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Buzzards Bay National Estuary Program

Falmouth, MA DPW Wetlands Case for Gifford Street

Correspondence on Falmouth DPW Gifford Street road work

Only occasionally does the Buzzards Bay National Estuary Program file a Request for Determination of Applicability (RDA) for a project under the Massachusetts Wetland Protection Act. At the end of May and early June, the Buzzards Bay NEP observed the discharge of sediment and silt, and the erosion of a pond bank that was the direct result of road reconstruction work by the Falmouth Department of Public Works. This road work began in early May 2004.

At the end of May and early June, rainstorms caused the accumulation of deep puddles on Gifford Street in front of Sols Pond. This accumulation of water occurred because the catch basins were covered with steel plates. Covering catch basins with steel plates is not a recommended inlet protection technique by DEP or any other regulatory agency because stormwater has no place to go. Instead, a combination of filter fabric and hay bales is the technique typically used around catchbasin inlets and road cuts. There are also commercial products available for use in these situations.

On May 28, after a 1.03-inch rainfall (National Weather Service data for Falmouth), an individual or individuals cut away the dirt road berm to allow the discharge of mud and sand into the pond, and cause erosion to the pond bank. After the discharge occurred, the Falmouth Conservation Administrator required that the DPW install hay bales and silt fencing at the site.

In June, the Buzzards Bay NEP inquired with the Conservation Commission staff about why this occurred, and asked to review the site plans and the wetlands permit (called an "Order of Conditions"). At first, the Buzzards Bay NEP was told that the DPW did this work under a "Blanket Permit." After investigating this matter, we discovered that between 1994 and 2002, the DPW had been working under a flawed "blanket" wetlands permit (Order of Conditions) process that denied abutter notification of projects by mail as required under the local wetlands bylaw, and limited public notice and Conservation Commission discussion of potential environmental impacts of other projects. However, in July, we confirmed that the blanket permit had expired and that the DPW in fact had no permit for the work, nor were site plans prepared, nor any stormwater treatment strategies implemented.

Also in July, the Falmouth DPW Assistant Engineer informed the Buzzards Bay NEP that Town Counsel had informed the DPW they did not have to file for a wetlands permit for this project. We read the legal opinion, and did not come to the same conclusion as the DPW as to when wetland permits needed to be filed. In fact, we felt the legal opinion stressed that the DPW should be filing RDA's more often with the Conservation Commision.

Click to read the Town Counsel Legal Opinion provided to us by the Conservation Commission.

The Buzzards Bay NEP believed that the failure of the DPW to obtain a wetlands permit contributed to the discharge of sediment and silt to a pond and its bordering vegetated wetland (BVW). The Buzzards Bay NEP also believed that some level of stormwater treatment should have been installed to comply with the Massachusetts stormwater policy guidance and the more stringent local stormwater regulations.

In July and August, the Buzzards Bay NEP observed continued erosion of the pond bank, and continued discharge of sediments. In light of the continued wetland degradation, and the inaction by the Conservation Commission, on August 3, the Buzzards Bay NEP decided to formally ask the Conservation Commission if a wetlands permit is required for the ongoing discharge of sediments and erosion of the pond bank. The process of asking a Conservation Commission whether a wetlands permit is required is called a "Request for Determination of Applicability" under the Massachusetts Wetlands Protection Act.

Read the cover letter to our RDA request to learn more details of this case.

Cover letter to Falmouth Conservation Commission accompanying the BBP's RDA (1.1 MB pdf file)


Pond discharge site during low water conditions, August 13, 2004 (photo credit: Joe Costa)




Erosion area in front of discharge pipe August 13, 2004 (left), and three days later after the formation of plunge pool as a result of August 16 rainfall.



As the Buzzards Bay NEP has investigated this case, we discovered additional environmental permit issues that go beyond the documented wetlands alterations. Specifically, stormwater NPDES permit issues need to be resolved relating to a nearby industrial site and the town's reconstruction of the road. Read the letter below to learn more.

Letter to Town of Falmouth Phase II Permit Coordinator (457 kb pdf file)

On May 18, at their weekly public meeting, the Falmouth Conservation Commission discussed the Buzzards Bay NEP's Request for Determination. The Commission delayed making a decision on whether the DPW needed a permit that night, and instead asked for technical assistance from the Buzzards Bay NEP. Specifically they asked the Buzzards Bay NEP to meet with the Lawrence-Lynch Corp. and the Falmouth Department of Public Works to help develop a solution to the stormwater and wetland problems at Sols Pond.

Updates

Read the BBP's 8/23/04 letter about the discussion of BBP technical assistance to the DPW. (30 kb pdf file)

Read the BBP's 8/23/04 letter offering BBP technical assistance to the Lawrence-Lynch Corporation. (30 kb pdf file)

Read the BBP's 8/24/04 letter to the Conservation Commission about the principals of the RDA process. (30 kb pdf file)



August 26 update: On Wednesday, Aug. 25, the Falmouth Conservation Commission issued a Negative Determination to the Buzzards Bay NEP's Request for Determination of Applicability. In effect, the Commission decided that the wetland alterations to Sols Pond that resulted from the DPW's activities did not require a wetlands permit filing pursuant to the state wetland regulations [310 CMR 10.02 (2)]. The BBP had previously written the Conservation Commission to advise them that the regulations explicitly require after-the-fact wetlands permit filings whenever wetlands are altered or filled. The Commission members stated they felt it was an unnecessary burden for DPW to prepare site plans and designs for their work. After issuing their Negative Determination yesterday, the Conservation Commission members then directed the DPW to take whatever action was needed to stabilize the pond bank and address the problems caused to the pond. The Falmouth DPW stated they have already begun to address the problem at the site. The Commission members did not ask what remediation activities were planned or had already been undertaken in the wetlands.

August 27 letter from BBP on the importance of the Con Com requiring stormwater inlet protection strategies.

August 27 Cape Cod Times article on the Con Com's decision.

August 31, 2004 update

At the close of business Friday, August 27, the Massachusetts Department of Environmental Protection faxed a letter to Falmouth DPW Director Bill Owen, the Conservation Commission, and the Buzzards Bay NEP that they had scheduled a meeting to investigate the Buzzards Bay NEP's complaint about the wetlands impacts from the DPW's roadwork on Gifford Street. Specifically, DEP stated "the Department has scheduled an on-site meeting for all concerned parties so that the Department can factually determine the existence, nature, and extent of the alleged violation."

The onsite visit was held 10 a.m. on August 31 on Gifford Street at Sols Pond. Participants arrived for the meeting during a heavy rain, so they were able to observe firsthand the drainage of stormwater and sediments from the street and the Lawrence Lynch property. Attending the meeting were representatives from the DPW, Conservation Commission, DEP, and the Buzzards Bay NEP.

One of the outcomes of the meeting was that there appeared to be a consensus that the DPW needs to file a Notice of Intent (a wetlands alteration permit application) to address the recent impacts to Sols Pond. Specifically the DPW would file a Notice of Intent to remove the recent sediments discharged to the pond, and to install erosion control structures in the pond to reduce further erosion of the bank and resuspension of bottom sediments (currently the pond clouds after heavy rains).

The purpose of the site visit was to allow DEP to understand the facts of the case. There are four possible actions that DEP could take as a result of this meeting. They are:


However, a special problem was created by the fact that the Conservation Commission has issued a negative determination for our RDA. If that decision was not overturned, it would legally trump any Notice of Non-Compliance or Enforcement Order by DEP.

September 2, 2004 Update: DEP Appeals

When the Buzzards Bay NEP submitted the RDA form on August 3 to the Falmouth Conservation Commission, it posed a simple question: do the impacts to Sols Pond caused by the Falmouth DPW's roadwork on Gifford Street require a wetlands permit under the Massachusetts Wetlands Protection Act? Of course, we felt that had the DPW filed a permit with the Conservation Commission before they began, many of the problems that occurred could have been avoided. We believed that the Conservation Commission would have also required some level of stormwater treatment before the road stormwater discharged into Sols Pond, which would have helped remedy some longstanding problems there.

But the RDA we filed asked only a narrow question: did the discharge of sediments to Sols Pond, and the erosion of the pond bank require a permit? We felt the state wetland regulations were quite clear on the matter. The Town must comply with the Wetlands Protection Act. That is, an after-the-fact permit is needed to remedy both the new problems and past oversights.

However, on August 25, the Falmouth Conservation Commission disagreed, and told the DPW they did not need a wetlands permit. They even directed DPW to do whatever new work they felt needed to be done in the pond and on the pond bank without a permit or enforcement order. The Buzzards Bay NEP felt this decision was inappropriate and set a bad precedent with many implications. It tells the DPW they do not have to treat stormwater when they do major roadwork as required under the state stormwater policy guidance or local wetlands bylaw. They do not need to follow the same rules imposed on homeowners or businessmen. It tells the DPW the do not have to budget stormwater treatment when they do major roadwork, because the Massachusetts Wetlands Protection Act will not be enforced. Because many acres of shellfish beds in salt ponds are closed in Falmouth because of stormwater discharges, and because many freshwater ponds (like Sols Pond) are filling with sediments because of stormwater discharges, these are unfortunate precedents.

However, we also knew the Conservation Commission's decision can be appealed and overturned. When a person files an appeal to DEP it is an assertion that they believe the Conservation Commission decision is erroneous and requests that DEP review the facts of the case to determine if the Conservation Commission should be overruled to comply with Massachusetts Wetlands Protection Act.

In the case of a "negative determination" decision by a Conservation Commission, the local decision must be appealed in 10 business days (after written notification), or the decision stands. Only five groups or "persons" can appeal this type of decision to DEP. They are :
On September 2, 2004, DEP notified the town that they were appealing the Conservation Commission's negative determination of August 25. This means they will soon issue a "superseding determination" that overrules the local negative determination.

Why would DEP do this?

During DEP's site visit to Sols Pond on August 31, it was apparent, and everyone agreed that the pond bank (area between winter high and summer low water levels) was altered and silt and sand was discharged into the pond. DPW officials also agreed to file two Notices of Intent (wetland permit alteration applications). One to remediate damage to the pond and install erosion control measures (stone, concrete spreaders, etc), to prevent the continued erosion of the pond bank from the increased volume of stormwater now discharged to the pond. The DPW also agreed to file a Notice of Intent for work sometime in the future to treat stormwater discharges into the pond. However, for both proposed work tasks, DPW officials indicated that the work would be subject to funding by town meeting.

The Buzzards Bay NEP knew from previous cases that if the negative determination was not appealed in 10 business days, it limited DEP's options as to what they could do on the case, at least for the three years when the negative determination was legally valid. For example, DEP could not legally issue an Enforcement Order or even a Notice of Noncompliance if the Conservation Commission's decision were not overturned. Consequently, if the town later decided they did not have the funds to repair the damage to the pond bank or to install erosion control measures, they could not be required to do so. Because of these legal implications, and because the regulations are unambiguous that after-the-fact wetland alterations require a permit, it was necessary for DEP to appeal the Conservation Commission's decision.



September 2, 2004 Cape Cod Times article on DEP appealing the Falmouth Conservation Commission's Negative Determination.

Other Wetland Case Involvement by the Buzzards Bay NEP
Acushnet Wetlands Form Case
The above page describes the BBP's involvement in the Acushnet Conservation Commission abandoning a town wetland form
Our involvement was notable because in 1992, Acushnet was one of several Commonwealth communities that created their own wetland permit form and application process. The Buzzards Bay NEP felt that the town's application process did not provide adequate public notice, due process, or state review. In 1992, the town of Acushnet filed only 3 wetland permits with DEP, whereas 200 "in-house" wetland permits were issued without review. As a result of this letter, and an appeal by the Buzzards Bay NEP of a town-accepted wetland boundary in a particular case, the Town of Acushnet abandoned their in-house wetland permit application form by the following year. The town also later agreed to hire a Conservation agent as part of a tri-town district with Marion and Rochester.


The 1993-95 Mattapoisett Holly Woods Road Subdivision Case page

In nine pieces of correspondence over the course of two years, a wetlands appeal by the Buzzards Bay NEP, eventually led to a series of actions that resulted in a developer of a residential subdivision agreeing to re-delineate the wetlands on a 90+ acre subdivision. It turned out that 60+ acres of wetland were overlooked in the original wetland permit filing with the Town of Mattapoisett, and under an agreement with DEP, fill was removed from wetlands.


Newspaper Articles

Important external link:Falmouth Enterprise Article, Aug 27, 2004, Commission Divided On Gifford Street Stormwater, votes negative determination

Important external link:Falmouth Enterprise Article, Sep 3, 2004, Mass DEP intervenes to overturn Falmouth Conservation Commission decision



Other Conservation Commission Related Correspondence

Follow-up response to questions about quroums on the Falmouth Conservation Commission (12/3/04 74 kb pdf file)

Response to a question about quroums on the Falmouth Conservation Commission (10/5/04 74 kb pdf file)