Wellfleet Wetlands Destruction by DPW

So I haven't posted for a long time but I intend to post fairly regularly now. Recently some time in the first week of December a wetland and likely Spade Foot Toad Habitat that was protected under the town Wellfleet bylaws (which were updated as recently as 2010), was totally removed and recently filled with GRAVEL by the towns DPW. (Did I mention that it had at least a couple of feet of water in it at the time of its removal, and that a neighbor of the pool/swap told the dpw that it was "obviously a wetland area." I quickly contacted the local conservation agent and a number of organisations and the Mass DEP. Mostly none returned my calls or emails, excepting the local conservation agent. Bellow appears a complete record of my email conversation back and forth with the conservation agent with the most recent appearing at the top. Some of its pretty dry reading but to sum it up first they said that would visit the site (i initially called it a vernal pool perhaps incorrectly), then said that since it wasn't registered with the state that I wasn't protected and had been a matter of public safety(the road still floods as it is only 2ft from the water table). So I asked what the difference was between an inland wetland and a vernal pool technically, and didn't get a straight answer. Then I said that it was probably mislabeled on my part to call it a vernal pool since it was closer to a small swamp ie had a standing pool of water, delineated edges etc, but then I did a lot of research in town bylaws I hadn't wanted to do this I was hoping that the conservation agent would have done her homework. Immediately bellow appear the relevant bylaws and then the rest of the email conversation but the key passage is "Vernal Pool means any confined depression which, in most years, holds water for a period of time during the year, is free of adult fish populations and provides wildlife habitat for vernal pool indicator species. All vernal pools, whether certified by the Massachusetts Natural Heritage and Endangered Species Program or not, are protected under these Regulations
as freshwater wetlands." So even if it was a vernal pool it would automatically receive wetland protection in the town of Wellfleet regardless of its official status, since I sent this this was the reply I got "I can see you did some reading! What I think would be best for you at this point is to attend the business meeting of the Conservation Commission on December 21, 2011 in the Town Hall basement meeting room so that you can address your concerns with the Commissioners. I believe I fully understand your concerns and they should as well. I personally had no idea that this area was a wetland, as I said before it does not appear on any map as such. This is why it is difficult to take enforcement action. We have absolutely no records of this being a vernal pool or an inland wetland and a filing was just completed for the cove road area and it definitely did not delineate the area as such. When you attend the meeting I think it would be useful for you to bring any evidence you may have of this being a wetland. If you want to discuss this further before the meeting please feel free to give me a call. I thank you for your concern." Since receiving this reply they have further degraded the location by putting in a gravel and crushed stone mix, again in direct violation of the town bylaws. I'm to go before the conservation commission in less than a week but I'm pessimistic as to any result being achieved. I'm trying to assemble as much info as i can but i get the feeling that they are not going to do anything, so I'm also getting stuff together to go to the next level.



Ok so I've fully read the WELLFLEET ENVIRONMENTAL PROTECTION REGULATIONS, issued by the conservation commision in Dec 2010. And the DPWs actions are BLATENTLY illegal below appear the approtie passages from the said regulations. Three key passages from said regulations appear directly below.

1.04 (2)
Vernal Pool means any confined depression which, in most years, holds
water for a period of time during the year, is free of adult fish populations
and provides wildlife habitat for vernal pool indicator species. All vernal
pools, whether certified by the Massachusetts Natural Heritage and
Endangered Species Program or not, are protected under these Regulations
as freshwater wetlands."

This means that ANY vernal pool within the town of Wellfleet receives the same protection due any other wetland area within the town, even if said pool has not been technically so long as the indicators are present which they were at this location.

2.03 (b) Freshwater wetlands include Vernal Pools as defined at WEPR 1.04(2).

and

2.03(4) General Performance Standards
(a) Removing, filling, dredging or draining of freshwater wetlands,
whether they are bordering or not, is prohibited


"The problem here is that we have no documentation of this being a vernal pool. This area has been identified as upland on several plans of record. There is high groundwater in some locations near cove road, there is also drainage problems which contribute to water pooling in this area." This is a direct quote from one of your precious emails said POOLING automaticly brings the area under the protection of the WEPR 1.02 (1) (1) Areas Subject to Protection Under the Bylaw. The following Wetland Resource
Areas are subject to protection under the Bylaw and Regulations:
(a) any freshwater wetland, inland bank, coastal wetland, coastal bank, beach,
dune, flat, marsh, wet meadow, bog or swamp
(b) any estuary, creek, river, stream, pond, lake and lands under these bodies of
water; land under the ocean
(c) land subject to tidal action, land subject to coastal storm flowage, bordering
land subject to flooding, isolated land subject to flooding.
(d) all land within 100 feet of any area specified in WEPR 1.02

Immediate action and remediation of the DPWs actions are required under the WEPR. The said pool/ wetland is classified and defined as a wetland in the town of Wellfleet.
Bellow all relevant sections of the WEPR December 2010

1.02
(1) Areas Subject to Protection Under the Bylaw. The following Wetland Resource
Areas are subject to protection under the Bylaw and Regulations:
(a) any freshwater wetland, inland bank, coastal wetland, coastal bank, beach,
dune, flat, marsh, wet meadow, bog or swamp
(b) any estuary, creek, river, stream, pond, lake and lands under these bodies of
water; land under the ocean
(c) land subject to tidal action, land subject to coastal storm flowage, bordering
land subject to flooding, isolated land subject to flooding

1.02
(2) Activities Subject to Regulation Under the Bylaw.
(a) Activities Within an Area Subject to Protection Under the Bylaw. Any
activity which is proposed or undertaken within an area specified in WEPR
1.02(1) which, in the judgment of the Commission, will constitute removing,
filling, dredging or otherwise altering any such area, is subject to jurisdiction
under the Bylaw and Regulations and shall require the filing of a Notice of
Intent or a Request for Determination of Applicability and permission, in the
form of an Order of Conditions or a Determination of Applicability, from the
Commission to proceed. Applicants shall refer to WEPR 1.05 Procedures for
more information on how to file an application with the Commission.
(b) Activities Outside an Area Subject to Protection Under the Bylaw. Any
activity proposed or undertaken outside an area specified at WEPR 1.02(1)
shall not be subject to the jurisdiction of the Commission under the Bylaw and
Regulations unless, in the judgment of the Commission, said activity will or
has resulted in the removing, filling, dredging or alteration of any Area
Subject to Protection Under the Bylaw as set forth at WEPR 1.02(1) and will
or has had a significant or cumulative adverse effect upon the interests and
values as set forth at WEPR 1.01(2).

1.03
(3) Continuing Liability for Compliance with M.G.L. Ch. 131 s. 40 and the
Bylaw:
(a) Any person who purchases, inherits or otherwise acquires real estate upon
which work has been done in violation of the provisions of this Regulation or
in violation of any Order issued under this Regulation shall forthwith comply
with any such

1.04: Definitions:
(1) Unless otherwise defined in the Bylaw or Regulations, those definitions set
forth in the Massachusetts Wetlands Protection Act (M.G.L. Ch. 131 s. 40)
and 310 CMR 10.00 shall apply to the Wellfleet Environmental Protection
Regulations.
(2) Additional Definitions:
Activity means any form of draining, dumping, dredging, damming,
discharging, excavating, filling or grading; the erection, reconstruction or
expansion of any buildings or structures; the driving of pilings; the
construction or improvement of roads and other ways; the changing of
run-off characteristics; the intercepting or diverging of ground or surface
water; the installation of drainage, sewage and water systems; the
discharging of pollutants; the destruction of plant life; and any other
changing of the physical characteristics of land.
Alter means to change the condition of any Area Subject to Protection
Under the Bylaw as defined at WEPR 1.02. Examples include, but are not
limited to, the following: ___(unregestered vernal pools are additionally defined later as reciveiving full protection as a wetland)....
(a) the changing of pre-existing drainage characteristics, flushing
characteristics, salinity distribution, sedimentation patterns, flow
patterns and flood retention areas;
(b) the raising or lowering of the water level or water table;
(c) the destruction of vegetation
(d) the changing of water temperature, biochemical oxygen demand
(BOD), and other physical, biological or chemical characteristics of
the receiving water.

1.04 (2) Defintions
Freshwater Wetland is defined at WEPR 2.03(2).
Hydric Soil shall mean a soil that is saturated, ponded or flooded long
enough during the growing season to cause anaerobic conditions in the
upper part as evidenced by hydric soil indicators.
Hydric Soil Indicators include histosols; histic epipedons; presence of
sulfidic materials; gleyed soils; soils with a matrix chroma of 0 or 1 and
values of 4 or higher within 12 inches from the bottom of the O-horizon;
soils with a chroma of 2 or less and values of 4 or higher in the matrix and
mottles with a chroma of 3 or higher within 12 inches from the bottom of
the O-horizon; and within 12 inches of the bottom of the O-horizon, soils
with a matrix chroma of 3 and values of 4 or higher, with 10 percent or
more low-chroma mottles, as well as indicators of saturation (i.e., mottles,
oxidized rhizospheres, concretions, nodules) within 6 inches of the soil
surface. In Sandy soils hydric soil indicators include soils with a high
organic content in the surface layer (typically darker colors with values
less than 3 and chroma of 2 or less) with mottles or other indicators of
saturation directly below; soils with organic streaking directly below the
A-horizon; or soils with a matrix chroma of 3 in the top 12 inches of soil
measured from the bottom of the O-horizon, with distinct or prominent
mottling.
Isolated Wetlands are freshwater wetlands and may include wet meadows,
marshes, swamps, bogs and vernal pools which do not border on any
creek, river, stream, pond or lake. Isolated wetlands are areas where the
soils are saturated and/or inundated such that they support a
preponderance of wetland indicator plants, hydric soils or other indicators
of hydrology.


1.04(2)
"Vernal Pool means any confined depression which, in most years, holds
water for a period of time during the year, is free of adult fish populations
and provides wildlife habitat for vernal pool indicator species. All vernal
pools, whether certified by the Massachusetts Natural Heritage and
Endangered Species Program or not, are protected under these Regulations
as freshwater wetlands."

Vernal Pool Indicator Species include but are not limited to Blue-spotted
salamander (Ambystoma laterale), Jefferson salamander (Ambystoma
jeffersonianum), Marbled Salamander (Ambystoma opacum), Four-toed
salamander (Hemidactylium scutatum), Wood Frog (Rana sylvatica),
Eastern Spadefoot toad (Scaphiopus holbrooki), Spotted turtle (Clemmys
guttata), Wood turtle (Clemmys insculpta), Blanding’s turtle (Emydoidea
blandingi), Fairy shrimp (Eubranchipus spp.), and Fingernail clams
(Psidiidae spp.).

Note pretty sure there is on record that was filled with the town on spotted salamanders being found in that location.


2.03 Freshwater Wetland:
(1) Preamble:
Freshwater Wetlands are likely to be significant to the public interests
and environmental values of public and private water supply, groundwater
supply and quality, flood control, storm damage prevention, erosion and
sedimentation control, prevention of pollution, to the protection of fisheries,
wildlife habitat and rare species habitat.
The plants and soils of freshwater wetlands remove and detain
nutrients and toxic substances that occur in stormwater run-off and flood
waters. Some nutrients and toxic substances are detained for years in plant
root systems and in the soil. Others are detained by plants during the growing
season and released as the plants decay in the fall and winter. This latter
2.03 Freshwater Wetland (cont.):
phenomenon delays the impacts of nutrients and toxins until the cold weather
period, when such impacts are less likely to impact water quality.
Freshwater wetlands are areas where groundwater discharges to the
lands surface and where, under some circumstances, surface water discharges
to the ground water. While hydrology is the driving force which creates
wetlands, it is transient and temporal in nature. The presence of water at or
near the ground surface during a portion of the year supports, and in fact
promotes, the growth of wetland indicator plants. Prolonged or frequent
saturation or inundation also produces hydric soils, and creates anaerobic
conditions that favor the growth of wetland indicator plants. Hydric soils are
direct indicators of long-term hydrologic conditions and are present
throughout the year.
Wetland vegetation supports a wide variety of insects, reptiles,
amphibians, small mammals, and birds which may serve as a source of food
for fisheries. Wetland vegetation also provides shade which moderates water
temperatures important to fish and also to species that occupy vernal pools.
Freshwater wetlands provide important wildlife habitat. The hydrologic
regime, plant community composition and structure, soil composition and
structure, topography, and water chemistry of freshwater wetlands provide
important food, shelter, migratory and over-wintering areas, and breeding
areas for many birds, mammals, amphibians and reptiles. The diversity of
freshwater wetlands in terms of the structure and composition of the
vegetation, soils and hydrology provide a variety of habitats for various
species of wildlife which may use these areas seasonally or year round.
Although the vegetational community alone can often be utilized to
establish an accurate wetland boundary, the presence of hydric soils and
hydrology can supplement the vegetative criteria and enhance the technical
accuracy, consistency and credibility of wetland boundary delineations, and
are especially useful for analyzing disturbed sites.
(2) Definition, Critical Characteristics and Boundary.
(a) Freshwater wetlands include, but are not limited to, wet meadows,
marshes, swamps and bogs. Freshwater wetlands are areas where the soils
are saturated and/or inundated such that they support a predominance of
wetland indicator plants or, in the absence of vegetation and in areas
where the vegetational community has been disturbed or altered, are areas
that have characteristics of hydric soils or other indicators of wetland
hydrology including, but not limited to the presence of oxidized
rhizospheres and buttressed or water-stained tree trunks.
(b) Freshwater wetlands include Vernal Pools as defined at WEPR 1.04(2).
2.03 Freshwater Wetland (cont.):
(3) Presumption of Significance. Where a proposed activity involves the
removing, filling, dredging or altering of a freshwater wetland, the
Conservation Commission shall presume that such area is significant to the
interests and environmental values of the Wellfleet Environmental Protection
Bylaw.
(4) General Performance Standards
(a) Removing, filling, dredging or draining of freshwater wetlands,
whether they are bordering or not, is prohibited.





OK so two KEY passages

Vernal Pool means any confined depression which, in most years, holds
water for a period of time during the year, is free of adult fish populations
and provides wildlife habitat for vernal pool indicator species. All vernal
pools, whether certified by the Massachusetts Natural Heritage and
Endangered Species Program or not, are protected under these Regulations
as freshwater wetlands.


On 12/8/2011 3:24 PM, foghorn wrote:
 I realize that there is a difference between a vernal pool and a wet land but i was asking for clarification of the difference between the two. I was asking what the technical difference was between a wetland and a vernal pool/ swamp ie when is something considered a wetland and at what point is it downgraded to a vernal pool. That particular pool had standing water on average 10 months out the year and was a breeding ground for American bullfrogs which have a two year developmental cycle as well as vegetation (since removed) that is typically found boarding a wetland. Additionally the pool had defined sunken edges that were vertical for roughly 3ft. Much of this I can prove especially if there is any recoverable soil samples, which would allow a biologist to determine what species inhabited the area. So my question remain what is the difference between a small inland wetland area and a vernal pool in technical terms. I may have mistakenly call the site a vernal pool when in fact it was a small inland swamp area with a standing pool of water roughly 4-5 feet wide by 10 feet long with the remainder of the system being a vernal system that would include a pool that floods on the south side of the road. Also I would like to note that i dive that road almost everyday and the road flooded yesterday when it rained and now there is standing water leval with the road at in the form disturbed site of the pool.

According to the town's definition of an isolated wetland is,
"Isolated Wetlands are freshwater wetlands and may include wet meadows, marshes, swamps, bogs and vernal pools which do not border on any creek, river, stream, pond or lake. Isolated wetlands are areas where the soils are saturated and/or inundated such that they support a preponderance of wetland indicator plants, hydric soils or other indicators of hydrology." 1.04 (2) WELLFLEET ENVIRONMENTAL PROTECTION REGULATIONS 2010

So again I must ask why this would not be considered a wetland area. And i could probaly still pull a large enough soil sample to prove hydro-static conditions existed as long as i could get someone to test them (depeding of the depth of the disturbance)
Sincerely,
Foghorn

Conservation Agent wrote:
Hi Foghorn,
The short answer is no not really. Vegetation plays a major part in delineation as well as obvious standing water, species, and soils. I can give you the paperwork as well.*(to get state certification of a vernal pool) Please let me know.

From: Foghorn
Sent: Thursday, December 08, 2011 1:30 PM
Subject: RE: Fwd: Destruction of Vernal swamp in Wellfleet
Dear Conservation Agent,
That is the technical difference between an inland wetland area and a vernal swamp?
Thank you
Foghorn

On Dec 7, 2011 1:36 PM, Conservation Agent wrote:
Hi Foghorn,
I just came back from Cove Road to view the violation. The problem here is that we have no documentation of this being a vernal pool. This area has been identified as upland on several plans of record. There is high groundwater in some locations near cove road, there is also drainage problems which contribute to water pooling in this area. The work was conducted by the DPW to make the roadway safe for passage.


From: Foghorn
Sent: Wednesday, December 07, 2011 12:47 PM
To: Conservation Agent
Subject: RE: Fwd: Destruction of Vernal swamp in Wellfleet

Thank you [conservation agent] I don't have any pictures of what it looked like prior to the removal but I know that [an effected party] should have some at least dating back to the 90s as... her [child] did a show and tell on the pool when we were in elementy school together. Also a portion of the pool might have been included on the public rihjt of way as it directly boardered cove rd im not sure how right that right of way is though. If it was partly on public property than its an even greater violation and as far as I know there was no notice of intent either especially since there were a number of amphibian species that bred there which makes the dammage they did at this time of year especially troubling.

On Dec 7, 2011 7:46 AM, "Conservation Agent" wrote
We will be making a site visit here today.


From: Foghorn
Sent: Tuesday, December 06, 2011 4:33 PM
To: Conservation Agents
Subject: Fwd: Fwd: Destruction of Vernal swamp in Wellfleet
 I'm forwarding an exact copy of an email that I just sent to the environmental hot-line I also called to report it as well.
 -------- Original Message --------
Subject: Destruction of Vernal swamp in Wellfleet
Date: Tue, 06 Dec 2011 16:24:54 -0500
From: Foghorn
To: ESF.Hotline@state.ma.us

 Hello I'm reporting a blatant total destruction of a now former vernal  pool that occurred either today 12/6/11 or yesterday 12/5/11 at 200 Cove Rd in Wellfleet Ma 02667 in direct violation of wetlands protection. I've attached some quick pictures of the removed area. The area was a breed ground for frogs and other amphibians no notice of intent was ever issued as far as i can tell and would have been unlikely to granted. The area removed is approximately 7' wide by 30' long (rough estimate) comprising the entirety of the vernal system that existed there. The area removed has been partly disguised after it was removed by spreading pine needles from the surrounding area over the disturbed soil. Please  contact me if you need any other details or questions that i may provide/ answer

Sincerely
Foghorn