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Home My WebLink About61 SE48_3115 SBPF Response to NLC Comments 05_20_19 PRINCIPALS Theodore A Barten, PE Margaret B Briggs Dale T Raczynski, PE Cindy Schlessinger Lester B Smith, Jr Robert D O’Neal, CCM, INCE Andrew D Magee Michael D Howard, PWS Douglas J Kelleher AJ Jablonowski, PE Stephen H Slocomb, PE David E Hewett, LEED AP Dwight R Dunk, LPD David C Klinch, PWS, PMP Maria B Hartnett ASSOCIATES Richard M Lampeter, INCE Geoff Starsiak, LEED AP BD+C Marc Bergeron, PWS, CWS 3 Mill & Main Place, Suite 250 Maynard, MA 01754 www.epsilonassociates.com 978 897 7100 FAX 978 897 0099 21597/2018/Expanded Project/NOI/Public Hearing Comments May 20, 2019 Nantucket Conservation Commission Via Electronic Mail and U.S. Mail 2 Bathing Beach Road Nantucket, MA 02554 Subject: Response to Written Comments from NLC and ACRE on the Expanded Baxter Road and Sconset Bluff Storm Damage Prevention Project (DEP File No. SE 48-3115) Dear Commission Members: On behalf of the Siasconset Beach Preservation Fund (“SBPF”), Epsilon Associates, Inc. (“Epsilon”) submits this response to written comments submitted by the Nantucket Land Council (“NLC”) and Applied Coastal Research & Engineering, Inc. (“ACRE”) submitted to the Nantucket Conservation Commission (“Commission”) on May 16, 2019 for the Expanded Baxter Road and Sconset Bluff Storm Damage Prevention Project (“Expanded Project”). NANTUCKET LAND COUNCIL COMMENTS Gap Lot Eligibility There are no regulations allowing the protection of “gap lots,”there are no adjudicatory rulings on gap lots, and an Order of Conditions (“OOC”) or even a Superseding Order of Conditions (“SOC”) have no standing relative to case law. The DEP reviews every project ona case-by case basis. The SBPF reported there is no written guidance or adjudicatory decisions on “gap lots,” and we concur that every “gap project” is reviewed on a case-by-case basis. However, until an adjudicatory decision is made, then a decision not to appeal an OOC, or to issue an SOC is used as precedent by, and guidance for, MassDEP staff when reviewing Notice of Intents and OOCs. It likewise serves as precedent and guidance for Conservation Commissions. Plymouth Example Nantucket Conservation Commission 2 Re: DEP File No. SE 48-3115 May 20, 2019 The 326 foot gap across lots containing a post-1978 dwelling led to the appeal by MassDEP. The gaps along the Expanded Project are across vacant lots and are needed to ensure there is a continuous geotube project to protect the abutting pre- 1978 dwellings along Baxter Road. These gaps are consistent with the SOC (SE48- 2610) and subsequent OOC (SE48-2824) issued for the Phase 1 Project that allowed construction of the existing geotube project across vacant parcels 87, 91, 101 and 105 Baxter Road. Lack of Immanent Danger - The applicant has not demonstrated that the pre-1978 buildings within the project area are Please see the Figures 1 – 4 in Attachment 2 to the November 16, 2018 correspondence to the Commission. Those figures show the distances of dwellings from the top of Coastal Bank and evaluation of the Coastal Bank shows portions of the Coastal Bank that are un-vegetate and exhibiting rill erosion, and areas of slope failure. These slope conditions put dwellings in imminent danger to loss or damage from Coastal Bank erosion. There are Reasonable Alternatives See pages 10 and 11 of the response to comments dated May 16, 2019. The Proposal will Cause Adverse Impacts This has been asserted numerous times and answered numerous times throughout this Pubic Hearing process. See the most recent response to comments dated May 16, 2019 that review monitoring data which shows there have been no adverse impacts caused by the Existing Project. Construction of the geotube array on the Coastal Beach is allowed pursuant to 310 CMR 10.27 – Coastal Beach. Advancing this project is an iterative process and the SBPF will secure a long-term source of sand for the Expanded Project once this project is approved. For the immediate timeframe, there are adequate on island and off island sand sources to construction and maintain the template until the long-term sand source is secured. SBPF will continue to notify the Commission of the sand sources and provide sieve analyses documenting the sand used on the template is compatible with sand on the adjacent beach. Nantucket Conservation Commission 3 Re: DEP File No. SE 48-3115 May 20, 2019 There are no possible conditions that could be imposed that would protect the wetland resources protected by the Bylaw and the WPA The Special Conditions included in the MassDEP SOC (SE48-2610) and the OOC (SE48-2824) have proven to be effective at protecting adjacent Wetland Resources. APPLIED COASTAL RESEARCH & ENGINEERING, INC. COMMENTS 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. This has been discussed during the hearing process, most notably during the February 11, 2019 Public Hearing. As discussed the beach along the Siasconset Coast does not exhibit seasonal changes, i.e. winter and summer beach forms, rather it responds to storms during which the beach lowers and it is then re- nourished to pre-storm conditions from sand conveyed in the littoral system. As exhibited in monitoring data (see May 16, 2019 correspondence) there has been no long-term loss of beach, rather some modest beach accretion has been observed along and immediately adjacent to the geotube system. Mr. Bermann noted that wave reflection may occur in front of the geotubes during storms, however that scour is refilled as the beach is re-nourished from the littoral system and from geotube maintenance. Mr. Berman also commented that erosion at the returns may extend tens of feet from the geotube system. Again that is managed and refilled during sand template management. Monitoring data shows that the annual rate erosion has increased since the existing geotube system was installed. This assertion has been refuted with SBPF monitoring data numerous times. See correspondence dated November 2, 2018, November 30, 2018, January 4, 2019, March 1, 2019 and May 16, 2019; and Public Hearing Presentation dated November 5, 2018. Nantucket Conservation Commission 4 Re: DEP File No. SE 48-3115 May 20, 2019 ACRE asserts the Expanded Project proposes a reduced sand mitigation volume. This was discussed throughout the Public Hearing process and the proposed management is documented in the Template Sand Replenishment Protocol (see Attachment 1 to the November 2, 2018 correspondence). In summary it involves providing 22 cy of sand per lf of template at the start of each storm season by refilling it to replace the sand volume eroded off the template during the previous storm season. This is not a reduction. Not appealing an OOC and issuing an SOC is not a legal precedent. We agree that an adjudicatory decision establishes a legal precedent. For matters that have not yet been adjudicated, then a decision not to appeal an OOC by the MassDEP or when an SOC is issued by the MassDEP, then those decisions serve as a precedent to MassDEP staff and Conservation Commissions until an adjudicatory decision is issued. Gap projects are one example were there are no adjudicatory decisions and thus MassDEP and Conservation Commissions must rely on prior actions by the Department when making case-by-case permit decisions. The previous decisions on the Existing Project were not appealed, i.e. the reasoning in the SOC allowed the construction across the vacant parcels 87, 91, 101 and 105 Baxter Road to “directly protect Baxter Road (and essential public utilities)” [SOC SE48-2610, page 2] and no parties appealed the SOC to challenge that reasoning. Relative to the recent Plymouth project see our response to the NLC comment on this topic. The Expanded Project is not a simple extension of the Existing Project. The reality is, this is an extension to the Existing Project. Six years of monitoring and maintenance has led to the proposed pragmatic changes to sand template management, request to allow coir extensions to the system overtime as needed and recently authorized for the Existing Project, modifications to the monitoring program. The SBPF submitted preliminary draft special conditions (see Attachment 3 to the November 16, 2018 correspondence) which included the same failure criteria for the Expanded Project as are in place for the Existing Project. In closing, we have demonstrated throughout this Public Hearing process that: 1) the Expanded Project meets all applicable performance standards in the State and Local Regulations, 2) the Existing Project has not damaged adjacent properties, and 3) in fact the Existing Project continues to maintain adjacent Coastal Beaches consistent with the portions of the nearby natural unprotected bluff. For the Existing Nantucket Conservation Commission 5 Re: DEP File No. SE 48-3115 May 20, 2019 Project the Commission and MassDEP had to make a permitting decision based on science, and engineering design parameters. With 6 storm seasons worth of observations and data, the Commission can observe there have been no adverse effects to neighboring properties or adjacent Coastal Beaches, and the Commission therefore can make a permitting decision based on science, engineering design parameters and direct observation. We respectfully request that the Nantucket Conservation Commission close the Public Hearing and issue an Order of Conditions allowing the proposed Expanded Baxter Road and Sconset Bluff Storm Damage Prevention Project to be built, and establish pragmatic Special Conditions consistent with those issued for the Existing Project (SE48-2824) to protect the Interests of the Act and the By-law. Sincerely, EPSILON ASSOCIATES, INC. Dwight R. Dunk, LPD, PWS, BCES Principal cc: MassDEP-SERO J. Posner, SBPF A. Gasbarro, Nantucket Eng. & Survey S. Cohen, Cohen & Cohen Law, PC G. Wood, Rubin and Rudman, LLP G. Thomson, W.F. Baird & Assoc. L. Smith, Epsilon R. Hamilton, Woods Hole Group