HomeMy WebLinkAboutNo. 3 Attachment 1: DEP Fraud LAW OFFICES OF PAUL REVERE
LAW OFFICES OF PAUL REVERE, III
226 River View Lane
Centerville, Massachusetts 02632
(508) 237-1620
revereiii@aol.com
To: Craig Crocker, COMM Water Superintendent
Fr: Paul Revere, III
Re: 810 Wakeby Road and Disposal of Dredge Spoils in Zone II
Da: April 20, 2021
Thank you for speaking to me recently about this matter. As we discussed, I
am sending this email to you asking for the Centerville-Osterville-Marstons
Mills Water Department’s (“COMM”) support in my client Anne Salas’ and
several of her neighbors’ efforts to stop the unlawful disposal of dredge spoils
at the Gifford Sand and Gravel property (Keyes Pit) at 810 Wakeby Road in
the Zone II contribution area of water supply wells operated by COMM. In
addition to support, I would like COMM to consider taking the lead in bringing
this matter to the attention of relevant state and town authorities.
Background
Specifically, Anne Salas and her neighbors have been clients of mine at
various times regarding various practices that Gifford Sand and Gravel and its
principle, Christopher Keyes, has undertaken at his property. The history of
this property is long and complicated and includes unlawful sand and gr avel
operations and waste disposal resulting in the Town obtaining a permanent
injunction against any business use for the vast majority of the property. Mr.
Keyes latest scam is to dispose of dredge spoils on his property under the
pretense he is just bringing in needed fill.[1] Based upon my review of the
applicable law, the disposal should not be occurring at 810 Wakeby as it is
located in a Zone II groundwater protection district. Clean fill could be placed
on the property, but dredge material would not because of its salt content.
810 Wakeby Road is Located in a Zone II
810 Wakeby Road is in the western part of the Town of Barnstable in the
village of Marstons Mills. Attached is a map developed from the Town’s GIS
system which shows 810 Wakeby Road in the upper left corner and outlined
in blue. As you can see, the property is located in the GP or Groundwater
Protection District which is defined by the Zone II’s to water supply wells in the
Town of Barnstable. (Nearby Mashpee and Sandwich drinking water wells
may also become affected by the salt content as well as other
chemicals.) See Barnstable Zoning Code Sec. 240-35.B.(1). This conclusion
also is confirmed by the DEP water supply maps which are also attached.
Regulatory Scheme
The Massachusetts Department of Environmental Protection regulates
dredging and the disposal of dredge spoils through G.L. ch. 91 permitting and
a related program known as Section 401 Water Quality certification.
Specifically, G.L. ch. 91 regulates land below mean high water to protect
public rights in the intertidal zone and public land below mean low water along
the ocean. As such, a G.L. Ch. 91 permit is required for dredging as it occurs
in these areas. Dredging requires disturbing the sea bed and, when a person
applies for a Ch. 91 license to dredge, the applicant must also obtain a
Section 401 Water Quality certification that the dredging will not impact
surface water quality by placing sediments or pollutants into the water column.
While the 401 certification process is intended to address primarily surface
water and, obviously does at the dredge site and any water based disposal
site, the DEP also regulates disposal at an upland site. The regulatory
requirements are fairly minimal. The applicant must not dispose of saltwater
dredge spoils in a wetland or within a Zone I or II to a public water supply with
the exception that disposal in a Zone II is allowed if the dredge spoils are
tested to determine their ionic conductivity which is a surrogate for salt
content and the balance of the chemical analysis shows no potentially harmful
chemicals. As such, an applicant must designate their disposal site and
whether it is located in a Zone II as part of its Section 401 application.
In every circumstance that I have been involved, in attempting to permit
disposal sites in a Zone II, the sites do not get permitted because even if the
chemical analysis passes the minimum standards, the salt content of
saltwater dredge spoils is too high to pass the conductivity test and rinsing of
soils to remove salt is not economically feasible.
Keyes Scheme to Avoid Testing and Dispose in a Zone II
Keyes’ scheme takes advantage of the DEPs’ failure to apply the conductivity
test requirement to amendments to existing water quality certifications.
Specifically, persons who propose dredging first obtain their permits for a non -
Zone II disposal site. The applicant then proposes to amend the application to
have 810 Wakeby Road as the new disposal site. The project’s proponent
(typically through their surveyor or engineer) is required to discern and
disclose whether or not the proposed site is in a Zone I or II area, but in this
matter apparently did not.
The DEP sends that amended application to the Barnstable Conservation
Commission which reviews the project but only ensures that the disposal site
is not located in a wetland. When the Conservation Commission reports that
Keyes’ 810 Wakeby Road property is not in or adjacent to a wetland, the DEP
approves it because they are not made aware that the property is within a
Zone I or Zone II water protection district.
By way of example, Henry Blair obtained approval to dredge around his
office building and related marina slips in Barnstable Inner Harbor in
Barnstable Village. On January 5, 2021, Mr. Blair asked to amend his permit
to allow the dredge spoils to be loaded onto barge, shipped by barge to New
Bedford, unloaded in New Bedford, and trucked back to 810 Wakeby Road for
disposal. A copy of the amendment approval from DEP issued seven days
later on January 12, 2021, is attached.
The DEP contacted Darcy Karle and learned that 810 Wakeby Road does not
contain wetlands. The DEP understandably assumed that the licensed
surveyor or engineer would have disclosed the fact that the Keyes Pit was in a
Zone II wellhead protect area which is why the DEP conductivity test was not
required or performed for the Blair amendment. The DEP issued a permit
based on an email from Darcy Karle who in her capacity would have only
looked at a wetland map, not a water protection district map. The DEP error
was a result of being deceived by the applicants and their representatives who
figured out how to manipulate the system at the expense of public water
supplies.
I also am aware that the Mashpee Neck Marina[2] project disposed well over
fifteen thousand yards of saltwater dredge material between late 2018 through
early 2021 at Mr. Keyes’ property and also apparently failed to disclose that
the property is located in a Zone II.
Summary
As I discussed with you, my client intends to bring this issue to DEP and other
interested parties. [3] We would like COMM’s assistance in alerting the DEP
that they made an error (which was a result of essentially being deceived by
not being provided necessary information) and we will request that the DEP,
at a very minimum, deny any further dumping of dredge material in Key’s
property.
Further I would like COMM to consider taking the lead in bringing this matter
to the attention of relevant state and town authorities with my and Ms. Salas’
group’s assistance. I suggest this because COMM has a vested public interest
in protecting its public water supply wells and, as such, the DEP and Town of
Barnstable will be more likely to take immediate and aggressive action if a
request comes from COMM.
This email is intended to provide background information and I would like to
set up a telephone call or meeting to discuss this matter further.
The relevant regulatory personnel and their contact information are
:
Lisa Rhodes and David Wong
MADEP
One Winter Street, 3rd Floor
Boston, MA 02108
Darcy Karle, Conservation Administrator
Barnstable Conservation Department
200 Main Street
Hyannis, MA 02601
Please contact me at 508-237-1620 or revereiii@aol.com.
Paul Revere, III
[1] Ms. Salas requested zoning enforcement and the Town has concluded that the disposal does not
violate the injunction as a property owner can regrade and fill their property without necessarily engaging
in business. [2] Mashpee Neck Marina, Inc. 21 Frog Pond Close, Mashpee, MA 02649. CLE Engineering