RI Coastal Resources Management Council
...to preserve, protect, develop, and restore coastal resources for all Rhode Islanders
...to preserve, protect, develop, and restore coastal resources for all Rhode Islanders
In accordance with notice to members of the Rhode Island Coastal Resources Management Council, a meeting was held on Tuesday, February 13, 2018 at 6:00 p.m. in Conference Room A, Administration Building, One Capitol Hill, Providence, RI.
Members Present
Jennifer Cervenka, Chair
Raymond Coia, Vice Chair
Michael Hudner
Ron Gagnon, DEM Rep
Jerry Sahagian
Trish Reynolds
Michelle Collie
Lisette Gomes
Members Excused
Joy Montanaro
Don Gomez
Staff Present
Grover Fugate, Executive Director
Jeff Willis, Deputy Director
David Beutel, Aquaculture Coordinator
Tracy Silvia, Principal Environmental Scientist
Anthony DeSisto, Legal Counsel
John Longo, Legal Counsel
1. CALL TO ORDER
Chair Cervenka called the meeting to order at 6:00 p.m.
2. APPROVAL OF THE MINUTES OF THE PREVIOUS MEETING
Vice Chair Coia motioned for approval of minutes, seconded by Mr. Hudner. The motion to approve the minutes carried on a unanimous voice vote.
3. SUBCOMMITTEE REPORTS
Mr. Fugate reported:
4. STAFF REPORTS
Mr. Fugate reported on the following:
Off-shore wind industry in the New England Area:
Offshore Oil along the East Coast:
Bay SAMP Funded last year:
Mr. Hudner asked about the timeframes for the oil issues.
5. Deepwater Wind - Block Island Wind Farm
CVA Report for Approval of (1) the Fabrication and Installation Report and (2) the Facility Design Report
Mr. Fugate explained that the Wind Farm was constructed, commissioned and fully operational. Mr. Fugate stated that the CVA working on behalf of the Council has reviewed the project and signed off on the design and installation of the project. The final Fabrication and Installation Report (FIR) and the Facility Design Report (FDR) were reviewed and vetted by ABS and the letter in the Council packets state that they have approved both reports. Council will vote on the final acceptance of the FIR and FDR.
Torsten Muuss, Director of Global Renewable Energy of ABS Group, made a presentation to the Council regarding the project from 2014 start to 2017 completion.
Mr. Muuss explained that ABS will continue to work through a 5 year verification cycle with an on-site inspection in the fifth year.
Mr. Fugate offered that there is a requirement in the event of a major storm, ABS will do post-storm inspections to make sure everything is okay. Mr. Fugate confirmed that ABS will be involved during the entire design life of the project and through the decommissioning phase as well.
Mr. Muuss confirmed that the first Operation and Maintenance report was started with 2017.
Chair Cervenka asked for a motion to approve the FIR and FDR. Mr. Hudner motioned, seconded by Mr. Gagnon, to approve the FIR and FDR. The motion carried on unanimous voice vote.
Chair Cervenka asked for roll call of Applicant attendance.
6. APPLICATIONS WHICH HAVE BEEN OUT-TO-NOTICE AND ARE BEFORE THE FULL COUNCIL FOR DECISION:
2017-07-021 GRAHAM WATSON -- Create and maintain a three acre oyster and kelp farm using both bottom cages and floating cages for the oysters; and suspended longlines for the kelp. Located in Rome Point, Narragansett Bay, North Kingstown, RI.
Mr. Beutel gave a brief overview of the application stating that there is a history of aquaculture in the area and the Mr. Watson would like to grow Kelp in the winter months on submerged long lines from November through and April harvest. Mr. Beutel stated that the kelp growing materials would be removed by May 1. Mr. Beutel explained the oyster system as being bottom and floating oyster growing cages in water depth of 9’ to 11’. Mr. Beutel explained standard site assessment which found low density of quahogs and the standard review of the Marine Shellfish Advisory Panel. The RI Marine Fisheries Council reviewed the application with the Town of North Kingstown, the Coast Guard, and RIDEM Fish & Wildlife and Division of Water Resources. Mr. Beutel stated that there are two objections, one from a private citizen (who also happens to be on the Shellfish Advisory Panel) stating that the area is an important area for recreational fishing, clamming, boating and navigation. The other letter was from the RI Saltwater Anglers Association, Board of Directors stating that this area is important area for recreational fishing. The private citizen that objected is also on the Board of Directors for the Saltwater Anglers Association. Mr. Beutel stated that he has knowledge of this area having lived in North Kingstown for 40 years and being an active recreational fisherman. Mr. Beutel stated that he knows people do not fish on the proposed site. Mr. Beutel offered that the Coast Guard sent an email saying it was a good location for aquaculture development. Mr. Beutel stated that the RI Shellfisherman’s Association worked with CRMC to set up the viable aquaculture areas and this site was within those areas. Mr. Beutel stated that the RI Marine Fisheries Council stated that the area was not a significant recreational fishing area. Mr. Beutel also stated that the applicant had met all the requirements of the program and that CRMC staff recommended approval of the application.
Mr. Beutel confirmed for Chair Cervenka that the sole objection was based on potential competing uses only which was then called into question by personal knowledge and RI Marine Fisheries. Mr. Beutel also offered his experience of the area through his work at URI stating that he had never observed recreational fishing at that site. Mr. Beutel also confirmed the low density of quahogs in that area.
Julian Graham Watson was sworn in and identified himself for the record. Mr. Watson expanded on Mr. Beutel’s report stating that he has been oyster farmer for four years working in RI for 1.5 years and gaining knowledge in the area by working part time for Dutch Island Oysters (just south of Jamestown Bridge). Mr. Watson stated that with his experience and knowledge of shellfish he would like the opportunity to grow shellfish in the area he requested to lease.
Mr. Watson confirmed for Chair Cervenka that the he would sink his cages during the winter
months beginning in late fall and bringing them back up in the Spring. The exact timeframe would vary by year depending on the weather trend.
Mr. Watson confirmed for Chair Cervenka that he had reached out to one of the objectors via email to discuss the premise of the objection but was told they would speak at the Council meeting.
Chair Cervenka opened the Comment period. With no objectors present and no comments heard, Chair Cervenka closed the Public Comment period.
Ms. Collie motioned, seconded by Mr. Sahagian, for the approval of the application.
The motion carried on unanimous voice vote.
Changing of the legal guard – John Longo joined the Council, Anthony DeSisto departed.
2016-07-073 EDWARD ST. ANGELO -- Construct and maintain a residential boating facility consisting of a ~4’ x 120’ fixed timber pier, ramp and 10’ x 15’ (150sf) terminal float extending 75’ seaward of the cited MLW mark. The facility requires a 25’ length variance to RICRMP Section 300.4. Located at plat 10, lot 120, 1 Fessenden Road, Barrington, RI.
Ms. Silvia addressed the Council giving a brief overview of the application stating that the application was a typical pier, ramp, float design. Ms. Silvia stated that there was one objection received from Save The Bay and that most of the comments from Save The Bay were addressed throughout the review of the application. Ms. Silvia informed the Council that during their review and site assessment, a slight violation was found which was addressed within the application and that with the Council approval, would be permitted. However, if the boating facility was not approved, Ms. Silvia is asking that the Council approve the part to legalize the asphalt driveway.
Ms. Silvia explained that the biggest issue with this application would be the comments related to lateral access as the heavily used Town beach is immediately adjacent to the facility. Ms. Silvia explained that there were not many docks southeast of the Town beach and that with concerns for lateral access and sea level rise, staff looked at various options for this project – one of which was a shortened assent timeframe. Ms. Silvia stated that the proposed facility provided 5.7 feet of clearance under the dock for access along the beach. Ms. Silvia stated that staff does not have any technical objections, no length variance was required and the applicant has agreed to add a stairway over the dock for lateral access as well as the 5.7 feet under the dock. Ms. Silvia stated that the CRMC staff deferred to the Council for consideration of the possible mitigation for sea level rise and also, the comments from Save The Bay.
Ms. Silvia confirmed for the Chair that the mitigation for sea level rise was in the form of stairs over the dock. Ms. Silvia also added that a shortened assent time (20-25 years as opposed to 50 years) could be part of the mitigation with an assessment to see if the dock still provides the lateral access required.
Discussion on the reason for the sea level rise mitigation and review.
Mr. Sahagian clarified through Ms. Silvia that the application was a Category A, that no variance was required and that the application was before the Council due to objections to the project.
Ms. Silvia confirmed for Mr. Hudner that although project changes had been made related to objections from Save The Bay, sea level rise was a large part of their objection.
Attorney Nicole Verdi, from Adler Pollock and Sheehan and Thomas Principe, PE, of Principe Engineering Co. were present to discuss the application. Mr. Principe was sworn in and identified himself for the record.
Ms. Verdi confirmed that the applicant had worked with staff through Mr. Principe in regards to objections received and that the St. Angelo’s had accommodated the lateral access by providing 5.7’ under the dock. Ms. Verdi stated that the dock no longer required a length variance and that there was no coastal wetland or SAV on the site. Ms. Verdi stated that the applicant’s project meets CRMC requirements and regulations; and that the applicant did their best to work with staff to meet the objections that have been posed.
Ms. Verdi confirmed that she was authorized to bind the applicant.
Ms. Verdi confirmed for Chair Cervenka that her client was open to sea level rise conversation but that the applicant was opposed to a shortened assent timeframe.
Mr. Principe confirmed that he had worked with Ms. Silvia regarding all aspects of application and addressing all concerns that were brought to their attention. Mr. Principe confirmed the attempt at sea level rise mitigation citing the 5.7 feet under the dock and the set of stairs for continued lateral access.
Chair Cervenka asked if the applicant had communicated with objectors to try to address concerns. Ms. Verdi explained that they were not aware of abutter’s objection until tonight so they had not had any time to discuss. Ms. Verdi explained that they were not aware of any other neighborhood objections and there was no communication with any neighbors.
Mr. Gagnon asked what the water depth at the terminus of the pier now that the length of the dock was shortened to alleviate the need for a variance. Mr. Principe stated that the water depth is 2.4’ at Mean Low Water exceeding the 18” minimum.
Ms. Silvia stated that the Barrington Harbor Commission had the opportunity for review as well.
Ms. Verdi closed stating that the St. Angelo’s had worked with staff and agreed to and complied with all that CRMC had asked during the review process.
Dr. John Brian Murphy was sworn in and identified himself for the record. Also present was Dr. Murphy’s Legal Counsel, Christian Jenner of Delphi and Sweeny.
Dr. Murphy thanked the Council for the opportunity to speak and clarified that he was appreciative of the St.Angelo’s as neighbors who lived three houses away from his. Dr. Murphy expressed his objection to the both of the proposed facilities on the Agenda. The Council asked Dr. Murphy to comment only on St. Angelo application. Dr. Murphy read a statement that said he believed the
dock would impede public access to the shore and decrease the aesthetic value of the area. Dr. Murphy stated that he had communicated with the neighbors about the dock situation and that no one in the neighborhood had been contacted about the dock. Dr. Murphy explained that the neighbors opposed the dock for various reasons, one being interference with kite surfing.
Chair Cervenka asked why Dr. Murphy had not communicated with the applicant. Mr. Jenner spoke on behalf of his client stating that their original objection was to the Dhillon application but when they learned about the St. Angelo dock, they asked that the objection also be put into that file as well. Ms. Silvia was unaware of request.
Mr. Fugate clarified for the Council that the notification process required that we notify abutting neighbors. CRMC also notifies a local Town list and a state general mailing list.
Mr. Fugate asked Dr. Murphy if his objection would be alleviated if a public access guidance sign was posted at the dock stating access over stairs and under dock.
Dr. Murphy explained that the physical aspect of the dock will impede passage.
Ms. Verdi response:
Ms. Reynolds asked about the details of the proposed stairs. Mr. Principe explained the construction of the stairs over the facility and also stated that the applicant had no objection to public access signage of lateral access.
Ms. Collie asked if the house being for sale had any impact on the permitting process. Mr. Fugate clarified that there would be no impact.
Chair Cervenka closed the public comment period. Chair Cervenka asked for a motion to open Council deliberation. Mr. Hudner motioned for approval of the dock and stated that we should only ask for signage if CRMC is prepared to make a policy for signage on dock for public rights. Mr. Fugate agreed. Vice Chair Coia seconded the motion for discussion purposes.
The Council discussed the Council’s position on docks in regards to sea level rise as well as public access. Discussion included a shortened Assent timeframe for examination of dock at the mid- point to see if dock is still within regulation. Mr. Fugate suggested an assent stipulation that a dock would have to maintain a 5 foot clearance under the facility through the lifetime of the structure. Mr. Fugate stated that if the dock was destroyed more than 50% through a storm event the owner would need to reapply for a new facility. Mr. Willis stated that at a minimum a stairway over docks for lateral access would also be a solution for any sea level rise at the facility.
Vice Chair Coia withdrew his second and Mr. Longo clarified the motion stating that CRMC was requiring the 5’ under the dock and signage for lateral access (over and under). Discussion regarding future situations.
Mr. Longo clarified that the motion was to approve the application with signs for public access over the stair case and under the dock and that in the event lateral access falls below five feet (5’), modification or redesign will be required.
Vice Chair Coia seconded the motion.
Motion carried on a unanimous voice vote.
5 minute break
2016-10-076 UPKAR AND SUKHJIT DHILLON -- Construct and maintain a residential boating facility consisting of a 4’ x 110’ fixed timber pier leading to a 3’ x 20’ ramp and 10’ x 15’ terminal float. The facility proposes to extend 75’ seaward of the cited MLW mark, requiring a 25’ length variance to Section 300.4 standards. Located at plat 10, lot 88; 17 Fessenden Road, Barrington, RI.
Mr. Fugate stated that the applicant for this application has not arrived nor did they have legal representation. Through discussion, if the objectors agree to a redesign, they will withdraw their objection and the application does not have to come back before the Council.
2017-05-006 EDWARD TROIANO – Create and maintain a one half acre oyster aquaculture site using a submerged longline system in shallow water just south of the Rhode Island Country Club. Located at Nayatt Point (Upper Narragansett Bay), Barrington, RI.
Mr. Beutel gave a brief overview to the Council stating that the application was for a half acre oyster lease site located south of Nayatt Point off of the Barrington Country Club. Mr. Beutel explained that the method proposed is suspended long line that has cages off the line that swing with the current. The method is new to Rhode Island but is a proven method internationally. Mr. Beutel stated that the application had gone through standard review, RIDEM reviews, and RIHPHC had no objections. Mr. Beutel stated that the RI Marine Fisheries objection is that this site is not consistent with competing fishing activities in this area. Mr. Beutel stated that many objections had been received from the fishing industry as the proposed site is located in a conditional Area A. Mr. Beutel stated some of the objections such as limited access to productive fishing grounds, potential debris from aquaculture, precedent and future expansion, aquaculture gear not sufficiently robust, and finally, area should be maintained for free and common use instead of leased for private interest.
Mr. Beutel stated that he agreed the site is adjacent to very good quahogging but that the site itself has low density of shellfish. Mr. Beutel stated that overall he recommended approval and that he did not feel it would be a significant impact to the area. Mr. Beutel confirmed that the site is very small and would be a main source of income.
Mr. Fugate stated that through discussion with the applicant the Council could approve but lock the applicant into a 1⁄2 acre site with no possibility of expansion, ever; which would be stipulated in the assent and lease.
Ms. Reynolds asked about the performance bond stipulation. Mr. Fugate answered that the stipulation is a standard stipulation.
Mr. Beutel stated that along with the many letters of objection, they had also received letters of support for the project.
Edward Troiano was sworn in and identified himself for the record. He thanked Mr. Beutel for his help and professionalism.
Mr. Troiano gave a brief presentation on his proposal stating that through reading Shellfish management plan, he had tried to employ the main themes of the plan such as accommodation and cooperation between user groups as well as the use of data and research as guidance to the state on shellfish management. Mr. Troiano explained that he contacted as many use groups as he could think of that would potentially be affected by his proposed aquaculture site. Mr. Troiano stated that he researched potential areas and through suggestions, proposed a one acre site in this location. Mr. Troiano explained that he eventually reduced the one acre to a half acre to avoid conflict with shellfishermen. Mr. Troiano also explained that he picked the site as he is familiar with the area, it is far enough away from residences and it is rocky shallow water so boaters would not be affected.
Mr. Fugate asked about the Preliminary Determination process for the sites. Mr. Beutel stated that he went through the process twice and that with this site, the observations were that he would receive objections.
Mr. Troiano confirmed for Chair Cervenka that he reduced the one acre request to a 1⁄2 acre request as he was cognizant of the shellfishermen and fishermen that use the adjacent area.
Mr. Troiano confirmed for Mr. Fugate that he was willing to live with Council stipulation to keeping it the lease site to 1⁄2 acre only with no expansion. Mr. Troiano asked that at some point he be able to modify the site to add another line of additional cages within the 1⁄2 acre.
Mr. Longo confirmed knowledge of exhibit.
Objectors came forward three at a time and were sworn in and identified themselves for the record.
Michael Allen McGiveney, President of the RI Shellfishermen’s Association
David Ghigliotty, Vice President of Rhode Island Shellfishermen’s Association
Mr. Fugate asked Mr. McGiveney if any attempt was made to relocate the site somewhere else.
Mr. McGiveney said no not with the Shellfish Advisory Panel. Mr. Fugate asked if there was a site nearby that would satisfy everyone. Mr. McGiveney stated that he though Mr. Troiano liked his proposed site because it was near his residence. Mr. McGiveney stated that he suggested near Hog Island. Mr. Ghigliotty explained his use and frequency of his use of the area.
John Harvey, Shellfishermen’s Association Boardmember
The next three objectors were sworn in and identified themselves for the record.
Bill Blank, professional harvester
Bo Christensen, professional harvester
Michael McElroy
The remainder of objectors was sworn in, identified themselves for the record, and affirmed that they agreed to the testimony of the objectors before them based on personal and professional knowledge and experience.
Supporters came forward to speak, they individually sworn in and identified themselves for the record.
Joshua Glass
Chair Cervenka asked what the nature of his use was for the area waterbody. Mr. Glass answered that he uses the area recreationally
Richard Marra
Mr. Troiano readdressed the Council reiterating his utmost respect for RI commercial and recreational shellfishermen and fishermen. Mr. Troiano expressed his desire to create a retirement situation for himself that he can involve his family in so it is not a side hobby; his son has a student quahog license.
Addressed specific points:
Mr. Troiano confirmed for Mr. Fugate that he would be satisfied with a 1⁄2 acre site and agreed to no expansion clause for himself for anyone in the future on that site.
Chair Cervenka asked if Mr. Troiano if he would address the current use of the area for drifting to support fishing operations. Mr. Troiano did not feel he could effectively address that operation although he took them at their word. Mr. Troiano stated that he had never seen a fishing boat in the shallow waters but that he tried to avoid the area that would conflict with them. Mr. Troiano stated that he thought there was not one aquaculture site in the state that was guaranteed not to affect anyone. Mr. Troiano stated that he did not feel his 1⁄2 acre site would cause a significant adverse impact on shellfish, finfish or wildlife habitat in this area. Mr. Troiano pointed out that Rhode Island Saltwater Fishermen Association did not object to the application.
Mr. Beutel confirmed for Chair Cervenka that there is another lease in this area on the western side of the conditional area and has been there since 2000.
Vice Chair Coia asked if this was a permissible use of the area at the present time. Mr. Beutel confirmed it was.
Vice Chair Coia asked if the bond stipulation had been discussed with the applicant. Mr. Fugate stated that the bond was a standard stipulation. Mr. Troiano confirmed that he had the opportunity to review Mr. Beutel’s report and standard stipulation and that he did not object to the bond stipulation.
Chair Cervenka closed the public comment period.
Mr. Hudner motioned the approval of the 1⁄2 acre aquaculture lease with the tight stipulation of no further expansion of lease footprint whatsoever along with staff stipulations.
Mr. Sahagian seconded the motion for discussion but suggested adding the language pursuant to the staff’s report and that the staff recommended approval. Mr. Hudner agreed and Mr. Longo offered to help with the language.
Mr. Gagnon asked if this was approved could a moratorium be set for future consideration of applications in this conditional area A until the shellfish area management plan is finished and determined whether it is suitable for future aquaculture. Mr. Fugate stated that it has been looked at to include in the Bay SAMP and suggested that areas that are consistently productive be taken out of consideration. Mr. Fugate gave a timeframe of two or three years for the completion of the Bay SAMP. Mr. Fugate confirmed that if this area had been a productive shellfish area, it would not have gotten a staff recommendation of approval.
Vice Chair Coia stated that when the Council looks at an application, they are bound to look at it on its four corners. The Council does not look at an application based on precedence; they are duty bound to look at the application on its merits. The council cannot prohibit this gentleman prospectively thinking that if he puts an aquaculture site there it’s going to give rise to other applications. Vice Chair Coia stated that he would support the application based on applying all the requisite standards and criteria.
Chair Cervenka stated that she cannot support the motion as the testimony of the objectors demonstrates the potential for significant adverse impact for sensitive productive conditional Area A. Chair Cervenka stated that she found the testimony to be compelling based on their personal knowledge and experience. This site is inextricably linked to an area that is historically significant and productive for commercial fishermen.
Mr. Gagnon agreed with Chair Cervenka.
Mr. Longo restated the motion: having considered staff reports and testimony, including the disputed and conflicting testimony regarding the density and shellfish in the area and the potential lease, the potential impact on conflicting uses of the area, Mr. Hudner is satisfied that the applicant has demonstrated the lease will not have an adverse impact on the continued variety of indigenous fisheries in the area and that the applicant has demonstrated that the lease will not result in significant impacts on the abundance and diversity of plant and animal life in the area and that you’re satisfied that the applicant has demonstrated that the lease will not result in significant impact on other water-dependent uses. With staff expert testimony and their findings to support, adding staff stipulations and the agreement of no expansion requirement; Mr. Hudner confirmed.
Mr. Longo did a Roll call vote:
Mr. Sahagian Yes
Ms. Gomes Yes
Mr. Hudner Yes
Vice Chair Coia Yes
Ms. Collie No
Mr. Gagnon No
Ms. Reynolds No
Chair Cervenka No
Mr. Longo stated that with a 4 to 4 vote the motion fails. The application was not approved.
9. ADJOURN
Mr. Sahagian motioned, seconded by Mr. Hudner, to adjourn.
Motion carried on unanimous voice vote. Meeting adjourned at 9:45 p.m.
Respectfully submitted,
Lisa A. Turner
Recording Secretary
Stedman Government Center
Suite 116, 4808 Tower Hill Road, Wakefield, RI 02879-1900
Voice 401-783-3370 • Fax 401-783-2069 • E-Mail cstaff1@crmc.ri.gov
An Official Rhode Island State Website