Facing an enforcement order to remove its controversial erosion control project and a deeply skeptical Conservation Commission, the Sconset Beach Preservation Fund back in January waved the white flag and stated its decade-long effort to fight erosion along Baxter Road was over.
But just nine months later, it appears the project isn’t dead after all.
The Select Board voted unanimously Wednesday night to join the Sconset Beach Preservation Fund (SBPF) in resubmitting a new Notice of Intent (NOI) to improve and expand the geotube project that has roiled town government for years.
Even as SBPF continues the engineering work necessary to remove the geotubes from the base of the Sconset bluff to comply with the enforcement order from the Conservation Commission - an order which is now more than two years old - the non-profit group is betting that a change in the makeup of the commission may provide a path forward for the controversial project.
“In the removal process, there has been some calming of the situation and SBPF is open to the idea that there’s a window, before we remove it, will the Conservation Commission look at the merits of improving and expanding it?” said SBPF attorney Steven Cohen. “Instead of removing can we improve and expand it instead?
After years of hearings, litigation, and acrimony over the geotube project, the SBPF was ordered by the Conservation Commission in 2021 to remove the 900-foot sand-filled erosion control installation over its failure to abide by the conditions of its permit - specifically the requirement to contribute thousands of cubic yards of sacrificial sand to the project area each year. The Select Board subsequently took the extraordinary step of formally requesting that the Conservation Commission reconsider its previous vote, and the commission pushed back strongly to reject that request. The SBPF had appealed the decision but lost the case in Nantucket Superior Court, where Judge Mark Gildea ruled last September to uphold the Conservation Commission's decision.
Despite the pending removal order, the Select Board and the SBPF announced a new partnership and unveiled a draft Notice of Intent in late 2022 that would have increased the size of the geotube installation from just over 900 feet to more than 4,000 feet along Baxter Road in a phased approach to stabilize the bluff. But in January 2023, SBPF president Josh Posner announced that the organization was giving up its fight.
“Unfortunately, we have become convinced that a majority of the Commission will not support the notice of intent or any other reasonable alternative to demanding removal of the geotubes,” Posner stated. “Given this hurdle, we can see no path forward that is likely to result, at this time, in an approval of the expanded protections the Town of Nantucket and Sconset desperately need."
But things have changed since January, as the Conservation Commission - the members of which are appointed by the Select Board - has a new makeup. Former Conservation Commission chair Ashley Erisman was ousted from her seat in June. One year earlier in 2022, another commissioner who had voted in favor of the removal, Maureen Phillips, was also not reappointed by the Select Board.
“The tone of the commission on dealing with the Select Board in its joint meetings on this and dealing with SBPF on the removal process has changed, and the communications we’ve had with the town on whether they’re interested in pursuing this,” Cohen said. “The SBPF thinks there’s a change in the perspective and tone to move forward with an application.”
Cohen emphasized that given the engineering work and permitting required for the removal effort, the geotubes will not be removed until 2024 at the earliest. That provides a window of time to explore how a reshaped Conservation Commission would react to a new NOI.
For the Select Board, it’s also about buying time as it continues to develop plans to provide alternative access to Baxter Road should part of it get claimed by erosion.
“We’re two years away, which means three or four years away, from being able to replace a road,” Select Board member Matt Fee said. “This (a new NOI to expand the geotubes) is necessary partly for that. We should go forward with the NOI now and see where this stands. We’ve been at this for a long time and stubbed our toes, but also learned a lot.”
Vince Murphy, the town’s sustainability programs manager, told the Select Board Wednesday that the effort to “reinvigorate and restart looking at the Notice of Intent” got underway over the summer of 2023.
The effort began with two emails sent in July and August by Cohen to the Select Board that were obtained Thursday by the Current.
“My client, SBPF, is pleased to learn that the Town is interested in re-submitting the Notice of Intent that was jointly developed last year to seek approval from the Conservation Commission to protect the bluff at Baxter Road, as is allowed under the Wetlands Protection Act and the local Bylaw,” Cohen wrote to the Select Board in August. “With 10 years of experience and $15 million in private funding, there is a strong basis for moving forward with an improved, expanded, compliant, and sustainable erosion management project. This project can protect historic homes, public assets and resources, the Sankaty Head Lighthouse, the Bluff Walk, and ultimately the community of ‘Sconset. At a minimum it will buy time for the community to adjust if protection stops working. SBPF remains willing to partner with the Town to provide private funding and support for this project, which can be a model for protecting other areas of Nantucket as well.”
The town’s consultant, Arcadis, completed a report in 2021 about the future of Baxter Road that stated the long-range plan should be strategic retreat, but in the short term, the geotubes should remain in place to provide enough time to complete the planning effort.