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HomeMy WebLinkAbout2013-3-27Minutes for March 27, 2013, adopted Oct. 2 �N1 N CONSERVATION COMMISSION 2 Bathing Beach Road Nantucket, Massachusetts 02554 www.nantucket-ma.gov Wednesday, March 27, 2013 4:00 P.M. 9j°dBAlE� 2" Floor Training Room, 4 Fairgrounds Road Commissioners: Ernie Swimmer (Chair), Sarah Oktay (Vice - chair), John Braginton- Smith, Jennifer Karberg, Andrew Bennett, Ian Golding, Michael Glowacki _ Called to order at 4:07 p.m. Staff in attendance: J. Carlson, Natural Resources Coordinator; T. Norton, Town Minutes Taker Attending Members: Steinauey Okay, Karherg, Bennett, Glowacki Absent Members: Bmginton- Smith, Golding Agenda adopted by unanimous consent *Matter has not been heard = L PUBLIC MEETING z A. Public Comment -None -1 0 c n II. PUBLIC HEARING M A. Town of Nantucket Wetlands Regulations Revisions m p Sitting Sminauer, Okay, Karherg, Bennett, Glowacki Ci1 rrl Recused None o v < Documentation Copy of Town of Nantucket Wetlands Regulations z -� M Public Emily MacKinnon Resource Ecologist Nantucket Land Council Arthur D. Gasbarro, Blackwell and Associates Inc. r— coil Discussion: M Cp Carlson — Recapped last week and said some items on which there were questions were forwarded to Town Counsel. This hearing will focus on Performance Standards and the next will focus on invasive species. Performance Standards: Land Under the Ocean, Number 8. Added definition of aquatic vegetation to coincide with the state definition. Okay — Aquatic vegetation is not the same as algae. Blue /green algae is a bacteria. Glowacki — Asked if "aquatic vegetation" is defined. Carlson — Could add that in under definition. Steinauer — Don't talk about dredging for beach nourishment. Carlson — Have 2.01112; read. Performance Standards: Land Under the Ocean, Number 1. Delete "for navigational purposes" from Number 1 so that it encompasses all dredging. MacKinnon — Number 1 address dredging for navigational purposes.. Might want to include "all other types of dredging." Carlson If someone comes in for a dredging request, they should have to address both standards Number 1 & 2. Performance Standards: Land Under the Ocean, Number 6. Oktay — Number 6, Aquaculture, doesn't mention water quality. Performance Standards: Land Under the Ocean, Number 7. Steinauer— Looking at Number 7 and "structure." Carlson — Definition of "structure" is strong. Glowacki — Asked how a split rail fence is not a structure. Carlson — Regulations specifically exempt split -rail fences. A split mil fence does not really inhibit movement of wild life. A split rail fence backed by a wire fence is a structure. Oktay — Suggested adding the reason why split -mil fences me not considered structures. Carbon — Applications come in for zig -zag fences that ConCom does not consider coastal engineering structure. Performance Standards: Coastal Beaches, Number 3. Added to the last sentence, "for both the borrow site and the area in which spoils am placed." Carlson — Has a question about dredging in flats. Okay — Stated belief it should never be done. Karberg —Asked if there had been any instances where it had to be done. Carlson — Believes there has been. Gasbarro — Suggested the ConCom might not want prohibit it completely. There might be a case where it would be in ConCom's best interest as in opening up a flat or delta to the ocean. Seems it would be better to have it and condition it. Carlson — Under standards for Land Under the Ocean, cover dredging and asked wanted to add to the end of that, "dredging of flats must also be done in accordance with dredging standards from Land Under the Ocean." Oktay — Number 1 says, "The provisions of Section 2.01 B (1 -8) (Land Under the Ocean) shall apply to coastal beaches and tidal flats." Karberg — The main consideration in dredging tidal flats is the loss of habitat and where the material goes. Performance Standards: Coastal Beaches, Number 5. Mackinnon — In regards to "The septic leach facility shall be at least 100 feet from the spring high tide line," asked where else spring high tide crops up and how that would be established. Carlson — Thinks there must be a better way to express that, but isn't sure how. Okay — Suggested "highest high tide of the previous year" Gasbarro — That is a very difficult thing to measure. Suggested "astronomical high tide" which could be done at a time and place on a monthly basis. Oktay —The state high -tide line would still be higher than an astronomical high tide. The spring high tide line has a legal definition. Perhaps that should be added to defmition. Carlson — Asked if it should be the most recent spring high tide. Okay — It should be Page] of 3 Minutes for March 27, 2013, adopted Oct. 2 the highest spring high tide. Gasbarro — Probably okay with what is there. Further discussion on which is the best tide to use and where it is actually an issue. Performance Standards: Coastal Beaches. Steinauer — Would like to see a limitation of paths and accesses which cross the resource areas. Carlson — If it is something people want to pursue, will have to look into the legality of doing that. Glowacki — With parcels at different sized, could end up imposing an arbitrary standard. Don't see that it is necessary; because of an access is seen as damaging the resource area, ConCom can deny it. Performance Standards: Coastal Beach, Number 7. Oktay — Recalled there had been a discussion about Eroding Shoreline; asked how this relates to that in regards to 150 year period. Carlson — Stated that in the definition for eroding shoreline, it refer to "undergone a net retreat due in water and wave action over a six -year period ending on the date on which an application is filed." That establishes that the shoreline is eroding; and once we establish that it is eroding, that's when they apply within that 150 year criterion to set that distance. Okmy — Asked if there really should be buildings within 20 feet of an eroding shoreline. Carlson — No; whichever is less; but there is still the 50 -foot setback from that bank, which must be met. What it is saying is we know it is eroding so want a certain level of protection; so if the erosion rates stems out to 3 feet a year, that makes it 60 feet from the bank instead of 50 feet. Performance Standards: Coastal Dunes, Number 2. Changed to read, "All projects shall maintain at least a 25 -foot natural undisturbed area adjacent to a coastal dune. All structures shall be at least 50 feet from a coastal dune." Performance Standards: Coastal Dunes, Number 8. Add, "or elevated" after "pedestrian" in the first sentence. Carlson — Since took the time define elevated walkway, might want to change pedestrian walkway to elevated walkway. Performance Standards: Barrier Beaches, Number 3. Added, "Existing septic systems may be maintained, repaired and upgraded to the best available technology. No expansion of septic systems shall be permitted." Performance Standards: Coastal Banks, Number 5. Leave in references to "water dependent" Performance Standards: Coastal Banks, Number 8. Added, "substantial improvement of an existing building" after "All permits issued for the..." Carlson — Done last year under the prior board. Any improvement greater than 20% will require compliance with this condition. Also, going in with an application to approve a house, the applicant knows the right to put in a coastal engineering structure is sacrificed. Performance Standards: Coastal Banks, Number 1. MacKinnon — It includes the provision for public infrastructure and Coastal Beaches says nothing about public infrastructure. Asked if ConCom wants those to be different. Carlson — Suggested they should all be the same. Will add "public infrastructure" to Coastal Beaches. Oktay —Noted that there is no definition for "imminent danger." Carlson — Suggested that would be difficult because it differs from site to site. If the applicant does not meet the performance standard of being inside of the 150 years eroding shoreline, they are not in imminent danger. Discussion about whether or not it is possible to define "imminent danger." Performance Standards: Salt Marshes, Number 4. Delete all references to "... which are not water dependent use .. Performance Standards: Salt Marshes, Number 7. Change to read, "Elevated walkways shall be designed not to affect salt marshes vegetation or existing or minimize impact on marsh vegetation." Oktay — It was discussed at a hearing last year. Performance Standards: Salt Marshes, Numbers 8 & 9. Insert as Number 8, "Materials cannot be stored or deposited on a salt marsh." Number 9 becomes, "The Commission may impose such additional requirements as are necessary to protect the Interests Protected by the Bylaw." Oktay — It was discussed at a hearing last year. Steinauer — Suggest Number 8 be broader than man made as people throw out cut vegetation onto salt marshes. Performance Standards: Salt Ponds, Number 2. Delete all references to "... which are not water dependent use ...° Discussed at a hearing last year. Performance Standards: Salt Ponds, Number 5. Changed to read, "Piers shall be constructed and maintained using procedures determined by the Commission to be the best available measures to minimize adverse effects on the Interests protected by the Bylaw." Carlson — Does not feel comfortable when ConCom regulations reference a regulation outside its control, ConCom regulations should be able to hand piers should the Zoning Bylaws change. ConCom should have performance standards in place will discuss how to allow or permit a dock or pier. Oktay — Agrees and suggested striking, "... in compliance with the Town of Nantucket Zoning Bylaws. ..° Glowacki — Strike the reference to the Zoning Bylaws. Performance Standards: Salt Ponds, Number 6. Changed to read, "Elevated shall be designed not to affect vegetation or existing water circulation patterns and shall be required in order to allow for pedestrian passage over the salt pond and fringing bordering vegetated wetlands." Karberg —Noted the reference to "determined to be a water dependent use," should be stricken. Performance Standards: Land Containing Shellfish, Number 1. Add "aquatic vegetation," between water circulation," and "or natural drainage." Discussed at a hearing last year. Performance Standards: Land Containing Shellfish, Number 4. Changed to read, "Any project which may release pollutants shall utilize the best known technology to remove pollutants or prevent risk of pollution." Oktay — It was discussed at a hearing last year. Discussion about how best to word the standard. Performance Standards: Land Subject to Coastal Storm Flowage. No change to standards. Discussion about whether RDAs or NOIs are the best way for clients to file. Consensus is that NOIs are better. Performance Standards: Estimated habitat for Rare /Significant Wildlife and Rare /Significant Flora and Fauna (for coastal wetlands). No change to standards. Performance Standards: Inland Banks and Beaches, Number 3. Deleted references, "which we not water dependent." Discussed at a hearing last year. Page 2 of 3 Minutes for March Performance Standards: Vegetated Wetlands. Carlson — A consultant asked if ConCom would consider changing the definition of hydric soil to read, "within 14 inches of the surface' in compliance with the Army Corps of Engineers definition. The ConCom regulations reference 18 inches due to the soil being more pervious. Carps manuals refer the average, same with DPW. Oktay — Stated she is okay with changing but need to state why. Asked if other locales on the Cape use 14. Carlson — No. Suggested holding for further discussion on changing how hydric soil is determined. Performance Standards: Vegetated Wetlands, Number 1. Deleted references, "which are not water dependent" Discussed at a hearing last year. Carlson — In regards to, "Fifty percent (50 %) of the area between the 25 -foot buffer and the 50 -foot buffer shall not be altered." Do not disagree, but it should be more clear on what "altered' is; does it refer to temporary alteration as well as a permanent alteration. Oktay — Have done that where more than 50% between 25 & 50 were going native. Glowacki — Asked if there was a finding that 25 -foot buffer was ineffective in protecting interests. Oktay — After a lot of discussion, have seen many cases where applicants come with landscaping requests between the 25 to 50 zones. Glowacki — In accordance with regulations, ConCom already requires the 25 -foot undisturbed buffer zone; pointed out that because some properties are in compliance ConCom now wants to make the regulation more strict. Oktay — Essentially yes, decided did not want anything altered between the 25 and 50 foot zones. Glowacki — Noted it could be construed as imposed out of spite rather than in support of the resource area. Carlson — A client can apply to alter as much as he wants but must apply for a waiver. Oktay — Had scen complete build outs of structural -like elements such as brick walkways and patios and driveways. Felt the regulations were not adequately protecting resource areas. Glowacki — Asked if examples of damages or issues were cited. Steinauer offered various examples. Further discussion about what is needed to protect the resource areas without being excessively restrictive. No change to be made in that regard. Performance Standards: Vegetated Wetlands, Number 8. Carlson —The Board of Health now has fertilizer regulations in place but do not want to reference those. Steinauer — Suggested adopting best management practices might be a good idea. Carlson — Suggested skipping this for now and coming back to it during the discussion about fertilizer. Performance Standards: Inland Water Bodies, Number 5. Carlson — Pointed out the intricate standard relating to boat piers and how it might be a good template for any performance standards relating to piers. This is for piers on ponds only, not ocean front. Best management practice is to standardize all standards referring to piers. Performance Standards: Land Subject to Flooding. No change. Performance Standards: Estimated Habitat for Rare /Significant Wildlife and Rare/Significant Flora and Fauna, Numbers 2 & 3. Carlson — These set off the buffer zones at 50 feet topography change and 75 feet for construction of structures for vernal pools and habitat. Glowacki — Noted the standards are clearly based upon how the eco- system works. Performance Standards: Riverfront Area. Carlson — Paragraph °C° of the Characteristics and protected interests references that there are no riverfront areas on Nantucket. Intermittent Streams are regulated under Water Bodies. Part IV Activities in the buffer zone: Held for next discussion. Discussion about next date for public hearing on the regulations. Temporarily setting that hearing for April 10, 2013; topic: Invasive Species and Fertilizer. 111. PUBLIC MEETING A. Other Business 1. Reports: None i. CPC ii. NP &EDC iii. Fertilizer Use Committee iv. Mosquito Control Committee v. Other/Miscellaneous Reports 2. Approval of Minutes — None 3. Commissioners Comment: None 4. Administrator: None i. Staff Reports ii. Violation Motion to Adjourn at 6:00 p.m. Submitted by: Terry L. Norton Page 3 of 3