UMass-DEP dispute stalls harbor clean-up
BY PETER B. BRACE INDEPENDENT WRITER

Swimming, shellfish digging, boating, wading, bird life, plant life, marine life and tourism are all things that could gradually erode away if Nantucket does not gets its minimum harbor water quality standards for Nantucket and Madaket harbors sooner than later from the state. Nantucket still does not have its estuaries project numbers for its two main harbors.

A dispute between the state's Department of Environmental Protection and UMass over water quality data and modeling software is keeping Nantucket's harbors remediation efforts on hold.

The Estuaries Project reports from the School of Marine and Science Technology (SMAST) at the University of Dartmouth led by SMAST technical director Brian Howes was supposed to deliver total maximum daily load numbers (TMDLs) for Nantucket Harbor and Sesachacha Pond last September and for Madaket Harbor this fall.

The state, however, is not cooperating. Howes and UMass want to keep the historical water quality data collected by Nantucket's town biologists over the last 15 to 20 years and by other Southeastern Massachusetts coastal towns participating in the Estuaries Project, and the computer modeling software they developed to generate the TMDLs.

PHOTO PETER BRACE/The Independent Hither Creek, above, and Madaket Harbor need the most attention by the town in terms of stemming the flow of pollutants flowing into them. A UMass-DEP dispute over water quality data is preventing Nantucket from helping these imperiled bodies of water.

"There's no sense in holding us hostage for all this," said Nantucket Health Inspector Richard Ray. "It's unconscionable by DEP. It's extremely frustrating."

TMDLs are threshold numbers measured in parts per million for the highest amount of pollutants found in a body of water and which meet the state, local and federal water quality standards for public health, drinking, swimming and fishing. Nantucket needs its TMDL numbers to help control the amount of pollutants entering island harbors and ponds.

The Department of Environmental Protection (DEP), which is funding the Estuaries Project and feels it owns the data and the computer modeling software, wants its property back.

According to State Auditor Joseph DeNucci, DEP is alarmed by UMass' unsavory hiring practices, contractor expenses related to SMAST's independent computer modeling contractor, and a probable conflict of interest between Howes and the contractor.

The current dispute has both sides in mediation trying to hammer out an agreement that will get Nantucket and the other 20 or so cities and towns in the project their TMDL numbers as soon as possible.

"I'll bet you five times a week people call me and say 'how's that estuaries report' and I've always said 'they got all the data and we're waiting for the number and now we've got all these legal problems with DEP and I'm at the point where I can't continue to defend them (SMAST) because they don't have the data, said Marine Superintendent Dave Fronzuto. "I think all those communities are extremely frustrated. Chatham is the only one I know that has the TMDL number."

Fronzuto added that Howes and UMass had offered about three weeks ago to hand over just the water quality data to DEP and keep the computer modeling software, but Howes said that because of UMass' third party contractual agreement with Applied Coastal Research and Engineering of Mashpee, he cannot give up the computer modeling software to DEP.

"It has to do with how best to serve the communities for the next two decades," said Howes. "The university thinks the DEP should continue to do the policy and regulatory work and that the university should continue to do the science and assessment work," said Howes.

Toward that end, Howes and UMass want to set up a municipal center that towns can use to access Estuaries Project data and resources to help them clean up their bays, harbors, estuaries and ponds.

"We want to be sure they have the capability to access the data and modeling necessary to independently assess the data and make sure they have the data to undertake their planning efforts," said DEP Spokesman Ed Coletta.

DEP's urgency for possession of the data and computer modeling software likely stems from an audit issued on Dec. 11, 2007 by State Auditor Joseph DeNucci for the period of April 1, 2002 through June 30, 2005, when the Estuaries Project received $3.3 million in state and federal grant monies.

DeNucci said he was "troubled by questionable contract costs, no-bid contracts, and a potential conflict of interest," according to Cape Cod Times reporter David Kibbe's piece in the Cape Cod Times on Dec. 12, 2007.

DeNucci's audit revealed that SMAST generated "questionable contract costs" totaling $629,362, that UMass did not employ the competitive bidding process mandated by state and federal law when awarding two subcontracts to Applied Coastal Research and Engineering for $833,254 and that there was a possible conflict of interest between Howes and Applied Coastal.

"I think the problem is that when this was established it was established under an agreement and the concept was having an unbiased independent group so that the DEP and towns would have a more transparent program [to] give everybody sort of a third party and make that three-legged stool work," said Howes. "We're trying to maintain that independence."

Regardless of these details, although Ray unofficially has Nantucket Harbor's TMDL number, he and the town cannot begin harbor-cleansing efforts until UMass and DEP come to an understanding and DEP officially issues Nantucket Harbor's TMDL number and then Madaket's this fall.

Ray fears that this dispute could set the Madaket Harbor/Hither Creek cleanup efforts back 18 to 24 months, depending on when SMAST releases that TMDL number.

"In essence it appears that the DEP wants both the data and the computer model in their possession," said Ray. "We have asked our legislators to continue to place pressure on the DEP and UMass to arrive at a conclusion because this stalemate has done nothing but bring to a halt remediation of nutrient loading in Madaket Harbor and on Cape Cod," said Ray. I