Last week the Conservation Commission held its first hearing on the permitting of the Cat Dam NOI including an O&M (operating and management) plan for the tidal gate. Frankly, I was disappointed in the quality of the town's engineering consultant's presentation. Fortunately, representatives from some of the environmental regulatory entities were in the audience and filled in the gap at the time and with a subsequent email addressing questions posed by ConCom. More disappointing is that politics are still playing a role in this important decision.
I successfully lobbied the BoS to have this issue moved to ConCom quite specifically to place it with a permitting board whose decisions would not be influenced by politics but based solely on federal, state and local regulatory laws.
Inner Little Harbor does not meet the water quality standards for SA classified waters and the many professional reports to date attribute this to the lack of tidal flushing due to the limited opening of the tide gate/dam.
ConCom's first and only priority is to uphold the environmental regulatory laws: politics have no place in their deliberations. Their decision must be based on data, fact and law and it must hold the environment above the vested interests of abutters.
Now that's not to say that whatever decision is made should be punitive to the abutters; nobody is suggesting that. Nor can it be punitive to the environment.
So, realistically, some compromise must be achieved that satisfies the law, achieves a higher water quality for ILH (which both sides profess to desire), allows for future improvement in water quality and yet does not unreasonably affect the abutters.
Herein lies the problem. Abutters who champion the environment are willing to agree to an adaptive management plan that has oversight by representatives of environmental regulatory entities and abutters. Others argue for the status quo (a recurring theme in Cohasset) and have retained an attorney to represent their interest and promise a law suit if the decision is not to their liking.
I have great respect and admiration for our Conservation Commission and have every confidence they will make the right decision despite this unacceptable intimidation. If they don't, most likely the EPA will step in and impose an O&M independent of local considerations.
12 comments:
The very abutter's that Ms Quigley states 'champion the environment' are the very ones that are polluting the Lagoon with their seeping effluent through cess Pools. Ms. Quigley does not point out the severe deficiencies in the Proposal including data that doesn't support the proposal and most importantly the proposal is dangerous and could directly cause deaths due to high currents. Ms Quigley would have let this proposal go through rather than revise it, make it safer.
My opinion is not uninformed. I read the previous engineering reports, testing reports, documentation provided by individuals on both sides of this issue, EIP and the NOI; held numerous discussions with representatives from the environmental agencies who have education (PhDs) and experience in environmental sciences; and had many lively discussions with Dick Brooks (GRHS). Have other selectmen done as much?
As for letting the NOI proceed through the legal permitting process, it was prepared by a qualified engineer with environmental experience and was informally reviewed by a number of state environmental regulatory entities. Individuals far better qualified to judge the NOI than I.
I have confidence in and respect for our Conservation Commission and do not think it is wise for the BoS to subvert their authority.
1. Ms. Quigley apparently feels that the democratic process may be jettisoned in favor of the pursuit of the goals with which she agrees. Of the abutters on Inner Little Harbor, approximately 80% support an increase in the flushing of Inner Little Harbor (not the “status quo”, as she misrepresents) that balances the environmental benefits against the detriments that will be experienced by these abutters. We have supported leaving the gates open more days each month, and a longer period during the winter. The remaining 20%, with whom Ms. Quigley identifies, wants the maximum flushing with no balancing, citing the 20%’s flawed and poorly done report that did not examine any alternatives and which glossed over (or did not even examine) many important safety, health and environmental concerns.
2. Ms. Quigley apparently has no respect for observing due process when it hampers the pursuit of the goals with which she agrees. The facts are that the Selectmen, who supposedly presented the NOI to the ConCom, had never seen the NOI, much less endorsed it. The 80% majority simply asked that the Selectmen take control of the process of which they were the unknowing sponsors. She objected to this, and sought to use her power to quell any opposition, following in the footsteps of Mr. William Bulger. Fortunately, the other members of the Board of Selectmen refused to give in to her bullying.
3. Ms Quigley apparently feels that property rights may be jettisoned in favor of the pursuit of the goals with which she agrees. The property lines of the 80% majority extend into Inner Little Harbor to the middle line between properties – that is, Inner Little Harbor is private property. Part of Inner Little Harbor is in my deed, and is included in the land area on which I pay property taxes. Just as is the case with the zoning laws, preexisting uses are grandfathered in, and only changes to these have to be brought before the ConCom. This is clear from the regulations relating to the NOI: “If the applicant and landowner are not the same, an applicant shall obtain written permission from the landowner(s) prior to filing a Notice of Intent for proposed work.” None of the 80% majority have given this consent. In other words, an outsider cannot force someone to change the use of their property if that use is currently permitted. If the Town wants my property, it should take it by eminent domain, pay me a fair market value for it and reduce my property taxes. Basic property rights mean nothing to Ms. Quigly
So, Ms. Quigley is willing to jettison the democratic process, due process and property rights to get what she wants. This is particularly scary (on Halloween night) because she is an elected public official supposedly committed to the preservation of these values and rights. She is promoting nothing less than tyranny of the minority, using her elected position to further her personal goals, without regard for the rights of others. We hope that she is never in the position of the 80% majority trying to protect these values and rights. Basic ethical values demand that she recuse herself from any further consideration of this matter.
Nobody owns the public waterways.
Furthermore, Ms. Quigley has the perfect right to vote yes or no - which she did.
This has all been discussed before - yawn.
Believe that blogs like this are most useful in helping to reach agreement when those who post provide their names and refrain from ad hominem attacks.
You are correct in what you wrote at 8:34am on 11/1, but you make a material omission.
The land under water at high tide in Inner Little Harbor consists of private tidelands and Commonwealth tidelands. Private tidelands consist of everything to the landward side of the historic low water mark, and belong to the property owner. Only the areas seaward of the historic low water mark are Commonwealth tidelands. Private tidelands are private property. Cohasset has effectively admitted that by assessing taxes on me for the private tidelands which are part of my property.
One simplified way to think of this is that, when the gates are fully opened and the water in Inner Little Harbor has reached its lowest point, all the mud that is seen is private property.
So, while what you write is true (“No one owns the public waterways.”), it leaves out the most important part of the law. People own their deeded property, and Massachusetts confers private ownership of private tidelands. These private tidelands are not public waterways. If you're bored by legal distinctions and want to yawn, that is your perogative.
The 80% majority are resisting a change to their private property sought to be imposed by a minority. The minority wants a change in the status quo relating to the majority’s property. Unless someone’s use of their property is violating a law, and not just someone else’s desires, the landowner should have the right to continue its present use. The government can place requirements for changes in use, but the majority is not seeking any changes – just the minority.
As was pointed out in Adam Brodsky’s letter to the Conservation Commission (with a copy to Ms. Quigley):
"310 CMR 10.05(4)(a) provides that:
'Any person who proposes to do work that will remove, fill, dredge or alter any Area Subject to Protection Under M.G.L. c. 131 §40 shall file a Notice of Intent on Form 3 and other application materials in accordance with the submittal requirements set forth in the General Instructions for Completing Notice of Intent (Form 3) and Abbreviated Notice of Intent (Form 4). If the applicant and landowner are not the same, an applicant shall obtain written permission from the landowner(s) prior to filing a Notice of Intent for proposed work [underscored in letter], except for work proposed on Great Ponds or Commonwealth tidelands.' [Emphasis added].
[Letter continues] "The word 'alter' is defined in 310 CMR 10.04 to mean 'to change the condition of any Area Subject to Protection Under M.G.L. c. 131, §40.' Examples of alterations include 'the lowering of the water level or water table.'There is no dispute that the Town is proposing to alter Areas Subject to Protection by, among other things, lowering the water level in Inner Little Harbor."
Perhaps you will see this as another “yawn” because it is based on the law, but the fact remains that permission from the landowner has to be received prior to filing an NOI that alters the landowner’s land. Since the private tidelands are private property, and the 80% majority did not give any written permission for the filing of the NOI, 310 CMR 10.05(4)(a) was violated and the NOI was not properly filed. Indeed, it cannot be properly filed without the prior written consents of all affected landowners.
Since legal rights are being completely disregarded by the minority, the majority has had no option but to retain a lawyer to defend itself.
This is posted in reply to the post of November 1, 2010 at 8:34am. For obvious reasons, I will refer to the person who made this post as “Sleepy”.
I have to assume that Sleepy is not familiar with Massachusetts law, since I am sure that he would not misstate it by omission. Sleepy’s omission, however, undercuts his yawn and should wake him or her up.
Generally speaking, the property of a landowner who abuts a tidal area in Massachusetts owns the land down to the historic low water mark. The area is referred to as “private tidelands”, and everything landward from the historic low water mark is private tidelands and private property. [It should be noted that Massachusetts is different from most other states, which limit private property at the high water mark or something above the historic low water mark. However, the law in Massachusetts is what it is.]
“Commonwealth tidelands” consist of the area from the historic low water mark seaward (or until another private tidelands area is encountered). These are owned by the Commonwealth – not Cohasset.
For example, my deed includes private tidelands. The acreage represented by the private tidelands is included in the acreage on which I am assessed property taxes. So, if these private tidelands are not my private property, then Cohasset has been assessing my real estate taxes unfairly. However, Cohasset has been correctly assessing me taxes on these private tidelands because they are my private property under Massachusetts law, and, by taxing me on these, Cohasset has admitted this. My understanding is that most, if not all, of the 80% majority also own private tidelands in Inner Little Harbor.
One way to think of it is to look at Inner Little Harbor when the gates are fully open and the water level is at its lowest point: all the area exposed to the air which was formerly under water (at high water) – i.e., the mud -- and perhaps more (depending on the level of low tide), is private tidelands and private property.
So, while Sleepy may be technically correct when he states, “Nobody owns the public waterways,” and while Mr. Brown may be technically correct when he writes (as he did recently in the Mariner), “Parts of Inner Little Harbor do not belong to the abutters,” their omission is glaring and renders their statements seriously misleading: parts of Inner Little Harbor also belong to the abutters. There are many situations where private property abuts land owned by the government, but that does not give the government the right to dictate the use of the private property.
The protection of private property rights with respect to wetlands protections is codified in the Massachusetts regulations dealing with the filing of NOI’s. 310 CMR 10.05(4)(a) provides: “Any person who proposes to do work that will remove, fill, dredge or alter any Area Subject to Protection Under M.G.L. c. 131 § 40 shall file a Notice of Intent on Form 3 and other application materials in accordance with the submittal requirements set forth in the General Instructions for Completing Notice of Intent (Form 3) and Abbreviated Notice of Intent (Form 4). If the applicant and landowner are not the same, an applicant shall obtain written permission from the landowner(s) prior to filing a Notice of Intent for proposed work….” Please note especially the last sentence.
Thus, no NOI can be filed without the written permission of the landowner whose land will be altered by the changes sought in the NOI. This makes perfect sense: no third party should be able to tell me to change what I have done historically with my private property unless my behavior is illegal.
[Continued below]
[Continued from aove]
Is the change in a schedule that was in existence long before the wetlands act came into effect something that will “alter” the private tidelands? “Alter” is defined as follows in 310 CMR 10.04: “Alter means to change the condition of any Area Subject to Protection Under M.G.L. c. 131, § 40. Examples of alterations include, but are not limited to, the following: (a) the changing of pre-existing drainage characteristics, flushing characteristics, salinity distribution, sedimentation patterns, flow patterns and flood retention areas; (b) the lowering of the water level or water table….” The NOI proposes to change flushing characteristics and lower the water level – it proposes to “alter” the private tidelands within the meaning of the Massachusetts regulations governing the filing of the NOI. Nothing could be clearer.
The 80% majority are simply seeking to retain the ability to have their private property continue to be used as it has historically. No NOI is required to be filed to continue this historic pattern of use. The 20% minority are seeking to change this, and this is why the 20% minority has to have an NOI filed. However, because they have not received written permission from me (or to my knowledge, any of the other members of the 80% majority), they cannot legally file such an NOI. Even if one person who owns private tidelands in Inner Little Harbor objects to the change, that change cannot legally be forced on that person by virtue of 310 CMR 10.05(4)(a).
The 20% minority has never suggested that the historical flushing schedule is illegal. Their contention is that more flushing would be “better”. I’m sure that other people can come up with lost of uses of my property other than my current uses that might be “better” for them and for the environment. A lot of my house is in the 100’ buffer zone, and abutters would have much better views (and the birds would have better migratory patterns, and there would be increased nesting and other animal habitat) if my house were to be demolished. But, in the absence of illegality, they cannot, and should not be able to, force their desires on me.
By now, Sleepy is probably yawning again. This is characteristic of the 20% minority: they either ignore or ridicule arguments or misstate the position of the 80% majority. For example, Ms. Quigley wrote in her original blog prompting this exchange, “Others [the 80% majority] argue for the status quo (a recurring theme in Cohasset) and have retained an attorney to represent their interest and promise a law suit if the decision is not to their liking.” This statement has several problems.
First, the 80% majority have indicated that they would agree to a schedule of increased flushing that did not leave them looking at mud half the time – they are not arguing for the status quo. This is conveniently disregarded in favor of a straw man with no stuffing.
Second, she intimates that hiring a lawyer and being willing to pursue our legal rights is somehow wrong or unfair. That is the right of every citizen whose legal rights appear to be a sleep aid for others who want to abrogate these rights.
Just caught up with this exciting subject.
My reading of the law (Coastal Zone Management) says you may own the land under the water, but you have no rights to the water itself.
Presumably, this means you have no real right to control the tide. When the tide is out, you are right, the mud is yours.
My neighbors inadvertently cut down several trees in an adjacent wetlands and were summarily fined and had to plant new trees.
How do property owners in Little Inner Habor get away with messing around with a marsh and all the wonderful things that happen in the mudflats when property owners with trees in wetlands get fined for interfering with nature?
In my post above, I wrote that "alter" is defined in 310 CMR 10.04: "Alter means to change the condition of any Area Subject to Protection Under M.G.L. c. 131, § 40. Examples of alterations include, but are not limited to, the following: (a) the changing of pre-existing drainage characteristics, flushing characteristics, salinity distribution, sedimentation patterns, flow patterns and flood retention areas; (b) the lowering of the water level or water table….”
You are correct that the owner of private tidelands does not own the water that is present between low tides. However, Massachusets has defined "alter" as stated above. The NOI proposes to change flushing characteristics and lower the water level – it proposes to “alter” the private tidelands within the meaning of the Massachusetts regulations governing the filing of the NOI.
I agree with your comment about your neighbors. However, the difference is that they were changing the use of the wetlands. Here, it is the 20% minority that is seeking the change and, under the regulations, they are required to get the consent of the actual owners of the land to pursue this. They have not done so.
In response to TannaK. The reason there has been a dam (and now tide gate) there for more than a century is the noxious odors emmitted from the mud flats when there is no water coverage. We do actually receive the full incoming tide in Inner Little Harbor: the gate just slows the outgoing tide to maintain some water coverage.
We live in a community where small minority of abutters want to force their will on the majority. This isn't community spirited. I would like to see the minority work with the majority to achieve a mutally agreeable solution.
With regard to the safety issues of high currents with the '1 gate open solution', I would like to think that although the opposing minority don't live near the channel where high currents would be created, that they would still consider of the danger it places other people in.
Unless there's sewage leaking into the mudflats, you're probably dealing with regular old bacteria creating hydrogen sulfide gas. Smells like rotten eggs.
If you keep the water in LH, LH bacteria can't play its important ecological role.
Mother Nature
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