The Cohasset Conservation Commission’s (ConCom) decision on Cat Dam is being appealed to the Mass Department of Environmental Protection (DEP), ConCom chairman David Farrag announced to his committee last night.
The group, led by Karen Quigley and Steve Brown, is comprised of Thomas Wolf, Marjorie Brown, Susan Playfair, Richard O’Connell, Barbara and Albert Stefan, Lucia and Edward Woods, Cheryl Casey, Jeff Waal, Molly and Jim Frame, Caroline Norgeot, Pat and Bill Baird, Ross Sherbrooke and Tanna Kasperowicz. It takes one abutter or 10 residents to appeal a decision of the ConCom. The above group is comprised of 19 residents, 8 of whom are abutters to Cat Dam.
The Group made the following points in its appeal:
1–It is our contention that the NOI# SE13-1040 does not meet the Wetlands Protection Act Performance Standards or the Massachusetts Water Quality Surface Water Quality Standards and as such is not permitable.
2–We maintain that the NOI prepared by CLE Engineering #SE13-1026 on behalf of the ‘ToC’ is a viable option for DEP consideration.
3–It is our assertion that the composition of the Advisory Committee is inconsistent with the principles for management of public resources and the Public Trust Doctrine.
4–The NOI #SE13-1040 and Order of Conditions address the operation but not the maintenance of the tidal gate. Structural deficiencies have been identified which will require a separate NOI to remedy.
5–While we understand the DEP will consider this appeal only as it relates to the Wetlands Protection Act, we contend that interference by the Cohasset Board of Selectmen (CBoS) at the behest of an abutter’s group disrupted and impeded the hearing process as well as limited the ability of the Commission to fully and independently deliberate. We hold that this interference unduly influenced the Commission’s decision.
In a letter of March 2009, Elizabeth Kouloheras ”…recommends that the Town consider redesigning or reconfiguring the tide gates to increase tidal exchange” and suggests “…a comprehensive plan be considered by the Town to address tidal habitat/saltmarsh restoration in Inner Little Harbor”.
The NOI #SE13-1040 does not comply with this direction from the Chief of the DEP’s Wetlands & Waterways Programs.
Further, as early as 10/15/07 (from the selectmen’s minutes) the BoS voted to ignore its own advisory board, the conservation commission, and the Wetlands act. From the beginning selectmen opted to handle the schedule of the tide gate themselves, ignoring the ConCom.
…“Selectman Dormitzer then moved that the control of Cat Dam be referred back to the neighbors, and reject the suggestion that the Conservation Commission become the manager of the tied gate.”
This is the appeal in its entirety:
To: Massachusetts Department of Environmental Protection Bureau of Resource Protection – Wetlands Southeast Region, 20 Riverside Drive, Lakeville MA 02347
Re: Request for Superseding Order of Conditions – Cohasset Conservation Commission Cat Dam Tide Gate Operations and Maintenance NOI – DEP # SE13-1040
We, the undersigned residents of the Town of Cohasset (hereafter ToC), request the DEP issue a Superseding Order of Conditions for the Order of Conditions issued by the Cohasset Conservation Commission (hereafter CCC) on July 28, 2011, for the Cat Dam Tide Gate Operations and Maintenance NOI #SE13-1040 (hereafter E20 NOI). (E20 is a self constituted subset of the abutters who privately paid for the development of the E20 NOI.)
Requested Outcome: Operation:
We believe a practical goal is to improve the health of Inner Little Harbor (hereafter ILH) so that it is equivalent to the health of the Main Little Harbor. Any operating schedule such as the one described in the E20 NOI that does not significantly increase daily tidal flushing will not accomplish this goal as the Technical Assistance Comments document.
However, one intermediate step that would comply with the Wetlands Protection Act and meet the WPA Performance Standards and MA Water Quality Standards, is to implement the NOI #SE13-1026 (hereafter CLE NOI) recommendation of one gate open at all times. (CLE Engineering is the engineering group hired by the ToC to write the #SE13-1026 NOI.)
There are also other options that have been suggested by recognized environmental experts, such as, removing one or two boards from the top or bottom of the tidal gates. Since ~50% of the volume of ILH is represented by the top foot of water, such a change could greatly increase daily tidal flushing.
In any of the above outcomes, it would be essential to have a monitoring program to evaluate the effectiveness of the management plan in improving the water quality and the environment.
The membership of the Cat Dam Advisory Committee breaks with the precedent of two other tide gate advisory committees in Cohasset: Straits Pond and Jacobs Meadow. These other committees have as members state and federal management agency staff with technical, ecological and permitting experience and the appropriate town employees with operational or jurisdictional authority over the affected resource. We believe the Straits Pond and Jacobs Meadow model for committee composition should be followed.
Any Order of Conditions should contain a maintenance plan and schedule for inspection, repair and maintenance of the structure.
In addition, it would be highly desirable that any future repairs include automated gates. Both Jacobs Meadow and Straits Pond in Cohasset employ such gates that make it far easier to modify any operating schedule based on the results of future monitoring programs.
Please note that unless otherwise noted, all documents referenced herein are part of the official hearing record and, as such, have been provided by the CCC to the DEP. We will provide separately any documentation requested by the DEP.
Summary of points comprising the basis for our appeal. Each of these points is further explained on the following pages.
Based on documentation and other information available to the signers of this appeal, we contend:
1- Standards are not met – The E20 NOI does not meet the Wetlands Protection Act Performance Standards or the Massachusetts Water Quality Surface Water Quality Standards and, as such, should not be permitted. (Pages 3 & 4)
2- Better alternatives are available – The NOI prepared by CLE Engineering #SE13-1026 on behalf of the ToC is a viable, but not the only, option for DEP consideration. (Page 5)
3- The Cat Dam Advisory Committee is composed exclusively of abutters and local residents excluding municipal entities as well as state and federal resource management agency staff – Additionally, a majority of the members are abutters, none of whom have relevant environmental experience. This composition of the Advisory Committee is inconsistent with the principles for management of public resources and the Public Trust Doctrine. (Page 6)
4- Does not address maintenance requirement of the NOI – The E20 NOI deals with the operation but not the maintenance nor the repair of existing structural deficiencies of the tidal gate. (Page 7)
5- There is a pattern of the Cohasset Board of Selectmen (hereafter CBoS) interfering in the hearing process – While we understand the DEP will consider this appeal only as it relates to the Wetlands Protection Act, these actions date back to 2007 and have disrupted and impeded the hearing process, and have limited the ability of the CCC to deliberate fully and independently as the hearing record will suggest. (Pages 8 & 9)
6- Does not comply with DEP recommendations – In her letter of March 2009 to the CCC, Elizabeth Kouloheras of the DEP Lakeville Office recommends that “the Town consider redesigning or reconfiguring the tide gates to increase tidal exchange” and suggests “…a comprehensive plan be considered by the Town to address tidal habitat/saltmarsh restoration in Inner Little Harbor”.
1 – Standards are not met – The E20 NOI does not meet the Wetlands Protection Act Performance Standards or the Massachusetts Water Quality Surface Water Quality Standards and, as such, should not be permitted. The following excerpts are provided to substantiate this contentio
CLE Engineering: Jeff Oakes, letter of October 14, 2010, to the CCC 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. • E20 NOI (#SE13-1040) 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 E20 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.