Conservation Commission

The City of Lowell • Dept. of Planning and Development • Division of Development Services Lowell City Hall • 375 Merrimack Street • Lowell, MA 01852 P: 978.674.4144 • F: 978.446.7103 www.LowellMA.gov Diane N. Tradd Assistant City Manager/Director R. Eric Slagle Director of Development Services CONSERVATION COMMISSION LOWELL, MASSACHUSETTS October 14, 2020 Note: These minutes are not completed verbatim. For further detail, video recordings are available at the Pollard Library, second floor reference desk or online at www.LTC.org. Due to the COVID-19 pandemic, this meeting was held virtually using Zoom. Members Present: Chairwoman Varnum, Commissioner Lovely, Commissioner Dillon, Commissioner Downs, and Commissioner Standish Members Absent: Bradley Buitenhuys Others Present: Jared Alves, Senior Planner CALL TO ORDER 7:01 PM CONTINUED BUSINESS Request for Determination of Applicability Fair Dermody Consulting Engineers c/o Keolis Commuter Services 470 Atlantic Avenue, Ste. 500 Boston, MA 02110 Project Location: MBTA Right-of-Way Operated by Keolis Commuter Services A Request for Determination of Applicability has been filed by Keolis Commuter Services to renew the wetlands map along the right-of-way (ROW) in order to continue vegetation management activities as outlined in the proposed 2021-2025 Vegetation Management Plan. On Behalf: Clary Coutu, Director of Environmental Compliance, Keolis Matt Donovan, FDC Engineers Ms. Coutu presented the Request for Determination of Application (RDA) for vegetation management renewal for 2021-2025. In the past, the Conservation Commission has issued a positive II and a negative V determination. She is available to answer any questions. One-quarter mile is a no spray zone. 1.5 miles is limited spray. Mr. Donovan presented the maps submitted for the RDA. They have a website that will be updated regularly during the five-year process. They will continue to send the materials via certified mail every year. They are required to submit these maps to confirm that the boundaries of the resource areas are adequate. The vegetation management plan includes chemical, physical, and mechanical methods. They follow best management practices to minimize chemical application as much as possible. The maps mainly outline sensitive areas for chemical use and identify private wells. The maps have not changed since 2016, although they checked to see whether changes were needed. They will use a spray truck with an operator accompanied by an environmental monitor employed by Keolis. In the no spray zones, they will only spray the tracks and track bed with chemicals as required by federal regulation. In the blue zones, they can spray once per year outside of the track structure. In these areas, they use more physical or mechanical approaches. They only use chemicals approved by the Department of Agriculture. Speaking in Favor: None Speaking in Opposition: None Discussion: Chairwoman Varnum said that it is essentially the same plan approved previously in terms of spray zones and types of chemicals sprayed. Mr. Donovan said that’s correct. Commissioner Lovely thanked them for the overview. He referred to the notice from MACC. Mr. Donovan confirmed that they are doing 103 RDAs. Commissioner Lovely said that MACC asked to confirm wetland boundaries and then approve on positive IIA or IIB. He asked what Keolis has briefed to other Conservation Commissions. Ms. Coutu said that Lowell often issues a positive IIA and a negative V determination. The guidance from MACC is somewhat extraordinary. Some communities were a little confused about it because if they only issue a positive determination, then Keolis must submit a Notice of Intent (NOI). Lowell does it correctly by issuing a positive IIA and a negative V determination. Nothing has changed since the previous RDA, except to provide more information. In previous years, the Commissioners didn’t understand the best management practices and had assumed that they were just chemical applications. She has let Commissioners know that they can come back to Keolis each year during the 45-year period. Commissioner Lovely said that’s helpful. His proposed to first confirm that the applicant is operating in a jurisdictional area and then determine whether the proposed activity is de minimis. For most projects, the Commission would issue a negative III determination. In this case, the wetland boundaries are the same. The proposed activities are under the jurisdiction of the act, but he would argue that the proposed actions are de minimis and therefore are not harmful. He asked what a negative V determination means. Ms. Coutu said that for negative V they could list whichever exemptions they would like. She read the description. She discussed the typical exemptions granted under negative V determinations. Commissioner Lovely said that the difference between negative III and negative V is that the former is a generic approval of the project without getting into the presumptive exemptions covered under a negative V. Ms. Coutu confirmed and said that it is for work within the Buffer Zone. 10/14 Conservation Commission – Meeting Minutes | 2 Commissioner Dillon clarified that from the MACC guidance they only want to do a positive II or III and not do a negative II or V and that if they would like to come back with an NOI then that would be the next step. However, Keolis would not like that. Ms. Coutu said that it would be impractical and unnecessary. An NOI is for work that has alternatives to review. They either spray or cut. Commissioner Dillon said they would be spraying or cutting regardless. Ms. Coutu said it’s a federal requirement to clear the roadbed and maintain setbacks for line of sight. State agencies at the Secretariat level need to review these years. There will likely be changes to the regulations by the next cycle in 2025. The intent of MACC was to give guidance. At the same time, each community is different. Some do not have any resource areas, but Keolis still needs to present to those communities and explain. Commissioner Dillon clarified that NOIs are more expensive. Ms. Coutu said that they are not only more expensive, but they are more involved. You need to express in detail the impacts and provide alternatives. In this case, there are no other feasible alternatives. Commissioner Standish said that according to the MACC guidance, as long as they stick to the vegetation management plan approved by the Department of Agricultural Resources he is good with the proposal and is satisfied with the applicant’s approach. Commissioner Lovely said that the boundaries haven’t changed. He agrees with them and would support a positive IIA determination. Regarding the proposed activity, a Negative V would be more appropriate because the proposed activity encompasses more than the buffer zone. Ms. Coutu said that is the way that communities have approved these projects in the past. They approve the delineation and then they issue a negative V to confirm that they do not need to go through the NOI process. It’s common. Staff confirmed that they could prepare the DOA by checking both boxes. Motion: W. Lovely motioned and P. Downs seconded the motion to issue a Positive IIA and Negative V determination. The motion passed unanimously, (5-0). NEW BUSINESS Request for Determination of Applicability MassDOT Highway Division, District 4 Sandra J. Sprague, District Environmental Engineer 519 Appleton Street Arlington, MA 02476 Project Location: 1461 Pawtucket Blvd./Rte. 113 01854 A Request for Determination of Applicability has been filed by MassDOT for drainage replacement and associated work at 1461 Pawtucket Blvd./Rte. 113, which is within the 25-ft. Riverfront Area of the Merrimack River. On Behalf: Sandra Sprague, MassDOT 10/14 Conservation Commission – Meeting Minutes | 3 Ms. Sprague said that is a small pipe that has been around since 1934. Adjacent to it is a sinkhole, so they will replace the entire pipe. A nearby outlet and this one has created a scour hole. They will put in some riprap to fill it in. The work will pretty much be done from the roadway. It will take a day or two. They will loam and seed afterwards. It’s straightforward maintenance of a collapsed form. It will involve minimal excavation because the pipe is small. Speaking in Favor: None Speaking in Opposition: None Discussion: Chairwoman Varnum said that they had good photos submitted with the application and this looks like a necessary activity as there could be major damage if it’s not fixed soon. The highway is fairly narrow, so there is not really an opportunity to relocate it. She asked about storage of materials. Ms. Sprague said that there is no storage. It’s a one-day project. It is quick and easy. They will need to close down part of the road to do it. There is an overhead wire along the side, so they are limited in the work area. Chairwoman Varnum asked about tree removal. Ms. Sprague said that there is one at the outlet that they would like to remove. It’s a small tree, only about 7 inches at chest height. It is inundated with bittersweet. The utility company has wacked down most of the tree already because of the utility pole. The roots aren’t that secure. It doesn’t really have a canopy. Chairwoman Varnum said that it sounds like the overhead wire would prevent planting of anything larger than a shrub. Ms. Sprague said that she wouldn’t suggest it. They are cutting the trees along the route to protect the overhead wires. Chairwoman Varnum asked about how they will stabilize the slopes. Ms. Sprague said they would loam and seed. It’s a really shallow pipe. At the outlet, they will place riprap. She would like to get rid of more bittersweet, especially since it’s working its way towards two large maples. Chairwoman Varnum asked about sedimentation control. Ms. Sprague said that before the project starts, they would install the sedimentation control between the project and the river. Chairwoman Varnum asked about a start date. Ms. Sprague suggested as soon as possible. It has gotten worse since a month or two ago. It likely washed out more after all the rain yesterday. Commissioner Lovely asked if they are GPS’ing the outfalls that they need to replace. 10/14 Conservation Commission – Meeting Minutes | 4 Ms. Sprague said that they have the old plans and since they are reinstalled in the same location, they are just saying that they are in the same place. They don’t yet have the outfalls in GIS. Commissioner Lovely said that updating the maps is important for spill response, (e.g., spilled oil tanker discharging to the outfall pipe). Ms. Sprague said that the ones on routes 113 and 110 through Lowell… those roads have been worked on a lot. They have record plans even if they are not a GIS layer. They can quickly pull them. Commissioner Lovely said that’s great for contingency planning and spill response. Ms. Sprague said that in a Lowell a lot of catch basins end up in the waste treatment plant. Motion: W. Lovely motioned and W. Standish seconded the motion to issue a Negative III determination. The motion passed unanimously, (5-0). Emergency Certification Redwood Terrace, LLC 126 John Street, Ste. 10 Lowell, MA 01852 Project Location: 109 Wood Street 01851 Staff issued an emergency certification to remove four trees within the 100-ft. Buffer Zone to Bordering Vegetated Wetlands that posed an immediate safety risk. On Behalf: Ricky Malrani, Redwood Terrace Mr. Malrani said that the four trees were rotten. Michelle walks the property before winter sets in. She found these four trees that were in rough shape. They requested a visit. Ms. Cigliano checked the trees and confirmed that they were rotten. They are so close to the buildings so that winter or a storm could fall onto the buildings and hurt someone. Speaking in Favor: None Speaking in Opposition: None Discussion: Chairwoman Varnum said that the site is along Black Brook. She has looked at those trees for quite some time. She agreed that having them removed made sense. Mr. Malrani said that the property manager does an amazing job ensuring the safety of residents. He thanked the Commissioners for approving it right away. Chairwoman Varnum asked about replanting. Mr. Malrani said that in the spring they would reseed the area. They like to keep it beautiful. 10/14 Conservation Commission – Meeting Minutes | 5 Chairwoman Varnum said that the job was completed successfully and asked to ratify the Emergency Certification. Motion: W. Lovely motioned and W. Standish seconded the motion to ratify the emergency certification. The motion passed unanimously, (5-0). Enforcement Order Duel State Investments, LLC 15 Mannion Place Littleton, MA 01460 Violation Location: 25 Clifton Street 01852 Earth removal and fill dumping within the 100-ft. Buffer Zone to Bordering Vegetated Wetlands without permission from the Conservation Commission. On Behalf: John Faneros, Duel State Investments, LLC Mr. Faneros said that he sold the house to the left and people got a building permit to rip down the garage. They asked to store concrete blocks in his yard. He approved so long as they didn’t put it in the wetland area. Before he bought the lot, he had it surveyed. Just for a few days, they stored blocks that were not in the wetland area. He gave staff the information from FEMA and his engineer. Speaking in Favor: None Speaking in Opposition: Denise Roy, 7 Clifton Street Discussion: Chairwoman Varnum said that at the last minute they received further information about Clifton Street. She clarified that it’s lot 1. Mr. Faneros said that is correct, it’s the vacant lot. A portion is in the wetland area. Chairwoman Varnum confirmed that the house is out of the jurisdictional area. She asked if the demolition debris was removed and about loam spread into the wetland area. Mr. Faneros said that there was a little excess loam, which he stored in a part that is not in the wetland. Chairwoman Varnum asked if they were intending to leave it there. Mr. Faneros said it was temporary. They did not have area when they were working on the house next-door. Chairwoman Varnum asked where the loam came from. Mr. Faneros said it was excess until they backfilled their foundation. Chairwoman Varnum asked if it could be removed. 10/14 Conservation Commission – Meeting Minutes | 6 Mr. Faneros said that down the road they would apply for a permit to build a home there. It would not be within the wetland area. The engineer gave a building envelope. He is working with an architect now. Chairwoman Varnum said that the wetlands come up within a few feet of the proposed footprint. On the Commission, they typically require a setback so that the occupants have a yard area without encroaching on the wetland area. That is the issue. It appears that the house is out of the floodplain, but not much of the yard. Mr. Faneros said that they would not be doing anything with that area. As the plans get further along, he can provide more accuracy about the dimensions. Commissioner Dillon said that the map looks as though the flood line comes relatively close to the house. He is just looking at the pictures and it looks like the loam would fall within the yellow portion of the flood line. Chairwoman Varnum said that is hard to tell from the FEMA letter and materials. They may have been looking at the former line. Mr. Faneros said that everyone was looking at the GIS. At the next meeting, he will bring the engineer who did all the work. Commissioner Dillon said that the only map he has is the Lowell city GIS. Chairwoman Varnum said they have an enforcement order. They will need an application from him at some point. They will need to decide whether to ratify the Enforcement Order (EO) or leave it in place until he comes in with an NOI. Ms. Roy said that Mr. Faneros put the cement piles there to start building the house. Mr. Faneros said that the cement was for the property next-door. Ms. Roy said that the loam was dumped there and the grade is built up a foot or foot and a half from before. There used to be a level grade down to the street, which is now gone. She has owned the property for 60 years. and wetlands in that portion of the property flood every year. The oblong circle shown on the plan was a pool that always rusted, which is why they took it down. If they fill that depression, then her cellar will flood. There was a shed there, but it rotted out. They tried to plant trees, but they get flooded and fall over. Chairwoman Varnum said that it appears that they have evidence from the applicant and the neighbor that it is a property in their jurisdiction. They will need to receive more information. She wants to ratify the EO and leave it in place until they get an application. She would like to see topography before and after. The enforcement was appropriate. Commissioner Lovely said he would like to ratify it. The color map shows almost the entire lot within the floodplain. The other map makes it look like a house outside of the floodplain. If the house proposed for that lot, any sort of grading within the 100-year floodplain would need to be documented with maps showing cuts and fills to ensure no net loss of flood storage. We do not have enough information right now to make a decision. He would like to first ratify the EO and then the applicant needs to think carefully about submitting the RDA route or an NOI, which will depend on how much work is within the floodplain. Commissioner Standish said they need more information. He is confused about the origin of the concrete. Commissioner Lovely said that without additional information they could not even opine about what is more appropriate, an RDA or NOI. 10/14 Conservation Commission – Meeting Minutes | 7 Chairwoman Varnum said that a plot plan doesn’t tell the whole story. She still thinks that the EO is something that should remain in place until they get more paperwork either an RDA or an NOI. She expects to be given some information, including topography. Commissioner Lovely said that he would need to provide a figure that confirms the floodplain boundary and the proposed area of work. For work within the floodplain boundary, they would need topography with cuts and fills to ensure no loss of floodplain storage. Chairwoman Varnum said that with an EO, no work should proceed until Mr. Faneros receives permission from the Conservation Commission. Next, they are looking for him to apply. She would like the topography show the historic contours and then what he would like to propose. Mr. Faneros said that he understood. Motion: W. Lovely motioned and W. Standish seconded the motion to ratify the enforcement order. The motion passed unanimously, (5-0). OTHER BUSINESS Minutes September 9, 2020 September 23, 2020 W. Lovely motioned and K. Dillon seconded the motion to approve the minutes from September 9, 2020 with some minor edits. The motion passed unanimously, (5-0). The Commission will consider the September 23, 2020 minutes at their next meeting. 2021 Meeting Schedule W. Lovely motioned and P. Downs seconded the motion to approve the 2021 meeting schedule. The motion passed unanimously, (5-0). 7 Chambers Street – Bittersweet Removal Staff said that the Canalwater Cleaners would like permission to remove invasive bittersweet at 7 Chambers Street and to apply an herbicide to the stumps. Commissioner Lovely asked to confirm that the herbicide is on the approved list and intended use. Chairwoman Varnum said that the Canal Water Cleaners have done good work. Removing this bittersweet would be appropriate. She thinks that it will likely survive the herbicide, but if it’s not dangerous near a waterway then she favors it. Commissioner Dillon said he has worked with them and would be willing to wrestle the bittersweet. Commissioner Standish said that the herbicide might warrant a little more review. He said there are not many studies on human health side effects. It’s usually used in forestry applications and not next to water. 10/14 Conservation Commission – Meeting Minutes | 8 Commissioner Lovely said that he pulled up the EPA pesticide factsheet. Chairwoman Varnum asked if you need a license to apply it. Commissioner Standish said it is listed as a pesticide. Staff said they could invite them to attend the next meeting to provide more information. Motion: The Commission asked the Canalwaters Cleaners to attend the October 28 meeting to discuss the herbicide that they propose to use to remove the invasive bittersweet. Broadway Street Bridge, Canal Street Bridge, Canal Street (extension), and Francis Street (formerly Streets F&G DEP# 206-0803 On Behalf: Gene Crouch, Sr. Environmental Scientist, VHB Mr. Crouch noted that there was a mistake with the legal ad. He had thought the hearing was continued to tonight’s meeting as it was announced in the newspaper and the mailed notice letters. He asked the Commission to continue the meeting. He said it was advertised appropriately for tonight. Discussion: Chairwoman Varnum said they have been notified of a glitch in the notice for the project on F&G streets. Mr. Crouch said that it is a project in the mill redevelopment district to create some new roads, improve some bridges, and install a new bridge. Chairwoman Varnum said that she definitely read a notice to that effect. Commissioner Lovely asked if it is an NOI. Mr. Crouch said the project was approved in 2018 and unfortunately the Order of Conditions expired and no one realized it. They were told to refile the NOI. Commissioner Lovely said that it presumably already has a DEP #. Mr. Crouch said it does. He said that he abutter’s list is over 600 names. It’s a fair effort to get a letter out to all those people. Chairwoman Varnum said that she is willing to continue it. Her concern is that it wasn’t on the agenda to be continued. Commissioner Lovely said that they could acknowledge what was discussed. Unless there is something procedurally wrong that prevents them from doing it, the outcome is no different from opening it and continuing it. He would argue that they could do this in other business with the intent that this topic is added to the next meeting for discussion. It was an honest mistake he doesn’t want to be punitive with the applicant so long as it doesn’t compromise the integrity of the process. 10/14 Conservation Commission – Meeting Minutes | 9 Mr. Crouch said he believes it’s the right thing to do. Since it was advertised for tonight, anyone who saw that and wanted to participate would’ve seen it and would continue it. Commissioner Lovely asked if it that’s the case when it’s not the agenda. Mr. Crouch said yes because it’s in the newspaper. Commissioner Lovely asked if they could acknowledge the issue and point out that, the announcement was made in the local newspaper. Mr. Crouch said that if it is challenged then it would be an issue for the city, but he is trying to avoid that. Commissioner Lovely said his point is that it is being videotaped. Everyone will still be afforded the opportunity to comment on the project and it will be captured in the meeting notes and broadcast. No one is present tonight for the project. Mr. Crouch suggested opening the hearing and not discussing it and then continuing it to the next hearing. Chairwoman Varnum said that she is willing to give it a try. Mr. Crouch said that the legal ad he received from staff had tonight’s date and time. It was published in the paper. He’s not sure where the short-circuit occurred. Chairwoman Varnum said they should have a motion to cover the situation. If they find out that’s not appropriate then they could continue as if nothing had yet happened. Commissioner Standish said it makes sense to him. Commissioner Dillon asked if they are expecting any opposition. Mr. Crouch said not really. No one was present at the last meeting when it was on the agenda. The Commission reviewed the notice. Commissioner Lovely said that he would be open to continuing the hearing due to the circumstances presented tonight. Chairwoman Varnum said they will continue it again. Motion: W. Standish motioned and K. Dillon seconded the motion to continue the hearing on this NOI due to a notice error until the October 28 meeting. The motion passed unanimously, (5-0). ADJOURNMENT W. Lovely motioned and W. Standish seconded the motion to adjourn the meeting at 8:26 PM. The motion passed unanimously, (5-0). 10/14 Conservation Commission – Meeting Minutes | 10