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HomeMy WebLinkAboutSBPF SE48-2824 Draft Positive Order 9-28-2015 revisionSiasconset Beach Preservation Fund – Geotube Project, SE48-2824, 87-105 Baxter Road 1 DRAFT DATED 9/28/15 FINDINGS and ADDITIONAL CONDITIONS Massachusetts Wetlands Protection Act (MGL Chapter 131, Section 40) Town of Nantucket Wetlands Bylaw (Chapter 136) Address: 87-105 Baxter Road Assessor’s Map and Parcel: 48-8, 14, 14.1, 15, 17, 18, 19, 21, 22, 35 Property Owner: Town of Nantucket Applicant: Siasconset Beach Preservation Fund (SBPF) DEP File Number: SE 48-2824 Filing Date: 8/14/2015 Date Hearing Closed: 9/10/2015 Date Orders Issued: Plan of Record Information: Baxter Road Stabilization Project (2 Sheets), dated 3/12/2013, Final revision of 9/9/2015, stamped by Joseph R. Marrone, P.E. Permit Overview: This order is issued and permits the Project, being the ongoing maintenance of an existing three tiers of sand-filled geotubes along 87-105 Baxter Road, installation of a fourth tier of geotubes along lots 91, 93, 97 and 99, installation of smaller geotextile tubes as returns on the ends of the structure, planting of vegetation and ongoing maintenance, sand mitigation and nourishment on a Coastal Bank, Coastal Beach, Land Under the Ocean and Land Subject to Coastal Storm Flowage. A drainage system is permitted under this Order which is within the Coastal Bank its associated buffer zone and the buffer zone to a Bordering Vegetated Wetland. Project Proposal: The Order of Conditions is based on information submitted in the Notice of Intent dated 8/14/2015, its attachments, follow-up information submitted on behalf of SBPF to the Conservation Commission, and the plan of record. The Commission also considered and relied upon other pertinent supplemental information including and not limited to:  [Insert Administrative Record] Additional Findings: 1. The Commission finds that the areas subject to regulation are coastal beach, coastal bank, land subject to coastal storm flowage, land under the ocean, bordering vegetated wetland and their associated buffer zones. 2. The Commission finds that the property is not 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 coastal beach is determined to be significant to storm damage prevention, flood control and protection of wildlife habitat as defined by the Commonwealth of Massachusetts Wetlands Protection Act (MGL Chapter 131§40) as those definitions are made applicable to this Order of Conditions by section 1.02 of the Nantucket Wetlands Protection Regulations. Siasconset Beach Preservation Fund – Geotube Project, SE48-2824, 87-105 Baxter Road 2 4. The Commission finds that coastal bank is determined to be significant to storm damage prevention, and flood control because it supplies sediment to the coastal beach as defined by the Commonwealth of Massachusetts Wetlands Protection Act (MGL Chapter 131§40) as those definitions are made applicable to this Order of Conditions by section 1.02 of the Nantucket Wetlands Protection Regulations. 5. The Commission finds that coastal bank is determined to be significant to storm damage prevention, and flood control because it is a vertical buffer to storm waters as defined by the Commonwealth of Massachusetts Wetlands Protection Act (MGL Chapter 131§40) as those definitions are made applicable to this Order of Conditions by section 1.02 of the Nantucket Wetlands Protection Regulations. 6. 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 as defined by the Town of Nantucket Wetlands Protection Bylaw (Chapter 136). 7. 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 as defined by the Town of Nantucket Wetlands Protection Bylaw (Chapter 136). 8. The Commission finds that the land subject to coastal storm flowage is significant to the protection of the following interests: flood control, erosion control, storm damage prevention, wildlife, and water quality as defined by the Town of Nantucket Wetlands Protection Bylaw (Chapter 136). 9. The Commission recognizes this particular coastal beach and coastal bank exist in a highly dynamic coastal environment and that that coastal bank is comprised of mixed glacial till material with locally perched groundwater. 10. The Commission recognizes that the coastal bank is subject to significant erosion due to wave action, overland storm water erosion and groundwater flow/discharge. 11. The Commission finds that the presence of beach invertebrates and micro- organisms within the beach is essential to the function of the beach ecosystem. 12. The Commission finds that the Project is proposed to protect pre-1978 homes and essential public infrastructure providing access and utilities for such. 13. The Commission finds that the Project is water dependent because direct access to the coastal bank and coastal beach is required to achieve the purpose of the Project, which is to stabilize the coastal bank, provide erosion control, storm damage prevention and flood control, which cannot be done outside of the coastal bank and coastal beach resource areas.   14. The Commission finds that these dwellings and infrastructure are in danger, due to erosion of the coastal bank. 15. The Commission finds that the existing portion of this Project was undertaken as an emergency project to protect public health and safety, with the condition that the Applicant return to the Commission to seek an Order of Conditions after the emergency was abated. 16. Since a three-tier geotextile structure has already been in place for two winter storm seasons and MassDEP has found that it can be maintained so as to minimize adverse effects and to protected jurisdictional resource areas, the Commission finds that the Project should continue to be maintained and that Siasconset Beach Preservation Fund – Geotube Project, SE48-2824, 87-105 Baxter Road 3 regular monitoring and reporting will be necessary to determine the effectiveness of the project for this distinct project area. 17. Based on the following: a. The record presented, b. The proposed monitoring and mitigation plan, c. Certain findings by MassDEP in its Superseding Order of Conditions which is part of the record herein, d. The desire to impose performance standards and monitoring and mitigation protocols not otherwise available in an emergency order, e. The approval of the Project by MassDEP on a temporary basis, with significant mitigation and monitoring protocols, and with established failure criteria, f. That the continued control of the erosion in this location is currently necessary to abate the certified emergency, and that in this particular location, continued maintenance of this Project is warranted under the circumstances, as conditioned. 18. Therefore, the Commission finds that the Project can be expanded with returns and maintained, as provided, on a temporary basis, with conditions and controls specified in the conditions section below. In making the above finding, the Commission relies on the representation of the Applicant that, subject to receiving an appropriate Order of Conditions which is not appealed, the Applicant will not seek to expand the length or time of the Project approval, until after January 1, 2018, and that the construction of a longer length or longer term project shall not start until September 1, 2018, which will allow the Commission the opportunity to observe and assess the effectiveness and impacts of the Project for five storm seasons. The Commission will make its best efforts to review and decide such an application within 120 days. It is understood that the Applicant may apply for localized alterations to the Project as may be appropriate based on site conditions, and may apply for any alteration or expansion necessary to address any emergencies. In addition to the General Conditions contained elsewhere in this document, the Commission includes the following Special Conditions pursuant to the Town of Nantucket Wetlands Protection Bylaw, Chapter 136: 19. This order permits the continued maintenance of the existing 852 ± foot long 3- tier geotube structure along 87-105 Baxter Road and the installation of a fourth tier of geotubes across the existing system but limited to the area fronting along 91, 93, 97 and 99 Baxter Road. The applicant is also permitted to construct returns as described in the December 19, 2014 MassDEP Superseding Order of Conditions and as further modified in the plan of record dated 9/9/2015 and may also plant vegetation above the geotubes and returns, including the filling of gullies and rivulets as approved by the Conservation Commission on February 18, 2015. This Order approves the Geotubes as a temporary installation for a period of three years, with the option for the proponents to request an extension of the Siasconset Beach Preservation Fund – Geotube Project, SE48-2824, 87-105 Baxter Road 4 term for a maximum of three additional years in accordance with the provisions set out herein. 20. Notice of work commencement shall be given to the Nantucket Conservation Commission (“NCC” or the “Commission”) and the Massachusetts Department of Environmental Protection (“Department”) at least 48 hours prior to the commencement of work. 21. Prior to installation of the fourth tier of Geotubes on lots 91, 93, 97, 99 and returns, SBPF shall ascertain the width of the beach seaward of the existing Geotubes to determine whether there is sufficient beach width landward of mean high water (MHW) to conduct activities associated with the installation of the fourth tier and returns in accordance with the proposed construction methodology. In the event the beach is not sufficiently wide to allow Geotube installation in accordance with the proposed construction methodology, SBPF shall submit an alternative construction methodology for the Nantucket Conservation Commission and Department's review and approval. SBPF shall provide copies of such materials submitted to the Department to NCC. 22. Prior to installation of the fourth tier of Geotubes on lots 91, 93, 97, 99 and returns, SBPF shall mark the MHW line with surveyed stakes, obtain Global Positioning System (GPS) coordinates along the MHW line and shall maintain the stakes throughout the duration of construction. GPS coordinates shall be submitted to the Department and the NCC within 2 weeks of collection. 23. Any sand within the Geotubes or sand placed on top of the fourth tier shall not be considered to be part of the mitigation amount required yearly by the project. 24. The staked position of the MHW line shall serve as a limit of work throughout the duration of construction. No work is allowed seaward of the MHW line under this OOC. 25. All sand used for mitigation or to fill and cover the Geotubes shall be imported from an off-site source and shall be compatible with the existing bank and beach sediments. 26. As proposed, the sand-filled Geotube returns shall be installed in a manner to form closure between the existing Geotubes and the adjacent bluff without excavation into the coastal bank. All beach sand excavated to install the returns shall remain on the beach and shall be used to restore the beach following construction. 27. The ongoing beach monitoring/survey program currently conducted by the Woods Hole Group shall continue. The monitoring program shall be conducted on a quarterly basis for the first 3 years in order to timely identify beach impacts that may be attributable to the Geotubes and to assess whether the mitigation program is adequate. Beach profiles shall be taken on a quarterly basis along the 44 proposed profile lines. Beach profiles shall be taken from the toe of the coastal bank, coastal dune or Geotube seaward to the -5 foot MLW contour. Beach profile data and analysis shall be submitted to the Department and the NCC within 30 days of completion of the quarterly survey. Following 3 years of quarterly surveys, SBPF may request to amend the Order of Conditions to alter the monitoring program. 28. As proposed, offshore (bathymetric) profiles shall be taken each spring and fall. GPS locations shall be taken along each transect with the coordinates provided. Siasconset Beach Preservation Fund – Geotube Project, SE48-2824, 87-105 Baxter Road 5 These transects shall be reused for each survey to cover the same areas. Offshore profiles shall be taken out to the -25 foot to -35 foot MLW92 contour or 2,000 to 3,000 feet offshore, whichever is greater. The bathymetric survey transects shall overlap the beach profiles (no gaps) and the tide gage used during the survey shall be surveyed into the same datum as the beach profiles. Bathymetry profile data and analysis shall be submitted to the Department and NCC within 30 days of completion of the survey. Photographs and/or video shall be taken along the transects within the project area and the area directly adjacent to the project area. The underwater video shall be able to characterize the bottom sediments, species present and relative abundance including the calculating of the percent cobble where appropriate. 29. An annual assessment report summarizing the beach and bathymetric profile monitoring program, including habitat and substrate sampling, shall be submitted to the Department and the NCC each year. This report shall, at a minimum, provide an analysis of beach changes including volumetric changes between surveyed transects, assess location of the top of coastal bank and estimate bank retreat over the previous 12 months and calculate bank volume loss in the project area and 300 feet to the north and south. In addition, the report shall recommend any necessary changes to the beach nourishment program for the Conservation Commission’s review and approval. The report will also evaluate shoreline change within the area covered by the quarterly transects. 30. This annual report shall include presentation to the Commission at a regularly scheduled public meeting of the Commission to discuss the data included and what conditions and impacts are being seen as part of the project. 31. Post-Storm monitoring reports shall be submitted following all significant storms. A storm will be considered "significant" if there are sustained winds over 40 mph over at least a 6 hour period according to NOAA's National Climate Data Center, Nantucket Memorial Airport station. The post-storm monitoring report shall include, at a minimum, photo-documentation of the condition of the Geotubes and nourishment sand within the project area, estimate of the volume of sand lost from the sand template, estimate of the beach level in front of the Geotubes to determine if replenishment is needed, estimate of volume of sand (if necessary) and schedule for delivery, identification of the location of any exposed geotextile or of any repair required to the geotextile, and visual observation of the ends of the Geotubes to determine if flanking is occurring. Such reports shall be submitted to the Department and the NCC as soon as possible following all significant storms but no later than 7 days from the end of the storm. 32. Sand mitigation shall be at a rate of 22 cubic yards per linear foot (cy/lf) per year in accordance with the following schedule: a. Provide the required sand cover during and/or immediately following construction of the fourth tier and returns. Sand cover volume shall be in accordance with the following schedule. b. Annually in April: Provide additional sand and/or adjust the existing template to obtain a minimum two foot cover over the Geotubes to protect them from UV degradation. The volume of any sand placed in April shall be recorded and counted towards the annual 22 cy/If requirement. Siasconset Beach Preservation Fund – Geotube Project, SE48-2824, 87-105 Baxter Road 6 c. Annually in September-November: Place an additional volume of sand, to ensure a substantial portion of the sand template volume (10-15 cy/If) is available at the onset of the winter storm season. Throughout the winter, place additional sand on an as-needed basis, in accordance with the replenishment trigger in the Milone & MacBroom November 12, 2013 letter (i.e., if half the vertical height of the lowest Geotube is exposed, place a minimum of 2 cy/If). If the balance of the 22 cy/lf volume is not placed in its entirety before March 1, the balance of the sand will be placed by March 31. d. Delivery tickets from sand supplier shall be provided annually to the Department and the NCC to document the total volume of sand provided on a yearly basis. 33. If there is not adequate space to provide the entire mitigation volume within the project area footprint, then any remaining sand shall be placed in a berm at the toe of the coastal bank and landward of MHW within 300 feet of the ends of the Geotubes upon notice to the Commission demonstrating that placement within the project area is not possible. Any additional sand placed outside of the project area shall be equally distributed to the areas north and south of the project area. 34. Failure of SBPF to conduct the actions set out in subsections (a) to (f) herein shall constitute a project failure ("failure criteria") if not performed within the stipulated timeframes or within such other reasonable periods of time as determined by the Commission in the event of a delay in performance outside the control of SBPF, or if there are unmitigated adverse impacts from the project. The ”failure criteria" include: a. Failure to provide the sand mitigation as required herein. b. Failure to conduct the shoreline monitoring and post-storm monitoring as required herein. c. Failure to repair and/or replace damaged geotextile tubes in a timely manner. If repair or replacement cannot be accomplished within 30 days from the date of the damage, SBPF shall notify the Department and the NCC before 30 days have elapsed and provide a repair schedule for Department review and approval. d. Excessive loss in updrift or downdrift beach cross section that can be attributed to the project. If the quarterly monitoring program identifies excessive loss to the adjacent shoreline (compared to historical data) that may be attributable to the project, then SBPF shall provide notice to the Department and the NCC within 30 days of the completion of the quarterly survey. Upon such notice the procedures set forth in the SOC for such circumstances shall apply. e. Failure to maintain adequate beach width in front of the Bank. If the beach in the project area erodes so that the position of MHW migrates landward to the seaward edge of the second tier of geotextile tubes for any two consecutive quarterly surveys, then within 30 days of completion of the second quarterly survey SBPF shall provide notice to the Department and the NCC. f. Failure to maintain a walkable beach in front of the Geotubes. It shall be a failure if the beach on the seaward side of the coastal bank is not passable Siasconset Beach Preservation Fund – Geotube Project, SE48-2824, 87-105 Baxter Road 7 by foot and has narrowed by a greater percentage in comparison to the widths of nearby and adjacent beaches up-drift and down-drift, including those beaches in front of other forms of erosion control, for the majority of two consecutive quarters, considering storms, tides, and similar conditions. It is understood that the portion of the beach in front of the geotubes is by definition narrower than nearby unprotected beaches because the geotubes and the sand template covers the back of the beach. In calculating whether the beach has narrowed disproportionately the distance will be measured from Mean High Water to the natural toe of the bluff which in some locations is buried behind the erosion protection system. Upon such a failure SBPF, shall provide notice to the Department and the NCC within 30 days. g. Failure to maintain all required insurance, permits and licenses. h. Failure to meet reporting requirements or good faith effort to provide required reporting. 35. Should any of the failure criteria be met, the Applicant shall schedule an appearance before the Conservation Commission at its next available hearing. The Commission shall review the failure and determine how the Applicant shall act to address it. 36. In the event removal of the Geotubes is ordered, then the geotextile fabric shall be cut, removed and properly disposed of. Following removal of the geotextile fabric, sand from the Geotubes shall be spread along the beach landward of MHW. SBPF and the Town shall maintain the escrow fund in place as of the date of this OOC to ensure the availability of funds to pay for the removal of the Geotubes. Lack of adequate funds in the escrow account shall not negate SBPF's requirement for Geotube removal. 37. SBPF shall be responsible for the retrieval and proper disposal of all geotextile products associated with this project in the event wave action and erosion destroys or otherwise causes damage to the Geotube system. 38. This OOC approves the operation and connection of the previously installed coastal bank drainage system on 91 Baxter Road in accordance with the plan dated 9/9/2015. 39. As proposed, exposed areas on the face of the coastal bank, other than the upper 5-7 feet, may be stabilized using biodegradable erosion control blankets planted with beach grass and/or other indigenous coastal vegetation. The erosion control blankets and plantings shall be installed with hand tools with workers repelling down the bank face. 40. All construction refuse shall be removed from the site and disposed of in compliance with all local, State, and Federal laws and regulations. 41. Approval for the project is for three years, with the option to request a three-year extension upon expiration of the initial three-year term. The applicant shall not apply for a long term or long length expansion of the Project prior to January 1, 2018 and shall not begin construction of such until after September 1, 2018. The Applicant may apply for localized alterations to the Project as may be appropriate based on site conditions, and may apply for any alteration or expansion necessary to address an emergency or imminent danger. Siasconset Beach Preservation Fund – Geotube Project, SE48-2824, 87-105 Baxter Road 8 42. All access for construction or maintenance vehicles along the beach to the project area shall be from the Hoick’s Hollow access to the South. That access shall be blocked off and maintained at all times to prevent other vehicles from entering the beach area. The applicant shall get a written sign off from the Natural Resources Coordinator on a bi-weekly basis from April 1st to September 15th to use vehicles on the beach. The sign-off will serve to confirm the presence or absence of any protected species within the project area or route of travel to and from the project area. That gate shall be repaired within 48 hours of any damage. 43. The use of small vehicles, such as a beach buggy, to inspect or repair the Geotubes and sand cover is permitted, provided the Natural Resources Coordinator sign-off described herein is obtained. 44. The Town of Nantucket as an assenting property owner and SBPF as the applicant shall provide the Commission with updates every six months on the status of the efforts to relocate alternative access and public utilities’ infrastructure at the northern end of Baxter Road. 45. Upon completion of the initial construction of the project as permitted, a partial Certificate of Compliance shall be requested. A stamped as-built plan and a statement from a Professional Engineer or a Professional Land Surveyor registered in the Commonwealth of Massachusetts certifying compliance with the plans and conditions of this Order shall accompany the request for a partial Certificate of Compliance. 46. Upon relocation of Baxter Road the applicant shall appear before the Commission to discuss if the Geotubes in front of land not containing pre-1978 structures shall be removed and returns installed, in keeping with those shown on the plan of record, on the remaining Geotube structure. This shall take place within 90 days of the relocation of Baxter Road. 47. The returns constructed on the fourth tier of Geotubes shall be contained on the lots with pre-1978 structures. No fourth tier or returns are permitted on land without pre-1978 structures. 48. Should the quarterly surveys show an accelerated rate of coastal retreat within the entire survey area SBPF shall be required to demonstrate that those impacts are not attributed to this project. 49. The applicant shall be required to provide a copy of the required insurances by the License Agreement dated December 13, 2013 between the Town of Nantucket, SBPF, and private property owners. 50. Groundwater levels within the Bordering Vegetated Wetlands adjacent to the drainage system and Baxter Road shall be taken at the beginning, middle and end of the growing season to determine if the drainage system is having an adverse impact to the vegetated wetlands. If there is a change in groundwater deemed significant by the Commission they may call for the discontinuation or removal of the system. 51. A yearly report on the performance of the drainage system is to provide to the Commission. The report shall include the area serviced by the drainage system, and the maximum amount of water that entered the system during a storm event. 52. A list of all sand sources currently being used shall be provided to the Commission. Should an additional source be added or change a sieve analysis Siasconset Beach Preservation Fund – Geotube Project, SE48-2824, 87-105 Baxter Road 9 demonstrating compatible material shall be provided to the Commission for review and approval prior to the installation of any material. 53. The ability of SBPF to conduct the actions set out in subsections (a) to (f) herein shall constitute a project success ("success criteria") if performed within the stipulated timeframes or within such other reasonable periods of time as determined by the Commission in the event of a delay in performance outside the control of SBPF. The ”success criteria" include: a. The ability to provide the sand mitigation as required herein. b. Completion, presentation and review of all the shoreline monitoring and post-storm monitoring as required herein. c. Successful repair and/or replace of damaged geotextile tubes in a timely manner. d. No excessive loss in updrift or downdrift beach cross section that can be attributed to the project. Including taking proper action as directed by the Commission to address any impacts show be the reporting requirements herein e. Maintenance of adequate beach width in front of the Bank as defined through the reporting requirements and reviewed by the Commission. f. Maintenance of a walk able beach in front of the Geotubes at high tide. It is understood that the portion of the beach in front of the geotubes is by definition narrower than nearby unprotected beaches because the geotubes and the sand template covers the back of the beach. g. No excessive loss of the area subject to protection by the project. 54. A copy of the license as approved by the Board of Selectmen shall be provided to the Commission. Prior to any extension or revision of this project a copy of the valid license to allow the project and the duration of the license to be long enough to cover the project as proposed shall be provided to the Commission. 55. All surveyed elevations shall be shown in the NAVD 88 datum plane to match the datum of the current FEMA flood mapping, or a conversion factor shall be provided from the published data to the NAVD 88 datum plane. 56. A summer sample of the invertebrate life within the beach from three locations in the project area and three samples to be taken outside of an area subject to vehicle traffic shall to the north and south of the project area be taken and compared to determine impacts on the invertebrate community of the Coastal Beach. 57. All raw survey data shall be made available to the Commission and public. 58. The Commission will require an independent peer review of the data and reporting. Any cost incurred by the peer review shall be paid by the applicant. All reviewers shall be agreed upon by the Commission and the applicant. Siasconset Beach Preservation Fund – Geotube Project, SE48-2824, 87-105 Baxter Road 10 WAIVERS UNDER THE NANTUCKET WETLANDS BYLAW/REGULATIONS Waivers are required to Section 2.01 (B)(7), 2.02 (B)(2), 2.05(B)(1) that no new bulkheads, coastal revetments, groins or other coastal engineering structures shall be permitted to protect structures constructed or substantially improved, after 8/1978 except for public infrastructures. Bulkheads and groins maybe rebuilt only if the Commission determines that there is no environmentally better way to control an erosion problem, including in appropriate cases the moving of then threatened buildings and/or public infrastructure. Section 2.01 (B)(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, recreation and aquatic vegetation. Section 2.05(B)(3) that all projects shall be restricted to activity as determined by the Conservation 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. Section 2.10(B)(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. The Commission finds that the current project as proposed and partially constructed is designed and conditioned to not have an adverse impact on the interests protected by these regulations. The regular monitoring, mitigation and reporting shall provide the Commission a way to carefully observe the function and impacts that the project is having and to make on-going decisions as to the future actions taken in regards to this project. The Commission also finds that given the current state of the existing structure, which was designed to abate the declared emergency, and to properly monitor and mitigate the existing structure that there are no reasonable alternatives that allow the project to proceed in compliance with the regulations. Therefore the Commission grants a waiver under Section 1.03(F)(3)(a) of the Nantucket Wetland Protection Regulations.