WELLFLEET — The select board has backpedaled on its support for a plan that would have dedicated 28 acres in Blackfish Creek to oyster habitat restoration.

The restoration was a requirement imposed by the U.S. Army Corps of Engineers in exchange for the town receiving a permit to dredge the harbor’s south mooring field. Its purpose would have been to offset environmental damage caused by dredging. The south mooring field has not been dredged since 1957, which the Corps says has allowed for the repopulation of essential fish habitat there.

Instead of pursuing the habitat restoration, the board plans to ask voters at the next annual town meeting to approve borrowing funds to pay the permit fee, currently set at $4.48 million. The funds would go to the Mass In-Lieu fee program, which funds restoration projects across the state, Town Administrator Rich Waldo said.

The board voted to withdraw the town’s mitigation plan on Aug. 22, just one day before bids on the dredging project were set to expire.

Citing unanswered questions of ownership of the 28 acres, doubts about the feasibility of the plan, and the lack of a “sunset” clause, chair Barbara Carboni, vice chair John Wolf, and Ryan Curley all voted against the plan. Kathleen Bacon abstained, and Michael DeVasto, who is a shellfisherman, recused himself.

After a years-long effort to escape the mitigation requirement failed, the town’s dredging task force has been meeting with the select board to draft a mitigation agreement. The select board’s reversal came after months of those meetings, during which the board appeared poised to move forward with a plan to propagate oysters in Blackfish Creek.

On July 18, the board voted unanimously to approve the plan, and a draft version was submitted to the Army Corps on Aug. 2, Waldo said.

But opposition from shellfishermen who said they doubted the viability of oyster regrowth and were worried the project would hinder the wild harvest in the area to be placed under mitigation shifted board members’ opinions.

Wolf, the board’s liaison to the dredging task force, said conversations with shellfishermen and with Joshua Reitsma, a fisheries and aquaculture specialist at the Cape Cod Cooperative Extension, affected his decision.

The Army Corps would have considered the mitigation plan a success if average density across the 28 acres reached 25 oysters per square meter within five years. The Corps would then sign off on a certificate of compliance but would still require the town to submit annual reports affirming maintenance of that density, according to the plan. Monitoring the area would continue in perpetuity.

“The Wellfleet Shellfish Dept. has a great staff, and I’m sure with a lot of effort they could get oysters to propagate there and possibly meet the metric at some point,” Reitsma told the Independent. “But maintaining that in perpetuity would [entail] a significant amount of effort and cost.”

Curt Felix, a member of the dredging task force, told the select board that meeting the 25-oyster metric was an “extremely low bar.” In previous meetings, Felix cited an oyster restoration project conducted by the Center for Coastal Studies in Duck Creek that grew six million oysters on a two-acre plot from 2012 to 2015. The density reached 600 oysters per square meter, Felix said.

The state’s Div. of Marine Fisheries (DMF) uses a metric of six oysters per square meter to designate an area as a significant oyster resource.

Reitsma also predicted that ice storms could threaten oysters’ survival in the restoration area.

“It would be wise for the town to understand the stipulations if the metrics in the restoration target were not met,” Reitsma said.

Those stipulations, however, are not very clear. According to a Government Accountability Office report, if metrics are not met, the Corps may take a variety of actions, including issuing compliance orders, assessing fines, and recommending legal action. But federal law also says that violations of a mitigation agreement that are appropriate for judicial action must be “willful, repeated, flagrant, or of substantial impact” — not the kind caused by good faith efforts hampered by bad weather.

Because the DMF does not allow a wild harvest area to be closed to shellfishing for more than three years, the mitigation plan called for the shellfish dept. to evaluate oyster density every three years and open an area to harvest “that will not adversely affect the stated performance metrics.”

But that did not satisfy members of the shellfish advisory board, which sent a letter to the select board saying that the mitigation plan would limit wild harvesters’ ability to work in Blackfish Creek and would “directly affect the livelihood of a large number of shellfishing families in town for many years to come.”

The area of Blackfish Creek that was proposed for restoration, however, is currently desolate. A baseline survey conducted on June 22 of this year found a total of four oysters among 25 samples. According to the mitigation plan, the shellfish dept. has observed very little shellfishing there.

At the Aug. 22 select board meeting, Wolf said he worried the mitigation would funnel too many of the shellfish dept.’s resources to restoring Blackfish Creek.

Another complication, Wolf said, was that propagation in Blackfish Creek through the laying of cultch strips and seed oysters would be contingent on permission from various private landowners.

According to the town’s assessor’s maps, approximately two-thirds of the area is owned by Mass Audubon. The select board sent a letter to the organization a month ago seeking permission to use the land, Wolf said, which “has not yet been responded to.”

The other parcel in the acreage is tidal land under the jurisdiction of the state, Town Counsel Carolyn Murray told the board.

Black Custard

In recent years, the 24-acre mooring basin in Wellfleet Harbor has built up 8 to 12 feet of black custard, rendering the harbor inaccessible to boats for six to eight hours a day during low tides. The accretion of the thick mud in the harbor has meant the loss of about 270 moorings, costing the town approximately $80,000 a year in marina revenue.

The silt is beginning to pour into the federal channel, which the Army Corps spent $5 million to dredge in 2020. Robert Wallace, who leases a grant near the basin, said that the mud has trickled ankle-deep into his shellfish beds.

Just how much environmental damage dredging the silt will cause is another matter of debate. The Corps of Engineers, with backing from the National Marine Fisheries Service, has argued that the project is in an important area for marine and estuarine finfish and shellfish species. Dredging, it argued, would result in substantial adverse effects to aquatic resources of national importance, per the Clean Water Act.

Others, however, paint a different picture. Wolf, who has served on the marina advisory committee and runs a commercial charter out of the harbor, told the Independent that the Corps’s mitigation requirement “is based on a false premise. Nothing can live in that mud.”

A study conducted by Bourne Consulting Engineering in 2016 found that dredging would have “minimal, if any potential for adverse effects” on essential fish habitat in the mooring basin. And a Center for Coastal Studies report on black custard in the harbor found low diversity in the species living in the mooring basin; 85 percent of all individuals found in samples were mud snails.

“This area is not and has not been hospitable to shellfish,” Shellfish Constable Nancy Civetta wrote to the Army Corps in 2020. “Oysters simply disappear into the morass, and quahogs and soft-shell clams cannot achieve anchorage. The only organisms that seem to thrive there are mud snails.”

If voters approve the $4.48-million permit fee, dredging will begin in the fall of 2024 and will take two years to complete. The $2.5-million MassWorks grant that the town received for dredging two years ago was extended until June 30, 2024, Waldo said. The town will need to have a contract in place by then to receive the money.

There are three petitioned articles to halt the mitigation plan on the upcoming fall town meeting warrant, authored by three different opponents of the plan: Diane Brunt, Brad Morse, and John Tansey. Because of the select board’s vote on Aug. 22, those articles are now moot.

Editor’s note: An earlier version of this article, published in print on Aug. 31, reported incorrectly the number of moorings in Wellfleet Harbor that have been lost because of silt buildup. The correct number is about 270, not 80.

In addition, that earlier version suggested that the Wellfleet Select Board had made a final decision on asking town meeting for $4.5 million for a dredging permit. The board has not voted yet on that question.