HomeMy WebLinkAbout53 SE48_3115 ACRE Comment Letter 5_16_2019 RESEARCH AND ENGINEERING, INC.
Corporate Headquarters: 766 Falmouth Road, Suite A-1, Mashpee, MA 02649, (508) 539-3737
Gulf Coast Office: Executive Tower, 3500 North Causeway Boulevard, Suite 1480, Metairie, LA 70002
www.appliedcoastal.com
May 16, 2019
Emily Molden
Nantucket Land Council, Inc.
6 Ash Lane
Nantucket, MA 02554
Re: Discussion of the Notice of Intent Application for Expanded Baxter Road and Sconset Bluff
Storm Damage Prevention Project relative to “Gap” Lot and Wetlands Protection Act
The following discussion and comments focus on the comment letters submitted on behalf
of the Sconset Beach Preservation Fund (SBPF) regarding questions raised in the April 22, 2019
Conservation Commission Hearing, the application of the Wetland Protection Act (WPA), as well
as, the local bylaws. The discussion will also focus on the use of “Gap” lots and whether they are
permitted under the state and local bylaws.
During numerous hearings we have heard representatives from SBPF state the proposed
geotube expansion project meets the legal standards under the state and local bylaw and the
geotube system has been designed to protect the coastal bank’s ability to protect against storms.
While this may be true for the area directly behind the proposed structure, it absolutely does not
meet that criteria for resource areas that abut the structure. The beach directly in front of the
structure is affected by storm wave reflection off of the structure which scours out the beach face,
altering the form of the beach and decreasing the volume of the beach. This allows greater wave
energy to propagate landward increasing erosion in front of the project, but also immediately
adjacent to the structure. Under the WPA Coastal Beach regulations, 310 CMR 10.27(3), it states;
Any project on a coastal beach, except any project permitted under 310 CMR
10.30(3)(a), shall not have an adverse effect by increasing erosion, decreasing the
volume or changing the form of any such coastal beach or an adjacent or downdrift
coastal beach.
The applicant has shown that the existing geotube system and the proposed system will not be
able to meet the criteria under the WPA regulations for Coastal Beach, due to the reflection
characteristics of the geotube system altering the form of the beach and causing erosion.
The coastal bank area behind the existing geotube system has likely experienced no
erosion since it was installed, however, the coastal bank adjacent to the existing system has. The
regulations under the WPA are clear that coastal banks are significant to storm damage
prevention and the sediment supply from coastal banks is significant to storm damage prevention
and flood control that coastal beaches, coastal dunes and barrier beaches provide. The WPA
does provide an exemption for coastal engineering structures in 310 CMR 10.30(3) for buildings
constructed prior to August 10, 1978. The regulation specifically does not mention the protection
Page 2 of 4
of infrastructure. The provision immediately following (310 CMR 10.30(4)) the provision for
allowance of a coastal engineering structure sets the criteria that structures must meet:
Any project on a coastal bank or within 100 feet landward of the top of a coastal
bank, other than a structure permitted by 310 CMR 10.30(3), shall not have an
adverse effect due to wave action on the movement of sediment from the coastal
bank to coastal beaches or land subject to tidal action.
SBPF’s monitoring report data clearly shows that since the existing structure was constructed that
the rate of annual erosion has increased along the coastal bank (Figure 1). The loss of sediment
due to the geotube system and underperforming mitigation protocol has had a direct adverse
impact due to the structure. The proposal to expand the structure will only intensify the erosional
pressures on the adjoining bank.
Figure 1. Shoreline change plot utilizing data from the 77th and 78th Southeast Nantucket Beach
Monitoring Report, dated September 2018 and March 2019, respectively. This figure is a
representation of Figure 3 within the monitoring report; however, it is presented in a different
format to assist the reader in visualizing the shoreline changes pre- and post-geotube
installation. The perspective is that you are looking at the shoreline (x-axis) from the ocean.
South is to the left, north is to the right. The average rate of shoreline retreat (erosion of land)
is plotted above the x-axis (negative y-axis values toward the top) while the average rate of
shoreline advance (beach expansion toward the ocean) is plotted below the x-axis (positive y-
axis values toward the bottom). The solid red line represents the annual erosion rate after the
geotubes were installed to the Fall of 2018. The red dashed line represents the annual erosion
rate after the geotubes were installed to the Winter of 2018. The blue line shows the annual
erosion prior to the installation of the geotubes.
The data presented in Figure 1 is also significant relative to the Applicant’s representation
of the compensatory mitigation calculations. The reduction in mitigation volumes relative to the
existing projects is certainly not reflective of the increased erosion occurring along the coastal
bank. As has been discussed at length during the hearings, the selection of time-periods used to
Page 3 of 4
determine the mitigation volume artificially reduces the volumes required and will result in a
significant impact along the adjoining coastal beach and coastal bank. The data used does not
meet the guidance set forth by MassDEP or MCZM.
The May 14 letter from Rubin and Rudman, LLP asks the Nantucket Conservation
Commission to be consistent with the approval of “Phase I” (the existing geotube project) since
there is no significant difference between “Phase 2” (the proposed expanded geotube project)
and “Phase 1”. The changes to the mitigation protocols alone represent a significant variation
from the initial project. The Applicant is reducing the required mitigation volume by a factor of
three. The project monitoring data submitted by the Applicant shows that annual erosion rates
have increased since the installation of “Phase 1” and should be reflected in the mitigation volume
calculations by increasing the volume rather than reducing the required volume of sediment. The
assertion that “Phase 1” was permitted in the similar manner and thus applicable to “Phase 2”
neglects the history of the project. “Phase 1” was allowed under an emergency permit, then
denied, and finally approved once the Town of Nantucket did not provide support for the
Conservation Commission to defend the Order of Conditions when it was appealed.
Applied Coastal has also contacted Jim Mahala, MassDEP Section Chief of the Wetlands
and Waterways staff for the Southeast Regional Office (“SERO”). The information Mr. Mahala
provide to both Applied Coastal and Epsilon is the same or similar in many instances, but with a
few significant differences which will be highlighted. MassDEP has not issued any written
guidance on gap lot projects. Mr. Mahala also indicated there have been no adjudicatory decisions
regarding the gap lots relative to the WPA.
There have been cases where local Conservation Commissions have approved Order of
Conditions that have allowed coastal engineering structures on “gap” lots, in addition to the cases
where MassDEP regional offices have issued Superseding Order of Conditions approving “gap
lots”. However, Nantucket’s Town Council and Mr. Mahala have stated that those Order of
Conditions do not set legal precedence relative to the WPA because they have not been reviewed
within the legal frame work of the WPA.
In discussing the thought process that went into MassDEP approving the Emergency
Permit as well as the Order of Conditions for the Existing project, Mr. Mahala suggested that it
was a difficult process for MassDEP due length of time the Town of Nantucket would need to
relocate access along the northern end of Baxter Road. MassDEP viewed the project as a
temporary measure to provide the Town time to address the issues associated with the roadway,
and the decision to allow the geotube structure across the “gap” lots was appealable since they
are not provided for in the WPA. Therefore, the Conservation Commission should not feel bound
by precedence implied by the Applicant’s representatives. MassDEP’s recent decision to appeal
an Order of Conditions issued by the Town of Plymouth’s Conservation Commission for a “gap”
lot located on a high coastal bank (similar to Sconset) highlights that the use of “gap” lots between
pre-1978 buildings is not applicable under the WPA. MassDEP has made the applicant in the
Plymouth case use soft erosion measures (coir envelopes, the same erosion measures currently
being employed along Sconset Beach by numerous homeowners) across the “gap” lot.
The proposed project is not a simple expansion of the existing project, the changes to
mitigation protocols and lack of accounting for increased erosion in the mitigation plan represents
significant departures from the existing project. The Applicants data highlights that the existing
Page 4 of 4
project is having adverse impacts to the resource areas and the expansion of the project would
also not meet the WPA regulations.
Thank you,
Trey Ruthven