Inadequate Application Again Stalls Popponesset Shellfish Farm Proposal

Mashpee shellfisherman Richard J. Cook’s second attempt in as many years to win final approval to grow oysters in Popponesset Bay hit another roadblock at last Thursday’s Mashpee Conservation Commission meeting.

Approximately three hours before the meeting, Brian J. Wall, an attorney representing 20 homeowners on Popponesset and Daniels islands, delivered an unexpected package containing 30 pages of opposition arguments to the conservation office.

Lacking adequate time to review the documents, which included a report authored by an environmental consulting firm, the commission was forced to move the hearing on Mr. Cook’s request to April 26.

The opposition is calling for Mr. Cook to notify all abutters of Popponesset Bay—including property owners in Barnstable, engage the Cape Cod Commission to review the grant as a development of regional impact, and address potential endangerment to the habitat of terns and piping plovers on Popponesset spit.

Announcement of the delay took the audience, largely supporters of Mr. Cook, by surprise, leading Mr. Cook to ask the commission if the same review was required of the Mashpee Wampanoag Tribe’s aquaculture grant. The tribe has two grants in Popponesset Bay, an eight-acre area by Punkhorn Point that is actively farmed as well as another near Mr. Cook’s proposed site.

Mashpee Conservation Agent Andrew R. McManus said that he has never seen documents dropped off to his office so close to a hearing. “This has been going on for a while, it seems to me that they could have submitted them earlier,” he said.

Wide Range of Concerns
The document sent to the conservation committee by Mr. Wall argues that there are significant deficiencies contained within the application filed by Mr. Cook and that it is “woefully lacking” details. The application, known as a notice of intent (NOI), is filed with the conservation committee, while simultaneously being submitted to the Massachusetts Department of Environmental Protection.

In a conversation earlier this week, Mr. Wall explained the rationale behind his arguments for further review of the project, and claims that Mr. Cook has not given enough specific information about the project.

“We asked him for the same information last time. We find the absence of the same information from the current NOI to be conspicuous and disconcerting,” said Mr. Wall, emphasizing the lack of detail about the anchoring system for up to 15,000 shellfish bags in a velocity zone.

A major thrust of the opposition’s case against Mr. Cook is that the size of the project triggers a threshold requiring mandatory Cape Cod Commission review of the aquaculture grant as a development of regional impact.

While the commission is widely recognized as having to review buildings of 10,000 square feet or more, as of 2011 it is also required to review “outdoor use” of more than 40,000 square feet, such as nurseries, parking lots, gravel pits, and car dealerships. According to Mr. Wall, the proposed grant in Popponesset Bay represents more than 80,000 square feet of outdoor use—twice the size of the threshold requiring commission review.

According to Mr. Wall, once a threshold is triggered, local governing boards must suspend the permitting process until the commission has vetted the project.

Heather McElroy, a natural resources specialist at the Cape Cod Commission, said that the commission has never reviewed an aquaculture grant before, and that the commission generally supports aquaculture initiatives. “There’s a ton of aquaculture out there,” she said.

Mr. Wall said that he is not surprised that this is the first time that the issue has been raised to the commission, since the regulations that expanded its jurisdiction were implemented just one year ago.

Mr. Wall also argues that the application is deficient because Mr. Cook is not complying with provisions requiring that all property owners along the bay, including Barnstable residents, be notified of any hearing.

“This is ridiculous, telling me that the boundary of the project is all of Popponesset Bay” said Mr. Cook, asking if this meant that an aquaculture grant in Cape Cod Bay would require approval from Provincetown to Boston.

Another major concern raised in the document was the proximity of the grant to a rare species habitat on Popponesset spit, where several species of tern and piping plovers nest on the barrier beach. According to the opposition, the application does not contain any discussion of potential impacts the project may have on nesting terns and plovers and foraging habitat.

A spokesman for Mass Audubon, which owns the land at the end of the barrier beach, did not respond to an interview request.

LEC Environmental Consultants, a Cataumet-based research firm, was commissioned by the opposition to conduct a preliminary environmental review of the application. The consultancy concluded that “the project as proposed has not demonstrated compliance with state and local wetland regulatory performance standards.”

Stanley M. Humphries, a senior coastal geologist and co-author of the report, did not return a call for comment. It is unclear whether LEC has conducted similar research involving aquaculture projects in the past.

Advised To Revise Documentation
Mr. McManus said he met with Mr. Cook and Mashpee Shellfish Constable Richard York on Tuesday to discuss the NOI and make recommendations for a revision of the document.

Sounding somewhat frustrated, Mr. McManus said that Mr. Cook’s application was “a bit lacking” and that he should hire an experienced consultant or engineer to assist in the new material.

Mr. McManus said that failure to provide additional detailed information would result in a denial or continuance of the request, and, if necessary, the commission could ask Mr. Cook to place up $2,600 in an account to hire its own consultant to obtain the data.

“I think he may be relying on the town too much to help him,” Mr. McManus said.

In a document sent to Mr. Cook and provided to the Enterprise, Mr. McManus recommends that the applicant provide further details for meeting performance standards for state and local regulations, use the latest assessors maps to send, via certified mail, notification to all abutters of the bay in Mashpee and Barnstable, and provide information to alleviate concerns about effects to rare species habitats.

Mr. McManus, in the memo, also stressed the importance of providing evidence and professional testimony that the aquaculture farm will stand up to significant storm events, especially since it would be within an area identified by the Federal Emergency Management Administration as potentially subject to high wind and waves.

When asked about how he would proceed moving forward, Mr. Cook said that he will keep “countering the opposition and fighting.”

Continuing Opposition
For much of last year, Mr. Cook was met with vigorous opposition and a lawsuit as he sought approval for a one-acre grant at a separate site in the bay.

Mr. Cook officially abandoned his application for the contested grant late last year, refocusing his efforts on a new, 1.9-acre grant location that sits farther out into the bay, more than 1,100 feet from the nearest waterfront residences in Mashpee, and approximately 150 feet from the Barnstable town line.

The new grant has already received the go-ahead from the Mashpee Board of Selectmen, Mashpee Waterways Commission, harbormaster, and Mashpee Shellfish Commission, but will once again be the subject of a lawsuit.

The case of Robert J. Zammito, et al. v. Wayne E. Taylor, et al., has been filed in the Barnstable Superior Court to appeal the selectmen’s decision, according to documents provided to the conservation office by Mr. Wall.

Mr. Zammito has been the most vocal opponent of Mr. Cook’s new grant application.

Leslie A. Caffyn, the Popponesset Island resident who led the opposition to Mr. Cook’s initial grant application last year, is no longer listed as a complainant.

Messages left with each of Mr. Wall’s clients this week were not returned.

Among the opponents, the nearest home belongs to Mr. Zammito and is about 1,100 feet away, on Popponesset Island, according to town assessors records. The furthest home from the proposed site belongs to Gloria and Charles Clough, at about 3,000 feet away, on the tip of Daniels Island.

Town records show that all of Mr. Wall’s clients, aside from the Zammitos, list as their legal address properties outside of Mashpee, including in Milton, Lexington, Sherborn, Canton, Sudbury, Concord, and Newton. Two have legal addresses listed in Florida.

While not officially on the roster of opponents that have retained legal counsel to stop the aquaculture project, New England Patriots owner and seasonal Popponesset Island resident Robert Kraft had an observer in the room last week. Robyn Glaser, a legal representative for Mr. Kraft, attended the hearing, as she has since early 2011 when controversy surrounding the grants began.

It was a busy night for Mr. Zammito and Mr. Kraft at town hall. Earlier in the evening, the Mashpee Board of Assessors denied the requests of both for tax abatements on their Popponesset Island Road properties.

Jason R. Streebel, the town’s director of assessing, said that the board deemed the assessment of the properties was appropriate.

According to the Town of Mashpee assessor’s database, the Krafts own three properties on the road, collectively valued at approximately $14 million, while the Zammito property is assessed at nearly $4 million.

Six other Popponesset Island Road homeowners, none of whom are publicly opposing the aquaculture grant, were also denied abatement requests.

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