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Aquaculture spat grows deeper than the oysters

(Nov 14,2014) Culminating but not yet climaxing with the decision of the Worcester County Commissioners to limit aquaculture from an approved use to one that requires a special exception in estate-zoned areas, the future of aquaculture in the county, the efforts of an entrepreneur and those joined in the cause for and against him remain in limbo.

Don Marsh, at one time, held the largest lease in Maryland for waters off South Point and has since seen his claim trimmed to about half of what he originally intended. Residents and neighbors have objected to Marsh’s operation nearly from the start in 2009, most taking exception to the location and suitability of the project in the area with a few, naturally, invoking “not in my backyard” platitudes. Enter Maryland’s Department of Natural Resources, which had been given a directive by Gov. Martin O’Malley to support aquaculture, and the county, which had not. Add to that the Army Corps of Engineers, an agency of the Department of Defense, and you have a fair crucible for the future of aquaculture in the county.

Several court cases have been filed, with one decision and one overruling of that decision, pending litigation, neighborhood groups and a weary businessman convinced he’s following the law while it appears to him that everyone else is trying to rewrite the law around him.

Don Marsh

A Princeton and Harvard educated businessman, Marsh decided he wanted to spend his retirement with his hands in the mud, the dirt and the water near South Point.

“My wife and I have been coming to this area for all of our adult lives. We started looking for a property to buy 10 years ago for when I retired,” he said.

Their first idea was historic preservation, owing to Marsh’s wife’s ongoing interest, but the couple found out pretty quickly that any of the historic preservation projects available at that time simply weren’t for them.

Marsh’s property on South Point is an unimproved lot without so much as an address. It has a small dock and a large fenced garden. Near the dock are some fishing supplies including a couple of oyster cages, some crab pots and other supplies. The supplies number in the dozens, not the hundreds or even thousands opponents cite in their ongoing battle against Marsh’s aquaculture farm. Under the code before the commissioners’ action, such a large effort might have been possible if not incredibly likely.

“She and I are pretty ardent conservationists and environmentalists. We really do take the view that a lot is being done to make this planet less inhabitable. One of the issues for us has been water quality. We’re on this body of water and we wanted to find out about it,” he explained.

He didn’t like what he found.

“Like the Chesapeake, the coastal bays are deteriorating. It’s not obvious to people because it’s a gradual process and they don’t have a good perspective on what once was versus what could be,” he said.

Marsh looked for an organization or group to join and settled on the Assateague Coastal Trust. Through them, Marsh discovered oyster gardening.

“Then that program died,” he said, but through further research he only got more involved.

“As a businessman, I can finally do something that I cannot find anything about it that isn’t good. My whole life has been behind-the-desk kind of occupation: indoors, banking, finance and running companies. It’s a complete change of direction for me, and it’s wonderfully good for the environment, great for the people, the water, it helps offset some of the problems with agriculture — it’s all good stuff.”

Marsh’s win-win quickly dissolved.

“It just triggered this enormous negative reaction on the part of a couple of people who took it upon themselves to canvass the entire community down here and spread misinformation about the project,” he said.

That fight continues today.

“I shouldn’t have to defend myself in lawsuits brought about by me doing something in compliance with the law,” Marsh said.

Sylvia Tunis et al.

Sylvia Tunis lives with her family at the very tip of South Point and has, arguably, the most favorable placement for NIMBY-ism.

Tunis has spent the most time, effort and money to fight this project, which she said she isn’t against because it’s Don Marsh or aquaculture, she’s against it because she thinks it’s a bad idea.

Originally, Marsh’s lease overlapped the federal channel, effectively cutting off boat navigation around South Point, and it took Tunis herself to point out the error to the Department of Natural Resources. Marsh’s lease was scaled back and moved south and scaled back and moved south again, but still comes fairly close to the channel.

The channel moves.

Most recently with Hurricane Sandy, but just through natural forces, the channel structure remains in a constant state of flux as sediment falls and is washed around by tides, storms and boats.

“Gov. O’Malley wanted to clean up the Chesapeake Bay and set up a system for watermen to engage in aquaculture. Don Marsh from Kentucky comes in and wants to be the new poultry industry,” she said.

All he needs is farmland.

“It’s about money — it’s about a business he wants to start. He hasn’t lived in or worked these waters,” Tunis said.

Waters, Tunis maintains, that are anything but predictable. The reports the DNR and others produced are only a snapshot of what can be a very tumultuous area, she said.

The waters near the channel are shallow according to the bathymetric study conducted by the Army Corps of Engineers in 2012, with large swaths near the proposed lease site around two feet deep.

Marsh is required to mark the corners of his lots only, which can be confusing to see and may not convey enough information to recreational traffic.

“And all that is on a perfect day,” Tunis said.

The imperfect days come with the power washing of cages, the storms that could upset the neat rows of cages Marsh has planned, diseases, harvesting, hauling and disposal, Tunis said.

“What happens if he loses an entire crop? Who cleans it up? The anchors he’s using go three feet below the surface and once they corrode they’re there forever. During Hurricane Sandy two of his floats washed up on my property, now there are two concrete blocks with tethers that are down there forever,” Tunis said.

All it takes, she said, is one mistake to contaminate the area for everyone.

“I’m spending my own after-tax dollars to fight against my tax dollars being used to defend the DNR,” she said.

Worcester County

Commissioners

South Point is tucked away off Route 611, just before the road turns toward the Verrazano Bridge connecting Assateague Island to the mainland. Residents in attendance at the commissioner’s meeting where the zoning change was made described the area as one of loose associations, where several homeowners’ groups exist but where no real overarching ideology surfaced. Until Don Marsh.

Zoned E-1 for its large lot sizes and low density among other factors, according to a former employee of Worcester County’s planning department, South Point aquaculture was a permitted use of those properties.

It’s a change Marsh laughs off, because he doesn’t want to conduct aquaculture on his property, he wants to conduct it on leases granted him in the Chincoteague Bay by the State of Maryland. On his property he wants two things: “to grow things in my garden, and to live here.”

“It was the wrong avenue to attack one individual with something that is going to effect estate zoning throughout the whole county. I had a call from an attorney who was at the hearing and said ‘I hope Mr. Marsh wants to challenge this because I’ll take it for free,’” Commissioner M. Jim Bunting said.

The proper venue, Bunting said, would be for homeowners in the area to hire an attorney and enforce Marsh’s deed restrictions.

Marsh’s deed for the land he owns in Newport South dated Oct. 22, 2002 stipulates the land is subject to covenants, easements and restrictions of record. The restrictions, dated Oct. 15, 1986 describe lots in the development, of which Marsh’s is part, is to be used “for single-family residential purposes only.”

“No mercantile business of any kind or character shall be maintained … upon said lots or any part thereof,” the document reads.

The Enforceability section reads, “Violation of any restriction … shall give the Committee … and/or the Worcester County Commissioners … the right to enter upon the land and … remove, at the expense of the owner … any erection, thing or condition that may be or exists,” in violation of the provisions.

“I had [County Attorney] Sonny Bloxom research these and they’re still enforceable,” Bunting said.

While he admits he is no fan of the official measures the county has taken to curtail this project, Bunting said he still remains skeptical of Marsh’s intentions.

“If anybody believes he’s going to take and have one boat he backs down and pulls up with oysters on a trailer and goes and processes them. If they think he’s going to be able to handle what he has to handle under his permits — it’s not going to happen,” he said.

Department

of Natural Resources

Karl Roscher is the manager of the Aquaculture Division of the Department of Natural Resources and the point person for aquaculture for the state, and it was his determination that lies at the heart of the most recent finding by the court.

“It was clear from the beginning that the Administrative Law Judge got it wrong,” Roscher said of the decision that was eventually overturned (see below).

As for the areas surround Marsh’s leases, which are wide-open spaces that don’t conflict with navigation, Roscher said that deeper water is preferable for aquaculture.

“You want water deep enough to cover the cages, and about chest high so you don’t have to use heavy equipment,” he said.

Chest-deep water allows whoever is working the claim to manipulate cages without the bother, noise and maintenance of heavy loading devices. Marsh said he has a crane to assist him in the work, but it runs on car batteries so noise would be kept to a minimum for that device.

Opponents wonder what would happen if Marsh’s operation failed, since Marsh is a well-educated businessman he has likely taken steps to limit his exposure in case of bankruptcy.

In that case, Roscher said, the state will notify Marsh that he has 10 days to remove the equipment, and then the DNR will come in to perform cleanup operations at Marsh’s cost. If there are any problems collecting for the removal, Roscher said the DNR will seize and sell the recovered equipment and the state through the DNR will have to cover any outstanding costs.

The court cases

Ocean City attorney Hugh Cropper IV represented a group of South Point residents in their successful case against Marsh’s oyster farm before Administrative Law Judge Richard O’Connor in Salisbury, which was subsequently overturned in the circuit court of Anne Arundel County.

The initial court case, as outlined in the opinion of the circuit court’s decision, concerned three questions of law. The circuit court reordered and rephrased the questions from the initial filing, and found the decisions on the first and second precluded the need to answer the third.

Those two questions are: Did O’Conner err in finding the lease was a submerged land lease rather than a water column lease, and, having found the lease complies with all applicable requirements, did O’Connor err in denying the lease based on the Public Trust Doctrine?

The Department of Natural Resources Aquaculture Division Director Karl Roscher testified during the O’Connor hearing that Marsh’s project was “absolutely” a water column lease. O’Connor found that the cages Marsh said he intended to use were not of the “floating” type described to qualify for a water column lease – on its face, O’Connor noted, this was not enough to disallow Marsh’s application. The appellate court used minutiae pertaining to the cages: how they were to be anchored and the location of the enclosures – if they rested on solid land underwater, nestled in sediment somewhere between water and land or floated on water only, and reinstated the previous determination of a water column lease.

According to the Public Trust Doctrine, the state holds navigable waterways and the submerged lands beneath them in trust for the people of Maryland. Two commercial fishermen testified on behalf of the residents that travel within the channel was already limited, and adding structures to the bottom would present an additional obstacle to navigation. In turn, this would violate the Public Trust Doctrine.

The Circuit Court Judge, William Mulford II, found the burden of proof to overturn Roscher’s assessment of Marsh’s property had not been met. What is qualified as “substantial” evidence is required to overturn an agency, in this case the Department of Natural Resources personified by Roscher. Mulford decided that not even a “scintilla” of evidence — that which would lead a reasonable person to come to more than one conclusion — was present, and even that standard is not enough to overturn an agency’s assessment, despite O’Connor’s evaluation that the description of the cages fit exactly with the language of the statute.

The Public Trust Doctrine is a common law principle — one developed by a large number of legal precedent rather than one proposed and adopted by the legislative and executive branches of government.

O’Connor found the testimony of two watermen who work and navigate the area, along with the complaints of residents, on behalf of themselves and those they are able to observe from their properties, compelling. Mulford did not. He cited sections of the Natural Resources Article of Maryland Code where “the General Assembly knowingly incorporated the Public Trust doctrine into specific sections of the Aquaculture Subtitle.”

Incorporating elements of the doctrine into some sections of the subtitle and not others, “illustrates a clear public policy goal of modifying the public trust doctrine in order to establish a streamlined and more efficient process” of granting leases, Mulford found.

By this logic, Mulford overturned O’Connor’s decision. Additional legal actions are pending.

Army Corps of Engineers

Two laws give the Army Corps of Engineers permitting authority over the proposed aquaculture project: Section 10 of the Rivers and Harbors Appropriation Act of 1899, which governs construction, and Section 404 of the Clean Water Act, which regulates discharge.

Chris Augsburger, the chief of Public Affairs for the Corps, said projects are assessed individually according to aesthetics, recreation, navigation, general environmental concerns and safety. When asked about the potential subjectivity of these assessment points, Augsburger gave an example concerning aesthetics.

“If your project has a 20-foot pole sticking out from the surface of the water where other projects don’t, that might be an aesthetic evaluation,” he said.

The Corps has not yet issued Marsh a permit for his aquaculture lease, owing to the public outcry and ongoing legal disputes. According to the corps, there is no timeframe governing the issuing of permits, though they do admit to seeing about 5,700 applications per year and have between 36-47 aquaculture permits pending.

The issuance of permits is, according to the Corps, “an iterative process,” where each step represents a continuing dialogue with stakeholders.

“We are in the process of doing what we need to do in order to render a permit,” Woody Francis, Aquaculture/Energy Program Manager for the Corps, said.

Further research by Ocean City Today has found similar projects meeting similar resistance in both Delaware and Virginia. Meetings, hearings and court actions will likely continue as this issue still has a long way to go before a final decision can be reached.

 

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