State eases Ice House Pond conditions
Eliminating restrictive conditions imposed by his predecessor, the head of the state's top environmental agency cleared the way for the public to swim in Ice House Pond, one of the Island's few freshwater ponds. The state's decision amounted to a small victory for the Martha's Vineyard Land Bank, whose plans for its Ice House Pond property in West Tisbury have been vigorously opposed by a determined group of pond abutters who objected to the proposed public use.
The regulatory review is not yet complete, but if all goes smoothly, Land Bank officials said the public may get to take a dip by August in the cool water of the pond, also known as Old House Pond. The Land Bank's 12-acre Manaquayak Preserve fronts on the pond.
In a letter dated May 25, addressed to Thomas Robinson, chairman of the Land Bank commission, Executive Office of Energy and Environmental Affairs (EOEEA) Secretary Ian A. Bowles said that he approved amended language submitted by the Land Bank in an effort to meet state concerns. He said he supported the removal of conditions related to water quality, parking, and recreation use set by former Romney administration Executive Office of Environmental Affairs (EOEA) Secretary Steven Pritchard.
"I would like to be clear that the intent of the conditions set by Secretary Pritchard was not to unduly or unfairly restrict public access to the Manaquayak Preserve," wrote Mr. Bowles, "but to provide what the Secretary thought was reasonable oversight of a valuable and unique natural resource."
Secretary Bowles retained a condition that requires the Land Bank to submit a detailed annual monitoring report, but he wrote that it could be submitted with the annual report filed by the Land Bank as a statutory requirement.
[A copy of the Secretary Bowles's letter is available here.]
The secretary's letter was a response to a letter dated March 5, sent by the commissioners over the signature of Land Bank commission chairman Tom Robinson of Tisbury, that asked the newly appointed secretary to reconsider restrictions that would prevent the public from swimming in the pond at the same time that riparian owners use it for "a variety of unrestricted recreational and commercial use."
The letter included two pages of text the Land Bank proposed to insert into the 2006 management plan, intended to address Land Bank and state concerns about the health of the pond. The key component of that letter was a Land Bank proposal for local oversight that included the West Tisbury board of health and the Martha's Vineyard Commission to monitor water quality.
Reached at his home Tuesday evening, Mr. Robinson, commissioner from Tisbury, said, "I'm grateful that people Island-wide will soon be able to visit this pretty little pond."
Mr. Robinson, a professional arborist and chairman of the Tisbury conservation commission, said he was thankful that Mr. Bowles was willing to look at the Land Bank's requests. "I think the letter indicates we had a reasonable approach, and I commend him for recognizing that," said Mr. Robinson.
Pamela Goff, Chilmark commissioner, was also pleased. In a telephone conversation Tuesday, Ms. Goff said that only that morning she was the guest speaker at a meeting of a West Tisbury conversation group, where someone asked her when the pond would be open to the public.
"The plan deserved approval, and I think the public's use will be careful and gentle, and it will be enjoyed by a great many," she said.
As part of the final steps in the regulatory process, the Land Bank must now comply with the Mass Endangered Species Act (MESA) and file a notice with the Natural Heritage and Endangered Species Program.
The burden is to prove that the proposed work, including the construction of a trailhead, trail work, and swim perch, will not affect rare species, such as box turtles or the New England bluet damselfly, or propose mitigation measures to offset any likely disruption.
Land Bank ecologist Julie Schaeffer said she is working with Land Bank property superintendent Matthew Dix to prepare the MESA filing. Ms Schaeffer said she is happy that EOEEA was willing to reconsider the conditions and accept the Land Bank's suggestions that the MVC and the town's board of health review pond data and make recommendations as they see fit for the pond.
"This benefits the pond and the public," said Ms. Schaeffer.
As part of the approved management plan, swimmers may enter the water only by means of a wooden swimming perch built out over the water in order to avoid stirring up sediment and protect the shoreline vegetation from swimmers, who must keep off the sandy beach previously used by property visitors. Launching of canoes and kayaks is not allowed.
Before the property can be opened, the West Tisbury conservation commission will need to approve plans for the swim perch. Given what already exists, Ms. Schaeffer said she does not anticipate any problems. There are several existing platforms or structures and stairs that provide pond access for abutting property owners, she said.
On Tuesday, Christy Edwards, EOEEA policy coordinator, told The Times that the original intent of the conditions was to protect the pond without limiting or completely eliminating public access. When water quality data collected last year made it clear that based on the conditions set by Secretary Pritchard that the property would not be able to be opened to the public because of influences totally unrelated to public use, it was time to take another look at the conditions.
"At that point, it seemed clear that we needed to take another look at those conditions," Ms. Edwards said. "And that is when we invited the Land Bank to submit a new proposal with amendments to the management plan that they thought, based on the new data, would seem more reasonable. And what they submitted to us, we thought was reasonable."
The effort to provide public access to a pond enjoyed by generations of Islanders who took advantage of informal access over private property to go for late-night swims has now been the subject of review by three EOEA secretaries and taken several years.
The Land Bank purchased the property in November 2004, through the use of a straw buyer in order to mask its interest from multiple sellers who, the Land Bank said, would likely not have sold to the public agency. The total purchase price was $2 million, and the sellers were Judith Lane at $1,250,000 and Nancy Schwenkter and Mary-Robin Ravitch at $750,000.
After a property is purchased, the elected Island-wide Land Bank commission and the town advisory board must first approve property management plans. The plan is then submitted for review and approval by the secretary.
But once the Ice House Pond purchaser was revealed to be the Land Bank, several sellers and property abutters mounted a vociferous campaign against the Land Bank and public use they deemed would be harmful, including swimming.
Among the most vociferous opponents were Mark Mattson, a limnologist in the state Department of Environmental Protection, and his wife, Judith Lane. Mr. Mattson, who works closely with state environmental personnel, repeatedly noted that his comments were those of a private citizen.
Several of the requests and arguments made by Mr. Mattson and Ms. Lane in letters to EOEA would later emerge in the conditions.
In 2005, then secretary Ellen Roy Herzfelder rejected the Land Bank's first Ice House Pond plan, the first time in the public land conservation agency's then 19-year history that the state failed to approve a submitted management plan.
In a letter dated July 24, 2006, new EOEA Secretary Stephen Pritchard approved a revised property management plan, but for the first time in 20 years, EOEA approval came with a set of four conditions.
The most significant of the conditions placed all responsibility with the Land Bank for maintaining the pond's current water quality, within limits set by the state. That included measurements for nitrates and phosphorus, chemicals normally associated with septic systems and fertilizer.
In February, Ms. Schaeffer told The Times that the results from Land Bank water testing, conducted in the summer and fall of 2006 while the property was still closed to the public, revealed that the phosphorous level had already been exceeded and the nitrogen level was close to the maximum set by the state. In a story published Feb. 8, The Times reported that based on the state's conditions, public swimming this summer would be prohibited and that the Land Bank must conduct a costly comprehensive study to show that swimming is not the source of pollution despite the fact that the property had not yet been opened to the public.
After reading the story, Ms. Edwards contacted the Land Bank and said that the conditions were not intended to prevent public use of Manaquayak Preserve. She invited the Land Bank to submit substitute proposals.
That conversation prompted the letter to EOEA Secretary Bowles, dated March 5. In that same letter, Mr. Robinson also asked the secretary to investigate the issue of "inappropriate influence" exerted during EOEA's review of the Land Bank property management plan, in particular the involvement of Mr. Mattson.
Following a review, Kenneth Kimmell, EOEA general counsel, told the Land Bank that he saw "no evidence of inappropriate influence in EOEA's review of the management plan."