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HomeMy WebLinkAboutNHESP comment 3.27.2026March 27, 2026 RJ Resorts Beach Resort Owner LLC 444 Madison Ave FL 14 New York, New York 10022 Yarmouth Conservation Commission 1146 Route 28 South Yarmouth Yarmouth, MA 02664 RE: Applicant: RJ Resorts Beach Resort Owner LLC Project Location: 1 South Shore Drive (Red Jacket Resort) Project Description: Mechanical beach raking and nourishment DEP Wetlands File No.: 083-2522 NHESP File No.: 23-4192 Heritage Hub Form ID: RC-98245 Dear Commissioners and Applicant: The Natural Heritage & Endangered Species Program of the Massachusetts Division of Fisheries & Wildlife (the “Division”) received a Notice of Intent with site plans titled "Proposed Beach Management: Cleaning and Sediment Nourishment" (dated 2-1-2026, one sheet, prepared by Cape Cod Engineering , INC) 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 the "Beach Management Plan –Red Jacket Resort Beach Management Plan - 1 South Shore Drive, South Yarmouth – March 12, 2026" and supporting documentation for review pursuant to the MA Endangered Species Act Regulations (321 CMR 10.18). PROJECT DESCRIPTION "the Project": The Project, as currently proposed, includes the implementation of beach management activities at the Red Jacket Resort beach property, as well as the placement of compatible sand nourishment. The Division reviewed the Beach Management Plan (BMP) as these beaches support state-listed species and are located within Priority Habitat and Estimated Habitat according to the Natural Heritage Atlas. STATE-LISTED SPECIES The Division has determined that this Project, as currently proposed, will occur within the Priority Habitat and Estimated Habitat of the following species: Scientific Name Common Name Taxonomic Group State Status 23-4192NHESP No.Page 2 of 5 Issued March 27, 2026 ThreatenedBirdPiping PloverCharadrius melodus State-listed species and their habitats are protected in accordance with the MESA and state -listed rare wildlife habitats are protected pursuant to the rare wetland wildlife provisions of the WPA. The Piping Plover is also protected as a Threatened species pursuant to the U.S. Endangered Species Act (ESA, 50 CFR 17.11). In Massachusetts, generally, these coastal birds can be found from April – September . Piping Plovers are ground-nesting shorebirds that will establish nests 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. Piping Plovers and their nests are particularly vulnerable to predators, unleashed pets, and human disturbance. After hatching, Piping Plover chicks are not capable of flight for 25-30 days. During this period unfledged plover chicks will often range widely to either forage or seek shelter. 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 Plan (BMP) for the Red Jacket Resort beach property demonstrate incorporation of the Guidelines associated with the operation and management of these beaches. MA WETLANDS PROTECTION ACT (WPA) and 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 a review of the information provided and the information that is contained in our database, the Division has determined 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 Devon Harrington, Endangered Species Review Biologist, at devon.a.harrington@mass.gov, or 508-389-6354. 23-4192NHESP No.Page 3 of 5 Issued March 27, 2026 Sincerely, Jesse Leddick Assistant Director cc: Attachment: List of Conditions 23-4192NHESP No.Page 4 of 5 Issued March 27, 2026 List of Conditions Applicant: RJ Resorts Beach Resort Owner LLC Project Location: 1 South Shore Drive (Red Jacket Resort) Project Description: Mechanical beach raking and nourishment NHESP File No.: 23-4192 Heritage Hub Form ID: RC-98245 Approved Plan: Proposed Beach Management: Cleaning and Sediment Nourishment Plan date: 2-1-2026, one sheet, prepared by Cape Cod Engineering , INC 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.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 Red Jacket Resort Beach property . 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. Prior to April 1st, 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) must 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 unfledged chicks, vehicles must be guided by a qualified shorebird monitor who has first determined the 23-4192NHESP No.Page 5 of 5 Issued March 27, 2026 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.Beach Nourishment: Beach nourishment and associated activities (e.g., staging, grading and equipment access) shall not occur during the period April 1 – August 31, to protect breeding shorebird species. a. Nourishment Slope: As proposed, all nourishment shall have a maximum slope of 10H:1V. b. Plantings & Sand Fence. Vegetation shall not be planted, and sand fencing shall not be erected in areas of beach nourishment, unless otherwise approved in writing by the Division. 6.Fireworks: Fireworks should be prohibited on beaches where plovers or terns nest from April 1 to August 31 per the Guidelines, unless otherwise approved by the Division and in accordance with the USFWS GUIDELINES FOR MANAGING FIREWORKS IN THE VICINITY OF PIPING PLOVERS AND SEABEACH AMARANTH ON THE U.S. ATLANTIC COAST (1997) 7.Kites & Drones: Kite flying & drones should be prohibited within 200 yards of nesting or territorial adult or unfledged piping plovers or terns from April 1 to August 31 per the Guidelines. 8.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. 9.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.