The shoreline at Nayatt Point Court, near the proposed location of a half-acre oyster farm in Barrington. (Michael Salerno/Rhode Island Current)
Six years, countless meetings and one court battle later, Barrington resident Ed Troiano has finally secured the approval needed to open a half-acre oyster farm in upper Narragansett Bay.
But the public comment session leading into the Rhode Island Coastal Resources Management Council’s (CRMC) 4-2 vote on Sept. 12 has opened the door to what could be a pivotal change to public hearings in future applications.
“I have never had a hearing like this,” council member Kevin Flynn said during the Sept. 12 meeting. “This is completely new territory for me.”
Troiano’s proposal for underwater oyster cages just off Barrington’s Nayatt Point is hardly the first contested aquaculture application to come before the coastal regulatory agency. What was different was the public hearing.
Three shellfishermen got up to speak, voicing concerns with how the project would interfere with quahogging in the area.
I have never had a hearing like this. This is completely new territory for me.
– CRMC member Kevin Flynn
As each spoke, Mary Shekarchi, Troiano’s attorney interjected, calling out “objection.” She also was offered the opportunity to cross-examine all three opponents, though she did not have any further questions for them.
Troiano and Shekarchi both declined to comment for this story.
The quasi-judicial process was mandated by the Providence/Bristol County Superior Court, to which Troiano appealed after the CRMC denied his application under a tie vote in 2018. His argument: The council violated its own rules by not allowing him to cross-examine the people who spoke against his proposal in public comment.
The court in its April 2022 decision sided with Troiano, sending the case back to the council to hear the case anew with the caveat that it must allow Troiano to cross-examine every opponent during the public hearing.
According to the court decision, the CRMC’s own rules allow for applicant cross-examination, particularly in contested cases. But it’s never happened before, potentially because no other applicants have asked for it.
Maybe now, they will.
Tiverton oyster farm applicants keeping close watch
“If that’s what the court is saying, it may become a precedent,” Flynn said during the meeting.
He was not available to comment further after the hearing. But others are eyeing the case with interest, including Patrick and John Bowen, whose own contested oyster farm application in Tiverton is still pending before the council.
In a recent interview, the brothers said they may also ask for cross-examination during the yet-to-be scheduled public hearing on their application, though they were still considering their strategy.
“For the applicants to be able to not only call out but ask questions of those who were raising objections is always a positive thing,” said John Bowen. “It will hold them to a little more accountability.”
Others were not so sure the change was a positive one.
Catherine Robinson Hall, one of two council members to vote against the application, worried that it was unfair for opponents to face cross-examination from an attorney when they didn’t have their own lawyer to respond.
“Procedurally, I don’t think we have the authority to render a decision,” she said during the Sept. 12 meeting. “This council didn’t have the opportunity to hear from staff experts …nor did members of the public commenting on that issue sit at an equal footing when subject to cross examination by an attorney.”
Robinson Hall declined to comment further, referring additional questions to the head of the CRMC.
Laura Dwyer, a spokesperson for the CRMC, offered an emailed response on Friday.
“CRMC is concerned that the ability to cross-examination citizens who heretofore have offered their opinions through a public comment process may stifle such participation,” Dwyer said. “Regardless, public participation at CRMC hearings is an essential part of what the Council does, and that it always will ensure the public has a full voice in any matter that is before it.”
Another disadvantage: a person-by-person cross-examination could drag on the already hourslong meetings even more, said Bob Rheault, president of the Ocean State Aquaculture Association.
“We’re going to have a backlog of permits like we’ve never dreamed of before,” Rheault warned. “You’re taking an already glacial process and making it even slower.”
Indeed, contested oyster farm applications, including those from Troiano, the Bowen brothers and Matunuck Oyster Bar owner Perry Raso, have sat pending before the council for years, slowed partly by opposition but also by agency staffing shortages, among other factors.
We’re going to have a backlog of permits like we’ve never dreamed of before. You’re taking an already glacial process and making it even slower.
– Bob Rheault, president of the Ocean State Aquaculture Association
In Troiano’s case, the primary source of opposition came from a group of shellfishermen, who alleged that the oyster farm would impede their ability to harvest quahogs from the waters of the upper Narragansett Bay.
Troiano contended otherwise. In his application, he explained how he chose the spot 600 feet off the coast of Nayatt Point after consulting with shellfishermen and examining state data about the abundance of quahogs in that area. The 2018 staff report recommending council approval of the application concluded similarly, noting an assessment found .27 quahogs per square meter – well below the standard 3 quahogs per square meter.
That assessment is outdated, said the Rhode Island Shellfisherman’s Association, sharing anecdotal evidence of an abundance of quahogs in subsequent years and urging the agency to do a new study.
“You can’t just stick to a snapshot, these things change,” Michael McGiveney, president of the association, said during the Sept. 12 hearing. “A survey six years ago doesn’t have much relevance to what’s going on today. Six years ago, it was very low but now it could easily be double that.”
The Superior Court ruling, however, required the council to reconsider the case based on the original facts, including the prior site assessment.
McGiveney and other members of the association did not return follow up inquiries for comment on the decision.
As part of the CRMC’s approval, Troiano agreed to remove his gear from Dec. 1 to March 15 to allow shellfishermen greater access. Other stipulations include a prohibition on expansion of the oyster farm, limited working hours during winter months, and a $10,000 performance bond.
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