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HomeMy WebLinkAbout2013-11-6CONSERVATION COMMISSION Staff in attendance: Jeff Carlson, Natural Resources Coordinator, Terry Norton, Town Minutes Taker SPECIAL HEARING Steinauer, Okmy, Karberg, Bennett, Golding, Glowacki, Johnson Absent Members: 2 Bathing Beach Road Late Arrivals: ,-M-, Nantucket, Massachusetts 02554 None rn www.nantucket-ma.lov Agenda adopted by unanimous consent Announcement: Wednesday, November 6, 2013 4:00 P.M. o Public Safety Facility, 4 Fairgrounds Road c> J Commissioners: Ernie Steinauer (Chair), Sarah Okmy (Vice- chair), Jennifer Karberg, AndreW Bennett, Ian Golding, Michael Glowacki, Leslie Johnson - -1 M _ caned to order at 4:06 p.m. Staff in attendance: Jeff Carlson, Natural Resources Coordinator, Terry Norton, Town Minutes Taker Attending Members: Steinauer, Okmy, Karberg, Bennett, Golding, Glowacki, Johnson Absent Members: None Late Arrivals: None Earlier Departure: None Town Counsel: George Pucci, Kopehnan and Paige, PC Agenda adopted by unanimous consent Announcement: Commissioners would like to see the meeting wrap up by 7 p.m. Speakers asked to keep comments to the wetland regulations to be keep it brief. *Matter has not been heard 1. PUBLIC MEETING A. Public Comment —None 11. PUBLIC HEARING A. Notice of Intent L Town of NmtucketPSconset Beach Preservation Fund (SBPF) — 85 -107A Baxter Road Area SE48- Sitting Steinauer, Okmg Karberg, Bennett, Golding, Glowacki, Johnson Recused None Documentation Supporting documents and plans. Applicant TON Representatives Kara Buunoski, Director Department of Public Works (DPW) —This is an emergency to address public utilities and safety needs of Baxter Road. Nicole Burnham, Engineer, Milone & MacBroom Coastal Engineering — Reviewed documents submitted in response to requests and comments from the hearing of October 30. Eliminated top scour anchor, will wrap the apron around the top tube; this eliminates excavation into the bank. Have submitted nourishment volumes with back -up information; also submitted a modified transect plan with additional transects down -drift of the Geo -mbes and at Quidnet and Squam. John Roberge, Principal, Milano & MacBroom Coastal Engineering Co- Applicant SBPF Steven Cohen, Reade, Gullicksen, Hanley, Gifford & Cohen LLP Jamie Feeley, Construction Manager Cottage and Castle Inc Discussion Oktay, — In talking about retreat rates, some experts have suggested 20 to 25 cubic feet per linear feet per (4:16) year; the proposal states 14 cubic feet per linear foot. Stated she believes this area should encapsulate the higher erosion rate. Roberge — The computations for that 1500 -foot reach were performed based upon transects segmented at 20 -foot intervals. Expressed the opinion that it should not necessarily be the highest. Some of those transects have a typical range of volumetric computation between 13.3 and 17.9 feet. Oktay — One reason this is portrayed as an emergency is due to the increased erosion of late 2012 early 2013. Asked if there was a difference calculated from this past year and the previous 11 years. Roberge — The initial 10 years had the highest rate. Golding — Said he read that transect section 89.9 had a 32 cubic yard (CY) per linear foot CY erosion rate. Roberge — Stated he would have to check that. Oktay — Said they had asked about the composition of littoral cells. Asked if he agrees. Roberge — Yes. It appears there is a larger northerly drift rate than a southerly drift rate. Page 1 of 6 Minutes for November 6, 2013, scooted Mav 28.2014 Discussion Steinauer— The plan for nourishment is based upon how much is lost. The commission is concerned continued about seeing a nourishment rate based upon annual erosion rate. There was also concern about the average rate not providing the availability during a storm. Roberge — The answer is to expand the range monitoring on tmnsects. If additional erosion is observed, there is reason to request additional quantities. Further discussion about assessment of erosion rated and nourishment. Okmy — Timing was discussed; nourishment put on in April and fall. Erosion occurs during the storm and dissipates wave energy. Asked about a plan to mimic that natural function. Roberge — The best practice is to get there as quickly as possible after a storm. Putting sand down before a storm doesn't always work; the logistics of doing that are also difficult. Golding — Construction protocols and impacts estimate the water at over 28M gallons. Asked if 50,000 gallons of sand would be used. Burnham — Only for the geo -tubes. Golding — That is a lot of fresh water being introduced into the beach. Burnham — Not comfortable that mixing the slurry can occur on the beach. It would also add cost and time to the project. Oktay — Any projects of this side she found in on -line research used salt water. Could not find any information about the affect of this volume of fresh water on the environment. Further discussion about why fresh water is more practical that using salt water. Burnham — Construction would begin as soon after issuance of the permit as possible. Oktay — Pointed out that the commission is charged with looking at the possibility of adverse impact on the environment. Further discussion about timing of nourishment/sand replenishment and the need to be sensitive to the post -storm beach condition. Steinauer —Asked if there was alternate beach access Gom the south. Burnham — Have to look into that. Steinauer — Asked how they would handle erosion to surrounding beaches. Roberge — Adding additional sand to the project area. Burnham — Painted out that a failure a criterion is Banking that can't be mitigated. Oktay — This is a huge temporary project. Asked if a project of this depth had been removed. Burnham — The representative said no; removal involves cutting the bags to release the sand and lifting the bags out then grading the beach. Johnson — In regards to removing in five years; expressed concern that the beach will no longer exist to hold the equipment. Roberge — Would have to run the equipment on top of the tubes. Burnham — Do not expect the beach to disappear due to the nourishment. Bennett — Asked if there was concern about undermining the toe and failure of the bag. Roberge — That was the reason for the deeper foundation Geo -tube. Undermining of the toe is an evaluation for failure criteria. Stated he had never seen it get to the toe. Oktay — Had asked about the retreat rate at 79 Baxter Road between 2009 and 2011. The jute and c it seemed to work well in slowing the erosion and holding up. Burnham — Those are affective as long as they are annually rebuilt with an increased cost to the Town. This is about risk management and to minimize maintenance. Steinauer— Asked about the possibility of a hybrid project of bags and sand -drift fencing. The fence breaks the wave energy before it hits the bag. Roberge — Stated he is hesitant to put items in front that could break off and puncture the bag. Discussion of the pros and cons of softer solution. Steinauer — Asked about the frequency of storms such as last year. Burnham — They are frequent but could not recall the year-span. The request stays as it is and reiterated it is about risk management. Discussion about the proposed mitigation volume. Karberg — If the mitigation sand volume is correct, the coir and jute bags are better off. Bennett — Asked about calculations about the stabilization of the upper half. Burnham — Stabilizing the toe will stabilize the top. There is about 5 feet allowable before the road should be condemned. Page 2 of 6 Minutes for November 6 2013 , adopted May 28 2014 Public Emily MacKinnon, Nantucket Land Council (NLC)— Still have a concern about regulatory compliance (4:49) mentioned in a letter from their consultant Mr. John Ramsey, Applied Counsel and Research. In a conversation with someone from the Department of environmental Protection (DEP), it sounded to her like they have some concerns outstanding about compliance with the state regulations. The commission should reach out to them to get a ruling. As far as local regulations, a recent submittal from Milone & MacBrown that a waiver in regards to local compliance would be forthcoming from the Town; haven't seen that submitted. In order tojustify, the waivers, the applicant has to prove no adverse impact and no reasonable alternative. Believe the project is over designed, referred to the consultant's letter. Still have concern about end scow and the impact if mitigation is not sufficient. John Ramsey, Applied Counsel and Research, for Nantucket Land Counsel — Addressed the alternative of jute and the cost of maintenance being $150,000 a year. Pointed out that sand mitigation would be over $100,000 a year. Pointed out that Mr. Helmut Weymar has been diligent about maintaining his structure and that it failed at one end. It protruded beyond other projects, so there is little surprise that wave energy was concentrated and the end failed. The Town needs to look at this in more detail; this is a very risky project in regards to end effects and adjacent properties. Urged the commission think conservatively. Reiterated a major concern is the end affect on abutting properties. The Town should look into the risk associated with possibly causing other structure to fall. Stared that in his opinion the mitigation numbers seem to be on the low side. Carol Donlon, 36 Exeter Road — Asked where else has this system been installed under comparable conditions and then removed. The consultant said it had not been removed. If the system were permitted and installed, it would eliminate the scouring. Asked what would happen if the motion of sand stopped. (The fourth tube would help against the end scow.) Josh Posner, 77 Baxter Road — Stated that he was watched Mr. Weymar's jute bag and that they are not always affective. If they were, that would be the project. There can't he any additional failure. Those bags have to be rebuilt after every storm; it isn't once or twice a year they are rebuilt. If they aren't, there is no protection. When he couldn't rebuild them in time, he lost everything that had been saved over 10 years in one day. It's not about the cost; the driver is that jute doesn't work. Dirk Roggeveen, Quidnet/Squam Association (QSA) — Introduced Jim O'Connell and reviewed his qualifications. Jim O'Connell, Coastal Geologist, Coastal Advisory Services — A great majority of the sediment from the bluffs moves north. Referred to his written testimony about the littoral drift of sediment. Explained the actions of a littoral cell. Addressed QSA's three requests: First, increase the number of transect monitoring points in QSA area, presently there are only two and that is not sufficient the proposed placement of 14.3 CY sand nourishment over the Geo -mbes by April 30, and I CY per linear foot when 50% of the bottom tube is exposed is insufficient, that needs to be increased. Second, there needs to be something in writing on how an analysis is going to he done to determine between the project and natural storm condition in regards to sediment transport; that should be done by an outside, unbiased analyst after every episode. Third, sand nourishment mitigation project itself, the volume and timing of the placement of sediment coming off the coastal bank are critical; due to the high energy the average rate of sediment will not be adequate; suggested looking at the extreme. Pointed out that 18 CY per linear foot of beach sand will be displaced by the tube; that sand will no longer be available to the system; some portion of that sand needs to be added to the 14.3 CY sand. There will be an adverse impact; QSA asks for a mitigation plan to be in place for their area. In terms of regulatory compliance, there is an exemption for public infrastructure but it also states "no adverse impact." DEP wetland regulations, feels more information is needed about how this project is in compliance; stated the opinion that this project does not meet those regulations. In regards to "no alternative ", coir, jute and other bio- degradable materials aren't perfect but they are reasonable alternatives in slowing erosion of a coastal bank. Stated he could not find anything in writing about post -storm mitigation; there should be something in the packet addressing that. Golding — Asked how a technical consultant would distinguish between the impacts of the revetment and stonn- induced erosion. O'Connell — That requires and expanded transect monitoring program and the pre- and post -storm dam generated from those transects compared to data from past storms. Steimmer— Asked how that data would stand up in a court of law proving that it was the revetment that caused damage as opposed to natural erosion. O'Connell —If he were to look at the data and storm parameters, he would be willing to argue that in a wort of law; it would be a professional judgment. Explained how migrating sand is tracked. Discussion about how many transects would be needed north and south of the project. Page 3 of 6 Minutes for November 6, 2013, adopted Mav 28.2014 Public O'Connell — Fine sand eroded off a coastal bank does absorb wave energy as it is being moved around. continued Cohen — Asked if there is no erosion coming from the bank, there is no other source for sand and fine. O'Connell — It comes from the whole bank, the beach and near -shore area. Oktay — Timing of replenishment is a concern; asked if there is a best way to mimic nature. O'Connell — The best mitigation practice would be to post the sand before the storm; that is when the system needs it. That should be requested as part of the proposal. Bennett — Asked if non - laminated sand would affect land under the sea. O'Connell — That should be answered by a coastal geologist. Stated his opinion is yes. Discussion about the mitigation volume and it should probably be around 20CY per linear foot. Need to add the beach volume to the bank volume. Roggeveen — Additional points: waiver request require alternative analysis. The performance standards that address protecting public infrastructure stress, "no adverse impact" and charge the commission with protecting public interest, which leads to mitigation. Expressed concern about the Town fixing problems after the fact; cited examples where the Town was slow to respond to fixing a problem. The Town should propose a mechanism by which the commission can get the Town to respond to issues should the project start to fail. Under the Performance Standards, the structure is prohibited if there is any adverse affect on that beach as well as any adverse impact on nesting area of endangered species. Referred to CZM application and referencing a 3's party review. If the water is breaking on the bottom bag and sand is put into the water, that is fill and needs an Army Corp of Engineers permit. Concerned about the 5 years and that this project could in fact take much longer than that; suggested an impartial advocate to answer the question of how long is "temporary" for this project. Glowacki — Expressed confusion about the view of the QSA. Seems to have heard numerous conflicting statements. Are they opposed to the project or are they advocating for conditioning appropriately. Roggeveen — The commission is legally obligated to protect endangered species. QSA is directly concerned about the impact on their property if this project is not properly permitted. Reviewed a concern about the construction that could result in a stacked vertical. Discussion about the up-drift and down -drift affect on nesting endangered species and possible Massachusetts Natural Heritage concerns. Johnson — The road needs to be moved. Move the road. This is all reactive. Oktay — Still waiting on the DEP opinion and comments that could have a significant impact on this project. Bunnoski — Agree about the geo tubes and the most robust type of installation will have the most success. Asked about the next steps. Mary Wawro, 3 Eat Fire Spring Road — Letter from Robert Young, PhD Western Carolina University about the Geo -tubes was submitted at the table. Read portions of the letters into the record that states the Geo-tubes constitute a sea wall causing the beach to narrow and disappear and increased end affect. D. Anne Atherton, 48 Squam Road — Stated that she has not heard much on the loss of public access to the beach with this project. Would like to insert into the record a written statement; read the statement into the record. Stated that she is an advocate for preservation of the natural beaches. Feeley — Over the last 5 or 6 years has observed the loss of numerous houses. Pointed out that Mr. Weymar has maintained his beach. Expressed the opinion that the beach will remain. Sand would be delivered to the beach from above; and at time of removal, believes the beach will be available. Compared the coir bags to an airbag which are deflated after a storm. Brian Butler, commercial fisherman — Uses that beach a lot. Had asked about replacing the sand during a storm. Heard can't get sand before or during the storm. Expressed confusion. Page 4 of 6 Minutes for November 6, 2013, admired Mav 28. 2014 Town Counsel Pucci — Stated he will help Mr. Carlson in crafting the Order of Conditions. Stated he saw some (6:34) opposition in regulatory compliance raised about the issue of a limited project. Reviewed the pertinent regulations; this project should fall under Subdivision One which addresses maintenance of a public way. That subdivision talks about maintenance and improvement of the public way and has limiting provisions in terms of what improvement cannot be. Under the provision about maintenance, this would arguably be a limited project. Stated he is willing to provide a written opinion on this issue. The commission is free within the hearing process to make an analysis under 10.30 under coastal bank whether or not the commission finds it does qualify as a limited project or that opinion is overturned by DEP. In terms of the bank, it serves the purpose of nourishing down drift and also serves the interest of acting as a barrier to erosion of landward properties. Both those interests are identified in 10.30; it comes down to the commission's analysis of which interest is going to be protected here. Other issues include: the commission making the finding of whether or not this is an emergency condition. Stated that at least one more public hearing session is needed before the hearing can be closed. Asked what sort of analysis the commission wants. In the Order of Conditions, there should be a condition that references a licensing agreement between'Sconset Beach Preservation Fund and the Town of Nantucket. Golding — Asked if the licensing agreement would include a legally binding removal clause. Pucci — Yes. Golding — On 10.30 paragraph 3, which states no new bulkhead "shall" be permitted on coastal banks, etc. etc, a number of people argue their case as though "shall" means "must." Asked his opinion. Patti — Agree that "shall" means "must." However, other sections of 10.30 do apply. Steinauer — Regardless of the licensing agreement; in his opinion this is a town project on town line and the town is responsible. Patti — From a legal perspective, yes. That leads to an issue about the town being on this project. SBPF owns and maintains and removes the structure; but it is on town land. The victim of the project can come after the Town because they are the permit holder. That would be addressed through the licensing agreement and indemnification agreement. Oktay — Cited Chapter 67 and wonders why the commission is listening to this. Asked for an opinion on that. Bennett — Asked about a mechanism to ensure the structure is maintained. Steinauer — In his opinion that would be covered by escrow accounts that the ConCom controls. If this is permitted, an emergency fall back should be in place. Should have guidance about setting that up. Pucci— Will provide opinions on Dr. Oktay's question, the escrow agreement particularly ConCom control, limited project, and emergency projects under state and why this is maintenance of a public way. Discussion about conditioning the structure to be removed after 5 years and determining whether or not the removal would cause excessive damage to the bank and beach. Staff The project area itself is outside of Massachusetts Natural Heritage prevue. The only area that the commission can condition is that of the properties within the application area. Do have a legal means to ask for survey data. QSA would have to put together an application to put nourishment on their beach. If the project is approved, a condition is included that provides the commission with the mechanism to require the project be removed. Explained the conditioning process for Ms Bummoski. Next hearing The project is waiting for DEP comments and file number, waiver requests, questions and concerns brought up at this hearing, and legal opinions. Cohen At the November 13 meeting will continue the'Sconset Beach Preservation Fund application. Carlson — That request must be in writing. Bumnoski — Requested a continuance and reviewed information that had been requested for the next hearing. Wednesday, November 13, the next regularly scheduled meeting. Motion Continued to November 13 without objection. Vote N/A Page 5 of 6 Minutes for November 6, 2013, adopted Mav 28.2014 Ill. PUBLIC MEETING A. Orders of Conditions (If the public hearing is closed —For discussion and/or issuance 1. FAB ACK2, LLC —15 Laurette Lane (14 -10.1) SE48 -2589 Sitting Sarmatian, Oktay, Bennett, Golding, Glowacki, Johnson Recused Karberg Documentation Supporting documents and plans. Representative None Discussion (7:12) Review of minor corrections that need to be made. Add that the commission does not find the house to be in imminent danger. Public None Staff Drafted a denial but included the positive order previously drafted. Read the findings for the denial. Motion Motion to Issue the denial as amended. (made by: Oktay) (seconded by: Golding) Vote Carried 4- 2/Bennett & Glowacki opposed 2. Discussion of other closed notice of intent public hearings. B. Other Business 1. Reports: a. CPC: Golding — Wrapping up b. NPBDC: Bennett — Nothing c. Mosquito Control: Oktay — Done d. Coastal Management Plan: Oktay — Review of the last sector 2. Commissioners Comment: a. Glowacki — Asked about "F" on back of agenda, "The Commissioners may have additional questions from either the applicant or from persons who have provided evidence or other input to the Hearing.', Stated his observation has to do with the chair conducting the hearing with impartiality. Said he has never crossed the situation where the chair stated someone did not have to answer a commissioner's question. Discussion about whether or not that is appropriate. 3. Administrator /Staff Reporls/Enforcements: None Motion to Adjourn: 7:29 p.m. Submitted by: Terry L. Norton Page 6 of 6