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HomeMy WebLinkAbout62 SE48_3115 SBPF 59_119 Baxter Road Denial FindingsSiasconset Beach Preservation Fund, SE48-3115; 59-119 Baxter Road DENIAL Massachusetts Wetlands Protection Act (MGL Chapter 131, Section 40) Town of Nantucket Wetlands Bylaw (Chapter 136) Address: 59-119 Baxter Road and Assessor’s Map and Parcels: See attached list Property Owner: Town of Nantucket/see attached list Applicant: Siasconset Beach Preservation Fund, Inc. DEP File Number: SE48-3115 Filing Date: January 5, 2018 Date Hearing Closed: May 20, 2019 Date Orders Issued: June 17, 2019 Plan of Record Information: Expanded Baxter Road and Sconset Bluff Storm Damage Prevention Project Permit Drawings (6 sheets), dated 2019-01-10 and stamped by Gordon G. Thomson, P.E. Permit Overview: This order denies a permit to construct and maintain a four tier geotube system and returns with sand nourishment, and the replanting of the bank face on a Coastal Bank, Coastal Beach, Coastal Dune and Land Subject to Coastal Storm Flowage. Project Proposal: The Order of Conditions is based on information submitted in the Notice of Intent dated January 5, 2018, its attachments and the plan of record, “Expanded Baxter Road and Sconset Bluff Storm Damage Prevention Project Permit Drawings (6 sheets), dated 2019- 01-10 and stamped by Gordon G. Thompson, P.E. The Commission also considered and relied upon other pertinent supplemental information including and not limited to: (I will insert an administrative record) Findings: 1. The Commission finds that areas subject to regulation are land under the ocean coastal beach, coastal dune, coastal bank, land subject to coastal storm flowage and their associated buffer zones. 2. The Commission finds that the property is partially located within Priority Habitat of Rare Species or Estimated Habitat of Rare Wildlife as defined by the Massachusetts Natural Heritage and Endangered Species Program. 3. The Commission finds that the geotube system is a coastal engineering structure. The following findings pertain to the Commonwealth of Massachusetts Wetlands Protection Act (MGL Chapter 131 Section 40) 4. The Commission finds that land under the ocean is determined to be significant to the protection of marine fisheries, protection of wildlife habitat, storm damage prevention and flood control. 5. The Commission finds that coastal beach is determined to be significant to storm damage prevention, flood control and protection of wildlife habitat. 6. The Commission finds that the coastal dune is significant to storm damage prevention, flood control and the protection of wildlife habitat. Siasconset Beach Preservation Fund, SE48-3115; 59-119 Baxter Road 7. The commission finds that the coastal bank is determined to be significant to storm damage prevention and flood control because it supplies sediment to the coastal beach. 8. The Commission finds that the coastal bank is determined to be significant to storm damage prevention and flood control because it is a vertical buffer to storm waters 9. The Commission finds that the applicant has not met the burden of proof to demonstrate compliance with 310 CMR 10.25 (5) that projects not included in 310 CMR 10.25(3) or 10.25 (4) which affect nearshore areas of land under the ocean shall not cause adverse effects by altering the bottom topography so as to increase storm damage or erosion of coastal beaches, coastal banks, coastal dunes, or salt marshes. 10. The Commission finds that the applicant has not met the burden of proof to demonstrate compliance with 310 CMR 10.25 (6) that projects not included in 310 CMR 10.25(3) which affect land under the ocean shall if water-dependent be designed and constructed, using best available measures, so as to minimize adverse effects, and if non-water-dependent, have no adverse effects, on marine fisheries habitat or wildlife habitat caused by: (a) alterations in water circulation; (c) alterations in the distribution of sediment grain size; (d) changes in water quality, including, but not limited to, other than natural fluctuations in the level of dissolved oxygen, temperature or turbidity, or the addition of pollutants. 11. The Commission finds that the applicant has not met the burden of proof to demonstrate compliance with 310 CMR 10.27 (3) that 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. 12. The Commission finds that the applicant has not met the burden of proof to demonstrate compliance with 310 CMR 10.28 (3) that any alteration of, or structure on, a coastal dune or within 100 feet of a coastal dune shall not have an adverse effect on the coastal dune by: a. Affecting the ability of waves to remove sand from the dune; b. Disturbing the vegetative cover so as to destabilize the dune; c. Causing any modification of the dune form that would increase the potential for storm or flood damage; d. Interfering with the landward or lateral movement of the dune; e. Causing removal of the sand from the dune artificially; or f. Interfering with mapped or otherwise identified nesting habitat 13. The Commission finds that the applicant has not met the burden of proof to demonstrate compliance with 310 CMR 10.30 (3) that no new bulkhead, revetment, seawall, groin or other coastal engineering structure shall be permitted on such a coastal bank except that such a coastal engineering structure shall be permitted when required to prevent storm damage to buildings constructed prior to the effective date of 310 CMR 10.21 through 10.37 (August 10, 1978), including reconstructions of such buildings subsequent to the effective date of 310 CMR 10.21 through 10.37, provided that the following requirements are met: a. A coastal engineering structure or a modification thereto shall be designed and constructed as to minimize, using best available measures, adverse effects on adjacent or nearby coastal beaches due to changes in wave action, and Siasconset Beach Preservation Fund, SE48-3115; 59-119 Baxter Road b. The applicant demonstrates that no method of protecting the building other than the proposed coastal engineering structure is feasible. c. Protective planting designed to reduce erosion may be permitted. 14. The Commission finds that the applicant has not met the burden of proof to demonstrate compliance with 310 CMR 10.30 (4) that 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. 15. The Commission finds that the applicant has not met the burden of proof to demonstrate compliance with 310 CMR 10.30 (6) that any project on such a coastal bank or within 100 feet landward of the top of such coastal bank shall have no adverse effects on the stability of the coastal bank. 16. The Commission finds that the applicant has not met the burden of proof to demonstrate compliance with 310 CMR 10.30 (7) that bulkheads, revetments, seawalls, groins or other coastal engineering structures may be permitted on such a coastal bank except when such bank is significant to storm damage prevention or flood control because it supplies sediment to coastal beaches, coastal dunes and barrier beaches. The following findings pertain to the Town of Nantucket Wetlands Protection Bylaw (Chapter 136) 17. The Commission finds that the coastal beach is significant to the protection of the following interests: flood control, erosion control, storm damage prevention, fisheries, shellfish, wildlife, recreation and wetland scenic views. 18. The Commission finds that the coastal dune is significant to the protection of the following interests: flood control, erosion control, storm damage prevention, prevention of pollution, wildlife, and wetland scenic views. 19. The Commission finds that the coastal bank is significant to the protection of the following interests: flood control, erosion control, storm damage prevention, wildlife, and wetland scenic views. 20. The Commission finds that land subject to coastal storm flowage is significant to the protection of the following interests: flood control, erosion control, storm damage prevention, water quality, erosion and sediment control, and wildlife. 21. Pursuant to Section 2.02B(1) of the Nantucket Wetlands Protection Regulations the provisions of Section 2.01B(1-8)(Land Under the Ocean) shall apply to coastal beaches and tidal flats. Therefore the Commission finds that the applicant has not met the burden of proof to demonstrate compliance with Section 2.01B(7) that no new bulkheads or coastal engineering structures shall be permitted to protect structures constructed or substantially improved after 8/78. Bulkheads may be rebuilt only if the Commission determines there is no environmentally better way to control an erosion problem, including in appropriate cases the moving of the threatened building. Other coastal engineering structures may be permitted only upon a clear showing that no other alternative exists to protect a structure built prior to 9/78, but not substantially improved, from imminent danger. 22. Pursuant to Section 2.02B(1) of the Nantucket Wetlands Protection Regulations the provisions of Section 2.01B(1-8)(Land Under the Ocean) shall apply to coastal beaches and tidal flats. Therefore the Commission finds that the applicant Siasconset Beach Preservation Fund, SE48-3115; 59-119 Baxter Road has not met the burden of proof to demonstrate compliance with Section 2.01B(8) that water dependent projects shall be designed and performed so as to cause no adverse effects on wildlife, erosion control, marine fisheries, shellfish beds, storm damage prevention, flood control and recreation. 23. The Commission finds that the applicant has not met the burden of proof to demonstrate compliance with Section 2.02B(2) that new bulkheads or coastal engineering structures shall be permitted to protect structures constructed, or substantially improved, after 8/78. Bulkheads may be rebuilt only if the Commission determines there is no environmentally better way to control an erosion problem, including in appropriate cases the moving of the threatened building. Other coastal engineering structures may be permitted only upon a clear showing that no other alternative exists to protect a structure built prior to 9/78, but not substantially improved, from imminent danger. 24. The Commission finds that the applicant has not met the burden of proof to demonstrate compliance with Section 2.02B(4) that clean fill of compatible grain size may be used on a Coastal Beach but not on a Tidal Flat, only if the Commission authorizes its use, and only if such fill is to be used for a beach or dune nourishment project. All possible mitigation measures shall be taken, as determined by the Commission, to limit the adverse effects of the fill. 25. The Commission finds that the applicant has not met the burden of proof to demonstrate compliance with Section 2.03(B)(1) that no coastal revetments or coastal engineering structure of any type shall be constructed, rebuilt or repaired. 26. The Commission finds that the applicant has not met the burden of proof to demonstrate compliance with Section 2.03(B)(3) that no excavation or disturbance of vegetative cover shall be allowed on a coastal dune unless the area is completely restored, replanted and stabilized to its original form and volume. 27. The Commission finds that the applicant has not met the burden of proof to demonstrate compliance with Section 2.03(B)(4) that fill may be used only if the Commission authorizes its use and only if such fill is to be used for beach and dune nourishment projects. 28. The Commission finds that the applicant has not met the burden of proof to demonstrate compliance with Section 2.03(B)(6) that any activity allowed on a coastal dune or within 100 feet of a coastal dune shall be restricted to such activity that is determined by the Commission not to have any adverse effect on the dune by altering the ability of wind or waves to remove sand from or deposit sand on a dune; by disturbing vegetative cover in a manner sufficient to destabilize the dune; by causing any modification of the dune form and slope which would increase the potential for erosion, storm flood damage; by interfering with landward or lateral movement of the dune; or by causing the rate of sand removal to increase through man-made means or structures. 29. The Commission finds that the applicant has not met the burden of proof to demonstrate compliance with Section 2.05B(1) that new bulkheads or coastal engineering structures shall be permitted to protect structures constructed, or substantially improved, after 8/78 except for public infrastructures. Bulkheads and groins may be rebuilt only if the Commission determines there is no environmentally better way to control an erosion problem, including in appropriate cases the moving of the threatened buildings and/or public infrastructure. Other coastal engineering structures may be permitted only upon a clear showing that no other alternative exists to protect a structure that has not Siasconset Beach Preservation Fund, SE48-3115; 59-119 Baxter Road been substantially improved or public infrastructure built prior to 9/78, from imminent danger. 30. The Commission finds that the applicant has not met the burden of proof to demonstrate compliance with Section 2.05B(3) that all projects shall be restricted to an activity as determined by the Commission to have no adverse effect on bank height, bank stability, wildlife habitat, vegetation, wetland scenic view or the use of a bank as a sediment source. 31. The Commission finds that the applicant has not met the burden of proof to demonstrate compliance with Section 2.10B(1) that the work shall not reduce the ability of the land to absorb and contain flood waters, or to buffer inland areas from flooding and wave damage. Therefore, based on the referenced findings, the Nantucket Conservation Commission DENIES the project SE48-3115 for the Siasconset Beach Preservation Fund at 59-119 Baxter Road pursuant to the Massachusetts Wetlands Protection Act (MGL Chapter 131§40), Massachusetts Wetlands Protection Regulations (310CMR 10.00), the Town of Nantucket Wetlands Protection Bylaw (Chapter 136) and the Town of Nantucket Wetlands Protection Regulations. The Commission finds that the given information, historical site conditions and current site conditions that no conditions can be set for the project as proposed that would adequately protect the wetland resources and wetland interests protected by the Massachusetts Wetlands Protection Act and the Town of Nantucket Wetlands Protection Bylaw. Further the Commission finds that the applicant has not met the burden of proof required for the Nantucket Conservation Commission to grant a permit.