A00851-610544.pdf

Massachusetts Department Of Transportation Highway Division Proposal No. 610544-135966

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DOCUMENT A00851

JURISDICTIONAL DETERMINATION

NO. WW04-0000032

Massachusetts Department Of Transportation Highway Division Proposal No. 610544-135966

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July 19, 2024

City of Peabody, Brendan Callahan, Department of Community Development and Planning c/o Diana Abbot – BSC Group, Inc.

314 Hill Road Groton, MA 01450

Re: Jurisdictional Determination No. WW04-0000032 Request for Determination of Applicability Application No. 24-WW04-0010-APP 520 Lowell Street, Waters of Proctor Brook, Peabody, Essex County

Dear Mr. Callahan:

Enclosed please find the Jurisdictional Determination for the above referenced Request for Determination of Applicability (RDA) Application issued by the Department of Environmental Protection Waterways Regulation Program pursuant to M.G.L. Chapter 91 and 310 CMR 9.06.

This Determination may be recorded at the Southern District Essex County Registry of Deeds and a copy will be maintained in the Department files.

Please contact the Waterways Regulation Program at dep.waterways@mass.gov if you have any questions.

Sincerely, Daniel J. Padien Program Chief Waterways Regulation Program cc: Peabody Conservation Commission Brendan Callahan, Peabody Department of Community Development and Planning

Beth El Congregation Cemetery, c/o Shirat Hayam Congregation

Proposal No. 610544 - 135966

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Jurisdictional Determination No: WW04-0000032 Municipality: Peabody, Essex County

DETERMINATION OF APPLICABILITY- 310 CMR 9.00

To: Brendan Callahan Location: Beth-El Congregation Cemetery City of Peabody 520 Lowell Street

24 Lowell Street, Peabody, MA 01960 Peabody, MA 01960 Parcel No.: 035-027, Lot B21

Pursuant to 310 CMR 9.06, the Department of Environmental Protection Waterways Regulation Program (the “Department”) has considered your Request for a Determination of Applicability (RDA) Application and its supporting documentation, and has made the following determination:

The Determination is Positive, and the proposed work requires a Chapter 91 License. The above referenced site for which this determination is issued includes a waterway subject to jurisdiction under M.G.L. Chapter 91 and its regulations at 310 CMR 9.00.

BSC Group has requested a Determination of Applicability on behalf of the City of Peabody (the “Applicant”) regarding whether a segment of Proctor Brook within the footprint of a proposed pedestrian bridge crossing is navigable, and therefore a jurisdictional waterway pursuant to M.G.L.

Chapter 91. The proposed pedestrian bridge over the Proctor Brook is planned to be installed at an 18.79-acre cemetery with an existing paved driveway connecting to and across an adjacent property (Temple Israel of Swampscott) and ending at a public way (Peabody Road). The property in question is located at 520 Lowell Street, Peabody, Essex County (the “project site”).

Further documentation in support of this request included:

1) A letter in support of this request, prepared by BSC Group, May 2024;

2) Attachment A titled “Project Mapping/ Figures”, containing a USGS locus and

Environmental Resource Mapping, prepared by BSC Group, not dated.

1 Plan entitled “Subdivision Plan of Land Located in Peabody, Mass.”, Book No. 419, Plan No. 58, prepared by Eastern Land Survey Associates, Inc., Christopher R. Mello, PLS, dated January 14, 2009.

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3) Attachment B titled “Site Photographs”, a photo log with six (6) photographs of the project site.

4) Attachment C titled “USGS StreamStats Report”, streamflow information of the Proctor Brook, extracted from https://streamstats.usgs.gov/ss/ on May 3, 2024.

5) Attachment D titled “Preliminary Bridge Sketch Plans”, consisting of a plan set titled “Proposed Bridge Peabody Independence Greenway over Proctor Brook, MA Department of Transportation Highway Division”, Prepared by BSC Group, not dated, comprised of 7 sheets.

6) Attachment E - Notification list to persons listed in 310 CMR 9.11(3).

The submittal describes Proctor Brook at the proposed crossing as approximately twenty (20) feet wide and 6 to 12 inches deep based on reported field observations, January 2021 and as depicted in Photo #1. The proposed pedestrian bridge consists of a 179-foot long, single span, prefabricated truss steel superstructure supported on cast-in-place concrete foundations and extending from north to south. A 100-foot segment of the proposed bridge will span Proctor Brook with a clearance of 3.5 ft as measured from ordinary high water (OHW, el. 64.0 ft NAVD88) to the proposed low chord (el.

67.5 ft NAVD88). This bridge is a component of the 1.25-mile section of the new multi-use recreational trail connecting to the Independence Greenway and Border-to-Boston Trail network.

The Department hereby finds:

1) Proctor Brook is a non-tidal river or stream on which public funds have been expended for embankment improvements and flood control.

2) Proctor Brook at the proposed crossing location is approximately 20 feet wide and in

January 2021 was approximately 6 to 12 inches deep, sufficient to navigate a canoe, kayak or raft.

3) Pursuant to 310 CMR 9.04 (1)(e) the Department finds that Proctor Book is navigable at the project site and is therefore subject to jurisdiction pursuant to M.G.L. Chapter 91 and its regulations at 310 CMR 9.00;

4) Certain project components such as abutments, concrete foundations and portions of the proposed bridge located above OHW will not be located within geographic areas subject to Chapter 91 jurisdiction, pursuant to 310 CMR 9.04.

5) The 100-foot segment of the proposed pedestrian bridge spanning Proctor Brook requires a Chapter 91 Waterways License, pursuant to 310 CMR 9.05(1)(a).

After review of the above referenced RDA Application and supporting materials, the Department hereby determines that portion of the project site lying between the OHW lines of Proctor Brook is subject to Chapter 91 jurisdiction and therefore requires a Waterways License under M.G.L.

Chapter 91 and its regulations at 310 CMR 9.00. Please be advised that sufficient clearance must be provided to allow for safe navigation under the proposed pedestrian bridge. Based on a preliminary review, the proposed 3.5 feet of clearance appears adequate, but a comprehensive review will be conducted as part of the application process.

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This Determination does not relieve the Applicant from complying with all other applicable Federal, State, or local statutes, ordinances, by-laws, or regulations.

Issued by the Department of Environmental Protection Waterways Regulation Program.

IN WITNESS WHEREAS, said Department of Environmental Protection have hereunto set their hands this 19th day of July in the year 2024.

Daniel J. Padien Program Chief Waterways Regulation Program

Encl: Notice of Appeal Rights

NOTICE OF APPEAL RIGHTS

Who has the right to appeal?

The following persons shall have the right to an adjudicatory hearing concerning this decision by the Department to grant or deny a license or permit, in accordance with 310 CMR 9.17(1): (a) an Applicant who has demonstrated property rights in the lands in question, or which is a public agency; (b) any person aggrieved by the decision of the Department to grant a license or permit who has submitted written comments within the public comment period; (c) ten (10) residents of the Commonwealth who, pursuant to M.G.L. Chapter 30A, § 10A, have submitted comments within the public comment period with at least 5 of the 10 residents residing in the municipality(s) in which the license or permitted activity is located. The appeal shall clearly and specifically state the facts and grounds for the appeal and the relief sought, and each appealing resident shall file an affidavit stating the intent to be part of the group and to be represented by its authorized representative; (d) the municipal official in the affected municipality who has submitted written comments within the public comment period; and (e) MassCZM, for any project identified in 310 CMR 9.13(2)(a) for MassCZM participation or, in an Ocean Sanctuary, if it has filed a notice of participation within the public comment period.

How can I request an adjudicatory hearing?

A person requesting an adjudicatory hearing must submit a “Notice of Claim” to the Department, with a copy of the MassDEP Adjudicatory Hearing Fee Transmittal Form and include the details specified below, within twenty-one (21) days of the date of issuance of this decision. The MassDEP Transmittal Form is available at the following website:

https://www.mass.gov/doc/adjudicatory-hearing-fee-transmittal-form The Notice of Claim must be made in writing and sent by certified mail or hand delivery to:

MassDEP Office of Appeals and Dispute Resolution Case Administrator 100 Cambridge Street, Suite 900 Boston, MA 02114

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A copy of the complete Notice of Claim must be sent at the same time by certified mail or hand delivery to: (1) the Applicant, (2) the municipal official of the city or town where the project is located, and (3) the issuing office of the MassDEP, which in this case is located at:

MassDEP Waterways Regulation Program 100 Cambridge Street, Suite 900 Boston, MA 02114

The MassDEP Adjudicatory Hearing Fee Transmittal Form and a valid check payable to “The Commonwealth of Massachusetts” in the amount of one hundred dollars ($100) must be mailed to:

MassDEP Commonwealth Master Lockbox P.O. Box 4062 Boston, MA 02211

What information must be included in the hearing request?

Pursuant to 310 CMR 9.17(3), any Notice of Claim requesting an adjudicatory hearing must include the following:

(a) the MassDEP Waterways Application File Number;

(b) the complete name, address, fax number and telephone number of the Applicant;

(c) the address of the project;

(d) the complete name, address, fax number, and telephone number of the party filing the request and, if represented by counsel, the name, address, fax number, and phone number of the attorney;

(e) if claiming to be a person aggrieved, the specific facts that demonstrate that the party satisfies the definition of “aggrieved person” found in 310 CMR 9.02;

(f) a clear statement that a formal adjudicatory hearing is being requested;

(g) a clear statement of the facts which are the grounds for the proceedings, the specific objections to the

MassDEP’s written decision, and the relief sought through the adjudicatory hearing, including specifically the changes desired in the final written decision; and

(h) a statement that a copy of the request has been sent to: the Applicant and the municipal official of the city or town where the project is located.

Dismissal of request The request for appeal will be dismissed if the filing fee is not paid unless the appellant is exempt or is granted a waiver.

Exemptions The filing fee is not required if the appellant is a city or town (or municipal agency), county, or district of the Commonwealth of Massachusetts, or a municipal housing authority.

Waiver The Department may waive the adjudicatory hearing filing fee pursuant to 310 CMR 4.06(2) for a person who shows that paying the fee will create an undue financial hardship. A person seeking a waiver must file an affidavit setting forth the facts believed to support the claim of undue financial hardship together with the hearing request as provided above.

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