LETTERS, STATEMENTS & UPDATES

Text and PDF of comments submitted in response to the SCALP program.

June 26, 2020, submitted PDF*

Petition to the SCALP 10-Year Review Committee – Comment on Site Maps 

From:  Over 500 East Hampton residents who use and enjoy Gardiner’s Bay extensively
Date:  June 17, 2020

We citizens who live near and enjoy Gardiner's Bay, offer a petition in comment on the SCALP program, open to additional offline and online signatures by members of the public over time. Committee members, and anyone else reviewing this petition, will be able to see the number of signatories rising daily, to better understand the full magnitude of the user conflicts caused by the Suffolk County Aquaculture Lease Program, as implemented in the Town of East Hampton. (See the website [https://citizensofgardinersbay.org/] and the online petition [Support Responsible Aquaculture , Keep Our Bays Safe And Navigable! at Change.org).  

Please understand:

  • We support our local Town's aquaculture program, but strongly oppose the County's SCALP program as implemented in the Town of East Hampton. 
  • Over 10 years ago, ALPAC (Aquaculture Lease Program Advisory Committee) was mandated to identify lease sites that would, "minimize user conflicts" and "establish shellfish farms at locations that do not pose conflicts with fisherman or other bay users." (SCALP Program Mgt. Guide pgs. 8 and 9)
  • However, the 22 lease sites selected in East Hampton have failed to "minimize user conflicts." Faulty lease sites were selected because the only input was from Brad Loewen, speaking for the baymen, who didn't want sites anywhere, and Bob Valenti, who wanted some near the fish factory for his own use. There was no input from local residents or any other users of the bay. 
  • It should have been clear from the Town's own LWRP, that these lease sites were inappropriate and destined to cause conflict: "The sheltered waters of Gardiner's Bay and more open exposure of Napeague Bay bordering the Reach receive extensive boating use of all types, including sailing and motor boating, canoeing, kayaking, and rowing, windsurfing, waterskiing and jet-skis." 
  • We, and the outpouring of public comment, confirm this extensive use is real. In addition to those listed in the LWRP, we would add that kiteboarding, stand-up paddling, and more, also regularly occurs in this region. 
  • Further, many comments have pointed out that the use of floating gear is illegal. It violates public navigation rights protected by the Public Trust Doctrine, and exceeds the County authority to lease bottomlands, but not surface waters. 
  • The County's mandated 10-Year Review process is intended to correct these past mistakes and to, "determine if and/or how the program should be changed and implemented in 2020 and beyond" and to "review, revise and map updates to shellfish cultivation zones." (SCALP presentation Town of East Hampton January 2019).
  • Clearly, the overwhelming majority do not want SCALP leases in Town waters:
    • The fishermen do not want them
    • The marina industry does not want them
    • The residents and users of Northwest Harbor do not want them
    • The residents and users of Gardiner’s Bay do not want them
  • All traditional users of the bay shores and waters can and do share that use, happily, because they merely pass through. They navigate, as is their right. But the new breed of surface aquaculturists do not share, because they do not pass through. They occupy the surface. They prevent any other user group from use of, or passage across, large areas of occupied surface waters. This is unneighborly, and dangerous, and impairs public navigation rights.
  • We are not willing to lease other recreational assets such as beaches and parks for the exclusive use of commercial enterprises, so why would we surrender our waters to this County program that harms so many for the private benefit of so few?  
  • Tolerance of any existing or future floating gear leases goes against the long-standing policy of our Town and Trustees to preserve public access to our shores and waters. Surrendering public assets for the exclusive use of for-profit businesses would set a dangerous legal precedent that would no doubt be used against the Town and Trustee's efforts to maintain public access in the future.

Therefore, we ask the 10-Year Review Committee to recommend the following: 

    • Reduce the SCALP presence in East Hampton by eliminating lease sites 838 through 847 and 854 through 859 due to the obvious navigational conflicts.
    • Allow sites 848-853 to remain with the stipulation they are for traditional gear that rests on the bottom only, with minimal surface buoys. Mandate the relocation of sites 840 and 841, to 849 or 850, or up-island. Note that 840 and 841, in the center of the local boating basin, are in the worst possible location re user conflicts and must be moved if future conflicts are to be avoided. Keep in mind that under the terms of the leases issued, the County has the ability and right to relocate a farmer to another site at any time, and enforce changes in program rules. 
    • Disallow any use of floating gear in Gardiner’s Bay due to the obvious navigational conflicts. If used elsewhere, floating gear should only be allowed in locations with no objections from other users. SCALP must regulate all gear to insure it does not infringe on public navigation rights protected by the Public Trust Doctrine as recognized in New York State law.
    • Insist the County cancel vacant leases that are in default (not being farmed). For instance, it appears that sites 850 and 853 have never been farmed and are thus in default. 
    • Of the County alternative maps, we find Alternative 6 the most reasonable for East Hampton because it eliminates most of the SCALP aquaculture zone. However, sites 840, 841 and 856 need to be removed as well. These should not be grandfathered in or allowed to stay until their bottom lease expires.

SCALP lease sites in Gardiner's Bay
Lease sites in Gardiner's Bay

The mandate of the 10-Year Review Committee, and the SCALP program administrators to “minimize user conflicts” would be best served by the above recommended program changes. We ask that you report the extensive user conflicts identified here and ask that you now weigh the input from local residents most heavily since that input was entirely disregarded 10 years ago. Please note, citizens signing here may also submit their own separate comments, with additional insights. 

Thank you all for the many hours and days and extensive work you have put into the 10- Year Review. We hope you can agree, we can all be pro-aquaculture, and still conclude that SCALP leases are just not a good fit for the residents and waters of East Hampton.

The Citizens of Gardiner's Bay

Please note: Petition dated June 17, 2020 was formally submitted on June 26, 2020. Names of those signing the online and/or offline petition are not published, yet have been submitted to SCALP administrators.


June 20, 2020

Further Comments to the East Hampton Trustees on SCALP (transcript of email)

From: Philip Burkhardt
Date: Sat, Jun 20, 2020 at 5:30 PM
Subject: Further Comments to the EH Trustees on SCALP
To: Francis Bock, Bill Taylor, Jim Grimes, John Aldred, Ben Dollinger, Rick Drew, Tim Garneau, Mike Martinsen, Susan McGraw Keber
Cc: Arlene Tesar, Michael Patrick

Dear Trustees,

We participated in your special meeting on Thursday and appreciate the careful thought you are putting into the SCALP issue.

A few points we would like to share with you:

1. We strongly feel that all sites (including 840 and 841) should be vacated sooner than the expiration of the bottom leases in 2026. The reasons for this are as follows:

●     While we are sure that SCALP will appreciate your input, we don't believe they will commit to not renewing someone six years in advance. We would think you would want assurances that this would actually happen rather than kicking the can down the road and likely having to fight more battles later; this approach would not be good for anyone or the Town or Trustees, so let's fix it now.

●     The County has the right to relocate a lessee anytime; please recommend they give the current leasee of 840 and 841 ample time to relocate (after this season); you should know that his DEC permit for floating gear expires at year-end anyway.

●     It is our understanding that some Residents have offered to compensate the leasee of 840 and 841 for the cost of relocating, so if this is the case, there would be no hardship.

2. It's important to note that the path to success for SCALP in East Hampton is achieved by acknowledging others’ rights to navigate our waters and by carefully locating lease sites to avoid preventable conflicts. Other states have figured this out and have achieved success by acknowledging that floating gear infringes on public rights and therefore must be very carefully located. See below from the State of South Carolina.

3. Lastly, the 10 Year Review exists to learn from the past and help the program succeed in the future. It is crystal clear that the ALPAC that originally picked these sites failed in its mission to find low-conflict locations and it is now time to fix that.A great deal of time has been expended on everyone's part throughout this review process and it is in all our interests to fix this now.

4. Repeating what we have stated previously, it is our recommendation that you encourage SCALP to: (a) eliminate sites 838-847 and 854-859; (b) relocate the current leasee of 840 and 841 to 849 and 850; (c) find new sites in Cherry Harbor, and; (d) encourage the use of sites 848-853 so that we can have a successful SCALP program in the Town, out of harm's way and in clearly delineated aquaculture areas.We can think of no more important task for the Trustee's of East Hampton than preserving public access to our precious bays while also encouraging the survival of our maritime traditions.

Thank you for your ongoing attention to this matter.

Philip Burkhardt & Michael Patrick
Co-Coordinators of The Citizens of Gardiner's Bay

South Carolina Department of Natural Resources shellfish management section leader Ben Dyar is one of the oyster farming industry gatekeepers. When someone enters into the permitting process to obtain a shellfish mariculture permit, they will work with Dyar, who coordinates operations with state agency S.C. DHEC's Office of Ocean and Coastal Resource Management (OCRM) and federal agency, the U.S. Army Corps of Engineers.

"It's very important to involve the public," says Dyar. These are public waterways, after all — the three regulatory bodies who oversee the permitting and management of the oyster farming industry must consider not only the well-meaning small business owner.  They're also considering how the implementation of these water farms will affect navigation, natural resources, public access, and more. Dyar notes that having these three agencies working together also gives them an opportunity to have more than one avenue for public notification.


June 17, 2020

Further Comments to the East Hampton Town Board and Trustees: (Transcript of email and (PDF) submitted on June 17. 2020)

From: Philip Burkhardt
Date: Thu, Jun 18, 2020 at 4:31 PM
Subject: Important Public Comments re SCALP Program in East Hampton
To: Peter Van Scoyoc, Jeff Bragman, Kathie Burke Gonzalez, David Lys, Sylvia Overby
Cc: A. Bell, Michael D. Patrick

Dear Town Board Members:

The County's 10-Year Review of the SCALP program is continuing and public comments on various alternative maps are due by June 29th. We assume the Board will be discussing this with Barley Dunne, the Board's representative on the review committee. Since the deadline is coming up quickly we felt that it was important to also provide some input to the Town Board from the public side.

Attached you will find a petition signed by approximately 500 residents who feel very strongly about what needs to be communicated to SCALP.

Thank you,

The Citizens of Gardiner's Bay


 

February 26, 2020

I’d like to offer the following remarks tonight:

•  The State and County have no authority to lease surface waters, directly or indirectly.  This fact is well established under the Public Trust Doctrine and NYS law.

•  The SCALP law specifically authorizes only the lease of lands under water, not the surface of the water.

•  SCALP can only authorize leases that use underwater systems that do not interfere in navigation, and certainly not floating systems, which were not in use at the time the SCALP law was enacted.

•  Floating systems are not something that can be allowed by compromise, because NYS has no authority to violate navigation rights.  Anyone could sue and win, even in the face of a majority compromise.

•  In any event, the southern end of Gardiner’s Bay is heavily used for recreational boating of all kinds, so would be unsuitable for any systems that obstruct navigation, even if allowable.

• The only possible compromise I can see would be to allow near-shore systems with the same footprint as traditional pound traps, or widely spaced, single-point hanging systems with the same footprint as lobster-pot buoys.  These footprints, it could be argued, are sufficiently common and well-accepted for so long without legal challenge, that it can be agreed they do not interfere with navigation.  This will involve a restructuring of the SCALP program.

Thank you,

Rod Richardson


 

August 31, 2019

To the East Hampton Town Board:

The Citizens of Gardiner’s Bay is an organization formed in 2018 by more than 50 town residents to address concerns regarding the installation of floating aquaculture gear in Gardiner’s Bay.

https://citizensofgardinersbay.org/

As homeowners, business owners and frequent users of the waters of Gardiner's Bay, we asked to have our voices heard concerning the use of floating oyster cages for commercial aquaculture development. Suffolk County and its consultants, Cashin & Associates, responded with an inclusive approach to gathering input from all users of the bay for the 10-Year Review; we very much appreciated that and thank them for their efforts.

From our perspective, this comprehensive input has reinforced two important points: 1) If carefully located, there is broad based support for the shellfish industry and for its obvious benefits to the environment and to the livelihoods of many who work on the water, and 2) Floating aquaculture gear should be limited to locations that minimize navigational conflicts and safety risks for other users of the bay.

Now that the input has been gathered, we have asked the 10-Year Review Advisory Committee to act on it by reassessing existing (and potentially new) lease sites and to identify areas where floating gear can be legally and safely used.

We understand that the Fisheries Advisory Committee has provided its input and we now ask that the Town of East Hampton Board and its representatives also communicate to the county our input:

We believe that the 22 lease sites in Gardiner’s Bay present clear navigational conflicts and we ask that any installed floating gear be relocated and that future leases awarded in these areas make use of gear that rests on the bottom rather than on the surface, in order to preserve safe navigation, safe recreation, and our scenic vistas for all users of our bays.

Sincerely,

Citizens of Gardiner’s Bay


 

An Update to the Process for Supporting Responsible Aquaculture Development on the East End

As homeowners, business owners and frequent users of the waters of Gardiner's and Peconic Bay, we asked to have our voices heard concerning the use of floating oyster cages for commercial aquaculture development. Suffolk County and its Consultants, Cashin & Associates responded with an inclusive approach to gathering input from all users of the bay for the 10-Year Review; we thank them for their efforts.

This comprehensive input has reinforced two important points: 1. if carefully located, there is broad based support for the shellfish industry for its obvious benefits to the environment and livelihoods to many who work on the water, 2. floating aquaculture gear should be limited to locations that minimize navigational conflicts and safety risks for other users of the bay.

Now that the input has been gathered, we ask the 10-Year Review Advisory Committee to act on it by reassessing existing (and potentially new) lease sites and identify areas where floating gear can be legally and safely used.

In areas where clear navigational conflicts have been identified, we ask that any installed floating gear be relocated and that future leases awarded in these areas make use of gear that rests on the bottom rather than on the surface, in order to preserve safe navigation and our scenic vistas for all users of our bays.