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Home My WebLink About69 SE48_3115 SBPF Adjudicatory Appeal 2_11_20r®RUBIN and RUDMAN LLP Attorneys at Law 53 STATE STREET I BOSTON, MA 02109 I P: 617-330-7000 800 CONNECTICUT AVENUE NW I WASHINGTON, DC 20006 I P: 202-794-6300 99 WILLOW STREET I YARMOUTHPORT, MA 02675 I P: 508-362-6262 Michele A. Hunton Direct Dial: 617-330-7024 E-mail: mhunton@rubinrudman.com Return Address: Boston February 11, 2020 By Hand Delivery Case Administrator Office of Appeals and Dispute Resolution Department of Environmental Protection One Winter Street, 2nd Floor Boston, MA 02108 RE: Notice of Claim for Adjudicatory Appeal 59-117 Baxter Road DEP File No.: SE48-3115 Dear Sir/Madam; Enclosed for filing please find a Notice of Claim for Adjudicatory Appeal. Also enclosed is a copy of the Adjudicatory Hearing Fee Transmittal Form with the appropriate filing fee. Please contact me if you have any questions or concerns. Very truly yours, Michele A. Hunton Enclosures cc: MassDEP Southeast Regional Office (via Certified Mail, Return Receipt Requested) Nantucket Conservation Commission (via Certified Mail, Return Receipt Requested) 2347264_1 COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL PROTECTION OFFICE OF ADMINISTRATIVE APPEALS AND DISPUTE RESOLUTION ) In the Matter of ) The Siasconset Beach ) Preservation Fund ) ) ocket Nos. WET- DE No. SE 48-3115 / 1 2020 NOTICE OF CLAIM FOR ADJUDICATORY A 1. The Siasconset Beach Preservation Fund (the "Applicant" or "SBPF") hereby files this claim for adjudicatory appeal from the Massachusetts Department of Environmental Protection's ("Department") issuance of a Superseding Order of Conditions ("SOC," Exhibit A), dated January 28, 2020 concerning the properties located at 59 — 119 Baxter Road, Nantucket, Massachusetts (the "Property"). I. Applicant Information, Information of Other Interested Parties, and History of Review 2. SBPF and the Town of Nantucket jointly filed a Notice of Intent ("NOI") with the Nantucket Conservation Commission ("NCC") for the Proposed Baxter Road and Sconset Bluff Storm Damage Prevention Project ("Proposed Project") on January 5, 2018. However, SBPF independently filed a Request for a SOC of the Commission's Order of Conditions ("00C") that denied Proposed Project. 3. The Proposed Project seeks to extend the geotextile tube system to the north and south of the existing length of geotubes which was initially allowed by the NCC when it issued an 00C on September 20, 2015 (SE 48-2824) ("Existing Project"). 4. As described in more detail below, the Existing Project was the result of SBPF's original proposal to stabilize approximately 4,000 feet of eroding Coastal Bank from 63 to 119 Baxter Road. Through various appeals and decisions to provide some immediate protection for the most actively eroding reach of Coastal Bank, the approximately 900-foot Existing Project was approved and then built. 5. The purposes of the Existing Project and the Proposed Project are to: 1) complete the project originally sought by SBPF and the Town of Nantucket pursuant to a Memorandum of Understanding dated July 2013 ("MOU"), and 2) to provide storm damage protection for pre-1978 homes and other public infrastructure associated with Baxter Road along the portion of Sconset Bluff that continues to actively erode. The new section of geotextile tubes will: 1) extend north from the Existing Project to protect three (3) pre-1978 homes (109, 113, and 115 Baxter Road), which necessitates extending the geotube returns onto 117 Baxter Road; and 2) extend south to protect 13 pre-1978 homes between 59 and 85 Baxter Road with returns extending across a portion of 55 Baxter Road. This comprises the "Full-Length Project." 6. The NCC issued an OOC denying the Proposed Project ("Denial 00C") on June 20, 2019, under both the Wetlands Protection Act, M.G.L. c.131, §40 (the "Act") and the Nantucket Wetlands Protection Bylaw. A copy of the Denial OOC is attached as Exhibit B. 7. On July 2, 2019, SBPF filed a Request for a SOC with the Department under the Act. 8. On July 9, 2019, SBPF filed a Complaint in the Nantucket Superior Court appealing the OOC under the Nantucket Wetlands Bylaw. 9. SBPF has a mailing address of P.O. Box 2279, Nantucket, MA 02584. -2- COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL PROTECTION OFFICE OF ADMINISTRATIVE APPEALS AND DISPUTE RESOLUTION ) In the Matter of ) The Siasconset Beach ) Preservation Fund ) ) ocket Nos. WET- DE No. SE 48-3115 / 1 2020 NOTICE OF CLAIM FOR ADJUDICATORY A 1. The Siasconset Beach Preservation Fund (the "Applicant" or "SBPF") hereby files this claim for adjudicatory appeal from the Massachusetts Department of Environmental Protection's ("Department") issuance of a Superseding Order of Conditions ("SOC," Exhibit A), dated January 28, 2020 concerning the properties located at 59 — 119 Baxter Road, Nantucket, Massachusetts (the "Property"). I. Applicant Information, Information of Other Interested Parties, and History of Review 2. SBPF and the Town of Nantucket jointly filed a Notice of Intent ("NOI") with the Nantucket Conservation Commission ("NCC") for the Proposed Baxter Road and Sconset Bluff Storm Damage Prevention Project ("Proposed Project") on January 5, 2018. However, SBPF independently filed a Request for a SOC of the Commission's Order of Conditions ("00C") that denied Proposed Project. 3. The Proposed Project seeks to extend the geotextile tube system to the north and south of the existing length of geotubes which was initially allowed by the NCC when it issued an 00C on September 20, 2015 (SE 48-2824) ("Existing Project"). 4. As described in more detail below, the Existing Project was the result of SBPF's original proposal to stabilize approximately 4,000 feet of eroding Coastal Bank from 63 to 119 Baxter Road. Through various appeals and decisions to provide some immediate protection 10. SBPF is represented by the following counsel: Glenn A. Wood, Esquire Michele A. Hunton, Esquire Rubin and Rudman LLP 53 State Street, 15th Flr. Boston, MA 02109 T: 617-330-7000 F: 617-330-7550 gwood@rubinrudman.com mhunton@rubinrudman.com 11. The other interested party is the Nantucket Conservation Commission with an address at 2 Bathing Beach Road, Nantucket, MA, 02554. 12. The NOI was assigned the Mass DEP Wetlands File Number SE 48-3155. Statement of Errors in the Reviewable Decision 13. On January 28, 2020, the Department issued a SOC, which approved the proposed northern extension of the existing geotubes and a portion of the southern extension subject to certain conditions. The SOC confirmed the homes protected by the Proposed Project are pre-1978 buildings, and thus are able to be protected by a coastal engineering structure ("CES"). In issuing the SOC, the Department further affirmed the Proposed Project met the applicable performance standards established for Coastal Beach and Coastal Bank Resource Areas. SBPF concurs with inherent determinations in the SOC issued by the Department, and accepts many of the Special Conditions included in the SOC issued by the Department. 14. SBPF appeals Special Conditions Nos. 9, 13 and 15, with regard to certain monitoring and mitigation requirements, as described in further detail below. 15. SBPF also appeals Special Condition Number 1 as it relates to 51A, 51B and 53 Baxter Road, as those properties were not included as part of the Proposed Project described in NOI or Denial 00C. -3- A. The Department Erred in the Issuance of Special Condition No. 9. 16. The Department erred in its issuance of Special Condition No. 9, which requires quarterly monitoring for the first three (3) years. The Department further provides that following three (3) years of quarterly surveys, SBPF may request the Department to reassess the need for quarterly beach profiles, and allows the Department to make further decisions on any changes to the monitoring program. 17. SBPF appeals this Special Condition because there is no indication of quantitative criteria that the Department will use in making any future and anticipated determinations that monitoring frequency can be relaxed under this SOC. 18. The ongoing and proposed sand mitigation that is currently being performed for the Existing Project and Proposed Project is essentially a beach nourishment activity, as confirmed by the Department on Page 1 of the SOC cover letter. Therefore, the Department's Beach Nourishment Guidelines (Beach Nourishment: MassDEP's Guide to Best Management Practices for Projects in Massachusetts, March 2007, "Beach Nourishment Guidelines") should be used as guidance. 19. In particular, the Beach Nourishment Guidelines provide that a qualified surveyor or engineering contractor should undertake additional post-construction monitoring, and that a number of surveys should be performed during the first year following construction, including seasonally. After the first year, the beach nourishment transects can be monitored annually. 20. The Beach Nourishment Guidelines further provide that monitoring reports are typically prepared after the first year of complete data evaluation, and bi-annually thereafter. These reports should summarize all data collected, including general information regarding the -4- wave climate and storm activity, changes in sand volume over time, and measured shoreline changes. This information can then be used to evaluate performance, assess any adverse environmental impacts, and estimate future re-nourishment requirements. 21. SBPF contends that the bi-annual monitoring proposed in the NOI satisfies the Beach Nourishment Guidelines, and further would have no adverse effect on the associated resource areas. Therefore, quarterly monitoring as presently required in the SOC is unnecessary and unfounded given the significant surrey monitoring data already presented for the DEP and NCC associated with the on-going Existing Project monitoring efforts. B. The Department Erred in the Issuance of Special Condition No. 13. 22. Special Condition No. 13 provides that sand mitigation shall be at a rate of 22 cubic yards per linear foot (cy/lf) per year in accordance with a particular schedule, following the same condition in the Existing Conditions approval. 23. The requirement in Special Condition No. 13 of 22 cy/lf of sand annually is approximately two and one half (2.5) times the length weighted average volume of sand contributed annually off the Coastal Bank, and therefore is excessive. Monitoring data associated with the Existing Project shows clear evidence that the required 22cy/lf is excessive, and that an adaptive sand management plan as presented in the NOI for this project should have been approved as part of the Department's SOC. 24. Additionally, Special Condition No. 13(e) provides that following three (3) years of mitigation at a rate of 22 cy/lf per year, SBPF may request the Department to reassess the rate of sand mitigation, and a final decision on any changes to the mitigation sand volume rests with the Department. -5- 25. While SBPF appreciates that this decision to re-visit the mitigation rate is with the Department, SBPF believes there should be some indication of quantitative criteria that the Department can use in making any future determination on this issue in order to allow for a fair adjustment of sand volume. Without a detailed standard of review, this conditioning as drafted places SBPF in an unknown realm on how and when an adaptive sand management program would ever be initiated. C. The Department Erred in the Issuance of Special Condition No. 15. 26. Special Condition No. 15(d) addresses "excessive loss in updrift or downdrift beach cross section that can be attributed to the project." 27. However, again, there is no quantitative review criteria provided in this conditioning to allow the Department to adequately measure "excessive loss" that can be "attributed to the Project." 28. The language in this Condition is too vague as it simply provides that "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 contact the Department and the NCC within 30 days of the quarterly survey." 29. SBPF maintains that there must be objective criteria demonstrating what distance from the ends of the Project would be reviewed to determine what excessive loss "may be attributed to the project." D. Revisions to the Above-Described Special Conditions Would Not Adversely Affect the Associated Resource Areas. 30. The minor design changes in the NOI between the Existing Project and the Proposed Project, and the revisions to the monitoring and maintenance programs, were informed by monitoring over six (6) storms seasons, and therefore, the Proposed Project is based on -6- coastal science, engineering modelling and design, and six (6) years of monitoring data. Therefore, the above-proposed revisions to the Special Conditions in the SOC will not adversely affect the associated Resource Areas. 31. First, with regard to Land Under the Ocean ("LUO"), 310 CMR 10.25, ongoing benthic monitoring in the LUO offshore of the Existing Project, as required by the Existing 00C (SE48-28240), has been performed to determine if indirect alteration of LUO has occurred from sand contributed off the sand template. Results of monitoring to date documents that there has been no adverse effect to the LUO from the Existing Project. Monitoring results were presented to the NCC during its hearing process. As there has been no adverse effect to the LUO from the Existing Project, SBPF maintains that there will be no alteration of LUO from the Proposed Project. 32. Second, with regard to Coastal Bank, 310 CMR 10.30, the purpose of the Existing and Proposed Projects is to protect the stability of the Coastal Bank, and the sand mitigation (beach nourishment) is proposed to continue to provide a sediment source for downdrift coastal landforms. Sand mitigation and shoreline monitoring are proposed to be conducted to ensure that the existing Coastal Bank face is stabilized and downdrift beaches are not impacted. 33. Third, the monitoring and sand mitigation requirements will not adversely affect Coastal Beach, 310 CMR 10.27, because the Proposed Project provides sand mitigation of compatible sand grain size contribute sand to the littoral drift system to maintain downdrift coastal landforms. To date and going forward, SBPF reviews sand samples for compatibility and submits this the NCC for review before the sand is placed on the template. -7- 34. Fourth, the Proposed Project will not adversely affect Coastal Dune, because the Proposed Project will be built southward to a point north of the existing Coastal Dune at the southerly limit of the Proposed Project. The actual southern limit will be defined in the field at the time of construction to avoid the Coastal Dune. E. The SOC Improperly addresses Lots 51A, 51B, and 53, Which Were Not the Subject Matter of the NOI or the 00C, and Therefore Such References Should be Stricken. 35. Special Condition No. 1 purportedly denies the proposed installation of geotubes along Lots 51A, 51B, and 53, where the Department describes that area as where a Coastal Dune fronting the toe of the Coastal Bank. However, the NOI for the Proposed Project did not include Lots 51A, 51B, and 53 as part of the extension of the geotubes, which cover Lots 59-119. Therefore, a decision regarding these lots is prejudicial to their owners, and should be stricken from the SOC. While the geotube returns extend to Lot 55, the proposed geotubes end at Lot 59. -8- WHEREFORE, SBPF respectfully requests that the Commissioner partially vacate and/or revise Special Conditions No. 1, 9, 13, and 15 of the Department's Superseding Order of Conditions. Dated: February 11, 2020 Respectfully submitted, SIASCONSET BEACH PRESERVATION FUND, By its attorneys, 'rte_ Ad 67,4- enn A. Wood (BBO #547421) Michele A. Hunton (BBO #667766) Rubin and Rudman LLP 53 State Street, 15th Floor Boston, MA 02109 (617)330-7000 gwood@rubinrudman.com mhunton@rubinrudman.com CERTIFICATE OF SERVICE I hereby certify that on February 11, 2020, I served a true copy of the foregoing document Notice of Claim for Adjudicatory Appeal by Certified Mail, Return Receipt Requested, on the following parties of record: MassDEP Southeast Regional Office 20 Riverside Drive Lakeville, MA 02347 Nantucket Conservation Commission 2 Bathing Beach Road Nantucket, MA 02554 Glenn A. Wood ‘,Arve;(2 61114)- -9- EXHIBIT A Commonwealth of Massachusetts Executive Office of Energy & Environmental Affairs Department of Environmental Protection Southeast Regional Office • 20 Riverside Drive, Lakeville MA 02347 • 508-946-2700 Charles D. Baker Govemor Karyn E. Polito Lieutenant Governor Siasconset Beach Preservation Fund c/o Glenn A. Wood, Esq. Rubin & Rudman LLP 53 State Street Boston, Massachusetts 02109 Dear Attorney Wood: Kathleen A. Theoharides Secretary JAN 2 8 2020 RE: NANTUCKET—Wetlands DEP File No. SE 48-3115 Superseding Order of Conditions 59-119 Baxter Road Martin Suuberg Commissioner Following an in-depth review of the above-referenced file and in accordance with Massachusetts General Laws, Chapter 131, Section 40, the Department of Environmental Protection has issued the enclosed Superseding Order of Conditions (SOC). This Order approves the proposed northern extension to the existing Geotube and a portion of the southern extension subject to certain conditions. The Department has determined that the project area is significant to the statutory interests of flood control, storm damage prevention and the protection of wildlife habitat. The Notice of Intent (NOI) was jointly filed by the Siasconset Beach Preservation Fund (SBPF) and the Town of Nantucket. The Town owns the beach in the project area. The project proposes an approximately 767 linear foot Geotube extension to the north and an approximately 1,916 linear foot Geotube extension to the south, smaller geotextile returns, planting of vegetation on the face of the coastal bank, and ongoing mitigation (beach nourishment) and monitoring of project performance. As shown on the referenced plans, the proposed design incorporates 4 tiers of Geotubes. The project area currently contains three to four tiers of Geotubes with a total length of approximately 947 feet. The Department has determined that the coastal bank (Sconset Bluff) acts both as a sediment source and as a vertical buffer to elevated storm waters. The Wetland Regulations at 310 CMR 10.30(3) provides, in part, that a coastal engineering structure "shall be permitted" when required to protect buildings constructed prior to 1978 from storm damage. The expanded project would protect 13 pre-1978 homes in the southern extension and 3 pre-1978 homes in the northern extension. All of the homes on the ocean-side of Baxter Road in the project area are pre-1978 buildings. The project area also includes 2 (vacant) gap lots at 85 and 107/107A Baxter Road. In the Department's judgment, the applicant has demonstrated the need to provide a contiguous Geotube system across the gap lots that can effectively protect pre- 1978 homes in the area, including pre-1978 homes on the landward side of Baxter Road. As a This information is available in alternate format. Call Michelle Waters-Ekanem, Diversity Director, at 617-292-5751. TDD# 1-866-539-7822 or 1-617-574-6868 MassDEP Website: www.mass.govidep Printed on Recycled Paper 2 result, the Department has determined that the proposed Geotubes between Lots 115 and 63 meets the above-noted performance standard for Coastal Banks. The enclosed SOC denies the proposed installation of Geotubes at the southern end (Lots 61, 59, and 55) of the approximately 1,916 linear foot southern Geotube extension. The coastal bank is more stable in the area south of lot 63 with extensive vegetation on the face of the coastal bank compared to areas to the north. In addition, the homes on Lots 61 and 59 do not meet the applicant's proposed "imminent" danger criteria that dwellings within 40 feet of the top of the coastal bank need immediate protection from storm damage as discussed in the Notice of Project Change filed with MEPA. In fact, the homes on Lots 61 and 59 are 68 and 65 feet back from the top of the coastal bank, respectively. Further, it is not clear that the homes on Lots 61, 59, and 55 couldn't be relocated to the landward side of Baxter Road and away from the coastal bank. As a result, the Department has determined that the proposed Geotubes on Lots 61, 59 and 55 do not meet the performance standards for Coastal Banks at 310 CMR 10.30 (3). Specifically, the Department has determined that the proposed Geotubes are not required to prevent storm damage at this time and there may be feasible alternatives to a coastal engineering structure. In the case of Lots 61 and 59, relocation of homes to the landward side of Baxter Road may be a feasible alternative to a coastal engineering structure. The enclosed SOC also denies the proposed installation of Geotubes along the southern end of the proposed project area where a coastal dune fronts the toe of the coastal bank. In the area of Lots 55, 53, 51B and 51A, the coastal dune serves to protect the toe of the coastal bank from erosion, resulting in a dense vegetative cover on the face of the coastal bank. The applicant proposed the installation of Geotubes if and when the coastal dune erodes away and exposes the coastal bank to erosion. In the Department's opinion, the proposed Geotubes on Lots 55, 53, 51B and 51A are not required to prevent storm damage to homes at this time. As a result, the Department has determined that the proposed Geotubes in this area do not meet the performance standards for Coastal Banks at 310 CMR 10.30(3). In addition, the Department has determined that there may be feasible alternatives to a coastal engineering structure, such as building relocation to the landward side of Baxter Road. Please be advised that any future NOI must demonstrate that there are no feasible alternatives to the Geotubes such as relocation of threatened buildings, that the buildings are at risk of storm damage at the time of the application and that the Geotubes or an alternative coastal structure are necessary to prevent storm damage to pre-1978 buildings. The MEPA Certificate (EEA#15240) issued on September 20, 2019 by the Secretary of Energy and Environmental Affairs, directed the Department to address concerns with proposed changes to the applicant's mitigation plan and monitoring frequency. The applicant's revised mitigation plan is an adaptive sand mitigation plan that would change the fixed rate of 22 cubic yard per linear foot a year to a flexible rate of 8.8 cy/lf a year or a volume to fill a 22 cy/lf template, whichever is greater. Due to the apparent success of the current mitigation plan in maintaining a walkable beach seaward of the existing Geotubes and the substantial increase in project length, the Department's SOC will require the current mitigation volume of 22 cy/lf a year to remain for the expanded project. In addition, the applicant's revised monitoring plan would change the shoreline change analysis (beach profile) to semi-annual from the current quarterly requirement. Although the Department's Guide to Best Management Practices for 3 Beach Nourishment Projects recommends semi-annual monitoring, the Department believes that due to the substantial increase in project length and unique circumstances of the project, the current monitoring plan of quarterly shoreline change analysis will remain for the expanded project. Following 3 years of implementing the required mitigation and monitoring plans, the applicants may request the Department to re-assess these plans in accordance with the enclosed SOC. The Department is aware of recent enforcement action taken by the Nantucket Conservation Commission regarding the use of non-beach compatible nourishment material and the failure to submit beach monitoring reports. The Department supports the Commission's enforcement actions. Failure to provide clean, compatible sediment as mitigation and failure to submit timely quarterly monitoring reports could result in further enforcement action and constitute project failure in accordance with criteria in the enclosed SOC. In the opinion of the Department the reasons given here are sufficient to justify this SOC. However, the Department reserves the right, should there be further proceedings in this matter, to raise additional issues and present further evidence as may be appropriate. If you have any questions concerning this matter please contact Nate Corcoran at (508) 946-2723. Very truly yours, \NN&D1/4.4xle James Mahala, Chief Wetlands and Waterways Program JM/nc Enclosure CERTIFIED MAIL # 7017 1450 0000 0281 4220 cc: Nantucket Conservation Commission Nantucket Board of Selectmen Li WPA Form 5 - Superseding Order of Conditions Massachusetts Department of Environmental Protection Bureau of Resource Protection — Wetlands Massachusetts Wetlands Protection Act M.G.L. c. 131, po A. General Information 1. From: Issuing Authority Massachusetts Department of Environmental Protection MassDEP File # SE 48-3115 2. This issuance is for (check one): a. Superseding Order of Conditions b. Ei Amended Superseding Order of Conditions 3. To: Applicant: Josh Posner a. First Name b. Last Name Siasconset Beach Preservation Fund (SBPF) c. Organization P.O. Box 2279 d. Mailing Address Line 1 Nantucket e. City/Town 4. Property Owner (if different from applicant): a. First Name See Attached List c. Organization MA 02584 f. State g. Zip Code b. Last Name d. Mailing Address Line 1 e. City/Town 5. Project Location: 59-119 Baxter Road f. State g. Zip Code Nantucket a. Street Address b. City/Town c. Assessors Map/Plat Number d. Parcel/Lot Number Latitude and Longitude, if known:41°16'36.748"N 69°57'40.559"W e. Latitude f. Longitude SOC-NOI-AFTERJANO8 StormwaterRegs 2-2014 WPA Form 5 — Order of Conditions • Page 1 of 16 Formatted for Registry of Deeds WPA Form 5 - Superseding Order of Conditions Massachusetts Department of Environmental Protection Bureau of Resource Protection — Wetlands Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 A. General Information (cont'd) MassDEP File # SE 48-3115 6. Property recorded at the Registry of Deeds (attach additional information if more than one parcel): Nantucket See attached list a. County b. Certificate (if registered land) c. Book 7. Dates:01/05/2018 a. Date NOI Filed d. Page 8/29/2019 6/20/2019 b. Date of Site Visit c. Date of Issuance of Local Order 8. Final Approved Plans and Other Documents (attach additional plans or document references): Expanded Baxter Road and Sconset Bluff Storm Damage Prevention Project Permit Drawings a. Plan Title Baird W.F. Baird & Associates Ltd. Gordon G. Thomson, P.E. b. Prepared By c. Signed and Stamped By 10/29/2019 d. Final Revision Date e. Scale f. Additional Plan or Document Title g. Date B. Findings 1. Findings pursuant to the Massachusetts Wetlands Protection Act - Following the review of the above- referenced Notice of Intent and based on the information provided in this application, the Department finds that the areas in which work is proposed is significant to the following interests of the Wetlands Protection Act. Check all that apply: a.0 Public Water Supply b.0 Land Containing Shellfish c.q Prevention of Pollution d.q Private Water Supply e.0 Fisheries f.la Protection of Wildlife Habitat g.0 Groundwater Supply h.El Storm Damage Prevention i.El Flood Control 2. This Department hereby finds the project, as proposed, is (check one): Approved subject to: a. El the following conditions which are necessary in accordance with the performance standards set forth in the wetlands regulations. The Department orders that all work shall be performed in accordance with the Notice of Intent referenced above, the following General Conditions, and any other special conditions attached to this Order. To the extent that the following conditions modify or differ from the plans, specifications, or other proposals submitted with the Notice of Intent, these conditions shall control. SOC-NOI-AFTERJANO8 StormwaterRegs 2-2014 WPA Form 5 — Order of Conditions • Page 2 of 16 Formatted for Registry of Deeds WPA Form 5 — Superseding Order of Conditions Massachusetts Department of Environmental Protection Bureau of Resource Protection — Wetlands Massachusetts Wetlands Protection Act M.G.L. c. 131, §ito B. Findings (wad) Denied because: MassDEP File # SE 48-3115 b. q the proposed work cannot be conditioned to meet the performance standards set forth in the wetland regulations. Therefore, work on this project may not go forward unless and until a new Notice of Intent is submitted which provides measures which are adequate to protect these interests, and a final Order of Conditions is issued. A description of the performance standards which the proposed work cannot meet is attached to this Order. c. q the information submitted by the applicant is not sufficient to describe the site, the work, or the effect of the work on the interests identified in the Wetlands Protection Act. Therefore, work on this project may not go forward unless and until a revised Notice of Intent is submitted which provides sufficient information and includes measures which are adequate to protect the Act's interests, and a final Order of Conditions is issued. A description of the specific information which is lacking and why it is necessary is attached to this Order. Inland Resource Area impacts: Check all that apply below. (For Approvals Only) 3. q Buffer Zone Impacts: Shortest distance between limit of project disturbance and wetland boundary (if available) Resource Area 4. q Bank 5. q Bordering Vegetated Wetland 6. q Land Under Waterbodies and Waterways a. linear feet Proposed Permitted Proposed Permitted Alteration Alteration Replacement Replacement a. linear feet b. linear feet a. square feet b. square feet a. square feet b. square feet e. Ulf dredged f. ciy dredged c. linear feet d. linear feet c. square feet d. square feet c. square feet d. square feet 7. q Bordering Land Subject to Flooding a. square feet b. square feet c. square feet d. square feet Cubic Feet Flood Storage 8. q Isolated Land Subject to Flooding Cubic Feet Flood Storage 9. q Riverfront area Sq feet within 100 feet Sq feet between 100-200 feet e. cubic feet f. cubic feet a. square feet b. square feet c. cubic feet d. cubic feet a. total sq. feet b. total sq. feet c. square feet d. square feet g. square feet h. square feet g. cubic feet h. cubic feet e. cubic feet f. cubic feet e. square feet f. square feet i. square feet j. square feet SOC-NOI-AFTERJANO8 StormwaterRegs 2-2014 WPA Form 5 — Order of Conditions • Page 3 of 16 Formatted for Registry of Deeds WPA Form 5 — Superseding Order of Conditions Massachusetts Department of Environmental Protection Bureau of Resource Protection — Wetlands Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 B. Findings (contd.) Coastal Resource Area Impacts: Check all that apply below. (For Approvals Only) 10. q Designated Port Areas - Indicate size under Land Under the Ocean, below 11. q Land Under the Ocean MassDEP File # SE 48-3115 Proposed Permitted Proposed Permitted Alteration Alteration Replacement Replacement a. square feet b. square feet c. c/y dredged d. c/y dredged 12. q Barrier Beaches - Indicate size under Coastal Beaches and/or Coastal Dunes below. 13. El Coastal Beaches 104,860 94,680 a. square feet b. square feet c. c/y nourish. d. c/y 14. q Coastal Dunes a. square feet b. square feet c. c/y nourish. d. c/y 15. El Coastal Banks 2,730 2,465 a. linear feet b. linear feet 16. q Rocky Intertidal Shores a. square feet b. square feet 17. q Salt Marshes a. square feet b. square feet c. square feet d. square feet 18. q Land Under Salt Ponds a. square feet b. square feet c. c/y dredged d. c/y dredged 19. q Land Containing Shellfish a. square feet b. square feet c. square feet d. square feet 20. q Fish Runs - Indicate size under Coastal Banks, inland Bank, Land Under the Ocean, and/or inland Land Under Waterbodies and Waterways, above a. c/y dredged b. c/y dredged 21. Land Subject to Coastal Storm 104,860 94,680 Flowage a. square feet b. square feet SOC-NOI-AFTERJANO8 StormwaterRegs 2-2014 WPA Form 5 — Order of Conditions • Page 4 of 16 Formatted for Registry of Deeds LA WPA Form 5 - Superseding Order of Conditions Massachusetts Department of Environmental Protection Bureau of Resource Protection — Wetlands Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 MassDEP File # SE 48-3115 C. General Conditions Under Massachusetts Wetlands Protection Act (only applicable to approved projects) 1. Failure to comply with all conditions stated herein, and with all related statutes and other regulatory measures, shall be deemed cause to revoke or modify this Order. 2. The Order does not grant any property rights or any exclusive privileges; it does not authorize any injury to private property or invasion of private rights. 3. This Order does not relieve the permittee or any other person of the necessity of complying with all other applicable federal, state, or local statutes, ordinances, bylaws, or regulations. 4. The work authorized hereunder shall be completed within three years from the date of this Order unless either of the following apply: a. the work is a maintenance dredging project as provided for in the Act; or b. the time for completion has been extended to a specified date more than three years, but less than five years, from the date of issuance. If this Order is intended to be valid for more than three years, the extension date and the special circumstances warranting the extended time period are set forth as a special condition in this Order. 5. This Order may be extended by the issuing authority for one or more periods of up to three years each upon application to the issuing authority at least 30 days prior to the expiration date of the Order. 6. If this Order constitutes an Amended Superseding Order of Conditions, this Amended Superseding Order of Conditions does not extend the issuance date of the original Final Order of Conditions and the Superseding Order will expire on unless extended in writing by the Department. 7. Any fill used in connection with this project shall be clean fill. Any fill shall contain no trash, refuse, rubbish, or debris, including but not limited to lumber, bricks, plaster, wire, lath, paper, cardboard, pipe, tires, ashes, refrigerators, motor vehicles, or parts of any of the foregoing. 8. This Order is not final until all administrative appeal periods from this Order have elapsed, or if such an appeal has been taken, until all proceedings before the Department have been completed. 9. No work shall be undertaken until the Order has become final and then has been recorded in the Registry of Deeds or the Land Court for the district in which the land is located, within the chain of title of the affected property. In the case of recorded land, the Final Order shall also be noted in the Registry's Grantor Index under the name of the owner of the land upon which the proposed work is to be done. In the case of the registered land, the Final Order shall also be noted on the Land Court Certificate of Title of the owner of the land upon which the proposed work is done. The recording information shall be submitted to the Department on the form at the end of this Order, which form must be stamped by the Registry of Deeds, prior to the commencement of work. 10. A sign shall be displayed at the site not less then two square feet or more than three square feet in size bearing the words, "Massachusetts Department of Environmental Protection" [or, "MA DEP") "File Number SE48-3115 „ SOC-NOI-AFTERJANO8 StormwaterRegs 2-2014 WPA Form 5 — Order of Conditions • Page 5 of 16 Formatted for Registry of Deeds WPA Form 5 — Superseding Order of Conditions Massachusetts Department of Environmental Protection Bureau of Resource Protection — Wetlands Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 MassDEP File # SE 48-3115 C. General Conditions Under Massachusetts Wetlands Protection Act (cont.) 11. Where the Department of Environmental Protection is requested to issue a Superseding Order, the Conservation Commission shall be a party to all agency proceedings and hearings before DEP. 12. Upon completion of the work described herein, the applicant shall submit a Request for Certificate of Compliance (WPA Form 8A) to the Department of Environmental Protection. 13. The work shall conform to the plans and special conditions referenced in this order. 14. Any change to the plans identified in Condition #13 above shall require the applicant to inquire of the Department in writing whether the change is significant enough to require the filing of a new Notice of Intent. 15. The Agent or members of the Conservation Commission and the Department of Environmental Protection shall have the right to enter and inspect the area subject to this Order at reasonable hours to evaluate compliance with the conditions stated in this Order, and may require the submittal of any data deemed necessary by the Conservation Commission or Department for that evaluation. 16. This Order of Conditions shall apply to any successor in interest or successor in control of the property subject to this Order and to any contractor or other person performing work conditioned by this Order. 17. Prior to the start of work, and if the project involves work adjacent to a Bordering Vegetated Wetland, the boundary of the wetland in the vicinity of the proposed work area shall be marked by wooden stakes or flagging. Once in place, the wetland boundary markers shall be maintained until a Certificate of Compliance has been issued by the Department. 18. All sedimentation barriers shall be maintained in good repair until all disturbed areas have been fully stabilized with vegetation or other means. At no time shall sediments be deposited in a wetland or water body. During construction, the applicant or his/her designee shall inspect the erosion controls on a daily basis and shall remove accumulated sediments as needed. The applicant shall immediately control any erosion problems that occur at the site and shall also immediately notify the Department, which reserves the right to require additional erosion and/or damage prevention controls it may deem necessary. Sedimentation barriers shall serve as the limit of work unless another limit of work line has been approved by this Order. NOTICE OF STORMWATER CONTROL AND MAINTENANCE REQUIREMENTS 19. The work associated with this Order (the "Project") is (1) q is not (2) El subject to the Massachusetts Stormwater Standards. If the work is subject to the Stormwater Standards, then the project is subject to the following conditions: a) All work, including site preparation, land disturbance, construction and redevelopment, shall be implemented in accordance with the construction period pollution prevention and erosion and sedimentation control plan and, if applicable, the Stormwater Pollution Prevention Plan required by the National Pollution Discharge Elimination System Construction General Permit as required by Stormwater Condition 8. Construction period erosion, sedimentation and pollution control measures and best management practices (BMPs) shall remain in place until the site is fully stabilized. SOC-NOI-AFTERJANO8 StormwaterRegs 2-2014 WPA Form 5 — Order of Conditions • Page 6 of 16 Formatted for Registry of Deeds WPA Form 5 — Superseding Order of Conditions Massachusetts Department of Environmental Protection Bureau of Resource Protection — Wetlands Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 MassDEP File # SE 48-3115 C. General Conditions Under Massachusetts Wetlands Protection Act (cont.) b) No stormwater runoff may be discharged to the post-construction stormwater BMPs unless and until a Registered Professional Engineer provides a Certification that L all construction period BMPs have been removed or will be removed by a date certain specified in the Certification. For any construction period BMPs intended to be converted to post construction operation for stormwater attenuation, recharge, and/or treatment, the conversion is allowed by the MassDEP Stormwater Handbook BMP specifications and that the BMP has been properly cleaned or prepared for post construction operation, including removal of all construction period sediment trapped in inlet and outlet control structures; ii. as-built final construction BMP plans are included, signed and stamped by a Registered Professional Engineer, certifying the site is fully stabilized; iii. any illicit discharges to the stormwater management system have been removed, as per the requirements of Stormwater Standard 10; iv. all post-construction stormwater BMPs are installed in accordance with the plans (including all planting plans) approved by the issuing authority, and have been inspected to ensure that they are not damaged and that they are in proper working condition; v. any vegetation associated with post-construction BMPs is suitably established to withstand erosion. c) The landowner is responsible for BMP maintenance until the issuing authority is notified that another party has legally assumed responsibility for BMP maintenance. Prior to requesting a Certificate of, Compliance, or Partial Certificate of Compliance, the responsible party (defined in General Condition 19(e)) shall execute and submit to the issuing authority an Operation and Maintenance Compliance Statement ("O&M Statement) for the Stormwater BMPs identifying the party responsible for implementing the stormwater BMPs Operation and Maintenance Plan ("O&M Plan") and certifying the following: i.) the O&M Plan is complete and will be implemented upon receipt of the Certificate of Compliance, and ii.) the future responsible parties shall be notified in writing of their ongoing legal responsibility to operate and maintain the stormwater management BMPs and implement the Stormwater Pollution Prevention Plan. d) Post-construction pollution prevention and source control shall be implemented in accordance with the long-term pollution prevention plan section of the approved Stormwater Report and, if applicable, the Stormwater Pollution Prevention Plan required by the National Pollution Discharge Elimination System Multi-Sector General Permit. e) Unless and until another party accepts responsibility, the landowner, or owner of any drainage easement, assumes responsibility for maintaining each BMP. To overcome this presumption, the landowner of the property must submit to the issuing authority a legally binding agreement of record, and acceptable to the issuing authority, evidencing that another entity has accepted responsibility for maintaining the BMP, and that the proposed responsible party shall be treated as a permittee for purposes of implementing the requirements of Conditions 19(f) through 19(k) with respect to that BMP. Any failure of the proposed responsible party to implement the requirements of Conditions 19(f) through 19(k) with respect to that BMP shall be a violation of the Order of Conditions or Certificate of Compliance. In the case of stormwater BMPs that are serving more than one lot, the legally binding agreement shall also identify the lots that will be serviced by the stormwater BMPs. A plan and easement deed that grants the responsible party access to perform the required operation and maintenance must be submitted along with the legally binding agreement. f) The responsible party shall operate and maintain all stormwater BMPs in accordance with the design plans, the O&M Plan, and the requirements of the Massachusetts Stormwater Handbook. SOC-NOI-AFTERJANO8 StormwaterRegs 2-2014 WPA Form 5 — Order of Conditions • Page 7 of 16 Formatted for Registry of Deeds WPA Form 5 — Superseding Order of Conditions Massachusetts Department of Environmental Protection Bureau of Resource Protection — Wetlands Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 MassDEP File # SE 48-3115 C. General Conditions Under Massachusetts Wetlands Protection Act (cont.) g)The responsible party shall: 1. Maintain an operation and maintenance log for the last three (3) consecutive calendar years of inspections, repairs, maintenance and/or replacement of the stormwater management system or any part thereof, and disposal (for disposal the log shall indicate the type of material and the disposal location); 2. Make the maintenance log available to MassDEP and the Conservation Commission ("Commission") upon request; and 3. Allow members and agents of the MassDEP and the Commission to enter and inspect the site to evaluate and ensure that the responsible party is in compliance with the requirements for each BMP established in the O&M Plan approved by the issuing authority. h) All sediment or other contaminants removed from stormwater BMPs shall be disposed of in accordance with all applicable federal, state, and local laws and regulations. i) Illicit discharges to the stormwater management system as defined in 310 CMR 10.04 are prohibited. j) The stormwater management system approved in the Order of Conditions shall not be changed without the prior written approval of the issuing authority. k) Areas designated as qualifying pervious areas for the purpose of the Low Impact Site Design Credit (as defined in the MassDEP Stormwater Handbook, Volume 3, Chapter 1, Low Impact Development Site Design Credits) shall not be altered without the prior written approval of the issuing authority. l) Access for maintenance, repair, and/or replacement of BMPs shall not be withheld. Any fencing constructed around stormwater BMPs shall include access gates and shall be at least six inches above grade to allow for wildlife passage. Brief Project Description: The installation of an approximately 767 linear foot Geotube extension to the North and an approximately 1,916 linear foot Geotube extension to the South of the existing Geotube, smaller aeotextile returns, planting of vegetation on the face of the bluff, and ongoing mitigation and monitoring of proiect performance. Special Conditions (See attached sheet(s) for additional Special Conditions numbered 1 through 22. D. Findings Under Municipal Wetlands Bylaw or Ordinance To the extent that the Order is based on a municipal bylaw or ordinance, and not on the Massachusetts Wetlands Protection Act or regulations, the Department has no jurisdiction to supersede the local by-law order. SOC-NOI-AFTERJANO8 StormwaterRegs 2-2014 WPA Form 5 — Order of Conditions • Page 8 of 16 Formatted for Registry of Deeds WPA Form 5 — Superseding Order of Conditions Massachusetts Department of Environmental Protection Bureau of Resource Protection — Wetlands Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 MassDEP File # SE 48-3115 E. Issuance This Order is valid for three years from the date of issuance, unless otherwise specified as a special condition pursuant to General Conditions 4 or 6. Issued by: Massachusetts Department of Environmental Protection: Signature: *ke31\614. James Ma Chief VVetlands & Waterways Program This Order is issued to the applicant as follows: q by Hand delivery on: 0 by certified mail on: JAN 2 8 2020 Date Certified Mail #7017 1450 0000 0281 4220 SOC-NOI-AFTERJANO8 StormwaterRegs 2-2014 WPA Form 5 — Order of Conditions • Page 9 of 16 Formatted for Registry of Deeds WPA Form 5 — Superseding Order of Conditions Massachusetts Department of Environmental Protection Bureau of Resource Protection — Wetlands Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 MassDEP File # SE 48-3115 F. Recording Information This Order of Conditions must be recorded in the Registry of Deeds or the Land Court for the district in which the land is located, within the chain of title of the affected property. In the case of recorded land, the Final Order shall also be noted in the Registry's Grantor Index under the name of the owner of the land subject to the Order. In the case of registered land, this Order shall also be noted on the Land Court Certificate of Title of the owner of the land subject to the Order of Conditions. The recording information on Page 10 of this form shall be submitted to the Department. Massachusetts Department of Environmental Protection — Southeast Region Issuing Authority To:Massachusetts Department of Environmental Protection — Southeast Region Issuing Authority Please be advised that the Order of Conditions for the Project at: 59-119 Baxter Road, Nantucket SE48-3115 Project Address — Street & Town Has been recorded at the Registry of Deeds of: Nantucket County For: DEP File Number Book Page Property Owner and has been noted in the chain of title of the affected property in: Book Page In accordance with the Order of Conditions issued on: Date If recorded land, the instrument number identifying this transaction is: Instrument Number If registered land, the document number identifying this transaction is: Document Number Signature of Applicant JM/nc SOC-NOl-AFTERJANO8 StormwaterRegs 2-2014 WPA Form 5 — Order of Conditions • Page 10 of 16 Formatted for Registry of Deeds WPA Form 5 - Superseding Order of Conditions Massachusetts Department of Environmental Protection Bureau of Resource Protection — Wetlands Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 MassDEP File # SE 48-3115 G. Appeal Rights and Time Limits The applicant, the landowner, any person aggrieved by the Superseding Order, Determination or other Reviewable Decision as defined at 310 CMR 10.04, who previously participated in the proceedings leading to this Reviewable Decision, the conservation commission, or any ten (10) residents of the city or town where the land is located if at least one resident was previously a participant in the permit proceeding, are hereby notified of their right to appeal this Reviewable Decision pursuant to M.G.L. c.30A, § 10, provided the request is made by certified mail or hand delivery to the Department, along with the appropriate filing fee and a MassDEP Fee Transmittal Form within ten (10) business days of the date of issuance of this Superseding Order or Determination, and addressed to: Case Administrator Office of Appeals and Dispute Resolution Department of Environmental Protection One Winter Street, 2nd Floor Boston, MA 02108 A copy of the request (hereinafter also referred to as Appeal Notice) shall at the same time be sent by certified mail or hand delivery to the Conservation Commission, the applicant, the person that requested the Superseding Order or Determination, and the issuing office of the MassDEP at: MassDEP 20 Riverside Drive Lakeville, MA 02347 In the event that a ten resident group requested the Superseding Order or Determination, the Appeal Notice shall be served on the designated representative of the ten resident group, whose name and contact information is included in this Reviewable Decision (when relevant). Contents of Appeal Notice An Appeal Notice shall comply with the Departments Rules for Adjudicatory Proceedings, 310 CMR 1.01(6) and 310 CMR 16.05(7)(j), and shall contain the following information: (a) the MassDEP Wetlands File Number, name of the applicant, landowner if different from applicant, and address of the project; (b) the complete name, mailing address, email address, and fax and telephone numbers of the party filing the Appeal Notice; if represented by consultant or counsel, the name, fax and telephone numbers, email address, and mailing address of the representative; if a ten residents group, the same information for the group's designated representative; (c) if the Appeal Notice is filed by a ten (10) resident group, then a demonstration of participation by at least one resident in the previous proceedings that led to this Reviewable Decision; (d) if the Appeal Notice is filed by an aggrieved person, then a demonstration of participation in the previous proceeding that lead to this Reviewable Decision and sufficient written facts to demonstrate status as a person aggrieved; (e) the names, telephone and fax numbers, email addresses, and mailing addresses of all other interested parties, if known; SOC-NOI-AFTERJANO8 StormwaterRegs 2-2014 WPA Form 5 — Order of Conditions • Page 11 of 16 Formatted for Registry of Deeds WPA Form 5 - Superseding Order of Conditions Massachusetts Department of Environmental Protection Bureau of Resource Protection — Wetlands Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 MassDEP File # SE 48-3115 (f) a clear and concise statement of the alleged errors contained in the Departments decision and how each alleged error in inconsistent with 310 CMR 10.00 and does not contribute to the protection of the interests identified in the Wetlands Protection Act, M.G.L. c.131, § 40, including reference to the statutory or regulatory provisions that the party filing the Appeal Notice alleges has been violated by the Departments Decision, and the relief sought, including any specific desired changes to the Departments decision; (g) a copy of the Departments Reviewable Decision that is being appealed and a copy of the underlying Conservation Commission decision if the Reviewable Decision affirms the Conservation Commission decision; (h) a statement that a copy of the request has been sent by certified mail or hand delivery to the applicant and the conservation commission; and (i) if asserting a matter that is Major and Complex, as defined at 310 CMR 10.04, a•statement requesting that the Presiding Officer make a designation of Major and Complex, with specific reasons supporting the request. Filing Fee and Address A copy of the Appeal Notice along with a MassDEP Fee Transmittal Form and a valid check or money order payable to the Commonwealth of Massachusetts in the amount of one hundred dollars ($100) must be mailed to: Commonwealth of Massachusetts Department of Environmental Protection Commonwealth Master Lockbox P.O. Box 4062 Boston, Massachusetts 02211 The request will be dismissed if the filing fee is not paid, unless the appellant is exempt or granted a waiver. The filing fee is not required if the appellant is a city or town (or municipal agency), county, district of the Commonwealth of Massachusetts, or a municipal housing authority. The Department may waive the adjudicatory hearing filing fee pursuant to 310 CMR 4.06(2) for a person who shows that paying the fee will create an undue financial hardship. A person seeking a waiver must file an affidavit setting forth the facts believed to support the claim of undue financial hardship together with the hearing request as provided above. SOC-NOI-AFTERJANO8 StormwaterRegs 2-2014 WPA Form 5 — Order of Conditions • Page 12 of 16 Formatted for Registry of Deeds Superseding Order of Conditions for Siasconset Beach Preservation Fund/Town of Nantucket, File No. SE 48-3115 Special Conditions: 1. This Superseding Order of Conditions (SOC) permits installation of an approximately 767 linear foot Geotube extension to the north and a portion of the approximately 1,916 linear foot proposed Geotube extension to the south in order to prevent storm damage to pre-1978 homes, installation of smaller geotextile returns on the ends of the Geotubes to prevent flanking and minimize end effects, planting of vegetation on the face of the coastal bank, and ongoing mitigation (beach nourishment) and monitoring. The proposed southern Geotube extension and smaller geotextile returns shall terminate at the southern boundary of Lot 63. Coir fiber roll returns may be installed on Lot 61 as needed. This SOC denies the proposed installation of Geotubes at the southem end (Lots 61, 59, and 55) of the approximately 1,916 linear foot southem Geotube extension. The Department has determined that the proposed Geotubes on Lots 61, 59 and 55 do not meet the performance standards for Coastal Banks at 310 CMR 10.30 (3). Specifically, the Department has determined that the proposed Geotubes are not required to prevent storm damage at this time, and there may be feasible alternatives to a coastal engineering structure. The SOC also denies the proposed installation of Geotubes along the southern end of the proposed project area where a coastal dune fronts the toe of the coastal bank (Lots 55, 53, 51B, and 51A). The Department has determined that the proposed Geotubes on Lots 55, 53, 51B, and 51A do not meet the performance standards for Coastal Banks at 310 CMR 10.30 (3). Specifically, the Department has determined that the proposed Geotubes are not required to prevent storm damage at this time, and there may be feasible alternatives to a coastal engineering structure. 2. Notice of work commencement shall be given to the Nantucket Conservation Commission (NCC) and the Department at least 48 hours prior to the commencement of work. 3. Prior to installation of the Geotube extensions on lots 63-87 and 105-119 and retums, the proponents 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 Geotubes and retums 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, the proponents shall submit an altemative construction methodology for the Departments review and approval. 4. Prior to installation of the Geotube extensions on lots 63-87 and 105-119 and returns, the proponents 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. 5. 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 SOC. 6. Access to the beach shall be from Hoick's Hollow north of the project area. A gate or similar structure shall be installed to control vehicular access to the beach at the Hoick's Hollow access point. 7. All sand used to fill and cover the Geotubes shall be imported from an off-site source and shall be clean sediment compatible in terms of grain size with the existing beach sediments. The Department reserves the right to request the grain size analysis of sediments used for beach nourishment. 8. As proposed, the smaller geotextile 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 retums shall remain on the beach and shall be used to restore the beach following construction. 9. 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 24 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. SOC-NOI-AFTERJANO8 StormwaterRegs 2-2014 WPA Form 5 — Order of Conditions • Page 13 of 16 Formatted for Registry of Deeds 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, the proponents may request the Department to re- assess the need for quarterly beach profiles. Such a request shall be accompanied with a report that provides reasonable justification for a reduced survey schedule. The final decision on any changes to the monitoring program rests with the Department. 10. As proposed, offshore (bathymetric) profiles shall be taken on an annual basis. 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 less. 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. 11. An annual assessment report summarizing the beach and bathymetric profile monitoring program 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 Departments review and approval. 12. 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. 13. Sand mitigation shall be at a rate of 22 cubic yards per linear foot (cy/lf) per year in accordance with the following schedule for the first 3 years: a. Provide initial cover of 22 cy/If during and/or immediately following construction of the Geotube extensions and returns. 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. c. Annually in September-November: Place an additional volume of sand, to ensure a substantial portion of the sand template volume (10-15 cy/lf) 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's November 12, 2013 letter (i.e., if half the vertical height of the lowest Geotube is exposed, place a minimum of 2 cy/lf). 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. e. Following 3 years of mitigation at a rate of 22 cubic yards per linear foot per year, the proponents may request the Department to re-assess the rate of sand mitigation. Such a request shall be accompanied with a report that provides reasonable justification for a modified mitigation rate. The final decision on any changes to the monitoring program rests with the Department. SOC-NOI-AFTERJANO8 StormwaterRegs 2-2014 WPA Form 5 — Order of Conditions • Page 14 of 16 Formatted for Registry of Deeds 14. 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 or dune and landward of MHW within 300 feet of the ends of the Geotubes. Any additional sand placed outside of the project area shall be equally distributed to the areas north and south of the project area. 15. Failure of the Siasconset Beach Preservation Fund (SBPF) to conduct the actions set out in subsections (a) to (e) 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 Department 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 in Special Conditions #s 7, 13, and 14. b. Failure to conduct the shoreline monitoring and post-storm monitoring as required in Special Conditions #s 9 through 12. 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 contact the Department and the NCC within 30 days of the completion of the quarterly survey. Upon notice, the Department shall commence an information gathering and consultation process to evaluate whether the shoreline loss is a result of the project. Following the conclusion of the evaluation the Department shall determine an appropriate course of action to address the beach loss associated with the project which may include, but is not limited to, changes to the placement of the sand template, an increase in the volume of sand mitigation, or project removal if impacts cannot be effectively mitigated. SBPF shall implement the Department's required mitigation within 30 days of receipt of written notification from the Department. e. Failure to maintain adequate beach width in front of the Geotubes. 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 contact the Department and the NCC. Upon notice, the Department shall commence an information gathering and consultation process. Following the conclusion of the evaluation, the Department shall determine an appropriate course of action which may include, but is not limited to, changes to the placement of the sand template, an increase in the volume of sand mitigation, or Geotube removal if impacts cannot be effectively mitigated. SBPF shall implement the Department's required mitigation within 30 days of receipt of written notification from the Department. 16. In the event certain failure criteria have been met and the Department orders Geotube removal, 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 SOC 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. 17. The 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. 18. As proposed, exposed areas on the face of the coastal bank, other than the upper 5-7 feet between lots 109 and 115 Baxter Road, may be stabilized using biodegradable erosion control blankets planted with beach grass and/or SOC-NOI-AFTERJANO6 StormwaterRegs 2-2014 WPA Form 5 — Order of Conditions • Page 15 of 16 Formatted for Registry of Deeds other indigenous coastal vegetation. The erosion control blankets and plantings shall be installed with hand tools with workers repelling down the bank face. 19. All construction refuse shall be removed from the site and disposed of in compliance with all local, State, and Federal laws and regulations. 20. Upon completion of the proposed installation of the North and South Geotube extensions and retums, a partial Certificate of Compliance shall be requested in accordance with General Condition No. 11, and under the provisions of 310 CMR 10.05 (9)(d). 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. 21. A portion of the proposed project is located within mapped Priority and Estimated Habitat of state-protected rare species by the Natural Heritage and Endangered Species Program of the Division of Fisheries and Wildlife (Division). As such, the proponent must adhere to the following conditions: a. All work, including all access locations (e.g. Hoicks Hollow), located within Priority Habitat is prohibited during the period April 1 — August 31, unless a monitoring and protection plan for state-listed species has been approved in writing by the Division. b. To reduce end scour and impacts to the Coastal Dune located within Priority Habitat, prior to the start of work, a nourishment plan that enhances or maintains Coastal Dune shall be submitted to the Division for review and written approval. c. The Applicant has the responsibility of protecting breeding Piping Plovers and state-listed species of terns that may be on this section of beach. Therefore, the Applicant must allow regular monitoring for the presence of Piping Plovers and tems by a qualified shorebird monitor, as determined by the Division, during the period April 1 — August 31 and shall allow any nests, scrapes, or unfledged chicks to be protected with symbolic fencing (warning signs and twine fencing). d. Within sixty (60) days of completion of work, the Applicant shall submit to the Division as-built site plans and a brief written report including photographs showing final constructed conditions with particular emphasis on demonstrating compliance with the conditions herein. e. The Division authorization is valid for 5 years from the date of issuance and limited to the project described herein. f. Upon filing for renewal, extension, or amendment of the Superseding Order of Condition, the applicant shall contact the Division for written response regarding impacts to Resource Area habitat of state-listed wildlife. 22. This SOC does not relieve the applicant/owner from complying with the Town of Nantucket Wetland Bylaw. SOC-NOI-AFTERJANO8 StormwaterRegs 2-2014 WPA Form 5 — Order of Conditions • Page 16 of 16 Formatted for Registry of Deeds Record & Assessed Owners: 59-119 Baxter Road - 2018prooratv Adam. 59 Nyder Road Man & Perrot 4920 Record IlpeltoldroRe:ofteninformationKevin F. Dale, Trustee c4 540mq:eche Nemo-lee Trust Kevin F. Dere, TmetasibileManopsohe Nominee Twat 019072 61 Barter ROM 49,21 Ann R. Healey, TniStee Of the MayllOY,W OPRT Ann R. Healey. Triable Of the MOMS* QPRT 1325/277Mt Baxbatioad 49.12 Ensabeth Singer. Trustee of the 64 Seder Road Realty Trust insabeth Slags, Minter of the 54 Sawa kold Rests, In*01984465 Bader Road 4923 Thomas Tome & Marrone Tuttle Thomas Tulle & Shaman Tuttle 1200/102$7 So der Road 49-24 Morning Light LLC, Margaret Hearst manager Morning Light LLC, Margaret Hearst manager 845126965 Baxter Rood 4925 Richard tr Warm L. Mosticid Rioltard & Madonna L Mosoicid 1294/11771 Mater Road 49,26.1 John C. Mersa and Carol Bunevich John C. Merson and Carol Bunevich C2126173 Baler Road 49-27 Christian M. Darby Chnstlan M. Darby 1815/31075 Bader Raid 49-30 SlualitY Oita Moue, LLC, John E. Osborn end Deborah P. Osborn manager Sankaly Muff Omar. LLC. John E. Osborn and Deborah P. Osborn manager 1152/7677 Soder Road 4931 Joshua Posner and Been Rudden Joshua C. Posner and Eisen M. Redden 01753679 Baxter Road 49-32 Helmut F. Weymar & Coate S. Marna f. Helmet Warner & Catalina S. Waymar 01280481 Saar Road 49-33 •WIlliern D. & Deborah Fuller CohanWilliamO.& °abash Futter Cohan C23689$3 Baxter Road 49-34 Made Dostalter and Richard Touche:he horde Dostaller and Richard Tounhaite 02369886 Beater Road 4935 Slasconset Fund, ino. -Joshua Power President Matoonstat Prasenedon Fund, Ines- Joshua Posner President 02609687 Bader Road 498 Samuel Farow & Ann Furrow Samuel Furrow & Ann Furrow warm91 Bader Road 4922 Dark/ L Korengold, Trustee of O&M Mader Road Nominee Must Daniel L. Konnigold, Trustee MONA Mager Road Nominee Must 1352/4693 Omar Road 48-21 Steven T. & Edn P. Fromm Sayan T. & Erin P. Freeman 1069/9797 Saxtar Road 4919 Lawrence C. & Memaret McQuade Lawrence C. & Margaret McQuade 01708799 Baxter Rood 48-19 Ann B. Furrow Ann B. Films WOW10113exter Road 48-17 101 Baxter Road LLC, James E. Walker and Deborah C. Walker managers 101 Balder Flood LLC, Jamas E. Walker end Deborah C. Walker =mem 0149/0341105 Bader Reed 48-15 8. Matteson. as Trustee of Wiese BM Matteson Nominee Truitt Marilee B. Matteeon. ars True* Marilee Mattesco Nominee That°025689107 Baxter Rout 4914.1 W Moles hitney A Mont. Trusteed B.C. Nominee Trust Hannah J. Drell. Trustee of 13.3. Trust 0128510217107A Baxter Road 48-14 Whitno/A. Offford. °vase 0 S.G. Nominee Trust Whitney A. Word, Trustee OSA. Nominee Trial 847/191109 Maim Rood 48-12 Justus Muctal Kenney. Mesas of Frederick P. MEMOS LMno Trust •Justine alsecial Kenney, Trustee of Frederick P. Mitscio6 Lh4no Trued 026169113 Baxter Raid 48-11 Loretta Yoder and Kyle L Mariam Loretta Yoder and Kyle L Leber.,525/147115 Baxter MS 48-10 116 Mater LLC, John Klemm meager 116 Baxter U.C, John !Chown manager 15131335117 May Rd 48-9 Stephan B. Cohen Stephen B. Cohen 575/163119 Baxter Rd 48-7 Samoa Trust. Inc.- Ewa Gaystra President Sosnset Trust, Mo. - Elliot Goseetz Pmeldent C18718Monad Muff 48.0 Town a NatWest Town a Nantudrat 102/118Monger Ma 48-6 Town of Nantucket Towner Nantucket 186/62Somali EMT 48-6 Town of Nantucket Town of Manua*01702Bannon Mutt 496 Scent* TrUM, Inc.- Oat Smartt Pmaident ScCoiet Trust, Inc. • Mot GevildaPnerldent Impoitant: When filling out forms • on the computer, use only the tab key to move your cursor - do not Use the return key. Massachusetts Department of Environmental Protection Adjudicatory Hearing Fee Trans Mai Form IMPORTANT! This form is intended for fee transmittal only. The contents of a reque6t for an adjudicatory .appeal (Notice of Claim) are established at 310 CMR 1.01(6) and the substantive statutes and regulations governing the Department's action. A. Person/Party Making Request 1. Name and address of person or party making request: Name - If appropriate, name group representative Street Address City 2. Project Information: State Zp Code Street Address City DEP File or ID Number Email Address State Zip Code Amount of filing fee attached B. Applicant (if applicable) • . 1. Name and address of applicant Name - If appropriate, name group representative Street Address City Email Address ' State • Zip Code. C. Instructions Send this form and check or money order of $100:00 payable to the Commonwealth of , Massachusetts to the MassDEP Lockbox at Department of Environmental Protection" • P.O. Box 4062 Boston, MA 02211 2. Send a copy of this form and a copy of the check or money order with. the.Request for Adjudicatory Appeal (Notice of Claim) to: • Case Administrator Office of Appeals and Dispute Resolution One Winter Street Boston, MA 02108 • Aci.Hearing Fee Transmittal 2014.doc.• rev. 5/13 Adjudicator/ Hearing Fee Transmittal Form • Page 1 of EXHIBIT B Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands WPA Form 5 — Order of Conditions Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 And the Town of Nantucket Wetlands Bylaw Chapter 136 Provided by MassDEP: SE48-3115 MassDEP File # eDEP Transaction # Nantucket City/Town A. General Information .1. From: Conservation Commission Nantucket 2. This issuance is for (check one): 3. To: Applicant: Josh a. ®Order 6f Conditions b. q Amended Order of Conditions Posner a. First Name b. Last Name Siasconset Beach Preservation Fund (SBPF) c. Organization P.O Box 2279 d. Mailing Address Nantucket MA 02584 e. City/Town 4. Property Owner (if different from applicant): f. State g. Zip Code a. First Name b. Last Name See Attached Property Owners (Town of Nantucket and Property Owners 59-119 Baxter Rd) c. Organization d. Mailing Address e. City/Town 5. Project Location: 59-119 Baxter Road (plus returns) See Attached List Nantucket f. State g. Zip Code a. Street Address b. City/Town See Attached list See Attached list c. Assessors Map/Plat Number d. Parcel/Lot Number Latitude and Longitude, if known:d. Latitude e. Longitude wpaform5.doo • rev. 03/2/2010 Page 1 of 12 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands WPA Form 5 - Order of Conditions Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 And the Town of Nantucket Wetlands Bylaw Chapter 136 Provided by MassDEP: SE48-3115 MassDEP File # eDEP Transaction # Nantucket City/Town A. General Information (cont.) 6. Property recorded at the Registry of Deeds for (attach additional information if more than one parcel): Nantucket See Attached List a. County b. Certificate Number (if registered land) c. Book d. Page 7. Dates:01/05/2018 05/20/2019 06/20/2019 a. Date Notice of Intent Filed b. Date Public Hearing Closed c. Date of Issuance 8. Final Approved Plans and Other Documents (attach additional plan or document references as needed): Expanded Baxter Road and Sconset Bluff Storm Damage Prevention Project Permit Drawings (6 sheets) a. Plan Title Baird W.F Baird & Associates Ltd. Gordon G. Thomson, P.E. b. Prepared By c. Signed and Stamped by 05-15-2019 N/A d. Final Revision Date e. Scale f. Additional Plan or Document Title g. Date B. Findings 1. Findings pursuant to the Massachusetts Wetlands Protection Act: Following the review of the above-referenced Notice of Intent and based on the information provided in this application and presented at the public hearing, this Commission finds that the areas in which work is proposed is significant to the following interests of the Wetlands Protection Act (the Act). Check all that apply: a. d. g. q Public Water Supply b. El Land Containing Shellfish c' q Private Water Supply e. Z Fisheries q Groundwater Supply h. Z Storm Damage Prevention I. j. EI Wetland Scenic Views (bylaw) k. El Prevention of Pollution f. E] Protection of Wildlife Habitat 1:S] Flood Control LEI Recreation (Bylaw) 2. This Commission hereby finds the project, as proposed, is: (check one of the following boxes) Approved subject to: a. q the following conditions which are necessary in accordance with the performance standards set forth in the wetlands regulations. This Commission orders that all work shall be performed in accordance with the Notice of Intent referenced above, the following General Conditions, and any other special conditions attached to this Order. To the extent that the following conditions modify or differ from the plans, specifications, or other proposals submitted with the Notice of Intent, these conditions shall control. wpaform5.doc • rev. 03/2/2010 Page 2 of 12 Resource Area a. q Bank 5. q Bordering Vegetated Wetland 6. q Land Under Waterbodies and Waterways 7. q Bordering Land Subject to Flooding Cubic Feet Flood Storage 8. q Isolated Land Subject to Flooding Cubic Feet Flood Storage 9. q Riverfront Area Sq ft within 100 ft Sq ft between 100- 200 ft Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands WPA Form 5 - Order of Conditions Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 And the Town of Nantucket Wetlands Bylaw Chapter 136 Provided by MassDEP: SE48-3115 MassDEP File # eDEP Transaction # Nantucket City/Town B. Findings (cont.) Denied because: b. ED the proposed work cannot be conditioned to meet the performance standards set forth in the wetland regulations. Therefore, work on this project may not go forward unless and until a new Notice of Intent is submitted which provides measures which are adequate to protect the interests of the Act, and a final Order of Conditions is issued. A description of the performance standards which the proposed work cannot meet is attached to this Order. c. q the information submitted by the applicant is not sufficient to describe the site, the work, or the effect of the work on the interests identified in the Wetlands Protection Act. Therefore, work on this project may not go forward unless and until a revised Notice of Intent is submitted which provides sufficient information and includes measures which are adequate to protect the Acts interests, and a final Order of Conditions is issued. A description of the specific information which is lacking and why it is necessary is attached to this Order as per 310 CMR 10.05(6)(c). 3. q Buffer Zone Impacts: Shortest distance between limit of project disturbance and the wetland resource area specified in 310 CMR 10.02(1)(a) Inland Resource Area Impacts: Check all that apply below. (For Approvals Only) Proposed Permitted Proposed Permitted Alteration Alteration Replacement Replacement a. linear feet a. linear feet b. linear feet c. linear feet d. linear feet a. square feet b. square c. square feet d. square feet a. square feet b. square c. square feet d. square feet e. c/y dredged f. c/y a. square feet b. square c. square feet d. square feet e. cubic feet f. cubic feet g. cubic feet h. cubic feet a. square feet b. square c. cubic feet d. cubic feet e. cubic feet f. cubic feet a. total sq. feet b. total sq. c. square feet d. square e. square feet f. square feet g. square feet h. square i. square feet j. square feet wpaform5.doc • rev. 03/2/2010 Page 3 of 12 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands WPA Form 5 - Order of Conditions Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 And the Town of Nantucket Wetlands Bylaw Chapter 136 Provided by MassDEP: SE48-3115 MassDEP File # eDEP Transaction # Nantucket City/Town B. Findings (cont.) Coastal Resource Area Impacts: Check all that apply below. (For Approvals Only) Proposed Permitted Proposed Permitted Alteration Alteration Replacement Replacement io. q Designated Port Indicate size under Land Under the Ocean, below Areas 11. q Land Under the Ocean a. square feet b. square 12. q Barrier Beaches 13. q Coastal Beaches 14. q Coastal Dunes c. c/y dredged d. c/y Indicate size under Coastal Beaches and/or Coastal Dunes below a. square feet b. square feet a. square feet b. square 15. q Coastal Banks a. linear feet b. linear feet 16. q Rocky Intertidal Shores a. square feet b. square 17. q Salt Marshes a. square feet b. square 18. q Land Under Salt Ponds a. square feet b. square 19. q Land Containing Shellfish 20. q Fish Runs 21. Eg Land Subject to Coastal Storm ' Flowage c. c/y dredged d. c/y a. square feet b. square cu yd cu yd c. nourishment d. nourishment cu yd cu yd c. nourishment d. nourishment c. square feet d. square feet c. square feet d. square feet Indicate size under Coastal Banks, Inland Bank, Land Under the Ocean, and/or inland Land Under Waterbodies and Waterways, above a. c/y dredged b. c/y a. square feet b. square wpaform5.doc rev. 03/2/2010 Page 4 of 12 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands WPA Form 5 - Order of Conditions Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 And the Town of Nantucket Wetlands Bylaw Chapter 136 Provided by MassDEP: SE48-3115 MassDEP File # eDEP Transaction # Nantucket City/Town B. Findings (cont.) 22. q Restoration/Enhancement *: a. square feet of BVW b. square feet of salt marsh 23. q Stream Crossing(s): a. number of new stream crossings b. number of replacement stream crossings C. General Conditions Under Massachusefts Wetlands Protection Act The following conditions are only applicable to Approved projects. 1. Failure to comply with all conditions stated herein, and with all related statutes and other regulatory measures, shall be deemed cause to revoke or modify this Order. 2. The Order does not grant any property rights or any exclusive privileges; it does not authorize any injury to private property or invasion of private rights. 3. This Order does not relieve the permittee or any other person of the necessity of complying with all other applicable federal, state, or local statutes, ordinances, bylaws, or regulations. 4. The work authorized hereunder shall be completed within three years from the date of this Order unless either of the following apply: a. the work is a maintenance dredging project as provided for in the Act; or b. the time for completion has been extended to a specified date more than three years, but less than five years, from the date of issuance. If this Order is intended to be valid for more than three years, the extension date and the special circumstances warranting the extended time period are set forth as a special condition in this Order. 5. This Order may be extended by the issuing authority for one or more periods of up to three years each upon application to the issuing authority at least 30 days prior to the expiration date of the Order. 6. If this Order constitutes an Amended Order of Conditions, this Amended Order of Conditions does not extend the issuance date of the original Final Order of Conditions and the Order will expire on 06/17/22 unless extended in writing by the Department. 7. Any fill used in connection with this project shall be clean fill. Any fill shall contain no trash, refuse, rubbish, or debris, including but not limited to lumber, bricks, plaster, wire, lath, paper, cardboard, pipe, tires, ashes, refrigerators, motor vehicles, or parts of any of the foregoing. 8. This Order is not final until all administrative appeal periods from this Order have elapsed, or if such an appeal has been taken, until all proceedings before the Department have been completed. wpaform5.doc • rev. 03/2/2010 Page 5 of 12 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands WPA Form 5 — Order of Conditions Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 And the Town of Nantucket Wetlands Bylaw Chapter 136 Provided by MassDEP: SE48-3115 MassDEP File # eDEP Transaction # Nantucket City/Town C. General Conditions Under Massachusetts Wetlands Protection Act (cont.) 9. No work shall be undertaken until the Order has become final and then has been recorded in the Registry of Deeds or the Land Court for the district in which the land is located, within the chain of title of the affected property. In the case of recorded land, the Final Order shall also be noted in the Registry's Grantor Index under the name of the owner of the land upon which the proposed work is to be done. In the case of the registered land, the Final Order shall also be noted on the Land Court Certificate of Title of the owner of the land upon which the proposed work is done. The recording information shall be submitted to the Conservation Commission on the form at the end of this Order, which form must be stamped by the Registry of Deeds, prior to the commencement of work. 10. A sign shall be displayed at the site not less then two square feet or more than three square feet in size bearing the words, "Massachusetts Department of Environmental Protection" [or, "MassDEP"] "File Number SE48- 3115 " 11. Where the Department of Environmental Protection is requested to issue a Superseding Order, the Conservation Commission shall be a party to all agency proceedings and hearings before MassDEP. 12. Upon completion of the work described herein, the applicant shall submit a Request for Certificate of Compliance (WPA Form 8A) to the Conservation Commission. 13. The work shall conform to the plans and special conditions referenced in this order. 14. Any change to the plans identified in Condition #13 above shall require the applicant to inquire of the Conservation Commission in writing whether the change is significant enough to require the filing of a new Notice of Intent. 15. The Agent or members of the Conservation Commission and the Department of Environmental Protection shall have the right to enter and inspect the area subject to this Order at reasonable hours to evaluate compliance with the conditions stated in this Order, and may require the submittal of any data deemed necessary by the Conservation Commission or Department for that evaluation. 16. This Order of Conditions shall apply to any successor in interest or successor in control of the property subject to this Order and to any contractor or other person performing work conditioned by this Order. 17. Prior to the start of work, and if the project involves work adjacent to a Bordering Vegetated Wetland, the boundary of the wetland in the vicinity of the proposed work area shall be marked by wooden stakes or flagging. Once in place, the wetland boundary markers shall be maintained until a Certificate of Compliance has been issued by the Conservation Commission. wpaform6.doo • rev. 03/2/2010 Page 6 of 12 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands WPA Form 5 - Order of Conditions Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 And the Town of Nantucket Wetlands Bylaw Chapter 136 Provided by MassDEP: SE48-3115 MassDEP File # eDEP Transaction # Nantucket City/Town C. General Conditions Under Massachusetts Wetlands Protection Act (cont.) 18. All sedimentation barriers shall be maintained in good repair until all disturbed areas have been fully stabilized with vegetation or other means. At no time shall sediments be deposited in a wetland or water body. During construction, the applicant or his/her designee shall inspect the erosion controls on a daily basis and shall remove accumulated sediments as needed. The applicant shall immediately control any erosion problems that occur at the site and shall also immediately notify the Conservation Commission, which reserves the right to require additional erosion and/or damage prevention controls it may deem necessary. Sedimentation barriers shall serve as the limit of work unless another limit of work line has been approved by this Order. NOTICE OF STORMWATER CONTROL AND MAINTENANCE REQUIREMENTS 19. The work associated with this Order (the "Project") is (i) q is not (2) ►I subject to the Massachusetts Stormwater Standards. If the work is subject to the Stormwater Standards, then the project is subject to the following conditions: a) All work, including site preparation, land disturbance, construction and redevelopment, shall be implemented in accordance with the construction period pollution prevention and erosion and sedimentation control plan and, if applicable, the Stormwater Pollution Prevention Plan required by the National Pollution Discharge Elimination System Construction General Permit as required by Stormwater Condition 8. Construction period erosion, sedimentation and pollution control measures and best management practices (BMPs) shall remain in place until the site is fully stabilized. b) No stormwater runoff may be discharged to the post-construction stormwater BMPs unless and until a Registered Professional Engineer provides a Certification that: L all construction period BMPs have been removed or will be removed by a date certain specified in the Certification. For any construction period BMPs intended to be converted to post construction operation for stormwater attenuation, recharge, and/or treatment, the conversion is allowed by the MassDEP Stormwater Handbook BMP specifications and that the BMP has been properly cleaned or prepared for post construction operation, including removal of all construction period sediment trapped in inlet and outlet control structures; ii. as-built final construction BMP plans are included, signed and stamped by a Registered Professional Engineer, certifying the site is fully stabilized; iii. any illicit discharges to the stormwater management system have been removed, as per the requirements of Stormwater Standard 10; iv. all post-construction stormwater BMPs are installed in accordance with the plans (including all planting plans) approved by the issuing authority, and have been inspected to ensure that they are not damaged and that they are in proper working condition; v. any vegetation associated with post-construction BMPs is suitably established to withstand erosion. wpaform5.doe • rev. 03/2/2010 Page 7 of 12 ci Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands WPA Form 5 — Order of Conditions Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 And the Town of Nantucket Wetlands Bylaw Chapter 136 Provided by MassDEP: SE48-3115 MassDEP File # eDEP Transaction # Nantucket City/Town C. General Conditions Under Massachusetts Wetlands Protection Act (cont.) c) The landowner is responsible for BMP maintenance until the issuing authority is notified that another party has legally assumed responsibility for BMP maintenance. Prior to requesting a Certificate of Compliance, or Partial Certificate of Compliance, the responsible party (defined in General Condition 18(e)) shall execute and submit to the issuing authority an Operation and Maintenance Compliance Statement ("O&M Statement) for the Stormwater BMPs identifying the party responsible for implementing the stormwater BMP Operation and Maintenance Plan ("O&M Plan") and certifying the following: i.) the O&M Plan is complete and will be implemented upon receipt of the Certificate of Compliance, and ii.) the future responsible parties shall be notified in writing of their ongoing legal responsibility to operate and maintain the stormwater management BMPs and implement the Stormwater Pollution Prevention Plan. d) Post-construction pollution prevention and source control shall be implemented in accordance with the long-term pollution prevention plan section of the approved Stormwater Report and, if applicable, the Stormwater Pollution Prevention Plan required by the National Pollution Discharge Elimination System Multi-Sector General Permit. e) Unless and until another party accepts responsibility, the landowner, or owner of any drainage easement, assumes responsibility for maintaining each BMP. To overcome this presumption, the landowner of the property must submit to the issuing authority a legally binding agreement of record, acceptable to the issuing authority, evidencing that another entity has accepted responsibility for maintaining the BMP, and that the proposed responsible party shall be treated as a permittee for purposes of implementing the requirements of Conditions 18(f) through 18(k) with respect to that BMP. Any failure of the proposed responsible party to implement the requirements of Conditions 18(f) through 18(k) with respect to that BMP shall be a violation of the Order of Conditions or Certificate of Compliance. In the case of stormwater BMPs that are serving more than one lot, the legally binding agreement shall also identify the lots that will be serviced by the stormwater BMPs. A plan and easement deed that grants the responsible party access to perform the required operation and maintenance must be submitted along with the legally binding agreement. f) The responsible party shall operate and maintain all stormwater BMPs in accordance with the design plans, the O&M Plan, and the requirements of the Massachusetts Stormwater Handbook. wpaform5.doc • rev. 03/2/2010 Page 8 of 12 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands WPA Form 5 — Order of Conditions Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 And the Town of Nantucket Wetlands Bylaw Chapter 136 Provided by MassDEP: SE48-3115 MassDEP File # eDEP Transaction # Nantucket City/Town C. General Conditions Under Massachusetts Wetlands Protection Act (cont.) g)The responsible party shall: 1. Maintain an operation and maintenance log for the last three (3) consecutive calendar years of inspections, repairs, maintenance and/or replacement of the stormwater management system or any part thereof, and disposal (for disposal the log shall indicate the type of material and the disposal location); 2. Make the maintenance log available to MassDEP and the Conservation Commission ("Commission") upon request; and 3. Allow members and agents of the MassDEP and the Commission to enter and inspect the site to evaluate and ensure that the responsible party is in compliance with the requirements for each BMP established in the O&M Plan approved by the issuing authority. h) All sediment or other contaminants removed from stormwater BMPs shall be disposed of in accordance with all applicable federal, state, and local laws and regulations. i) Illicit discharges to the stormwater management system as defined in 310 CMR 10.04 are prohibited. j) The stormwater management system approved in the Order of Conditions shall not be changed without the prior written approval of the issuing authority. , k) Areas designated as qualifying pervious areas for the purpose of the Low Impact Site Design Credit (as defined in the MassDEP Stormwater Handbook, Volume 3, Chapter 1, Low Impact Development Site Design Credits) shall not be altered without the prior written approval of the issuing authority. l) Access for maintenance, repair, and/or replacement of BMPs shall not be withheld. Any fencing constructed around stormwater BMPs shall include access gates and shall be at least six inches above grade to allow for wildlife passage. Special Conditions (if you need more space for additional conditions, please attach a text document): wpaform5.doc • rev. 03/2/2010 Page 9 of 12 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands WPA Form 5 - Order of Conditions Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 And the Town of Nantucket Wetlands Bylaw Chapter 136 Provided by MassDEP: SE48-3115 MassDEP File # eDEP Transaction # Nantucket City/Town D. Findings Under Municipal Wetlands Bylaw or Ordinance 1. Is a municipal wetlands bylaw or ordinance applicable? [E] Yes q No 2. The Nantucket hereby finds (check one that applies): Conservation Commission a. q that the proposed work cannot be conditioned to meet the standards set forth in a municipal ordinance or bylaw, specifically: b. 1. Municipal Ordinance or Bylaw 2. Citation Therefore, work on this project may not go forward unless and until a revised Notice of Intent is submitted which provides measures which are adequate to meet these standards, and a final Order of Conditions is issued. q that the following additional conditions are necessary to comply with a municipal ordinance or bylaw: 1. Municipal Ordinance or Bylaw 2. Citation 3. The Commission orders that all work shall be performed in accordance with the following conditions and with the Notice of Intent referenced above. To the extent that the following conditions modify or differ from the plans, specifications, or other proposals submitted with the Notice of Intent, the conditions shall control. The special conditions relating to municipal ordinance or bylaw are as follows (if you need more space for additional conditions, attach a text document): Please view additional findings and conditions page(s) wpaform5.doe • rev. 03/2/2010 Page 10 of 12 DENIAL Massachusetts Wetlands Protection Act (MGL Chapter 131, Section 40) Town of Nantucket Wetlands Bylaw (Chapter 136) Address: Assessor's Map and Parcels: Property Owner: Applicant: DEP File Number: Filing Date: Date Healing Closed: Date Orders Issued: Plan of Record Information: 59-119 Baxter Road and See attached list Town of Nantucket/see attached list Siasconset Beach Preservation Fund, Inc. (SBPF) SE48-3115 January 5, 2018 May 20, 2019 June 17, 2019 Expanded Baxter Road and Sconset Bluff Storm Damage Prevention Project Permit Drawings (6 sheets), dated 2019-01-10, final revision 2019-05-15 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, final revision of 2019-05-15 and stamped by Gordon G. Thompson, P.E. The Commission also considered and relied upon testimony at public hearings and other pertinent supplemental information including and not limited to: • 9-12-2018 Memo from Ian Golding • Sconset Bluff Images provided by Ian Golding • Sand samples dated 3-16-18 from Ian Golding • 9-27-2018 Letter from the Nantucket Land Council • 9-27-2018 Letter from the Nantucket Coastal Conservancy • 9-28-2018 Letter from Applied Coastal • 10-30-2018 Comments from the Nantucket Land Council and Applied Coastal • 11-02-2018 Letter from Epsilon Associates • Work Logs from January-March 2018 provided by SBPF • 11-5-2018 Letter from Epsilon Associates • 11-19-2018 Letter from Nantucket Coastal Conservancy • 11-30-2018 Letter from SBPF • 11-30-2018 Letter from Nantucket Coastal Conservancy • 11-30-2018 Letter from Applied Coastal • 12-03-2018 Letter from SBPF • 12-03-2018 Letter from Nantucket Coastal Conservancy • 12-3-2018 Letter from Judith Wegner • 1-15-2019 Revised Project Plans from SBPF Siasconset Beach Preservation Fund, SE48-3115; 59-119 Baxter Road • 2-1-2019 Materials from Ian Golding • 2-1-2019 Review of project from Greg Berman • 2-7-2019 Letter from SBPF • 2-8-2019 Letter from Peter Kellner • 2-11-2019 Letter from Quidnet Squam Association • 2-11-2019 Two letters from SBPF • 2-11-2019 Letter from Nantucket Land Council • 2-11-2019 Letter from Dirk Roggeveen • 2-8-2019 Updated Project Plans from SBPF • 3-1-2019 Determination from Massachusetts Natural Heritage and Endangered Species Program • 3-4-2019 Letter from Nantucket Coastal Conservancy • 3-4-2019 Letter from SBPF • 3-6-2019 Letter from Nantucket Coastal Conservancy • 3-6-2019 Letter from Applied Coastal • 3-8-2019 Two Letters from SBPF • 3-8-2019 Letter from Judith Wegner • 3-11-2019 Letter from Nantucket Coastal Conservancy • 3-11-2019 Comments from Judith Wegner • Jim O'Connell Letter from 11-4-2013 submitted • Superseding Order of Conditions SE48-2610 dated December 19, 2014 • 3-11-2019 Letter from SBPF • 3-18-2019 Letter from Nantucket Coastal Conservancy • 3-25-2019 Letter from Epsilon Associates • 4-22-2019 Comments from Barbara Bund • 4-22-2019 Comment from Nantucket Coastal Conservancy • 4-23-2019 Comments from Nantucket Coastal Conservancy • 4-22-2019 Comments from SBPF • 4-25-2019 Letter from Kopelman and Paige (Town Counsel) • 5-1-2019 Comments from Nantucket Coastal Conservancy • 5-14-2019 Letter from Epsilon Associates • 5-14-2019 Letter from SBPF • 5-15-2019 Revised Project Plans from SBPF • 5-16-2019 Letter from Applied Coastal • 5-16-2019 Letter from Nantucket Land Council • 5-20-2019 Letter from SBPF 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 fmds that the geotube system is a coastal engineering structure. Siasconset Beach Preservation Fund, SE48-3115; 59-119 Baxter Road 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 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 Siasconset Beach Preservation Fund, SE48-3115; 59-119 Baxter Road 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 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 Siasconset Beach Preservation Fund, SE48-3115; 59-119 Baxter Road 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 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. Siasconset Beach Preservation Fund, SE48-3115; 59-119 Baxter Road Record & Assessed Owners:59-119 Baxter Road - 2018 Property AddressMap & Parcel Record Title Holder Assessed Owner Recording information 59 Baxter Road 49-20 Kevin F. Dale, Trustee of 59 Canopache Nominee Trust Kevin F. Dale, Trustee of 59 Canopache Nominee Trust C19072 61 Baxter Road 49-21 Ann R. Healey, Trustee of the Mayflower QPRT Ann R. Healey, Trustee of the Mayflower QPRT 1325/277 63 Baxter Road 49-22 Elizabeth Singer, Trustee of the 64 Baxter Road Realty Trust Elizabeth Singer, Trustee of the 64 Baxter Road Realty Trust C19844 65 Baxter Road 49-23 Thomas Tuttle & Sharmila Tuttle Thomas Tuttle & Sharmila Tuttle 1200/102 67 Baxter Road 49-24 Moming Light LLC, Margaret Hearst manager Morning Light LLC, Margaret Hearst manager 845/269 69 Baxter Road 49-25 Richard & Marianne L. Moscicki Richard & Marianne L Moscicki 1294/117 71 Baxter Road 49-26.1 John C. Merson and Carol Bunevich John C. Merson and Carol Bunevich 021251 73 Baxter Road 49-27 Christian M. Darby Christian M. Darby 1315/310 75 Baxter Road 49-30 Sankaty Bluff Group, LLC, John E. Osborn and Deborah P. Osborn manager Sankaty Bluff Group. LLC, John E. Osbom and Deborah P. Osbom manager 1152/78 77 Baxter Road 49-31 Joshua Posner and Eileen Rudden Joshua C. Posner and Eileen M. Rudden C17538 79 Baxter Road 49-32 Helmut F. Weymar & Caroline S. Weymar F. Helmut Weymar & Caroline S. Weymar C12804 81 Baxter Road 49-33 William D. & Deborah Futter Cohan William D. & Deborah Futter Cohan 023689 83 Baxter Road 49-34 Marie Dostalier and Richard Touchette Marie Dostalier and Richard Touchette C23698 85 Baxter Road 49-35 Siasconset Preservation Fund, Inc. -Joshua Posner President Siasconset Preservation Fund. Inc. - Joshua Posner President C26035 87 Baxter Road 49-8 Samuel Furrow & Ann Furrow Samuel Furrow & Ann Furrow 839/295 91 Baxter Road 48-22 Daniel L. Korengold, Trustee of D&M Baxter Road Nominee Trust Daniel L Korengold, Trustee of D&M Baxter Road Nominee Trust 1352/45 93 Baxter Road 48-21 Steven T. & Erin P. Freeman Steven T. & Erin P. Freeman 1069/97 97 Baxter Road 48-19 Lawrence C. & Margaret McQuade Lawrence C. & Margaret McQuade C17087 99 Baxter Road 48-18 Ann B. Furrow Ann B. Furrow C20681 101 Baxter Road 48-17 101 Baxter Road LLC, James E. Walker and Deborah C. Walker managers 101 Baxter Road LLC, James E. Walker and Deborah C. Walker managers 01427/0341 105 Baxter Road 48-15 Marilee B. Matteson. as Trustee of Marilee Brill Matteson Nominee Trust Marilee B. Matteson, as Trustee of Marilee Brill Matteson Nominee Trust C25689 107 Baxter Road 48-14.1 WhitneyA. Gifford, Trustee of S.C. Nominee Trust Hannah J. Grelz, Trustee of S.G. Nominee Trust 01285/0217 107A Baxter Road 48-14 Whitney A. Gifford, Trustee of S.G. Nominee Trust Whitney A. Gifford, Trustee of S.G. Nominee Trust 647/191 109 Baxter Road 48-12 Justine Mascioli Kenney, Trustee of Frederick P. Mascioli Living Trust Justine Mascioli Kenney, Trustee of Frederick P. Mascioli Living Trust C26159 113 Baxter Road 48-11 Loretta Yoder and Kyle L Latshaw Loretta Yoder and Kyle L. Latshaw 925/147 115 Baxter Rd 48-10 115 Baxter LLC, John Khawam manager 115 Baxter LLC, John Khawam manager 1513/335 117 Baxter Rd 48-9 Stephen B. Cohen Stephen B. Cohen 575/163 119 Baxter Rd 48-7 Sconset Trust, Inc. - Elliot Gewirtz President Sconset Trust, Inc. - Elliot Gewirtz President C18718 Sconset Bluff 49-9 Town of Nantucket Town of Nantucket 102/119 Sconset Bluff 48-6 Town of Nantucket Town of Nantucket 185/52 Sconset Bluff Town of Nantucket Town of Nantucket C1702 Sconset Bluff 48-5 Sconset Trust, Inc. - Elliot Gewirtz President Sconset Trust, Inc. - Elliot Gewirtz President Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands WPA Form 5 — Order of Conditions Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 And the Town of Nantucket Wetlands Bylaw Chapter 136 Provided by MassDEP: SE48-3115 MassDEP File # eDEP Transaction # Nantucket City/Town E. Signatures This Order is valid for three years, unless otherwise specified as a special condition pursuant to General Conditions #4, from the date of issuance. Please indicate the number of members who will sign this form. This Order must be signed by a majority of the Conservation Commission. 06/20/2019 1. Date of Issuance 2. Number of Signers The Order must be mailed by certified mail (return receipt requested) or hand delivered to the applicant. A copy also must be mailed or hand delivered at the same time to the appropriate Department of Environmental Protection Regional Office, if not filing electronicall nd the property owner, if different from applicant 4*-z--,_coosvos'Signatures: ONA 0,0\rtvi 0 by hand delivery on tett772-079- (94/709 Date Andrew Bennett (C) David La Fleur Ian Golding Ashle*Erisman (VC) Ben Champoux (Orson"Ernie Steinauer Josedh Topham ail, return receipt requ F. Appeals The applicant, the owner, any person aggrieved by this Order, any owner of land abutting the land subject to this Order, or any ten residents of the city or town in which such land is located, are hereby notified of their right to request the appropriate MassDEP Regional Office to issue a Superseding Order of Conditions. The request must be made by certified mail or hand delivery to the Department, with the appropriate filing fee and a completed Request of Departmental Action Fee Transmittal Form, as provided in 310 CMR 10.03(7) within ten business days from the date of issuance of this Order. A copy of the request shall at the same time be sent by certified mail or hand delivery to the Conservation Commission and to the applicant, if he/she is not the appellant. Any appellants seeking to appeal the Department's Superseding Order associated with this appeal will be required to demonstrate prior participation in the review of this project. Previous participation in the permit proceeding means the submission of written information to the Conservation Commission prior to the close of the public hearing, requesting a Superseding Order, or providing written information to the Department prior to issuance of a Superseding Order. The request shall state clearly and concisely the objections to the Order which is being appealed and how the Order does not contribute to the protection of the interests identified in the Massachusetts Wetlands Protection Act (M.G.L. c. 131, § 40), and is inconsistent with the wetlands regulations (310 CMR 10.00). To the extent that the Order is based on a municipal ordinance or bylaw, and not on the Massachusetts Wetlands Protection Act or regulations, the Department has no appellate jurisdiction. wpaform5.doc • rev. 03/2/2010 Page 11 of 12 Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands WPA Form 5 - Order of Conditions Massachusetts Wetlands Protection Act M.G.L. c. 131, po And the Town of Nantucket Wetlands Bylaw Chapter 136 Provided by MassDEP: SE48-3115 MassDEP File # eDEP Transaction # Nantucket City/Town G. Recording Information Prior to commencement of work, this Order of Conditions must be recorded in the Registry of Deeds or the Land Court for the district in which the land is located, within the chain of title of the affected property. In the case of recorded land, the Final Order shall also be noted in the Registry's Grantor Index under the name of the owner of the land subject to the Order. In the case of registered land, this Order shall also be noted on the Land Court Certificate of Title of the owner of the land subject to the Order of Conditions. The recording information on this page shall be submitted to the Conservation Commission listed below. Conservation Commission Detach on dotted line, have stamped by the Registry of Deeds and submit to the Conservation Commission. To: Conservation Commission Please be advised that the Order of Conditions for the Project at: Project Location MassDEP File Number Has been recorded at the Registry of Deeds of: for: County Book Page Property Owner and has been noted in the chain of title of the affected property in: Book Page In accordance with the Order of Conditions issued on: Date If recorded land, the instrument number identifying this transaction is: Instrument Number If registered land, the document number identifying this transaction is: Document Number Signature of Applicant wpaform5.doc . rev. 03/2/2010 Page 12 of 12 r®RUBIN and RUDMAN LLP Attorneys at Law 53 STATE STREET I BOSTON, MA 02109 I P: 617-330-7000 800 CONNECTICUT AVENUE NW I WASHINGTON, DC 20006 I P: 202-794-6300 99 WILLOW STREET I YARMOUTHPORT, MA 02675 I P: 508-362-6262 Michele A. Hunton Direct Dial: 617-330-7024 E-mail: mhunton@rubinrudman.com Return Address: Boston February 11, 2020 Via Certified Mail, Return Receipt Requested Massachusetts Department of Environmental Protection MassDEP Lockbox P.O. Box 4062 Boston, MA 02211 RE: Notice of Claim for Adjudicatory Appeal 59-117 Baxter Road DEP File No.: SE48-3115 Dear Sir or Madam: Enclosed please find an Adjudicatory Hearing Fee Transmittal Form and a check payable to the "Commonwealth of Massachusetts" for $100.00 to cover the filing fee. Thank you for your attention to this matter. Very truly yours, Michele A Hunton Enclosures cc: Nantucket Conservation Commission (via Certified Mail, Return Receipt Requested) MassDEP Southeast Regional Office (via Certified Mail, Return Receipt Requested) 2347211_1 Important: When filling out forms on the computer, use only the tab key to move your cursor - do not use the return key. Massachusetts Department of Environmental Protection 51 Adjudicatory Hearing Fee Transmittal Form IMPORTANT! This form is intended for fee transmittal only. The contents of a request for an adjudicatory appeal (Notice of Claim) are established at 310 CMR 1.01(6) and the substantive statutes and regulations governing the Department's action. A. Person/Party Making Request 1.Name and address of person or party making request: Glenn A. Wood, Esq., Rubin and Rudman LLP Name - If appropriate, name group representative 53 State Street, 15th Floor Street Address Roston City 2. Project Information: 59-117 Baxter Road MA State 02109 Zip Code Street Address Nantucket City SE48-3115 MA State $ 100.00 02584 Zip Code DEP File or ID Number Amount of filing fee attached Email Address B. Applicant (if applicable) 1.Name and address of applicant: Siassonset Beach Pres.ervation Fluid Name - If appropriate, name group representative P Co Box 9979 Street Address Nantucket City Email Address State 02584 Zip Code C. Instructions 1. Send this form and check or money order of $100.00 payable to the Commonwealth of Massachusetts to the MassDEP Lockbox at: Department of Environmental Protection P.O. Box 4062 Boston, MA 02211 2. Send a copy of this form and a copy of the check or money order with the Request for Adjudicatory Appeal (Notice of Claim) to: Case Administrator Office of Appeals and Dispute Resolution One Winter Street Boston, MA 02108 adjherfm-1.doc • rev. 11/17 Adjudicatory Hearing Fee Transmittal Form • Page 1 of 1 WLI I IILIJ MASS001 Commonwealth of Massachusetts REMITTANCE ADVICE MUM ANL' KUILJIVIHN L.L.r CHECK NO. 141029 DATE INVOICE NUMBER DESCRIPTION AMOUNT DEDUCTIONS NET AMOUNT 02-11-20 Filing Fee 20093-1 Filing Fee (20093-001)100.00 0.00 100.00 TOTAL:100.00 THIS CHECK !S VOID WITHOUT A GREEN & GLUE BORDER AND LAW OFFICES OF RUBIN AND RUDMAN LLP 53 STATE STREET BOSTON, MA 02109 PAY ONE HUNDRED AND 00/100 DOLLARS TO Commonwealth of Massachusetts THE ORDER OF MEMO: Filing Fee (20093-001) PLUS A KNIGHT & FINGERPRINT WATERMARK ON THE PACK - BANK OF AMERICA v00 L4 L0 2901:0 L L000 L3an00S ? 3 17 201311' 141029 OLD AT ANGLE TO VIEW 5-13 110 DATE 02/11/20 NET AMOUNT 100.00 RUBIN AND RUDMAN LLP AUTHORIZED