Posted on August 12, 2022
Corps of Engineers insists on land exchange or $14.5-million ‘mitigation’ fee
WELLFLEET — The dredging of the mooring field at Wellfleet Harbor will not happen this fall.
The final phase of the $20-million three-year project to clear silt and muck from the harbor was supposed to begin in September but has been postponed for a year because the U.S. Army Corps of Engineers will not issue a permit for it.
The select board was updated on what has been happening with the project on Aug. 2, just weeks before the final phase was expected to begin and only days after the state announced a $2.5-million grant for the dredging. The news, from project manager Dan Robbins of GEI Consultants and Harbormaster Will Sullivan, was not good.
Years of behind-the-scenes negotiations between U.S. Rep. Bill Keating’s office; the town’s lobbyist, Ray Bucheger of FBB Federal Relations; and the Army Corps were not successful in persuading the federal agency to classify the final phase as “maintenance” dredging. Instead, the Corps insists that because the mooring field known as Area 2 — containing 250 moorings — has not been dredged since 1957, it must be considered “improvement” dredging. The agency ruled that Area 2 has had nearly 60 years to revert to its natural state.
Under the federal Clean Water Act, projects that disturb a natural environment or a threatened species require a tradeoff, or “mitigation,” consisting of either money or conservation land. The town had already paid a mitigation fee of $30,000 for affecting the habitat of the diamondback terrapin during the dredging of the federal channel two years ago, Sullivan said.
If the Army Corps and the town cannot agree on acceptable parcels of land to be placed under conservation restrictions as mitigation, the town will have to pay $14.5 million to go forward with dredging the mooring field, Robbins said. Town Administrator Rich Waldo told the Independent this week that there is no way the town will pay that much, and so negotiations on possible conservation land designation continue.
The select board members expressed shock that town officials had received contractors’ bids in July to dredge the 23.8 acres of the mooring field while knowing that the mitigation requirements had not been met. The contractors were supposed to stage their equipment in September to begin dredging, said John Wolf, who is the select board’s liaison on the dredging task force.
“I am seeing a lot of carts before a lot of horses here,” Wolf said on Aug. 2. “We had the contract out to bid and contracts back and we don’t have a permit. I’d like an explanation for the delays.”
The Explanation
Waldo said requests for proposals went out in June to position the town to move quickly in case “we get traction with the Army Corps. We wanted to be ready to move forward as quickly as possible.”
The town has known since 2017 that the Army Corps deemed the mooring field plan improvement dredging, Robbins said. That is why, in 2020, the Corps granted permission for the project to be split into two areas, Sullivan said. Area 1 encompasses the federal channel and the area around the town pier.
Area 1 was dredged in 2020 and 2021. Town officials, meanwhile, were working with a supportive Congressional delegation including U.S. senators Ed Markey and Elizabeth Warren and Keating’s office to address the sticky problem of mitigation for Area 2, Sullivan said. Those negotiations progressed quietly with Sullivan, the town’s consultants and lobbyist, legislative staff, and a revolving door of town administrators — Dan Hoort, Maria Broadbent, Charles Sumner, and now Waldo — in the loop. With Markey’s, Warren’s, and Keating’s support, the town’s position for years has been to offer no mitigation, Sullivan said.
The select board — and the public — was not informed about all of this because the officials were trying to find a way to avoid mitigation without it appearing that they were working around the rules, Sullivan said.
That silence ended on Aug. 2. That’s when Joe Aberdale, co-chair of the Wellfleet Dredging Task Force, complained at the select board’s meeting that Sullivan and Robbins had failed to respond to a Oct. 27, 2021 letter from the Army Corps. The letter formally notified the town that it would have to provide mitigation for the dredging of Area 2. Aberdale said no one filled out the accompanying mitigation forms as required. So, on March 8, 2022, Robert J. DeSista, chief of policy and technical support for the Army Corps, informed the town it had “closed” the permit application for Area 2 “without prejudice.”
Aberdale told the select board the failure of communication had caused a significant delay.
Aberdale’s complaint prompted Wolf to order town officials to provide the select board with all of the correspondence related to the dredging of Area 2. On Aug. 2 the select board received nearly 1,000 pages of emails, letters, and permits.
Aberdale declined to speak to the Independent, citing a Jan. 2 email from Assistant Town Administrator Rebecca Roughley chastising him for breaking the “chain of command” and speaking to the town’s lobbyist and others in Washington, D.C. about the project. The select board in May 2021 had made Sullivan the only point of contact.
Officials’ Defense
Sullivan contradicted many of Aberdale’s assertions. First, Sullivan said, “closing” the permit application does not mean it is dead in the water. It is just the way the Army Corps puts the project on hold until a mitigation plan comes together, he said.
Sullivan acknowledged that he and Robbins did not respond immediately to the letter from the Army Corps. He said they “missed it” for about two weeks. But even after reading it, the officials chose a strategy of not responding because they still hoped for a work-around, Sullivan said.
Behind the scenes, Sullivan said, the consultants never stopped working on potential areas for mitigation. These included the two parcels that the town placed in the custody of the Wellfleet Conservation Commission at the June 2022 town meeting: 2.06 acres of wetlands in Blackfish Creek and 3.26 acres of wetlands in the Fresh Brook Estuary off Lieutenant Island Road. Sullivan said officials did not explain publicly that these properties were potentially part of the mitigation plan to complete the dredging. He said they wanted the conservation efforts to stand on their own merits. If there had been opposition to the transfers, Sullivan added, they would have explained the mitigation issue at town meeting.
The other area they offered as potential mitigation is the 254.5-acre HDYLTA (How Do You Like Them Apples) shellfish flats off Indian Neck, which the town bought in 2019 for $2 million to protect them from being bought by unnamed out-of-town entities. Early communications with the Army Corps indicated that those three parcels would earn nearly all the “mitigation credits” necessary to do the dredging, Robbins said.
But on Aug. 2 the select board balked at using the HDYLTA flats in that way. Board member Ryan Curley said he worried it could lead to shellfishermen being denied access to their grants.
Next Steps
The select board instructed town staff to offer as mitigation a list of all the properties that the town has transferred into the custody of the conservation commission.
The three bids to begin the dredging this fall ranged from $3.7 to $4.9 million, from Burnham Associates, Jay Cashman, and Robert B. Our. The town will now have to put out a new request for proposals next year.
The town remains eligible for the $2.5-million state grant as long as there is a dredging contract in place by June 30, 2023, Waldo said.
“So, we would need a permit before that,” Waldo said. He hopes that the Army Corps and town can reach a mitigation agreement before town meeting in the spring.
Wolf and Curley both insisted that Sullivan update them regularly on progress.
