On Tuesday November 14 Rhode Island’s Coastal Resource Management Council convened for “discussion, review, action or referral to the CRMC Hearing Officer based on objections received regarding the application” related to application 2020-04-037, which seeks to obtain a lease for a 1-acre oyster farm in state waters approximately 400 feet from Sapowet Marsh Wildlife Management Area in Tiverton.
BHA’s Rhode Island team has been actively involved in opposing the application over the last several years, initially filing an objection to the proposal in 2021. Prior to Tuesday’s hearing, the RI team submitted additional correspondence expanding upon on our rationale – in simple terms, that the proposed lease is unreasonably close to an existing recreational facility that provides exceptional access to coastal waters. If approved, the oyster farm would become the closest of its kind to an existing coastal public-access facility anywhere in Rhode Island by a considerable margin.
Early on it became clear that the focus of Tuesday’s meeting would not be to provide the large crowd that had traveled to One Capitol Hill the opportunity to provide public testimony before they took potentially final action on 2020-04-037 (watch the meeting here). Rather, the Council would focus on determining whether the objections they currently had on file rose to the level of ‘substantive’, therefore requiring the matter be handled as a ‘contested case’ and would proceed without input from the crowd.
“At issue today is whether or not substantive formal written objections have been received in regard to this application” said CRMC Attorney Anthony DeSisto in the opening remarks. “Mr. Chairman I’d like to defer to the Executive Director on that issue so that the Council can make a determination as to whether or not this is a contested case that should be referred to the hearing officer.”
CRMC’s policies on defining and handling ‘contested cases’ are outlined in both the Council’s Management Procedures (650-RICR-10-00-1) and CRMC’s Red Book (RICR-650-20-00-1). The latter describes the criterion for an application to be considered “contested” in Section 1.1.6 G (pg. 61).
“There are a number of objections that raise the scenic impacts, that raise the impacts to recreational values in this area, and they’re not just, in my opinion, pro-forma ‘it’s going to impact the scenery, it’s going to impact my recreational use.’ A lot of these objections rise, in my opinion, to be substantive because they call out instances of how the application might be significant to enjoy those scenic values or those recreational values” said Executive Director Jeffrey Willis, who leads CRMC’s staff and serves as the top advisor to the politically appointed Council. “So in my opinion I would recommend that there are a number of objections that have risen to that level and could be determined to be substantive, if you all agree.”
To comment that any of the approximately 140 objections in the 780-page file rose to the level of ‘substantive’ represents a considerable shift in tone from CRMC’s expert staff. In their report on 2020-04-037, dated July 10, 2023, the staff declined to comment on the substance of the objections on file, stating that “Staff believes that the proposed 0.97 acre oyster farm can be accommodated amongst the other uses of the area… given the objections received to date and likelihood of additional testimony before the Council on this matter, Staff defers to the Council on the objections as they relate to the policies and standards of the RICRMP.”
At least one Council member disagreed with Executive Director Willis at Tuesday’s meeting. “Give me a break. It’s a .9 acre piece of water with gear that’s not going to be totally visible in an area that staff has worked very hard to come up with a layout for that plan, which I think they call the blue matrix or something” said Council member Donald Gomez of Little Compton, the applicants’ hometown. “Nobody uses that area of the beach. I’ve been there several hundreds of times. I go there several hundred times a year. And nobody uses that section of beach, except people who think it’s OK to put a mooring in because they have riparian rights, which they don’t.”
Following some additional discussion and a motion by Council Member Russolino to heed the Executive Director’s advice and find that application 2020-04-037 was, in fact, ‘contested’ and should be referred to CRMC’s Hearing Officer per the management procedures, the Council voted in favor of the motion by a margin of 7-1, with Gomez as the lone dissenting vote.
While referral to CRMC’s hearing officer isn’t as good of an outcome as an outright denial, we consider it a positive step. The hearing officer will be generally tasked with gathering facts and verifying claims from both sides of the issue about the area, current uses, the claims in application itself, and anything else that might be relevant to the Council’s consideration through a series of quasi-judicial hearings. Once the hearing officer has completed this process a report will be returned to the Council, who will eventually resume their consideration based on the information that has been gathered and verified.