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Uncovered

Shell game: Conflict, secrecy cloud battle over SC oyster farming permit

Shell game: Conflict, secrecy cloud battle over SC oyster farming permit

JAMES ISLAND — A conflict of interest involving a floating oyster farm in a popular creek has spawned hard questions about government secrecy, insider dealing and the sanctity of public lands in South Carolina.

Caged oyster farming has become a growing and potentially lucrative industry in recent years. It offers the promise of eco-friendly jobs and year-round, succulent bivalves for Charleston’s renowned dining scene.

But a battle over one such operation sparked a state ethics investigation. That probe found a Department of Natural Resources permit coordinator had used his position to help his brother win approval to grow oysters along a Charleston County creek.

The coordinator later quit his job and became a partner in his brother’s company, an Uncovered investigation found.

The farm won its final approval earlier this year — a month before the former staffer was fined for violating the state’s ethics law.

The episode has drawn fresh scrutiny of South Carolina’s management of commercial oyster farming, a secretive process that largely takes place in closed-door meetings outside of the public’s view.

The state charges far less than its neighbors for the commercial use of its public lands for oyster farming. And by law, DNR says, it must hide from the public the identity and location of those who hold commercial fishing permits, including oyster growers.

Other states are more forthcoming. North Carolina, by contrast, maps its permits online, allowing citizens to see who is harvesting oysters and where. The goal, officials there said, is to provide needed transparency surrounding the use of public resources.

The conflict on Green Creek came to light as a result of nearby islanders opposing an oyster farm they insist will pose threats to boating safety and water access.

The Post and Courier obtained a trove of documents related to the case as part of its Uncovered series, which aims to shine light on questionable government conduct throughout South Carolina.

Thomas Bierce, who runs Charleston Oyster Farm on Green Creek, declined to comment for this article, saying only that his brother is no longer affiliated with the business.

On social media, however, he has scoffed at the notion that his brother’s involvement somehow swayed a three-agency permitting process. State and federal officials take a similar stance.

Charleston Oyster Farm’s attorney, Cody Lenhardt, noted that DNR’s final approval for the farm didn’t arrive until January of this year, some five years after Bierce’s brother left the agency.

The controversy comes amid a larger tug-of-war between the floating farms and critics who object to seeing and navigating around the operations. At present, eight oyster farms are permitted to use floating gear within some 75 acres of coastal waters.

Sen. Chip Campsen, an Isle of Palms Republican, said these farms are approved with little public notice in a process that seems weighted toward growers. Over time, this threatens to push the public out of prized fishing holes and duck blinds in return for leases that net the state just $5 to $10 an acre, he said.

In 2018, Charleston growers reported about $645,000 in oyster sales to local restaurants, according to the S.C. Shellfish Growers Association. 

North Carolina charges $100 an acre for similar leases. In Georgia, which is just venturing into floating oyster farms, the fee is $50 an acre, officials there said.

“Something doesn’t smell right about all of it,” Campsen said. “You are depriving people of public waters that they own. And you are ceding that for a pittance.”

Green Creek bend.jpg

Curves on Green Creek at low tide on Thursday, April 8, 2021. Grace Beahm Alford/Staff

Floating controversy

A spray of salty air whipped through the low-slung boat as it sliced through the chilly water of the Stono River on an April afternoon. Up ahead lay the marshy backside of Folly Island, the luxurious enclaves of Kiawah and the shimmering Atlantic Ocean beyond.

Just shy of those marks, the boat swung into a calm channel where acres of green sawgrass rustled in the breeze beneath a powder blue sky. This is Green Creek, a sparkling ribbon of water that snakes through a warren of small islands all but invisible from traffic-clogged Folly Road less than 3 miles away.

Nearby is Coles Island, once home to a Confederate artillery station during the Civil War. And Pumpkin Island, supposedly named for what a harvest moon resembled as it rose over the ocean on a pleasant Lowcountry night.

With little high ground to build on and no running water, there are few homes and even fewer full-time residents. This meandering tributary and its network of small islands is a place where the only sound on a given day might be the cawing of gliding gulls, the casting of a shrimp net or the whine of a boat’s engine as it pulls a skier in tow.

The creek was empty this afternoon as a retired lawyer named Clem Ripley guided his 18-foot craft around a bend. Up ahead lay a series of black floating boxes bobbing in a neat line. The floats were attached to cages beneath the surface.

The cages are owned by Thomas Bierce and his Charleston Oyster Farm. Soon, there could be hundreds more just like them along this shore.

Clem Ripley .jpg

Clem Ripley is concerned about the possible crowding of James Island's Green Greek with an oyster farm operation. Grace Beahm Alford/Staff

Growers like Bierce use floating cages that can be tethered to the bottom of a river or creek bed. Farmers regularly take out the shellfish while they’re growing to spin them in drums. That shapes and grades them into premium select singles that can be served on the half shell in trendy restaurants.

It takes about a year to bring them to maturity. Along the way, these bivalves filter the water as wild oyster beds decline across the state.

Ripley built a home just up the creek from this spot about 20 years ago, a fortress of solitude for when he retired from a bustling legal career in Chicago. It’s powered by the sun and accessible only by boat. So think of Green Creek as his liquid driveway.

The operation here doesn't look like much now. But permits allow Charleston Oyster Farm to place as many as 330 cages along the creek, covering just over 2 acres.

Ripley and others worry the floating farm will create a hazard; make the narrow creek difficult to navigate; and deprive the public of a prized spot for boating, shrimping and angling.

And they are convinced that Peter Bierce’s job at DNR gave the brothers an inside track to make this all happen.

“They would effectively take over this part of the creek,” Ripley said. “It will make this into a specific place of business.”

The yearslong permitting process required approvals from DNR, the state Department of Health and Environmental Control, and the Army Corps of Engineers. Officials at the three agencies say they stand by their findings that the creek can accommodate the farm. They, and the farm’s lawyer, note that a state judge came to the same conclusion after a lengthy legal challenge.

But Ripley and his fellow islanders lack confidence in these findings, particularly after their digging unearthed a troubling conflict that helped set this process in motion.

A conflict emerges

Alarm spread quickly across the islands when word of the planned oyster farm surfaced publicly in late 2016, about a year after Bierce first approached DNR with his proposal. Anxiety rose when the islanders learned the venture had already received conditional approval from the Department of Natural Resources.

DNR officials say the term is a bit of a misnomer, as it simply marks the point where more formal and rigorous reviews begin by the agency, DHEC and the Army Corps. But to Ripley and his fellow islanders, it sounded like a done deal. Seeing the creek as too narrow to support such an operation, they dug in and prepared for a fight.

That battle would stretch on for nearly three more years before winding up in an administrative law court, where a judge eventually sided with the state in granting the first of three needed approvals. But along the way, the islanders and their attorney amassed a thick raft of state memos, emails and other records that unveiled the conflict at the heart of it all.

Those records would form the basis of an ethics complaint filed in 2019. It accused Peter Bierce of using his position for economic gain while concealing his ties to his brother’s business from his colleagues at DNR.

The complaint indicates the episode played out this way:

Thomas Bierce applied for an oyster farming permit on Dec. 3, 2015, through his business, Charleston Mooring and Marine.

The request went straight to his twin brother Peter, a DNR permit coordinator who served as the primary contact for people seeking to grow oysters commercially. In that position, Peter Bierce had access to fishery data unavailable to the general public. And he served on an agency committee that could recommend permit requests for approval. 

Walking to wild oysters.jpg (copy)

Tom Bierce, owner of Charleston Oyster Farm, trudges towards clusters of wild oysters on the bank of the Stono River in 2019. File/Lauren Petracca/Staff

A week after his brother’s proposal was submitted and again in January 2016, Peter Bierce emailed the Army Corps to discuss the need for a meeting on the permit application. He indicated that he and other DNR staffers had already reviewed the proposal and “we are satisfied with the application on this end.”

The emails made no mention of the fact that the company was owned by his brother, or that the pair were in the process of purchasing a small island just around the corner, with a dock.

In fact, a January 2016 email exchange between Thomas Bierce and the brothers’ accountant indicated his desire to leave Peter’s name off paperwork associated with their purchase of Goat Island. The stated reason: Peter had a conflict of interest.

In a later deposition, Peter Bierce stated that he invested $25,000 toward the island purchase.

In February 2016, his supervisor at DNR intervened and took over handling of the Green Creek oyster farm application. In an email, she told Thomas Bierce she would now serve as the project manager because “Peter obviously has a conflict of interest and none of us need that to come back and bite us.”

She also alerted the Army Corps to the conflict, but the application went forward all the same, despite Peter Bierce’s initial involvement with the review.

Now sidelined from that process, Peter Bierce remained involved behind the scenes in his brother's business. In April of that year, he initially used his DNR email account to arrange for the purchase of oyster equipment for another site. The seller commended him for doing so, suggesting that his connection to DNR would afford him a better rate, according to the emails.

“We are thinking 'Charleston Oyster Farm' for the business name,” Peter Bierce told the seller.

Bierce would go on to leave DNR in September 2016, and emails indicate he was cautioned by his bosses to avoid involvement in his brother’s business for at least a year. But that didn’t stop him from emailing a contact at a local nonprofit seeking support for the oyster farm plan at a public hearing. He stated that he was starting the farm with his brother but would remain a silent partner for the time being due to DNR’s warning.

In December 2017, Peter Bierce made his participation public, becoming a co-owner of Charleston Oyster Farm.

Sifting through oysters.jpg (copy) (copy)

Peter Bierce, former co-owner of Charleston Oyster Farm, sifts through oysters from their cages in September 2019. Bierce, a former state employee, agreed to pay an ethics fine in January after he was found to have improperly participated in the permit process for an oyster farm proposed by his twin brother's company. File/Lauren Petracca/Staff

The complaint Ripley filed against him resulted in a consent order from the State Ethics Commission in January of this year, finding that Peter Bierce violated South Carolina’s ethics law by participating in his brother’s permit. His punishment: $700 in fines and fees.

Bierce maintained that he did not use his state position to help his brother’s company win approval. But he accepted the punishment, stressing in the order that his violation was “inadvertent and unintentional.”

It’s unclear just how much the Bierces stand to benefit if all the cages allowed by the permits are installed. The cages generally hold up to 1,000 oysters that can fetch between 85 cents and $1 a pop, depending on who you ask. At 330 cages, that could put their annual haul north of a quarter-million dollars a year, critics contend.

Thomas Bierce told The Post and Courier his brother would not comment for this article, as he has since left the company for another job. The farm’s attorney, who also represents Peter Bierce, said the consent order speaks for itself and required no further comment.

Push for transparency

Islanders maintain that DNR should have restarted the permit process as soon as the ethical conflict was discovered to ensure everything had been done by the book. It’s a position shared by state Sen. Sandy Senn, a Charleston Republican who has earned the growers’ wrath in recent months by calling for more guardrails on the industry.

“Once you know for sure you have an ethical violation on a permit application and people are putting a magnifying glass on it, why in the world wouldn’t you say, ‘This one is gone. You can try again,’ ” she said.

DNR said Peter Bierce never had decision-making authority over the agency’s permit for the oyster farm, and staff found no problems with the application after his conflict was identified. So the process was allowed to proceed.

DHEC and the Army Corps said Bierce’s involvement had no bearing on their independent reviews, and they stand by their decisions to issue permits as well .

Earlier this year, Thomas Bierce and other growers tangled with Senn on a Facebook group for Charleston boaters after she sponsored a bill to bar summer harvests. When Bierce weighed in, Senn questioned whether he was related to the former DNR worker who had been “hammered with a state ethics opinion.”

Bierce shot back that his brother’s involvement didn’t affect the outcome of his permit. He added that there never would have been an ethics case “if SOMEONE hadn’t complained because they weren’t getting their way.”

“Everything was done freely and fairly and I had to fight to get that permit,” he stated. “It was hardly handed to me.”

Senn and her Senate colleague Campsen have continued to push for greater transparency about the permitting process and more public notice about plans for future farms. State law requires that applicants advertise their plans once weekly for three consecutive weeks in a newspaper within the county where the operation would be located.

Thomas Bierce didn’t run his notice until July 2017, more than a year and a half after permitting talks began.

Ben Dyar, head of DNR’s shellfish management program, said the agency has built a more robust online presence to educate the public about the so-called mariculture industry. Among other things, the site has maps, rules and public notices about pending applications that will remain visible for a longer time.

“We’re trying to be a lot more transparent about everything,” he said.

Trey McMillan runs Lowcountry Oyster Company in the ACE Basin and serves as vice president of the S.C. Shellfish Growers Association. He said the industry wants greater transparency and public education to combat a host of misinformation floating around about its practices and intentions.

“We welcome the chance to show people our operations,” he said.

Green Creek view.jpg

A view of Green Creek from a small, undeveloped hummock that has been a family's camping spot for years. Grace Beahm Alford/Staff

Jack Rackley owns a small, undeveloped hummock on Green Creek, just across from Thomas Bierce’s 10 cages. He watched his children grow up there on myriad camping trips — boating, shrimping, crabbing and taking in spectacular sunsets.

Rackley insists he has no problem with industry, but he frets about what the future holds for this slice of Lowcountry that he calls a spiritual spot for his family.

State officials say there is no need to worry, that agencies will keep tabs on the Bierce operation to make sure it is meeting the terms of its permits. Charleston Oyster Farm’s lawyer said the company hasn’t determined whether it will put in the full number of cages allowed under its permits or when that might occur.

So for now, the public remains in the dark about what lies ahead.

Reach Glenn Smith at 843-937-5556. Follow him on Twitter @glennsmith5.

Watchdog/Public Service Editor

Glenn Smith is editor of the Watchdog and Public Service team and helped write the newspaper’s Pulitzer Prize-winning investigation, “Till Death Do Us Part.” Reach him securely on Signal at 843-607-0809 or by email at gsmith5@protonmail.com.

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