Devon Yacht Club Sues County Over Oyster Farms

Distant oyster cages in Gardiner's Bay off Amagansett have prompted a lawsuit by the Devon Yacht Club claiming that officials acted improperly in granting a series of aquaculture leases last year. David E. Rattray

When The Star reported, in October, that members of the Devon Yacht Club in Amagansett and residents who live along Gardiner’s Bay were unhappy about the appearance on the horizon of 10-acre offshore oyster farms, Suffolk County’s director of sustainability noted that the yacht club had “expressed concern.” 

Action has followed that expression of concern.

On Wednesday, an attorney for the yacht club, founded in 1908 and incorporated in 1916, filed a lawsuit in State Supreme Court seeking to bar the holders of leases for bottomland near the club from undertaking or continuing any action related to oyster farming at lease sites granted by the county’s aquaculture lease board in July, or engaging in any other activity that would interfere with sailing on Gardiner’s Bay. 

Along with the aquaculture lease board, the lawsuit names the county’s Planning Department and its director, the Amagansett Oyster Company, individual leaseholders, the Town of East Hampton, and the State Department of Environmental Conservation. 

After many years of planning, the county is implementing its Shellfish Aquaculture Lease Program in Peconic Bay and Gardiner’s Bay. The parcels are leased for private, commercial shellfish cultivation under a program established after New York State ceded title to approximately 100,000 acres of bottomland to Suffolk County, in 2004, and authorized the county to offer the acreage up for aquaculture. 

There are two active leases in proximity to the club, Dorian Dale, the county’s director of sustainability, who sits on the aquaculture lease program’s board, said in October. But, he said, they did not appear to be impeding club members’ ingress and egress. One of the leases, he added, has been active for four years. “It wasn’t until a more recent lease activated this summer in closer proximity, and the leaseholder informed the club as a courtesy, that they took notice,” he said last fall. 

Linda Margolin, representing the yacht club, corroborated Mr. Dale’s timeline, saying on Tuesday that the club was “totally unaware of this until one of the lessees, awarded last year, told them that they were going to be building out a lease site 1,000 feet from the end of Devon’s pier. That didn’t happen until August. At that point, they started investigating.”

Ms. Margolin disagreed with respect to navigability. “Our complaint, if you will, is that the lease sites approved by the county aquaculture lease board in July are a concentrated, mostly contiguous set of 20-acre parcels — 10 acres plus a 10-acre buffer — which make off limits roughly a couple hundred acres of water.” Roughly 120 acres, she said, “are in the heart of the area used for Devon’s members and the kids it teaches at sailing camp.” The club has 326 member families.

Written concerns were conveyed from the club to the county in August, Mr. Dale said in October. “We have assured them that we are giving the matter prompt attention, and it is being considered by our law department,” he said at the time. 

On Tuesday, Mr. Dale said that, given the lawsuit, he could no longer comment. “At the initial meeting we had, they expressed interest in maintaining a dialogue,” he said of the club. “Pursuant legal actions precluded that continuing conversation.” 

The club cites vested property rights, historical access, and navigability, among other issues. “Our principal thrust here is that the county pledged to operate this program in conformity with the environmental review they’d already done, and such other further review that would be necessary,” Ms. Margolin said. “When you look at the environmental reviews that are done under the State Environmental Quality Review Act, you consider things . . . more than just water quality or air quality: things like interference with recreational resources. The effect of what the county has done here, unfortunately, is interfere with a very significant and heavily used recreational resource. Devon is a principal user, but certainly not the only user.” 

The county issues leases within a delineated shellfish cultivation zone. The zone includes State Department of Environmental Conservation-issued Temporary Marine Area Use Assignment locations; historical, private oyster grants, and other contiguous areas where any impacts or conflicts arising from aquaculture activity have been deemed minimal, according to the program’s overview. 

Lease applicants must obtain permits from government agencies for conducting aquaculture on their sites, including a shellfish culture permit from the D.E.C. once a lease has been issued. Leases are open to those planning to develop a commercial shellfish aquaculture operation. The program requires an initial $100 application fee and an annual lease fee of $200 plus $5 per acre, and $200 for private oyster grants. 

Public meetings were held on June 30 and July 26 in Hauppauge to review and consider lease applications for 55 sites submitted under the 2017 application cycle. Applicants in 2016 included Promised Land Mariculture Co., Empire State Shellfish Co., SeaJay Oyster Farming, and Winter Harbor Oyster Co., as well as individuals. 

The program is expected to grow. New shellfish aquaculture leases will be limited to a total of 60 additional acres per year, for a total of 600 acres by the tenth year of the program’s implementation. The program also provides municipalities, researchers, and not-for-profit groups with noncommercial shellfish cultivation leases for experimental, educational, and shellfish resource restoration purposes.

Bivalves such as oysters, hard clams, and scallops filter the water as they feed, which helps to mitigate an overabundance of nutrients that promote algal blooms such as brown tide, which can kill shellfish and finfish. According to the county, dense shellfish populations on farm sites would also augment the spawning potential of native populations. 

The aquaculture lease program “holds great promise in terms of improved water quality and revival of a shellfish industry that once provided considerable economic benefits, not to mention very tasty appetizers,” Mr. Dale said last fall. 

But not everyone believes commercial shellfish mariculture of this type — which favors some species above others — is always an unmitigated plus for the environment. In California, the National Park Service, concerned that oyster waste would damage eelgrass, among other things, tried to limit the activities of the Drakes Bay Oyster Company; the National Audubon Society took another oyster company to court over concerns about its impact on the habitat of birds, plants, and invertebrates. And various studies have explored the positives and negatives of off-bottom cultivation of shellfish (the sort approved for Gardiner’s Bay), which throws shade on the bottomland and seagrasses below.

The program’s overview states that the shellfish farms will increase private investment in shellfish aquaculture businesses, and will not present conflicts with commercial fishermen and other user groups.

But, the club complains, the aquaculture lease board did not consider its user group, the recreational boaters of Devon, before it granted leases in July.