Pro­posed hold on dock use de­bated

County wants to ‘strike a bal­ance’ among par­ties af­fected by com­mer­cial pier mora­to­rium

The Enterprise - - Front Page - By TAY­LOR DEVILLE tdev­ille@somd­news.com

A pub­lic hear­ing re­gard­ing a pro­posed mora­to­rium on com­mer­cial dock use for oys­ter farm­ers who lease wa­ter from the state drew a large crowd Tues­day night. More than 30 speak­ers, in­clud­ing res­i­dents and out-of-county stake­hold­ers, seemed evenly di­vided on the is­sue.

Con­cerned about a lack of com­mu­ni­ca­tion be­tween the Mary­land Depart­ment of Nat­u­ral Re­sources and St. Mary’s County gov­ern­ment, and re­spond­ing to county res­i­dents’ con­cerns, the St. Mary’s com­mis­sion­ers have pro­posed an 18-month ban on the use of county docks for fu­ture aqua­cul­ture farm­ers who are awarded 20-year leases from DNR to grow shell­fish in pub­lic waters.

“We’ve heard from peo­ple who can’t trot­line any­more … We’ve heard from peo­ple who can’t nav­i­gate ar­eas in front of their homes and off their piers … but we also un­der­stand it’s a bal­ance to clean­ing up this bay that needs to be ad­dressed,” Com­mis­sioner Mike He­witt (R) said dur­ing the com­mis­sion­ers’ meet­ing Tues­day morn­ing be­fore the pub­lic hear­ing.

Put into ef­fect in 2010, the DNR com­mer­cial aqua­cul­ture pro­gram al­lows aqua­cul­ture farm­ers to pur­chase wa­ter col­umn leases at $25 an acre, or sub­merged land leases, also known as bot­tom leases, at $3.50 per acre.

Since the county can­not su­per­sede state law, and since the lease ar­eas are in state-reg­u­lated waters, the com­mis­sion­ers are seek­ing to “get a han­dle on” leases in the area through land use and zon­ing, Com­mis­sioner Pres­i­dent Randy Guy (R) said in an in­ter­view.

The mora­to­rium would limit all com­mer­cial dock use re­lated to on- and off-load­ing of shell­fish and equip­ment, and would af­fect

aqua­cul­ture farm­ers who ob­tain leases af­ter the mora­to­rium goes into ef­fect. It would not af­fect wa­ter­men who do not lease from DNR.

“There is ab­so­lutely no mech­a­nism to en­force” the mora­to­rium, Com­mis­sioner John O’Con­nor (R) said dur­ing the hear­ing.

“I don’t know that we needed a mora­to­rium to spark this, but some­times you need to light a fire to get the other peo­ple in the room,” he said.

The or­di­nance has been pro­posed at the same time that DNR es­tab­lished a fo­cus group, of which Guy is a mem­ber, to re­view the aqua­cul­ture pro­gram and re­view its cur­rent pro­cesses and reg­u­la­tions.

“Many of these is­sues came up dur­ing depart­ment lis­ten­ing ses­sions held across the state,” DNR com­mu­ni­ca­tions direc­tor Stephen Schatz said in an email.

The com­mis­sion­ers are pri­mar­ily con­cerned with wa­ter col­umns, which are close to the sur­face of the wa­ter and marked by buoys, rather than the in­vis­i­ble sub­merged land leases.

Wa­ter col­umns are not per­mit­ted within 50 feet of the shore­line, or within 150 feet of reg­is­tered pound nets used for fish­ing by wa­ter­men.

Still, wa­ter­front home­own­ers and wa­ter­men have found is­sue with the leases, which they can choose to protest through DNR. A num­ber of res­i­dents near Calvert Bay off the Po­tomac River ex­pressed con­cern about nearby leases that they feel limit their ac­cess to the bay.

Deb Ra­ley of Ridge tes­ti­fied that she and three other home­own­ers were re­cently in­volved in a four-year dis­pute against a wa­ter col­umn lease in Calvert Bay, due to con­cerns of nav­i­ga­tion safety.

The orig­i­nal lease, which was re­duced from 76 acres to 35.5 acres, is one of four wa­ter col­umn leases that “take up the area from the mouth of Calvert Creek to the mouth of Smith Creek,” Ra­ley said in an in­ter­view.

Wa­ter col­umn cages can­not ex­ceed 18 inches in depth, with 6.5 feet of depth per­mit­ted above the cages dur­ing mean low tide, ac­cord­ing to the DNR ap­pli­ca­tion. A map pro­vided to Ra­ley by DNR showed that some leases in Calvert Bay were any­where from 9.5 inches to 2.8 feet be­low the sur­face in mean low wa­ter, Ra­ley said.

“I have no con­cerns about crab pots in the area, I have no con­cerns about cages on the bot­tom,” Ra­ley said dur­ing the hear­ing. “I do have con­cerns when you have … cages go­ing into the shal­lows.”

Dur­ing the win­ter when the low tide of the creek iced over, Ra­ley said, she ob­served cages stick­ing out of the wa­ter.

“I have more prob­lem nav­i­gat­ing through crab pots than I do a set oys­ter area, where I can see the floats,” Dan Re­barchick, a Hol­ly­wood res­i­dent and wa­ter­front home­owner, said dur­ing the hear­ing. “But when I see crab pots … I know the man’s mak­ing a liv­ing.”

He added, “I feel that some peo­ple may not like to see them out­side of their house more so than the haz­ard they cause.”

The mora­to­rium was pro­posed af­ter 13 wa­ter­front home­own­ers ex­pressed their con­cern to the com­mis­sion­ers about the leases near their prop­erty lines.

There is cur­rently no avail­able in­for­ma­tion on the af­fect of wa­ter col­umn leases on wa­ter­front prop­erty value, but some wa­ter­front home­own­ers who spoke felt that their an­nual prop­erty tax rates should be ad­justed due to the wa­ter col­umns.

Theresa Kuhns, gov­ern­ment af­fairs direc­tor for the South­ern Mary­land As­so­ci­a­tion of Re­al­tors, said the pub­lic pol­icy com­mit­tee of Mary­land Re­al­tors had con­vened a statewide task force to ad­dress con­cerns about “the high rate of leases be­ing granted, and its im­pact on en­vi­ron­ment, [wa­ter­front home­owner] rights, and no­ti­fi­ca­tions pro­vided to both the own­ers and agents rep­re­sent­ing any af­fected prop­er­ties for pur­chase.”

Dur­ing the an­nounce­ment of the hear­ing ear­lier this month, Guy said DNR was not ad­her­ing to its pol­icy of no­ti­fy­ing county gov­ern­ment when aqua­cul­ture leases were awarded. A lease­holder is re­quired by DNR to no­tify ad­ja­cent home­own­ers when they have se­cured a lease, al­though they are not re­quired to no­tify all nearby prop­erty own­ers who may be af­fected.

DNR “is in the process of de­vel­op­ing an on­line list­ing of pend­ing lease ap­pli­ca­tions” avail­able for pub­lic ac­cess “well in ad­vance of the pub­lic no­tice,” DNR sec­re­tary Mark Bel­ton said in an Aug. 1 let­ter to the com­mis­sion­ers.

Twenty-four wa­ter col­umn leases are lo­cated in St. Mary’s, the most out of the 11 coun­ties with aqua­cul­ture leases in nearby pub­lic waters. The county is sec­ond to Dorch­ester on the Eastern Shore for the most to­tal aqua­cul­ture leases, with 97 wa­ter col­umn and sub­merged land leases. Around 50 lease ap­pli­ca­tions are cur­rently un­der re­view, ac­cord­ing to DNR, a process that, by de­sign, can take years to com­plete.

One St. Mary’s shell­fish farmer, Richard Pelz, who has been grow­ing oys­ters in the county for 30 years, waited eight years to have his first wa­ter col­umn lease ap­proved, and has been in the re­view process for three more leases on St. Jerome Creek for three and four years, he said dur­ing the hear­ing.

Im­pos­ing the or­di­nance could au­to­mat­i­cally put Pelz in vi­o­la­tion of any lease he was awarded, be­cause of a “use it or lose it” clause in the lease con­tract, Pelz said.

He uses his own pri­vate dock for on- and off-load­ing. A few res­i­dents who tes­ti­fied found is­sue with the lan­guage of the mora­to­rium, feel­ing it did not ad­e­quately dis­tin­guish be­tween the types of docks that would not be al­lowed for com­mer­cial use, po­ten­tially in­fring­ing upon the rights of wa­ter­front home­own­ers with piers.

A num­ber of lo­cal and state or­ga­ni­za­tions turned out to op­pose the mora­to­rium and its sup­port­ers, in­clud­ing the St. Mary’s County Farm Bureau, East Coast Shell­fish As­so­ci­a­tion, Coastal Con­ser­va­tion As­so­ci­a­tion, South­ern Mary­land Shell­fish As­so­ci­a­tion and Ch­e­sa­peake Bay Foun­da­tion.

Ac­knowl­edg­ing the com­mis­sion­ers’ and res­i­dents’ as­ser­tions that the county should be more in­volved in the leas­ing pro­gram, Doug My­ers, Mary­land se­nior sci­en­tist with the Ch­e­sa­peake Bay Foun­da­tion, said the mora­to­rium was “coun­ter­in­tu­itive.” It would “halt any data points that you’re try­ing to col­lect from new leases,” My­ers said. The or­di­nance also “does not ac­com­plish the changes for the com­mu­ni­ca­tion pro­ce­dures,” he said, adding that it seems to op­pose a stip­u­la­tion of the county’s eco­nomic de­vel­op­ment plan that seeks to ex­pand aqua­cul­ture.

There are “count­less ben­e­fits” to hav­ing oys­ters in the bay, Al­li­son Colden, fish­eries sci­en­tist with the Ch­e­sa­peake Bay Foun- da­tion, said in an in­ter­view last week. A sin­gle oys­ter fil­ters up to 50 gal­lons of wa­ter a day, re­mov­ing ni­tro­gen that fuels al­gae blooms and clear­ing up the bot­tom so grasses can grow, which at­tracts marine life. They also pro­vide “habi­tat for both fish and smaller an­i­mals that nor­mally live on oys­ter reefs,” Colden said.

The state has made it a pri­or­ity to re­cover the Ch­e­sa­peake Bays oys­ter pop­u­la­tion, which ais still a “tiny frac­tion of what it used to be his­tor­i­cally,” Colden said. The first stock as­sess­ment on bay oys­ters is ex­pected in De­cem­ber, but aqua­cul­ture lease­hold­ers har­vested 60,000 bushels of oys­ters in 2016, up 1,019 per­cent since 2012, ac­cord­ing to the Univer­sity of Mary­land.

“If you hin­der the growth of shell­fish aqua­cul­ture, you’re doom­ing the restora­tion of our bay and its trib­u­taries,” Brian Rus­sell, pres­i­dent of the South­ern Mary­land Shell­fish As­so­ci­a­tion and aqua­cul­ture farmer with Shore Thing Shell­fish.

“Many of these wa­ter­front land own­ers en­joy our oys­ters, but don’t want to see the process oc­cur­ring off their prop­erty,” he said.

“The Depart­ment of Nat­u­ral Re­sources is the is­sue,” O’Con­nor said. “DNR didn’t lis­ten to the St. Mary’s cit­i­zens. They failed us. … So we’re sit­ting here hav­ing this dis­cus­sion be­cause of the fail­ures of the peo­ple in the state to lis­ten to every­one that’s in­volved.”

DNR held nu­mer­ous pub­lic ses­sions over the last decade as they de­vel­oped reg­u­la­tions for aqua­cul­ture.

The St. Mary’s com­mis­sion­ers will ac­cept pub­lic com­ment un­til next Tues­day, and will pro­vide up­dates on the mora­to­rium dur­ing their meet­ing on Sept. 11.

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