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Aug '06 DEP Appeal

To whom it may concern:

Pursuant to 310 CMR 10.05(7), we request Departmental Action to supersede an Order of Conditions given by the Salem Conservation Commission to Salem State College regarding the applicant's proposal to build a baseball field bordering wetlands along the Forest River. 

We object to the Commission's approval of a permit for several reasons, and will try to be as concise as possible for the purpose of this appeal. Should further documentation be helpful or necessary, it can be made available on request. 

First, we are alleging insufficient abutter notification for the Notice of Intent. We raised these concerns at a public hearing before the Conservation Commission, where they were summarily dismissed and the attendant concerns of residents dismissed by the Chairman. Several witnesses were present and have offered to attest to the atmosphere of this hearing by affidavit if necessary. 310 CMR 10.05(4)(a) states, in part:

Concurrent with the filing of the Notice of Intent, the applicant shall also provide notification to all abutters and any property owner within 100 feet of the property line of the land where the activity is proposed including if separated from that land by a public or private street or body of water and not unreasonably distant from the project site.

The language of this section as well as its clear intent imply that a broader application of the abutter standard is desirable. The Conservation Commission, in denying abutter status to some, applied an unnecessarily narrow construction of this standard. The applicant contends in virtually all of its publications that all the land acquired by purchase from GTE Sylvania is part of the same land, and is routinely referred to as 71 Loring Avenue. We are considered abutters for all other College purposes, especially since that part of the land directly behind our property is the site of tennis courts originally promulgated as part of the same proposal.

The Department makes clear in the preamble to 310 CMR 10 that separating phases of a project to prevent or limit oversight on work within buffer zones is a serious concern. The use of the same process to limit abutter status should be seen in the same light. This question of abutter status only affects some of us, but it is of a piece with the applicant's other actions that improperly limit and diffuse review. The phasing of projects is another concern for us that will be addressed below.

An additional objection concerns the use of the existing landfill for the proposed project. Consultants and the Conservation Commission seem to imply by their logic that the cap on the landfill is unnatural and constructed; therefore, the replacement of this cap by artificial turf will have no effect on the resource. But the College acquired the land at a reduced price, precisely because existing remediation problems-and the obligation to address them-had decreased the value of the property. The original polluter, instead of being required to remove all pollutants from the site, was permitted to create a landfill and to begin a strict and comprehensive regimen of remediation, planting buffer vegetation, and maintenance. The applicant's proposal would, in effect, turn the pollution of this section of the Forest River marsh into a successful strategy for making protected wetland subject to development [see Bache's survey]. On face value, this would seem to stand the logic of wetland preservation on its head. 

Compounding this additional land use is the complete destruction of the existing, albeit reconstructed, buffer. While the cap is impermeable, it is covered with soil and grasses that are routinely used by wetland wildlife. To the extent that this area is unusable, it's because the applicant has not abided by the provisions of the agreement made with GTE Sylvania when the landfill was closed. This agreement requires the applicant to plant and maintain appropriate vegetation in the buffer. It seems perverse to now allow the applicant to further impinge on the resource by constructing a large center for human activity with artificial turf. The addition of nesting boxes neither redresses the problems nor even maintains the buffer already required of the applicant.

The preface to 310 CMR 10 clearly shows that available science militates toward a much more careful approach to buffer zones. This reflects a worldwide trend recognizing the importance of such zones, which we feel cannot be overstated. Recent Australian research emphasizes the need for buffers between wetlands and developed land, explaining that:

Protecting wetlands in isolation from the surrounding landscape is an exercise in futility. Many fauna utilise wetland habitat incidentally - at particular stages of their life cycle. Many frogs disperse hundreds of metres from wetlands after completing their tadpole stage, only to return when it is time to reproduce the next generation. Other species rely on wetlands as refugia during prolonged dry periods. Adequate wetland buffers need to be planned and managed to ensure the healthy ecological functioning of these ecosystems. From Australian research on importance of buffer zones.

Wetlands researcher Lynn Boyd has compiled additional research on the essential nature of buffers to wetland health. Though far too detailed to address here, the comprehensive paper is available here: umass.edu/nrec/...final_project.pdf.  Though again too detailed for this space, a truly massive amount of research is available in Selected Internet Resources on Riparian Areas and Vegetated Buffer, compiled by Riverways' Rivers Advocate Russ Cohen, updated 8/1/05. Additionally, there is a growing body of research that shows that the threshold of imperviousness in a watershed, at which damage takes place, is quite low -- and compounded by reductions in the width of the buffer zone. Other recent studies include The Effects of Urbanization on the Biological, Physical and Chemical Characteristics of Coastal New England Streams, 2004, by James Coles et al, USGS Professional Paper 1695. 

Ironically, applicant relied on the importance of permeability in a previous application before the Conservation Commission when it argued that another project would result in an increase in permeability, before negating this increase by expanding the parking lot and proposing ball fields and tennis courts. We don't expect the Department to ignore current regulations to accommodate recent research. Given what is now known about buffers and the loss rate of wetlands, expected climate patterns, and water levels, however, we do hope that the maximum discretion possible can be brought to bear under the current regulatory scheme.

Furthermore, the argument that no additional harm is done (since the buffer is already compromised by the landfill cap) may hold less weight now than at any time previously. Technology now exists to allow trees and other vegetation to be placed on former landfills without significant risk of ruining the cap. Two examples that come to mind are: a) the closed Concord landfill adjacent to Walden Pond - the portion of the landfill running along and easily visible from Route 2 is heavily planted with large trees; and Spectacle Island in Boston Harbor (recently opened to the public), a capped landfill which has also been extensively planted. 

In short, there is simply no longer a compelling argument that a technological barrier exists to restoring a buffer of native vegetation within the portion of the proposed ballfield site running along the Forest River. Here again, it would seem well within both the spirit and letter of the wetland protection umbrella to use such technology, where possible, to mitigate the mistakes of the past instead of compounding them (or worse, capitalizing on them). There is a chance to really restore this small remaining section of the marsh buffer beyond what might have been possible when the area was originally polluted; instead, the applicant seeks to spend a million dollars to build a project with the opposite impact on the buffer and an undetermined additional amount to convince agencies and the public that it is a reasonable, prudent, and appropriate course of action.

The Preface makes clear that the Department is committed to preventing large developers from chopping up projects to allow for limited review in buffer zones. Applicant is doing just that to limit review. While coastal areas are still subject to full review, there should still be leeway to consider prior work in the buffer zone. Along the same lines, it would clearly be contrary to the spirit of the regulations and the concept of wetland protection to ignore other planned work insofar as it is knowable. The Department should consider other projects that are in the planning stages as well as recently completed ones.

To the extent that it may lie within the Department's jurisdiction, we ask that the cumulative scope and breadth of planned projects along the watershed be taken into account when addressing each new potential encroachment on the Forest River Basin. Such projects do not come out of the blue, and are well known years in advance. It is only the narrowness of individual jurisdiction that prevents a regional approach, including the possibility of a moratorium in the basin. A study by Salem Sound 2000 warned years ago of the need to limit future land use impacts in Forest River Watershed. Since then, the dorms, arts building, bookstore, and parking lot with their attendant human and vehicular traffic have all contributed to a huge increase in human impact on previously filled marshland. Further projects include a 40B housing development at the mouth of the river, two residential subdivisions and a new YMCA further upstream, all of which will result in a net increase in imperviousness with the predictable results mentioned earlier. To the extent that the Department can intervene, we request that it do so. Regarding issues it finds outside its jurisdiction, we ask that recommendations for further study and action be forwarded to other bodies and agencies for resolution. Thank you for your time.