EASTHAM — Current wetlands regulations in this town prohibit the use of pressure-treated wood in marine environments with only a handful of exemptions. But that puts Eastham’s rules at odds with the state’s universal building code, which allows the use of pressure-treated material in resource areas and buffer zones.
The Eastham Conservation Commission, which enacts wetlands regulations that complement the town’s wetlands bylaw, hopes to resolve that conflict on Jan. 28, when it will vote on adjustments that would bring its provisions in line with the state’s.
The proposed revisions acknowledge that the state building code allows the use of pressure-treated wood in resource areas and buffer zones but notes that the commission strongly encourages applicants to use alternatives.
The changes were prompted by a disagreement between the commissioners and a local builder that began more than a year ago. In November 2023, the commission served Tim Klink, president of Coastal Companies, with a wetlands regulations violation notice and an accompanying enforcement order over his use of 22 pressure-treated foundation pilings at a house at 345 Harmes Way.
At the time, construction on the house, which overlooks Cape Cod Bay, had been completed, and its owners were seeking a certificate of compliance from the commission.
The commission told Klink it had investigated the property based on a complaint it had received about the use of pressure-treated pilings there. And while the owners, Gary and Jan Ross, who live in Oakland, N.J., received their occupancy permit, Klink was given until February 2024 to come up with options to mitigate the violation at Harmes Way. One of those, chair Karen Strauss said, should be replacing all the pilings.
Klink hired Boston attorney Glenn Wood, who told the commission that the state’s building code allows the use of pressure-treated wood in resource areas and preempts the town’s regulations. He insisted that the commission “stand down” and rescind the enforcement order.
Town Counsel Alexander Weisheit of KP Law agreed with Wood. Weisheit said that, while the conservation commission can enact wetlands regulations that are more stringent than the state’s Wetlands Protection Act, the measures may not directly conflict with other applicable state laws such as the building code. Weisheit suggested that the commission amend its regulations.
The commission required Klink to hire experts to take samples of the pilings at 345 Harmes Way to determine what chemicals the wood contained and whether they were leaching into the soil or water.
In June, Tetra Tech engineers provided the conservation commission with a 50-page study looking at the specific compounds found in the pilings and the potential effect on public and private water supplies, groundwater, shellfish, fisheries, and wildlife habitat.
Conservation Agent Alexander Bates wrote in an email that the pilings were treated with chromated copper arsenate but that weathered pilings had been used at Harmes Way. “The assessment concluded that the pilings are not in a condition to adversely affect the surrounding environment,” Bates said.
The engineers’ report was enough to satisfy the commission, which voted to rescind the enforcement order issued to Klink during an executive session on June 25. “Ultimately, removing the pilings would cause more environmental disturbance than leaving them in place,” Bates said. The commission began revising its regulations in August, striking its restrictions on the use of pressure-treated wood.
In a Jan. 11 phone interview, Klink said he had presented the commission with a list of 11 other properties, including municipal properties, that had used pressure-treated wood. “If they pursued me, we were going to open up 11 other cases as well,” he said. “We basically proved our point to them that they were wrong.”
As a result, Klink added, “They had to create some way to say, hey, we don’t want you to use pressure-treated wood, but if you do, we can’t stop you.”
“We realize the state building code takes supremacy,” said Strauss in a Jan. 13 phone interview, “but we hope that people will take into consideration the materials they use on any project in a sensitive area and choose less impactful alternatives.
“The commission is concerned about the use of CCA [chromated copper arsenate] primarily but also other materials that might leach into the surrounding environment,” Strauss said. Though still allowed by the state, chromated copper arsenate is toxic and prone to leaching, she added. As alternatives, Strauss named “more modern” pressure-treated wood or hardwoods, or composite materials.
The proposed regulation also contains a new provision that makes applicants who choose alternatives to pressure-treated wood eligible for mitigation credits needed for their projects. Strauss said those “aren’t a given” and would be awarded on a case-by-case basis. “We’ll look at each project,” she said.
Klink is not totally in the clear at Harmes Way. In September, the commission voted to fine him $600 for a handful of unrelated violations, including the installation of a rinse station without permission, an unpermitted installation of a propane tank, and burial of the propane tank, which, at the time, was not allowed. Those items had not been part of the original notice of intent and therefore required him or his engineer to clear the work with the conservation agent. A new notice has since been filed to include those omissions as well as continued work on plantings. The certificate of compliance will be provided when all the work is completed, according to Bates.
The Jan. 28 hearing on the proposed changes to the wetlands regulations will be held remotely at 5:30 p.m. Written comments will be accepted at the conservation department or by email at [email protected] until noon on Jan. 27.
