Contentious Battle Continues Over Herring River Scallop Farm

HARWICH – While the conservation commission is leaning toward approving a scallop farm on private property on the west side of the Herring River, neighbors continue to argue that it would have adverse impacts to the area.

Property owners Jeffrey Lang and Sandra Wycoff-Lang of 11 River Bend Rd. are proposing the farm as part of a major bulkhead reconstruction project to address eroding saltmarsh behind the failing structure. Lang has experimented with scallop growth on another of his properties farther up the river.

“We’re here to get down to the nitty gritty. There are a lot of moving parts to this,” project engineer David Crispin of BSC Group told the commission in the Nov. 20 hearing. He said that the town’s waterways committee approved the project after having made some adjustments. The committee had previously expressed concerns about the project harming navigation in the river, but the applicants reduced the size and changed the location of the proposed platforms, and the revised application passed muster with Harbormaster John Rendon and the committee.

Attorney Elizabeth Pyle, representing a dozen residents in the neighborhood, asked about interpretations of water-dependent and wetland protection bylaws, and the need for the commission to issue variances. She said bylaws call for floats to be no larger than 200 square feet, and can remain in the water only seasonally.

Crispin said the float provisions in the town bylaw refer to structures that provide access for people to the water. 

“We don’t believe they are floats …They don’t meet the definition of floats under the town bylaw,” he said. Crispin called the proposed water-based structures upweller platforms, explaining they will not be used for people to access the water or boats, and all harvesting of scallops will be done from the water. Because the structures will be used as upweller platforms, and scallop harvesting will be a year-round operation, the winter float removal provision does not apply, Crispin argued.

He said the Langs are proposing to install a new steel bulkhead, originally eight feet in elevation but reduced in size to 6.5 feet. The bulkhead will be moved back toward the eroding saltmarsh behind the existing structure. Several adjustments have been made to the platforms, which would now add 321 square feet of structure seaward of the existing bulkhead.

Aquaculture is permitted by right under town zoning, he said. According to Crispin, the improvements proposed will improve the wetlands there and will remove 100 pounds of nitrogen from the river annually. He said there are no variances needed for this project.

Conservation Administrator Amy Usowski said a study done by the proponents showed a minimal impact to shellfish beds. Crispin said the Langs plan to offer scallop seed to the shellfish department on an annual basis, mitigating the loss of any natural shellfish on a four-to-one ratio, adding 500 square feet of new marsh and shellfish restoration through seeding.

Usowski concurred that the upweller platforms are farming equipment, and thus, no variances are necessary from float and seasonal use provisions. She said any of these activities in the river will need the approval of the select board. 

Conservation Commission member Wayne Coulson said he agreed variances on the float issues are not required. Coulson said he grew up on that river and observed a lot of commercial activities, such as damming the river for cranberry bogs, eel fisheries and fish shanties.

“There were a lot of activities in a commercial sense there,” Coulson said. “I’m in favor of this project.”

Commission members Vivienne Mulhall-Mcguire, Mark Coleman and Sophia Pilling all voiced their support for the scallop farm. Commission Chair John Ketchum said he had questions about the float-versus-upweller interpretation. But he also said he has concerns about the river bank degrading, and the potential for it to collapse if not maintained.

Resident Noreen Cahalane said she totally objects to not calling the platforms structures “floats.” She said boats will be tied up there to perform maintenance. The structures should be limited to 200 square feet each and the seasonal removal provision should be applied, she argued. There are seasonal shellfish closure provisions instituted on an annual basis, she added.

Mary Lou Cahalane said there are many recreational activities that take place in the river and she is concerned about swimmers getting caught in the scallop nets, as well as encroachment on the navigational channel.

Attorney Pyle took exception with the argument that the platforms are upwellers and not floats, and disagreed that the 200 square foot provision and the seasonal use provision do not apply to this project. She also said there are no provisions to issue a variance for that section of the town bylaw. Pyle also argued that the commission has the authority to review compliance with the town general bylaws regarding water-dependent structures and wetlands protection, but it does not have jurisdiction over zoning or farming bylaws. 

Pyle also said she represents the abutters to the south side of the bulkhead, David and Linda Kelleher, and the Langs do not have permission to tie into the Kelleher’s bulkhead, which is one foot onto the Kelleher property. She said the law does not allow for the filing of a notice of intent without the Kellehers’ approval. A new application will be required, she said. The attorney also said the proposed project poses an unacceptable danger to recreational users of the river.

  The moving back of the bulkhead, Pyle said, according to environmental engineer Scott Horsley, would create more scouring of saltmarsh and there are no variances under the Wetlands Protection Act to allow those impacts to saltmarsh.

  “You’d be looking at an appeal,” Pyle said.

Crispin said they could complete the bulkhead on the Langs’ side of the property, but that would leave a gap between the two bulkheads.

 Ketchum said the commission cannot proceed without permission to tie into the abutting property.

I don’t think it serves anybody ‘s benefit if it’s not worked out. We’ll be in a lawsuit here,” Ketchum said. 

“I completely agree with you,” added Usowski.

The commission agreed to consult with town counsel on how to move forward with this project. The hearing was continued to Dec. 18.