Dear Friends of the Forest,

Friends of Wakefield’s NEMT Forest would like to provide an update on the recent auction results and a summary of the May 9th Hearing in the Ten Residents’ appeal of DEP (the MA Department of Environmental Protection). Your support means a lot and we are grateful that you care so much about local and statewide conservation.

Thank you for donating to and participating in the Friends’ Second Online Auction for the Forest

The auction, which featured original art, vacation and single-day getaways, local interest and collectible items, and antique and vintage pieces raised close to $1000. The funds will support the expert analysis of the forest, wetlands, and construction plans that provide essential facts and expert opinions to the appeal of DEP by the Ten Residents of Wakefield. Please follow our updates for information about future events.

May 9th Public Hearing in the Ten Residents’ Appeal of Mass DEP

On May 9th the Ten Residents group appeared in a Public Hearing for their appeal of the Massachusetts Department of Environmental Protection (DEP). The Hearing was one of the last events in the Ten Residents’ appeal, which started in November of 2023. 

The appeal was filed to the Office of Appeals and Dispute Resolution (OADR), which receives all adjudicatory appeals of DEP’s permitting and enforcement decisions. As an administrative adjudicatory process, the appeal was heard by a Presiding Officer whose role is similar to that of a judge- to preside over the appeal process and hearing and to render a recommended decision on the case. OADR is a separate and independent office of DEP. Presiding Officers in OADR are experienced attorneys at DEP appointed by Mass DEP’s Commissioner to serve as neutral hearing officers. See below for a detailed summary of the appeal events to-date. 

In November, December, and January, the parties to the appeal- the Ten Residents (the “Petitioners”), the Northeast Metro Tech (the “Applicant”) and the DEP (the “Department”)- participated in mediation discussions required by the appeal process. The mediation was aimed at reaching a settlement agreeable to all parties. On reaching an impasse, the appeal proceeded to an adjudicatory Public Hearing process.

In February, three issues for adjudication were identified following a Pre-Hearing meeting of the parties: 

(1) Whether the project had been “conditioned” to meet certain Wetlands Protection Act (WPA) requirements for proposed work in the bordering vegetated wetlands (BVWs- which are freshwater wetlands which border on creeks, rivers, streams, ponds and lakes); and 

(2) for proposed work in the Buffer Zone to the BVWs (the land surrounding the wetlands). (In other words, were the requirements placed by DEP on the construction plans sufficient to ensure that the Wetlands Protection Act regulations are satisfied.) 

(3) Whether the project, as conditioned by DEP, meets the Wetlands Protection Act Stormwater Management performance standards. The WPA stormwater standards at issue address, among other things:

• discharge of untreated stormwater and potential for erosion; 

• increased rate of stormwater runoff from the site and risk of flooding; 

• recharge of groundwater to compensate for the planned increase in impervious surface area; 

• removal of contaminants from water runoff; and

• protection of critical natural areas 

See below for more about the Stormwater standards.

The Ten Residents have the burden of proving by a preponderance of the evidence that the DEP erred in issuing the Superseding Order of Conditions (the decision overturning the Conservation Commission).

In February, the parties (the Ten Residents, Northeast Metro Tech, and DEP) identified witnesses who would provide testimony on the issues for adjudication. 

In March and April the witnesses submitted Pre-Filed “Direct” Testimony and Rebuttal Testimony on the issues. The Pre-Filed Direct Testimony (written testimony) included evidence and exhibits upon which a final decision would rely. The Rebuttal Testimony (also written testimony) allowed the parties to respond to claims made in the opposing side’s Pre-Filed Direct Testimony.

In the course of the appeal, the NEMT attempted to dispense with and (when that failed) to limit the Ten Residents’ case by submitting a Motion to Dismiss (in January) and later a Motion to Strike Testimony (in March). The Ten Residents responded swiftly to both motions. The Presiding Officer denied the Motion to Dismiss and allowed the testimony in question to be considered.

The May 9th Public Hearing allowed the Ten Residents, NEMT, and DEP to cross-examine (question) the opposing party’s witnesses about the written testimony provided ahead of the Hearing. 

Formal Hearing On Appeal To The OADR

The May 9th Hearing took place in a conference room space at the DEP’s Northeast Regional Office (NERO) in Woburn. (Due to limited information on seating capacity we regret that we could not extend an open invitation to all supporters to attend the hearing.) The Hearing started at 10 am sharp. Each side (the Ten Residents being on one side and NEMT and DEP being on the other) was allotted three hours to question the opposing side’s witnesses about their pre-filed testimony. The format of the Hearing provided that the Petitioners’ (Ten Residents’) witnesses would be cross-examined first by the opposing parties. The Ten Residents’ witnesses were Doug Heath (hydrogeologist), John Chessia (civil engineer and expert consultant) and Christine Rioux (environmental scientist). The witnesses’ pre-filed testimony addressed (respectively): (1) risks to freshwater jurisdictional wetlands from pollutants (including chloride) in concentrations or combinations that are toxic to humans, aquatic life and wildlife; (2) the construction plans’ (lack of) compliance with the Wetlands Protection Act stormwater management standards; and (3) the lack of conditions in place necessary to contribute to the protection of the wetlands and critical natural habitats. Each witness was sworn in in turn; however, the attorneys for NEMT and DEP had no questions for the Ten Residents’ witnesses about their pre-filed testimony. It’s possible that questioning the witnesses would only have hurt their case!

Next, the NEMT’s witnesses (who included the project team’s executive project manager / engineer and hired wetlands consultant) were sworn in, followed in turn by DEP’s witness, the environmental analyst who reviewed NEMT’s appeal of the Conservation Commission and overturned the Conservation Commission’s decision. Christine Rioux, PhD, the Ten Residents’ representative, asked prepared questions of the witnesses in a cross-examination that lasted most of the three hours. The Hearing format required that all questions relate directly to the witness’s pre-filed testimony. Cross-examination questions addressed the effects of construction on the resource areas; the construction plans’ compliance with WPA standards; and the DEP analyst’s review process leading to his overturning of the Conservation Commission, among other questions.

An audience of about 20- most of them Ten Residents and supporters of the forest, and also representatives from Wakefield’s Conservation Commission, NEMT and DEP- observed the proceeding. All present were keenly attuned to the stakes of the Hearing. It was an amazing experience of participatory government. After a few final “redirect” questions and questions from the Presiding Officer, the hearing was adjourned around 3 pm. 

What’s Next

At the close of the Hearing, the Presiding Officer defined a timeline for the remainder of the appeal that includes time for the parties to receive and review the Hearing transcript, submit corrections to the record, and submit closing statements. After considering the testimony and arguments, the Presiding Officer will issue a “recommended” final decision on the case. Subsequently, a final decision (that follows a review of the recommended final decision) is expected to be issued by the Commissioner of DEP, Bonnie Heiple. Given the timeline, the recommended final decision is expected to take several more weeks (or more). We will share this decision with you and will anxiously await the outcome.

We appreciate your ongoing support!

We are continuing to raise funds to support this ongoing expert analysis through the end of the appeal period, including during the hearing and through closing statements.

This analysis provides facts and expert opinions that are essential to the Ten Residents’ appeal and pertains primarily to the proposed projects’ compliance with the Wetlands Protection Act’s Stormwater Management Standards, which include 5 individual standards that together comprise more than half of the issues for adjudication in the Ten Residents’ appeal. 

We would appreciate greatly if you should see fit to contribute to the cost of this effort. Your contributions to-date- through GoFundMe, direct donations to the Friends, and participation in our fundraising events- have sustained efforts on behalf of the forest and wetlands- thank you.

Our experiences in advocating for preserving the NEMT forest and wetlands have led us to understand that the factors that have threatened this forest habitat, and which have already led to the destruction of more than 10 acres of the pristine forest, similarly threaten forests, wetlands, and natural habitats in many other Massachusetts locations and elsewhere. This is why we remain motivated to continue supporting the scientific study and preservation of, and public education about the remaining NEMT forest and wetlands.

Ways to contribute

We greatly appreciate any and all donations no matter the amount. Many of our supporters contribute through the Friends’ GoFundMe (“Save the Forest and Build the Voke”). If you would like a donation receipt for a donation made through GoFundMe, or if you donate $250 or more, please provide the Friends with your contact information through this Google Form here so that we may provide a donation receipt.

Or donations may be made by check to "Friends of Wakefield's NEMT Forest." Donation receipts will be provided for all gifts. 

Send to:

Friends of Wakefield’s NEMT Forest

PO Box 2013, Wakefield, MA, 01880

To receive information about future fundraising events and updates, including about the Ten Residents' appeal, sign up (if you have not already) at: https://www.nemtforest.org/take-action/#contact

The Friends of Wakefield's NEMT Forest, doing business as "Save the Forest" (and Build the Voke" / Coalition") is a 501(c)(3) tax-exempt organization. Your donations will be tax-deductible to the extent allowable by law.

Contact us

If you have questions, need more information, or have something unique or interesting to donate to an upcoming auction segment, please contact us at advocacy@nemtforest.org. 

Thank you again for your abiding concern for conserving natural resource areas and habitats.

With gratitude,

Friends of Wakefield’s NEMT Forest, Inc

Stormwater Management Standards at Issue

The DEP Stormwater Management Regulations at 310 CMR 10.05(6)(k) and the Massachusetts Stormwater Handbook (the “Handbook”; link), which is incorporated by reference into the Regulations, contain ten (10) broad Stormwater Standards, including the following five standards at issue in the appeal:

Standard 1: No new stormwater conveyances (e.g. outfalls) may discharge untreated stormwater directly to or cause erosion in wetlands or waters of the Commonwealth.  

Standard 2: Stormwater management systems shall be designed so that post-development peak discharge rates do not exceed pre-development peak discharge rates.

Standard 3: Loss of annual recharge to groundwater shall be eliminated or minimized through the use of infiltration measures including environmentally sensitive site design, low impact development techniques, stormwater best management practices, and good operation and maintenance. At a minimum, the annual recharge from the post-development site shall approximate the annual recharge from pre-development conditions based on soil type.  

Standard 4: Stormwater management systems shall be designed to remove 80% of the average annual post-construction load of Total Suspended Solids (TSS) [contaminants].

Standard 6: Stormwater discharges within the Zone II or Interim Wellhead Protection Area of a public water supply, and stormwater discharges near or to any other critical area, require the use of the specific source control and pollution prevention measures and the specific structural stormwater best management practices determined by the Department to be suitable for managing discharges to such areas, as provided in the Massachusetts Stormwater Handbook. A discharge is near a critical area if there is a strong likelihood of a significant impact occurring to said area, taking into account site-specific factors.

Detailed timeline of the Ten Residents’ Appeal To-Date

Nov 15- Petitioners (Ten Residents) filed an appeal of DEP to OADR

Nov 27- Petitioners submitted Letter to Initiate Settlement Discussions

Dec 18- Parties attended an information session on Alternative Dispute Resolution

Nov-Jan- Settlement discussions took place between the Ten Residents, NEMT, and DEP

Jan 10- Applicant (NEMT) moved to dismiss the case (denied on Feb 7)

Jan 16- Parties submitted Joint Status report stating settlement discussions were at an impasse

Feb 5- Parties attended a Pre-Hearing Meeting before the Presiding Officer

Feb 14- Petitioners submitted their witness list

Feb 21- Applicant (NEMT) and Department (DEP) submitted their witness list

Mar 13- Petitioners submitted Pre-Filed Direct Testimony

Mar 27- Applicant submitted Pre-Filed Direct and Rebuttal Testimony

Mar 27- Applicant filed a Motion to Strike Testimony (denied on Apr 9)

Apr 10- Department submitted Pre-filed Direct and Rebuttal Testimony

Apr 19- Petitioners submitted Rebuttal Testimony and Memorandum of Law

May 1- Applicant and Department submitted Memoranda of Law

May 9- Public Hearing 

The Parties to the Appeal

The Northeast Metro Tech (“the Applicant”). Applied for a permit under the state’s Wetlands Protection Act (WPA) to build a new school where a pristine native forest stood, with expected impacts to jurisdictional wetlands.

The Wakefield Conservation Commission. Issued the denial of the permit (the “Order of Conditions”) under the WPA.

MA Department of Environmental Protection (DEP; “the Department”). Issued the Superseding Order of Conditions (SOC) that overturned the Wakefield Conservation Commission.

The Ten Residents (“the Petitioners”). Petitioned OADR appealing DEP’s SOC.