Md. Court Confirms Controversial Aquaculture Lease Can Move Ahead

SOUTH POINT — A controversial aquaculture lease for a vast oyster cultivating operation off South Point appears to be closer to reality this week after an appeals court confirmed an earlier ruling approving the application.

Since 2009, the battle over a proposed lease of three, 16-acre areas in the coastal bays near South Point has been waged at nearly every level and the application has been approved and denied at different times over the last six years. The applicant, Don Marsh, has been seeking approval to start an oyster cultivating operation including as many as 500 wire mesh cages suspended about six inches off the bottom in the shallow waters off the coast of South Point.

However, several residents in the South Point area, along with a handful of commercial fishermen, have fought the application, asserting adding 500 wire mesh oyster cages to the bottom of an area that is already challenging because of narrow channels, sandbars and shoals and crab pots would limit their use of the area for recreational and commercial purposes and create public safety hazards.

The battle has been waged at almost every regulatory and administrative level and the case has gone before an Administrative Law Judge (ALJ), the Circuit Court and ultimately the Maryland Court of Special Appeals. This week, the Court of Special Appeals issued its opinion, upholding the lower court’s decision to allow the lease.

In March 2009, Marsh filed the application for the lease with the Maryland Department of the Environment, but the application was later forwarded to the DNR after a change in the law altered the approving body for aquaculture leases. Marsh was seeking areas in the Chincoteague Bay near South Point for his oyster cultivating operation.

After an exhaustive three-year review period, the DNR granted the application, opining the proposed lease met all of the statutory requirements spelled out in Maryland’s laws regarding aquaculture. Among the criteria were stipulations a leased area could not be within 50 feet of the shoreline or a pier without permission from the property owner, within 150 feet of a public shellfish fishery, within 150 feet of an oyster reserve, within 150 feet of a federal navigation channel or in a submerged aquatic vegetation (SAV) protected zone among others.

Satisfied Marsh’s lease met the requirements, the DNR approved Marsh’s application in 2012. However, as many as 18 resident property owners in South Point along with a handful of commercial fishermen who work the area, quickly protested the DNR’s approval, citing its potential impact on recreational fishing and boating and navigation. Also at issue was whether the application should be considered a water column lease or a submerged land lease, although it was later determined the two lease types shared nearly identical approval criteria.

Within days of the approval, the DNR received as many as 50 protests from residents and commercial fishermen. As part of protocol, the DNR forwarded the protests to the Office of Administrative Hearings and essentially delegated the authority to an Administrative Law Judge (ALJ) to make a final decision. During a three-day hearing, the ALJ heard testimony from Marsh and the DNR that the proposed lease met all of the statutory requirements. The ALJ also heard testimony from the residents and fishermen about the navigational challenges of the area already without 500 oyster cages added to the mix and concerns about the impact on the recreational and commercial uses of the area.

In February 2013, the ALJ agreed the proposed lease met the statutory requirements spelled out in the law, but opined the DNR had failed to take into account the doctrine of public trust, essentially ruling the DNR approved the lease based only on the rigid statutory requirements regarding the distance from channels and the shoreline etc. without considering the impact of the oyster cultivation operation on the residents and their recreational enjoyment of the waters off their property and in the surrounding areas. As a result, the ALJ denied the lease.

Marsh and the DNR then filed an appeal in the Circuit Court asserting the exhaustive approval process had taken into account all of the potential impacts. Last April, the Circuit Court rendered an opinion the ALJ had erred in denying the lease and ruled the public trust doctrine did not apply in this case. Essentially, the Circuit Court ruling reversed the ALJ opinion and Marsh’s proposed aquaculture lease off South Point was back on again.

However, the group of South Point residents and the commercial fishermen who had testified at earlier proceedings then appealed to the Court of Special Appeals to reverse the Circuit Court’s decision to allow the aquaculture lease.

The high court’s opinion released this week asserted the proposed oyster cultivation operation would likely have some impact on an area already clustered with recreational and commercial boating and fishing activity, but not to the extent to deny the application.

“The testimony and evidence before the ALJ showed, at most, that the grant of the lease application might inconvenience commercial fishermen attempting to navigate along the east-west fairway, particularly at low tide or in very windy conditions,” the COSA opinion reads. “The three fishermen who testified all stated they would continue to fish and crab in the area, however. Moreover, the testimony of the fishermen and the residents generally was that navigation between and around the coastal bays around South Point was always difficult because of the shallow depths.”

The Court of Special Appeals opinion essentially concluded adding wire mesh oyster cages just six inches off the bottom in an area that typically has water depth of two- to six-feet would not add to an already challenging area in terms of navigation.

“We agree with the DNR and Marsh, moreover, that the testimony by residents that the grant of the lease application presented serious safety concerns was speculative,” the opinion reads. “These witnesses stated that they routinely navigated on jet skis, sailboats and motorboats around forests of crab pots extending 20 inches about the substrate and through shallow areas where they frequently ran aground. This testimony could not be reconciled with their testimony that the presence of wire mesh cages anchored to the bottom of the bay and extending no more than 12 inches above the bottom in an area with water depth between four and five feet would pose a hazard to them or their children.”

The Court of Special Appeals upheld the Circuit Court’s ruling allowing the proposed lease. It is uncertain, however, if the residents and fishermen will pursue the opinion of the higher Court of Appeals, but given the track record of the case over the last six years, that appears likely.

“There was no evidence that similarly placed oyster cages ever had presented a safety hazard or that the hazard was different in character than the hazard posed by the use of commercial crabbing pots,” the opinion reads. “In sum, none of the evidence presented by the protestants before the ALJ 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.”