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HomeMy WebLinkAboutNHESP comment April 7, 2023 Lisa and James Valone 205 Rice Road Wayland MA 01778 Yarmouth Conservation Commission 1146 Route 28 South Yarmouth Yarmouth MA 02664 RE: Applicant: Lisa and James Valone Project Location: 63 Smiths Point Road Project Description: Boardwalk Modifications DEP Wetlands File No.: 083-2383 NHESP File No.: 22-40762 Dear Commissioners & Applicant: The Natural Heritage & Endangered Species Program of the Massachusetts Division of Fisheries & Wildlife (the “Division”) received a Notice of Intent with site plans (dated October 12, 2021, revised 2/8/2023) in compliance with the rare wildlife species section of the Massachusetts Wetlands Protection Act Regulations (310 CMR 10.37). The Division also received the MESA Review Checklist and supporting documentation for review pursuant to the MA Endangered Species Act Regulations (321 CMR 10.18). The Division has determined that a portion of this Project is located within the actual habitat for Piping Plover (Charadrius melodus) and Least Tern (Sternula antillarum), species state-listed as Threatened and Special Concern, respectively. These species and its habitats are protected in accordance with the rare species provisions of the WPA and the MESA. Fact sheets for state-listed species can be found at www.mass.gov/nhesp. The Piping Plover is federally protected as Threatened pursuant to the U.S. Endangered Species Act (ESA, 50 CFR 17.11). The purpose of the Division’s review of the proposed project under the WPA regulations is to determine whether the project will have any adverse effects on the Resource Areas Habitats of state-listed species. The purpose of the Division’s review under the MESA regulations is to determine whether a Take of state- listed species will result from the proposed project. Based on the information provided and the information contained in our database, it is the opinion of the Division that 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 the following conditions must be implemented: NHESP No. 22-40762, Page 2 1. Time of Year Restriction: Construction or installation associated with the proposed project shall not occur during the period of April 1 – August 31 to protect state-listed species and their habitats during the nesting season. 2. State-listed Species Protection. The applicant has the responsibility of protecting breeding Piping Plovers and state-listed species of terns that may be on this section of beach. Therefore, the applicant must allow regular monitoring for the presence of Piping Plovers and terns by a qualified shorebird monitor, as determined by the Division, during the period April 1 – August 31 and shall allow any nests, scrapes, or unfledged chicks to be protected with symbolic fencing (warning signs and twine fencing). 3. Authorization Duration. This authorization is valid for 5 years from the date of issuance. Work may be completed at any time during this 5-year period in compliance with the conditions herein. Thereafter, the applicant shall re-file under the MESA. 4. Notice. Upon filing for renewal, extension, or amendment of the Orders of Conditions, the applicant shall contact the Division for written response regarding impacts to Resource Area habitat of state-listed wildlife. Provided these conditions are included in any approving Orders of Conditions issued by the Conservation Commission, and the applicant complies with all the above noted conditions, the project will not result in an adverse impact to the resource area habitats of state-listed wildlife species pursuant to the WPA and will not result in a prohibited Take pursuant to the MESA. A copy of the final Order of Conditions shall be sent to the NHESP simultaneously with the applicant as stated in the Procedures section of the WPA (310 CMR 10.05(6)(e)). This determination is a final decision of the Division of Fisheries and Wildlife pursuant to 321 CMR 10.18. Any changes to the proposed project or any additional work beyond that shown on the site plans may require an additional filing with the Division pursuant to the MESA. This project may be subject to further review if no physical work is commenced within five years from the date of issuance of this determination, or if there is a change to the project. Please note that this determination addresses only the matter of state-listed species and their habitats. If you have any questions regarding this letter please contact Emily Holt, Endangered Species Review Assistant, at (508) 389-6385. Sincerely, Everose Schlüter, Ph.D. Assistant Director cc: John Lavelle, Baxter Nye Engineering & Surveying MA DEP Southeast Region