WELLFLEET — Town officials are finalizing plans to dedicate 28 acres of Blackfish Creek to oyster habitat enhancement as required by the U.S. Army Corps of Engineers to receive a permit for the dredging of the mooring basin in the harbor. But questions remain on how long the town will be required to protect the acreage, whether the town is at risk of penalties, and if the various landowners of the acreage will even allow the plan to move forward.
The dredging of black custard and silt in the 23.4-acre mooring field is the final phase of the town’s $20-million project to dredge Wellfleet Harbor. But because the mooring field, known as Area 2, has not been dredged since 1957, allowing for the natural accretion of marine life there, the Army Corps is invoking a federal regulation requiring Wellfleet to offset environmental damage with money or land before granting the town a dredging permit. This is known as “mitigation.”
For the past year and a half, the town has been negotiating with the Army Corps on identifying a plot to place under mitigation in lieu of what was formerly a $13.4-million permit fee, and what is now a $4.4-million fee through the Mass. In-Lieu Fee Program. The $4.4 million, however, is still “beyond the reach of what we want to pay for a permit,” said dredging task force chair Chris Allgeier at the May 2 select board meeting.
The current mitigation plan is phased: it would first place 14 acres of the conditional area in the Herring River below the dike under mitigation. After a year, the town would transfer the site to the full 28 acres in Blackfish Creek.
Mitigation, in this case will involve the town in laying 8 to 10 4-foot by 100-foot strips of cultch — shells used to create a substrate for juvenile wild oysters to grow on. It will also mean purchasing and placing 80,000 to 100,000 seed oysters in the area, in hopes they’ll grow into spawning stock, also to support the wild population. The town will be required to monitor the mitigation area yearly for 10 years, according to Alyssa Richard of GEI Consultants, who is advising the town. After 10 years, the plan reverts to infrequent monitoring of oyster counts in perpetuity, said dredging task force member Curt Felix. The Corps considers 25 oysters per square meter an “enhanced” ecosystem, Felix said.
At the May 2 meeting, board chair Ryan Curley requested a sunset date on mitigation “to ensure that the town is not stuck in perpetuity.” Felix told the Independent that “in perpetuity sounds scary at first, but the moral equivalent is establishing a forest. The Army Corps just does not want to see that people have gone in and clear-cut the forest. It’s a very low bar.”
The town must act quickly, Felix said, because a MassWorks grant of $2.5 million for the dredging is set to expire on June 30 if the town does not have a dredging contract in place by then. In order to sign the contract, the town needs to have its mitigation plan approved by the Army Corps.
Ownership of the land placed under mitigation won’t change, said Town Administrator Rich Waldo. The 28 acres of Blackfish Creek are owned by a combination of the town, Mass Audubon, and the Wellfleet Conservation Trust, Waldo said. The town is currently consulting with the owners to receive permission for mitigation, Felix said, but he is hopeful that they will approve the project.
“I am optimistic they will see that our conservation efforts are in line with theirs,” Felix said. “Bureaucracies are concerned about protecting their land and their interests, but in this case, our interests align.”
Dennis O’Connell, president of the conservation trust, which owns 17 of the acres, said that the trust “does not have a stance” on mitigation yet, but that he is “surprised they didn’t do a bit of networking with us before they made this information public.”
Mass Audubon Regional Director Melissa Lowe said at the May 2 meeting that Audubon does not have an opinion “one way or the other,” but that “being able to be involved earlier could have helped.” She added that Mass Audubon is already engaged with wildlife habitat enhancement in the area and that any “change in disposition of the property would have to go to the board for a vote.
“We are a much larger organization, so it will have to go beyond a local decision,” Lowe said.
Felix said there is no way around mitigation. “We are where we are short of legal involvement with the federal government,” he said. “I don’t think anybody likes being told what to do, but we have to look at the positives. This is about ecological uplift.”
The Corps gave the town options for four methods of mitigation, including conservation of an existing aquatic site, restoration of a previously existing wetland, enhancement of an existing aquatic site’s function, or the establishment of a new aquatic site.
Each method had a different acreage amount attached to it, with the most being 142 acres for conservation and the least being 28 acres for enhancement. The town chose enhancement, select board member John Wolf said at the April 3 dredging task force meeting, because it required the least amount of land. (During a select board meeting last August, the board denied a proposal to place 142 acres of the town’s HDYLTA flats under conservation.)
Mitigation will begin with the 14 acres of the Herring River because the shellfish dept. already has a permit required by DEP and the Div. of Marine Fisheries (DMF) to cultch the area, said Shellfish Constable Nancy Civetta.
Meanwhile, the dept. will work towards amending its cultching permit to include Blackfish Creek, which Civetta said could take one to two years. Once the town has approval to cultch there, it will submit a “request for relinquishment” to the Corps to open the Herring River back up to shellfishing and will then place the 28 acres of Blackfish Creek under mitigation.
Civetta said that shellfish harvesting will look different under mitigation: “The area will change. It’s not like you will be able to wander out there any day to harvest once we enter into this agreement,” she said. But the DMF does not allow towns to close areas to shellfishing for more than three years at a time, Civetta said. Even under mitigation, the town would be required to open the 28 acres in Blackfish Creek to shellfishing every three years.
The area of Blackfish Creek that would be restricted for year-round shellfishing is not currently productive, according to Civetta. “It is not commercially viable right now,” she said. “It will be managed differently under mitigation, so there is a take, but there is also a give, because we could be enhancing an area to create something where there wasn’t before.”
She added that the area of Blackfish Creek was largely chosen by the shellfishing community. “This is an area that shellfishermen chose as being the least painful for them to give up,” Civetta said.
Wolf said that as the Herring River Restoration Project proceeds, the water quality in the area of the river currently restricted due to fecal coliform levels could improve. Felix said that research estimates that 150 to 300 acres of oyster habitat could be restored by the Herring River project.
“That’s an area the shellfishing community does not want to lose to mitigation,” Civetta said. “It’s always been a big hope that water quality will improve over there, and we will get more shellfishing bottom.”
Felix said at a March 20 shellfish advisory board meeting that the department “can manage the harvest in a way that maintains the oyster density that the Corps is looking for.” As long as the oyster density remains above 25 oysters per square meter, the department can permit harvesting in the area.
‘Not a Police Force’
At the May 2 select board meeting, board member Barbara Carboni expressed increasing concern over potential penalties for not meeting the Army Corps’ mitigation metrics. “We need to see in writing that there will be no consequences if it is determined the town is out of compliance,” Carboni said.
Alyssa Richard responded that the Corps is “not going to write into a permit that there are no consequences. But they are not in the business of micromanaging.”
“What the Corps is looking for is a good faith effort,” Felix said at an April 4 select board meeting. “This is biology; we expect there to be problems. Yes, the federal government does have the ability to come down hard and enforce these requirements,” he said at a March 20 shellfish advisory board meeting. “But the Corps is trying to be a positive, constructive working partner, not a police force.”
Felix told the Independent that in the end, “everybody in the town wins. We are talking about an ecosystem uplift where there is oyster habitat enhancement, water quality improvements, fish protection, and revenue coming into the town from the newly dredged moorings. It is a win-win.”
A public forum on the mitigation plan will be held on Monday, May 22 at 7 p.m. at the Adult Community Center and via Zoom.