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A clash over a Cape creek

Proposal to dredge heads to court after years of pitting property owners against clammers

HARWICH - The homeowners on the edge of Oyster Creek say their mission is simple and restorative: to clear a waterway at risk of being choked by sand, to make it useful again to boaters and the town.

But the Harwich harbormaster says their plan to dredge the narrow creek near Allen Harbor threatens a treasured local tradition, because it would wipe out rich shellfish grounds plied by generations of families.

After years of legal wrangling, proponents and opponents of the Oyster Creek dredging project will face off next week in the Supreme Judicial Court. The dispute, which has simmered for years as legal costs have mounted, centers on a short, slender stretch of shallow tidal inlet, no more than a few hundred feet long. Yet it embodies complicated tensions: between those who own valuable Cape Cod waterfront and those who do not, between private property owners and clammers, and between longtime residents and relative newcomers.

Those on both sides of the battle say they want to preserve the creek's most vital assets.

"All we're trying to do is what's best for the environment and the community, to reestablish this great body of water that's been here and make sure that the infrastructure of Harwich, its waterways, are preserved," said Peter Smyth, one of the homeowners who wants to dredge the creek.

Harbormaster Tom Leach said the best thing for the town is to leave the creek alone.

"You can't rebuild these shellfish flats," he said. "Once you tear the heart out of them, they're gone . . . All we're asking is to preserve what's there."

The standoff over Oyster Creek represents a curious twist on the man-versus-nature debate, because the creek, like the manmade harbors in Harwich, has long been shaped by human intervention. The shallow creek was first dredged in 1926 by a wealthy property owner who wanted to drive his powerboat down the inlet to nearby Allen Harbor, another manmade feature that connects to the sea.

For decades afterward, the creek served boaters and clammers who flocked to its sandy bottom at low tide, according to Leach, who has been the harbormaster since 1973. "It just happens that that one little magic zone is one of the most prolific shellfish beds the town has," he said. "There used to be people elbow to elbow in there sometimes, 50 people, digging steamers."

Over time, the area around the creek changed. Newcomers built summer houses on scenic Nons Road, which borders the creek, along with new docks for their boats. Tensions occasionally flared between clammers, who felt that their access to the water was shrinking, and waterfront homeowners who tired of clammers trespassing, those on both sides say.

The homeowners say the creek changed dramatically in the 1990s, after the town allowed one property owner to build a massive wooden bulkhead on the waterway. The new wall, designed to protect the house above it, deflected moving water forcefully across the creek, instead of absorbing waves, the property owners say. During the next decade, they say, the opposite bank eroded, threatening a handful of houses and clogging the creek with sand.

As the depth of the creek at low tide shrank to little more than a foot, the channel became difficult to navigate in all but the smallest boats, say the property owners, some of whom bought their second homes on the scenic point because they could use the creek to reach the harbor by boat. They say water quality declined as the creek narrowed, hurting the health of shellfish beds.

These days, the property owners say, clammers are rarely seen in the creek. They contend that the only shellfish left there grow from seed clams planted by the town, as part of its "put and take" program for recreational shellfishing, and they say shellfish would be helped if dredging opened up the flow of water.

"People don't let their kids swim there anymore," said Jeff Dunn, another homeowner. "I don't want my backyard to turn into a swamp."

Leach disputes the residents' arguments. He said that the creek has not been seeded with clams in several years and that water flow is not restricted. In addition to the harm to shellfish from dredging, he said, public access to the clam beds would be cut off by the deeper water in the creek.

The neighbors started talking about dredging in 2001. Thirteen of them formed Oyster Creek Preservation Inc., and pitched in money for lawyers and specialists to study the effects. They sought permission to dredge from the Harwich Conservation Commission in 2003. The town denied their request, and the homeowners appealed the decision in the courts and to state officials. In 2005, the state Department of Environmental Protection overruled the town's decision and approved the project, even though the Division of Marine Fisheries had raised concern that increased boat traffic caused by dredging would harm water quality and shellfish. and the homeowners prevailed in Barnstable Superior Court.

Town officials appealed the ruling, and the state Appeals Court upheld it, citing problems with the procedure used by local officials to reach their decision. The town then sought the hearing before the state's highest court, scheduled for Thursday.

If the property owners prevail, they must seek permits from the US Army Corps of Engineers, the state's water quality program, and the state waterways division, which oversees navigation.

Some Harwich residents say the money the town has spent on appeals would have been better used on other local needs.

"I have to think that when it's been turned down by the Department of Environmental Protection and two courts, it doesn't seem like the town has a very strong case," said Geoffrey Wiegman, the president of the Harwich Taxpayers Association and a member of the Zoning Board of Appeals.

The Oyster Creek homeowners said they have spent more than $100,000 on legal fees and expect to spend as much as $400,000, including the cost of the dredging. Town administrator Jim Merriam said the last estimate he saw for the town's legal costs was $35,000 by last year.

Sue Stephens, a Harwich resident who dug oysters and clams in the creek for 20 years with her husband before he died, said the town will lose something precious if the dredging goes ahead, while the homeowners alone will benefit. "I don't think it's good for anybody else," she said.

Jenna Russell can be reached at jrussell@globe.com

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