Judge says Harwich residents can dredge inlet based on a technicality

By Jenna Russell, Globe Staff | October 24, 2007

A group of Cape Cod homeowners can move ahead with plans to dredge a narrow tidal inlet despite objections from the town of Harwich, the state's highest court ruled yesterday, because a town commission failed to act promptly on their request. The residents have been fighting the town for four years for the right to dredge a sandy section of Oyster Creek. They say they want to widen and deepen the channel to accommodate boat traffic and improve water quality.

The town's Conservation Commission denied their request in October 2003. Dredging proponents say the town failed to explain its decision, but the town has since argued that dredging would harm the rich shellfish habitat in the creek.

Yesterday, the Supreme Judicial Court ruled that the town's decision was invalid because it was issued two days after the 21-day limit established by the state law that lays out procedures for the protection of wetlands. The dredging still must be approved by other agencies, including the US Army Corps of Engineers and the state water quality program, before it can move forward.

The long-running Harwich dispute reflects increased tension on the Cape and in other coastal areas between private property owners and recreational shellfishermen who have faced decreasing access to their longtime fishing grounds. Homeowners who fought for the dredging said it would improve water quality for shellfish by increasing water circulation through the channel. "Today's ruling signals a victory for Harwich homeowners and the shellfishing community alike," the members of the homeowners' group, Oyster Creek Preservation Inc., said in a statement yesterday. "We were disappointed that Town leaders devoted untold amounts of taxpayer money to stand in the way of this much needed maintenance dredging."

Harwich Harbormaster Tom Leach said he was disappointed by the decision. He said dredging would destroy the creek bottom that harbors shellfish, while the deeper water in the channel will keep out clammers who have waded there for generations. He said he expects the project to cause erosion on the south side of the inlet, and he disputed the homeowners' arguments that the increased water flow would improve conditions for shellfish. "I don't believe the health of the creek was in any way in jeopardy," he said.

Harwich Conservation Agent John Chatham and Town Administrator James Merriam did not return calls yesterday. The Harwich Conservation Commission closed its public hearing on the residents' dredging request on Sept. 16, 2003, and should have issued its decision by Oct. 7. Instead, the commission waited until Oct. 9 to reject the request, the court found, rejecting the town's argument that it closed the public hearing two weeks later and therefore met the deadline. "Thus, where a conservation commission issues its decision after the statutory deadline, it is appropriate that it should lose the right to insist on the provisions of its local bylaw and that any superseding order issued by the [Department of Environmental Protection] should apply in its stead," Judge Margot Botsford wrote in the court's opinion.

The state Department of Environmental Protection approved the dredging project in 2005, after the homeowners appealed to the agency. The town continued to fight the project in court. Oyster Creek was first dredged in the 1920s by a property owner who wanted to use the inlet to get to the ocean in his boat.