CHATHAM – A 108-foot revetment proposed to protect a $3 million Shore Road home should be denied because it does not meet performance standards in state wetlands laws, according to a ruling issued last week. Presiding Officer Jane A. Rothchild recommended the upholding of a state department of environmental protection order denying the revetment, which overturned the conservation commission's approval of the structure. The recommendation now goes to DEP Commissioner Martin Suuberg, who has 30 days to issue a final decision.
The conservation commission's September 2014 approval of a rock wall to protect the coastal bank on property owned by James and Lisa McGonigle was appealed by both DEP and a group of 10 local residents. Both claimed that the wall would violate Massachusetts Wetlands Protection Act and would harm the coastal bank and beach.
Rothchild agreed with that assessment, rejecting the McGongles' assertion, in their appeal of the DEP superseding order, that the bank is not significant because it does not supply sediment to nearby beaches. In a 54-page ruling released April 4, she stated that the “preponderance of evidence demonstrates that the McGonigles' coastal bank is significant” to the interests of the wetlands regulations, including storm damage prevents and flood control. She also ruled that the wall is not necessary to protect the McGonigles' home, which is 60 feet from the top of the bank; it also fails to meet the standards in the law because the house was built in 1986, and under the regulations only dwellings built before 1978 can be protected by revetments.
“Because of this, the proposed project cannot comply with the applicable performance standards because it will prevent the coastal bank from supplying sediment to the coastal beaches and will cause erosion of the coastal beach,” Rothchild wrote.
Dee Dee Holt, a member of the group of 10 residents who appealed the concom's original approval of the revetment, said they were gratified by the decision.
“In just about every instance the presiding officer agreed with our arguments asserting the the revetment should be denied based upon noncompliance with the MWPA,” she said in an email.
In a followup interview, she noted that the both Coastal Resources Director Ted Keon and consultant Greg Berman had advised the conservation commission not to approve the revetment, and that their positions were backed up in Rothchild's decision.
“The town hires staff who have a responsibility to support various boards in town,” she said. “They're experts, and they should be able to provide, at no additional cost to the town, expert opinion on various projects coming before the town.” In this case, however, the concom rejected that advice.
Holt said because the decision clearly defines the requirements that projects must meet to satisfy the performance standards in the wetlands regulations it has widespread implications. Among the points that Rothchild makes, she noted, are defining a sediment source, says a home must be threatened and no alternatives available before a revetment is considered, and that so-called “soft” erosion control measures must be maintained to remain effective.
“The decision essentially clarifies any gray areas in the regs that concom members might have felt allowed them latitude in interpretation,” she said. The commission should consider the decision in making future determinations about revetments, and “if nothing else it should encourage the commission members to respect and give weight to town and state experts (such as Keon and Berman) who may weigh in on an applications. They are a valuable technical resource to the commission.”
Jane Harris, another member of the ten citizens' group, said the decision is “really a primer on shoreline protection.” Her takeaway was that any revetment must protect a building that is threatened and there must be no other feasible method available with less environmental impact.
Rothchild noted that fiber rolls, a “soft” erosion solution, were approved to protect the bank in 2003, and installation was completed in 2007. A week later a storm created the north break in North Beach, which increased the tidal range and waves in the area. The owners were unable to keep the fiber rolls covered with sand, as required, and decided not to repair them. She concurred with DEP's position that the fiber roll system failed because it had not been properly maintained.
But the case turned on the issue of whether the McGonigles' coastal bank was a viable sediment source for adjacent beaches. The owners' representatives argued sediment from the bank is not significant, because it does not nourish nearby beaches but is carried south where it builds up against the fish pier bulkhead and has to be dredged. Because the sediment from the bank is not significant to the interests in the regulations – mainly storm damage prevention and flood control – the performance standards in the law do not apply, they asserted. The revetment would not affect the stability of the bank but will rather stabilize the toe of the bank, they argued.
Rothchild rejected the assertions. There is no dispute that the bank is eroding, and eroding sediment plays a role in maintaining the elevation of the beach – which hasn't changed in decades – and protecting against storm waves, she wrote. Also, erosion rates provided by the owners' consultant were over too short a period of time and did not reflect a trend. Rothchild also cited previous determinations that stated that even small amounts of sediment from a coastal bank help protect beaches and banks from storm damage and flooding.
She also agreed with the town's experts that sand eroding from the bank goes both north and south along the shore, and even the sand that is dredged from the fish pier is placed back in the system to benefit area beaches.
“I have determined that this bank serves not just as a vertical buffer but as a sediment source,” she wrote.
Rothchild also stated that no witnesses testified that the house was at risk from storm damage.
“The petitioners have not made the 'clear showing' required to overcome the presumptions in the applicable regulations,” she wrote. “The preponderance of the credible evidence supports the department's denial of the project.”
If Suuberg upholds the denial, the McGonigles' only avenue of appeal is to the courts. Attempts to contact the McGongles' attorney, Sara Turano-Flores, were unsuccessful. The McGonigles live in Spain and could not be reached for comment.