HomeMy Public PortalAboutConservation Commission -- 2011-10-04 Minutes Brewster Conservation Commission Minutes—Meeting Under Massachusetts General Law 131,
§40,Wetlands Protection Act(ACT), 310 CMR Regulations
Massachusetts Department of Environmental Protection(DEP)
(M.G.L. C.131. § 40)
And
Code of the Town of Brewster Chapter 172,
Brewster Wetlands Protection By-law(BWP By-law)
Call to Order
Chairman Stephen McKenna convened the Tuesday, October 4, 2011 meeting of the Brewster
Conservation Commission at 7:00 PM at the Brewster Town Offices, 2198 Main Street, Brewster,
MA.
Present
Chairman Stephen McKenna, Commissioners Bruce Evans, Ken Rollins, Amy Usowski, Hayley
Winfield, Conservation Administrator James Gallagher, Natural Resources Director Chris Miller
Not Present
Vice Chairman Donald Schall, Commissioner Jeanne Boehm, Department Assistant Carol Spade
Chaimian McKenna read into the record the following:
"As required by the Massachusetts Open Meeting Law,the Conservation Commission is
informing the public that this meeting will be audio recorded. Anyone else intending to
audio record is required to inform the Chairman prior to the meeting."
Mr. McKenna and the other Commissioners welcomed newly appointed member Hayley Winfield
to the Conservation Commission.
Public Hearings
Notices of Intent
The following applicants filed Notices of Intent:
(Continued Hearing)Town of Brewster proposes to rehabilitate A. P. Newcomb Road, replace a
culvert and install a water main;on A. P. Newcomb Road,Assessors'Map 22, Parcel, NA.
Eligible Members:Boehm,Evans,Rollins,Usowski
The proponent requested a hearing continuance to the meeting of October 18. Amy Usowski
moved, Ken Rollins seconded the motion to continue the hearing to October 18, 2011. Motion
Approved Unanimously
(Continued Hearing)Town of Brewster(Town Administrator Charles Sumner) proposes to restore
tidal flushing to Freeman's Pond, associated salt marsh and other wetlands, by replacing an
existing failing culvert with a larger culvert,sized to increase the tidal flow to Freeman's Pond and
the Freeman's Pond Channel,on Paine's Creek Road at Paine's Creek Beach,Assessors' Map
1, Parcel 6.
Eligible Members:All. Hearing was opened on 9/20/11 and continued with no testimony.
Applicant Testimony
Representatives: Martha Reinhardt, Salt Marsh Restoration Project manager, Cape Cod
Conservation District, Jeff Oakes, PE, Senior Project Manager, CLE Engineering and Jeremy
Bell, Restoration Specialist, MA Fish and Game, Division of Ecological Restoration, Association
for the Preservation of Cape Cod (APCC) and National Oceanic and Atmospheric Association
(NOAA)
Martha Reinhardt introduced the project, which, she explained, is part of Cape Cod Water
Resources Restoration project, funded by the USDA Natural Resources Conservation Service.
Ms. Reinhardt explained the goal of the proponents in this project is to improve water quality to
Freeman's Pond and the associated stream into Paine's Creek.
Brewster Conservation Commission Minutes. October 4, 2011 1
Referencing the Notice of Intent plan*and narrative*, Mr. Oakes stated that the resource areas
affected by this project are coastal dune, salt marsh, coastal beach. (land under a waterbody) and
riverfront. At this time, Freeman's Pond is listed in the Association for the Preservation of Cape
Cod Atlas as a restricted salt marsh. The applicant proposes to replace the existing failed twenty-
four inch circumference culvert which runs beneath Paine's Creek Road at Paine's Creek Town
Landing, with a pre-cast concrete pile foundation supported culvert. The size of the culvert, with
an inner dimension of ten feet wide by six feet high (50 feet in length), was so designed to
address the human safety factor to allow water to flow through the culvert at a low velocity. This
large scale was prompted by a recent death of an adult elsewhere in the state, who was forced
through a smaller (four-foot by six-foot) culvert. The culvert will raise the daily tides one-half foot
higher and the associated marsh and buffer zone will be more frequently inundated than with the
present culvert. It is designed to increase Dissolved Oxygen, improve salinity and reduce
temperatures in the water, and improve and increase the native saltwater vegetation and wildlife
habitat. Boulders now existing on the beach will be realigned to armor the culvert. The project
proponents expect no flooding onto adjacent properties.
Mr. Oakes described in detail the construction methods and sequence for the existing culvert
removal and replacement. He explained because the substrate under the waterbody is composed
of sand and peat, they will install a cofferdam (temporary enclosure within a water body to create
a dry work environment) into the substrate, and the area inside will be excavated. As shown on
page 3 of the plan of record, permanent impacts will include loss of salt marsh which will be
converted to the stream bed channel bottom, and loss of coastal beach, which will receive
boulder armoring. Also, peat and course sands and 4 to 6" cobble will be applied to the stream
bed, which after time will settle out, resulting in fine sand. Replication for impaction of the
resource areas is proposed; one foot of mitigation for each foot of alteration.
Mr. Oakes added that the second component of the proposed project is herbicide removal of the
invasive plant, Phragmites australis, to allow native saltwater Spartina patens and Spartina
Alternaflora (salt reed grass) now threatened by the invasive Phragmites. Phragmites grows in
brackish, (less saline) areas, crowding the productive native marine vegetation. They propose to
undertake the herbicide treatment annually, in the fall of the year.
Jeremy Bell explained the benefits of the herbicide treatment on natural marine vegetation. He
stressed that Phragmites is an indicator of an impaired system; it grows profusely in the subject
area at present, reducing the wildlife habitat value of native saltwater species. Additionally,
threatened native species should increase as the result of the annual herbicide application. The
proponents will be working with the MA Natural Heritage Program to ensure the native vegetation
is not compromised. The Program is requiring a habitat management plan.
He explained dense"monoculture" stands of Phragmites will be treated with a low volume gas
powered mist of herbicide on a low-wind day. In areas where native plants mix with Phragmites, a
"wipe" application method is used. He stressed that the MA Division of Ecological Restoration
works in concert with MA Natural Heritage and Endangered Species Program in these
endeavors.
Staff Comments/Questions
Conservation Administrator Gallagher stated the project must comply with the conditions
contained in three letters*from the MA Division of Fisheries and Wildlife and the Division of
Marine Fisheries. These agencies require time-of-year restrictions (TOY) for herbicide application
in Freeman's Pond (work shall not occur from March 15 to June 30 for protection of wildlife and
wildlife habitat). A habitat management plan*for removal and sequencing of the existing
cofferdam is n place to eliminate TOY restrictions on work for protection of anadromous fish.
Public Comment Summary
Mr. Dion Dugan and his engineer, Robert Perry, Cape Cod Engineering, Inc., attended, relative to
the following:
Brewster Conservation Commission Minutes. October 4, 2011 2
Mr. Perry believed the extremely large culvert should be greatly reduced in size. He stated the
project may promote flooding onto adjacent properties, influence groundwater contamination
during or after storms, increase the wetland status of areas, including the riverfront, adversely
impact the barrier beach, scour the channel and adversely affect wildlife habitat. He believed
more scientific data is needed on the extent of flooding this project may cause. Also, the hydraulic
analysis of the application states that dredging may be needed.
Mr. Dugan submitted photos*of resource areas and buffer zones along Route 6A in the towns of
Dennis and West Brewster, showing what he believed were adverse impacts to vegetation
resulting from recent culvert replacements and herbicide treatments such as the project before
the Commission. Displaying a septic system plan*for property south of Freeman's Pond where
groundwater is currently very high, Mr. Dugan stated he anticipated septic waste may intermingle
with even higher groundwater resulting from this project. He believed the proponent should
address the project as to its effects on private wells, septic systems and drainage on abutting
properties, particularly during storms. He further referenced a small drainage pipe running north
from Freeman's Pond, beneath Lower Road, which may also be adversely affected. His opinion
was the existing small culvert does not harm the ecology or aesthetics of this scenic environment
as does the very large proposed culvert, and the Conservation Commission should not approve it.
Commission Comment Summary
Individual Commissioner comments were as follows:
• The abutter's concerns over increased flooding onto private properties may warrant more
data on flood elevations.
• Vegetation dieback during transition from freshwater to coastal resource areas is a
concern; it is important to preserve dead trees, etc. as wildlife habitat.
• Herbicides must be applied by a professional to safely eradicate Phragmites
• It may be necessary that the town hire a professional independent engineer and
professional wetland consultant to review the project.
Following discussion, Ken Rollins moved, Bruce Evans seconded the motion to continue the
hearing to October 18, 2011, to allow time for Mr. Dugan and Mr. Perry to meet with the project
proponents. In the interim, Mr. Gallagher will confer with the Brewster Health Department on the
private well and septic system issues on abutting properties. The Commission will determine the
need to hire an independent professional engineer and wetland consultant at the October 18
hearing.
Motion Approved Unanimously.
List of documents*submitted for the project and discussed at this hearing
1. Notice of Intent for Charles Sumner,Town of Brewster
• Revised sheet#4
• Narrative
• Expanded Environmental Notification Form and Waiver Request CLE Engineering
2. "Site Plan,Freeman's Pond Culvert Replacement,8/19/11"
3. September 28,2011 Letter to Charles Sumner...from Thomas W.French,Assistant Director,Natural
Heritage&Division of Fisheries and Wildlife
4. September 28,2011 Letter to...Commission from Eileen M.Feeney,Fisheries Habitat Specialist,
Division of Marine Fisheries
5. October 6,2011 Letter to... EOEA, ...from Paul J.Diodati,Director,...Division of Marine Fisheries on
Expanded Environmental Notification Form(EENF)
6. Coastal Engineering C.Jr.Joseph Potts Site Plan Showing Existing Sewage Disposal System.
(Continued Hearing from September 20, 2011)Ted Johnson proposes to prune, manage
vegetation and expand an existing deck. Work is proposed within 50 and 100 feet of a bordering
vegetated wetland on 87 North Pond Drive,Assessors'Map 27, Parcel 84-1.
Eligible Members. Boehm, Evans, McKenna, Rollins, Usowski
Representatives; Ted Johnson, Brian Johnson
Applicant Testimony
Brewster Conservation Commission Minutes. October 4, 2011 3
Mr. Johnson presented the revised plan*, saying as the result of the hearing of September 20, the
only trees he now proposes to remove are three adjacent to the path. He proposes to trim only
the lower branches of the remaining trees formerly proposed for removal. He described the
shrubs proposed as mitigation. A fence straddling the abutters' property line is to be removed.
Also, he will decrease the width of the path to the pond to five feet.
Mr. Rollins believed bayberry may be preferable mitigation to the proposed bearberry.
Staff Comments
Mr. Gallagher reviewed the draft special conditions under the BWP By-law with the applicant and
the Commission.
Public Comment
There was no public comment.
Conservation Commission Vote
Commission discussion summary resulted in a motion (Amy Usowski moved, Ken Rollins
seconded) to continue the hearing to October 18, 2011, to await a response from the MA Natural
Heritage and Endangered Species Program, as the project is located on its map as Priority
Habitat and Estimated Habitat under the MA Endangered Species Act(MESA), and MA Wetlands
Protection Act(WPA) regarding the existence of rare plant and wildlife habitat and rare wetlands
wildlife. Approved. Hayley Winfield abstained.
List of documents*submitted for the project and discussed at this hearing
1. Notice of Intent for Ted Johnson
2. "Mr.Ted Johnson Site Plan...J.M.O'Reilly... revised 10/6/11"
Francis Laurin proposes to upgrade an existing septic system to meet Title V of the State
Sanitary Code,with no dwelling expansion in use, and to construct an outdoor shower, alter the
existing water service line and relocate an overhead electric service. Some of the work falls
within the 100 foot buffer zone to a coastal dune, on 27 Captain Dunbar Road,Assessors'Map 7,
Parcel 21.
Applicant Testimony
David Bennett, LPG, RS attended. He stated the Board of Health will not act on a request for a
septic system permit until the Conservation Commission votes to issue a wetland permit for the
proposed activities.
Mr. Bennett stated for the record that with respect to legal issues* between the subject property
owner and a direct abutter(correspondences listed below), the septic system was placed on the
plot plan*to be as far as possible from the resource areas.
Staff Comments/Questions
Mr. Gallagher explained that upgrading a failed septic system to an existing dwelling is a resource
area improvement. This proposal is at maximum feasible compliance. It is not necessary for this
proposal that the Site Plan*dune delineation be specifically confirmed as accurate by the
Conservation Commission. He recommended the Conservation Commission not confirm the
accuracy of the resource areas as shown on the Site Plan. Additionally, he recommended the
existing inkberry shrub in the buffer zone be saved if possible.
Public Comment
There was no public comment.
Conservation Commission Questions and Comments:
Following review of the proposal, Amy Usowski moved, Bruce Evans seconded the motion to
continue the hearing to October 18, 2011, to allow Commission staff to draft special conditions for
this Order of Conditions, which received a DEP filing review number at the end of this business
day. Approved. Hayley Winfield abstained.
Brewster Conservation Commission Minutes. October 4, 2011 4
List of documents*submitted for the project and discussed at this hearing
1. Notice of Intent for Francis Lauren
2. "Sewage Disposal System Plan,Francis Lauren...9/12/11
3. September 28,2011 letter from Duane P.Landreth for Daniel Leffell..to Stephen McKenna,
4. September 28,2011 memo to Duane Landreth...from David Bennett...,
Donald Wright proposes to remove 16 pine trees,construct walkways, a stairway, re-grade an
existing driveway, add subsurface drainage area(s), and landscape within 50 feet of inland
wetlands,on 14 Captain Fitts Road,Assessors'Map 27, Parcel 203.
Applicant Testimony
Tom Murzyn, Thomas W. Murzyn Landscape Design and Construction, Donald and Ruth Wright
attended.
Mr. Murzyn introduced the project, explaining the impetus for the proposal was the owners' desire
to remove beetle infested pine trees and for more sunlight in their very heavily wooded lot,
preferring planting beds to lawn.
Commission Comment Summary
The Commission requested the proponent revised the landscape plan*to show the following:
• Reduction in pine tree removal (removing 16 trees is excessive).
• The existing tree canopy maintained within 90% of that which now exists, per 310 CMR
10.04 Definitions, Vista Pruning, MA Wetlands Protection Regulations.
• Plant mitigation only in the 50 foot buffer zone. (The owners are proposing alteration in
the 50 foot buffer zone; i.e., structures, and a garden, which can be a high source of
nutrients; a garden should be outside the 100 or 50 foot buffer zone.)
• Planting list to include approved trees*as well as shrubs*; e.g., in the area of proposed
low growing cranberry, tupelo, etc., to provide diverse wildlife habitat.
• Untreated wood, ACQ treated wood or wood substitute for the existing concrete block
(stairs) and the proposed treated landscaping material.
Staff Comments/Questions
Mr. Gallagher reminded the Commission that the owners filed Administrative Review applications,
one which included removal of the 16 pine trees. The Commission required they file a Notice of
Intent for the pine removal, and include the long existing cement block stairway on the submitted
plan.
Public Comment.
The Commission acknowledged a letter from abutter Nancy Goldberg Seigal urging the
Commission to uphold all wetland laws in its decision on this project.
Ken Rollins moved, Bruce Evans seconded the motion to continue the hearing to October 18, to
allow the proponent to revise the site landscape plan*to reflect the above listed Conservation
Commission concerns, to await response from the MA Natural Heritage and division of Fisheries
and Wildlife on rare...wildlife habitat, and a DEP File Number confirming the filing is complete.
Continuance to October 18, 2001 Approved Unanimously.
List of documents*submitted for the project and discussed at this hearing
1. Notice of Intent for Donald Wright
2. "Landscape Plan...for Donald and Ruth Wright Prepared by ...Murzyn Landscape Design...August
2011"
3. Conservation Commission Approved Planting List:Cape Cod Cooperative Extension Service
(www.capecodextension.org),list of native woody plants for coastal/inland wetland buffer zones
depicting the species.size and natural spacing of plants
Citizens' Forum
There was no one present wishing to speak at this time.
Brewster Conservation Commission Minutes. October 4, 2011 5
Request for Administrative Review
1. Robert Spenlinhauer,tree and vine removal and path maintenance within 50 feet of
inland wetlands,0 Landing Drive, 48/19
The Conservation Administrator suggested the Commission allow the proponent to
remove some vines and some dead limbs from trees within 50 feet of wetlands under the
Administrative Review, contingent on his supervision over all cutting. He did not
recommend tree removal under this mechanism.
Following review and discussion, Bruce Evans moved, Hayley Winfield seconded the
motion to ratify the Administrative Review approval as described by the Conservation
Administrator. Motion Approved Unanimously.
Review and Approval of Minutes September 7, 2011
Postponed.
Discussions/Report of the Conservation Administrator-
1. Memo: Notice of Project Change,Water Department Well;West Gate Road, Punkhom
Parklands, 50/9
A Notice of Intent will be filed for the above captioned project.
2. MACC Fall Meeting, October 15, 2011
The Conservation Administrator reminder the Commission of the above referenced
meeting. The discussion will focus on land protection purchases and open space.
3. Discussion with Paul Roberts, Property on 41 Captain Dunbar Road,Assessors'Map 7,
Parcel 14
This discussion was postponed, as the property owner did not attend.
Any Topics not reasonably anticipated by the Conservation Commission Chairman
1. Waquoit Bay Survey Waquoit Bay National Estuary Resource Reserve Looking for email
addresses for Commission participation in a survey.
The Commissioners were amenable to supplying their private email addresses for this
purpose.
Executive Session
At 10:30 PM,Amy Usowski moved,Bruce Evans seconded the motion to adjourn the
regular meeting and convene in executive session"to meet... as defined in section 23C
of chapter 233,with respect to any litigation or decision on any public business within its
jurisdiction involving another party,group or entity...and not to return,to but to adjourn
regular session.Bruce Evans,"Aye", Ken Rollins,"Aye",Amy Usowski,"Aye", Hayley
Winfield,"Aye",Stephen McKenna,"Aye".
Re: Paul Roberts, Property on 41 Captain Dunbar Road,Assessors'Map 7, Parcel 14
The meeting adjourned at 10:30 PM.
Carol Spade
Among the list of documents*for this meeting is the following:
Administrative Report of the Conservation Administrator dated October 4,2011.
Conservation Commission Approved Planting List:Cape Cod Cooperative Extension Service
fwww.capecodextension.org),list of native woody plants for coastal/inland wetland buffer zones depicting the
species,size and natural spacing of plants
Brewster Conservation Commission Minutes. October 4, 2011 6