Does a new state law block a pending Tiverton oyster farm? State regulators will weigh in Monday. • Rhode Island Current

Not even the state lawmakers who sponsored 2024 legislation limiting development along the Sakonnet River are confident that the now-law bans an oyster farm proposed for the area.

The question is now left to state regulators, who will consider, and potentially decide, on whether the law applies to the pending project application Monday. 

It’s set to be just as contentious — and confusing — as the last four-and-a-half years of hearings, letters and organized protests over the Sapowet Cove oyster farm. 

The one-acre lease application submitted in 2020 by John and Patrick Bowen, if approved, would be one of the smallest commercial oyster farms in the state. Yet it has drawn a mountain of opposition from waterfront residents, fishermen and even the state aquaculture association who insist the wade-in cages will get in the way of fishing, boating and recreation along the shoreline.

Aquaculture applications are down. The battle for Tiverton’s Sapowet Cove might be why

The latest twist came in a July 25 joint motion by a group of waterfront property owners, who asked state regulators to end the public review and reject the proposal. The memo specifically cites the law passed on the final day of the legislative session which prevents a section of the Sakonnet River — including where the oyster cages would go — from being used for anything other than “passive outdoor recreation.” 

Rep. Jay Edwards, the Tiverton Democrat who sponsored the House version of the bill, insisted during legislative hearings that the policy was not about the oyster farm. Instead, Edwards, and Sen. Lou DiPalma, a Middletown Democrat and bill cosponsor, stressed the need to preserve the sensitive waters directly adjacent to the federally recognized Sapowet Marsh Management Area. 

The bill passed overwhelmingly in both chambers, becoming law on June 29, sans Gov. Dan McKee’s signature. This was despite objections by the Bowens, and by Rhode Island Coastal Resources Management Council Executive Director Jeffrey Willis, who warned lawmakers the policy would “usurp” the regulatory agency’s authority and muddy its review.

Willis reiterated the sentiment in an interview Friday.

“The agency still feels we need to move forward on this [review],” he said.

Waterfront homeowners, through their attorneys, don’t share Willis’ concerns. 

“This language could not be more clear,” the July 25 motion reads. “A commercial aquaculture lease located in Sapowet Cove would be a direct violation of the statute’s prohibition of commercial development. The CRMC is now statutorily prohibited from granting an assent to a commercial aquaculture lease in Sapowet Cove.”

DiPalma also said in an interview Friday that he “assumed” the law would block the oyster farm, though he had not consulted with the Assembly’s legal staff.

Protecting the ‘freedom to fish’

John and Patrick Bowen argued just the opposite. In an Aug. 5 response, they wrote that regulators must consider their application based on policies in place at the time of the 2020 application. The response also contends that the new law violates state constitutional protections for the right to fish, and incorporates provisions under the 1663 Rhode Island Royal Charter.

“Under the heading ‘Freedom to fish the New England Coast’, the Rhode Island Royal Charter declares: ‘that these presents, shall not, in any manner, hinder any of our loving subjects, whatsoever, from using and exercising the trade of fishing upon the coast of New England, in America,’” the complaint states.

Objectors in the motion asked the council through its hearing officer to end the review and dismiss the application with a condition preventing the applicants from refiling.

But Patrick Bowen alleged their underlying motivation is to continue to drag out the debate, in the hopes of wearing him and his brother down.

“The reason this has taken so long is because objectors have hired attorneys to delay this,” Bowen said in an interview on Friday. “If they want to hire lawyers, let them spend their money. We are not going away.”

Bowen also accused the objectors of dipping into their pockets to sway lawmakers. Campaign finance records show that one of the leading objectors, Kenny and Elizabeth Mendez, donated $150 apiece to DiPalma in May. Another objector, Donald Libbey, donated $250 to DiPalma that same month.

DiPalma denied Bowen’s accusations.

“I don’t do something because somebody gave me a dollar, $1,000, or 50 cents,” he said. “This law was seeking to codify federal grants received decades ago that are meant to protect this area.”

DiPalma instead faulted state coastal regulators for allowing a proposal to build an oyster farm in such an ecologically sensitive area, forcing lawmakers to introduce new policies.

“The CRMC is not listening,” he said. “We felt legislation was the only thing that was going to help them see what needs to happen.”

Willis declined to comment on DiPalma’s statement. 

Libbey, and Marisa Desautel, the attorney representing the Mendezes, also did not return inquiries for comment. Attorney Dean Wagner, who is representing a group of other area property owners included in the joint motion, said he could not comment without his clients’ permission.

A Sept. 16 update on the opposition-created website, Save Sapowet for All, provides some additional commentary on the “common sense” argument to reject the application. 

“A continuation of the administrative process being run by the CRMC is a waste of the state’s administrative and legal resources in addition to the legal costs incurred by private citizens to enforce a new state law,” the post, which does not list an author, reads. “Our community has been waiting over four years for the CRMC to dismiss this application because of the significant conflict the proposed location would create with recreational use of those waters among many other issues.”

The CRMC meets at 4 p.m. Monday at the William E. Powers building in Providence. The meeting will also be streamed over Zoom.