In Oyster Bay, state permit to transplant clams draws criticism

A shell fishing company can transplant clams again from the protected Mill Neck Creek to Oyster Bay Harbor for harvesting under a permit the state issued on March 31.

The New York State Department of Environmental Conservation permit allows Frank M. Flower & Sons Inc. to transplant hard clams from a 62.7-acre area in the creek to one of four areas in eastern Oyster Bay Harbor — an inlet of Long Island Sound — from April 3 through Oct. 10.

Last year the Town of Oyster Bay, which leases underwater land to Frank M. Flower & Sons Inc. for shell fishing, unsuccessfully sued the DEC to try to stop the transplanting.

The DEC’s decision to again allow the company to use mechanical harvesting vessels to move the clams from uncertified areas to certified areas is the latest development in a long saga of conflict over shell fishing in Oyster Bay.

Frank M. Flower & Sons Inc. has harvested shellfish from the bay for more than 100 years but with its latest town lease — from 1994 — expiring next year and no new lease in place, the company's role and the future of shell fishing in the harbor are uncertain.

Underwater land areas where year-round harvesting of clams for use as food is permitted are known as certified areas — a designation based on sanitary conditions. Areas where harvesting isn't allowed are called uncertified areas. Underwater portions where harvesting is allowed only during certain times of the year are known as seasonally-certified areas.

Shellfish transplanted from an uncertified area cannot be harvested for human consumption unless they have gone through a natural cleaning process.

When clams from uncertified areas arrive at one of the designated areas, that area will become decertified.

When the transplanting of new clams to that area stops, the company will notify the DEC. The DEC will recertify that area after water temperatures have been at a minimum of 50 degrees for at least 21 days and the cleaning is complete.

 The new permit has drawn criticism.

“The uncertified waters of Mill Neck Creek serve as an undisturbed spawning sanctuary that can help repopulate the bay,” Friends of the Bay said in a recent letter to the DEC.

It said Frank M. Flower & Sons Inc. threatens to leave the area shellfish population "catastrophically over-harvested."

The DEC issued a permit to the company in 2020 to transplant clams, but withdrew it after town officials declined to monitor the program. In 2022, the DEC issued a new permit with a provision that it would provide the monitoring.

“DEC strictly monitors the transplant program to ensure permitted activities within harvest and cleansing areas are undertaken in compliance with permit conditions to protect public health and the environment,” the agency said in a statement last week.

 The DEC statement added that the agency was working with the U.S. Army Corps of Engineers, town officials and Frank M. Flower & Sons Inc. "to ensure all transplanting activities are conducted as approved under the authorizations provided.”  

Mill Neck Creek is uncertified because of high levels of bacteria, according to a court filing.

 Mill Neck Creek was the site of a shellfish hatchery Frank M. Flower & Sons Inc. operated for years to seed the harbor, but the company closed the hatchery in 2019 when it became uncertain whether the town would renew the company's lease.  

Oyster Bay Supervisor Joseph Saladino said in a statement Friday that it's "irresponsible" of the state "to issue a permit that allows a profit-driven company to reverse years of progress made by the Town and local environmental advocates in protecting the harbor and local marine life."

The company’s attorney, James Cammarata, declined to comment about the permit. He wrote in 2022 court filings that the DEC had let his client transplant shellfish for years and "has a long history of monitoring, protecting, and delivering quality shellfish to the marketplace.”

 Last year, a state judge declined to issue an injunction that Oyster Bay officials sought to stop the transplanting. In January, the judge dismissed the town’s lawsuit as moot because that permit had expired Sept. 1.