To the editor:

Two pieces in your October issue take the Maine Department of Marine Resources to task for its handling of a recent aquaculture lease on Vinalhaven. Both pieces contain serious factual errors, which I am writing to correct.

In your editorial, “Process Problems”, you state that DMR “failed to notify abutters and the public of a hearing in a timely fashion.” This statement is not true, as the following information demonstrates, and I request that you correct the impression you have left with your readers.

PUBLIC NOTICE

DMR notified the Town of Vinalhaven and all riparian (shorefront) landowners within 1,000 feet of the lease sites personally, by mail, of the receipt of the lease application in July, 2006; we enclosed a copy of the application. We then notified the Town and all riparians twice more by mail in November and December, 2006, of the date and place of the public hearing and sent them copies of the hearing notice, the DMR site report, and a second copy of the lease application. Newspaper notices announcing the public hearing were placed in the Courier Gazette 30 days and 10 days before the hearing, as well as in the January issue of Commercial Fisheries News.

Thus, all riparians and the Town had notice of the lease application and copies of the application itself for more than six months before the public hearing. In this case, the riparian owners include the Vinalhaven Land Trust and the Maine Coast Heritage Trust. No one intervened in the case, though a number of people and the Land Trust testified at the public hearing about their concerns regarding the proposed lease in the Basin.

Maine’s aquaculture leasing process, administered by DMR, requires an extensive array of public notices, all of which were properly given in this matter. An extensive mailing list, a copy of which is attached, shows the wide range of local, state, and federal officials, legislators, scientists, interest groups, and members of the print and electronic press who also received notices of the hearing 30 days in advance. Also attached is a list of the public notices, letters, and public hearings and meetings that were provided in the course of considering this lease application.

To assert that DMR failed to provide timely notice of the public hearing is not only false, it is irresponsible.

THE BASIN AS WILDLIFE AND MARINE HABITAT

Tina Cohen, in her article “A generalization can get you into trouble”, states “It is unclear why the state decided to ignore the demonstrable significance of the Basin as a wildlife and marine habitat.”

Again, a review of the decision in this case (attached) demonstrates that the Department considered carefully the evidence that was presented regarding wildlife and marine habitat in the Basin and attached a number of conditions to the lease in order to protect both. Extensive provisions described in the decision restrict activity on the lease to protect harbor seals in the Basin during the pupping season. These provisions rest on the evidence presented at the hearing by members of the public and by DMR staff regarding the presence of seals and the measures necessary to protect them.

Other provisions of the lease require thorough cleaning of all gear and oysters before moving them from the Old Harbor Pond site to the Basin site and vice versa. This requirement is intended to prevent the moving of any pre-existing invasive species from either site to the other and was proposed by DMR staff; again, it is based on evidence presented at the hearing.

DMR biologists conducted dives on the lease site, videotaped the bottom, and described their findings in the site report. Other than testimony regarding seals and invasive marine species, no credible evidence was presented to show that other restrictions were necessary to protect either wildlife or marine life.

THE REAL NATURE OF THE BASIN

The real issue with respect to the Basin is not solely the protection of wildlife or marine habitat; it is the protection of this natural area from human activity. The land bordering the Basin’s shore has been protected from further development through a combination of fee ownership by the Vinalhaven Land Trust and the Maine Coast Heritage Trust and conservation easements conveyed to these organizations by individual landowners. According to testimony at the hearing, these easements prohibit commercial activity on the land around the Basin.

Although the uses of the Basin shoreland have thus been restricted by its owners, the evidence shows that the waters of the Basin are fished for lobster, are mostly open to shellfish harvesting, and are used for commercial kayak tours. Lobstermen testified that they tow boats and floats through the Basin to beach them on the land at the southern end. Other forms of aquaculture have been tried in the Basin in the past, as well. According to DMR’s biologist, the bottom of the Basin is littered with abandoned “ghost” lobster traps. Thus, although many like to think of the Basin as “pristine”, the evidence shows that its waters have been and routinely are used by humans for a variety of activities, many of them “commercial

Unfortunately, land-based human activity has polluted the Basin; the waters at its northern and southern ends and at the northern entrance are closed to shellfish harvesting because of excessive fecal coliform counts. I attach a DMR map of Vinalhaven showing waters classified as restricted or closed to shellfish harvesting, as well as the location of various overboard sewage discharges on the island. As this map shows, many of the coves around the island are either closed or restricted because of pollution. For the aquaculturists, the Basin was one of very few places on the western side of Vinalhaven that has both clean water and relatively little lobster fishing, with which they were attempting not to interfere. ” The oyster lease comprises 2.55 acres, approximately five one-thousandths (.005) of the total area of the Basin.

THE AQUACULTURE LEASE PROCESS

The state of Maine holds the coastal waters in trust for the public; the state grants aquaculture leases for portions of those waters only after a rigorous public, legal process for which DMR is directly and openly accountable. We base our decisions on factual evidence presented in a public process, judged by criteria mandated by the Legislature. An aquaculture lease can be approved only after the Commissioner makes the following findings, based on the evidence in the record:

The lease will not unreasonably interfere with the ingress and egress of riparian owners; with navigation; with fishing or other uses of the area; with the ability of the site and surrounding areas to support ecologically significant flora and fauna; or with the use or enjoyment within 1,000 feet of municipally, state or federally owned beaches, parks, docking facilities or certain government-owned conserved land;

The applicant has demonstrated that there is an available source of organisms to be cultured for the lease site;

The lease will not result in an unreasonable impact from noise or lights at the boundaries of the lease site, and the lease will be in compliance with visual impact criteria adopted by the Commissioner relating to color, height, shape, and mass.

The crucial point here is that the decision must be based on factual evidence, and the lease must meet the legal standards. I have attached a copy of the decision, so you can see how the evidence was assessed in light of these standards. The process is not “skewed in favor of the developer”, and it is not a popularity contest. In this case, the proposed lease met the standards, with the addition of a number of conditions. This decision was not appealed, although a number of people inquired about the appeal process.

The land around the Basin has been conserved by private effort and private decisions. This is clearly a worthwhile effort, particularly given the effects of development elsewhere on Vinalhaven that are degrading the quality of the surrounding sea water. But to advocate placing portions of the public waters off-limits to the public for aquaculture, solely because private persons and private organizations have decided to preserve them, is akin to taxation without representation. Should private land preservation groups, or individual landowners, be able to determine whether people can fish in the public waters off their shores, or kayak, or grow oysters? Decisions about how public waters are used should be, and are, made based on criteria set by our Legislature that seek to allow as many uses as possible that are compatible with each other and with the local ecology.

I trust that you will find this information helpful in understanding the facts surrounding the granting of this aquaculture lease. Should you wish further information, I would be happy to supply it. You may also consider visiting our website, http://www.maine.gov/dmr/aquaculture.

David Etnier

Deputy Commissioner

Maine Department of Marine Resources