Friday, July 30, 2010
Benfield wetlands decision appealed
“Intermittent” stream designation questioned
The Conservation Commission’s (ConsCom’s) Order of Conditions approving the Benfield Farms affordable housing has been appealed to the state Department of Environmental Protection (DEP). Juergen Lemmermann of 548 South Street, an abutter whose property lies across the road from the site, submitted the appeal in a July 8 letter requesting a “Superseding” Order of Conditions.
The project applicant, Neighborhood of Affordable Housing (NOAH), proposes construction of 26 residential rental units and associated site work, including stormwater management, a septic system and water supply.
Intermittent or perennial stream?
Lemmermann’s appeal centers on the ConsCom’s “finding” that the stream that crosses under South Street at the western corner of Lot 1 of the Benfield Farms parcel is “intermittent” rather than “perennial.” The portion of the stream nearest South Street is on the town-owned parcel. Downgradient, it crosses onto the property of Jeffrey Kiel. The proposed housing units and stormwater management systems are located on Lot 1 (see map).
According to the Wetlands Protection Act Regulations (310 CMR 10.00 et seq.) an “intermittent” stream, i.e. a body of running water which does not flow throughout the year, does not have a designated 200-foot Riverfront Area wherein development is regulated. Were the ConsCom’s finding to be overturned and the stream deemed “perennial,” redesign of the housing, stormwater management structures and driveways could be necessary.
The appeal notes that the stream is listed as “perennial” on the current United States Geological Survey (USGS) map. Lemmermann cites the section of the Regulations (310 CMR 10.00 et seq.) that says “field observation shall be made by a competent source.” Kiel had photographed the stream bed in dry condition in 2005 and 2007 and provided an affidavit to the ConsCom during the public hearing. Lemmermann argues that Kiel does not qualify as a competent source because he has a vested interest in the stream being deemed “intermittent” – it would make it easier for him to develop his land.
Lemmermann asks DEP to “have an independent party take a second look and perform the documented field observation in such a manner where no conflict of interest is even a potential threat.” The regulations state: “Department staff, conservation commissioners, and conservation commission staff are competent sources; issuing authorities may consider evidence from other sources that are determined to be competent.”
The ConsCom and NOAH had independently run the USGS Stream Stats hydrologic model. Results indicate the stream is “intermittent.” Conservation Administrator Sylvia Willard found that the stream has a contributing watershed of 0.34 square miles (sq. mi.) and a predicted flow rate of 0.002 cubic feet per second (cfs). One section of the regulations gives a threshold for a stream to be considered “perennial” as a contributing watershed of 0.5 sq. mi. and a predicted flow rate of 0.01 cfs. (See “ConsCom considers Benfield plan impact on wetlands,” Mosquito, March 26 and “ConsCom finds Benfield stream is intermittent,” May 7.)
Time frame and process
According to Willard, DEP has indicated that a site visit will be scheduled soon. DEP generally has 70 days to issue a decision once an appeal is received. This period can be extended if, for example, the agency feels that additional information is needed. DEP decisions are appealable to a state administrative law judge and ultimately to court. ∆
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