B08_Attachment_10_Specifications_Exhibits_PAGES_1501_to_2068_0001.pdf

Appendix M: Final Concern Response Report and Draft EIS/EIR Comment Letters

Final Environmental Impact Statement / Environmental Impact Report M-13

3. SALINITY OF SURFACE WATERS

CONCERN STATEMENT: The FEIS/FEIR should explain how salinity can be higher on the marsh surface than in adjacent creek channel (Table 4-13, page 217).

Organization: Not Specified Organization Type: Unaffiliated Individual Representative Quote: “p. 217 ¶ line 2 and Table 4-13. How can salinity be higher on the marsh surface than in adjacent creek channels?”

Response: Development of the two-dimensional hydrodynamic model for the Herring River identified several anomalies within the flood plain based on the current altered state of its topography and bathymetry (i.e. subsided marsh surfaces, presence of anthropogenic fill) and complicated flow dynamics.

The model identified areas where, during some tidal regimes, salt water would become impounded on marsh surfaces that are prone to poor drainage. Meanwhile, fresh surface water and groundwater would be discharged into adjacent channels, creating higher modeled salinity levels on certain marsh surfaces than in the channels. While the model suggests these conditions may occur at some point during the incremental restoration process, marsh drainage is expected to improve over time as the project is implemented.

PRELIMINARY - FOR REVIEW ONLY

M-14 Herring River Restoration Project

4. WATER AND SEDIMENT QUALITY

CONCERN STATEMENT: The FEIS/FEIR should be corrected to reflect that the likely source of nitrogen is organic decomposition and retention of nitrogen as sorbed ammonium, and the likely source of phosphorus is decomposed organic matter (per DEIS page ii).

Organization: Not Specified Organization Type: Unaffiliated Individual Representative Quote: “p. ii, ¶ 3. There is a problem with the contention that nitrogen and phosphorus are ‘excessive’ and the suggestion that they could be from fertilized lawns, agriculture (both very limited), golf course, landfill, etc. The most likely source of N is from organic decomposition and retention of N as sorbed ammonium, protected from oxidation (to nitrate) and dissolution by low pH.

Similarly, the most likely source for high phosphorus is decomposed organic matter, i.e. drained peat; the phosphorus is retained in the low-organic-content soil in combination with oxidized iron minerals (Portnoy & Giblin, Biogeochemistry 36:275-303, 1997).”

Response: The text of the FEIS/FEIR has been changed to: “In addition, concentrations of nitrogen and phosphorus in the sediments of Herring River have remained high. Although there is no documentation of specific anthropogenic or natural inputs, potential sources of excessive nutrients in the watershed include animal waste and atmospheric deposition, exacerbated by the lack of tidal flushing has allowed nutrients to accumulate in the Herring River.”

CONCERN STATEMENT: The FEIS/FEIR should clarify whether the Herring River is on the 303(d) list for pathogens, or for pH and metals only (per DEIS p. 189 paragraph 3).

Organization: Not Specified Organization Type: Unaffiliated Individual Representative Quote:” p.189 ¶ 3. Is the river on the 303(d) list for pathogens, or just pH and metals?”

Response: The Herring River is listed for pathogens, pH, and metals in two different segments of the river. Segment MA96-07 (Herring Pond to south of High Toss Road) is impaired for metals and pH.

Segment MA96-33 (from south of High Toss Road to Wellfleet Harbor) is impaired for pathogens (i.e., fecal coliform bacteria). The current discussion of the Alternative A: No Action, appearing on pages 197- 198 of the FEIS, is clear about listing for pathogens, pH, and metals.

CONCERN STATEMENT: The FEIS/FEIR should address concerns about vegetation removal and the effect on nitrates and fecal coliform filtration.

Organization: Not Specified Organization Type: Unaffiliated Individual Representative Quote: “If you destroy all the fresh water vegetation, what is going to take its place to filter out nitrates and fecal coliform? Look at Duck Creek and Pamet River- they are closed for 6 months of the year. That would be devastating if it happens to Wellfleet Harbor.”

Response: Regular tidal flushing is expected to substantially decrease concentrations of bacteria and nutrients in the Herring River. The tidally-influenced area within the estuary would increase significantly compared to existing conditions. Flushing rates would be increased (i.e., residence time would be decreased) at least 24-fold (see table 4-4 of the FEIS/FEIR). In addition, the survival time of fecal coliform bacteria would be reduced by higher salinity (see Bordalo et al. 2002), as well as by higher dissolved oxygen and lower water temperature. Nutrients would also be diluted and removed from the system with each tide cycle. In addition, tidal restoration will occur slowly, no sudden die-off of

Final Environmental Impact Statement / Environmental Impact Report M-15 vegetation is expected, and large expanses of freshwater vegetation will remain in the upper reaches of the flood plain.

M-16 Herring River Restoration Project

5. WETLAND HABITAT AND VEGETATION

CONCERN STATEMENT: The FEIS/FEIR should consider that the proposed action will cause blueberry bushes to die and decay, resulting in decreased food for animals and humans.

Organization: Not Specified Organization Type: Unaffiliated Individual Representative Quote: “All the blueberry bushes that lined Mill Pond Road died and never have come back creating a dead decaying landscape. The Herring River Estuary flooding will result in the same broad impact of the loss of beneficial vegetation, such as, blueberry bushes that lined Mill Pond and Old County Roads and have never returned, eliminating food for birds, animals and people.”

Response: Chapter 4, Section 4.8 of the FEIS/FEIR analyzes project impacts to terrestrial species, including birds, mammals, and reptiles/amphibians. It is true that vegetation intolerant of salt water like blueberries may not survive in some parts of the project area as tides are restored to the Herring River estuary. One of the objectives of the project is to initiate a gradual shift from habitats that are dominated by freshwater and upland vegetation to those dominated by salt marsh vegetation. Nonetheless, when the restoration is complete, there will still be parts of the project area where saltwater will not reach and the existing vegetation will persist. In other areas it is likely that shrubs like blueberry will be replaced by salt-tolerant herbaceous vegetation such as salt marsh cordgrass and/or wetland shrubs such as arrowwood and winterberry that provide food, breeding areas, and cover for wildlife. The project anticipates that changes in vegetation will be monitored as the restoration project progresses. As the transition in vegetation occurs, it is possible that some of the existing vegetation will be removed in order to enhance the new growth. Wildlife that is dependent on salt marsh habitats, that is rare or currently does not occur in the project area, such as sharp-tailed sparrows, will benefit from restoration. Wildlife species that currently occur in the Herring River area will likely continue to exist but are expected to change their distribution as the shifts in habitat types occur. Ample upland and transitional habitat will remain available for upland and generalist species in areas adjacent to the project.

CONCERN STATEMENT: The implementation of project actions at High Toss Road must ensure that impacts to wetlands are the minimum necessary to achieve the project objectives.

Organization: Cape Cod Commission Organization Type: County Government Representative Quote: MPS WET1.1, 1.2: “These standards protect wetlands and their buffers from alteration. This project element involves potential wetland alteration in the form of wetland fill and construction activities that might impact 13,000 sq. ft. of wetland resource areas. However, some action at High Toss Road is necessary to achieve the project objective of ecological restoration. This standard allows for alteration, provided it is the minimum necessary and there are no feasible alternatives, and that mitigation is provided.

As the HRRC refines the project, selecting a preferred alternative for High Toss Road and proceeding with the engineering required to execute this project element, they should keep in mind minimizing direct impacts to wetland resources (such as construction impacts, footprint of fill, rip rap or bulkheads associated with elevating the road, etc.).”

Response: The preferred plan for High Toss Road is to remove the existing causeway, which would improve tidal flow and drainage and restore approximately 10,000 square feet of historic filled wetlands.

Activities at High Toss Road and elsewhere would not only minimize direct impacts to wetlands, they would result in a net increase in wetland acreage and restore wetland function.

Final Environmental Impact Statement / Environmental Impact Report M-17

CONCERN STATEMENT: The FEIS/FEIR should state whether the vegetation that dies will be removed.

Organization: Not Specified Organization Type: Unaffiliated Individual Representative Quote: “Will the vegetation that will die off as a result of the increase of salt water be removed from our view. We would not like to have the Herring River look like the Pamet with all the dead trees after the dike was breached there some years ago.”

Response: Specific vegetation management actions will be determined as part of the Adaptive Management Plan, contingent on landowners’ approval. Vegetation removal is discussed in Sections 2.6.2 and 4.5 of the FEIS/FEIR. Because tidal influence will be reestablished slowly and in a controlled manner, massive die-offs of trees and shrubs, such as occurred when the Pamet River was suddenly and inadvertently flooded, are not expected.

CONCERN STATEMENT: The FEIS/FEIR should provide an estimate of the amount of salt marsh expansion and Phragmites loss or colonization, and provide a graphic depiction of this change.

Organization: MA DEP, SERO Organization Type: State Government Representative Quote: “The DEIR has identified approximately 9 acres of wetland that will be lost to fill for road elevation and relocation, construction of dikes and 8.3 acres of the 9 acres for fill associated with golf course relocation and elevation. Additionally, an unidentified amount of salt marsh will be lost to submerging when the increase in tidal elevation exceeds the lower growth elevation of the salt marsh.

More temporary work area wetland impacts are expected (i.e. 2.4 acres for the Mill Creek dike work area). Some loss of wetland is deemed by MassDEP to be acceptable for restoration projects that show an overall improvement to the areas ability to protect the interest of the Act, however it will be necessary to quantify the predicted increase in wetlands expansion to offset wetland losses, or a significant improvement in wetland habitat by expansion of wetland, particularly salt marsh, through control of invasive species in order to obtain the necessary permits. However, the DEIR has identified a degree of uncertainty about salinity modeling in the basins beyond the lower Herring River. Significant acres in the upper Pole Dike Creek, upper Herring River and upper Bound Brook sub basins, are anticipated to have freshwater wetlands converted to brackish marsh and a potential spreading of Phragmites, particularly Bound Brook where salinity is expected to increase to just 15 PPT well within the salinity range for Phragmites. Salinity levels would vary throughout the system and with salinity levels in the upper reaches of the estuary not high enough to support salt marsh vegetation, a degree of uncertainty in determining future species composition exists. The DEIR clearly states the acreage to be covered by salt water with mid to high levels of salinity. It is unclear if this is inferred to mean those areas will be likely to be salt marsh. MassDEP is seeking further clarification in the FEIR for future permitting purposes, as to the amount of salt marsh expected to expand and how much of the area of Phragmites will be converted/lost to this expansion. It was also unclear in the DEIR how much of the project locus contains Phragmites under existing conditions.”

Response: Currently, Phragmites primarily occupies about 70 acres within the Lower Herring River and Mill Creek sub-basins, with scattered small stands in Middle Herring River and Upper Pole Dike Creek.

It’s expected that the very high salinities (greater than 24 ppt) that will occur immediately following initial changes in tidal range will effectively and extensively reduce the coverage of Phragmites in the lower reaches of the system, where it presently is most abundant. However, there are concerns about how Phragmites may migrate, and potentially expand, in the mid to upper portions, where salinities will, at least temporarily, occur within the brackish range. To limit any expansion of Phragmites, NPS plans to

M-18 Herring River Restoration Project treat stands with herbicide above High Toss Road within the National Seashore boundary prior to increasing tide range. NPS will also work with the town and other project partners to treat significant stands of Phragmites on private lands, with the goal of controlling the species in the project area before tides are restored. Targeted methods will be used in order to assure that there is little to no damage to non-target native plants that are interspersed with Phragmites. Dense Phragmites areas will be foliar sprayed using backpack sprayers. The herbicide glyphosate shall be used for all herbicide applications (2-5% volume/volume) mixed with wetland surfactant and drift control agent. For areas of Phragmites which are less dense and interspersed with desirable native vegetation targeted herbicide application the following methods will be used:

The “cut and drip” method - Each stem is cut below a node on the stem. One drop of a solution of herbicide with water, and indicator dye is dripped into each stem. This technique will be used around a three foot perimeter where Phragmites is growing directly adjacent to native shrubs.

The “glove” technique - To conduct the “glove” technique each herbicide applicator will wear a chemical resistant glove underneath an absorbent cotton glove. The applicator will also carry a hand pumped low volume backpack sprayer equipped with specialized ultra-low volume nozzles. The applicator moistens the glove from the backpack sprayer into the glove and proceeds to wipe each stem and leaf of the individual Phragmites plants. Although this technique is labor intensive, it limits herbicide exposure to non-target plants.

As part of the overall adaptive management program for the project, regrowth and potential expansion of Phragmites throughout the most vulnerable portions of the system (e.g. mid to lower salinity levels) will be extensively monitored and follow-up actions implemented as necessary. At that time, more detailed plans regarding Phragmites treatments and vegetation management will be prepared and presented to a regulatory oversight group for review and approval.

Also see the refined vegetation and habitat change analysis in Section 4.5.7 of the FEIS/FEIR for an estimate of the amount of salt marsh expansion and Phragmites loss or colonization, and a graphic depiction of current Phragmites stands.

Final Environmental Impact Statement / Environmental Impact Report M-19

6. AQUATIC SPECIES

CONCERN STATEMENT: The FEIS/FEIR should evaluate impacts to sensitive species and habitats as a result of Adaptive Management Plan actions, including the removal of upstream culverts, the dredging of sediments, and the removal of soil berms, and should implement the recommendations of the Atlantic States Marine Fisheries Commission.

Organization: Atlantic States Marine Fisheries Commission Organization Type: Interstate Commission Representative Quote: “Restoring the tidal flow of the Herring River will likely increase the available nursery area and spawning grounds for winter flounder, scup, alewife, river herring, as well as many other species. However, the Commission has some concern about the impact to sensitive habitats that could result from a few of the measures identified in the Adaptive Management Plan, such as the removal of several upstream culverts, dredging sediment to restore natural bottom habitat, and removing soil berms.”

Organization: Cape Cod Commission Organization Type: County Government Representative Quote: MPS WET1.1, 1.2: “These standards protect wetlands and their buffers from alteration. This element involves wetland alteration by way of the placement of fill. However, this action would be taken to achieve the project objective of ecological restoration, according to protocols in the Adaptive Management Plan. This standard allows for alteration, provided it is the minimum necessary and there are no feasible alternatives, and that mitigation is provided. As the HRRC refines the project, they should provide protocols within the Adaptive Management Plan to ensure that alterations to wetlands are the minimum necessary to achieve the project objectives.”

Organization: Cape Cod Commission Organization Type: County Government Representative Quote: MPS CR3.7: “This standard prohibits improvement dredging, except where necessary to accomplish a substantial public benefit. As part of the adaptive management plan, the project may need to dredge portions of the river/wetlands system in order to restore channel sinuosity, improve drainage, and improve habitat. The HRRC will have to demonstrate that the adaptive management plan has appropriate checks and balances to ensure that any improvement dredging resulting from the project will result in net gains to habitat, and/or other public benefit.”

Response: Some of the actions envisioned as part of secondary management of the Herring River flood plain have the potential for short-term impacts to sensitive species and habitats. Among these impacts is erosion and sedimentation caused by vegetation clearing, tidal stream restoration, and removal of anthropogenic fill from the flood plain. Though measures such as use of hay bales and erosion control materials will be employed to avoid and minimize the harmful effects of sedimentation, some degree of short-term impact is likely unavoidable. Because secondary management activities and locations are uncertain, specific details about these impacts and mitigation measures are currently unknown. As part of the adaptive management program, the decisions to conduct secondary management activities will be integrated into a trade-off analysis, where the consequences of potential short-term impacts are weighed against the long-term management objectives. Results of these analyses will be reviewed and discussed by a regulatory oversight group before approvals are granted for any proposed work.

M-20 Herring River Restoration Project

CONCERN STATEMENT: Because the current dike design may not provide for effective fish passage, the Adaptive Management Plan should include monitoring of fish passage at all tide control structures, and identify actions to improve fish passage if problems are detected.

Organization: USGS S.O. Conte Anadromous Fish Research Center Organization Type: Federal Government Representative Quote: “The proposed alternatives all retain some form of tidal control, which it seems will necessarily include generation of some or all of the factors known to create barriers to fish passage. I recognize that the proposed changes represent an attempt to balance various interests; however, it will be important to recognize at the outset that a key objective--provision of effective fish passage--may not be met by these designs. The solution to this will be to include post-construction monitoring of fish passage (preferably with acquisition of pre-construction baseline data) as part of the adaptive management framework, with an explicit plan to modify and improve fish passage if and when problems are identified.

This must be performed at all flow control structures.”

Response: Fish passage is discussed in Sections 4.6.2, 4.6.3, and 4.6.6 of the FEIS/FEIR. The new bridge and tide gates at Chequessett Neck Road would provide better fish passage for all fish including anadromous and catadromous species. Even at the outset of the phased tide gate opening, current velocities will decrease throughout much of the tidal cycle, tending toward more natural channel hydrodynamics. The Massachusetts Division of Marine Fisheries (DMF) is currently developing a guidance document containing specific criteria that fish passage projects should target, including water depth and velocity through culverts and bridges. The Herring River restoration project will be designed and managed to meet the DMF fish passage criteria to the extent practicable. Extensive baseline monitoring of river herring movement near water control structures is currently underway and is expected to continue as the project is implemented.

CONCERN STATEMENT: The FEIS/FEIR should explain why restoration of the Herring River is being considered, in light of offshore harvests that are causing the extinction of the river herring population.

Organization: Not Specified Organization Type: Unaffiliated Individual Representative Quote: “Why restore the Herring River when the government, including NOAA, is not stopping the extinction of river herring? When they stop all harvest of herring from the shore out 50 miles, where 99% of the river herring live, a reasonable restoration should take place, but not until then.”

Response: The purpose of the Herring River Restoration Project is to restore self-sustaining coastal habitats on a large portion of the 1,100-acre Herring River estuary, including the need to address the loss of estuarine habitat and degradation of water quality that has led to fish kills and to remove physical impediments to River Herring migration (see Chapter 1, pages 1-6). The National Marine Fisheries Service (NMFS) was recently petitioned to list river herring as a threatened or endangered species. In August 2013, after conducting an extensive review, NMFS ultimately determined not to list alewife and blueback herring as threatened or endangered. According to the NMFS listing determination (Federal Register, August 12, 2013), “historical and commercial and recreational fisheries for river herring likely contributed to the decline in abundance of both alewife and blueback herring populations. Current directed commercial and recreational alewife and blueback herring fisheries, as well as commercial fishery incidental catch, may continue to pose a threat to these species.” However, that same report found that the decline in the abundance of river herring throughout the northeast United States is due to many factors, including loss of, and lack of safe access to, spawning habitat; commercial and recreational fishing, including incidental catch; predation; disease; and other factors. In fact, the NMFS study identified “dams and barriers as the most important threat to alewife and blueback herring populations

Final Environmental Impact Statement / Environmental Impact Report M-21 both range-wide and across all stock complexes”. Removing the barriers to river herring migration in the Herring River estuary will enhance migratory fish access to approximately 156 acres of spawning habitat.

Such barrier removal projects have been shown to substantially increase the size of herring runs (Sheppard and Block, 2013). While the Herring River restoration project alone will not solve the population issues being experienced across the region by river herring today, habitat restoration projects like this one are an indispensable part of the solution.

CONCERN STATEMENT: The FEIS/FEIR should identify impacts and consider a commitment to limit impacts to marine fisheries resources through mitigation measures including adoption of EFH conservation recommendations made by NOAA, minimizing sediment mobilization during construction by using cofferdams and in-water timing limits, and consultation with DMF to establish TOY and other restrictions to permit fish passage and minimize siltation during shellfish and winter flounder spawning and to review final dike designs related to passage.

Organization: National Oceanic and Atmospheric Administration Organization Type: Federal Government Representative Quote: “However, EFH may be adversely impacted by construction activities such as the installation and removal of cofferdams, and by potential measures identified in the Adaptive Management Plan, such as enlargement or removal of several upstream culverts, dredging of sediments to restore natural bottom habitat, and removing soil berms. We are concerned that the associated noise, obstruction, and turbidity and sedimentation impacts could impact EFH and other trust resources during sensitive life stages.

In-water construction including fill and excavation may result in mortality of benthic species through direct removal or through burial by excavated material. Crustaceans and egg and larval stages of fish may be most susceptible to such impacts. Excavation and other unconfined work such as the installation and removal of cofferdams also have the potential to increase levels of suspended sediment in the surrounding waters, which has been shown to restrict or inhibit habitat use and function, including fish reproduction (Newcombe and MacDonald 1991). High turbidity can impact fish species through greater expenditure of energy, gill tissue damage and mortality (Newcombe and Jensen 1996, Johnson et al. 2008). Furthermore, sub-lethal effects to estuarine fish can include decreased feeding, impacts from lowered oxygen levels, as well as impacts on gills and associated respiratory impacts (Wilber and Clarke 2001). Particularly, egg and larval life stages may be more sensitive to turbidity impacts (Newcombe and Jensen 1996).”

Organization: Massachusetts Division of Marine Fisheries Organization Type: State Government Representative Quote: “The proposed restoration project should enhance habitat for a variety of marine fisheries resources. However, a variety of shellfish and finfish species currently exist within the Herring River/Wellfleet Harbor complex, and construction methods and timing should be designed to minimize impacts to these existing marine fisheries resources.”

Organization: MA Executive Office of Energy and Environment Organization Type: State Government Representative Quote: “The FEIR should include a commitment as part of the project's construction and design plans to adopt the Essential Fish Habitat (EFH) conservation recommendations made by NOAA.

The FEIR should include a commitment by the Towns to work proactively with the DMF to develop construction activity specific TOY staging to minimize impacts to marine resources. The updated construction period impact assessment should commit to maintaining a channel of free-flowing water of sufficient width and depth to permit fish passage during both spring adult migration as well as fall juvenile emigration of diadromous fishes and a minimization of siltation effects during shellfish and

M-22 Herring River Restoration Project winter flounder spawning. The Towns should commit, as part of the FEIR, to consult with DMF as part of the dike design process with regards to diadromous fish passage and construction period BMPs.

Finally, the FEIR should include additional discussion regarding the potential impacts to fisheries habitat within the Herring River estuary directly associated with secondary management actions such as: the removal of upstream culverts, dredging of sediment, and removal of soil berms. Specifically, the FEIR should confirm how the project will seek to meet recommendations outlined in the Atlantic States Marine Fisheries Commission comment letter on the draft EIS/EIR.”

Organization: Mass Division of Marine Fisheries Organization Type: State Government Representative Quote: “Recommended time-of-year (TOY) restrictions outlined in a previous Marine Fisheries comment letter on the ENF filing for this project and summarized in the Marine Fisheries TOY technical report for the Herring River [1] represent the most conservative suite of TOY restrictions based on all existing marine resources. These TOY restrictions are designed to protect marine resources during vulnerable periods, but all construction activities will not necessarily pose threats during these periods. A full set of potential TOY restrictions is listed below (Table 1), but all TOYs will not likely be applicable to any single construction activity. Marine Fisheries concurs with the National Marine Fisheries Service's comment letter dated December 3, 2012. Specifically, TOY restrictions will not be necessary in cases in which work is buffered by cofferdams and silt curtains, but installation and removal of these structures should be performed outside of relevant TOY windows. As noted in the FEIS/FEIR, Marine Fisheries should be consulted with to develop construction activity specific TOY staging to minimize impacts to marine resources. Staging should maintain a channel of free-flowing water of sufficient width and depth to permit fish passage during both the spring adult migration as well as the fall juvenile emigration of diadromous fishes. Staging should also minimize siltation effects during shellfish and winter flounder spawning. Marine Fisheries should also be consulted with to review final dike designs with regards to diadromous fish passage.”

Table 1. TOY Restrictions for the Herring River Species TOY Period Alewife: April 1 to June 15; Sept. 1 to Nov. 15 Blueback Herring: April 1 to June 30; Sept. 1 to Nov. 15 American eel: March 15 to June 30; Sept. 15 to Oct. 31 White perch: April 1 to June 15 Winter flounder: Feb. 1 to June 30 Shellfish: May 1 to Nov. 15 Combined Resources: Feb. 1 to Nov. 15

Response: In their comments on the DEIS/DEIR, the Massachusetts Division of Marine Fisheries (Marine Fisheries) concurred with recommendations made by NOAA Fisheries as part of the Essential Fish Habitat (EFH) consultation process that stated (1) cofferdams be used to isolate in-water work and that their installation and removal be conducted using BMPs such as sediment curtains to minimize adverse impacts on marine species, and (2) no in-water construction occur between the dates of March 1 and June 30, while noting that once cofferdams are in place, work may occur behind them any time of year as long as adequate fish passage is provided. Marine Fisheries also provided additional recommended time-of-year (TOY), in-water construction, restrictions beyond the March 1 to June 30 timeframe.

Project proponents are committed to adopt the EFH conservation recommendations made by NOAA Fisheries in order to minimize impacts on marine species in the project area. FEIS/FEIR section 5.3.4, Final Environmental Impact Statement / Environmental Impact Report M-23

Compliance with the Magnuson-Stevens Fishery Conservation and Management Act, has been revised accordingly to reflect these recommendations.

Further, as noted in the DEIS/DEIR in Section 4.11, in addition to adherence to the recommendations made by Marine Fisheries, the project proponents will consult with both Marine Fisheries and NOAA Fisheries to develop all appropriate in-water construction related TOY restrictions to facilitate fish passage and minimize siltation during shellfish and winter flounder spawning as well as final dike design review.

M-24 Herring River Restoration Project

7. STATE-LISTED RARE, THREATENED, AND ENDANGERED SPECIES

CONCERN STATEMENT: The analysis in the FEIS/FEIR should be refined to clarify effects on state-listed rare, threatened, and endangered species, such that NHESP can complete its review of these effects and submit recommendations to avoid, minimize, and mitigate impacts to state-listed species.

Organization: MA Natural Heritage and Endangered Species Program Organization Type: State Government Representative Quote: “The project site is located within Priority and Estimated Habitat as indicated in the 13th Edition of the MA Natural Heritage Atlas and therefore requires review by the NHESP for compliance with the Massachusetts Endangered Species Act (MESA 321 CMR 10.00).

The NHESP has been actively involved in the review of the proposed restoration plan through participation in the Herring River Restoration Technical Working Group. While the NHESP strongly supports habitat restoration, care must be taken to reduce impacts to state-listed species and their habitats.

It appears that the proposed project may qualify for a MESA Habitat Management Exemption (321 CMR

10.14 (11)), however, in order for the NHESP to make a final determination, additional information must be submitted for review. Specifically, habitat impacts to certain state-listed species, such as the Eastern Box Turtle (Terrapene carolina), remain unclear and should be further refined. The NHESP is working with the proponent to address how the different alternatives might avoid, minimize, and mitigate impacts to state-listed species.”

Organization: MA DEP, SERO Organization Type: State Government Representative Quote: “The DEIR has identified both short and long term adverse impacts to state listed rare, threatened and endangered species specifically, the Northern Harrier, Diamondback Terrapin, Eastern Box Turtle, Water Willow Stem Borer, American Bittern and Least Bittern. Project compliance with the Act requires no short or long term adverse impacts to state listed rare, threatened and endangered species. In some instances compliance is obtained through the implementation of a Comprehensive Management Plan (CMP) issued by the Massachusetts Natural Heritage and Endangered Species Program (MNHESP). MassDEP seeks clarification in the FEIR and on MNHESP's requirements and the effect they may have on project design. MassDEP will require the submittal of detailed information on how the project will comply with MNHESP's requirements to be submitted with any permit application and request for variance.”

Response: See the refined vegetation and habitat change analysis in Section 4.5.7 of the FEIS/FEIR for a discussion of effects on state-listed rare, threatened, and endangered species. This analysis has been restructured in accordance with NHESP comments to allow for NHESP review and recommendations.

CONCERN STATEMENT: The FEIS/FEIR should consider that several state listed rare, threatened, and endangered animals will die as a result of the proposed project.

Organization: BB&N Organization Type: Unaffiliated Individual Representative Quote: “I have several issues with the Herring River Restoration that have not been adequately addressed. 1. Many animals and plants will die, including five animals on the state-listed Rare, Threatened, and Endangered Species including American Bittern, Least Bittern, Northern Harrier, Eastern Box Turtle, Water-Willow Stem Borer, and Diamondback Terrapin.”

Response: Chapter 4, Section 4.8 of the FEIS/FEIR analyzes project impacts to terrestrial species, including birds, mammals, and reptiles/amphibians. The result of the analysis is that a gradual shift in

Final Environmental Impact Statement / Environmental Impact Report M-25 species distribution would occur as habitat types changed in the estuary, but ample upland and transitional habitat would remain regionally available for upland and generalist species. The slow pace of change will allow mobile species to move to these areas that retain suitable habitat.

Also, see the refined vegetation and habitat change analysis in Section 4.5.7 of the FEIS/FEIR.

CONCERN STATEMENT: The FEIS/FEIR should provide additional information on rare species habitat impacts and mitigation efforts to evaluate how the project will avoid, minimize and mitigate impact to state listed species and inform the DEP wetlands variance process.

Organization: MA Executive Office of Energy and Environment Organization Type: State Government Representative Quote: MPS WPH1.4: “This standard requires the protection of rare species habitat. The project will result in indirect impacts to habitat of the Northern Harrier, Diamondback Terrapin, Eastern Box Turtle, American Bittern, Least Bittern, and Water Willow Stem Borer, all state-listed species. The actions contemplated under this project element may result in positive habitat changes for some of these species (e.g. increased estuarine habitat for Diamondback Terrapin), and in the loss of habitat for others (loss of freshwater marsh habitat for American and Least Bitterns). The Commission will seek guidance from the Natural Heritage and Endangered Species Program in determining whether the project complies with this standard, and whether impacts to rare species should be mitigated by means other than those planned for the restoration project generally (e.g. creation or preservation of specialized habitat within the project area, or elsewhere within the seashore).”

Representative Quote: “To the extent practicable, additional information on rare species habitat impacts and mitigation efforts should be presented in the FEIR to' assist in the evaluation of how the project will avoid, minimize and mitigate impacts to State-listed species and to inform MassDEP's wetlands variance process.”

Response: See the refined vegetation and habitat change analysis in Section 4.5.7 of the FEIS/FEIR for an updated analysis of project effects on rare species habitat and state-listed species..

CONCERN STATEMENT: The Adaptive Management Plan should include expanded monitoring of rare species.

Organization: MA Natural Heritage and Endangered Species Program Organization Type: State Government Representative Quote: “The proposed Adaptive Management Plan (Appendix C of the DEIR/DEIS) should include expanded rare species monitoring (both pre- and post-restoration efforts) to better track and understand their responses to habitat management decisions and actions.”

Response: Monitoring of rare species is discussed in the refined vegetation and habitat change analysis in Section 4.5.7 of the FEIS/FEIR.

M-26 Herring River Restoration Project

8. TERRESTRIAL SPECIES

CONCERN STATEMENT: The FEIS/FEIR should explain why species that currently inhabit low lying land in the area are of less importance than the herring, since herring inhabit other areas on Cape Cod.

Organization: Not Specified Organization Type: Unaffiliated Individual Representative Quote: “And why do the fox and the other lowly animals who now inhabit those areas count less than the herring. You have other herring areas on Cape Cod.”

Response: Chapter 4, Section 4.8 of the FEIS/FEIR analyzes project impacts to terrestrial species, including birds, mammals, and reptiles/amphibians. The result of the analysis is that a gradual shift in species distribution would occur as habitat types changed in the estuary, but ample upland and transitional habitat would remain regionally available for upland and generalist species. The slow pace of change will allow mobile species to move to these areas that retain suitable habitat

Final Environmental Impact Statement / Environmental Impact Report M-27

9. CULTURAL RESOURCES

CONCERN STATEMENT: The FEIS/FEIR should reference MHC archaeological site inventory numbers from the 2011 technical report in the summary and tables in sections 3.9 and 4.9, and include an updated ancient and historic period archaeological context for the impact area of the preferred alternative.

Organization: MA Historic Commission Organization Type: State Government Representative Quote: “The FEIR should include an updated ancient and historic period archaeological context for the preferred alternative project impact area that incorporates current data from the :MHC's archaeological inventory, and from recent archaeological survey reports conducted on federal land that are not yet reported to the MHC for incorporation in the state archaeological inventory.”

Organization: MA Historic Commission Organization Type: State Government Representative Quote: “Cultural Resources, including historical and archaeological resources, are described in DEIS Section 3.9 (pg. 144) and 4.9 (pg. 244). Ancient Native American and historical period archaeological sites within and adjacent to the project area of potential effect are also listed in Tables 3-15

(pg. 147) and 3-16 (pg. 149). The MHC notes that this summary description is based in part on data from a 2011 technical archaeological reconnaissance report prepared for the NPS by the PAL, Inc. The MHC's archaeological site inventory numbers should be referenced in the summary and the tables in the FEIR.”

Response: For comparison purposes, summary table information and text in section 3.9 of the DEIS/DEIR has been revised to correspond directly with MHC site inventory numbers as described in the Phase 1A report, where possible. Recent technical reports and ongoing archaeological studies have been used to update the impact discussion on ancient and historic period archaeological context for the preferred alternative presented in the FEIS/FEIR.

CONCERN STATEMENT: Prior to implementation, the HRRC should provide existing conditions plans and proposed project plans to the MHC for the Preferred Alternative plan and the FEIS/FEIR should include an update on and summary of ongoing consultation with the MHC in regards to Section 106 of the NHPA and the development of a Programmatic Agreement.

Organization: MA Historic Commission Organization Type: State Government Representative Quote: “Section 5.3 (pp. 287, 288) provides a preliminary summary of consultation with the: MHC pursuant to Section 106 of the National Historic Preservation Act of 1966, as amended (36 CFR 800) and states that a draft Programmatic Agreement (PA) is currently under review by this office.

However, the MHC provided comments on the draft PA on July 16, 2012. The MHC looks forward to reviewing a revised PA that considers those comments. The FEIR should include a copy of the final executed PA and a summary of consultations with consulting parties.”

Organization: MA Executive Office of Energy and Environment Organization Type: State Government Representative Quote: “The MHC has also requested that, once developed, scaled existing and proposed conditions project plans and a draft scope for identification efforts for the Preferred Alternative be provided to all the consulting parties for review and comment.”

Response: The National Park Service has developed completed a Programmatic Agreement (PA) with the Massachusetts Historical Commission to guide the identification, evaluation, and protection processes for archaeological resources within the Herring River Estuary. This PA defines the measures that must be

M-28 Herring River Restoration Project carried out as the Project is implemented to comply with the requirements of the NEPA and NHPA processes and Massachusetts state regulations. As the project design process continues, NPS will provide plans and other documentation and consult with MHC under the terms of the PA (See Appendix I to the

FEIS/FEIR).

CONCERN STATEMENT: The FEIS/FEIR should include a figure that depicts the APE for the Preferred Alternative (D) in relation to identified historic resources and sensitive archaeological areas.

Organization: MA Historic Commission Organization Type: State Government Representative Quote: “The FEIR should include a figure as an appendix that shows the project area of potential effect for the preferred alternative in relation to identified historic resources and to portions of the project area identified as archaeologically sensitive. This figure should not contain sensitive archaeological site locational information. A similar figure that shows identified archaeological sites should be provided to the Corps, MHC, THPOs, MBUAR and the archaeological consultant.”

Response: The FEIS/FEIR has been revised to include a figure depicting the Area of Potential Effect (APE) for the Preferred Alternative that clarifies the relationship to historic and archeological resources.

Please refer to figure 3-24 and the Programmatic Agreement in Appendix I of the FEIS/FEIR.

Final Environmental Impact Statement / Environmental Impact Report M-29

10. NUISANCE MOSQUITOES

CONCERN STATEMENT: The proposed project should be re-evaluated due to concerns about disease transmission by nuisance mosquitoes.

Organization: Not Specified Organization Type: Unaffiliated Individual Representative Quote: “If the dikes at Herring River were put there to control mosquitos in 1909 I believe you said, why would you even try to change that in time when mosquitos are infected with diseases that are incurable.”

Response: Chapter 4, Section 4.10.2 of the FEIS/FEIR evaluates the effects of each alternative on nuisance mosquito populations. The conclusion is that salt marsh restoration would result in a species replacement of freshwater breeding mosquitos (O. cantator and O. canadensis) by saltwater breeding mosquitoes (O. solicitans) with an overall reduction in mosquito frequency. Moreover, there is no evidence that the mosquito species common on outer Cape Cod pose a significant human disease risk.

M-30 Herring River Restoration Project

11. SHELLFISH

CONCERN STATEMENT: The FEIS/FEIR should consider that mapped shellfish habitat extends to the region downstream of the Chequessett Neck Road Dike for oysters and quahogs and upstream of the Dike for oysters; land containing shellfish is deemed significant to the interest of the Wetlands Protection Act.

Organization: Massachusetts Division of Marine Fisheries Organization Type: State Government Representative Quote: “Wellfleet Harbor contains a variety of shellfish species, many of which support commercial and recreational fisheries. Wellfleet Harbor contains mapped shellfish habitat for American oyster (Crassostrea virginica), bay scallop (Argopecten irradians), quahog (Mercenaria mercenaria), razor clam (Ensis directus), and soft shelled clam (Mya arenaria). Mapped shellfish habitat extends to the region downstream of the Chequessett Neck Road Dike for oysters and quahogs and upstream of the Dike for oysters. Mapped land containing shellfish is deemed significant to the interest of the Wetlands Protection Act and the protection of marine fisheries.”

Response: Any issues regarding mapped shellfish habitat will be addressed in the permitting process.

Section 4.10.3 and the EFH Assessment in Appendix F of the DEIS/DEIR adequately describe the extent of shellfish habitat within the project area.

CONCERN STATEMENT: The FEIS/FEIR should address concerns about the proliferation of green crab and Japanese shore crab, which would adversely impact the shellfishing industry.

Organization: Not Specified Organization Type: Unaffiliated Individual Representative Quote: “What is going to be done about green crab and Japanese shore crab? Giving these invasive species more habitat to proliferate will definitely not help out the shellfish industry.”

Response: Based on information provided by the Barnstable County Marine Extension Service, an increase in the population of green crab and Japanese shore crab due to the restoration will not have an important impact on the shellfish industry. Although green crabs are found in salt marshes, they are also found throughout the whole intertidal area. There will probably be some population increase in the restored marsh, but not so much as to increase predation outside the marsh, where shellfishing occurs.

This is not considered an issue warranting analysis in the FEIS.

CONCERN STATEMENT: The FEIS/FEIR should provide monitoring protocols and management responses to address potential Wellfleet Harbor shellfishing impacts from sediment transport or poor water quality.

Organization: MA DEP, SERO Organization Type: State Government Representative Quote: “The DEIR has identified poor water quality within the Herring River particularly as it relates to the low dissolved oxygen, low pH, high metals, excess nutrients, pesticides, organic particulates, and fecal coliform and states discharges of these constituents is likely especially during the first few months of increasing the tidal range and salinity. Productive shellfish habitat exists immediately down river in Wellfleet Harbor and MassDEP is concerned about impacts to these shellfish beds from the mobilizing of these constituents. Although the DEIR only states that the discharges will be monitored and no additional information is provided. MassDEP believes that the FEIR should provide further clarification and additional information on what "management actions" the project proponent would undertake should the monitoring show impacts to downstream shellfish areas. MassDEP seeks this information to determine compliance with 310 CMR 10.34(4) of the Wetland Protection Act regulations

Final Environmental Impact Statement / Environmental Impact Report M-31

(regulations) that requires no adverse impacts to said beds from changes in water quality that would impact productivity.”

Response: Detailed information about monitoring and management responses with respect to shellfishing in Wellfleet Harbor will be developed in close collaboration with the Town of Wellfleet and the shellfishing community as part of the adaptive management planning process. An expanded overview of the adaptive management approach proposed for the Herring River project is provided in Appendix C of the FEIS/FEIR.

CONCERN STATEMENT: The FEIS/FEIR should contain sufficient information to definitively gauge the impacts to the shellfishing industry, and should include mitigation measures for potential reduction or loss of livelihood.

Organization: Not Specified Organization Type: Unaffiliated Individual Representative Quote: “I have concerns about the impact of…