Cat Dam got mixed up by design

By Tanna Kasperowicz

The Cohasset Board of Selectmen mixed it up on purpose.

It is possible that the Cohasset Conservation Commission (only 4 out of 7 can vote on this matter) will finally meet to deliberate and vote on the Selectmen’s Notice of Intent for Cat Dam Monday night (July 25) at 7 p.m.  The commission had to cancel Wednesday’s meeting (July 20) because one of the four members who can vote was ill, and three members is not a quorum.  If you recall, Selectmen “struck” three voting members from the commission at their meeting last week, one of who was an environmental engineer. Selectmen replaced them with two friends of Cat Dam and one member of the E-20. None of the three can deliberate on this matter, as the hearing has been closed. So it is unclear why the Selectmen did any of this, as this issue will be decided on appeal.

Do newly appointed conservation commission members James Gilman, Alex Koines and James Marten truly wish to do all the work required of conservation commission members? Stricken members Debbie Cook and Sarah Charron put in lots of time in the office doing paperwork. Will we see any of these guys down there?

Should the Conservation Commission vote in favor of the NOI, a citizens’ group will appeal that decision directly to the state’s Dept. of Environmental Protection whose advisory boards have already weighed in on the matter.  Should the Conservation Commission vote against the NOI, the E-20 (i.e. the selectmen) will appeal the vote in Land Court, which could take a very long time.  Many of us could be dead before it is decided. So it would seem the E-20, which has survived quite well on delaying tactics, should be looking for a further delay and a no vote from the ConCom. Ironic, huh?

When the Cat Dam issue surfaced in 2007 the selectmen NEVER ONCE contacted its own experts, the Conservation Commission, on how to deal with the Cat Dam issue.  In fact, they voted to eschew the commission. All the minutes in red below are on the town site if you wish to read more detail.

My summaries are all bold face.

Selectmen’s Minutes 10/15/07 Coastal Zone Management (CZM) held out an enticement to the Cat Dam neighborhood: recommend a healthy operational schedule for the opening of the gates (increase flushing) and we’ll (CZM) pay for the new tidal gate. Anti-flushing neighbors said no. (See 10/15/07 Selectmen’s minutes)

Selectmen’s Minutes 12/03/07 – Here’s where the board of selectmen gets in trouble. The board of selectmen creates a special citizen’s board to advise it on the wetlands laws. IT COMPLETELY IGNORES ITS OWN ADVISORY BOARD, THE CONSERVATION COMMISSION, and Wetlands Laws. It doesn’t even mention Wetlands Laws. It wants the cat Dam neighborhood to decide the issue, and if it can’t, then selectmen say they will set the schedule.  

From the minutes of this same meetingSelectman Dormitzer stated that he feels this issue should stay amongst the neighbors. Selectman Dormitzer then moved that the control of Cat Dam be referred back to the neighbors, and reject the suggestion that the Conservation Commission become the manager of the tied gate. Selectman Carlson seconded the motion. There was a lengthy conversation about the management of the tide gate. Chairman (Gary) Vanderweil suggested the neighbors create a schedule and then the Selectman can give it to the DPW to implement it. This could be done until 2009, at which time all parties could meet again. There was then a lengthy conversation about who should be on what committee. Selectman Dormitzer then revised his motion. Selectman Dormitzer moved that the Selectman do not want to appoint the Conservation Commission as the authority to run and monitor Cat Dam. Selectman Carlson seconded the motion, the vote was unanimous. Chairman Vanderweil asked that Mr. Brown and Mr. Brooks agree on a committee and a schedule by January. If they can’t, then he said the Board would then set the schedule.

Selectmen’s Minutes 12/17/07 The Selectmen are flexing their collective muscles. They vote to NOT HAVE A STUDY, TO NOT TURN OVER THE OPERATIONAL CONTROL OF CAT DAM TO THE CONSERVATION COMMISSION. They VOTE to ignore the Wetlands laws and let Cat Dam neighbors decide what to do. You will note that have not yet heard a peep from Selectman Fred Koed on this matter. Whatever he said about this issue in 2007 was not considered worthy of being recorded in the minutes. Also, the Conservation Commission has not weighed in on the matter.

Selectmen’s Minutes 04/07/08 – Sometime between 12.17/07 and 4/07.08 Cat Dam neighbors implement a new flushing schedule via permission of the chairman of the board of selectmen.  In the ConCom minutes of 04/17/08 resident Richard Brooks says he told Selectmen they do not have the authority to implement a new flushing schedule – that regulatory compliances have to be met. This falls on deaf ears. Now, Conservation Commissioners are tuned in. maybe they were watching the Selectmen on TV. I was. ConCom member Sarah Charron, an environmental engineer, tells selectmen the new schedule falls under the Conservation Commission’s jurisdiction. It now needs a Notice of Intent.

Conservation Commission Minutes 04/17/08  – The Cohasset Conservation Commission has been inundated with information about Cat Dam issues.  William R. Griffin, Cohasset Town Manager states that Cat Dam and the tide gates are owned by the Town of Cohasset and have been operated on a schedule determined by a particular resident and have been opened by the Cohasset Department of Public Works based upon tides.  In the last year and a half there has been an urging to the Board of Selectmen by certain residents in the area that the tide gates be opened more frequently to allow for more flushing to take place and there has been a debate going back and forth regarding balancing algae versus mud. The Board of Selectmen thought that it would be great if the residents could come together with a plan that would balance the algae versus mud needs.  A committee was formed and a recommendation was given to the Board of Selectmen to increase the instances in which the tide gates are opened.  A couple of weeks ago the Board of Selectmen heard from both sides and from The Cohasset Conservation Commission and the Board of Selectmen voted to approve the revised schedule subject to the filing of a Notice of Intent application.

Richard Brooks from 68 Nichols Road states that there was no vote taken by the Board of Selectmen to put the new schedule into effect.  It was done unilaterally by the Chairman of the Board of Selectmen on March 14, 2008 and was done in spite of the letters that Richard Brooks from 68 Nichols Road sent to the Board of Selectmen as far back as February 3, 2008 advising the Chairman that you cannot do this.  There are regulatory compliances that have to be met.

Brooks spoke with CCC Agent, Paul J. Shea and told him that we are headed for a problem here.  Brooks gave CCC Agent, Paul J. Shea a chronology of Little Harbor and the schedule going back to 1840 and the schedule that is there has been in effect for 30 years before the Wetlands Protection Act was passed.  The schedule is controlled by the Wetlands Protection Act and hence is under The Cohasset Conservation Commission’s jurisdiction.

(Commissioner) Sarah E. Charron states that changing the tide gates opening schedule at Cat Dam meets the definition of “alter” in the Cohasset Wetlands bylaw. Charron understands that the Town of Cohasset is going back to the historical operation of the tide gates and believes that is what The Cohasset Conservation Commission will recommend because the Town of Cohasset does not want to be in violation any longer.  The new schedule was voted subject to approval so until that approval is given we are back to the default schedule.

Jason Burtner, South Shore Regional Coordinator for Coastal Zone Management, suggests first starting with the Wetlands Protection Act and where the jurisdiction of the resource areas involved lies to document the need or substantiate what is being proposed for the Notice of Intent application for changing the tide gates opening and closing schedule.  At a minimum the resource areas include land under the ocean, coastal beach, salt marsh and land containing shellfish.  Each of these resource areas has performance standards associated with them a number of which speak to the condition of the resource itself as well as how the resource areas provide support for habitat for fisheries and shellfish and those types of considerations.  Studies have been done such as the I.E.P. study from 1991 and the Camp, Dresser, & McGee study of 2000 that both indicated that the Little Harbor ecosystem was eutrophic.  Burtner states that the historic tide gate opening and closing schedule contributed to the conditions of eutrophication. Burtner says that his group worked extensively with Hull, Hingham, and Cohasset and has developed a robust tide gate Operation & Management plan which he has circulated around and has submitted copies this evening to all the concerned parties. The Operation & Management plan really articulates the history of the situation along with issues that need to be addressed and provides for technical assistance, a local review process and a mechanism for adaptive management.  There has not been sufficient new data about the condition of Little Harbor.  When no flushing occurs the bottom rises and the sediments settle out and Little Harbor becomes its own worst enemy.  The IEP and Camp, Dresser, & McGee studies point to the fact that historic tide gates design and operation are contributing to the progressive demise on inner Little Harbor’s habitat.  Little Harbor and inner Little Harbor are classified as Class S-A water bodies by the state’s surface water quality standards –  a relatively high standard for water quality.  As it stands now Little Harbor and inner Little Harbor do not meet the state water quality standards and the tide gate is implicit in that non-conformance as well.  Cheryl A. Casey of 29 Nichols wants to make sure all abutters to Little Harbor are notified when a Notice of Intent application is filed with The Cohasset Conservation Commission.  The Cohasset Conservation Commission will include all abutters within 300 feet of Little Harbor and a public advertisement will be printed in the newspaper

Selectmen’s Minutes 03/02/2009

Article 15 – Expense for Cat Dam Notice of Intent – Mr. Griffin explained the need for this article. Selectman Dormitzer stated that he felt filing the NOI for Cat Dam was grossly premature and asked if they could move the study to after the sewer project is complete. Selectwoman Quigley stated that the NOI was not an option, but is mandated by the Wetlands Protection Act and local Conservation Regulations. Chairman Carr asked if the Conservation Commission could come in and discuss this at a future meeting. Mr. Griffin will put them on the schedule.

Selectmen’s Minutes 03/23/09

Article 15 – Cat Dam Notice of Intent – Cohasset Conservation Commission (CCC) Chairman David Farrag addressed the Board, along with CCC member Sarah Charron. Several members of the Commission were also in attendance. Farrag addressed the Board and stated that they feel the issue is a compliance issue. He stated that if the Board does not move forward with the NOI, the DEP could step in and order the Town to follow their mandates and it could prove to be more costly. Selectman Dormitzer stated that the Board can only recommend the article; the Town will decide if it is funded. He feels that they should wait until the Town is finished with the Little Harbor Sewer Project. There was a lengthy conversation about the Wetlands Protection Act, as well as what the process of implementing the NOI would be, and what the timeframes are that the Town has to follow. Selectman Carlson moved to recommend Article 15, Selectwoman Quigley seconded the motion. Selectman Koed stated that he would like to get Town Counsel’s opinion on what the deadline is for the Town to file the NOI. Mr. Griffin asked the Board to put their questions in writing for him to forward to Counsel. After further discussion, it was decided the Board would wait on voting on their recommendation until the morning of Town Meeting.

It was practically impossible to summarize any of the meetings below. DELAY, DELAY, DELAY seems to be the modus operandi.  The Selectmen’s minutes are not yet posted for 2011.

Selectmen’s Minutes 10/25/1

Cat Dam Notice of Intent (NOI) – Chairman Quigley stated that the Board is in receipt of letters from both sides of the Cat Dam issue. She would first like to review the background of the Cat Dam NOI that is presently before the Conservation Commission. Town Meeting voted to expend the funds to create the NOI. An RFP was issued and awarded to CLE Engineering. Public hearings and public forums were held and again, public input was heard. The Board voted to refer the NOI that was prepared by CLE Engineering to only Commission that has regulatory authority over such issues;, the Conservation Commission. Chairman Quigley stated that by entering into this discussion, she feels that the Board is intervening into a permitting process. Selectman Koed asked what the Board would do if they heard that something they had submitted could be improved would the Board ignore that possibility?

Chairman Quigley stated that none of the Board of Selectman has the expertise to evaluate the NOI and that is why she argued it should go before the Conservation Commission. Selectman Koed stated that he took an oath of office to do his best for the Town. He feels that what makes this [Cat Dam] different then Straits Pond is that when those decisions were made, the Board did not receive letters. Selectman Carlson stated that he feels they owe it to the Town’s people {to hear from them}. Selectman Jenkins stated that he did not think Cat Dam was a Town Issue. After further discussion, Selectman Carr stated that he would like to hear from one person from each side. He stated that the Board had read the letters and wanted the statement to be brief. Mr. George Chamillard of 400 Atlantic Avenue wants the science reviewed as they feel the studies used to create the NOI were outdated. Mr. Steve Brown of 275 Jerusalem Road stated that the NOI should remain in front of the Conservation Commission as they have access to the technical expertise needed. If needed, the decision could always be appealed. Selectman Jenkins stated that he sees that this could cause an additional cost to the Town over time. He stated he would rather see the residents of Inner Little Harbor work together to review the NOI. Selectman Carlson stated that the residents did come together and they did come up with a plan and perhaps that should be revisited. Selectman Koed would like the NOI reviewed to address the make?up of the committee. Selectman Carr asked Mr. Griffin if this could be done. Mr. Griffin stated that the Board could vote to pull the NOI back, review and then re?submit it. Selectman Jenkins moved the Board of Selectmen pull the Cat Dam NOI back for the Board of Selectmen to review. Selectman Koed seconded the motion and the vote was 3?2, Selectmen Jenkins, Carlson and Koed in favor. Mr. Griffin will prepare the letter to the Conservation Commission.

Selectmen’s Minutes 11/29/10

Cat Dam NOI Discussion – Chairman Quigley asked for the Board’s input as to what they would like to do with this issue. Selectman Koed asked if it would be more efficient to have a committee to review the NOI. Chairman Quigley asked who would be on the committee. Selectman Koed said the areas on each side. Chairman Quigley asked if he meant the citizens. Selectman Carlson stated that they have the report from the citizens (committee that was established in the past) and the report from CLE Engineering. He suggests the Board start with that. Selectman Carr stated that he would support a committee. Selectman Jenkins stated that he would support Selectman Koed has been saying and get a committee from both sides. Selectman Jenkins said that the Town couldn’t spend any more money on  this issue as it is a no win for the Town. He feels that both sides could work together and put together an NOI that is acceptable to both sides. He does not think the Town itself should be involved with this. Selectman Carlson stated that the Board has to get something back to the Conservation Commission. Once that occurs, then Conservation holds their hearings. Chairman Quigley stated that the only Town entity that has any regulatory jurisdiction on this issue is Conservation. She stated that the citizens and the Board have tried in the past to work on this issue. Significant information has been presented by both sides outlining their concerns and their recommendations; the most recent of them being submitted the day of this meeting. She stated that if this is the course that has been chosen, then she suggests that it is time to deal with it. Chairman Quigley added this issue has been discussed since 2007 and here it is 2010 and it’s back before the Board. She would be opposed to starting the process all over again. She feels it would be a waste of both the Board’s and Citizen’s time. If the Board feels it is in their jurisdiction to make a decision regarding this, then the Board should move it forward. Selectman Koed asked to go to page 27 of the NOI where it addresses the Committee. He would like the Committee to be formed before the NOI is recommended to Conservation and he would like Citizen input on the make up of the committee. There was an extensive conversation about the proposed committee in the NOI and what the Board would like to recommend to the Conservation Commission. Chairman Quigley stated that the make?up of the proposed Advisory Committee in the NOI was based on the Straits Pond model. Selectman Koed stated that he would like a group of citizens to review the NOI and compile their comments. Chairman Quigley stated that except for the most recent letters submitted, the Conservation Commission everything has already been provided to the Conservation Commission.

Chairman Quigley then opened up the discussion to the audience. Mr. Salvatore Lanuto of 45 Little Harbor Road stated that he did not think the 19 names were not supposed to be a committee but more of a composition of the abutters most directly affected. Chairman Quigley asked to clarify if they would be acting as a Citizen’s Group that is hiring a new engineer and filing a new NOI. Mr. Lanuto said that it would be more of a modification of the existing NOI. Mr. George Chamillard of 400 Atlantic Avenue stated that it was more an issue with the governance of the dam and what the governance model going forward would be and that there are many issues that need to be looked at with a group of citizens. They feel the model that the town has enjoyed for years has worked. He stated that the schedule that Mr. McNulty has submitted over the years has worked and that the citizens have paid for the maintenance of the dam. He then handed out a flow chart showing a newly proposed Advisory Committee called the Inner Little Harbor Preservation Association (ILHPA). He stated that this association would have bylaws and would get the community to work together. Mr. Stephen Brown of 275 Jerusalem Road stated that if it were a matter of aesthetics they would all get along. However, it is a matter of law and the Wetlands Protection Act. Mr. Brown stated that the Board could approve the model that Mr. Chamillard presented, but he does not think it has been successful. He added that the Board could submit it and then discover that it does not comply and there would be an appeal and a large expense. He stated that if they want a committee, why not have State and Federal people, people from the regulatory groups and the Board of Selectmen be on the advisory group. Selectman Jenkins asked Mr. Brown if he thought the first NOI covered the government requirements. Mr. Brown stated that he thought it would and he also thought that the recommendations that Mr. Chamillard made were good but that they could work with the existing NOI. Mr. Thomas Killilea of 44 Little Harbor Road addressed the Board. He stated that twenty families wanted to participate so they hired experts and bring forward tonight fresh and current data. He stated they found flaws in the work of CLE Engineering. He stated that they are in a position to present a new NOI before Christmas so that the Conservation Commission will have their time to review it. Mr. Killilea stated that the quality of what they will be submitting is much better and that it is a practical solution. Selectman Jenkins stated that they should realize that if the Board of Selectmen should accept this proposal and the NOI submission is changed, it should be recognized that a lot of people have already put in a lot of hard work on the existing NOI.

There was then an extensive conversation amongst the Board. Selectman Carlson stated that the Board has heard a proposal from abutters that the dam would be open more often and thus putting less pressure on the gates. He does not know if they could get a committee together and up and running to review both proposals and to come up with a recommendation in the time frame needed. He suggests the Board look at the final report of the abutters and make the comparison themselves between that report and the CLE NOI. Ms. Susan Playfair of 249 Jerusalem Road stated that there is a lot of folk lore about how they got to this point and that everyone should review the history. She stated that she goes back to what Mr. Brown has said and that there are stated people that are paid to protect the dam. Mr. Richard O’Connell of 249 Jerusalem Road stated that he was on the original committee from a few years ago that worked with other abutters to create a schedule. They proposed a schedule that was ultimately rejected by many people. He stated that the issue is aesthetics, which he does not mind. He added that the current NOI is based on pre?existing data, but that he would take a look at Mr. Chamillard’s proposal. He thinks that people need to keep in mind that in the end, Inner Little Harbor may need to be tidal in its natural state. Mr. Bristol Rogers of 68A Nichols Road addressed the Board stated that he is new to Town and that what he says is a break down in the democratic process. He urged the Board to create a committee as he feels it will help create a happy community.

Selectman Koed that they need to decide if this is the best NOI that they can create. Selectman Carr stated that he felt there are improvements to be made; he would like to tighten up the list (of Advisory Committee members) and look at the new data. Chairman Quigley stated that the Board has two meeting scheduled in December on the 6th and 13th after that the Board can make a decision and file with the Conservation Commission by January 2011.

Selectmen’s Minutes 12/06/10

Chairman Quigley asked if everyone had a chance to review the materials that had been submitted by both sides of the discussion. Mr. George Chamillard of 400 Atlantic Avenue stated that his group (going forth will now be referred to as the Environmental 20 Group) had not had a chance to give everyone a copy of their documents. Chairman Quigley stated that now that is has been given to the Board of Selectmen and is being discussed, it is a public document.

Chairman Quigley asked if the two sides had met. Mr. Richard O’Connell of 249 Jerusalem Road stated that they had a four-hour meeting where most of the time was spent talking about alternatives. Selectman Koed stated that he felt that the Environmental 20 document was more of a submissive document and felt that they would have to put some sort of combination of the two together for the Conservation Commission. Selectman Carlson suggested that both (the CLE NOI and the Environmental 20 document) be submitted with an NOI to the Conservation Commission and that they alternate each approach for four years. He stated at the end of the four years the Board could then submit a new NOI with the new data that is gathered during that four-year period. Chairman Quigley stated that the Conservation Commission has asked that the Board file the NOI by the end of this year. There was then a brief discussion about this suggestion. Selectman Carr asked if the groups had come to any sort of consensus together. Mr. Stephen Brown of 275 Jerusalem Road stated that they did have a very good conversation but that the groups could not agree on an opening schedule for the dam. Chairman Quigley stated that although she maintains that the Board is not qualified to review these submissions Science and Engineering, she did review everything to see if any concerns that had been raised had already been addressed in the original CLE NOI. She stated that the Environmental 20 Group had raised concerns that compliance standards were not met, and that other alternatives were not considered [in the CLE NOI]. Chairman Quigley stated that she does feel these concerns were addressed by Mr. Oaks in a letter dated October 14, 2010.

Chairman Quigley stated she knows there are dueling engineers and opened up the discussion to the audience. Mr. Sal Lanuto of 45 Little Harbor Road and the Environmental 20 Group stated that they had hired an engineer and a scientist to review the report.        He stated that the proposed NOI is a radical departure and that too much of a change could have a damaging effect to what is around it. Chairman Quigley stated that this is the opinion that they are putting through but that she felt it was unfair to say that Mr. Oaks did not use compliance. In addition, it was reviewed for an informal peer review by Coastal Zone Management (CZM). Chairman Quigley stated that in Environmental 20’s report it states that the CLE NOI would not meet compliance however the CZM review states that it clearly would. Ms. Adele Janssens of 20 Nichols Road stated that they reviewed the CZM reports that state that the gates being closed causes the water quality to rapidly deteriorate and they cannot find any data that supports that conclusion. Chairman Quigley stated that she has the email from Jason Burtner of CZM that states that the water quality does deteriorate. Chairman Quigley stated that she feels they should send some sort of compromise to the Conservation Commission. Selectman Koed stated that he feels that the Board has to make the decision and cited the West Corner Culvert as an example of different groups working together.

Chairman Quigley stated that the Town owns the dam and has the easement in perpetuity and referred to opinions from Town Counsel. Selectman Koed stated that the ownership of the dam was still unclear to him. Chairman Quigley stated that she would get a copy of the easement to the Board. Selectman Koed then referred to the proposed schedules saying that the Environmental 20 schedule was conservative vs. the CLE proposed schedule. Chairman Quigley stated that the two reports are completely opposed and that both reports need to be read so the Board can submit a proposal to Conservation. She added that she would be amenable to submitting both proposals to Conservation for their consideration. Selectman Koed stated that he felt that the Board still needs to say what the Board wants. Selectman Carlson stated that he read all of the reports and feels that there have been two fine groups looking at Cat Dam. He would like to see what happens over four years. Mr. Chamillard addressed the Board again. He distributed a proposed schedule and reviewed how they arrived at the proposal. He stated that more flushing equals more mud and odor and would suggest that the Board pursuing this proposal. He stated that there are so many things wrong with the CLE NOI. He feels that that their proposed schedule addressed many issues brought by both sides. Chairman Quigley stated that she was appreciative that compromises have been made, but that she believes sporadic opening and closing is not as healthy as consistent opening and she therefore is not supportive. Mr. Chamillard stated that he accepted her point, but at the same time he knows there are a lot of issues with that [consistent opening].

Selectman Carr asked Mr. Brown how far apart he was from the Environmental 20 proposal. Mr. Brown stated that he tried to simplify the issues by looking at aesthetics and the environmental issues. He sees the two proposals and feels that it would be worthwhile to make a compromise. Mr. Brown submitted a chart showing a different schedule for the period of May to November.

Selectman Carr stated that it was a good piece of work but asked how it was different. Mr. Brown stated that the dam would not be open fully, but it would be open lower. He stated you would not see low tide. His chart shows a compromise of the two proposed flushing schedules. He stated that testing could be done to see if it is working. Mr. O’Connell addressed the Board once again. He stated that he is one of the only original members of four members of the original Cat Dam group present this evening. He stated that being able to “dial up and down” the amount of flushing made sense and that what really needs to be controlled is the exposure of the mud. Ms. Janssens then distributed her ILH Water Quality Analysis report put together by Environmental 20 analyzing the data by Jason Burtner and Krahforst. Ms. Janssens reviewed the report in great detail for the Board. Mr. Chamillard stated that the point of their analysis is that the data is not conclusive, some of the data is dated that some of it is misleading.


Doctor Edward Woods of 231 Jerusalem Road stated that he is speaking on a very general basis. He stated that some of his best friends are on the side he does not agree with. He feels the Bow Street body of water is very comparable to the area of discussion. He said the Bow Street Culvert is an illustration of how the free passage of water going under Bow Street shows nature taking its course. He feels that this issue really needs to be put up to Conservation.

Mr. Thomas Killilea of 44 Little Harbor Road stated that his interest lies with the waterway which surrounds his property. He stated that the dam is not on Town property and that they researched the deeds extensively. They want to propose something that is simple and want to file an NOI as soon as possible. He stated that they have the Science and it would be on time for the January 2011 filing date. He said he is begging the Board to consider their proposal and vote on it. Mr. Brown stated that he would respectively ask that they be given the Environmental 20 submission to review and that it is premature for the Board to vote.

Chairman Quigley stated that she was not ready to vote and would like to give Mr. Burtner a chance to respond. Selectman Carlson suggested that perhaps the Board hold the vote until after the first of the year. Selectman Jenkins stated that he thought the Board should vote on the 13th and that he does not feel the Town should be involved. He stated there are too many other critical issues that should be being considered by the Board and this is not one of them.   The Board agreed to take everything under advisement and vote on the 13th of December.


Selectmen’s Minutes December 13, 2010

Chairman Quigley stated that there were a couple of issues that she should address before the Board begins this discussion. There was a question of whether or not the Town owns the dam. Town Counsel has given the Board an opinion that they have an easement that is on the deed. Based on facts, Attorney Hucksam feels the Town owns the dam and the Janssens and the Bakers own the land that the dam is on. Chairman Quigley asked if the opinion was sufficient information for Selectman Koed. He stated it was. Chairman Quigley then read an email aloud from Jason Burtner of CZM who suggested a public forum be held to address the “fundamental misconceptions and misinterpretations of the data and associated resource issues by the ‘Environmental 20 Group’”.

Mr. Burtner also stated in his email that the CLE report was peer reviewed and that “the information and analysis provided in the report is accurate, reasonable, well?vetted, and defensible”. Selectman Koed stated that he was confident that all experts are confident in their reports.

Mr. Steve Brown of 274 Jerusalem Road addressed the Board and stated that they got a copy of the Lucas Report (Environmental 20) and that it has not been publicly vetted by another group. The CLE report has been the subject of multiple public meetings. The EPA and other regulatory groups also vetted it. He stated that what he noticed was that more flushing was good. Mr. Brown also reviewed information from the Camp, Dresser and Magee report from 2000 and many other facts about other bodies of water in Town that have flushing (the Cunningham Bridge area, Peck’s Meadow and Treats Pond).

Chairman Quigley stated that there have already been two meetings on this subject and many other meetings over the years and therefore the Board has plenty of information. The important thing this evening is to move forward and to make a decision this evening as to what NOI should be forwarded to the Conservation Commission. Chairman Quigley is giving each side five minutes. A coin toss was held and the Environmental 20 Group won the toss and presented first. Attorney Adam Brodsky representing the Environmental 20 Group addressed the Board. He reviewed who his clients were and stated that there is a misconception that their concern is not for the environment but for the aesthetics. He stated that this not the case, but that instead the two sides simply disagree. He stated that they do want to compromise. He added that many in the Environmental 20 Group agreed with the original group of four, some disagreed and this brought forth a thoughtful science based issue. He said that the opposing group embraced the committee of four, but is now going with the CLE NOI. Mr. Brodsky stated that the Environmental 20 proposal is a reasonable compromise and is in the Town’s best interests. He then reviewed the flushing schedule and stated why they feel it is better than the CLE’s proposed schedule. He stated that they feel the property owners should be involved and that the Cat Dam area is much different than the Straits Pond Watershed Area. Mr. Brodsky said that they agree that the Town does own the dam with an easement on the property that is under it. He stated that if the Town does not have the support from the Environmental 20 Group, from a regulatory point of view, it will cause a very long, drawn out battle over the permitting.

Mr. Brown stated that he would like to point out a couple of factual errors. He feels there are 19 people in the opposing group. He does not feel the Environmental 20 proposal has been peer reviewed. He stated that the Selectmen were asked to look at the NOI because some citizens felt their concerns were not heard. He stated that they have now spent three meetings and significant time on the issues. The Board has heard about several items that illustrate their concerns with the data presented by the Janssens. The Board has now ensured that the citizens have now expressed their concerns. Mr. Brown then stated that the DEP has reviewed the CLE report and given it a number. The Board now has the ability to pursue the Conservation Commission and could in good conscience file the CLE NOI and as Selectman Jenkins has stated, “get back to more important work”. Selectman Carr thanked both sides for their hard work.

Chairman Quigley stated that she believed it was now up to the Board. She stated that she felt their were three issues to discuss and it may make sense if they did so one at a time: Which NOI would the Board like to recommend, which operating schedule would the Board like to recommend and which Advisory Composition would they like to recommend. Selectman Jenkins stated that he is a Civil Engineer and has listened to both sides and that he can’t come up with a conclusion and doesn’t see how the Board could either. He feels the only way they know what the results are would be through testing. Selectman Carlson said that the Sewer Department did take a lot of measurements so there is a baseline. Chairman Quigley added that plus they have the two years of testing from CZM and CSCR. She added that the issue of sewering would address the bacteria and only the bacteria. Taking that into considering and everything else presented, she agrees with Selectman Jenkins. She feels that these decisions belong in the hands of the Conservation Commission and that when you are a permitting Board, it is different, the Board has to follow law and they have something very definitive to follow with which to make their decisions by. The Conservation Commission has a lot of experience and are a good group of people; they deal with science and fact rather than politics. Selectman Koed wondered if the Board could clarify the letter from November 9th re: the withdrawal of the NOI and that it will require a new filing of the NOI. Chairman Quigley stated that what triggered the entire situation was the change to the schedule and that the change was a violation, which triggered the need for an NOI. The Conservation Commission then required that the Board of Selectmen file an NOI. Town Counsel agreed this needed to happen. Selectman Koed stated that there has been talk about immediate repairs to address some structural issues and asked if those should be looked at now. He wondered if perhaps they should look at some form of automation. He stated that the Board is the applicant and that the Board has never had the application before them. Chairman Quigley said that the standard procedure of submitting an NOI was followed. It was followed for this NOI as it was for those that came before it.

She stated that she had asked for a copy of it and received it and read it, and that any of the other Selectmen could have done the same.  If a citizen’s group had not brought it forward, it would have followed the same procedures as many NOIs before it. She stated it may make sense to look at automated gates in the future, but right now Conservation has asked the Board to submit an NOI by the end of December or the beginning of January. Whatever happened 2.5 years ago caused a violation and the Town is now required to submit an NOI. Town Counsel has agreed and therefore the Board needs to submit an NOI. Selectman Koed asked if they had to pick one. Selectman Carr asked if they could submit more than one NOI.               Chairman Quigley stated that the had talked with Mr. Lombard, the Conservation Agent, Paul Shae and the Chairman of the Conservation Commission to see what the Board could do. She said the Board has two options to pick from. She stated she looked in to what options they would have because she thought the Board would come to an impasse.     If both NOIs are filed, and the CLE NOI is submitted, the Town would not incur any additional costs and if Environmental 20 wants to engage Attorney Brodsky they can do so. This way the decision is back to the Conservation Commission. Selectman Carr stated that he thought it made sense to present two NOIs.

There was then a discussion about how the Board should break up the votes. Chairman Quigley suggested that they could vote to recommend both options. Selectman Jenkins moved to recommend the Environmental 20 Group. Selectman Koed seconded the motion. Chairman Quigley stated that she thought the Board needs to decide if the majority of the Board wants to submit both. Selectman Carlson stated that one option should be tried for a few years and then try another. Selectman Koed stated that he felt this process (Env. 20) was a more incremental approach and that there was more neighborhood involvement. Selectman Carr asked about the idea of putting forward more than one option as they have heard a lot of information over the past three weeks. Chairman Quigley stated that there has been a lot of discussion about doing something lesser, not as drastic. However, she stated that she has heard that there are residents who think differently and professional environmental individuals who work specifically with marsh restoration and this type of project. These people are saying that the CLE is a valid report contrary to the E20 and what Lucas Engineering has proposed. She feels it would be permitted otherwise the DEP would not have assigned it a permit number. Selectman Carlson stated that he thought both would be permitted.

He said the Board of Selectmen is a political Board and that is one of the reasons they wanted a political body to hear this. Chairman Quigley stated that a decision has to be made. Selectman Carr said that he thought the Board should recommend both to the Conservation Commission as he sees merits in both. Chairman Quigley stated that she thought that option would only be fair. The vote was 3?2, the 2 being Chairman Quigley and Selectman Carr. Only the Environmental 20 NOI will go to the Conservation Commission.   Selectman Carr moved to include the CLE NOI. Chairman Quigley seconded the motion. The vote is 2?3, motion fails, Selectmen Koed, Carlson and Jenkins against.

The Board then discussed who would comprise the Advisory Board. Selectman Carlson would like to see a scientist on this board, but not one that has weighed in on the issue before. Selectman Koed stated that he comes down to local control, the algae, the flushing, the erosion and the safety issues. Selectman Jenkins suggested that it be a seven-member board. Selectman Carlson stated that the experts should advise but not be on the Board. After further discussion, Selectman Jenkins proposes that the Board comprise of 9 members, 3 professionals, 4 from the majority. After further discussion of the membership, Selectman Jenkins moved that 9 (nine) people be appointed to the Advisory Board. No second. Selectman Koed moved that when the Board submits the NOI to the Conservation Commission, there be an Advisory Board that is comprised of 9 (nine) members. 4 (four) from the advocacy (odor and mud flats),2 (two) concerned with maximum flushing, and 3 (three) independent experts.Selectman Koed stated that this where they get away from the model. He said we want to maintain some sense of control and that he would rather stick to 5 (five) citizens. Selectman Jenkins seconded the motion. The vote was 4?1 (Chairman Quigley against).

Mr. Lombard stated that when the E20 NOI goes before the Conservation Commission someone has to present it. Selectman Koed moved that the Board be given a written estimate from Lucas Environmental for the cost to present to the Conservation Commission. Selectman Carr seconded the motion and the vote was 4?1 (Chairman Quigley against).

© Copyright 2011 Tanna K, All rights Reserved. Written For: Tinytown Unleashed