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2022.10.13 Staff Report.pdf October 13 2022 Staff Report To: Conservation Commission From: Sarah LaValley RE: Staff Report, October 13 2022 Commission Meeting 5:30 PM Request for Determination of Applicability to determine if deck construction within riverfront (Mill River) is subject to the Northampton Wetlands Ordinance or MA Wetlands Protection Act. Margo Welch, 220 Main Street, Leeds, Parcel 10-084 Application Overview: The application proposes construction of an 8x10’ deck with stairs on the rear of an existing structure, less than 100 feet from the top of bank of the Mill River, on an area that is currently lawn. The deck will be pressure treated and elevated on sonotubes. Consistency with the Wetlands Protection Act and Northampton Wetlands Ordinance, Staff Recommendation: The work is within 50 feet of the bank, and as such is too close to qualify as a 10.02(2)(b)(1) minor activity “conversion of lawn to uses accessory to residential structures such as decks” project. Work is located on a corner of the home at an L, and will not extend degraded area farther into the riverfront, but will create 90 square feet of additional , but will also be elevated and unenclosed. The Commission should discuss details and construction plans with the applicant, including spacing between boards to allow for light and water flow, the underlying surface, and . If the Commission agrees that the work will not have a negative impact on the resource, issue a negative determination by checking box 2 to indicate that the work is within an area subject to protection but will not remove, dredge, fill, or alter. If PT boards will be cut onsite, a requirement should be added that all shavings be captured and disposed of. 5:40 PM Request for Determination of Applicability to determine if house construction within riverfront (Mill River) is subject to the Northampton Wetlands Ordinance or MA Wetlands Protection Act. Allen Guiel, 99 Water St Leeds, Parcel 10D-040. Application Overview: The application proposes construction of a house approximately 180 feet from the bank of the Mill River, outside the 100-year floodplain. A house had been located on the parcel, but the structure burned and was razed in 2013. The Commission issued a negative determination for a very similar proposal in 2014, but the house was never constructed. October 13 2022 Staff Report 2 Consistency with the WPA and Northampton Wetlands Ordinance It is possible that the work could meet the performance standards for redevelopment in the Riverfront Area, but a description of how the work will improve existing conditions was not provided. The Wetlands Ordinance does not create standards stricter than those contained in the Rivers Protection Act for this project, since it is outside the 100-foot buffer zone to bank. Staff Recommendations: The proposed work will not be located closer to the river than existing disturbed conditions, and is separated from the river by a house and paved public road. The house should meet the RFA standards contained in the Rivers Protection Act. It appears that construction of the house completely outside the RFA would be possible on the site, but would result in the removal of mature trees and other vegetation within the riverfront. The Commission should confirm this with the applicant. A Notice of Intent could be required to allow for more detailed review of the proposal, but due to the distance from the resource and the site’s existing conditions, the work seems unlikely to create any new alteration. A negative determination can be issued by checking box 2, to indicate that the work is within an area subject to protection, but will not remove, dredge, fill or alter. Standard conditions should be added, as well as a condition requiring that detailed plans for the house be submitted to the Commission prior to the preconstruction meeting. If the plans do not conform to the conceptual plan contained in the application, staff require submission of an additional RDA or NOI. 5:50 PM Notice of Intent for remediation of contaminated soil and bank stabilization; Proposed work to occur within bank, riverfront, land under water, & bordering land subject to flooding (Mill River), and buffer zone to resource areas. Cutlery Building Assoc, 320-360 Riverside Drive, Parcel 30A-77. Application Overview: The application proposes activities related to contaminated soil at the former site of the Cutlery Factory raceway. Work includes excavation and compiling of impacted soils within the raceway, and retaining wall and bank stabilization work. An existing 185-foot section of vertical retaining wall, 12- 15 feet in height will be repointed. Soil above the wall is proposed to be excavated and stockpiled onsite, and the slope of the bank lowered to 1:2. The downstream most section of wall is also proposed to be rebuilt where it has collapsed where stones remain. In sections where the wall is in the worst condition, a new gabion wall (“rocks in cages”) dug into the bank is proposed, and the wall extended 105 feet downstream of its current limit. Stone rip rap is proposed to be placed along the top of the retaining will up to the 100 year floodplain. Above the rip rap, a geocell turf reinforcement matmat is All trees along the riverbank are proposed to be removed. 96 trees will be removed, as shown in the table on page 5 0f the Attachment A narrative. Stockpiled contaminated soil is proposed to be added to existing soil areas for permanent storage. Work will result in 36,398 sf of permanent impacts to riverfront; 33,364 of which are in the inner 100 feet, 161 linear feet and 703 sf of bank impacts, 799 sf of land under water impact, 3,211 sf of land subject to flooding, and 129 sf of impacts to isolated wetland, and a reduction in capacity of wildlife habitat functions. The Mill River is classified as a coldwater fisheries resource. The project is located within NHESP priority habitat. NHESP issued a no-take decision without any required conditions. A stormwater permit from the DPW is also required since the project will disturb over one acre, and has not yet been issued. October 13 2022 Staff Report 3 Consistency with the WPA and Northampton Wetlands Ordinance, Staff Recommendation The applicant has presented the entirety of the work as a limited project. Limited projects may be permitted notwithstanding performance standards, which this project would not meet absent this status. The Wetlands Ordinance does not allow work in Protected Zones as proposed here except in certain circumstances, one of which is a limited project. The Commission has two legal determinations to make: First, whether "there are no practicable alternatives" to the proposed c. 21E response action. Second, if there are no practicable alternatives, whether the Commission, in its discretion applying the four factors of 310 CMR 10.53 (3) may determine to permit the work as a limited project. The Commission is not required to allow all such work proposed. In determining whether to exercise its discretion in approving, the Commission shall consider: • the magnitude of the alteration and the significance of the project site to the interests identified in M.G.L. c. 131, § 40 (the Wetlands Protection Act) • The availability of reasonable alternatives to the proposed activity • The extent to which adverse impacts are minimized, and the extent to which mitigation measures, including replication or restoration, are provided to contribute to the protection of the interests identified in M.G.L. c. 131, § 40. For this type of project, 310 CMR 10.53 (3) (q) specifies that the Commission consider: 1. there are no practicable alternatives to the response action being proposed that are consistent with the provisions of 310 CMR 40.0000: Massachusetts Contingency Plan and that would be less damaging to resource areas. The alternatives analysis shall include, at a minimum, the following: a. an alternative that does not alter resource areas, which will provide baseline data for evaluating other alternatives; and b. an assessment of alternatives to both temporary and permanent impacts to resource areas. In deciding the above, the O’Reilly Talbot Okun (OTO) third party review report and applicant response set out many technical engineering and wetlands impacts issues, and competing viewpoints for consideration by the Commission. As with any application, whether the Commission can make the determinations based on the information before it or whether there is additional information needed is for the Commission to determine. It does not appear at this time that there is sufficient information to determine whether the above criteria are met. The NOI narrative (page 8) indicates only that alternatives that do not include any resource area disturbance are not possible, but does not provide a full alternatives analysis for less damaging alternatives, and no other alternatives are provided. The Commission should use the OTO report as a basis to request additional information regarding possible alternatives, and continue the hearing to allow the applicant to prepare that information. October 13 2022 Staff Report 4 Additional questions: The application indicates that the access roadway is temporary, but is still shown on plans indicating that it is permanent. If it is temporary, a restoration plan for the area must be provided. There are details on the plansheets for elements that are not included on the plan. All unnecessary details should be removed. Notations on site preparation plans refer to ‘no tree removal’ areas, but do not appear to correspond to any locations on the plans, and may be remnants from a prior revision. DEP Comments DEP Comments and applicant responses are attached