Long-delayed Morgan Bay aquaculture decision announced



SURRY — In Maine’s cold coastal waters it take about four years to grow an oyster from microscopic spat to market size.

That’s just about how long shellfish farmer Joe Porada has been trying to get an experimental aquaculture lease to see if oysters and quahogs will grow in Morgan Bay.

Late last Friday, the Department of Marine Resources issued a “proposed decision” approving Porada’s application for a four-acre experimental shellfish lease on a site near the upper end of Morgan Bay.

The term of that lease would be three years from the time Porada begins his aquaculture experiments. To date, the application process has continued for just over four years.

As of last week, the proposed decision is still subject to revision after DMR reviews “responses, exceptions or requests to correct misstatements of fact” from a group of intervening parties who oppose Porada’s plan. Those responses are due by the end of the month.

“I am not filing any comments or corrections,” Porada said in an email Monday.

The long delay reflects the tangled history of a project that was contentious from the very beginning.

Porada first applied to DMR for the experimental lease on Feb. 18, 2011. Experimental leases may cover no more than four acres and have a maximum term of three years. Standard aquaculture leases tailored to commercial use have renewable 10-year terms and may cover an area of as much as 100 acres.

Although no preliminary, community scoping session is required for an experimental lease, DMR scheduled one on June 1, 2011, at which a largely hostile crowd voiced considerable skepticism about Porada’s plans and about the suitability of Morgan Bay as a location for aquaculture.

A second scoping session on Feb. 2, 2012 elicited a similar response. That meeting was held about six weeks after a group of local residents gathered at an informal meeting in the Surry School gym to organize opposition to the lease proposal.

With the two contentious scoping sessions in the background, DMR accepted Porada’s application to raise oysters and hard-shelled clams in suspended cages and plastic bags on Sept. 20, 2012, and began the formal review process. Three weeks later, on Oct. 21, 2012, a pair of DMR biologists visited the proposed lease site. Using SCUBA equipment, they surveyed the entire area and, on Nov. 16 filed a report reflecting their findings about conditions in the vicinity.

In the interim, a landowner opposed to the lease sued a neighbor in front of his land in Hancock County Superior Court over his offer to let Porada use his shore to access the lease lying directly in front of it.

That set the scene for a public hearing that ground on for more than 24 hours spread over three days and generated the demand by one Morgan Bay landowner that DMR Hearing Examiner Diantha Robinson be replaced because her contacts with Porada while reviewing his application were improper and resulted in a bias in his favor. In April, after the second day of the public hearing, DMR Commissioner Patrick Keliher refused to remove Robinson as hearing officer but agreed to add one more day — the third — of hearings “for the purpose of taking testimony from members of the public owing to the lateness of hour” that the second day of the March hearings ended. On March 27, the hearing began around 5:30 in the afternoon and ended around 2:20 the next morning.

Over the three days, the witness list included, among many others: Porada, UM-Machias shellfish biologist Brian Beal, who designed some of the experiments for the site, DMR biologists and representatives from the Army Corps of Engineers. They all either favored, or at least did not object to the proposed lease.

Among those testifying against the proposal were several owners of shorefront land on Morgan Bay, with Selectman William Matlock representing the town of Surry and a scientific expert witness representing a group of concerned landowners organized under the name Morgan Bay Neighbors.

Most of the opponents testified that the aquaculture operation would interfere with their ability to swim or boat from their shorefront and would destroy the tranquility of upper Morgan Bay.

One intervenor, Jack Pirozzollo, set a half-dozen moorings around the perimeter of the lease site and filed an application to build a floating dock from his shore to the north. He also raised issues regarding the constitutionality of Maine’s aquaculture leasing system and questioned the legality of some of DMR’s regulatory process.

The expert, Joseph DeAlteris, said he thought Porada’s proposed operations were “in the appropriate scale” for Morgan Bay and that the shellfish aquaculture would provide a “net benefit” because the shellfish would “improve water clarity” and the aquaculture gear would increase biodiversity around the lease site.

In all, the hearing record contains testimony from some two dozen witnesses and lists some 75 exhibits introduce by varying parties during the proceedings.

Two months after the third and final day of the hearing ended on June 18, DMR notified the parties that the deadline for submitting written closing arguments would be Oct. 11, 2013. Porada and six parties who formally intervened in the proceedings — land owners and the landowner group — all filed written arguments. Then there was nothing to do but wait for a decision. And wait. And wait.

For more than a year, DMR met questions about when a decision might be forthcoming with a Sphinx-like silence. Finally, Porada ran out of patience. Although the weather gave no clue, spring was approaching and he wanted to be able plan on whether the Morgan Bay lease site would be available.

In a Jan. 8 email to DMR staff, Porada warned that he would request a formal hearing with Keliher and the other parties to the lease proceedings if he didn’t receive a commitment by Feb. 1 as to when a decision — any decision — would be forthcoming.

Within a week, DMR Director of Marine Policy Deidre Gilbert emailed Porada that “it is definitely our intent to deliver a decision before April, so that if the lease is granted you may take advantage of this coming growing season.” She attributed the delay to staff shortages at DMR, a “backlog” of aquaculture lease applications in the pipeline and “ancillary legal issues” raised during the proceedings that “require additional assistance from the AG’s office.”

Almost lost in the procedural quagmire and anger of nearby landowners are DMR’s findings that Porada’s proposed shellfish farm won’t “unreasonably interfere” with the protected interests of the nearby landowners, meets legal requirements and that, subject to a few minimal restrictions, an experimental lease should be granted. The primary restrictions require Porada to remove all gear from the water between Nov. 25 and April 15 each year and to limit the size of the boats used to access the site. There is also a restriction on the number and location of moorings Porada may set and a prohibition against mechanical harvesting equipment or other unreasonable noise.

As of Tuesday morning, upper Morgan Bay, including the area where Porada wants to grow oysters and clams, was inaccessible except to the most adventurous, buried beneath a thick sheet of ice.

Whether the ice will leave the bay before Keliher signs a final decision approving the experimental lease remains to be seen. Also unclear is whether anyone might pursue a court appeal that could further delay things. Pirozzollo, perhaps the leading opponent to Porada’s application, died in August.

TIMELINE

Feb. 18, 2011-Joe Porada files application; June 1, 2011-first scoping session in Surry; Feb. 2, 2012-second scoping session; Sept. 20 2012- DMR accepts application; Oct. 11, 2012-site visit by DMR biologists; March 25, 2013-three-day public hearing opens, runs from 5:40 p.m. to 11 p.m.; March 27, 2013-day two of public hearing runs from 5:30 p.m. to 2:20 a.m.; April 8 and 10—request to disqualify hearing officer for bias and to reopen hearing; May 17, 2013-DMR announces decision to re-open hearing with same hearing officer; June 18, 2013-final day of public hearing; Aug. 20, 2013-DMR sets Oct. 11, 2013 deadline for written closing arguments; Mar. 20, 2015-DMR publishes proposed decision approving lease, starts 10-day comment period; ???-DMR publishes final decision.

Stephen Rappaport

Stephen Rappaport

Waterfront Editor at The Ellsworth American
Stephen Rappaport has lived in Maine for nearly 30 years. A lifelong sailor, he spends as much time as possible messing about in boats. [email protected]

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