The Maine Department of Environmental Protection has issued a notice of violation to the town of York for its new, tiered seawall near the Long Sands beach house. Town officials have argued they were told they didn't need a permit as long as they stayed within the footprint of the previous seawall, which was badly damaged during winter storms. Credit: Deborah McDermott | The York Weekly

YORK, Maine — The town and Maine Department of Environmental Protection both say they are willing to work collaboratively on a recent DEP Notice of Violation concerning the new seawall by the Long Sands Bathhouse, but there is a decided difference of opinion over why the NOV was filed to begin with.

Town Manager Steve Burns and DEP Communications Director David Madore both say there may have been miscommunication or misunderstanding while the seawall was in its planning phase. Town officials say they were told they didn’t need a permit, while Madore said discussions were more nuanced than the town has been portraying, which may have led to misunderstanding.

At issue is a June 27 DEP Notice of Violation against the town for what all agree is an innovative design for a replacement wall. The old seawall in the vicinity of the bathhouse was damaged from winter storm Riley this past March. The replacement wall is a tiered step design intended to take the brunt of winter storms, slow down wave action and mitigate damage to Long Beach Avenue and to the houses across the street.

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Public Works Superintendent Dean Lessard references a 2015 meeting with a now-retired DEP employee who told him “as long as we stay in the same footprint as the old seawall, we didn’t need a permit. That means it couldn’t be higher or thicker.” He said the new seawall did stay within the existing footprint.

“We don’t own the beach,” he said. The heirs of Roger Norton actually own the land. “So we can’t go any further onto the beach because we don’t own the property.”

But Madore said DEP officials dispute that the new seawall stayed within the footprint.

“In 2015, it’s true that we had discussions with the town about what they could and couldn’t do,” Madore said. “We said as long as it’s within the same footprint, and has the same elevation, they didn’t need a permit.”

But when officials came to the beach to view the work last May, following a citizen complaint, “the staff saw the changes as beyond the scope of what was discussed in 2015. The seawall can’t go longer” into the beach, and staff concluded the new seawall extended beyond the original seawall’s footprint.

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“We understand the frustration if there was some misunderstanding,” he said. “If there was confusion, that’s not a good thing. But seawalls are tricky things.”

“Two people can read a rule and interpret it differently,” Lessard concurred. “I totally understand. We’ve been trying to do the right thing.”

The town submitted an application for an after-the-fact permit for the seawall at the end of July, as requested by DEP. The permit is critical, as the town intends to use the step design up and down the beach, north to the Cutty Sark Motel and then again in the area from south of Webber Road to the intersection with Long Sands Road – another problem area for storm oversplash during the winter. Voters approved $1 million for the work last May.

As part of the permit, DEP wants the town to show how the step design will not add to beach erosion.

“They wanted us to do calculations of how this affects sand on the beach,” Lessard said. “We believe we can show the benefits from our design. Instead of waves running up and down, the energy of the waves is slowing down with our design.”

If DEP grants the permit, there could be ramifications throughout Maine, Burns said. “This analysis may be important to any coastal community” as they look to come up with a solution to seawalls battered by increasingly ferocious winter storms. “My gut feeling is that towns are going to say, ‘Look at what York is doing. We want to do that.’”

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Madore said he suspects Burns is correct. “This project is furthest along so far” of any seawall replacement project. “I’m sure some towns are looking at it. Some communities are in the same position,” dealing with the aftermath of Riley, “and are planning out what their next steps would be.”

DEP can take up to three months to render a decision on the permit application. The Notice of Violation was not accompanied by a stop-work order, although any expansion work is clearly on hold. In the meantime, workers are laying sidewalk south of Sun ’n Surf restaurant and will continue that work – stopping when they reach closer to Long Sands Road.

Madore said he was unable to comment on the application as it is now a pending matter, but said the “end game is a project that is done right, and we can all walk away with something that benefits everyone.”

Burns doesn’t disagree.

“If the DEP said we needed a permit and we didn’t get it, we’re going to get it. We will not fight that,” he said. “I hope there is a pretty low risk of not getting it. If we don’t, there will be a big problem.”

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