Episode 68 Transcript: CONFLICT WITH AQUACULTURE!

CLARICE:  Good morning and hello, everybody.  Welcome to this week’s episode of Environmentally Speaking.

MARISA:  Hi, everyone.  I’m Marisa Desautel an environmental attorney in Rhode Island.

CLARICE:  And I’m Clarice.  I’m coming in with questions, comments, and general episode color.  And, Marisa, this week was a topic that you had found.

MARISA:  Yes.  Surprisingly, I actually did some legwork.

CLARICE:  Did you?   You do more than you give yourself credit for.

MARISA:  Well, not really.  The topic that I wanted to chat about today just came out in the news this week.  We record these episodes on Friday, so not sure by the time folks hear it the news might be with ten days old.  But still in terms of Rhode Island environmental issues it’s still pretty new.  The topic that I’m talking about relates to aquaculture in Rhode Island.  Do you have any idea what that is?

CLARICE:  We did an episode talking a little bit about aquaculture and, oh, goodness, digging way back into the memory I believe it’s essentially the farming of sea life for consumption.

MARISA:  Look at you.  That is –

CLARICE:  It’s one of my favorite topics.

MARISA:  — impressive.  Yeah.  I first learned about aquaculture when I was in college so back when we were using the abacus in math classes and it was a new venture and very exciting and sort of cutting edge in terms of biological farming and ocean agriculture.  But now it’s almost an everyday type of industry with lots of aquaculture farms popping up throughout state waters in Rhode Island.

CLARICE:  Yes.  Have you ever been to an aquaculture farm?

MARISA:  I have not.  I know of a few of them and I’m generally familiar with their locations, but I’ve not ever done a fieldtrip or visited.

CLARICE:  Oh.

MARISA:  And I don’t eat seafood, so there’s that.

CLARICE:  That makes sense.  I have been to two different farms.  I’ve been to an oyster farm and a – if memory serves I believe it was a salmon farm.

MARISA:  Where were these?

CLARICE:  The oyster farm was near Narragansett.

MARISA:  Okay.

CLARICE:  And the salmon farm, my family is from Portugal and more specifically a large part of my family is from Sao Miguel and Madeira [inaudible] island.  And on the island they had a fish farm and my grandparents thought would be great to take all the grandkids to go see a fish farm.

MARISA:  Wow.

CLARICE:  Oh, it was – I’m sure as an adult I would have had way more questions and would have been more engaged in learning about it, but ten-year-old Clarice did not like fish and could not understand why she was in front of large pools watching fish swim.

[0:03:15] MARISA:  Well, grandparents ran out of ideas, huh.

CLARICE:  It was a very small island.

MARISA:  Yeah.  Well, so, you know, when you were ten I assume that was at least ten or 15 years ago.

CLARICE:  Yeah.  It was a while ago.

MARISA:  The concept has been around and I would say it’s pretty advanced at this point.  And the reason I feel confident saying that is because the topic is in the news and it’s contentious, so you know it’s a success if it’s meeting those two criteria.

CLARICE:  Oh, I like that metric.

MARISA:  The specific project that we’re talking about today is owned and operated or proposed to be owned and operated by Perry Raso who is the owner of the Matunuck Oyster Bar, a very, very, very popular and successful restaurant in Matunuck, Rhode Island.

CLARICE:  So you had said that there’s some controversy?

MARISA:  Yeah.

CLARICE:  Tell me what the issue is.

MARISA:  So I guess when you boil it down to its basic term it’s conflict of uses where any submerged land that is adjacent to the coastline out to three nautical miles is in the custody and control of the state and that comes from the Rhode Island constitution that says submerged lands shall be held in public trust for the benefit of the people of the state of Rhode Island.  The legislature in Rhode Island saw fit to give the jurisdiction for that custody and maintenance and control to the Rhode Island Coastal Resources Management Council.

And the CRMC then, as you can imagine, has to deal with figuring out how to govern these submerged lands and – what’s the word I’m looking for – I guess manage them so that the public of Rhode Island is afforded an opportunity to use them.  So that’s the general premise.  Then compare that with what the CRMC is doing now by leasing submerged lands to private parties for a private benefit, usually something like aquaculture.  And then you’ve got interest groups coming forward and saying, well, wait a minute, this land is supposed to be held in the public trust and now you’re outsourcing it to a private party.  You’re precluding us from using this area and that violates the Rhode Island constitution and the doctrine of public trust.

[0:06:13] CLARICE:  Uh-huh.  And that was something that was mentioned a lot.  And of course we’ll link this article in our show notes.  But the article talked a lot about locals who are next to that same body of water talking about this expansion.  And to be more specific, they’re looking to expand the current oyster farm another three acres, so they were – local residents were saying that it would make boating and water skiing, fishing, and basically any sort of enjoyment of the water much more difficult.

MARISA:  Yes.  That is the basic argument that if you’ve got an aquaculture farm occupying areas that the public uses how does that fit with this theory in the Rhode Island constitution that land shall be held in public trust for the use of everyone.  Once you start leasing land to the exclusion of everyone else you’re technically – in my opinion you’re violating the public trust doctrine, so that’s the argument.

CLARICE:  Yeah.  And to give a little bit more context, my understanding is the farm is already seven acres.  They’re looking to expand three acres and I believe that is still a three percent use or three percent of the total lake just for – or pond area.  I’m sorry.  So just to kind of frame it in folks’ minds if they’re thinking how big is this, or how – you know, three acres sounds like a lot, but what’s the actual pond like.

MARISA:  Yeah.  And, I mean, so the state is looking at it as a three percent increase, but it’s already in existing use that is looking to expand.  So from a public’s perspective, that’s unacceptable.

CLARICE:  Uh-huh.

MARISA:  The particular project expansion apparently has been pending before the Coastal Resources Management Council for five years.

CLARICE:  This has been a long one.

MARISA:  Yeah.  And the action taken this past week, it looks like it’s going to go on even longer because the council voted six to two to send a revised amended plan back to council star to review it further.  And you might ask, well, why was the plan amended.

CLARICE:  I was going to.  Thank you.

MARISA:  Please.  Please ask.

CLARICE:  Hey, Marisa?

MARISA:  Yeah?

CLARICE:  Why was that plan amended?

[0:08:57] MARISA:  Oh, my God.  That’s a great question.  Because one of the council members Jerry Sahagian suggested cutting the size of the farm down to just short of two acres and then moving the area to about 50 feet closer to the shoreline.  This proposal also calls for eliminating any floating beds and gear and replacing them with, I guess, underwater alternatives of the same floating beds and gear.  And the purpose there is to, I guess, get rid of anything floating because the public is objecting to it and saying that it’s not aesthetically pleasing.  Interestingly, the revised plan that the council member Sahagian  proposed ties into the Open Meetings Act, which I know you love.

CLARICE:  It’s our favorite topic. It won’t go away.

MARISA:  I know.  It persists.

CLARICE:  Why?  Because you can’t suggest a change or implement a change and not allow the public space to comment on it.

MARISA:  Yeah.  Exactly.  You know, and in a colloquial way, not for anything but the CRMC just went through this in a very public venue where they tried to enter into a settlement agreement over the Champlin’s Marina Project on Block Island and they were shot down, slapped around by the Rhode Island Supreme Court saying that you can’t conduct public agency business in a manner that’s not transparent.  So it surprised me in this article to see that they were suggesting voting on a revised plan without providing the public an opportunity to review and comment, but ultimately they did the right thing.  They did vote to send it back to staff for review which will provide the public of another public meeting and an opportunity to comment on the project.

CLARICE:  And one thing that I thought was interesting about this process is there was a comment that the folks making the review weren’t necessarily experts in this type of work and there was a discussion in this article about navigating – is this being reviewed by sort of the best eyes, or are these suggestions being made from folks who don’t have the full background or the expertise in this.  And I’m not sure if you would have the answer to this, but do you have any idea of what groups do or council members do in a place where they’re sort of out of their element in terms of expertise?

[0:12:02] MARISA:  I know for sure that some of the council members are not experts.  They’re representatives from particular interest groups and they’re appointed by the governor.  So for whatever reason the governor of Rhode Island thinks that the particular council members are appropriate.  And it is statutory, so with full disclosure and honesty about what the governor is doing it’s a statutory appointment.  I don’t know it off the top of my head here, but the representatives are supposed to, I guess, deal with a cross section of Rhode Island stakeholders.  But you’re right.  By statute and by appointment, these folks are not necessarily experts in the field, but some of them are pretty close.  You’ve got a Rhode Island DEM representative who is a designee of the DEM director and in my experience those folks know what they’re doing.

Then you’ve got two attorneys, one of whom is an environmental attorney, so some of the folks are well versed.  I wouldn’t necessarily call them technical experts.  But more importantly the matter was referred back to CRMC staff who are the experts in Rhode Island for coastal biology, coastal policy.  The fact that it was sent back for review I think was the right choice because you’re going to have experts taking a look at it and then, again, like I said, the public will have an opportunity to review.  And anyone opposing the project could bring forth their own expert to provide evidence and testimony about the impacts from the project.

CLARICE:  It’s good to know that even though some of the decision makers aren’t technical experts in this there are others around with that knowledge and there’s the option to bring in experts to help navigate that decision making process.

MARISA:  Yeah.  That’s right.

CLARICE:  So, listeners, I can’t promise we’ll give you an update soon because this has been going on for five years, but if there is an update we’ll do a follow-up episode.

MARISA:  I’m in.

CLARICE:  Yeah.  Well, if you have any questions, comments – do you live near this area?  Do you have any direct thoughts?  Do you own a water ski?  That came up a lot in the article and I really want to know who owns a water ski still.

MARISA:  Still?  You don’t think that there’s a lot of water ski usage?

CLARICE:  I think there’s a lot of water ski usage pacifically for folks on tropical vacations.  In my mind the water ski is the ultimate sign of ‘80s wealth.

[0:15:08] MARISA:  Oh, yeah.

CLARICE:  And we’re no longer in the ‘80s, so.

MARISA:  You’re not wrong.  Like Weekend at Bernie’s style?

CLARICE:  Yes.

MARISA:  Yeah.

CLARICE:  Dear listeners –

MARISA:  I got you.

CLARICE:  — do you own a water ski?  Let us know.  Hit us up on the socials.  We are at Desautel Law on Twitter, Instagram, Facebook.  You can see our faces on YouTube.  Our blooper reel is coming soon, so if you think we’re super polishes and professional now just you wait.  You can catch us at e-mail DesautelESQ – nope.  Help@DesautelESQ.com.  That’s those bloopers we were talking about, folks.

MARISA:  Oh, boy.

CLARICE:  You guys have an awesome day.

MARISA:  Thanks, Clarice.

CLARICE:  Bye.

MARISA:  Bye.

 

 

 

 

 

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