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HomeMy WebLinkAbout2015-6-17Minutes for June 17 2015, adopted Tune 24 CONSERVATION COMMISSION PUBLIC MEETING 2 Bathing Beach Road Nantucket, Massachusetts 02554 ww-w.nantucket- ma.gov Wednesday, June 17, 2015 4:00 P.M. Large Group Instruction Room, Nantucket High School 10 Surfside Road Commissioners: Ernie Steinauer (Chair), Sarah Oktay (Vice- chair), Andrew Bennett, Michael Glowacki, Ashley Erisman, David LaFleur, Ben Champoux Called to order at 4:03 p.m. Staff in attendance: Jeff Carlson, Natural Resources Coordinator Attending Members: Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Absent Members: None Late Arrivals: Glowacki, 4:09 p.m. Earlier Departure: None Agenda adopted by unanimous consent I. A. 11. A. 1. 2. 3. 4. 5. Sitting *flatter has not been heard PUBLIC MEETING Public Comment — None PUBLIC HEARING Notice of Intent SBPF - Baxter Road Area (Multiple) SE48 -2581 (Revetment project) (07/08/2015) Lily Pond R.T. — 27 North Liberty Street (41 -158 Lot A) SE48 -2678 (Cont 08/05/2015) Lily Pond R.T. — 29 North Liberty Street (41 -158 Lot B) SE48 -2677( Cont 08/05/2015) Lily Pond R.T. — 31 North Liberty Street (41 -158 Lot C) SE48 -2679 (Cont 08/05/2015) Duke 57, LLC — 55 Duke Road Lot 16 (56- 185.1) SE48 -2730 Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Recused None Documentation Supporting documents and plans. Representative Brian Madden, LEC Environmental — Notice was initially filed in November and heard in December. Reviewed the proposed project: construction of a new structure, demolition of the old structure, construction a pool & patio surround, and construction of a detached garage. Within bordering vegetated wetlands on the south and north portion of site. David M. Haines, Haines Hydrogeologic Consulting, and Bruce Perry, Laurentide Environmental Consultants, have been out to the site and flagged the wetlands; no work is proposed within limits. Structures are outside the 50 -foot buffer only a portion of the pool fence is within the 50 -foot buffer. A landscape buffer is proposed at about 1,760 square feet (SF) which will be mulched. Areas north and east of structures, we will maintain 3:1 side slope with blueberries, high - bush blueberries and arrowroot to be planted. South of the structure, we have the ability to reduce the slope to 5:1. Propose to restore 7,000 SF of wetlands. Will replant any disturbed /regraded areas with purple love grass and fescue. Sub- surface infiltration is proposed to collect run off. Over 7,800 SF is to be replanted with native brush and trees. Ground water is an issue so grading will maintain the separation of the structure above that. Public None Discussion Erisman — Asked for clarification that only the top area is to be mulched. Oktay — Asked about the pool fence material. Madden — Typical black vinyl he believes; doesn't have those specs with him. Erisman — Wonders if more wet meadows should be incorporated. Madden — Is trying to avoid roto- tilling the ground. Oktay — Confirmed the wetland flags are still valid. Staff Have everything needed to close. Motion Motion to Close. (made by: LaFleur) (seconded by: Bennett) Vote Carried unanimously 6. APG/ DRS Realty Trust — 80 & 84 Wauwinet Road (11 -89.2, 28) SE48 -2749 (Cont 06/24/2015) 7. Four Saratoga, LLC — 14 Tennessee Avenue (60.1.2 -6) SE48 -2773 (Cont 06/24/2015) 8. The Great Harbor Yacht Club — 96 Washington Street Ext (55.1.4 -08) SE48 -2774 (07/08/2015) Page 1 of 7 Minutes for June 17, 2015, adopted June 24 9. Nantucket Land Bank — 158 Orange Street (55 -61.1) SE48 -2784 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Recused None Documentation Supporting documents and plans. Representative Paul Santos, Nantucket Surveyors — This project has changed/ expanded from the initial submittal; Sitting reviewed those changes to include, the proposed reuse of the elevated walkway and dock. This and the Recused abutting property used to have a shared walkway and dock; that is being split. The proposal is to construct Documentation a walkway on Nantucket Land Bank property land and constructed an elevated pier within the buffer Representative along the creek area. The dock requires a Chapter 91 filing; that will be done shortly. This is a public use dock and under the square footage thresholds for the Army Corps of Engineers. The walkway will have 6X8 posts driven to refusal, be 3' wide, run from the lawn area to the newly constructed dock, laid out to Public maintain 1:1 ratio between the marsh and top of walkway, and spacing is 1/2" on the deck planking. A Discussion(4:28) small 6X6 timber retaining wall was damaged during the winter storms and will be replaced in kind. The Staff dock will have 8" diameter piles driven to refusal to support the dock structure, be 4' wide by 20' long, Motion and sloped to maintain 36" elevation over the marsh. Everything will be transported into the property and Vote work done by hand. Have the Department of Environmental Protection (DEP) number and Natural 11. *42 Union heritage and Endangered Species Program (NHESP) letter. This has yet to go to the HDC. There was a Sitting reference to the Division of Fisheries (DF), asked if that had been received. Have not provided mitigation Recused or asked for a waiver as this is an in -kind replacement. He will follow up with the Fisheries. Documentation Rachel Freemen, Nantucket Islands Land Bank Public None Discussion (4:16) Oktay — Would like a silt curtain conditioned. Staff Have not received the DF letter but they are fast. Have everything needed to close. Motion Motion to Close. (made by: Bennett) (seconded by: Oktay) Vote Carried Unanimously 10. 181 Taurus Trust —181 Eel Point Road (33 -21) SE48 -2788 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Recused None Documentation Supporting documents and plans. Representative Brian Madden, LEC Environmental — This is for the construction of a single - family dwelling, cottage, and pool within 100 feet of a coastal bank. This was waiting for the Massachusetts Natural Heritage letter which was received with no take. Public None Discussion(4:28) None Staff Have everything needed to close. Motion Motion to Close. (made by: Bennett) (seconded by: Oktay) Vote Carried unanimously 11. *42 Union Street LLC- 9 Fayette Street (42.3.2 -28) SE48 -2792 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Recused None Documentation Supporting documents and plans. Representative Don Bracken, Bracken Engineering, Inc. — The overall project is to convert the funeral home to a dwelling, create a common drive, demolish and existing structure, convert and construct other structures resulting in 4 dwellings. This particular structure faces Fayette Street. Elevation ranges from 5 to 4.5; not proposing any grade changes and do anticipate runoff. Groundwater is at about 6 to 8 inches. There will be dewatering; not proposing a catch basin but tying into an existing catch basin on Fayette Street. Public Diane Holdgate, 44 Union Street — Groundwater is actually about 3 inches. Right now the funeral home has a sump that discharge continuously into that backyard. The addition of impervious surface will increase flooding; the catch basin is not sufficient to handle the added water; Fayette Street is always flooded in heavy rains. This will need something more than downspouts for the run off. Reviewed the level of flooding during storms No Name and Juno. Diane Coombs, 44 Union Street — In 1978 the road flooded and froze and the front of the foundation of her house collapsed. During the repair it became apparent that there were some springs under the basement. The water in these buildings are not just run -off, it is groundwater. Sump pumps run constantly. A few years ago, 6 Fayette Street raised their back yard grade 1 foot exacerbating the problem. If something is not done about the groundwater from 42 Union Street, the runoff will come into her yard. Discussion (4:30) Bracken — They can look at some issues and work with Department of Public Works about dewatering. It does look like funeral home sits on springs; it will be on a crawl space with 5 elevation above grade. He can look to tie in where the Union Street; that elevation is about 7. Oktay — Explained that no basement above the groundwater is a small improvement; that water won't be pressed out and away. Should get a calculation of current and proposed roof size and what the infiltration chambers will look like. Bracken — Asked for a continuance to 7/8. Page 2 of 7 Minutes for Tune 17. 2015. adonted Tune 24 Staff None Motion Continued to July 8 without objection. Vote N/A 12. *Union Street Partners II, LLC- 42.5 Union Street (42.3.2 -28) SE48 -2793 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Recused None Documentation Supporting documents and plans. Representative Don Bracken, Bracken Engineering, Inc. — There is a substantial amount of paving. He believes the driveway materials are less impervious than the existing but he will run calculations and get back to commission on the water table. Asked for continuance to 7/8. Public None Discussion (5:43) None Staff None Motion Continued to July 8 without objection. Vote N/A 13. *48 SPR LLC- 48 Shimmo Pond Road (43 -79) SE48 -2789 (07/08/2015) 14. *White - 47A West Chester Street (41- 227.1) SE48 -2790 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Recused None Documentation Supporting documents and plans. Representative Brian Madden, LEC Environmental. — Explained the project. The south side has a pocket wetland and there are some wetlands to the east. The proposal is for a 472 SF addition on east side extending off a front, narrow porch with stepdown stairs; it wraps around an goes over an existing bulkhead and bay window, and adding an outdoor shower. All proposed structures are within exisiting lawn area and within 50 -foot buffer. There is a proposed pool and spa on the upper part of the property. A proposed 480 SF detached garage will replace a 900 SF shed. A 480 SF cottage is proposed along West Chester Street with a driveway outside the 25 -foot buffer hugging the zoning setbacks. There is a proposed pervious driveway spur coming of the driveway within the 25 -foot buffer. The total square footage is a little of 1000 SF. Proposing mitigation in replanting lawn existing within the wetlands and a small buffer with native brush and scrape out and replant a remnant spur and replant; the total revegetation foot print is of over 1800 feet. The addition will be on crawl space with 2 -foot separation from groundwater. There is no further reconfiguration proposed for the driveway. Public Emily MacKinnon, Nantucket Land Council — Additional concerns include the prospect of asking for waiver for construction of a structure within the 50 -foot buffer under a net benefit; the proposed revegetation is being termed as a long -term net benefit. Questions revegetation at the north wetland line because it is not clear if that clearing was ever permitted; she looked but could only find one permit that didn't address clearing. Curious about when the permit for the driveway extension was issued. Wonders also when the shed was permitted; couldn't find a history in the files. Vegetation is being asked for as mitigation; she doesn't think the board wants to be restoring something that hadn't been permitted. Sarah Alger, Sarah F. Alger P.C., for 47 West Chester Street — Ms MacKinnon summed up her client's concerns. Use of land improperly cleared was part of previous enforcement order on this property. The amount of work in the 50 -foot buffer is something this board has not permitted in other cases. Asked about the pervious material to be used in the driveway and is it truly pervious or will over time it become impervious. Discussion (4:45) Discussion about replanting areas and existing trees. Steinauer — The cottage shows an 10 -foot zoning setback. Wonders if Zoning Board of Appeals would allow the cottage to be slid over a couple of feet away from the 50 -foot buffer. Madden — Can add some mitigation planting on the south side. Can look at scaling back the cottage. Oktay — Feels they are asking for a lot with the garage. Madden — Willing to look at reducing the square footage of some of the construction. The porch does hang over into the buffer. Asked for continuance. Staff Looking at the plan, he doesn't see a fence around the pool; the building code requires that. The commission should remember during evaluation, the vegetation is coming in with a waiver as a net benefit; needs findings that relate to the construction as well. It still must be compliant with the performance standards. In regards to the driveway pull out, an enforcement action was submitted against that. Motion Continued to July 8 without objection. Vote N/A Page 3 of 7 Minutes for tune 17, 2015, adopted June 24 15. *Wesquo Capital Partners - 57 Washington Street (42.2.3 -37) SE48 -2791 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Recused None Documentation Supporting documents and plans. Representative Paul Santos, Nantucket Surveyors — For demolishing /removal of 2nd dwelling farthest from Washington Street. Subject to land subject to coastal storm flowage; this is in excess from the coastal beach 100 -foot buffer. No grade change will occur. Outside any NHESP map. Public None Discussion (5:05) None Staff Have everything needed to close. Motion Motion to Close. (made by: Bennett) (seconded by: LaFleur) Vote Carried unanimously 16. *MNP, LLC - 17 Ames Avenue (60.2.4 -17) SE48 - Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Recused None Documentation Supporting documents and plans. Representative Don Bracken, Bracken Engineering, Inc. — Septic upgrade within flood zone, bordering vegetated Documentation wetlands, salt marsh. Explained the septic system. Board of Health has asked to look at pressure Representative distribution system. If this is closed ask the conditions allow pressure distribution system. This is proposed at 5 feet; want to try to get 6 feet. The use now is seasonal and prospective buyers intend to keep it seasonal. Asked continued to 6/24 Public None Discussion (5:07) Glowacki — He is not aware of pressure distribution systems holding up under seasonal use. They have to Vote Carried unanimously 3. *LadyBird LLC - 8 Middle Valley Road (43 -160) SE48 -2609 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Recused None Documentation Supporting documents and plans. Representative Arthur D. Gasbarro, Blackwell and Associates Inc. — Maintaining a 50 -foot, no- disturb zone on the property. Overall project was for a residential development; this is to permit a pool and retaining wall between the 50- & 100 -foot buffers. Everything else is the same. The grade is steep; that is the reason for the two 30 -inch retaining walls. Public None Discussion (5:16) None Staff Recommend this can be closed and issued. Motion Motion to Close and Issue. (made by: Oktay) (seconded by: Bennett) Vote Carried unanimously Page 4 of 7 be restarted at ever season. Staff Can hold this for next week to get a file number and after the applicant meets with the Board of Health. Motion Continued to June 24 without objection. Vote N/A B. Amended Orders of Conditions 1. Thompson- 14 Fargo Way (14 -17) SE48 -2645 (Cont 06/24/2015) 2. *Brett Gordon Trust -10 Bishops Rise (40 -42) SE48 -2390 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Recused None Documentation Supporting documents and plans. Representative Don Bracken, Bracken Engineering, Inc. — Existing was for a previous owner; this is a completely different lay out; had to go back to Massachusetts Natural Heritage, which approved the reconfiguration with the same area of clearing. The building envelop protects the 50 -foot buffer. The lot rises up to a knoll then back down northeast towards wetland; the area of construction is on top of the fairly level knoll. Have a silt fence that will be staked out. Public None Discussion (5:12) None Staff Recommend this can be closed and issued. Motion Motion to Close and Issue. (made by: Bennett) (seconded by: LaFleur) Vote Carried unanimously 3. *LadyBird LLC - 8 Middle Valley Road (43 -160) SE48 -2609 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Recused None Documentation Supporting documents and plans. Representative Arthur D. Gasbarro, Blackwell and Associates Inc. — Maintaining a 50 -foot, no- disturb zone on the property. Overall project was for a residential development; this is to permit a pool and retaining wall between the 50- & 100 -foot buffers. Everything else is the same. The grade is steep; that is the reason for the two 30 -inch retaining walls. Public None Discussion (5:16) None Staff Recommend this can be closed and issued. Motion Motion to Close and Issue. (made by: Oktay) (seconded by: Bennett) Vote Carried unanimously Page 4 of 7 Minutes for June 17 2015 adopted June 24 III. PUBLIC MEETING A. Request for Determination of Applicability 1. Wright- 40 Pocomo Rd & Medouie Creek Rd (14,19- 37,01) Withdrawn Sitting (5:20) Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Motion Motion to Accept the withdrawal. (made by: Glowacki) (seconded by: Champoux) Vote Carried unanimously 2. *Jelleme - 27 & 29 Quaise Rd (26 -11 & 8) Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Recused None Documentation Supporting documents and plans. Representative Arthur D. Gasbarro, Blackwell and Associates Inc. — Wetland boundaries set for previous approved OofC. Only work outside exist foot print is 4" PVC pipe to tie into septic for office with bathroom; pipe is about 45 feet from resource area within existing lawn area. Don't think there will be adverse impact. Public None Discussion (5:21) None Staff Recomment this be issued as a Negative 3 allowing work within buffer. Motion Motion to Issue. (made by: Oktay) (seconded by: Champoux) Vote Carried unanimously B. Minor Modifications 1. Thirty-Nine Hulbert LLC — 39 Hulbert Ave (29 -19) SE48 -2503 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Recused None Documentation Supporting documents and plans. Representative Paul Santos, Nantucket Surveyors — Request is for placement of air - conditioning units along back side of existing garage within land subject to coastal storm flowage and the 100 -foot buffer off a timber bulkhead. Also asking to incorporate the proposed landscape plan. Access easement, beach easement, and kayak storage are to be maintained. Public None Discussion (5:24) None Staff Recommend this be issued as a Minor Modification. Motion Motion to Issue. (made by: LaFleur) (seconded by: Champoux) Vote Carried unanimously 2. Hunter T.R — 47 Cliff Rd (43 -43.1) SE48 -2753 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Recused None Documentation Supporting documents and plans. Representative Mark Rits, Site Design Engineering — Request is for relocate the retaining wall to align with those on properties either side; will be outside the 50 -foot buffer to coastal bank and top of bank. Propose a silt fence. Public None Discussion (5:30) None Staff Recommend this be issued as a Minor Modification. Motion Motion to Issue. (made by: LaFleur) (seconded by: Bennett) Vote Carried unanimously C. Certificates of Compliance 1. Dolphin Court Realty Trust- 6 Dolphin Court (42.4.1 -113) SE48 -2567 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Staff Reviewed project. Project is completed and they have submitted the required monitoring reports. It is in compliance. Recommend this be issued Discussion (5:32) None Motion Motion to Issue. (made by: Glowacki) (seconded by: LaFleur) Vote Carried unanimously 2. Dobies- 22 Brant Point Rd (29 -157) SE48 -2668 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Staff For construction within the flood zone. It is built in compliance. Recommend this be issued. Discussion(5:33) None Motion Motion to Issue. (made by: Oktay) (seconded by: LaFleur) Vote Carried Page 5 of 7 Minutes for June 17 2015 adopted June 24 3. James B, Crecca Revocable Trust (14 -37) NAN -118 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Staff They are asking to invalidate the Order of Conditions. No future work will be under that Order of Conditions. Discussion(5:34) None Motion Motion to Invalidate the Order of Conditions. (made by: Oktay) (seconded by: Erisman) Vote Carried 6- 1 / /Glowacki opposed. D. Orders of Condition 1. Duke 57, LLC — 55 Duke Road Lot 16 (56- 185.1) SE48 -2730 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Staff Normal monitoring; added Condition 24 for Best Management Practices for removal of knotweed if it comes up. There is a substantial revegetation plan. Photo monitoring of the revegetation is covered under Condition 20. Will add Condition 25 asking for markers along the mulched area. Discussion (5:35) Oktay — Wants photo monitoring of revegetation. Erisman — Up top the mulch; wants a way to delineate between mulch and reveget6ation. ]Motion Motion to Issue as amended. (made by: Erisman) (seconded by: Oktay) Vote Carried 6- 0 / /Glowacki abstain 2. Nantucket Land Bank — 158 Orange Street (55 -61.1) SE48 -2784 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Staff He didn't prepare a draft as he didn't know how the discussion would go. Discussion(5:41) Erisman — Need a Silt curtain. Oktay — Photo monitoring of salt marsh to ensure it comes back. Motion None Vote N/A 3. Squam Partners LLC — 89 Squam Road (13 -3) SE48 -2785 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Staff Staff — He crafted a denial. This needs to be issued today. He has a positive order prepared as well. Discus sion(5:43) Steinauer — He doesn't think this is water dependent use connecting two upland areas. They have alternative a route. Oktay — Agrees Finding 3 should read "NOT a water dependent use." Glowacki — Regulations define this walkway over a wetland as a water dependent use. His understanding is that this application hinges on the more than negligible impact on wildlife; he doesn't argue that point. Discussion about whether or not this walkway qualifies as water dependent use, citing state and local regulations. Oktay — Stated she had spoken with the crafter of the State regulation; he said the intent of water dependent use is crossing over a wetland is to reach the water. This does not do that. Erisman — This wetland is large without shrubs. Staff — The narrative asks for waivers but this board needs to resolve that. Oktay — Suggested adding that the purpose of the walkway is not reach water. Majority agrees this does not qualify as water dependent use. Oktay — Noted a typo. Glowacki — Asks the commission to approve this project under the state regulations and deny it under the local by -law. This application hits on four areas that in his opinion the commission has done wrong and in which he hopes to improve the way the commission operates. Read a written statement (attached as addendum) into the record addressing four areas of concern: the nature of technical advice the commission receives; erroneous and inconsistent manner in which this commission applies standards; inappropriate degree of wandering from meeting protocols; context and cost of compliance. He has the DEP standards and wildlife and can't see how the DEP won't issue a superseding order due to lack of evidence. Oktay — She feels this board listened to all the evidence, and she can list three significant adverse impacts. She feels the record is clear on that. There is no way this board could condition the project so as to have a negligible impact. She doesn't support a split decision. Erisman — It is up to the applicant to meet the burden of proof. Steinauer — Mike Howard, Epsilon Associates said that in his opinion it would have no impact but he didn't cite supporting evidence for that. Asked staff about a positive state and negative local. Erisman — Cited the Page 13 of the Massachusetts Wildlife Habitat Protection Guidance for Inland Wetlands in regards to findings that the project has no adverse impacts to wildlife habitat. Steinauer — Asked for a sense of commission on separating. Majority does not support splitting. Champoux — Asked if Ms Erisman's language can be added. There is a grey area in quantifying negligible impact. Bennett — Approved a driveway just down the road in proximity to the wetland. Steinauer — This fails on the no- reasonable - alternative; they have a driveway. Motion Motion to Issue as a Denial. (made by: Oktay) (seconded by: Bennett) Vote Carried 6 -1 / /Glowncki onnosed Page 6 of 7 Minutes for June 17 2015 adopted June 24 4. 181 Taurus Trust — 181 Eel Point Road (33 -21) SE48 -2788 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Staff Per instructions, Condition 23 cites that all downed timber is to be removed from the area and alllowed to revegetate naturally for two growing season. Waiver was for removal of one of the structures. Discussion(6:25) None Motion Motion to Issue as drafted. (made by: Champoux) (seconded by: Oktay) Vote Carried unanimously 5. *Wesquo Capital Partners - 57 Washington Street (42.2.3 -37) SE48 -2791 Sitting Steinauer, Oktay, Bennett, Glowacki, Erisman, LaFleur, Champoux Staff Couldn't think of anything additional conditions necessary. Discussion(6:27) Steinauer - This is very straight forward. Motion Motion to Issue as drafted. (made by: Champoux) (seconded by: Bennett) Vote Carried unanimously 6. Discussion of other closed notice of intent public hearings. E. Enforcement Actions F. Other Business 1. Approval of Minutes: May 27, 2015, adopted by unanimous consent 2. Reports: a. CPC, Erisman — Nothing b. NP &EDC, Bennett — Nothing c. Mosquito Control Committee, Oktay — Working on the contract and discussion with state. 3. Commission Comments a. Erisman — In regards to Wildlife Habitat value questions, she would like to have an invasive species expert talk to the board. Discussion about setting it up as a workshop. b. Oktay — Got reports of illegal cutting in an area asked to be revegetated at the end of I Street at Tennessee Ave. 4. Application Fees — No discussion at this time. 5. Administrator/ Staff Reports The regular meeting is next Wednesday, June 24, at 4 Fairgrounds Road in the Training Room, with the site visits on Monday, June 22. Motion to Adjourn: 6:35 p.m. Submitted by: Terry L. Norton Page 7 of 7 2015 06 17 To: Nantucket Conservation Commission From: Mike Glowacki RE: 89 Squam Road Draft Denial This Application Highlights four areas where Commission needs to make improvements. The Denial OOC will not stand — application is perfectly permissible under the Act. 1) Nature of technical advice Commission receives. See the May 1, 2015 Report from Laurentide which conflicts with the statements Mr. Perry made at the hearing: If the Wetland boundaries are correct, then the neighboring drive does not cross the same wetland, it skirts the southern edge. The report is all argument and opinion. Whether or not one agrees with the opinion, it remains opinion. The report does not cite any basis in the regulations for the Commission to conclude that the information provided by Epsilon Associates (4/29/15, pps 10 -11) is inadequate, misleading or incorrect. Such technical basis is readily available. For example, the Division of Fisheries and Wildlife "has determined that this project as presently proposed, will not adversely affect the Actual Resource Area Habitat of state - protected rare wildlife species. " For further Guidance: • One can look to the DEP standards in 310 CMR 10.00 section III "THE GENERAL APPROACH to including Wildlife Habitat interests to the Wetlands Protection Act. "The Department has attempted to keep the regulations from becoming overly burdensome, complex, or expensive... especially for simple projects with minor effects on wildlife habitat. "And, • "The addition of wildlife habitat interest does not mean that the mere presence of wildlife in a resource area is enough to establish habitat value ". The guidance goes on to list and to describe "significant features" and how their presence or absence may indicate whether or not a resource area includes "important wildlife habitat ", qualifying as a protected interest. • 310 CMR Section 10.55 (4) (b) allows the discretion for altering up to 5,000 square feet of vegetated wetland, with appropriate conditions for mitigation. In discussing this provision in 310 CMR 10.00 section IV SUMMARY OF WILDLIFE REGULATIONS, DEP says "...performance 2015 0617 conservation commission 89 Squam rd 1 standards allow for no large scale alteration of such wetlands, and even small alterations (under 5,000 square feet) must be replicated. With such guidance classifying a 5,000 square foot project as "Small scale ", what might the commission expect of DEP in a superseding order of this size? Can there be any doubt? The commission's discretion is bounded by the regulatory standard and by the context of DEP guidance under the Act. When the court looks at how the commission came to a decision to deny this project under the Bylaw, the inadequacy of the technical advice received is apt to weigh heavily. And with statutory authority to have the applicant address any reasonable concerns that the commission may have, it is not acceptable for the commission to rely on opinion over sound analysis. The commission does have discretion in determining whether the project would result in a "greater than negligible change in the resource area or one of its characteristics, functions or factors... ", but that discretion is not without limits. Thus far, we have as a basis for denial in this application: "I know" and "Common Sense" and unnamed "Scientific Studies have shown" and an opinion piece in the New York Times that was submitted after the submission deadline, and seen by some of the commissioners, and then not included in the record. An unimpressive record in the light of the applicant's submittals and the detailed DEP guidance available. Do we just not want to go where the facts and standards take us? The "no build alternative" is a violation of the local regulations as adopted under the Bylaw, and the commission must require its consultant to acknowledge the language of section 1.03 — F. 3 (A): "no reasonable conditions or alternatives that would allow that project to proceed in compliance with the regulations ". Roberts is unequivocal on this point (Roberts XI, Chapter 1 P 19, 1 10). The subsequent argument that this standard does not apply because it would allow any project is a false argument. This standard IS the standard — it is not optional. It would allow only those projects that the commission finds have no adverse impact (greater than negligible... etc. AND no reasonable alternative that will allow that project to go forward). This application hinges on whether there is reason to believe that that it would result in a "Greater than negligible change in the resource area or one of its characteristics, functions, or factors that diminishes the value of the resource area..." If that is so, there should be something in the record that identifies the change. 2) Erroneous and inconsistent manner with which Commission (repeatedly) misapplies published regulatory standards. When exercising the police powers of government to limit individual freedoms in the public interest, government agencies need be accountable to objective standards. "Reasonable Alternative ": This standard and the context, within which this standard is assessed, are applied separately, and with differences under the Bylaw and under the Act. Under the Bylaw (1.03 F 3 a) the standard is: no adverse (greater than negligible) impact and no reasonable conditions or alternatives that would allow that project... Negligible (small enough to be disregarded) Impact is not 2015 0617 conservation commission 89 squam rd 2 interchangeable with No Impact. Under the Act, (310 CMR 10.53 3) limited projects, except those with adverse effects on rare species, may be permitted. The issuing authority does have discretion to consider reasonable alternatives to the proposed project (within a context of DEP guidance on scale and on impacts). Much of that guidance speaks to projects on the scale of highway interchanges and airport projects. DEP specifically calls out projects involving 5,000 square feet or less, as "small" projects, permissible with replication. The DEP is going to approve this project under the wetlands protection act. No Build Alternative: Does not exist as an alternative that will allow that project to proceed. See above on technical advice. Let us please follow the adopted standards. The discretion under the Bylaw comes to adverse (more than negligible) impacts as defined by regulation. Fear of "Precedent ". This is articulated through the meetings and in the written record. It is the antithesis of objective review. If an applicant presents an approvable project, one might expect an objective review would culminate in approval. One's personal distaste for such a project ought not to encourage a less than objective review, according to the adopted standards. This unwillingness to go where an objective review takes us is the stuff of intolerance and bigotry. The Frequent Fallback denial position citing "Scientific Studies have shown..... ", requires reference to such named studies so that an applicant might address the findings of whichever study commissioners believe shows that adverse impacts are likely. In thinking this through, I have found a number of studies offering proof that the world is flat, after all, and that the moon IS made of green cheese. 3) Inappropriate degree to which the Commission wanders off of the adopted meeting protocols. Jumping straight into an argumentative attack w applicant at first opportunity, before applicant has had an opportunity to fully explain how the application meets the established standards. Labeling the inconvenient question (What basis do we have for conclusion of adverse impact? ) as "argument" is tactic of the bully. Chair shut that question off at the hearing. Commission would have done much better to realize we need articulate a coherent basis for denial under the regulations. Do the less vocal commissioners choose to acquiesce in such tactics ? Insistence becomes shrill when the logic of an adversarial argument does not stand. Most applications received do provide the necessary information for approval. The commission needs to articulate which standards require further information (whether there is a litigation firm present at the hearings or not). All applicants are entitled to fair treatment. 4)Context: Cost of Compliance. Overly burdensome conditions and procedures contribute to mindset that seeking forgiveness is more expedient than seeking permission. We invite a loss of public support for regulatory standards. 2015 0617 conservation commission 89 squom rd 3 At 89 Squam, the proposal is for enormously more costly project than initially conceived. Regulatory permitting is adding tremendously to cost. Two technical teams, a legal team and an appellate legal team are on the case since last October. Here is an applicant with the will and the resources to exercise their rights to an objective review, and who has shown they will not be bullied. Voting a denial with so little to back it is going to paint the commission as environmental bully, NOT as environmental champion. This commission has sadly fallen into the habit of abusing the limits to its discretion, and relying on the time and expense involved in an appeal process to intimidate applicants. Attachments: Laurentide May 1, 2015 Nantucket Land Council May 7, 2015 310cmr 10.00 wildlife habitat standards Chapter 136 Nantucket Wetlands Bylaw 310cmr 10.53 3 J Limited Projects 2015 0617 conservation commission 89 squam rd 4 Laurentide Environmental, LLC 14 South Shore Road Nantucket, MA 02554 e -mail: laurentideenvironmental @comcast.net Field Inspection Report Date: May 1, 2015 Applicant / Owner: Squam Partners, LLC Location: 89 Squam Road Agent: Blackwell & Associates - Art Gasbarro (508) - 332 - 9722 Comments: Developed lot off Squam Road acquired by the applicants in November 2010. Access to the existing dwelling is by driveway easement on the neighboring property - 87 Squam Road. Both properties have a number of Commission actions over the years to allow the development that has already occurred. The wetland boundary that has recently been re- flagged is correct. X *N - The proposed project request the construction of an elevated walkway through the vegetated wetland, a walkway on the undisturbed buffer zone, and the construction of a replication area to compensate for the alterations to the vegetated wetland. A narrative and project justification is contained in a document by Epsilon Associates included as part of the NOI. A waiver request has been submitted as part of the NOI. Both the Epsilon and the waiver request documents down play the permanent wetland alterations of the project in both the vegetative changes and the wildlife and wildlife habitat adverse impacts. Project narrative (Epsilon document): The path proposes to go through a mature shrub swamp (10 -12 feet high) by cutting the wetland shrubs to near ground level and constructing the walkway on top. All these cut shrubs will be permanently altered and if they do survive the cutting, they will never be higher than 30" tall as they will be continually be cut below the walkway's elevation. The narrative even anticipates that the shrubs will be replaced with lower growing vegetation. (page 2) I o D l✓-? 5SA-�. b.4i7q) The path will alter a minimum of approximately 560 sq. ft of wetland, permanently, and an additional 600+ sq. ft. temporarily through cutting. The narrative assumes that the mature shrubs cut as part of the initial clearing and that are outside the walkway footprint will grow back to their pre -cut condition. Further discussion needs to be on the likelihood of 100% survival of these cut shrubs and how long to would take for the wetland shrubs to grow to their pre - altered state. The narrative fails to discuss the impacts of habitat fragmentation from the project. (page 10 -11) The project goes through the middle of the wetland and the 25 -foot buffer zone. Even the proposed replication area is fragmented by the project. I do not see how these ermanent impacts can be mitigated by the proposed, replication area. S K-- IJ t � 'V%- F\W > A. � ' f, oz— S i AZ.� I VA G apt ,,,\ - Waiver requests and rationale: The waiver requests that the purpose of the project is to provide access between the cottage and the main dwelling. The applicant has perfectly passable, valid and legal access along the existing driveway. The problem to the applicant is that the access is on the neighboring property. However, this is not a new condition. It was present when the applicant bought the property. The rationale to avoid an alternative analysis is myopic at best. It misses both the intent and reasoning behind the alternative analysis as part of granting. In v��"c��E� addition, the no -build alternative is always part of the discussion prior to granting a waiver. If this project is not built, the applicant would still have legal and valid access to both the existing dwelling and the unconstructed cottage. It is not NC,0 OL unreasonable to use it. 1 �" S 8,000 _ Questions and Recommendations: 711V As discussed above, the proposed project will have a permanent, greater that negligible adverse impact on the vegetated wetland and its resources. Inspector: Perry Board of Directors Nantucket Land Council, Inc. Six Ash Lane Post Office Box 502 Nantucket, Massachusetts 02554 508 228-2818 Fax 508 228 -6456 nlc @nantuckedandcouncil.org w,%-wnantucketlandcouncil.org Lucy S. Dillon May 7, 2015 President Paul A. Bennett Dr. Ernie Steinauer, Chair Vice President Nantucket Conservation Commission William Willet Vice President 11 Bathing Beach Road Howard N. Blitman Nantucket, MA 02554 Treasurer Susan E. Robinson Re: NO]; Squam Partners LLC, 89 Squam Road (Map 13 Parcel 3) Clerk & Assistant Treasurer Karen K. Borchert Dear Commissioners, Larry Breakiron William S. Brenizer The Nantucket Land Council, Inc is a 501(c)(3) member supported non - profit organization. Karen K. Clark Sara P. Congdon We have reviewed the Notice of Intent filing by Squam Partners LLC for the construction William M. Crozier, Jr. of a boardwalk at 89 Squam Road. We would like to make the following comments. Philip B. Day Christine Donelan Robert Friedman The application includes a proposal to construct a boardwalk through a bordering Nancy Gillespie vegetated wetland on the subject property. The property contains one single family Wade Greene Mary Heller dwelling in an upland area to the east. A previously approved permit allows the Charles A. Kilvert III Laurel Ried Langworthy construction of a second dwelling on an upland area to the west, abutting Squam Road. Matthew B. Liddle The area between these two upland locations contains a bordering vegetated wetland Peter McCausland Eileen P. McGrath that completely bisects the property. Paul P. Moran Carl H. Sjolund REGULATORY COMPLIANCE H. Brooks Smith James W. Sutherland, Ph.D. Peter Watrous Under the Nantucket Wetland Protection Regulations the boardwalk requires a waiver g q Jon Wisentaner from Section 3.02 131 which mandates: at least a 25 foot natural.undisturbed area Honorary Directors adjacent to vegetated wetlands and that structures which are not water dependent shall Jean Haffenreffer be at least 50 feet from a vegetated wetland. Suzanne Mueller The applicant is requesting a waiver under Section 1.03 173a of the Regulations stating Staff that: the proposed project will not adversely impact the interests identified in the Bylaw C Collier and there are no reasonable conditions or alternatives that would alto that proje to cuti Executive Director proceed in compliance with the regulations. Emily L. MacKinnon Resource Ecologist q� t T t� 6 'r ,4 .iT ST4A1,o v f y"�' /� re) , .A� k- f 6 ! ��-N Linda Spery Development Director me 10/00 05;zb �f2 Ems Hudson.. _ _ ._ _._ ............. _, Developmenl,+Ncwatatucket Land Council, Inc Planning • Protecting • Preserving Wildlife Impacts A letter was submitted from Epsilon Associates evaluating the impacts of the proposed boardwalk on the surrounding bordering vegetated wetland and its interests as protected by the Regulations. We disagree with the letter's conclusion that the project will have a negligible impact on wildlife and wildlife habitat. The construction of a permanent 135 foot long, 3 foot wide boardwalk through the middle of this vegetated wetland will have a definitive impact on wetland vegetation and the wildlife it supports. The Regulations presume that the resource area and its buffer zone are significant to the protected interests and therefore prohibits structures from being built withjll.ihem. --- T�' /S 1S AA.1 A P_G uM 6� i9419 141.51 0&,r &4l 1 !�/ To the best of our knowle ge :1"t Con Com has never permitted a non -water dependent boardwalk such / as this through a wetland to two area Ian In addition to the impacts on this site, if the Commission determines there is no impact from this pr ' ct, it will set a precedent for the construction of more boardwalks bisecting DVWs and other important wetland habitats. This gradual fragmentation of habitat will lead to far greater cumulative impacts than those from an individual project. Alternatives Analysis ';� MI5 5; .4fL/5 '1 H E :9rAA -b-'i A 441 JJ' As part of the waiver request the applicant must prove that there are no reasonable alternatives. The applicant provides an alternatives analysis for the proposed boardwalk, but suggests that it is appropriate to ignore the purpose of the project (provide access to the eastern portion of the property). This is illogical. The purpose of the project must be considered in order to evaluate alternatives. The property was purchased by the current owners with a pre- existing easement (see attached) granting use of the driveway on 87 Squam Road to access the eastern portion of their property in perpetuity. This is the access they purchased the property with. The application for construction of a second dwelling on the western portion of the property did not consider crossing the wetland. The only access between dwellings was across the driveway easement on 87 Squam Road. This Is clearly a reasonable alternative to the boardwalk being proposed. CONCLUSION The application before the Commission is for the construction of a boardwalk through an undisturbed vegetated wetland. The boardwalk will have a negative impact on the surrounding wildlife and wildlife habitat and there is an existing reasonable alternative. The waiver required for this project can not be met. Thank you for your time. Sincere , Emily Ma in n Resource Ecologist Enclosure 21Nantucket Land Council, Inc. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION PREFACE TO WETLANDS REGULATIONS RELATIVE TO PROTECTION OF WILDLIFE HABITAT 1987 REGULATORY REVISIONS I. INTRODUCTION Under a recent amendment (St. 1986, c. 262) to the Wetlands Protection Act, M.G.L. c. 131, § 40, wildlife habitats added to the interests protected by M.G.L. c. 131, § 40. Wildlife habitat is defined in M.G.L. c. 131, § 40 to mean: "those areas subject to (M.G.L. c. 131, § 40) which due to their plant community composition and structure, hydrologic regime or other characteristics, provide important food, shelter, migratory or overwiotering areas, or breeding areas for wildlife. " Pursuant to the rulemakmg authority set forth in M.G.L. c. 131, § 40, the Department of Environmental Protection is promulgating additional regulations, after public comet nt, to protect this additional interest. II. THE RULEMAKING PROCESS During the entire period that its proposed regulations were in preparation, the Department had the benefit of advice and consuhation from knowledgeable groups and individuals, most particularly representatives from the development and environmental communities, as well as w0ife and wetland scientists. Where consensus was attained and deemed consistent with the Departmenf s rrsponsibrlitie� under M.G.L. c. 131, § 40, the proposed regulations reflected it; in other instances, the Department weighed conflicting points of view and close a course ofaction that it its judgement best served both the public interests identified it M.G.L. c. 131, § 40 and private property rights. The proposed regulations were then subject to public comment at four Public Hearing held around the state, as well as through extensive written submittals. These comments were caref* weighed by the Department and, in many cases, incorporated into a revised version of the regulations. As required by M.G.L. c. 131, § 40, these regulations were submitted to the Clerk of the Massachusetts House of Representatives for forwardaug to the Joint Committee on Natural Resources, 60 days prior to their Bing with the Secretary of State for final promulgation The effective date of these regulations is November 1, 1987. To briefly summarize the lengthy process by which the regulations were prepared; in The 1986 amendment to M.G.L. c. 131, § 40, the Legislature mandatedthe establishment ofa technical advisory committee ('TAC') consisting ofa university wildlife biologist; staffmembers from the Department of Fisheries, Wafidl& & Environmental Law Enlorcement, Department of Public Works, and Office of CoastalZone Management; a member of the Massachusetts Horreburldens Association; a member of the Massachusetts Association of Conservation Commissions; a member of the Massachusetts Audubon Society; a member ofthe NationalAssociation ofIndustrial Office Parks, Boston Chapter, and a general connector, to advise and assist the Department in drafting proposed regulations. Numerous meetings of the TAC were held to discuss key policy issues. In addition, a six person Scientific Advisory Subcommittee was formed to identify the wnldid'e habitat characteristics and fiinations of each wetland resource area, upon which scientific information the proposed regulations were based. Marry other scientists, consultants and individuals were contacted informally by the Department during this time period for their advice and opinions. The Department proposed regulatory revisions on May 5, 1987, and held three Informational Meetings around the state to explain the draft regulations on May 12, 14 and 19; four Public Hearing to receive public comment orally on May 26 and 28 and June 2 and 4; and accepted written comments fromthe public on the proposed regulations until June 12, 1987. The regulations reflect the benefit of these commernts. 10/24/2014 310 CMR 10.00 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION 10.00: continued III. THE GENERAL APPROACH The regulations are based on a number ofimportant principles. The Department has attempted to keep the regulations from being overly burdensome, complex or expensive for conservation commissions and applicants, especiallyforsnIdPtojectswithmmorefictsonwildb %habitat Nonew fees are proposed in these regulations. The Departnent has also tried wherever possible to maintain the existing regulatory structure, except where protection ofw>ldlifehabitat requires procedures which are not needed to protect other interests alone. Most importantly, the regulations are based on the definition of wWffi habitat contained in M.G.L. c. 131, § 40 (see 'T. INTRODUCTION" to this Preface). Prior to enactment of the wildlik amendment to M.G.L. c. 131, § 40 by the Legislature, the Department and most ofthe other interest groups which were party to the legislative debate agreed to the 'Solent" of a "preamble ", "explaining the eh'ect of this amendment upon the Wetlands Protection Act" Althoughmt legally binding the Department believes that this'preamble" represents an accurate interpretation of the statutory language (especially the statutory definition of'wvtldide babitafD as well as the legislative intent. Consequently, the Department has drafted these regulations to be filly consistent with this 'j reamble ", which is quoted as follows in its entirety: It is important to make clear what it means to have added the wildlife habitat interest as an eighth interest in M.G.L. c. 131, § 40. It does not mean that the geographic jurisdiction of the conservation commission or the DEP is increased. The resource areas that are pnotectable under this statute stay the same, only the reasons for their protection are different by adding this wildlife habitat value. In other words, this amendment does not make M.G.L. c. 131, § 40 a wildlife habitat protection statute. It is still a wetlands protection statute. The presence of wildlife habitat on upland (wfh no resource areas) does not give the conservation commission or the DEP power to control the work therein not altering resource areas. The addition ofthe wildrk habitat interest likewise does not change the work or activities that are regui table larder the statute. There still must be dredging Sp¢ig removing or altering ofa resource area to trigger jurisdiction ofthe conservation commission or DEP. In other words, the amendment does not increase the scope of activities regulatable, but rather adds another reason for the conservation commission or the DEP to ask for information about the work and set conditions. The addition of the wildlik habitat interest also does not change the role or authority of the conservation commission or the DEP in regard to work in the burr zone. The applicant still has his option to & either a Request for DewrminatiDn (RFD) or full application (NOI) and the issuing authority still has the task of deciding if the proposed work will alter resource areas. Commissions still may issue negative determinations if satisfied that precautions in the project have been taken so that there will be no alteration of resource areas. In other words, work in a wildlife habitat found in the buffer zone (not altering resource areas) does not trigger jurisdiction to require a fiA Notice of Intent. The addition of the wildlik habitat interest does not mean that the mere presence of wnldlde in a resource area is enough to establish habitat value. An amendment to the bill during passage makes clear that something else is necessary, namely the presence ofa'plant commnty composition and structure, hydrologic regime, or other characteristic' providing significant katures for wild*. In other words, the amendment does not mean that there is a wildlik habitat value to the resource area just because some creatures have been seen there. Instead its the presence of plant community, hydrologic or other characteristics that is determirdtive. The statute protects habitat value not wildlife per se. 10/24/2014 310 CMR 10.00 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION 10.00: continued Furthemore, the presence of these characteristics establishing woffe habitat does not mean that it is automatic that every resource area is significant to wHdlil'e habitat. The amendment to the bill during passage makes it clear that the features present must be enough to 'provide important flood, shelter, migratory or overwintering areas, or breeding areas for wildlife.' In other words, the definiion of wrld}ife habitat sets a threshold for a resource area to be significant for wi ife habitat It must be significant for the particular reasons stated in the definvtion: food, shelter, migratory or ovenvmtering areas, or breeding areas. Each point in this 'preamble" is reflected in these regulations. The geographical jurisdiction of the regulations is in no way increased beyond the resource areas as previously defined, despite the urging of many individuals and organizations that the Department extend the regulations to cover all "vernal pool" amphibian breeding areas, even those outside current resource areas. The regulations do not change any rules regarding uplands or bufl'er zones, nor do they'Wrease the scope of activities regulatablc ". Most importantly, the regulations foflows a strict interpretation oftbe statutory definition of"wml* habitat ", consistent with the agreement expressed in the preamble. Unlike the other interests protected under the M.G.L. c. 131, § 40, the term "wnldlife habitat" s defined in the legislation Wit * habitat means those resource areas which, due to certain physicalcbarecterstics, provide 'kWortant" wildTde habitat firctioffi 4e.,Uportant fn0d, shelter, migratory oroverwihberingareas, or breeding areas for wildlife'). Thus while resource areas are presumed to be significant to the protection ofother interests whenever they play a role in protecting the interest, a particular site rust play a role in providing important wills habitat factions, and must do so because ofthe presence ofspecific physicalhabitat characteristics, in order to warrant a presumption of s4oificance under the new wfldl* regulatiDw. The regulations specify what these physical habitat characteristics are and what are (and are wt) to be considered '"enportant" wiid* habitat finhctions a each resource area This information is reflected throughout the regulations: in the 'Preamble ", 'Presumptions of Significance" and 'Performance Standard" contained in the regulations for each resource area, as well as in the special provisions far'4are" wrildlite species (3 10 CMR 10.37 and 10.59) and, for inland resource areas, in 310 CMR 10.60 "Wid}ife Habitat Evaknations ". The Department firtihermore intends to anipldy upon the complex wildlife habitat characteristics and fnctons ofresource areas through additional policy guidances. It is only Fbr specified habitat characteristics and the 'Itiportant" wnldlifi: habitat fractions they serve, that presumptions of sgaificance and performance standards are to be applied. These provisions reflect the following understanding of the statutory definition of whldli& habitat: A. By bang the definition of wildlife habitat to include only those areas which "due to (certain physical) characteristics" provide '%Vortant" wildlife habitat fimctiDw, the Departinent believes the Legislat re meant to protect onlythose wildlife ball tats which, though they may sometimes be present elsewhere, are particutarlypn valut and/or valuable it wetland resource areas. The scientific literature indicates that virtually everything except concrete, provides habitat for at least some wildlife species, yet the Department does not believe it was the intention ofthe Legshture to protect lawns, cemetai-cs, golf courses, landfils, or wildlife habitats which typify "upland" areas, just because they happen to be located in wetland resource areas. Based on detailed scientific assessments ofthe wildlife habitats found in each resource area, certain resource areas (or portions ofresources areas) whichare generally lacking in special wetland wildlife habitat characteristics and finctions, are not presumed in the regulations to be significant to the protection of whikI fe habitat For those resource areas which are presumed significant, only specified wnldlife habitat characteristics and functions are protected. 1220/02 310 CMR - 443 10/24/2014 310 CMR 10.00 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION 10.00: continued B. By requiring the protection only of'Iiniportant" wildlife habitat fimctions (rather than wildlik, per se), the Departmentbekves the Legislature did not intend for the Department to tryto save every finod source, breeding site, etc. for eachindividualan mal. Instead, the Department believes the Legislature mes>tto protectwetlauxl habitat which is important to wildlife frroma regional or statewide perspective. Therefore, the regulations allow alteration of smd amounts of wildlife habitat in most resource .areas. For those portions of inland resource areas found to be sil;nificarit to the protection ofwildr& habitat (except bordermigveptated wetlands), the regulations refiect the Departmeds concision that small, one time altutrations ofup to 10% ofthe remaining wetland wildlife bobcat on a given lot will not harm "important" wildlife habitat frmcdons, and that temporary disruptions of other wildlife habitat is permiissrble so long as its inportannt wildlife habitat fimctiaons are substantially restored or replicated. Certain "water dependent" projects (which the Department believes will be relatively uocornuon in inland areas as compared to coastal areas) may also be allowed to proceed at the discretion of the issuing authority under a reduced per&rmrance standard without major i Tacts on 'important" wOdlit habitat fiuections of wetland resource areas in the Commmvealtb. Because most 'li nportart" wildlife habitat it coastal areas is more livied than that in inland areas, the Department has only set a reduced performance standard in some coastal resource areas fDr 'water - dependent projects ", those uses and finalities which require direct access to, or location in coastal waters and which therefore cannot be located away from such waters. By requiring such projects to mloarrae adverse e&-cts on wildlife habitat, while allowing most other projects (m matter howsmall) to have no adverse effect, "innportane, wildlife habitat fimctions of coastal resource areas will be adequately protected. However, because wetland wildlife habitat ofrare, officially " state - listed" species is always Iportant" mboth coastal and inland areas, the regulations permit no adverse effects whatsoever on this habitat .Another alternative for protecting "inportant" wW fe habitat fimctions would have been to protect only those specific sites which are of a "bW' value lor wmldliie. The Department considered, but ultimately rejected this alternative. Unfortunately, what is excellent habitat for one species is frequently inadequate for another. For this and other reasons, scientists are currently incapable of setting objective standards for rating the relative value to aflwildlife (nanniriab, reptiles, birds, and arrphibians) of sites within most wetland resource areas. Furthermore, without a comprehensive survey of all wetland wMf& habitat in the state (which would be prohibitively time- consrrnmrg and expensive), it would be impossible to design a cut- offpoit for determining when a site is or is not of sufficiDr* high value to be considered " iWortant". Instead, the regulations generally require no adverse e&cts on all the "Irnportaat" wildlife habitat fiutnctions existing at eaclrproject site (except for certain small alterations or specified project types in some resource areas). Those sites providing low valuable wildlife habitat fimctions will simply have less to protect than sites that are rich in i Wortart wildlik habitat fimetions. C. Bynot defir>logthe term 'wrldli6e ", the Department feels the Legislature intended that no preference be given to any particular wildlti'e species over any other . Consequently, the regulations protect equally all mammals, birds, reptiles, and arriplihiars for which a resource area provides important wildlife habitat fimctions. Fisheries (except for specified 'Pare" species) are not directly protected by most of the regulatory revisions, because current regulations already contain provisions protecting fisheries. Since the habitat needs of most invertebrates overlap those of vertebrate wmM fe and fisheries, the Department fe$ it was not necessary to set separate standards to protect invertebrates, unless they are officially designated rare species in need of specialprotections. Furthermore, the goal of protecting all wildffc species equally led the Department to promulgate regulations which, within certain Tints, requ re the maintenance ofexisting wildlilo habitat characteristics and fimctions, rather than allowing development projects to substitute habitat characteristics which, while perhaps helping some species, could harm others. 12/20/02 310 CMR - 444 10/7.4!2014 310 CMR 10.00 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION 10.00: continued IV. SUMMARY OF WILDLIFE REGULATIONS A. PnsmVtlons of SWificance. A presumption is created that the folbwing coastal resource areas are significant to the protection of wildlE habitat: Land Under Water, Coastal Beaches; Coastal Dunes; Barrier Beaches; Rocky Intertidal Shores; Salt Marshes; and Land Under Salt Ponds. Presumptions of significance are also made for all inland resource areas, though only for portions of Land Subject to Flooding. For Bordering Land Subject to Flooding, only those areas are presumed significant which have not been extensively altered by human activity; firthermore, except for vernal pool habitat (which is critical to certain amphibians), the presumption is limited to areas on the 10 -year 800dplain orwithin 100 feet of the bank or bordering vegetated wetland (whichever is firther from the waterbody). Withinisolated LAW Subjectto flooding, only ven alpoolbabitatispresumed significant to the protection ofwildlife habitat. Veinal pools are presumed to exist, however, only when certified and mapped by the Massachusetts Division ofFisheries and Wildlife. Like the presumptions ofsignifimme found in current regulations reganlingotherioterestsprotected by M.G.L. c. 131, § 40, presumptions regarding wrldlili: habitat are generalimtions based on a generic study ofeach resource area. (As noted above, however, imlike presumptions ofsignificance regarding other statutory interests, presumptions regarding wnldl* are predicated on a statutory definition which requires the presence ofcertain physical characteristics providing important wildlik habitat fiioctions.) The prima facie force of the presumption can be overcome by the introduction of sufficient evidence to the contrary; that is, by a showing that the resource area in question fi=tbns atypically. B. Performance Standards. For coastal resource areas, little orno change inperforrnance standards are made for Dunes, Salt Marshes or Land Under Salt Ponds. Ibis is because existing standards for fisheries and otheriuterests protected byM.G.L. c. 131, § 40 are genetaIlyadequate to protectw>'Idbfo habitat as well Only minor changes are made in performance standards for water - dependent projects on Land Under the Ocean, Coastal Beaches, Barrier Beaches, and Rocky Intertidal shores. New, stricter performance standards, however, are set for non- water- dependend projects icnthese resource areas. Such projects may have m adverse effects on specified wkl* habitat characteristics. In addition, conservation commissions or the Department may allow maintenance, repair, and/or improvement (but not substantial enlargement) ofcertain projects such as ex istingroadways, structures and road drainage facilities in coastal resource areas, subject to whatever conditions are deemed appropriate. For aR resource areas (coastal and inland), no project may have any adverse effect on the local Population of a rare, 'state- listed" vertebrate or invertebrate animal species, where tfie project is located within the habitat of such species. These habitats are only presumed to exist where mapped bythe Massachusetts Naturalflentage and Endangered Species Program. These areas make up only a small percentage of the land subject to these regulations. For inland resource areas, no changes in performance standards are made for bordering vegetated wetlands (with the exception of special provisions for rare, state -fisted species, described above), because exnstengperkmnance standards allow no large scale alteration ofsuchwe*Mds, and evensmal alterations (under 5,000 sq. 8.) mist be replicated. For other inland resource areas, project size "thresholds" of 10% ofthe wildlife habitat on each lot (with a maxanunthreshold on each lot of 50 feet ofBank and 5,000 sq. fl. of Land Under Water and Land Subject to Flooding) are established, below which projects are allowed without being considered to impair their capacity to provide important wfldr& habitat functions. Such thresholds do not apply to critical "vernal pool (amphibian) habitat" on Land Subject to FLooding. Moreover, once this threshold of the wnildMe habitat on a lot has been altered 1220/02 310 CMR - 445 10/22412014 310 CMR 10,00 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION 10.00: continued after November 1, 1987, all future projects on that lot (no matter how small) must meet the same performance standard as applies to larger (above - threshold) projects: no adverse effects on wit * habitat. This performance standard (which applies to inland Banks, Land under Water, and those portions ofLand Subject to Flooding found to be stnificantto the protection ofwlld* habitat) forbids alterations of specified habitat characteristics found at the site, insofar as such alterations will after two (2) growing seasons substantially reduce the pre - project habitat value. Applicants must present evidence from a wildlife biologist or similar professional that this standard will be met. Replication of altered habitat off site is permitted, but under a number of strict conditions. Just as the regulations impose less stringent performance standards regarding protection of wildlife habitat on "water- dependent" projects in coastal resource areas, the new inland regulations establish a '%i*ed project" status for water - dependent uses. As with other kneed projects in inland resource areas, the normal performance standards are suspended and the issuing authority may issue an Order of Conditions along with'l;uchconditions as willcontribute to the interests identified in M.G.L. c. 131, § 40" for water - dependent uses. However, unlike other limited projects these uses remain subject to the existing performance standards for bordering vegetated wetlands, flood control and storm damage prevention, and they must miturnae adverse impacts on other statutory interests for wtwheach affected resource area is found to be significant This new 1m>ded project status was deemed necessary by the Department in light of the significantly stronger performance standards being imposed on most larger projects by the new wildlde habitat regulations. V. ISSUES OF MAJOR CONCERN Public comment on the Department's proposed lower wetlands /wrldUe regulations was extensive. While most commentators generally supported the proposed regulations, there were also many suggested changes. The following represents a summary ofthe most common issues ofmajor concern, and the Department's response thereto as reflected in the final regulations: A- Presumptions of Significance. cep. There was some strenuous opposition to the establishment of prestmlptloas of significance regarding protection of wrldlde habitat, based largely on the language of the last paragraph oftbe 'preamble"agreed to by numerous interest groups (as well as the Department) prior to the legislative enactment ofthe weffiWWw>l IU& amendment in 1986. Although this paragraph of the preamble does not explicitly state that the signatories agreed that the Department would not extend its practice of the use ofpresumptims; ofs*n&ance to the new wildlife habitat interest, these commentators argued that such a result was implied by the statement, 'Furthermore, the presence of these characteristics establishing wildlife habitat does not mean that it is automatic that every resource area is significant to wildlife habitat." The Department believes that a reading ofthe entire paragraph ofthe preamble makes it clear that this language does not smuggest that resource areas should not be presumed significant to the protection ofwildlde habitat, but only that presumptions must be based strictly on the presence ofcertain physical habitat characteristics providing specified 'inportant" whiff fe habitat fiunotions in each resource area: Furthermore, the presence of these characteristics establishingwrldl* habitat does not mean that it is automatic that every resource areas significant to wrldfilo habitat The amendment to the bill duritigpassage makes it clear that the features present must be enough to'provide irriportart food, shelter, migratory or overwmtering areas, or breeding areas for wild*.' In other words, the definition of wildlife habitat sets a threshold for a resource area to be significant for the particular reasons stated in the definition: food, shelter, migratory or overwintering areas, or breeding areas. (emphasis added) 12/20/02 310 CMR - 446 1 a 24, /214 310 CMR 1000 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION 10.00: continued As noted in detail above, this is exactly what the Department has done in creating the presumptions contained in these regulations and certain tlimholds below which wadlik habitat fimctions are icrebuttably deemed not to be important (with the exception of rare species habitat). As with presumptions of significance regrading all other statutory interests, the presumption for wMlife habitat is based on scientific* supported generalities regarding each resource area, and may be overcome by clear evidence that a specific project site acts atypically. B. Expansion of hu Wiction Certain patties suggested that the proposed regulations expanded the jurisdiction of the regulations by adding what can be strict new performance standards to certain resource areas which had previously been subject to less strict standards. The Department disagrees. Adding a new interest to be protected under M.G.L. c. 131, § 40 clearly requires new performance standards in some resource areas, but in no case has the Department changed the definition or boundaries of any resource area as previously defined, nor has it changed any rules pertaining to the buffer zone or uplands. Furthermore, although there were a very large number ofconmen is asking the Department to protect small, upland vernal pools, the Department has consistently rejected this suggestion on the basis that such an action would expand the geographic jurisdiction of conservation comnissiona and the DepartmeM in contradiction to the intension of most pasties supporting the wetlardsfw0dlife amendment and the Legislature itself C. Vernal Pools. On the issue of vernal pools, the Department received two groups of comments. As noted directly above, matey individuals and organizations pressed the Departs to protect all vernal pools, including those outside currently defined wetland resource areas, but the was rejected as an unauthorized expansion of jurisdiction. Many parties, including the Depattimds own regional stag anted that because they are often very small n size and usually ternporary it nature, the proposed regulatory language on identifying vernal pools would lead to innumerable, inequently isoilable disputes over the presence ofsuch habitats on Land Subject to Flooding. After extensive research on vernal pool identification techniques, the Department concluded that it would be un& r to applicants to retain proposed requirements that could force them to conduct difficult, timely, expensive and often inconclusive searches for possible vemalpools. Instead, the final regulations create a presumption that vernal pools are present only when mapped, where such maps have been certified by the Division of Fisheries and Wildlife. That Division has agreed to establish such a certification progtarr> which will require evidence of the breeding of amphibian species that need vernal pools. Finally, scientific evidence was presented to the Department that areas immediately surrounding venial pools generally serve all the important nonibteeding habitat firnctions of amphibians which regime vernal pools for breeding Consequently, the regulations cortanperformance standards protecting the area within 100 feet of the boundaries of vernal pools. D. Fbodplaios. Perhaps the most controversial provisions in the proposed regulations were those protecting fioodplaios (Bordering Land Subject to Flooding). On the one bard, there were many comments urging the Department to protect all wildlife habitats (including fields) throughout the 100 year floodplain, except far those portions altered by human activity. On the other hand, others suggested that the Department has no basis for proposing to presume that woodlands (or other defined areas) on the entire 100 -year fioodplanwere significant to the protection of"inportane" wildlife habitat fi=tions. The Department recognized some merit it each of these contentions, and incorporated aspects of both in the final regulations. As noted above, presumptions ofsignificance are based on scienfficaly grounded genetalizations onhow resource areas typicallyfinction; however, regarding protectionofwildlik habitat, they are also limited to those wedand habitats which, due to certain physical chamcterisdes, provide 'importare fiatctions for weld 'Lie (ke., those "speciar qualities which, dough they may be present n uplands, are particularly prevalent or valuable in wetland resource 12/20/02 310 CMR - 447 to�za�zota arocwuc 10.00 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION 10.00: continued areas). The Preamble describing irrportant wildlife habitat functions of flovdplaias n 310 CUR 10.570)(a)(3) indicates that these functions stem from five major fiuctors: frequent flooding, close proximity to water bodies, moistness of soils, the vegetative corridor which aids movement of wr7dlde to and from as well as along water bodies, and the "edge" effect which causes wrldKe to thrive is the area where two different habitat types meet (e.g., where water bodies orbonderingvegetated wetlands meet other habitat). Such habitat clearly is not k*ed to woodlands, but rather extends to fields and other areas which have not been so altered by human activities as to effectively of urinate their special wetland habitat value. The foal regulations reflect this principle. It is also true that the five key factors which provide 'krportant" wetland wild)rfe' habitat fimctions are generally much more prevalent on the lower floodplain (that closest to the water body) than the upper floodplain. Indeed, as one moves away from the water body and bordering vegetated wetland into the infrequently flooded areas of the 100 -year floodplain, the habitat becomes increasingly iodistorguishable in its vegetative and hydrologic characteristics from upland areas. Therefore, in the final regulations the Department determined that a presumption ofsigrv6cance for wildlife habitat was warranted only fDr the lower floodplain (except for vernal pools, which are clearly essential for certain ampbhuns wherever they appear on the floodplain). The lower floodplain is defined as areas on the 10 year floodplain or within 100 feet of the bank or bordering vegetated wetland, whichever is further from the water body or waterway. 'firportant" lloodplair habitat on the upper floodplain may also be protected on a case by case basis where evidence of its existence has been demonstrated, though this area is not presumed to be sigrifficant to the protection of wildlife habitat. E. Thresholds. The Department proposed the creation of project size thresholds for three resource areas (inland Banks, Land Under Water, and Land Subject to Flooding) below which alterations are not deemed to have an adverse effect on the protection ofirportant wrldRE habitat fimctions. Though there were objections to this concept, the Department found, as explained in detail above, that use of thresholds is the most sci ntifica ly valid and least complex method of protecting 'Important" wrldlh'e habitat in these resource areas, whole allowing small, uumnportant alterations (i.e., uminportant from a regionalor statewide prospective). Manyconnrernatons expressed concern that aithoughtheproposed threshold alterations may appear small mdw du*, repeated undertakings ofthreshold projects on the same property could cause large cumulative impacts on wrldhfe' habitat In response to these con aerits, the Department has added a provision issuing tat such small alterations will not be allowed, cunnrlatively, to have a major impact on important wild* habitat fimctiom. The thresholds may only be applied once per lot after the effective date ofthe wildlife regulations. This rule regarding cumulative nupacts applies on lyto the protection ofwild)te habitat oni land Banks, Land Under Water and Land Subject to Fbodng. The Department takes no position at this tine as to whether this is the appropriate method of addressing cumulative impact issues regarding limited projects or performance standards in effect prior to the promulgation of the new regulations protecting wuldK- habitat. There were also numerous comments that the proposed thresholds were too small to allow for certain projects which must necessarily be located on or near water -- for example bridges, marinas, wastewater treatment plannts, etc. Rather than raising the thresholds for al projects, however, the final regulations take cognisanceofthose water- dependent uses by creating anew'S ited "project category for such uses (except those in bordering vegetated wetlands) with their own performance standards. To balance the net effect on important wild* habitat functions, we have tightened the thresholds for von- water - dependent uses on inland resource areas (except borderngvegetated wetlands) to no more than 10 % ofthose portions ofan owner's lot found to be significant to the protection ofw&Uife habitat (the maximum. . limits of 50 linear feet of Bank and 5,000 sq. L ofland Under Water or Land Subject to Flooding contained in the proposed regulations, were retained in the final regulations). 1220/02 310 CMR - 448 10124/2014 310 CMR 10.00 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION 10.00: continued F. Rare Species. Most commentators strongly supported protection for rare species, bit a number of technical changes were suggested and incorporated into the foal regulations. Applicants with proposed projects on 'Estimated Habitat Maps" may, if they wish, contact the Natural Heritage and Endanrgered Species program 90 days befDre fififnng their Notice ofhuent and receive a response within 45 days, so as to facilitate project designs which will met rare species performance standards. In al cases, the Heritage Program wil have at least 30 days to respond to notification that a proposed project is on the Estimated Habitat map, and no Order ofCorditions maybe issued before that time. G. WW* Habitat Evaluations. A number of commentators found Section 10.60 (which sets standards for determi*g whether "above tlaeshold" projects on inland Banks, Land Under Water, or Bordering Land Subject to Flooding will adversely effect wildlite habitat) to be confismg. The final regulations, we believe, are clearer. The basic standard for determining adverse effects is whether the project would substantially reduce specified important wildlife habitat fimctions. Standards for restoration and replication ofwnldlile habitat were also clarified. Although there were some comments in opposition to alowing off -site replication, we believe that the performance standards for replication are suffCierrtly stringent to protect vviki 'e habitat, especkny since off-site replication above 5,000 sq. 1 of bordering vegetated wetlands (the most valuable wildlife habitat) remains prohibited under the stringent performance standards contained in the present regulations. Furthermore, an Order of Conditions may require that replicated habitat m fact meets the standard ofm substantial reduction in habitat value Jnr an indefinite period it the firtuae, so that further efforts can be required if initial replication is unsuccessfirl 12!20/02 310 CMR - 449 1012412014 310 CMR 10.00 Chapter 136 WETLANDS § 136 -1. Definitions. § 136 -2. Purpose. § 136 -3. Permit required; procedure. § 136 -4. Hearing; determination; § 136 -8. enforcement orders; appeals; § 136 -9. plan changes or modifications. § 136 -5. Emergency projects. § 136 -6. Preacquisition violation. § 136 -7. Promulgation of rules and regulations. § 136 -8. Burden of proof. § 136 -9. Security. § 136 -10. Violations and penalties; enforcement. [HISTORY: Adopted by the Annual Town Meeting of the Town of Nantucket 4 -5 -1983 by Art. 29, approved 8 -19 -1983. Amendments noted where applicable.] GENERAL REFERENCES Zoning — See Ch. 139. § 136 -1. Definitions. [Amended 5 -17 -1988 ATM by Art. 95, approved 9 -28 -1988; 4- 8.1996 ATM by Art. 47, approved 7 -15 -1996; 4 -10 -2000 ATM by Art. 62, approved 8 -2- 2000; 4-12 -2004 ATM by Art. 52, approved 9 -3 -20041 Through its authority to promulgate regulations pursuant to § 136 -7, the Conservation Commission shall adopt definitions to effectuate the purposes of this chapter. The definitions for "agricultural practices," "alter," and "person" shall be included in the Nantucket Wetland Regulations, subject to future revision as set forth in § 136 -7. The Commission is directed to revise its regulations pursuant to § 136 -7 to incorporate the current definition for "habitat" into the definitions for "habitat" contained within the Wetland Regulations, prior to this amendment taking effect. § 136 -2. Purpose. [Amended 4 -8 -1996 ATM by Art. 47, approved 7 -15 -1996] - . . The purpose of this chapter is to protect the wetlands of the Town of Nantucket by controlling activities deemed to have a §iS2jAWt or cumulative effect upon wetland values, including but not limited to the following: public or private water supply, groundwater, flood control, erosion control, storm damage prevention, water pollution, fisheries, shellfish, wildlife, rare species, including rare, threatened or endangered plant species and animals and habitats, ecreation and wetland scenic views (collectively, "the interests protected by this chapter "). This chapter is intended to utilize the Horne Rule Authority of this municipality to protect additional resource, areas for additional values, with additional standards and procedures in ad ui`d''on to�those of the Wetlands—Protection Act, c. TS—I,—§-40, and regulations thereunder, 310 CMR 10.00. �� ADDt�1G�A /MSG F, iZ VA L 5TAA. ,b A s s � % 1A) i 6 1 1D - 15 - 2004 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION 10.53: General Provisions (1) If the Issuing Authority determines that a Resource Area is significant to an interest identified in M.G.L. c. 131, § 40 for which no presumption is stated in the Preamble to the applicable section, the Issuing Authority shall impose such conditions as are necessary to contribute to the protection of such interests. For work in the Buffer Zone subject to review under 310 CMR 10.02(2)(b)3., the Issuing Authority shall impose conditions to protect the interests of the Act identified for the adjacent Resource Area The potential for adverse impacts to Resource Areas from work in the Buffer Zone may increase with the extent of the work and the proximity to the Resource Area. The Issuing Authority may consider the characteristics of the Buffer Zone, such as the presence of steep slopes, that may increase the potential for adverse impacts on Resource Areas. Conditions may include limitations on the scope and location of work in the Buffer Zone as necessary to avoid alteration of Resource Areas. The Issuing Authority may require erosion and sedimentation controls during construction, a clear limit of work, and the preservation of natural vegetation adjacent to the Resource Area and/or other measures commensurate with the scope and location of the work within the Buffer Zone to protect the interests of M.G.L. c. 131, § 40. Where a Buffer Zone has already been developed, the Issuing Authority may consider the extent of existing development in its review of subsequent proposed work and, where prior development is extensive, may consider measures such as the restoration of natural vegetation adjacent to a Resource Area to protect the interest of M.G.L. c. 131, § 40. The purpose of preconstruction review of work in the Buffer Zone is to ensure that adjacent Resource Areas are not adversely affected during or after completion of the work. (2) When the site of a proposed project is subject to a Restriction Order which has been duly recorded under the provisions of M.G.L. c. 131, § 40A, such a project shall conform to both the provisions contained in that Order and 310 CMR 10.51 through 10.60. �(3) Notwithstanding the provisions of 310 CMR 10.54 through 10.58 and 10.60, the Issuing ority may issue an Order of Conditions and impose such conditions as will contribute to the interests identified in M.G.L. c. 131, § 40 permitting the following limited projects (although no such project may be permitted which will have any adverse effect on specified habitat sites of Rare Species, as identified by procedures established under 310 CMR 10.59). In determining whether to exercise its discretion to approve the limited projects listed in 310 CMR 10.53(3), the Issuing Authority shall consider the following factors: the magnitude of the alteration and the significance of the project site to the interests identified in M.G.L. c. 131, § 40, the availability of reasonable alternatives to the proposed activity, the extent to which adverse impacts are minimized, and the extent to which mitigation measures, including replication or restoration, are provided to contribute to the protection of the interests identified in M.G.L. c. 131, § 40. (a) Work on land to be used primarily and directly in the raising of animals, including but not limited to dairy cattle, beef cattle, poultry, sheep, swine, horses, ponies, mules, goats, bees and fur - bearing animals or on land to be used in a related manner which is incidental thereto and represents a customary and necessary use in raising such animals; and work on land to be used primarily and directly in the raising of fruits, vegetables, berries, nuts and other foods for human consumption, feed for animals, tobacco, flowers, sod, trees, nursery or greenhouse products, and ornamental plants and shrubs; or on land to be used in a related manner which is incidental thereto and represents a customary and necessary use in raising such products, provided they are carried out in accordance with the following general conditions and any additional conditions deemed necessary by the issuing authority: 1. there shall occur no change in the existing topography or the existing soil and surface water levels of the area; EL �0 - �3 3 October 2014 178 310 CMR; DEPARTMENT OF ENVIRONMENTAL PROTECTION 2. all fertilizers, pesticides, herbicides and other such materials shall be used in accordance with all applicable state and federal laws and regulations governing their use; and 3. all activities shall be undertaken in such a manner as to prevent erosion and siltation of adjacent water bodies and wetlands as specified by the U.S.D.A. Soil Conservation Service, Guidelines for Soil and Water Conservation. A plan prepared by the U.S.D.A. Soil Conservation Service through a county conservation district for the improvement of land for agriculture shall be deemed adequate to prevent erosion and siltation. October 2014 179 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION 10.53: continued (b) Work on land to be used primarily and directly in the raising of cranberries or on land to be used in a related manner which is incidental thereto and represents a customary and necessary use in raising such products, provided it is carried out in accordance with the following general conditions and any additional conditions deemed necessary by the issuing authority: 1. all fertilizers, pesticides, herbicides and other such materials shall be used in accordance with all applicable state and federal laws and regulations governing their use; and 2. all activities shall be undertaken in such a manner as to prevent erosion and siltation of adjacent water bodies and wetlands as specified by the U.S.D.A. Soil Conservation Service, Guidelines for Soil and Water Conservation. (c) Work on land to be used primarily and directly in the raising of forest products under a planned program to improve the quantity and quality of a continuous crop or on land to be used in a related manner which is incidental thereto and represents a customary and necessary use in raising such products, provided it is carried out in accordance with the following general conditions and any additional conditions deemed necessary by the issuing authority: 1. there shall occur no change in the existing topography or the existing soil and surface water levels of the area except for temporary access roads; 2. the removal of trees shall occur only during those periods when the ground is sufficiently frozen, dry or otherwise stable to support the equipment used; and 3. all activities shall be undertaken in such a manner as to prevent erosion and siltation of adjacent water bodies and wetlands as specified by the U.S.D.A. Soil Conservation Service, Guidelines for Soil and Water Conservation. 4. the placement of slash, branches and limbs resulting from the cutting and removal operations shall not occur within 25 feet of the bank of a water body. (d) The construction, reconstruction, operation and maintenance of underground and overhead public utilities, such as electrical distribution or transmission lines, or communication, sewer, water and natural gas lines, may be permitted, in accordance with the following general conditions and any additional conditions deemed necessary by the issuing authority: 1. the issuing authority may require a reasonable alternative route with fewer adverse effects for a local distribution or connecting line not reviewed by the Energy Facilities Siting Council; 2. best available measures shall be used to minimize adverse effects during construction; 3. the surface vegetation and contours of the area shall be substantially restored; and 4. all sewer lines shall be constructed to minimize inflow and leakage. (e) The construction and maintenance of anew roadway or driveway of minimum legal and practical width acceptable to the planning board, where reasonable alternative means of access from a public way to an upland area of the same owner is unavailable. Such roadway or driveway shall be constructed in a manner which does not restrict the flow of water. Reasonable alternative means of access may include any previously or currently available alternatives such as realignment or reconfiguration of the project to conform to 310 CMR 10.54 through 10.58 or to otherwise minimize adverse impacts on resource areas. The issuing authority may require the applicant to utilize access over an adjacent parcel of land currently or formerly owned by the applicant, or in which the applicant has, or can obtain, an ownership interest. The applicant shall design the roadway or driveway according to the minimum length and width acceptable to the Planning Board, and shall present reasonable alternative means of access to the Board. The applicant shall provide replication of October 2014 180 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION bordering vegetated wetlands and compensatory flood storage to the extent practicable. In the Certificate of Compliance, the issuing authority may continue a condition imposed in the Order of Conditions to prohibit further activities under 310 CMR 10.53(3)(e). (f) Maintenance and improvement of existing public roadways, but limited to widening less than a single lane, adding shoulders, correcting substandard intersections, and improving inadequate drainage systems. (g) The excavation of wildlife impoundments, farm ponds and ponds for fire protection. The above uses are allowed provided that no fill or other material is placed upon the wetland except as may be necessary to construct said impoundments or ponds, to provide access thereto, and to provide bank stabilization. October 2014 181 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION 10.53: continued (h) The maintenance of beaches and boat launching ramps which existed on the effective date of 310 CMR 10.51 through 10.60 (April 1, 1983). (i) The maintenance, repair and improvement (but not substantial enlargement except when necessary to meet the Massachusetts Stream Crossing Standards) of structures, including dams and reservoirs and appurtenant works to such dams and reservoirs, buildings, piers, towers, headwalls, bridges, and culverts which existed on the effective date of 310 CMR 10.51 through 10.60 (April 1, 1983). When water levels are drawn down for the maintenance, repair, or improvement of dams or reservoirs or appurtenant works to such dams or reservoirs under 310 CMR 10.53(3)(i), water levels that existed immediately prior to such projects being undertaken shall be restored upon completion of the work, and a new Notice of Intent need not be filed for such restoration. Ifthe Department of Conservation and Recreation Office of Dam Safety determines that it would not be safe to restore the water level existing prior to the project being undertaken, the applicant shall submit a new Notice of Intent within ninety days of the date of the determination describing the measures necessary with a schedule for repairing or replacing the dam and returning water levels to the previous condition, or removing the dam and restoring the riparian habitat. --� 0) The construction and maintenance of catwalks, footbridges, wharves, docks, piers, boathouses, boat shelters, duck blinds, skeet and trap shooting decks and observation decks; provided, however, that such structures are constructed on pilings or posts so as to permit the reasonably unobstructed flowage of water and adequate light to maintain vegetation. (k) The routine maintenance and repair of road drainage structures including culverts and catch basins, drainage easements, ditches, watercourses and artificial water conveyances to insure flow capacities which existed on the effective date of 310 CMR 10.51 through 10.60 (April 1, 1983). (1) The construction, reconstruction, operation or maintenance of water dependent uses; provided, however that: 1. any portion of such work which alters a bordering vegetated wetland shall remain subject to the provisions of 310 CMR 10.55, 2. such work in any other resource area(s) found to be significant to flood control or prevention of storm damage shall meet the performance standards for that interest(s), and 3. adverse impacts from such work in any other resource area(s) shall be minimized regarding the other statutory interests for which that resource area(s) is found to be significant. (m) Lake drawdown projects (except those related to the breaching of a dam or a reservoir or an appurtenant work to such dam or reservoir) undertaken in response to written Orders or Recommendation Letters issued by the Department of Conservation and Recreation Office of Dam Safety (DCR). The issuing authority shall, in the Order of Conditions, limit the duration of the drawdown based on information contained in the written finding or superseding finding by DCR pursuant to M.G.L. c. 253, §§ 44 through 50, concerning the time required to repair the dam and the economic practicability of repairing the dam. In no event shall the drawdown continue longer than three years without a new or extended Order of Conditions being obtained permitting the drawdown. Water levels that existed immediately prior to such drawdowns shall be restored no later than the expiration date of the Order of Conditions or any new or extended Order of Conditions, and a new Notice of Intent need not be filed for such restoration. (n) Airport vegetation removal projects; provided, however, that: 1. such projects must be undertaken in order to comply with Federal Aviation Administration (FAA) Regulation Part 77 (14 CFR Part 77), FAA Advisory Circular 150 /5300 -13 (Navigational Aids and Approach Light Systems), and FAA Order 6480.4 October 2014 182 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION (Air Traffic Control Tower Siting Criteria), all as amended, or to comply with the airport approach regulations set forth in M.G.L. c. 90, §§ 40A through 40I; 2. such projects must be undertaken at airports that are managed by the Massachusetts Port Authority (Massport) or that are subject to certification by the Massachusetts Aeronautics Commission (MAC); 3. the requirement outlined in 310 CMR 10.53(3)(n)1. must be certified in writing by the FAA or by the MAC; 4. such projects shall not include the construction of new airport facilities or the expansion or relocation of existing airport uses; 5. Notices of Intent filed for such projects shall: a. delineate the vegetation requiring removal; October 2014 193