On May 9th the Ten Residents group appeared in a Public Hearing for their appeal of the
Massachusetts Department of Environmental Protection (DEP). The Hearing was one of the last events in the Ten Residents’ appeal, which started in November of 2023.
The appeal was filed to the Office of Appeals and Dispute Resolution (OADR), which
receives all adjudicatory appeals of DEP’s permitting and enforcement decisions. As an
administrative adjudicatory process, the appeal was heard by a Presiding Officer whose role is similar to that of a judge- to preside over the appeal process and hearing and to render a recommended decision on the case. OADR is a separate and independent office of DEP.
Presiding Officers in OADR are experienced attorneys at DEP appointed by DEP’s
Commissioner to serve as neutral hearing officers. For a detailed timeline of key dates in the appeal please view this update on our webpage.
In February, three issues for adjudication were identified following a Pre-Hearing meeting of the parties:
(1) Whether the project had been “conditioned” to meet certain Wetlands Protection Act (WPA) requirements for proposed work in the bordering vegetated wetlands (BVWs, which are freshwater wetlands which border on creeks, rivers, streams, ponds and lakes);
(2) for proposed work in the Buffer Zone to the BVWs (the land surrounding the wetlands). In other words, were the requirements placed by DEP on the construction plans sufficient to ensure that the Wetlands Protection Act regulations are satisfied.
(3) Whether the project, as conditioned by DEP, meets the Wetlands Protection Act Stormwater Management performance standards. The WPA stormwater standards address, among other things:
- discharge of untreated stormwater and potential for erosion;
- increased rate of stormwater runoff from the site and risk of flooding;
- recharge of groundwater to compensate for the planned increase in impervious surface
area;
- removal of contaminants from water runoff; and
- protection of critical natural areas.
You can find more information on these standards by viewing this update on our webpage.
Ten Residents have the burden of proving by a preponderance of the evidence that the DEP erred in issuing the Superseding Order of Conditions (the decision overturning the Conservation Commission).
In February through April, the Ten Residents (the “Petitioners”), the Northeast Metro Tech (the “Applicant”) and the DEP (the “Department”) identified witnesses who would provide testimony on the issues for adjudication and the witnesses submitted Pre-Filed “Direct” Testimony and Rebuttal Testimony on the issues. The written testimony included evidence and exhibits upon which a final decision would rely and allowed the parties to respond to claims made by the opposing side.
In the course of the appeal, the NEMT attempted to dispense with and (when that failed) to limit the Ten Residents’ case by submitting a Motion to Dismiss (in January) and later a Motion to Strike Testimony (in March). The Ten Residents responded swiftly to both motions. The Presiding Officer denied the Motion to Dismiss and allowed the testimony in question to be considered.
The May 9th Public Hearing allowed the Ten Residents, NEMT, and DEP to cross-examine
(question) the opposing side's witnesses about the written testimony provided ahead of the Hearing.
Formal Hearing On Appeal To The OADR
The May 9th Hearing took place in a conference room space at the DEP’s Northeast Regional Office (NERO) in Woburn. (Due to limited information on seating capacity we regret that we could not extend an open invitation to all supporters to attend the hearing.) The Hearing started at 10 am sharp. Each side (the Ten Residents being on one side and the NEMT and DEP being on the other) was allotted three hours to question the opposing side’s witnesses about their pre-filed testimony. The format of the Hearing provided that the Petitioners’ (Ten Residents’) witnesses would be cross-examined first by the opposing parties.
The Ten Residents’ witnesses were Doug Heath (hydrogeologist), John Chessia (civil engineer and expert consultant) and Christine Rioux (environmental scientist). The witnesses’ pre-filed testimony addressed (respectively): (1) risks to freshwater jurisdictional wetlands from pollutants (including chloride) in concentrations or combinations that are toxic to humans, aquatic life and wildlife; (2) the construction plans’ (lack of) compliance with the Wetlands Protection Act stormwater
management standards; and (3) the lack of conditions in place necessary to contribute to the protection of the wetlands and critical natural habitats. Each witness was sworn in in turn; however, the attorneys for NEMT and DEP had no questions for the Ten Residents’ witnesses about their pre-filed testimony. It’s possible that questioning the witnesses would only have hurt their case.
Next, the NEMT’s witnesses (who included the project team’s executive project manager /engineer and hired wetlands consultant) were sworn in, followed in turn by DEP’s witness, the environmental analyst who reviewed NEMT’s appeal of the Conservation Commission and overturned the Conservation Commission’s decision. Christine Rioux, PhD, the Ten Residents’ representative, asked prepared questions of the witnesses in a cross-examination that lasted most of the three hours. The Hearing format required that all questions relate directly to the witness’s pre-filed testimony. Cross-examination questions addressed the effects of construction on the resource areas; the construction plans’ compliance with WPA standards; and the DEP analyst’s review process leading to his overturning of the Conservation Commission, among other questions.
An audience of about 20- most of them Ten Residents and supporters of the forest, and also representatives from Wakefield’s Conservation Commission, NEMT and DEP- observed the proceeding. All present were keenly attuned to the stakes of the Hearing. It was an amazing experience of participatory government. After a few final “redirect” questions and questions from the Presiding Officer, the hearing was adjourned around 3 pm.
What’s Next
At the close of the Hearing, the Presiding Officer defined a timeline for the remainder of the appeal that includes time for the parties to receive and review the Hearing transcript, submit corrections to the record, and submit closing statements. After considering the testimony and arguments, the Presiding Officer will issue a “recommended” final decision on the case.
Subsequently, a final decision (that follows a review of the recommended final decision) is expected to be issued by the Commissioner of DEP, Bonnie Heiple. Given the timeline, the recommended final decision is expected to take several more weeks (or more). We will share this decision with you and will anxiously await the outcome.
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We appreciate your ongoing support!
We are continuing to raise funds to support this ongoing expert analysis through the end of the appeal period, including during the hearing and through closing statements.
This analysis provides facts and expert opinions that are essential to the Ten Residents’
appeal. The analysis pertains primarily to the proposed projects’ compliance with the Wetlands Protection Act’s Stormwater Management Standards, which include 5 individual standards that together comprise more than half of the issues for adjudication in the Ten Residents’ appeal.
We would appreciate greatly if you should see fit to contribute to the cost of this effort, if you are able. Your contributions to-date- through GoFundMe, direct donations to the Friends, and participation in our fundraising events- have sustained efforts on behalf of the forest and wetlands- thank you!
Our experiences in advocating for preserving the NEMT forest and wetlands have led us to understand that the factors that have threatened this forest habitat, and which have already led to the destruction of more than 10 acres of the pristine forest, similarly threaten forests, wetlands, and natural habitats in many other Massachusetts locations and elsewhere. This is why we remain motivated to continue supporting the scientific study and preservation of, and public education about the remaining NEMT forest and wetlands.
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We greatly appreciate any and all donations no matter the amount. Many of our supporters contribute through the Friends’ GoFundMe (“Save the Forest and Build the Voke”). If you would like a donation receipt for a donation made through GoFundMe, or if you donate $250 or more, please provide the Friends with your contact information through this Google Form here so that we may provide a donation receipt.
Donations may be made by check to Friends of Wakefiel'ds NEMT Forest. Donation
receipts will be provided for all gifts.
Send to:
Friends of Wakefield’s NEMT Forest
PO Box 2013
Wakefield, MA, 01880
To receive information about future fundraising events and updates, including about the Ten Residents' Appeal, sign up (if you have not already) at: https://www.nemtforest.org/take-action/#contact
The Friends of Wakefield's NEMT Forest, doing business as Save the Forest (and Build the Voke / Coalition is a 501(c)(3) tax-exempt organization. Your donations will be tax-
deductible to the extent allowable by law.
Contact us if you have questions, need more information, or have something unique or interesting to donate to an upcoming auction segment, please contact us at advocacy@nemtforest.org.
Thank you again for your committed concern for conserving natural resource areas