Exeter Faces Fall Deadline for Action on State’s Claim of Freshwater Wetlands Violations
June 28, 2021
EXETER, R.I. — The town has until the end of October to address an environmental violation notice stemming from construction work the state claims disrupted protected wetlands. The town’s director of public works said its plan to address the issues has been held up by new concerns requiring additional negotiation.
Stephen Mattscheck, Exeter’s director of public works, said the Rhode Island Department of Environmental Management (DEM) only recently brought up new claims that were not included in its original notice of a Freshwater Wetlands Act violation two years ago.
DEM issued a notice of intent to enforce (NOIE) to the town in September 2019. Based on an August 2019 inspection, the state agency said it believed Exeter violated Rhode Island’s wetlands statute, which prohibits activities altering wetlands without a permit, as well as DEM regulations covering the administration and enforcement of the act.
The notice said the DEM Office of Compliance and Inspection followed a complaint by an unnamed party with an inspection of a town property along Route 2, also known as South County Trail.
The notice detailed three specific violations allegedly committed by Exeter’s public works department. The inspection determined an access road for vehicles was built crossing a river and caused an unauthorized alteration of at least 200 square feet of freshwater wetland. The crossing resulted in “disturbance of the bed (bottom) of the River, soil erosion, and the deposition of sediments downstream of the crossing area,” according to the NOIE.
Another alteration of about 5,000 square feet of wetland occurred when gravel and other materials were used in clearing, filling and grading. The work created “surface disturbance within a Forested Wetland, which is also entirely encompassed by 200-Foot Riverbank and likely falls within the 100-year Floodplain of the aforementioned River,” according to the NOIE.
The third violation cited clearing, grading and filling in the form of gravel and other soil materials, pea stone, boulders, tree stumps and miscellaneous debris. This work also caused a surface disturbance, along with paving, storage of vehicles and machines, construction of a garage, shed, salt barn and other structures and the installation of an unpermitted onsite wastewater treatment system. All of the activities occurred within the 200-foot riverbank wetland and within the 100-year floodplain, resulting in unauthorized alteration of about 123,000 square feet, or about 2.8 acres, of freshwater wetland, according to DEM.
The NOIE said the inspector verbally warned Mattscheck not to conduct further work without obtaining a DEM permit. Further alterations were to immediately cease, stating “each instance of River crossing represents a new violation of the Freshwater Wetland Act.”
Several restoration requirements were listed in the notice. They included installation of a silt fence, biodegradable fiber logs and/or hay bales along the outer limits of the disturbance area, the removal of all deposited sediments from the river channel and the removal of all installations, constructed items and unauthorized fill material. Wetland seed mixture, shrubs and trees from an authorized list of species were also to be planted in the disturbed areas.
The town faced possible administrative penalties for the unauthorized alterations up to $5,000 per instance, according to the NOIE.
DEM chief public affairs officer Michael Healey said the agency granted Exeter an extension to the fall of this year after receiving a restoration proposal from the town.
“DEM is still working with the Town to address the issues,” Healey wrote in a June 18 email. “We sent comments on its plan to restore the wetlands and are waiting for the Town’s response.”
Healey said the agency’s comments are not available to the public and remain part of DEM’s ongoing case.
“I would characterize them as extensive but straightforward,” Healey wrote in a subsequent email. “Although the original restoration deadline stipulated in the NOIE was Oct. 15, 2020, we granted the Town a deadline extension through October 31, 2021. There is still ample time for them to respond to our review comments with a revised restoration plan and at least start the required restoration before the deadline expires.”
Public works director Mattscheck said in a June 28 interview that Exeter responded to the 2019 NOIE within the initial period provided by DEM. The town then submitted a plan addressing the points listed in the enforcement notice and hired engineering and environmental consulting firm Tighe & Bond of Westfield, Mass.
After the town’s restoration plan was submitted in fall 2020, Exeter did not receive a response from DEM until the spring of this year, Mattscheck said, noting the coronavirus pandemic may have caused a delay.
“We have done our work. We submitted a plan,” said Mattscheck, refuting any suggestion his department is “ignoring” DEM.
Mattscheck stressed Exeter public works has not made any significant alterations to the disputed area in the past 40 years, noting that the crossing identified in the NOIE has always been there.
“We haven’t changed the topography of the land at all,” Mattscheck said.
He said the response from DEM to Exeter’s proposal submitted last year included “a dozen or so” comments bringing up new issues not included in the original violation notice.
The town and DEM are now in the process of going “around and around” as they trade written comments, prompting Mattscheck to request an in-person meeting to address concerns on both sides, he said.
“We need to get this straightened out. I think a face-to-face would help,” said Mattscheck, who noted the meeting has not been scheduled but could result in an additional extension for the town to enact its plan.
Town Council President Dan Patterson and members Calvin Ellis and Frank Maher each noted the issue is on the agenda of the council’s next scheduled meeting July 6, which will be open to public attendance and streamed online.
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As a former member of the town council I am aware of the environmental issues and the ongoing efforts to resolve them. however, this issue has been and continues to be aggravated by an Exeter resident that has filed several lawsuits against the town relative to a proposed large scale solar facility on that residents property. for more information, clarification and the participants involved concerning this issue I recommend attending the next council meeting.
It’s OK if you say my name, I don’t mind. While it’s true I have outstanding lawsuits against the town stemming significantly from your actions on the planning board and council, as of this month’s upcoming agenda so do you, and yours predate mine. In fact, before you sued the town I wasn’t even aware someone could do that, and I definitely didn’t know you could sue the town, get elected to the town council, and still keep the suits in process against the town you are supposed to be representing– so thanks for that lesson.
While you were on the planning board, instead of actually making any progress on sorting out the comprehensive plan mess, which is the planning board’s responsibility, I watched you instead file suit twice against the town you were supposed to be representing.
While you were on the council, I watched you pass an emergency ordinance declaring solar-which statistics show is the safest form of electricity generation known to man- a threat to the life safety of town residents, help approve a motion to assign this DEM mess to the very person who caused most of it (DPW Director Mattscheck), and help award the low cost engineering bid that excluded the main issues raised by DEM from its scope, and didn’t require even generating the cost estimate to fix these problems.
Instead of actually doing anything to help fix these DEM problems, I watched you try and cajole the town council into supporting and participating in lawsuits in and against our neighboring towns, which were none of our business. Thankfully more rational heads prevailed at least on that.
As far as this issue and the solar question go, groundwater contamination from hydrocarbons (diesel and gasoline, motor oil, and hydraulic fluid) is a very real problem in most industrialized countries, including the US. The Queens Fort Brook, which the DPW equipment was driving through, empties into the Queens River, which is the main water source for most of southwestern RI. That aquifer delivers about a half million gallons a day of clean water that hundreds of thousands of people actually depend on for their lives and livelihoods. It seems strange that your town council would focus so much on a trumped up threat, while effectively ignoring the real one the DPW department was creating at the same time.
For groundwater, the soil acts as a huge, giant filter that removes all the solid contaminant particles in the surface water draining through, so by the time it reaches the groundwater table, the water is pretty much clean. This can take a long time, so that if there are organic fluids mixed in, they effectively decompose before reaching the water table.
Like most filters, the soil removes solid particles, it doesn’t do anything for liquids. So if motor oil, diesel, or hydraulic fluids are dropped on the soil, they drop right through, and eventually reach the water table. When that happens, those fluids don’t mix into the water, because they are less dense – instead, they start spreading out over the surface of the water, much like the colored sheen you might see on a road puddle. It’s underground where you can’t see it, but the same thing is going on.
Now, here’s where things get interesting. That water table isn’t a constant height – it rises and drops, with the seasons, rainfall, water use, lots of causes. When that happens, those hydrocarbons floating on top of the water rise and drop through the soil – and ultimately can contaminate a band of soil dozens of feet deep. That’s why these problems are so hard to clean up – once the contaminants are in the soil, even clean water filtering through will pick some of them up, and carry them lower into the groundwater. This is why waste site cleanups require removal of tons and tons of earth, and even when that’s done the contaminants can stay in the water for decades. This is why it only takes a few gallons of diesel, hydraulic fluid, or motor oil to contaminate millions of gallons of fresh water, rendering it undrinkable or unusable.
The Queens River aquifer generally flows south, ending up around Westerly. You, Calvin Ellis, and Stephen Mattscheck may not care a lot about this because you all live upstream of the garage site, but I live downstream. So does Dan Patterson (and he lives a lot closer to the problem than I do). After Dan, next to be affected would be the restaurants and other businesses at Oak Harbor, the new 40-unit affordable housing development the planning board just approved on Route 2, the friends and neighbors around me, the nursing home further south, then the hundreds of businesses and tens of thousands of residents of the towns south of Exeter.
You know what’s another contaminant of fresh water? Salt. This is a regular problem with wells on islands and along the coastline – when the water table drops too much, salt water from the ocean flows into the groundwater. When that happens, the water is pretty much unusable for irrigation or drinking. Crops die and people buy a lot of bottled water. One of the main problems the DEM cited was the construction of the town’s new open salt shed in the wetland setback. This hasn’t been allowed for about two decades, there’s no way it would get permitted, and yet Steve Mattscheck had no problem skipping that step and writing his own building permit to put one up anyway.
Mattscheck claims in his interview that these problems date back forty years. Thanks to the dated building permits and google earth’s dated satellite photos we know that’s not true, and we can thank our lucky stars it isn’t – because if they did, we wouldn’t be facing six to seven figure remediation costs, we’d be looking at eight to nine figure costs for monitoring wells, earth removal, and other even more expensive remedies.
There is no alternative for South County than the Queens River aquifer. If that water becomes undrinkable, the cost to keep the southern part of the state alive would be unfathomable. This is why the penalties from the DEM are so draconian.
A few more points on the article – while it’s true there are three areas cited by DEM, these are land areas – and there are actually ten violations (including the basketball court that Mattscheck built on the other side of the brook). While it’s true Tighe and Bond sent the report before the expiration of the first deadline, that deadline wasn’t for a response – it was the deadline to have everything fixed.
From Mattscheck’s interview, I’m glad to see we didn’t get a rehash of the howlers like it was all Robert Whitford’s fault, or the “Reynolds Deed” made him do it, but there still some things that need correcting. First, the original notice had nine violations on it. The only “new claim” that I’ve seen since then is for the basketball court (bringing the total to ten), and that’s over a year old. If the town has received additional violation notices since then, they haven’t shown up in town correspondence.
The verbal warning to stop all work was given to the crew building the salt shed, while it was still half finished. It’s done now, so evidently that was ignored.
As far as the dates go, Mattscheck is skipping some steps. It’s true the town did send its first response in the fall of 2020.. However, the DEM responded multiple times before January first, and a revised report was sent in January of this year. Within 2 months, DEM had told the town that all the applications submitted were deficient and missing required submissions (citing 8 pages of deficiencies), and the applications had been rejected as incomplete.
As for “no significant alterations in the past 40 years”, this is a baldfaced lie, and easily disproven by google aerial photos, and the signed and dated building permits. As for the “dozen or so new issues”, also a baldfaced lie. Every single issue was in the original notice, and the town (and its contractor) just chose to ignore them in the response.
I reviewed the DEM case file when this first came out. It’s a little worrying the file is now closed to the public – that’s usually not a good sign, and tends to mean a less cooperative and more confrontational attitude from DEM can be expected in the future.
When I reviewed that file, I saw this all started (the enforcement part at least) when the town didn’t file its required stormwater plan update (which is also the responsibility of DPW Director Mattscheck) with DEM. An inspector came around to find out if everything was OK, found the salt shed in construction progress and all the other violations, and referred it to the compliance side. I don’t remember if the inspector was named, but I expect this is the “unnamed source” mentioned in the article.
The report itself is available from Lynn Hawkins, the town clerk, using an APRA request. It makes for some interesting reason, and gives a sense for what lies ahead. We have ten violations, and some will be very expensive to fix – removing the salt shed, other buildings, basketball court, etc. The general rule is, the longer it takes, the bigger the fines and remediation costs – and we’re almost two years along without fixing anything. For comparison purposes, when Warwick wasn’t in compliance on stormwater- for adhering to the street sweeping and culvert cleaning schedule – their remediation costs totaled about a quarter million dollars, not counting legal expenses. That was for one violation, and we have ten.
So Frank, yes, I do have suits against the town – and so do you. That pales in comparison, because unlike solar, what’s going on at the DPW garage DOES represent a threat to the life safety of town residents, and I also encourage all interested parties to attend the town council meeting and get involved.
Large-scale solar projects in rural areas often mean large-scale clear-cutting of forest and habitat destruction. Destroying trees, which convert CO2 to oxygen, for solar electricity does not seem "renewable." It seems that the footprint these subsidized projects require cancel one benefit for another while also creating an eyesore.