ELLSWORTH — Maquoit Bay in Brunswick and Puget Sound in Washington state are separated by thousands of miles, but shellfish farmers in both places are feeling some heat.
Earlier this month, a federal judge in Seattle ruled that the U.S. Army Corps of Engineers permit that authorizes virtually all shellfish aquaculture in Washington state was void because “the Corps has failed to adequately consider the impacts of commercial shellfish aquaculture activities” as required by the federal Clean Water Act and the National Environmental Policy Act.
The court’s order could force Washington’s shellfish farmers to cease activities other than the harvest of animals already in the water until the Corps issues individual permits for each shellfish farming site.
For the moment, the court’s decision applies only to the Washington state aquaculture industry but, even if the court expands its reach, Maine’s aquaculture industry won’t be affected.
“It has no bearing in the rest of the country,” Jay Clement, chief of the Maine Project Office in the Corps of Engineers’ New England District Regulatory Division, said last week.
The permit the court considered was a “nationwide permit” authorizing discharges, structures and work related to commercial shellfish aquaculture activities.
“There have been no nationwide permits in New England since 1995,” Clement said. “It really doesn’t apply to how we do business in Maine.”
According to Clement, the Maine aquaculture industry operates under a general permit that requires every lease application to undergo a “case by case” review of its “navigation and environmental impacts” to ensure each lease meets water quality and other standards.
At about the same time that the federal court delivered its shock to the Washington state aquaculture industry, the Maine Department of Marine Resources issued what it describes as a “proposed draft” of a decision granting the Mere Point Oyster Co. a 10-year aquaculture lease on just under 40 acres in Maquoit Bay in Brunswick.
The company and other legal parties to the proceeding — primarily opponents to the plan — have until Nov. 4 to file “responses, exceptions and requests to correct misstatements of fact” with DMR. The department will then “verify any misstatements of fact,” make necessary corrections and then submit the draft decision to DMR Commissioner Patrick Keliher, with copies of the responses and exceptions, for a final decision.
At more or less the same time that DMR sent out its proposed draft, Sen. David Miramont (D-Knox County) filed a proposed bill that would substantially alter the state’s aquaculture leasing laws. Miramont is co-chairman of the Legislature’s Marine Resources Committee.
The proposed legislation would reduce the aggregate number of acres any one person, or company, could lease from 1,000 to 50. The bill also would require that lease applicants show that no practical alternative site exists that would have less of an impact on existing use than the proposed site.
The bill seems to have died a quiet death, at least for this session of the Legislature. Last Wednesday, the Legislative Council, which must approve bills that will be considered before the end of the year, voted 10-0 to table Miramont’s bill.
Mere Point’s plans have drawn intense opposition from nearby landowners and some lobstermen from the area since they first came to light in the summer of 2017. Opponents challenged the pre-hearing scoping session and, in three nights of public hearings, two in November 2018 and one in January of this year, challenged the application itself.
In March, a group calling itself Save Maquoit Bay submitted a petition with 189 signatures to DMR asking the department to revise its aquaculture leasing regulations to include a new decision criterion that would force DMR to consider whether there were other locations near a proposed lease site that could “accommodate the proposed activities while interfering less with existing and surrounding uses of an area.”
The group also asked for an immediate moratorium on pending lease applications of more than 10 acres, with the requirement to be applied retroactively to the Mere Point application. In response to the petition, DMR began the rulemaking proceedings required by law but ultimately rejected the proposed changes.
The Miramant bill may not be the last the Legislature hears about the aquaculture leasing process in the coming session.
“I was told DMR has a vehicle in the form of the bills they’ve submitted to make any changes to aquaculture if need be,” Rep. Genevieve McDonald (D-Stonington) said in an email this week.