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Aquaculture lease opponents lose appeal

(April 10, 2015) It may yet be a while before oyster cages begin appearing off the coast of South Point, but the path has again been cleared for Don Marsh to begin operations, pending a permit approval by the Army Corps of Engineers.

The Maryland Court of Special Appeals ruled in favor of Marsh, issuing a decision on April 6 on a case heard back at the beginning of February.

“It’s good for me and my application, and it’s good for the Department of Natural Resources because it affirmed the process,” Marsh said.

Marsh first filed for an aquaculture lease in 2009, and at that time had the largest lease in the state of Maryland. His neighbors in South Point did not support the plan. Navigability, visibility and appropriateness concerns swirled around the project, but it was finally the types of cages Marsh said he would use that appeared to gain the most traction. In the interceding years, Marsh has significantly revised his initial plan.

Marsh and the Department of Natural Resources maintain Marsh has a water column lease, while opposing council argued Marsh has a submerged land lease in spirit, if not letter, of the law. Before this latest ruling, each side had won one case and lost another.

In aquaculture, a water column lease is for cages surrounded by some degree of water on all sides. Silt, sand, mud and muck are hard to quantify legally and the structure, type and markings on cages all have to be taken into account.

A submerged land lease is for the ground under the water and gets murky in the same way a water column lease does. However, this type of lease brushes up against the Public Trust Doctrine. This doctrine emerged via a number of legal precedents rather than a bill passed in the legislature and signed by an executive.

According to the doctrine, the state holds the navigable waterways and the submerged lands below them in trust for all the citizens. If the citizens could prove Marsh’s project violates the public trust by encumbering navigation for example, the court would have the means to vacate the lease.

The court decreed, “… the record of the contested case is devoid of competent evidence that would support a finding that the ‘public health, safety, and welfare’ would be at risk if Marsh’s lease application were granted.”

Further, the court decided that, at most, granting the lease would inconvenience a few commercial fishermen who testified they would probably continue fishing in the waters even if the lease were granted, and found navigability in the shallow waters near South Point would always be difficult, aquaculture lease or no.

“In sum, none of the evidence presented by protestants … rose to the level of a threat to the public health, safety, or welfare sufficient to justify a denial of the lease application for reasonable cause …” the decision reads.

“I’ve tried to engage them for six years,” Marsh said, “It’s frustrating for a lot of people, but it’s nice to have a rational decision from the court.”

In a prepared statement, Sylvia Tunis, one of the 18 appellants said, “We still have another layer of MD Appeals court to pursue; but if the courts continue to allow the DNR’s trampling of fishermen, the boating public and waterfront property owners’ rights, we will be forced go back to the MD Legislature and have this Aquaculture Statute 11A amended while asking: Are the public’s rights to use Maryland’s waters intact or have they been eroded in favor of private interests?”

Tunis’ statement warns of a slippery slope.

“On the surface this case appears to be about an individual aquaculture lease, but as the case evolved it became apparent what is really at stake is the public’s right to use the waters. If this ruling holds, the boating public’s rights will forever be superseded by the commercial pursuits of private aquaculture enterprises throughout the Chesapeake and Coastal Bays,” the statement reads.

For his part, Marsh seems ready to move on.

“I just don’t want to do anything to put me in jeopardy vis-à-vis the Army Corps of Engineers until I get my permit. There’s still work to do,” he said.

The permitting process has come under scrutiny as of late, with Sen. Barbara Mikulski entering the fray in early March, accusing the Baltimore District of the Army Corps of “dragging its feet” with regards to oyster permits.

“In fact, the Baltimore District is sitting on many permits already approved by the Maryland Department of Natural Resources,” Mikulski wrote.

In a previous interview, officials with the Army Corps of Engineers said they were awaiting the final outcome of the court cases before deciding on issuing a permit for Marsh.

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