2019-03-064 BOYNTON REED ALLEN -- This application is for a 1,000 square foot aquaculture site in the East Passage of Narragansett Bay near Carr Point. A variety of oyster growing bottom gear is proposed including: SEAPA hanging baskets, growout bags, and bottom cages with a PVC frame. All of the gear proposed would be on or near the bottom with five feet of clearance at mean low water (MLW). Each piece of gear would be attached to the next piece via longline. Only four corner buoys would be visible as the gear would be attached to two of the corner buoys.

Mr. Beutel gave a brief overview of the commercial viability application stating that the applicant was getting a permit and not a lease which would typically be reviewed as an Administrative application with a public notice. Mr. Beutel explained that it came to the Council for review as the application received some objections during the public notice period. Mr. Beutel then explained the commercial viability review process stating that the applicant can request up to a 1000 sf site to work with species and/or method to check for viability in that location. Mr. Beutel stated that after 18 months, the applicant must reapply for the next 18 month approval which must come before the Council. Mr. Beutel explained that a Commercial viability site is not meant for the applicant to make a profit but that they are allowed one single sale at the end of the entire project. Mr. Beutel confirmed that the applicant could apply for an aquaculture lease for the site after the 36 month viability project but that not everyone decides to pursue that option. Mr. Beutel confirmed that the applicant anticipated a future lease of no more than a 1⁄2 to 3⁄4 of an acre. Mr. Beutel explained that the applicant is proposing growing oyster with bottom cages and hanging baskets and that the gear would be subsurface with a minimum of 5 feet of clearance at mean low water.

Mr. Beutel explained that when the application went out for Public comment, two objections came in. One objector rescinded her objection after meeting with Mr. Beutel. Mr. Allen changed the coordinates of his viability area to move off of a mussel bed which was the subject of concern. Mr. Allen made several attempts to work with the second objector (Ken Murgo) to no avail. Mr. Beutel stated that videos of the area provided by the applicant show low activity in the area with no SAV. Mr. Beutel explained that Letters of No Objection were received by RIHPHC, RIDEM Water Quality and Marine Fisheries. Mr. Beutel stated that it was staff’s opinion that application has met the requirements of the coastal program and recommended approval.

In answer to a question from Mr. Gomez, Mr. Beutel stated that the sea bottom was sand and occasional gravel with presence of sea lettuce with is not a protected species.

Mr. Allen was sworn in and identified himself for the record.

Mr. Allen reaffirmed what Mr. Beutel relayed to the Council and clarified that he it was not his intent to limit his ability to extend his site to one acre in a future application.

Chair Cervenka asked when the video was taken. Mr. Allen stated in late May of 2019 and that he did not see more than a few live quahogs at the time and felt it was a suitable location. Mr. Allen confirmed for Chair Cervenka that he had reached out to Mr. Murgo but was not sure if he offered to share the video of the proposed site. Mr. Allen stated that he wanted to meet Mr. Murgo after the area was surveyed which was when he moved his site due to the presence of the mussel bed which was collecting on weeds not on rock area. Mr. Allen moved his site 50-60 yards south and 90 yards to the east. Mr. Beutel stated that only an application for a full lease requires a survey for quahogs.

Objector: Ken Murgo was sworn in and identified himself for the record.
Mr. Murgo explained his objection to the Council stating that he was a whelk fisherman and that the proposed area is full of mussels and that the mussel sites shift. Mr. Murgo stated that they set the whelk traps on the edges of the mussel beds and the fish traps in the mussel beds. Mr. Murgo stated that scuba divers quahog in this particular site area frequently. Mr. Murgo also stated that productivity of quahogs has shifted south due to nitrogen in the area from wastewater treatment. Mr. Murgo confirmed that the understood the application was not for a permanent lease but did not understand why the experiment would be allowed in the proposed area that is clearly used for fishing. Chair Cervenka explained that if the application returns to the Council for a full aquaculture lease request, the comments will be better served. Chair Cervenka also invited Mr. Murgo to respond to Mr. Allen’s outreach. Mr. Murgo confirmed that he did not agree to any aquaculture in the shallow waters of this area and is concerned that fishermen will be displaced creating conflict with other fishermen. Chair Cervenka explained that the Council is tasked with finding a balance for co-existence of uses.
Mr. Fugate asked if any area nearby would be more suitable for this operation. Mr. Murgo stated it was not his expertise to give advice such as that.

Mr. Fugate explained that the commercial viability application was developed to experiment with new technologies or locations for production to check for viability. This process allows for the opportunities for the applicant to work out any issues in the event they decide to pursue a full lease of a site.

Mr. Beutel, in answering Vice Chair Coia’s concerns, explained that information regarding a proposed site is received from many sources during the review process on whether the proposed aquaculture activity will have a significant impact to the area. Mr. Beutel stated that for this area RIDEM stated the impact would be minimal. Mr. Beutel stated that DEM conducts all the shellfish survey and fishing assessments throughout the bay.

Council discussion on commercial viability application process.

No further objectors present.

Mr. Allen readdressed the Council stating that he had great respect for the fishermen in the area and it is not his intention to create conflict in the area. Mr. Allen explained his journey into the aquaculture permit process stating that two preliminary determinations were met with significant objection and expressed his concern for shellfish aquaculture permitting process. Mr. Allen stated that he tried to mitigate for conflict as best he could and hoped his commercial viability site would provide potential for increased biodiversity in the area for fish. Mr. Allen also stated that he would feel comfortable getting a shellfish survey done by impartial party.
Chair Cervenka closed the public comment portion of the application review.

Mr. Gomez motioned for the approval of the commercial viability application.

Mr. Gagnon seconded the motion.

Mr. Gomez stated that he felt Mr. Murgo did a good job and was very knowledgeable about the area but that there is a need to grow the shellfish industry. Mr. Gomez stated that the best way is the CRMC viability process for testing locations. Mr. Gomez agreed that CRMC needs to look at co-existence when reviewing an application. Mr. Gomez stated that he supported the application as well as respected the ideology of other fishermen.

Chair Cervenka agreed with Mr. Gomez’s comments and stated that she also supported the commercial viability application. Chair Cervenka stated that she appreciated the comments from Mr. Murgo and that, in going forward with this site, his comments and those of other fishermen would continue to be considered. Chair Cervenka explained that the Council’s standard is significant impact and that the Council’s job is to determine if another use is significant in impacting competing fisheries in the area. Chair Cervenka stated that she would support the application subject to continued evaluation.

Mr. Sahagian stated that he appreciated Mr. Murgo’s comments as well but pointed out that the application was a Category A application and was unsure as to how the council could deny it.

Mr. Gagnon added that the amount of cages was minimized by the applicant even though more could likely fit in the small area. Mr. Gagnon stated he supported approval of the application.

The motion to approve carried on unanimous voice vote.

6. PUBLIC HEARING ON PROPOSED RULE MAKING:

Management Procedures (650-RICR-10-00-01) -- The CRMC proposes to amend its Management Procedures to clarify and improve its regulatory procedures, including adding Council member coastal program training, adding specific requirements for staff recommendations and written findings of fact and conclusions of law in contested cases, and consolidation and simplification of determination requests and beach vehicle permit fees, among other proposed changes as summarized below.

Brief summary of proposed amendments to 650-RICR-10-00-01:

1. Amend § 1.2(C) clarify member abstention process;
2. Add new § 1.2(G) for member training requirement and participation on a Council
   subcommittee;
3. Amend § 1.4.5 to simplify determination requests and fees;
4. Amend § 1.4.6(A)(11) to consolidate and simplify beach vehicle fees;
5. Amend § 1.5.1(A) to add specificity of public notice for variances and special exceptions; and
6. Add new §§ 1.8(B)(1) and (2) to add specificity for recommendations and findings of fact and
   conclusions of law.

Mr. Boyd addressed the Council stating that the attached program changes were put forth after receiving a proposal by Save The Bay in the beginning of the year and along with dialogue between both parties.

Mr. Boyd stated that the proposed changes went out to public notice and that the notice period would end on December 23, 2019. Mr. Boyd stated that the purpose for the meeting was to allow for the opportunity for public comment and that the Council would deliberate in January after the public comment period ended. Mr. Boyd stated that no comments had been received through the online portal.

Mr. Boyd stated that Save The Bay has submitted comments of proposed revisions but that they were not germane to the current proposed changes.
Mr. Boyd stated that any comments received would be included in Council packet for January 14.

Vice Chair Coia asked about the quorum regulation. Mr. Boyd explained that they will correct that regulation through a technical revision.

Mr. Boyd answered Council questions:

Ms. Reynolds asked about the training program mentioned in the regulations.

Mr. Boyd stated that the regulation was referring to the Coastal Education Series educating the Council on various issues that are of concern to the council as well as programmatic issues that come before the Council on a regular basis.

Mr. Sahagian asked about the regulation for Council attendance. Mr. Boyd explained that there is existing language which states that during a 12 month period, a member cannot have three unexcused absences.

Mr. Gomez asked if the P&P Subcommittee will get a copy of the regulatory change requests sent by Save The Bay. Mr. Boyd stated that the changes would be brought to the P & P Subcommittee in January.

Public Comment period opened and hearing not comments, closed.

Mr. Boyd stated that the changes would come back to Council for review in January 2020.