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April 4, 2013

by Anne Berleant

After two sessions and nearly 15 hours, the Department of Marine Resources concluded its hearing on an experimental oyster and quahog lease application in Morgan Bay on March 28.

Joseph Porada of Hancock has submitted an application for a three-year lease to grow oysters and quahogs on a four-acre site about 2.5 miles north of Jed Island.

He proposes to place 270 floating bags and thirty cages measuring 4'x4'x6" to test the survival rate of oysters and quahogs in varying densities. His goal is a commercially viable, 50- to 70-percent survival rate.

"If it's profitable, I'll stay. If it's not, I'll leave," Porada said.

He plans to grow 227,250 American oysters, 10,000 European oysters and 390,000 quahogs (hard shell clams), and will conduct the experiments with biologist Brian Beals of the DownEast Institute. He and the institute received a $400,000 grant from the Maine Aquaculture Institute "to develop a plan towards commercialization" of quahogs, Porada said. "The oysters are my personal investment."

The Town of Surry, Morgan Bay Neighbors and several individuals have been granted intervenor status and spoke at the hearing.

Two of them, Nicholas Sichterman and Mariah Hughes, have filed suit in Hancock County Superior Court stating that shorefront use granted to Porada by riparian property owners Susan Straubing and Marshall Bolster violates a right-of-way.

In addition, Surry's Unified Development Ordinance has "strict rules as to what activity can occur" above the mean high tide mark, said Selectman Bill Matlock, at the hearing and in a recent telephone call. "Activities that the DMR allows may not be the same as the UDO. Aquaculture is allowed in Surry in the shoreland—with planning board approval."

"Have you considered the right of the public to use the intertidal zone?" asked Porada, who said he can bypass the disputed right-of-way by accessing the proposed site by boat.

The intertidal zone is the stretch of shore between the mean high water mark—the point where the shoreland zone ends—and the mean low water mark, which lies under DMR jurisdiction. DMR experimental aquaculture lease regulations require written permission "of every owner of intertidal land in, on or over, which the experimental activity will occur." (Sec. 264 (2)(d)(6))

Porada has also submitted two new lease applications for Morgan Bay, for four acres each. He may use one for a 20x20-foot float, "if I'm unable to bring and set gear on the shore," he said, and to overwinter the growing oysters and quahogs.

Objections filed

Attorney David Kallin, who represents intervenors Sichterman, Hughes and Ann Backer, objected to the application on the grounds that the four-acre site is twice the size allowed for an experimental lease by the DMR. However, as that rule contradicts Title 12 of the Maine Revised Statutes, which allows up to four acres for a limited purpose lease (sec. 6072-A), Robinson referred the objection to Assistant Attorney General Mark Randlett for later determination. Randlett attended the hearing on March 25

Kallin also objected that formal notice was not published "in a newspaper of general circulation."

Intervenor Jack Pirozzolo filed an objection to the DMR Aquaculture Administrator acting as hearing officer.

"Recusal is absolutely mandated by the state," Pirozzolo said.

Robinson declined to recuse herself, while noting the objection.

Pirozzolo also objected to a letter sent to the DMR regarding the application by the Maine Clammers Association, that he stated referred to the opposition as the "rich Friends of Morgan Bay."

"I'm not interested in who is rich and who is poor," said Robinson. "I'm only interested in hearing factual information."

Ellsworth attorney Sally Mills, who represents Morgan Bay Neighbors, an "unincorporated association that formed around this aquaculture issue," asked Porada to agree to six specific lease conditions, while stating that the association is against the site.

Those conditions are: to leave no gear, equipment or product on the site from November 25 to April 15, the overwintering period; to allow water-quality testing by the DMR or others; to access the site in boats under 20 feet in length except for emergency purposes or if required by the DMR, U.S. Coast Guard or Army Corps of Engineers; not to use propane cannons, radios, voice amplifiers or other "electronic noisemakers;" and to obtain written permission of riparian owners whose land will be used to access the lease site, pursuant to state statute.

Porada agreed to the lease conditions.

What comes next?

Many people at the hearing were concerned over the future of Morgan Bay if Porada's application is approved, especially in the light of his new applications.

"What comes next?" asked Blue Hill resident Dick McNeary. "What happens if he is successful?"

Each lease application is judged on its own merits, said Diantha Robinson, Aquaculture Administrator and Hearing Officer for the DMR. The DMR criteria includes whether the site will interfere with boat navigation and recreation and affect existing marine life.

If the DMR does approve the experimental lease, and at its end Porada wants to continue his operation, he will have to apply to the DMR for a standard 10-year lease, said Robinson, undergoing a similar process of public scoping sessions and hearings.

But while public and intervenor comments raised a vision of acres of aquaculture in Morgan Bay, depreciating property, recreational and aesthetic values, the town of Surry is aware that if shorefront properties decrease in value, the tax base will change.

"The town is concerned about the people off of the water whose property taxes could be increased because of this [aquaculture] activity," Matlock said in a recent phone call. "Our concern is not Mr. Porada but all the people who may follow."

"I think most people aren't against the whole premise of aquaculture," said Tom Matthews, a member of Morgan Bay Neighbors, by telephone. "It's that the location of some of the sites infringe on homeowners' property and property values."

While decisions on experimental lease applications are usually made within 60 days, the hearing generated "a lot to review and summarize," Robinson said after it concluded. "I can't tell you when our decision will be done."

Related Professional

  • David M. Kallin

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  • Environmental & Natural Resources
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