October 25, 2015
Rhode Island

RIFF/Bluewater win a round at PUC

By Cassius Shuman | The Block Island Times | Sun, 10/25/2015 | www.blockislandtimes.com

Rhode Island Fast Ferry (RIFF) and Bluewater, LLC may have won a round at the Public Utilities Commission (PUC) for the right to secure dock space at Old Harbor’s inner basin for the purpose of operating a fast ferry service from Quonset Point to Block Island, but the ruling handed down on Tuesday, Oct. 20 by the PUC made it clear that the fight was just beginning.

In response, the town filed a motion with the Division on Oct. 21 asserting that the proposed docking facilities need town approval before the permitting process can commence.

In the Oct. 20 ruling, the Rhode Island Division of Public Utilities and Carriers (PUC) found in favor of RIFF and Bluewater, citing precedence and allowing RIFF to proceed in pursuing its application for a Certificate of Public Convenience and Necessity (CPCN). RIFF is owned by Charles Donadio and Bluewater by Paul Filippi.

The PUC asserted in its findings that the Division was satisfied that RIFF, through Bluewater, has a “realistic expectation of being able to develop a docking facility in Old Harbor.”

“The Division’s Order was a big step in the right direction for both Bluewater and Rhode Island Fast Ferry,” Donadio told The Times. “The last two months of endless legal motions filed by the Town have shown that Nancy Dodge will do whatever it takes to stop this new ferry service from starting up and the island residents need to know that the Town Manager is spending an exorbitant amount of tax payer money to fund this campaign. It is also surprising that Town Manager Nancy Dodge had no issues when Cross Sound Ferry started their new fast ferry with the 600 passenger Jessica W.”

“Even though Interstate and friends are against Bluewater’s proposal, we are receiving strong grass roots support on the island for a ferry service from Quonset,” said Paul Filippi. “Everyone remembers that we had service from Providence for decades until Interstate gave it up. However, people are afraid to speak out against our only ferry company and the Town Manager.”

Also, in the PUC’s order, Division stated that its “concerns with the timeframe connected to RIFF’s and Bluewater’s plans to construct a new dock in Old Harbor were not allayed by the documentary offerings received from Bluewater. Indeed, the Division’s concerns were amplified by the complexity of the proposal and the anticipated and legal wrangling that will inevitably come from the Town’s expected vehement opposition to Bluewater’s efforts to persuade the Army Corps of Engineers and the Coastal Resources Management Council that its proposed wharfing-out in the locations identified in the record is in the public interest.”

The PUC noted in its findings that it also “has significant concerns with the timeframe attached to RIFF’s plan to utilize a dock that does not presently exist” at Old Harbor.

As part of its decision, the Division ordered that “Bluewater’s motion to quash the Town’s request to conduct additional discovery at this time with respect to Mr. Paul Filippi’s and Bluewater’s efforts to develop a dock in Old Harbor is hereby granted.” The Division’s findings were ruled upon and drafted by Hearing Officer John Spirito, Jr., Esq., and approved by Thomas F. Ahern, Administrator.

The PUC has requested that RIFF “submit a chronology of the various anticipated regulatory steps and approvals concomitant with Bluewater’s plans to construct a docking facility at Old Harbor” by Nov. 16, 2015. “RIFF shall also provide the Division with an anticipated start-date for its proposed services. RIFF’s projected start-date should include a detailed breakdown of how the start-date was determined.”

The PUC issued these findings in response to Bluewater’s objections to the Town of New Shoreham’s request for production of documents and to depose Paul Filippi. Bluewater had countered the town’s request by filing the objection on Oct. 9, 2015, through attorney Steve Overturf citing the legal term known as the ‘condition-subsequent standard’ and noted documentation from several expert sources who declared that RIFF and Bluewater could conceivably provide suitable dock space at Old Harbor’s inner basin.

In Filippi’s memorandum, filed with the PUC on Oct. 9, Bluewater cited a number of cases where the Division granted approvals to applicants who did not possess “legal access to docks” or before docks were even constructed. Supporting documentation was presented in a letter from Washington, DC law firm Kelley, Drye & Warren, LLP (KDW) that specializes in permitting cases before the Army Corps of Engineers, and has been assisting Bluewater in its endeavors to obtain permits from the Army Corps for additional dock space at Old Harbor.

The Army Corps upheld Bluewater’s claims that ownership and riparian rights at Old Harbor’s inner basin are not required in the Corps’ permitting process or Division’s condition-subsequent standard, and that lot 158, plat 6 and the “Mount Hope” dock, the proposed dockage sites, are federal land, completely controlled by the Army Corps.

To further bolster its argument for dockage space at Old Harbor, as part of its Oct. 9 filing, Bluewater submitted a letter from a local licensed engineer, Richard St. Jean, who met with the Army Corps and stated that, “We feel that the project is a viable solution to the lack of docking opportunities in Old Harbor for the Rhode Island Fast Ferry.”

Bluewater also “proffered a letter from Messrs. Jeff Boyd and Tom Delotto of MMCNV/Anaconda, Ltd., which is a Netherlands Antilles company that specializes in marina development projects. Messrs. Boyd and Delotto state: “…it is our professional opinion that both of these locations provide a viable spot for the successful construction and operation of a dock.”

In the Oct. 20 PUC docket (D-13-51), the Division stated that “based on the documents attached to Bluewater’s Oct. 9 Response and Objections, the Division is satisfied that RIFF, through Bluewater, has a realistic expectation of being able to develop a docking facility in Old Harbor. The Division finds that additional discovery into this matter is unnecessary.”

“We are pleased that the PUC agreed with Bluewater that it’s proposed piers are viable and buildable,” said Filippi. “After all the Mount Hope dock was the main dock for the whole Island for 50 years.”

RIFF must submit its chronology for the timeframe for the proposed fast ferry service, along with Bluewater’s dockage construction plans at Old Harbor, to the PUC by the Nov. 16 deadline.

“We plan to submit to the Hearing Officer a realistic timeframe with the ultimate goal to start-up this new ferry service from Quonset Point as soon as possible,” said Donadio.

In response to the Division’s order, New Shoreham Town Solicitor Katherine Merolla filed a motion with the PUC on Oct. 21 that stated: “Under the Ferry case and the rules of the Rhode Island Supreme Court, the Town did not respond to the merits of the Motion to Quash. In its order, the Division accepted Bluewater’s position that it has a realistic expectation of being able to develop a docking facility in Old Harbor. The Town requests an opportunity to respond to that assertion. Moreover, the Town specifically denies that assertion because both of the proposed docking facilities require the prior approval of the Town before any permitting process could commence. Indeed, the Army Corps of Engineers will not even accept the Section 408 application without the written approval of the Town. Accordingly, the Town respectfully requests that this motion be granted and that Town be given the opportunity to submit the documentation from the Army Corps of Engineers, as well as the additional documentation and the applicable law which clearly establishes that no permitting process for either of the proposed docking facilities would be able to move forward without the prior approval of the Town. The Town requests a ten-day period to respond.”

“This is just another example of the Town Manager grasping at straws and spending more money to delay this legal process,” Donadio said. “I believe that Nancy’s views do not correctly represent the town’s residents, businesses and visitors that come to the island. The Town and Interstate have filed multiple motions as one which shows you this is all backroom ferry politics.”