Lubec leaps into jurisdictional dispute over aquaculture leasing

While Lubec residents earlier this month narrowly adopted a local aquaculture ordinance in response to two salmon farm lease renewal requests, whether the ordinance will be legally binding and whether the town has the capacity to administer it are questions that have not yet been determined. Voters approved the ordinance 94 to 81 at the August 6 annual town meeting that drew a large crowd. The close vote may be partly reflective of changing demographics in the Quoddy area, which for decades has been fairly accepting of fish farming.

The ordinance, though, is not expected to affect the two pending 32-acre lease renewal applications by Cooke Aquaculture, which are for sites off Rodger's Island and off Johnson St. Both sites have not been used for some time because of concerns about sea lice.

Lubec resident John Delaney, who was among those seeking the adoption of the local ordinance, notes that to his knowledge Lubec's ordinance is the first one that has been enacted by means of a citizens' petition, which garnered 137 signatures. "Our motivation for getting the ordinance adopted was simply to ensure that Lubec has a seat at the table in all future decision‑making related to industrial-scale aquaculture operations," he says. "Our waters are vital to the town's well‑being, as they support activities such as lobster and scallop fishing as well as ecotourism, so we need to share a measure of control with the state and aquaculture companies."

Lubec is among the communities along the Maine coast that the group Protect Maine's Fishing Heritage Foundation has been working with to enact moratoriums and ordinances limiting aquaculture proposals. The foundation's main concerns are both competition with fishermen for space and environmental effects of aquaculture. According to its website, Protect Maine's Fishing Heritage believes that "fishermen and marine harvesters are losing bottom and fishing space to large aquaculture leases." The foundation provides municipalities with possible language both for moratoriums on any new large‑scale aquaculture projects and for municipal ordinances that would require a permit from the town's planning board before an aquaculture facility could be built.

Crystal Canney, the organization's executive director, says the foundation's ordinance template was modified by residents of Lubec. "When towns have chosen to use our ordinance language as a starting point, they sometimes make changes that better suit the needs of their community."

The Lubec aquaculture ordinance states that the town "finds that additional local review is necessary" for industrial-scale aquaculture sites and "declares it is necessary" to regulate them. Industrial-scale sites that are not in compliance with the ordinance are prohibited. "Industrial scale" is defined by the ordinance as meaning those sites that are larger than five acres. A company planning such a site must obtain a permit from the town's planning board. Before issuing a permit, the board must find that the applicant has the technical and financial capacity to operate the site; that the proposal will not have an adverse effect on existing recreational, fishing or navigational uses; that it will not have an unreasonable adverse visual impact or unreasonably harm habitats or the natural environment. The town's code enforcement officer and harbormaster may inspect any site to determine compliance with the ordinance.

According to Canney, eight towns have either moratoriums or ordinances -- Cutler, Penobscot, Winter Harbor, Gouldsboro, Lubec, Beals, Waldoboro and Harpswell. However, moratoriums in some towns have expired and not been renewed. According to the Maine Aquaculture Association, the moratoriums in Machiasport, Gouldsboro, Harpswell, South Bristol have ended, with only Cushing and Calais having active 180-day moratoriums. Cutler, Winter Harbor, Penobscot and Waldoboro had moratoriums that led to the adoption of active ordinances. Lubec is the only municipality with an ordinance passed at a town meeting.

With municipalities adopting moratoriums or ordinances, the state has stepped in, questioning if they have the right to do so, since the Maine Department of Marine Resources (DMR) has exclusive jurisdiction to lease state waters for aquaculture under state law. However, both the foundation and some towns are questioning that exclusive authority.

According to Jeff Nichols of the DMR, the department's position is "that while some municipalities may have limited jurisdiction to issue aquaculture permits for sites in the intertidal zone, they do not have the authority to restrict or limit aquaculture leasing or licensing in, on or under Maine's coastal waters. The department has exclusive jurisdiction, granted in statute, to issue leases and licenses for aquaculture in state waters."

In response to the DMR's position, Protect Maine's Fishing Heritage solicited an opinion from attorney David Kallin of the law firm Drummond Woodsum that states that the authority of the DMR to lease waters "does not preempt the authority of another entity to regulate the activity. For example, a private landowner may have exclusive authority to lease the land it owns. This exclusive authority does not preempt the ability of local, state or federal regulations of that land." He adds that "municipalities have broad home rule authority within their boundaries" that he says is not extinguished by the DMR's authority to lease state waters.

Nichols, though, points out that municipalities do have many opportunities to participate in the evaluation of proposed leases. "Through regional meetings and training programs DMR's aquaculture program continues to work with municipalities to provide support for municipal participation in issues including aquaculture and shellfish management."

Sebastian Belle, executive director of the Maine Aquaculture Association (MAA), agrees with Nichols about the DMR's statutory authority and points out that people "need to read the existing law" on local involvement in the leasing process. Municipalities are given an elevated status during the process, with applicants required to meet with municipal officials, followed by a scoping session where municipal officials can make suggestions and finally municipalities are automatically granted intervenor status for hearings. Municipal ordinances concerning aquaculture "do not trump" state regulatory authority, Belle says. "We don't believe they will stand up if legally challenged."

Belle also is not sure that municipal officials want more authority over aquaculture leases, since with authority comes responsibility. "They need resources and expertise to administer an ordinance," he notes, with no training available for those officials. If ordinances are challenged in court, municipalities will incur significant legal fees, and attorneys that MAA has consulted believe the municipality would lose.

"Even if they win, how will they fund the responsibilities they just asserted and pay for technical expertise?" If they try to enforce an ordinance without having technical expertise, the municipality will likely lose in court, Belle says.

Adopting a local aquaculture ordinance "sends a strong negative message to a company like Cooke that is working hard to engage with communities and become a better community member," Belle asserts. Also, Cooke employees may wonder whether "they have a future in that community."

The jurisdictional tug-of-war between some municipalities and the state could become more heated with the enactment of a new law this year concerning the aquaculture lease renewal process. "We expect to see more towns jump on board and pass ordinances after the passage of LD 1722," says Canney. "That bill is a rubber stamp from Augusta on aquaculture renewals as it eliminates the public hearing process. Given the push from Augusta for aquaculture at any costs, communities, we feel, will look for a way to have their voices heard to appropriately regulate this industry."

While Nichols agrees that, because of the recently passed law, standard lease renewals no longer require an option for a public hearing, the law does provide "an opportunity for meaningful public participation," he says. The DMR commissioner must provide nearby landowners, municipal officials and the public with notice of the renewal application and guidance on providing comments on the renewal. The public then has 30 days to submit comments on the renewal application. Both of the pending Cooke renewals in Lubec waters will be reopened for public comment due to the change in the law.

Lubec process outlined

Concerning the process that was followed in Lubec for the adoption of a local ordinance at the recent town meeting, according to Carol Dennison, chair of the select board, the board had been advised by the Maine Municipal Association that the town did not have jurisdiction over the coastal waters. "We felt it would put the town in legal jeopardy if we had to defend the ordinance with no jurisdiction" over the leasing process.

While the select board voted 4-1 not to have the board place the proposed ordinance on the warrant for the town meeting, they did allow it to be put on the warrant through the citizens' petition process outlined in the town charter in order "to let the people decide." Dennison notes that the ordinance "was not vetted by the town, it was voted in by the people." And while some local ordinances require a public hearing before they can be adopted, a hearing was not held on the aquaculture ordinance.

The ordinance has now been given to the planning board to review, but Dennison says, "Before the ordinance is acted on, we will make sure it is legal, as we don't have jurisdiction over state waters." Concerning whether the town has the resources and technical expertise to review aquaculture lease proposals, she says, "It would be a challenge to enforce the ordinance." She will be recommending that the ordinance be reviewed by the town's attorney.

Concerns about lease renewals

As for the two current lease renewals, Delaney has heard concerns about their locations. One is whether salmon pens in Johnson's Bay will have a detrimental effect on businesses that rely on seasonal visitors. One of the sites is near the Fisherman's Wharf Restaurant, the Inn on the Wharf and a residential neighborhood. "And one lease site is directly next to Rodger's Island, a conservation easement owned by the Town of Lubec," Delaney notes. "People are asking if that's the best place for a salmon pen array." Concerns range from the environmental impact on the bay's ecological health to noise and light pollution.

In response to concerns about the lease sites, Steven Hedlund, director of public affairs for Cooke Aquaculture USA, says, "Our salmon farms are sited within state-prescribed lease boundaries under standards that address the optimum use of marine resources, while avoiding negative impact to other fishery activities, to flora and fauna, and avoiding any adverse impact to public navigation. We also have vested rights in our aquaculture facilities that are sited fully in accord with state law."

Of the conflict over the lease sites, Belle notes that coastal Maine communities are going through demographic shifts that have led to even working waterfront communities experiencing gentrification, with new residents having different values than families who have lived in a town all of their lives. "They have questions and concerns" not only about aquaculture but also about working waterfronts in general.

As for Cooke's two lease renewals specifically, Belle says that fish farmers in the Cobscook Bay area changed their operations significantly in response to the outbreak of infectious salmon anemia (ISA) and have adopted best management practices of a bay management system, with site rotation and fallowing of cage sites. The language for that best management system then was used by seafood certification companies. "Very innovative techniques were pioneered for more sustainable farming practices," Belle notes. In order to allow for site rotation and fallowing, companies need an adequate number of lease sites in the bay, which is why the two leases in Lubec waters are important to Cooke. "It's an effective way to deal with sea lice without chemicals," he says. "Without enough sites, a company can't follow best management practices." The aquaculture association director says the demand for Maine salmon "is extremely strong" and the industry needs to protect the Maine brand by following those practices.

Belle also notes that tourism, the arts, fishing and fish farming all coexist in Eastport and that, for at least 14 or 15 tourism-related companies throughout the state, talking about aquaculture is part of their tourism business. "Fish farming can be a tourism attraction," he says.