Shellfish Constables Say State Review Of Poppy Oyster Grant Is A First
By: Geoff Spillane
The recent Massachusetts Department of Environmental Protection (DEP) ruling that a Mashpee shellfisherman conduct an environmental impact study for a one-acre aquaculture grant off Popponesset Island is a rarity, and, in fact, may be unprecedented.
The DEP decision is the latest development in an ongoing legal battle between a group of more than 20 homeowners on Popponesset and Daniels islands and local shellfisherman Richard J. Cook Jr. The grant offshore from a sandbar on Popponesset Island was requested earlier this year by Mr. Cook, who has been shellfishing in Mashpee for nearly four decades and has operated an oyster farm in Ockway Bay for 28 years.
A letter sent to Mr. Cook by the DEP in late September states that the project is subject to review under the Massachusetts Environmental Policy Act, and that Mr. Cook must file an extensive Environmental Notification Form with the Secretary of Energy and Environmental Affairs within 70 days.
When asked whether there were any other aquaculture projects in the state that have required such extensive review, Edmund Coletta, a spokesman for the DEP, wrote in an e-mail that “It appears that there are a number of other aquaculture projects, but they are mainly handled locally by the conservation commission and they never reach MassDEP or MEPA. It appears that the Poppanesett [sic] project is among the only ones to reach the MEPA/ENF stage.”
The Mashpee Conservation Committee approved the grant in July, citing evidence from, among other groups, the DEP, the Massachusetts Department of Marine Fisheries and the state Natural Heritage and Endangered Species Program that the grant would not have an adverse effect on the environment.
Andrew J. Koch, shellfish constable for the Town of Wellfleet, said that the town has 240 acres of shellfish grants and the DEP has not been involved in any of them during his eight years on the job. Mr. Koch also said that in order to stop an aquaculture project in Wellfleet, a land owner has to prove that he owns land under the ocean by showing a deed that states a property extends to the low-water mark. If they do not have that, then “too bad,” he said.
R. Charles Martinsen III, Falmouth shellfish constable, said there have been four aquaculture projects in the past three years in that town, and none required DEP intervention. “I’ve been involved in this field for more than a decade and have never seen this happen,” he said, noting that the Mashpee situation has caused concern among shellfishermen throughout the area.
Mashpee Shellfish Constable Richard H. York Jr. likewise said he has never heard of such an extensive review being required for an aquaculture grant.
Speedy DEP Response to Review Request
An inspection by the Enterprise of case files at the DEP Southeast Regional Office in Lakeville revealed that the DEP responded swiftly to a review request made by Brian J. Wall, an attorney with Sandwich-based Troy Wall Associates, which represents more than 20 homeowners on Popponesset and Daniels Islands.
Mr. Wall mailed a request for a superseding review to the DEP on August 2. The letter was stamped “Received” on August 3 at the DEP office in Lakeville. The next day, August 4, Brenda Harper of the wetlands program of the state Bureau of Resource Protection responded by letter to Mr. Wall stating that an on-site meeting on Popponesset Island had been scheduled for August 25.
“That seems like a very fast turnaround,” Mashpee Conservation Agent Andrew R. McManus said.
Mr. Wall said it was a quick turnaround, perhaps due to a decrease in projects requiring DEP attention during tough economic times, and that the quick turnaround would have benefited Mr. Cook, if the project had been approved by the DEP.
Reasons cited for the DEP decision to call for an environmental study are identical to those highlighted in a memorandum from Mr. Wall to Daniel Gilmore of DEP on the day of the on-site review. The reasons include placement of a new structure in a “velocity zone,” alteration of wetlands and construction of a bottom-anchored structure in flowed tidelands.
“It was inevitable that this decision was going to be made, because a review threshold was triggered due to the project’s location in a velocity zone. This area gets violent waves in a storm, and the shellfish cages, or structures, could become flotsam and jetsam,” said Mr. Wall, who added that he believes the state is looking at this issue from a “big picture” perspective that includes safety and weather.
Mashpee Selectmen Chairman Wayne E. Taylor said he is appalled that the DEP has become involved in this issue and this is an example of well-heeled people with influence trying to stop a local shellfisherman from making a living.
“Ms. Caffyn has got people around her all riled up about something they don’t understand, and has taken it to extremes with far-fetched recreational disaster scenarios. In many cases, opponents to the grant can’t even see the area in question, and would have to drive a boat around the island to see it. The way this is being handled is way out of bounds.Their behavior through this whole process has been less than polite,” Mr. Taylor said.
Leslie A. Wagner Caffyn, whose home on the tip of Popponesset Island would be next to the shellfish grant, has been leading opposition to the project.
Reached by phone yesterday, Mr. Cook declined to comment on the matter.
As of press time, representatives from the Massachusetts Division of Marine Fisheries and DEP had not responded to interview requests.
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