In accordance with notice to member of the Rhode Island Coastal Resources Management Council, a meeting was held on Tuesday, January 24, 2023 at 6:00 p.m. located at the Administration Building, Conference Room A, One Capitol Hill, Providence, RI.

Members Present
Raymond Coia, Chair
Donald Gomez
Jerry Sahagian
Ronald Gagnon
Patricia Reynolds
Lindsey McGovern
Stephen Izzi
Catherine Robinson Hall

Staff Present
Jeffrey Willis, Executive Director
Laura Miguel, Deputy Director
Ben Goetsch, Aquaculture Coordinator
Anthony DeSisto, Legal Counsel
Mark Hartman, Asst Legal Counsel
Lisa Turner, Office Manager, Recording Secretary
Cindy Tangney, Court Reporter

1. CALL TO ORDER

Chair Coia called the meeting to order at 6:02 p.m.

2. APPROVAL OF THE MINUTES OF THE PREVIOUS MEETING

Chair Coia called for a motion regarding the minutes for the Tuesday, January 10, 2023 Semi-monthly Meeting.

Motion: Mr. Sahagian
Second: Mr. Gomez

Motion carried on a unanimous vote.

3. Subcommittee Reports

Mr. Willis reported that the ROW Subcommittee had met at 5:00 Tuesday, January 24, 2023 (today) provide and update on the status of potential ROWs for Spring Avenue Extensionin Westerly and Buttonwoods ROW in Warwick.

4. Staff Reports

None were heard.

5. Application which has been before a Subcommittee and is before the Full Council to receive the Subcommittee’s Report and Recommendation, & Deliberation and Action on Final Decision:

2017-12-086 PERRY RASO – Establish a three acre oyster and bay scallop farm using floating and suspended gear in Potter Pond, Narragansett, RI.

Mr. DeSisto presented to the Council the posture of the case:

The subcommittee had 33 hours of meetings.

The Council Members present were either members of the Subcommittee or had affirmed that they had read the materials and transcripts.

Mr. DeSisto stated that the applicant requested to introduce new evidence but that with the review of regulations 650-RICR-20-00-01.1(k) the new evidence was not something that would have been discoverable. Mr. DeSisto stated that the new evidence seemed more of a settlement proposal and that the Council should not entertain the proposal.

Mr. Gomez motioned that it was too late to propose a new layout. Mr. Sahagian seconded the motion. Mr. Gomez clarified that there were plenty of opportunities for the applicant to submit an alternate plan during the hearing process but this was well past the time for an alternate proposal. Mr. DeSisto agreed that the new proposal does not qualify as newly discovered evidence. Mr. Sahagian withdrew his second as he disagreed with the reasoning for the denial to allow the new proposal as new evidence. The motion failed to get a second.

Mr. Sahagian motioned to deny the opportunity for new evidence based on Mr. DeSisto’s recommendation of the regulations. Mr. Gagnon seconded the motion.

Mr. Izzi Aye
Ms. Hall Aye
Mr. Gagnon Aye
Ms. Reynolds Aye
Mr. Sahagian Aye
Ms. McGovern Aye
Mr. Gomez Aye
Chair Coia Aye

Motion to deny the opportunity for new evidence was approved on unanimous Roll call vote.

Mr. DeSisto stated that it would be appropriate for the Council to deliberate on the Recommendation of the Subcommittee.

Mr. Sahagian expressed concern that a denial from the Council on this aquaculture application could run the same route as the recent Barrington Aquaculture farm that was denied by the Council and the Council decision was turned over in superior court. Mr. Sahagian stated, while not advocating for the approval of the application as submitted, there were similar factors between the Barrington case and this case such as a favorable staff report; Town Harbormaster stating that there were no navigation issues. Mr. DeSisto stated that the Barrington case was not denied in terms of the location and that staff had recommend approval. Mr. Sahagian stated that if the Council denies this application, there is a chance that the Court could overturn the decision and grant the entire three acres.

Mr. Sahagian suggested that the Council consider a 39% reduction of the farm from sea to land giving an additional 50’ buffer and that based on his personal experience on the pond, he feels that there is room enough if reduce by 1/3 – 175’ x 460’ rectangle within the original proposed footprint. Mr. Sahagian stated that the CRMC staff report stated that the proposed project as submitted met the burdens of proof in the Redbook and that the harbor master stated that the original project as proposed did not pose a navigational hazard. Mr. Sahagian ended by saying he would make a motion but wanted to hear from Council members.

Chair Coia asked for Mr. DeSisto to advise the Council on their ability to modify the submitted footprint. Mr. DeSisto quoted from 46-23-6(2)(B) which authorizes the Council to approve, modify, set conditions for, or reject any such proposal. Mr. DeSisto also stated that in 46-23-20.4, the Council may adopt, modify, or reject the findings of fact and/or conclusions of law of a subcommittee with written reason and rationales. Mr. DeSisto confirmed for Chair Coia that the Council had in fact done this in the past.

Mr. Gomez expressed his concern for the safety of the recreational users of this area of Segar Cove as well as the Subcommittee’s discussions on the topic of safety and alternative layouts that would be satisfactory to both the applicant and the objectors.

Chair Coia, who was also on the subcommittee, recollected that the alternative layouts were for areas outside of the original footprint. Mr. Sahagian confirmed for Chair Coia that his reduced layout suggestion would remain within the original footprint. Chair Coia also recollected the deliberation of the Subcommittee and his concern was the footprint as presented in the original application.

Ms. Hall spoke to the April 2022 decision of Judge Keough on the Barrington aquaculture matter and stated that a quick review of the Superior Court decision was focused on failure to provide an opportunity for cross-examination which is not an issue in this matter. Ms. Hall stated that a second focus was failure of the record to adequately reflect that all the evidence at the hearing was considered by the Council which is also not pertinent to this case. Ms. Hall spoke to the Council’s authority to modify, stating that a modification to an application after staff review has been completed requires a review fee for the staff to review a substantially modified submittal which is this case 39% reduction is a substantial change requiring some review. Ms. Hall also spoke to the requirement for public notice in accordance with the Administrative Procedures Act. Ms. Hall expressed her concern that the Council did not have the authority to forgo the two our own regulation for a review fee or the APA requirement of Public Notice.

Mr. DeSisto addressed Ms. Hall’s concern of Section 1.4.12 and stated that in terms of the modification of the proposed lease footprint, the request is not coming from the applicant, it is being proposed by a Council member. Mr. DeSisto also addressed the notice procedure stating that in this case, the proposal is a reduction and questioned whether it required public notice.
Ms. Hall stated that when a major change is made to an application there is a need for staff to review the change – specifically to this application the marine ecosystem. Mr. DeSisto agreed that the issue needed to be deliberated by the Council.

Chair Coia stated that CRMC staff reviewed the original application of a three acre aquaculture farm, and that the suggested reduction would be within the same footprint. Chair Coia did not feel there needed to be a second staff review when the original three acres had been reviewed by CRMC staff aquaculture specialist.

Mr. Gomez agreed with Ms. Hall stating his concern that the Council was arbitrarily picking dimension and the applicant had not agreed to the reduction or the location of proposed reduction. Mr. Gomez agreed that the idea needed to be reviewed by staff and brought back to the Council.

Chair Coia stated that if Mr. Raso was not in agreement with the Council’s Decision, he could appeal. Mr. DeSisto confirmed that Mr. Raso could appeal the Council’s decision.

Mr. DeSisto confirmed for Mr. Gagnon that the intervenors can appeal as well. Mr. Gagnon stated he felt the Council should stick to the Subcommittee’s recommendation and expressed concern that the Council does not know what they would be voting on as there is no plan.

Mr. Sahagian motioned, based on all evidence in the record, based on the approval recommendation in the CRMC staff report by David Beutel, based on Town Harbormaster statement that the 3 acres would not cause a navigational hazard, that the proposed layout be modified and reduced by 39% and the Council considers an 80,500 sq ft layout inside of the original layout with the elimination of all of the floating devices. Ms. McGovern seconded the motion.

Discussion on the Motion:

Ms. Hall, in agreement with Mr. Gagnon, expressed concern regarding the inability of the Council to see what they are voting on and that CRMC staff will not have the chance to review the modifications. Ms. Hall stated that it goes against the mandate given to the Council by the legislature and the Council’s own rules and regulations.

Mr. Sahagian stated that the CRMC professional staff recommended approval for three acres and that the proposed modification reduces the original layout by 39% within the original three acre footprint and that the Council should rely on the evidence in the record and the staff report as presented by CRMC staff member David Beutel (since retired).

Ms. Reynolds stated that she was on the Subcommittee and her concern was for safety and asked Mr. Sahagian how he determined the specific amount of a 39% reduction and how it might impact safety.

Mr. Sahagian stated that his suggested reduction is just under 2 acres (80,500 sq ft) and the dimensions 175’ x 460’ to give an additional 50 foot buffer from the water towards the land which would address any safety concerns for water-skiers. Mr. Sahagian reiterated that the Town Harbormaster stated as presented that there would not be a navigational hazard with three acres.

Ms. Hall, expressing concern over the lack of confirmed dimensions and location of the modified layout, asked what gear would be used if the floating apparatus was removed.
Mr. Sahagian stated that the underwater gear would replace it.

Mr. Gomez stated that there were several growing methods with the original proposal such as bottom planting of quahogs and lines for oyster growing and the area was perfect due to the water depth. Mr. Gomez expressed his concern for approving an uncertain footprint which has not been determined as to whether or not it is further into the water or closer to shore. Mr. Gomez stated that he felt the proposed modification needed further staff review.
Mr. Sahagian moved his motion but withdrew for further discussion.

Ms. Reynolds stated that she would be supportive of finding a solution but would like to see it on paper and have it brought back to the Council.

Pending motion on the floor.
Chair Coia does roll call vote:

Roll call vote:
Mr. Izzi Aye
Ms. Hall No
Mr. Gagnon No
Ms. Reynolds No
Mr. Sahagian Aye
Ms. McGovern Aye
Mr. Gomez No
Chair Coia Aye

With a tie vote, 4 to 4, the motion fails.

Ms. Reynolds motioned that the Council considers revisions as proposed by Mr. Sahagian’s earlier motion but have it reviewed by CRMC staff and brought back to the Council with staff opinion of the reduction. Mr. Gomez seconded the motion.

Discussion:

Ms. Reynolds clarified for Ms. Hall that the revision would not come from the applicant; Mr. Sahagian would put the reduction he had in mind on paper.

Ms. Hall expressed concern about Mr. Sahagian drawing the revised/modified layout. Mr. Willis suggested that CRMC staff prepare the 39% reduction as you described.

Mr. Sahagian reiterated his proposal stating the layout should within the original 3 acres but move 50 feet landward.

Ms. Reynolds confirmed for Mr. DeSisto that someone has to put the new proposed layout on paper and an opinion on the modified layout, so that the Council can review it.

Mr. Gagnon stated that an assessment of the marine environment and potential impacts would be needed if bottom gear is to be considered.

Chair Coia inquired as to whether CRMC staff had given an opinion on bottom gear in the original staff report.

Mr. Goetsch, CRMC Aquaculture Coordinator, stated that an assessment using their venture device for bottom sampling of the 3 acre site as part of the Preliminary Determination and that information was used and considered by Marine Fishery Council.

Mr. Willis stated that, if Staff was directed to address the modified layout, staff would use the information already in the record to address the issues.

Mr. DeSisto clarified that the motion would be as stated but the Council would refer to the staff for a report using the evidence that is already in the record. Ms. Reynold’s confirmed.

Ms. Hall asked Mr. DeSisto to advise the Council on three points:

• Shifting of burden of proof from the applicant to the staff going against CRMC application
  process and how it would look in case of appeal.
• Modified layout drawn and reviewed by staff, as well as different gear, would not be in alignment with findings of fact in the Subcommittee Recommendation
• What is Superior Court’s position regarding public notice and substantive changes (more than minor) to an application and usurping the public participation.

Referring to the case of Wolff v Wynne, a Superior Court case from 2003, Mr. DeSisto stated that Ms. Reynolds motion includes the intention to rely on the expertise of CRMC in this area as to whether or not this type of reduction is something that should be considered by Council. Mr. DeSisto stated that the motion is in order.

Mr. DeSisto and Ms. Hall discussed Ms. Hall’s questions. Mr. DeSisto clarified through Ms. Reynolds that her intent of the motion was to refer the matter to CRMC staff for a report on the prior motion (Mr. Sahagian’s) and that staff review would be based on the record that has been developed by the Subcommittee.

Mr. Gomez asked how the motion impacted the original subcommittee recommendation.

Mr. DeSisto stated that in 46-23-20.4, it states that the Council may adopt, modify, or reject the findings of fact and conclusions of law. The first motion was to modify the report which failed on 4 to 4 vote. Ms. Reynold’s motion was to refer the proposed modification of the Subcommittee Report to staff for a determination on some of the issues that have been discussed based on the evidence that is in the record.

Mr. Sahagian moved the motion. Ms. Hall asks for clarification on what staff will be looking at. Mr. Sahagian again moves the motion.

Chair Coia does a roll call vote.

Roll call vote:
Mr. Izzi Aye
Ms. Hall No
Mr. Gagnon No
Ms. Reynolds Aye
Mr. Sahagian Aye
Ms. McGovern Aye
Mr. Gomez Aye
Chair Coia Aye

The motion passed and the matter will be referred to staff.

Mr. Capizzo addressed the Council stating that on behalf of intervenors, Kevin Hunt, Alicia Cooney, Steven Quigley, and David Latham, want to note the intervenors’ objection to proceedings to preserve their right.

6. Review and Action on Proposed Jointly Promulgated Regulation: 650-RICR-30-05-01 TITLE 650 – Coastal Resources Management Council
CHAPTER 30– Ocean State Climate Adaptation and Resilience Fund
SUBCHAPTER 05 – Ocean State Climate Adaptation and Resilience Fund

Part 01 – OCEAN STATE CLIMATE ADAPTATION AND RESILIENCE FUND POLICIES AND PROCEDURES

1.0 Jointly Promulgated Regulation

1. Rhode Island Infrastructure Bank, Rhode Island Coastal Resources Management Council, and Rhode Island Department of Environmental Management jointly promulgate 830-RICR-10-35-01, “Rules and Regulations for Ocean State Climate Adaptation and Resilience Fund”.
2. This Part hereby adopts and references 830-RICR-10-35-01.

Proposed Regulation as Jointly Promulgated by the RI Infrastructure Bank: 830-RICR-10-35-01 TITLE 830 – INFRASTRUCTURE BANK
CHAPTER 10 – PROGRAMS
SUBCHAPTER 35 – Ocean State Climate Adaptation and Resilience Fund

Part 01 – OCEAN STATE CLIMATE ADAPTATION AND RESILIENCE FUND POLICIES AND PROCEDURES

Mr. Willis introduced the Public Hearing and explained that no action would be required by the Council that evening. The Hearing was for public input only. No one was present.

Chair Coia opened the public hearing.

No one present.

Chair Coia closed the public hearing.

8. ADJOURN

Motion to adjourn carried on unanimous vote

Motion: Mr. Sahagian
Second: Ms. McGovern

Motion to adjourn approved on a unanimous voice vote.

Meeting adjourned at 7:14 p.m.

 

Minutes respectfully submitted,

Lisa A. Turner
Recording Secretary

 

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