This highly technical and procedurally-oriented case addresses overlapping jurisdictions and permitting procedures for dredging and beach nourishment projects. It is a useful read for that reason. It is significant coming from the SJC.

This article focuses on discrete aspects of this case—namely, the Court’s emphasis on the applicability of the Massachusetts Citizens Suit Statute, M.G.L. c. 214, § 7A, and the importance of developing a full court record, filing consistent pleadings, and being mindful of timeliness.
 
In the end, the SJC ruled that the Superior Court’s decision against the Town was based on a claim not included in the Complaint and unsupported by evidence in the record, so the Town was not found to have violated any environmental regulations. Consequently, Dennis was not obligated to nourish Miramar Beach with dredged materials.

The Facts

Plaintiffs own and have access to Miramar Beach, a private beach located in Dennis on Nantucket Sound. Miramar Beach is located east of the mouth of the Swan Pond River, where it empties into the Sound. On the west side of the Swan Pond River inlet is a stone jetty. 

The jetty traps sand and littoral drift material as it is carried west-to-east along this part of the Nantucket Sound shore. As a result, the mouth of the Swan Pond River periodically fills with sand. This interferes with navigation and the ecology of the river, and also starves eastward parcels, such as Miramar Beach, of sand.

To maintain navigation and a healthy river, since at least 1980 the Town of Dennis has periodically dredged the mouth.
 
In the early 1990s, the Town extended the jetty northward, farther upriver. This work should have required permits including an order of conditions from the local conservation commission (since the Massachusetts Wetlands Protection Act was in the books since 1963), but the summary judgment record contained nothing of the sort.

In 1994, the Town obtained an easement over Miramar Beach below mean high water for “public on foot right of passage” from approximately dawn to dusk. The easement was also “for the purposes of dredging the mouth of Swan River and placing dredged spoils on the east side of Swan River.”
 
In 1996, sediment from the periodic dredging of the Swan Pond River was placed on Miramar Beach, and on other beaches and Town-owned land in Dennis. Miramar Beach greatly benefitted from the 1996 nourishment. 
 
Now to the events that triggered this case. In 2010, after receiving all proper federal and state permits, the Town dredged the mouth of the Swan Pond River. The Town did not deposit any spoils on Miramar Beach, and instead placed them on West Dennis Beach. In 2014, the Town announced plans to dredge the mouth of the Swan Pond River again, and was not planning on depositing the spoils on Miramar Beach for a second time—it planned to deposit the spoils on West Dennis Beach again.
 
Two days before the 2014 scheduled dredging of the Swan Pond River, plaintiffs filed suit under M.G.L. c. 214, § 7A.

Case History

Among other things, M.G.L. c. 214, § 7A allows a group of at least ten citizens of the Commonwealth to file a complaint in Superior Court against a municipality if that municipality is harming (or about to harm) the environment in violation of a state or local law designed to protect it. 
 
In this case, the plaintiff citizens challenged the Town’s permits to dredge and nourish in 2014, alleging that the Town violated 310 CMR § 10.27 (4) (c) by not placing the Swan Pond River dredge spoils on Miramar Beach. 

That specific rule, called a “performance standard” under the regulations implementing the Wetlands Protection Act, requires that: “Jetties trapping littoral drift material shall contain a sand by-pass system… or shall be periodically redredged to provide beach nourishment to ensure that downdrift or adjacent beaches are not starved of sediments.” 

The jetty at the mouth of the Swan Pond River does not contain a sand bypass system.
 
Granting plaintiffs’ motion for summary judgment, the Superior Court found that the jetty extension in the early 1990s triggered the requirements of 310 CMR § 10.27 (4) (c), and, since no sand bypass was installed, the Town was obligated to periodically nourish Miramar Beach. 

The Superior Court issued a permanent injunction requiring the Town to periodically place the spoils from Swan Pond River dredging on to Miramar Beach. Defendants appealed to the Massachusetts Appeals Court.

Murky Waters

On its own initiative, the SJC transferred this case from the Appeals Court. At this time, Plaintiffs changed their argument to conform to the Superior Court’s holding. Instead of challenging the 2014 dredging, they now alleged that it was the 1990s jetty extension that triggered those same regulations and required nourishment of Miramar Beach. 
 
The SJC noted plaintiffs’ inconsistent argument and then found that the Town’s permits for 2014 dredging did not include any condition requiring the spoils to go on Miramar Beach. Since there was no requirement to nourish Miramar Beach in the Town’s dredging permits, the Court concluded that the Town couldn’t have violated the law by placing the spoils elsewhere. 
 
In its discussion and analysis, the SJC went on to remark that the Town’s permits for the 2014 dredging and beach nourishment projects could not even implicate 310 CMR § 10.27 (4) (c). The SJC reasoned that while that regulation speaks to mandatory beach nourishment, that obligation is triggered by the construction of a jetty— not a dredging project. Only a jetty project could be conditioned to require that mandatory nourishment. 

Normally, that would have been the end, but the SJC didn’t stop there. Since the Town failed to raise any issues of timeliness concerning the plaintiffs’ new argument before the SJC regarding the 1990s jetty extension, the SJC addressed that, too. 

The SJC opined that any obligation to nourish Miramar Beach or install a sand bypass system in the jetty pursuant to 310 CMR § 10.27 (4) (c) could only have been triggered by an Order of Conditions requiring as much. In short, the regulation itself does not trigger the obligation, but an Order of Conditions does. 

Since the Order of Conditions for the jetty project was missing from the record, the SJC could not determine whether it had been violated. On this record, the plaintiffs could not win this point, either.

Useful Lesson

The decision offers a useful take on the role of the state’s regulatory performance standards such as the one here. They are “to guide local conservation commissions in issuing permits under the act” and impose “no such obligation on jetty owners.” Decision, at 24. 
 
Thus, MassDEP’s performance standards may not be self-enforcing (automatically applicable to a project). Rather, Conservation Commissions apply them through their wetland permits, and appeals to MassDEP are available to challenge wetland permits for being inadequate in that regard.

Miramar Beach is but 122.49 feet of the over 1500 miles of coastline in Massachusetts. Conservation Commissions have jurisdiction over all of it. So it is important for landowners, attorneys, developers, and municipalities to keep up with how the courts interpret and apply the rules that determine the fate of coastal projects.

With the expanding understanding of hard as well as soft structures and their impacts on dynamic equilibrium and littoral drift along our shorelines, these issues are even more prevalent. This is especially so in our era of climate change, sea level rise, more and stronger storms, and expected large and expensive shoreline adaptation and protection projects.