Opponents See a Not-So-Fair Way

Fairway three at the Ponkapoag Golf Course in Canton is being prepped for construction despite an appeal that claims the long-closed fairway is wetlands. (Tom Palmer photos)

Fairway three at the Ponkapoag Golf Course in Canton is being prepped for construction despite an appeal that claims the long-closed fairway is wetlands. (Tom Palmer photos)

Group of area residents appeal decision that allows Canton golf course to fill in wetlands

By JOYCE ROWLEY/ecoRI News contributor

CANTON, Mass. — Despite a pending state appeal by a local citizen’s group, the Massachusetts Department of Conservation and Recreation (DCR) has notified the U.S. Army Corps of Engineers that it will begin work under its Clean Water Act Section 404 permit and begin filling more than 17 acres of federal wetlands, including 12 acres of disputed state wetlands, to rebuild a portion of Ponkapoag Golf Course that hasn’t been used in nearly a decade because of soggy ground conditions.

In March, a group of 19 area residents led by local wetlands consultant Tom Palmer, appealed the Department of Environmental Protection’s decision to waive state 401 Water Quality Certification requirements to fill in state wetlands. The group’s appeal cites the waiver relied on false or missing documentation of some 12 acres of bordering vegetated wetlands.

Ponkapoag Golf Course, in the Blue Hills Reservation, is part of the Fowl Meadow and Ponkapoag Bog Area of Critical Environmental Concern (ACEC). Wetlands at the golf course are home to a variety of endangered species.

According to the appeal, the ACEC requires “the highest standards of environmental review and protection be applied to actions that may affect its resources.” The group asserts that the DEP’s waiver and exemption under the Clean Water Act fails to afford the wetlands any protection.

History questioned

DCR’s “Ponkapoag Golf Course Drainage and Irrigation Project” seeks to restore four saturated fairways with 3-4 feet of fill, to bring Ponkapoag back to a 36-hole course.

The first 18 holes of the course were built under a special legislative act in 1931, with an additional nine holes added in 1937 by budgetary fiat and another nine added in 1955. By all accounts, some of the 1937 fairways, now part of Course One, had chronic drainage problems for decades.

DEP identified Ponkapoag’s value as an historic place as the “compelling public purpose” for granting the 401 waiver.

According to DCR, all 36 holes were designed by Donald Ross, an influential golf course designer of the 20th century. Both courses are listed on the state Inventory of Historic Assets of the Commonwealth and eligible for the National Register of Historic Places.

However, Palmer disagrees that the nine holes built in 1937 were actually designed by Ross. Citing Ross historian Bradley S. Klein, Palmer claims those holes, Nos. 3, 7, 8 and 11 on what is currently called Course One, were not in the original course and were built over wetlands. The Donald Ross Society only recognizes the first 18 holes built in 1931 as designed by Ross.

What is clear is that by the mid-1990s, fairways for holes 3, 7, 8 and 11 were too wet to play. In 2003, DCR stopped mowing them, and the facility became a 27-hole course. DCR blames poorly controlled stormwater from development in the upper watershed for Ponkapoag’s problems.

Environmental reviews

As a basis for the 401 waiver, DEP cited the project’s extensive environmental review. Records, however, show that only 10,890 square feet, about a quarter acre, of ditching in the wetlands was reviewed by any agency for environmental impacts.

In 1994, the Metropolitan District Commission, DCR’s predecessor, filed an environmental notice to fill the soggy fairways with about 150,000 cubic yards of material. In 2009, after originally denying the project, the Massachusetts Environmental Policy Act Office approved a supplemental final environmental impact report (SFEIR).

Pointing out that several commenters suggested that the wetlands had been understated, then-Massachusetts Secretary of Energy and Environmental Affairs (EEA) Ian Bowles wrote in the SFEIR certificate:

“I have been assured by MassDEP and Canton Conservation Commission that they will closely scrutinize DCR’s submission in the permitting process to ensure that impacts to the wetlands are minimized to the fullest extent possible.”

Despite public opposition and a field walk, the Canton Conservation Commission didn’t require DCR to perform a wetlands delineation in 2009. Instead, the commission issued an order of conditions allowing the four wet fairways to be filled without further review.

That same year, DCR’s application to the Army Corps of Engineers for a 404 permit indicated only 11,188 square feet of disturbance of federal wetlands. The Corps approved the fill as part of the state’s general permit. Work was to be performed by 2010.

But in 2013, when DCR resubmitted its application, the Corps required that federal wetlands be shown on the plans. DCR’s updated plans of July 17, 2013 include a table labeled “Golf Course Maintenance within USACE jurisdiction” totaling 767,073 square feet, or 17.6 acres of federal wetlands. The area was calculated for work on ditches, golf-cart paths and wetlands on holes 3, 7, 8, 11 and 12.

In October 2013, the Corps granted the permit for 10,890 square feet of disturbance, but exempted the filling of 17.3 acres of federal wetlands in the fairways under 33 CFR 323.4(a)(2) of its regulations. That section of the federal code allows maintenance of “currently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways, bridge abutments or approaches, and transportation structures.”

Corps spokesman Tim Dugan said the agency concurred with DCR that the fairways were currently serviceable in 2009 at the time of the permit application.

The Corps permit noted that the project required an approval or waiver of the 401 Water Quality Certification, otherwise the fill permit would be null and void.

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The Massachusetts Department of Conservation and Recreation has started filling in fairway 7.Wetlands protection

In 2009, after taking 19 samples from test holes in the disputed fairways, Palmer found hydric soils — permanently or seasonally saturated by water, resulting in anaerobic conditions, as found in wetlands — at all 19 and wetland indicator plants at 18 test holes.

Palmer, then acting as a member of the citizen’s group, sought a superseding order of conditions (SOC) from DEP, requiring DCR to delineate all wetlands present in the project under the Wetlands Protection Act.

Four years later, in a Nov. 4, 2013 memorandum to the counsel of the EEA, the overarching office for both DEP and DCR, DCR’s general counsel Douglas Rice recommended using the state Wetland Protection Act exemption 27(3) for the “actual or potential wetlands” in Palmer’s 2009 appeal. Rice then recommended withdrawing DCR’s filing with Canton.

Under 27(3), any project in wetlands authorized by special legislative act prior to Jan. 1, 1973 is exempt from filing a notice of intention or receiving an order of conditions. Rice determined that there were two special legislative acts governing the construction of the golf course: the original 1931 18-hole course and the 1937 nine holes, which “contain the project areas at issue in the request for the SOC.”

However, the act that allowed construction of holes 3, 7, 8 and 11 wasn’t a special act but instead was part of a 1937 budget appropriation. Rice’s memo notes that the second special act proposed for the expansion of the course never received Legislature approval.

In a footnote Rice acknowledges that if the wetlands were not exempted, “the proposed filling would be precluded by the prohibition of altering BVWs (bordering vegetated wetlands) within an ACEC” and that “even if a variance  were to allow the filling to proceed, it could possibly require acres of replication, which could not be located on Ponkapoag in keeping with its historic design.”

According to Rice’s memo, DEP concurred with exempting the disputed 12 acres of BVW from the Wetlands Protection Act.

Four days later, on Nov. 8, 2013, then-DEP Commissioner Kenneth Kimmell wrote to the assistant secretary of EEA that, based on that determination, “no further agency action is needed by the DEP under the Wetlands Protection Act for the portion of the work that is statutorily exempt.”

Rice’s memo also states that a 401 permit was required even if the wetlands were deemed exempt.

In February, DEP Bureau of Resource Protection Assistant Commissioner Bethany Card used Rice’s memo to waive 401 Water Quality Certification regulations. Card then exempted the fill from the state Clean Waters Act.

That was when the citizen’s group appealed the waiver, stating that waivers aren’t allowed by 314 CMR 09 regulations. The appeal asks that 314 CMR 09 regulations be applied in full to the 12 acres of state BVW.

DEP’s position is that its decision is discretionary, and that there is no jurisdiction for appeal because of the extensive environmental review the project has already incurred.

The citizen’s appeal is in the queue at the EEA Office of Appeals and Dispute Resolution. A hearing on whether the DEP had jurisdiction to waive 314 CMR 09 and whether the citizen’s group has jurisdiction to appeal DEP’s decision is scheduled for Sept. 22.

Palmer, then, was surprised to see silt fencing placed along the fairway on hole 7 in May. The Army Corps confirmed that they had received a work-start notification from DCR. Sometime in June, DCR began filling fairway 7 and placing filter fabric on fairway 3 in preparation for fill, according to Palmer.

Palmer noted, with irony, that as mitigation cited by DEP when it waived the 401 rules, DCR will seed a 38,880-square-foot area on a portion of those now-exempted state wetlands with New England Wetlands Seed mix in order to “replicate” lost wetlands.