Sherwood Mill Pond Committee Informational Meeting Thursday, October 28, 2021

Continued Discussion Regarding Parking at the Mill Pond Preserve:

Continued Discussion Regarding Launching of Boats at the Mill Pond Preserve:

Questions for Mr. Northrop:

Please Explain:

1. The legal basis underlying your claimed right to launch boats

2. The scope of your current use of the Preserve for launching of boats

3. The scope of your plans for future use of the Preserve for launching boats

4. How the scope of your current use and future use does not and will not overburden whatever easement or other right you claim to have to launch boats from the Preserve

5. Whether there are other options available to you for launching boats into the pond

Responses by Attorney G. Avery to Questions by Assistant Town Attorney E. Flug 09-24-21

Discussion of Commercial Oystering Activity in the Mill Pond:

Questions Regarding Aquaculture Activity in the Sherwood Mill Pond, Westport, CT

Questions for Shellfisherman, Jeff Northrop:

1. Tell us about your family’s history of shellfishing in the Mill Pond (include reference to court cases and King’s grant.)

Thank you very much for your interest! An excellent summary or the Sherwood-Northrop Family history of shellfishing in the Mill Pond is available from the following link:
https://westportnow.com/oystering_on_mill_pond_reclaiming_a_family_legacy

2. Describe the preparations for seeding and the harvesting activity that takes place during a typical growing season.

A comprehensive summary of Oyster Farming is available from the following link:
https://en.wikipedia.org/wiki/Oyster_farming

3. Are there any “down times” of the operation? Meaning, is there less or more activity during certain seasons of the year? If so, please describe.

As with most Agricultural operations, Oystering is a year-round business. There is not much down time, because there are always things that need to be done on a working farm. However, there tends to be less activity in Winter months.

4. Tell us about the equipment we see in the Mill Pond today and your future plans for your aquaculture business.

The equipment you see in the Pond is described in detail in Answer to Question 2, above. Specifically, we grow oysters in protective mesh enclosures. We also own vessels for sorting shellfish.

5. Even though you have the right to farm your beds, your operation is in the middle of a densely developed area. Would you be willing to refine your operation so as to minimize disturbance to the surrounding neighbors? For example, operating only from sunrise to sunset? Promptly taking care of trash that might be generated? Minimizing storage of supplies on beds near private and Town property? Scheduling deliveries and pick-ups from Town property so duration of activity is minimized to the greatest extent possible?

The Sherwood Mill Pond was constructed by ancestors of the Northrop family to power the Sherwood Mill. This horizontal tidal grist mill was a key component of the Sherwood Island Farm, which was founded after the land was purchased from the Matchamux Tribe. The Sherwood Mill was actually the required Commercial operation that permitted the creation of a Charter that allowed the Town of Westport to be created, separate from the Town of Fairfield. The Sherwood
Mill was built in 1711, creating the Sherwood Mill Pond and allowing the Sherwood-Northrop Family to initiate a family oystering business onsite. The Mill was general purpose for grains, but also specialized in the grinding of kiln-dried corn meal for export to the West Indies - from small watercraft to larger ships anchored offshore, directly from the wharfs that remain at the Sherwood Mill raceway to this day.
The tide mill had an undershot horizontal water wheel — that is, the outflow of water turned the wheel by the force of the water against the under part of the wheel. The water-wheel was some 18 feet long and about 14 feet in diameter, located outside the mill, and when the gates were lifted the water flowed out with tremendous force, and power was transmitted into the mill. If milling was good, two shifts, night and day, were needed according to the tide. The tide must be ebbing before the mill would run, and continue until the incoming tide equaled the outflow from the pond.
https://en.wikipedia.org/wiki/Water_wheel#Undershot_wheel]
There was no residential development in the area at that time. Residential development started more than 150 years later, when homes started to be built around our Property, often on Property sold by the Sherwood-Northrops.

6. Is there a plan to transfer or sell deeds or leases to the beds you have in the Mill Pond?

There is no plan.

7. What is the purpose of the electric panel that was recently erected by the tide gates?

To supply power to our privately-owned property, exactly like electrical service to your home or business.

8. What is the intent for storing the cages behind the garages on Old Mill Rd.?

These cages have been donated to an oyster restoration project in Maine, and are stacked behind the garages temporarily until the truck comes to pick them up. We were granted permission to store the cages behind the garages as an alternative to storing them on our privately-owned property on either side of the walkway between the tide gates.

9. Tell us about the use of the Mill Pond Preserve on Hillspoint Rd for conducting your business.

The Hillspoint Rd location is the original site of The Allen’s Clam House property. Captain Allen was a member of the Sherwood-Northrop family that operated on this site. It was purchased from the Sherwood-Northrop Family, by friends of the Family - specifically fishing buddies of Captain Jeff Northrop and the Town. Oystering and other watercraft have been launched from this site since before the Town of Westport was created. This historical boat launching area remains in operation to the current day, for all to use. Additional information is available from the following
links:
https://www.aspetucklandtrust.org/allen-salt-marsh
https://www.westportct.gov/government/departments-a-z/parks-and-recreation/parks/sherwood-mi
ll-pond-preserve

10. Is there an alternative site from which to launch and dock your boat(s)?

As a licensed Agricultural operation, we have the right to access our Property via any means necessary. Agricultural Easements are some of the oldest principles of English and American Common Law. Conveniently for all, we have historical, logical access points readily available to us. We primarily use the traditional Allen’s Clam House Property on Hillspoint Road, which is now public property, as well as the historical Driftway from the public Old Mill Beach Lot, shown below circa 1915, before construction of the private garages. Interestingly, the building immediately adjacent to the grist mill was later moved, and is now the current Hummock Island Oyster Guard building.

11. What is your intent for running your shellfishing tours this summer?

We will be focused on growing oysters this summer, and do not intend to conduct any public tours.

12. Do you have a current license to shuck and serve oysters on this tour?

See Question 11. - Not Applicable

13. What are your plans to accommodate your workers’ and tour participants’ bathroom needs?

See Question 11. - Not Applicable

14. Are you currently testing the water quality in the Mill Pond? If so, where? And by whom? And where is the data being sent? And for what purpose?

Yes. Water testing is conducted at various stations throughout the pond selected by the State of Connecticut Department of Aquaculture. An environmental testing company is taking the samples and delivering them to a private lab. The purpose is to determine the quality of the water.

Question for Zoning:

1. Is the operation of a commercial aquaculture operation in a residential district allowed pursuant to the Zoning Regulations of the Town of Westport?

Yes, §11-2.1.3 of the Westport Zoning Regulations indicates that a farm Is a principal use in all zoning districts.  See regulation below:

“Truck garden or farm; provided that any such farm on which animals or poultry are raised or kept for commercial purposes shall be at least five (5) acres in size. Accessory and appurtenant uses including a produce stand for incidental seasonal sales and the storage of commercial vehicles directly associated with such use are permitted on the premises; provided that all such commercial vehicles are garaged.”

Questions for CT Bureau of Aquaculture:

Informational responses provided by: David Carey, Director, Connecticut Department of Agriculture, Bureau of Aquaculture Tessa L. Getchis, Senior Extension Educator, Connecticut Sea Grant and UConn Extension

1. Describe the regulatory process for aquaculture:

The director of the CT DA/BA serves as the State Aquaculture Coordinator and is the liaison for all aquaculture activity and interacts with all other local, state, and federal regulatory authorities. There are three main steps that comprise the regulatory process for marine aquaculture, including:

1. Permission to use the space; involves:

a. Issuing a lease (shellfish) or license agreement (seaweed)

2. Permission to place gear or structures; involves:

a. Required for use of fixed gear such as bags, cages, longlines, upwellers, etc.

b. Review for Potential Impacts to Significant Human Uses

c. Review for Potential Impacts to Protected Species and Habitats

3. Business Operations Authorization; involves:

a. Shellfish Sanitation Training

b. Facility and Vessel Inspection

c. Shellfish Sales Licensing

There is a shellfish jurisdiction line along the entire coast which separates waters under town control (to the north of the line) and waters under state control (to the south of the line). An applicant seeking to conduct shellfish aquaculture in state waters would seek permission for the space (called a

"lease"). Some local municipalities, like Westport have transferred their shellfish bed jurisdiction over to the State Bureau of Aquaculture.

An applicant seeking to conduct shellfish aquaculture in town waters (with the exception of municipalities which relinquished that Authority, would seek permission for the space (called a "lease" or "license" or "co-management" - the name of the permission type just depends on the town) from the town, typically the local shellfish commission serves as the authority on behalf of the town. There are separate rules for seaweed aquaculture as it is a new industry and there are new laws associated with it. Seaweed applications in any waters are licensed by CT DA/BA.

An applicant seeking to use gear or structures to grow shellfish, seaweed (or fish for that matter, but we have no marine finfish culture) would next complete the Joint Agency Application for Aquaculture. The key agencies are CT DA/BA (state aquaculture coordinator), CT DEEP (coastal zone management agency) and US Army Corps of Engineers (coordinates with CT DEEP on CZM and safe navigation). USACE serves as the federal coordinator and solicits a review and comments on the application from all other pertinent federal agencies (e.g. EPA, US FWS, NOAA). These agencies review the application with respect to their regulatory authority (e.g. clean water act, protected species and habitats, migratory species, etc.)

The applicant has to demonstrate that they have permission to use the space in town or state
waters. The primary function of the review process is to ensure that there are minimal interactions with or negative impacts to existing significant human uses, protected species (e.g. marine mammals, migratory birds) or habitats (e.g. EFH). One or more state and federal authorizations may be required. A public comment period and public hearing may be held at the state or federal level and that depends on the size and the scope of the project. (It doesn't happen frequently, but there have been a number of cases in which that does occur). 

Once the application has been reviewed, it is either denied, returned for revision or authorized. The final seal of approval when all local, state and federal authorizations have been put in place is a "Certificate of Aquaculture Operations" from the CT DA/BA. Then, and only then, can the proposed aquaculture activity begin.

2. What state and federal agencies have jurisdiction over aquaculture?

1. CT DA/BA (state coordinator)

a. Establishes shellfish harvest classification areas and monitors water quality.

b. Provides a lease; describe terms including hours of operation

c. Sends application to DEEP and USACE for review

2. CT DEEP (state Coastal Zone Management Agency Coordinator) and USACE (federal CZM Coordinator) review projects to avoid conflicts/interactions with:

a. existing significant human uses

b. protected habitats

c.protected species

3. USACE also seeks comments from other federal agencies including primarily, but not limited to:

a. US EPA

b. US FWS

c. NMFS

3. Are there any established carrying capacity restrictions in Connecticut?

Not formally. Farmed and natural shellfish beds are still nowhere near historic levels of shellfish. That said, there is probably a “social carrying capacity” which should not be exceeded. That has not been studied in Connecticut.

4. What role can the public play in the review process?

If significant concerns are raised a public comment period, and potentially a public hearing may be scheduled.

5. What is the result of the review process?

One or more state or federal permits is provided to cover the use of the cultivation gear.

6. What if concerns arise after the project is permitting and is implemented? Is there an appeal process for the issuance of a permit for aquaculture activity?

Concerns should be communicated with the CT DA/BA (State Aquaculture Coordinator) who will convene the other state and federal agencies to address the concern.

7. How does the CT DA/BA, CT DEEP and the USACE monitor and enforce your regulations and permit conditions?

Periodic inspections are conducted to monitoring the lease and gear areas. Any change to the number of type of gear would require a new permit.

8. If a violation is found, what are the consequences?

Agency priority is to bring the authorized party into compliance. Gear authorizations can be revoked if conditions are not met.

9. To where does the collected fees from the leasing of beds go?

The fees collected in municipal waters or former town waters under Deaprtment of Agriculture Aquaculture Bureau administration are collected and are sent to the Town annually.

10. Are fees collected on deeded beds?

Yes, in Towns where shellfish beds are under State administration the annual tax is collected and sent to the Town after the State fiscal year ends.

11. If so, to where do those fees go?

Where town shellfish bed jurisdiction is under the Department of Agriculture the annual tax or lease payment fees are collected and transferred on an annual state fiscal year basis to municipalities.

12. If the ownership of a lease or deeded bed is changed/sold does such sale or transfer have to receive approval from the state?

Deeded beds receive an acknowledgement and leases receive an assent to and approves the said transfer and assignment. Documentation is required to facilitate revenue collection.

13. Does one have the right to sublease to a third party and if so, must this transfer be approved?

Third party subleases have been allowed to licensed shellfish operations.

14. Can a sale or lease of a shellfish bed be appealed? If so, by whom?

Shellfish beds must be used exclusively to plant, cultivate, and harvest shellfish, if any individual or entity intends and is licensed to conduct those activities, seems unlikely.

15. Does the lease of shellfish bed L327A extend directly behind the garage building at Old Mill Rd. or is there a separating distance?

There is a forty-foot buffer between the lease boundary and the wall.

16. What activities or structures does the Town of Westport control?

Shellfish activities and structures? The Town of Westport controls the recreational shellfish program and the management of the Town designated Natural Shellfish seed beds.

17. Does Mr. Northrup currently have all the appropriate permits he needs to operate his business and for all of the equipment he has within the Mill Pond?

As of July 20th 2021 Mr. Northup is in compliance with his permits and license requirements.

18. Do you know if Mr. Northrup has, or does he need, approval from the state for the launching of his boats from the Mill Pond Preserve property on Hillspoint Rd.?

No he does not.

19. Are there any permits from the state required for conducting of the oyster tours on the Mill Pond? For the shucking or serving of oysters?

The Department of Agriculture does not issue permits for such activities, but I have been informed those activities will not continue this year.

20. Who should the public contact if they have a question or concern about the activity taking place on the Mill Pond? Is this the same agency if there are wildlife or habitat concerns?

Any aquaculture questions should be sent to Department of Agriculture Bureau of Aquaculture & Laboratory. Wildlife or wildlife habitat concerns should be Department of Energy and Environment.

This information is for general guidance purposes only and should not be relied on for application to specific situations. If you have questions about your particular circumstances or questions, please contact David.carey@ct.gov about your specific matters.