The U.S. Army Corps of Engineers has granted Frank M. Flower & Sons Inc. permission to harvest shellfish in Oyster Bay until March 2022, but a national environmental group says it still plans to sue the company for what it considers a violation of the federal Clean Water Act.
In a letter to Flower dated Tuesday, the Army Corps stated the company can conduct mechanized harvesting of shellfish in the bay if it meets other conditions, including that it receive all legally required permits and authorizations.
James Cammarata, an attorney for Flower, said Wednesday that the company has for years “been operating with all the proper permits and we’ve been operating within the confines of the law. If Earth Justice or their representatives want to move forward with their litigation, they’re certainly entitled to do that.”
Flower had been legally operating under Department of the Army Nationwide General Permit No. 48 before the Corp’s “verification letter” was released, agency spokesman Michael Embrich said.
Flower holds a lease with the Town of Oyster Bay to harvest shellfish in more than 1,800 acres of Oyster Bay and Cold Spring Harbor through 2024. Cammarata said the company only harvests between 100 and 200 acres a year.
Christopher Amato, an attorney for San Francisco-based Earth Justice, said Flower lacks state Department of Environmental Conservation water quality certification and until the company obtains it, its shellfish harvesting violates the Clean Water Act, which DEC enforces in New York State.
DEC said in a statement Wednesday that because the Corps determined shellfish harvesting in Oyster Bay is under federal jurisdiction, no DEC water-quality certificate is required.
Independent shellfish harvesters have for years alleged that Flower’s harvesting violates environmental law. Earth Justice on March 20 notified Flower it intended to sue to block Flower from using its mechanical harvesting technique until it obtains required permits and certification.
The Army Corps letter does not change Earth Justice’s legal argument, Amato said.
“Our position has always been and continues to be that this operation does not and cannot qualify for nationwide permit 48” because it doesn’t have the state water-quality certification, he said.
Earth Justice is representing the North Oyster Bay Baymen’s Association, Sag Harbor-based Defend H20 and the Washington, D.C.-based Center for Food Safety.
The Army Corps previously had granted permission for Flower to operate under the nationwide permit. With the new letter, the permission now runs until March 2022.