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DMR tells towns their regulatory reach is limited

Posted on September 13, 2022

The Maine Department of Marine Resources is cautioning coastal Maine towns to steer clear of state waters in their efforts to craft rules and standards to gain greater control over industrial-scale finfish farming on land or in the ocean. The state agency recently reiterated that it has “exclusive” authority to grant leases for fish-farming in the state waters and part of the intertidal zone and asked to review any draft ordinances before they are put to a town vote.

In an Aug. 18 letter, DMR Deputy Commissioner Meredith Mendelson noted that some coastal communities may be considering a freeze on aquaculture or drafting ordinances to regulate fish-farming in state waters. In an Aug. 18 letter, she said that the state agency has “exclusive” authority to approve or deny applications for commercial farming and scientific research of marine organisms in coastal waters, on or under the sea floor and in part of the inner tidal zone. To date, Addison, Beals Island, Cutler, Machiasport and Winter Harbor temporarily have halted aquaculture-related operations while town officials draft related regulations. Gouldsboro was the first town to impose a moratorium specifically on large-scale finfish aquaculture. The town already has renewed the six-month ban once as its Planning Board continues to work on an ordinance for public review and vote.

“Municipalities have limited jurisdiction in the intertidal zone if they have an approved municipal shellfish ordinance and may be authorized to issue municipal aquaculture permits, but this does not limit in any way the Commissioner’s authority to issue leases and licenses in coastal waters of the State,” Mendelson wrote in the letter to coastal Maine town managers and elected officials. “If your community is considering such moratoria or ordinance development, the Department would greatly appreciate the opportunity to review draft language prior to adoption so that we may provide comment on any jurisdictional concerns.”

Protect Maine’s Fishing Heritage, a statewide coalition comprising citizens and fishermen and women, has assisted and provided legal counsel to six of the seven aforementioned coastal towns. Responding to the Aug. 18 letter, the coalition’s legal counsel questioned Mendelson’s position that its authority regulating in-water aquaculture leases preempts other state, federal and local authorities’ ability to regulate such projects. Drummond Woodsum attorney David Kallin noted the Maine Bureau of Parks and Lands has exclusive authority to issue submerged-lands leases, yet those proposed activities and structures often still require other local, state and federal permits and approval.

“Simply put, municipalities have broad home rule authority within their boundaries,” Kallin asserted. “The fact that DMR may be the exclusive decision-maker on whether or not the State wishes to become the landlord for certain industrial-scale aquaculture interests does not extinguish that broad home rule authority.”

Gouldsboro and other Maine towns’ actions to exercise greater authority over large-scale aquaculture development has been sparked by the scale of foreign-owned, multinational companies’ projects to locate their fish farms and processing operations in or closer to the United States. The U.S. is the world’s top importer of salmon and second largest consumer of seafood. In Maine, the companies seeking to raise fish here and corner U.S. market share include Dutch-owned Kingfish Zeeland’s $110 million yellowtail kingfish venture in Jonesport, Norway’s Nordic Aquafarm’s $500 million salmon project in Belfast, Whole Oceans’ $250 million operation in Bucksport and Norwegian-backed American Aquafarms’ proposal to raise 66 million Atlantic salmon in Frenchman Bay. The latter company’s state applications were terminated by the DMR and DEP in April.

In Gouldsboro, the Planning Board continues its work to craft rules and standards governing industrial-scale finfish aquaculture anywhere on land in town and within the shoreline’s intertidal zone. The evolving licensing ordinance increasingly steers clear of the sea where the DMR and Maine Department of Environmental Protection (DEP) and U.S. Army Corps of Engineers have jurisdiction. The DEP and U.S. Army Corps regulate, respectively, wastewater discharge and construction and navigation in state waters.

At their Aug. 16 meeting, the Planning Board still was unable to define yet exactly how many pounds of finfish landed annually constitute an industrial-scale operation. To determine that number, they planned soon to query former Stinson’s Seafood and Maine Fair Trade Lobster managers about the peak volume of herring and lobster processed at the now-dormant Prospect Harbor plant acquired by Norwegian-backed American Aquafarms for $3.640 million in April. Maine Fair Trade Lobster processed more than 9 million pounds of lobster in 2015.

Defining an industrial-scale finfish farm is critical to the board’s crafting of the “Finfish Aquaculture Licensing Ordinance” because it will determine the permitted scale of operation to process Atlantic salmon, trout, sturgeon, yellowtail and other species of finfish anywhere in Gouldsboro. The ordinance, which would not apply to small-scale farms landing and processing seaweed, oysters and other marine species, is being drafted as a result of Gouldsboro’s current finfish aquaculture development moratorium imposed Nov. 15, 2021. More than 200 Gouldsboro residents voted for the temporary freeze that was brought about by American Aquafarms’ terminated plan that included processing 66 million pounds of finfish at the former Maine Fair Trade Lobster facility in Prospect Harbor.

When the moratorium was imposed, the Planning Board was mandated simultaneously to review and strengthen Gouldsboro’s land use, site plan, subdivision and shoreland zoning ordinances vis-à-vis large-scale finfish aquaculture development. In late April, a sweeping draft ordinance, which would have regulated both land- and ocean-based farms raising any marine creatures and plants, was challenged by Mendelson. The DMR Commissioner noted her agency has sole authority over proposed leases in coastal waters. The Maine Department of Environmental Protection and the U.S. Army Corps of Engineers

Anticipating the 180-day moratorium’s expiration May 15, selectmen voted 4-0 on April 28 to extend the ban another six months at the Planning Board’s request. Since then, the board and Rudman Winchell attorney Tim Pease narrowed the 14-page draft licensing ordinance’s focus to industrial-scale finfish aquaculture — processing and hatching fish to replenish stocks — in Gouldsboro including the intertidal zone. Valid for just one year, finfish aquaculture licenses would be subject to review before being renewed for another year. License applicants also would be required to submit a development plan that details how the proposed operation would benefit the community and region economically. Updated annually, the plan would specify services and suppliers needed to support the operation. It would spell out existing or envisioned infrastructure, buildings and equipment such as wharves, vessels, barges, trucks and equipment. It also must identify local fisheries and other aquaculture ventures and the proposed finfish farm’s potential impact on them and mitigation.

In the six-article draft ordinance, storage on land of a finfish farm’s compacted waste, fish guts, waste biproducts, pesticides and antibiotics would be prohibited. The volume and storage duration on land of gasoline, propane, diesel fuel, natural gas, industrial solvents and chemicals would be restricted.

“We can set limits on all that,” Planning Board Chairperson Ray Jones said. “Those things can be listed.”

An application fee and performance standard guarantees — likely in the form of a bond — would be required. The approved operation may require monitoring and periodic reporting and that cost would be born by the finfish farm. The farm would cover the cost of an independent auditor should the need arise. The town also would have the authority to inspect the facility at any time without prior notice.

Of concern, too, was industrial finfish farms’ anticipated water and power consumption to process their harvest at the Prospect Harbor facility or elsewhere in town. Whether it’s water or electricity, Solid Waste Committee member Gerry Kron said such operations should not be allowed to deplete the area’s energy or aquifer capacity.

“It should be on their shoulders to work with our power company. They should shoulder the cost because it could be very, very expensive,” Kron warned.

At the Aug. 16 meeting, planning board members recognized that some of the draft ordinance’s requirements already are mandated in Gouldsboro’s site plan, shoreland and solid waste ordinances. It was suggested that the redundant text be removed, but a reference be made to the relevant ordinance. They also acknowledged that the town does not have jurisdiction beyond the intertidal zone — land stretching between the high and low tide marks on shore — and they weeded out the design of ocean pens and other aspects of in-water finfish farms that they lack authority to control.

As of last Thursday, Gouldsboro had spent $57,000 of the $100,000 budgeted in the town’s legal reserve. The Planning Board Chairperson said board members continue to review, alter and edit language in the licensing ordinance draft. Once the ordinance is finalized, Jones said the board will send it to the town attorney to scrutinize and ensure it would stand up in court. When the moratorium expires Nov. 15, he anticipated that the board will require another six-month extension to hold a public hearing and put the proposed ordinance to a vote at the 2023 annual town meeting in June.

In her latest letter, Mendelson said current Maine law and the DMR’s leasing process suffice for towns, citizens and other stakeholders to weigh in as part of the regulatory process governing aquaculture projects. She said, “We believe our existing process is robust and provides adequate opportunity for municipal engagement, as well as public participation, to ensure appropriate protection of existing uses.”


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