Conservation Commission

CONSERVATION COMMISSION LOWELL, MASSACHUSETTS June 26, 2024 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. This meeting was held both in person and virtually using Zoom. Members Present: Brad Buitenhuys, Kevin Dillon, Louisa Varnum, Marie Burns, Stephen Laput Members Absent: Perry Downs, Roberto Ciccarelli Others Present: Peter Cutrumbes, Assistant Planner CALL TO ORDER B. Buitenhuys called the meeting to order at 7:00 PM. ORDER OF BUSINESS CONTINUED BUSINESS Request for Determination of Applicability Berkeley Development, LLC 16 Pulpit Rock Road Pelham, NH 03076 Project Location: Llewellyn St & Christian Street 01850 Berkley Development, LLC is seeking a determination regarding where there is a resource area subject to the Wetlands Protection Act present on the site. On Behalf: B. Buitenhuys noted that there will be a peer review summary. Jeffrey Brem from Meisner Brem, the engineer. He noted that the project was continued in order to hire a peer reviewer. J. Brem responded on June 25 disputing the findings that there is a protected resource area on site. L. Garneau responded again on 6/25. Speaking in Favor: None Speaking in Opposition: None Discussion: Kevin Garneau, from the peer review company spoke. He noted that the portion of interest is triangle shaped area of drainage near the 1 foot contour interval. One point of the triangle was a drainage ditch exiting the area. Hydraulic soils were found there, and they believe a wetland or stream was filled. He noted they did not find that it was Isolated Land Subject to Flooding. L. Varnum asked about the methodology of determining the hydraulic soils in the area. K. Garneau replied that they did three test pits and used an augur, but that a backhoe may be better to define the edge. L. Varnum said there was crushed stone on the site in April, but it wasn’t mentioned in the report. K said in the triangle area there was not crushed stone , but that there was crushed stone in other areas that weren’t wetlands. L. Varnum noted there was 6-9 inches of fill around a prominent willow bush and asked if that would be the center of the radius. K. Garneau said yes. L. Varnum asked about the standing water near the building. K. Garneau said they did one of the test pits right there. L. Varnum asked if the triangle was matched up with elevations. K. Garneau said no. They searched the whole site and the triangle is the only area with wetlands. L. Varnum noted a hole near the willow, near the standing water. L. Varnum asked the dimensions of the area of interest. K. Garneau said it is smaller than the polygon on the map he gave to the Commission. Total area of 12,000-13,000 square feet. L. Varnum asked if all that had been filled. K. Garneau said it has definitely been disturbed but they need to do more testing to figure out the edge. L. Varnum asked how they could go about defining the edge. K. Garneau said using augur, if hit stone have to hand dig or use backhoe. L. Varnum said at what intervals. K. Garneau said usually flag 10-20 feet apart, could go up to 50 feet. L. Varnum asked if the fill could be removed with the same type of equipment that placed it there. K. Garneau said it is a side slope with seeps as well as a previous farm pond that was filled. Not a typical cup-shaped wetland. If excavating the fill, you would need to plant again. Replication plan maybe could be a rain garden, better quality than the OG wetlands. Feels there is enough for an Enforcement Order. L. Varnum asked about the dimensions of the swale. K. Garneau said its narrow, only working off limited data. 6 inches-1 foot maximum depth and width. L. Varnum asked if they saw water flowing there. K. Garneau said not by the drainage ditch but there was standing water. Most of the site visits done in June to collect the data. L. Varnum said she was there in April and saw a strong flow of water coming down the hill into the street and the catch basin, would that be an intermittent stream? K. Garneau said erosion in report shows intermittent stream but not sure if jurisdictional because it needs to touch a BVW because the wetland was filled. L. Varnum asked if replication plan would make it jurisdictional. K said no. L. Varnum asked if it can be declared BVW. K. Garneau said yes. L. Varnum asked if it has been disturbed. K. Garneau said yes. L. Varnum said there was an exiting stream that has been disturbed by the fill. K. Garneau said yes. J. Brem spoke from the applicant’s perspective. Concurred with L. Garneau that there are two potential jurisdictional areas, an ILSF and BVW. L. Garneau said no ILSF. L. Garneau did say BVW. J. Brem says it may be wetlands but doesn’t think its jurisdictional. J. Brem noted L. Garneau said there is a swale or an intermittent stream on the property. J. Brem agrees there is a freshwater wetland covering 4.6% of the total property. In order to be jurisdictional it has to be sourced from astream. Stream flows from some point near the willow down the hill, disappears, then flows onto road. The stream is intermittent not perennial. Therefore not jurisdictional. Intermittent Stream included in jurisdiction except for upland wetlands, which this is. The WPA distinguished between true stream and areas that just flow w/ precipitation. The BVW never bordered on a stream and therefore is not jurisdictional. B. Buitenhuys asked if this position was established before the fill. J. Brem said he was only hired recently. L. Varnum asked if J. Brem was aware of 2021 plan. J. Brem said it was a surprise. L. Varnum asked if they were aware of a potential wetland above the stream. J. Brem said no and it is hard to tell because the fill was done. L. Varnum said there was a significant flow in April. Noted that 2021 saw hydric soils but didn’t see water although it was August. Altered state of the site made it difficult. J. Brem said when they were first hired they did not see the map. It doesn’t matter if wetland vegetation or not, their position was whether it connected to the catch basin. It wasn’t so they did an RDA. The new question is did the intermittent stream originate from something above it. Topography is pretty steep so didn’t seem like there would have been an origination point. Not disputing it was wetland, just whether it was jurisdictional. L. Varnum is concerned about the extent of the alteration. Not here to stop development but want to prevent damage to the neighborhood and the resources. Everyone has done the best they can. J. Brem was on the stormwater advisory committee of the DEP. Recognizes this is a sensitive area. What L. Garneau brings up is important issue—what stormwater management would be done when the houses are developed? They can do rain gardens, bioponds, etc. whether its conditional or not. B. Buitenhuys said they would expect plans of that nature. B. Buitenhuys said the water isn’t necessarily precipitation and could be from springs feeding the streams. J. Brem said springs feeding the streams is not under the WPA jurisdictions (only bogs, swamps, wetlands, marshes). L. Varnum said the wetland plants indicate there would be standing water for them. Luke Hurley said there would have been some period of time. Depends on the plants, but they can grow quickly, it doesn’t need to be all year long. L. Varnum said would it be possible for the plants to exist if water isn’t standing all year long. L. Hurley said yes. K. Dillon asked about the fill put on the land. J. Brem said that was before they took the job. K. Dillon asked how much fill? Jeff Miller said 4-5 ten wheel loads of 3 inch stone. There were all kinds of debris, tree stumps, etc on the site when he bought it. There was no loam hauled in there. K. Dillon said it was disturbed. J. Miller said City said only the blue line on the GIS was potential wetland, so they stayed away from there. B. Buitenhuys said the Commission is faced with two opinions. The third party opinion is what they need to go by in a difference of opinions. Inclined to follow their opinion. The Commission should start w/ an EO and remediation. L. Varnum said the peer review report was much more detailed, and agrees them. Matches what she saw. Before any restoration, need to investigate the changes to the resource areas. Most of the site is developable. They need to delineate the area they want to protect and see if that's where we want to restore. Potentially some of the fill could have been outside the wetlands. The wetlands may require the development to be modified a bit. The 2021 report touched about 5 lots on the current applicant’s plan. Thinks the RDA warrants a positive determination. B. Buitenhuys said the need to rule on RDA and then discuss EO. Restoration may be under EO or under the NOI. J. Brem asked about a subcommittee of the Commission. Work w Engineers and Planning staff. If they issue a 2B positive the applicant would have 10 days to appeal to state. They would probably appeal, but would be willing to meet w City staff and withdraw the appeal if something is figured out. B. Buitenhuys said the Enforcement Order wouldn't be until next meeting. J. Brem said they have no problem with the EO. B. Buitenhuys would be first time they formed a subcommittee since he’s been there. L. Varnum said she doesn't think it is a good idea because they are a small Commission. L. Varnum said issue EO and not lift it until new plans are approved. B. Buitenhuys said they can appeal, start NOI, etc. S. Laput agreed with L. Varnum. Motion: L. Varnum motioned to issue a positive determination with the conditions that no work is to be continued or began, and an investigation is completed to delineate the boundaries of the wetland. . Second by K.Dillon. Roll call vote was unanimous (5-0). NEW BUSINESS Notice of Intent, DEP #206-0831 Massachusetts Audubon Society 280 Great South Road Lincoln, MA 01773 Project Location: 1413-1415 Varnum Avenue 01854 A Notice of Intent has been filed by Nitsch Engineering, on behalf of the Massachusetts Audubon Society. The applicant intends to construct a temporary gravel parking lot, walking trails, an outdoor classroom, and associated drainage infrastructure. Portions of this project will take place within 100 feet of bordering vegetated wetlands. On Behalf: Jane Calvin, EO of LPCT. Co-holds the restriction on the site. Summarized the project. Project been envisioned for 20 years. Mass Audubon (MA), Mill City Grows (MCG), and City of Lowell (COL) are also part of the project. Renatta Pomponi from MA. Stressed the collaboration between all groups. Did community outreach and engagement in 2022-2023 to hear what people wanted to see for this project as open space. Four guiding principles: education/recreation, accessibility, growing food, ecological stewardship. Liz Stetson from MA. Plan represents the long term vision for the property. She summarized the NOI proposal. The work would include trails, an outdoor classroom, temporary parking, drainage infrastructure, and ecological restoration. The current construction phase would begin this summer. Radhika Mahan, the landscape architect. Site is ecological link between state forest and the river. Outdoor classroom will be a covered pavilion structure with seating. Trail will be accessible made of compacted dirt or dense graded gravel. Phase 2 planting focused on starting the ecological restoration. Remove invasive species. Restore w native plants. Jonathan Hedlund Nitsch Engineering. Spoke about erosion control plan. Trail in NE side will be reducing impervious area. Outdoor classroom space, retention space, infiltration swale and check dams will also be used to slow water velocity within the buffer zone of the pond. Speaking in Favor: None Speaking in Opposition: None Discussion: B. Buitenhuys said its exciting to see this in front of the board after working with them on CPC. Well- designed, non-impactful, infrastructure improvements. Section of the trail within the buffer is just compacted dirt. L. Varnum asked about manmade irrigation. J. Hedlund said no. L. Varnum asked if one particular trail will be all accessible. R. Mahan said majority of trail is except for the portion near wetland. L. Varnum said the pond edge will be near the classroom. R. Mahan said will be built to make access to the pond difficult. Hugh Gannon 1365 Varnum Ave. Questions about the drainage infrastructure. Not familiar with technical terms. Will drainage go to the pond? J. Hedlund said there are two retention basin on the elevated side of the property so that water flows away from the properties. B. Buitenhuys said water is directed to the pond but the water already flows towards the pond anyway. B. Buitenhuys asked if there is a pond outlet should the water level raise. L. Stetson said pond has occasionally overflowed into the farm area. Stormwater swale would slow the overflowing by capturing water and infiltrating more water. J. Hedlund said they are infiltrating more than 10,000 cubic feet of water. H. Gannon said he would like a definition of drainage infrastructure. B. Buitenhuys said it is anything that slows, collects, or infiltrates water. Applicant is greatly increasing the rate of infiltration. Allows for more rapid infiltration into the earth. H. Gannon asked how they increased the infiltration rate. J. Hedlund explained. B. Buitenhuys said the pond will only overflow towards the collection point and will infiltrate better there. Brenda Gannon also spoke. A portion of pond on their property, so she knows history of how the water flows. B. Gannon expressed concern that the topography is going to be altered and what the results would be. B. Buitenhuys said the plan shows it will make worst case flooding less common due to infiltration increases. B. Gannon asked if it was all ok, why is there a meeting. B. Buitenhuys said ConCom has to formally approve. L. Stetson stressed it is a vegetative swale. Not man made. Want neighbors to feel involved in the planning process. Motion: KD motion to close the hearing SL seconded. Unanimous. LV motion to issue standard OOC. Seconded by SL. Unanimous. K. Dillon motioned to close the public hearing, and S. Laput seconded. The vote was unanimous (5-0).  L. Varnum motioned to issue the public hearing, and S. Laput seconded. The vote was unanimous (5-0). Request for Determination of Applicability Mullins Management Co 11 Beacon Street Suite 432 Boston, MA 02108 Project Location: 169.1 Bridge Street 01852 Mullins Management Company has applied to the Lowell Conservation Commission to remove fallen bricks from the Riverwalk, repair the area, and engage in restoration work to the building. The proposed work is within 100-ft. of the Merrimack River. On Behalf: Kayla Lessin from MMC. Own the Main Power Building. Adjacent to Riverwalk. March 1st a large section of parapet fell onto the riverwalk. Been closed since. Submitting RDA for selective demolition of the parapet because it is unstable and unsafe, removing debris from the Riverwalk and restoring any damage. Congress Construction also there to discuss specific technical issues. K. Lessin noted they also talked to asbestos section of DEP about remediation of some of the materials that fell. They are working with DEP to ensure no contamination. Speaking in Favor: None Speaking in Opposition: None Discussion: B. Buitenhuys asked for timeline. K. Lessin said they would remove bricks off the riverwalk over the next month. They have sourced a type of rope netting to prevent a similar situation. Other work will be done in August/September. B. Buitenhuys asked if the Riverwalk will be closed during removal of the parapet. K. Lessin said yes. B. Buitenhuys said they don’t dictate the construction schedule but any expedition would be appreciated. B. Buitenhuys asked if removing bricks fell into water. K. Lessin said some fell in a small area that is dry at the moment hopefully can quickly remove the material. K. Dillon asked about the rest of the mill buildings. K. Lessin said will investigate. They are also adding a new roof on top of it to ensure no water infiltration. K. Dillon asked about the long term outlook. K. Lessin said they are working with City to issue 40R zoning permit. Motion: K. Dillon motioned to issue a negative 3 determination, and L. Varnum seconded. The vote was unanimous (5-0). Request for Determination of Applicability Wendy Luna 155 Totman Street Lowell, MA 01854 Project Location: 155 Totman Street 01854 A Request for Determination of Applicability has been filed by Wendy Luna seeking to construct two (2) decks at 155 Totman Street. The proposed work is within the 100 foot buffer zone of a protected wetland. On Behalf: Applicant did not appear. Speaking in Favor: Speaking in Opposition: Discussion: Motion: Motion to continue to 7/17 by K. Dillon and seconded by M. Briere. The vote was unanimous (5-0). Enforcement Order City of Lowell Department of Public Works 1365 Middlesex Street Lowell, MA 01851 Violation Location: 73 Webber Street 01851 The violator has removed multiple trees and disturbed a large area of soil at 73 Webber Street. This work was done within the protected area of Black Brook. On Behalf: E. Walsh engineer for DPW. Paul St Cyr director. E. Walsh explained that DPW went in Aug 2023 to clear the culvert. Removed natural and manmade debris. Natural debris put in a pile. Not removed off site. Unnatural debris moved offsite. Understands this was done without an RDA or Emergency Cert. Just wanted to rectify it. Proposing to train all staff to make sure DPW knows where wetlands jurisdiction is. Additionally, they will install a fence for no dumping signs. Pictures of the slope bank clearly show disturbance. Speaking in Favor: Speaking in Opposition: Discussion: B. Buitenhuys said he hadn’t considered the fence. He asked if work was done to unblock culvert. E. Walsh said yes. B. Buitenhuys said he thinks people might just throw stuff over the fence. He is more concerned with stabilization of the slope. L. Varnum asked if extra soil was dumped. E. Walsh said streets department said no, but that soil was definitely disturbed. Had to drive manmade debris out and this disturbed vegetation. L. Varnum asked if anything is growing there now. E. Walsh provided pics from a site visit yesterday that show yes. B. Buitenhuys said removing the natural debris should be helpful. E. Walsh agreed. B. Buitenhuys said they can remove dead stuff that can help water flow better. K. Dillon said they just want to get on the same page as the DPW. S. Laput concurred. He said DPW staff was supposed to be trained after the cutting of trees along the Riverwalk last year. E. Walsh said part of the training would be teaching how to use GIS. B. Buitenhuys mentioned other plants blocking the streams in the area. Not conditioning anything just wanted to bring up to DPW. Motion: KD motion to ratify Sl unanimously. Would like to hear plan and decide if need to come in. K. Dillon motioned to ratify the Enforcement Order and S. Laput seconded. The vote was unanimous (5- 0). OTHER BUSINESS 6/12 meeting minutes Motioned to approve by L. Varnum and seconded by S. Laput. The vote was unanimous (5-0). ADJOURNMENT K. Dillon motioned to adjourn, seconded by S. Laput. Adjourned at 8:58.