HomeMy WebLinkAboutSettlement Work Group StatementBaxter Road Erosion Protection Settlement Statement
Given that the Department of Environmental Protection (DEP) issued a Superseding Order of
Conditions approving the geotube structure and related mitigation and monitoring program, and given the costs and risks for all parties of engaging in the pending legal actions, designated
representatives of the Board of Selectmen (BOS), the Nantucket Conservation Commission
(ConCom) and the Siasconset Beach Preservation Fund (SBPF) have been meeting in a work
group (composed of Rick Atherton, Matthew Fee, Ernest Steinauer, Andrew Bennett, Joshua
Posner, and Amos Hostetter) to discuss a possible resolution of the existing conflicts related to the interim permitting of the 900-foot geotube project installed in the winter of 2013 and 2014 in
the northern Baxter Road area under a 30-day Emergency Certification Order issued by the
ConCom.
The major conditions that exist and require resolution, either by mutual agreement or determination by the legal system, are:
• The BOS granted approval to SBPF to use Town-owned land for the installation of the
geotubes.
• The geotubes were installed under a 30-day Emergency Certification Order issued by the
ConCom and have remained in place since the winter of 2014.
• The ConCom denied the project under the follow up permitting process.
• SBPF appealed the ConCom decision.
• The DEP issued a Superseding Order approving the project.
• The ConCom appealed the Superseding Order.
• Thus, there are pending appeals of the local Order issued under the Wetlands By-Law
and of the Superseding Order issued under the state Wetlands Protection Act.
Recognizing that no party will be fully supportive of all aspects of any compromise solution, the discussions have focused on several ways to avoid the risks of leaving the courts to make
decisions impacting Nantucket and the integrity of the local Wetlands By-Law. Therefore the
working group fully supports a settlement of the appeals and recommends approval and issuance
of a local Order of Conditions by the ConCom to permit the project.
The key components of the mutually acceptable settlement that provides for local decision
making and control include the following:
• ConCom will open a public hearing to consider a new Notice of Intent that will request an Order of Conditions that will address matters outlined below, in addition to detailed conditions for an erosion-control project of this type;
• The permit will allow the project to remain in place for a 3-year permit period, as
constructed and permitted by the State Superseding Order. This will include the
addition of a fourth geotube tier on designated lots, the installation of returns at either end of the structure, and related vegetation and drainage.
• All legal appeals will then be withdrawn, as will the SBPF application for a
4,000+ foot rock revetment.
• SBPF will not apply for additional permits for its desired expansion of the project
until January, 2018, and, if approved, expansion of the erosion protection will not
be constructed before September 2018, about three years from the issuance of a
local Order of Conditions.
• It is being concurrently arranged that SBPF and specific property owners will
voluntarily provide alternate access to northern Baxter Road (avoiding the need
for a Taking) and also provide One Big Beach agreements with the Town prior to the issuance of an Order of Conditions.
This recommendation is also made in light of a vote by the ConCom to settle the litigation along
these terms. However, it is recognized that there are no precedents, pre-conditions or
expectations for any future ConCom actions. All parties recognize that the ConCom is the regulatory body with the responsibility to make decisions in this matter, subject to the established appeal process, if a party chooses to pursue such a course of action.