STATE OF Mere Point Oyster Company, LLC
DEPARTMENT OF MARINE RESOURCES

Standard Aquaculture Lease Application MAQ MP

Suspended Culture of Shellfish

December 19, 2019
Maquoit Bay, Brunswick

OF FACT, CONCLUSIONS OF LAW, AND 

Mere Point Oyster Company LLC (MPOC), a Maine company, applied to the Department of Marine
Resources (OMB) for a ten-year standard aquaculture lease on 39.84 acres.1 The proposed site is in Maquoit Bay,
Brunswick, Cumberland County, Maine and is for the suspended culture of American/eastern oysters (Crassostreo
virginico), European oysters (Ostreo edulis), bay scallops (Aequipecten irradions), sea scallops (Placopecten

mogellonicus), and northern quahogs (Mercenaria mercenario).

1. THE PROCEEDINGS
A. Pro-Hearing:

The pre?application meeting was held on July 17, 2017, and the scoping session was held on September
11, 2017. DMR accepted the application as complete on February 5, 2018. Notice of the completed application
was provided to the Town of Brunswick, including the Town of Brunswick Commander of Patrol, and Shellfish
Warden.2 Notice of the completed application was also provided to other state and federal agencies for their
review. The DMR site report was completed on August 1, 2018.

Prior to the first public hearing, several individuals and entities either applied for intervenor status, or

indicated to DMR that they intended to apply for intervenor status.3 Given the anticipated complexity of issues

 

1 The applicant originally requested 40 acres. DMR calculations, based on the coordinates in DMS format provided by the
applicant, indicate the area is 39.84 acres.

2 Commander of Patrol, Thomas Garrepy is listed as the point of contact for the Habormaster and Shellfish Warden.

3 The initial public hearing on the proposal was originally scheduled for October 18, 2018, at the Brunswick Town Hall. DMR
provided public notice of this hearing in accordance with applicable rules and statutes. However, the October hearing was
cancelled due to logistical issues. The original notice contained instructions and a deadline to apply for intervenor status.
Some individuals submitted their application for intervenor status before or during the timeframe specified in the original
notice. The Department kept these applications on file and notified the respective individuals of the hearing cancellation.
Notice of the November hearing dates and locations were processed in accordance with applicable laws and regulations.
Notice of the November hearings also contained a new deadline for intervenor applications. After the close of the
intervenor deadline, DIVER reviewed all applications received and decided on intervenor status within the deadline speci?ed
in the notice for the November hearings.

 

 

and volume of exhibits, DMR held a prehearing conference on October 22, 2018. The conference considered issues
such as deadiines for the exchange and submission of witness lists, pre?marking and exchange of proposed
exhibits, intervention, and other matters pertaining to the conduct of the hearing. On October 25, 2018, DMR
issued a procedurai order detailing the conduct of the hearing and specifying the submission of pre-filed
testimony, exhibits, and objections among other considerations.

On November 6, 2018, DMR issued a final decision on intervenor applications and notified all applicants
accordingly. in accordance with Chapter of its ruies, DMR granted limited intervenor status to the six
individuais and two entities that applied for intervenor status. Limited, as opposed to foil intervenor status, was
granted to these individuals and entities based on the review of their applications. DMR determined that the
applicants did not demonstrate they would be substantially and directiy affected by the iease proposal, if it were
to be granted. The applicants raised concerns that would be held by the public in general. Aithough none of the
applications merited full intervenor status, DMR did find that participation as a limited intervenor was warranted
as some of the issues raised by applicants were pertinent to consideration of the proposai.

The limited intervenors were consolidated into two groups, which DMR designated: ?Concerned Citizens
of Maquoit Bay? and "Commercial Fishermen.? Table 1 provides an overview otthe individuals and entities
assigned to each DMR designated group.

Tabie 1: Limited intervenor groups

 

       

 

Mark Wyman, Patricia Rathbone, Nichoias Thomas Santaguida and iohn Powers
Rathbone, Andrew Powers, Maquoit Bay LLC
{Paui and Kathleen Dioli), Maquoit Bay
Preservation Group, David and Susan Ciark

 

 

 

 

Limited intervenors were assigned to these groups based on the similarity of concerns they raised in their
respective applications. In accordance with Chapter DMR determined that consolidation was necessary
to avoid repetitive testimony, evidence, or questioning. Consolidation also provided an orderiy and efficient way
for similar interests to be represented during the proceedings.
8. Pie-Hearing and Issues:

The procedural order issued on October 25, 2018 required parties to pre?fiie a concise statement of issues.
in their and during the November 15, 2018, public hearing CCMB raised several objections, which are

addressed below.5

 

4 pre-filings submitted by the iimited intervenors were entered as exhibits and testimony during the respective pubiic
hearings noted on the exhibit iist.
5 The arguments CCMB made in their were also incorporated by reference in their closing arguments.

 

 

 

 

Conflict of interest. The applicant is represented by Daniel Devereaux and Douglas Niven. At the time the
application was under consideration by DMR, Mr. Devereaux was also the harbormaster for the Town of
Brunswick. The statutes and regulations governing the aquaculture lease process provide municipalities with
several opportunities to review and provide feedback on the proposal. Some of the regulations concerning the
lease review process reference obtaining input from the municipal harbormaster.

alleges, in part, that ?the harbormaster here is the applicant and participated in the process to
advance the private and commercial interest of the industrial scale lease, rather than protection the competing
public uses of the area? (Exhibit 46, pg. 3). CCMB argues that granting the lease would be unconstitutional,
because the applicant supplanted the pre?application procedures in violation of the public trust doctrine.6

Pursuant to 12 M.R.S.A. ?6072(1), has the exclusive authority to lease areas in, on and under coastal
waters, including the public lands beneath those waters and portions of the intertidal zone. Although the state
has exclusive authority to grant leases, municipalities are routinely consulted and are invited to participate
throughout the leasing process. Prior to filing a lease application, Chapter 2.07(1) requires an applicant to attend
a prenapplication meeting with staff and the harbormaster(s) and/or a municipal officer(s) or other
designeels) of the municipality(ies) in which the proposed lease is located to discuss the proposed application.?
The pre-application meeting was held on July 17, 2017 and attended by DMR staff, Mr. Devereaux, and Douglas
Niven. At the prewapplication meeting, Mr. Devereaux indicated that John Eldridge, Brunswick Town Manager,
would assume any duties related to the evaluation of the lease proposal.7 After the pre-application meeting Mr.
Devereaux clarified, via email, that Thomas Garrepy, Town of Brunswick Patrol Commander, would review the
proposal and that DMR should send relevant notices to Commander Garrepy.8

After a prewapplication meeting, Chapter 2.07(2) requires the applicant to hold a scoping session, or public
meeting in the municipality where the proposed standard lease is located. At the time the scoping session was
held, the applicant and DMR staff were required to attend the scoping session.9 The meeting is an opportunity for
DMR and other interested stakeholders to learn more about the proposal. DMR is required to provide personal
notice of the scoping session to the municipality and any riparian landowners within 1,000 feet of the proposal.

As there were no riparian landowners within 1,000 feet of the proposal, DMR provided personal notice of the

 

5 CCMB also raised arguments related to the issuance of Limited Purpose Aquaculture (LPA) licenses. However, those
arguments are not germane to the proposal under consideration.

7 Case File Pre-Application Meeting Notes

8 CF: Email from D. Devereaux to A. Ellis and C. Burke dated August 2, 2018.

9 DMR modified the Aquaculture regulations (Chapter 2) during the winter of 2019. The changes became effective on April
1, 2019. References to Chapter 2 of regulations reflect those regulations that were in effect while the application
was being processed.

 

 

 

meeting solely to municipal officials in the Town of Brunswick. Notice of the scoping session was also published
in the Times Record on September 6, 2017.10 The scoping session was held on September 11, 2017. DMR staff, a
representative from the U.S. Army Corps of Engineers (USACOE), and the applicants were the only persons in
attendance.11

Following the scoping session, DIVIR received an application from MPOC on November 21, 2017. After two
completeness reviews, the final application was deemed complete on February 5, 2018. Notice of the completed
application was provided to the municipality, including Thomas Garrepy. sent a Harbormaster Questionnaire
to Mr. Garrepy to review and complete. The Harbormaster Questionnaire requests local information about how
the proposal may affect designated or traditional anchorages, navigation, fishing, and other considerations related
to the lease decision criteria. On March 19, 2018, DMR received a completed Harbormaster Questionnaire from
Mr. Garrepy. However, Mr. Garrepy requested that DMR also send a Harbormaster Questionnaire to the Marine
Patrol Officer (MPO) assigned to the area to avoid any conflicts of interest to his review as Mr. Garrepy was Mr.
Devereaux?s superior. DMR sent the Harbormaster Questionnaire to Curtis LaBelle, the Marine Patrol Officer
(MPO) assigned to the area and to Robert Beal the Marine Patrol Sergeant that oversaw Section 2.12 MP0 LaBelle
completed a review on March 27, 2018 and Sergeant Beal completed a review on October 2, 2018.

On October 9, 2018, DMR notified the Brunswick Town Manager that a pre?hearing conference on the
application was scheduled for October 22, 2018.13 The notice included pertinent details related to the purpose
and function of the pre-hearing conference. However, no representative from the municipality attended. DMR
also provided the municipality with personal notice of the public hearings and the opportunity to request
intervenor status as required by statute and regulation. DMR is required to grant the municipality intervenor
status upon request. Regardless ofwhether intervenor status is requested, municipal representatives may provide
testimony at the public hearing and question witnesses. However, the municipality did not request intervenor
status, or offer testimony at the public hearing.

The aquaculture laws do not require the municipality to participate in the leasing process and they do not
mandate that a barbormaster or other municipal representative complete a review of the proposal. Rather,

participation in the leasing process is at the discretion of the municipality, which would also have the authority to

 

10 The scoping session was originally scheduled for August 29, 2017 with the notice pu bilshed on August 14, 2017 in the
Times Record. However, that session was cancelled. Notice of the cancellation was published in the Times Record on August
25, 2017. Notice of the cancellation indicated that "The scoping session will be rescheduled, and notice posted in the Times
Recor 

11 CF: Email from J. Lewis to D. Kaliin dated September 17, 2018

12 Section 2 is an area that extends from Freeport to Bremen.

13 CF: Email from A. Ellis to l. Eldrige, Brunswick Town Manager, et al. regarding the prehearing conference. Email dated
October 9, 2018.

 

 

 

decide who represents their interests should they decide to participate. The procedural history demonstrates that
DMR compiied with applicabie municipal notice requirements and obtained iocal feedback on the proposal from
someone other than Mr. Devereaux.

Furthermore, the authority given by law to DMR to lease subtidai coastal waters for aquaculture is

exclusive within the state. It precludes jurisdiction other than that of the federai government, with certain
exceptions.14 It also precludes the jurisdiction of other state agencies and, with a limited exception not applicable
here, municipalities.15 With regard to the lease application in this case, Brunswick municipal officials, including
harbormasters, do not have the authority to grant or deny the iease. A review of the procedurai history, in
consideration of authority to grant leases, does not support assertion that MPOC supplanted
ieasing procedures in violation of the pubiic trust doctrine.
Notice. CCMB aileges that DMR failed to provide notice of the lease application to the Maine Department of
Environmental Protection (MEDEP) in accordance with 12 M.R.S.A. This provision specifies that
MEDEP, in addition to other state agencies, "m ust be notified of all lease appiications.? in this case, DMR provided
notice to MEDEP of the lease appiication and the public hearings. Notice of the application and hearings was
provided to MEDEP via aquaculture list?serve.1L6 On November 15, 2018, MEDEP sent a letter to DMR
indicating that they had reviewed the application and site report (Exhibit 4). The letter also indicated that the
applicant would not be required to obtain a Maine Pollutant Discharge Elimination System (MEPDES)
permit/Maine Waste Discharge License (WDL) from DEP. Thus, DMR provided notice of the lease appiication to
MEDEP and they reviewed the proposal.

In addition, CCMB alleges that the proposed lease site was not marked in accordance with Chapter 205(5)
and CCIVIB argues that these provisions require the site be marked during the period of the DMR site
review and 30 days prior to any public hearing. According to CCM B, the site was never marked during the summer
months when the proposal would have been under consideration by DMR and that DMR should have required
marking during the summer months. CCMB alleges that failure to mark the site constitutes a lack of notice. Chapter
pertains to the DMR site review and provides: ?An inspection ofthe proposed aquaculture site and the

immediate surrounding area will be conducted by the Department. The site must be marked as referenced in

 

14 For example, authority precludesjurisdiction by MDEP under the Natural Resources Poiicy Act, but aquacuiture
projects that meet the definition of discharge are subject to MPDES permits.

15 As required by law other state agencies are notified of aquaculture lease appiications and they are asked to review and
comment on the proposals. Municipalities are routinely consulted and are encouraged to participate throughout the leasing
process. Consent of the municipai officers is required for ieases proposed in intertidal waters in municipaiities with" a
sheiifish conservation ordinance see 12 M.R.S. 6072(3).

15 CF: See GovDeiivery address reports that include the emaii address for Gregg Wood, who reviews aquacuitu re lease
proposais on behalf of MEDEP. The completed appiication was provided to Mr. Wood on February 15, 2018.

 

 

 

Chapter 2.10(5) by the appiicant.? Chapter 210(5) specifies: ?At ieast 30 days prior to the proposed hearing date,
the applicant shall place visible markers which delineate the area proposed to be leased.?

The marking requirement in Chapter incorporates by reference the provisions of Chapter
210(5), which specifies that marking must be in piace at least 30 days prior to the public hearing. DMR has
interpreted these reguiations to mean that standard lease applicants are only required to mark the proposed site
at least 30 days before the public hearing. Standard lease proposals do not need to be marked during the period
of the DMR site review, or during the summer months as CCMB suggests. DMR believes that its interpretation is
reasonable, because site reviews are conducted at a time of year that DMR determines appropriate to adequately
evaiuate the proposed site in consideration of the proposed operations, and according to staff availability.

In this case, the first public hearing on the proposal was held on November 15, 2018. The applicant

testified that the proposed site was marked with buoys on October 14, 2018. Paul and Kathie Dioli testified that
on October 21, 2018 the proposed lease site was marked (Exhibit 46b). Mr. Santaguida, a limited intervenor,
testified that the proposed site was marked in mid~October Therefore, it appears that the site
was marked by the applicant at least 30 days prior to the November 15, 2018 pubiic hearing in accordance with
Chapter 210(5).
Procedurai due process. CCMB argues that DMR exceeded its authority by consoiidating individual intervenors;
prohibiting them from presenting their separate concerns or interests. CCMB further believes that DMR imposed
unreasonabie deadlines on the intervenors regarding their pre?filings. Specifically, CCMB aiieges that they had less
than 24 hours? notice that a singie unified filing rather than individuai wouid be accepted by DMR.

On October 22, 2018, DMR held a prehearing conference and informed those present that the
consolidation of intervenor applicants with like interests would be a possibility. intent to consolidate was
reiterated in the procedural order issued on October 25, 2018. On November 6, 2018, DMR issued decisions on
intervenor applications and sent each appiicant a letter. Limited intervenor status was granted in accordance with
Chapter and forthe reasons described in section of this decision. In the letter issued on November
6, 2018, DMR described how limited intervenors were permitted to participate in the process. The letter explained
that the limited intervenors had been consolidated into two groups and it provided the contact information of
each individual and entity assigned to the respective group. DMR aiso noted that group members had broad
discretion in structuring their participation in compliance with the procedural order.

Pursuant to the procedural order, the parties were required to submit their pres-filings no later than 12
pm. on November 9, 2018. On November 8, 2018 Patricia Rathbone, a limited intervenor consolidated to CCMB,
emailed DMR her pre-filed statement. DMR responded to Ms. Rathbone, and all other iimited intervenors with

the following:

 

Intervenor groups need to submit their proposed exhibits, testimony, etc. as a single filing, not as

a filing from each individual member. Please be advised that materials need to be submitted in

accordance with the procedural order.17
On November 8, 2018, Attorneys Mills and Kallin, who attended the prehearing conference and were provided
with copies of the procedurai order, raised objections to characterization of the procedural order in its
response to Ms. Rathbone. Ms. Mills represents Maquoit Bay Preservation Group and Mr. Kallin represents
Maquoit Bay, LLC (Paul and Kathie Dioli). They expressed a belief that submitting a consolidated joint filing by the
November 9, 2018 deadline would be unduly burdensome. Ms. Mills and Mr. Kallin aiso expressed a belief that
consolidation would violate attorney conduct rules as they would be ?forced to give legal advice and make filing
on behaif of individuals [they] do not represent.?18 Ms. Mills and Mr. Kailin aiso requested that the 
deadline be extended to November 13, 2018.

On November 9, 2018, DMR issued a letter to all parties that clarified the procedural order and extended
the pre?filing deadline to 11:59 p.m. on November 9, 2018.19 The October 22, 2018, prehearing conference and
subsequent procedural order put all persons on notice that consolidation was a possibility and that they would be
expected to coordinate their efforts to avoid repetitive filings. The letters concerning intervenor status noted that
limited intervenors had been consolidated into two groups. DMR never specified, nor did it expect attorneys 
or iVIiils to represent other individuals that are part of the consolidated group. Instead, the expectation was that
the respective group members coordinate their participation and filings in compliance with the procedural order.

in accordance with Chapter DMR believed that consolidation was necessary and appropriate
to avoid repetitive testimony, evidence, or questioning. Consoiidation did not deny or limit the participation ofthe
individuals and entities that were granted iimited intervenor status. For example, the joint filings of CCMB
contained the testimony of several individuals including Mark Wyman, Nick Rathbone, Maquoit Bay LLC (Pa and
Kathie Dioli) among others.20 These respective individuais and entities were able to present their respective
concerns and interests in an orderly and efficient manner as part of a consolidated iimited intervenor group.
Discharge appiication. CCMB argues that on~site power washing, storing gas in the tank of a generator, and
refueling the generator on?site means that there wiil be a ?discharge of pollutants? within the meaning of DMR

regulation the Clean Water Act, and the Maine Pollutant Discharge Elimination System (MEPDES)

 

17 CF: Email from P. Rathbone to A. Eliis et al. dated November 8, 2018. Email from A. Eilis to P. Rathbone et ai. dated
November 8, 2018.

13 CF: Email from D. Kaliin to DMR et al. dated November 8, 2018. Emaii from S. Mills to DMR et ai. dated November 8, 2018
19 CF: Letter from A. Ellis to ail parties clarifying the procedural order.

2? All parties to the proceeding agreed to admit ail pre~filings, inciuding testimony, into the record on the dates noted in the
exhibit list.

 

 

 

discharge rule.21 CCIVIB maintains that the proposal should be considered a discharge application and be denied
because it does not meet the rules or standards for a discharge application.

DEP has jurisdiction over MEPDES permitting?2 and Maine Waste Discharge Licenses (WDL). On February
15, 2018, DMR provided DEP with a copy of completed lease application. In a letter dated November 15,
2018, DEP acknowledged receipt and review of application (Exhibit 4). The application detailed 
operational plans, including power washing. In their review of the application, DEP determined that MPOC did not
need to obtain a MEPDES or WDL (Exhibit 4). However, DEP did recommend that DMR consider conditioning the
lease, so that IVIPOC would be required to periodically conduct benthic infauna monitoring (Exhibit 4). Monitoring
recommendations are discussed in section 3.D of this decision.

For the purposes of the aquaculture leasing and licensing program, DMR regulation defines
discharge as ?any spilling, leaking, pumping, pouring, emptying, dumping, disposing or other addition of any
pollutant including, but not limited to, the addition offeed, therapeutants or pesticides to the waters of the State.?
This definition is intended to conform with definition of discharge in 38 M.R.S.A Power washing
organic materials, refueling equipment on the site, or the presence of gas within the tank of a generator does not
meet the definition of a discharge under Chapter DMR reviewed application and deemed it
complete. Therefore, DMR determined that the proposed activities did not meet the definition of a discharge and

the proposal was processed as a non?discharge application.

C. Public Hearings

Public hearings were held on November 15, 2018, November 19, 2018, and January 15, 2019. Notice of
the November hearings were published in the Times Record on October 9, 2018 and November 1, 2018. Notice
was also pubiished in the November 2018 edition of Commercial Fisheries News. Notice of the January hearing
was published in the Times Record on December 12, 2018 and December 31, 2018. Notice was also published in

the January 2019 edition of Commercial Fisheries News. Notice of the three hearings was also posted to 

 

21 CCMB noted that the generator is kept on the site permanently. However, page 7 of application indicates that
the generator wilt be on the site during the growing season and stored within a ventilated shed. application
indicates that no gas or oil will be stored on the proposed site.

22 DEP has authorization from the U.S. Environmental Protection Agency to administer the National Pollutant Discharge
Elimination System (NPDES) permit program in Maine. The NPDES program is part of the Clean Water Act, which prohibits
the discharge of pollutants through a point source into the waters of the U.S. unless a NPDES permit is issued. DEP
determined that NPDES permit was not necessary. Therefore, it is reasonable to assume that DEP determined that the
proposed activities, inciuding power washing do not constitute a discharge of a pollutant from a point source.

23 Pursuant to 38 M.R.S.A. discharge is defined as ?means any spitting, leaking, pumping, pouring, emptying,
dumping, disposing or other addition of any pollutant to water of the State.?

 

 

 

 

website and sent to: case specific email list, Zone lobster council members, and subscribers of the
aquaculture email iist?serve.

Messrs. Devereaux and Niven described the proposed project and their expert witnesses testified with
respect to the relevant lease criteria and standards; limited intervenors presented their concerns with the
proposai; and Mr. Lewis described site visit. The applicants and their expert witnesses, the limited
intervenors and their experts, and DMR were subject to questioning. Members ofthe public also testified in favor
or opposition to the proposal and were subject to questioning by the parties. Table 2 displays the dates on which
individuals provided sworn testimony.

Table 2: Sworn testimony provided by date and individuai:

November 15, 2018

 

Name

Affiliation

 

Dan Devereaux and Doug Niven

Applicants, MPOC

 

Alyssa Novak, and Dana Smith

Expert witnesses, MPOC

 

Joseph DeAlteris, 

Expert Witness, CCMB

 

David Clark

Limited Intervenor, CCMB

 

Susan Wilson, Elizabeth Butler, Susan Oicott,
and Jeanne Ramsay

 

 

Members of the Public

 

November 19, 2018

 

Name

Affiliation

 

Dan Devereaux and Doug Niven

Applicants, MPOC

 

Charles Wailace, P.E. and Terrence DeWan

Expert Witness, MPOC

 

Jon Lewis

Aquaculture Division Director, DMR

 

Thomas Santaguida and John Powers

Limited lntervenors, Commercial

Fishermen

 

Stephen Loeb, Dave Moody, Albert Rose,
Andrew Ulrickson, Donald Ulrickson, Andrew
Washburn, Savanna Kay, James Smith, Bill
Morrell, Cameron Niven, Tyler Niven, and Max
Friedman

 

 

Members of the Public

 

 

 

 

January 15, 2019

 

 

 

 

Name Affiliation
Dan Devereaux and Doug Niven Applicants, MPOC
Paul Dioli, Andrew Powers, Patricia Rathbone, CCMB
and Mark Wyman
Marko Melendy, Kelsey Fenwick, Bill Floyd, Members of the Public

David Brooks, William Gerencer, ion Roger, John
McElwee, Todd Smith, Hannah Grady, Stephen
Walker, Brian O?Connor, Mark Verhey, Jacob
Verhey, Jesse Devereaux, Derek Devereaux,
Chris Heinig, Monty Vogel, Heather Merriman,
Raymond Trombiey, Doug Jowett, David
Toothaker, Chris Burtis, Ronald Holbrook,
Tommy Santaguida, Taylor Santaguida, Langdon
Winner, Sue Loebs, David Treadwell, Peter
Vaughn, Glenda Wyman, Anne Hayden, and
James MacCloud

 

 

 

 

The hearing was recorded by DMR. The Hearing Officer was Amanda Ellis. The evidentiary record before
DMR includes the case file, application, site report, documents introduced at the public hearings, pre-filings that
were entered into the evidentiary record at the public hearings, and the record of testimony at the respective

hearings. The exhibit list is included in section 8 of this decision.24

2. DESCRIPTION OF THE PROJECT AND PROPOSED LEASE AREA

A. Proposed Operations

The purpose of the proposed lease site is to expand existing oyster farming operations and to explore the
of cultivating scallops and quahogs (App 6). Cultivation techniques inciude using various soft mesh and
wire cages that are suspended on the surface of the water and deployed on the bottom of the proposed site (App
6). Although comprised of one continuous tract, the applicants have configured the proposed operations into four
sections, separated by navigational corridors, as depicted in the figure below. One navigational corridor would
be 400 feet wide and run east to west aiong the proposed site. The other navigational corridor would be 100 feet

wide and run north to south along the proposed site.

 

24 in references to testimony, ?Smith/Jones? means testimony of Smith, questioned by Jones.

10

 

 

 

Grow-Out and Overwintering Area
Floating 3?x 5? cages

3? 4.5? bottom cages (December-
April)

Experimental Area

- Submerged 4? 4' bottom cages

 

intermediate Area

Floating 3?x 5? cages
Work floats will be depioyed in

this section
ea. gw 
s?r?gw
Nurse Area

1.8? 25? Floating bags deployed
from June-November

Figure I: Rendering of the proposed site layout generated by DMR staff using Exhibit 5 and
the appiication as a reference. image not to scale.

Except for the experimental and overwintering areas, the proposed lease site will contain suspended surface gear.

The power equipment proposed for the site includes the following:25

 

Equipment

Description

Months of
Operation] Frequency
of Use

 

10? 20" Oyster Sorter

Battery powered and

April?October

 

and Tumbler charged using soiar
power.
Water Pump Moves large volumes of Periodicaiiy during

water to clean gear and
equipment.

the summer months

 

Honda

Will be utilized to

Stored on site in

 

 

 

Generator power pumps and other ventilated shed
cleaning gear. during the growing
season
Power Washers Will be used during Transported to the

harvest periods.

 

site and utilized as
needed.

 

 

 

25 Pages of the application inciude a list of equipment proposed for the site. However, during the public hearing, the
appiica noted that the wattage of the proposed generator had changed. Section 3.H of this decision describes the

proposed change in wattage.

11

 

 

 

19? Carolina Skiff Used as the primary Year?round
tending vessel.
28? Crowley Beal with The vessel and Primarily spring and
hauler associated hauler will fall

be used to lift and
lower cages with the
assistance of a
commercial diver.
22? Grady White Transport vessel for Year?round
farm personnel.

 

 

 

 

 

 

 

in addition to the equipment listed above, the applicants intend to utilize three work platforms that would
measure 10? 20? and are constructed of wood (Exhibit 8, pg. 3).26 The three platforms would be aligned together
in a parallel line that runs east to west (Exhibit 8 and 9).27 The work platforms would be utilized primarily for the
tumbling, sorting, and defouling of product. One work platform would contain a ?hut? or shed that screens the
tumbler and provides shade for product and workers (Exhibit 8, App 4).The platforms would be on the proposed
site from April through October each year.

The applicants anticipate tending the site daily (App 5). Floating cages would be flipped to help control
fouling (App 26). A power washer may also be used approximately two to three times a week from June through
November (App 7). The applicants intend to harvest product year-round utilizing a variety of techniques (App 5).
Product would eventually be processed at an upland facility owned by the applicant (App 8). Petroleum products

would not be stored on the proposed site (App 5).

B. Site Characteristics

On June 15 and July 16, 2018, DMR staff assessed the proposed lease site and the surrounding area in
consideration of the criteria for granting a standard aquaculture iease. The proposed lease site occupies subtidal
waters in Maquoit Bay. The proposed lease site ?is located on a shallow finger that extends into Maquoit Bay

between two deeper channels? (SR 2). The uplands around Maquoit Bay are characterized by residential buildings

 

26 The dimensions of the on~site support structures differed siightiy from what was contained in the application (see page 4
of the appiication for reference). The dimensions presented at the pubiic hearing were smaller than what was contained in
the completed application. The smalier dimensions presented at the public are what DMR considered in rendering a final
decision on this preposal.

27 When aligned the three platforms wouid measure 10? 60? (Exhibit 8). in their response to the proposed decision, MPOC
indicated that it did not intend for this to be the only aiignment or configuration of the platforms. MPOC noted that they
may need to other configurations based on operationai needs and conditions. The applicant requested that the draft
decision be amended, so it does not inciude any limitation of the alignment or arrangement of the three platforms. DMR
understands that other alignments or configurations of the three platforms may occur. However, the platforms must
remain in the "intermediate area" of the proposed lease site as depicted in Figure 1.

12

 

 

 

and mixed forest (SR 2). The uplands around Merepoint Neck, which lies to the east of the proposal, are mostly
residentiai (SR 2). Staff observed thirteen docks and a mooring field to the east of the proposed site near
Merepoint Neck (SR 2). The western shoreline of Maquoit Bay contains fewer houses and is mostly wooded (SR

2).

 

 

 

 

 

 

 

Proposed Lease Area 

Ind :1 try.

 

 

 

 

 

 

 

 

 

 

 

2 Mites .v



 

 

Figure 2: Location of the proposed lease area within Maquoit Bay. Merepoint Neck is located
to the east of the proposed iease area. image from the site report.

Correcting to mean low water, depths at the proposed site ranged from ?9 feet along the northern and western
boundaries to ?21.6 feet at the southeast corner (SR 2).

The bottom of the proposed lease site is comprised of soft mud (SR 2). The ciosest distance to shore, at
mean iow water, from the southeast corner of the proposed lease site to Merepoint Neck is ?1,160 feet (SR 6). At
mean low water, the SE-NE boundary of the proposed lease site is ?730 from the nearest mooring (SR 6). The
proposed lease is in an area currentiy classified by Bureau of Public Heaith as ?open/approved" for the
harvest of shelifish? (SR 14}.

3. STATUTORY CRITERIA 8t OF FACT
Approval of standard aquacuiture leases is governed by 12 M.R.S.A. ?6072. This statute provides that a

lease may be granted by the Commissioner of DMR upon determining that the project will not unreasonably

13

 

 

 

 

 

interfere with the ingress and egress of riparian owners; with navigation; with fishing or other water related uses
of the area, taking into consideration the number and density of aquacuiture leases in an area; with the ability of
the lease site and surrounding areas to support existing ecologically significant flora and fauna; or with the public
use or enjoyment within 1,000 feet of beaches, parks, docking facilities, or conserved lands owned by municipal,
state, or federal governments. The Commissioner must also determine that the applicant has demonstrated that
there is an available source of organisms to be cultured for the lease site; that the iease will not result in an
unreasonable impact from noise or lights at the boundaries of the lease site; and that the iease will comply with

visual impact criteria adopted by the Commissioner.

A. Riparian Owners Ingress and Egress

In accordance with 12 M.R.S.A. DMR must determine whether the proposed lease would
unreasonably interfere with the ingress and egress of riparian owners. Chapter of regulations
define riparian owner as: ?a shoretront property owner whose property boundaries are within 1,000 feet of the
proposed iease boundaries.? in this instance, there are no individuals or entities that are within 1,000 feet of
the proposed tease boundaries and that meet the definition of riparian owner as specified in applicable law.
Some iimited intervenors who own or have an interest in property on Merepoint Neck expressed concerns
about their ability to navigate to their docks and moorings. These concerns are addressed in section 3.B of this
decision, which pertains to navigation.

Therefore, given that there are no individuals or entities that meet the definition of riparian owner, the
aquaculture activities proposed for this site will not unreasonably interfere with the ingress and egress ofany

riparian owner.

8. Navigation
During the site visits on June 15, 2018 and iuly 16, 2018, DMR staff observed boats navigating in

Maquoit Bay (SR 7). Staff also observed docks, moorings, and iobster buoys indicating that both commercial and
recreational boating activities are common (SR 7). At mean low water, the proposed lease site is ?1,160 feet
from the eastern shoreline and ?3,325 feet from the western shoreline (SR 7). These distances provide adequate
navigable area for boats traversing to and from Maquoit Bay (SR 7). The proposed iease site would also occupy
shallow water in the center of Maquoit Bay and would not extend into deeper channeis to the east and west of
the proposai (SR 7). As noted in the site report, it is likeiy that the deeper channels are preferred by vesseis with

deep drafts (SR 7).

14

 

Based on feedback contained in three separate Harborrnaster Questionnaires, the proposal will

not interfere with navigation in designated channels. The Harbormaster Questionnaire signed October 2,

 

2018, further specifies the following:

 

The proposed lease is not located in an area that is a designated channel. The proposed location
is between two ?channels? which are in excess of 20? in depth that generally run north-south.28

The same questionnaire also indicates that boat traffic is limited by the shaiiow water to the north of
the proposed lease site.29

Although there are no individuals or entities that meet the definition of ?riparian owner,? DMR staff did
observe and consider access points moorings and docks) along the western shoreline of iViaquoit Bay and
Merepoint Neck. During the site visits, DMR observed approximately thirteen docks and a boat ramp along the
shoreline to the immediate east/southeast of the proposed site (SR 6). Stafic aiso observed additional docks
along Merepoint Neck to the north and south of the proposed lease (SR 6). There is aiso a mooring field

between the peninsula and the proposed site (SR 6). The figure below depicts the location of the proposed lease

 

site in reiationship to the mooring field. During the site visits there were kayaks, powerboats, rowboats, and

saiiboats secured to the docks and moorings (SR 6).

 

 

Proposed Lease Area

  
    

Mooring

  
 

    

 

   

Dive Transect

0 750 1,500 Feet

 

 

 

Figure 3: The iocation of the proposed lease site in relationship to moorings near
Merepoint Neck. image from site report.

 

2? CF: Harborrnaster Questionnaire completed by MPO Sergeant R. Beal
29 ibid

15

 

The clocks on Merepoint Neck are located over 1,000 feet to the east of the proposed lease site and the
closest mooring to the proposed lease site is located over 700 feet to the east (SR 6). Docks and moorings located
on the western shoreline of Maqaoit Bay are over 3,000 feet from the proposed lease site (SR 6). In consideration
of these distances, ?it appears that boats operating under power or paddle will be able to navigate off and on
their moorings if the proposed lease is granted? (SR 6).

However, the site report indicates that under certain environmental conditions vessels that operate via
sail may be impacted by the proposed site when maneuvering to certain moorings (SR 6). The area is exposed to
prevailing southwesterlies (Exhibit 14). In addition, the proposed site is almost a half-mile in length, so vessels
traveling east or west across lVlaquoit Bay may need to alter traditional routes, if the proposal is granted (SR 7).
For example, a boat traveling to the western shore of Maquoit Bay from a dock on Merepoint Neck might first
need to navigate south or north to avoid the proposed lease, before being able to travel westward (SR 7).

Several limited intervenors indicated that they regularly navigate through the proposed lease site using a
variety of watercraft including kayaks, stand?up paddieboards, jet?skis, motorized vessels, and sailboats.30 Several
members of CCMB described the ways the proposed lease site will affect their ability to navigate within the area.
For example, some limited intervenors felt that the proposed lease site would preclude westward navigation from
Merepoint Neck.31 Another limited intervenor indicated: ?aquaculture gear in the proposed location would
interfere with my ability to efficiently navigate the main channel of this bay in a variety of watercraft that i use?
(Exhibit 465e, pg. 1). Patricia Rathbone, a limited intervenor, noted: cannot sail from my mooring, which is
halfway to the farm from shore (deep water needed for a keel boat) and return to that mooring, given the
prevailing southwesterlies and the need to tack to open water? (Exhibit 46f, pg. 1). Some members of the public
raised similar concerns regarding navigation in the area should the proposal be granted.

Navigationai Corridors

In its prefiling and at the public hearing, the applicant proposed a 400?foot navigational corridor that
would run northwest to southeast across the proposed site and a 100?foot navigationai corridor that would run
northeast to southwest, as depicted in Figure 4, through the middle of the lease site. The applicant indicated that
the all vessels would be allowed to navigate within the corridors and commercial fishing would be permitted.
MPOC indicated that the proposed corridors were a response to community feedback they received about the
proposal prior to the public hearings. MPOC felt that modifying the layout of their proposal to include the

navigational corridors would enable vessels to traverse through the proposed lease area.

 

3? Exhibit 42 dispiays routes some limited intervenors take through the proposed lease site as documented via GPS.
31 Exhibit 46b

16

 

 

 

 

 

 

 

 

Figure 4: The iocation of the proposed navigational corridors in reiationship to the proposed lease
boundaries. Figure is not to scale and was generated by DMR staff using Exhibit 9 as a reference.

The public testimony regarding the proposed corridors varied. Some peopie indicated that the proposed
corridors would provide for adequate transit across the lease site. However, iimited intervenors and some
members of the public felt that the proposed corridors would not ameliorate any of the concerns they raised
about navigation. In addition, some individuals felt that navigating around the proposed gear to access a
navigational corridor would pose a safety hazard.

decision regarding the proposed corridors is not germane to the determination that the proposal
satisfied the statutory and regulatory standards relating to navigation. However, the applicants presented the
navigationai corridors as part of their proposal.32 Members of the public and other stakeholders who
participated in the public hearings evaluated the appiication in consideration of having corridors that would
provide additional navigabie area through the lease site. Therefore, the corridors are evaluated as a function of
the proposed operations.

Those who are directiy across from the 400?foot corridor would be able to traverse northwest to
southeast through the proposed iease area rather than having to first navigate to the north or south when

navigating to and from the western shoreiine of Merepoint Neck from Maquoit Bay. More generaiiy, the

 

3'2 In addition, the appiicant presented the corridors as a reduction in the operationai footprint of the lease. Noting that they
had requested 40 acres of area, but the proposed corridors would effectively reduce the operational area to 28-acres

17

 

 

 

 

corridor would also allow vessels to navigate through the proposed lease site (northwest to southeast}. DMR will
condition the lease, so that location of the 400-foot corridor is fixed and marked throughout the term of the
lease. A condition will also be included that prohibits the depioyment of gear within the 400-foot corridor.

The proposed loo?foot corridor that runs northeast to southwest through the middle of the lease site
will be modified by DMR. Rather than the proposed corridor running through the middle of the lease, DMR will

move the SE and NE corners loo?feet to the west as depicted in the figure beiow.33

 

Granted Lease
I Gear-Free Chenne
O?ginai Proposal

a Mooring

 

 

500 1.000 Fool

Figure 5: 400?foot navigational corridor and SE-NE boundary modified by DIVER. image
generated by DMR staff.

The reduction at the SE and NE corners provides additional navigable area between the proposed site and
Merepoint Neck. In consideration of this modification, the closest mooring is now over 800 feet from the
proposed lease site and the ciosest dock is now over 1,100 feet from the proposed lease site. If the lease is

granted, it will be conditioned to reflect the restrictions pertaining to the 400-foot navigational corridor.

Discussion. In accordance with 12 DMR must determine whether the proposed lease
will unreasonably interfere with navigation. The regulatory standard contained in Chapter 
specifies, in part, that DMR must consider the foilowing:

The Commissioner shall examine whether any lease activities requiring surface and or
subsurface structures would interfere with commercial or recreational navigation around the
lease area. The Commissioner shali consider the current uses and different degrees of use of the
navigational channels in the area in determining the impact of the lease operation.

 

33 The coordinates for each corner are as follows: SW 43.832475, -70.026971; NW 43.837477, -70.02152

18

 

 

 

in this instance, commercial and recreational boating are common in the area. The types of watercraft utilized in
the area include kayaks, canoes, paddleboards, jet skis, motorboats, sailboats, and lobster boats. Some limited
intervenors and members of the public submitted evidence demonstrating that they regularly traverse within
the boundaries of the proposed lease area using a variety of watercraft includingjet~skis and powerboats.

The proposed lease site is not within any designated navigational channels and occupies shailow waters
within the middle of Maquoit Bay. As modified by DM R, by moving the 100 navigational corridor to the west, the
closest dock is more than 1,100 feet from the proposed iease site and the closest mooring is more than 800 feet
from the proposed iease site. Although the proposed site may prompt some vessels to aiter their traditionai
course, there is adequate room for boats to navigate to and from Maquoit Bay and within Maquoit Bay.
Furthermore, the evidence indicates that vessels operating under power or paddle be abie to navigate to
and from the moorings within the vicinity of the lease site if the proposed iease is granted.

The site report indicates that depending on environmental conditions boats operating under sail may be
impacted by the proposed site when navigating to certain moorings (SR 6). Paul and Kathie Dioli indicated that
they own a smail sailboat, which they utilize around the bay (Exhibit 46b). If the lease was granted, the Dioli?s
testified: ?to access the bay, we will be required to tack around the lease site. Tacking smaii sailboat around a
40~acre obstacle is challenging and detracts from the enjoyment of sailing? (Exhibit 46b, pg.3}. Patricia
Rathbone, a iimited intervenor, indicated that the prevailing southwesterlies coupled with the location of the
proposed lease site would preclude her from accessing her mooring. A Cruising Guide to the Maine Coast
indicates that lViaquoit Bay is affected by prevailing southwesteriies (Exhibit 14). However, the guide also notes
that the area is "fine in settied summer weather? and protected from other directions (Exhibit 14, pg. 3).

If the lease is granted, the intervening factors that may affect access to certain moorings while under sail
are environmentai conditions. One of the possible environmental conditions identified by Ms. Rathbone is the
direction of the prevailing wind. However, the evidence indicates that the effects of these winds dissipate when
the weather is settled. Furthermore, as modified, there would be more than 800 feet of navigable area between
the boundaries of the proposed iease site and the closest mooring.34 Given these distances, access to certain
moorings under sail are not precluded by the proposed iease site. The Dioli?s testimony indicates that if the
lease was granted their traditionai sailing routes and preferences may change, but these do not rise to the ievel

of being an unreasonable interference with navigation.

 

34 Ms. Rathbone never provided the specific location of her mooring, only noting that it ?was haifway to the farm from
shore? (see exhibit 46f). For the purposes of this decision, DMR considered mooring access under sail using the observed
and documented mooring ciosest to the proposed tease site.

19

 

 

Based on review of the relevant evidence and consideration of the standards governing navigation, the
proposed lease site will not unreasonably interfere with navigation. Therefore, the aquaculture activities

proposed for this site will not unreasonably interfere with navigation.

C. Fishing Other Water Retated Uses
Commerciat Fishing

During both site visits, DMR staff observed lobster buoys within the vicinity of the proposed lease site (SR
8). On June 15, 2018, DMR staff recorded the coordinates of all lobster buoys in the immediate vicinity of
proposed lease site (SR 8). The location of the recorded buoys in retationship to the proposed lease site are
depicted below. On June 15, 2018, approximately seven different colored buoys were observed in the immediate
vicinity of the proposal (SR During the second site visit, on July 16, 2018, the locations of the lobster buoys
were not recorded, but the ctosest buoys were tocated to the east and south of the proposed lease site, not within

the boundaries (SR 8).

 

 

 

 

 

 

 

 

 

 

Lobster Buoys Observed on 8115113

II .Proposed LeaseArea

 
       
        

 

 

I 
850 1,700 Feet

-- u" lug-.-

 

 

 

 

 

 

 

 

 

Figure 6: Location of the proposed tease site in reiationship to observed iobster buoys
on June 15, 2018. image from site report.

On July 16, 2018, an outboard-powered vessei was observed hauling traps within Maquoit Bay and a
second lobster boat was observed operating near Merepoirit (SR 8). DMR staff also observed two seining vessels
that were likely targeting menhaden (Brevoortio tyronnus) within Maquoit Bay (SR 8). For most of the site visit

these two vessels were located to the west of the proposed site. However, one of the vessels transited within the

20

 

 

 

boundaries of the proposed site. There aiso appeared to be two lobster boats associated with the seiners (SR 8).
DMR staff further observed two vesseis, navigating from north to south through the proposed lease site, that
were iikeiy harvesting soft sell ciams from the northern area of Maquoit Bay (SR 8).

Harborrnaster Questionnaire requests information about the extent and type of commercial and
recreational fishing within the area of the proposed lease site. Commander Garrepy indicated that there is
commerciai lobstering and bait fishing around Merepoint, but ?none within the last severai years inside the
proposed area to be leased.?35 Sergeant Beal noted that commercial and recreational fishing occurs seasonally in
the general area of the proposed tease site. Lobster fishermen from Freeport, Brunswick, and Harpswell fish for
both crabs (Cancer sp.) and lobster (Homarus omericonus) within the area of the proposed lease site.36 Based on
Sergeant Beal?s observations, the area is fished for lobster and crab in the late spring and eariy summer months
and continues through the early fall??7 Sergeant Beal indicated that he had observed five different lobster buoys
being fished near the proposal. Sergeant Beal has observed a limited amount of menhaden fishing activity using
purse seines and gillnets.

According to MPO LaBelle, harvesting clams occurs regularly within Maquoit Bay because "most of the
bay empties out during low tide exposing mad.?38 Shellfish harvesting occurs in the north and westerns portion of
Maquoit Bay. in addition, the proposed lease site is located over a miie from the extensive mudflats that are
exposed at low-tide in the northern portions of Maquoit Bay. Given the distance and location of the flats relative
to the proposed lease site, it is unlikely that the proposal will interfere with shelifish harvesting in those areas (SR
8).

DMR granted limited intervenor status to Thomas Santaguida and Jon Powers, who indicated in their
application to intervene that they fish for lobster and crab in the boundaries of the proposed site and throughout
other areas of Maquoit Bay.39 Mr. Santaguida aiso noted that he has giilnetted for menhaden, or pogies, within
the proposed lease site, on an intermittent basis.??0 in their pre?filings, the commercial fishing group explained
their use ofthe proposed area, including observed lobster activity. Mr. Powers noted ?Maquoit Bay has thousands
of acres of bottom, but the lobsters find the middle of the bay very attractive to burrow into and shed their shells
early in the summer.? Mr. Powers expiained that the entirety of the lease proposai occupies the space where

lobsters burrow. Mr. Powers aiso testified that the lobsters move out of the area iater in the summer.

 

35 CF: Garrepy HM Questionnaire signed March 18, 2018
35 CF: Beat HM Questionnaire signed October 2, 2018

37 ibid

38 CF: LaBeiie HM Questionnaire dated March 27, 2018
39 CF: Powers and Santaguida appiication to intervene

4" ibid.

23.

 

 

 

 

As part of the pre-filings, Mr. Santaguida detailed his fishing activities within the boundaries of the
proposed lease site from 2015 through 2018. For example, in 2015, Mr. Santaguida had one trap on a trawl inside
the proposed lease area that caught 14 legal lobsters. In 2016, Mr. Santaguida deployed a five?trap trawl in the
proposed lease site and caught 31 legal lobsters. In 2016-117, Mr. Santaguida indicated he had more than ten trawls
inside the proposed lease area. Mr. Santaguida also deployed lobster traps within the boundaries ofthe proposed
lease area from September 27, 2018 to October 12, 2018.

At the public hearing, Mr. Santaguida testified that he did not keep detailed records about his fishing
activities within Maquoit Bay, because he did not think that a lease would be proposed in the area.41 When asked
to estimate the average number of days he fished within the boundaries of the proposed site he thought he spent
at least 50 days lobster fishing and ten days crabbing (Santaguida/Ellis). When asked to estimate the number of
traps he fished within the proposed lease boundaries Mr. Santaguida testified ?it depends? (Santaguida/Ellis). He
estimated he deployed at least 30 lobster traps in 2018 and 20 traps in October 2018 (Santaguida/Ellis).

In response to the same line of questioning concerning the number of fishing days and number of traps,
lVlr. Powers testified that the number of traps he deploys within the proposed site is contingent upon the lobsters
(Powers/Ellis). Mr. Powers estimated that in some seasons he might deploy up to 100 or 200 traps and he might
spend up to 50 days fishing for lobster within the boundaries of the proposed site (Powers/Ellis). Mr. Powers
testified ?It?s a crap shoot. You never know what you are going to get, but you need that bottom? (Powers/Eilis).

At the public hearings, other lobster fishermen testified about lobster fishing within the Maquoit Bay and
the proposed lease area. For example, Dave Moody noted:

My buoys are not there now and they?re apt not to be there at any specific time in history. You

go where the lobsters are, you put traps when they are there. I can?t tell you specific dates I am

fishing there, but traditionally that?s good bottom at certain times of year (Moody/Wyman).

Andrew Washburn testified that lobster fishing activity within the proposed lease site varies, but it is
important that the proposed lease area remain open for when the fishing is good (Washburn/lViills).
Andrew Ulrickson testified that lobsters are present in the area at various times throughout the year and
that he wanted to be able to catch lobsters within the area when lobsters are present.?2

As noted in other sections of this decision, the applicant proposed a 400~foot navigational corridor

that would run west to east across the proposed site and a 100-foot navigational corridor, modified by

 

41 in their closing arguments, the Commercial Fishermen group noted: ?it is impossible to keep sufficient records that
document lobstering use of an area, and it is unreasonable to expect anyone wouid. The lobster fishery is far too dynamic
to make this possible.?

42 Andy Ulrickson, David Moody, Andrew Washburn were identified in the of Maquoit Bay LLC and the
Commercial Fishermen group as individuals that set traps within the boundaries of the proposed lease area.

22

 

 

 

 

 

DMR to run north to south along the eastern boundary of the lease site. Commercial fishing would be
permitted within the corridors and other areas of the lease not marked and occupied with aquaculture
gear. When asked if they would deploy gear in open areas of the lease, Mr. Santaguida indicated that he
would use any open space inside the proposed lease boundaries (Santaguida/Ellis). Mr. Powers and some
of the lobstermen who testified in opposition to the proposal indicated that they would not utilize the
proposed corridors and that the corridors did not provide enough area for iobster fishing activity.

Other individuals testified that lobster fishing occurs in Maquoit Bay, but not at the frequency
described by members ofthe limited intervenor Commercial Fishermen group and other fishermen who
testified that they fish in the area. For example, David Toothaker, a commercial fisherman who testified
that he spends several days a week traversing through Maquoit Bay, indicated he has never observed the
number oftraps described by some lohstermen. Stephen Walker, District ll Town Councilor for Brunswick,
testified: ?i am confident in saying that Maquoit Bay has never been a hotbed for lobster fishing based on
the lack of fishing effort I?ve seen consistently over the past few decades.?43 Jon Rogers, who holds a
commercial lobster license testified that lobster fishermen in the area ?will harvest 98% of his/her volume
south of Merepoint."

Chris Heinig testified that between 2006 and 2012, his company IVIER Assessment Corporation
was responsible for conducting the intensified Paralytic Shellfish Poisoning (IPSP) program. The work
required sampling at two stations in Maquoit Bay once every two weeks from early April through August.
Mr. Heinig testified that throughout the sampling program only a few lobster buoys were observed within
the boundaries of the proposed lease site.

Recreational Fishing

The pre-filing submitted by CCMB indicates that some limited intervenors fish for striped bass
(Marone soxotilis) and other fish species within the vicinity and boundaries of the proposed lease site.
Nick Rathbone stated he has a recreational lobster license and has traditionally deployed traps within the
boundaries of the proposed site.

Other water-related uses

Some limited intervenors testified that swimming will be precluded by the lease site. For example,

Nick Rathbone testified am a competitive open water swimmer. My swimming group and I have

traditionally used the proposed lease area in front of my home for training? (Exhibit Al?e). Mr. Santaguida

 

 

 

43 CF: Stephen Walker?s written testimony that was read into the record on January 15, 2019. Mr. Walker indicated that he

has lived, worked, and recreated around Maquoit Bay for 2? years.

also indicated that he hunts for sea ducks within the area each fall. Some members of CCMB testified that
they hunt for duck and goose within the boundaries of the proposed lease site.
Other Aquacuitu re Leases

There are eighteen active Limited Purpose Aquaculture (LPA) licenses and three active
aquaculture leases within Maquoit Bay (SR 9). The fourteen closest LPAs to the proposed lease site are
licensed to individuals associated with representatives of According to application and
testimony provided by Mr. Devereaux, these fourteen LPAs will not be renewed if the application is
granted.is Operations would be consolidated to the proposed lease site. The closest lease site is more
than 3,000 feet from the proposal, in Freeport.
Discussion

In accordance with 12 DMR must determine whether the proposed iease will
unreasonably interfere with fishing and other water related uses of the area. The regulatory standard
contained in Chapter specifies that DMR must consider the following in evaluating this
criterion:

The Commissioner shall examine whether the lease activities would unreasonably interfere with
commercial or recreational fishing or other water?related uses of the area. This examination shall
consider such factors as the number of individuals that participate in recreational or commercial
fishing, the amount and type of fishing gear utilized, the number of days, and the amount of
fisheries resources harvested from the area.

 

44 LPA acronyms: NNEV117, NNEV217, NNIV317, CNIV416,
and DNIV416. Eight of these LPA sites NNEV217, NNIV317, and 
Chili/316, are within 1,000?feet of the proposai.

45 Page 5 of the MPOC appiication notes: ?Since 2015 Mere Point Oyster Company has successfully operated several LPAs
CNIV116-416, DDEV116-416, JDEV117-417, DEDE117-417) around Mere Point.? CCMB aiieges
that the operation of these LPAs is a violation of DMR statutes and rules as a company can hoid no more than 4 LPAs. LPAs
require the signature of the municipai harbormaster. in his capacity as harbormaster, Mr. Devereaux signed several of the
LPAs submitted as an exhibit by CCMB (For exampie, see LPA acronyms 216, 316, and 416, which were issued to
Cameron Niven and signed by Mr. Devereaux). CCMB aileges that under the standard in Tuscan v. Smith, 130 Me. 36, 153 A.
289 (1931) the tPAs piace Mr. Devereaux ?in a situation of temptation to serve his own personal pecuniary interest to the
prejudice of the interest of those for who the law authorized and required him to act.? CCMB argues that under this
standard the LPAs are void and that has been conducting aquacuiture without valid LPAs and with a quantity of LPAs
that exceeded the legal iimit. According to CCMB, these violations preclude the granting of an aquaculture lease. DMR has
reviewed claims regarding the LPAs. Chapter specifies that LPAs can only be issued to an individual or a
municipai sheilfish management committee. Individuals that hoid LPAs are responsible for operating them in compiiance
with applicable laws. The LPA applications were issued to individuals in accordance with applicable laws and reguiations. in
addition, DMR provides notice of proposed LPA renewais to the municipaiity in which the licenses are located and
requests that the municipality post the notice. Anyone may provide comments to DMR on the proposed renewals within 14
days of the date of the notice. Since their initiai issuance, the LPAs have been renewed without any comments from
members of the pubiic or other stakehoiders. In any event, arguments about the LPAs are not germane to the
decision criteria the Commissioner must consider under 12 M.R.S.A. 

24

 

 

 

 

DMR interprets this language as requiring it to look broadly at the potential effect the proposed site may
have on fishing and other water-related uses of the area, both within the proposed lease site and the
surrounding waters.
Commercial Fishing

The evidence indicates that commerciai fishing activities occur within Maquoit Bay and the
boundaries of the proposed lease site. Based on the record, lobster fishing is the primary commercial
activity that occurs in the area. Many commercial fishermen who testified wanted the lease denied, so
that the proposed area would remain open to iobster fishing irrespective of fishing activities within the
boundaries of the proposed lease site. This argument was aiso reiterated by the Commerciai Fishermen
limited intervenor group.

Most of the lobstermen who testified indicated that at certain times'of the year lobster fishing
within the lease boundaries may be good. However, lobster fishing within the boundaries of the proposed
lease site is dependent upon lobster activity. The evidence indicates that fishing efforts within the
boundaries of the proposed lease site vary year to year. Intervenors Powers and Santaguida both indicated
that they fish outside the boundaries ofthe proposed lease site in other areas in and around Maquoit Bay.
In their closing arguments, Messrs. Powers and Santaguida noted that the lobster fishery is dynamic and
?there are thousands of relatively small but very important lobstering spots that fishermen use annuaiiy
as lobsters move around.?45 Although the proposed iease site may be utilized by fishermen, the evidence
shows there are other areas where they can continue to fish productively.

Further, although there was testimony provided by Mr. Santaguida, Mr. Powers, and other
commercial fishermen regarding the frequency oftheir fishing activities in the proposed lease area, there
was contradicting evidence, as described above, given by several individuais who also live, commercially
fish, and work within Maquoit Bay. Moreover, fishing activity in the area was described by Brunswick
Patroi Commander, Thomas Garrepy, Marine Patrol Officer Curtis LaBeiie, and Marine Patroi Sergeant
Robert Beal. None of the descriptions provided by Messrs. Garrepy, LaBelle, and Beal support the
assertions made by the limited intervenors about the commercial fishing activity within the boundaries of
the proposed lease site. During the iune and July site visits, iobster buoys were observed near the
proposed lease site, but not within the lease boundaries. Relevant evidence indicates that iobster fishing
in Maquoit Bay is not limited to within the boundaries of the proposed tease site and that lobster fishing
within the boundaries of the lease site does not occur at the frequency suggested by the limited

interve nors.

 

4?5 CF: Closing arguments Commerciai Fishermen, pg. 8

25

 

 

 

The standard is whether there would be unreasonable interference with fishing and other water

related uses of the area not that there would be no interference. Maquoit Bay is nearly 3,000 acres in

 

size and fishermen can deploy their traps in those areas as well as within the navigational channel of the

proposed lease and around the proposed lease site itself. DMR has conditioned the proposed lease such

 

that the 400?foot corridor must always remain free of aquaculture gear. In addition, rather than having a
100~foot corridor running north to south through the middle of the lease site, DIVIR has reduced the SE
and NE corners of the proposed site by 100 feet (see Figure 5). This reduction incidentally provides for
additional fishing area around the proposed site. Mr. Santaguida testified that he would utilize any open
space inside the proposed boundaries to fish,47 while other fishermen felt the corridors would be
inadequate. Whether a fisherman chooses to utilize the ADO-foot corridor is a matter of personal
preference, but that area could be utilized by lobstermen who wish to set traps within the boundaries of
the proposed site.

DMR staff observed two seining vessels that were likely targeting menhaden within Maquoit Bay.

 

One of the vessels transited through a portion of the lease site. Mr. Santaguida indicated that he has
fished for menhaden on an intermittent basis. Much of the testimony regarding commercial fishing
focused on the lobster resource, not menhaden. Menhaden fishing occurs in Maquoit Bay when the
resource is present in that area. However, if the lease is granted, menhaden fishing could continue to
occur in other areas of Maquoit Bay should the fishery become more consistent.

Based on the evidence, I do not find that the proposed lease would have an unreasonable
interference on commercial fishing activities.
Recreational Fishing

Some limited intervenors indicated that they personally fish for lobsters or certain fish species
near or within the boundaries of the proposed lease site.48 Nick Rathbone testified that he has a
recreational lobster license. The recreational lobster license, referred to in statute as a non?commercial

lobster license, permits the holder to deploy up to five lobster traps.49 lVlr. Rathbone and other limited

 

intervenors who indicate they fish in the area were concerned that the proposed lease site would

unreasonably interfere with their ability to recreationally fish.

 

47 in closing arguments, Mr. Santaguida wrote ?the proposed lease~even a reduced size lease and even with the completely
unworkable proposed so called ?open lanes??which are viewed by this group as a meaningless gesture?will very
unreasonably interfere and prohibit traditional iobstering and Closing arguments, Commercial Fishing Group
pg. 9). Mr. Sa ntaguida? testimony regarding the proposed corridors is inconsistent with statements contained in the
closing arguments.

?3 See pre~filed testimony of Mark Wyman, David and Susan Clark (fiied jointly), and Nick Rathbone.

49 See 12 M.R.S.A. 

26

If granted, recreational fishing would be permitted within the boundaries of the proposed lease

 

site. Mr. Rathbone could deploy his five recreational lobster traps in and around the proposed lease site.
in addition, the limited intervenors who fish recreationally for striped bass or other species within the
boundaries of the proposed lease site can continue to do so. Whether they choose to fish within the
boundaries of the proposed site is a matter of preference, but it remains an option. Furthermore,

recreational fishing remains available throughout the remainder of Maquoit Bay. Therefore, the proposed

 

lease site will not unreasonably interfere with recreational fishing.
Other water related uses

Some limited intervenors felt that swimming would be impossible given the proposed operations.
Accounting for the 100-foot reduction to the proposed site, the SE boundary of the proposed lease is
?1,260 feet to the nearest point on Merepoint Neck at mean low water. This would provide individuals
with adequate area for swimming. Individuals who participate in open water swimming could either utilize
the 400-foot corridor that runs through the proposed lease site, or swim around the boundaries of the
proposed site. While the proposed lease site may cause some individuals to alter their traditional
swimming routes or preferences, these changes are not unreasonable.

At least two limited intervenors indicated that they hunt for ducks and geese within the
boundaries of the proposed lease site. According to the applicants, hunting would also be permitted
within the boundaries of the proposed lease site. Therefore, hunting in and around the proposed lease
site could continue in compliance with applicable laws. Furthermore, hunting remains available in other
parts of Maquoit Bay.

Exclusivity. in addition to the 400?foot corridor, the applicant intends to permit commercial fishing and
all vessels will be allowed to navigate within the boundaries of the proposed lease site that do not contain surface
gear (App The applicant also proposes to permit recreational fishing and hunting within all areas of the
proposed lease site. The lease will be conditioned to permit these uses.

Other aquaculture leases. The closest lease site is more than 3,000 feet from the proposed site. DMR did

 

not receive any comments from lease holders in the area indicating that the proposal would have adverse effects
on their aquaculture leases in the area.
Therefore, the aquaculture activities proposed for this site will not unreasonably interfere with fishing,

existing aquacuiture leases, or other water related uses of the area.

 

5? CF: Merepoint closing arguments pg. 1

27

D. Flora 8: Fauna
DMR observations. While conducting dive transects of the proposed site, staff observed the foiiowing

marine species and recorded their respective abundance:

 

 

 

 

 

 

 

 

Species Abundance
tobster (Homorus omericanus) Rare
Horseshoe Crab (Limulus polyphemus) Common
Crab (Cancer 5p) Rare
Brown Benthic Diatoms Abundant
Atlantic Menhaden (Brevoortia tyrannus) Abundant
dead at surface

 

 

Based on data collected by DEP and the Casco Bay Estuary Partnership in 2013, eelgrass (Zostera marina) was
documented to the northeast and east of the proposed site (SR 13). No eelgrass was observed within the boundaries of
the lease site during underwater site assessment on July 36, 2018 (SR 13).

During the site review on June 15, 2018, DMR staff observed double?crested cormorants (Phaldcrocorax
ouritus) and herring guils (Larus argentatus) near the proposed lease (SR 13). On July 16, 2018, DIVIR staff observed
double?crested cormorants (P. auritus), herring gulis (L. orgentotus), biack-backed gulls (Larus marinas), common terns
(Sterne hirundo), and eider ducks (Somateria mollissima) with juveniles near the proposed iease site (SR 13).

Fisheries 8: wildiife. Data maintained by the Maine Department of inland Fisheries and Wildlife 
indicates that the proposed lease is located over 3,000 feet to the east of Tidal Wading Bird and Waterfowl Habitat
(SR 13). This habitat is defined under Maine?s Natural Resources Protection Act (NRPA) as Significant Wildlife
Habitat (SR 13). The proposed site is also located over 1,900 feet to the southwest of mapped baid eagie habitat
(SR 13). DMR sent a copy of the lease application to IVIDIFW for their review and comment. MDIFW noted that:
?minimal impacts are anticipated from this iease.?51

Limited intervenor pie-filings and some individuals at the public hearing raised a variety of concerns
reiated to how the proposed site may affect wildlife, and their respective habitat types, in the area. For example,
some individuals noted that Maquoit Bay has been identified as an important bird area by Maine Audubon and
designated a ?Focus Area of Statewide Ecological Significance? by Beginning with Habitat (Exhibit 33 and 36).

Individuals argue that these designations should preclude the proposed leases.

 

51 CF: Email from J. Perry dated March 12, 2018.

28

 

 

 

Discussion. The habitat designations noted by the limited intervenors are non~regulatory and serve as planning,
guidance, and educational resources. They do not prohibit aquaculture activities in lViaquoit Bay.52 In this instance,
the proposal is located outside of any habitat or species designations defined under Maine?s Natural Resources
Protection Act (NRPA) (SR 13). MDIFW reviewed the proposal and determined that any impacts to wildlife wouid
be minimal.

Eelgrass. Based on assessments conducted in 2013, eelgrass was located within the vicinity of the proposed lease
site, but not within the proposed boundaries. During the site assessment, DMR staff did not observe any eelgrass
within the boundaries of the proposed site (SR 13). in addition to staff diving portions of the proposed site, Mr.
Lewis testified that they checked the site for eelgrass using a sounder. DMR science staff also conferred with
colleagues in the Maine Coastal Program who had recently assessed the area for eelgrass using a side scan sonar.
Mr. Lewis indicated that the Maine Coastai Program found eelgrass to the north and east of the proposed lease
site.

Mr. Santaguida testified that he has seen eelgrass within the boundaries of the proposed lease site on his
sounder. As part of the pre?filings, Mr. Santaguida submitted a picture, taken on October 12, 2018, depicting a
strand of eelgrass on a lobster trap that was deployed with the boundaries of the lease site. The photograph
contains a disclosure that reads "The eelgrass was piaced into this photo to show it is live eelgrass. It was on this
trap when it was hauled on October 12" (Exhibit 48).

Dr. Joseph DeAlteris, expert witness, contends that the use of a power washer to clean gear will
create biofouling debris, which ?will accumulate on the bottom burying eelgrass. This will have a negative impact
on eelgrass? (Exhibit 46g). Dr. DeAlteris also speculated that the biofouling debris will move as a plume with the
tide and settle on the bottom of Maquoit Bay outside of the proposed lease area (Exhibit 46g). Dr. Alyssa Novak,
expert witness, noted that defouling can have negative effects on eelgrass, but these effects are often
confined to the respective aquaculture site and are a function of poor farm management and low tidal flushing.
Dr. Novak indicated that Maquoit Bay has good tidal flushing and that the applicants intend to fiip their cages,
which reduces the need to power wash. Dr. Novak noted that good farm management would also include power
washing on an outgoing tide to help further fiush any bio?foul.

Discussion. In assessing the degree to which an aquaculture proposal may affect marine habitat, the

Commissioner must consider: ?such factors as the degree to which physical displacement of rooted or attached

 

59- Stephen Walker, District 2 Brunswick Town Councilor, submitted written testimony that provided context for the Focus
Area designation. Mr. Walker indicated that worked to have Maquoit and Middie Bay designated as Focus Areas. The
immediate threats to the focus area are shoreiine development, nutrient ioading from the deveioped uplands, nearshore
habitat fragmentation from private piers, and tidai restrictions from roads and driveways. He notes that shellfish
aquaculture ?was never even considered as a threat to the integrity of the focus area.?

29

 

 

 

 

(emphasis added) marine vegetation occurs.? In generai, the Department evaluates the eelgrass resource by
assessing historical records of distribution, and the current distribution of the organism, which is documented
during the site visit.

In this instance, site assessment indicated that no eeigrass was observed within the sections of the
lease site that they dived. Surveys conducted in 2013 indicated that eeigrass was located within the vicinity of the
proposed iease site, but not within the proposed boundaries. Mr. Santaguida?s testimony that he observed
eelgrass on his sounder is unpersuasive. Furthermore, a photograph of a piece of eelgrass on a lobster trap does
not indicate that there is eeigrass rooted within the boundaries of the proposed lease site.53 Consistent with Dr.
Novak?s recommendation, the applicants propose to only power wash on outgoing tides.54
Site Monitoring. Some limited intervenors and members of the public were concerned about the deposition of
organic solids underthe proposed lease site. DEP submitted a letter to DM R, which suggested including a condition
requiring benthic infauna monitoring (Exhibit 4). Mr. Lewis testified that benthic infauna monitoring is commonly
utilized on salmon farms, which discharge feed and therapeutants into the water. Given the discharges, salmon
farm operations require a MEPDES permit/WDL and they may be required to conduct benthic infauna monitoring.
Mr. Lewis noted that he has never seen a build?up of solids or other fouling materials underneath oyster farms.
He indicated that good farm management prevents the buiid?up of solids or other materiais on oyster farms.

Considering the difference in operation between salmon and oysterfarms, Mr. Lewis testified that annuai
visual or video monitoring of the bottom of the proposed site made more sense than benthic infauna monitoring.
Video monitoring would enabie DMR to determine if there was a probiern with excessive solids accumulating on
the bottom of the proposed site. If video analysis indicated that there was excessive build-up, DMR would then
determine if benthic infauna monitoring or other approaches are necessary. In their closing arguments, IVIPOC
indicated that it will conduct video monitoring of the proposed lease site. The lease wiil be conditioned to specify
the parameters of video monitoring.

Based on this evidence, it appears that the proposed lease site will not interfere will the ecologicai
functioning of the area.

Therefore, the aquaculture activities proposed for this site wili not unreasonably interfere with the ability
of the lease site and surrounding areas to support existing ecoiogicaliy significant flora and fauna.

E. Public Use Enioyrnent
Per the site report, ?the proposed iease is not within 1,000 feet of any beach, park, docking facility, or

conserved lands owned by federal, state, or municipai governments? (SR 14).

 

53 For exampie, there is eelgrass to the north and east of the proposed lease site, some eeigrass in those areas couid have
detached and drifted onto the proposed site.
54 CF: Closing arguments Mere Point Oyster Company

30

 

 

 

Therefore, the aquaculture activities proposed for this site will not unreasonably interfere with the pubiic
use or enjoyment within 1,000 feet of beaches, parks, docking facilities, or certain conserved lands owned by

municipal, state, or federal governments.

F. Source of Organisms

The applicant intends to obtain stock from the following approved sources:

 

 

 

 

 

Source Location Species
Muscongus Bay Aquaculture Bremen, Maine Eastern oysters, European
oysters, and bay scailops
Downeast Institute Beals, Maine European oysters, and
quahogs
Pine Point Oyster Cape Elizabeth, Maine Sea scallops
Mook Sea Farm Walpoie, Maine Eastern oysters

 

 

 

 

 

Therefore, the applicant has demonstrated that there is an available source of stock to be cultured for

the lease site.

G. Ligm

Except for emergencies, operations on the proposed lease site would occur during daylight hours (App 8,
Exhibit 8). The applicants would install low-level LED navigational iighting on the proposed work platforms (Exhibit
8). In accordance with Chapter lighting for navigationai purposes is not subject to lighting
standards. LED lights may also be installed inside the enclosed work structure (Exhibit 8). Lighting instailed inside
the work shed would not be visible from the outside (Exhibit 8). Pursuant to Chapter 
standards appiy to exterior lighting only.

Therefore, the aquaculture activities proposed for these sites not result in an unreasonable impact

from light at the boundaries of the lease site.

H. Noise

 

As noted in section 2.A of this decision, the applicants are proposing to use an oyster sorter and tumbler,
a high-volume water pump, a power washer, and a generator. Much of the testimony and arguments regarding
the proposal focused on the potential adverse effects noise generating equipment could have in Maquoit Bay.
Individuals were concerned that noise created by the generator and tumbier would disturb marine mammals and

other wildlife (Exhibit 30). In addition, some individuals felt that the noise associated with the proposed

31

 

 

 

aquaculture operation would ruin the quality of life for people who live within the vicinity of the proposed tease
site.

DMR evaluates noise in accordance with 12 M.R.S.A and the regulatory standards Specified
in Chapter The statutory criterion specifies that a lease must not result in an unreasonable impact
from noise at the boundaries of the proposed site. The statute further specifies that DMR must adopt rules that
establish noise impact criteria. The applicable regulatory standards concerning noise requires that all motorized
equipment he designed or mitigated to reduce the source sound levels to the maximum practical extent and that
the applicant has taken reasonable measures to mitigate noise impacts associated with the lease activities.

In the proposai, the applicant originally intended to utilize a 5,000?watt Honda EU generator to power
some of the mechanized equipment. However, the model of generator the applicant intended to use and listed in
their application no longer exists (Kallin/Niven). During the public hearing the applicant clarified that their
intention is to use a Honda which is a 2,200?watt generator The Honda has been
as part of existing aquaculture operations near the proposed lease site (Kallin/Niven). If the 
breaks down or needs to be repiaced, the applicants intend to use the Honda EU7000is, which is a 7,000?watt
generator (Kallin/Niven).

The generators proposed for the site are part of Honda?s ?Super Quiet" EU series (Exhibit 12).55 The
has a muffler and insulated engine shroud, which reduces noise leveis (Exhibit 12). The applicant also
intends to an electric power washer ratherthan a gasoline powered model. A sound assessment submitted
by the applicant notes: ?electricai power washers are much quieter than gasoline powered models because the
gasoline engines are much louder in those pressure washers? (Exhibit 12, pg. 5). The generator selected for the
site is designed to reduce sound levels and the selection of an eiectrical power washer further mitigates noise
impacts.

The applicant will utilize powered equipment, including the tumbler, on the proposed work barges. The
work barges will be kept in the ?Intermediate Area? of the proposed lease site, which is near the SW-NW
boundary. The boundary is more than 1,580 feet from the nearest point on Merepoint Neck (Exhibit 9,
During the first year of production, the applicants intend to limit their activities on the lease site from the
hours of9am to 5pm (App 7). In subsequent years the noise emitting equipment will be utilized inside the enclosed
work shed to help deflect any noise (App 7). In addition, the power washer will be used two to three times a week

from June through November (App 7).

 

55 The Super Quiet series includes the proposed and EU7000is. The noise specification for the is 
and the EU7000is is 58d BA-where ?d is a unit of sound level (Exhibit 12).

55 Exhibit 9 shows the location of the barges and page 5 of the site report provides distances from the tease boundaries and
corners to various points of iand.

32

 

 

The applicant has selected equipment designed to reduce or mitigate source sound levels. The placement
of noise generating equipment away from Merepoint Neck, operating equipment during reasonable hours,
operating equipment within enclosures, and limiting the use of some noise generating equipment to a few days
each week are reasonable measures to further mitigate noise impacts. Based on this evidence, it appears that
any noise generated by operations on the site is unlikely to have a significant effect at the boundaries ofthe lease
and the applicant has satisfied the standards specified in Chapter 

Therefore, the aquaculture activities proposed for this site will not result in an unreasonable impact from

noise at the boundaries of the lease.

I. Visual Impact

As noted in section 2.A of this decision, the applicant intends to deploy a variety of soft mesh and wire
cages, and to install three work platforms. One platform would contain a work shed, which would be used for the
operation and storage of some power equipment. Some individuals, including limited intervenors, maintain that
the proposed gear and structures proposed for the lease site would detract from the scenery of Maquoit Bay.57

The Department assesses visual impacts in accordance with Chapter which requires gear
and structures on the proposed lease site to comply with certain requirements governing color, height, and
building profiles. The regulation requires gear and structure to be a color that does not contrast with the
surrounding area. Acceptable hues listed in regulation include black, brown, gray, green, and blue. According to
the application and a visual assessment of the proposal submitted by MPOC gear for the site will be primarily
black, brown, or other dark colors to minimize any contrasts with the surrounding landscape (App 4, Exhibit 8).

In accordance with applicable regulations, structures cannot exceed 20 feet in height as measured from
the waterline. The three work platforms, including the platform that holds the shed will not exceed a height of
nine feet as measured from the water line (Exhibit 8). Per the site report, all gear and structure comply with
height limitations (SR 15). The roof materials for the work shed will be dark asphalt shingles and the
siding will be wooden boards that are stained or painted a dark color to blend with the surroundings (Exhibit 8).
The roof and siding materials proposed for the shed satisfy DMR standards.

Therefore, equipment and structures proposed for the lease site will comply with the visual impact criteria

contained in DMR Regulation 2.37 (1) (A) (10).

4. CONCLUSIONS OF LAW

Based on the above findings, i conclude that:

 

57 See testimony of Paul and Kathie Dioii, David and Susan Clark, and Exhibit 45, which was submitted by Mark Wyman.

33

 

 

 

 

a. The aquacuiture activities proposed for this site will not unreasonably interfere with the ingress and

egress of any riparian owner.

 

b. The aquaculture activities proposed for this site, as modified, will not unreasonably interfere with
navigation.

c. The aquaculture activities proposed for this site will not unreasonabiy interfere with fishing or other
uses of the area, taking into consideration the number and density of aquaculture ieases in the area.

d. The aquacuiture activities proposed for this site wiil not unreasonably interfere with the ability of the lease
site and surrounding areas to support existing ecologically signi?cant flora and fauna.

e. The aquaculture activities proposed for this site will not unreasonably interfere with the public use or
enjoyment within 1,000 feet of beaches, parks, or docking facilities owned by municipal, state, or federal
governments.

f. The applicant has demonstrated that there is an available source of American/eastern oysters
(Crassostrea virginica), European oysters (Ostrea edulis), bay scailops (Aequipecten irradians), sea
scallops (Placopecten magellonicus), and northern quahogs (Mercenaria mercenario) to be cuitured
for the lease site.

g. The aquaculture activities proposed for this site will not result in an unreasonable impact from light

 

at the boundaries of the iease site.

h. The aquaculture activities proposed for this site will not resuit in an unreasonable impact from noise
at the boundaries of the lease site.

i. The aquaculture activities proposed for this site comply with the visuai impact criteria contained

in DMR Reguiation 

Accordingly, the evidence in the record supports the conclusion that the proposed aquaculture activities

meet the requirements for the granting of an aquaculture lease set forth in 12 M.R.S.A. ?6072.

5. DECISION

Based on the foregoing, the Commissioner grants a iease in the amount of 34.52 acres, reduced from the
original application as discussed above, to Mere Point Oyster Company LLC for 10 years for the cultivation of
American/eastern oysters (Crassostrea virginicq), European oysters (Ostreo edulis), bay scaiiops (Aequipecten
irradians), sea scallops (Placopecten magellonicus), and northern quahogs (Mercenaria mercenaria) using
suspended culture techniques. The lessee shall pay the State of Maine rent in the amount of $100.00 per acre per

year. The lessee shall post a bond or establish an escrow account pursuant to DMR Rule 2.40 in the amount

34

of $5,000.00, conditioned upon performance of the obligations contained in the aquaculture lease documents

and all applicable statutes and regulations.

6. CONDITIONS TO BE 0N LEASE

The Commissioner may establish conditions that govern the use of the lease area and impose limitations
on aquaculture activities, pursuant to 12 M.R.S.A ?6072 Conditions are designed to encourage the
greatest multipie compatible uses of the lease area, while preserving the exclusive rights of the lessee to the
extent necessary to carry out the purposes of the iease.

The foilowing conditions shall be incorporated into the lease:

a. The lease site must be marked in accordance with both US. Coast Guard requirements and Rule
2.80.

b. The 400?foot navigational corridor shall be clearly marked and kept free of ail aquaculture gear,
moorings, and structures.

c. in compliance with applicable iaws, recreational fishing and hunting is permitted within the
boundaries ofthe proposed lease site. Commercial fishing vessels and all othervessels will be aliowed
to navigate within the boundaries of the proposed lease site that do not contain surface gear.

d. Video monitoring of the site must occur at least once between August 15 and November 1 each year.
MPOC must submit the video, to DMR, within 30 days of the date video monitoring occurs. The
geographic extent of the video monitoring must include transects of ail cultivation areas within the
boundaries ofthe proposed site. The video must be a continuous recording under each section of the
longest axis of ail gear.

e. In consideration of the video monitoring, DMR may require MPOC to conduct additional monitoring
of the lease site.

f. Other pubiic uses that are not inconsistent with the purposes of the lease are permitted within the

lease boundaries.

7. REVOCATION 0F LEASE
The Commissioner may commence revocation procedures upon determining pursuant to 12 M.R.S.A

?6072 (11) and DMR Rule Chapter 2.42 that no substantial aquaculture has been conducted within the preceding

 

53 12 MRSA ?6072 states: ?The commissioner may estabiish conditions that govern the use of the leased area and
limitations on the aquaculture activities. These conditions must encourage the greatest muitipie, compatibie uses of the
leased area, but must aiso address the ability of the lease site and surrounding area to support ecoiogicaiiy significant ?ora
and fauna and preserve the exciusive rights of the lessee to the extent necessary to carry out the iease purpose.?

35

 

 

 

year, that the iease activities are substantiaily injurious to marine organisms, or that any of the conditions of the



Patrick CTIKeliher, Commissioner
Department of Marine Resources

    

    

 

8. EXHIBIT LIST

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EXHIBIT DESCRIPTION: DATE ENTERED SUBMITTED CITED IN
NUMBER: INTO THE BY: DECISION AS:
RECORD:
1 DMR Case File November 15, Department CF
2018 of Marine
Resources
(DMR)
2 Completed application of Mere November 15, DMR APP
Point Oyster Company 2018
3 DMR Site Report November 15, DMR SR
2018
4 Letter from the Maine November 15, DMR Exhibit 4
Department of Environmental 2018
Protection to DMR dated
November 15, 2018
5 Testimony of Dana Smith November 15, Mere Point Exhibit 5
2018 Oyster
Company,
LLC (MPOC)
6 Curriculum Vitae, Alyssa 8. November 15, MPOC Exhibit 6
Novak, 2018
63 Expert Report of Alyssa B. Novak November 15, MPOC Exhibit 6a
2018
7 Sound Level Noise Impact Study November 15, MPOC Exhibit 7
by Resource Systems 2018
Engineering
8 Visual Impact Assessment by November 15, MPOC Exhibit 8
Terrence J. DeWan Associates 2018
9 Revised Site Plan with November 15, MPOC Exhibit 9
Navigation and Fishing Corridors 2018
10 Siide Presentation November 15, MPOC Exhibit 10
2018

 

 

36

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

11 Visuai Impact Assessment Slide November 15, MPOC Exhibit 11
Presenta?on 2018

12 Response to Rebuttai on Noise November 15, MPOC Exhibit 12
by Charlie Waiiace 2018

13 Report of Joseph DeAlteris, November 15, Concerned Exhibit 13
2018 Citizens of

iWaquonBay
(CCMB)

13a Resume ofioseph DeAiteris, November 15, CCMB Exhibit 13a
2018

14 Excerpt from A Cruising Guide to November 15, CCMB Exhibit 14
the Maine Coast, third edition. 2018

15 Best Management Practices for November 15, CCMB Exhibit 15
the EastCoastSheh?sh 2018
Aquacuiture Industry, June 2010

16 Maine Aquacuiture Association, November 15, CCMB Exhibit 16
Code of Practice 2018

17 Maine Department of inland November 15, CCMB Exhibit 17
Fish and Wildiife. Proposed 2018
Public Boat Launch, Merepoint,
Brunswick, Maine,
Environmental Assessment

17a Maine Department of Inland November 15, CCMB Exhibit 17a
Fish and Wiidlife. Proposed 2018 (Duplicate of
Pubiic Boat Launch, Merepoint, Exhibit 17)
Brunswick, Maine,
Environmental Assessment
(Note: Appears to be a duplicate


18 Cooperative Agreement for the November 15, CCMB Exhibit 18
Management and Maintenance 2018
of the Mere Point?Northern
Casco Bay Access Site in
Brunswick, Maine

19 DMR Preapplication Meeting November 15, CCMB Exhibit 19
Notes 2018

20 DIVIR Scoping Session Notes November 15, CCMB Exhibit 20

2018

21 Diolis? Mooring Approvai Letter November 15, CCMB Exhibit 21
from Officer Dan Deveraux 2018

22 Letter from Mere Point Oyster November 15, CCMB Exhibit 22
Company, LLC 2018

23 DMR Request for Agency November 15, CCMB Exhibit 23
Comment dated February 15, 2018

 

2018

 

 

 

 

 

37

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

24 Limited Purpose Aquaculture November 15, CCMB Exhibit 24
Liceases utilized by Mere Point 2018
Oyster Company, LLC
25 Review of More Point Oyster November 15, CCMB Exhibit 25
Company Application, Report by 2018
Owens A. McCullough, P.E.,
dated November 9,
2018
26 Map of Maquoit Bay, Prepared November 15, CCMB Exhibit 26
by Sebago Technics 2018
27 Dioli?s Photographs November 15, CCIVIB Exhibit 27
2018
28 Clark?s Photographs November 15, Exhibit 28
2018
29 Debating Science. "How Farming November 15, CCMB Exhibit 29
Oysters impacts the Ocean,? 2018
UMASS Amherst Course Blog,
dated Aprii 25, 2017
30 Erbe, Christine. ?Chapter 10: November 15, CCMB Exhibit 30
Effects of Noise on Marine 2018
Mammals.? Effects of
Anthropogenic Noise on
Animals. Springer Handbook of
Auditory Research, 2018
31 Power?s Photograph November 15, Exhibit 31
2018
32 N. Rathbone?s Photographs November 15, CCMB Exhibit 32
2018
33 Maine Audubon, ?Maquoit Bay November 15, CCMB Exhibit 33
(Freeport/Brunswick) important 2018
Bird Areas?
34 Brunswick Topsham Land Trust, November 15, CCMB Exhibit 34
?Maquoit Bay Conservation 2018
Land?
35 Casco Bay Plan, ?Habitat November 15, Exhibit 35
Protection,? pp. 51?72 2018
36 Focus Areas of Statewide November 15, CCMB Exhibit 36
Ecoiogical Significance: Maquoit 2018
and Middle Bay
37 Ogunola Oluniyi Solomon. November 15, CCMB Exhibit 37
?Ecological Consequences of 2018
Oyster Culture: A Review.?
International Journal of
Fisheries and Aquatic Studies,
2015
38 Fleming, Deirdre. "Maine?s November 15, CCMB Exhibit 38

 

Great Blue Heron Study Raises

 

2018

 

 

 

 

38

 

 

Awareness.? Portland Press
Herald, July 8, 2018

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

39 Mere Point Boat Launch November 15, CCMB Exhibit 39
Agreement 2018

40 Wyman?s Photographs November 15, CCMB Exhibit 40

2018

41 Email Between ion Lewis and November 15, CCMB Exhibit 41
Cindy BurkeeJ. Eldridge, dated 2018
October 1, 2018

42 Image Depicting the Proposed November 15, CCMB Exhibit 42
Site in Relationship to Observed 2018
Moorings, Municipal Boundary,
LPAs, etc.

42a image Depicting the Proposed November 15, CCMB Exhibit 42a
Site in Relationship to Active 2018
Aquaculture Leases, Municipal
Boundary, Grady White GPS
Tracts, etc.

43 Army Corps Permit for Sea Point November 15, CCMB Exhibit 43
Land Company, Mere Point 2018
Mooring Field

44 Aquaculture Harbormaster November 15, CCMB Exhibit 44
Questionnaire, signed by DMR 2018
Marine Patrol Sergeant, Robert
Beal, dated October 2, 2018

45 Mark Wyman?s PowerPoint January 15, 2019 CCMB Exhibit 45
Presentation

46 Pro?Hearing of November 15, CCMB Exhibit 46
Consoiidated Intervenors pp.1? 2018
11

46a Pre?Filed Testimony, Mark November 15, CCMB Exhibit 46a
Wyman 2018

46b Pre?Filed Testimony, Paul and November 15, CCMB Exhibit 46b
Kathie Dioli 2018

46c Pre?Filed Testimony, David and November 15, CCMB Exhibit 46c
Susan Ciark 2018

46d Pro-Filed Testimony, Andrew November 15, CCMB Exhibit 46d
Powers 2018

46e Pre?Filed Testimony, Nick November 15, CCMB Exhibit 46e
Rathbone 2018

46f Pre-Filed Testimony, Patricia November 15, CCMB Exhibit 46?
Rathbone 2018

46g Rebuttal Pre~Filed Testimony of November 15, CCMB Exhibit 46g
Joseph DeAIteris, 2018

47 Pre?Fiied Testimony, John November 19, Commercial Exhibit 47
Powers 2018 Fishermen

(CF)

 

 

39

 

 

 

 

 

 

 

 

 

47a Pre?Fiied Testimony, Tom November 19, CF Exhibit 47a
Santaguida 2018
48 Santaguida?s Photos November 19, CF Exhibit 48
2018
49 Maine Department of Inland November 19, CF Exhibit 49
Fish and Wildlife, Proposed 2018
Public Boat Launch Mitigation
Plan, May 2002
50 Location of Lobster Buoys in January 15, 2019 Derek Exhibit 50
Relationship to Proposed Lease Devereaux

 

Site

 

 

 

 

 

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