Edgartown asks state ethics commission to probe dredge work
File photo by Ralph Stewart
Edgartown selectmen voted Tuesday to ask the state ethics commission to investigate the actions of former dredge committee chairman Norman Rankow, for his role in authorizing dredging in Katama Bay at the private dock of a client, without necessary permits from federal, state, and local regulatory agencies.
The selectmen's vote, at a meeting attended by members of the dredge advisory committee and town officials, followed a report by town counsel Ron Rappaport on the operation of the town-owned dredge.
The dredging took place around the Katama Bay dock of Stephen and Deborah Barnes of Dover and Edgartown. Mr. Rankow is a building contractor who is building a waterfront house for the Barneses. There is a pre-existing dock on the property.
"This is a very serious matter, that town equipment was utilized to do unpermitted dredging for private benefit in Katama Bay, and to dump the spoils into the bay," Mr. Rappaport told selectmen. "It's the type of activity that undermines the public's faith in their government. It's necessary that the selectmen and other town boards take forceful action."
Mr. Rappaport said he concluded after an investigation that no members of the dredge advisory committee, the dredge foreman Ed Handy, or the dredge operating crew, were aware that there were no permits for the dredging.
Selectmen Margaret Serpa and chairman Art Smadbeck signed a letter Mr. Rappaport prepared, referring the matter to the ethics commission, and they voted to implement all the recommendations the lawyer made Tuesday. Selectman Michael Donaroma, on vacation, was absent.
Mr. Rappaport advised the selectmen to establish protocols to ensure that unpermitted dredging never happens again. These would include a requirement that the selectmen, conservation commission, dredge advisory committee, and the shellfish constable all sign-off on any future dredge projects.
Mr. Rappaport also recommended that the conservation commission agent require the Barneses to pay for an environmental survey to assess whether shellfish habitat and eelgrass was damaged during the dredging.
Mr. Rappaport said he could find no evidence that the property owners were aware that the unpermitted work took place. He said he agreed with the conservation commission that fining the property owner is not appropriate.
Mr. Rappaport recommended no further private dredge work go forward until protocols are established. "It may be that as a result of looking at those protocols, that we may end up concluding that there should be no ability to do work for private benefit with the town dredge," he said.
Mr. Rappaport said he is aware that there are allegations of previous unpermitted dredging involving the town crew and equipment. While he said he has not had a chance to research that thoroughly, after preliminary conversations with dredge advisory committee members and dredge crew members, he is not aware of any unpermitted work in the past five years.
"If there is any, I will pursue it," Mr. Rappaport said. "I cannot underscore enough the seriousness of this activity and the detrimental effect it has on people's faith in government."
Selectman Serpa was sharply critical in her assessment. "Our instinct is to trust people," she said. "When they exceed that trust and act on their own, they lose sight of their accountability to taxpayers. I think this is just deplorable."
Mr. Smadbeck thanked Mr. Rappaport for stepping into the breach and for his willingness to help the town implement dredge protocols. He said he hoped that the latest controversy to disrupt town affairs would not affect the town's dredging program.
"I know everybody sitting here works hard, the dredge has been a boon to the town," Mr. Smadbeck said. "I would not like to see anything about dredging taken in a negative way... This is a serious and unfortunate misstep."
Several members of the conservation commission, the dredge advisory committee, and the dredge crew attended the meeting. Most sat in grave silence as the town counsel made his recommendations in stern tones. Mr. Rankow was absent.
Major controversy spawned
Mr. Rankow resigned from the dredge advisory committee in a letter dated February 2, which made no mention of the burgeoning controversy over the unpermitted dredging project on property owned by Stephen and Deborah Barnes.
One day later, in a letter dated February 3, addressed to Karen Adams, chief of permits and enforcement for the Army Corps of Engineers, Mr. Rankow apologized for his actions.
"As is often the case in a small town, one must be careful of any conflict of interest issues," Mr. Rankow said. "In this case, I am afraid I have crossed over that line and caused these problems I hope to help resolve."
Mr. Rankow said that he took the action without the knowledge of the Barneses or their engineer, Dick Barbini, although he said he is familiar with the permitting process.
"I never intended to do this minor dock dredging without seeking all local, state and federal permits," Mr. Rankow wrote. "Any of my personal actions were without the knowledge of Mr. Barbini, who had certainly made me aware of the overall process. I, too, as head of the department, was aware of the process."
Mr. Rankow said that he ordered the dredging on January 13, to meet an approaching deadline. "Immediately following the conservation commission hearing, we were going to file the requisite notifications to both agencies for a minor project," Mr. Rankow wrote. "This is in fact a very permissible and minor application on face. Notwithstanding this, my actions were clearly wrong but well intended. Our dredge season ends on January 15, as a rule, due to time of year restrictions, as I am sure you are aware. Since I did not want to violate this technical timeline, I gave the approval to let the dredge crew do the actual work on Friday the 13th to avoid that issue. This, knowing that our local conservation commission hearing was five days away.
"In closing, I want to say that I deeply regret having jumped the gun here on this process. The Barnes family had no role in my actions in beginning the work ahead of final permitting. Dredging is a very challenging and tough business, and my actions fell outside accepted practices."
Mr. Rankow signed the letter as the former chairman of the Edgartown Dredge Department.
In a letter dated February 14, Mr. Barnes responded to a request for information about the dredging work from Ms. Adams of the Army Corps of Engineers. She asked specifically if he had performed any work or authorized any work to be performed, in areas under Corps jurisdiction.
Mr. Barnes replied, "The dredging was performed by the town, using town‑owned equipment and town personnel. Although I had been making arrangements with the then-chairman of the town's dredge committee, Norman Rankow, for the area in question to be dredged eventually, I did not authorize or direct Mr. Rankow to commence the work. I had asked my consulting engineer, Richard Barbini, to start the process of obtaining any required permits and approvals for the project. To that end, Mr. Barbini filed a Notice of Intent with the Edgartown conservation commission on January 6, 2012. It was exclusively Mr. Rankow's decision to start the work when he did. He controlled both the timing and the method of the dredging work. My intention had always been for the work to occur only after all required permits and approvals had been issued, and in full accordance with those approvals."
Mr. Barnes said he was not concerned about the timing of the work "and certainly would have preferred that the dredging not be performed at all, rather than performed without all necessary permits."
Town counsel called in
On February 15, conservation agent Jane Varkonda sent a strongly worded letter to Dave Nash, newly elected chairman of the dredge advisory committee.
Ms. Varkonda also sits on the dredge advisory committee, as an appointee of the conservation commission.
"In addition to proceeding without permits, the over dredging and disposal of the sand into the harbor are serious matters," Ms. Varkonda wrote on behalf of the conservation commission. "Even if the work had been approved, it is apparent that the dredge crew did not have a copy of the dredge plan and did not know where to dredge. The commission recommends that the dredge committee turn the matter of the dredge crew's involvement in this matter to town counsel."
The conservation commission considered sharp sanctions against the dredge advisory committee, including rescinding all permits it has issued for dredging in Edgartown waters, but decided against that. The conservation committee also decided not to fine the property owners, citing the considerable expense they are likely to incur and possible fines likely from state or federal sanctions.
The committee also opted not to fine the dredge committee, having decided that it was pointless for one town committee to fine another. The committee can impose a maximum fine of $300 per day.
At Tuesday's meeting, Mr. Rappaport said he concurred with those decisions.
The Army Corps of Engineers and Department of Environmental Protection are now considering how they will enforce their regulations. They have a range of enforcement options. They could order the owners, at their cost, to restore the dredged area. They could order mitigation in the form of some environmental benefit such as shellfish seeding or beach nourishment in another area of the bay. They could also impose substantial fines. It could take several months for the bureaucratic process to play out.