BERLIN — A proposed water column lease in the Chincoteague Bay off South Point for the purpose of aquaculture has become the touchstone of a much larger debate about the public’s right to recreate in state waters and has now resulted in a bill introduced in the General Assembly aimed at preserving those fundamental and historic rights.
The Maryland Department of Natural Resources (DNR) is considering an application for a water column lease in a vast area off South Point pre-approved for aquaculture activities. However, residents in the area and others have filed a formal protest of the proposal, citing a possible infringement on their ability to use the site for recreation in the form of swimming, boating, fishing and other activities.
While the local residents against the proposal do not oppose aquaculture in a larger sense, they have voiced grave concerns about the site proposed for the lease under consideration and have filed a formal protest to the application. At a prior hearing with the Office of Administrative Hearings (OAH) in Baltimore County late last year, the protesting group did not make a strong showing and the OAH ruled in favor of the applicant and dismissed the appeal.
However, the group has now rallied and was able to gain a second hearing with the OAH on the issue. The hearing is scheduled in Salisbury this month and the group is hoping to make a strong case for denying the aquaculture lease, the edge of which is just 15 feet from the shoreline.
While the hearing is specifically about the proposed water column lease just off the shoreline at South Point, the issue has grown into a larger debate about the public’s right to recreate, swim, fish, boat and otherwise enjoy the state’s waterways.
According to those protesting the proposed water column lease off South Point, in an administrative proceeding before the Maryland Office of Administrative Hearings, the Attorney General took the legal position that the public has no right of recreation in the state’s public waters.
According to a coalition of private citizens against the proposed aquaculture lease off South Point, it was stated during the administrative hearing, “On Maryland waters, Maryland does not recognize the right to recreate.” During the same hearing, the Attorney General’s office reportedly dismissed the public’s right to recreationally use the tidewaters in question, saying “the parties all own boats and navigate over the proposed leases, sometimes at night, and that they fish, jet ski, water ski, wake surf and engage in other recreational activities,” and further said “essentially they assert a right to recreate anywhere they would like on Chincoteague Bay, but as stated, there is no right to recreate.”
Protestors of the proposed water column lease off South Point have successfully petitioned Delegate Nicholaus Kipke (D-Anne Arundel) to introduce legislation aimed at redefining the public’s right to recreate in state waters. The legislation’s new language states a goal “to fully enhance and protect the public’s right to recreationally use and enjoy the Chesapeake Bay and other public waterways.”
Senator Jim Mathias (D-38) said he is aware of the situation in South Point and the opposition to the proposed lease.
“The area has been approved to permit leasing, but they have genuine concerns about their recreational uses and quiet enjoyment of the resources being infringed upon,” he said. “I believe in aquaculture, but they have serious concerns about location of the permits granted and are in opposition.”
Attorney David Slade, who is somewhat of an expert on the public trust and has written books on the subject, has penned a memorandum in support of Kipke’s bill and calls into question the Attorney General’s position.
“How the public holds these rights today is an important part of Maryland’s history, economy and quality of life,” Slade said. “Unfortunately, this traditional and historic right is under attack by the Attorney General of Maryland. This is why it is so disappointing, indeed disturbing, that the Attorney General of the state of Maryland is taking the legal position that the public has no right of recreation in the state’s public waters.”
According to Slade, the issue is larger than the proposed aquaculture lease at South Point.
“If Marylanders do not have the right to use Maryland’s public waters for recreation, just exactly what are they doing out on the waters in their sailboats, fishing boats, jet skis and about every other imaginable watercraft,” he wrote. “What are they doing while strolling along the public beaches? Why are they buying recreational fishing licenses when they have no right to recreationally fish? Why is the Department of Natural Resources instructed by the legislature to develop public recreational facilities for public waters if the citizens of Maryland have no right to recreationally enjoy Maryland’s waters?”