This document summarizes and updates findings previously outlined in a letter from the legal counsel for the Coalition to Save Beach Cove (Coalition), Manko, Gold, Katcher, and Fox, LLP (MGKF), and an environmental study entitled “Evaluation of Proposed Shellfish Aquaculture Development Area, Indian River – Beach Cove (IR-B), Sussex County, Delaware” dated February 23, 2015 (Evaluation), prepared by Mr. Edward Launay of Environmental Resources, Inc. (ERI). The Evaluation also included a detailed aerial map and bathymetric survey illustrating the environmental features of Beach Cove prepared by George William Stephens, Jr. and Associates, Inc. (GWS).

These firms were retained to investigate the environmental impacts and other technical topics related to the Delaware Department of Natural Resources and Environmental Control (DNREC)’s proposal to locate 24, one-acre oyster farming plots in the southwest portion of Beach Cove. The area of Beach Cove designated by DNREC as a Shellfish Aquaculture Development Area (SADA) location, is identified as IR-B. In selecting locations for the SADA sites, the Center for the Inland Bays (CIB) and DNREC were charged with protecting the public interest, which includes the citizens of Beach Cove with respect to adverse impacts on boat navigation, public water access, water use, water quality and native biota resulting from the proposed shellfish aquaculture program.

ERI’s Evaluation consisted of a 24 page report with 20 exhibits referenced and enclosed with the report. In February 2015, the Evaluation was submitted to the U.S. Army Corps of Engineers (Corps), Philadelphia District, in response to a Corps public notice regarding DNREC’s shellfish aquaculture program. Prior to its submission to the Corps, the findings of the Evaluation were shared with DNREC, and subsequently a hardcopy of the report was provided to them. Additionally, as of this date the Evaluation has been forwarded to the U.S. Environmental Protection Agency (EPA) and the U.S. Food and Drug Administration (FDA).

The conclusion of the Evaluation prepared by Mr. Launay of ERI is that “based upon the body of evidence presented in this report, it is my opinion, expressed to a reasonable degree of scientific certainty, that the condition and characteristics of Beach Cove make the IR-B SADA unsuitable for shellfish aquaculture.” Topics addressed in the Evaluation are as follows: Environmental Conditions, Shellfish Sanitation, Water Quality, Navigation and Recreational Use, and Public Trust Considerations.

Environmental Conditions

An investigation on the environmental features and existing conditions of Beach Cove was performed in order to provide a focused quantitative and qualitative comparison of the IR-B SADA and the seven (7) other SADA locations proposed by DNREC. The Evaluation assessed and compared quantities of developed shorelines, docks, boat use, marinas, and associated development existing in Beach Cove with other SADA locations within 1000 feet of the SADAs. The intensity of development and presence of docking facilities in proximity to SADA sites is demonstrative of the water quality concerns, shellfish sanitation and growing conflicts, along with the negative impacts on public navigation, water use, and recreation that would ensue if implemented.

The Evaluation documented that the IR-B SADA is unlike all of the other proposed SADA sites with respect to its higher density of development, active boat use and potential for unsuitable water quality. Several key points noted were that no other SADA sites are in proximity to any marinas, except for Beach Cove which has two (2) community marinas and a boat ramp within 250 feet of the IR-B SADA. Numerous other private docks and parallel lagoon mooring areas also exist within the immediate vicinity of SADA IR-B. Furthermore, unlike the other SADA locations the IR-B SADA site lies as close as 20 feet to a currently prohibited shellfishing area per the DNREC 2014 SADA maps, affording no buffer between the SADA IR-B location and the prohibited shellfishing waters.

Shellfish Sanitation

At all times during the Evaluation of Beach Cove as a site for aquaculture, a substantial portion of the selected shellfishing site in Beach Cove has been found to be located in a “Prohibited Shellfish Growing Area” as defined by Delaware’s Shellfishing Sanitation Regulations, and as posted by signs placed by DNREC, therefore making it unsuitable for commercial shell fishing operations. This was discovered as a result of the December 2014 GWS survey of the posted closure signs conducted on behalf of the Coalition by a Delaware registered Professional Land Surveyor (PLS).

The portion of the proposed IR-B SADA oyster farm located within an area prohibited for shellfishing is made larger by the Quillens Point and Bayside Hamlet Marinas. The existence of these marinas was not taken into consideration by the CIB nor DNREC in their siting determination of the IR-B SADA. DNREC has long established shellfish sanitation regulations “to ensure that the shellfish harvested for any purpose from Delaware waters are fit for human consumption” and in order to comply with the FDA requirements. These regulations require shellfish closure areas surrounding all marinas because of their potential for fecal coliform pollution associated with sewage discharges. Specific calculations involving the number of vessels, loading factors, the volume of water in the marina area needed for dilution of fecal coliform bacteria and procedures are required to determine the required shellfish closure area under the DNREC regulations. These proper closure areas are not accurately reflected in any past or present shellfish closure maps and, therefore, were not considered by the CIB or DNREC for the siting of SADA IR-B.

The Evaluation determined that DNREC failed to establish any shellfish closure areas as required by their own regulations for the Quillens Point and Bayside Hamlet community marinas. The Evaluation further determined that a shellfish closure area extending over 900 feet channel ward of these marinas is required using minimum allowable loading factors specified in the regulations (Title 7, DE Admin. Code 7402).

Based upon the prohibited shellfishing area as posted by DNREC and the calculation of the closure areas associated with the Bayside Hamlet and Quillens Point community marinas, as many as 19 of the 24, one-acre proposed oyster farming plots within the IR-B SADA are in violation of DNREC’s Shellfish Sanitation Regulations.

Following disclosure of the above issues to DNREC officials by Mr. Launay and a representative of the Coalition, in early March 2015 DNREC prepared (however as of this date, has not yet released) a revised shellfishing closure map of southwestern Beach Cove and sanitation survey which purports to avoid conflict with the proposed shellfishing acreage. ERI is presently reviewing the appropriateness of these new determinations. However, based upon initial review/ information gathering under a Freedom of Information Act (FOIA) request, it is apparent that recent reports, calculations, and the most recent shellfish closure areas map developed by DNREC remain in error.

Water Quality

The shallowness of Beach Cove impairs tidal water circulation and with the addition of commercial shellfishing operations in the cove, water quality in Beach Cove will be adversely and irreparably affected.

The shallower portion of Beach Cove lies to the north, where Beach Cove connects to the remainder of the Indian River Bay through an area known as the “Broken Marshes.” The shallowness of the northern end and the existence of the Broken Marshes impedes the tidal flushing of Beach Cove. Thus Beach Cove’s capacity for good tidal exchange and mixing, which would promote good water quality in the portion of Beach Cove proposed for shellfish aquaculture, is inherently limited.

Adverse effects to water quality arising from commercial shellfishing on an industrial level as currently proposed by DNREC includes an estimated 2.5 million tons of oyster feces each year from the proposed 24 one-acre plots planned for Beach Cove. Since Beach Cove does not have good tidal flushing, the deposition of the feces will greatly affect both the quality of the waterbody as well as the growing, health, and safe consumption of any Beach Cove oyster crop.

Compounding this conclusion, the mucky, muddy bottom of the area of Beach Cove proposed for oyster farming will be unable to physically support the oyster baskets to the minimum of four inches off the bottom of Beach Cove, as required by DNREC regulations. The baskets will become settled and lodged on the bottom, prohibiting proper water circulation, dispersal of oyster feces and prohibiting passage of aquatic species under the baskets.

The shallowness of Beach Cove in the 24 acre plots may allow the oyster baskets to be exposed to air during low tides, thereby threatening successful commercial shellfishing operations. The shallowness of Beach Cove may cause the oyster baskets to be frozen in the winter and surrounded by warmer water in the summer, thereby preventing successful oyster farming operations. At one point during the winter of 2014 to 2015, the IR-B portion of Beach Cove was frozen for 22 consecutive days.

Navigation and Recreational Water Use

Beach Cove is unique in that the northern end of this small bay is significantly shallower than the southern end except for the marked and formerly dredged navigational channels along the west shore that provide a means of ingress and egress for marine traffic into and out of Beach Cove. Local mariners and residents along the southeastern portion of Beach Cove must first travel west toward the Bayside Hamlet Marina to the marked, maintained channel located along the west side of Beach Cove. The current location of the IR-B SADA blocks navigation access between the southeast portion of Beach Cove and the established navigational channel.

Current DNREC regulations will require the marking of all four corners of each individual lease site within a SADA area by six (6)-inch diameter PVC pipes extending five (5) feet above the mean high water line (MHWL) with a 12-inch by 12-inch placard with reflective marking and reflective tape. The individual one acre lease sites would be separated by a 20 feet wide SADA access channel. The activity of leasing SADA sites by DNREC’s Division of Fish and Wildlife (DFW) is a major action creating substantial obstacles to navigation which will need to be evaluated and permitted by the U.S. Coast Guard (USCG). To date it is our understanding that DNREC has not coordinated their shellfish aquaculture program with the USCG.

It is likely that once the USCG evaluates the SADA sites, approved public aids to mark the obstruction to navigation will be required. Aids to navigation to mark any channel around the SADA obstacle are also likely to be needed. In numerous documents and presentations, the DFW has publically provided the opinion that 20 feet wide access channels between individual one acre shellfish lease plots are adequate for public navigation. The Evaluation does not concur with this opinion. These access channels are only suitable for lessees to reach their aquaculture site. They are not suitable for safe or general navigation by the public. It is difficult to contemplate how any mariner looking at a SADA site at water level, could even identify a narrow channel within a vast field of 20 or more acres of 100 or more PVC pipes. It is also difficult to contemplate how any vessel could safely navigate the long distances required to pass through a SADA site under the best of circumstances, let alone under windy, inclement weather, or low visibility conditions. Therefore, the IR-B SADA will improperly restrict navigation for current and future mariners of Beach Cove. Another concern is the ability of PVC pipes to survive the whole winter season. Experience shows this to be a problem. Likely as many as 100 PVC pipe or remnants of pipe will be dispersed through Beach Cove creating a hazard to navigate and a debris problem.

Aside from navigation within Beach Cove, the proposed IR-B SADA site occupies the majority of waters with adequate depth for recreational uses such as water skiing within Beach Cove currently enjoyed by its residents and visitors. The IR-B SADA effectively displaces the recreational water uses currently enjoyed by the public.

Public Trust Considerations

Many proposed SADA sites lie along the shoreline of state owned property, mostly salt marshes which are part of the Delaware Seashore State Park. Most of these locations are not park areas actively used by the public. DNREC acknowledges in a number of their documents their concerns about the aesthetic impacts SADA sites will have, especially in regards to marking of individual square acre sites. Each corner will have a six (6)-inch PVC pipe and reflective marking extending five (5) feet above mean high water. In addition, gear within the lease areas will be identified with floats or other markings. In the case of the IR-B SADA, nearly 100 PVC pipes will be placed into the water in very close proximity to the seven (7) existing waterfront communities. The loss of natural scenic views previously enjoyed by these longstanding communities has already measurably impacted the value of these residential properties. Since DNREC’s proposal has become known, existing sales contracts for homes in the area have been lost due to the knowledge of this pending activity.

Furthermore, the IR-B SADA lies in close proximity to the “Fresh Pond” portion of the Delaware Seashore State Park. This park land was acquired and developed to provide public access via both paved and rustic trails. It provides the public with a location to enjoy the beauty of natural upland and wetland coastal habitats. It also provides the public with an opportunity to enjoy observation of wildlife in these areas including waterfowl and wading birds along its shores. Public trails in the park provide access to the location of the    IR-B SADA. There is a Scenic Overlook located on the southwest shore of Beach Cove. The IR-B SADA is opposite of the location of the Scenic Overlook will thereby spoil the aesthetic, natural coastal beauty of the southerly portion of Beach Cove enjoyed by the public. Although developed in part by its communities, the southerly portion of Beach Cove is a valuable public asset. Its aesthetic beauty, opportunity for public use and enjoyment on both water and land, and high wildlife utilization has been inadequately evaluated by DNREC.

The Evaluation reviewed reports, maps, and recommendations prepared by the CIB during their consultation with DNREC toward the selection of SADA sites and development of regulations. The CIB collected specific Human Use Data upon which the decision to locate the IR-B SADA in Beach Cove was made.

The Evaluation documented that except for identifying two (2) community boat ramps in Beach Cove, the information utilized by the CIB and relied upon by DNREC was incomplete and inadequate. The CIB failed to identify or consider the presence of four (4) community marinas, three (3) boat ramps, or the location of established marked and formerly dredged navigational channels within the entirety of the small cove.

The Evaluation noted that at no time during the process of developing its shellfishing regulations or selecting SADA sites were any waterfront riparian owners directly notified. Under the guidance of the Regulations Governing the Use of Subaqueous Lands (Title 7 DE Admin. Code 7504), consideration of the public interest for any decision involving the public trust and subaqueous land interests is required. This includes leasing subaqueous lands for industrial shellfish operations by the DNREC’s DFW. As stated in the evaluation, based upon this Mr. Launay’s thirty years of environmental permitting experience in Delaware, in order to identify concerns of adjacent and nearby riparian land owners and others in close proximity to a proposed activity, a public notice is issued. At a minimum, adjacent riparian owners are notified by DNREC via direct mail even for the most minor activities such as a simple pier. In some cases as part of the subaqueous lands permitting and leasing procedure, landowners within 1000 feet are notified by mail. In the case of the IR-B SADA, it lies within 250 feet of two (2) existing community marinas and, less than 100 feet from marked channels utilized to navigate to and from these marinas. 

DNREC has a longstanding policy of providing direct notice for riparian owners as part of administrating subaqueous land leases under its Regulations Governing the Use of Subaqueous Lands. The Evaluation concludes that failure to conduct this process and reliance upon incomplete Human Use Data collected by the CIB has resulted in an inadequate review of public trust factors as required by state environmental regulations.

As outlined in the Evaluation, DNREC as part of its mandate to protect the public interest with respect to the use of subaqueous lands, is required to perform careful consideration of alternatives to minimize impact (Section 4.6.6. of the Regulations Governing the Use of Subaqueous Lands, Title 7, DE Admin Code: 7504). Likewise, the Shellfish Aquaculture Regulations required that conflicts with uses such as boat navigation, water recreation, etc. be avoided. In Beach Cove, the IR-B SADA results in a wide variety of adverse impacts which have already and if implemented will continue to affect the residents of seven (7) communities along its shores.

As outlined in the Evaluation, hundreds of acres of more suitable subaqueous lands for shellfish aquaculture exist in Indian River Bay. Furthermore, there is no demonstration that there is an actual need or demand for the 24, one-acre lease sites within Beach Cove as over 418 other acres of lease area are proposed at locations that have proven to be far more suitable. The interests of the future lessees of SADA sites, residents of Beach Cove, and the public who seek a safe, local shellfish product to consume would be best served by DNREC eliminating any consideration of Beach Cove as a SADA site.