Conservation Commission / IWWA Minutes 10/06/2015
CONSERVATION COMMISSION/INLAND WETLANDS &
WATERCOURSES AGENCY MINUTES
OCTOBER 6, 2015
REGULAR MEETING
I. CALL TO ORDER
Chairperson Margery Winters opened the Regular Meeting of the Conservation Commission at 7:30 p.m. in the Main Meeting Room at the Town Offices. Other members and alternates in attendance were Charles Haldeman, Patrick Spaulding, Darren Cunningham, Andrew O'Connor, Jim Morrison, Donna Beinstein, and Donald Rieger. Also present were Michael Glidden, Assistant Town Planner; Janis Prifti, Commission Clerk; and other interested parties.
II. APPOINTMENT OF ALTERNATES
A quorum was present; therefore, no alternates were appointed.
III. ELECTION OF OFFICERS
Moved to the next meeting Agenda.
IV. VOTE ON PROPOSED MEETING CALENDAR 2016
The Commissioners discussed potentially changing to one meeting per month and that a bylaw change would be required. Town Staff indicated it is a legal requirement when an application is submitted that the Commission has to wait 14 days to hear the application, so some applicants would have to wait 30 days before going before the Commission and given the statutory amount of time allotted for a decision and/or to hold a public hearing, the time tables meshing together could be problematic. Currently, with 14 days between each meeting an application is received and may be heard at the following meeting. The Commissioners discussed that Agendas could become very long and the process with two meetings helps applicants move through faster. The Commissioners agreed to continue with 2 meetings a month.
Commissioner O'Connor made a motion to accept the Meeting Calendar for 2016, with the 07/05/2016 meeting eliminated.
Commissioner Spaulding seconded the motion, and it was passed unanimously.
V. ADMINISTRATIVE APPROVALS
Town Staff noted the Chairperson was contacted regarding one approval for a shed at 3 Gregwood Lane approximately 82 feet from mapped wetland soils in a grass backyard with no clearing/grading activities beyond a small amount of crushed stone for the shed pad.
IV. PUBLIC HEARING(s)
1. Application #15-32 of Daniel and Rebecca Moran, Owners, for a Wetlands Map Amendment to a wetland on the property located at 19 Talcott Mountain Road (Assessor's Map I12, Block 109, Lot 011). Zone R-80. (received 09/15/2015; public hearing must open by 11/19/2015)
Application #15-32 was read into the record.
Chairperson Winters appointed Commissioners Beinstein and Haldeman to serve for Commissioners Spaulding and Cunningham who recused themselves from hearing Application. #15-32.
George Logan, Soil Scientist, presented Application #15-32 for a wetland map amendment. The Scientist reviewed that a standard On-Site Soil Investigation & Wetland Delineation Report was previously submitted, and provided a map depicting the accurate survey of wetland flags placed in the field 06/06/2015. The Scientist explained that wetland soils in Connecticut are defined by soil type, specifically by drainage type with poorly drained alluvial soils and flood plain soils mapped as regulated wetlands. The Scientist indicated on 06/06/2015 he investigated the soils within 24-30-inches from the soil surface using an auger/spade to determine whether the soil characteristics were regulated; he showed the field boundaries beginning with Flag A-1. The Scientist found the soils to be silty and very compact usually in the wetlands about 30 inches; the upland soils were well drained Broadbrook and Rainbow silt loams; the wetland soils were poorly drained Wilbraham and Menlo silt loams. The Scientist indicated the entirety of the wetland is much larger than on this property and in excess of 8-10 acres with several intermittent streams coming down the steep hill entering/exiting this site.
The Scientist noted the over story was dominated by American Elm, Red Maple, Green Ash, and Eastern Hemlock; some typical species, e.g. Spice Bush, Winterberry; and invasives, e.g. Multiflora Rose, Japanese Barberry, Honeysuckle; and good diverse herbaceous species, e.g. sedges, bladder, fringe, rushes, golden rods, grasses, etc. The Scientist noted additional details were provided in the report and a sketch delineating the wetland and structure location. The Scientist concluded the boundary summary depicted on the map accurately depicts what he found in the field. The Scientist indicated that while previous mapping was done, it was not accurate. Regarding fill in the area, the Scientist noted there was some fill along the edge near a drain, but no significant filling of wetlands.
Chairperson Winters invited public comment; and there were no comments.
Commissioner Rieger made a motion to close the Public Hearing.
Commissioner O'Connor seconded the motion, and it was passed unanimously.
Commissioner Morrison made a motion to accept the map amendment.
Commissioner Rieger seconded the motion, and it was passed unanimously.
Commissioners Spaulding and Cunningham rejoined the meeting.
Regarding another previously continued Application for the Moran's, Town Staff explained statutory time ran out and the application was withdrawn and a Staff meeting with the Moran's to discuss that application is planned.
VII. DISCUSSION AND POSSIBLE ACTION
1. Application #15-38 of Royce Palmer, Owner; Mansour Prime Properties, LLC, Applicant; for Chapter 128 review of the erosion & sedimentation control plan for development on the property located at 80 Climax Road (Assessor's Map D20, Block 608, Lot 001). Zone R-40. (continued from 09/15/2015)
Application #15-38 was read into the record.
Richard Case, Attorney, filed with the Chairperson an intervention document on behalf of two contiguous owners. Town Staff also received the intervention documents which were forwarded to Town Counsel and also to the Applicant. Town Staff indicated a Commission motion would be needed to accept the application for intervenor status.
Lou Wise, Attorney for the Applicant, indicated late this morning a copy was received from Town Staff of the Application to Intervene under Environmental Statutes 22A-19 and an objection was promptly filed - a copy was provided to the Commissioners. The Attorney noted until 2013, Statute 22A-19A1 granted anybody the right to intervene in any type of proceeding, whether an administrative agency or court, under the environmental statutes to raise environmental issues, as long as they alleged that whatever conduct was at issue was reasonably likely to have the effect of unreasonably polluting, impairing, or destroying the public trust in the air, water, or other natural resources of the State; therefore, many people sought intervention status alleging broad environmental injury without specifying anything in particular. The Attorney continued that in 2013, the Legislature added 22A-19A2, so the law is in order to file a successful intervention application now the verified pleading is required to contain "specific factual allegations setting forth the nature of the alleged environmental harm that would be caused by the conduct in question." The Attorney indicated the verified pleading before the Commission does not do that, but contains the very general language in the Statute until 2013 and the verified pleading fails to satisfy the newly amended Statute standards and cannot be allowed; their objection was filed and discussed with the Town Attorney who they believed thought it made sense and planned to discuss it with Town Staff. Attorney Wise summarized their position that the verified pleading and application do not satisfy the requirements of the newly amended Statute and should be denied.
Town Staff spoke with the Town Attorney, who recommended receiving the request for intervenor status from Attorney Case. Attorney Wise indicated that was not his understanding and the verified pleading clearly does not satisfy the Statute. Richard Case, Attorney for the Applicant, indicated that the Town Attorney indicated they have the right to intervene and that it be accepted; Section 4 of the Application was said to contain issues that would satisfy the pleading question, which they must prove in their testimony. The Commission noted that Section 4 provides conclusions, but the Statute as provided by Counsel requires specific factual allegations setting forth the nature of the alleged unreasonable pollution, impairment, or destruction, and asked for comment on that. Attorney Case responded that they will present evidence with Mr. George Logan; they have to plead this and will prove it, but they do not have to discuss everything in the pleading, which would make intervention too lengthy and is not necessary.
The Commissioners discussed the need to review the material received. Town Staff added that a responsibility of the intervenor is to present facts on why they requested intervenor status for the Application. Attorney Case added they have an obligation to prove erosion alleged in their pleading, and Mr. Logan is present to testify; however, this is not a Public Hearing where Mr. Logan could testify regarding a Section 128 Erosion/Sedimentation Application, so there only option is to intervene. Attorney Wise responded that has nothing to do with the obligation to plead, whatever their theory of environmental harm, which is exactly why the Statute was amended.
Attorney Wise believed the Commission was not sitting as the Inland Wetlands Agency but was reviewing the Erosion and Sedimentation Plan providing advice to the Simsbury Zoning Commission, and that the Town Attorney put the cart before the horse because the allegations of harm should be in the verified pleading and the amended statute is completely circumvented. It was clarified that the Commission is charged with adjudicating a decision under Chapter 128 and is not advisory to the Zoning Commission. The Commissioners discussed that its specificity is a soft concept and whether the Town Attorney's advice should be accepted and is sufficient to open the door to intervention and that it would be a better to hear public comment.
Chairperson Winters appointed Commissioner Beinstein to serve as an alternate.
Other Commissioners agreed with Attorney Wise's interpretation of the Statute and expressed concern that granting intervenor status and/or hearing evidence could result in an allegation of prejudice at a later time from the Applicant and were inclined to deny; one of the reasons for 22A-19A2 is to provide the Applicant with notice of what was going to be said in order to allow the Applicant to provide a response, and the Applicant has not been afforded that specificity. Regarding time constraints, Town Staff clarified that is an issue with 30 days allowed under the ordinance pursuant to Chapter 128, and tonight is 30 days; the Applicant is scheduled for a Public Hearing with the Zoning Commission on 10/19/2015, with additional time for Zoning to act. Town Staff received a response at the close of business yesterday and has not had time to adequately review the comments; therefore, Staff's comments from last month still stand. The Commissioners discussed that it would be difficult to hear the Application tonight, as Town Staff has not had time to prepare a report and the Commission has not had the opportunity to review the material. The Commissioners discussed potentially denying intervenor status; Town Staff clarified the intervenor could appeal that action. Attorney Wise indicated their agreement to granting an extension, which would allow the intervenor to file an appropriate intervention. Town Staff responded that the next Commission meeting is scheduled for 10/20/2015; under Chapter 128, the Applicant granted a 30-day extension and no presentation was provided at this meeting. The intervenors planned to file a supplement to their intervention; the Commissioners asked them to keep in mind concerns discussed today.
The Commission accepted the Applicant's offer of a 30-day extension for Application #15-38.
2. Application #15-39 of Town of Simsbury Water Pollution Control, Owner, for the stabilization of the river bank from manhole station 62+70 to 56+90 on the sewer easement located on the property from Winslow Place to Tamarack Lane along the Farmington River bank. (received 09/15/2015; decision must be rendered by 11/19/2015)
Application #15-39 was read into the record.
Tom Roy, Director of Public Works, introduced Tony Piazzo, Water Pollution Control Superintendent, and Mike Fanning, WMC Consulting Engineer. The Superintendent clarified that the Application says "sewer easement" but it is actually a sewer right of way, which is quite different. The Superintendent provided historic background for the river bank and forced mains in the area beginning with 2 sewer line failures in 1984 due to bank erosion that were emergency repaired through FEMA and the Army Corps; a 1987 study proposed 900 feet of bank stabilization, which was completed in 1995; following Hurricane Irene in 2011, there were emergency repairs to 2 sewer lines to the north of this area; and they are now proposing stabilizing another 500 feet of river bank area north of the previously stabilized area. The Superintendent indicated certain sections are within 5 feet of the 30-inch sewer main with dry weather flows through that main of about 1 million gallons/day and wet river flows up to 5 million gallons/day with the potential of the river bank falling in and the major concern of creating discharge problems directly into the stream. The Director added the ultimate purpose of the Water Pollution Control Authority is to protect the river water quality and they want to be proactive and not wait to do this work under an emergency declaration.
The WMC Consulting Engineer explained the technical aspects and showed the Commissioners on a map the Mathers Crossing cul de sac and the location where the work would begin at the sewer main close to the river and continuing on to the end of the existing rip rap. The Engineer indicated areas where the bank is failing and/or vertical, which cannot be sustained with erosion increasing and possibly causing a pipe failure. The Engineer noted the flood way is at the back end of where they propose doing the work, except for a small drainage improvement everything is within the flood way. The Engineer showed the Commissioners one small area flagged as wetlands in the corner, which are actually disturbed soils flagged by a soil scientist last year and then picked up by a licensed land surveyor.
The Engineer noted that an expert from Massachusetts performed a mussel survey and found a State-listed species, but not the Federally-listed species although they could return next year; therefore, in addition to obtaining a local permit, they will go to the Corps of Engineers for a Category 2 permit - anything between 200-500 feet of bank stabilization is Category 2 and this would be about 440 feet. The Engineer indicated the pipe was put in about 50 years ago and cannot be moved; when the bank failed the last time trees on the bank were unfortunately cut down leaving no stabilizing roots with accelerated bank decay. The Engineer proposed grading the bank up to a consistent 1 1/2:1 slope, putting down geotextile, and placing rip rap on the geotextile to lessen the impact to the mussels which burrow into the mud from now until May. The Engineer indicated they would use standard rip rap of about 15-inches average diameter designed in accordance with the latest relevant publication; they assume the most erosive force of the river on the bank to get a sheer stress number for how much pressure per square foot the river is placing on the bank, which tells them what erosion control measures are acceptable. The Engineer added that nothing less intrusive then this would work because the river is fast flowing, deep, and historically moves back and forth; also, it corroborates their previous experience with smaller rip rap failures on the bank. The Engineer also noted a small drainage outfall from a 6-inch pipe at the cul de sac is eroding a notch into the bank and they would bring it forward using a pre-formed scour hole and grout it in place. The Engineer clarified that hydraulically the net removal of material provides a minimal improvement. The Engineer indicated construction could not begin until next May as the 1st part of the contract required by the Corps of Engineers would be to hire the mussel expert to come back and tag any mussels found, relocate the mussels found upstream recording where they are placed, return in a month to do a mortality assessment, and another assessment a year later - the Corps of Engineers will consult with the Fish and Wildlife Service and they and DEEP accept this method.
The Engineer noted a concern regarding woody debris currently present in the river. The Director of Public Works added they would work with Staff and remove reasonable debris at the time of construction, but they do not want to chase material too far from the bank because the equipment they will use can only reach material a few feet out into the river, and generally they work to keep as far out of the river as possible. Regarding the reason for removing the woody debris from the river, Town Staff responded it was a condition in the mussel report due to the accumulation of silt and woody debris and its impact on the Federally endangered Dwarf Mussels, where removing a reasonable amount of debris would improve the mussel habitat as recommended in the 2014 biologist's review. The Director indicated some of the debris creates turbulent flows, which is contrary to slope stability.
The Director also recommended that the rip rap stone delivered to the site is generally washed and cleaned and a condition would be that Town Staff inspect/confirm that fact; if it is a crushed dry product that goes through a sieve the small particles are flaked off - the Commissioners indicated they would want assurance it has been washed before delivery and suggested the supplier wash it in advance of delivery to the Town. Town Staff confirmed that was also a recommendation from the State of Connecticut soil biologist at DEEP with the intent to limit any sediment from the stabilization project transferring into the river and affecting the mussel beds adjacent to the work site; the material would be clean and filter fabric placed where material is stockpiled to prevent contamination from the site. Regarding site access, the Director proposed using previously granted access behind Mitchell's, which is larger and does not go through a neighborhood; another access point for smaller equipment with a separate anti-tracking pad may also be used with erosion controls in place because of swales on either side.
The Commissioners indicated they would need more time to review the material before voting on Application #15-39 at a future meeting.
Regarding vegetation growing through the rip rap, the Engineer responded there is some vegetation growing through the existing nearby rip rap, but he suggested not allowing anything large to grow up through this larger 15-inch average standard rip rap - the rip rap specifications will be provided to the Commissioners. The Superintendent clarified that for the bank area previously stabilized in 1984 they initially used 4-inch rip rap and during repairs in the 1990's that was increased to 7-8-inch rip rap, which has remained in place. The Engineer discussed with the Commissioners the computation for determining the correct size of rip rap as noted on the last page of the WMC report, with a 36-inch rip rap layered thickness with filter fabric placed below the rip rap to minimize the amount of fill. The Commissioners suggested a narrative could be helpful and confirmed what table showed the computation. The Commissioners noted concern regarding far field effects down and upstream when armoring the bank, possibly causing erosion elsewhere when the rivers focal point is moved. The Engineer did not agree and responded that the river is wide with most of the flow in the channel center and numerous areas of erosion on the river, unless the area is hardened. The Commissioners asked why the rip rap placed in the 1980's was not continued all the way down the river. The Superintendent responded that in the 1992 study doing the downstream section of river was recommended; and also in 1987, they looked at moving the sewer line away from the river, but the $2.5 Million cost was prohibitive and is now exponentially higher; the report will be provided to the Commissioners. The Engineer confirmed that the gray area on the map is where the rip rap would be located; the green is other disturbed area and the only wetland with a small amount of rip rap placed in the wetland, and at the top of the bank is where equipment would be located and the area subsequently graded and seeded. Regarding whether rip rap is the preferred method for stabilizing the bank, Town Staff indicated if going to hardscape, was a soft cape or a green solution considered, and why it wouldn't work in this application. Regarding how rip rap becomes naturalized, the Superintendent confirmed that photo #2 in the WMC report shows how vegetation would grow up and noted that the sewer line moves away from the river bank where the bank would be stabilized.
Regarding maintaining the area going forward, the easement would be maintained manually so nothing grows into the sewer easement. The Director confirmed that in wet weather all sewer systems pick up some fresh water infiltration, although Simsbury's sewer system is extremely tight compared to the rest of the country, e.g. with 6 inches of rain in a day water from flooded streets will flow into the sewer system; and the majority of manholes are vented so they become drains in the event of standing street water. Regarding alternatives to rip rap, the Engineer indicated the computations determined that rip rap was the best method for this robust flowing river. Regarding how far up the river the sewer line follows its course, the Superintendent responded it goes up to River Walk, behind the Hartford, and along the railroad right of way. Town Staff confirmed the Rivers Act is a Corp requirement and that law expires at year end; Army Corp preferred they obtain the local permit first. Regarding other endangered species, the Superintendent confirmed only the mussels were of concern in response to their filing with DEEP. The Engineer clarified the location of Second Brook which comes into the river.
The Commissioners asked for a copy of correspondence with Army Corp in 2013 referring to emergency repair and the Superintendent will follow up and confirmed that letter refers to the initiation of this project. The Commissioners commented that this is a very significant project and a careful decision should be made, and they discussed whether a Public Hearing should be held - Town Staff confirmed there is adequate time to schedule a Public Hearing. The Commissioners requested that the Applicants review Town Staff's 10/06/2015 memorandum, and requested they be provided a 1-page history of the work performed in this area.
Commissioner Morrison made a motion that the Conservation Commission finds that a Public Hearing regarding Application #15-39 would be in the public interest.
Commissioner Spaulding seconded the motion, and it was passed unanimously.
Commissioner Rieger made a motion to move discussion of Item 3. to last on the Agenda.
Commissioner Spaulding seconded the motion, and it was passed unanimously.
4. Discussion on/Comments to U.S. Fish and Wildlife Service re: Silvio O. Conte National Fish and Wildlife Refuge Conservation Plan
The Commissioners reviewed that the Refuge comprises 7.2 million acres, or basically the whole Connecticut River Basin, and Simsbury has been included in the Refuge since its inception. The Refuge strategic plan is updated every decade, which is currently in process, and would potentially increase acquiring additional acreage - the government currently has legal rights/ownership to about 36,000 acres of the 7.2 million Refuge acreage, and would like to increase that managed amount of acreage from willing sellers. The government would also like to prioritize activities going forward by identifying conservation focus areas for acquisition within larger defined conservation partnership areas. If their plan goes forward, where the government has historically cooperated with municipalities and private conservation groups in the 7.2 million acres, they would look more favorably in conservation partnership areas for further collaboration, including for additional expertise and funding, e.g. currently, they are supporting valuable efforts to control invasive species in the upper Farmington River area. It was noted that about a year ago, Simsbury received some Federal funding for work on the bank by the Sycamore and bridge. The Farmington River and Salmon Brook Partnership area they have defined includes much of Simsbury crossing the river at the Flower Bridge, but excluding all of the river area below that, and also excluding the northwestern area of Town. A letter to the Fish and Wildlife Service was proposed recommending they include all of Simsbury in the Partnership area, so that if a project were proposed for the lower part of the river, it would be beneficial for requesting Federal assistance to perform the work. The Commissioners agreed it was a great idea. It was explained that Fish and Wildlife deals with big sections of watershed and bringing in the lower part of Simsbury potentially brings in more developed areas in Avon and Farmington; however, the Commissions letter would request they bring in that next section of watershed. Chairperson Winters signed the proposed letter to the Fish and Wildlife Service.
Commissioner Rieger made a motion to accept the recommendation and authorize the Chairperson to sign and send the letter.
Commissioner Spaulding seconded the motion, and it was passed unanimously.
Commissioner Rigger recused himself from the meeting.
3. Discussion regarding the 08/04/2015 SPECIAL MEETING Site Walk on the properties located at: 28 Iron Horse Blvd. (Assessor's Map H09, Block 226, Lot 003B), Hopmeadow Street (Assessor's Map H09, Block 226, Lot 005), Hopmeadow Street (Assessor's Map H09, Block 226, Lot 004), Hopmeadow Street (Assessor's Map H09, Block 226, Lot 003), 22 Iron Horse Blvd. (Assessor's Map H09, Block 226, Lot 003A), Hopmeadow Street (Assessor's Map H09, Block 226, Lot 003C), Hopmeadow Street (Assessor's Map H10, Block 226, Lot 002), 36 Drake Hill Road (Assessor's Map H11, Block 226, Lot 001-1A).
Item 3. was read into the record.
The Commissioners continued their discussion of the Special Meeting from the 09/15/2015 meeting. It was noted that during the site walk Commissioners observed that the material put down in the parking lot was recycled aggregate containing chunks of brick, concrete, and asphalt. Town Staff's summaries indicate a portion of the parking lot close to the PAC was permitted for 4 inches of gravel and the remaining parking areas were not permitted for any fill material. The Commissioners noted only a small area was permitted for gravel, which material is larger in size than sand or 2 mm. however, aggregate material was found and while it includes gravel, a key concern is that it also includes finer sand, silt and other materials, which do not meet the definition of gravel. A second concern regarding the non-permitted use of aggregate containing recycled materials is that broken up brick and concrete are known to contain PCBs and lead-based paint pollutants; also, the asphalt pieces contain petroleum hydrocarbons and probably lead, mercury, and PCBs, which are important from a human health perspective and they are bio-accumulators that significantly affect wildlife.
The Commissioners discussed concerns regarding the extent of the fill up to the edge of the wetlands and as well as the protocol for maintenance. It was suggested that Town Staff first identify the regulated activities, and second the non-permitted activities that have occurred in this area. Town Staff agreed with the Commissioners suggested approach regarding regulated activities/permits in order to develop specific concerns. Town Staff requested the Commissioners email him a list of their concerns for compilation and discussion a couple of meetings ahead. Regarding storage of material behind some of the buildings related to PAC activity, Town Staff noted PAC has committed to cleaning that up at season end.
VII. RECEIPT OF NEW APPLICATIONS
Town Staff indicated receipt of an application for a wetland map amendment for 152 Old Farms Road set for Public Hearing at the next meeting; and an application for 22 Neil Drive for regrading and stone retaining wall.
It was noted there would be two Public Hearings at the next meeting.
IX. CORRESPONDENCE/ANNOUNCEMENTS
None.
X. APPROVAL OF MINUTES of the September 15, 2015 Regular Meeting
Chairman Winters accepted the September 15, 2015 minutes, as written.
XI. ADJOURNMENT
Commissioner Spaulding made a motion to adjourn the meeting at 9:15 p.m.
Commissioner O'Connor seconded the motion, and it was passed unanimously.