HARWICH — The state Department of Environmental Protection conducted an onsite hearing last week at the Resilient Family Farm off Chatham Road at the request of owner Barry Dino Viprino, who is asking the state to reverse a conservation commission ruling that the farm is not exempt from Wetland Protection Act provisions.
The commission made the decision at a hearing in mid-February after determining the farm had been expanded since Viprino purchased the property a year ago from facilities with a residential stable permit to a venture with cows, pigs, rabbits and at times more than 200 turkeys. The property has two large hoop houses and a barn for the animals, and the owner is seeking to construct a 5,040-square-foot hoop house in the wetland buffer zone to aquaponically raise fish and hydroponically grow vegetables.
Viprino's attorney, Ben Zehnder, argued the horses and paddock there previously established agricultural use of the property and the activities are maintenance of land in agricultural use.
Gary J. Makuch, an environmental engineer with DEP, was on site last Wednesday to conduct the hearing.
Makuch made it clear he had to request permission of the owner to visit the property. It would be up to Viprino if neighbors and a reporter could stay on the property for the hearing, he said.
Zehnder cited the active protest of neighbors and an aggressive new media, and expressed concern about photos being taken while the onsite was underway. Makuch agreed to begin the hearing off site, along Chatham Road and then conduct the onsite with only the necessary participants. He returned to the roadside hearing at the conclusion of the visit to the farm.
Conservation Administrator Amy Usowski provided a brief history, which included being called to the farm in August to investigate the clearing of vegetated areas within the wetland buffer zone without a permit and the storage of material there. She said the commission issued an enforcement order and requested a filing for a determination of applicability.
Usowski said it was the opinion of town counsel and a statement from Bernadette DeBlander of DEP that the land does not have an agricultural exemption from the Wetlands Act. DeBlander had cited the need for breeding and raising horses, and said because there was no commodity and production for sale there was no agricultural land use.
Zehnder said the evidence submitted to the commission included the outdoor paddocks and stables for seven horses, with four horses on the property. There is evidence of commercial use for paddocking and riding, he said. He also said Viprino went to town hall when he started the expansion there and was told Harwich was a farm-friendly community, implying there were exemptions from provisions.
Zehnder also cited changes in state law in 1995 and in Massachusetts Department of Agricultural Resources definition that preserve equine agriculture. The law provides that protection and thus the property is land in agricultural use, he concluded, adding that case law supporting the position.
“DEP did not revise its regulations, but that doesn't mean its not legal.” Zehnder said.
There would be no interaction between the groundwater and the hoop house in the paddock area proposed to raise the fish and grow vegetables, he said. The water system used for the fish would be recycled through the hydroponic vegetables, cleaned and returned to the fish tanks.
“It's a completely closed system and it's our position it deserved a negative determination,” Zehnder said. “It's a better system than what was there before. This is a better activity, lower intensity activity.”
There was also discussion about a large manure pile stored on the farm. Usowski said it is within the 100-foot buffer zone to the wetlands. Zehnder said a farm plan is being reviewed by the U.S. Department of Agriculture and a couple of conditions have been recommended that have not yet been added to the plan, which will include a manure management program.
The goals of the USDA report include protecting surface water quality of downslope wetland area and nearby Paddocks Pond and reduce soil, nutrient and pathogen transport from the farmstead. When issuing its field summary, the Natural Resources Conservation Service cited the need for an impermeable floor with curbing for composting activities and to direct surface runoff away from the composting facility.
Makuch asked the neighbors for comment. Beverly Kelsey said she has lived next to the property for nearly 40 years and there was barely activity there. She said horses were boarded and once in a while there may have been a show.
Abutter Audrey Greenway said she's lived there 20 years and there may have been two horses there. Horses were not bred there, she added. “The paddocks were surrounded by trees and I didn't even know the paddocks were there,” Greenway said.
The DEP hearing officer said they are limited to the DEP definition of land in agricultural use when making a determination on the superseding order. Makuch said there is a lot of activity here and his mission is to determine if the proposed hoop house to raise fish and vegetables is exempt or not. He said more details would be needed to make that determination.
More wetlands should be flagged, Makuch said, and he expressed concern that the edge of the wetlands “look like they have been intruded upon with fill a couple of feet into the old cranberry bog.”
“There was no intent to fill wetland and that can be remediated,” Zehnder responded.
Makuch said he would be accepting additional comments and information for the next three to four weeks. He also said in weighing the superseding order, it must be determined whether land in agricultural use gets a positive or negative determination.