HomeMy WebLinkAboutAtt 8_MEPA comment letters
Maura T. Healey
Governor
Kimberley Driscoll
Lieutenant Governor
Rebecca L. Tepper
Secretary
Gary Moran
Acting Commissioner
This information is available in alternate format. Contact Glynis Bugg at 617-348-4040.
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MassDEP Website: www.mass.gov/dep
Printed on Recycled Paper
February 21, 2023
Rebecca L. Tepper,
Secretary of Energy and Environmental
Executive Office of Energy and
Environmental Affairs
RE: EENF Review. EOEEA 16659
YARMOUTH. Bass River Headwaters
Restoration. Weir Road passes through the
Project just west of 142 Weir Road
100 Cambridge Street, Suite 900
ATTN: MEPA Office
Boston, MA 02114
Dear Secretary Tepper,
The Southeast Regional Office of the Department of Environmental Protection (MassDEP) has
reviewed the Expanded Environmental Notification Form (EENF) for the Bass River Headwaters
Restoration. Weir Road passes through the Project just west of 142 Weir Road, Yarmouth,
Massachusetts (EOEEA # 16659). The Project Proponent provides the following information for
the Project:
The Friends of the Bass River and the Town of Yarmouth are looking to return the bogs to ecologically
functioning wetlands, restore passage for aquatic organisms, and improve stream crossing infrastructure to
meet the state stream crossing standards.
Specific goals of the Bass Headwaters Restoration Project (the Project) are to:
• Improve fish passage, with a focus on herring;
• Improve water quality through nutrient attenuation and tidal exchange;
• Enhance habitat for aquatic organisms; and
• Enhance public recreational opportunities.
The project scope of work includes removing and/or replacing barriers to flow and aquatic organism passage
throughout the former bogs within the Project Site. Other elements of work are realigning the stream to
increase sinuosity and create habitat variability; filling existing ditches and creating microtopography to help
restore historical hydrologic and vegetative conditions; creating a new pond feature; and improving
pedestrian access.
EEA No. 16659 February 21, 2023
2
Bureau of Water Resources (BWR) Comments
Wetlands. The Project Proponent acknowledges the need to submit a 401 Water Quality
Certification (WQC), Chapter 91 License Application, and a Notice of Intent (NOI). The EENF, on
page 16, indicates that the site is not subject to a Wetlands Restriction Order. Prior to the filing of
the NOI this statement should be confirmed by a title search and thorough review of the Wetlands
Restriction Maps.
Ecological Restoration Projects permitted by a Restoration Order of Conditions may result in the
temporary or permanent loss of Resource Areas and/or the conversion of one Resource Area to
another when such loss and/or conversion is necessary to the achievement of the Project's
ecological restoration goals. In the Ecological Restoration NOI, the Project Proponent should
clearly describe how the conversion of the resource areas is necessary to achieve the Project’s
ecological restoration goals.
The Project Proponent is reminded that 310 CMR 10.11 to 310 CMR 10.13 require specific actions
be taken before a NOI for an Ecological Restoration Project is submitted and establish certain
eligibility criteria for each category. It is important that all those procedural actions be taken, and
the eligibility criteria be addressed in the NOI. In the event that a Request for Action by the
Department is made, 310 CMR 10.05(7)(c) states, in part, “[W]hen the Order is a Restoration Order
of Conditions, the basis of the request is limited to claim(s) that the applicant did not comply with
one or more of the applicable procedural requirements of 310 CMR 10.05 and/or the conservation
commission issued the Restoration Order of Conditions in contravention of one or more of the
applicable eligibility criteria. The request for Department action shall specifically identify any
procedural requirements and eligibility criteria that the person requesting Department action alleges
have not been met.”
The Town is seeking a waiver of the mandatory Environmental Impact Report for the Project per
the MEPA regulations at 301 CMR 11.11. The Wetlands Program supports this request and finds
the EENF addresses the environmental impacts and benefits associated with this ecological
restoration project.
Waterways. The SERO Waterways Program offers the following comments on this ENF:
The Project is an Activity Subject to Jurisdiction, in accordance with 310 CMR 9.05, and
will require the submittal of a Chapter 91 License Application (BRP WW01). The Project
will also require the submittal of a 401 WQC.
Based on the information contained in the EENF, the Waterways Program has determined
that the proposed activities would be classified as a water-dependent use Project pursuant to
the Waterways Regulations at 310 CMR 9.12.
A valid Order of Conditions or Superseding Order of Conditions approving the Project will be
required prior to the Waterways Program acting on the Chapter 91 License Application.
Bureau of Waste Site Cleanup (BWSC) Comments
Based upon the information provided, the Bureau of Waste Site Cleanup (BWSC) searched its
databases for disposal sites and release notifications that have occurred at or might impact the
proposed Project area. A disposal site is a location where there has been a release to the
EEA No. 16659 February 21, 2023
3
environment of oil and/or hazardous material that is regulated under M.G.L. c. 21E, and the
Massachusetts Contingency Plan [MCP – 310 CMR 40.0000].
There are no listed MCP disposal sites located at or in the vicinity of the site that would appear to
impact the proposed Project area. Interested parties may view a map showing the location of BWSC
disposal sites using the MassGIS data viewer at MassMapper. Under the Available Data Layers
listed on the right sidebar, select “Regulated Areas”, and then “DEP Tier Classified 21E
Sites”. MCP reports and the compliance status of specific disposal sites may be viewed using the
BWSC Waste Sites/Reportable Release Lookup
at: https://eeaonline.eea.state.ma.us/portal#!/search/wastesite
The Project Proponent is advised that if oil and/or hazardous material are identified during the
implementation of this Project, notification pursuant to the Massachusetts Contingency Plan (310
CMR 40.0000) must be made to MassDEP, if necessary. A Licensed Site Professional (LSP) should
be retained to determine if notification is required and, if need be, to render appropriate
opinions. The LSP may evaluate whether risk reduction measures are necessary if contamination is
present. The BWSC may be contacted for guidance if questions arise regarding cleanup.
Spills Prevention and Control. A spills contingency plan addressing prevention and management of
potential releases of oil and/or hazardous materials from pre- and post-construction activities should
be presented to workers at the site and enforced. The plan should include but not be limited to,
refueling of machinery, storage of fuels, and potential on-site activity releases.
Bureau of Air and Waste (BAW) Comments
Air Quality. Construction and operation activities shall not cause or contribute to a condition of air
pollution due to dust, odor or noise. To determine the appropriate requirements please refer to:
310 CMR 7.09 Dust, Odor, Construction, and Demolition
310 CMR 7.10 Noise
Construction-Related Measures
MassDEP requests that all non-road diesel equipment rated 50 horsepower or greater meet EPA’s
Tier 4 emission limits, which are the most stringent emission standards currently available for off-
road engines. If a piece of equipment is not available in the Tier 4 configuration, then the Proponent
should use construction equipment that has been retrofitted with appropriate emissions reduction
equipment. Emission reduction equipment includes EPA-verified, CARB-verified, or MassDEP-
approved diesel oxidation catalysts (DOCs) or Diesel Particulate Filters (DPFs). The Proponent
should maintain a list of the engines, their emission tiers, and, if applicable, the best available
control technology installed on each piece of equipment on file for Departmental review.
Massachusetts Idling Regulation
The Project Proponent reports: “Construction equipment will be turned off when not being used
during work hours and will be turned off at the end of each workday.”
MassDEP reminds the Proponent that unnecessary idling (i.e., in excess of five minutes), with
limited exception, is not permitted during the construction and operations phase of the Project
(Section 7.11 of 310 CMR 7.00). With regard to construction period activity, typical methods of
reducing idling include driver training, periodic inspections by site supervisors, and posting
signage. In addition, to ensure compliance with this regulation once the Project is occupied,
MassDEP requests that the Proponent install permanent signs limiting idling to five minutes or less
on-site.
EEA No. 16659 February 21, 2023
4
Solid Waste Management. The Project Proponent reports:
“The concrete fishway will be completely removed, and the contractor will dispose of the
concrete in an approved off-site location.
“Sediment removed for the creation of the new channel and floodplain will be used to fill in the
main and side ditches. Concrete from the fish ladder removal will be disposed of at off-site state
approved facility.”
The Project Proponent is advised of the following requirements:
1. Compliance with Waste Ban Regulations: Waste materials discovered during construction that
are determined to be solid waste (e.g., construction and demolition waste) and/or recyclable
material (e.g., metal, asphalt, brick, and concrete) shall be disposed, recycled, and/or otherwise
handled in accordance with the Solid Waste Regulations including 310 CMR 19.017: Waste
Bans. Waste Ban regulations prohibit the disposal, transfer for disposal, or contracting for
disposal of certain hazardous, recyclable, or compostable items at solid waste facilities in
Massachusetts, including, but not limited to, metal, wood, asphalt pavement, brick, concrete,
and clean gypsum wallboard. The goals of the waste bans are to: promote reuse, waste
reduction, or recycling; reduce the adverse impacts of solid waste management on the
environment; conserve capacity at existing solid waste disposal facilities; minimize the need for
construction of new solid waste disposal facilities; and support the recycling industry by
ensuring that large volumes of material are available on a consistent basis. Further guidance
can be found at: https://www.mass.gov/guides/massdep-waste-disposal-bans .
MassDEP recommends the Proponent consider source separation or separating different recyclable
materials at the job site. Source separation may lead to higher recycling rates and lower recycling
costs. Further guidance can be found at: https://recyclingworksma.com/construction-demolition-
materials-guidance/
For more information on how to prevent banned materials from entering the waste stream the
Proponent should contact the RecyclingWorks in Massachusetts program at (888) 254-5525 or
via email at info@recyclingworksma.com. RecyclingWorks in Massachusetts also provides a
website that includes a searchable database of recycling service providers, available at
http://www.recyclingworksma.com.
2. Clean wood: As defined in 310 CMR 16.02, clean wood means “discarded material consisting
of trees, stumps and brush, including but limited to sawdust, chips, shavings, bark, and new or
used lumber”…etc. Clean wood does not include wood from commingled construction and
demolition waste, engineered wood products, and wood containing or likely to contain asbestos,
chemical preservatives, or paints, stains or other coatings, or adhesives. The Proponent should
be aware that wood is not allowed to be buried or disposed of at the Site pursuant to 310 CMR
16.00 & 310 CMR 19.000 unless otherwise approved by MassDEP. Clean wood may be
handled in accordance with 310 CMR 16.03(2)(c)7 which allows for the on-site processing (i.e.,
chipping) of wood for use at the Site (i.e., use as landscaping material) and/or the wood to be
transported to a permitted facility (i.e., wood waste reclamation facility) or other facility that is
permitted to accept and process wood.
If you have any questions regarding the Solid Waste Management Program comments above, please
contact Elza Bystrom at Elza.Bystrom@mass.gov or Mark Dakers at Mark.Dakers@mass.gov.
EEA No. 16659 February 21, 2023
5
Proposed s.61 Findings
The “Certificate of the Secretary of Energy and Environmental Affairs on the Expanded
Environmental Notification Form” may indicate that this Project requires further MEPA review and
the preparation of an Environmental Impact Report. Pursuant to MEPA Regulations 301 CMR
11.12(5)(d), the Proponent will prepare Proposed Section 61 Findings to be included in the EIR in a
separate chapter updating and summarizing proposed mitigation measures. In accordance with 301
CMR 11.07(6)(k), this chapter should also include separate updated draft Section 61 Findings for
each State agency that will issue permits for the Project. The draft Section 61 Findings should
contain clear commitments to implement mitigation measures, estimate the individual costs of each
proposed measure, identify the parties responsible for implementation, and contain a schedule for
implementation.
Other Comments/Guidance
The MassDEP Southeast Regional Office appreciates the opportunity to comment on this EENF. If
you have any questions regarding these comments, please contact George Zoto at
George.Zoto@mass.gov or Jonathan Hobill at Jonathan.Hobill@massgov.
Very truly yours,
Jonathan E. Hobill,
Regional Engineer,
Bureau of Water Resources
JH/GZ
Cc: DEP/SERO
ATTN: Millie Garcia-Serrano, Regional Director
Gerard Martin, Deputy Regional Director, BWR
John Handrahan, Deputy Regional Director, BWSC
Seth Pickering, Deputy Regional Director, BAW
Jennifer Viveiros, Deputy Regional Director, ADMIN
Dan Gilmore, Chief, Wetlands and Waterways, BWR
Andrew Poyant, Wetlands, BWR
Brendan Mullaney, Waterways, BWR
Mark Dakers, Chief, Solid Waste, BAW
Elza Bystrom, Solid Waste, BAW
Jennifer Wharff, Site Management, BWSC
MEMORANDUM
TO: Rebecca L. Tepper, Secretary, EEA
ATTN: Nicholas Moreno, MEPA Office
FROM: Lisa Berry Engler, Director, CZM
DATE: February 14, 2023
RE: EEA-16659, Bass River Headwaters Restoration, Yarmouth
The Massachusetts Office of Coastal Zone Management (CZM) has completed review of the
above-referenced Expanded Environmental Notification Form, noticed in the Environmental Monitor
dated January 25, 2023, and offers the following comments.
Project Description
The project site is owned by the Town of Yarmouth and is located south of Route 6A, north
of Route 6, east of Union Street, and west of Mill Pond. The area includes approximately 57 acres of
retired cranberry bogs and the headwaters of the Bass River historically known as Hamblin’s Brook.
The proposed work includes removing and/or replacing barriers to flow and aquatic organism
passage throughout the former bogs within the site. Other elements of work include realigning the
stream to increase sinuosity and create habitat variability, filling existing ditches and creating
microtopography to help restore historical hydrologic and vegetative conditions, creating a new
pond feature, and improving pedestrian access.
This project exceeds the review thresholds for Wetlands, Waterways, and Tidelands under
301 CMR 11.03(3)(a), and, as such, triggers a mandatory Environmental Impact Report (EIR).
Under 301 CMR 11.11, the Friends of Bass River (project proponent) requests a waiver of this EIR.
Project partners include the Town of Yarmouth, Friends of Bass River, the Massachusetts
Department of Ecological Restoration (DER), and the US Environmental Protection Agency
(EPA). DER and EPA have contributed technical assistance and funds towards the project design.
Project Comments
This ecological restoration of former cranberry bogs will result in improvements to the
quality and diversity of wetland and benthic habitats within the Hamblin’s Brook watershed and
throughout the greater Bass River estuary. The temporary and permanent alterations to
approximately 30 acres of cranberry bogs and associated water structures are necessary to redesign
the highly altered cranberry bogs and river back to a more natural ecosystem. The proponent should
continue to evaluate the connecting culverts as a feasible method to facilitate tidal influence into the
restoration area and support future marsh migration. The town should also continue to consult with
the DER and EPA during the required local, state, and federal review process.
The Town is seeking a waiver of the mandatory Environmental Impact Report for the
project per the MEPA regulations at 301 CMR 11.11. CZM supports this request and finds the
EENF addresses the environmental impacts and benefits associated with this ecological restoration
project.
Federal Consistency Review
The proposed project may be subject to CZM federal consistency review, and if so, must be
found to be consistent with CZM’s enforceable program policies. For further information on this
process, please contact Robert Boeri, Project Review Coordinator, at robert.boeri@mass.gov, or
visit the CZM website at www.mass.gov/federal-consistency-review-program.
LBE/sm
cc:
Nick Nelson, Inter-Fluve, Inc.
Friends of the Bass River
Daniel Gilmore, DEP
Stephen McKenna, CZM
Cape Cod Commission Comment Letter, EENF, Bass River Headwaters, Yarmouth
February 2023
Page 1 of 2
Via Email
February 24, 2023
Rebecca Tepper, Secretary of Energy and Environmental Affairs
Executive Office of Energy and Environmental Affairs
Attn: MEPA Office, Nicholas Moreno, MEPA Analyst
100 Cambridge Street, Suite 900, Boston, MA 02114
Re: Expanded Environmental Notification Form
EEA No. 16659 (Cape Cod Commission File No. 23003)
Bass River Headwaters Restoration, Yarmouth
Dear Secretary Tepper:
Thank you for the opportunity to provide comments on the above-referenced EENF. Cape Cod
Commission staff support the proposed Bass River Headwater restoration project (“the
Project”) and request for waiver of mandatory Environmental Impact Report (“EIR”).
The Applicant seeks to restore an abandoned cranberry bog on town-owned property within
the Upper Bass River. Based on the EENF and supporting materials, Commission staff believe
the Project is likely to provide ecological benefits consistent with the natural resources goals
and objectives of the Cape Cod Commission’s Regional Policy Plan (“RPP”). Specifically, the
Project will restore stream and wetland function, improve water quality, remove barriers to fish
passage, and enhance aquatic and terrestrial habitat. Improvements to the trail network within
Project boundaries will increase public recreational opportunities. Proposed construction best
management practices will minimize temporary adverse environmental impacts, which
Commission staff suggest are far outweighed by the long-term environmental benefits of the
restoration work. The Applicant and their consultants conducted ample studies, monitoring,
modeling, and community engagement to inform the Project’s design. The Applicant plans to
work with volunteers and local schools on post-construction monitoring to provide community-
wide education and ensure successful implementation of the restoration goals.
Cape Cod Commission Comment Letter, EENF, Bass River Headwaters, Yarmouth
February 2023
Page 2 of 2
As described in the EENF, the Project will result in significant environmental benefits and
appears consistent with RPP goals and objectives. Should you determine that an EIR is required,
the Project will be subject to mandatory Development of Regional Impact review by the Cape
Cod Commission pursuant to § 12(i) of the Cape Cod Commission Act.
Thank you for the opportunity to provide comments on the Project. Please reach out with any
questions.
Sincerely,
Kristy Senatori
Executive Director
Cc: Project File
Nick Nelson, Inter-Fluve
Robert L. Whritenour, Yarmouth Town Administrator, via email
Yarmouth Cape Cod Commission Representative, via email
Cape Cod Commission Chair, via email
Cape Cod Commission Committee on Planning and Regulation Chair, via email
The Commonwealth of Massachusetts
Division of Marine Fisheries
(617) 626-1520 | www.mass.gov/marinefisheries
MAURA HEALEY KIMBERLEY DRISCOLL REBECCA TEPPER RONALD S. AMIDON DANIEL J. MCKIERNAN
Governor Lt. Governor Secretary Commissioner Director
SOUTH COAST FIELD STATION NORTH SHORE FIELD STATION CAT COVE MARINE LABORATORY
836 S. Rodney French Blvd 30 Emerson Avenue 92 Fort Avenue
New Bedford, MA 02744 Gloucester, MA 01930 Salem, MA 01970
February 21, 2023
Secretary Rebecca Tepper
Executive Office of Energy and Environmental Affairs (EEA)
Attn: MEPA Office
Nicholas Moreno, EEA No. 16659
100 Cambridge Street, Suite 900
Boston, MA 02114
Dear Secretary Tepper:
The Division of Marine Fisheries (MA DMF) has reviewed the Expanded Environmental
Notification Form (EENF) for the Friends of Bass River’s Bass River Headwaters Restoration
Project. The project site is a series of retired cranberry bogs and Hamblin’s Brook, which is the
headwaters for the Bass River in the Town of Yarmouth. The project identifies its primary goals
as improving fish passage, water quality, aquatic habitat, and public recreational opportunities.
Proposed work includes construction of a new channel through the impoundment and retired
cranberry bogs upstream of Weir Road, replacement of the existing Weir Road culvert with a
new culvert that would be 1.2 times the active channel width, removal of other existing flow
control structures, select removal of sand fill, filling of ditches, construction of microtopography,
and addition of native plantings. The project also includes the partial removal of the dam at
Thatcher’s Pond and replacement of the existing fish ladder with a natural channel to allow for
fish passage as well as natural water and sediment flux. The project also propose s to install large
wood logs and rootwads throughout the constructed channel to act as in-stream cover and
habitat. To reduce construction-related impacts, the project proposes to separate the streamflow
from the active construction area by creating a temporary passage for fish. A silt boom will also
be installed downstream of the work area to control turbidity impacts. Silt fences will also be
installed at the downstream end of the sand removal area to limit disturbance to bordering
wetlands. The current plan is based on a 60% Design Report on the proposed designs. Existing
marine fisheries resources and habitat and potential project impacts to those resources are
outlined in the following paragraphs.
The project area includes passage habitat for a variety of diadromous fish species. Specifically,
alewife (Alosa pseudoharengus), American eel (Anguilla rostrata), and white perch (Morone
americana) all use this system at certain life history phases [1]. This system also provides
spawning habitat for alewife and white perch.
MA DMF offers the following comments for your consideration:
• The proposed restoration project will require a MA DMF Fishway Construction Permit.
• MA DMF will continue to provide comments through the state and federal permitting
process as the Basis of Design (BOD) progresses beyond the existing 60% BOD phase to
a more finalized version of the project scope.
• MA DMF recommends a time of year (TOY) restriction on in-water construction
activities from March 15 to June 30 to protect eels during the spring glass eel
immigration and alewives during the adult migration, spawning, egg incubation and
juvenile development phases [2]. In-water work should be able to proceed during the
corresponding fall TOY period for these species (September 1 to November 15) provided
that the silt control measures and avoidance of work in the main channel described in the
EENF are maintained through the permitting process.
Questions regarding this review may be directed to John Logan in our New Bedford office at
john.logan@mass.gov.
Sincerely,
Daniel J. McKiernan
Director
cc: Yarmouth Conservation Commission
Nick Nelson, Inter-Fluve, Inc.
Sabrina Pereira, NMFS
Robert Boeri, CZM
Rachel Croy, Ed Reiner, EPA
Brendan Mullaney, DEP
John Sheppard, Brad Chase, Emma Gallagher, Amanda Davis, DMF
References
1. MA DMF. MassGIS Data: Diadromous Fish. https://www.mass.gov/info -details/massgis-
data-diadromous-fish. Accessed February 8, 2023. 2023.
2. Evans NT, Ford KH, Chase BC, Sheppard J. Recommended Time of Year Restrictions
(TOYs) for Coastal Alteration Projects to Protect Marine Fisheries Resources in
Massachusetts. Massachusetts Division of Marine Fisheries Technical Report, TR -47.
https://www.mass.gov/doc/time-of-year-recommendations-tr-47/download. Accessed
September 29, 2021. 2011.
DM/JL/JS/sd