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LAPA-WEST 2005 Symposium Lake and Pond Permitting 2003 - 2005

LAPA-WEST 2005 Symposium Lake and Pond Permitting 2003 - 2005. Presented By: Michael J. Gorski, Regional Director, Western Region Massachusetts Department of Environmental Protection. DEP 2003 – 2005:. Guidance for Aquatic Plant Management in Lakes and Ponds – issued April 2004

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LAPA-WEST 2005 Symposium Lake and Pond Permitting 2003 - 2005

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  1. LAPA-WEST2005 SymposiumLake and Pond Permitting 2003 - 2005 Presented By: Michael J. Gorski, Regional Director, Western Region Massachusetts Department of Environmental Protection

  2. DEP 2003 – 2005: • Guidance for Aquatic Plant Management in Lakes and Ponds – issued April 2004 • GEIR Published – Spring 2004 • DEP relaxes Dual Notice Policy • Limited Project clarifications • LAPA - Lake Management Permitting Workshop – featuring DEP - WERO – September 2004

  3. DEP Lake and Pond Guidance: • Issued April 2004 • Available at: www.mass.gov/dep/brp/ww/files/alkguide • 12 Pages (plus 10 page appendix) • Starting point for Lake Management project

  4. FGEIR – Final Generic Environmental Impact Report: • Available at: • www.mass.gov/dcr/waterSupply/lakepond/lakepond • MEPA Component: • GEIR allows Lake and Pond projects to avoid filing an EIR with MEPA • Not a Cookbook • No “one size fits all” solution • Must look at each situation “case-by-case” • Resource • Limnology (study of freshwater eco systems) • Lake Management Procedures • Case Studies

  5. DEP commitments – Sept. 2004 • Dual Notice Policy – revised interpretation • Pre-permitting assistance • Greater outreach efforts / commission support • Increase efforts at coordination with other agencies • Regional adherence to FGEIR & Lake and Pond Guidance • Deference to Limited Project Provisions

  6. DEP commitments – Sept. 2004 • Multiple Notice limitations - loosened: • Allow multiple Notices - unless a conflict • Allow filing – dismiss earlier notice when new Order of Conditions issued • Works well where increase in impact sought • Allows one to preserve existing permit until new one issued (Onota / Stockbridge Bowl) • More difficult when different applicants • Lake Holland – herbicide and hand-pulling • Commitment Met

  7. DEP commitments – Sept. 2004 (Cont.) • Pre-permitting assistance: • Onota: • Multiple site meetings • ½ day on Lake – Deputy Regional Director • NHESP, DCR, DEP, City meetings • Stockbridge Bowl: • Meeting at Fish & Wildlife in Belchertown • NHESP, DEP (3 DEP staff), Consultant

  8. DEP commitments – Sept. 2004 (Cont.) • Pre-permitting Assistance: • Greenwater Pond: • Started as enforcement case • Pre-permitting for dam work and lake management • DCR, DEP, Association • Buckley Dunton: • Pre-permitting for dam project • DCR, Army Corps.

  9. DEP commitments – Sept. 2004 (Cont.) • Pre-permitting Assistance: • Lake Pontoosuc: • Draft Lake Management Plan • Review and Comment • Pre-permitting for dam work • DCR, DEP, Consultant at DEP • Site Visit by DEP • Association concerns reviewed with DCR

  10. DEP commitments – Sept. 2004 (Cont.) • Pre-permitting Assistance: • Cheshire Reservoir: • Pre-permitting for dam work • DCR, DEP, Consultant at DEP • Site Visit by DEP

  11. DEP commitments – Sept. 2004 (Cont.) • Pre-permitting Assistance: • Wetland Circuit Riders: • DEP Western Region has two (2) new wetland Circuit Riders • Con Com Assistance in permitting • Applicant Assistance • Consultant Assistance • Training - Outreach • Attendance at meetings • Commitment to pre-permitting assistance met

  12. DEP commitments – Sept. 2004 (Cont.) • Better Coordination with Others: • Conservation Commissions: • Quicker Comment Letters • Deference to active Commissions • Circuit Rider Outreach • NHESP • Pre-permitting meeting (request and attend) • Communication efforts to move projects • Look for permit conditions

  13. DEP commitments – Sept. 2004 (Cont.) • Better Coordination with Others (cont.): • DCR: • Pre-permitting Assistance (Dam Safety) • Meetings, site visits, written and verbal guidance • Deference to conditions / dates (F & W) • Drawdown (generally 11/1 – 12/1) • Refill (generally by April 1st)

  14. DEP commitments – Sept. 2004 (Cont.) • Better Coordination with Others (cont.): • Army Corps • Pre-permitting meetings • Communication efforts to move projects • Deference on “exempt” decisions for dredge/fill projects • Regional permitting of small projects • Conditioning of very small projects in OOC • Commitment to better coordinate met

  15. DEP commitments – Sept. 2004 (Cont.) • Commitment to follow Lake and Pond Guidance / FGEIR: • Limited Projects: • Have accepted projects filed as limited projects and permitted as such • Must state goal of improving the natural capacity of Resource Area to protect WPA interests: • removal of nuisance vegetation to retard eutrophication • thinning or planting of vegetation to improve habitat

  16. DEP commitments – Sept. 2004 (Cont.) • Commitment to follow Lake and Pond Guidance / FGEIR: • Follow FGEIR/ Lake and Pond Guidance: • File # Letters – Advise applicant and Commission to Follow FGEIR and Guidance • DEP follows it in SOCs • Commitment to follow FGEIR / Guidance met

  17. Recent DEP Lake Permits • MA DEP File # 294-432 - Bass Pond Springfield • 9/27/2001 - NOI filed • 4/4/2002 - OOC issued with 51 Conditions • 4/10/2002 Applicant Appeals • 7/7/2002 DEP issues SOC - reduced conditions to 34 • 6/1/2005 Request for extension of SOC filed – “Aquatic Macrophyte treatment has shown a marked decrease in cover of the water column and no treatment was required last year. However, herbicide treatment may be necessary to control future growth and we are requesting an SOC for this reason. …….” • 7/6/2005 Extension granted

  18. Recent DEP Lake Permits (cont.) • MA DEP File # 294-436 – Forest Park Ponds Springfield • 11/2/2001 NOI filed • 12/7/2001 NHESP letter • 3/22/2002 NHESP No adverse effect letter • 4/12/2002 Denial OOC issued • 4/10/200 Appeal to DEP 4/10/2002 – Lack of Action – (dispute over whether hearing continued) • 8/14/2002 – DEP issues SOC (35 conditions) • Enforcement Order issued by Con Com prohibiting use of Herbicide under local bylaw • Applicant sues Con Com in Superior Court over bylaw denial / enforcement order • 3/17/2003 – Bylaw suit in Superior Court settles adopting DEP SOC conditions. • September 18, 2003 – DEP receives request for emergency drawdown due to impending storm and already high water level and stormwater drainage to ponds • 6/1/2005 – Request to extend SOC filed • 7/6/2005 – Extension request granted.

  19. Recent DEP Lake Permits (cont.) • DEP File # 104-675 Lake Holland - Belchertown • Two opposing factions – the first for hand pulling of invasives, the second for herbicide treatment • 4/7/2003 Herbicide proponents file NOI 1st • 7/3/2003 NOI Amended • 7/1/2003 RDA filed by hand pulling advocates • 7/31/2003 Negative DA issued by con com • 8/18/2003 RDA appealed for SRDA – • SRDA request denied as late filed • DEP – observes violation of WPA in hand pulling • 10/08/03 OOC (39 conditions) issued • OOC is appealed • DEP offers to mediate with two groups – several months spent before no resolution appears possible • SOC issued 4/1/2004 • SOC is appealed and pending at DALA

  20. Recent DEP Lake Permits (cont.) • DEP File # 181-157 - Plunkett Reservoir – Hinsdale • 5/31/2005 NOI filed– Prior NOI for drawdown had lapsed • 6/14/2005 DEP File # letter issued – “Follow Lake and Pond Guidance – draft conditions provided in guidance, advise FGEIR may provide additional guidance, No NHESP species on map, include requirements of reports be complied with in OOC” • 6/28/2005 Public Hearing held • 7/21/2005 – OOC issued by Con Com established winter elevation, summer elevation, (5’ differential) minimum outflow, drawdown earliest start date and latest stop date and refill triggers in Spring • No Intervention, No Appeal

  21. Recent DEP Lake Permits (cont.) • DEP File #186-200 - Long Pond Cove – Holyoke • 3/23/2005 – NOI filed Mechanical Harvesting and Handpulling – water chestnut in a 16- 17 acre cove off CT. River • 4/25/2005 – File # letter issued – Follow Lake and Pond Guidance, consider sample conditions, notify NHESP • NHESP issued a no adverse affect letter • Permit issued • No Intervention. No Appeal.

  22. Recent DEP Lake Permits (cont.) • DEP File # 196-316 & 310-80 - Lee & Tyringham • Goose Pond & Upper Goose Pond • 3/1/2004 NOI filed for aquatic herbicide treatment • 3/15/2004 – DEP File # Letter to each con com – noting NOIs were “very thorough and contained all of the information DEP has required in other projects resulting in approved orders”. Suggest communication between two con coms to avoid conflicting special conditions. Letter specifically cites applicants compliance with regulatory standards. • 4/5/2004 Public Hearing held • 5/3/2004 OOC issued • No Intervention. No Appeal.

  23. Recent DEP Lake Permits (cont.) • DEP File #237-127 - New Marlborough – Beach Nourishment • Sandisfield State Forest • 4/28/2004 NOI - Installation of New Beach Sand on existing beach (beach nourishment using clean sand installed with small dump truck and small bucket loader • 5/12/2004 – DEP File # Letter – Buffer Zone project – use erosion controls as appropriate, correctly cite plans, submit any new info to DEP • 6/2/2004 – Con Com holds its hearing • 6/4/2004 – Con Com issues local OOC • No Intervention. No Appeal.

  24. Recent DEP Lake Permits (cont.) • DEP File #241-148 – Windsor Lake – North Adams • Summer 2004 & 2005 - DEP assisted the local conservation commission in issuing an emergency certification in 2004 and 2005 in connection with an algal bloom in the lake which posed a health problem • DEP offers permitting assistance at time of emergency • 8/1/2005 – NOI filed to treat lake for several invasive species • 8/8/05 – DEP File # Letter – “Follow Lake and Pond Guidance, provide location of abutter notice regulations, examine info submitted to ensure sufficient to meet requirements to allow evaluation of impacts and use guidance for sample conditions”

  25. Recent DEP Lake Permits (cont.) • DEP File # 253-169 - Orange • Packard Heights Pond (40 acres) • Drawdown to maintain shore, beach. Docks • 10/1/2004 – NOI filed • 10/04/2004 – No File # letter sent – fee payment, Need F & W to approve dates • 10/13/2004 – File # letter issued • 10/18/2004 – OOC issued • No DEP Intervention. No Appeal.

  26. Recent DEP Lake Permits (cont.) • DEP File # 254-240 - Otis • Big Pond – Repair - improvement of existing boat launch facility • 3/7/2005 NOI filed • 3/11/2005 DEP File # letter issued • 3/22/05 Public Hearing held • 3/24/05 Order of Conditions issued • No DEP Intervention. No appeal.

  27. Recent DEP Lake Permits (cont.) • DEP File# 256-245 - Palmer • Camp Ramah- herbicide treatment of Pattaquatic Pond (18 acre pond) • 3/31/2005 NOI filed • 4/28/2005 NHESP – No adverse affect letter • 5/3/2005 – DEP File # - Follow Lake and Pond Guidance • 5/17/2005 – Public Hearing at Con Com • 5/19/2005 – Order of Conditions issued • No DEP Intervention. No appeal.

  28. Recent DEP Lake Permits (cont.) • DEP File #292-251 - Southwick • Congamond Lake – Aquatic Management (herbicide, algaecide, harvesting, hand pulling) • 5/6/2004 NOI filed • 5/24/2004 – DEP File # letter – “Appears to meet Lake and Pond Guidance provided enumerated issues are addressed: No removal of indigenous plants in designated (in NOI) protected zone, fix site map to provide key for symbols” • 6/5/2004 – Supplemental information filed • 6/7/2004 – NHESP letter with conditions / limitations on work • 6/14/2004 – OOC issued. • No DEP Intervention. No appeal.

  29. Recent DEP Lake Permits (cont.) • DEP File #296-311 - Stockbridge • Stockbridge Bowl – Plant Harvesting • 3/30/2005 – NOI filed to hydrorake up to 6.3 acres of swimming area • 4/14/2005 – DEP File # letter – Very well done and appears to meet Lake and Pond Guidance” • 4/26/2005 – Public Hearing • 5/12/05 - OOC issued. • No DEP Intervention. No Appeal.

  30. Recent DEP Lake Permits (cont.) • DEP File #325-28 – Wendell • Ruggles Pond (16 acres)  • 5/6/2004 – NOI filed to hydrorake northern end of pond • 5/21/2005 – File # Letter issued • 5/26/2004 – Additional information submitted • 6/2/2004 – Order of Conditions issued • No Intervention. No Appeal.

  31. Recent DEP Lake Permits (cont.) • DEP File #331-77 – West Stockbridge • Shaker Mill Pond (17.5 acres) & Card Pond (12 acres) • Herbicide application • 12/27/2004 NOI filed • 1/5/05 DEP File # Letter – “Appears to be in non-compliance with appendix B of Lake and Pond Guidance” • 1/21/2005 NHESP Letter – “probable take (MESA) – two species” and “Will not accept aquatic vegetation surveys taken after October 1st (ponds done 10/29 and 11/11 – post growing season)” • 1/27/2005 – Applicant requests continuance of public hearing

  32. Recent DEP Lake Permits (cont.) • DEP File #347-49 - Windsor • Windsor Pond - (44 Acre Pond) • 10/20/2003 NOI filed – herbicide application for milfoil • 10/29/2003 DEP File # letter with some pre-lakes and ponds guidance • 12/1/2003 OOC issued • No DEP Intervention. No Appeal. • 9/30/2004 – Survey Report – “No evidence of Eurasian Milfoil during September 16, 2004 survey.” 

  33. Lessons Learned from Recent Permits • Four things to take from these cases: • Follow the FGEIR and Lake and Pond Guidance • Don’t put too much in one permit • Use a competent consultant • Know the Natural Heritage issues and address them • Propose protection in Notice of Intent • Use an appropriate expert • Avoid, minimize, mitigate impacts • Show longterm benefit (where possible)

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