WELLFLEET — The select board unanimously agreed on May 30 to support a mitigation plan required by the U.S. Army Corps of Engineers that will enable the town to receive a permit for dredging the harbor mooring basin.
The board authorized the shellfish dept. to dedicate 28 acres of Blackfish Creek for oyster restoration, pending clarification from the Corps on penalties for noncompliance with the plan, along with the approval of town counsel.
The move came after months of negotiations among the board, the town’s dredging task force, and the Army Corps in a rush to execute a dredging contract before a $2.5-million state grant expires on June 30. With two bids submitted to the town, one for $3.5 million and one for $3.6 million, dredging task force chair Chris Allgeier says the town is on track to meet the deadline for the grant.
But concerns about potential liability came after a Freedom of Information Act request by the Independent revealed that Wellfleet could be subject to a $4.5-million fine if it fails to meet the metrics set forth in the mitigation plan. That news came in an email from New England mitigation program manager Taylor Bell.
“If this project fails to meet any performance metrics, then the dredging permit becomes out of compliance and any work would have to stop immediately until the mitigation is fully provided,” Bell wrote on March 14.
The mitigation plan means placing cultch on tidal bottomland to encourage the repopulation of oysters in Blackfish Creek. The metrics stipulate that oyster density must reach 25 per square meter and that the area must see an increase in biodiversity and water quality improvement that would be classified as “excellent” under the EPA’s water quality standards.
If the town meets those metrics at the end of five years, during which the town will be required to submit annual reports to the Corps of Engineers, the Corps will issue a certificate of compliance.
Allgeier told the select board on May 30 that Bell’s email was written early in the negotiation of the mitigation plan. He said that at the last meeting with Bell on May 25, the Corps agreed that it would not require the town to pay the $4.5-million fee if the plan falls out of compliance. The town would be able to pay the fee as an offramp for placing Blackfish Creek under mitigation, Allgeier said, but if the town chooses not to pay the fee, the Corps will work with the town to amend its mitigation plan for success.
Select board member John Wolf said that, because of the town’s financial situation, he is not certain the town would be able to pay the $4.5 million. “I don’t know how we would do it, considering the financial pit we just climbed out of,” Wolf told the Independent.
Select board chair Ryan Curley said that he was not aware of Bell’s email until contacted by a reporter on May 30.
Beth Gosselin, the chief of public affairs for the Army Corps’s New England District, wrote to the Independent that “the plan has a high degree of adaptive management, which means there are a number of ways to demonstrate that the project is on track towards mitigation success. Multiple metrics are taken into account, so that mitigation success isn’t dependent on just one metric. If one or two metrics fall short, the mitigation could still be termed successful.”
But according to Bell’s email, mitigation will be judged successful when it meets “all performance standards, and the Corps has deemed it successful.”
Curley expressed concern that the water quality metric could put the town in jeopardy of noncompliance. He said that water quality standards “are outside of our control,” and that water quality in the harbor “continues to deteriorate.”
“If we are being held to the standard that our results have to be better than current water quality, we are setting up mitigation to fail from the start,” Curley said at the May 23 select board meeting.
According to Curt Felix, a member of the dredging task force, an oyster restoration project conducted by the Provincetown Center for Coastal Studies in Duck Creek from 2012 to 2015 saw a total reduction of nitrogen by 70 percent as a result of oyster repopulation. Felix added that the project grew up to six million oysters on a 2-acre plot, or up to 600 oysters per square meter.
But the project’s report also states that, in 2014, the oyster population in Duck Creek dropped from 5.8 million to 3.8 million due to several winter storms that caused sediment accretion over the oyster reef. According to the mitigation plan, an area immediately west of the proposed Blackfish Creek acreage at one time hosted a large oyster population until consecutive ice storms in recent years caused a massive die-off there, and the shellfish dept.’s cultch program “has not been able to bring it back.”
When asked at the May 30 select board meeting about the potential for future ice storms, Shellfish Constable Nancy Civetta said that it is possible, but Allgeier added that adaptive management would allow the town to “jump-start” mitigation in case of severe weather. In that instance, propagation of cultch and seed would revert to year two of the five-year period before the town receives a certificate of compliance.
Felix said that “there is nothing to be alarmed about” when it comes to penalties for falling out of compliance with the mitigation plan. He said that any ramifications “would have to be a situation where the town blatantly decides not to honor our agreement.”
According to a report on the Army Corps’s oversight of compensatory mitigation conducted by the Government Accountability Office (GAO) in 2005, the Corps may take a variety of enforcement actions, including “issuing compliance orders, assessing administrative penalties of up to $27,500, requiring the permittee to forfeit a bond, suspending or revoking a permit, implementing the enforcement provisions of agreements with third parties, and recommending legal actions.”
Federal law states that violations that are appropriate for judicial actions are “willful, repeated, flagrant, or of substantial impact.” The GAO report also says that the Corps “rarely uses these enforcement actions, relying primarily on negotiation.”
“Concerns about potential long-term liability is something that we should be aware of and understand to the best of our abilities given the time we have left,” Curley said, speaking in favor of the motion to support mitigation on the condition that town counsel reviews the plan and the Corps explicitly lists penalties for noncompliance.
Alyssa Richard of GEI Consultants, the town’s consultant for the project, said that the select board will still have the final say once the town receives a permit to dredge from the Corps, which the select board will approve. Richard added that the permit would specify all standards of conditions related to the town’s risk of penalties. She said that the town could receive a permit in a matter of weeks once the final mitigation plan is submitted.
Dredging of the mooring field will take place from Oct. 1 to Dec. 31 in 2023 and 2024 if the select board signs off on the permit.