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HomeMy WebLinkAboutCONSERVATION 11162009 discussion November 16, 2009 Discussion Minutes Discussion at 6:00 pm with Mark Grgurovic of Swampwalkers Wetland Ecosystem Specialists - Rare Species Evaluation for the Bird Road Sub-station. Joe Mulkern, Paul Boyden, Derek House, Carole Matthew, Michele White and Elizabeth Leidhold were present. The property is approximately 4 acres. Three acres are within a cleared utility right-of-way with a wetland area and 1 acre is a forested upland and a wetland habitat. The 3 acre right-of-way will remain undeveloped; regular clearing and maintenance will take place in this area. The utility sub- station is proposed for the i-acre parcel. Mansfield's by-law requires a rare species evaluation when a resource area will be altered. Mr. Grgurovic, a Wildlife Biologist, conducted a rare species habitat evaluation in connection with the proposed sub-station on Bird Road. The area for the proposed sub-station is within an Estimated Rare Species Habitat of an endangered vertebrate, unnamed because it is considered a "data sensitive species", and near an Estimated Rare Species, the Marbled Salamander and the Eastern Box Turtle. Mark told the board NHESP, in a letter dated November 13, 2009, concluded the proposed project would not result in a "take" as long as no work is done within the utility right-of-way. Mark said the wetland resource area could be compromised if the proposed slope barrier wall is constructed. He recommended that the slope design be eliminated completely and have a wall ending near the 50 ft. wetland zone with a drainage system that directs run-off away from the forested and scrub shrub wetlands. Questions: The report states that the 3 acre right-of-way will remain undeveloped except for clearing and maintenance. It then goes on to state that this project will not result in a "take" as long as no work will be conducted within the right-of-way. 1.) It has been established that they do work within the right-of-way by clearing and maintenance so therefore isn't it a "take"? For the undisclosed species at the very least? 2.) It also states that the undisclosed species habitat actually does occur within the right-of-way, so with regular clearing and maintenance in this area, how is this not a "take"? 3.) If the right-of-way has the potential to be a site for the turtles feeding, summer shelter and nesting, then perhaps we should prohibit or limit any activity on the right-of-way during the summer months? 4.) There are no recommendations on how to best protect the two potential vernal pools. 5.) Where does the Eastern Box Turtle over-winter on this site? 6.) Are you saying that all three species use this site or just two - the undisclosed and the turtle, not the salamander? 7.) If you are saying potential vernal pool, then why are you saying can't be? 8.) Are marbled salamanders a vernal pool obligate species? If not, they must be using the wetlands. No? The board's and Mark Grgurovic's comments: Question 1.) Mark said not necessarily. Maintenance and clearing is done every 2 years by contract; a "take" would not appiy to this project because access is through Bird Road not the power line. They are not actually doing any work in the power line. Michele White asked if the species is found on site, because they are already doing the maintenance in this area, they won't be affected - if they are on site wouldn't the continued maintenance affect the species? Mark: If the work is done between November and March the species would not be directly affected. Mark thinks Conservation should contact Natural Heritage to make sure the proper permits for the maintenance are in place. Natural Heritage would determine the limits allow as to when they can do the clearing and maintenance. National Grid probably has a maintenance plan. Mark thinks National Grid may also have federal permits for the use of herbicides on site. Carole Matthew said the board is going to have to request they stay off the right-of-way from November to March. Question 8.) Mark told the board Natural Heritage makes a distinction between "within" and "near". The Endangered Species Habitat- the unnamed species - is within the power lines but does not exist within the area of the project; this is probably why Natural Heritage did not think this project would resuit in a "take". The other 2 species occur outside the project area. Mark did not estimate any habitat for the Marbled-Salamander because their breeding occurs within vernal pools that are totally dry. Mark found the vernal pools on site to be completely dry but the pools do appear to hold water in the fall. The vernal pools are very mushy and have a lot of sphagnum. Not ideal for the marbled salamander because they prefer dry wetlands with ample leaf litter cover in order to create nests. When fall rain fills the vernal pool, the species leave. Mark told the board the utility right-of-way could potentially support the feeding, summer shelter and nesting habits for the Eastern Box Turtle. In the report, Mark states an adequate over-wintering habitat is not common on this site; the turtles prefer open canopy forests for extensive sun exposure and abundant coarse woody debris for shelter during hibernation. On this site, the forested upland area has a dense canopy cover and very little woody debris for nest making. Mark told the board when he was on site, he did not see any Eastern Box Turtles. Mark told the board it would be a very small area if they were on site because of the conditions of the site. Paul Boyden asked Mark how far out from the vernal pool the species go and Michele White asked do they always go back to the same place. Mark said there is some evidence that they do but not always; some might go 10 ft. to live under a log for the summer, another one might go as far as 1 mile. Elizabeth asked if the conditions on the site could be because of a very wet year. Paul Boyden asked if all the work would be limited to this area, not exceeding the 25 ft. no disturb zone. Mark said 2.2 of the by-law allows for development to occur in the 25 ft. area; paragraph 2 states facilities used to provide public services such as electric services. Carole Matthew cited 2.4 of 2 the by-law which states "to provide minimum protection for the wetland values and resource areas, no activity, unless permitted in Section 2.5, shall be allowed within 25 ft. of any resource area. Further, the Commission reserves the right to prohibit, or significantly condition, through the issuance of an Order of Conditions, work between 25-50 ft. away from any resource area". The board would take into consideration the slope of adjacent areas, existing and proposed drainage. Carole said this project would come under 2.4 of the by-law. Mark was asked if he agreed with the by-law. He told the board he does not necessarily agree with the 25 ft. no touch; he said that in some cases the 100 ft. buffer is not enough for even the common species. His recommendation for this project is according to the by- law as written. Elizabeth read Mark's comment that the "shrub wetlands were mapped as potential vernal pools but because of the presence of standing water during the fall and the permanent outlet along the southwestern edge, the wetland is uncertifiable according to revised certification guidelines that were amended in spring of 2009". She does not agreed with this; why is it uncertifiable, it is draining the pool, it is still holding water for 2 consecutive months. Mark said the outlet is wet, not dry; to certify, Mark said there would have to be evidence the outlet was completely dry. Michele White asked if it had to be dry for a certain amount of time. Derek House: "So the state has criteria and this project does not meet their requirements for certifying vernal pools." Paul Boyden asked if this was the time of year to go out there and see ifthe species are there. Mark said the Marbled Salamander will start showing up when the pool is dry. Elizabeth feels Mark needs to revisit the site; he was only there for that one day and it has been an extremely wet fall. Paul Boyden asked if Mark was aware of where the construction would be. Mark said he knew where the project would be located. He told the board the flagging of the resource areas was not exact and asked if an ANRAD had been done. Elizabeth said 4 flags were missing. Paul asked who had done the flagging of the wetlands. Carole Matthew thought the delineation was part of the Stanley Village project. Joe Mulkern asked Mark, if the project goes ahead and they stay out of the 50 ft. area, what he would recommend to make this site the better place to locate the substation. Mark said the further away from the resource areas the better. He would recommend silt fencing, frequent inspections, and wildlife plantings. He said this is a pretty disturbed area; there are roads and power lines everywhere. Paul Boyden said he would like Elizabeth's thoughts on National Grid. The Notice of Intent was withdrawn. Elizabeth said a MEPA meeting with National Grid and the Electric Department will be held this Friday at 2:00 at town hall with an on-site inspection. National Grid will be filing shortly with Conservation. Paul said National Grid and the Electric Department are combining these projects. How much is National Grid going to disturb the area with the work they are proposing? Carole Matthew asked Mark if he was basing his determination on the NHESP Maps. She cited 2.6 of the Mansfield by-law; if the state's Natural Heritage Program determines, through a site visit, that the Vernal Pool or wetland area is not a significant habitat area then the Commission may allow, through an Order of Conditions, activity to occur within 100 ft. of said pool or wetland area. It is required that someone from Natural Heritage physically come out and look at the site in question. 3 Paul Boyden said the information supplied to Natural Heritage on the "no take" did not come from Conservation. He asked Mark how many no "takes" would have been determined "takes" if someone from Natural Heritage had come out and checked. Mark said probably a lot more would have been determined to be "takes". Michele White asked Mark about his recommendations concerning the project: eliminate the slope design, have a barrier wall that ends near 50 ft. wetland area, redirect the drainage away from wetlands. Besides the improvements Mark recommended, is there anything else that could be done with the wetland areas. Joe Mulkern said the board could require deeper, thicker barrier walls, enabling everything else to be left alone and get the project out of the 25 ft. area. The present drainage drains off site; may be the drainage system could be moved closer. Michele White asked Mark, because we do not have evidence that the outlet is dry, the board is unable to certify these potential vernal pools. If that is the case, the board can not hold the project to any extra distance - 50 ft. for uncertified pools to 100 ft. for certified - but if something can not be certified, as opposed to something that is not certified? Mark said the board would have to follow the state's criteria. Paul Boyden: "We do not know how much disturbance will be created by the National Grid project. National Grid has said there are 3 vernal pools on site not "potential" vernal pools." Carole Matthew said if there are potential vernal pools on any site, in the past, the board has required they be certified by the applicant or the agent. Paul said if there are no vernal pools on site, the board can not hold the project to 100 ft.; the board would have to hold them to 50 ft. and see what they can come up with for the project. Derek House said the Electric Department should be required to file an ANRAD first to determine the wetland line; they would need to get their engineers to determine whether there are any vernal pools on the site or not. If there are no vernal pools, the 50 ft. would be applied. Joe Mulkern asked if the board could require the Electric Department to stay out of the 50 ft. unless they are determined to be vernal pools; then they would be held to the 100 ft. Paul Boyden referenced a Grove Street violation; the filling in of a back yard that encroached on a little pool which turned out to be a vernal pool. He feels the board need to be consistent. Paul Boyden asked why the substation can't be located under the power lines. Mark said if they proposed a transformer under the power lines, it would definitely be a "take". Michele White said she did not think any town facilities were allowed to work within these areas because of liability. Derek House said it is a safety issued. Derek House asked, as far as Conservation is concerned, is there a better site, one more suitable for this project? Because National Grid is already there, Paul thinks it is the better site. But Mark agreed with Paul, it is not the best site but probably is the most suitable site. If it was located somewhere else, it would required the power lines to be run at a greater distance from Bird Road. Joe Mulkern: "If we give them a list of things we expect such as they stay out of the 50 ft., we would expect someone to come to every meeting to let the board know what is going on. Elizabeth can check the progress on the project to make sure everything is being done properly. Carole Matthew said the board should not do anything until after the MEPA meeting this Friday. 4 Elizabeth: "Before we discuss set backs, we need to get the resource areas delineated. We do not know what we have there. Derek House: "Then we should ask for an ANRAD - start with the ANRAD. Elizabeth said they have a current line but a lot of flags are not there. Carole Matthew thinks Chris Ross from DEP said the flags are from the Jay Zola project, Stanley Village. Derek House: "The line needs to be checked. National Grid needs to flag out their own property. Jay Zola and Stanley Village is not a concern as far as the flags are concerned. Mark was asked what else would enhance the vernal pools. Besides staying away from the pools, he thought the board should ask for some off site remediation for any of the impacted areas. Carole Matthew suggested that board not make a decision until after the MEPA meeting this Friday, November 20, 2009. She will attend the meeting and on-site inspection. The board decided to further discuss the 50 ft. and then have the resource areas re-flagged; National Grid needs to delineate their own property. Paul Boyden asked Mark to submit a total resume. Discussion ended at 7:00 pm. lr:;~"it ckM Date orM<-- d5"/:bd /0 5