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HomeMy WebLinkAbout20230523 NOI_Part 5D_Record DocsDoc:l~258~975 11-25-2014 11=18 BARNSTABLE LAND COURT REGISTRY Sk 28530 Pg37 ::=54658 11-25-2014 a 11:31« j Corrected Provided by MassDEP:Massachusetts Department of Environmental Protection MassDEP File #:003-5053Bureau of Resource Protection -Wetlands eDEP Transaction #:699695~( WPA Form 5 -Order of Conditions Cityffown:BARNSTABLE . M"",eh."", W"l,nd, P,o",ction Act MOL. c. 131, §40.~ A.General Information 1. Conservation Commission 2. Issuance BARNSTABLE a I?J OOC b. C Amended OOC 3. ApplicantDetails a. First Name b. Last Name c. Organization THREE BAYS PRESERVATION, INC. & MASS AUDUBON SOClETY, INC. l' Addr 864 MAIN STREET, OST. (THREE BAYS); SO. GREAT ROAD, LINCOLN, 01773 (MASS.d Mai. mg ess AUDUBON) e. Cityffown OSTERVILLE f. State MA g. Zip Code 4. Property Owner a. First Name b.LastName c. Organization THREE BAYS PRESERVATION, INC. & MASS AUDUBON SOCIETY, INC. 864 MAIN STREET, OST. (THREE BAYS); SO. GREAT ROAD, LINCOLN, 01773 (MASS.d. Mailing Address AUDUBON) e. Cityffown OSTERVILLE f. State MA g. Zip Code 5. Project Location a.8treet Address 0 SAMPSONS ISLAND 1DEAD NECK, OSTERVILLEICOTUIT b.City/Town BARNSTABLE c. Zip Code d. Assessors MaplPlat# 050 e. ParcellLot# 001 & 002 f. Latitude 41.60792N g. Longitude 70.42201W 6. Property recorded at theR~gistry of Deedfor: B. County b. Certificate c. Book d.Page 173003; LCP 15354-A; LOTS 869BARNSTABLE 600 (SAMPSON'S ISLAND)3 & 4 (DEAD NECK) 7.Dates a. Date NOI Filed: 121712012 b. Date Public Hearing Closed: 10/28/2014 c. Date OfIssuance: 11/3/2014 8.Final Approved Plans andOther Documents a. Plan Title: b. Plan Prepared by: c. Plan Signed/Stamped by: d. Revised Final Date: e. Scale: SITE PLAN (2 SULLIVAN 10114/2014 VARIOUSENGINEERING, INC. PETER SULLIVAN, P.E.SHEETS) Page 1 of 10 *ELECTRONIC COPY Massachusetts Department of Environmental Protection Provided by MassDEP: MassDEP File #:003-5053Bureau of Resource Protection -Wetlands eDEP Transaction #:699695WPA Form 5 -Order of Conditions Citylfown:BARNSTABLEMassachusetts Wetlands Protection Act M.G.L. c. 131, §40 REVISED SKETCH SULLIVAN PETER SULLIVAN, P.E. 9/15/2014 VARIOUSPLAN ENGINEERING, INe. B. Findings I.Findings pursuant to the Massachusetts Wetlands Protection Act Following the review ofthe the above-referenced Notice ofIntent and based on the information provided in this application and presented at the public hearing, this Commission finds that the areas in which work is proposed is significant to the following interests of the Wetlands Protection Act. Check all that apply: a. Public Water Supply b. Land Containing Shellfish c. Prevention of Pollution d. [":1 Private Water Supply e. P' Fisheries f. F' Protection of Wildlife Habitat r Ground Water h. 0 Storm i. f7 Flood Control -~~~~~~~~..-~~~-~~.-~.~=~~~..;...~'. .~...~---~-"-'--'" 2. Commission hereby fmds the project, as proposed, is: Approved subject to: a. F' The following conditions which are necessary in aecordance with the performance standards set forth in the wetlands regulations. This Commission orders that all work shall be performed in accordance with the Notice of Intent referenced above, the following General Conditions, and any other special conditions attached to this Order. To the extent that the following conditions modifY or differ from the plans, specifications, or other proposals submitted with the Notice of Intent, these conditions shall control. Denied because: b. r The proposed work cannot be conditioned to meet the performance standards set forth in the wetland regulations. Therefore, work on this project may not go forward unless and until a new Notice of Intent is submitted which provides measures which are adequate to protect interests ofthe Act, and a fmal Order of Conditions is issued. A description of the performance standards which the proposed work cannot meet is attached to this Order. c. r The information submitted by the applicant is not sufficient to describe the site, the work or the effect ofthe work on the interests identified in the Wetlands Protection Act. Therefore, work on this project may not go forward unless and until a revised Notice of Intent is submitted which provides sufficient information and includes measures which are adequate to protect the interests of the Act, and a fmal Order of Conditions is issued. A description of the specific information which is lacking and why it is necessary is attached to this Order as per 310 CMR 10.05(6)(c). 3 r-: Buffer Zone Impacts:Shortest distance between limit of project disturbance and the wetland resource '" area specified in 31OCMRlO.02(l)(a). a linear feet Inland Resource Area Impacts:(For Approvals Only): Proposed Permitted Proposed PermittedResource Area Alteration Alteration Replacement Replacement --~,-~--- 4. rBank a b. linear feet c. d.linearfeet 5. r Bordering Vegetated Wetland a. square b. square feet c. square d. square feet Page 2 of 10 *ELECTRONIC COpy Massachusetts Department of Environmental Protection Provided by MassDEP: MassDEP File #:003-5053Bureau of Resource Protection -Wetlands eDEP Transaction #:699695WPA Form 5 -Order of Conditions Cityffown:BARNSTABLEMassachusetts Wetlands Protection Act M.G.L. c. 131, §40 6. nLand under Waterbodies and Waterways a. .squarefeet b. square feet c.square d. square feet e. ely dredged f. ely dredged 7. D Bordering Land Subjeet to Flooding a. square feet b. square feet c. square feet d. square feet Cubic Feet Flood Storage e. cubicfeet f. cubic feet g. h cubic feet 8. r, Isolated Land Subject to Flooding a. square feet b. square feet Cubic Feet Flood Storage c. cubic feet d. cubic feet e. cubic feet f. cubic feet 9. r Riverfront Area a. total sq. feet b. total sq. feet Sq ft within 100 ft c. square square feet e. square feet f. square feet Sq ft between 100-200 ft g. square feet square feet j. square feet Coastal Resource Area Impacts: Proposed Permitted Proposed PermittedResource Area Alteration Alteration Replacement Replacement 10. r Designated Port Areas 11. R:: Land Under the Ocean 12. nBarrierBeaches 13. P; Coastal Beaches 14. f7 Coastal Dunes 15. n Coastal Banks 16. nRocky Intertidal Shores 17. n Salt Marshes 18. r Land Under Salt Ponds Indicate size under Land Under the Ocean, below 386000 386000 a. square feet b. square feet o .::.0____ e. ely d. ely dredged Indicate size under Coastal BeachesandJor Coastal Dunes below 248400 a. square feet a. square feet 123000 248400 b. square feet b. square feet 123000 0 e. ely nourishment .::.o_________ c. ely nourishment ..::,0--,-_--,-_ d. cly nourishment ~o~-~-- d. ely nourishment a. linear feet b. linear feet a. square feet b. square feet a. square b. square feet c. square feet d. square feet Page 3 of 1°* ELECTRONIC COpy Massachusetts Department of Environmental Protection Provided by MassDEP: MassDEP File#:003-S0S3Bureau of Resource Protection" Wetlands eDEP Transaction #:699695WPA Form 5 -Order of Conditions CityfTown:BARNSTABLEMassachusetts Wetlands Protection Act M.G.L. c. 131, §40 a. square feet b. square feet 19. Rl Land Containing Shellfish 20. [j Fish Runs c. ely dredged d. ely dredged 386000 386000 .:..0__-:-­ a. square feet b. square feet c. square feet o d. square feet Indicate size under Coastal Banks, inland Bank, Land Under the Ocean, and/or inland Land Under Waterbodies and Waterways, above 21. I? Land Subject to Coastal Stonn Flowage 1281400 a. square feet 22. C Restoration/Enhancement (For Approvals Only) Ifthe project is for the purpose ofrestoring or cnhancing a wetland resource area in addition to the square footage that has been entered in Section B.S.c & d or B.17.c & d above, please entered the additional amount here. a. square feet ofBVW b. square feet of Salt Marsh 23. C Streams Crossing(s) If the project involves Stream Crossings, please enter the number of new stream crossings/number of replacement stream crossings. a. number of new stream crossings b. munber of replacement stream crossings C. General Conditions Under Massachusetts Wetlands Protection Act The following conditions are only applicable to Approved projects I. Failure to comply with all conditions stated herein, and with all related statutes and other regulatory measures, shall be deemed cause to revoke or modify this Order. 2. The Order does not grant any property rights or any exclusive privileges; it does not authorize any injury to private property or invasion ofprivate rights. 3. This Order does not relieve the permittee or any other person of the necessity ofcomplying with all other applicable federal, state, or local statutes, ordinances, bylaws, or regulations. 4. The work authorized hereunder shall be completed within three years from the date ofthis Ordcr unless either of the following apply: a. the work is a maintenance dredging project as provided for in the Act; or b. the time for completion has been extended to a specified date more than three years, but less than five years, from the date of issuance. If this Order is intended to be valid for more than three years, the extension date and the special circumstances warranting the extended time period are set forth as a special condition in this Order. 5. This Order may be extended by the issuing authority for one or more periods of up to three years each upon application to the issuing authority at least 30 days prior to the expiration date of the Order. 6. If this Order constitutes an Amended Order of Conditions, this Amended Order of Conditions does not exceed the issuance date of the original Final Order of Conditions. 7. Any fill used in connection with this project shall be clean filL Any fill shall contain no trash, refuse, rubbish, or debris, including Page 4 of 10 * ELECTRONIC COPY Massachusetts Department of Environmental Protection Provided by MassDEP: MassDEP File #:003-5053Bureau of Resource Protection -Wetlands eDEP Transaction #:698649WPA Form 5 -Order of Conditions CityfI'own:BARNSTABLEMassachusetts Wetlands Protection Act M.O.L. c. 131, §40 but not limited to lumber, bricks, plaster, wire, lath, paper, cardboard, pipe, tires, ashes, refrigerators, motor vehicles, or parts of any of the foregoing. S. This Order is not [mal until all administrative appeal periods from this Order have elapsed, or ifsuch an appeal has been taken, until all proeeedings before the Department have been completed. 9. No work shall be undertaken until the Order has become final and then has been recorded in the Registry of Deeds or the Land Court for the district in which the land is located, within the chain of title ofthe affected property. In the case of recorded land, the Final Order shall also be noted in the Registry's Grantor Index under the name of the owner ofthe land upon which the proposed work is to be done. In the case of the registered land, the Final Order shall also be noted on the Land Court Certificate ofTitle ofthe owner ofthe land upon which the proposed work is done. The recording information shall be submitted to the Conservation Commission on the form at the end of this Order, which form must be stamped by the Registry of Deeds, prior to the commencement of work.. 10. A sign shall be displayed at the site not less then two square feet or more than three square feet in size bearing the words, "Massachusetts Department of Environmental Protection" [or'MassDEP"] File Number :"003-5053" II. Where the Department of Environmental Protection is requested to issue a Superseding Order, the Conservation Commission shall be a party to all agency proceedings and hearings before Mass DEP. 12. Upon completion of the work described herein, the applicant shall submit a Request for Certificate of Compliance (WP A Form SA) to the Conservation Commission. 13. The work shall conform to the plans and speeial eonditions referenced in this order. 14. Any change to the plans identified in Condition #13 above shall require the applicant to inquire of the Conservation Commission in writing whether the change is significant enough to require the filing of a new Notice of Intent 15. The Agent or members of the Conservation Commission and the Department of Environmental Protection shall have the right to enter and inspect the area subject to this Order at reasonable hours to evaluate compliance with the conditions stated in this Order, and may require the submittal of any data deemed necessary by the Conservation Commission or Department for that evaluation. 16. This Order ofConditions shall apply to any successor in interest or successor in control of the property subject to this Order and to any contractor or other person performing work conditioned by this Order. 17. Prior to the start of work, and if the project involves work adjacent to a Bordering Vegetated Wetland, the boundary ofthe wetland in the vicinity of the proposed work area shall be marked by wooden stakes or flagging. Onee in place, the wetland boundary markers shall be maintained until a Certificate of Compliance has been issued by the Conservation Commission. 18. All sedimentation barriers shall be matntained in good repair until all disturbed areas have been fully stabilized with vegetation or other means. At no time shall sediments be deposited in a wetland or water body. During construction, the applicant or hislher designee shall inspect the erosion controls on a daily basis and shall remove aeeumulated sediments as needed. The applieant shall immediately control any erosion problems that oecur at the site and shall also immediately notify the Conservation Commission, which reserves the right to require additional erosion and/or damage prevention controls it may deem necessary. Sedimentation barriers shall serve as the limit ofwork unless another limit of work line has been approved by this Order. NOTICE OF STORMWATER CONTROL AND MAINTENANCE REQUIREMENTS 19. The work associated with this Order(the "Project") is (l) r is not (2) P subject to the Massachusetts Stormwater Standards. If the work is subject to Stonnwater Standards, then the project is subject to the following conditions; a) All work, including site preparation, land disturbance, const11letion and redevelopment, shall be implemented in accordance with the construction period pollution prevention and erosion and sedimentation control plan and, ifapplicable, the Stormwater Pollution Prevention Plan required by the National Pollutant Discharge Elimination System Construction General Permit as required by Stormwater Standard 8. Construction period erosion, sedimentation and pollution control measures and best management practices (BMPs) shall remain in place until the site is fully stabilized. b) No stormwater 11Inoff may be discharged to the post-construction stormwater BMPs unless and until a Registered Page 5 of 10 *ELECTRONIC COpy Massachusetts Department of Environmental Protection Provided by MassDEP: MassDEP File #:003-5053Bureau of Resource Protection -Wetlands eDEP Transaction #:698649WPA Form 5 -Order of Conditions CityfTown:BARNSTABLE Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Professional Engineer provides a Certification that: i. all construction period BMPs have been removed or will be removed by a date certain specified in the Certification. For any construction period BMPs intended to be converted to post construction operation for stormwater attenuation, recharge, andlor treatment, the conversion is allowed by the MassDEP Stormwater Handbook BMP specifications and that the BMP has been properly cleaned or prepared for post construction operation, including removal of all construction period sediment trapped in inlet and outlet control structures; ii.. as-built fmal construction BMP plans are included, signed and stamped by a Registered Professional Engineer, certifying the site is fully stabilized; iii. any illicit discharges to the stormwater management system have been removed, as per the requirements of Stormwater Standard 10; iv. all post-construction stormwater BMPs are installed in accordance with the plans (including all planting plans) approved by the issuing authority, and have been inspected to ensure that they are not damaged and that they are in proper working condition; v. any vegetation associated with post-construction BMPs is suitably established to withstand erosion. c) The landowner is responsible for BMP maintenance until the issuing authority is notified that another party has legally assumed responsibility for BMP maintenance. Prior to requesting a Certificate of Compliance, or Partial Certificate of Compliance, the responsible party (defmed in General Condition 19(e)) shall execute and submit to the issuing authority an Operation and Maintenance Compliance Statement ("O&M Statement") for the Stormwater BMPs identifying the party responsible for implementing the stormwater BMP Operation and Maintenance Plan ("O&M Plan") and certifying the following: i.) the O&M Plan is complete and will be implemented upon receipt of the Certificate of Compliance, and ii.) the future responsible parties shall be notified in writing of their ongoing legal responsibility to operate and maintain the stormwater management BMPs and implement the Stormwater Pollution Prevention Plan. d) Post-construction pollution prevention and source control shall be implemented in accordance with the long-term pollution prevention plan section of the approved Stormwater Report and, if applicable, the Stormwater Pollution Prevention Plan required by the National Pollutant Discharge Elimination System Multi-Sector General Permit. e) Unless and until another party accepts responsibility, the landowner, or owner of any drainage easement, asswnes responsibility for maintaining each BMP. To overcome this preswnption, the landowner ofthe property must submit to the issuing authority a legally binding agreement of record, acceptable to the issuing authority, evidencing that another entity has accepted responsibility for maintaining the BMP, and that the proposed responsible party shall be treated as a permittee for purposes of implementing the requirements of Conditions 19(1) through 19(k) with respect to that BMP. Any failure ofthe proposed responsible party to implement the requirements of Conditions 19(1) through 19(k) with respect to that BMP shall be a violation of the Order of Conditions or Certificate of Compliance. In the case of stormwater BMPs that are serving more than one lot, the legally binding agreement shall also identify the lots that will be serviced by the stormwater BMPs. A plan and easement deed that grants the responsible party access to perform the required operation and maintenance must be submitted along with the legally binding agreement. £) The responsible party shall operate and maintain all stormwater BMPs in accordance with the design plans, the O&M Plan, and the requirements of the Massachusetts Stormwater Handbook. g) The responsible party shall: I. Maintain an operation and maintenance log for the last three (3) consecutive calendar years of inspections, repairs, maintenance andlor replacement of the stormwater management system or any part thereof, and disposal (for disposal the log shall indicate the type ofmaterial and the disposal location); 2. Make the maintenance log available to MassDEP and the Conservation Commission ("Commission") upon request; and 3. Allow members and agents ofthe MassDEP and the Commission to enter and inspect the site to evaluate and ensure that the responsible party is in compliance with the requirements for each BMP established in the O&M Plan approved by the issuing authority. h) All sediment or other contaminants removed from stormwater BMPs shall be disposed of in accordance with all applicable federal, state, and local laws and regulations. D Illicit discharges to the stormwater management system as defmed in 310 CMR 10.04 are prohibited. j) The stormwater management system approved in the Order of Conditions shall not be changed without the prior written approval of the issuing authority. k) Areas designated as qualifying pervious areas for the purpose of the Low Impact Site Design Credit (as defmed in the Page 6 of 10 * ELECTRONIC COPY Massachusetts Department of Environmental Protection Provided by MassDEP: MassDEP File #:003-5053 Bureau of Resource Protection -Wetlands eDEP Transaction #:698649 WP A Form 5 -Order of Conditions Cityffown:BARNSTABLEMassachusetts Wetlands Protection Act M.G.L. c. 131, §40 MassDEP Stonnwater Handbook, Volume 3, Chapter 1, Low Impact Development Site Design Credits) shall not be altered without the prior written approval of the issuing authority. D Access for maintenance, repair, and/or replacement of BMPs shall not be withheld. Any fencing constructed around stonnwater BMPs shall include access gates and shall be at least six inches above grade to allow for wildlife passage. Special Conditions: D. Findings Under Municipal Wetlands Bylaw or Ordinance 1. Is a municipal wetlands bylaw or ordinance applicable? F Yes r No 2. The Conservation Commission hereby(check one that applies): a. r DENIES the proposed work which cannot be conditioned to meet the standards set forth in a municipal ordinance or bylaw specifically: 1. Municipal Ordinance or Bylaw 2. Citation ---------­ Therefore, work on this project may not go forward unless and until a revised Notice of Intent is submitted which provides measures which are adequate to meet these standards, and a final Order or Conditions is issued. Which are necessary to comply with a municipal ordinance or bylaw: b. APPROVES the proposed work, subject to the following additional conditions. TOWN OF 1. Municipal Ordinance or Bylaw 2. Citation S. 237-1 -237-14 BARNSTABLE 3. The Commission orders that all work shall be perfonned in accordance with the following conditions and with the Notice of Intent referenced above. To the extent that the following conditions modify or differ from the plans, specifications, or other proposals submitted with the Notice of Intent, the conditions shall control. The special conditions relating to municipal ordinance or bylaw are as follows: SEE PAGES 7.1, 7.2, AND 7.3 Page 7 of 10 * ELECTRONIC COPY SE3-5053 Name: Three Bays Preservation, Inc. Approved Plan October 14, 2014 Site Plan (2 sheets), by Peter Sullivan, P.E., and September 15,2014 Revised Sketch Plan of Proposed Land Management Areas, by Peter Sullivan, P.E. Findings: 1. While its own source of sand has been sharply diminished by jetty and groin installation, the DNSI barrier beach continues to send what sand it can westward. The result is a chronic narrowing to the point of breaching on the east, and extending into the Cotuit cut on the west. Both tendencies hold significant adverse consequences, exacerbated by tidal currents, for navigation, safety, water circulation and rare species productivity. 2. Incidents of prior beach nourishment, primarily from the use of sand to fortify the eroding front beach at Dead Neck and elsewhere on DNSI, have been shown to enhance rare species habitat. Special Conditions of Approval I. Preface Caution: Failure to comply with all Conditions of this Order of Conditions may result in serious consequences. Such consequences may include issuance of a Stop Work Order, fine(s),the requirement to remove unpermitted structures, requirement to re-Iandscape to original condition, the inability to obtain a Certificate of Compliance, and more. The General Conditions of this Order begin on Page 4 and continue on Pages 5 through 6. The Special Conditions, if necessary, are contained on Pages 7.1, 7.2 and 7.3 All Conditions contained herein require strict compliance. II. Prior to the start of work, the following conditions shall be satisfied: 1. Within one month of receipt of this Order of Conditions, and prior to the commencement of any work approved herein, General Condition Number 9 (recording requirement) on Page 4 shall be complied with. 2. It is the responsibility of the applicant, the owner andlor successor(s), and the project contractor, to ensure that all conditions of this Order are complied with. The applicant shall provide copies of the Order of Conditions and approved plans (and any approved revisions thereof) to project contractors prior to the start Page 7.1 of work. Barnstable Conservation Commission Forms A and B shall be completed and returned to the Commission prior to the start of work. 3. General Condition No. 10 on Page 5 (sign requirement) shall be complied with. 4. The Conservation Commission shall receive written notice one (1) week in advance ofthe start of work. 5. The Natural Resources Department shall be notified at least twenty-one (21) working days prior to the start of work at the site, to inspect the areas for shellfish. If deemed necessary by the Shellfish Constable, shellfish shall be removed from the work area to a suitable site andlor replanted at the locus following construction. The foregoing measures for shellfish protection shall ensue at the expense of the applicant. 6. Approval is contingent upon the issuance of a Conservation Management Permit by NHESP. Work shall not commence without it. III. The following additional conditions shall govern the project once work begins: 7. A pre-construction meeting shall be conducted with the Conservation Agent in attendance. Advance consultation with the Conservation Agent is required for machine access, reduction of Ammophila biomass from dredge footprint and conformance with the BMPs. 8. General Conditions Nos. l3 and 14 (changes in plan) on Page 5 shall be complied with. 9. The proposed dredging methodology (revised October 14,2014) shall be adhered to. 10. The contractor shall have siltation curtains available to be deployed, if needed, for all dredging operations. 11. The Conservation Commission, its employees, and its agents shall have a right of entry to inspect for compliance with the provisions of this Order of Conditions. 12. Unless extended, this permit is valid for three years from the date of issuance. This Order contemplates three sequential dredging events. 13. Nourishment sand shall he clean and compatible no fmer than existing beach sand at the locus. 14. The applicant shall conduct an investigation of the fme material located on the southwest side of Sampson's Island. Unsuitable material known to he within the dredging side slope area shall be removed from the site and appropriately disposed of. 15. Salt marsh shall not be disturbed. 16. Dredging shall occur between October 16 and January 15. 17. To maintain approved dredge elevation, a tide staff corresponding to a referenced tidal benchmark shall be deployed within the limit of dredging Page 7.2 l8. To maintain approved dredge footprint, the approved limit of dredging shall be staked in the field and adhered to. 19. Nourished areas shall be graded to conform to the approved plans. They shall not be planted. 20. A post-dredging bathymetric survey shall be performed by the project engineer within one (1) year of the particular dredging event, and the results submitted to the Conservation Commission for compliance review purposes. 21. The Cotuit Shoreline Monitoring and Mitigation Plan (October 14, 2014) shall be implemented. 22. Proposed management strategies for rare species described in the project NOI and its supplements are herein authorized. 23. The applicant shall monitor recreational use and explore opportunities for enhancing recreation in other areas ofDNSI where it would not conflict with the primary purposes of protecting rare species habitat. 24. As pali of any request to extend the Order of Conditions, the applicant shall include attempts to find additional sources of nourishment, including coordinating with the Town of Bamstable to fmd compatible sources of dredge spoils. IV. After all work is completed, the following condition shall be promptly met: 25. At the completion of work, or by the expiration of this Order, the applicant shall request in writing a Celiificate of Compliance for the work herein permitted. Bamstable Conservation Commission Form C shall be completed and returned with the request for a Certificate of Compliance. Where a project has been completed in accordance with plans stamped by a registered professional engineer, architect, landscape architect or land surveyor, a \VIitten statement by such a professional shall be submitted, certifying substantial compliance with the plans, setting forth what deviation(s), if any, exists with the approved plans. This statement, along with Form C, shall accompany the request for a Certificate of Compliance. Page 7.3 Important: When filling out forms on the computer, use only the tab key to move your cursor do not use the retum k,y" 0 ~ _ Massachusetts Department of Environmental Protection Provided by MassDEP: SE3-5053Bureau of Resource Protection -Wetlands Mas-sD-E-P-F,c-'e-c:-#-­ WPA Form 5 -Order of Conditions Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Barnstable E. Signatures This Order is valid for three years, unless otherwise specified as a special NOV - 3 2014 condition pursuant to General Conditions #4, from the date of issuance. 1. Date of Issuance Please indicate the number of members who will sign this form. This Order must be signed by a majority of the Conservation Commission. 2. Number of Signers The Order must be mailed by certified mail (return receipt requested) or hand delivered to the applicant. A copy must be mailed, hand delivered or filed electronically at the same time with the appropriate M.assDEP Regional Offic~e...U Slg):;nture: c - -_. -=-= .... ... _­-2k~ -"­ ---J?~-- ~~ o by certified mail, return receipt ~by hand delivery on requested, on ~~.~NOV - 3 2014 oate~-==--~=---=---':~-=-----Date F. Appeals The applicant, the owner, any person aggrieved by this Order, any owner of land abutting the land subject to this Order, or any ten residents of the city or town in which such land is located, are hereby notified of their right to request the appropriate MassDEP Regional Office to issue a Superseding Order of Conditions. The request must be made by certified mail or hand delivery to the Department, with the appropriate filing fee and a completed Request of Departmental Action Fee Transmittal Form, as provided in 310 CMR 10.03(7) within ten business days from the date of issuance of this Order. A copy of the request shall at the same time be sent by certified mail or hand delivery to the Conservation Commission and to the applicant, if he/she is not the appellant. Any appellants seeking to appeal the Department's Superseding Order associated with this appeal will be required to demonstrate prior participation in the review of this project. Previous participation in the permit proceeding means the submission of written information to the Conservation Commiss,ion prior to the close of the public hearing, requesting a Superseding Order, 6r."p'rpviding written information to the Department prior to issuance of a Superseding Order. The request shall state clearly and"toncisely the objections to the Order which is being appealed and how the Order does not contribute to the protection of the interests identified in the Massachusetts Wetlands Protection Act (M.G.L. c. 131, § 40), and is inconsistent with the wetlands regulations (310 CMR 10.00). To the extent that the Order is based on a municipal ordinance or bylaw, and not on the Massachusetts Wetlands Protection Act or regulations, the Department has no appellate jurisdiction. wpa5sigs.doc· rev. 0212512010 Page j or!p Massachusetts Department of Environmental Protection Provided by MassDEP: MassDEP File #:003-5053Bureau of Resource Protection -Wetlands eDEP Transaction #:698649WPA Form 5 -Order of Conditions City,Town:BARNSTABLE Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 G. Recording Information This Order ofConditions must be recorded in the Registry of Deeds or the Land Court for the district in which the land is located, within the chain of title of the affected property. In the case ofrecorded land, the Final Order shall also be noted in the Registry's Grantor Index under the name of the owner of the land subject to the Order. In the case ofregistered land, this Order shall also be noted on the Land Court Certificate ofTitle ofthe owner of the land subject to the Order of Conditions. The recording information on this page shall be submitted to the Conservation Commission listed below. BARNSTABLE Conservation Commission Detach on dotted line, have stamped by the Registry ofDeeds and submit to the Conservation Commission. To: BARNSTABLE Conservation Commission Please be advised that the Order of Conditions for the Project at: oSAMPSONS ISLAND I DEAD NECK, 003-5053OSTERVILLE/COTUIT Project Location MassDEP File Number Has been recorded at the Registry of Deeds of: County Book Page for: Property Owner and has been noted in the chain of title ofthe affected property in: Book Page In accordance with the Order of Conditions issued on: Date If recorded land, the instrument number identifYing this transaction is: Doc=I.258.975 11-25-2014 11=18 -lns-tru-n-le-nt-N-u-m-b-er------------=B-{-\""'R=-N'ST ABLE LAND COURT REG I ST RY Ifregistered land, the document number identifying this transaction is: Bk 28530 P937 ~54658 =---___-:--;--------------:11::-:1..-2 5-2014 a 11 =31 a Document Nurnber Rev, 4/1/20]0Signature of Applicant Page 9 of 10 *ELECTRONIC COPY Massachusetts Department of Environmental Protection Provided by MassDEP: MassDEP File #:003-5053Bureau of Resource Protection -Wetlands eDEP Transaction #:698649WPA Form 5 -Order of Conditions City/Town:BARNSTABLEMassachusetts Wetlands Protection Act M.G.L. c. 131, §40 Page 10 oflO * ELECTRONIC COPY June 12, 2017 Three Bays Preservation Mass Audubon Society C/o John O’Dea Sullivan Engineering & Consulting, Inc. 7 Parker Road Osterville, MA 02655 Re: CZM Federal Consistency Review of Dead Neck/Sampson’s Island Restoration and Management Project; Barnstable. Dear Mr. O’Dea: The Massachusetts Office of Coastal Zone Management (CZM) has completed its review of the proposed maintenance dredging and excavation to re-establish previously permitted channel limits, beach and dune nourishment, and restoration of endangered nesting shorebird habitat at Dead Neck – Sampson’s Island in Barnstable. Based upon our review of applicable information, we concur with your certification and find that the activity as proposed is consistent with the CZM enforceable program policies. If the above-referenced project is modified in any manner, including any changes resulting from permit, license or certification revisions, including those ensuing from an appeal, or the project is noted to be having effects on coastal resources or uses that are different than originally proposed, it is incumbent upon the proponent to notify CZM, submit an explanation of the nature of the change pursuant to 15 CFR 930, and submit any modified state permits, licenses, or certificati ons. CZM will use this information to determine if further federal consistency review is required. Thank you for your cooperation with CZM. Sincerely, Bruce K. Carlisle, Director CZM#15163 (14200) cc; Barbara Newman, Chief, Regulatory Branch, NED, US Army Corps of Engineers Kevin Kotelly, Project Manager, Regulatory Branch, NED, US Army Corps of Engineers Ben Lynch, Program Chief, Waterways Regulation, Massachusetts DEP James Mahala, Section Chief, Southeast Regional Office, Massachusetts DEP Ken Chin, Environmental Engineer, Wetlands Program, Massachusetts DEP Steve McKenna, MCZM Cape and Islands Regional Coordinator MA ENDANGERED SPECIES ACT (G.L. c.131A) CONSERVATION AND MANAGEMENT PERMIT DATE February 1, 2017 CONSERVATION PERMIT NO.: 017-295.DFW NHESP FILE NO. 12-31722 PERMIT HOLDERS Three Bays Preservation, Inc 864 Main Street, PO Box 215 Osterville, MA 02655 Mass Audubon 208 Great South Road Lincoln, MA 01773 PROJECT Dead Neck /Sampson’s Island Restoration and Management Project Pursuant to the authority granted in the Massachusetts Endangered Species Act (“MESA”) (G.L. c. 131A) and its implementing regulations (321 CMR 10.23), the Director of the Massachusetts Division of Fisheries & Wildlife (the “Division”) hereby issues a Conservation and Management Permit (the “Permit”) to Three Bays Preservation, Inc and Mass Audubon (the “Permit Holders”). This permit authorizes the Taking of the State-listed Piping Plover (Charadrius melodus), which is listed as “Threatened,” pursuant to the MESA, arising out of the relocation of ±133,600 cubic yards of sand from the western end of Dead Neck/Sampson’s Island (“DNSI”) for placement and use as habitat enhancement on other areas of Dead Neck/Sampson’s Island (the “Project”), on a ±117 acre Barrier Island located along the southern shore of Cape Cod and bordered by Nantucket Sound in the town of Barnstable, Massachusetts (Land Court Certificate 173003 (Dead Neck) and Book 869, Page 600 (Sampson’s Island), Barnstable County Registry of Deeds; the “Property”). The Division has determined that the Project would result in a Take of Piping Plover through the removal and relocation of nesting and foraging habitat for State-listed species as a result of the Project. Material that provides suitable nesting and foraging habitat will be removed from the western end of DNSI and the majority of the material will be redistributed along the eastern end of DNSI to reestablish suitable nesting and foraging habitat in that area. Under the authority granted by and in accordance with MGL c. 131A 3 and 321 CMR 10.23, the Director may permit the taking of a State-listed species for conservation and management purposes provided that there is a long-term Net Benefit to the conservation of the impacted species. If the Director determines that the applicant for a permit has avoided, minimized and mitigated impacts to the State-listed species consistent with the following Performance Standards, then the Director may issue a conservation and management permit, provided: Conservation & Management Permit 017-295.DFW, Page 2 of 9 (a) the applicant has adequately assessed alternatives to both temporary and permanent impacts to State-listed species; (b) an insignificant portion of the local population would be impacted by the Project or Activity, and; (c) the applicant agrees to carry out a conservation and management plan that provides a long -term Net Benefit to the conservation of the State-listed species that has been approved by the Director, as provided in 321 CMR 10.23(5), and shall be carried out by the applicant. The Director has determined that the applicant for this permit has met the above noted Performance Standards and that the conservation and management plan described herein provides a long -term Net Benefit to the conservation of the Piping Plover (Charadrius melodus). Pursuant to this Permit, (a) a predator management plan; (b) a landscape management plan; (c) a beach management plan; and (d) a state-listed species monitoring plan, will all be implemented on DNSI. The Permit Holders have a long history of state-listed species compatible management and monitoring. Therefore, the Project can be permitted pursuant to the MESA. This Permit is issued to condition the Project and to provide a long -term Net Benefit to Piping Plover. In accordance with the documents submitted to the Division entitled:  Conservation and Management Permit Application” (dated July 2016, prepared by Sullivan Engineering, Inc.; the “Permit Application”);  “Dead Neck Sampson’s Island Dredging and Nourishment Plan” (2 sheets, dated October 14, 2014, prepared by Sullivan Engineering, Inc.; the “Project Plan”); Attachment 1  “Sketch Plan Proposed Land Management Areas on Dead Neck/Sampson’s Island” (revised through 09/15/2014, prepared by Sullivan Engineering, Inc.; the “Land Management Plan”; Attachment 2); and any other plans and documents referenced herein, this Permit is issued with the following conditions: General Conditions: 1. The Project authorized by this Permit shall be completed within five (5) years from the date of issuance. If needed, the Permit Holders shall submit a written request to the Division for an extension of time to complete said Project and the Division will review the Project pursuant to MESA for any continuing impacts as described herein and for any new impacts to any State-listed species found subsequent to the issuance date of this Permit. 2. This Permit shall not preclude the review of future projects on the Property that are subject to the Wetlands Protection Act regulations (310 CMR 10.37, 10.58(4)(b), 10.59), as applicable, by the Natural Heritage & Endangered Species Program (“NHESP”) of the Division. 3. The work authorized by this Permit involves the removal and redistribution of ±133,600 CY of sand, as shown on the Project Plan (Attachment 1) and land management activities (Attachment 2) hereinafter the “Work”. The Work also includes any other on-site activity required by the Division as a condition of this Permit. 4. Division representatives shall have the right to enter and inspect the Property subject to this Permit at reasonable hours to evaluate permit compliance and require the submittal of any reasonable information not otherwise required by this Permit but deemed necessary by the Division to complete its evaluati on. Conservation & Management Permit 017-295.DFW, Page 3 of 9 5. Any proposed change to any plan identified in this Permit, or to the State -listed species conservation plan required by way of this Permit, shall require the Permit Holder to inquire of the Division, in writing, whether the change is significant enough to require the filing of a new Conservation and Management Permit Application, and/or require additional long-term Net Benefit for affected State-listed species. The Division retains the right to require the submittal of additional, reasonable informa tion to evaluate the plan change. 6. This Permit shall apply to, and inure to the benefit of, the Permit Holder and any successor -in-interest of the Permit Holder, or to a subsequent successor-in-control of the Property or portion thereof subject to this Permit should the Permit Holders convey its record ownership of the Property to said successor-in- control, as well as to any contractor or other person performing Work conditioned by this Permit. Within three (3) days of the transfer of an interest in the Property or a portion thereof, any su ccessor-in-interest or subsequent successor-in-control [i.e., subsequent owners or operators] of the Property or a portion thereof shall provide the Division with a letter indicating (1) that the successor is the successor-in-interest of the Permit Holders or the successor-in-control [i.e., current owner or operator] of the Property or a portion thereof, and (2) that said successor will perform the obligations of the Permit Holders as set forth in this Permit. 7. Prior to the start of Work, the Permit Holders shall notify the Division in writing of the name, address, email, business and home telephone numbers of the project supervisor(s) and/or contractor(s) responsible for compliance with this Permit. The Permit Holders shall provide updated information in writing to the Division should new or additional project supervisors and/or contractors be hired after Work has commenced. Within three (3) days of the start of Work, the Permit Holders shall send a letter to the Division stating the date upon which Work commenced. 8. Prior to the start of Work, the text of this Permit shall be recorded by the Permit Holders in the Registry of Deeds or the Land Court for the district in which the Property is located so as to become a record part of the chain of title of the Property. In the case of recorded land, the Permit shall be noted in the Registry’s Grantor Index under the name of the owner of the Property upon which the proposed Work is to be done. In the case of registered land, the Permit shall be noted on the Land Court Certificate of Title of the owner of the Property upon which the proposed Work is done. The Permit Holders shall submit to the Division a date-stamped and signed copy of said recorded Permit showing the date and book and page of recording of said Permit within five (5) days after recording and/or filing, as applicable. No Work shall begin on the Property until the Permit is recorded and said recorded copy is submitted to the Division, except as otherwise approved by the Division in writing. 9. At the completion of Work the Permit Holders shall submit to the Division a written request for a Certificate of Permit Compliance, including as-built plans and other supporting materials demonstrating the completion of Work and compliance with all conditions herein. 10. Any land protected to achieve a long-term Net Benefit associated with this Permit, shall remain undeveloped and protected as habitat for State-listed species in perpetuity. 11. The Permit Holders shall comply with all Conditions and Special Conditions contained within this Permit and complete the Project consistent with all Division-approved plans and supporting documents except as otherwise approved by the Division in writing. 12. The Permit Holders shall submit in writing any documents, plans, reports, or other items required for submission in accordance with this Permit, for review and written approval by the Division, unless otherwise stipulated in this Permit or by the Division in writing. Conservation & Management Permit 017-295.DFW, Page 4 of 9 13. A violation of any condition of this Permit will result in an unauthorized Take pursuant to M.G.L. c. 131A and may be subject to civil and/or criminal penalties pursuant to M.G.L. c. 131A. Special Conditions: 14. Authorized Construction and Uses: This Permit authorizes construction and uses on the Property as described above. All Work shall be confined to the area of the Property within the limits of Work as shown on the Project Plan (Attachment 1) and Land Management Plan (Attachment 2), and all activities shall be carried out as described in the Permit Application, unless otherwise approved by the Division. 15. Construction Timing Restriction: The Permit Holders shall complete all Work during the period of September 1 – March 31, to avoid impacts to breeding Piping Plover. Should the need arise for any Work during the breeding period (April 1 – August 31), the Permit Holders shall hire a qualified shorebird monitor, pre-approved by the Division in writing, to develop a State-listed Species Protection Plan. The Plan must be approved in writing by the Division prior to work commencing during April 1 – August 31 and be properly implemented. 16. Predator Control Program: In order to provide a Net Benefit to the conservation of the State-listed species impacted by this Project, the Permit Holders have proposed, by way of the Permit Application, a program to control predators of Piping Plover on DNSI. The plan includes monitoring, trapping, lethal control, and reporting requirements. As outlined in the Permit Application, the predator management actions shall be evaluated and reported to the Division on a yearly basis, by November 1. The Permit Holders shall submit information regarding the arrangements for predator management for the upcoming season by January 1. The Division reserves the right to modify and amend the Predator Control Program as necessary to improve Piping Plover breeding at DNSI. 17. Beach Management Plan: The Permit Holders have committed to manage DNSI to reduce disturbance to Piping Plovers from both permitted and unauthorized island access. The beach management efforts include: fencing and signage of nesting areas and to restrict or redirect pedestrian access, patrols of qualified rangers/educators, prohibition of recreational activities within suitable Piping Plover habitat during April 1 – August 31, and prohibition of dogs, kites, fires & fireworks from DNSI. Documentation of infractions and annual reporting must be submitted to the Division by November 1. Arrangements for disturbance management must be submitted to the Division by January 1 . The Division reserves the right to modify and amend the Beach Management Plan as necessary to reduce impacts to Piping Plover. 18. Landform & Vegetation Management Plan: The Permit Holders have proposed, by way of the Permit Application measures to enhance habitat, to maintain slopes along the nourishment area, control vegetation, remove trees/predator perches and control phragmites. Prior to the start of any dredge activity, the Permit Holders shall submit the proposed landform and vegetation management implementation schedule to the Division for written approval. 19. State-listed Species Monitoring: The Permit Holders have proposed to continue biological monitoring of terns and Piping Plover at DNSI. The monitoring will be conducted as outlined within the Permit Application. Any reduction in monitoring effort sh all be reported to the Division. A report shall be submitted to the Division each year, on or before September 30, in accordance with standard reporting requirements that summarizes the results of the state-listed species monitoring and site protection activities. Conservation & Management Permit 017-295.DFW, Page 5 of 9 20. Post-construction Surveys & Reports: Within 30 days of dredge and nourishment, a summary report of the activities, including: photographs, documentation of the location(s), volume, and slope of the beneficial reuse material must be submitted to the Division. Post-construction dredge plans must be submitted to the Division within 60 days of any dredge acti vity and clearly outline any deviations or discrepancies with the approved plans. Transect surveys occur during the fall; the Permit Holders are required to submit the details of these surveys for the year of/prior to dredge and the year following any dredge and nourishment activity. 21. Post-construction Beach Management: In order to ensure long-term management of DNSI in accordance with requirements of MESA, upon completion of the five-year enhanced shorebird management program required pursuant to the Permit, the Permit Holders shall continue to implement long -term management generally consistent with the Permit Application. In cooperation with the Division, the long-term management procedures shall be reviewed prior to March 2022, and not less than once every five years thereafter, and more frequently if necessary, and revised, as needed to ensure adequate management of state-listed species and their habitats. All revisions shall be subject to advance review and approval by the Division. 22. Channel Maintenance: Any future dredge of the channel requires review with the Division pursuant to the MESA and may require a separate MESA filing. 23. Construction Staff Education: If any work has received written approval from the Division to occur during April 1 – August 31, then all construction, landscaping, and other sub -contractors associated with the Project shall be informed in writing of the likely presence of State-listed species on the Property and what measures should be implemented to minimize direct harm to State-listed species. Further, no wildlife shall be removed from the Property without approval of a qualified wildlife biologist or the Division except as necessary to receive veterinary treatment in the case of harm during construction. 24. This permit shall not be construed to authorize non -compliance with any applicable, federal, state, or municipal law, statute, or regulation, including but not limited to the Endangered Species Act. The Permit Holders shall not carry out the Project until such time as all applicable permits and authorizations have been received, including an authorization or permit from the United States Fish & Wildlife Service for the Project. 25. The Division shall be notified, in the form of an NHESP Rare Animal or Plant Observation Form, within ten (10) days of the observation of any State-listed species within or outside the limits of Work. Preferably notification will be through the Division’s data submittal tool, the Vernal Pool & Rare Species (VPRS) Information System. VPRS and our paper observations forms can be found at: http://www.mass.gov/dfw/nhesp/vprs. 26. Notice of Appeal Rights: This Determination is a final decision of the Division of Fisheries and Wildlife pursuant to 321 CMR 10.23. Any person aggrieved by this decision shall have the right to an adjudicatory hearing at the Division pursuant to M.G.L. c. 30A, s.11 in accordance with the procedures for informal hearings set forth in 801 CMR 1.02 and 1.03. Any notice of claim for an adjudicatory hearing shall be made in writing and be accompanied by a filing fee in the amount of $500.00. The notice of claim shall be sent to the Division by certified mail, hand delivered or postmarked within twenty-one (21) days of the date of the Division’s Determination to: Jack Buckley Director Conservation & Management Permit 017-295.DFW, Page 6 of 9 Division of Fisheries and Wildlife Field Headquarters One Rabbit Hill Road Westborough, MA 01581 Any notice of claim for an adjudicatory hearing shall include the following information: 1. The file number for the project; 2. The complete name, address and telephone number of the person filing the request, and the name, address and telephone number of any authorized representative; 3. The specific facts that demonstrate that a party filing a notice of claim satisfies the requirements of an “aggrieved person,” including but not limited to (a) how they have a definite interest in the matters in contention within the scope of interests or area of concern of M.G.L. c. 131A or the regulations at 321 CMR 10.00 and (b) have suffered an actual injury which is special and different from that of the public and which has resulted from violation of a duty owed to them by the Division; 4. A clear statement that an adjudicatory hearing is being requested; 5. A clear and concise statement of facts which are grounds for the proceeding, the specific objections to the actions of the Division and the basis for those objections; and the relie f sought through the adjudicatory hearing; and a statement that a copy of the request has been sent by certified mail or hand delivered to the applicant and the record owner, if different from the applicant. Conservation & Management Permit 017-295. DFIN, Page 7 of 9 uckley, Director M sachusetts Division of Fish On this 151 day of February 2017, before me, the undersigned notary public, personally appeared Jack Buckley, Director, proved to me through satisfactory evidence of identification, which was personal knowledge, to be the person whose name is signed on the preceding or attached document, and who swore or affirmed to me that the contents of the document are truthful and accurate to the best of his/her knowledge and belief. Conservation Permit 017-295.DFW Issued this 1st day of February, 2017 Work must be completed by: February 1, 2022 miiy Melissa Holt, Notary Public rriission expires: July 28, 2017 MASSWILDLIFE Conservation & Management Permit 017-295.DFW, Page 8 of 9 ACKNOWLEDGEMENT AND ACCEPTANCE OF ALL TERMS OF THIS CONSERVATION PERMIT The undersigned below agrees that commencement of any work authorized by and described in this Conservation and Management Permit constitutes acknowledgement and acceptance of all terms of this Permit. Signatory 1 Organization COMMONWEALTH OF MASSACHUSETTS On this ________day of ________, 20___, before me, the undersigned notary public, personally appeared ______________________________, proved to me through satisfactory evidence of identification which was ________________________ to be the person whose name is signed on the preceding or attached document, and who swore or affirmed to me that the contents of the document are truthful and accurate to the best of his/her knowledge and belief. Notary Public ____________________________________ SEAL My commission expires: _______________ Conservation & Management Permit 017-295.DFW, Page 9 of 9 Distribution List John O’Dea, Sullivan Engineering Barnstable Board of Selectmen Barnstable Conservation Commission Barnstable Planning Board DEP Southeast Regional Office, Wetlands Program Holly Johnson, MA Environmental Policy Act Office Susi von Oettingen, US Fish & Wildlife Service 1 of 9 CONSERVATION & MANAGEMENT PERMIT APPLICATION FOR THE DEAD NECK SAMPSON’S ISLAND BARRIER BEACH MANAGEMENT PROJECT JULY 26, 2016 A. Dredging and Nourishment 1. Project Scope The Dead Neck Sampson’s Island Barrier Beach Management Project involves the dredging of approximately 133,600 cubic yards over three years, nourishment of 102,200 cubic yards placed as beach nourishment at the east end of DNSI, 20,000 cubic yards for dune restoration, and 11,400 cubic yards to enhance and restore specific habitat features at various locations on DNSI. a. Dredging Proposal for 133,600 cubic yards. Three Bays and Mass Audubon have evaluated alternatives for obtaining the volume of 133,600 cubic yards by limiting the dredging to a baseline other than the post-1934 dredge channel footprint, and taking into account the 1980 Wetland Restriction. Based upon these factors, it has been determined that the 1967 dredge channel footprint provides the necessary volume of material during a three year project cycle. i. Year 1 - dredge ~44,200 cubic yards from west tip of Sampson’s Island ii. Year 2 - dredge ~44,200 cubic yards from west tip of Sampson’s Island iii. Year 3 - dredge ~45,200 cubic yards from west tip of Sampson’s Island The sequence of this revised project proposal is depicted below. 2 of 9 The resource areas affected by the dredging proposal are: Sampson’s Island Spit Dredging / Excavation to the 1967 channel limit: i. Land Under the Ocean –76,000 square feet ii. Beach – 98,400 square feet iii. Dune – 93,000 square feet b. Nourishment Proposal for 133,600 cubic yards. The Project includes the following distribution of the 133,600 cubic yards of sand obtained from the Sampson’s Island spit: i. 72,200 cubic yards to reestablish the “baseline” at the eastern end of DNSI (measured from on-going monitoring surveys), where this volume was calculated based upon the most recent 5-year observed erosion rate of 14,440 cubic yards per year. By the time beach nourishment commences in 2017, the existing nourishment template will be 6 years beyond its design life and this initial volume 3 of 9 to reestablish the “baseline” conditions represents the amount of material needed to return the beach to conditions at the end of the beach template design life; ii. 30,000 cubic yards to supply beach nourishment at the eastern end of DNSI; iii. 20,000 cubic yards for dune restoration; and iv. 11,400 cubic yards to enhance and restore specific habitat features at various locations on DNSI. The resource areas affected by the revised nourishment are as follows: Dead Neck/Sampson’s Island Nourishment i. Land Under the Ocean –310,000 square feet ii. Beach –150,000 square feet iii. Dune –30,000 square feet At the completion of the current proposed dredging and nourishment schedule, the goal for DNSI is to maintain the beach and dune system through regular (more frequent) dredging and nourishment with smaller quantities every 2 to 3 years. Approximately 12,000 cubic yards of material (annualized erosion rate along Dead Neck from 1999 to 2013) would be required on an annual basis to maintain the beach in its restored form. B. Avoidance 1. Dredging Proposal a. The reduced footprints associated with the Project represent a reduction of approximately 5.5 acres of potential State listed nesting shorebird habitat impacted. 2. Time of Year Restriction a. Time of Year restrictions for both the in water maintenance dredging and the beach nourishment will be adhered to. All work will occur during the period of September 15 – March 15. Dredging will occur between October 16 and January 15. C. Minimization i. Nourishment Proposal a. As proposed the shoreline slope of the deposited material from the reduced scope of 4 of 9 work will be no steeper than 15:1, and in no case will the slope of material placed on top from any other project exceed the original approved template not steeper than 10:1. b. The surface of the deposited material shall be left unvegetated and no sand fencing shall be installed. D. Mitigation 1. Project Scope This Management Project commits Three Bays/Mass Audubon to explicitly managing DNSI to provide a Net Benefit in addition to avoiding and minimizing impacts to nesting Piping Plovers and Least Terns in conjunction with other management goals for those locations, and to mitigate unavoidable impacts. The key elements of the Management Project are listed below, followed by a more complete description. Adherence to these plan components will ensure compliance with both MESA and ESA. Under this plan, Three Bays/Mass Audubon will be responsible for the actions listed below Aerial photograph of DNSI system illustrating the various areas of long-term management. 5 of 9 a. Predator Control At DNSI a proactive predator control program that addresses recent issues with predators of the Piping Plover and Least Tern nests has been implemented. The program consists of a monitoring program, and predator management practices including non-lethal and lethal methods and a public outreach program to educate residents regarding the damage done by dogs on the beach during the nesting season. The comprehensive control program is considered to provide a Net Benefit and will be flexible to ensure that predator threats are proactively addressed, as necessary. Mass Audubon and Three Bays Preservation have finalized a comprehensive predator management plan for Dead Neck/Sampson’s Island. The plan includes actions to control observed predators of coastal nesting birds including but not limited to American and Fish Crow, Eastern Coyote, Raccoon, Virginia Opossum, Great Horned Owl, Red Fox, Red-tailed Hawk, Common Grackle and predatory ants. The plan utilizes both lethal and non-lethal actions as deemed appropriate and is based on observed predator activity. It is important to note that non-lethal controls will be preferentially implemented to the extent they are effective and adequate, lethal controls will be used only when non-lethal controls are not adequate. The program currently includes the following tasks: i. Predator monitoring bi-weekly from January to September. Use of best practices to determine presence, abundance and spatial distribution of coastal bird predators. Predator indicators will be recorded on a daily basis during all regular monitoring from March 15th to September 1st. ii. All trapping and lethal control will be undertaken only with state and federal permits and in consultation with state and federal wildlife agencies (MA Division of Fisheries and Wildlife and US Fish and Wildlife Service). Removal of predator perches including dune vegetation will be undertaken with applicable state and town permits pursuant under the Wetlands Protection Act. iii. All lethal management is being carried out on a professional contract basis in consultation with USDA APHIS Wildlife Services personnel or other professional consultants. iv. Evaluation of the effectiveness of predator management actions and report findings to NHESP each year by November 1st. v. The applicants shall notify the MNHESP on or before January 1st of each year as to what arrangements have been made for predator management. b. Biological Monitoring Biological monitoring will include measuring the abundance, distribution, reproductive success, limiting factors and responses to habitat changes and management of nesting Piping Plovers, Common Terns and Least Terns at DNSI. These activities currently 6 of 9 take place and do not represent a Net Benefit. The Management Plan commits the landowners to continue monitoring. The goal of biological monitoring is to determine the level of nesting effort and success on-site, and consists of pre-nesting season observations, to confirm the arrival of nesting birds and nest initiation, and subsequent monitoring of nests and chicks to record nest success and productivity. The methods to achieve these goals are listed briefly below. They provide a standardized approach to measuring nest success and fledgling productivity, and will provide the data required for filling out the Massachusetts Piping Plover Census Form and the Tern Census Form, available from MNHESP’s coastal water bird conservation webpage. i. Piping Plovers: Piping Plovers are territorial, nest singly, and produce precocial young that follow their parents from protected areas where they rest to tidal areas where they feed. Piping Plover chicks feed themselves, but rely on their parents to guide them to and from their feeding and resting areas, and to warn them about predators. Plover chicks are cryptic, but due to their activity and association with their active parents, they are relatively easy to observe and count. To achieve biological monitoring goals for Plovers, breeding surveys will follow these general protocols: 1.1. Surveys will begin the first week of April and continue until all clutches have failed or fledged. 1.2. Surveys will be conducted up to 6-7 days per week, depending upon the weather, but not less than 3 days per week. 1.3. Initial surveys to identify territorial pairs and nest location will preferentially be conducted when winds are relatively calm, light conditions are good, and recreational beach use is relatively low. 1.4. Surveys will identify the total number of resident pairs present on the beach for a season; unpaired and non-resident birds will also be recorded, as observed. 1.5. The location of all nests, total number of eggs laid in each nest and, the number of eggs hatched will be recorded. 1.6. Reason(s) for nest abandonment or failure will be determined, if possible. 1.7. The number of chicks to successfully fledge will be recorded. 1.8. Reason(s) for egg and chick mortality will be determined, if possible. 1.9. Instances of adult injury or mortality will be reported along with causes, if determined. 7 of 9 ii. Least and Common Terns: Least Terns and Common Terns nest colonially, often in large groups, defending only a small area immediately surrounding their nests from other terns. They produce altricial young that must be fed by adult terns, and that remain in or near the nesting area when their parents leave to find food. Young tern chicks are cryptic and because they may not move much or intentionally hide, they can be difficult to observe and count. To achieve biological monitoring goals, breeding surveys for terns will follow these general protocols: 1.1. Weekly surveys to estimate the number of adults and young present will begin the first week of May and continue until all clutches have failed or fledged. 1.2. Observations conducted up to 6-7 days per week in conjunction with Piping Plover nest monitoring to determine first hatch date, but not less than 3 days per week. 1.3. The location of colony and approximate number of nests will be recorded. 1.4. Reason(s) for nest abandonment or failure will be determined, if possible. 1.5. Reason(s) for adult or chick mortality will be determined, if possible. The methods for both species are taken essentially verbatim from the Waterbird Monitoring Protocol for Cape Cod National Seashore and other Coastal Parks, Refuges, and Protected Areas (Irwin et al., 2003), published by the Cape Cod National Seashore. Minor adjustment to the Irwin et al. (2003) protocol were made to account for working in a limited area with known, previous nesting history, as compared to searching extensive areas of beach with an unknown nesting history. As described above, the biological monitoring incorporated into the DNSI Management Project and renourishment project will extend through the duration of construction for an anticipated six-year construction period and four years after completion of construction, for a total of 10 years. c. Beach Management Mass Audubon and Three Bays Preservation will continue the present Beach Management efforts which reduce the potential adverse impacts of human disturbance to protected coastal birds. The goal of the Beach Management efforts will be to eliminate adverse effects to birds that occur as a result of permitted access to the island, and to prevent adverse impacts from unauthorized island access. Mass Audubon and Three Bays Preservation endorse the Beach Management and provide explicit permission to implement disturbance management actions on the island prior to 8 of 9 dredging/renourishment. The Beach Management practices based on the USFWS’ Piping Plover Guidelines (1994) will include the following tasks: i. Fencing and Signage - Deploy, adjust, and maintain symbolic fencing and electric fencing to delineate and protect from predation critical nesting areas at DNSI. In addition, other fencing (e.g. snow fencing where approved) may be used at DNSI to restrict/redirect pedestrian access away from nesting and foraging habitats. Areas of at least 50 meter-radius around nests above the high-tide line should be delineated with warning signs and symbolic fencing. These areas will remain fenced as long as viable eggs or unfledged chicks are present. Symbolic fencing deployed at DNSI will consist of one or two strands of light-weight string, tied between posts to delineate areas where pedestrians should not enter. Educational signage explaining the purpose of the fence and statutory protections of Piping Plovers and terns will be deployed every 200 feet along the fence. In addition, signs readable from off-shore will be placed at beach landing sites to restrict the landing of boats on the island. ii. Each year, May 15 - August 15, qualified ranger/educators shall patrol the island enforcing restrictions and providing information to visitors up to 6-7 days per week, but not less than 3. The proponents may contract with professional enforcement services to secure restricted areas should their services be required to enforce the restrictions. iii. Monitor rules infractions and report findings to MNHESP each year by November 1st. iv. The applicants shall notify the MNHESP on or before January 1st of each year as to what arrangements have been made for disturbance management. v. Excluding all recreational activities (e.g., walking, kite flying, sunbathing, ball playing, etc.) from all habitat used or potentially used by impacted species during the nesting season. vi. No dogs allowed on the beach at any time. vii. No kites or balloons on the island viii. No fires or fireworks allowed on the island d. Landform and Vegetation Management Landform and Vegetation Management will increase habitat for nesting birds and is considered to provide a Net Benefit. The Landform and Vegetation Management will include the following tasks: 9 of 9 i. Habitat Enhancement Areas along the southern and southwestern faces of the system where beach nourishment will be added to enhance and widen the frontal beach. ii. Slope Maintenance along the nourishment area will be performed seasonally as approved by the permitting agencies. Slope maintenance will ensure continued habitat access for coastal waterbirds as the natural erosion continues and allow for easy passage of plover and tern chicks between inter-dune habitat and intertidal zone. iii. Vegetation Control in the northwestern end of Sampson’s Island to connect the Habitat Enhancement Areas to Cotuit Bay. iv. Selective Tree Removal near the southern Habitat Enhancement Areas to protect the coastal waterbirds using the new habitat from predation. v. Phragmites Control along the south end of Pirates Cove to prevent the further spreading of this invasive species which could threaten other habitat areas.