HomeMy WebLinkAboutAtt 7_MEPA Final Record of Decision
The Commonwealth of Massachusetts
Executive Office of Energy and Environmental Affairs
100 Cambridge Street, Suite 900
Boston, MA 02114
Maura T. Healey
GOVERNOR
Kimberley Driscoll
LIEUTENANT GOVERNOR
Rebecca L. Tepper
SECRETARY
Tel: (617) 626-1000
Fax: (617) 626-1081
http://www.mass.gov/eea
March 27, 2023
FINAL RECORD OF DECISION
PROJECT NAME : Bass River Headwaters Restoration
PROJECT MUNICIPALITY : Yarmouth
PROJECT WATERSHED : Cape Cod
EEA NUMBER : 16659
PROJECT PROPONENT : Friends of the Bass River
DATE NOTICED IN MONITOR : March 8, 2023
Pursuant to the Massachusetts Environmental Policy Act (MEPA; M.G.L.c.30, ss. 61- 62L) and
Section 11.11 of the MEPA Regulations (301 CMR 11.00), I have reviewed the Expanded
Environmental Notification Form (EENF) and hereby grant a Waiver from the requirement to prepare
an Environmental Impact Report (EIR).
Project Description
As described in the EENF, the project consists of the active ecological restoration of
approximately 21.7 acres of wetlands consisting of eight retired cranberry bog cells on land owned by
the Town of Yarmouth (the Town).1 As detailed in the EENF and for discussion purposes, each bog has
been assigned a number from 1 to 8. No direct work is proposed within bogs 4 and 8.
The project will remove portions of human-placed sand associated with prior cranberry
cultivation practices to regrade, reconfigure, and restore the wetlands to a more natural elevation and
1 The EENF notes a total alteration to 20.2 acres of land; however, according to supplemental information provided via email
dated February 10, 2023 from Nicholas Nelson (Inter-Fluve) to Nicholas Moreno (MEPA), an additional 1.5 acres of invasive
species treatment is anticipated and now reflected herein.
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configuration, allowing the wetland surface to be flooded more regularly. This will be accomplished
through creating a new meandering, sinuous stream channel; roughening the bog surfaces via breaking
up the sanded surface and mixing it with underlying native peat deposits; creating microtopography;
filling internal and perimeter irrigation ditches; and removal of the existing dam and earthen berms to
significantly increase hydrologic and habitat connectivity between the restored bogs and adjacent
vegetated wetlands and reservoirs. Proposed restoration activities within the retired cranberry bogs
include:
• Decommissioning and complete removal of all water control structures located between the
retired cranberry bogs and upstream and downstream reservoirs.
• Complete removal of the concrete fishway and partial removal of the earthen dam, separating
Bogs 1 and 3, leaving approximately one vertical foot of the earthen berm above the adjacent
floodplain elevation to provide a drier and more stable walking path for continued pedestrian
access.
• Excavation and grading of Bog 1 to create a small pond within the former impoundment
surrounded by restored wetland vegetation.
• Creation of a meandering stream channel through Bogs 1, 3, 5, and 6 that is sized for current
hydrologic conditions with the ability to adapt to future climate conditions including rising sea
level and intensifying precipitation events.
• Channel and bank stabilization using large wood to provide habitat along the channel banks in
the proposed freshwater systems.
• Filling of lateral and perimeter ditches located within the retired cranberry bogs by pushing or
otherwise transferring material into the selected ditches from bog surfaces, excavated berms, or
both.
• Complete removal of the earthen berm at the downstream end of Bog 6 and between Bogs 6 and
7 to restore natural hydrology and connections to adjacent aquatic habitats.
• Removal of surface material and roughening of sanded surface layers to create microtopography
and promote groundwater expression from underlying peat deposits within Bogs 1, 3, 5, 6, and 7.
• Grading of areas adjacent to the created stream channel within the riparian zone to allow for
flood waters to uniformly spread over the surface of the floodplain.
• Construction of a stream crossing between Bogs 3 and 4, a boardwalk between Bogs 6 and 7, and
a footbridge across the channel at the earthen berm between Bogs 5 and 6.
• Chemical treatment of invasive species, primarily consisting of Phragmites.
• Replanting disturbed areas with native seed and native potted trees and shrubs with a mix of salt
marsh vegetation species, transitional species, freshwater species, and upland species.
• Replacement of the undersized Weir Road culvert and realignment of the stream channel.2
According to the EENF, the primary goals of the project are to improve fish passage; improve
water quality through nutrient attenuation and tidal exchange; enhance habitat for aquatic organisms;
and enhance public recreational opportunities. The project will address public access through trail
rerouting and proposed crossings that maintain access around the site for residents and visitors; re-
establishment of existing trails through selective vegetation clearing; potential installation of benches
2 As noted in the EENF, this work has not undergone significant design to date but will be led by Tighe & Bond under
contract with the Proponent and in close coordination with the Yarmouth Department of Public Works (DPW). Anticipated
impacts associated with the culvert replacement are included herein.
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and viewing areas; and the creation of six parking spaces within the construction access and staging area
post-construction, which is anticipated to consist of permeable materials with limited infrastructure
support.
Project Site
The project site encompasses approximately 21.7 acres and consists of eight discrete retired
cranberry bog cells and the headwaters of the Bass River historically known as Hamblin’s Brook. The
bog cells are central to a larger assemblage of approximately 57 acres acres of open space protected by
the Town. The bogs were likely constructed during the 1800s through sanding, damming, and ditching
of the headwaters of the Bass River to facilitate cranberry farming. The bogs were under agricultural
management until around 40 to 50 years ago when the property was acquired by the Town.
Hydrologically, the bog cells are sustained by freshwater inputs of surface water (artificial and
natural) generally originating from groundwater springs north of U.S. Route 6 in a series of cranberry
bogs upstream of Union Street. Hamblin’s Brook flows through flow-control structures at Union Street
and then into Miss Thatcher’s Pond, an impoundment created by a dam and earthen berms as a water
supply for the cranberry bogs. The brook leaves Miss Thatcher’s Pond into the upstream extent of the
project site through a fish ladder and then flows under Weir Road and through more retired cranberry
bogs before it drains into Mill Pond, the downstream extent of the project site.
State and local wetland resource areas located within the project area include Bank, Bordering
Vegetated Wetland (BVW), Land Under Waterbodies and Waterways (LUWW), Land Subject to
Coastal Storm Flowage (LSCSF), and Riverfront Area (RA). According to the Federal Emergency
Management Agency (FEMA) Flood Insurance Rate Map (FIRM) (Panel No. 25001C0578J and
25001C0579J, effective July 16, 2014), the entire project site is located within the AE Zone with a Base
Flood Elevation (BFE) of 9 ft NAVD88.
The project is not located in an Area of Critical Environmental Concern (ACEC) or within filled
or flowed tidelands. According to the Massachusetts Natural Heritage and Endangered Species Program
(NHESP) Atlas (15th Edition), the site is not located within Estimated and Priority Habitats of Rare
Species. As shown in the EEA EJ Mapper, the project site is not located within one mile of
Environmental Justice (EJ) Populations.3
Environmental Impacts and Mitigation
Potential environmental impacts associated with the project include the alteration of 21.7 acres of
land as well as temporary and permanent impacts to wetland resources areas present on the project site
including 8,280 lf of permanent impacts to Bank, 13.8 acres of permanent impact to BVW, 3.9 acres of
permanent impacts to LUWW, 21.7 acres of temporary impacts to LSCSF, and 29.7 acres of permanent
impacts to RA.4 Additionally, the project will create six parking spaces on the project site.
3 The EEA EJ Mapper is available at:https://www.mass.gov/info-details/environmental-justice-populations-in-massachusetts.
4 The EENF notes permanent impacts to 29.7 acres of RA; however, this is likely a conservative estimate as portions of the
RA extend beyond the limits of work and property boundary.
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As the purpose of the project is ecological restoration, it is expected to result in the conversion of
LUWW and Bank to BVW, and produce significant and permanent improvements to the ecology,
geomorphology, hydrology, and habitat diversity of the retired cranberry bogs. Measures to avoid,
minimize, and mitigate environmental impacts include the use of erosion and sedimentation controls
during construction; sequencing the work to minimize turbidity in the water; and stabilization of
remaining sediment following cut and fill activities. According to the EENF, in the absence of this
project, the historical wetlands on the site would persist in a permanently degraded condition, consisting
of a patchwork of wetland and upland area, with reduced biological diversity, impaired ecological
processes, and less ability to adapt over time to climate change.
Jurisdiction and Permitting
This project is subject to MEPA review and a mandatory EIR because it requires Agency Action
and meets/exceeds the thresholds at 301 CMR 11.03(3)(a)(1)(a) for the alteration of one or more acres
of bordering vegetating wetlands; 301 CMR 11.03(3)(a)(1)(b) for the alteration of ten or more acres of
any other wetlands; and 301 CMR 11.03(3)(a)(4) for the structural alteration of an existing dam that
causes any decrease in impoundment Capacity. It also exceeds the ENF thresholds at 301 CMR
11.03(3)(b)(1)(b) for the alteration of 500 or more linear feet of bank along a fish run or inland bank;
301 CMR 11.03(3)(b)(1)(d) for the alteration of 5,000 or more sf of bordering vegetated wetlands; and
301 CMR 11.03(3)(b)(1)(f) alteration of ½ or more acres of any other wetlands.
The project will require a Water Quality Certification (WQC) pursuant to Section 401 of the
Clean Water Act and a Chapter 91 (c.91) Waterways License from the Massachusetts Department of
Environmental Protection (MassDEP). The project will also require an Order of Conditions (OOC) as
either an Ecological Restoration Project (under the dam removal and/or tidal restoration category) or an
Ecological Restoration Limited Project from the Yarmouth Conservation Commission; in the case of an
appeal, a Superseding Order of Conditions from MassDEP will be required. Additionally, the project
will require a Massachusetts Division of Marine Fisheries (DMF) Fishway Construction Permit.
The project will require a National Pollutant Discharge Elimination System (NPDES)
Stormwater Permit for Construction Activities from the U.S. Environmental Protection Agency (EPA)
and the submittal of a Pre-Construction Notification (PCN) to the U.S. Army Corps of Engineers
(ACOE) seeking authorization under the General Permits for Massachusetts in accordance with Section
404 of the Clean Water Act. Additionally, the project may require Federal Consistency Review from the
Massachusetts Office of Coastal Zone Management (CZM).
The project is seeking $165,000 in Financial Assistance from the Massachusetts Division of
Ecological Restoration (DER) and the U.S. EPA. Therefore, MEPA jurisdiction is broad in scope and
extends to all aspects of the project that may cause Damage to the Environment, as defined in the MEPA
regulations.
Waiver Request
The proponent submitted an EENF for the project with a request for a Waiver from the
requirement for the preparation of a mandatory EIR in accordance with MEPA regulations (301 CMR
11.11). The EENF generally described how the project meets the Wavier criteria outlined in 301 CMR
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11.11 and the EENF was subject to an extended comment period, as required by 301 CMR 11.05(8). In
comment letters dated February 14, 2023, February 21, 2023, and February 24, 2023, CZM, MassDEP,
and the Cape Cod Commission, respectively, expressed support for the waiver request, noting that the
EENF is sufficient to assess the environmental impacts and benefits associated with this ecological
restoration project. Comments from state agencies on the EENF did not identify additional alternatives
or mitigation measures that warrant additional analysis through an EIR.
Standards for All Waivers
The MEPA regulations at 301 CMR 11.11(1) state that I may waive any provision or
requirement in 301 CMR 11.00 not specifically required by MEPA and may impose appropriate and
relevant conditions or restrictions, provided that I find that strict compliance with the provision or
requirement would:
a) result in an undue hardship for the Proponent, unless based on delay in compliance by the
Proponent; and
b) not serve to avoid or minimize Damage to the Environment.
Determinations for an EIR Waiver
The MEPA regulations at 301 CMR 11.11(3) state that, in the case of a Waiver of a mandatory
EIR review threshold, I shall at a minimum base the finding required in accordance with 301 CMR
11.11(1)(b) stated above on a determination that:
a) the Project is likely to cause no Damage to the Environment; and
b) ample and unconstrained infrastructure facilities and services exist to support the Project
(in the case of a Project undertaken by an Agency or involving Financial Assistance) or
those aspects of the Project within subject matter jurisdiction (in the case of a Project
undertaken by a Person and requiring one or more Permits or involving a Land Transfer
but not involving Financial Assistance).
Findings
Based on the EENF and consultation with State Agencies, I find that the Waiver request has
merit, and that the Proponent has demonstrated that the project meets the standards for all waivers at 301
CMR 11.11(1). I find that strict compliance with the requirement to prepare a mandatory EIR for the
project would result in undue hardship by delaying completion of an environmental restoration project.
In addition, the preparation of an EIR would not serve to avoid or minimize Damage to the
Environment, as an adequate alternatives analysis has been completed, and comment letters on the
EENF did not identify alternatives or mitigation measures that warrant additional analysis through an
EIR. Although the project exceeds the mandatory EIR thresholds related to the alteration of one or more
acres of BVW, the alteration of 10 or more acres of any other wetlands, and structural alteration of an
existing dam that causes any decrease in impoundment Capacity, the project is proposed as an
environmental restoration project. The EENF included an alternatives analysis, identified environmental
impacts, and committed to measures to minimize and mitigate unavoidable impacts. In addition, the
project will restore wetland hydrology and function; improve fish passage; improve water quality by
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reducing the nutrient loading from past agricultural use and increased tidal exchange; and establish a
self-sustaining ecosystem which is dynamic and responsive to climate change. Notably, the project will
accomplish its goals through creating a new meandering, sinuous stream channel; roughening the bog
surfaces via breaking up the sanded surface and mixing it with underlying native peat deposits; creating
microtopography; filling internal and perimeter irrigation ditches; and removal of the existing dam and
earthen berms to significantly increase hydrologic and habitat connectivity between the restored bogs
and adjacent vegetated wetlands and reservoirs. State Agency comments on the EENF noted that the
permitting process will support resolution of any remaining issues.
In addition, in accordance with 301 CMR 11.11(3), my finding that strict compliance with the
requirement to prepare an EIR would not serve to avoid or minimize Damage to the Environment is
based on my determination that:
a) The project is not likely to cause Damage to the Environment. While the project exceeds
mandatory EIR thresholds, it will employ the following measures to ensure that the impacts of
the project are avoided, minimized, and mitigated, such that it is not likely that Damage to the
Environment, as defined in M.G.L. c. 30, § 61 and MEPA regulations, will occur:
• Obtaining a Section 401 WQC from MassDEP for excavation and fill. The project will be
designed and constructed in a manner consistent with applicable Water Quality
Regulations (314 CMR 9.00);
• Obtaining a Chapter 91 License from MassDEP. The project will be designed and
constructed in a manner consistent with applicable Waterways Regulations (310 CMR
9.00);
• Obtaining an Order of Conditions from the Yarmouth Conservation Commission;
• Obtaining a NPDES Stormwater Permit from the U.S. EPA;
• Implementation of erosion and sedimentation and slope stabilization controls;
• Proper stabilization of sediment following cut and fill activities, including seeding with a
native seed mix and planting of larger shrubs or trees;
• Coordinating restoration activities with the replacement of the Weir Road culvert;
• Utilizing existing site access paths and designating construction staging areas
immediately adjacent to Weir Road and away from environmentally sensitive areas; and
• Restoration of approximately 21.7 acres of degraded wetlands.
The Yarmouth Conservation Commission will review the project to determine its consistency
with the Wetlands Protection Act (WPA), the Wetlands Regulations (310 CMR 10.00), and associated
performance standards, and local bylaws. MassDEP will review the project to determine its consistency
with the 401 WQC regulations (314 CMR 9.00) and the Waterways regulations (310 CMR 9.00).
Additionally, the project may also require Federal Consistency Concurrence from CZM. The Proponent
should continue to work collaboratively with project partners and state agencies during the permitting
process to further refine mitigation measures.
b) Ample and unconstrained infrastructure facilities and services exist to support those aspects of
the project within subject matter jurisdiction:
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• The project site is easily accessible from Weir Road, along existing bog access roads, and
construction staging can be contained within the project site.
• The construction staging area will be converted into six off-street parking spaces which is
anticipated to consist of permeable materials with limited infrastructure support.
• The Weir Road culvert will be replaced in its entirety in coordination with state, local,
and federal partners.
Conclusion
Based on these findings, I have determined that the Waiver request has merit, and issued a Draft
Record of Decision (DROD), which was published in the Environmental Monitor on March 8, 2023, in
accordance with 301 CMR 11.15(2), which began the public comment period. The public comment
period lasted for 14 days and ended on March 22, 2023. No comments were received. Accordingly, I
hereby grant a Waiver from the requirement to prepare a mandatory EIR.
March 27, 2023 _________________________
Date Rebecca L. Tepper
Comments received: None
RLT/NJM/njm