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HomeMy Public PortalAboutConservation Commission -- 2024-02-29 MinutesApproved 04/23/2024 7-0-0 '\111t1111U1111!IIIU/i/i/� +. oS�Pew$r ui O Town of Brewster Conservation Commission 1657 Main St., Brewster, MA 02631 (508) 896-4546 AD CONSERVATION COMMISSION r;�°1:='_"° �" R= Cl r=' MINUTES CONSERVATION Coastal Stabilization Workshop Meeting COMMISSION 2198 Main Street Michael Tobin February 29, 2024 at 6:00 PM Chair Commissioners Present: Chair Michael Tobin (MT), Bruce Evans (BE), Kimberly Crocker Pearson (KCP), Casey Chatelain Ron Slowek (RS), Vice -Chair Casey Chatelain (CC), Gary Kaser (GK), Steve McKenna (SM) Vice Chair Commissioners Absent: None Staff Present: Bill Grafton (BG), Cassandra West (CW), Chris Miller (CM) Bruce Evans This meeting will be conducted in person at the time and location identified above. This means that at least a quorum Gary Kaser of the members of the public body will attend the meeting in person and members of the public are welcome to attend Kimberley Crocker in person as well. This meeting will not be livestreamed or recorded: remote attendance is not available for this Pearson meeting. Members of the public with particular interest in any specific item on this agenda, which includes an Ron Slowek applicant and its representatives, should snake plans for in-person attendance accordingly. Steve McKenna Please note that the Conservation Commission may take official action, including votes, on any item on this agenda. STAFF Chris Miller, 1. Call to Order 6:03 PM Natural Resources 2. Declaration of a Quorum Director 3. Meeting Participation Statement 4. Public Announcements and Comment: Members of the public may address the Conservation Bill Grafton, Commission on matters not on the meeting's agenda for a maximum of 3-5 minutes at the Chair's Conservation Administrator discretion. The Conservation Commission will not reply to statements made or answer questions raised during public comment but may add items presented to a future agenda. Cassandra West, Senior Department 5. Workshop on Coastal Stabilization Procedures, Policy and Requirements Assistant Sa. Discussion on Findings of the Tri -Town Study and Existing Brewster Conservation Commission Regulations, Order of Conditions and Special Conditions. Bill Grafton (BG) informs the Commission of Rules of Conduct: Town Counsel advised no discussion of any specific project; the Commission should focus on general themes, not specifics. The Commission may want to establish any follow up Coastal Stabilization Meetings and establish timelines. Ron Slowek (RS) Arrives at 6:05 PM. BG describes Coastal Stabilization Regional Dynamics and Brewster Dynamics. BG sent advances to the Commission. The goal is to bring the Three -Town study consisting of Dennis, Brewster packets and Orleans) into conformance with the Four -Town study consisting of Wellfleet, Truro, Eastham and Provineetown, with the final goal being Select Board buy -in to adopt the Tri -Town Intermunicipal Coastal Stabilization Study findings. The Commission discusses groins on the Brewster shoreline. Brewster has the most groins in the Tri - Town area, which scour the area and alter the distribution of sediment, existing before the Wetlands Protection Act. 1 of 6 February 29, 2024 Brewster Conservation Commission Coastal Stablization Workshop Meeting Mike Tobin (MT) asks if there has ever been discussion on removing groins? Steve Mckenna (SM) has never seen one removed, Chris Miller (CM) informs that research has been done and ownership is murky, as a joint partnership between the Town, private property owners and the Army Corps of Engineers. Kim Pearson (KP) asks about removal of groins elsewhere in the world, and the impact on the shoreline? SM responds that groin removal has not been undertaken at scale. All present discuss the impact of groins on shorelines. BG discusses Permitting and Plan requirements and elaborates on the Notice of Intent (NOI)/WPA Form 3, including commenting agency requirements such as Natural Heritage and Endangered Species Program (NHESP), and the Coastal Wetland Restriction Order. The NOI form has progressively changed over time. BG identifies that he Special Conditions has a modifying impact on approved plans. BG and CM discussed the Coastal Wetland Restriction Order, which is part of the NOI and should become a standard. BG notes that Areas of Critical Environmental Concern (ACEC) has certain standards, which trigger additional requirements. BG notes that Brewster's shoreline is located in The Coastal barrier Resource System as well. Permitting objectives include fixes to the NOI submittal package followed by ratification. BG suggests adjustments to the forms themselves to streamline the process and eliminate excess Special Conditions. BG has talked to Town Counsel about malting changes to the State permit forms, who sees no issues. BG describes how to accomplish these changes, which he believes will increase the presence of the Town By -Law. BG describes Special Conditions, which include several requirements, usually drawn out of the 310 CMR 10.05 Section of the regulations, which needs no alteration. BG describes the difference between General Conditions and Special Conditions. Themes of the Brewster Special Conditions have been influenced by a dozen different Conservation Administrators in the past decades since inception, calling out performance standards in the State and Town jurisdictions. Town Counsels advice is not to be selective in any form, and to use the form itself wherever possible without creating a separate Special Condition addendum. In the case of Coastal Stabilization, valid permits date as far back as 2010, Over time, the evolution of Special Conditions has become more elaborate and absolute. BG advises that the degree of interpretation is limited and that some level of flexible interpretation is needed. BG describes one of the deliverables of the Tri -Town Study: a draft Standard Conditions for Coastal Stabilization. BG describes one Special Condition which requires a sieve analysis from the pit and the resource area and Munsel color, which most property owners and contractors don't struggle to obtain. BG lists the draft Special Project Conditions, which are project and activity specific. BG proposes putting as many of these conditions as possible on the plans with unique Special Conditions within the Order of Conditions to modify the pians as appropriate. KP confirms that this discussion is separate from the Stormwater Regulations. BG and KCP discuss how coastal work could impact Stormwater Regulations. Bruce Evans (BE) clarifies that the Three -Towns are trying to standardize the draft conditions, guidance documents, and methodologies and rationales. The two documents approved through the Three -Town Study have already been approved through the Four -Town Study in Eastham, Wellfleet, Provincetown and Truro. This gives an opportunity to regionally standardize conditions. CM clarifies that all seven Towns will likely not have identical Special Conditions. Gary Kaser (GK) notes that Brewster is running out of sand source and is not allowing mining permits to dig more sand. BG notes off -Cape sites in Plymouth and Hanover; as well as off -shore sand mining, and the secondary consequences added coastal complexity to projects. CM advises that the Commission needs to focus on the performance standards and advises that the Commission should not factor cost to mitigation requirements. KP asks about hydrocarbon contamination when taking sand from a harbor? SM answers that any dredge project goes through sediment sampling. SM agrees with GK that we're going to run out of sand for nourishment. In light of this, nourishment over the next decade is more important. SM and GK discusses the circumstances of diminishing upland resources. 2of6 Brewster Conservation Commission Coastal Stablization Workshop Meeting - February 29, 2024 BG suggests that the Commission discuss offsite nourishment as mitigation, specifically regarding Town Landings and other destinations. MT and SM agree that future conditioning of offsite mitigation, and having Applicants use private contractors versus DPW workers. All present discuss and agree that Applicants performing nourishment requirements on Town Landings should still hire contractors, and not make use of Town -funded workers. Ron Slowek (RS) asks and answers why nourishment is required? Answer: man-made structures, which interrupt the natural flow of the system. RS expresses that cost of nourishment is not the concern. Applicants who haven't nourished have shorted their downdrift neighbors and the rest of the system. Considering this, RS has very little sympathy as to the cost. SM reminds the Commission that nourishment is not required under the WPA regulations, even though the studies done since the implementation of the regulations shows that nourishment is likely the best way to mitigate. SM thinks that requiring sand nourishment is the right decision. MT and BG discuss permits with a Certificate of Compliance versus expired permits and the potential OnGoing requirement or option for beach nourishment in each instance. KP addresses public communication. The Commission must do better at educating Applicants that they are nourishing a system, not their own beach. BG notes that the trigger point Special Condition is in several existing permits which creates challenges to administer and enforce. CM comments on cost: Homeowners have bought expensive properties on the beach, but do not consider the cost of maintaining the system. Homeowners have the option of removing their coastal structure, which would eliminate the beach nourishment requirement. CM discusses homeowners made an investment, and if it is more expensive than initially expected, it is not the Town's responsibility to offset that cost. The Commission discusses the variable and changing nature of erosion. GK notes the lighthouse in Chatham, the collapse of which he observed. CM notes that the Town has undertaken efforts to discuss with the public about the risks, climate change, etc and cites the disappearance of Billingsgate over time. BG suggests to the Commission that what is needed is interpretive language so that Conservation Administrators have appropriate avenues for productive guidance. BG distributes the Notice of Intent (NOI) IATA Form 3 and Instructions for the Commissioners review. Casey Chatelain (CC) asks where the Commission stands on offsite mitigation at Town Landings. SM is supportive of offsite mitigation when nourishing on the property is unrealistic and clarifies that the first goal is for applicants to nourish their own property. BG review specific metrics with the Commission. In general, the Commission makes clear and convincing determinations stemming from the most fundamental documents and forms to complex scientific and legal presentations and historical analysis of permitting history and testimony on properties. BG reminds the Commission that there will be a second meeting on this topic, and that this meeting is not intended for the Commission to make detenninations. Ron Slowek expresses is that he is not ready to make any final decisions tonight. All present discuss the Three -Town Study and Four -Town Study, and the long term adoption of the resultant Standard Special Conditions. BG discusses the consequences of absolutes in Special Conditions, and their impact in the field without reasonable interpretative language, all changes need to return to the Commission for review, determination and ratification. All present discuss educating the public regarding what happens when there isn't enough sand on the beaches. 3 of 6 Brewster Conservation Commission Coastal Stablization Workshop Meeting— February 29, 2024 General Discussion: KP discusses mitigation in terms of grass and describes conditioning only American beach grass as mitigation, builds a monoculture. KP cites American Beach Grass Fungus as a concern, and suggests working with landscaping companies to implement more ecological variety in mitigation plantings. CM and BG discuss the value of root systems and standardization of mitigation plantings. For longevity, complexity and variability are preferred to monoculture. KP notes that the Natural Resources Advisory Commission will update the Coastal Management Plan with a Public Forum, hopefully in the Fall. She describes the intended public education campaign. Bruce Evans departs the meeting at 7:00 PM. CM notes that the Commission has, in the past, brought in outside consultants. All present discuss. KP discusses having coastal geologists as consultants. BG discusses bonds, which have been required in Special Conditions, but are difficult to use because they have not been subject to an escrow agreement. BG spoke with Town Counsel, who advised that bonds need an escrow agreement, and the Commission should think about the fate of the bond requirement. The typical size of a bond is $2,000.00. Going forward, how do we get the escrow agreement after the Order is approved and issued. BG notes that the pathway is not apparent. CM suggests the Commission discuss whether they want to require a bond, what the bond is for, how to use it, and what to do when it's been used. BG notes that, in some cases, there is no bond and the work isn't being done. All present discuss Requests for Amended Order of Conditions, per Town Counsel, the Commission has the discretion to allow the Amendments of Orders of Conditions based on MassDEP Policy 85-4 criteria which are 1) whether the purpose of the project has changed; 2) whether the scope of the project has increased; 3) whether it meets relevant performance standards; and 4) whether the potential for adverse impacts to protected statutory interests will be increased. BG notes that all Order of Conditions, Amended Order of Conditions an Extended Order of Conditions need to be recorded. CM discusses Ongoing Conditions, which are necessary to cite in the Original Order or the Amended Order. CM If the Commission goes in the direction of permitting ongoing conditions for things like repairing a stairway, they will want to ensure that the engineered plans are very specific, to avoid project creep over time. BG reads into the record from a memo from Town Counsel: "In my opinion, in order for an ongoing condition to survive issuance of a COC, it must be described as a perpetual condition in the underlying OOC and must be specifically cited as an ongoing condition in the COC." BG suggests that per Town Counsel's advice Special Conditions, such as beach nourishment and Ongoing Special Conditions, can be Amended into an existing OOC and then permitted as Ongoing Conditions within a Certificate of Compliance if they meet the MassDEP Policy 85-4 test and are ratified by the Commission. 5b. Annual Monitoring Requirements for Beach Renourishment. BG discusses Annual Monitoring Reports versus self -verification reporting. SM and BG discuss the components of a self - verification report: receipts, pictures with captions, permit validity. Some homeowners want to perform Annual Monitoring Reports on their own. CM notes that the requirements for who performs annual monitoring may depend on the complexity of the project; beach grass could be monitored by a homeowner, but a vista pruning is more complex. BG suggests a form which could be populated without the need of a contractor or consultant. SM is wary of monitoring for the sake of monitoring. In terms of documenting sand that's been put on the beach: A receipt of the sand purchased, and a shot of the beach after the sand has been dropped is sufficient in his view. Monitoring is important for activities like vegetative management. All present discuss what level of complexity is required for a beach nourishment Annual Monitoring Report. CC clarifies that the purpose of the Annual Monitoring Report is to confirm that the Applicant has put down the amount of sand that is required. SM suggests reviewing Eastham's program for renourishment reporting, which he believes is very effective. 4of6 Frewster Conservation Commission Coastal Stablization Workshop Meeting—February 29, 2024 KP notes some Special Conditions that ask for local erosion rates. Some conditions say you cannot come back and alter your rates for three years. BG asks the Commission what to do with Special Conditions on old permits that the Commission no longer supports, and whether and how to amend them out. SM and BG discuss amending existing permits to reflect current Commission requirements. SM advises that the Commission does not attempt to Amend existing permits, and focus on ensuring effective Conditions for permits moving forward. BG suggests that the Commission leaves room in the Special Conditions to allow for Site Specific Conditions. SM states that the CZM study will also deliver recommended filing requirements. SM notes the specific requirement for stamped plans. CM notes the eroding coast, and that property lines may change. SM and BG discuss that BG shoulq be able to decide when an application is considered complete, so that the 21 -day regulatory limit doesn't start with an incomplete application. All present discuss what would make an application incomplete. CC point of order, this is a workshop about Coastal Stabilization, and we should keep this conversation to properties related to Coastal Stabilization, and not all permits. BG and SM affirm that filing requirements include a surveyed and stamped plan, BG clarifies that he would prefer all surveyed plans be stamped by an RPE and/or PLS. KP notes that coastal properties are where the geography changes the most, which is why surveyed plans are most important here. KP notes after -the -fact sieve analysis failures. The sieve analysis is done beforehand, or else an incorrect sieve analysis was performed. SM clarifies that, from a CZM perspective, coarser material is fine. All present discuss appropriate material. BG discusses variances, which are supposed to be rare and unusual. They currently are common. CM, if they're not going to be rare and unusual, the regulations should change. BG suggests that the variance should be its own vote. BG asks the Commission about changing the Special Conditions requiring Munsell color to color comparison, should it be a discussion item or a Minor Change to Plan. SM responds that it should be Minor Change to Plan or just capture the color through a picture if a Munsel determination cannot be obtained. BG discusses some outcomes including 1) revising the Special Conditions; 2) establishing a meaningful suite of Coastal Stabilization Special Conditions; 3) coordinating a meaningful bond escrow account with Town Counsel; and 4) ratifying beach renourishment and Ongoing Conditions to be carried into Certificates of Compliance. All present discuss the option to change existing Orders of Conditions to reflect the CZM recommended Special Conditions through Amendments. The Commission does not believe that they can change large swaths of Special Conditions on existing Orders of Conditions. CM clarifies that Amendments cannot make bulk changes to an Order of Conditions. All present discuss Minor Change to Plans versus Amendments, and when they apply. Making any change to existing Special Conditions must be changed through an Amendment. All present discuss Munsell Colors determination as satisfactory if BG reviews photographs of the screened material and the resource areas. All present discuss the importance of color difference between nourishment material and beach material, citing Iron leaching. De minimis changes to old Orders of Conditions don't count against the Two Minor Change to Plan limit. BG appeals to the Commission that obsolete Special Conditions can be removed from Orders through a Minor Change to Plan, as opposed to an Amendment. CM suggests the Commission decides carpooling for the MACC Conference on March 2, 2024. All present discuss minimum plan requirements. Detailed guidance alone is not satisfactory; a critical eye is needed at all stages by all parties. Plans should be surveyed and stamped by an RPE and/or PLS, otherwise a mean high water may not 5 of 6 Brewster Conservation Commission Coastal Stablization Workshop Meeting —February 29, 2024 be accurately depicted. BG suggests that minimum criteria should be established, an impervious table on site plans is needed, and the site plan should carry as much of the proposed work and Special Conditions as possible, (eg) sieve testing and Town Access. Gary Kaser leaves at 7:48 PM. Public Hearing Requirements: Potential goals include establishing a hearing officer for all Coastal Stabilization Projects and reduce continuations for incomplete submittals. The Commission will back the Conservation Administrator's discretion but may be influenced by alternative clear and convincing evidence. The Commission supports that the hearing shouldn't open if the application is incomplete. CM thinks the Commission should provide guidance for multiple continuations, in the best interest of Abutters to Applicants. BG discusses Denial versus Continuation without Prejudice. In another Town, a limit on Continuations was approved, at which point, the Application would be denied through a Denial Without Prejudice Count 1 through Count 3. The Counts were associated with incomplete status of the project and allowed the Commission to make the denial without any moratorium before a new Notice of Intent was submitted. All present discuss parameters for a completed application. They discuss quantitative versus qualitative parameters, and that it is at the Conservation Administrator's discretion to identify applications that are qualitatively incomplete. Department Staff will revise a checklist for the Commission to ratify. BG confirms tasks to clean up the Special Conditions and update the Notice of Intent Submittal Checklist. CM asks the Commission if there's anything that they want, such as a Coastal geology expert. 5c. Set Next Meeting Date. The Commission agrees to determine the next meeting date at a later time once objectives of this meeting advance. 6. Matters Not Reasonably Anticipated by the Conservation Commission Chairman a. MACC Conference carpool. 7. Questions from the Media 8. Next Meeting: March 12, 2024 9. Adjournment RS moves to adjourn. CC Second. Approved 5-0-0. Meeting Adjourned 7:58 PM. T �;.$X,�I1u ly Submitted, Cassandra West, Senior Department Assistant 6of6 Brewster Conservation Commission Coastal Stablization Workshop Meeting - February 29, 2024