Loading...
HomeMy WebLinkAbout2014_5_9 SBPF Submission Regulatory Compliance_201405120938112041REGULATORY SUMMARY State Wetlands Regulations Coastal Bank (310 CMR 10.30) The coastal bank in the Project area supplies sand to nearby coastal landforms; therefore, it is significant to storm damage prevention and flood control. The coastal bank in the Project area also is significant to storm damage prevention and flood control because it is a vertical buffer to storm waters. The Project complies with state regulations for coastal banks (310 CMR 10.30(3) through (8)). 10.30(3) because it is necessary to prevent storm damage to buildings constructed prior to August 10, 1978, including reconstructions of such buildings on both the seaward and landward sides of Baxter Road, because it is “designed and constructed so as to minimize, using best available measures, adverse effects on adjacent or nearby coastal beaches due to changes in wave action,” because there is “no method of protecting the building other than the proposed coastal engineering structure is feasible,” and because the “protective planting are designed to reduce erosion.” Specifically, the sloped, bermed design of the geotextile tubes will minimize wave reflection, the end returns and the scour apron will minimize flanking and focusing of wave energy onto adjacent, unprotected areas of the bank and minimize scour, and the sand mitigation will mitigate the loss of erosion sand nearby and down drift. Further, to comply with 310 CMR 10.30(6), the Project has been designed to maintain the stability of the coastal bank by reducing or eliminate weave-inducing scarping at the toe, which has been the principal cause of erosion of the coastal bank. The permissive and prohibitive language of 310 CMR 10.30(7) for new Coastal Engineering Structures is superseded by the “shall be permitted” language of section 10.30(3), as noted by the state Department of Environmental Protection in its December 10, 2013 letter approving the Emergency Certification. 310 CMR 10.30(4), (5), and (8) do not apply. Coastal Beaches (310 CMR 10.27) The coastal beach in the Project area dissipates wave energy, reduces the height of approaching waves, and acts as a sand source to nearby coastal landforms. It also provides habitat for non- listed and listed foraging shorebirds. As such, the coastal beach is significant to storm damage prevention, flood control, and the protection of wildlife habitat. The Project is designed to comply with state regulations for coastal beaches 10.27(3) through (7). The use of clean, beach compatible sand satisfies 310 CMR 10.27(5) and 310 CMR 10.27(3), (4), (6), (7) do not apply. Land Subject to Coastal Storm Flowage (310 CMR 10.04) There are no performance standards in the state wetlands regulations for Land Subject to Coastal Storm Flowage (LSCSF). However, since LSCSF overlays the coastal beach and the coastal bank up to the 100-year storm elevation as shown on the project plans, the relevant performance standards have been reviewed and addressed above. Local Wetlands Regulations Nantucket Coastal Banks (Section 2.05) Performance Standards for work on coastal banks are set forth in Section 2.05 B of the local wetlands regulations, but Sections 2.05 B(2), (4), (6), (7) and (8) do not apply. The Project complies with Section 2.05 B(1) because it is to protect both pre-1978 homes and public infrastructure, including access thereto, none of which can be moved in a manner that adequately addresses the danger based on the average long-term rate of retreat and the recent high rate of retreat. There is no environmentally better way to control an erosion problem and no alternative is feasible to satisfy the project objectives. 1 Rather than have any adverse effect on bank height, bank stability, wildlife habitat, vegetation, or wetland scenic view, the Project will improve all of these by protecting the toe and face of the bluff and adding stable sand and plantings. The project may impact the use of the bank as a sediment source, if the beach compatible sand is not considered part of the bank, but this impact is fully mitigated by the proposed sand contributions and substantial monitoring program. However, in the alternative, the Applicant seeks a waiver of this provision. Section 2.05 B(3) The Project is water dependent because direct access to the coastal bank and coastal beach is required to achieve the intended purpose of the Project in stabilizing the coastal bank to provide storm damage prevention and flood control. This Project cannot be located out of the coastal bank and coastal beach resource areas. In the alternative, Applicant seeks a waiver from the provisions of Sections 2.02.B(6) and 2.05.B(5) as to water dependent uses. Section 2.05 B(5) Nantucket Coastal Beaches (Section 2.02) The Project does not include activities or structures subject to Section 2.02 B(1), (3), (5), (6), (7), and (8). Project activities on the coastal beach consist of: (1) installing the lowest tier of the geotextile tube beneath the landward edge of the coastal beach and the upper two ties on top of the coastal beach, adjacent to the coastal bank; (2) placement of the sand template as mitigation; (3) temporarily accommodating construction equipment and personnel access to construct the proposed geotextile tubes; and (4) periodic access for construction equipment and personnel to maintain the project. The Project is necessary to prevent storm damage to buildings constructed prior to 1978, including access and utilities thereto. The Danger is imminent and no alternatives to the proposed Project would provide suitable protection for existing structures that pre-date September 1978 and have not been substantially improved. To the extent any of the pre-1978 Section 2.02 B(2) – Performance Standard 1 The Nantucket Wetlands Regulations raise the issue of substantial improvement of pre-1978 homes. We note that is language appears to be in conflict with the “shall be permitted” language in 310 CMR 10.30 provides protection to pre-1978 homes. Since this language does not apply to infrastructure, the question is a moot point. However, SBPF expressly reserves all of its rights with respect thereto. homes may not meet the criteria for not being “substantially improved2”a waiver request from this provision is sought. The Project will place clean beach-compatible sand into the littoral system. Section 2.02 B(4) - Performance Standard The Project has been designed using best available measures to stabilize the coastal bank and protect existing landward structures and public infrastructure while simultaneously avoiding, minimizing, and mitigating for potential impacts. All of the interests protected by the Bylaw have been considered during the process of Project design. Section 2.02 B(9) – Performance Standard Nantucket Land Subject to Coastal Storm Flowage (Section 2.10) Sections 2.10 B(2), (3) and (4) do not apply to the Project. The Project will not reduce the ability of LSCSF to absorb and contain flood waters. By stabilizing the bank face and providing protection at the toe of bank, the Project will enhance the coastal bank’s function of buffering inland areas and buildings from storm damage. Section 2.10 B(1) – Performance Standard The Project has been designed using best available measures to stabilize the coastal bank and protect existing landward structures while simultaneously avoiding, minimizing, and mitigating for potential impacts. All of the interests protected by the Bylaw have been considered during the process of Project design. Section 2.10 B(5) The Project does not involve work seaward of the mean low water line; therefore, none of the performance standards at Section 2.01 B(1-8) of the local wetlands regulations apply. However, even if these performance standards did apply, only Section 2.01B(7) and (8) would apply. Project compliance with Section 2.01 B(7) is presented in the discussion for Section 2.02B(2). The project would be compliant with 2.01 B(8) because it has no adverse impact on wildlife, erosion control, marine fisheries, shellfish beds, storm damage prevention, flood control, and recreation, and in fact help all of them. Land Under the Ocean 2.01 2 “Substantially Improved” is defined in Section 1.02 of the local wetlands regulations as: “cumulative expansion of habitable space greater than twenty percent (20%).” “Habitable Space” is defined in Section 1.02 of the local wetlands regulations as: “space in a structure for living, sleeping, eating or cooking. Bathrooms, toilet compartments, closets, halls, storage or utility space, and similar areas are not considered habitable space.”