Approved Meeting Minutes
Herring River Restoration Committee (HRRC)
Cape Cod National Seashore Headquarters
Wellfleet, MA
September 12, 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, Alan Platt, Ed DeWitt
Administration/Coordination:
Communications/Coordination with Friends of Herring River (FHR): Don Palladino reported on FHR activities. The Annual Meeting was held on August 20, 2013 with about 40 people attending. Bill Burke’s presentation on historic uses of the estuary was excellent and well received. Don Palladino noted that given all the grants that the FHR has received during the past year, FHR is considering the need for liability insurance. Tim Smith suggested that FHR consult Bill Hubbard of the Coastal America Foundation to see how they have handled similar issues.
Approval of Draft Minutes: The Committee voted unanimously to approve the minutes of the August 15, 2013 HRRC meeting.
Meeting Schedule: The Committee agreed on the following schedule for upcoming meetings:
September 19, 2013: MOU Working Group meeting
October 9/10, 2013: HRRC regular meeting and possible fieldwork day
October 17, 2013: MOU Working Group meeting
November 6, 2013: Technical Working Group (TWG) meeting (tentative)
November 7, 2013: HRRC regular meeting/Meeting with MA DOT officials
The Committee agreed that it would make sense to meet with the TWG and update them on a number of topics, including: Design work for the Chequessett Neck Road bridge and the Mill Creek dike, the possible addition of a tide gate at Pole Dike Creek, clarifications on the regulatory permitting strategy and schedule for completing the FEIS/EIR. Margo Fenn agreed to contact TWG members to see if they are available to meet on November 6, 2013 at the DEP Offices in Lakeville.
Informational Updates:
Update on MOU III Development: Margo Fenn provided an update on the development of MOU III. At its August meeting the MOU Working Group discussed how the main Restoration Project partners (i.e. the Towns of Wellfleet and Truro, and Cape Cod National Seashore) 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) directly 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. Legal counsel is needed to determine whether it is better to set up an Executive Board independent of a management non-profit-or within such an organization. It is not clear whether legislation is needed to convey the necessary authorities under either model.
The Working Group is also exploring what kind of insurance protection might be available to address the risks of flooding or other impacts. Members agreed to research how local governments and land trusts manage liability insurance. The main liability concerns relate to the construction and implementation phases of the Restoration Project, in particular the potential for damage from operation of the new tide gates and/or damage from the failure of any of the tide control structures. HRRC members briefly discussed liability issues. Tim Smith noted that there are only a small number of properties that could experience flooding impacts to structures. It would be possible to calculate the value of those structures in order to assess the (worst case) need for insurance protection.
Don Palladino noted that the Friends of Herring River is exploring legal counsel options to help with the management issues. Ed DeWitt suggested that FHR seek a law firm that understands municipal contracting. He suggested several firms that work in this area.
Eric Derleth suggested that the MOU Working Group develop a flow chart to describe the relationships among the different entities that will be involved in the Restoration Project. Hunt Durey suggested this could be part of the scope of work for the upcoming Project Coordination contract between FHR and the MA Division of Ecological Restoration (DER).
Consultations with State Agencies:
Department of Environmental Protection (DEP): In August, 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 noted that DEP has a new set of wetland regulations 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. It is possible that a variance might not be needed under the new regulations. Another meeting with DEP has been scheduled for early October to discuss the Chapter 91 jurisdictional issues, and to clarify the permitting path.
Natural Heritage and Endangered Species Program (NHESP): The HRRC has not received any further feedback from NHESP. Tim Smith agreed to contact Eve Schluter to seek guidance on next steps in addressing NHESP’s comments on the DEIS/EIR.
Cape Cod Commission: Hunt Durey asked about the Cape Cod Commission’s review process. Margo Fenn noted that there is an unresolved question regarding the Development of Regional Impact (DRI) application requirement to demonstrate legal control of the Project site-given the unique size and nature of the restoration project.
Margo Fenn agreed to follow up with the Cape Cod Commission legal staff on this question.
Given the large Project area, Ed DeWitt also noted that it would make sense to consult with the Barnstable County Registrar of Deeds to find out about recording fees that may be required as part of the permitting process.
Cultural Resources-Phase 1 B Scope of Work: Tim Smith is working with NPS Historian Bill Burke to determine how to develop a scope of work for needed Phase 1B investigations under Section 106 of the National Historic Preservation Act.
Low-Lying Property Outreach: 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.
The Committee discussed how to proceed with engineering plans for flood protection for key low-lying private properties. The first year of the NOAA grant will provide $60,000 for this work. The HRRC will seek proposals from qualified engineering firms to do this work. It might be possible to do one flood protection plan for several adjacent properties in the Upper Pole Dike Creek basin.
Tim Smith offered to draft a Request for Proposals (RFP) for engineering firms to develop flood protection plans for selected low-lying private properties. The HRRC will review this at its October meeting. Don Palladino will follow up with the Feil family to see if they are interested in exploring engineering solutions for their property.
Discussion:
Project Management Associate Job Posting: At the August HRRC meeting, John Riehl and Don Palladino (FHR) agreed to draft a job description for a Herring River Project Management Associate and circulate it to HRRC for comments. This contract position with FHR has been funded under the NOAA grant. Committee members reviewed a draft job posting that was sent out prior to the meeting. Margo Fenn noted that the draft posting is for a full-time contract position-which is somewhat different from how it was proposed in the NOAA grant application. The Committee discussed whether the position should be full-time or part-time, and how to supervise and oversee the work of a new person. The group agreed that a detailed work plan is needed in order to make sure that the Project Management Associate gets clear direction and makes good use
of his or her time. Don Palladino offered to investigate whether there is office space available in Wellfleet for FHR to use for this person. Eric Derleth stressed that the position should be structured so as to build staff capacity within FHR. The Committee agreed that the new person should be expected to be in Wellfleet on a regular basis, and attend HRRC and related Project meetings.
Don Palladino agreed to modify the job posting to reflect the HRRC’s suggestions and post it to solicit interested candidates. HRRC members will provide suggested places to post the job description. Margo Fenn, Hunt Durey and Steve Block offered to help screen applications and set up interviews with finalists. HRRC members will develop a more specific work plan for the Project Management Associate.
FEIS/EIR Alternatives: The Committee briefly discussed whether there is additional technical research needed in order to complete the FEIS/EIR. The group agreed that the existing Alternatives adequately describe the range of potential Project impacts. No new Alternatives are needed but the Preferred Alternative (D) would be modified to make provision for tide control at Pole Dike Creek Road. The Committee discussed the public review process for the FEIS/EIR, noting that the MEPA/Cape Cod Commission joint review process will require another public hearing on the FEIS/EIR. Margo Fenn and Tim Smith agreed to check with Mark Husbands regarding NEPA requirements for public review on the FEIS/EIR.
NOAA Grant Activities: The Committee briefly discussed the tasks outlined in the scope of work for the first year of the NOAA grant. Tim Smith agreed to follow up with Fuss & O’Neill regarding the 25% design work for the Chequessett Neck Road bridge. He also agreed to produce a draft scope of work for engineering design for flood protection of low-lying properties. The Committee discussed the design process for raising Pole Dike Road and replacing the existing culvert with a tide gate. Since CLE Engineering, Inc. developed conceptual design plans for the road improvements, it would make sense for them to undertake the 25% design plans. This work needs to be coordinated with the Woods Hole Group. Don Palladino agreed to consult NOAA officials to see whether a sole source contracting process is acceptable for
this work.
The Committee discussed the $20,000 allocated in the grant for legal assistance in the permitting process. Hunt Durey noted that determining the appropriate management structure for the Restoration Project is the most pressing need for legal advice. HRRC members agreed that this is a priority. Don Palladino agreed to consult with NOAA officials to see whether the (Year 1) $20,000 for permitting assistance could be used to seek legal advice about how to structure the restoration management entity.
Adaptive Management: Tim Smith reported that a team of experts from the University of New Hampshire (UNH) is working with the Woods Hole Group (WHG) to develop a framework for Herring River ecosystem predictive models. A workshop on this is planned for later in the fall. Also, 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.
Tim Smith presented an outline of a Preliminary Implementation and Mitigation Plan for the Committee’s review. The Committee reviewed the outline and agreed that this would be a good approach to answering questions in the FEIS/EIR about how the restoration process will be managed.
HRRC members agreed to review the outline and provide comments to Tim Smith and Eric Derleth. This approach will also be discussed with the TWG at its next meeting.
Respectfully submitted,
Hillary Greenberg-Lemos
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