HomeMy WebLinkAboutNHESP LetterMarch 01, 2024
Mark Ells
Town of Barnstable
367 Main Street
Barnstable, Massachusetts NA
Barnstable Conservation Commission
200 Main Street
Barnstable, MA 02601
RE: Applicant: Mark Ells
Project Location: Mystic Lake
Project Description: Phosphorus Inactivation Project
DEP Wetlands File No.: Not Issued
NHESP File No.: 24-17114
Dear Commissioners and Applicant:
The Natural Heritage & Endangered Species Program of the Massachusetts Division of Fisheries & Wildlife (the
“Division”) received a Notice of Intent in compliance with the rare wetland wildlife species habitat provisions of
the Massachusetts Wetlands Protection Act Regulations (310 CMR 10.59). The Division also received the MESA
Review Checklist and supporting documentation for review pursuant to the MA Endangered Species Act
Regulations (321 CMR 10.18).
The Division has determined that this Project, as currently proposed, will occur within the actual habitat of the
following species:
Scientific Name Common Name Taxonomic Group State Status
Special ConcernMusselEastern PondmusselLigumia nasuta
Special ConcernMusselTidewater MucketLeptodea ochracea
State-listed species and their habitats are protected in accordance with the rare species provisions of the WPA and
the MESA.
The purpose of the Division’s review of the proposed project under the WPA regulations is to determine whether
the project will have any adverse effects on the Resource Areas Habitats of state-listed species. The purpose of the
24-17114NHESP No.Page 2 of 5 Issued March 01, 2024
Division’s review under the MESA regulations is to determine whether a Take of state-listed species will result
from the proposed project.
Based on the information provided and the information contained in our database, it is the opinion of the Division
that this project, as currently proposed, must be conditioned in order to avoid adverse effects to the Resource
Area Habitats of state-listed wildlife species (310 CMR 10.37, 10.58(4)(b), 10.59) and must be conditioned in order
to avoid a prohibited Take of state-listed species (321 CMR 10.18(2)(a)). To avoid adverse effects to the Resource
Area Habitats and to avoid a prohibited Take of state-listed species, the conditions attached to this letter must
be met.
The following conditions shall be added to any approving Order of Conditions (new, amended or renewed) for the
protection of Fisheries:
1.Daily, after each application, a visual inspection of the floc drift zone must be conducted by a competent
professional to look for harm to fish. Inspections must visually cover the entire likely area of drift and take into
consideration wind speed and direction.
2.If any fish kill is observed, the Division must be notified immediately (Fish Kill cell phone at 508-450-5869). The
Fill Kill phone is monitored April 1st through October 1st. If you do not hear back from the Division within a ½ hour
of your call/message, call the Department of Environmental Law Enforcement Radio Room (staffed 24/7;
800-632-8075).
3.No additional application of alum shall occur until the likely cause of fish kill is understood and under control
and re-initiation of alum is approved by the Division.
Provided the WPA conditions are included in any approving Orders of Conditions issued by the Conservation
Commission, and the applicant complies with all the above noted conditions, the project will not result in an
adverse impact to the resource area habitats of state-listed wetland wildlife species habitat pursuant to the WPA.
The conditions will also ensure that the project will not result in a prohibited Take pursuant to the MESA. A copy of
the final Order of Conditions shall be sent to the NHESP simultaneously with the applicant as stated in the
Procedures section of the WPA (310 CMR 10.05(6)(e)). The MESA determination is a final decision of the Division
of Fisheries and Wildlife pursuant to 321 CMR 10.18
Note, MA WPA Renewal, Extension or Amendment of the Order of Conditions and or Request for Certificate of
Compliance. Upon filing for any renewal, extension, amendment, certificate of compliance of any Orders of
Conditions associated with this site pursuant to the MA Wetlands Protection Act, the Applicant shall similarly file
with the Division.
The Division may find that any future proposed management activity individually or in combination will result in a
Take and may require a MESA CMP subject to 321 CMR 10.23. This approval for Work explicitly and exclusively
applies to the activities and specific products and chemicals described herein. Any changes to the proposed
project or any additional work beyond that shown on the Project Plans require an additional filing with the Division
pursuant to the MESA. This project may be subject to further review if no physical work is commenced within five
years from the date of issuance of this determination, or if there is a change to the project.
If you have any questions regarding this letter, please contact Misty-Anne Marold, Senior Endangered Species
Review Biologist, at misty-anne.marold@mass.gov or 508-389-6356.
24-17114NHESP No.Page 3 of 5 Issued March 01, 2024
Sincerely,
Jesse Leddick
Assistant Director
cc:
Attachment: List of Conditions
24-17114NHESP No.Page 4 of 5 Issued March 01, 2024
List of Conditions
Applicant: Mark Ells
Project Location: Mystic Lake
Project Description: Phosphorus Inactivation Project
NHESP File No.: 24-17114
Heritage Hub Form ID: RC-83937
Approved Plan: A Notice of Intent for a Supplemental Phosphorus Inactivation Project at Mystic Lake,
Barnstable, Massachusetts
Plan date: January 2024 Revised Date: N/A
To avoid adverse effects to the Resource Area Habitats and to avoid a prohibited Take of state-listed species, the
following condition(s) must be met:
1.Mussel Protection, Temporary Access Areas: Prior to installation of any access improvements within the Bank
or Land Under Water or Waterbodies, a mussel sweep shall be conducted in each year of work to move
state-listed mussels away from the area of work, installation of the temporary walkway/dock, or hoses
moving/dragging. The mussel biologist will search all suitable habitat in areas of work, and a buffer area of the
limit of work, for state-listed mussels and translocate them outside of the area subject to alteration.
a. State Listed Mussel Sweep: A mussel sweep shall be conducted immediately prior to the initiation of work in
each year of work. Mussels shall be located, identified, and moved to suitable habitat away from impacts
associated with the project.
b. Pre-Approval: The Division must pre-approve the candidate biologist(s) prior to any Work subject to this
condition. The ability to locate and identify state-listed mussels requires significant experience with the target
mussel species. The resume/curriculum vitae of the candidate biologist, demonstrating extensive experience
locating state-listed mussels, shall be sent to the Division for written pre-approval.
c. Collection Permit: The biologist must obtain a Commercial Scientific Collection Permit for this project site
prior to conducting mussel sweeps. Commercial Scientific Collection Permit Application & filing fee information
can be found at: https://www.mass.gov/doc/commercial-scientific-collection-permit-application/download.
d. Survey Timing: Survey and relocation of mussels shall only occur between June 1 and October 1.
e. Reporting: The survey report, reporting positive or negative finding (aka ‘fail to find’) shall be submitted to
the Division as outlined in the survey guidelines reporting all state-listed and watch-listed species. Please note
that survey data must be submitted via the Heritage Hub
(https://www.mass.gov/info-details/overview-of-the-heritage-hub) within 10 days of the completion of the
survey.
2.Alum Application: The proposed alum treatment to supplemental the prior 2010 treatment is proposed to
achieve up to a 50 g/m2 sediment dose to reduce the internal phosphorus recycling . The 2010 alum treatment
was over ~58 acres and a dose of 30-50 g/m2 over six targeted areas was applied.
a. Individual Treatment Doses: Maximum target sediment dose 50 g/m2.
b. Treatment Depth and Area: All area deeper than 7 meters (23 feet) for a total of about 77 acres (Figure 4,
NOI). The number and location of travel paths to complete the treatments shall be selected to minimize
delivery of floc into waters shallower than 12 feet.
c. Timing: Alum application is expected to occur in fall to avoid alewife . The alum will be applied by
subsurface injection.
24-17114NHESP No.Page 5 of 5 Issued March 01, 2024
d. Buffering: The alum will be treated with a balanced ratio of 2:1 of aluminum sulfate to sodium aluminum
to buffer the treatment and ensure that pH remain within the normal range for this Pond (6-8 SU), throughout
the treatment.
e. Oversight: Alum application oversight must be provided by a competent professional experienced with
alum application.
f. Water Temperature: Alum applications shall only occur at water temperatures greater than 40ºF.
3.Notify DFW Southeast District office. The Southeast District Office of the Division of Fisheries & Wildlife {(508)
759-3406, steve.hurley@mass.gov; Jason.zimmer@mass.gov} shall be notified 3 working days prior to the
initiation of each alum treatment.
4.Submit Water Quality Monitoring Plan: Prior to initiation of treatment, the project will submit a water quality
monitoring plan. Elements of the plan are discussed in the filing and just require providing more
implementation detail (e.g., how many samples, how many locations, what are the parameters, etc.).
5.Year 4 Mussel Monitoring/Survey: To evaluate mussel population response to the treatments, a mussel survey
shall be conducted 4 years after the date of issuance of this letter. A detailed field survey for state-listed
mussels shall be prepared for the proposed project and submitted for review. The survey shall adhere to the
following conditions:
a. The Applicant shall engage a qualified mussel biologist to survey the pond using methods and locations
consistent with the prior mussel surveys to allow direct comparison between the data collected during these
two time periods.
b. The Division MUST pre-approve the candidate biologist before mussel surveys begin .
c. In order to handle state-listed species, the biologist must obtain a Commercial Scientific Collection Permit for
this project site.
d. Surveys may only be conducted from June 1 through October 1, unless otherwise directed in writing by the
Division.
e. At the completion of the survey, a Survey Report following the guidelines above must be submitted to the
Division.
5.Authorization Duration: This authorization is valid for 5 years from the date of issuance. Work may be
completed at any time during this 5-year period in compliance with the conditions herein. Thereafter, the
Applicant must re-file pursuant to the MESA.