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HomeMy WebLinkAboutCommission - correspodence to - 08.08.24T TROY WALL ASSOCIATES WATTORNEYS AND COUNSELLORS AT LAW A PROFESSIONAL ASSOCIATION OF INDIVIDUAL PRACTITIONERS' 90 ROUTE 6A. SANDWICH, MASSACHUSETTS 02563 TELEPHONE: (508) 888-5700 ROBERT S. TROY mt@troywallassociates.com BRIAN J. WALL bjw@troywallassociates.com August 8, 2024 Yarmouth Conservation Commission 1146 Route 28 South Yarmouth, MA 02664 Re: Notice of Intent Application Great Island Homeowners' Association 0 Great Island Road Map 7, Parcel 1 and Map 10, Parcel 1 Dear Members of the Commission: Please be advised that this office represents the above -referenced Applicant, Great Island Homeowners' Association ("GIHA"). This serves to provide the Commission with the Applicant's assertion that that the erosion control measures proposed in the Notice of Intent ("NOI"), specifically the sand -filled and sand -covered geotextile bags, are not "coastal engineering structures" and may be permitted by the Commission. 1. Background. The coastal beach and coastal dunes on the southeastern side of Great Island were significantly damaged by a winter storm on December 18, 2023. This exposed Great Island Road to potential storm damage by future storms. In order to protect the road and preserve access, including access by emergency responders, GIHA, through its consultant, Woods Hole Group, applied for Emergency Certification to restore the primary dune and protect road access. Emergency Certification was issued on January 5, 2024. Thereafter, GIHA installed geotextile bags filled with sand in a 910-linear-foot area where the coastal dune was compromised and where the road needed protection from future storms. After the bags were installed, a sand cover was placed over the bags and graded to create a natural slope to mimic dune function and aesthetics. 'EACH ATTORNEY IN THIS OFFICE IS AN INDEPENDENT PRACTITIONER WHO IS NOT RESPONSIBLE FOR THE PRACTICE OR THE LIABILITY OF ANY OTHER ATTORNEY IN THE OFFICE August 8, 2024 Page 2 On April 11, 2024, in accordance with the terms of the Emergency Certification, GEFIA filed an NOI seeking after -the -fact approval of the project. When the DEP transmitted the file number, the transmittal included commentary stating that sand filled geotextile bags "are considered coastal engineering structures" and that it "appears that the project as proposed would not meet the performance standards for Coastal Dunes (310 CMR 10.28) and Barrier Beach (310 CMR 10.29)." The Applicant disagrees with these comments and, for the reasons set forth herein, asserts that the sand -filled geotextile bags, with a sand cover that mimics a natural dune, are not coastal engineering structures. 2. Analvsis. The DEP defines "coastal engineering structure" in the Wetlands Regulations at 310 CMR 10.23, as follows: Coastal Engineering Structure means, but is not limited to, any breakwater, bulkhead, groin, jetty, revetment, seawall, weir, riprap or any other structure that is designed to alter wave, tidal or sediment transport processes in order to protect inland or upland structures from the effects of such processes. The Commission defines "coastal engineering structures" in the Yarmouth Wetlands Regulations at 1.06, as follows: Coastal Engineering Structure - any bulkhead, revetment, seawall, riprap, groin, jetty or other structure intended to prevent or alleviate storm damage, tidal action, wave action, littoral flow or erosion caused by any offoregoing. Comparison of the two definitions confirms that they are nearly identical. Notably, a sand -covered sand -filled geotextile bag is not specifically included in the list of structures identified in either definition. GIHA asserts that, because geotextile bags are not specifically listed in the definition, and because geotextile bags are fundamentally different than the types of structures that are listed in the definition, the geotextile bags are not "coastal engineering structures." The determination of whether or not the geotextile bags are coastal engineering structures requires interpretation of the regulatory definition. Courts begin the interpretation process "with the canon of statutory construction that the primary insight August 8, 2024 Page 3 into the intent of the legislature is the language of the regulation." Koshy v. Sachdeve, 477 Mass. 759, 765 (2017). When a term is defined in a regulation by a list of examples, such as in the definition of "coastal engineering structures," Courts employ additional canons of statutory construction. Two such canons are applicable: noscitur a sociis and ejusdem generis. The canon of noscitur a sociis counsels that "ordinarily the coupling of words denotes an intention that they should be understood in the same general sense." Commonwealth v. Hamilton, 459 Mass. 422, 432 (2011), quoting 2A N.J. Singer, Sutherland Statutory Construction § 47:16, at 352-353 (7th ed. 2007). In other words, "[a] general term in a statute or ordinance takes meaning from the setting in which it is employed. The literal meaning of a general term in an enactment must be limited so as not to include matters that, although within the letter of the enactment, do not fairly come within its spirit and intent." People for the Ethical Treatment of Animals, Inc. v. Dep't of Agdc. Res., 477 Mass. 280 (2107), quoting Kenney v. Building Comm'r of Melrose, 315 Mass. 291, 295 (1943). A close relative of this doctrine is ejusdem generis. See Banushi v. Dorfman, 43 8 Mass. 242, 244 (2002). This canon counsels that "[w]here general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words." Id. quoting 2A N.J. Singer, Sutherland Statutory Construction § 47:17, at 273-274 (6th ed. 2000). Application of these two canons to the definition at issue results in the conclusion that the sand -filled and sand -covered geotextile bags proposed by GIHA are not "structures" because they are dissimilar to the structures that are expressly listed in the definition. All the structures specifically listed are "hard" in nature. `Bulkheads" are typically constructed of steel, vinyl, or wood. Revetments, seawalls, and groins are constructed with stone. The geotextile bags are not like these "hard" structures; rather, the bags are "soft." Indeed, the bags are non-structural by their very nature. Further, the hard structures listed in the definition are all permanent and intended to remain in place in perpetuity. The geotextile bags are intended as a temporary measure. The NOI proposes that the bags remain in place for approximately two years while GIHA implements a longer -term solution. A further and significant distinguishing feature that makes the bags different than the types of structures listed in the definition is that they are proposed to be sand covered, and the sand is to be graded to a natural slope that mimics the functions and aesthetics of a August 8, 2024 Page 4 coastal dune. This makes the bags different than a hard bulkhead, seawall, revetment, or rip rap. Such structures are intended to break up waves and by their nature alter the natural processes of sediment transport. The erosion control measure proposed by GIHA does the opposite. It is intended to mimic nature, and the sand cover will respond to waves in the same manner as natural dune, and the loose sand will be available for transport. These characteristics make the bags markedly different than a coastal engineering structure. Indeed, the geotextile bags are properly characterized as a "soft" erosion control measure similar to other "soft" solutions that have been approved by the Commission and which are accepted as not being coastal engineering structures. An example is a coir fiber roll array. Such arrays are considered not to be coastal engineering structures. These arrays typically consist of high -density fiber rolls that are anchored in place by steel cables and steel helical anchors. The fiber rolls are typically covered with sand or planted with native vegetation. The geotextile bag solution proposed by GIHA is similar to the coir fiber roll arrays. The sand -filled bags have a high density like the coir fiber rolls. The bags remain in place by their own weight and, therefore, do not require the anchoring system that the arrays require. And the bags are covered with sand and sloped to mimic a dune in a manner like the sand placed on the coir fiber rolls. Comparison of the bag solution to well -accepted coir fiber roll arrays confirms that the bags are similar to the arrays and are, therefore, not structures. Other "soft" erosion control measures that have been permitted and accepted as not being coastal engineering structures involve the use of coir envelopes or coir bags. These solutions involve the use of coir netting to create an envelope, tube, or bag that is filled with sand. The arrays are typically stacked in a staggered fashion 3 or more envelopes (tubes or bags) high and held in place by the weight of the overlying envelopes. In some cases, wooden posts have been used to help anchor the arrays in place. Beach compatible sand is used to cover the coir systems to prevent UV degradation. Examples of permitted coir envelope and bag systems from Mashpee and Sandwich are attached as Exhibit 1. The geotextile bag solution proposed by GIHA is similar to these systems in that a sand filled bag is being used to protect inland infrastructure. The bags are intended to protect the edge of Great Island Road from undermining and further damage. Their presence along the edge of the road has no impact on sediment supply to surrounding beaches, and in fact prevents road debris and asphalt from being spread across the beach during storms. The proposed sand cover acts to protect against UV degradation and also supplies sediment to the littoral system, much like the coastal dune did before it was lost to erosion. In contrast to the example projects, the GIHA project, which is proposed on a temporary basis only, has little to no impact on sediment transport processes, and therefore should not be considered a coastal engineering structure. August 8, 2024 Page 5 3. Conditions. The Commission can impose conditions on the proposed project to ensure that the interests protected by the Massachusetts Wetlands Protection Act and the Yarmouth Wetlands Protection Bylaw are adequately protected. These conditions can include: • The sand bag arrays will be visually monitored on a monthly basis by the local caretaker. Monitoring reports with photographs will be supplied to the Conservation Commission. • Monitoring of the sand bag arrays will also take place immediately following coastal storm events. Monitoring reports complete with photographs will be supplied to the Conservation Commission within 2 days following the storm. • In the event that the sand bags become uncovered, beach compatible nourishment material will be placed over the tops of the bags to mimic the functions and aesthetics of the natural dune. Up to 2,090 cubic yards of material may be placed over the bags on a bi-annual basis. • The Conservation Commission will be notified in advance of any nourishment activities and a report will be filed with the Commission detailing dates of nourishment, volumes placed, sediment characteristics, and pre- and post -nourishment photographs. • All nourishment work will take place before March 1 and after August 31 to protect nesting shorebirds and chicks. • In the event that individual sand bags show signs of deterioration or failure, they will be removed immediately to prevent loss of geotextile fabric into the coastal environment. • Replacement of existing sand bags with new geotextile bags is not allowed. 4. Plan for Future Access to Great Island Woods Hole Group has been working with the GIHA to identify flood and erosion vulnerabilities to Great Island Road and to identify a plan for maintaining future access to the island in the face of climate change and rising sea levels. Currently, areas of the road near the bridge and portions of Cedar Point Road are subject to inundation during spring high tide. By the year 2030, 8% of the access road is predicted to be flooded during high tide, and by 2050 and 2070, 28% and 80% is predicted to be flooded, respectively. In addition to daily high tide flooding, the road is also vulnerable to inundation during coastal storms. The Massachusetts Coastal Flood Risk Model (MC-FRM) shows a probability of August 8, 2024 Page 6 storm flooding between 20% and 100% as soon as 2030, cutting off access to the island for residents and emergency response vehicles. Erosion and loss of protective coastal dune resources along the south side of Great Island Road is also a problem that threatens to undermine and damage the only means of vehicle access to the island. Woods Hole Group has worked with the GIHA to develop short- and long-range plans for maintaining access to Great Island. A brief description of each plan as presented to GIHA is provided below: • Short-range plan (1-5 years) — This plan involves dune restoration and roadway protection along the south side of Great Island Road using biodegradable fiber rolls or coir envelopes that would then be covered with beach compatible sand. Areas of dune restoration would only be implemented as needed over the next 1 to 5 years, to protect the road from undermining and to maintain vehicle access to the island. A Notice of Intent (NOI) would be proactively filed so that post storm dune restoration and roadway protection could be installed as needed (with proper notification to the Conservation Commission), eliminating the need for Emergency Certifications. Materials necessary for construction would be stockpiled in advance to avoid last-minute shortages. The intent of the short-range plan is to take steps to maintain access along the road while work on the intermediate -range plan is designed, permitted, and constructed. • Intermediate to long-range plan (3-50 years) — This plan involves a combination of road raising, road retreat, and replacement of the bridge. The goal is to protect the roadway from flooding during high tides through 2050 or 2070, and to protect from storm induced flooding during smaller events up through the year 2050. Work to design and permit the intermediate -range plan may take up to 3 years, and construction is expected to occur in phases, starting with the most vulnerable sections of roadway. These developing plans for future access to Great Island are relevant to the current NOI application for the geotextile sand bags as they show intent by the GIHA to move towards a more resilient solution for roadway access that will allow the beach and dune to respond naturally to coastal processes and avoid the need for repeated erosion control measures along the roadway. It is important for the Commission to understand that the measures proposed in the current NOI are temporary in nature, until such time as the intermediate to long-range plan can be implemented. August 8, 2024 Page 7 5. Conclusion. The analysis set forth herein of the definition of the term "coastal engineering structure" as applied to the sand -filled and sand -covered geotextile bags proposed by the Applicant demonstrates that the bags are not "coastal engineering structures" and may be permitted by the Commission. The conditions suggested herein will ensure that there will be no significant adverse effects upon the resource areas, and that the interests of the Wetlands Protection Act and Wetlands Protection Bylaw are adequately protected. Accordingly, the Applicant requests that the Commission approve the NOI. Respectfully submitted, Brian J. Wall Attachment: Exhibit 1 Cc: Great Island Homeowners' Association Woode Hole Group, Inc. EXHIBIT 1 Example of permitted coir envelope system in Mashpee, MA. Example of coir bag and post erosion control system permitted in Sandwich, MA.