Approved Minutes
Herring River Restoration Committee (HRRC)
Cape Cod National Seashore Headquarters
Wellfleet, MA
November 3, 2011
9:30 am-5:00 pm
Members Present: Gary Joseph, Tim Smith, Eric Derleth, Hunt Durey, Steve Block, Steve Spear, Charleen Greenhalgh, Hillary Greenberg
Others Present: Margo Fenn, Don Palladino, Bill Burke, John Portnoy, Mark Borrelli, Mark Husbands (by phone), Ed DeWitt
Administration/Coordination:
Communications/Coordination with Friends of Herring River: Don Palladino reported that the Friends hosted a booth at the Wellfleet Oyster Festival and that there were many interested and supportive people who stopped by the booth. He noted that the Friends will also have a booth at the annual State of the Harbor Conference.
Palladino reported that the Friends had submitted a letter of inquiry for a Massachusetts Environmental Trust (MET) grant. The proposed $50,000 grant would be used to prepare a Project Development and Implementation Plan for the Herring River Restoration Project. The proposed scope of work would be to:
Develop a Memorandum of Agreement between the core project partners to establish a Restoration Management Team and describe member roles and responsibilities.
Determine ownership and management / operations responsibilities for the new dikes, water control structures, and related project infrastructure.
Develop an Adaptive Management and Monitoring Plan (AMP) that will provide a detailed, science-based guide for project management actions after initial construction is complete. Tidal reintroduction and other restoration actions (e.g., channel dredging) will be incrementally undertaken over a 10-20 year period within the historic flood plain based on monitored results in relation to predicted outcomes and the AMP.
Prepare an agreement between all relevant local, state, and federal regulatory agencies to establish, and develop operating protocols for, a regulatory oversight committee that will review and approve management actions after initial permitting and construction.
Develop a public outreach strategy to keep stakeholders, public officials, and citizens informed as work proceeds.
Develop and begin implementation of a fundraising strategy to raise the estimated $40-$50 million needed for project construction.
Work proposed under an MET grant would commence July 1, 2012 and be completed by June 30, 2013. The work would be performed in partnership with the HRRC.
The letter of inquiry is just the first step in the grant process. MET will review the initial proposals and invite full applications from selected organizations.
APPC/CCCD Contract for Project Coordination:
Margo Fenn noted that the current Project Coordination contract between the Association to Preserve Cape Cod (APCC) and the Cape Cod Conservation District (CCCD) needs to be amended and extended before its December 31, 2011 expiration date. Steve Spear noted that he needed to get a final cost estimate for additional modeling work by the Woods Hole Group. Once the numbers are firmed up, the CCCD contract can be amended.
Steve Spear agreed to follow up to determine the process and cost estimates for amending the APCC/CCCD contract.
Minutes: The Committee voted to approve the minutes of the October 6, 2011 meeting.
Schedule Next HRRC Meetings: The HRRC will meet on December 1, 2011 and January 5, 2012. The Technical Working Group (TWG) will meet January 11, 2012.
Legal Update: Hunt Durey reported that the Conservation Law Foundation (CLF) had received a proposal (dated October 28, 2011) from the law firm of Rubin and Rudman to review the private property rights, public trust issues and regulatory issues associated with the Herring River Restoration Project. The proposal was circulated to HRRC members prior to the meeting. There is a meeting planned for November 14, 2011 to kick off the project and brief representatives of state, town and federal agencies about key legal issues. Hunt Durey noted that it would be advantageous to have Glenn Wood and Amy Kwesell of Rubin and Rudman attend the November 14th meeting.
The Committee discussed the proposal. Charleen Greenhalgh made a motion that the HRRC recommend to CLF that there is no objection to selecting Rubin and Rudman to perform the legal research. The Committee voted unanimously to approve the motion.
Issues for Discussion with the Town of Wellfleet: In late September, the Wellfleet Board of Selectman Chair, Ira Wood requested that HRRC prepare a list of questions that the town must address related to the Restoration Project-with a projected schedule of when those decisions must be made. Tim Smith subsequently drafted a list of questions that were circulated to HRRC members for review as follows:
1.What is the town's position regarding the long-term ownership, operation, and maintenance of a reconstructed Chequessett Neck Road Dike? The new dike and tide gates would be substantially more complex than the existing one and their operation will be tied into permitting and compliance
documents and the project's adaptive management plan. Potential options include continued town ownership or establishing a multi-agency, public/private authority to operate and maintain the structure. The Seashore has determined it cannot take ownership of the structure, even if the town were willing transfer it.
2. What is the town's position on the long-term use of High Toss Road, which would be overtopped by high spring tides within several years of completing construction of the new dike? Potential options include decommissioning the road entirely and removing the fill, decommissioning, removing, and replacing the road with a pedestrian boardwalk, elevating the road above the tide to maintain vehicular access, and allowing continued use with the recognition that the road would be flooded several times per month. The Seashore has documented that High Toss is under federal ownership, subject to access rights by the public, and has stated a preference for removal of the road.
3. What is the town's position on low-lying portions of Pole Dike Creek, Bound Brook, and Old County Roads? A stretch of these roads, about 4000 feet in length, is as low, or lower, than High Toss Road and would flood when high tides approach 3 feet NAVD. Options include elevating the roads and maintaining their existing layout, rerouting onto adjacent upland or the old railroad embankment, or removing certain sections.
4. Although no direct funding is expected from the town for any of the Herring River construction projects, can the town, 1) serve as a recipient, administrator, and contract manager of external funds provided by state, federal, or private agencies for construction, and 2) provide any in-kind services such as repaving, clearing/grading fire roads for temporary vehicle use (i.e. Duck Harbor Road), providing police details, etc.?
The Committee discussed the draft questions and the process for reviewing these issues with Wellfleet officials. Don Palladino asked if it is essential to get answers to these questions before the DEIS/EIR is completed, noting that the Board of Selectman would likely want to get public input on these questions before making a decision. The DEIS/EIR could lay out the options for how to address these issues and the public would have the opportunity to comment on those options. The Committee agreed that this approach would make sense but thought that it would be very important to get the questions (and possible options to address them) to the Board of Selectmen in advance of the release of the DEIS/EIR.
The group agreed that it is very important to update town officials on the project. Mark Borrelli suggested that the Selectmen could set up a subcommittee to work with the HRRC over the next few months. The Committee supported this idea and agreed that Gary Joseph, Hillary Greenberg, Charleen Greenhalgh and Tim Smith participate. It would also be helpful to have the Wellfleet DPW Director involved.
Gary Joseph and Mark Borrelli agreed to propose that the Wellfleet Board of Selectmen set up a subcommittee to work with the HRRC. If the Selectmen support this idea, representatives of HRRC will meet with town representatives ASAP to begin exploring project-related questions.
The Committee discussed some other issues that should be added to the list of questions, including:
-Construction, operations and management of a dike at Mill Creek;
-Update on the legal questions/analysis related to low-lying private properties;
-The FEMA remapping process, and the status of the Chequessett Neck Road dike for flood control.
The Committee noted that the town had hired an engineering firm to inspect the dike. That engineering report has been completed but the report has not been released for public review. The information on the dike's condition should be included in the DEIS/EIR.
The Committee noted that MOU II stipulated that Cape Cod National Seashore would serve as the lead agency for NEPA review of the project and the towns would serve as co-applicants for the MEPA review.
Hillary Greenberg agreed to contact the Wellfleet DPW Director to explain the need for the dike inspection report and discuss how and when this information could be provided to other town officials and the public.
Margo Fenn agreed to review the list of draft questions and provide a revised version to HRRC members for review.
RAE/NOAA Grant: Hunt Durey reported that the contract for the 2011 Restore America's Estuaries grant had not yet been executed. The HRRC still needs to work out an administrative procedure with the Conservation Law Foundation (CLF) for this grant. The Committee needs to know what process to follow to hire needed engineering consultants: Should one contractor be hired to develop a scope of work; does the work need to be competitively bid?
Steve Block agreed to contact Peter Shelley at CLF about these questions and will report back to Tim Smith, Hunt Durey and Margo Fenn about the recommended process.
TNC/CYCC/NPS Land Plan and Appraisal: The Nature Conservancy (TNC) has been working with the Chequessett Yacht and Country Club (CYCC) to develop a land plan and appraisal of the CYCC property. There will be a meeting in mid-November to review the first draft of the appraisal. HRRC members requested that David McGowan of TNC participate in the December HRRC meeting to report on this effort.
Margo Fenn agreed to contact David McGowan to request that he participate (in person or by phone) in the December 1, 2011 HRRC meeting. Tim Smith, Margo Fenn and Steve Spear will attend the progress meeting with TNC and CYCC in mid-November.
EEA Secretary Sullivan Visit to Cape November 7, 2011: State Senator Dan Wolf has arranged a tour of several environmental projects on the Lower Cape for the Massachusetts Secretary of Energy and Environmental Affairs, Richard Sullivan. The tour will include a briefing on the Herring River Restoration Project and a site visit to the dike. The Committee discussed the visit and what issues to cover with the Senator and the Secretary. Members noted that the Massachusetts Division of Ecological Restoration (DER) has been very supportive of the project in the past, and that there are several ways in which the state could continue its support, including line item appropriations in the annual DER budget for needed design and engineering, support for the proposed MET grant, and possibly a line item authorization for
construction funds in the next Environmental Bond Act. State funds will be critical to provide match for any federal funds that HRRC may seek.
Tim Smith, Margo Fenn and Gary Joseph agreed to attend the briefing and tour on November 7, 2011. Mark Borrelli and Don Palladino also agreed to participate.
Low-Lying Property Analysis/Outreach Strategy: Tim Smith prepared an updated draft Inventory of Low-Lying Properties (dated October 25, 2011) and distributed it to the Committee for review. The objectives of this initial study were to:
-identify all low-lying properties within the potential restoration project area,
-assess potential flood impacts based on results of hydrodynamic modeling of various tidal restoration scenarios,
-characterize general degrees of impact, and
-assess and quantify impacts of the three action alternatives analyzed in the project’s Draft Environmental Impact Statement/Report (DEIS/EIR).
The Committee reviewed the report's findings and agreed that this was an excellent approach. Steve Spear stressed that this report should be used as the basis of the impact analysis for the Socioeconomics section of Chapter 4 of the EIS/EIR. The Committee agreed that specific properties should not be identified in the DEIS/EIR-either in the text or the maps but that the Committee would commit to work individually with the affected property owners.
Steve Block asked how vegetation management would be handled on private properties. Plans for vegetation management need to take into account ecological benefits as well as property owners' preferences. This issue need further discussion.
Hunt Durey stressed that HRRC needs to develop its outreach strategy for property owners while the legal research is underway. We need to determine what kinds of mitigation we can offer and how to refine the impact assessment for specific properties.
The HRRC will discuss outreach approaches as its December 1, 2011 meeting.
Cultural Resources: Bill Burke reported that Cape Cod National Seashore had received a letter (dated October 27, 2011) from Brona Simon, State Historic Preservation Officer, acknowledging receipt of the Phase 1A Archaeological Assessment report prepared by the Public Archaeology Lab (PAL). The Massachusetts Historical Commission (MHC) will provide technical comments on the PAL report under separate cover, but acknowledged NPS's proposal to develop a programmatic agreement to conduct phased historic properties identification and evaluation.
Bill Burke offered some initial comments on the Cultural Resources section of draft EIS/EIR Chapter 4 but noted that he had not had time to review it carefully yet. He noted some internal inconsistencies in the draft and asked some questions to clarify the intent of the Project Action Alternatives. He questioned LBG’s assumption in draft chapter 4 that there will be no adverse impacts to cultural resources just because the tidal restoration would be gradual. He also noted that it would be important to meet again with tribal representatives before the DEIS/EIR is released for public review.
Bill Burke agreed to provide written comments on the Cultural Resources section of Chapter 4 to Tim Smith and Margo Fenn. Fenn and Smith will provide those comments to the Louis Berger Group (LBG) as part of the package outlined below.
Project Phasing/Funding: Margo Fenn and Don Palladino met with Shelley Hall in October to begin the process of developing a fundraising strategy. They discussed what might be the process and protocol for seeking construction and implementation funds through the Park Service (and the other partner federal agencies). The Herring River project is a much more expensive and complex project than what is typically funded in the annual natural resources budget process. It may be that the project partners will need to seek a specific Congressional appropriation to fund the project. The NPS Deputy Director for Natural Resources had been briefed on the Herring Project and might be willing to follow up with other federal agency representatives in Washington, but the HRRC needs to have a better strategy worked out before
asking him to do so.
Mark Forest had offered to help strategize about funding. Don Palladino suggested that HRRC representatives set up a time to meet with him and George Price to explore options. Before doing so, however, it would be helpful to think a little more about how the project might be phased, so that we could suggest how project components could be grouped together for funding requests. Shelley Hall suggested that a dam removal project in Olympic National Park might provide some instructive experience to draw on.
The Committee briefly discussed the phasing question and agreed the first phase would have to include at a minimum: Reconstruction of the Chequessett Neck Road dike and tide gates, mitigation for Mill Creek (either a dike or golf course reconstruction plus flood-proofing of other private properties) and either removal or elevation of High Toss Road. These project elements would likely add up to about $20 million.
The Committee discussed how to initiate a meeting among officials in the partner agencies, noting that the Congressman's office might be able to convene such a group. Members noted that Non-Government Organizations (NGOs) such as The Nature Conservancy, Restore America's Estuaries, American Rivers, and Ducks Unlimited also need to be approached.
Don Palladino offered to do some research on NGOs that might have interest in the Restoration Project. Margo Fenn agreed to coordinate with CCNS staff and the Friends of Herring River to set up a meeting with Superintendent George Price and Mark Forest to explore funding strategies.
Review of EIS/EIR Chapter 4: The Committee reviewed the first draft of Chapter 4 prepared by the Louis Berger Group (LBG). The group agreed to compile a list of the key issues that need to be fixed in each section, focusing on the conceptual approach, the organization, the presentation of information. The following list of compiled comments will be provided to LBG to guide the rewriting of this Chapter.
General Comments:
-The Chapter focuses on NEPA and National Park Service (NPS) requirements but does not acknowledge or mention the MEPA Scope or CCC comments. This document is both an EIS and an EIR and must address not just federal requirements, but also state and regional ones. The Chapter also needs to acknowledge that while NPS is the lead agency, the towns and other agencies are also project proponents. In general, unless the intention is to describe something specific or unique to the Seashore, the HRRC , not NPS, should be cited as the entity taking action.
-The description of the Alternatives varies from section to section in this Chapter (e.g. P 64 L 14-15)-Need to make sure that the Alternatives are consistently described and match what is said in Chapter 2 and elsewhere. Suggest trying to avoid restating the components of the alternatives in each section to minimize the chance of inconsistencies.
-The structure of the draft Chapter is very repetitive. We suggest that it needs to be reorganized so that for each impact topic, there is a description of the No Action Alternative, then a description of the general changes anticipated under the Action Alternatives, then a description of how the impacts differ among the Action Alternatives. Most, if not all, of the quantitative information and differences should be presented in summary tables and maps with clearly written narrative to explain those tables/maps. This could greatly shorten and improve the clarity of the text. e.g. section 4.4.3
-The current draft has suggestions for adaptive management and mitigation mixed into the impact analysis; e.g. section 4.3.3.1. As noted above, the Chapter should be restructured so that for each impact topic, there is:
-No Action
-General Changes under All Action Alternatives
-Differences in Impacts among the Action Alternatives, where applicable, with an emphasis on tables, maps, and graphics to present the differences
-Summary of Impacts (beneficial and adverse) – an opportunity to highlight the main differences, but separate from the significance discussion (which is TBD).
-Brief description of mitigation measures for any adverse impacts (with reference to Adaptive Management Appendix for details)
-The sections describing Assumptions and Methods for each impact topic are all different and frequently wander off topic. Some cite lots of background studies, other describe boilerplate methods or begin to discuss impacts and other non-related topics. These sections should describe that actual methods that LBG used to do the analysis for that impact topic. (e.g. section 4.4.1.2 lines 32-21)
Introduction:
-The Introduction describes (in Section 4.1.1.4) the types of impacts that will be used in the analysis (short-term, intermediate, long-term, direct, indirect, etc) but these terms or classifications are not applied anywhere else in the Chapter. This appears to be “boilerplate” that is not the real method used in the analysis.
-The definition proposed for “Adverse impact” (“A change in the resource indicating the resource condition is moving away from tidal marsh habitat or toward freshwater conditions”) makes sense only for ecological topics. Most adverse impacts for the Herring River project would typically be flooding impacts to properties, loss of rare species habitat, direct alteration of wetlands (i.e. filling), etc. We need a different definition for secondary effects such as these.
Water Quality and Sediment
-Note that the title should be Water Quality and Sediment, not Water and Sediment Quality.
-The references to the Alternatives are all mixed up in this section, which makes it very confusing to read. (see pp 15-19 and 30-31). This problem could be addressed by reorganizing the text as suggested above.
-The Introductory section needs to explain how the water quality parameters interrelate instead of attempting to address each parameter separately. The text should “tell the story” of the geochemical interactions in drained and water-logged peat (e.g. oxidized peat, creation sulfuric acid, lowered pH, leaching of metals, etc.) and how re-saturation and re-salinization of peat will reverse these affects. Most of the water quality parameters should be combined and described as components of a geochemical process, not as separate elements.
-The Sediment section was prepared before LBG had Woods Hole Group's (WHG) final sediment report. This section needs to rewritten using the WHG Report. The Committee suggested that key sections of the WHG Sediment Report be used verbatim in Chapter 4 as it provides a much clearer explanation of sediment processes. The full WHG Report should be referenced and included in the EIS/EIR Appendix.
Wetland Habitats and Vegetation:
-The narrative in this section is long, dense, and difficult to follow. It also contains unrelated information (e.g. p. 44 lines 7-16). There is a lot of quantitative information that is embedded in long narrative paragraphs. This information may be better presented in tabular format, following the general outline structure described above. Again, the comparative data should be presented in tables and maps when possible, with written narrative to explain those graphics.
-The Committee does not agree with the way LBG has calculated acres restored in this section. For example, on p. 38, LBG states: “With the implementation of alternative B, relatively high saline waters associated with mean spring tides would encompass 92% of the 163-acre Lower Herring River sub-basin (150 acres for both alternatives B1 and B2). The total amount of anticipated tidal habitat restoration within this sub-basin is 108 acres or 66% as 42 acres as currently either sub-tidal habitat or salt marsh and therefore would remain as similar estuarine habitats following restoration.” The Committee agreed that the 42 acres that is currently sub-tidal habitat or salt marsh should be counted as part of the restored acreage. Just because the vegetation type would not change does not mean that
ecological conditions would not be improved with restoration of tidal flow.
-The habitat categories that were developed for Chapter 3 (sub-tidal, inter-tidal, transitional, etc.) have not been used to describe the anticipated vegetation changes in Chapter 4. This section needs to be rewritten to be consistent with that approach.
-The bar charts used to describe vegetation change (pp. 59-63) are hard to understand-and not very meaningful. Maps, formatted as previously suggested by the HRRC, would be a more understandable way to present the vegetation changes.
-The Committee noted that the MHWS benchmark cannot necessarily serve as a surrogate for vegetative change, since there would be a gradient in salinity levels from the lower to upper reaches of the estuary. The modeling data indicate there will be freshwater tidal areas. The text of Chapter 4 needs to acknowledge this and describe the expected salinity gradient within the area of inundation. In the draft version, the text under every sub-basin includes “…relatively high saline waters…” which is absolutely not true and not supported by modeling data.
-Temporary and permanent direct wetland impacts (from construction of dikes, roads, golf course changes, etc. ) need to quantified. We will provide a spreadsheet to identify the information sources and approach for quantifying these direct (construction-related) impacts. This analysis is necessary for the Wetland SOF, MEPA wetland compliance, and for the discussion of construction impacts in Ch 4.
-The Vegetation section also needs to discuss vegetation management and related impacts to wetlands.
Aquatic Species
-This section is generally well-written but needs to be reorganized to follow the format described above and LBG needs to make sure that the most up-to-date data has been used in the analysis.
-There should be more information included regarding the American eel.
-Table 4.3 on p. 70 should include totals for each of the habitat types.
Rare, Threatened and Endangered Species
-This section needs an introduction that presents the species that could be affected-and that explains the consultation process with state officials.
-The analysis of northern harrier nesting focuses on the whole system instead of analyzing impacts in the specific locations where nests exist.
-The water willow stem borer analysis should cite the Mello report through-out.
Terrestrial Wildlife
-The Committee questioned whether the Migratory Bird Treaty of 1918 has any real relevance to this project.
-The language used to describe birds is inconsistent and confusing: The terms water-birds, shore-birds, water-fowl are not all the same thing.
Cultural Resources
-Bill Burke will provide comments on the Cultural Resources analysis. Once again, need to make sure that the agreed-upon changes in Chapter 3 are reflected in the Chapter 4 analysis.
Socioeconomics
-The section on Properties in the Historic Floodplain should be rewritten using Tim Smith's draft Low-Lying Properties Report as the template. The section should not identify specific properties but should describe the method of analysis, the categories of impact and the resulting numbers.
-The discussion of visitor experience and public access should acknowledge that the project will improve boating quality on the river by allowing for easier passage in areas now choked with vegetation, even of the points of access remain unchanged.
-Like for each other impact topic above, there should be a summary of impacts and a section describing mitigation options for shellfish impacts and low-lying properties. The text should note that the HRRC would be working individually with affected property owners to address their issues.
Tim Smith agreed to compile any detailed comments that Committee members have and provide them to LBG with this summary overview.
DEIS/EIR Chapter 5 Outline: Regulatory/Permitting Strategy: The Committee discussed the outline of Chapter 5 that LBG developed. The group agreed that this section needs to include a discussion of the approach to a streamlined and coordinated permitting strategy that HRRC wishes to pursue. The regulatory strategy that HRRC has discussed with the Technical Working Group (TWG) relies on the Adaptive Management Plan; it might make sense to describe the Adaptive Management approach first, then describe the required permits. The project proponents (Towns, NPS) would seek to structure the state, federal and regional permits to anticipate changes in management over time, by setting up a Management/Oversight Committee to review Adaptive Management decisions. The public would have the opportunity to
comment on this approach as part of the NEPA/MEPA review.
Hunt Durey noted that the MEPA scope requires that the EIS/EIR describe state permits and how the project will comply with applicable performance standards or where regulatory flexibility will be requested. He noted that HRRC had received some guidance from Holly Johnson of MEPA about how to address the DEP variance requirements (see attached email dated October 25, 2011). Margo Fenn has asked for concurrence from DEP on this issue but has not yet gotten a response.
The Committee discussed what kinds of engineering plans would be needed for the DEIS/EIR and agreed that all of the available design plans (for the dikes, roads, golf course, etc.) should be included in a technical appendix. The group also discussed the level of detail needed to determine wetland impacts. To the greatest extent possible, using available plans, wetland impacts of each of the Project Action Alternatives need to be quantified.
The Committee also noted that the table in Chapter 1 that cross-references that MEPA scope requirements with the DEIS/EIR sections and pages would need to be updated, after Chapter 4 is revised and Chapter 5 is completed. This table should include all the items listed in the MEPA scope plus those items listed in the Cape Cod Commission's October 23, 2008 comment letter and Attachment A (these items were included in the MEPA Scope by reference).
The Committee discussed which parts of Chapter 5 should be prepared by LBG and which parts HRRC needs to draft. Tim Smith agreed to draft the Adaptive Management section and a description of the proposed regulatory permitting strategy. LBG would be expected to complete the rest of the Chapter and the Appendices. Several Committee members noted that Appendices F and G (Statements of Findings for Floodplains and Wetlands) appear to require detailed analyses to complete.
Tim Smith agreed to draft the Adaptive Management Plan description and the proposed regulatory permitting strategy for inclusion in Chapter 5 of the DEIS/EIR. Margo Fenn offered check again with DEP regarding MEPA's guidance on wetlands variance requirements for the DEIS/EIR. Fenn and Smith plan to meet with CCC and LBG staff on November 15, 2011 to review procedures and options for Commission review of the project.
Documents Referenced in the Meeting:
Friends of Herring River MET Letter of Inquiry, October 13, 2011
Rubin and Rudman Legal Proposal, October 28, 2011
LBG Draft EIS/EIR Chapter 4, October 14, 2011
LBG Draft EIS/EIR Chapter 5 Outline
Attachment: Holly Johnson, October 25, 2011 Email:
Margo,
I’ve talked this over with other MEPA staff and I pulled the most recent project that we had that had a wetlands variance associated with it (South Coast Rail). Obviously, this is a development project instead of a wetland restoration project, but I think the general sentiment reflected in the excerpts I have pasted below indicate a willingness to accept a general discussion of how the project intends to meet the variance requirements as part of the DEIS/EIR. There is no expectation that the DEIS/EIR would include a final completed MassDEP variance application, or associated final plans. Therefore, for the upcoming DEIS/EIR submission, where available, design plans should be supplied to further support assumptions. The DEIS/EIR should discuss how the project intends to meet the MassDEP variance criteria. The
DEIS/EIR should strive to accurately describe how the project intends to meet the overriding public interest requirements and why the project cannot comply 310 CMR 10.21 through 10.60 (as applicable). Below are the excerpts from the South Coast Rail certificate on the DEIR/DEIS. I agree with delaying the final description of mitigation measures until the optimal alternative is selected (subsequent to the DEIS/EIR). However, in the upcoming DEIS/EIR you should outline potential proposed mitigation measures so that you could then receive comments on them from agencies during the comment period. This may help you narrow down the final mitigation plan that would be required as part of the FEIS/EIR. The goal here is to identify any fatal flaws in the project potentially not being able to meet the requirements.
“During preparation of the DEIR/DEIS and based on consultations with state and federal agencies, the MEPA Office agreed with the Proponent that, in the case of this project, it would be difficult to develop very detailed plans for mitigation until the alternatives analysis was complete and a single preferred alternative identified for further analysis in the FEIR. As outlined in the Scope below, detailed wetland mitigation plans are required in the FEIR as well as public outreach by MassDOT during preparation of the draft plans.” (pg.23, DEIR Certificate, EEA no. 14346, 6/29/2011)
“To demonstrate eligibility for a variance MassDOT must also propose mitigation measures that will allow the project to be conditioned to contribute to Wetland Protection Act interests. Mitigation measures will be required to off-set the project's direct, indirect, and cumulative impacts. The FEIR should describe specific mitigation measures that will directly mitigate wetlands impacts, improve wetland conditions and avoid future indirect and cumulative impacts.” (pg. 36, DEIR Certificate, EEA no. 14346, 6/29/2011)
“Additional Scope requirements related to stream crossings, trestle design and mitigation are outlined below, The analysis and design plans required should be at a sufficient level of detail to allow permitting agencies and other reviewers to fully understand the type and extent of environmental impacts, and to provide sufficient information for the detailed mitigation plan that will be included in the FEIR. If some of the information cannot be provided in the FEIR due to the level of design detail required, MassDOT should explain why this is the case, include a schedule for development of the information, and Mass DOT's best estimate of project impacts based on the information and analysis prepared for the FEIR. Mass.DOT should consult with the Interagency Coordinating Group during FEIR preparation to discuss any
aspects of the required analysis for which information may not be complete, and to obtain input from the group on the appropriate level of detail to include in the FEIR.” (pg. 38, DEIR Certificate, EEA no. 14346, 6/29/2011)
These are MEPA’s expectations for meeting the scope outlined in the ENF Certificate. I recommend double checking with Jim Sprague if this approach is consistent with MassDEP’s expectations at this point in the MEPA review process.
Let me know if you need further clarification,
Holly
________________________________________
Holly Johnson
Environmental Analyst, MEPA Office
Executive Office of Energy and Environmental Affairs
100 Cambridge Street, Suite 900| Boston, MA 02114(: 617-626-1023| 7: 617-626-1181 | * holly.s.johnson@state.ma.us__________________________________________________________
From: Margo Fenn [mailto:margofenn@gmail.com] Sent: Monday, October 24, 2011 12:32 PMTo: Johnson, Holly (EEA)Cc: Smith Tim P; Durey, Hunt (FWE)Subject: Info needed in EIR for DEP variance
Hi Holly: As you will recall, at the recent Herring River TWG meeting we discussed the MEPA Certificate for the Herring River Restoration Project. The Certificate stated that if the variance is required from DEP, the DEIS/EIR should provide the information required for a variance request. As you know, because of the nature and complexity of this project, full engineering plans for the different project elements will not be ready for inclusion in the DEIS/EIR. I wanted to see if you've had a chance to check with officials at MEPA to see what kinds of information would be needed to satisfy this requirement.
We want to make sure that the DEIS/EIR adequately addresses the MEPA scope, but some flexibility is needed to make this manageable. Let me know how you think it should be handled. Thanks-Margo Fenn
Respectfully submitted,
Hillary Greenberg-Lemos
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