Newcastle Board of Selectmen

MDOT Commissioner, staff, appear at Sherman Marsh meeting

Bernhardt attempts to address residents’ concerns about takings
Posted:  Tuesday, December 13, 2016 - 4:00pm

Maine Department of Transportation Commissioner David Bernhardt, Project Manager Deane Van Dusen, and other staff members appeared at a meeting of Sherman Marsh residents and other interested townspeople before a regularly scheduled Newcastle Selectmen’s meeting on Dec. 12 at the River Road Fire Station’s community room. MDOT is hoping to put easements on 16 residences along Sherman Marsh for a wetland bank, which would allow MDOT to destroy wetlands in other parts of the state by protecting Sherman Marsh.

According to Van Dusen, most of the wetlands that MDOT destroys in the process of road-building and repair are freshwater wetlands, not saltwater wetlands like Sherman Marsh. Sherman Marsh wouldn’t actually provide any reclamation for those freshwater ecosystems, resulting in net habitat loss for freshwater species, a fact leading many ecologists to question the idea of wetland banking at all.  In Illinois, a wetland bank was established to produce no net loss of wetlands; however, wetlands were lost, especially in critical areas near Lake Michigan, and those that were mitigated were of lesser quality and had an adverse impact on waterfowl, according to a paper by Morgan Robertson, 10 years after wetland banking was allowed in that state.

Most of the residents who will be affected by the taking of their land were present at the meeting.

Justin Wood, who owns land on the marsh, is facing a 50-foot easement with an additional 50 feet that would not be permitted to have his small herd of cattle on it. “We have been farming this land for generations,” he said. “And you’re planning to destroy it.”

Marva Nesbit, who also owns land near the Woods’ farm, said that she has been told at various times that her easement would go all the way up to her porch, and that the vegetation would have to be allowed to grow up to eight feet in height, although that’s lately been cut back to three feet in height. “I’ve been told I can’t keep my dock, then I’ve been told I can, but I have nothing in writing yet. Everything is just a verbal promise.” Nesbit said she bought a lakeside home, and feels that the DOT is harming her twice — once when it did not restore the lake after the spillways were breached in the Columbus Day storm of 2005, and again now, by attempting to wrest control of a good percentage of her property from her.

Wood, at least, might have a legal option to fight the eminent domain. As a working farm, his land is subject to a federal restriction called the Farmland Protection Policy Act, which protects farms from impacts that would result from federal programs including state departments of transportation programs that have federal dollars or federal technical assistance.

The wetland bank has support from the Army Corps of Engineers, among other federal agencies, so Wood’s farm has to be considered under the FPPA. Farmland subject to FPPA requirements does not have to be currently used for cropland. It can be forest land, pastureland, cropland, or other land on any farm. Wood is currently using both his pastureland and his woodland for his cattle.

When asked if MDOT had taken the FPPA into consideration, Van Dusen said he had not, and that it hadn’t come up in any of the meetings with the inter-agency review team. The IRT, which developed the restrictions on the properties, include the Army Corps of Engineers, the National Marine Fisheries Service, the U.S. Environmental Protection Agency, the U.S. Fish and Wildlife Service, the Maine Department of Environmental Protection, and the Maine Department of Marine Resources.

Van Dusen said he would ask about FPPA and get back to residents, town officials and the press.

There had been a plan for the IRT to meet with the residents, but it was canceled in July when the Army Corps of Engineers informed MDOT that their attorney told the IRT not to meet with the residents again. On that basis, the IRT has refused to attend meetings with the residents since then.

A resident asked about the mean high water mark, which Van Dusen thought meant the highest high tide mark of the year. He was told it was the average of the tides. He was also asked if the mean high tide was for this year, even though as a salt marsh, Sherman Marsh is experiencing creeping sea level rise and the mean high tide mark could be very different in a few years. He didn’t have an answer to that question.

Bernhardt said that the funds the state would receive for mitigation wetland banking would be about $4 million. He said those funds would be used for road projects, since he wouldn’t have to spend money on mitigation once the wetland bank was established.

The residents were stunned. Most of them had received preliminary offers of about $25,000 for the permanent loss of the use of their land, totaling a tenth of what the state will receive for using their land to create the wetland bank.

“What I am hearing is that a small group of residents in one town are essentially footing the bill for a lot of road projects over a large area of the state,” said Martha Gaythwaite, a resident and attorney, who also had pointed questions about the appeals process and other legal options to prevent the taking.

Van Dusen told Gaythwaite that, while the amount of money the residents might receive could be resolved by the appeals process, the condemnation would not be. “So we actually have no real recourse,” Gaythwaite commented. “I see. So you deliberately created a situation, by not maintaining the spillways that failed in the storm, and are using that situation to get mitigation credits to the tune of $4 million, while offering the residents something around $400,000, after destroying their property values by your neglect.”

Bernhardt said that the MDOT is not typically in the business of taking care of dams and spillways. “We wouldn’t have gone into the dam business,” he began.

“But you did,” Gaythwaite said.

“We do roads and bridges,” he said. “Once the credits are used up, we’ll transfer the easements to another agency whose job it is to manage the environment, like Inland Fish and Wildlife.”

Selectman Brian Foote suggested that in light of the amount of money  MDOT is bringing in for the bank, that they “sharpen their pencils” and make the residents a better offer, but many of the residents were unwilling to consider any offer that would forbid them from using their land.

Most of the residents wanted specific items in writing, including the verbal assurances that some of the buffer zones had been reduced and a copy of the material Van Dusen was planning to present to the IRT.

Van Dusen said he would provide the information within about six weeks, and that he hoped to have the whole process completed by June.

Others questioned why the state could not issue a request for proposals from individuals who wouldn’t mind having their land saddled with an easement, rather than taking the land by adversarial means. Bernhardt said that it had often been tried, but that in this case, the IRT really wanted Sherman Marsh, because it was a high-value site. “They view this as a protection and preservation effort,” he said.

Nesbit said that her land is organic and all of the neighbors have been excellent stewards of the land. “I see this whole situation as the MDOT abusing us twice — once when you didn’t do your job in 2005, even though you were told of the problem, and now that we have been living with the problem your behavior created, you want to capitalize on it at our expense.”

Newly elected Senator Dana Dow, R-Waldoboro, attended, and said he was very troubled by the idea of people losing their land in this way. “This doesn’t seem right to me,” he said. “If MDOT was building a road there, it would be one thing, but to take this land to mitigate a problem elsewhere doesn’t seem reasonable to me.” Dow said he would look at all options to help the residents around Sherman Marsh.

Van Dusen maintained earlier that the neighbors were nearly all on board; however, the residents appeared to be a united front on Dec. 12.

One Newcastle resident said that it may cost the MDOT much more than it first anticipated in additional compensation to the owners, legal costs, and other incidental expenses. Mal Carey asked, “After all the trouble you’re facing, in the end, who decides if it just isn’t worth the bother?”

“That would be me,” Bernhardt conceded. “I’d make the final decision.”