In accordance with notice to members of the Rhode Island Coastal Resources Management Council, a meeting was held on Tuesday, March 27, 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
Don Gomez
Jerry Sahagian
Ron Gagnon, DEM Rep
Michael Hudner
Joy Montanaro
Trish Reynolds
Michelle Collie
Lisette Gomes

Staff Present
Grover Fugate, Executive Director
Jeff Willis, Deputy Director
David Beutel, Aquaculture Coordinator
Anthony DeSisto, 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

Chair Cervenka called for approval of minutes:
February 13-2018 due to corrections

• Motion: Mr. Sahagian
• Second: Mr. Gomez
• Motion carried on a unanimous voice vote
• February 27, 2018
• Motion: Vice Chair Coia
• Second: Mr. Hudner
• Motion carried on a unanimous voice vote

3. SUBCOMMITTEE REPORTS

None were heard.

4. STAFF REPORTS

Mr. Fugate reported on the following:

• April 3, 2018 Workshop on Federal Consistency for Off-Shore Wind Farms
  • Alton Jones in West Greenwich, RI from 10 a.m. to 2 p.m.
• Attending: CRMC staff, Council members and Contractors
• March 28, 2018 -- Senate hearing a bill banning oil and gas expiration in State of Rhode Island
  • Implications for CRMC and Mr. Fugate will be testifying
• March 28, 2018 – CRMC Budget hearing – 2 p.m. in House Finance
  • Mr. Fugate and Mr. Willis to attend
• March 29, 2018 Beach SAMP Stakeholder meeting 6:00 p.m.
  • releasing chapters 6 and 7 for public viewing and comment

5. Coastal Education Series – Jason Grammit – Rhode Island Ethics Commission

Discussion regarding the Codes of Ethics as it pertains to the Council with a concentration on conflict of interest and financial disclosure statements.

Mr. Beutel gave a brief overview of the requested modification to the current aquaculture lease explaining that, currently, there are 115 floating cages and that an additional 425 bottom cages could be added to the site making the total number of 540 cages. Mr. Beutel explained that the leaseholder realized the benefits of floating aquaculture as a more efficient way to conduct aquaculture and has asked to add more floating cages to his site. Mr. Beutel explained that to this sites immediate right there were three other aquaculture lease sites with floating gear. Mr. Beutel stated that the proposal had received a lot of objections that he had addressed in his staff report; the main objections being large concentration of birds roosting on the equipment, increased seaweed wash-up on the shore, negative effects on property values due to the negative effect on historic scenic views; and negative effect on the benthic community. Mr. Beutel addressed each objection stating that the photos submitted showing the birds roosting on cages was from a different aquaculture site not this particular site and that the aquaculturist used zip ties on the floating cages as a deterrent to roosting birds and that there was not documentation that speaks to the decline in water quality due to floating aquaculture cages. Mr. Beutel stated that he had contacted two seaweed experts at URI, Carol Fournier and Lindsay Green, who both stated that the type of seaweed that was around last year had a significant bloom with a sulfur smell that had nothing to do with aquaculture and occurred all over the bay. In regards to negative effect on property values, Mr. Beutel stated that he had not seen documentation to back up this objection. In regards to the negative effect on a historic scenic view, Jamestown comprehensive documents do not mention this site as being one and the RI Historical Preservation and Heritage Commission issued a letter giving their approval. The RIDEM issued a letter stating that a water quality certificate is not needed because the water quality is sufficient for aquaculture. Mr. Beutel stated that RIDEM Fish and Wildlife objected to the number of cages on the site as well as the negative impact on the benthic community. Mr. Beutel explained that the RIDEM F&W sited documentation from research done in Winnapaug and Ninigret ponds which both have low tidal flow and water exchange. Dutch Island Harbor has significant water flow documented in the Tidal Currents Atlas. Mr. Beutel stated that URI professors say that aquaculture will cause a change in the benthic community but that over time the benthic community comes back to where it was before even though aquaculture remains on site.

Mr. Beutel stated that he agreed with RIDEM F&W that the increase in cages would be too many and modified the request to 500 cages in total, either floating or bottom and that there are other aquaculture sites in the state that are successful with a density of 250 cages per acre.

Chair Cervenka asked about the navigation within the sites and the potential impact on public access. Mr. Beutel stated that, as in the Depetrillo site which has 500 cages, you can walk through it and kayak through it, but would not recommend swimming in it as it would not be safe. Mr. Beutel stated that during the Preliminary Determination process it was determined that it was not a significant swimming or boating area.

Mr. Beutel stated that he recommended approval with stipulations that reduce the amount of cages to 500 cages with the lowest profile to minimize bird congregation. Mr. Beutel stated that the applicant had been consulted and agreed to the staff recommendations and stipulations.

Mr. Beutel confirmed for Mr. Sahagian that in his expert opinion as aquaculture coordinator for nine years, the applicant has met all the burdens of proof required in our program. Mr. Beutel confirmed that he did not receive any further comments from RIDEM F&W after he stated he was going to recommend only 500 cages on the site.

Mr. Beutel confirmed for Mr. Gomez that bottom planting is viable at this site but that it adds years to the process for getting product to the market.

Mr. Beutel confirmed for Mr. Hudner that by stipulation, the number of total cages for this lease will be 500 whether they are all bottom, all surface floating or a combination.

Mr. Beutel confirmed for Mr. Sahagian that he did speak with the applicant regarding the scaling back of cages and that the applicant agreed to the 500 cages. Mr. Beutel also answered Mr. Sahagian’s concerns and stated that he did believe this was a case of “not in my back yard.”

Mr. Hudner acknowledged that this was a complicated subject and a lot of balancing to be done by the applicant, the town and the neighborhood. Mr. Hudner complimented Mr. Beutel on his presentation and compromise.

Mr. Fugate stated to the Council that there would be more applications being submitted requesting floating cages and that CRMC, recognizing the need for balance and in an effort to be proactive, is proposing a series of guidelines to minimize the conflicts associated with floating cages.

Mr. Beutel confirmed for Mr. Gagnon that he was proposing a total of 500 cages for the site.

Chair Cervenka asked what percentage would be floating and what would be bottom. Mr. Beutel stated he had not discussed this with the applicant.
There were no more questions for Mr. Beutel.

Chair Cervenka asked Attorney Matt Oliverio to come forward on the Motion to Intervene.

Mr. Oliverio came forward stating that he was representing 14 neighboring property owners, all who live on West Wind Drive: Charles and Laura Long, Robert Powers, James and Renee McCooey, Allen and Lorraine Katz, Ted Sivers, Sharon Purdie, Kelly Palumbo, Paul and Martha Zabatakis, and Bill and Diane Calenda. Mr. Oliverio explained his reasoning behind the formal Motion to Intervene as his clients use the two acre area for recreating purposes. The West Wind Drive neighbors are concerned that their use of the area will be extremely diminished if Mr. Pinheiro decides to use all floating cages. Mr. DeSisto explained the process of motion to intervene to Council members explain that it is a more formal presentation of objection rather than each neighbor presenting separately.

Mr. Hudner motioned, seconded by Ms. Collie to accept the motion to intervene. Motion carried on a unanimous voice vote.

The applicants, Antonio Pinheiro and Joseph Pinheiro – Sunset Beach Aquaculture, were called forward, were sworn in and identified themselves for the record.

Mr. A. Pinheiro and Mr. J Pinheiro confirmed that they agreed with Mr. Beutel’s report and presentation to the Council. Mr. A. Pinheiro stated that they have worked with CRMC staff and that they always work well together.

• Eventually would like to all 500 cages as floating cages which would remain floating unless ice is present during the winter months.
• The zip tie method is basically having the end of the tie sticking up to deter the birds from roosting which seemed to be an effective method as they do not see birds roosting on their site.
• Explained how their site had lanes in the lease that can be traversed by swimming, boating, and kayaking, as long as they are not staying within the lease.
• Explained how they had worked with the Town of Jamestown Conservation Commission and the Harbor Commission and had gotten a good response from them but the Town Council did not seem to be including them in any hearings that are pertaining to aquaculture so it was not easy for them to try to work with the neighbors to resolve any misunderstandings.
• Lease will not be expanded and need to use the lease to the most of its capability as it is their main source of income. At the present time, they have 215 cages in the site, 115 floating and 100 bottom cages.
• At low tide the lease site is at least 100 feet from the beach area. They have seen kayakers and paddle boarders go through the site in the warmer weather. There is room for swimming as well.
• With the addition of floating cages, the two acre site would have 10 avenues from the ocean to the shore

Mr. Pinheiro addressed objections and asked to have questions answered through the Council.

• Questioned objections from neighbors who do not have a view objecting to visual impact.
• Questioned objections about the birds roosting.
• Addressed the Town’s letter to CRMC stating that whenever they think of or request to change
  something on their site, they always go to the Town’s Comprehensive plan to make sure they
  are not in conflict with anything the Town is doing.
• Mr. Pinheiro had a letter from Phil Larson, regarding support for the aquaculture which could
  not be submitted due to CRMC policy of submitting information 5 days prior to the meeting.

Mr. Oliverio came forward and explained to the Council that he would have three witnesses testifying regarding their objections and that the main objective is to balance the rights of the public to use the public trust areas and the right of the fishermen to harvest and engage in an occupation through aquaculture. Mr. Oliverio stated that he would focus on CRMC regulations and that there are no current regulations governing density calculations. Mr. Oliverio stated that after reading Mr. Beutel’s report and how he came up with the 500 count for cages being more efficient and less costly thereby being more profitable, he felt that there seemed to be a bias towards aquaculture in Dutch Harbor as opposed to public interest and those of the abutting neighbors. Mr. Oliverio suggested deferring the decision of the aquaculture site until such a time as the regulations are fully vetted through the hearing process, in particular, density calculations, so that both the applicant and the public know what the games rules are. Mr. Oliverio outlined his clients concerns and his understanding of the case stating that the cages sit up on top of the water, there is an obstruction or overcrowding of a public trust lease area which interferes with a right to recreate and that there is a degradation of scenic vistas due to the floating cages. Mr. Oliverio reiterated their concern of the roosting water fowl and the fecal matter that can have an impact on the benthic community and fauna. Mr. Oliverio stated that the application was inconsistent with the Town of Jamestown’s Comprehensive plan as stated in a letter by Mr. Noda, the Town Manager. Mr. Oliverio stated that it is very coincidental that there was an abundance of seaweed in this area along with the installation of the aquaculture cages. Mr. Oliverio also introduced the possibility of that the birds congregating in the area could introduce non-native species through seed disbursal.

Mr. Oliverio called Sharon Purdie as his first witness. Ms. Purdie was sworn in and identified herself for the record. Ms. Purdie testified to the following:

• Has lived for 12 years in Jamestown at 60 West Wind Drive which is on the other side of the creek from where the farm is and that they look out directly at all the farms;
• Was not informed of the applications for any of the six aquaculture farms in the area, and that they found out through the local newspaper, the Jamestown Press;
• Prior to the approval of the aquaculture lease sites, they used the water recreationally which is the reason they bought the house in this location;
• Ms. Purdie explained that she is an early morning daily swimmer who liked to swim long distances in shallower water for safety reasons and did not want to swim near the cages as she was afraid she’d get tangled up in the lines; her concerns increased with the increase in the number of proposed cages;
• Ms. Purdie explained that they have a boat on a mooring located 100-200 feet to the south of the lease site and her concern is getting to the boat and having to kayak to her mooring. Ms. Purdie stated that many recreational activities in Dutch Harbor have decreased since the aquaculture activities such as:
  • anchoring of boats
  • Kayaking
  • Fishing off the beach
• Ms. Purdie objected to the increase in birds roosting on the cages and expressed concern regarding the increase in fecal matter from the roosting birds;
• Ms. Purdie also objected to the loss of the beautiful view that they had enjoyed until the aquaculture leases were given.
• Ms. Purdie stated that she was not against aquaculture but preferred bottom cages and not so many of them.

The Public Notice process was explained to the Council. Mr. DeSisto stated for the record that notification was not an issue in this hearing and not an appealable issue. Mr. Oliverio agreed.

Mr. Oliverio called Lorraine Katz as his next witness. Ms. Katz was sworn in and identified herself for the record. Ms. Katz testified to the following:

• Has lived for 15 years in Jamestown at 52 West Wind Drive, before the approval of the farms;
• Agreed with Ms. Purdie’s testimony;
• Recreational activities that she engaged in are swimming, paddle boarding and kayaking but no longer swims because she is afraid of the cages and will not paddle board because of the linking of the cages;
• Ms. Katz testified to the proliferation of seaweed which that smells horrible and contains bugs.

Mr. Oliverio also introduced his third witness, Robert Powers, who was sworn in and identified himself for the record as a Jamestown resident living at 30 West Wind Drive for 18 years and that he agreed with the testimony of Ms. Purdie and Ms. Katz.

• He reviewed the file and information and did an analysis of its consistency with the CRMP and other jurisdictions that permit aquaculture operations;
• In connection with his review he prepared a report which was identified as being in the Council packet;
• The CRMP is lacking defined objective regulatory criteria as to how cage density within an aquaculture lease area affects both environmental quality and constitutional right of the public to access those waters;
• ACOE General Permit with Massachusetts has density standards stating that any floating apparatus cannot take up more than 10% of the project area or 20,000 sq ft depending on the
  acreage of the site
• The CRMP is lacking a requirement of a plan view showing how many cages and where rows would be;
• Because there is not a specific regulatory standard, especially dependent on water body, the staff utilizes subjective beliefs or opinion when making recommendations to the Council;
• In a letter from Larry Mouradjian of RIDEM Division of Marine Fisheries, an offer was made to meet with CRMC staff to formulate an appropriate density calculation for cages on this lease area; nothing came from that from any parties involved.
• In a letter from the Town of Jamestown Town Council, the Council determined that the project was inconsistent with the comprehensive plan of Jamestown;
• Mr. Rabideau felt that land based projects are vetted better and there are standards that provide for staff and local communities to regulate together but that is not the case with aquaculture projects;
• Answering a question from Mr. Oliverio, Mr. Rabideau stated that he did not feel that there was enough information presented by the applicant or in the staff report for the Council to make a decision on the application as there is no objective standard as to how the cage density would affect the environment.

Mr. Rabideau confirmed for Mr. Fugate that he knew that CRMC has exclusive jurisdiction below the mean high water mark and that CRMC does not have to coordinate with the Town based on that statute and that CRMC does coordinate with the local municipalities on aquaculture activities. Mr. Fugate stated that aquaculture is one of the most regulated activities in the State and the United States, and that Mr. Beutel, the State Aquaculture Coordinate does not make arbitrary recommendations and decision. Mr. Fugate further expressed his concern regarding Mr. Rabideau’s opinion that the CRMP regulations on aquaculture are unfair and unwarranted. Mr. Rabideau expressed concern that the general public cannot fully understand the aquaculture process based solely on the RICRMP.

Mr. Gagnon asked if Mr. Rabideau calculated the density of the 500 cages. Mr. Rabideau stated that the cages equaled 8,000 sf. Mr. Gagnon calculated 8.9% density of the two acre site which is less than 10% recommended by the ACOE.

Mr. Fugate clarified that the density calculation set forth by the ACOE was specifically for the State of Massachusetts and not binding in the State of Rhode Island.

Mr. Hudner stated that he also calculated the density at almost 9% of the aquaculture lease and that it was confirmed the practical way in which the staff reviews aquaculture.

Mr. Gomez clarified that there is paperwork within the council packet showing the layout of the aquaculture cages showing very structured lanes. Mr. Gomez talked to his experience in reviewing the aquaculture applications that are presented before the Council all of which are reviewed carefully with expansive groundwork that goes into each application prior to Council review.

Chair Cervenka clarified that in Category B requirements the Council reviews scenic impact and that the applicant has demonstrated that they tried to minimize the scenic impact, if there is one.

Mr. Beutel confirmed for Chair Cervenka that he believed there was a reasonable ingress and egress for the public to perform traditional recreational activity; except he would recommend swimming through the gear

Mr. Beutel also stated that gear layout does not necessarily confirm floating or bottom placement of cages; it would look the same either way.

Mr. Fugate stated that through the Public Notice process, the CRMC seeks input from local and general mailing lists.

Mr. Pinheiro addressed the Council again stating that his aquaculture lease was at least a quarter of a mile from any residence and that the properties may abut the water’s edge but not his aquaculture lease which is 2,000 feet away from their homes.

Mr. Pinheiro confirmed that they layout he submitted is how he would place the cages with the exception that the layout they had was for 710 cages and he was only asking for 500 cages with a 10-12 foot row between each of the 20 cage rows.

Mr. Beutel confirmed for Chair Cervenka that CRMC approves the number of cages with a proposed layout of the cages.

Mr. Fugate explained that after a careful evaluation of the site, CRMC can require designated fairways through a site depending on evaluation of the needs of the site.

Mr. Pinheiro explained how the cages are set up with throughways for people to traverse through the site as long as you stay within the very visible lane.

Chair Cervenka close the Public Comment period.

Mr. Hudner motioned, seconded by Mr. Gomez, to approve the project with stipulations as provided. No discussion.

Motion carried on unanimous voice vote.

7. ADJOURN

Mr. Sahagian motioned, seconded by Ms. Gomes, to Adjourn.
Motion carried on unanimous voice vote. Meeting adjourned at 8:48 p.m.

 

Respectfully submitted,

Lisa A. Turner
Recording Secretary

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