Approved Meeting Minutes
Herring River Restoration Committee (HRRC)
Cape Cod National Seashore Headquarters
Wellfleet, MA
August 15, 2013
9:30 am-5:00 pm
Members Present: Tim Smith, Hunt Durey, Eric Derleth, Steve Spear, Steve Block, Charleen Greenhalgh, Hillary Greenberg
Others Present: Margo Fenn, Don Palladino, John Riehl, John Portnoy
Administration/Coordination:
Communications/Coordination with Friends of Herring River (FHR): Don Palladino reported on FHR activities. The Annual Meeting is planned for Tuesday, August 20, 2013 from 4:00 to 6:00 pm, with National Park Service (NPS) Historian Bill Burke as the featured speaker.
Grants Updates: Don Palladino noted that the MA Division of Ecological Restoration (DER) grant for Project Coordination had been completed and closed out. Hunt Durey noted that he had submitted a request for continued funding, starting in October 2013. Hydrodynamic modeling work is proceeding under the Massachusetts Bays Program (MBP) grant with another progress report due October 4, 2013. The Massachusetts Environmental Trust (MET) grant has been approved but no funding supplied yet. Palladino noted that FHR needs a refined proposal from the engineering firm of Fuss & O’Neill for the engineering work specified in this grant.
The Committee discussed a new grant ($300,000) awarded to FHR from the National Oceanic and Atmospheric Administration (NOAA) for further engineering and permitting work. There are six tasks in the work program, including hiring a new contractor to help with project management. The Committee discussed how to go about creating a detailed job description for this position. The group agreed on the following process:
John Riehl and Don Palladino (FHR) agreed to draft a job description and circulate it to HRRC for comments. The job description will be posted for approximately three weeks, after which a subcommittee of the HRRC will work with FHR to screen applications and schedule interviews. The goal is to schedule interviews with interested individuals in mid-October, in coordination with the October HRRC meeting.
The Committee discussed some of the other tasks in the grant scope of work and agreed to begin work on contracting with Fuss & O’Neill for the Chequessett Neck Road (CNR) bridge design. A Request for Proposals (RFP) might be needed to solicit engineering design for flood-proofing low-lying properties.
Tim Smith offered to explore combining the MET and NOAA funds into one scope of work for Fuss & O’Neill. Smith and Steve Spear agreed to coordinate in developing an RPF for low-lying property engineering and design.
Minutes: The Committee voted to approve the minutes of the July 10, 2013 HRRC Meeting.
Meeting Schedule: The Committee agreed on the following schedule for upcoming meetings:
August 21, 2013: MOU Working Group meeting (to be rescheduled)
September 11 and 12, 2013: HRRC regular meeting (including workshop session with Fuss & O’Neill and the Woods Hole Group)
September 19, 2013: MOU Working Group meeting
October 9 and 10, 2013: HRRC regular meeting and possibly interviews with candidates for the project manager position
Informational Updates:
MOU III Development: Margo Fenn provided an update on the development of MOU III. At the July Working Group meeting, the group noted that the there are two key phases of the Project to plan for: First is the implementation phase including design, engineering, permitting, construction and adaptive management. This implementation phase could last for fifteen to twenty years. Once the project is fully implemented, the management responsibilities will be greatly reduced but there will still be a need to maintain the tide control infrastructure for its expected design span. The Working Group agreed that while it makes sense to have a non-profit management entity handle the implementation phase, it might not make sense for the non-profit management organization to be responsible for long-term ownership and maintenance
of the infrastructure. Long-term funding could be uncertain for a non-profit organization and both citizens and affected property owners need to know that there will be a reliable entity (like NPS and/or the towns) that will be there in the long run. For this reason, the Working Group agreed to revise the MOU to differentiate between these two phases.
John Riehl reported that the Wellfleet Board of Selectmen had discussed the Restoration Project at its August meeting. They were generally supportive of the approach proposed in the Preliminary Draft MOU III, but still have concerns about costs and liability. They want to make sure that the Town would not be obligated to expend funds for the Project. The Board also discussed High Toss Road at that meeting and reiterated their preference for keeping the road in place as a secondary access route to Griffin Island. HRRC members discussed this again noted that the road would be flooded regularly and would impede low tide drainage. John Riehl suggested that the HRRC provide the Selectmen with better information about the comparative costs of raising or removing the road.
The HRRC briefly discussed how the main Restoration Project partners (i.e. the Towns of Wellfleet and Truro, Cape Cod National Seashore and the Commonwealth of MA) could be adequately represented on a Board of Directors for a new management organization. There are different ways that the management relationships could be structured. It might be possible to create a governing Executive Board for the Restoration Project (perhaps through an inter-municipal agreement) representing the Project partners: that entity could simply contract with a new or existing non-profit organization to manage the restoration. Another approach would be for the Project Partners (or their appointed representatives) to directly serve as Board members of the new (or reconfigured) non-profit. Hunt Durey stressed that the Working Group needs to get
legal advice about how these approaches could be implemented. He suggested that the state’s role in a new management organization should be advisory only. The owners of the land and infrastructure (the towns and the National Park Service) should be directly represented on the management entity.
There are still some unanswered questions about who has management responsibility for the existing dike and tide gates. In the 1980s, the MA Attorney General ordered the Town of Wellfleet to turn over the crank that controls the tide gates to the MA Department of Environmental Quality Engineering (now DEP). It is unclear whether authority to manage the gates was ever officially returned to the Town. If not, having the Commonwealth as a party to the MOU might be necessary.
Tim Smith agreed to check with MA Department of Environmental Protection (DEP) officials to investigate this question.
Consultation with State Agencies:
DEP: On August 12, 2013, representatives of the HRRC met with DEP officials in Boston to discuss several issues related to permitting of the Restoration Project. The group discussed the following topics:
-Prediction and quantification of wetland alterations/changes
-Impacts to low-lying private properties
-Restoration Project permitting strategy.
Hunt Durey reported that DEP has a new set of wetland regulations that are expected to be promulgated in early 2014. The proposed regulations include new provisions for Ecological Restoration Projects that could make the permitting process less complicated. Given that the Herring River Restoration Project involves work in more than one town, it might be possible for the Project to file directly with Commissioner of DEP for a variance, rather than having to first apply at the town and regional levels. This issue needs to be explored further with the towns and with DEP staff.
It is critical to identify what aspects of the Restoration Project might require a variance. The HRRC needs to review all the elements of the Preferred Alternative (including both the construction and Adaptive Management phases) and review the new DEP wetland regulations to see what requirements cannot be met without a variance. It is possible that a variance might not be needed under the new regulations.
Another meeting with DEP is needed to discuss the Chapter 91 jurisdictional issues, and to clarify the permitting path. HRRC representatives agreed to review the new DEP regulations and assess what Project elements might require a variance. DEP officials agreed to seek further legal guidance about the Chapter 91 issues and how to best structure the variance and/or permit applications to efficiently move through the regulatory review process.
Cultural Resources- Programmatic Agreement and Phase 1B Scope of Work: NPS Historian Bill Burke, and Archaeologists Jim Harmon and Frederica Dimmick joined the meeting to discuss how to proceed with needed archaeological investigations for the Restoration Project. The recently announced NOAA grant to FHR provides $40,000 in the first year of the grant for Phase 1B investigations. (The NOAA grant application proposes to provide a total of $100,000 over three years for this purpose, but funding for years two and three has not yet been approved.)
Bill Burke reported that the Programmatic Agreement (PA) with the Massachusetts Historical Commission (MHC) is close to completion. While local historical commissions and the Mashpee and Aquinnah Wampanoag Tribes were invited to participate in signing the PA, none responded to the invitation, so the signers will be the Superintendent of Cape Cod National Seashore and the State Historic Preservation Officer (SHPO). He noted that there must be an opportunity for the public to comment on the PA. This can be accomplished by including the draft PA in the Final EIS/EIR for the Restoration Project. It could then be ready for signature as part of the Record of Decision (ROD).
The Committee discussed how to develop a scope of work for archaeological investigations in and around the proposed new CNR bridge and Mill Creek dike. Because some of this work will be on Park Service land, it will require a permit from NPS under the Archaeological Resources Protection Act. SHPO permits will also be needed. Jim Harmon recommended seeking a blanket permit for the whole project, rather than seeking separate permits for different phases of work. He offered to draft a scope of work, in cooperation with the HRRC and FHR. Once a scope of work is agreed upon, FHR would hire a qualified consultant to prepare the permit applications and perform the archaeological investigations, using NOAA funding.
Jim Harmon suggested structuring “not to exceed” provisions in the contract with the consultant. He stressed that good communication, oversight and management will be needed to keep the consultant on schedule. The Committee briefly reviewed a sample scope of work for another NPS project to get a sense of what needs to be included. Hunt Durey pointed out that the HRRC and FHR will need assistance from NPS archaeological experts to oversee the consultant’s work.
HRRC members agreed to review the sample scope of work and get comments and suggestions to Tim Smith. Tim Smith will work with Jim Harmon to develop needed information for the introductory section of the scope of work, and for a description of the proposed construction activities and locations. Jim Harmon offered to draft the scope of work and Harmon and Smith will work with FHR to finalize it and select a qualified consultant.
Adaptive Management-Process for Completion of the AM Plan: Jason Taylor, CCNS Natural Resources Chief joined the meeting. Eric Derleth described the latest efforts to develop a modeling framework for the Adaptive Management Plan. A team of experts from the University of New Hampshire (UNH) will work with the Woods Hole Group (WHG) to develop a framework for Herring River ecosystem predictive models. The scope of work will include:
-A kick-off meeting or phone call
-WHG/UNH will do background research on existing models and determine how to develop the model framework and report.
-There will be a half-day meeting in Provincetown to present results of the background research and their plan for going forward. Participants will discuss what is needed from the model, questions, uncertainty, restoration actions, monitoring, etc. and how all that should be reflected in the model framework. Participants will include the WHG/UNH team plus HRRC members, NPS Natural Resources staff, and local experts.
-WHG-UNH will develop the framework and write a draft report. This effort will include contacting and interviewing outside experts to fill in knowledge gaps, possibly involving HRRC members in some of these discussions.
-WHG/UNH will deliver a draft report, followed by final half-day meeting of same group.
-There will be modifications to the draft report, follow-up discussions, etc.
-WHG/UNH will deliver the final report
Tim Smith reported that the United State Geological Survey (USGS) is working on a proposal to provide assistance to develop the Adaptive Management Plan. If fully funded, USGS would have $100,000 a year for three years to develop a decision model that brings together objectives, alternatives, predictive models with uncertainties, expressions of values and risk attitudes among stakeholders, and a targeted monitoring plan to help inform recurrent decisions. The decision model would make tradeoffs more explicit, at some level identify "optimal" actions, and provide a process for incorporating what is learned into future decisions. The predictive models (to be developed by the WHG/UNH team) are a part of that decision model - a very important part - but not the only part. However, the modeling framework
will likely result in conceptual ecological models and a recommended 'to do list' of modeling and supporting studies yet to be done. A post-doctoral expert would be recruited with a background and interest in the decision analysis to help craft the Adaptive Management Plan.
Tim Smith drafted a paper on the water management component of the Adaptive Management process, which was sent out the HRRC members prior to the meeting. This is one of possibly three interrelated sections that need to be addressed-including water management, habitat management and administration/governance. The administrative/governance section of this document will be driven, in part, by the recommendations of the MOU III Working Group. Smith presented an example of how structured decision-making is being used by the U.S. Fish and Wildlife Service. He described of the distinctions between fundamental and means objectives of that project and the decision support model that was developed to guide management of salt marshes at FWS refuges.
The Committee briefly reviewed some of the public comments that were submitted on the Draft Environmental Impact Statement/Report (EIS/EIR) that relate to Adaptive Management. Tim Smith noted that the HRRC must craft specific responses to those comments for the Final EIS/EIR, based on the best available information. The Committee spent some time brainstorming a list of uncertainties about how the ecosystem will respond to tidal restoration, and outlined some remedial actions that could be taken to mitigate those uncertainties. The group discussed what increments could be used for the tide gate openings, noting that there are trade-offs (both benefits and risks) to faster or slower implementation.
HRRC members agreed to review the draft list of uncertainties and remedial actions and provide suggestions for clarifications and additions to Tim Smith. Tim Smith will refine the water management section of the Adaptive Management paper, and develop the habitat management section for the HRRC to review at its September meeting. The completed version of this document will be included in the FEIS/EIR.
Low-lying Property Outreach: The Committee discussed what triggers should be used to determine when flood-proofing should be done for affected private properties. There are numerous parcels that may not be affected for many years, if ever, depending how quickly and far the restoration process proceeds. Hunt Durey suggested that triggers for needed mitigation should be built into the Project permits. Margo Fenn suggested that the HRRC send a follow up letter to those structurally-affected property owners who had not responded to the October 2012 letter.
Margo Fenn and Tim Smith agreed to prepare a follow up letter to structurally-affected property owners who have not been in contact with the HRRC.
IFC Land Value Analysis: Hunt Durey briefed the Committee on a recent study, commissioned by the MA Division of Ecological Restoration (DER) regarding the effects of tidal restoration on property values. The study uses values from a similar study in North Carolina to predict changes in land values for the Herring River watershed. DER will release a synthesis of the study on its website soon. Overall, the study found that tidal restoration has a beneficial impact on land values. The HRRC expressed interest in the methodology and conclusions of the study and suggested that its findings be included in the FEIS/EIR.
FEMA Update: Steve Spear reported that FEMA officials are hosting a series of meetings for Cape towns this week to explain the Preliminary draft FIRM maps. He attended one of the sessions. The flood zones have been expanded in many areas, based on new modeling that FEMA’s consultants have done. He suggested that the HRRC consider the merits of increasing the height of some of the proposed tide control infrastructure of the Herring River Restoration Project to take into account these new FEMA numbers. The Committee made no decisions about this matter but agreed to discuss it at another time.
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