The proposal to implement clam farming in Freeport is facing some significant hurdles.

The Shellfish Conservation Commission must decide at its Oct. 8 meeting if it wants to recommend to the Town Council an amendment to the town’s shellfish ordinances, calling for the town to lease mud flats to individuals, thus creating clam farming.

Then, even if the Town Council buys into that notion, it appears the clammers would need to get permission from landowners who own the flats down to the low tide mark, according to an attorney.

The town has an opinion from lawyer Philip Saucier that permission would be needed from landowners before the town can lease a portion of the intertidal zone for aquaculture.

Bob Konczal, Freeport’s assessor, said that ownership of coastal property in town numbers in the “several hundreds.”

Saucier outlined his research on the subject in a letter last month to Town Manager Peter Joseph.

“By statute, DMR (Department of Marine Resources) requires permission from the riparian land owner before granting an aquaculture lease under the state’s authority,” Saucier wrote. “Although the corresponding municipal statute does not contain the same explicit requirement, it does contain a provision that notes that municipalities may grant aquaculture leases consistent with the rights of the property owner.”

Saucier went on: “Under Maine law there is a specific right to fishing in the intertidal zone, and the state and the municipality have the right to regulate. Although it does not appear that Maine’s courts have yet ruled on the issue of aquaculture in the intertidal zone, two cases from Massachusetts held that the public trust doctrine does not extend to aquaculture in the tidal flats. Thus, permission is needed before leasing a portion of the intertidal zone for aquaculture.”

On Sept. 10, the commission held a public hearing to discuss the proposal. The commission will decide on Thursday, Oct. 8, if it wants to propose a five-year pilot program for individuals to farm on the town’s mud flats. State law prohibits more than 25 percent of a town’s flats being used for aquaculture, in which the clams are farmed rather than gathered in the wild.

The impetus for the proposed shellfish ordinance amendment: Statewide clam landings are less than half of what they were in 1980. Predation of soft-shell clams by green crabs, whose population many believe has increased due to warming ocean temperatures, is blamed. Aquaculture would provide clammers a means of combating this, by allowing them to seed and harvest a plot of clam flats.

People who own coastal property in Freeport raised some concerns regarding a town leasing program during the Sept. 10 hearing, some noting they own the flats to the low tide mark.

One of those landowners, Joyce Veilleux, told the Tri-Town Weekly that “those on town committees and governing the town must realize that the town does not own a majority of the flats, the private landowners do. Therefore, the town cannot lease mud flats it does not have the legal deed to.”

Veilleux said in an email she has copies of deeds going back to the 1800s, when Flying Point was the Frank True Farm.

“It clearly states that the deed owner owns to the low water mark,” she said. “No easement has been given at any point in time to this area.”

The town has issued 46 residential commercial clamming license this year and five nonresidential commercial licenses.

Del Arris, a shellfish commission member and a clammer, said that under the present system, in which clammers are free to dig anywhere in town unless the flats are closed, they only need permission from landowners to cross their property onto the shore. Arris said that he doesn’t think town-leased clam flats would lead to less access for all clam harvesters.

Nora Healy, another Shellfish Conservation Commission member, said that there are approximately 800 acres of clam flats in town. Asked if the remaining 75 percent of that land would be enough for harvesters who don’t go into the leasing program, Healy said she would wait until the Oct. 8 commission vote to comment on that. But Healy did say that when the state developed the parameters of the leasing program, it “took that into consideration.”

Doug Leland, chairman of the Shellfish Conservation Commission, said that many issues related to shellfish aquaculture have not been addressed by the state or are unclear.

“It is my understanding that Freeport’s intertidal land is a resource belonging to all state of Maine residents,” Leland said. “Because Freeport sought, and subsequently received and implemented a state-approved municipal shellfish ordinance, Freeport has been granted stewardship responsibility for Freeport’s intertidal region, as specified within the referenced ordinance.

“Should Freeport adopt a shellfish aquaculture program,” he said, “it would be authorized (consistent with other regulations) to offer permits for shellfish aquaculture within Freeport’s intertidal areas, whereas the state has the authority to issue leases.”

A lone clammer digs for the coveted bivalves.Photo courtesy of Maine Clammers Association

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