In the past, applicants for shellfish aquaculture leases have worked hard to communicate with riparian landowners and address their concerns, making changes to their plans either prior to or during the public hearing held by the state. In March, Babe and Shain Stanley carried the process a step further by signing a legal agreement with Conservation Law Foundation (CLF) attorney Roger Fleming, who represented concerned citizens from Sorrento.
The agreement amends the Stanleys’ application for an aquaculture lease to raise mussels and scallops south of Bean Island in Frenchman’s Bay. It was made part of the Stanleys’ lease application, discussed at a public hearing on March 30 in Sorrento.
The agreement breaks new ground in another way, by formalizing concerns which are not included in the Maine Department of Marine Resources’ (DMR) criteria by which lease applications are judged: interference with sailboat racing, visual impact and noise. Presently, DMR criteria do not have rules concerning visual impact, and require that a lease “will not unreasonably interfere with navigation” – which does not include sailboat racing. The DMR does ask an applicant to indicate how he will mitigate noise from equipment and provide information about color of any gear and structure and the height of all gear above the surface of the water, with the intent that noise and visual impact will be minimized.
Babe Stanley says when people in Sorrento first learned about his lease application, they vowed “to fight tooth and nail to keep us from doing it.” Residents were concerned primarily because it lay in the path of a sailboat race course used for 40 years by Sorrento and Hancock sailors, and because they objected to the aesthetic impact of rafts in previously unoccupied waters. The agreement states that it has a dual purpose: first, “minimizing conflicts with navigation and impacts on the natural beauty of Bean Island and its surrounding waters, and the quiet enjoyment of same by Sorrento residents and their guests,” and second, “that any innovative technology developed to reach these goals, specifically, submersible rafts, will “be available to interested parties so that other potential impacts or use conflicts may also be avoided or mitigated.”
The Stanleys agree that their company, Shaba Shellfish Company, Inc., will utilize only submerged rafts and other equipment at the site. They have been developing the rafts during the past year (WWF, March 04). The only visible indication that there is an aquaculture operation will be four corner buoys used to mark the initial submerged raft and an unspecified number of buoys when other rafts are added. Shaba will submerge the rafts a minimum of 10 feet below the surface. (The maximum draft for the sailboats, Stanley says he was told, is five feet.)
Shaba also agrees that barring an emergency, during the sailing season, between June 1 and Sept. 15, they will bring the rafts up to perform maintenance and harvest shellfish only between sunrise and 11 a.m. They will work to minimize the number of and visual impact of buoys after an initial period of testing a prototype raft with 10-foot buoys marking each corner. They agree to collect any debris from the aquaculture operation and not to have a permanent vessel mooring in the area. Surface lights will be those required by the U.S. Coast Guard for navigation.
For its part, CLF, which had intended to intervene and oppose the application on behalf of itself and its members who live in Sorrento or use the waters of Frenchman’s Bay, will instead support the Stanleys’ lease application. CLF will also, within 30 days of the approval of the lease by the DMR, pay Shaba $3,000 to help with expenses related to developing and testing a one-third- to one-half-size prototype raft, which Stanley estimates will cost between $10,000 and $15,000. CLF also will continue to support Shaba’s application to the Maine Technology Institute for money to develop the prototype raft. Shaba’s application was turned down in March; the company is reapplying with help from Eastern Development Corporation. Stanley explains, “We didn’t explain the concept well enough in the last one, didn’t include enough about the jobs we hope to produce.”
The agreement stipulates that each side will notify the other in writing if there is any problem with the lease and try to resolve differences out of court. There is also a clause that requires the performance bond established in accordance with DMR lease regulations to be available “to satisfy any violation or breach of the terms and conditions of this agreement and not otherwise remedied by Shaba.” Mark Peterson, Mussel Raft Aquaculture Program Manager at Great Eastern Mussel, who has helped other fishermen with lease applications for mussel rafts, questions if the bond, which is intended to provide money should an applicant abandon his lease and leave equipment at the site, can be used in this way.
Peterson also noted the right to “quiet enjoyment of the waters” could “eventually lead to no working waterfront. There’s no lease criteria that grants a riparian owner the right not to look at an aquaculture facility,” he observed.
Fleming says the agreement is the result of talks over the past year between Stanley and groups in Sorrento. “CLF members who live in the area were concerned about the scope of the project and got in touch with me initially to find out how the leasing process works,” he says. At first, talks centered on trying to find another spot for the lease, primarily because of the sailboat racing, but Stanley was adamant that this was the area where the shellfish would thrive. “When he came up with the idea of submersing the raft, making it easy to sail over it, we thought it might be a way to accommodate everyone,” Fleming says.
CLF members and other residents in the area raised the $3,000 to support the prototype raft. “They are pleased to be part of an innovative project that could contribute to resolving future conflicts between riparian owners and aquaculture operations, and possibly lead to submerged rafts further offshore,” said Fleming. “Babe has been very committed to working out issues people bring to him, and the other folks have felt the same way, too.”
Neither Sebastian Belle, director of the Maine Aquaculture Association, nor Mike Hastings, director of the Maine Aquaculture Innovation Center, was involved in writing the agreement. Hastings notes that although he does not favor having DMR rules altered to make aesthetics a prime consideration in criteria for leases, he does feel it is “great” that people are trying new ideas. “As long as Stanley is happy with the amendment and doesn’t feel he is doing this under duress, he can sign an agreement with anyone,” he said. “That’s not my business. We want more leases out there, more people working. I just don’t think anybody should fail to submit an application because another group threatens to make a big deal of it.”
Babe Stanley, who did not consult a lawyer, is pleased with the agreement. “It helps a lot of other people,” he says. “I feel we reached a pretty good compromise. Instead of fighting with people in towns, we are getting their backing. That means a lot.”