—Buildings (including residences, sheds, garages, etc.), driveways, private lanes, wells, and septic systems affected, on average, by daily high tides or up to monthly high spring tides. Depending on the exact nature of the structure, the impact could render it regularly unusable or inaccessible and could cause long-term or permanent damage. Properties in this category may also include impacts to natural or cultivated vegetation on some land parcels.
Tim Smith presented a summary table of impacts based on this categorization. The Committee discussed what additional analysis might be needed to fully understand potential impacts. The group agreed that it would be helpful to do some case studies to determine how regulatory jurisdictions might change.
Ownership, Operation and Maintenance of Project Infrastructure: The Committee discussed roles and responsibilities for owning and operating the dike(s), tide gates and related infrastructure. This is an issue that needs to be resolved before the Project can seek permits and funding for construction. In February 2012, the Committee had an initial discussion with the Wellfleet Selectmen about this, but further discussions among the project partners will be needed to clarify roles and responsibilities. Another Memorandum of Understanding (MOU III) will be required to formalize responsibilities for project implementation.
Committee members noted that the Town of Wellfleet and the National Park Service (NPS) are the most likely project proponents, given that the Town owns the Chequessett Neck Road dike and Cape Cod National Seashore owns the majority of land within the estuary. However, Wellfleet Town officials have been clear that, while continued town-ownership of the dike is desired, they do not have either the financial resources or the institutional expertise to fund or manage the Restoration Project. The National Park Service also has very limited resources to construct and manage new infrastructure. It is possible that a cooperative arrangement could be developed, wherein the Town continues to own the dike (and related infrastructure) but management responsibilities are primarily assumed by either the Seashore or a third-party
entity. It is also probable that the Town will need to seek some of the needed permits while the Seashore seeks others. It is likely that a Congressional appropriation will be the source for federal funding of construction and to authorize the federal role in management of the project.
Don Palladino noted that there are some models that the HRRC should consider for third-party entities such as the Elkhorn Slough Foundation in California or Riverkeeper groups in other areas of the country. The HRRC needs to develop some conceptual approaches to project management that can be presented to the project partners. Glenn Wood commented that it would be important to have preliminary estimates of operations and maintenance costs before discussing the options with the partners. Committee members noted that the RAE-NOAA Partnership grant will generate much of the technical and cost information for the dikes that is needed to inform these deliberations and that work will commence in the next few months, with anticipated completion by mid-summer 2013.
Don Palladino and Margo Fenn agreed to research possible models for different project management approaches and report back to the HRRC.
Development of Outreach Plan for Low-Lying Property Owners: The Committee discussed contacting landowners by letter and whether individual letters should be developed to address specific impacts on specific properties. Shelley Hall noted that the two properties within CCNS should be treated separately since the Seashore has already been in communication with these owners.
Before any contact with property owners is made, the Committee will further evaluate the likely impacts to specific properties so it has a comprehensive understanding of anticipated physical and regulatory impacts to all affected properties. The case study analysis described above should help refine the Committee’s understanding of specific impacts.
Tim Smith noted that the DEIS/EIR Chapter 4 cannot be finished until the Committee settles on a plan to communicate with landowners regarding low-lying property issues. After the legal case studies are evaluated, the HRRC will decide how to proceed with its outreach plan. This will be an agenda item for the May HRRC meeting.
EIS/EIR Preferred Alternative: The Committee discussed how the low-lying property issues might affect the choice of a Preferred Alternative in the DEIS/EIR. Since most of the property impacts would occur in the Mill Creek and Upper Pole Dike Creek sub-basins, blocking tidal flow to these areas (such as is prescribed for Mill Creek under Alternative C) would eliminate many of the property impacts. However, this would not be the ecologically preferred option. Alternative D still represents the best opportunity for maximizing restoration objectives, provided that the property impacts can be satisfactorily addressed. The Committee agreed to proceed with Alternative D as the recommended Preferred Alternative for the DEIS/EIR. After completing the low-lying property analysis and reaching out to
property owners, and after considering the public comments received on the DEIS/EIR, this recommendation might have to be modified in the FEIS/EIR.
Mark Husbands joined the meeting by phone. HRRC members had several questions for him:
1) Is it OK under the NEPA process to contact low-lying property owners prior to release of the DEIS/EIR? Shelley Hall agreed to consult Robin Lepore of the DOI Solicitors Office on this question. Mark Husbands will also consult legal counsel at the NPS Environmental Quality Division (EQD).
2) How can the HRRC best coordinate the filing of the Federal Register Notice for the DEIS/EIR? The HRRC wants to schedule public hearings in late summer, if possible. Mark Husbands indicated that the Federal Register notice does not have to include the dates of the public hearings, but it does have to include a description of the Project Alternatives, including identification of the Preferred Alternative. A minimum of eight weeks lead-time is needed between filing the notice and its publication. The Committee discussed the idea of providing a briefing for the NPS Regional Director prior to completion of DEIS/EIR v.2 in order to seek consensus on the Preferred Alternative and allow the Federal Register notice to be filed. Tim Smith had prepared a briefing statement on the project in July of 2011. This
needs to be updated. Tim Smith offered to update the Herring River Restoration Briefing Statement and send it to Mark Husbands and Shelley Hall. Shelley Hall agreed to consult Superintendent George Price about the process for getting NPS consensus on the Preferred Alternative.
3) What level of detail should be included in the FEIS/EIR regarding mitigation of impacts to low-lying properties? Mark Husbands indicated that the FEIS/EIR should describe the range of available tools that can be used to address different types of impacts, but should not describe potential actions for specific properties. Tim Smith noted that all but two of the affected properties are outside the Seashore boundary. Mark Husbands stressed that the FEIS/EIR should describe the range of potential actions the Restoration Project might take to address specific types of impacts.
Other Business: Shelley Hall commented that an important issue to address in Chapter 5 of the DEIS/EIR is who will be the formal project proponent and the applicant for the needed permits. This will need to be a cooperative venture, similar to the NEPA/MEPA process, where the town(s) seek permits for some aspects of the Project and Cape Cod National Seashore seeks permits for other activities. Funding sources might drive some of these decisions, but a single entity will need to be identified as responsible for oversight of construction and completion of any needed mitigation, as well as post-construction monitoring and infrastructure operation and maintenance. Margo Fenn noted that by mid-2013 the Herring River partners will develop a new Memorandum of Understanding (MOU III) that clarifies roles and
responsibilities for the implementation phase of the Project.
Respectfully submitted,
Hillary Greenberg-Lemos
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