MALE: You’re listening to Environmentally Speaking, a weekly podcast diving into legal matters surrounding the environment, public utilities, energy, zoning, and permitting laws in Rhode Island and the surrounding areas with your host Marisa Desautel.CLARICE: All right. Hello, everybody. I’m not going to say good morning or good afternoon. I remember that from last week. But thank you guys for all tuning in to Environmentally Speaking.

MARISA: I am Marisa Desautel an attorney with a few decades of experience.

CLARICE: And I’m Clarice coming in with your questions and topics for discussion. So before we hop into our topic, I want to say a couple weeks ago I did a little shout out asking for ratings, reviews, subscriptions, things like that that just help podcasts along and three of you did. We got three five-star reviews.

MARISA: No kidding.

CLARICE: Yeah.

MARISA: Wait. Was one of them from me?

CLARICE: So, I mean, talk about an ego boost. I don’t know. I don’t have Apple products, so I couldn’t see who.

MARISA: It was probably all from me.

CLARICE: You can’t rate it three times.

MARISA: How would you know? You don’t have Apple products..

CLARICE: I’m taking it as three compliments and I am thanking Marisa three times or whoever else out there felt the need to do that, so.

MARISA: Oh, that’s wonderful.

CLARICE: It was very lovely.

MARISA: Yeah, thanks.

CLARICE: We see it. We appreciate it. So what are we chatting about today? You said that we’ve got a hot government topic.

MARISA: We do. In state government here in Rhode Island aquaculture has been very prominent in discussions in the media, in the professional capacity, at the state government level including various agencies and then also with the judiciary – excuse me, not the judiciary – the legislature. There are three branches of government, the legislature – not the judiciary – legislature has been looking into practices of various state agencies and trying to make determinations about whether there’s a better path forward for the agencies that are involved with permitting aquaculture projects.

CLARICE: Let’s back up just a pinch. So aquaculture, very similar to agriculture. Agriculture is planting your fruits and vegies. Aquaculture is a water-based farm in the sense of it’s like salmon farms or oysters or clams or, you know, different types of fish. I believe it even extends out to types of seaweeds. So it’s farming but it’s in the sea.

MARISA: Clarice, is all of this coastal law rubbing off on you?

CLARICE: In the slightest most minute fashion. I also love seafood.

[0:03:00] MARISA: Okay.

CLARICE: I will learn it if it is for dinner.

MARISA: So for those seafood lovers out there, this might be an interesting topic. In Rhode Island as well as other states – but since we are in Rhode Island, I’m talking about Rhode Island – there is a principal known as the public trust doctrine and it applies to aquaculture projects for the most part. There’s always exceptions, right. Your explanation and definition of aquaculture is spot on. Celebration. The aquaculture industry is composed of folks that are looking to create farms that are water dependent to grow and then eventually harvest and sell on the open market exactly what you said, fin fish, shellfish, sometimes lobster, kind of depends on the body of water that you’re looking at. But they are products that require water to grow and flourish.

And it makes a lot of sense that you’d want to have government involved with the permitting of these types of projects because if you know anything about the history of our oceans and what’s considered to be a state-owned water body, you’ve got an inherent issue with competing uses. Take, for example, Newport where our offices are located. Newport is one of the biggest boating and fishing capitals in the world. It’s very well known for those types of uses and they’ve been in place for a very long time. What happens if you’ve got a new company that comes in and wants to put an oyster farm in a particular area that they know is good for the type of oyster harvesting that they want to do. Or let’s say a kayaking company comes in and they want to store their boats, or they want to use a particular launch point. It’s almost guaranteed especially in a place like Newport that you’re going to have an immediate conflicting or competing use for that same area. So what do you do. What do you think?

CLARICE: And specifically, though, backing up, we say especially in a place like Newport because it is such a water-dependent community and it has such a popular use of it.

MARISA: Right.

CLARICE: So the competing uses comes from its extreme desire and its popularity in the area.

MARISA: Right.

CLARICE: If you were, say, somewhere like out in the Ozarks or the Outer Banks where there’s most coastline and the towns are a little bit smaller and more vacation cottage style versus full-time community luxury boats, actual seaports, this conversation would look totally different.

MARISA: For the time being. And you bring up a very good point that a lot of the issues that we’re seeing now with competing uses has to do with human overpopulation. I’m going to get on my soapbox here for a second and probably not make any fans, but a lot of the environment issues that we have or that we’re experiencing are a result of human overpopulation. There’s just too many people on the planet and not enough resources to go around.

So the more that we continue to populate, the more you’re going to see these issues coming up. And especially with climate change and ocean warming, you’re going to start to lose a lot of coastal-facing property. Places like the Ozarks, the Outer Banks, they might be small town now, but people are going to start habituating in those areas and you’re going to start seeing more of the Newport type conflicting use issues in those smaller areas that seem more spread out with more water dependent use area available.

CLARICE: That’s a good point. I’m also going to blame Netflix. Apparently they have a show called Outer Banks and now everybody’s obsessed with the place.

MARISA: Well, there’s also a show called Ozark..

CLARICE: Oh, I do love Ozark.

MARISA: It’s a really great show.

CLARICE: Okay. So we’re back in Newport. I want to put a kayak business in place. First steps, I guess, is to check to see what permits are needed to start my business.

MARISA: Yes. And this is where hiring an environmental or a coastal zone law attorney is a really good idea because if you don’t know – if you don’t know what you’re doing, you want to go to someone that does. You don’t know what you don’t know, so it’s always a good idea to get advice from someone that has gone through the process before you and can advise and help with making sure that you’re checking all the boxes and applying for all of the permits and approvals that you need.

In the case of a kayak center, yes, you first want to approach the municipality to see what their permitting requirements are. Then you’d want to go to the state, or, you know, reverse that order. It’s fine. But you definitely want to check with both state and local government to see what it is that they require before you can start operating. And that’s just on the public trust issue. That has nothing to do with your setting up an LLC or your tax law. This is a very finite area of operation and the law industry. I want to make that clear. You have to do a lot. If you want to open a kayak business, you have to do a lot more than just check with your state and local government.

CLARICE: Or just hire an attorney and let them tell you what to do.

MARISA: That’s exactly right.

CLARICE: Because I literally started that answer with, I think you do this. If I’m already putting a question mark at the end, I’m going to hire somebody.

MARISA: Right. Yeah.

CLARICE: Leave the kayaking to me. I’m outsourcing that half.

MARISA: So in terms of the – let’s go with the kayak example again, but it also applies to aquaculture in the state. Let’s say you want to put your portage or your entry in an area – or entry point in an area that’s already being used for a particular use. You generally cannot get approval unless you go through the state process with the Coastal Resources Management Counsel because they are the state entity charged with responsibility over something called the public trust doctrine.

And the history of the public trust doctrine comes from the constitution of the state of Rhode Island. It talks about the authority of the state to hold certain areas in trust for the public because the oceans belong to everyone. And having a central authority regulate who gets to use it at what time and what capacity makes a lot of sense. Otherwise you’ve got people duking it out or the same footprint. And in the context of what’s happening in Rhode Island, you’ve got new industries coming into an area where there is a preexisting conflicting use in some cases.

So you can imagine the conflict and the emotions that go along with that. People feel displaced. They’ve been using a particular area for a long time and now all of a sudden they’re being told by the government, hey, you have to share this area, or in some cases you have to vacate. And so the question becomes, are you really adhering to the public trust doctrine if you’re telling people – you know, maybe a government’s not saying, hey, you have to vacate. But by permitting or allowing a particular activity, they’re constructively saying, you have to vacate because if there’s an oyster farm somewhere and you’ve historically fished in that area you’re not going to be casting, I don’t think, into the oyster farm.

CLARICE: So the public trust doctrine kind of protecting the public’s access in a way to these spaces?

MARISA: It’s meant to.

CLARICE: Okay. And in some cases I’m wondering – I think now my question is how far does it go in terms of granting or keeping access versus allowing other, you know, farms or businesses or, you know, docks or things like that to come in?

MARISA: That’s the million-dollar question. That’s what the state is struggling with right now, trying to figure out how to regulate all of these uses.

CLARICE: So what do you do as an attorney? What do you do next?

MARISA: As always it depends.

CLARICE: Are we waiting to hear – my favorite answer.

MARISA: [inaudible].

CLARICE: Then is this something where legislation is making moves and having discussions trying to bring some clarity to this, or are we looking back to case law to see what’s going on?

MARISA: There’s not a lot of case law on the issue. There’s a little bit, but I think we’re going to start to see more and more of that if people are unhappy or unsatisfied with what government is deciding. You know this. Everyone knows this. That’s how standards are set and decisions are made through the judiciary if folks are unhappy with a particular outcome and they want to appeal it or they bring a separate civil action to try to get an outcome that they actually do want. Down the road I think case law will be more instructive, but for right now it’s the state agencies trying to figure out a better process through regulation and policy and then the legislature taking a look at practices and procedures to see if there’s some statutory changes that can be implicated to make it more efficient and better.

CLARICE: How much public input are they looking for or are they relying on in this phase?

MARISA: Right now with the legislature?

CLARICE: Uh-huh.

MARISA: There is a special subcommittee that’s reviewing the Coastal Resources Management Counsel and they are accepting public comment, public input. I don’t think I have a website available to throw out, but if you were to Google that particular topic it would bring you to the Rhode Island legislative website and there should be instructions there on how to participate if you want.

CLARICE: All right. So this is a hot enough topic where if this is of interest to our listeners they can get involved. They can read up on it and see what’s going on maybe if they’re not Newport based [inaudible] or their corner of Rhode Island.

MARISA: Yeah.

CLARICE: So is there anything else that we’d want to touch on on public trust?

MARISA: I think that we did a podcast a few weeks ago on public trust in terms of mean high tideline and private property repairing rights. This is a little bit different – I want to make that clear – in that you’re looking at a completely water-dependent use conflicting with another water-dependent use where repairing rights are different in that you’ve got a property ownership from the mean high tideline up to your – the end of your lot essentially and they’re just different. It’s the same principal, but there are different types of activities that are contemplated.

CLARICE: That actually brings up a good point. Does public trust – does that only extend to areas that are open to public access? Say I had a waterfront house, which that would be lovely, and that extended clearly to the ocean and I wanted to work with a kayak company, does public trust affect the like end of my yard into the sea, or is that something that isn’t as clear cut as I’m hoping it is?

MARISA: The public trust impacts your riparian property ownership rights from the mean high tideline. If you were interested in allowing a kayak company to drag their kayaks up onto your property, no. That’s not public trust. But if a kayak company wanted to put their kayaks in the water, they’d have to stay below the mean high tideline and they’d have to get approval to do that type of activity from the CRMC.

CLARICE: Okay. So even though it’s got public in the name, it can still affect any sort of waterfront, water adjacent property.

MARISA: Yeah.

CLARICE: So it’s got a big scope that it’s under.

MARISA: Yeah.

CLARICE: All right. And if I was more prepared I would say see our last episode where we discussed mean high tidelines and that sort of water access, but I don’t think I have that number on me. Maybe it was episode 14 and 15.

MARISA: As usual very disappointed in your behavior.

CLARICE: We’ve just recorded so many episodes. [inaudible].

MARISA: I think that’s all I’ve got today. [inaudible].

CLARICE: All righty. So on that note, thank you guys for listening. We appreciate it. We especially appreciate you reviewers. If you want some extra love, write a review. Leave us some stars and then I’ll shout you out next week. But in the meantime if you have any comments, questions, topics you want to hear about, reach out to us at Help@DesautelESQ.com. See our Instagram. You could also DM us on there, as well. And have a good rest of the week, everybody.

MARISA: Thank you. See ya.

MALE: Thank you for listening to this episode of Environmentally Speaking. If you’re in need of an environmental attorney, we are here to help. Call us as 401-477-0023, or visit our website at www.DesautelLaw.com. That’s www.DesautelLaw.com.