Minutes of May 17, 2001

[Approved 6/7/01]

Present: Robert Boisselle, Bill Dailey, Paul Locke, Nancy Naslas, Peter Mortimer, David Valade (partial attendance)

Voted: to approve the minutes of April 19, 2001 and May 3, 2001.

Correspondence

Mt. Hood

A letter was read from Joe Lynch, Acting City Engineer, dated 5-17-01, regarding Mount Hood, Enforcement Order, 5th Status Report

Bob: You question that you were supposed to receive another packet with this? I will talk to Mr. Lynch to see what the status of those reports is and at the next meeting we should have an answer one way or the other. Mr. Lynch asked me a couple of days ago if he was needed this evening. I said if he is submitting a report, I wasn't aware of any other type of presentation.

Nancy: I thought Mr. Lynch was going to come in and present the change they were making to us. Now they are proposing a swale on the 12th fairway. I think that would be a significant change under there.

Paul: On the last page he says "EPSILON and I will make a presentation to the Conservation Commission upon completion of the final EPSILON report.

Nancy: I just didn't want to miss that.

Bob: I read in the paper that they have a 30-day extension to continue bringing in fill.

Paul: When we created Isolated Land Subject to Flooding, we do have egg masses, which could now be called ILSF #3.

Nancy: It is in between the two ILSF, it is water that has backed up since the haul road was constructed.

Paul: The water used to drain from ILSF 2 down to ILSF 1. That drainage has been blocked, so what you find is egg masses. I didn't go wading into the stream itself.

Paul: In addition to that there are a couple of things that could now be referred to as Pond #4, which used to be Wetland #2. I have pictures of the barriers that seem to be working fairly well, are supposed to dam up the water and creating ponds where these wetlands are, but also in keeping the sediment out. There is a picture here where Bruce and I were standing on the edge of this new pond and it is interesting to note maybe 1/3 of the way into the pond the location of the wetland flag, delineating the back of it.

David: It expanded well beyond the area they delineated.

Paul: But it was at the expense of Wetland #1, which is fairly dry, that was supposed to connect the two wetlands and provide the connection that had previously existed down the middle of the 12th fairway, or has yet to be connected. The water that is flowing out of the corner of Wetland #2 is now going into the fairway and has been collecting there and being pumped out.

Bob: Working its way along the side of the hillside?

Paul: It comes out the edge of this wall down here, and then goes out to the middle of the fairway because there are no contours here.

Bob: Is this the channel that Mr. Lynch is talking about of creating along the side of this hillside here to move to Pond 1?

Paul: Yes, exactly. I am not sure about the grades, but once they bring the fill to the path that the water is now taking down the middle of the fairway where it has been ponding, either side of the drainage pipe. The top of the pathway ends, it will spill right down the edge of that hill and into Wetland 1. The effect will be it still will be dammed and the outlet will be on a lighter level, so it could be creating. They weren't pumping at the time we were there.

Lebanon Street Playground

"Dated: 5-5-01
City of Melrose, Attn: Conservation Commission
Subject: Status of ConsComm lots near Lebanon Street Playground

Dear Mr. Chairman,

I/we are the owners(s) of five(5) 1909 Land court Subdivision (Plan 113L) lots (18-22), which comprise a 13,717 Sq. Ft. area building lot with 110 Feet of frontage along said Land Court Plan 'Paper' street known as Dana Street. This 'Paper' street is shown on said plan to run between Willard Street & Naples Road, to the East of an area now known as the Lebanon Street playground.

There is one other privately owned lot adjacent to ours which is comprised of two(2) lots (23 & 24) and which is too small to be a building lot. I write the above information as a historical introduction to the following questions.

I/we would great appreciate your written response to these questions at your earliest convenience. Thank you.

Very truly yours, Peter B. Hersey, Lotte S. Hersey, 160 Forest Street, Melrose"

Bob: We will have to identify those lots to begin with. I think these are the same lots that came to us early or late fall last year concerning the building above the Lebanon Street. We will check that with someone in Records.

Invoices

Voted: to pay our Secretary for services rendered in April for $288.00 and also miscellaneous postal service receipts for $4.

Stephen Amero - 8 Hemenway Ave.

Correspondence from Stephen Amero dated 5/8/01 is as follows:

"Dear Conservation Commission:

This letter should give you a general outline of the order of construction. On or about 5/14/01 the contractor for the road should begin. This phase should take about two to three weeks. When the rough street and curbs are done the building inspector is suppose to issue us a permit to begin construction on the house. At that point the contractor building the house will begin the excavation on the site for the foundation. Once we have a certified plot plan they will begin construction of the house. Once the house is complete we will be putting the finish coat on the street and construct the driveway. Then lastly we will be finishing the landscaping.

The contractors names and numbers are:

Street Contractor: Marchese J & Sons, 69 Norman St., Everett MA - 617-389-6625 House Contractor: Cuppernell Bros., 44 Castle View Dr., Gloucester, MA - 978-283-6172.

If you need any information please feel free to call at any time 781-956-1821. Sincerely, Stephen Amero."

Pond Maintenance

Bob: We have an agreement for the upcoming season for the maintenance of Ell Pond, Towners Pond, Swains Pond, water quality testing and monitoring. This proposal has been cut down from the previous proposal because they were looking to do more mechanical raking in some of the ponds, and the total estimated for this project is $13,575. This is put into the 2002 budget and I am waiting to hear if this is going to be approved in the upcoming budget hearings this coming week. Do I have a recommendation to move ahead with this and continue on?

Voted: to accept the above estimate.

36 Slayton Road Project - Continuation of a hearing -

James G. Confalone property, a proposed construction of 4 single family homes with driveways and associated gradings.

Edward Stearns, Hayes Engineering, Wakefield: I was here at the previous hearing when we started this. With me is Ted Regnate, he is the attorney representing Mr. Confalone. Here are some copies of a letter with the soils, holes, also a copy of a letter from Curt Young of Wetlands Preservation and pictures you had as to the underlined soil conditions in the area. What we did was we dug some holes with a backhoe in the areas with the proposed houses. I can briefly summarize them. We dug one hole in the area of this corner of this house here, one at each end of this house and one here and one here I believe on this house, and the two front corners of this house. What we found there was a lot of fill that had been put in there over the years, but the loam and fill was sand and gravel which was the original material. In all cases, I believe, the level of the sandy gravel was above the level of the wetland which would indicate that this was always upland and that the underlying materials are not, in fact, peat. They are good material with the houses, etc., but there is a lot of crap on top as a lot of the neighbors have reported, bricks, hunks of concrete, etc. The one out back, there wasn't any fill, it was all pretty much worthy material as you might suspect. We obtained a letter from Curt Young of Wetlands Preservation, stating that he had done some hand borings out in the area of the road, not in the roadway itself but adjacent to the road and the wetlands, and determined that, in fact, it was an excess of 13 ft. of peat. That was as deep as he could go. Peter Obren, who was at the site visit and basically designed this plan, couldn't be here tonight, but he remembers taking punchings in this general area, and I think he recalled having 18 ft., so that would kind of correlate 13-18 ft. That was one of the issues that we had asked. Another thing we talked about was the flood plain elevation and someone from the commission, I believe, was kind enough to Email us some photographs that were taken right after the heavy rain we had in March. What she did was she stood right in this area and took a series of photos around like that and what I did was try to put them together and tape them. This is looking up the driveway. That would be looking over towards this direction. These hunks of debris, concrete blocks and stuff, I think are to this existing house right here, so it has just taken a sweep around there. We went out taking this photograph and took several actual survey elevations at points we could identify to establish what the water level was. The elevations came out to be between 100.1 and 100.15. They are actually plotted on this plan that I just gave you. One was here right in the center of the driveway where there is a little high point you could see sticking up. One was right next to two sticks that over-flapped each other. You can depict those right out in the photograph and we took a shot right there, and then right next to a cluster of trees where the water level was right up to the base of the tree. I was not present at the site meeting, but I presume that was thought to be close to a record flood after we had that big rain on March 22, and that is what we decided at the last meeting that we would go out at the site visit and see if we could correlate some information and try to use history, rather than try to analyze this downstream water draining system to predict what the 100 year flood would be, and if that is the case it pretty much runs along the edge of the wetlands. This is a 2 ft. contour map, so they tried to pick out the exact difference between 100 and 102 which might be a little difficult, but we do have actually surveyed elevations all around the wetlands flags, and those are what we relied on to pin that down. Then we took a series of shots, again surveyed elevations down the middle of the driveway to determine what the current elevation of that driveway is, and the lowest elevation we have was 99.4, something which would indicate that the water was about 8 inches deep at the deepest point going down the driveway. Based on that information, we are proposing for the driveway not to fill it and you will notice we changed the notation on the BBW, rather than BBW filled, we are saying BBW to be removed, in other words we are just going to change the character of it and not actually fill it because we feel that an occasional 100 year flood of 8 inches deep should not hamper emergency vehicles from getting up there. In that way we get away from the flood storage replication, which as you pointed out at the hearing, BBW replication area was the higher elevation in the flood plain, and we have had a hard time finding a spot where we could replica flood plain without disturbing a fairly nice area. What we are proposing from the driveway now is to just scrape it down, take out 2 to 3 inches, just the turf, and lay down geo textile fabric and pave right over it, and that has been an approved method of constructing roadways through wetlands type areas for construction purposes. We elected to pave it rather than any other kind of surface, even though it is impervious and it has its downsides from an environmental standpoint. If we did a gravel or crushed stone or a stone dust roadway, every time you plowed it in the winter you would disturb it and push it a little more into the wetlands and have to bring some more in and touch it up, and that is a maintenance headache and it creates an erosion problem. Pavement at least is permanent, easy to maintain, and something that is adjacent to the wetland. I think maintenance is more important that rather or not it is impervious, and the fact that so much of it is underwater during the 100-year flood, the fact that it is impervious, it's underwater, it doesn't make any difference because it is not absorbing anything anyway. Another thing that we had talked about was putting some kind of a fence along the side of the driveway to delineate it, keep people from driving into the wetlands, and we have noted on the proposed cross section of the driveway that it is shown in the corner right above the title just running a rail fence down either side, nothing that would stop a car from driving through it, but it would cause you to think about it before you drove through it anyway. We had talked about the downstream drain system. What had been proposed down there, the copy of the topo map shows a better overall picture of the area put together when we were working on the fourth page. I also have a design plan from Weston & Sampson of the drainage improvement that they were supposed to make in that area. This is our site here and this is Plymouth Circle, and what they were doing, they were replacing a drain that comes out of our site, what was a 24 and they replaced it with a 36, and they constructed a swale down around here with a retention area in here just to be excavated out, is to take care of the overflow storm water and some kind of a weir structure right here that consists of two 6 inch pipes at a lower elevation, and then an overflow at 98.

Nancy: Is this proposed work you are talking about?

Edward Stearns: Yes, it was proposed in 1995. We believe it is all completed now.

David: Bob, is that part of the work that crossed the first fairway?

Bob: Yes

Edward Stearns: They were supposed to replace a 24 inch pipe in Plymouth Circle from here to here. It was up higher with a 36 in. pipe that was laid flat so they could pick this water up and take it up into the drainage system of Plymouth Circle with this retention area and the weir control structure supposedly to slow it down. The top of the weir is 97, 95, so I said 88, 89, so that is pretty close, 97, 95, but the pipes are at elevation 96. So all the drainage system is about 96, it is very flat. All elevation of the field is about 100, so if this is working properly, it should take the water out. It does from down here, I don't know, maybe the whole thing backs up. That is what the city did. I assume the work was done. One of my questions to you is do we accept that elevation as the flood plain? Was it this March as high as anybody remembers it, or close to it, is that a reasonable representation or not?

Bob: Which number are we talking about?

Edward Stearns: 100.1, in other words the water level we had there after the heavy rains in March and which I think snow and ice on the ground hampered the infiltrations of the way the run off, but I don't live in the neighborhood. Was that representative of some of the worse floods we have had or not?

Bob: We heard some residents in the area say that the water has come over, that the street was actually flooded at points.

Edward Stearns: Slayton Road?

Paul: Not Slayton Rd., the one down on the southern area.

Bob: Didn't one of the residents indicate that the water came up to the roadway, Slayton Road?

Paul: Where they had water was maybe down on Laurel St.

David: Did you use the FEMA maps, or is it unclear on those?

Mr. Stearns: The FEMA map is completely unclear. The FEMA goes right through the middle of the property.

Nancy: I went to Granite & Burnett the same day I took those pictures, it was a little bit less. The water wasn't flowing over the street at Granite & Burnett that day, but in the October storm years ago.

Bob: It wasn't exceeding the flood plain in comparison to what it was in the past. Granite & Burnett Street was in the street and heading towards the opposite bank. So this I would not say would be a complete 100-year storm.

Nancy: The way the elevation is now, it is just going out to the edge of the entire fill anyway.

Mr. Stearns: Typical elevations along the wetland here are between 101, 100.5, 101, here's a low one, 99.3, but 100.5, 100.1, other than when it gets up in here, it gets considerably higher.

Bob: So we are saying about 100, 101 has the max.

Paul: If it does take any more water, it is going to flood into the flatter area and the water will be flowing off.

Peter: Sometimes the water flows across Slayton Rd. where in this plan it says Waverly Ave. on the bottom of the topo, but the water is flowing into the wetland as opposed to out of the wetland.

Bob: So it is going in.

Peter: Coming from that same water course that comes across Granite & Burnett, goes behind Rotondi's farm, behind Bow St., between Bow & Slayton, and then at that point it takes a left and comes across, where on this lower picture it says Waverly Ave., why does it say Waverly Ave. here? Waverly Ave. is some ¼ of a mile away.

Mr. Stearns: It could be that is an old portion of the paper street that has been abandoned. That is part of the land court plan right there, and sometimes they have some strange things on there that are of record, but don't really exist on the ground.

Peter: There is a real Waverly Ave. that is up at the five-way intersection near Laurel St., but that is probably some ¼ mile away. One more question, behind this last stretch of land, you have 3 lots delineated by the owners, and then there is a boundary, how far does this last lot go back? Does that go all the way back to the golf course, where it says SRB and SRA, the zoning demarcation changes?

Mr. Stearns: That would be my bet, but if you want I can check the land plan, it should be clearer.

David: I believe the lot we dealt with was where he was putting a road at Granite & Burnett. That does go there.

Peter: And this is the golf course.

Bob: That is correct.

Dave: I have a question and concern about the road as you proposed it. You said your observation was that the water was about 100.15 ft.? My concern is at 100.15 you have a couple of spot elevations that indicate that as you said there is going to be about 8 inches of water on the roadway. My guess is after the first 100 yr. storm event, the new owner of the home back there is going to come in and say I need to rebuild this road, I can't get my car in and out and we as a conservation commission are going to have to deal with the issue again.

Bob: I am not sure what the emergency services would say about that either, especially during winter or even cold snaps, we have ice filling up in that area. If you are proposing that, I would have to request that the emergency service people come in to review that, to get their comments on it, because as David is saying, these people are going to come back 2 or 3 years down the line, emergency vehicles can't get in, I can't get to my car, we can't get to our house, I need to upgrade at that point. I don't think that is an option we are looking at.

Dave: As an additional issue along the same lines, if we have a winter similar to the one we had this year, there would be a considerable amount of plowing probably happening on it that is going to dam up and could have ice. I had ice in my yard that was 2 or 3 inches deep under the snow for most of the winter. It is possible that you could build another barrier up another 6 or so inches higher than that road that is going to change the nature of the water flow as well, instead of coming across the road as it normally would.

Mr. Stearns: My only answer to that is that there was a house out there for years and years with a dirt driveway going to it and it always seemed acceptable.

Bob: That was before the legal service got involved in "I will sue you". I am not sure if a continuation is necessary at this point. If you want to go back and talk to your client about another proposal and I will talk to the emergency services people about this type of proposal and what their opinion is, and come back at another meeting. Also, I am looking for the cross sections of the pipeline going under the roadway too that we will be looking forward to seeing.

Mr. Stearns: I added a note to the plans that reflect that. I didn't think a cross section was actually necessary. That existing pipe is in bad shape we noticed in the site visit and what we are proposing is to just take it out and replace it with a high-density polyethylene corrugated black plastic.

Bob: I still want to see a cross section of what you are going to be doing under that roadway, what it is going to look like and the flaring that you are going to have to accept the water coming in and the water going out.

Mr. Stearns: It would just be a steel piece of pipe with lead end sections on it.

Bob: Do you wish to have an extension at this point or are there any other questions?

Nancy: I have a question. When we were out on our site visit with Mr. Young, the Wetland Scientist, we noticed an oily sheen on some of the water on the down gradient side of the road and I wondered if he had mentioned that to you and if anything had been done to follow up on that.

Mr. Stearns: No

Nancy: I don't think you were with us when we were talking with Mr. Young.

Bob: Was this a blue sheen?

Nancy: It was just sheen on the water. When I questioned Mr. Young on it he went to explain how some natural algae would give you sheen when it releases natural oil.

Nancy: However, he was clarifying when you break a sheen like that and it is an algae type, it should break up and not come back together, and if it was a hydrocarbon or potentially hydrocarbon, it would come back together, and he poked it a bunch of times with a stick and it came back together every time.

Paul: His conclusion was "ah, it looks like hydrocarbon".

Nancy: So I was a little surprised that wasn't brought up again.

Bob: During your digging did you find any oil or tar deposits?

Mr. Stearns: There was some asphalt.

Paul: He was speculating that when the fire engines or cars had gotten stuck in there that they went up to oil pans.

Nancy: Something I wasn't sure as a commissioner how to follow up on.

Bob: Let's get the roadway settled first at this point and you may want to look into talking to your biologist about that sheen. Now do you wish to request an extension of this project?

Mr. Stearns: I think we want to know what emergency services say. If we are going to have to fill the roadway we are going to have to come with some flood recommendations.

Bob: Then at the next meeting we should have your request and extension.

Nancy: Could I make one more comment while you are here? Just looking at the DPW replacement area up in the top corner, is that an area where there are currently trees?

Mr. Stearns: Yes.

Nancy: It doesn't make a lot of sense to me to take out trees to put in a wetland area. Is there a better portion of the site that could be improved rather than taking out trees to meet that legislative requirement?

Mr. Stearns: The border of the wetland seems to be fringed with trees as far as I can tell.

Nancy: I haven't spent enough time walking the site.

Bob: But that area was to be eliminated if you did your sunken roadway. That won't exist.

Mr. Stearns: We would have to do it at a lower elevation so we could also double this flood plain storage, that is too high. The wetlands up there are much higher so it would have to be some place else and the only place I could suggest is maybe along here.

Bob: So you would be lowering that area similar to what they did at Granite & Burnett?

Mr. Stearns: We have to compensate for the flood storage that we remove for raising the driveway which looks like that is what we are probably going to do. Those lots haven't been sold yet. They are all part of the proposal. This seems to be the one that is getting all the attention, but these 3 lots are proposed also.

Bob: I will check with the emergency services concerning this particular type of roadway and I will get back to you.

Voted: to have a one minute recess.

David Valade left the meeting at this time.

Pembroke Real Estate/Spot Pond Canal

Bob: This is a public meeting of the Conservation Commission in accordance with the provisions of Chapter 39, Section 23B. The Melrose Conservation Commission will hold a public meeting Thursday, May 17, 2001 at 7:45 p.m. in the Mayor's Conference Room, 2nd Floor, City Hall. The purpose of the hearing is to discuss the Request for Determination of Applicability submitted by the Pembroke Real Estate for determining site constraints for a proposed project (13.2 acres of parcel located in Melrose and Malden). The site is bounded on the north by Pine Banks Place in Melrose, Main St., Pine Banks Apartment Complex, Lower Spot Pond Canal. Any interested persons wishing to be heard in this discussion should appear at the time and place designated. Melrose Conservation Commission, appeared in Melrose Free Press 5/10/01.

Bob: Who is the opening candidate?

Matt Keifer: Mr. Chairman and members: I am going to start off. I am an attorney at Goulston & Storrs in Boston, representing Pembroke Real Estate, and I want to introduce a couple of others who are also here tonight.

Bob Bell - Cook & Bell, also counsel to Pembroke Real Estate; Joe Freeman from Earth Tech; Bill Rainey from Pembroke Real Estate, the project director; and Erin Haight, Wetlands Scientist from Earth Tech. I just want to take a moment to recap what we are doing here this evening and turn it over to Joe to talk to the board. This is a Request for Determination of Applicability on this property, a 13 acre parcel, which as you mentioned is bordered by the lower Spot Pond Canal, and really what we are here about is about this canal. It is sort of a funny hybrid, it is a manmade drainage canal that represents the re-routing of a former river, and the question here tonight is how that is treated under the Wetland Protection Act. We believe that it is really more an elegist to a manmade canal, and that as a result there is no riverfront area adjacent to the canal, and I would like to start by asking Joe to walk you through the history of the sort of evolution of this water body and describe its current conditions.

Joe Freeman, EarthTech: We are the engineering dept. for Barnell Consultants at Pembroke Real Estate. I want to start with the history of what I guess the MDC refers to as the lower Spot Pond drainage canal homemade and what engineers in my office refer to as an open channel box culprit. We spent some time looking up the definitions of channel, canal, culvert. Flooding in this part of Melrose has evidently been a problem, that has been on people's minds in town and has been addressed in reference in far back as 1857 to a town meeting resolution to widen and deepen the ditches from all the way from the highlands down to the Malden town line. Around that time there were dams constructed on what was then a title influenced portion of the Malden River was now really downtown Malden, Malden Center, and it would back up and flood into this portion of Melrose which is where the property is. In 1869 there was a special act of the legislature which authorized the county commissioners and the two towns to widen, straighten, deepen the channels of the streams and brooks running from Ell Pond in Melrose and Spot Pond in Stoneham, and again it was to address this issue of drainage and flooding as the area was continuing to be developed a more impervious area, there were continuing problems with flooding. The work as far as we can determine was apparently done in 1871 and even included the B&M Railroad at the time, apparently upside in the vicinity of Wyoming Street, Wyoming Station. In 1870, the selectmen of Melrose again were authorized to straighten and widen and deepen the brooks in Melrose, including the subject brook. 1902 the state began to get involved. There was a special lack again of the legislature and was authorized to then Metropolitan & Water & Sewerage Board to do a study of Spot Pond Brook and to report the plan for improvements. Now the improvements that were the subject of our study, and again this is 1902, weren't done until the 1960's, so we will just sort of walk you through the historic mapping, the historical area photographs. We will pass these around so everyone can see it. These are included in the RDA. This is the actual section of the historical topographic maps dated 1903 which shows the project site. A couple of things I want to point out to you about that map. Notice the location of the brook to the west of the railroad tracks. We are assuming that the railroad tracks in 1903 are in the same location that they are today, 2001. They don't move railroad tracks very often. The second map is the current USGS topographic map which clearly shows the drainage canal as a perennial water feature. There is no name associated with that feature. It clearly shows, if you refer back to the 1903 map, that the brooks have been channelized and relocated, including a portion of the property here in Melrose, particularly in northern two-thirds of the property. We located a series of aerial photographs of the area, which again show a considerable alteration that has happened to the brooks and the artificial nature of the improvements: Ell Pond, Melrose Center, the Mill Complex (the old Converse Rubber Factory opposite the B& M Railroad tracks. As you can see this is the property essentially here, Banks Place roughly here, what is now Pine Banks Apartments along this way of Main Street. You can still see a lot of the natural channel of Ell Pond Brook. Spot Pond Brook is a little bit harder to see coming from this direction. Wyoming Street again, it looks like the stream, as we said, relocated, is still an open channel here. We have a section of an 1898 map which we relocated at city hall, which shows that as it hit the Mill Complex, even as far back as 1898, the brook was culverted under the buildings, but then exits process under the tracks, which is near as we can determine is pretty much the location of the existing bridge for the former rail citing that is on the property today, and then further south into Malden. In 1955 the site is up here again. The Mill Complex up on the opposite side of the tracks. The building has been constructed not in its current size, but this is the building, and again it is pretty similar conditions to what you see in 1938. The channel where the obvious culvert under the mill complex, and again the stream crossing where the former railroad bridge, is now and continues south. We move to 1969 and what we see here is front drainage channel or canal in its current configuration. The building has been enlarged to essentially its current size. Pine Banks Apartments are here, Banks Place crossing over the canal. What is important here, what I really want to point out that this canal is really an artificial contrivance. Look at the location of the stream channels in the historic photographs/maps compared to what is there today. With the exception of roughly again the railroad siding bridge south into Malden, into where that current drop inlet is before it goes under Malden Center, this is probably about the only portion where it is anywhere approximate the natural forest former brooks. It is clear that from just north of Banks Place down along the property, this is an excavated upland area. It is not the former force of the brook. You can still see a little bit of the former brook just north of the Mill Complex, so that is really the history. It has been there, as near as we confirm it, the mid to late 60's. Asphalt plans are dated 1970, but again that is April of 1969 which is on the site or in the canal today. It is concrete structure. It has been aggravations over accumulations of sediment. Sediment has accumulated on top of the concrete and some vegetation has taken place. Reseed are clear indications both on the culvert crossing the railroad crossing over into the property and along the banks of the canal of staining and other indications that have been taken by the ordinary high water mark at the top of the concrete, not above because as you know it is 2 to 1 slope. The concrete does not go all the way to the top of the slope, but we would put some around that slope. We really can't consider this drainage canal in our view as a river. When you look at what is open because it simply was good enough to do the job, there was no need to cap it or make it a closed culvert.

Paul: Would you consider this a stream?

Mr. Stearns: The relocation of streams, I mean many, many streams, obviously it really carries the drainage from a large portion of Melrose, probably close to 2/3 of the town, large portion of Stoneham. It's a perennial flow.

Paul: Does it drain a resource area?

Mr. Keifer: I think from a regulatory point of view, this clearly began life as a river or a stream, that how it began its life isn't so significant at this point, that it is really now a man made drainage channel. It is under the natural flowing river that was once nearby followed. It has actually been re-routed, basically culverted. Of course the Wetland Protection Act was amended to add rivers, and add a series of protections for rivers that even go beyond the protections available for other wetland resource areas, which have an explicit exception for panels. They use the example of the Cape Cod Canal.

Bob: Man made canals.

Mr. Keifer: Exactly right. We believe that this has made it worthy of protection under the act.

Paul: I am starting out with the stream because the wetlands regulations and the acts are fairly clear. Even man made ditches and culverts that drain resource areas are considered streams under the Wetland Protection Act, so by that definition it is certainly clear it probably would be qualified as a stream under the act. I am getting to one point at a time. Under the re-act, I think we can or should agree that this would be considered a stream. We are not into the Wetlands Protection Act yet. In the Wetlands Protection Act there is a list of whether the channel as it now stands is now to admit to the definition of a stream.

Mr. Keifer: I understand what you are saying. Even if we tried to cover both questions, we did it in reverse order than what you are doing it, and then the Request for the Determination goes into whether it might (he was interrupted here).

Erin Haight - Earth Tech: I just wanted to describe that it is a flowing body of water. It is a waterway. It does meet that definition and in the Wetlands Protection Act they try to define a stream to determine whether or not you have made an all mark stream with the Wetland Protection Act. Why they give that stream as a definition is to determine whether or not a little flowing water way qualifies as a stream, or is just dripping drainage, it isn't technically a stream. So they give that definition to make sure that it qualifies as a stream. Yes, it does. If you follow further under the riverfront area, within the Wetlands Protection Act under 1058, it also lists under riverfront that a man made canal specifically does not have a riverfront area because it is a flowing body of water and a stream flows water, yes, but it is technically a manmade structure.

Paul: I was getting there. I appreciate your helping me along, but rather than coming at it from the direction that is presented in the RDA, I think it is helpful to first establish that under the act I think it is a stream. Before we leave the stream, I think we should look at the functions of wetlands under the act that we are charged with protecting, the results there are not certain, and I think we have a stream, and this is where I think perhaps the legal pieces diverge from what some people may think is common sense. You have a stream and that stream may or may not be a river in the legal sense. I think the language in the regulations and statues are a lot less clear on this and you can breed the definition for river as being a natural flowing body of water and you can read into that by naturally flowing, meaning that it is in its natural intent. One could look at that and read into it that natural flowing means that it's pumping without a direction without locks. Its flow is not blocked and not assisted in any way, and I am not saying one way or another, but I think it is ambiguous the way the language in the regulations and statues are written for that. Also, the definition of canal. It is called a canal, at least in the archives, but just because it is called a canal or Cape Cod Canal or a canal for mills like in Lawrence & Lowell, the difference between those canals which are specifically mentioned in the act and this, which is named canal, is that those canals are constructed and connect water bodies that have not been connected previously. Where this is more analogous I think to the layman's use of the terms, for in some areas has been displaced, moved 1500 ft., the following in general are the flow and carrying natural flow, so whether that qualifies as a canal under the assumption mentioned in the regulations and statues, the characteristic of that is connecting two auto bodies that had not been connected before, whereas this connects two auto bodies that were previously connected.

Mr. Keifer: Subject to protection under the act, what distinguishes it that it is an entirely man-made, and that also is naturally following the Cape Cod Canal and that doesn't merit protection. We acknowledge that there is no specific language in the act or the regulations that absolutely exempt MDC drainage canals. That would be wonderful if it said Cape Cod Canal or drainage canals under the jurisdiction of the MDC, that would kind of settle the question. We think it is more like the example in the regulations that there is no jurisdiction attached to then it is like natural flowing water. One thing pointed out is long stretches of this are completely covered, and as a result there is kind of a dead water body. It doesn't get much oxygen. It is not hospitable to wild life. If it is a stream, it is a dead stream and it was one that was again created by the MDC pursuant to a taking for drainage purposes as a public works project basically. It is a piece of civil engineering as opposed to a natural water body in our view. When it goes downstream at the south end. It is pumped up because it is a deep tunnel underneath Malden Center.

Peter: It comes out at Canal Street and ends up in the Mystic River down by Wellington Center, right?

Bob: I do have a question regarding the deadness of the channel, canal, or ditch as you can see in the sedimentation banks that have been accumulating. There is nesting in that area going on, so the water is attracting the wild life to the area and again the term canal, basically artificial water waves, is used for shipping, irrigation or for the possibility of hydroelectric power, and that is why they referred them to the Holyoke & Boles site because the canals were used for hydropower for the mills along canals, and the Cape Cod Canals were basically for shipping, so they were in that aspect of "the definition of the canal".

Bob: This is a meeting. It is not a public hearing and right now the commission is not required to receive any information from the applicant or from the public, but at this time we are more liberal in that aspect in the point we will take information for any questions from the public at this time, if anyone wishes to speak. We will only be talking about the waterway. We will not be talking about anything else on this site concerning what is going to be there, transportation, studies or anything else involved here. We are specifically talking about the "canal, channel or ditch". Those terms have been used quite liberally by all three individuals here. After the commission has asked all their questions, we will go to the public.

Paul: Are you aware of any schedule by which this canal is cleaned, dredged?

Mr. Keifer: Joe, maybe you know more specifically, but I suspect that the MDC, for budget reasons, probably haven't cleaned it out as often as they might like to. Is it scheduled to be done?

Bob: In the past the scheduling is done every five years, but that schedule sort of went down the drain during previous state administrations, and it hasn't been done for just about 12 years now.

Paul: When it is done, the MDC comes to the commission.

Bob: Years ago I remember distinctly, the crew came in and cut the trees, stripped everything off the hillside on the top, everything, and there was almost like a small dredger in the ditch itself, dredging everything out, but it was a clear cut.

Paul: It does provided habitat occasionally when it has been cleaned.

Bob: To restate from the previous discussion of a dead stream compared to you go down there now, there is quite a bit of life down there in the "ditch". We have a pond up here that was silted very heavily, and I have seen tadpoles the size of 1" growing, living in this particular silt nest that we have in one of our situations.

Is there anyone from the public that needs to speak about this particular project or any questions?

Chris Sullivan, 49 E. Wyoming Ave/C.A.R.D.: I wanted the commission to take into consideration, if they could, a report study that was presented to the City of Melrose in the summer of 2000 by the Commonwealth of MA, Executive Office of Environmental Affairs, and this study is part of a study, it was a developmental study, but it also touched upon in part developed lands and partial constraints, and I apologize I don't have blown up maps, I know they are available if you wanted to go to some members I know of the master plan committee, also you can go straight to the Commonwealth of MA, you could get a better copy of this. In it, and I will show you they have different areas, and they refer to them as Rio districts 1, 2 & 3, and within those 3 areas I believe, is the body of water that we are talking about, and if you can take a closer look at it, I can pass it around and you might be able to see, so that is the area they are talking about, Rio districts 1, 2 & 3, and in this report there was findings made by the Commonwealth of MA when they were conducting this study and was presented to the City of Melrose, and in one of the portions of the report they have a section where it states the only developmental area that is subject to the Rivers Protection Act are Rio 1, 2 & 3. I think if you look at that and see 1, 2 & 3 is the area we are talking about, and I think that in this discussion looking at other information and studies that are put on by different consultants hired by the applicant, this is a study/report that was done for whatever week you want to give it, that talked about the application of the Rivers Protection Act to this area, and I think if you could follow up and get a complete copy of this, and they have it in different colored forms and you can see the different types of color shades, it might be a little easier. Another section in it, Footnote 9 of one of the maps, it says "since wetlands are an absolute constraint, 76,433 sq. ft. was removed from the total land area, and they are referring to Rio district 1 and I put little stars on these sections for you to help you with that, and I can pass this along. This is part of the maps of the report. The final point, and I will make it brief, is that in these findings that they make on behalf of the Commonwealth of MA, they refer to Rio area 1, and in it they have area outside the flood zone and then they have area inside the flood zone and they refer to about 20,425 sq. ft. and I noticed in the applicant's report that they submitted to you, one of the issues they talked about was whether or not this body of water, and correct me if I am wrong, was close to an area that flooded regularly. I think this report in making these findings about not only is the body of water close to area that is flooding, but they actually make a finding that at least part of this area is inside a flood zone, so I don't confess tobe an expert in this area of engineering and law. I think the Commonwealth of MA is and I think these are some points and some findings made in this report that I think if the commission had the time to look at and read it, I certainly would like to and I think members of the public who are concerned about wetlands and concerned about this area would appreciate it. Thank you.

Tom Littlehale, 394 Pleasant St: As we all know as communities grow over the years, we tend to put our bodies of water underground in culverts or streams, and Ell Pond Brook is probably a good example. It comes from Ell Pond all the way down and joins into the Spot Pond Brook which was improved by the MDC, and that has been underground for probably close to 100 years. In the Mass General Laws under Chapter 91 of Waterways there is a Section 11, which is called Improvement & Preservation of Rivers. It says that the state can do any work that is deemed necessary for the improvement and safety of waterways. In 1957 the MDC took that land because they wanted to improve the area for what they saw as Spot Pond reaching a 100 yr. flood stage and the water rushing down into Melrose and just flooding out that low line area there, so that is basically why the canal was built and also the culvert runs through the back of Lincoln School and I have lived in Melrose for 35 years and when he built that I think it was 1962 and 1963. I could actually ride my bicycle through the pipe and through the canal before the water was turned back on it. So it still is a brook, it comes from Ell Pond and comes from Spot Pond, and it just as the city has improved itself, we have tend to put our things underground.

Harry Poole, 76 Derby Road, Melrose - Somehow or other, it seems to me I have heard this song before. It from an old familiar school called progress, or an attempt to bring about something that would be extremely detrimental to the entire city of Melrose, not just that specific area. As I see it, reading from the MA General Law Chapter 131, Section 40, Wetlands Protection Act, River's Act, there is no way on God's earth that Pembroke Real Estate could prove to the conservation commission that developing the site will not have an adverse effect on the environment, including ground water, flood control and storm damage. That is paragraph 5. Paragraph 6, the Pembroke Real Estate cannot prove that there is no practical and substantially equivalent economical turn to their proposal with less adverse effects on the environment. When I say I have heard that song before, I am quite familiar with that particular area, as a matter of fact the front steps of my home at 76 Derby Road happen to be of the boulders and rocks that I carried to put in for my home at 76 Derby Rd., that was when the Commercial Filters Corporation came in here under the guise of progress, again progress in reverse. Then we had the Automatic Radio pick up the tab. They too went under, again progress in reverse, and now we have another organization in there which is owned primarily by the Fidelity organization, again an attempt by private interest to come into our fair City of Melrose, and the City of Melrose in that particular area or the entire City of Melrose, cannot accommodate any more traffic than we already have. I am absolutely certain that the Pembroke Real Estate wouldn't sign any contract or any document with the environmental particulars of the association , who had to pick up the tab for the flooding of that particular area during March 22 when I had no less than 18 inches of water in my cellar, and I have been having it ever since, and I am sure they wouldn't want to come down and pump it out, and just maybe God spared me my life from my recent heart attack only to come here tonight and say "no, absolutely, no, we will not condone any such activity in this city only to line the pockets of the developers". Thank you.

Donna Scribner, 85 Heywood Ave. - You have been talking about this being a canal or deemed a canal or a stream, if this is deemed a canal, what is the proposal for it, to cap it, to build over it, what would happen if it were a canal rather than a stream.

Bob: Right now it is basically defining if this is a manmade canal, and if it is appropriate just to be part of the Riverfront Act, and with the Riverfront Act there are specific guidelines they have to abide by. If it not a part of the Riverfront Act, according to what they are trying to say this is a manmade canal, they don't have to do the guidelines by the Riverfront Act.

Paul: It is a buffer and there could not be a proposal to fill or cover the canal.

Donna: So a building that is going to be built would have to be so many ft. away from it, depending on what it is called?

Peter: Right now this is an RDA, a Request for Determination of Applicability, and that means we are determining what is applicable, the Wetlands Act, the Riverfront Act, which one does apply, or not. That is the question that is being discussed here and then what will be done with that is further on down the road once we determine that information.

Mr. Keifer: Let me clarify that Pembroke Real Estate does not own the canal and does not propose to do anything with the canal. It is owned by the MDC.

Don Fowlett, 59 Derby Rd : My question is regarding the wetlands, how much room are you talking. Do you have to stay back 10 ft.? If it falls under Wetlands Protection or the Rivers Act, how far back?

Bob: Riverfront Act is a defnite 200 ft. between building. The Wetlands Act is 100 ft., but that is only working in the buffer zone, they could actually go right up to the edge of the canal, but usually we request a buffer between a body of water and the actual construction itself. From the stream, channel or ditch, they have to do specific guidelines to protect the wetland area or the river or channel that we are talking about here.

Mr. Fowlett: Just for my understanding, your group is arguing the fact that this is a manmade canal, that it is taking storm drains and Ell Pond high waters, etc. If it didn't rain for 3 months, would water still flow?

Bob: That is correct because it is draining the other resources.

Paul: Coming to the RVA in the river or not, focusing on the fact that the canal does not have a natural bank, in the Wetlands regulations there are numerous references to the banks that are, in fact, concrete. It is not a natural bank, it is incased in concrete or it seems to have consideration for water in a stream or potentially river, simply because it has an artificial bank.

Mr. Keifer: There is no single factor here that alone settles the question, that is one of a whole series of characteristics of this canal that we believe make it not suitable for the river has been in any before except that one of the banks became paved in concrete, that may not be enough to take it out of jurisdiction, it probably wouldn't be. That is just one of several factors that demonstrate this.

Paul: True, it says where banks are composed of concrete, asphalt or other artificial impervious material said banks are likely to be significant to flood control and storm damage prevention. In one section of the requirements, it doesn't explicitly mention, my point being you can't rule it out. Again, I am not saying any of this is clear.

Robert Bell: I think that the distinction from other soils and things like that and all those policy objectives at the Rivers Act section can't be met in this because not only are the banks incased in concrete, but the bottom is incased in concrete. I think in the Rivers Act that conduit, which is not covered by the Rivers Act specifically, but if you look at the definitions of canal, channel, and conduit, none of them are defined in the act, but in dictionary definitions they are all totally interchangeable and synonymous. The only thing that distinguishes this section is the enclosed sections of this water course that was done by the MDC exempt from the Rivers Act. There is only a question because it is open, it doesn't have a cover on it. The cover, or lack of a cover, does not distinguish it from a conduit. A conduit does not have to have a cover on it. It was simply an economic decision in this section not to fully enclose it. The objectives of the act can't apply because it is totally impervious and all the things you try to do with a river and the reason they want to protect river areas, can't be met in this particular situation. It would be arbitrary to say well, it doesn't have a cover on it so it is not conduit. The interesting thing is if you look at the taking language where the MDC did the taking, it specifically referred to it as a taking for conduit purposes. We have copies of taking here and in relation to this particular section of the taking, there were many, many sections all taken simultaneously all the way basically from Wyoming Station down into Malden, but the section of the taking that refers to Commercial Filters Corp., which was the owner at the time, specifically uses the word "for the construction of the conduit". So I think this is not denying the validity of what you say it may be on the Wetlands Act, but for River Acts purposes, it does seem quite reasonable to say that this is not a river. It doesn't necessarily say it doesn't have some characteristics that you may have interest in under the Wetlands Act, but for purposes of the Rivers Act it seems pretty inescapable logic here. I will pass around the taking language, which is underlined.

Paul: Under the Rivers Protection Act would flood control be considered one of the resources valued?

Mr. Keifer: Again, we are not here for purposes for exercising jurisdiction teams, this is under the jurisdiction of the MDC who has responsibility for maintaining its flood control capacities. It doesn't seem as though that is a logical basis to exercise jurisdiction over an adjacent piece of property.

Paul: Getting at Mr. Bell's comments that this particular body doesn't serve any purpose of the act. I think it does serve for runoff, flood control and that is one purpose for a value that could be applied to this water body, that clearly fits under the Rivers Protection Act, the capacity for one of the intricates of the act. Whether that is enough to limit the development or what goes on in the adjacent property, whether any development on that property would affect that or it would probably serve a purpose under the act, you could conclude that it does.

Bob Cook: Presumably the Cape Cod Canal has some flood storage function as well to be exempted under the act.

Paul: This gets back to the question is it a canal?

Bob Cook: The Rivers Acts itself is not a model in terms of trying to apply things, and naturally flowing, they do flow from point A to point B. The canals in Lowell, Lawrence, etc., they do naturally flow.

Bob: Some of them have locks.

Bob Cook: They do have a natural flow to them. They flow down river. They rejoin the river later on. They go from point A to point B and they are a diversion of a natural stream, but they are canals in exempt, but clearly because the act says they are exempt and the way they do it is not by how they are defined now, no canals are exempt. So it isn't natural flow, it is point A to point B that makes something a river, it is the general riverine characteristic, none of which really exist here. Interesting in the Rivers Act that I remember, but didn't specifically prepare for tonight, is there are particular sections that talk about conduit and says that the act doesn't apply and if we measure where the act re-applies by where it stops being a conduit, and there is a definition of the radius that we take around the end of the conduit that determines where. I think Joe can probably fill us in, the point being the conduit per say, regardless of whether it is a stream, regardless of whether it is a natural flow, is absolutely clearly exempt under the act in the definitions, so then we have got to go back and determine what is a conduit, and the lack of a cover over this does not make it not a conduit. It has a concrete bottom, concrete sides, the water is totally enclosed in its flow. The water has never risen about the banks of concrete, and the high water marks show on the concrete. This is one piece of engineering that actually has worked correctly as far as it is concerned. It is the tributaries to it that we have problems with in terms of backup, but the capacity of this is actually carrying in it. Next it is important to remember that just downstream from this, this water course drops significant amounts, in excess of 50 ft., goes underneath downtown Malden at which time it is pumped up, is assisted to come back up before it flows into what is called the Malden River. This is a totally engineered project and its analysis for the walks on the canals in that it couldn't continue its flow the way it is now constructed were it not for the manmade pumping that is done south of Malden Square. I think you take all of these engineering feats in context and the relocations and the years of controversy and engineering that has been done, it is pretty hard to say this is what anybody is talking about when they are talking about the policy objectives they are trying to serve in the Rivers Act. Once you focus on what a conduit is, it is clearly exempt.

Bob: It is exempt from the Riverfront Act, but not exempt from the Wetlands Protection Act?

Mr. Cook: That is a different question.

Bob: When you started off, you were mentioning that it would be exempt in the Riverfront Act, but it would fall into the jurisdiction of the Wetlands Protection Act.

Mr. Keifer: Actually, the RDA suggested that it would not fall under either, although we concentrated our attention on the riverfront provisions of the act. At the beginning when Paul was focusing on whether this might be subject to jurisdiction under the non-riverfront protection provisions of the act, and there is language in there that indicates that even channels, canals that aren't subject, that might not constitute rivers subject to the riverfront area provisions might still constitute wetland resource areas, we acknowledge that, it is a question that we haven't spent that much time on here this evening, that is we feel is a closer question than the first one. We feel the first question, it's really not a river, now we are in the realm of well maybe it is, maybe it isn't, a wetland resource area that is subject to the non-river provisions of the act.

Bob Cook: Something on the River Act question, we haven't really emphasized this, but this is of course previously disturbed area adjacent to it that the plan shows here it is built up virtually not quite to the edge, but within a close proximity.

Paul: Is there densely developed areas under the Rivers Protection Act, or hypothetically is this, in fact, were a river?

Joe Freeman: It would qualify, it has not been so designated, but there are specific procedures that have to be followed in order to get there. There has to be a petition by the Board of Alderman with their consent. Does it have the characteristics of what could be discovered? Sure, absolutely.

Paul: In the Executive of Environmental Affairs report apparently these were included as densely developed areas.

Joe Freeman: If you look real closely at the 1969 photograph, I can see evidence and there is language within that taking from 1957. I passed around one of the field out studies that environmental studies have been doing, to kind of draw a picture of the ultimate build-up that might occur in the town. They didn't attempt to literally go site by site and delineate.

Bob: That was going to be my next question, if you were aware of this report.

Paul: They leave a level of analysis. If wetlands and riverfront determinations look like a river, they are considered to be a river.

Bob: The comment here is the only developable area in subject to the Rivers Protection Acts is #3 of 1, 2 and 3, these are not deemed to be constrained by the Rivers Act except for the comments that they have here and specific wetlands, 76,000 sq. ft. of wetlands. I am not sure if they are talking about the canal or some sort of other wetlands area. Real 1 district contains about 76,433 sq. ft. of wetlands, and I haven't seen any wetlands except the interpretation that is being done here. Basically, the comment here #9 has such that the Rivers Protection zone buffer which covers roughly ½ of the real 1 district would not affect a number of apartment units that can be built on a site. It is also assumed that the real 1 district Rivers Protection buffer received dense development status, and does not impact the developmental potential of offices in the district.

Paul: It makes assumptions, not determinations.

Bob: Any other comments:

Nancy: My question is tonight we are responding to a Request for Determination of Applicability to the Wetlands Protection Act and River Front Act. So two separate questions we have to answer tonight? What about an NOI?

Bob: This determination will determine the NOI. If it is a positive determination, they will come before us with an NOI. If it is a negative determination, no NOI is required, depending on the status of the negative determination that we give them. There may be some Order of Conditions that may be in effect here, or referring to the Wetlands Act if it is denied for the Riverfront Act or denied for both of them.

Bob: Are there no other comments here at this time? Do we want to move on to determination? The two determinations are a positive determination and a negative determination.

Bob: Only one section has been disregarded because of the municipal ordinance or bylaws, that is #6. The question is at this point does this particular project come under the jurisdiction of the Riverfront Act? Through categories that referred to removing, filling, dredging or altering the area, two or three of these referred to that particular area.

Peter: Could we separate this down, maybe make it yes or no, Riverfront, yes or no Wetlands Protection. That seems to be a simpler vote.

Bob: Again, I have to tell you that we have heard that they will not be doing any construction, dredging or filling of the channel at all. The channel does not belong to them. It belongs to MDC at this point. The question that has come before us is does particular channel, stream, canal, ditch come under the River Protection Act? This is a manmade concrete structure going the entire length of the property at this time. Do any of the commissioners disagree at this point that the Riverfront Act should be initiated or should not?

Bill: If we are taking it as the first consideration, it is a river. I have no problem with that.

Paul: I was just wondering if anyone wants to talk about it.

Bill: I think it is just the matter of what order. Are we going to talk about whether it is a river first, then vote on that separately from whether it has other characteristics?

Bob: Well, the term came up river and stream.

Bill: The stream would come under the Wetlands Act. The river would come under the Riverfront Act.

Nancy: Well, this is a very handy illustration that Bill had his book opened to in our handbook, actually showing that a culvert over 200 ft. long, which this one clearly is, does not come under the Retirement Act. Our handbook helps us sift through these regulations. On the other hand, looking at it purely from a resource area perspective, we have water which once upon a time did travel naturally through this area until it was finally put underground and then eventually it does get back into a resource area, with just a small section is above ground. The rest of it, as you said is capped and exempted from a lot of the protection we could give it under the act. This is our one opportunity to at least have a bit of say as to what goes on right next to this body of water under the wetlands act. I don't think it comes under the riverfront.

Bob: The sheet that you handed me indicates where along rivers there is a riverfront area. You have along the entire length of major rivers listed along lakes and ponds along the river only if its flow shows riverine characteristics, except along canals, mosquito ditches or culverts longer than 200 ft., unless except along canals the mosquito ditches are culverts. This would not be classified as a riverfront area is then what you are saying.

Paul: The flow of the water corrects its entire length, if in fact it is being pumped.

Bob: Are we declaring at this point, if I am reading this right, that this is not subject to the Riverfront Act.

Everyone agreed.

Bob: It is unanimous this is no positive determination for the Riverfront Act. It is a negative determination for the Riverfront Act, but from what I understand, it is going to be a positive determination for a Wetlands Protection Act.

Bob: In the documentation received there has been no flooding in that area.

Paul: Or it is not limited to controlling of flooding in that particular area of the canal itself.

Bob: The canal is working according to the engineering aspects of it.

Paul: Which I bring up specifically, because if we, in fact, find a Positive Determination of Applicability for the Wetlands Protection Act, I think we want to keep in mind that in subsequent filings in the Notice of Intent, the functional value that we would be concerned with are to control floods in the general environment. It is not specifically controlling flooding in that particular reach.

Peter: We wouldn't want to let fertilizer get in there that would cause enough vegetation that block up the canal which would flood Wyoming Square. Riverfront no, Wetlands, yes.

Bob: A Negative Determination. Upon this request for Determination of Applicability for the property located at Main Street adjacent to MDC's drainage canal for the Riverfront Act. Right now I have five areas for negative determination.

Nancy: I think it is #1.

Bob: #1 is "Area described in the request is not area subject to protection under the act or the buffer zone. Work described in the request within an area subject to protection under the act will not remove fill, dredge or alter the area, therefore said work does not require the filing of a notice of intent.

Paul: One could argue that the work that could be proposed, although we don't have a specific proposal here.

Bob: #3 is the work described in the request is within the buffer zone as defined in the regulations, but will not alter an area subject to protection under the act, therefore said work does not require the filing of a notice of intent subject to the following conditions. It can be an Order of Conditions here which would put the Wetlands Protection Act into this.

Mr. Keifer: Could I make one comment?

Paul: You have no legal ability to do anyway.

Mr. Keifer: Well that is absolutely correct. We would be happy to have you condition a negative determination applicability on there being no alteration to the channel. If you want to attach that to your condition that there be no alteration of your wetland resource area, we would be glad to have that condition attached.

Bill: I think I have one concern at this stage, there is no particular work proposed for the site just yet. The question I think before us is simply whether or not within that area we have any jurisdiction whatsoever to issue order to work in the area, so we can't condition any work at this point and time.

Mr. Keifer: I wasn't suggesting that you condition the work, just that you attach the condition that there be no work, that no notice of intent is required. If we did any work in that area, then we would have to file a notice of intent.

Peter: If we come with a negative determination of applicability, then we can't make conditions.

Nancy: Yes we can.

Peter: It is a lot harder for us to follow. It is like finding somebody not guilty, but putting them on probation. Usually, it is a positive determination, then the conditions, and a lot of times the conditions are not entirely prohibitive. You still will be able to do what you want to do. We just may say things like you can use specific types of fertilizer, you have to take all gasoline operated vehicles off the property while you are working, so no oil spills into the canal and ends up in the Mystic River, but the Wetlands Protection Act, as you have probably gleaned from this conversation, it certainly doesn't mean that you can't start work.

Mr. Keifer: What you are concerned is the follow up when the project is automatically there, you don't have to worry about enforcement, we just automatically submit those plans. You will make a determination at that point.

Paul: Or another way of going about it is once you have tentative plans that the work is going on, you could either file an NOI could there be another RDA filing at that point rather than conditioning this determination that is subject to the Wetlands Protection Act or to protect nature of that canal, or given we don't happen to have a positive determination of applicability, but finding that it is not effecting the values to be protected for this resource.

Mr. Keifer: I am not suggesting that within 100 ft. within the buffer zone, we wouldn't touch it.

Bill: The best thing to be would to be issue a positive determination under the Wetlands Act, not the Riverfront Protection portion, that we have jurisdiction there and let it go at that, so whatever you do you have to come back to us with a Notice of Intent.

Paul: Or another RDA, that is another possibility.

Bill: Given the location of the buildings right now you probably have to use your property within the buffer zone. I can't see that not happening, so I don't think that an RDA would work in the future. One problem, and your presentation has been excellent and I appreciate your forthrightness and I am sure that will continue, but given the board and the public's concerns about its enforceability one problem with conditioning a negative determination you don't have to record it, there is no appeal process, there is no enforceability process that I can see. I would rather have you come back with a Notice of Intent, and if you don't need any conditions perhaps, that is fine, but we resound to keep our jurisdiction in tact, we can't be criticized.

Voted: A positive determination on the wetlands and that we have jurisdiction along the course in the buffer zone.

Bob: Described in the reference plans in the area subject to protection under the act remove filling, dredging or altering the area requires a filing of a Notice of Intent. Is that what we agree to?

Nancy: Yes, because they are in the buffer zone.

Bob: So that is basically under the Wetlands Protection Act. The question is the RDA is referring to the Riverfront Act. Does a positive determination under the way we are stating it, clear its request?

Bill: I haven't looked at that whole form. We just simply add in comments that the board finds a negative determination that it does not fall within the Riverfront Protection Act.

Bob: So there will be a comment attached to the positive determination that the Riverfront Act does not apply.

Nancy: One more question about that caveat at the end of the positive request for determination about the Riverfront Act? I don't think we should put that on there. That wasn't part of the motion and we didn't vote on that part when we ended about the Riverfront Act. I think it is good that we let them know that we personally don't believe it is part of the Riverfront Act, but I also think that if we go through the Notice of Intent process with the public hearings and the abutters notification, we should give people the opportunity to comment on that.

Paul: It thought we had voted on that it is not part of the riverfront.

Bob: I assumed you voted for the Wetlands Protection, but not for the Riverfront.

Nancy: I completely agree it is not part of the riverfront. I am not against that.

Bill: I think your question is at the end do we need to vote to explicitly state in the binding that we are finding positively, but negatively on the Riverfront. The public has the right to, if they care, and if they read it. We are making a negative determination, they can appeal right now.

Paul: Since it probably will qualify for a densely developed area and if they submitted that and got that, basically they are back to the same buffer zone that they would have under the Wetlands Protection Act. By the way, you are getting to their Wetlands Protection Act buffer zone, but with a lot loss procedural hassle. It is a densely developed area instead of 200 ft., I think it is 100 ft.. The small buffer zone is for a specific area, there are a lot of mills.

8 Hemenway - Steven Amero

Nancy Naslas: On May 8 I conducted a site visit to the pre-construction meeting for 8 Hemenway Ave, and I met with Steven Amero, the applicant, the road contractor and the house construction contractors. At that time all the large trees across the site had been chopped down and almost all the hay bales and silt fencing were installed along the two down gradient sides of the property. We all reviewed the major points of the Order of Conditions and Mr. Amero showed me the stamped receipt for the Registry of Deeds. I am not sure if that is in the file yet. At that time he hadn't posted the DEP site number sign, but he has done that now and I asked him to give us the construction sequence and a list of contacts. We generally discussed the maintenance of erosion control and the use of a 30 cubic yard container for debris and the contractors confirmed that no hazardous materials will be stored in the resource areas or buffer zones at the site, nor will the equipment maintenance be performed at the site. As of today they still haven't started any construction. It is the same as it was on May 8. They have a lot of hay bales and silt fence nicely anchored in place. It is at 8 Hemenway, right next to the Rose property. Steven Amero is not the owner, but the applicant. Here is the file with my site visit notes.

Nancy: The second topic I wanted to bring up to the board was brought to my attention by someone in my neighborhood and right next to Spot Pond Brook, behind this neighbor's property at 86 Baxter Rd. or adjacent to the Spot Pond Brook wetlands, there are at least five 55 gallon drums, very well rusted, just stuck in the dirt. This first picture just shows at the top the fence to the parking lot of the Cefalo Retirement Home and the Brook is way in the back here and then this is what appears to be to me is all wetlands up until just where you get to this debris area, and you can see there is a 5 gallon bucket here, some tires and then the drums right in the foreground of this photo, and then here is a close-up of the drums. It is hard to say how long they have been there.

Bill: Is that public?

Nancy: No, I believe it belongs to a man named Al Howard, and it used to have a paper street going through there. It might still have that, I am not sure, I haven't looked at any of the plans. It certainly should be cleaned up. It shouldn't be left sitting like that, right in the flood plain and abutting the wetlands, but I wasn't sure what to do next about getting that cleaned up. Someone told me that he believes those drums came from automobile servicing type of activity. They were just abandoned there.

Bob: Is this private property?

Bill: Is there a roadway to get them out there, or are they light enough to carry through the woods?

Nancy: Now there is a fence at one end of the area. It is really overgrown. You can still get in there with a bobcat or something.

Bob: But this is private property. It is not on our land.

Nancy: It could be in the wetland. If nothing else, at least in the buffer zone to the wetland.

Paul: It is dumping and filling.

Bill: Is it something you think people have been putting there periodically?

Nancy: No, I think they dumped there a long time ago and it just sat there forever, but it was just brought to my attention and I am passing it along. It is hard to know what is in those drums. I didn't move them, I didn't touch them. They look like they would break apart if you really jiggled them too much. They were very rusted. What should we do?

Peter: Ask the owner if we can take them out?

Bob: What happens if there is something in the drum and we are having a contractor hauling them out, who would become responsible for "contamination" if these rusted drums crack open and spills whatever is inside of them onto the property.

Paul: Whoever is doing the work is potentially responsible. Dispose of that in wetland area, then that would fall under our jurisdiction, and I think we have the ability to order them to take them out.

Bill: I don't know who would do it, but maybe you are requesting the landowner to allow someone from the city to inspect the drums.

Bob: The question is, is the landowner available?

Nancy: Just to further complicate things, this same neighbor told me that the landowner was thinking of donating or had even made motion to donate that piece of property to the city for conservation purposes, and whether or not those wheels have come into play, I don't know.

Peter: How long has that landowner lived there, do you know? It would be good to see when the barrels got there and if he had any knowledge or control of it.

Nancy: I asked Joe Lynch about it and he didn't know anything, but he said if I see drums near the stream to let him know. I only took those pictures yesterday. So Joe Lynch is first on my list of notification.

Bob: See if the engineering section has the contacts because they had a lot of tank removers going on in Melrose a couple of years ago, and they have all these contractors that may be available, but again the question comes up regarding the private property and liability.

Nancy: I will talk to Joe first and if it is private property and Joe can't do anything about it, then should I call the property owner and say we are concerned about this and what do you plan to do about it?

Bob: See if you can get the information, name, address, telephone number of the property owners and see if he is aware of the situation.

Nancy: First I will talk to Joe, and if Joe doesn't think he can do anything in his department about it, I will talk to the property owner. In any case we would have to talk to the property owner.

Bill: The property owner might be amenable to letting somebody come in and inspect quietly, because if they have discharged something it might be subject to any hazard. Maybe he would let somebody come in and see.

Nancy: Then there are a lot of notification requirements that immediately get triggered.

Bill: But chances are if they have been there over a period of time, it still sits in the drum.

Paul: It may be waste oil that is in the drums.

Bob: Just for clarification on this positive determination, we are doing the area #1 on positive determination: The area described in the referenced plans and the areas subject to protection under the act, removing , filling dredging or altering of the area requires filing a Notice of Intent.

Peter: When you read this for us if you would say the Wetlands Protection Act.

Bob: No work within the jurisdiction of the Wetlands Protection Act, and then we are talking an addendum to this determination, worded that the Riverfront Act has a negative determination. It is questionable, can we put two determinations on one Determination of Applicability.

Paul: Yes, it is just a form. The form is not in regulation, so amended we can change it.

Bill: Can we simply say they are subject to the act, which includes the Riverfront without mentioning Riverfront?

Paul: I think we want to be clear, stating on there that we found it not to be subject To the Riverfront Act.

Correspondence: Proposed Landscape Additions at Ell Pond From: Richard Blanchard, Interim Park Supt., City of Melrose, Park Department, dated 5/16/01. To The Melrose Conversation Commission:

"Dear Mr. Boisselle: In anticipation of a gift of various trees from Mr. David Balfour, Commissioner, MDC, to the City of Melrose, we ask the Conservation Commission to review and approve the various placements of these tress. Your review of proposed irrigation system extension is also requested. Please refer to the attached map of proposed locations. Your attention to this matter is appreciated. Please contact Barbara Jesse, City Arborist, or me if you have any further questions. Proposed Landscape Additions:

Bob: Any questions, comments or disapproval of these proposed landscape additions? Any question concerning the irrigation extension at the tennis courts? Basically, the hillside along the tennis courts, the dessert areas, what happened is they tried to put in a wildflower mixture into the area, and everything just died because of no water to water them, so what they are trying to do is put something at the top so it waters down onto the hillside to irrigate or to water the potential grass they are putting in.

Paul: Regarding the grass and irrigation, if it means having a grassy lawn there rather than dead grass and exposed dirt that could run off, it would only improve the area.

Voted: to approve these landscape projects.

Voted: To adjourn at 10:15 P.M.

Respectfully submitted,

Nancy Pritchard
Conservation Secretary