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HomeMy WebLinkAboutSE3-6058 FindingJanuary 15, 2023 Shawn D. Martin, Trustee – Convert the existing seasonal pier to a permanent, pile supported pier in the same footprint as the existing pier. The existing seasonal pier was approved under SE3-3961 in 2002. Proposed Draft Findings: The Commission finds the following: The proposed permanent pier NOI (SE3-6058) is filed under the local regulation Chapter 703, adopted by Commission under Town of Barnstable Ordinances Chapter 237, with an effective date of October 26, 2004, and the latest revision of this regulation with an effective date of February 20, 2018. The use of the existing and proposed permanent pier remains the same as for non-motorized vessels. There is no change in the pier footprint. The Commission reviews all pier proposals on a site-specific basis, as stated in Chapter 703-5(c). The Conservation Commission finds this pier to be in asignificant shellfish area, especially considering that the shellfish rating has increased from 8 in 2001 to 10 in 2011. The shellfish rating for this area was 6 (CS21) and 8 (CS22) in 2001 and they had been increased to a rating of 10 (CS21 and CS 22) in 2011. The highest shellfish rating is 10. The Conservation Commission has considered that a rating of 6 and higher is “high significant shellfish area.”The current shellfish rating maps are dated December 20, 2011, as posted on the Conservation Division website. This is the shellfish resource and habitat area mapping for Three Bay Area as determined the Shellfish Committee and adopted by the Conversation Commission The Commission has determined that this project significantly increases the surface sediment area occupied by pilings in a highly significant shellfish area and therefore a permanent loss of shellfish habitat. The shellfish and accordingly shellfish habitat are protected under local Ordinance 237-1 and Chapter 703-2.This finding is also supported by the Town Biologist in the shellfish report dated January 6, 2023.The size of posts for the existing seasonal pier is 4-inch while the size of the piles for the proposed permanent pier will be 12-inch. The number of posts or piles remains the same with 16 from the Mean Low Water (MLW) to the end of the pier. The Commission finds that this proposed permanent pier will reduce water access for fin fishing and boat-based shellfish harvesting. A seasonal pier allows off-season access and shellfish harvesting along the full footprint of the seasonal pier when it is removed. The presence of a permanent pier at this location will impede recreational and commercial fishermen access and ability to harvest shellfish under this pier year-round. Whereas a seasonal pier allows access to this site during roughly half the year. The Commission agrees with the turbidity assessment by our Town Biologist in the shellfish report dated January 6, 2023. In that report, the Town Biologist states that “twice a year of installing and removal of seasonal pier cannot be considered a “significant” impact on turbidity in this area.”She also states that the postholes discussion by the applicant is incorrect. The claim that permanent piles result in a net benefit with respect to turbidity conditions should be based on the sediment type and the current flow through the area. At this site, evidence suggests sediment consistency in the pile holes will quickly return to a natural condition. The Commission has determined that the availability of the contractor and the annual cost to install seasonal pier does not justify the permanent loss of a significant shellfish area by converting a seasonal pier to a permanent pier. The Commission finds that the change from a seasonal pier to a permanent pier will have a cumulative effect on the overall water sheet. The Commission is charged to consider the cumulative effect under Chapter 703-5(a). If this application is approved, this will also set a precedent for all existing seasonal piers in the Town of Barnstable. Commissioner Sampou cited the concern with the spread of exotic species related to permanent piers. This may have an adverse effect on resource areas and the use of these areas for recreational purposes under our regulation Chapter 703. Seasonal piers will at least reduce the presence, growth, and propagation of these exotic species, as seasonal removal of the pilings kills attached fouling organisms.This is confirmed in the Thomas F. Ryan case by Barnstable Superior Court Judge Robert C. Rufo, Jr. – “While the Bylaw does not specially mention invasive species as a particular form of adverse effect to recreational interests such as shellfishing or finfishing, such specially is not required.” The Commission has relied historically and with confidence on opinions from our Town Biologist with regards to site specific review and recommendations. In this case, two Town Biologists, Tom Marcotti (retired)(SE3- 3961), and Elizabeth Lewis (SE3-6058) have confirmed the support of a seasonal pier at this location. Our Town of Barnstable regulation (Chapter 703-5(b)) states, “In most cases seasonal piers present less impact to the resource because of their seasonal nature and because they can be constructed entirely with environmentally benign materials.” Unless evidence is presented which shows a permanent pile pier would, in fact, lessen the environmental impacts of said dock, our regulation makes it very clear the benefits of a seasonal dock on our coastal resources. The applicant has failed to meet its burden of proof as required by the regulations. In conclusion, the Barnstable Conservation Commission finds that the switch of a seasonal pile supported pier to a permanent pile supported pier at this site is likely to result in negative effects on shellfish and shellfish habitat, accessibility for fin and shellfishery and contribute to the potential for exotic species proliferation in our embayments. It is also specifically noted that the boating needs for the applicant are being met with a less environmentally damaging option - a seasonal pier. The Commission finds that the applicant did not provide enough evidence to justify a permanent pier. The Commission must deny the applicant’s request for a permanent pier under local ordinance and regulation Chapter 703 but approve under the State Wetland ProtectionAct, which contains only the minimum statewide standards and is less restrictive than the local Ordinance and regulations.The current seasonal pier (SE3-3961) as previously approved shall remain in full force and effect.