YORK, Maine — Maine Department of Environmental Protection Commissioner Jerry Reid has sent a strongly worded letter to Town Manager Steve Burns, telling him that the town’s expansion of a disputed stepped seawall without a permit “is a knowing and willful violation of Maine law and the department’s rules.” And he demands that the town stop construction.
This is the most recent chapter in an ongoing saga between the town and the DEP that dates back to last June, when the town received a notice of violation concerning the stepped seawall that the town had built in the vicinity of the Long Sands Bathhouse.
And a lot is at stake. Towns up and down the coast are facing similar problems with their seawalls as storms increase in intensity, and they’re looking intently to see how York’s situation plays out.
From the outset, the DEP said it did not give permission for the project, a replacement of the riprap seawall that had been undermined due to storms. The town maintains that in fact DEP, under a now-retired employee, did approve the project as long as the town stayed in the footprint of the existing wall.
Last August, the town applied for an after-the-fact permit with the DEP, which it put on hold last fall while next steps were considered. In the time since, the town has continued to build a stepped wall along portions of the beach south of Sun ’n Surf, on the expectation that the design would ultimately be approved.
Throughout the fall and winter, town engineers Ransom Consulting and state marine geologists Peter Slovinksy and Stephen Dickson, acting for the DEP, have submitted a number of briefs that deal with the efficacy of the stepped wall design. The geologists remain unconvinced that the wall will create less beach erosion — which is at the cornerstone of DEP’s concerns.
Both the geologists and Ransom agreed early on that the stepped design will force waves back on themselves, thus sparing oversplash on Long Beach Avenue and to the houses on the other side. The DEP has long made clear, however, that it cares more about the effect of the wall on the beach — and not on the road, which was once a dune, or the houses.
Ransom has also made the argument that as waves climb the steps, they will become less powerful, so a weaker wave with less energy will actually interact with the beach. One of the interesting highlights to come out of the most recent set of briefs is the fact that the wave energy is only 5 percent less with the stepped wall than the riprap wall.
Ransom argues that the state’s sand dune rule stipulates that damage to the coastal dune system with the new wall would have to be “less” than the original wall. “We have interpreted ‘less damaging’ to mean precisely that…not ‘equally damaging,’ nor is it ‘more damaging’ even if the difference is infinitesimally small.”
Slovinsky said he is concerned that “it would need to be substantially proven that the wave is less damaging when it goes onto the beach. There are a lot of assumptions and limitations with the modeling,” he said. “The findings showed a 5 percent potential reduction in wave energy versus the old wall. But then there’s a lot of assumptions associated with that.”
Meanwhile, Commissioner Reid in his letter to Burns is clear that he wants the town to stop building the stepped wall anyplace else along the beach. The DEP has no power to issue stop-work order, and would have to take the town to court to get one. He hints at that when he says, “If the Town of York does not immediately cease unpermitted construction activity along the seawall, the Department will take all necessary actions to ensure compliance with applicable laws and rules.”
Burns was feisty in his response. He said the town won’t be building any new portions of the seawall south of Sun ’n Surf, but primarily because it’s winter and therefore impractical. The DEP, he said, has shown little to no inclination to work with the town to come up with a “common sense” solution. He said it sounds as if the state agency wants to see Long Sands Road revert to natural dunes, regardless of the consequences.
“Who’s going to tell the property owners we’re going to let the seawall go? DEP is looking for a perfect solution which may or may not exist,” he said. “In the meantime, they’re not budging. In the meantime, if we get a big storm, it’s leaving us vulnerable.”
He said it appears that, in this situation, “the perfect is the enemy of the good. And I don’t know we are going to have a perfect solution from their point of view.”