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July 2, 2015

Parties file appeals in Morgan Bay aquaculture ruling

by Anne Berleant

The debate over the appropriate use of local waters—strictly for recreation and tourism or also as a working waterfront—continued when five riparian property owners filed appeals in Hancock County Superior Court against the Department of Marine Resources' approval of an experimental lease site in Morgan Bay.

All five had been granted legal intervenor status as landowners within 1,000 feet of the lease site, located in a sub-tidal area 2.5 miles north of Jed Island.

The request that the DMR stay its final decision until the courts have ruled on the appeal is an attempt to stop Joe Porada of Hancock from beginning his operation.

"I'll have the site marked and animals in the water before they get any impedance going," Porada stated in a June 21 email alerting Penobscot Bay Press to the filing of the appeals.

Porada had filed the application in 2012 for a three-year, four-acre, experimental lease to grow quahogs and oysters in 270 floating bags and 30 cages.

Portland attorney David Kallin filed the appeal and a request to stay the decision on behalf of intervenors Ann Backer, Nicholas Sichterman and Mariah Hughes. Representing intervenors Christopher Goddu and Rebecca Pirozzolo-Mellowes, who stands for the estate of her deceased father, Jack R. Pirozzolo, is the Westbrook law firm of Douglas McDaniel Campo & Schools.

In all, seven intervenors had been named in the lease application, including the Town of Surry, and citizen group Morgan Bay Neighbors, represented by Blue Hill attorney Sally Mills.

The grounds for the appeals range from loss of property value and recreational enjoyment of Morgan Bay to administrative missteps by the DMR. All of the legal points raised in the appeal had been discussed during the application process and refuted in the DMR's written decision approving the application.

Pirozzolo-Mellowes' filed petition states that the DMR "failed to conduct an adequate environmental assessment" of the site, and that "the petitioners will suffer particularized injury" from the DMR decision, such as "imped[ing] the Petitioners' ability to swim, fish, sail, motor boat and otherwise recreate and enjoy the Lease Area and Morgan Bay," diminish the property value and cause "irreparable damage" to the lease area, Morgan Bay and the petitioners' properties.

The petition filed by Backer, Sichterman and Hughes is based on different grounds: that the DMR failed to publish a timely notice of the hearing, held the first hearing on the first night of the Jewish holiday Passover and continued the hearing two days later without notice; that the physical location of the proposed site was not marked with visible markers during the time the DMR was considering the application; and that the applicant continued to provide evidence to the DMR through private emails outside of the public record.

The Morgan Bay lease application took three years to win approval from the DMR and was the subject of over 17 hours of hearings spread over three days, beginning on March 25, 2013, and closing on June 18, 2013. Emotions from citizens and intervenors ran high, both in support and against the application.

The lease conditions in the DMR approval include restrictions against noise, lights, motorized equipment, overwintering of equipment, and a 20-foot navigation corridor between floating gear.

The DMR follows state regulations when considering aquaculture lease applications. Criteria includes whether the site will interfere with boat navigation, recreation and existing marine life but does not take into account the aesthetics of an aquaculture operation.

The purpose of an experimental lease site, according to the DMR, is for a lease holder to see if the aquaculture operation is viable before submitting a standard lease application.

In a March 24 phone call, Porada stated his future goal of a 12-acre standard, 10-year lease in Morgan Bay. Currently, he has a pending experimental lease application for four acres north-northeast of the current site.

Related Professional

  • David M. Kallin

  • Related Practice Areas

  • Environmental & Natural Resources
  • Land Use & Conservation

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