2019.08.22 Staff Report
Conservation Commission Staff Report 1 July 25, 2019
To: Conservation Commission
From: Sarah LaValley
RE: Staff Report, August 22 Commission Meeting
5:30 PM - Continuation - Notice of Intent for multi-use path construction. City of
Northampton, Rocky Hill Road/Rocky Hill Greenway, Map ID 37-049
The application proposes construction of a 2630 linear foot, 10-16 foot wide multi-use trail to connect the
New Haven and Northampton Canal Trail at Route 10 with Route 66, through the Rocky Hill Greenway.
Work includes alteration to BVW and buffer zone, previously degraded riverfront areas, and a stream
crossing that has been redesigned to meet the stream crossing standards. Wetland replication is
proposed. The project is also subject to the stormwater standards, and will also need a stormwater permit
from the Northampton DPW. The trail is required to meet MassDOT and Federal Highway
Administration standards which results in increased project footprint in some areas.
Application Overview:
The project consultant provided a detailed response, provided separately, to DEP’s comments on the
project with which staff concurs. This included a detailed assessment of compliance with applicable WPA and Ordinance standards for resource areas affected. Staff worked with the consultant to ensure that
revised plans to meet the stream crossing standards was submitted. Plan revisions also include shifting
the wetland replication area to a location outside riverfront area to reduce impacts.
Consistency with the Wetlands Protection Act and Northampton Wetlands Ordinance, DEP
Comments:
Issue an Order of Conditions, with standard conditions. The following additional conditions are
suggested to ensure success of replication areas and protect resources during construction.
Staff Recommendation:
The contractor shall develop a specific plan to prevent alteration to wetlands areas during construction.
This plan shall include specific provisions, and must be included in the sequencing plan.
An annual report, in accordance with the Massachusetts Inland Wetland Replication Guidelines, shall be
provided to the Commission by November 30 of each year, for the first three growing seasons. The report
shall contain all elements required in monitoring the wetland replacement area, and shall detail how and
to what extend the replacement area meets the General Performance Standards and the Wetland
Replication Plan in the NOI. If non-compliance with any Performance Standards or the Replication Plan
is documented, the report shall include a draft “corrective plan of action.”
Prior to the issuance of a certificate of compliance, the applicant shall demonstrate that at least 75% of the
surface of each replacement area has been re-established with indigenous wetlands plants.
The Commission shall be given 48 hours notice prior to the beginning of construction of each wetlands
replication areas, to allow for discussion of requirements and to ensure compliance with all special
conditions.
Any future alterations of areas shown on NOI plans as Wetland Replication Areas, except as may be
required to maintain them in restored or mitigated condition, are prohibited. Additional allowable
activities are removal of species listed on the Massachusetts Prohibited Plant list and planting of native
species.
Conservation Commission Staff Report 2
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Salt products shall not be used on the path
At least once during each week in which construction activity occurs on site and for as long thereafter as
ground remains destabilized, the applicant shall submit a report to the Conservation Commission
providing an update on progress and certifying that, to the best of his knowledge and belief based on a
careful site inspection, all work is being performed in compliance with this Order of Conditions. Copies of
weekly reports prepared for other purposes can serve to satisfy this condition.
5:40 PM – Request for Determination of Applicability to determine if deck construction is
subject to the Wetlands Protection Act or Northampton Wetlands Ordinance. David Soergel. 28 Mountain Laurel Path, Map ID 37-88.
The application proposes construction of a 200 sf screen porch and deck on piers and columns
approximately 85 feet from BVW. A new wetland delineation was necessary because the house was not constructed in the exact location in which it was initially proposed and the distance to the resource area
was not clear. The area is currently mown lawn and no additional tree or vegetation disturbance is
proposed.
Application Overview:
10.02(2)(b)(1)establishes minor activities that are not subject to regulation under the Act. These include
“conversion of lawn to uses accessory to residential structures such as decks… “
Check box 6 to indicate that the work is subject to the Ordinance, and box 5 to indicate that the area is
subject to protection under the Act, but that it qualifies for the exemption noted above. The Commission
should be notified at least 48 hours prior to work, and again when work is complete. Erosion control
should be installed as proposed in the application.
Consistency with the Wetlands Protection Act and Northampton Wetlands Ordinance, Staff
Recommendation:
5:50 PM – Request for Determination of Applicability to determine if garage demolition &
reconstruction is subject to the Wetlands Protection Act or Northampton Wetlands Ordinance. Joseph &
Karen Curran. 12 Lawn Ave, Map ID 24D-21.
The application proposes demolition of an
existing 24’x24’ garage, and replacement with
a new structure of the same size, but located four feet closer to the wetland area.
Application Overview:
The large eastern portion of the parcel is a
BVW, approximately as shown in the 2002
application included with the RDA for
reference. This portion of the site is fenced off
and is left in a natural state. The proposed work will bring the garage footprint slightly
closer to the resource area, but will still be
located within existing disturbed area that is currently driveway and lawn approximately 70 feet from
BVW, and should not alter the resource area. Discuss an appropriate silt fence location with the applicant
to serve as a limit of work line. Issue a negative determination by checking box 3, to indicate that the
work is subject to the WPA but will not remove dredge fill or alter.
Consistency with the Wetlands Protection Act and Northampton Wetlands Ordinance, Staff
Recommendation:
Conservation Commission Staff Report 3
August 22, 2019
6:00 PM: Notice of Intent for earthen berm armoring & reinforcement, and stormwater
drainage pipe replacement. Aster Associates, 80 Barrett Street, Map ID 24B-41 & 72.
The application proposes armoring of a channel at the rear of the complex that floods periodically. Work
includes addition of vegetated soft armoring along the existing bank, which is currently a maintained
lawn. Dredging of land under water is not proposed due to the amount of sediment that is transported to
the area during storm events, but excavation of the bank area is necessary for installation, and is proposed
to be a mix of hand and machine excavation due to very soft soils in the work area. Replacement of a
broken drain line is also shown in the application, but is not allowable under the WPA and should not be
considered at this time, as discussed below.
Application Overview:
DEP Comments:
[1] Insufficient information is included in the NOI to permit the project. Resource areas do not appear to be correctly shown and insufficient information is included to show how the work complies with the
regulations.
The application assumes that all work will occur within BVW and bank; a delineation was not performed. The alteration total includes all work proposed, but the narrative does not specifically
address compliance with performance standards for alteration of these resources.
[2] A wildlife habitat evaluation is likely required, per 310 CMR 10.54(4)(a)5. The Commission should
review whether or not any "limited" project is appropriate for the proposed work.
This performance standard requires that work involving bank shall not impair the capacity of the Bank
to provide important wildlife habitat functions. Projects altering 10% of bank on a parcel, or 50 feet (whichever is less) deemed to be significant to the protection of wildlife habitat are presumed not to
impair its capacity. If work exceeds this threshold, additional alterations may be permitted if they do
not have adverse effects as determined through a wildlife habitat assessment process. While 310 CMR 10.60 requires that habitat evaluations be completed by a qualified person, the existing bank is mown
lawn until it intersects with land under water, and is proposed to be replaced in-kind with a planted
berm. Additionally, The CMR allows that “Alterations of wildlife habitat characteristics beyond permissible thresholds may be restored onsite or replicated offsite in accordance with the following
general conditions” which the project meets. These can be added as conditions if needed. (a) the surface of the replacement area to be created ("the replacement area") shall be equal
to that of the area that will be lost ("the lost area");
(b) the elevation of groundwater relative to the surface of the replacement area shall be approximately equal to that of the lost area;
(c) the replacement area shall be located within the same general area as the lost area. In the case of
banks and land under water, the replacement area shall be located on the same water body or waterway
(d) interspersion and diversity of vegetation, water and other wildlife habitat characteristics
of the replacement area, as well as its location relative to neighboring wildlife habitats, shall be similar to that of the lost areas, insofar as necessary to maintain the wildlife habitat
functions of the lost area; (e) n/a
(f) if the replacement area is located in an area subject to M.G.L. c. 131, § 40, there shall
be no adverse effect on the existing important wildlife habitat functions of said area as measured by the standards of 310 CMR 10.60;
(g) the "thresholds" established in 310 CMR 10.54(4)(a)5., 10.56(4)(a)4., 10.57(4)(a)3. and
10.58(4)(d)1.c. (below which alterations of resource areas are not deemed to impair capacity to provide important wildlife habitat functions) shall not apply to any replacement area; and
(h) the replacement area shall be provided in a manner which is consistent with all other General Performance Standards for each resource area in 310 CMR 10.51 through 10.60.
[3] Regarding Project #1, the stormwater pipe, it can certainly be removed from the resource area but it
cannot be put back in. The regulations clearly prohibit placing a stormwater conveyance into BVW or
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August 22, 2019
Bank. There must be a setback. As this could be considered a new conveyance, the commission might
consider requiring compliance with the stormwater standards. Staff agrees. The applicant can request that this portion of the project be removed from NOI
consideration at this point, or can present a revised design that would pull back the outlet from the resource area. A full wetland delineation would be required to consider any alternate plan.
[4] Please provide manufacturers data to the commission on the Filtrexx system. The applicant included some specifications within the application, and will bring additional
documentation to the meeting.
[5] Plans should reflect regulatory language to avoid confusion. For example, the runoff channel is
actually an intermittent and should be called that on plans. Staff agrees – the channel contains bank and land under water, and the application presumes all other areas proposed for alteration to be BVW
.
[6] What will be the impact downgradient of the site as more water will be moving offsite because of the
raising of the existing berm? Dredging might be considered if appropriate.
The Commission should discuss consideration of downstream implications with the applicant, noting that the Barrett Street Marsh is located downstream. Since the opposite bank is not being altered there
is still some opportunity for expansion outside the channel. Dredging would likely not be successful due
to the amount of sediment carried to the area from higher in the watershed.
[7] For the work in the buffer zone, the regulations allow commissions to require appropriate vegetation
be added to the buffer in order to protect the interests of the Act. "Where a Buffer Zone has already been
developed, the Issuing Authority may consider the extent of existing development in its review of
subsequent proposed work and, where prior development is extensive, may consider measures such as the restoration of natural vegetation adjacent to a resource Area to protect the interest of M.G.L. c. 131, § 40.
Staff agrees. The vegetated berm may be an improvement over the existing lawn area, but conversion
of lawn area
[8] The Commission may require that a replication checklist and a monitoring report be submitted per the
Massachusetts Inland Wetland Replication Guidelines (https://www.mass.gov/media/1523011) should
BVW alterations be warranted (i.e., unavoidable) and permitted
[9] To help ensure that conservation commissions have sufficient expertise available to address specific
issues regarding an applicant’s filing, M.G.L. c. 44, section 53g gives Commissions authority to charge a
fee for the employment of outside consultants that allow for the use of the fee to ensure that they have the necessary information for them to make a decision pursuant to the Wetlands Protection Act, M.G.L. c. 131,
sec. 40 and 310 CMR 10.00.
DEP has provided input on a number of areas where the Commission may wish to consider additional
information that has not been provided in the application. If the Commission receives enough followup
information at the hearing to issue an Order, standard conditions should be applied. Weekly construction
reports should be required, as well as annual reporting at the end of each growing season regarding success of plantings within the berm. A request for certificate of compliance will need to include
documentation of plant success as proposed in the application. The stormwater pipe shall not be included
in the Order. Include a finding that work is allowed within the Protected Zone as a project ‘in or affecting
resource areas containing areas already degraded or developed.’
Staff Recommendation:
6:20 PM: Notice of Intent for residential driveway construction within buffer zone to wetland resource areas. Timothy Seney, 1087 Westhampton Rd, Map ID 41-70
The application proposes construction of a driveway and related stormwater features within buffer
zone to BVW. A house location is not shown. The work will also require a stormwater permit from
Application Overview:
Conservation Commission Staff Report 5
August 22, 2019
the Northampton Department of Public Works since the project in its entirety will disturb more than
one acre. This lot is a portion of a larger lot that was divided, and three other building lots served by a
common driveway were created from the original parcel. The work does not qualify as a Limited
Development project, and this parcel was not considered to be a developable lot by the Planning Board at
that time. The Conservation Commission issued a determination in 2016 that confirmed wetland
boundaries based on field conditions at that time, but that Determination expired prior to this application
being filed and a new delineation demonstrated different current field conditions.
[1] The wetland data sheets incorrectly show Tsuga canadensis as FACU. Paragraph 9 of 131/40 states that
it needs to be recognized as a wetland plant. Plot T1-UP needs to show that there is a predominance of
wetland plants.
DEP Comments:
Staff confirmed wetland boundaries at a site visit. The consultant provided the below followup to this
point: Plot T1-UP was a transect on the upland side of the delineated boundary. Eastern Hemlock (Tsuga
canadensis) is listed as a Facultative Upland (FACU) plant species by the US Army Corps of Engineers
National Wetland Plant List 2016 for Northcentral and Northeast Region as well as theMass DEP “Delineating Bordering Vegetated Wetlands Under the Massachusetts WPA” Handbook
.
In this transect, the hemlock trees did not exhibit morphological or physical adaptations (buttressed
trunks or shallow roots) to life in saturated or inundated conditions to consider a FACU indicator plant
as a wetland indicator plant. Therefore the T1-UP transect displays a predominance of non-wetland indicator plants (3 dominant non-wetland indicator plants and 2 dominant wetland indicator plants)
and since it also lacks hydric soils and indicators of hydrology, it is an upland and not a wetland.
[2] The regulations at 310 CMR 10.53(1) in part states....For work in the Buffer Zone subject to review
under 310 CMR 10.02(2)(b)3., the Issuing Authority shall impose conditions to protect the interests of the Act identified for the adjacent Resource Area. The potential for adverse impacts to Resource Areas from
work in the Buffer Zone may increase with the extent of the work and the proximity to the Resource Area.
The Issuing Authority may consider the characteristics of the Buffer Zone, such as the presence of steep slopes that may increase the potential for adverse impacts on Resource Areas. Conditions may include
limitations on the scope and location of work in the Buffer Zone as necessary to avoid alteration of
Resource Areas. The Issuing Authority may require erosion and sedimentation controls during
construction, a clear limit of work, and the preservation of natural vegetation adjacent to the Resource
Area and/or other measures commensurate with the scope and location of the work within the Buffer
Zone to protect the interests of M.G.L. c. 131, § 40. Staff agrees. Although denial under the local Ordinance is recommended, standard conditions pursuant
to the Wetlands Protection Act should be added to the Order.
The work does not meet the performance standards of the Wetlands Ordinance. 337-10 E (2) establishes
that ‘The Commission shall not permit alteration within resource areas or their associated protected
zones” and establishes exemptions, none of which apply to this project. The Protected Zone within this
zoning district extends 50 feet from resource areas, and the application proposes 5,472 sf of alteration
within the Protected Zone.
Consistency with the Wetlands Protection Act and Northampton Wetlands Ordinance:
The work proposed is not consistent with the Ordinance, and cannot be conditioned to meet the
Ordinance’s performance standards. Grant an Order under the WPA, and a denial under the Ordinance, including a finding regarding Protected Zone alteration. Another application proposing access from
another location could be presented in the future.
Staff Recommendation:
Conservation Commission Staff Report 6
August 22, 2019
6:40 PM: Notice of Intent under the Northampton Wetlands Ordinance for construction of
a new 3-story apartment building and related site and utility work within wetland resource areas and buffer zones. Dewey Court Properties LLC, 34 Dewey Court, Map ID 31D-217
The application proposes construction of a 3-story building containing 15 residential units in a 7,100 sf
footprint, including a pedestrian pathway crossing of the wetland, landscaping and raingardens, and
replacement of a sanitary sewer line that is likely accepting surface drainage. The resource areas are not
jurisdictional under the WPA, and only the local Ordinance applies.
Application Overview:
The applicant has provided an assessment memo of compliance with the local Ordinance. The area is within the Urban Residential C zoning district. The Protected Zone within this zone is reduced to 35 feet,
and 337-10 B waives any of the Performance Standards of the Ordinance that are over and above state law
with the exception of this Protected Zone. Utility work within the Protected Zone is allowed as a Limited Project. The wetland may grow once the sewer repair is complete.
Consistency with the Northampton Wetlands Ordinance:
Issue an Order of Conditions with standard conditions. Require that the pedestrian crossing be elevated
on piers at least 12” above the wetland surface. Discuss details of shed demolition within the Protected
Zone and drain line replacement with the applicant and add additional conditions for these portions of
the project if necessary.
Staff Recommendation: