Originally published in The Weekly Packet, October 31, 2013
Who owns Morgan Bay?
Final comments in to DMR on proposed Surry aquaculture lease
A limited purpose aquaculture lease application for four acres in Morgan Bay continues to come under fire by property owners whose shorelines neighbor the site, roughly above.
by Anne Berleant
Closing statements from parties involved in an application to grow oysters in Morgan Bay are in, and all that’s left is for the Department of Marine Resources to decide whether to grant the lease—unless it decides to reopen the hearing once again.
Joe Porada of Hancock filed his completed application in August 2012 for a three-year limited-purpose lease to grow 500,000 oysters and 100,000 hard-shell clams on four acres in the Surry waterway. A public hearing held over three days in March and June elicited strong voices in favor of the project, and stronger ones against. Several parties have been granted intervener status, including the Town of Surry and riparian property owners, with most filing final arguments and closing statements with the DMR.
Porada currently holds a limited-purpose aquaculture lease in Goose Cove and, of more importance to interveners, filed applications last December for two more four-acre sites contiguous to the proposed site, located about 2.5 miles north of Jed Island.
In a March telephone call, Porada said he would use the additional sites, if granted, for more aquaculture if the first site proves commercially viable—meaning that 50 to 70 percent of the oyster and clam seeds survive to adulthood.
“The stopping point” for aquaculture “is when a lease application doesn’t meet the criteria,” said Aquaculture Administrator and Hearing Officer Diantha Robinson. “Each lease is analyzed on its own merits.”
Porada also called the applications “a precautionary measure,” when questioned at the hearing—a result of riparian property owner and intervener Jack Pirozzolo dropping moorings on the site now under application.
“Unreasonable” interference and other regulatory matters
The DMR bases its decisions on statutory criteria (12 M.R.S.§6072-A), including whether the operation would “unreasonably” interfere with commercial or recreational vessel navigation or fishing, public use and enjoyment, or shorefront access by riparian property owners.
“What is the tipping point for a particular body of water?” asked attorney Sally Mills in the closing statement filed on behalf of interveners Morgan Bay Neighbors, who hold that the proposed lease would interfere with established recreational uses.
Porada, in his closing argument, holds that ingress and egress of riparian owners would be “virtually unchanged,” and “clear ample rows will be maintained between any floating gear” for navigating watercraft. Swimming would be “98 percent unaffected in upper Morgan Bay” and “99.92 percent unaffected in the entire bay.”
David Kallin, attorney for three riparian property owners and interveners, lists three objections apart from interference with recreational uses: that notice of the public hearing violated statute; that Porada sent Robinson legal evidence outside the record, despite a DMR request to cease doing so; and that the DMR lacks authority to grant a limited purpose site over two acres in size based on its own regulations §2.64(1) and (8).
This final argument was rendered moot by an October 17 rule change to the regulation to align it with M.R.S.A.§6072(A) which allows up to four acres for a limited-purpose site.
Mills also argues that the application should be denied for regulatory reasons, including that the DMR has failed to establish a method for assessing the environmental effects of aquaculture on the site and its surrounding area, as required by §6072-A(10).
Motions to recuse, request to reopen hearing
Pirozzolo submitted a 100-page closing statement of legal objections to the application, including “the existence of institutional and personal bias in the application and hearing process.”
This followed a motion he filed in Hancock Superior Court after the March hearing that Robinson be recused as hearing officer because of her additional role as DMR aquaculture administrator. Although denied, his motion that the hearing be reopened was granted—thus, the third day of hearing held in June. He has since petitioned the court to review the DMR’s decision not to recuse Robinson.
With the October 11 deadline for rebuttals to closing statements passed, the department, in theory, has 60 days to issue its decision. However, “there is no consequence in the rule for not making that time limit,” said Robinson in August.
Could the hearing be reopened? In the Morgan Bay Neighbors closing argument, Mills stated that if the application is not denied, “the hearing should be reopened so that interveners can present evidence on the use of the Morgan Bay during the summer of 2013 in rebuttal to evidence submitted after the hearing was closed.”
Marshall Bolster, a riparian property owner who has granted Porada use of his shorefront for the proposed aquaculture operation, sent a September 20 email to the DMR, stating, “If I see a combined total of 10 kayaks, small sailboats and outboards through this area in an entire 12-month period, that is a lot.”