Sapowet Marsh oyster farm still in limbo, even after law banning it

On By Rgal Nv

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In the final days of the legislative session, the Rhode Island General Assembly took the unusual step of passing a narrowly targeted law that blocked two Little Compton brothers from starting an oyster farm in Tiverton’s Sapowet Cove.

Or did it?

More than two months later, that’s still unclear. The Coastal Resources Management Council, which would normally have the power to approve or reject Patrick and John “Sean” Bowen‘s application for a 0.9-acre oyster farm, isn’t ready to agree that the legislature circumvented that process and doomed the brothers’ proposal.

Among the unsettled questions: Does the new law even apply to the Bowens, who applied for the aquaculture lease more than 4½ years ago?

And what exactly was the intent of the bill, touted as a way to “protect” the Sapowet Marsh Management Area from commercial development?

When the broadly worded legislation received an initial hearing back in February, its House sponsor, Rep. John “Jay” Edwards, D-Tiverton, insisted that it was “not about the oyster farm.” But opponents now argue that the bill – which makes no explicit mention of aquaculture – was clearly designed to kill the Bowens’ proposal.

The dispute seems almost destined to wind up in court, even though the Bowens, who frame it as a battle between year-round residents and wealthy summer home owners, adamantly refuse to lawyer up like their opponents.

“This isn’t about oyster farming anymore,” Sean Bowen told The Providence Journal. “And hasn’t been for a while.”

Little Compton brothers have been waiting for a decision for years

The Bowen brothers, fourth-generation Little Compton residents, worked on a local oyster farm back in middle school. Over the years, while pursuing parallel careers as educators and small-scale farmers, they held on to the dream of starting their own.

After their parents died, they decided that the moment was right.

They envisioned growing 25,000 oysters in their first year and working their way up to 150,000, Sean said.

He estimates that they could have grown as many as 300,000 during the time that they’ve been waiting on a decision from the coastal council.

Even some opponents agree with the Bowens on one thing: The process should never have taken this long.

“My personal stance is that this application should have been rejected very early on,” said Michael Woods, New England chair of Backcountry Hunters & Anglers. “It shouldn’t have been allowed to get to this point.”

Oyster farm received key approvals before landing in bureaucratic limbo

Objection to the brothers’ proposed oyster farm – which would be one of the smallest in the state – stems from their plan to locate it roughly 500 feet from the state-owned Sapowet Marsh Management Area, an under-the-radar destination for catching striped bass.

The concern is that recreational fishermen would risk snagging a line on the underwater cages.

Kenneth Mendeza prominent Washington, DC, nonprofit executive with a home near Sapowet Cove, wrote to the Coastal Resources Management Council in May 2020 saying the farm would “displace” recreational activities.

But the application continued to move forward, receiving key approvals from coastal council staff and the Department of Environmental Management.

In June 2021, shortly before the politically appointed council was slated to hold its final hearing, Mendez and his wife hired Marisa Desautel, one of the state’s preeminent land-use attorneys, and requested a delay. The vote was postponed indefinitely. Meanwhile, the Mendezes began going door to door and rallying opposition.

Many of their neighbors were unaware of the proposal, but they quickly became vocal objectors. Six hired their own attorney, Dean Wagner of Savage Law Group – and the Bowens’ application entered a years-long state of bureaucratic limbo.

“They’ve dragged us into a lawyer’s game,” Sean said. “And it’s hard to be an oyster farmer in a lawyer’s game.”

Opponents lobbied for three years to change the law

With the Bowens’ application stalled, and no decision from the coastal council in sight, the debate moved to the State House.

In 2022, Edwards introduced a bill that would have prohibited the council from approving aquaculture leases within 1,000 feet of the mean high tide line. After critics pointed out that it would have made most of Rhode Island’s salt ponds off-limits to oyster farms, he introduced a more narrowly targeted version in 2023.

The revised bill, sponsored in the Senate by Sen. Louis DiPalma, D-Middletown, would have applied only to the Sakonnet River for the duration of a two-year pilot program. But that, too, went nowhere.

In 2024, Edwards and DiPalma introduced companion bills targeting only Sapowet Cove, where the Bowens have the only pending aquaculture application.

Despite making no specific mention of oyster farms, the legislation stated that the cove could not be used for any purpose other than “passive outdoor recreation.” Virtually all the public testimony – for and against – centered on the merits of the Bowens’ proposal.

‘Spot zoning’ or a ‘unique situation’?

To the Bowens, carving out a hyper-specific piece of Narragansett Bay and banning the Coastal Resources Management Council from granting aquaculture leases amounted to “spot zoning.” Council director Jeffrey Willis didn’t go that far, but he expressed concerns that the law would “effectively usurp” the agency’s process.

Woods, on the other hand, described Sapowet as a “unique situation.”

“This is a place where we did see a need for the General Assembly to intervene,” he said. “Because CRMC was not serving anyone involved by letting it go on for this long, or letting it get this complicated.”

Back in November, in a move that seemed certain to prolong the decision-making process even further, the council voted to refer the Bowens’ application to a quasi-judicial hearing officer. In theory, that’s supposed to happen with all contested cases, but until attorney Mark Krieger was appointed as the agency’s first hearing officer in 2023, the position was vacant for decades.

As a result, there was no precedent for how the hearing process was supposed to work, and Krieger had the unenviable job of sitting down with both sides to figure it out.

The two sides were still focused on procedural matters and hadn’t even gotten to the substance of the 1,100-page application file when the General Assembly stepped in and upended those discussions.

“It’s pretty significant,” Woods said. “I can’t think of any other scenario where the legislature has had the political will to intervene in a matter of this fate.”

Bills passed with little debate, but goes fight on

The identical companion bills placing restrictions on Sapowet Cove were among dozens that cleared the Senate with minimal discussion in the frantic final hours of the legislative session. A week earlier, the House passed the legislation along party lines.

House Minority Leader Michael ChippendaleR-Foster, who characterized the issue as a not-in-my-backyard dispute, was the only lawyer to speak in opposition.

“There are certain folks with wonderful views from their multimillion-dollar homes who don’t like seeing things floating in the water in front of their house – I get it,” he said, before expressing concern that “carving out little areas of sanctity “would set a bad precedent.

At the end of June, Gov. Dan McKee allowed the bills to become law without his signature. Asked why he chose not to sign them, explaining Olivia DaRocha responded, “The bill is centered on a local issue, and it’s not uncommon for the Governor to let these pass without signature.”

By midsummer, most of the neon “Save Seapowet” signs that once littered Tiverton’s roadways were gone.

But it’s not clear if oyster farm opponents can declare victory just yet: The Coastal Resources Management Council has yet to decide if it’s going to throw out the Bowens’ application.

In July, Krieger instructed both sides to submit briefs outlining their arguments. Even though it puts them at a disadvantage, the Bowens remain stalwart in their refusal to hire attorneys and have spent much of their summer filing motions and researching case law.

“They’ve been throwing the kitchen sink at us, and we’ve been throwing it back at them,” Sean said.

‘I really have no idea what they’re going to do’

Among the Bowens’ contentions is that the law doesn’t apply retroactively and therefore has no bearing on the application that they submitted nearly five years ago.

Opponents, on the other hand, counter that simply filing that application didn’t entitle the brothers to anything.

“They don’t have a lease, they don’t have a contract,” Woods said. “All they have is a proposal.”

The Bowens also argues that the law is so poorly written and full of loopholes that it may not actually ban aquaculture. But opponents say that the legislative intent was clear.

“While the law does not specifically reference aquaculture, there was discussion during the legislative process making it clear that this law would prohibit commercial aquaculture in that area and the Bowen application,” Mendez wrote in an email. “Legislators from across the state of RI were informed and aware of this as part of the legislative process.”

At the July meeting, Krieger indicated that he plans to hold a public hearing in Tiverton and hear arguments from both sides before making a recommendation to the coastal council.

But even if he comes to the conclusion that the new law forces the council to reject the Bowens’ application, Woods pointed out that the council might just ignore those findings and grant the lease anyway.

“It would not be the first time they did something in defiance of the laws that were passed by the legislature,” he said. “So I really have no idea what they’re going to do.”

The Bowens, to some extent, agree. They’re optimistic that the council will look at their application favorably whenever they finally get a hearing. And they suspect that objectors have been pulling out the stops to prevent that from happening.

“My sense is this is how people with money get what they want,” Patrick said. “They exhaust every possible option, and try to beat people over the head until they give up.”