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HomeMy WebLinkAboutNHESP conditionsJuly 31, 2025 Roby Whitehouse Town of Yarmouth Department of Public Works, Parks Division 74 Town Brook Road Yarmouth, MA, 02675 Yarmouth Conservation Commission 1146 Route 28 South Yarmouth Yarmouth, MA 02664 RE: Applicant: Roby Whitehouse, Town of Yarmouth DPW - Parks Project Location: 220 South Street/Smugglers Beach, South Middle Beach, Judan Way Project Description: Yarmouth Beach Management Plans DEP Wetlands File No.: 083-2477 NHESP File No.: 25-19468 Dear Commissioners and Applicant: In April 2025, the Natural Heritage & Endangered Species Program of the Massachusetts Division of Fisheries & Wildlife (the “Division”) received a Notice of Intent with beach management plans for review in compliance with the rare wildlife species section of the Massachusetts Wetlands Protection Act Regulations (310 CMR 10.37) and the MESA Review Checklist filing with supporting documentation for review pursuant to the MA Endangered Species Act Regulations (321 CMR 10.18). In May 2025, the Division issued notice that additional information was required to complete our review pursuant to the WPA and MESA . On July 1, 2025, the Division received updated information including the plans titled “Town of Yarmouth Beach Management Plan – Smugglers Beach” & “Town of Yarmouth Beach Management Plan – South Middle Beach & Judan Way” (dated April 2025, updated July 2025). State-listed Species The Division has determined that this Project, as currently proposed, will occur within the habitat of the following species: Scientific Name Common Name Taxonomic Group State Status ThreatenedBirdPiping PloverCharadrius melodus State-listed species and their habitats are protected in accordance with the MESA and rare wetland wildlife habitat is protected pursuant to rare species provisions of the WPA. The Piping Plover is federally protected as Threatened 25-19468NHESP No.Page 2 of 5 Issued July 31, 2025 pursuant to the U.S. Endangered Species Act (ESA, 50 CFR 17.11). Piping Plovers nest 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. Nests for this species are particularly vulnerable to predators, unleashed pets, and human disturbance. Piping Plover chicks are not capable of flight for 25-30 days after hatching, and during this period they must feed themselves with parents in attendance, often ranging widely to forage during this period of rapid growth. Fact sheets for state-listed species can be found at www.mass.gov/nhesp. In 1993, the Division published Guidelines for Managing Recreational Use of Beaches to Protect Piping Plovers, Terns, and Their Habitats in Massachusetts (“Guidelines”). The Guidelines contain recommended procedures for managing recreational activities to ensure compliance with the MESA and its implementing regulations. The U.S. Fish & Wildlife Service published similar guidelines in 1994 and issued an amendment in 2015 (“Federal Guidelines”). The Beach Management Plans (BMPs) for Smugglers Beach and South Middle & Judan Way Beaches demonstrate incorporation of the Guidelines associated with the operation and management of these beaches. MA Wetlands Protection Act (WPA) & MA Endangered Species Act (MESA) 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 and to avoid a prohibited Take of state-listed species, the conditions attached to this letter must be met. 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 Amy Hoenig, Senior Endangered Species Review Biologist, at amy.hoenig@mass.gov, (508) 389-6364. 25-19468NHESP No.Page 3 of 5 Issued July 31, 2025 Sincerely, Jesse Leddick Assistant Director cc:DEP Southeast Region Yarmouth Conservation Commission Roby Whitehouse, Town of Yarmouth Attachment: List of Conditions 25-19468NHESP No.Page 4 of 5 Issued July 31, 2025 List of Conditions Applicant: Roby Whitehouse Project Location: 220 South Street/Smugglers Beach, South Middle Beach, Judan Way Project Description: Yarmouth Beach Management Plans NHESP File No.: 25-19468 Heritage Hub Form ID: RC-94002 Approved Plan: TOWN OF YARMOUTH BEACH MANAGEMENT PLAN - SMUGGLERS BEACH & TOWN OF YARMOUTH BEACH MANAGEMENT PLAN - SOUTH MIDDLE BEACH & JUDAN WAY Plan date: APRIL 2025, UPDATED JULY 2025 Revised Date: N/A To avoid adverse effects to the Resource Area Habitats and to avoid a prohibited Take of state-listed species, the following condition(s) must be met: 1.Smuggler's Beach, South Middle Beach & Judan Way Beach Management: To protect state-listed species and their habitats during the shorebird nesting season, April 1 – August 31, beach management and operations located within state-listed species habitats must implement the protection measures detailed in the Beach Management Plan (BMP) and the Guidelines, unless otherwise expressly approved in writing by the Division 2.State-listed Species Monitoring & Habitat Protection: The Applicant has the responsibility of protecting breeding Piping Plovers that occur on these beaches. Regular monitoring for the presence of Piping Plovers and terns must be conducted by a qualified shorebird monitor, as determined by the Division, during the period April 1 – August 31. Areas of Piping Plover nesting habitat must be delineated with symbolic fencing and warning signs. These areas shall remain fenced as long as viable eggs, unfledged chicks, or territorial or courting Piping Plovers are present. All fenced areas shall be managed in accordance with the Guidelines.  Greater management flexibility for plovers and terns (i.e., deviations from the Guidelines) can only be approved by the Division as part of a valid Certificate of Inclusion (COI) and MESA Conservation and Management Permit (CMP) associated with the Statewide Habitat Conservation Plan (HCP). If the Applicant does not have a valid COI & CMP or if they expire, then recreational use and management must fully comply with the Guidelines and be implemented with the protection measures specified in the BMP. 3.Beach Raking & Grooming: To protect state-listed species, all winter beach clean-up must occur prior to April 1. Any raking/grooming during April or May can only occur if a qualified monitor, as determined by the Division, first has determined the locations of all territorial birds and those territories have been fenced and are excluded from raking so as not to deter pre-nesting birds. If state-listed nesting birds are present during April 1 – August 31, then raking should occur as detailed in the BMP and in accordance with the Guidelines . a. For the benefit of beach-nesting birds, from April 1 through August 31, mechanical beach cleaning that reduces the amount of wrack (seaweed and other organic debris) at the tide line should be minimized in the vicinity (±200 yd) of symbolically fenced areas. If wrack is present in typical volumes and does not contain much human trash or present a health risk, it should be left in place. Trash within the wrack line should be removed by hand whenever feasible, leaving in place the majority of the wrack. If copious amounts of wrack present a health risk or are a public nuisance that necessitates removal, leave in place at least one-third of the fresh wrack from a normal tidal cycle to provide foraging and sheltering opportunities for shorebirds. b. When unfledged chicks are present on the beach, beach raking/grooming shall only be conducted when a qualified shorebird monitor is present to determine locations of unfledged chicks and ensure that raking equipment remains at least 100 yards away from unfledged chicks. c. If, due to imminent health or human safety concerns, mechanized raking must occur within 100 yards of 25-19468NHESP No.Page 5 of 5 Issued July 31, 2025 unfledged chicks, vehicles must be guided by a qualified shorebird monitor who has first determined the locations of all unfledged chicks. 4.Motorized Equipment: All motorized equipment on the beach during April 1 – August 31 must comply with the Guidelines. a. All use and staging of utility vehicles (for all non-emergency situations), including but not limited to distributing equipment to lifeguard stations and ADA mats, must avoid areas of symbolic fencing. b. When unfledged chicks are present on the beach, any routine patrols (non-emergency situations) and use of utility vehicles or heavy equipment (e.g., debris removal, or distribution of lifeguard stations, ADA mats, etc.), should only be conducted when a qualified shorebird monitor is present to determine locations of unfledged chicks and ensure that motorized equipment remains at least 200 yards away from unfledged chicks. 5.Annual Maintenance of Access Paths: Work associated with the regrading or relocation of wind-blown sand to facilitate beach access should be conducted prior to April 1. If vehicular maintenance on access paths is needed during the period April 1 – August 31, all work must be conducted under a Division-approved monitoring and protection plan implemented by a qualified shorebird monitor. 6.Authorization Duration: This 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. Pursuant to 321 CMR 10.22, a written request for extension of this determination can be submitted to extend this determination for an additional five (5) year period (10 years total). Extension of the determination is subject to Division review and approval and must be submitted to the Division prior to the expiration of this determination. Thereafter, the applicant shall re-file under the MESA. 7.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.