Supreme Judicial Court of Massachusetts, Barnstable
Heard: March 8, 2018
action commenced in the Superior Court Department on
September 10, 2014. The case was heard by Cornelius J.
Moriarty, II, J., on motions for summary judgment.
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
J. Corbo for the defendant.
J. Wall for the plaintiffs.
Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, &
appeal, we are asked to consider whether dredging and beach
nourishment projects undertaken by the town of Dennis
violated Massachusetts environmental regulations by requiring
that materials dredged from the mouth of a tidal river be
deposited on a publicly-owned beach, rather than on an
adjacent, privately-owned beach. The plaintiffs, homeowners
and a homeowners' association, commenced an action in the
Superior Court, pursuant to G. L. c. 214, § 7A, against
the town, seeking injunctive relief and a declaratory
judgment on their claim that the town's actions violated
a Department of Environmental Protection (DEP) regulation
designed to protect beaches that are downdrift from jetties
from loss of sediments caused by the jetties. After both
parties filed cross motions for summary judgment, a Superior
Court judge concluded that the town's extension of a
jetty at the mouth of Swan Pond River in the early 1990s
triggered the requirements of 310 Code Mass. Regs. §
10.27 (2014), and allowed the plaintiffs' motion. The
judge also issued an injunction permanently requiring the
town "periodically [to re]dredge [the river]" and
to deposit the dredged material on the plaintiffs'
private beach. The town appealed, and we transferred the case
from the Appeals Court on our own motion.
conclude that judgment should not have entered for the
plaintiffs, and that judgment instead should have entered for
the town. Among other things, the plaintiffs have introduced
nothing in the summary judgment record showing that the
town's extension of the jetty violated, or even
triggered, the requirements of 310 Code Mass. Regs. §
10.27(4) (c) . In addition, as the judge found, the
town's subsequent dredging of the river did not trigger
the requirements of that regulation. Because the plaintiffs
would be unable to prove an essential element of their claim
at trial, the order of injunction must be vacated, and the
judgment allowing summary judgment for the plaintiffs must be
number of potentially overlapping statutes and regulations
are at issue in this case. Because an understanding of the
interrelationships among them is essential to understanding
the issues raised, we describe each in some detail.
Laws c. 214, § 7A,  an environmental citizen suit
provision, allows a group of at least ten residents of the
Commonwealth to file a complaint in the Superior Court when
damage to the environment is occurring or is about to occur
as a result of an action by, inter alia, a municipality, that
is in "violation of a statute, ordinance, by-law or
regulation the major purpose of which is to prevent or
minimize damage to the environment." See
Boston v. Massachusetts Port
Auth., 364 Mass. 639, 645 (1974). The statute defines
"damage to the environment" as "any
destruction, damage or impairment, actual or probable, to any
of the natural resources of the [C]ommonwealth, whether
caused by the defendant alone or by the defendant and others
acting jointly or severally." G. L. c. 214, § 7A.
wetlands protection act, G. L. c. 131, § 40 (act),
"was created to protect wetlands from destructive
intrusion," Healer v. Department of Envtl.
Protection, 7 3 Mass.App.Ct. 714, 716 (2009), and, inter
alia, governs the dredging of wetlands and lands bordering
waters. See G. L. c. 131, § 40. The act
requires, in relevant part, that a party wishing to dredge
first must file a written notice with a local issuing
authority, often, as in this case, a local conservation
commission, which exercises local regulatory authority under
the act. See G. L. c. 131, § 40. Following a
hearing, the authority shall determine if the project affects
an area that is "significant to public or private water
supply, to the groundwater supply, to flood control, to storm
damage prevention, to prevention of pollution, to protection
of land containing shellfish, to the protection of wildlife
habitat or to the protection of fisheries." Id.
If so, the issuing authority issues a written order that
"impose[s] such conditions as will contribute to the
protection of [these] interests . . . and all work shall be
done in accordance therewith." Id. No work may
be done without "receiving and complying with [this]
order of conditions." Id. DEP has promulgated
regulations under G. L. c. 131, § 40, to protect
wetlands. See 310 Code Mass. Regs. §§
10.00 (2014). Specifically, 310 Code Mass. Regs. §§
10.21-10.37 are applicable to all dredging covered under G.
L. c. 131, § 40. See 310 Code Mass. Regs.
§ 10.21. These regulations are "performance
standards . . . intended to identify the level of protection
the issuing authority must impose in order to contribute to
the protection of the interests of [G. L.] c. 131, §
40." Id. If the issuing authority determines
that a project will affect one of the protected interests
under the act, the issuing authority must "order
specific measures and requirements for each proposed project
which will ensure that the project is designed and carried
out consistent with the required level of protection,"
and must memorialize those requirements in an "[o]rder
of [c]onditions which is understandable and
number of other State and Federal statutes and regulations
concerning water quality also are applicable to the areas at
issue in this case. General Laws c. 21, § 27, provides
that "[i]t shall be the duty and responsibility of the
division [of water pollution control] to enhance the quality
and value of water resources and to establish a program for
prevention, control, and abatement of water pollution"
in the Commonwealth. DEP has issued water quality regulations
pursuant to G. L. c. 21, § 27, and G. L. c. 91,
§§ 52-56. See 314 Code Mass. Regs.
§§ 9.00 (2014). Section 9.01(1) of those
regulations provides that they "establish procedures
and criteria for the administration of Section 401 of the
[F]ederal Clean Water Act, 33 U.S.C. [§] 1251."
Section 9.01 (3)(a) of those regulations, in particular,
seeks to "protect the public health and restor[e] and
maintain the chemical, physical, and biological integrity
of the water resources of the Commonwealth by establishing
requirements, standards, and procedures" for dredging.
Title 310 Code Mass. Regs. § 9.40(4)(a) (2017), more
specifically, governs the spoils of dredging projects. As
relevant here, it provides that "in the case of a
publicly-funded dredging project, such material shall be
placed on publicly-owned eroding beaches." See
G. L. c. 30B, § 15 (a.) and (b), of
the procurement act, provides that a "governmental body
shall dispose of a tangible supply that is no longer useful
to the governmental body but having resale or salvage
value," through "competitive sealed bids, public
auction, or established markets."
recite the facts from the judge's statement of
"undisputed facts revealed by the summary judgment
record," supplemented by other uncontested facts in the
record. See Chin v.
Merriot, 470 Mass. 527, 529 (2015).
Historic dredging at mouth of Swan Pond River.
Miramar Park Association owns lot 88 on Land Court Plan
11503-J, a parcel of land on the Nantucket Sound shoreline in
the Dennisport area of the town; lot 88 contains a private
beach known as Miramar Beach. The individual plaintiffs own
easements appurtenant to their properties for the use of
Miramar Beach and the upland area of lot 88 for recreational
purposes. Lot 88 is located east of the eastern shore of Swan
Pond River and Miramar Road, a few lots east of the mouth of
the river as it empties into Nantucket Sound. Lot 87 on Land
Court Plan 11503-J, and lot 84 on Land Court Plan 11503-I,
formerly owned by the same owner who sold the Miramar Beach
parcel to the Miramar Beach Association, lie along the
shoreline to the west of lot 88. One of the individual
plaintiffs, Michael Breen, owns lot 87, to the east of
Miramar Road, and lot 84, to the west of that road. In
addition, two other plaintiffs, Annemarie and Dean
Wasniewski, hold easements over Lot 87.
western side of the Swan Pond River inlet is a stone jetty.
The record does not establish when and by whom the jetty was
constructed. A study conducted in 2010 by the Woods Hole
Group, Inc. (Woods Hole), on behalf of the town commented
that the jetty was in existence at least by 1850; a study
conducted by a geologist on behalf of the plaintiffs noted
that the jetty was constructed between 1935 and 1943. The
jetty traps littoral drift material as it is carried along
the predominantly west to east direction of the currents in
this part of Nantucket Sound. The jetty does not have a sand
by-pass system, which would transfer sediment to the eastern
side of the inlet. See 310 Code Mass. Regs. §
mouth of Swan Pond River periodically becomes partially
filled with sand. This results in reduced tidal flow, which
leads to algae blooms, fish kills, and foul odors upstream
along the river and in Swan Pond. To facilitate boat
navigation and improve water flow, the town has conducted
periodic dredging operations at the mouth of Swan Pond River
since at least 1980. It dredged the entrance to the river in
1980, 1984, 1988, 1997, 1998, 2000, 2010, and 2014. A planned
dredging in 2016 did not take place. The locations of the
placement of the fill from the three dredges in 1980, 1984,
and 1988 are not indicated in the record. Thereafter, the
town has placed sediment removed during the dredging at West
Dennis Beach, a public beach located approximately
three-quarters of a mile west of the jetty; in the area
immediately landward of the jetty, to the west of the river;
and, in 1996, on Miramar Beach as well as on West Dennis
Beach. After the town deposited the spoils on Miramar Beach,
the condition of the beach improved. In May, 1990, the town
acquired an easement over property near the western mouth of
Swan Pond River, three lots from the coastline, along the
river's edge, in conjunction with an engineering study
and other efforts to improve water flow and navigation on
Swan Pond River. The easement over lot 3-A includes the right
to access the property for "dredging, rip rap and
point in the early 1990s, apparently before October, 1992,
town extended the then existing jetty on the western side of
the mouth of the river northward, further upriver, in an
effort to prevent the erosion of the western shoreline of the
inlet. There is no indication in the summary judgment record
whether any permits were obtained for this work from the
town's conservation commission or from any relevant State
or Federal regulatory body, and, if so, what conditions, if
any, were placed on it.
2010 and 2014 dredging and ...