The Barnstable County Board of Regional Commissioners is threatening legal action over the proposed machine gun range on Joint Base Cape Cod. Commissioners and their lawyers claim the Massachusetts Army National Guard failed to comply with legal and permitting requirements during its decade-long pursuit of the range.
In two letters urging the state Environmental Management Commission to reject the “misguided” project, the commissioners and their lawyers say construction and operation of the eight-lane range would threaten drinking water and destroy valuable wildlife habitat. The range would be built over the Cape’s sole source aquifer, a protected resource that provides drinking water to Upper Cape towns, and would require clearing up to 170.5 acres of trees.
The letters, which commissioners voted to send after their Wednesday meeting, are signed by the Barnstable County Commission and lawyers with the Boston-based environmental firm McGregor & Legere. Copies of the letters were sent to Matthew Porter, Massachusetts Army National Guard base commander; Kathleen Theoharides, secretary of the Executive Office of Energy and Environmental Affairs; and Massachusetts Attorney General Maura Healey.
“The Massachusetts National Guard will review the letters sent by the Commission and does not comment on potential litigation,” wrote a Massachusetts National Guard spokesperson in an email.
The lawyers’ letter outlines the Guard’s alleged failure to demonstrate compliance with a host of legal and permitting requirements. Overall, they said, the project is not in line with an agreement set by the Commonwealth and National Guard in 2001: all training on the northern 15,000 acres of the base must be "compatible"with protection of the drinking water supply and wildlife habitat.
The lawyers claim the project requires, but has not received, a two-thirds vote of the state Legislature under Article 97 of the Amendments to the Massachusetts Constitution given its status as public conservation land. The Guard has given no indication it would seek such a vote.
“Article 97 creates a procedural protection for public lands taken, acquired, or designated for natural resource or outdoor recreation purposes by requiring a super-majority, two-thirds vote of each chamber of the Legislature to transfer, or change the use of, open space or parkland taken, acquired or designated for its purposes,” the lawyers wrote.
Other permitting requirements, the lawyers claim, have also been ignored.
“[The project] requires a Consistency Certificate from the Massachusetts Office of Coastal Zone Management, which [the Guard] has not even acknowledged,” the lawyers wrote. “In our opinion, the Project must also undergo further review under the Massachusetts Environmental Policy Act (“MEPA”) due to the wholly inadequate nature of the [Guard’s] filings."
The letter from the commissioners lays out six key points of opposition to the project and concludes with the following:
“We oppose this project as it would harm the natural resources of Cape Cod and negatively impact the health and safety of its residents,” it says. “Based on the analysis by our Special Counsel, the Barnstable County Commissioners are prepared to take legal action, if necessary, to protect the Upper Cape Water Supply Reserve.”
Like other environmental groups and critics, they say the Guard’s environmental reviews of the project have been insufficient.
“The Environmental Assessment filed by the Massachusetts Army National Guard for the project is biased and lacks any objective independent analysis and or evidence to support its conclusions,” the letter says. “The process for reviewing the project lacks transparency and, according to our Special Counsel, the project as proposed is illegal as it is inconsistent with the Act Establishing the Upper Cape Water Supply among other laws.”
Last week, the Guard released dozens of emails to WCAI and the Association to Preserve Cape Cod in which the executive director of Joint Base Cape Cod said the machine gun range could not sustain the scrutiny of a more intensive environmental review, and if such a review were required, the Guard “will most likely lose the project and its funding.”
Andrew Gottlieb, executive director of the Association to Preserve Cape Cod, interpreted it as an acknowledgement that the Guard’s own environmental review was insufficient.
“It’s an admission that the internally run Environmental Assessment was inadequate ... and it’s the clarity we needed to show that this whole analysis was rigged to achieve an outcome that would avoid further independent third-party review of the project,” he said at the time.
After nearly a year of being criticism over its transparency, Guard officials launched weekly tours of the proposed range site in July that are still ongoing. More than 90 community members have participated and engaged with the civilian and military environmental experts behind the proposal, according to the Guard. Officials also boast that Camp Edwards received a 2020 First Place Award from the Secretary of the Army for Environmental Restoration for their progress in mitigating past environmental impacts.
But the commission had a different view of the Guard’s past actions.
“The proponents of the project have a history of hiding or covering up their proposals and opposing efforts by officials and environmental regulatory agencies — including the Environmental Protection Agency — to investigate and remediate groundwater contamination from previous Army National Guard activities and training practices,” the letter states.
Roughly $1.2 billion has been spent cleaning up past groundwater contamination from military activity on the base in the last two decades. The commission’s attorneys, in their letter, say the Guard “implicitly” admitted it could pollute drinking water, yet again, with this project in a document in which it promised to work with the EMC to identify and address potential changes to groundwater quality beneath the machine gun range.
“The July 17, 2020 [Massachusetts Environmental Policy Act] Certificate implicitly recognizes the potential for this Project to contaminate or otherwise degrade groundwater within the Reserve, including potential harm to the Sagamore Lens,” it said, referring to the largest of six groundwater lenses included in the Cape Cod Sole Source Aquifer. “Monitoring for contamination, and seeking to identify the source or [sic] mitigate the harm after the fact, is insufficient to ensure the permanent protection of the Reserve’s drinking water supply.”
In response to the potential lawsuit, State Senator Susan Moran said the Guard's proposal relies on outdated information and data.
“It is unacceptable and irresponsible to push this plan that has questionable long-term effects on the environment and the health of residents," she wrote in a statement. "There must be more transparency and a thorough analysis and review. The residents deserve answers and a seat at the table to consider proposals that may cause them harm. Start over and do it right."
The commission has not laid out a timeline for when it could file, but during the Wednesday meeting commissioner Mark Forest said the issue is too important for the commission to relent.
"What got us focused on this was the recognition that we have an Upper Cape water supply reserve, this 15,000-roughly acre conservation land,” he said. “Because of the project, because of the controversy, earlier this year we retained the services of McGregor & Legere to assist us in seeing what options are available to the county commissioners in protecting this most significant resource here on Cape Cod," said commissioner Mark Forest.
