At the July 19 Conservation Commission meeting, Acting Town Manager, Michael Milanoski, presented an “update” which in reality was a request for ConCom to support his recommendation to the Board of Selectmen. That recommendation being that due to the potential cost of threatened litigation from members of the E-20 group and abutters sympathetic to their position, and the monies already expended by the Town on this issue, that the Town take no further action in the matter of Cat Dam.
During the discussion, newly elected Conservation Chair, Jack Creighton, asked the members of the appellate group if they would “compromise by withdrawing their appeal to DEP for a Superceding Order of Conditions.”
The following is the appellate group’s response stating they respectfully decline for 3 reasons and includes excerpts from technical comments provided to substantiate their position.
July 25, 2012
Mr. Michael Milanoski, Acting Town Manager
Mr. Jack Creighton, Conservation Commission Chair
41 Highland Avenue
Cohasset MA 02025
In response to your request at the Conservation Commission meeting of last Thursday to compromise by withdrawing our appeal to DEP in regard to the Commission’s Order of Conditions for Cat Dam, we decline for the following three reasons:
1) The proposed ‘compromise’ cannot be deemed as such by any reasonable person since there is not mutual concession or modification – the very definition of compromise. A withdrawal would simply support the E-20 NOI. The aim of the Inner Little Harbor project is to propose a method that improves the ecological health of ILH. All parties have expressed that they agree with this. The Order of Conditions based on the E-20 NOI does not do this. This is evidenced by the technical comments from various agencies that are bound to enforce the relevant statutes. While we are willing to compromise on how we can improve the health of ILH, we cannot accept the abandonment of this stated goal as a compromise.
We filed the appeal because the expert opinions of seven independent environmental agencies (EPA, NOAA, US Fish and Wildlife Service, CZM, Mass Bays National Estuary Program, MA Division of Ecological Restoration, and MA Division of Marine Fisheries), as well as the Town hired environmental engineer, state that the E-20 NOI does not meet the Wetlands Protection Act Performance Standards or the Massachusetts Water Quality Standards.
The E-20 NOI may be even more harmful than the status quo because it introduces additional “…unnatural tidal dynamics within ILH that force extreme fluctuations, or ‘swings’, in the system’s chemical, physical, and biological conditions…” (Hunt Durey – see further detail below)
The following excerpts, from technical comments received by the Commission during the permitting phase, are provided to substantiate this appeal.
CLE Engineering: Jeff Oakes, letter of October 14, 2010, to the Cohasset Conservation Commission
The practice of opening all three gates for some period of time to be followed by closure of all three gates is not in compliance with the performance standards of the Wetlands Protection Act or the Cohasset Wetland Protection By Law and Regulations and will not help ILH meet the Massachusetts Water Quality Standards.
CZM: Jason Burtner, Technical Assistance Comments on the E20 NOI
• The hydrologic review provided in NOI appears to mischaracterize the frequency and extent of tidal exchange in ILH and the function of the tide gate as it relates to this exchange.
• The NOI and associated materials presented by the proponent appears to provide an inaccurate and incomplete characterization of the water quality, habitat, and ecosystem as it pertains to the WPA jurisdictional resource areas and performance standards and the Massachusetts Surface Water Quality Standards.
• The tide gate operation as described in NOI does not appear to be consistent with the WPA because it does not provide adequate documentation demonstrating that the proposed project will meet the performance standards and/or limited project provisions of the WPA. As currently proposed, the warmer season portion of Tide Gate Operations and Maintenance Plan does not appear to comply with the WPA because it will result in salt marsh and other resource area alterations that will likely have a net negative impact on the interests of the WPA.
• The NOI does not provide adequate information for the Commission to determine whether the work proposed to repair the gate and related infrastructure meets WPA performance standards.
Mass Bays National Estuary Program: Sara Grady, PhD, SS Regional Coordinator,
Technical Assistance Comments on the E20 NOI
For the greatest biological function and health, a connection with Little Harbor and its tidal fluctuations should be maintained to the greatest extent possible and in a manner that provides flushing to the system on a consistent, daily basis. The proposed NOI is not going to result in this flushing, especially during the time of the year when it is most crucial.
Division of Marine Fisheries: John Logan, Fisheries Habitat Specialist,
Technical Assistance Comments on the E20 NOI
• The brief periods of unrestricted tidal exchange (four days per month) proposed for the remainder of the year will be inadequate for natural exchange of biological communities.
• The operation schedule proposed in the most recent NOI will promote further eutrophication of ILH while limiting natural movements of shellfish larvae and fish between these embayments.
• The proposed operation schedule, with restricted tidal exchange from April through November, occurs during the peak period of biological activity in the region.
US Fish & Wildlife Service: Eric Derleth. Technical Assistance Comments on the E20 NOI
…the proposal also includes the twice per month opening of the tide gates during the other 8 months of the year that likely would adversely affect water quality, fish passage and migratory bird habitat by impounding water in Inner Little Harbor on the outgoing tides.
EPA: Ed Reiner, Senior Wetland Scientist, Technical Assistance Comments on the E20 NOI
• From our review, EPA believes that the E20 Group has misinterpreted the relevant water quality data as it pertains to Inner Little Harbor and the proposed tide gate operation. We believe water quality will be improved by greater daily tidal exchange.
• EPA does not support the current proposed NOI tide gate operation plan.
MA Division of Ecological Restoration: Hunt Durey, Acting Deputy Director,
Technical Assistance Comments on the E20 NOI
• However, due to the winter-season-only time frame of this proposed increase, the benefits it would generate are unlikely to significantly reduce the impairments to the ILH system.
• The very limited and intermittent nature of warmer season tidal exchange proposed under this operation protocol is unlikely to improve – and, in fact, is likely to further degrade – the ecological condition of ILH.
• …the most important driver of ecological processes and conditions within ILH and all other estuarine systems is tidal influence …. Both the existing and proposed tide gate operation protocols for the warmer months result in very unnatural tidal dynamics within ILH that force extreme fluctuations, or “swings”, in the system’s chemical, physical, and biological conditions.
These swings impede the system’s ability to maintain naturally balanced ecological dynamics (e.g., like Little Harbor) and are a major reason why ILH does not support healthy estuarine conditions and fish and wildlife habitats. Because the current NOI proposes to double these “swing” events from once to twice per month, and because these events would likely cause net negative alterations to the wetland resource areas present, DER believes the proposed warmer season gate operation protocol does not meet the performance standards of the Wetlands Protection Act and should not be permitted as a salt marsh restoration project.
• From 2009 comments: In summary, tidal elevations measured at the Nichols Road (Cat) Dam site for several studies provide
consistent empirical documentation of the ILH tidal dynamics. The function of the tides gates and the tidal restriction/impoundment they create when closed have been evaluated and determined to be significant factors in the impairment of ILH.
NOAA: Eric Hutchins, Fisheries Biologist, Technical Assistance Comments on the E20 NOI Based on my combined academic and field experience focused on tidally restricted coastal wetlands I cannot concur nor support the proposal in the attached NOI to significantly manipulate and minimize natural tide flow to the coastal wetlands upstream of the Cat Dam. I am not aware of any other tide restriction project in the Gulf of Maine where substantiating a case where the level of daily, weekly and seasonal manipulation such as proposed for the Cat Cam site would be environmentally beneficial. I view the proposed management of the tide gate as a clear negative impact to the functions and values of this wetland.
2) The cost of this issue, both financial and practical, to the Town is significant and in every respect created by the Board of Selectmen’s decision to support the interests of a small private interest group (the E-20), over the interests of the Town as a whole, and by the Conservation Commission’s disregard of the technical comments in approving the NOI prepared and paid for by the E-20. (It should also be noted that the Conservation Commission’s membership was altered by the same Board of Selectmen to place members and friends of the E-20 on the commission.)
3) Finally, the E-20 has periodically threatened legal action when before the Board of Selectmen and Conservation Commission. Mr. Milanoski read one of these threats at the meeting this past Thursday. These threats have caused the Town to incur legal costs to seek opinions about E-20 concerns and in preparation for defending the Town against threatened litigation.
In contrast, the appellate group has never engaged a lawyer to argue our position nor threatened to take legal action against the Town. We have advocated for heeding the recommendations of representatives of the federal and state environmental agencies and have to-date simply exercised our right under law to appeal a decision we believe is not in the best interests of the environment and the citizens of Cohasset.
We will continue to do so until the Board of Selectmen exercise their responsibility on behalf of the best interests of all of Cohasset in upholding the laws of Massachusetts, specifically the Wetlands Protection Act and the Massachusetts Water Quality Standards.
Pat and William Baird, 55 Redgate Lane
Marjorie & Stephen Brown, 275 Jerusalem Road
Cheryl Casey, 29 Nichols Road
James Frame, 68 Summer Street
Tanna Kasperowicz, 172 South Main Street
Caroline Norgeot, 75 Aaron River Road
Susan Playfair & Richard O’Connell, 249 Jerusalem Road
Karen Quigley & Tom Wolf, 27 Clay Spring Road
Ross Sherbrooke, 311 Jerusalem Road
Barbara & Albert Stefan, 260 Jerusalem Road
Jeffrey Waal, 36 Old Pasture Road
Lucia & Edward Woods, 231 Jerusalem Road
Mr. Paul Carlson, Board of Selectmen Chair
Cohasset Board of Selectmen
Cohasset Conservation Commission
Paul Shea, Conservation Agent
Greg DeCesare, Wetlands Program DEP
Elizabeth Kouloheras, Section Chief, Southeast Regional Office DEP
Rick Bourre, Assistant Director MEPA