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Silver Maple Forest Case Continues
By Ellen Mass- President Friends of Alewife Reservation
October 16, 2012
Silver maple forest decision treated unfairly by DEP:
According to David Brown, "vertical complexity" or diversity of tree height with its older canopy at the Cambridge/Belmont and Arlington Alewife Reservation is extraordinary compared to Middlesex Fells and even certain western Massachusetts forests where Dave lives and works as a noted wildlife specialist. The 'upper flood plain' of this Reservation is where the Belmont Uplands construction site sits on over 5 acres. There is no clear delineation between upper and lower floodplain. The 7 acre forest contains hundreds of older growth trees composed of primarily silver maples, and ash, red maple, birch poplar, bringing many wood warblers to the silver maple forest growing more threatened daily. While walking there this past Sunday, a migrating Parula warbler came to view when walking to Little Pond. Placards are visible along the North Trail for guidance and identification of trees and wildlife.
The incalculable value of these trees however, was not taken into account in the 2009, 4 day Department of Environmental Protection (DEP) Hearing renderings, nor was the Wetlands Protection Acts' Regulations (WPA) on Upper Floodplain assessment which was completely ignored by Judge Beverly Coles-Roby, the Hearing officer, now removed in regional DEP headquarters. Highly professional witnesses' testimonies and cross examinations were striken from renderings in all official DEP findings, despite the public hearing venue with both sides arguing their case for 28 hours, including the Belmont Conservation Commission's storm water case challenging the developer's engineering designs.
Massachusetts' Constitutional Article 97 was not considered as well. It guarantees public rights to "nature, scenic, historic and aesthetic quality of their environment." Ms. Roby discounted a leading wildlife and forest specialist Chuck Katuska, prominent in state environmental circles and in conservation commissions throughout Massachusetts.
What is at stake in the Upland case is the entire cross-examination process whereby witnesses can be discounted arbitrarily, dismissing a basic tenant of the democratic process in court proceedings, without which a judge or jury cannot fairly appraise a case.
In this case the Officer relied solely on pre-filed testimony of the developer and ignored plaintiff and town Conservation Commission's case which was built on professional and legal consultation and among those abutting environmentalists who knew the area best.
Plaintiffs' most recent appeal states that wildlife obligation of the developer failed with the Wetlands Protection Act requirement of 10 percent or 5000 sf threshold of replication to be accounted for in the design plans. This was not done. DEP ignored 1) ground water elevation and distance with replication, because the real water level was lower than in lost areas - not allowed by WPA. 2) The distance between Little River and replacement area must be same as lost area- not the case here. These facts of non-compliance were proven at the Hearing by the civil action attorneys.
Plantiffs argued that these are not "subsidiary" issues as wildlife assessor, Julie Vondrak claimed. It was a major error in the case for the developer and wildlife assessor to say wildlife habitat on the upper floodplain of bordering land subject to flooding (BSLF) is not significant. This emphasis on wildlife protection could be an important precedent set for the state's parks and forests, thus protecting our diminishing older growth trees and species of birds and mammals, etc. needed for our local New England landscape.
DEP's regulations state that 'significant habitat; is warranted only for lower floodplain, with upper floodplain determined in a case by case basis. Proof of 'significant 'wildlife on upper floodplain is published in Friends of Alewife Reservation Biodiversity book and many other observational and written reports for the last 4 years. The book contains location and species, time and descriptions for over 18 mammals and 90 migrating and nesting bird species, providing indisputable facts that wildlife features are similar on both upper and lower floodplain. Thus both areas must be assessed according to 310 CMR 10.57 (4) (a).3. Developer's assessor also agreed that 5,440 square feet of significant wildlife habitat exists on upper floodplain. However, the DEP officer ruled that the upper one was out of regulation.
No one doubts that the upper one was significant. Why was it not assessed? Chuck Katuska said, "Upper floodplain on the project site contains significant wildlife habitat features as embodied in the plant communities, soil composition, structure, topography, proximity to water bodies, waterways and other characteristics." Mr. Howard for the developer noted similar characteristics.
As judge and jury for the Commonwealth, the DEP should correct itself and review this case for the benefit of both sides, taking the Wetlands Protection Act closer to heart, as our hearts and futures are tied up with this important state and national protection for our natural resources.