Legislation

Legislative Update: 2008 Session

The 2008 session got off to a fiery start with a hearing room packed with clammers, dealers and aquaculturalists who traveled to Augusta to testify in front of the Marine Resources Committee (MRC) on LD 2006 (the Mussel Dragging Bill), LD 2039 (the Truck Law), LD 2038 (the Private Lab Bill), and LD 2129 (the Notification Bill). LD 2129 (the Septic Bill) was heard by the Natural Resources Committee.

LD 2006 and LD 2160 were not as controversial nor were they subject to as heated a debate as the other three bills. Fireworks and tension related to LD 2039, LD 2038 and LD 2129 escalated as the session dragged on, with sectors of the shellfish community and legislators falling broadly into two opposing camps: Those who showed support for the bills as originally drafted by Reps. Webster ad Gerzofsky on behalf of the clammers, and those who sided with the Department of Marine Resources which, by-and-large, opposed the bills.

The first group included mostly clam harvesters and shellfish growers, who were outstandingly represented by the bill sponsors as well as by the vast majority of the MRC members including Rep. McDonough (Scarborough), Rep, Pendleton (Scarborough), Rep Eaton (Sullivan), Rep. Fletcher (Winslow), Rep. McDonald (Boothbay), Rep. Emery (Cutler), Sen. Snowe-Mello (District 15, Auburn, Durham, New Gloucester), and Sen. Dow (District 22, Lincoln County). Folks from Kathadin Laboratories were tremendously helpful and provided invaluable information to the MRC.

The group opposing the original language of the bills included mostly seafood dealers represented by the MSA and the DMR itself, with active support from Rep. Percy (Phippsburg), Sen. Damon (District 28, Hancock County), Rep. Mazurek (Rockland), and Rep. Adams (Portland).

The “Septic Bill” (LD 2160) was heard by the Natural Resources Committee (NRC) and went to the floor with a unanimous vote and an undivided report despite opposition from the realtors. Members of the NRC include Sen. Martin, Sen. Bartlett, Sen. Smith, Rep. Koffman, Rep. Duchesne, Rep Eberle, Rep. Babbidge, Rep. Miramant, Rep. Annis. Rep. McDonough, Rep. Ayott, Rep. Wagner and Rep. Hamper.

ME DEP’s support of the septic bill was instrumental in securing an undivided vote for this bill out of committee. ME DMR was also supportive of this legislation.

As this heated legislative session draws to a close we, the clammers of Maine, should feel proud of the great strides we’ve made. The bills that we have so strongly advocated for will:

1. Give us the ability to sell our product at the landings; Despite the fact that the bill will likely die as a result of the fiscal note attached to it, the DMR has committed to working with the harvester community to ensure that the intent of the bill becomes DMR rule/regulation.
Provide us with fair water sampling techniques as recommended by the team of experts that reviewed the Water Quality Division at ME DMR. These recommendations will help prevent unnecessary closures;
Put us on equal footing with other states and with Maine companies such as Spinney Creek Shellfish Inc., that can process water samples at private labs. The use of private labs will ensure that areas are re-opened as soon as possible after pollution sources are abated;
Save the DMR funds that are currently used for newspaper notices. This money will be re-allocated to the training volunteers and conducting water sampling to accelerate the re-opening of clam-flats;
Make sure that failing septic systems that pollute the water and cause closures are fixed when properties are sold; and
Give our municipalities control of mussel dragging in the inter-tidal zone.

These important steps will greatly advance our plight for equal opportunity and for a level playing field. These bills will make our industry more sustainable and our flats cleaner so that we won’t continue to lose our jobs.

We wish to extend a special thank you to all those who testified, wrote emails and letters and called their representatives seeking support for the bills. Those calls really make a difference, and we can already see the results.

Congratulations!

What follows is a list of the four bills and a description of what they each seek to accomplish:

LD 2039: The “Truck Law”

“Resolve, To Protect Public Health and Promote a Healthy Soft-shell Clam Industry”

Sponsored by Rep Stan Gerzofsky

This bill directs the Commissioner of Marine Resources to adopt rules necessary to allow the holder of a commercial shellfish license to safely sell shellstock to a wholesale seafood license holder at locations in addition to a permanent facility. The Department of Marine Resources shall report to the joint standing committee of the Legislature having jurisdiction over marine resources matters on the activities related to the resolve by October 15, 2008.

At the time of writing, the bill had not been signed into law yet, primarily as a result of a fiscal note attached by DMR. However, even if LD 2039 does not become law, the DMR has expressed verbal commitment to implementing the directive.

LD 2129: “The Notification Bill”

An Act To Make Clam Flat Status Notification More Efficient, Cost-effective and Economically Beneficial to the Shellfish Industry

Sponsored by Rep. David Webster

This bill makes the shellfish sanitation hotline and the Department of Marine Resources' publicly accessible website the legally required means by which the department notifies shellfish harvesters of the opening and closing of clam flats. It also directs the department to change its rule and no longer use newspaper publication as the method of notification except in cases of emergency.

The bill directs that the resulting savings be transferred to the Shellfish Fund, which is established for the management, enforcement, restoration, development and conservation of shellfish and mussels in the intertidal zone or coastal waters, and allocates those funds for funding overtime for water quality staff and training volunteers in the water quality program.

LD 2160: “The Septic Bill”

An Act To Protect Shellfish Waters and Shellfish Resources from Coastal Pollution

Sponsored by Rep. David Webster

This bill requires a person transferring property containing a subsurface waste water disposal system in a coastal shoreland area to provide the transferee with certification that the system has been inspected within the last 3 years or that it is impossible to perform an inspection prior to the transfer. If the system has been inspected and found to be malfunctioning, the system must be repaired prior to the transfer or the repair must be a condition of sale. If it is impossible to inspect the system prior to the transfer, the system must be inspected and, if malfunctioning, repaired within 1 year after the transfer. The bill retains the current notification requirements for property transferred in freshwater shoreland areas.

The bill creates a process for coordinating resolution of water quality problems related to subsurface waste water disposal systems in shellfish harvesting areas, including notification, inspection and abatement order requirements. The bill also encourages the Department of Health and Human Services in coordination with the Department of Marine Resources and the Department of Environmental Protection to adopt routine technical rules establishing requirements for the certification of individuals to inspect subsurface waste water disposal systems. The bill also requires the Department of Health and Human Services, the Department of Environmental Protection, the Department of Marine Resources and the Executive Department, State Planning Office to jointly develop recommendations on strategies to further abate water quality problems that affect shellfish harvesting and recreational uses of waters and that are the result of malfunctioning subsurface waste water disposal systems or licensed overboard discharge systems.

LD 2006: “The Mussel Dragging Bill”

“An Act to Give Municipalities Control of Mussels Located in the Intertidal Zones”

Sponsored by Senator Kevin Raye

This bill allows a municipality to specify areas of the intertidal zone in which the dragging of mussels may be limited to the degree necessary to support the municipality's shellfish conservation program. It authorizes the Commissioner of Marine Resources, with the advice of the affected municipality, to issue a permit to a person holding a mussel boat license to harvest mussels from an area designated by the municipality as a limited mussel dragging area. It provides that the commissioner shall limit the number of these permits to achieve the goals of a municipality's shellfish conservation program and may place other restrictions on the permit necessary for consistency with the conservation program

LD 2038: The “Water Quality Review/Private Lab Bill”

“An Act to Facilitate the Timely Reopening and Closing of Clam Flats”

Sponsored by Rep. Stan Gerzofsky

This bill established the following:

1. It establishes the Shellfish Advisory Council to advise the Commissioner of Marine Resources and the joint standing committee of the Legislature having jurisdiction over marine resources matters on matters of interest to Maine’s shellfish industry, including how best to maintain the quality of coastal waters and to expedite the opening of closed shellfish flats.

2. It directs the Department of Marine Resources, working with the federal Food and Drug Administration, interested parties and the Shellfish Advisory Council, to implement the recommendations of the Water Quality Peer Team Review made pursuant to LD 1318, sponsored in 2007 by Rep. David Webster. All recommendations will be implemented immediately except for recommendation #1, which relates to securing additional DMR staff. The bill requires the DMR to report by January 15, 2009 with a plan to implement that recommendation.

These are the Peer Team recommendations which DMR is to implement:

1. Additional Staff is required in order for the Maine Shellfish Growing Area Program to be able to comply with the NSSP-Model Ordinance requirements. Additional staffing will allow for: timely assessment of data, additional sample collection and studies, and timely preparation of reports.

2. Biannual meetings should be held between industry and DMR representatives, the structure of which should be initial presentations followed by discussion. An independent moderator should also be considered. The meetings should also be staged to coincide with the biennial Interstate Shellfish Sanitation Conference (ISSC) to enable joint DMR/shellfish industry request for change to the NSSP Model Ordinance prior to the ISSC.

3. A Shellfish Advisory Council should be established to act as mediator for DMR and industry.

4. The Standard Operating Procedures (SOPs) should be finalized.

5. Sampling protocol should continue to be standardized and should address subsurface sampling when the sampler is at a minimum knee deep water depth, and the sample is collected up-current, and away from floating objects such as seaweed. Samplers should be further evaluated to ensure that sediments are not disturbed in the collection area.

6. Water samples should not be collected at periods of “no water,” in rivulets or stagnant pools.

7. Sampling should be scheduled using the Systematic Random Sampling (SRS) method but should be timed during the day with respect to tidal conditions that allow for sample collection at the minimum water depth of 18”.

8. Samples should be collected during various tidal conditions especially in areas where times of tidal impacts have not yet been adequately determined. Collection during both ebb and flood tides is acceptable.

9. DMR should continue to collect salinity data.

10. Pollution source sampling should continue.

11. DMR should utilize volunteer industry or shellfish warden boats where possible for growing area classification sampling.

12. A simplified version of the NSSP statistical information should be presented for the local community.

13. Additional sample stations should be added further out in bays and across growing areas that may be used to more specifically define classification lines such as in the Timber Cove area.

14. The boundary line separating the conditional from the approved classification in growing area ER may be moved, thereby opening an additional harvest beach without compromising public health. (Station 8.0 to Station 45.0). This should be further reviewed by DMR.

15. DMR should consider the viability of remote area classifications.

16. A river gauge should be added below the confluence of the Kennebec and Androscoggin Rivers so DMR can more accurately assess impacts of river stage on those affected growing areas.

17. “No Discharge Zones” should be established in critical shellfish growing areas.

18. Specific legislation should be enacted prohibiting overboard discharge into critical shellfish habitat.

19. Dye dilution studies should continue to be conducted by trained parties but may be made a local requirement of WPCFs and NPDES permitees and at their expense.

3. It directs the Department of Marine Resources to undertake within one-and-a-half years 2 or more projects in which a municipality contracts with a private laboratory certified by the department to conduct water quality testing and to report to the Marine Resources Committee by May 1, 2009 on the progress of any water quality tests projects undertaken for testing by private laboratories.

4. It directs the Department of Marine Resources and the Shellfish Advisory Council to report to the joint standing committee of the Legislature having jurisdiction over marine resources matters by February 15, 2009 on activities undertaken pursuant to the directives in this amendment.