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HomeMy WebLinkAboutOrder of ConditionsMassachusetts Department of Environmental Provided by MassDEP: Protection MassDEP File #:083-2325 Bureau of Resource Protection - Wetlands eDEP Transaction #:1355610 WPA Form 5 - Order of Conditions City/Town:YARMOUTH Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 A. General Information 1. Conservation Commission YARMOUTH 2. Issuance a. r OOC b. r Amended OOC 3. Applicant Details a. First Name KARL b. Last Name VON HONE c. Organization TOWN OF YARMOUTH d. Mailing Address 424 ROUTE 28 e. City/Town YARMOUTH f. State MA g. Zip Code 02664 4. Property Owner a. First Name KARL b. Last Name VON HONE c. Organization TOWN OF YARMOUTH d. Mailing Address 424 ROUTE 28 e. City/Town YARMOUTH f. State MA g. Zip Code 02664 5. Project Location a. Street Address 125 SEAGULL RD AND MULTIPLE OTHER SITES b.City/Town YARMOUTH c. Zip Code 02664 d. Assessors 15 e. Parcel/Lot# 23 Map/Plat# f. Latitude 41.63481N g. Longitude 70.22487W 6. Property recorded at the Registry of Deed for: a. County b. Certificate c. Book d. Page BARNSTABLE 5742 175 7.Dates a. Date NOI Filed: 1/31/2022 b. Date Public Hearing Closed: 3/17/2022 c. Date Of Issuance: 3/31/2022 8.17inal Approved Plans and Other Documents a. Plan Title: b. Plan Prepared by: c. Plan Signed/Stamped by: d. Revised Final Date: e. Scale: WETLANDS NOTICE OF INTENT VOLUME 2. FIGURES 1 GEI CONSULTANTS RUSSELL J. TITMUSS PE SCALE PER 3/17/2022 PLANS THROUGH 85 PLANS AND SECTIONS WETLANDS NOTICE OF INTENT VOLUME SARAH TURNER, 3. SEDIMENT GEICONSULTANTS 3/2/2021 GEOLOGIST SAMPLING AND ANALYSIS PLAN, AND REPORT Page 1 of 11 * ELECTRONIC COPY Massachusetts Department of Environmental Provided by MassDEP: Protection MassDEP File #:083-2325 Bureau of Resource Protection - Wetlands eDEP Transaction #:1355610 WPA Form 5 - Order of Conditions City/Town:YARMOUTH Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 EELGRASS GEI CONSULTANTS ANDREW CAMERON 11/19/2020 SURVEY REPORT B. Findings 11indings pursuant to the Massachusetts Wetlands Protection Act Following the review of the the above -referenced Notice of Intent and based on the information provided in this application and presented at the public hearing, this Commission finds that the areas in which work is proposed is significant to the following interests of the Wetlands Protection Act. Check all that apply: a. r Public Water Supply b. r Land Containing Shellfish c.r Prevention of Pollution d. r Private Water Supply e. r Fisheries f. r Protection of Wildlife Habitat g. r Ground Water Supply h. r Storm Damage Prevention i. r Flood Control 2. Commission hereby finds the project, as proposed, is: Approved subject to: a. r The following conditions which are necessary in accordance with the performance standards set forth in the wetlands regulations. This Commission orders that all work shall be performed in accordance with the Notice of Intent referenced above, the following General Conditions, and any other special conditions attached to this Order. To the extent that the following conditions modify or differ from the plans, specifications, or other proposals submitted with the Notice of Intent, these conditions shall control. Denied because: b.r The proposed work cannot be conditioned to meet the performance standards set forth in the wetland regulations. Therefore, work on this project may not go forward unless and until a new Notice of Intent is submitted which provides measures which are adequate to protect interests of the Act, and a final Order of Conditions is issued. A description of the performance standards which the proposed work cannot meet is attached to this Order. c.r The information submitted by the applicant is not sufficient to describe the site, the work or the effect of the work on the interests identified in the Wetlands Protection Act. Therefore, work on this project may not go forward unless and until a revised Notice of Intent is submitted which provides sufficient information and includes measures which are adequate to protect the interests of the Act, and a final Order of Conditions is issued. A description of the specific information which is lacking and why it is necessary is attached to this Order as per 310 CMR 10.05(6)(c). 3.r Buffer Zone Impacts: Shortest distance between limit of project disturbance and the wetland resource area specified in 310CMRI0.02(1)(a). a. linear feet Inland Resource Area Impacts:(For Approvals Only): Resource Area Proposed Permitted Proposed Permitted Alteration Alteration Replacement Replacement 4. ,• Bank 5. 7 Bordering Vegetated Wetland 320 320 0 0 a. linear feet b. linear feet c. linear feet d. linear feet Page 2 of 11 * ELECTRONIC COPY Massachusetts Department of Environmental Provided by MassDEP: Protection MassDEP File #:083-2325 Bureau of Resource Protection - Wetlands eDEP Transaction #:1355610 WPA Form 5 - Order of Conditions City/Town:YARMOUTH Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 a. square feet b. square feet c. square feet d. square feet 6. r Land under Waterbodies and Waterways a. square feet b. square feet c. square feet d. square feet e. c/y dredged f, c/y dredged 7.r Bordering Land Subject to Flooding a. square feet b. square feet c. square feet d. square feet Cubic Feet Flood Storage e. cubic feet f. cubic feet g. cubic feet h. cubic feet 8.r Isolated Land Subject to Flooding Cubic Feet Flood Storage c. cubic feet d. cubic feet e. cubic feet f. cubic feet 9. r Riverfront Area a. total sq. feet b. total sq. feet Sq ft within 100 ft c. square feet d. square feet e. square feet f, square feet Sq ft between 100-200 ft g. square feet h. square feet i. square feet j. square feet Coastal Resource Area Impacts: Resource Area Proposed Permitted Proposed Permitted Alteration Alteration Replacement Replacement 10. r Designated Port Areas Indicate size under Land Under the Ocean, below 11. r Land Under the Ocean 1962213 1962213 a. square feet b. square feet 296000 296000 c. c/y dredged d. c/y dredged 12.r Barrier Beaches Indicate size under Coastal Beaches and/or Coastal Dunes below 13.r Coastal Beaches 479395 479395 273500 273500 a. square feet b. square feet c. c/y nourishment d. c/y nourishment 14.r Coastal Dunes a. square feet b. square feet c. c/y nourishment d. c/y nourishment 15.r Coastal Banks 130 130 a. linear feet b. linear feet 16.r Rocky Intertidal Shores a. square feet b. square feet 17.r Salt Marshes a. square feet b. square feet c. square feet d. square feet 18.r Land Under Salt Ponds a. square feet b. square feet Page 3 of 11 * ELECTRONIC COPY Massachusetts Department of Environmental Provided by MassDEP: Protection MassDEP File #:083-2325 Bureau of Resource Protection - Wetlands eDEP Transaction #:1355610 WPA Form 5 - Order of Conditions City/Town:YARMOUTH Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 c. c/y dredged d. c/y dredged 19.r Land Containing Shellfish 18700 18700 a. square feet b. square feet c. square feet d. square feet Indicate size under Coastal Banks, inland Bank, Land Under the 20. r Fish Runs Ocean, and/or inland Land Under Waterbodies and Waterways, above 282100 282100 c. c/y dredged d. c/y dredged 21.r Land Subject to Coastal Storm Flowage 479395 479395 a. square feet b. square feet 22. r Restoration/Enhancement (For Approvals Only) If the project is for the purpose of restoring or enhancing a wetland resource area in addition to the square footage that has been entered in Section B.5.c & d or B.17.c & d above, please entered the additional amount here. a. square feet of BVW b. square feet of Salt Marsh 23. r Streams Crossing(s) If the project involves Stream Crossings, please enter the number of new stream crossings/number of replacement stream crossings. a. number of new stream crossings b. number of replacement stream crossings C. General Conditions Under Massachusetts Wetlands Protection Act The following conditions are only applicable to Approved projects 1. Failure to comply with all conditions stated herein, and with all related statutes and other regulatory measures, shall be deemed cause to revoke or modify this Order. 2. The Order does not grant any property rights or any exclusive privileges; it does not authorize any injury to private property or invasion of private rights. 3. This Order does not relieve the permittee or any other person of the necessity of complying with all other applicable federal, state, or local statutes, ordinances, bylaws, or regulations. 4. The work authorized hereunder shall be completed within three years from the date of this Order unless either of the following apply: a. the work is a maintenance dredging project as provided for in the Act; or b. the time for completion has been extended to a specified date more than three years, but less than five years, from the date of issuance. If this Order is intended to be valid for more than three years, the extension date and the special circumstances warranting the extended time period are set forth as a special condition in this Order. 5. This Order may be extended by the issuing authority for one or more periods of up to three years each upon application to the issuing authority at least 30 days prior to the expiration date of the Order. 6. If this Order constitutes an Amended Order of Conditions, this Amended Order of Conditions does not exceed the issuance date of the original Final Order of Conditions. Page 4 of 11 * ELECTRONIC COPY Massachusetts Department of Environmental Provided by MassDEP: Protection MassDEP File #:083-2325 Bureau of Resource Protection - Wetlands eDEP Transaction #:1355610 WPA Form 5 - Order of Conditions City/Town:YARMOUTH Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 7. Any fill used in connection with this project shall be clean fill. Any fill shall contain no trash, refuse, rubbish, or debris, including but not limited to lumber, bricks, plaster, wire, lath, paper, cardboard, pipe, tires, ashes, refrigerators, motor vehicles, or parts of any of the foregoing. 8. This Order is not final until all administrative appeal periods from this Order have elapsed, or if such an appeal has been taken, until all proceedings before the Department have been completed. 9. No work shall be undertaken until the Order has become final and then has been recorded in the Registry of Deeds or the Land Court for the district in which the land is located, within the chain of title of the affected property. In the case of recorded land, the Final Order shall also be noted in the Registry's Grantor Index under the name of the owner of the land upon which the proposed work is to be done. In the case of the registered land, the Final Order shall also be noted on the Land Court Certificate of Title of the owner of the land upon which the proposed work is done. The recording information shall be submitted to the Conservation Commission on the form at the end of this Order, which form must be stamped by the Registry of Deeds, prior to the commencement of work.. 10. A sign shall be displayed at the site not less then two square feet or more than three square feet in size bearing the words, " Massachusetts Department of Environmental Protection" [or'MassDEP"] File Number :"083-2325" 11. Where the Department of Environmental Protection is requested to issue a Superseding Order, the Conservation Commission shall be a party to all agency proceedings and hearings before Mass DEP. 12. Upon completion of the work described herein, the applicant shall submit a Request for Certificate of Compliance (WPA Form 8A) to the Conservation Commission. 13. The work shall conform to the plans and special conditions referenced in this order. 14. Any change to the plans identified in Condition #13 above shall require the applicant to inquire of the Conservation Commission in writing whether the change is significant enough to require the filing of a new Notice of Intent. 15. The Agent or members of the Conservation Commission and the Department of Environmental Protection shall have the right to enter and inspect the area subject to this Order at reasonable hours to evaluate compliance with the conditions stated in this Order, and may require the submittal of any data deemed necessary by the Conservation Commission or Department for that evaluation. 16. This Order of Conditions shall apply to any successor in interest or successor in control of the property subject to this Order and to any contractor or other person performing work conditioned by this Order. 17. Prior to the start of work, and if the project involves work adjacent to a Bordering Vegetated Wetland, the boundary of the wetland in the vicinity of the proposed work area shall be marked by wooden stakes or flagging. Once in place, the wetland boundary markers shall be maintained until a Certificate of Compliance has been issued by the Conservation Commission. 18. All sedimentation barriers shall be maintained in good repair until all disturbed areas have been fully stabilized with vegetation or other means. At no time shall sediments be deposited in a wetland or water body. During construction, the applicant or his/her designee shall inspect the erosion controls on a daily basis and shall remove accumulated sediments as needed. The applicant shall immediately control any erosion problems that occur at the site and shall also immediately notify the Conservation Commission, which reserves the right to require additional erosion and/or damage prevention controls it may deem necessary. Sedimentation barriers shall serve as the limit of work unless another limit of work line has been approved by this Order. NOTICE OF STORMWATER CONTROL AND MAINTENANCE REQUIREMENTS 19. The work associated with this Order(the "Project") is (1) r is not (2)r subject to the Massachusetts Stormwater Standards. If the work is subject to Stormwater Standards, then the project is subject to the Page 5 of 11 * ELECTRONIC COPY Massachusetts Department of Environmental Provided by MassDEP: Protection MassDEP File #:083-2325 Bureau of Resource Protection - Wetlands eDEP Transaction #:1355610 WPA Form 5 - Order of Conditions City/Town:YARMOUTH Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 following conditions; a) All work, including site preparation, land disturbance, construction and redevelopment, shall be implemented in accordance with the construction period pollution prevention and erosion and sedimentation control plan and, if applicable, the Stormwater Pollution Prevention Plan required by the National Pollutant Discharge Elimination System Construction General Permit as required by Stormwater Standard 8. Construction period erosion, sedimentation and pollution control measures and best management practices (BMPs) shall remain in place until the site is fully stabilized. b) No stormwater runoff may be discharged to the post -construction stormwater BMPs unless and until a Registered Professional Engineer provides a Certification that: i. all construction period BMPs have been removed or will be removed by a date certain specified in the Certification. For any construction period BMPs intended to be converted to post construction operation for stormwater attenuation, recharge, and/or treatment, the conversion is allowed by the MassDEP Stormwater Handbook BMP specifications and that the BMP has been properly cleaned or prepared for post construction operation, including removal of all construction period sediment trapped in inlet and outlet control structures; ii.. as -built final construction BMP plans are included, signed and stamped by a Registered Professional Engineer, certifying the site is fully stabilized; iii. any illicit discharges to the stormwater management system have been removed, as per the requirements of Stormwater Standard 10; iv. all post -construction stormwater BMPs are installed in accordance with the plans (including all planting plans) approved by the issuing authority, and have been inspected to ensure that they are not damaged and that they are in proper working condition; v. any vegetation associated with post -construction BMPs is suitably established to withstand erosion. c) The landowner is responsible for BMP maintenance until the issuing authority is notified that another party has legally assumed responsibility for BMP maintenance. Prior to requesting a Certificate of Compliance, or Partial Certificate of Compliance, the responsible party (defined in General Condition 19(e)) shall execute and submit to the issuing authority an Operation and Maintenance Compliance Statement ("O&M Statement") for the Stormwater BMPs identifying the party responsible for implementing the stormwater BMP Operation and Maintenance Plan ("O&M Plan") and certifying the following: i.) the O&M Plan is complete and will be implemented upon receipt of the Certificate of Compliance, and ii.) the future responsible parties shall be notified in writing of their ongoing legal responsibility to operate and maintain the stormwater management BMPs and implement the Stormwater Pollution Prevention Plan. d) Post -construction pollution prevention and source control shall be implemented in accordance with the long- term pollution prevention plan section of the approved Stormwater Report and, if applicable, the Stormwater Pollution Prevention Plan required by the National Pollutant Discharge Elimination System Multi -Sector General Permit. e) Unless and until another party accepts responsibility, the landowner, or owner of any drainage easement, assumes responsibility for maintaining each BMP. To overcome this presumption, the landowner of the property must submit to the issuing authority a legally binding agreement of record, acceptable to the issuing authority, evidencing that another entity has accepted responsibility for maintaining the BMP, and that the proposed responsible party shall be treated as a permittee for purposes of implementing the requirements of Conditions 19(f) through 19(k) with respect to that BMP. Any failure of the proposed responsible party to implement the requirements of Conditions 19(f) through 19(k) with respect to that BMP shall be a violation of the Order of Conditions or Certificate of Compliance. In the case of stormwater BMPs that are serving more than one lot, the legally binding agreement shall also identify the lots that will be serviced by the stormwater BMPs. A plan and easement deed that grants the responsible party access to perform the required operation and maintenance must be submitted along with the legally binding agreement. f) The responsible party shall operate and maintain all stormwater BMPs in accordance with the design plans, the O&M Plan, and the requirements of the Massachusetts Stormwater Handbook. Page 6 of 11 * ELECTRONIC COPY Massachusetts Department of Environmental Provided by MassDEP: Protection MassDEP File #:083-2325 Bureau of Resource Protection - Wetlands eDEP Transaction #:1355610 WPA Form 5 - Order of Conditions City/Town:YARMOUTH Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 g) The responsible party shall: 1. Maintain an operation and maintenance log for the last three (3) consecutive calendar years of inspections, repairs, maintenance and/or replacement of the stormwater management system or any part thereof, and disposal (for disposal the log shall indicate the type of material and the disposal location); 2. Make the maintenance log available to MassDEP and the Conservation Commission ("Commission") upon request; and 3. Allow members and agents of the MassDEP and the Commission to enter and inspect the site to evaluate and ensure that the responsible party is in compliance with the requirements for each BMP established in the O&M Plan approved by the issuing authority. h) All sediment or other contaminants removed from stormwater BMPs shall be disposed of in accordance with all applicable federal, state, and local laws and regulations. i) Illicit discharges to the stormwater management system as defined in 310 CMR 10.04 are prohibited. j) The stormwater management system approved in the Order of Conditions shall not be changed without the prior written approval of the issuing authority. k) Areas designated as qualifying pervious areas for the purpose of the Low Impact Site Design Credit (as defined in the MassDEP Stormwater Handbook, Volume 3, Chapter 1, Low Impact Development Site Design Credits) shall not be altered without the prior written approval of the issuing authority. 1) Access for maintenance, repair, and/or replacement of BMPs shall not be withheld. Any fencing constructed around stormwater BMPs shall include access gates and shall be at least six inches above grade to allow for wildlife passage. Special Conditions: D. Findings Under Municipal Wetlands Bylaw or Ordinance 1.Is a municipal wetlands bylaw or ordinance applicable?Fv Yes !— No 2.The Conservation Commission hereby check one that applies a. t— DENIES the proposed work which cannot be conditioned to meet the standards set forth in a municipal ordinance or bylaw specifically: 1. Municipal Ordinance or Bylaw 2. Citation Therefore, work on this project may not go forward unless and until a revised Notice of Intent is submitted which provides measures which are adequate to meet these standards, and a final Order or Conditions is issued. Which are necessary to comply with a municipal ordinance or bylaw: b'r APPROVES the proposed work, subject to the following additional conditions. 1. Municipal Ordinance or Bylaw YARMOUTH WETLAND BY-LAW 2. Citation CHAPTER 143 3 The Commission orders that all work shall be performed in accordance with the following conditions and with the Notice of Intent referenced above. To the extent that the following conditions modify or differ from the plans, specifications, or other proposals submitted with the Notice of Intent, the conditions shall control. The special conditions relating to municipal ordinance or bylaw are as follows: Page 7 of 11 * ELECTRONIC COPY Massachusetts Department of Environmental Provided by MassDEP: Protection MassDEP File #:083-2325 Bureau of Resource Protection - Wetlands eDEP Transaction #:1355610 WPA Form 5 - Order of Conditions City/Town:YARMOUTH Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 SEE ATTACHED FINDINGS AND CONDITIONS DOCUMENT (10 PAGES TOTAL) Page 8 of 11 * ELECTRONIC COPY Massachusetts Department of Environmental Provided by MassDEP: Protection MassDEP File #:083-2325 Bureau of Resource Protection - Wetlands eDEP Transaction #:1355610 WPA Form 5 — Order of Conditions City/Town: YARMOUTH Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 E. Signatures This Order is valid for three years from the date of issuance, unless otherwise / I� specified pursuant to General Condition #4. If this is an Amended Order of Conditions, the Amended Order expires on the same date as the original Order of 1. Date of Original Order Conditions. Please indicate the number of members who will sign this form. This Order must be 7 signed by a majority of the Conservation Commission. 2. Number of Signers The Order must be mailed by certified mail (return receipt requested) or hand delivered to the applicant. A copy also must be mailed or hand delivered at the same time to the appropriate Department of Environmental Protection Regional Office, if not filing electronically, and the property owner, if different from applicant Signatures: dby hand delivery on ©by certified mail, return re pt quested, on Date 313 / 1202Z Date F. Appeals The applicant, the owner, any person aggrieved by this Order, any owner of land abutting the land subject to this Order, or any ten residents of the city or town in which such land is located, are hereby notified of their right to request the appropriate MassDEP Regional Office to issue a Superseding Order of Conditions. The request must be made by certified mail or hand delivery to the Department, with the appropriate filing fee and a completed Request for Departmental Action Fee Transmittal Form, as provided in 310 CMR 10.03(7) within ten business days from the date of issuance of this Order. A copy of the request shall at the same time be sent by certified mail or hand delivery to the Conservation Commission and to the applicant, if he/she is not the appellant. Any appellants seeking to appeal the Department's Superseding Order associated with this appeal will be required to demonstrate prior participation in the review of this project. Previous participation in the permit proceeding means the submission of written information to the Conservation Commission prior to the close of the public hearing, requesting a Superseding Order, or providing written information to the Department prior to issuance of a Superseding Order. The request shall state clearly and concisely the objections to the Order which is being appealed and how the Order does not contribute to the protection of the interests identified in the Massachusetts Wetlands Protection Act Page Q of ( ( * ELECTRONIC COPY Massachusetts Department of Environmental Protection Bureau of Resource Protection - Wetlands WPA Form 5 - Order of Conditions Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Provided by MassDEP: MassDEP File #:083-2325 eDEP Transaction #:1355610 City/Town:YARMOUTH E. Signatures This Order is valid for three years from the date of issuance, unless otherwise specified pursuant to General Condition #4. If this is an Amended Order of Conditions, the Amended Order expires on the same date as the original Order of Conditions. Please indicate the number of members who will sign this form. This Order must be signed by a majority of the Conservation Commission. 3/31/2022 1. Date of Original Order 2. Number of Signers The Order must be mailed by certified mail (return receipt requested) or hand delivered to the applicant. A copy also must be mailed or hand delivered at the same time to the appropriate Department of Environmental Protection Regional Office, if not filing electronically, and the property owner, if different from applicant. Signatures: Edwin Hoopes Tom Durkin Elinor Lawrence r by hand delivery on Date F. Appeals Paul Huggins Patricia Mulhearn David Bernstein Rick Bishop r by certified mail, return receipt requested, on Date The applicant, the owner, any person aggrieved by this Order, any owner of land abutting the land subject to this Order, or any ten residents of the city or town in which such land is located, are hereby notified of their right to request the appropriate MassDEP Regional Office to issue a Superseding Order of Conditions. The request must be made by certified mail or hand delivery to the Department, with the appropriate filing fee and a completed Request for Departmental Action Fee Transmittal Form, as provided in 310 CMR 10.03(7) within ten business days from the date of issuance of this Order. A copy of the request shall at the same time be sent by certified mail or hand delivery to the Conservation Commission and to the applicant, if he/she is not the appellant. Any appellants seeking to appeal the Department's Superseding Order associated with this appeal will be required to demonstrate prior participation in the review of this project. Previous participation in the permit proceeding means the submission of written information to the Conservation Commission prior to the close of the public hearing, requesting a Superseding Order, or providing written information to the Department prior to issuance of a Superseding Order. The request shall state clearly and concisely the objections to the Order which is being appealed and how the Order does not contribute to the protection of the interests identified in the Massachusetts Wetlands Protection Act Page 9 of 11 * ELECTRONIC COPY Massachusetts Department of Environmental Provided by MassDEP: Protection MassDEP File #:083-2325 Bureau of Resource Protection - Wetlands eDEP Transaction #:1355610 WPA Form 5 - Order of Conditions City/Town:YARMOUTH Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 (M.G.L. c. 131, § 40), and is inconsistent with the wetlands regulations (310 CMR 10.00). To the extent that the Order is based on a municipal ordinance or bylaw, and not on the Massachusetts Wetlands Protection Act or regulations, the Department has no appellate jurisdiction. G. Recording Information This Order of Conditions must be recorded in the Registry of Deeds or the Land Court for the district in which the land is located, within the chain of title of the affected property. In the case of recorded land, the Final Order shall also be noted in the Registry's Grantor Index under the name of the owner of the land subject to the Order. In the case of registered land, this Order shall also be noted on the Land Court Certificate of Title of the owner of the land subject to the Order of Conditions. The recording information on this page shall be submitted to the Conservation Commission listed below. YARMOUTH Conservation Commission Detach on dotted line, have stamped by the Registry of Deeds and submit to the Conservation Commission. --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- To: YARMOUTH Conservation Commission Please be advised that the Order of Conditions for the Project at: 125 SEAGULL RD AND MULTIPLE OTHER SITES 083-2325 Project Location MassDEP File Number Has been recorded at the Registry of Deeds of County Book Page for: Property Owner KARL VON HONE and has been noted in the chain of title of the affected property in: Book Page In accordance with the Order of Conditions issued on: Date If recorded land, the instrument number identifying this transaction is: Instrument Number If registered land, the document number identifying this transaction is: Document Number Page 10 of 11 * ELECTRONIC COPY Massachusetts Department of Environmental Provided by MassDEP: Protection MassDEP File #:083-2325 Bureau of Resource Protection - Wetlands eDEP Transaction #:1355610 WPA Form 5 - Order of Conditions City/Town:YARMOUTH Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Signature of Applicant Rev. 4/1/2010 Page 11 of 11 * ELECTRONIC COPY WPA Form 5 - Order of Conditions MassDEP File: SE83-2325 SPECIAL CONDITIONS Transaction #: 1355610 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Town of Yarmouth Wetland By-law, Chapter 143 10 Year Dredging and Nourishment Permit - Findings and Conditions Division of Marine Fisheries Findinas: Yarmouth has a variety of important marine species utilizing the approach channels, inlet channels, embayments, and beaches proposed for dredging and nourishment in this Comprehensive Permit. The major species and species groups of concern are identified and described as follows: Shellfish: The proposed dredge and disposal sites lie within or adjacent to mapped shellfish habitat, including habitat for bay scallop (Argopecten irradians), blue mussel (Mytilus edulis), American oyster (Crassostrea virginica), northern quahog (Mercenaria mercenaria), razor clam (Ensis directus), and softshell clam (Mya arenaria). Subtidal waters within the proposed project sites have habitat characteristics suitable for these species. Land containing shellfish is deemed significant to the interest of the Wetlands Protection Act (310 CMR 10.34) and the protection of marine fisheries. All shellfish species have life stages (e.g., larval stages) vulnerable to dredge and fill activities, and local success of seed set may vary dramatically due to a variety of environmental factors (e.g., temperature, salinity, current). Impacts to shellfish resources and habitats are of concern due to their importance to commercial and recreational fisheries and, of equal importance, their role in ecosystem dynamics as forage species [1]. Therefore, these species may have a high risk of impact during dredging and beach nourishment projects in certain circumstances. Winter flounder: Winter flounder (Pseudopleuronectes americanus) spawning habitat is found in all Yarmouth embayments, consistent with NOAA Fisheries' Essential Fish Habitat designation in this area. Winter flounder enter the area and spawn from January through May; demersal eggs hatch approximately 15 to 20 days later. The Atlantic States Marine Fisheries Commission (ASMFC) has designated winter flounder spawning habitat as a "Habitat Area of Particular Concern" (HAPC). The 2020 Southern New England/Mid Atlantic management track stock assessment indicates that although overfishing is not occurring, the stock remains overfished. Spawning stock biomass in 2019 was estimated to be 32% of the biomass target [2]. Winter flounder eggs are sensitive to the impacts of sedimentation [1 ]. Therefore, this species has a high risk of impact when dredging and beach nourishment projects coincide with spawning and development. Diadromous fish: Many of the ponds and inlet channels in Yarmouth serve as diadromous fish passage, migration, and spawning habitat. The diadromous fish species on Cape Cod include alewife (Alosa pseudoharengus), blueback herring (Alosa aestivalis), rainbow smelt (Osmerus mordax), American eel (Anguilla rostrata), white perch (Morone americana), Atlantic tomcod (Microgadus tomcod), and American shad (Alosa sapidissima) [3]. The anadromous alewife, blueback herring, rainbow smelt, American shad, and white perch utilize fresh and tidal waters for spawning. The catadromous American eel spawns at sea but uses estuarine and freshwater habitats for forage, refuge, and development. Most of these diadromous species are at historically low population levels in Massachusetts. For example, species such as river herring (alewife and blueback herring), which were previously important commercial and recreational fisheries, are in such a serious state of decline that possession has been prohibited since 2006. WPA Form 5 - Order of Conditions MassDEP File: SE83-2325 SPECIAL CONDITIONS Transaction #: 1355610 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Town of Yarmouth Wetland By-law, Chapter 143 10 Year Dredging and Nourishment Permit - Findings and Conditions These species migrate through, and in some cases inhabit, nearshore marine and estuarine waterbodies. Because of their dependence on channels for migrations and their high degree of aggregation during migrations, these species have a high risk of impact when dredging projects coincide with migration routes or occur in areas of spawning and settlement. Horseshoe crabs: Spawning beaches for horseshoe crabs (Limulus polyphemus) occur throughout Yarmouth, according to field surveys and landings data. Horseshoe crabs deposit their eggs in the upper intertidal regions of sandy beaches from late spring to early summer during spring high tides. Adult crabs congregate in deep waters during the day while they wait to spawn on nearby beaches at night. Eggs hatch approximately two to four weeks later. The 2019 benchmark stock assessment indicates that the New England horseshoe crab stock status has shifted from poor to neutral [4]. Because of its dependence on nearshore shallow beaches and channels as habitat, this species has a high risk of impact during dredging and beach nourishment projects. Eelgrass beds: Eelgrass (Zostera marina) is found throughout Yarmouth coastal waters. Eelgrass beds provide one of the most productive habitats for numerous marine species and are designated "special aquatic sites" under the Federal Clean Water Act 404(b) (1) guidelines. Anthropogenic impacts, including declining water quality, are responsible for large losses of this important habitat throughout the Commonwealth. Though eelgrass is a perennial species, meaning it grows in Yarmouth waters year-round, eelgrass beds are ephemeral (occurring in some locations for short periods of time) and are difficult to map comprehensively. Eelgrass is sensitive to light limitation and therefore is particularly sensitive to turbidity plumes resulting from coastal alteration projects. Eelgrass is also sensitive to burial. As little as 2 to 4 cm of sand burial can result in 70 to 90% mortality of eelgrass [1]. This habitat has a high risk of impact from dredging and beach nourishment projects. CONDITIONS: 1. MA DMF restrictions based on natural resources shall be reassessed on an annual basis. The applicant shall be responsible for contacting MA DMF for an annual review and updates on restrictions, prior to any work commencing in that year. A complete review of comprehensive dredge permit application material, along with any proposed changes, shall be completed by MA DMF at the end of 5 years from the issue of this Order of Conditions. No further work shall be completed under this Order until that review is complete. Additional or modified restrictions and/or conditions recommended by MA DMF at that time shall become a part of this Order of Conditions. 2. To protect sensitive life stages of winter flounder, diadromous finfish, and horseshoe crabs, when they are most vulnerable to dredging and beach nourishment activities, the following time -of -year (TOY) restrictions apply. Finalized TOY restrictions are provided in Table 1 included below and supersede those provided in the application material. 3. Dredging is prohibited within 75 feet of all eelgrass beds to protect these important special aquatic sites. Since eelgrass beds are ephemeral, changes to eelgrass distribution that have occurred since previous dredging events should be identified prior to all dredging activities. The applicant shall conduct eelgrass surveys prior to dredging; surveys shall be conducted within summer months and according to MA DMF Eelgrass Survey Guidelines; WPA Form 5 - Order of Conditions MassDEP File: SE83-2325 SPECIAL CONDITIONS Transaction #: 1355610 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Town of Yarmouth Wetland By-law, Chapter 143 10 Year Dredging and Nourishment Permit - Findings and Conditions 4. Beach nourishment could compress intertidal shellfish habitat or smother nearshore eelgrass habitat. Beach nourishment material shall be deposited above the mean high water (MHW) line where feasible and shall maintain a minimum 100-foot buffer between the nourishment footprint and landward edge of any bordering eelgrass; 5. Any beach nourishment shall be consistent with MassDEP's Beach Nourishment Guide. Beach fill material shall be of appropriate slope to avoid premature loss from the beach and impacts to nearshore bottom habitat. 6. The applicant shall coordinate with the Town of Yarmouth shellfish constable to harvest and/or relocate shellfish located in dredge areas prior to dredging in areas where the constable deems existing shellfish densities to warrant such activities; 7. Equipment staging or transit to and from beach nourishment sites shall avoid intertidal habitat to the greatest extent practicable to avoid compaction of sediment in intertidal shellfish habitat; 8. Fuel spills from refueling of construction equipment will adversely impact sensitive resource areas. No land -based equipment shall be refueled within 100 feet of a wetland resource area. Table 1. Combined TOY Restric#ions far Town of Yarniowh Dredze and Beacli Noiuishment Si`Us Diadromous Alewife 411-6115 Horseshoe MA DMF Project Dredge Winter Blueback 411-6I30 Crab Mapped Mapp Major Combined Project Site N o. Fill Flounder Eel ��5-6}3TOYDredge ,� 5}i- Shellfish aterbody T� 1 �1 b-5}31 6}30 Resource Perch 411-6115 Fill 511- }31 Feature Tomcod 2115-4I30 Gary's Beach I F No No Yes N?A N/A 5}1-7131 Bay Road 2 F No No No N?A N.:A gone Bayview Street F No No No N?A N.:A None Baxter 4 F No No No N.:A N.:A None Avenue Berry Avenue 5 F No No No N.:A N.:A' None Columbus 6 F No No No N.:A N.:A None Avenue Crosby Street 7 F No No No N.:A N.:A None Glenwood Street s F No No No N.:A N.:A None Grove Street 9 F No No No N.:A N.:A None Horner 13 F No No No N.:A N:,A None Avenue Malfa Road 11 F No No No N.:A N.:A None New Hampshire 12 F No No No N.:A N.:A None Avenue River Street 13 F No No Yes N.:A N.:A 511-7131 Short Wharf 14 F No No No N.:A N.:A None Greek Beach Akin Avenue Town IF F No No No N.:A N.:A None Landing Vermont 16 F No No No N.:A N.:A None Avenue Vernon 17 F No No No N.:A NIA None Street Windmill Park 18 F No No Yes NIA NIA 5I1-7131 Wilbur Park 19 F No No Yes NIA NIA 511-7131 Pine Island Entrance 20 D Yes No No Yes Embayment 1115-5131 Channel Englewood 'Entrance 21 D Yes No No Yes Embayment 1115-5131 Channel Englewood Ramp and 22123 D Yes No No Yes Embayment 1115-5131 Basin Alewife Bass River No (if Blueback Herring Approach 24a D <10,000 American Eel Yes Yes Approach' 115-5/30 Channel CY) White Perch Atlantic Tomcod Alewife Bass River Blueback Herring 24b D Yes American Eel Yes Yes Inlet' 1115-5130 Inlet Channel White Perch Atlantic Tomcod Alewife Bass River Blueback Herring Embayment 24c D Yes American Eel Yes Yes Embayment' 1115-6/30 and Basin White Perch Atlantic Tomcod West Dennis 25 F No No Yes NIA N/A 511-7I31 Beach South Middle 26 F No No Yes NIA NIA 5/1-7131 Beach Bass River 27 F No No Yes NIA NIA 511-7I31 Beach Porkers River No (if Alewife Approach 28a D <10,000 American Eel Yes Yes Approach' 115-6/30 Channel CY) White Perch Atlantic Tomcod Porkers River 28b D Yes Alewife Yes Yes Inlet' 1115-5130 Inlet American Eel White Perch Atlantic Tomcod Alewife Parkers River ? Cr Yes American Eel No Yes Embayment' 1f15-6130 Embayment White Perch Atlantic Tomcod eahBeach 2': F No No Yes N1A WA 511-7131 Barkers F;ver Beach tip; F Nu No Yes NIA N;A 5/1-71 1 SeagullF Nn No Yes N.:A N/A 5/1-7131 BeachchDune Thatchers F No No 1'p - N.:A N:`A 511-7131 Beach Alewife Mill Creek 33 C] Yes American Eel No Yes Embayment 1115-6130 '•.'phi#e Perch CalanJ 34 F Nn No No N.:A WA None Acoresres Beach Dennis Pand 35 F Nu No No N:'A N/A None ILittle Sandy 36 F No No No N:'A N/A None (Pond Wings Grove 37 F Nu No No N.:A N/A None Park 'Refer to Figure 1 for Parke-rs Riverand nd Bass River approach channel, inlet chatinel. and eniba ine it d,�ii e-atIOIIl I � �•T i 1.• +�r• #�•-}�i.' �7{�,Y t V.�}'{�� 14�4,�-�i 1.' +�, � r� � t•' � � �} _' T ,���'�1 �., �, �5M1 •i' `5'}i }-'�''7 "tip � AL :j r .. '' �'2 i M1r •'r' r yI}1I, r ti . _ -Fly. �M1 S:•} �• ... � � - - N 7• -T mi.. �r - Jr WPA Form 5 - Order of Conditions MassDEP File: SE83-2325 SPECIAL CONDITIONS Transaction #: 1355610 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Town of Yarmouth Wetland By-law, Chapter 143 10 Year Dredging and Nourishment Permit - Findings and Conditions Natural Heritage & Endangered Species Program of the Massachusetts Division of Fisheries & Wildlife (the "Division") Findings and Conditions: The Division has determined that portions of this Project, as currently proposed, will occur within the actual habitat of Piping Plover (Charadrius melodus) and Least Tern (Sternula antillarum), species state -listed as Threatened and Special Concern, respectively. These species and their habitats are protected pursuant to the MESA. The Piping Plover is federally protected as "Threatened" pursuant to the U.S. Endangered Species Act (ESA, 50 CFR 17.11). Generally, in Massachusetts, these coastal birds can be found from April - September. Piping Plovers and Least Terns are ground -nesting shorebirds that will establish nests on sparsely vegetated, sandy areas of coastal beaches and dunes. Their nests are comprised of shallow depressions in the sand that may be lined with shell fragments or pebbles. Piping Plovers, terns and their nests are particularly vulnerable to predators, unleashed pets, and human disturbance. Piping Plover and Least Tern chicks are not capable of flight for a period of up to 30 days. This project, as currently proposed, must be conditioned in order to avoid adverse effects to the Resource Area Habitats of state -listed wildlife species (310 CMR 10.37, 10.58(4)(b), 10.59) and must be conditioned in order to avoid a prohibited Take of state -listed species (321 CMR 10.18(2)(a)). To avoid adverse effects to the Resource Area Habitats of state -listed species and to avoid a prohibited Take at the sites identified below the following conditions must be implemented: 9. Beach Nourishment Sites: Grey's Beach, South Middle Beach, Bass River Beach, Seaview Beach, Parkers River Beach, Seagull Beach & Thatcher Beach (Yarmouth) & West Dennis Beach (Dennis) a) Time of Year Restriction. Beach nourishment, dewatering, and associated activities (e.g., staging, grading and equipment access) shall not occur during the period April 1 - August 31, to protect breeding shorebird species. b) Beach Nourishment. Beneficial reuse of dredged material shall be placed in accordance with the Project Narrative and PLANS. i. Slope: As proposed, all nourishment shall have a maximum slope of 1OH: 1V. ii. Plantings & Sand Fence. Vegetation shall not be planted, and sand fencing shall not be erected in areas of beach nourishment, unless otherwise approved in writing by the Division. c) State -listed Species Protection. The applicant has the responsibility of protecting breeding Piping Plovers and state -listed species of terns that may be attracted to beach nourishment areas, as well as their eggs and unfledged chicks. The applicant must implement a Division -approved monitoring and protection plan for these beach nourishment sites for a minimum of three consecutive years following any nourishment activity. i. The applicant shall notify the Division on or before March 1 each year or prior to the start of work as to what arrangements have been made for monitoring and site protection to occur. This notification shall include a written contract, memorandum of agreement, or some other formal written agreement with the individual(s) or organization that will undertake monitoring and protection efforts in the field. WPA Form 5 - Order of Conditions MassDEP File: SE83-2325 SPECIAL CONDITIONS Transaction #: 1355610 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Town of Yarmouth Wetland By-law, Chapter 143 10 Year Dredging and Nourishment Permit - Findings and Conditions ii. Each year, beginning April 1, a qualified shorebird monitor, approved by the Division, shall determine whether territorial, courting, or nesting Piping Plovers or state -listed species of terns are present at beach nourishment areas and if so, shall erect and maintain warning signs and symbolic fencing to protect nesting habitat, breeding adults, nests, and chicks from disturbance or human -caused mortality. These fenced areas shall be managed in accordance with the Massachusetts Division of Fisheries and Wildlife document of April 1993 titled Guidelines For Managing Recreational Use Of Beaches To Protect Piping Plovers, Terns, And Their Habitats In Massachusetts. iii. Monitoring shall occur at least 2 times per week until at least July 1. However, if Piping Plovers or terns are found to be using the site, then monitoring frequency shall be increased to at least 3 times per week, and shall continue until all nesting and brood -rearing activity has been completed. A report shall be submitted to the Division each year that summarizes the results of the state -listed species monitoring and site protection activities. iv. If state -listed nesting shorebirds utilize beach nourishment sites located outside of Priority Habitat that are included in the 10-year Comprehensive Permit then the Applicant must work with a qualified shorebird monitor to manage those sites in accordance with the Division's Guidelines for Managing Recreational Use of Beaches to Protect Piping Plovers Terns, and Their Habitats in Massachusetts Dennis Pond d) Beach nourishment shall not be placed within ten (10) feet of the seasonal high-water line to protect state -listed plants and their habitats. 10. Dredging Sites: Parkers River -Time of Year Restriction. Dredging shall not occur during the period April 1 —August 31, to protect breeding shorebird species unless otherwise approved in writing by the Division. 11. NHESP program authorization is valid for 5 years from the date of issuance. Work may be completed during this 5-year period in compliance with the conditions herein. Subject to Division review and approval, the applicant may renew this determination for an additional five (5) year period (10 years total) provided a written request is submitted to the Division prior to the expiration of this determination. Thereafter, the applicant shall re -file under the MESA. 12. Upon filing for renewal, extension, or amendment of the Orders of Conditions for the 10- Year Comprehensive Dredging & Nourishment Permit, the applicant shall contact the Division and submit appropriate documentation to obtain a written response or determination, as appropriate, regarding impacts to Resource Area habitat of state -listed wildlife. WPA Form 5 - Order of Conditions MassDEP File: SE83-2325 SPECIAL CONDITIONS Transaction #: 1355610 Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Town of Yarmouth Wetland By-law, Chapter 143 Yarmouth Dredging and Nourishment Permit - Findings and Conditions Other conditions: 13. No nourishment shall occur within salt marsh vegetation or vegetated dune areas 14. Nourishment equipment shall remain at least 10 feet of the toe of any coastal dune to avoid de -stabilizing the dune. 15. No equipment shall be refueled, nor shall fuel be stored within 100 feet of a resource area. 16. The top of the dredge slope shall maintain a buffer from any bordering salt marsh of at least 25 feet to reduce the risk of slumping and erosion impacts to this resource. 17. This Order shall be valid for five (5) years from the date of issue, with the option to extend for an additional five (5) years. Prior to extension of the Order, DMF and NHESP shall be given the opportunity to review and comment on the proposed extension and apply any new or amended conditions. Extension Permit requests must be applied for at least 30 calendar days prior to the expiration date of the original Order. Failure to do so will result in a new "Notice of Intent" filing. 18. Any beach nourishment shall be consistent with MassDEP's Beach Nourishment Guide. Beach fill material shall be of appropriate slope and grain size to avoid premature loss from the beach and impacts to nearshore bottom habitat. 19. The applicant/owner shall be responsible for having a copy of the "Order of Conditions" on the job site at all times and shall be responsible for insuring that all persons performing the permitted activity are fully aware of its terms and conditions. Failure to do so may result in the revocation of these "Orders", a fine or both. 20. Any change in the approved plan(s) shall require the Applicant to file, in writing, a notice of project change with this Commission. The Commission will determine the significance of the change and determine whether administrative approval or an "Amended Order of Conditions" is required. Should the project be changed without permission, or found by the Yarmouth Conservation Commission to be altered in any way from the approved plan(s), all work will immediately cease until the project is reapproved by the Commission. 21. No equipment shall be refueled, nor shall fuel be stored within 100 feet of a resource area. 22. Upon completion of the project, a "Request for a "Certificate of Compliance" shall be submitted by the applicant to the Conservation Commission for review. The "Order of Conditions" shall be considered incomplete until the "Certificate of Compliance" is issued by the Conservation Commission and recorded at the Registry of Deeds.