1. The Commissioner may grant an emergency
aquaculture lease for shellfish pursuant to 12 M.R.S.A. §6072-B when the health and safety
of those shellfish or those of the consumer are threatened and the Commissioner
determines that the relocation of those shellfish will not threaten the water
quality of the receiving waters or the health of marine organisms in those
waters. The purpose of this section is to allow for the quick relocation of
shellfish as the result of an unanticipated, natural phenomenon that is beyond
the control of the lease holder. There are two types of emergency situations
for which these provisions can be used:
1) a
non-disease or an environmental emergency such as a major storm event or
accident and
2) a pathogen or
disease-related emergency. The applicant bears the burden of proof to
demonstrate that the organisms to be relocated will not transmit pests,
disease, pathogens or parasites to the new location
and that the proposed lease meets all the standards set forth in these
regulations.
2.
Application Requirements
A. Form. Emergency
aquaculture lease applications must be submitted on forms prescribed by the
Commissioner and must contain all information required by the Commissioner for
consideration of the lease.
B. Fee.
No filing fee is required for an emergency lease application.
C. Emergency Relocation for Non-disease and
Environmental Emergencies.
(1) Notification
Requirements. For non-disease and environmental emergencies only, the lessee
can apply for a Letter of Permission when circumstances require immediate
relocation of shellfish to ensure their health and safety or that of the
consumer. The lessee must notify the Department in writing prior to the
relocation of any shellfish. The written notification must include the lessee's
name, address, home and business phone number, the name and number of the lease
site from which the shellfish will be moved, a location map showing the area to
which the shellfish will be moved (U.S.G.S. topographic map, a nautical chart
or other map of appropriate scale showing the area), and the number and size of
the shellfish to be relocated.
(2)
Letter of Permission. Within 48 hours of receipt of the written notification of
a request for emergency relocation, the Department will either issue a Letter
of Permission allowing for the temporary relocation of shellfish or issue a
written denial of the request.
(3)
Submission of Emergency Lease Application. Within 10 days of the receipt of the
Letter of Permission, the applicant must submit a written application for an
emergency lease. Failure to submit a written application within this timeframe
will result in the revocation of the Letter of Permission. If the Letter of
Permission is revoked, the shellfish must be returned to a legal lease site
within 3 days of the revocation.
(4) Terms for Temporary Approval. The Letter
of Permission will remain in effect until the Department issues an emergency
lease. If the Department denies the emergency lease request, the applicant must
remove the shellfish within 3 days of the receipt of the decision.
D. Emergency Lease Application
Requirements:
(1) The lessee's name, address,
home and business phone number of applicant and the location of the existing
lease from which organisms will be moved.
(2) A description of the threat and need for
the emergency relocation of the organisms.
(3) A description of the proposed lease metes
and bounds or coordinates, total acreage, a map of the lease area and its
adjoining waters and shorelines, with the names and addresses of known riparian
owners indicated on the map as listed in the municipal tax
records.
(4) A
list of species and an estimate of the numbers of individuals to be relocated
to the proposed lease site and their life cycle stage(s).
(5) The date of proposed relocation, the
anticipated duration of the relocation, and a description of how the organisms
will be managed for the duration of the lease. Indicate the size, shape and
orientation of structures that will be used.
(6) A description of the degree or exclusive
use required by the project.
(7) A
general description of the site including type of bottom, the presence of
eelgrass, natural shellfish beds, saltmarsh and the general shoreline and
upland characteristics.
(8) A
written statement from a local harbor master, or Marine Patrol Officer on the
fishing activity, moorings and navigational channels in the area and the use of
the area by riparian owners for ingress and egress.
(9) The written permission of every owner of
intertidal land in, on or over which the emergency aquaculture activity will
occur.
(10) For pathogen or
disease-related emergencies, the applicant may also be required to submit a
statement of examination by a state, federal, or Department approved private
laboratory indicating its findings and certifying that the marine organisms to
be relocated are free of any infectious or contagious disease agents,
pathogens, pests, or parasites based on standard methods of
diagnosis.
E. Completion.
Upon receipt of a written application, the Commissioner shall determine whether
the application is complete and contains sufficient information for making a
decision on the application. If the application is incomplete, it shall be
returned to the applicant with a written explanation of the additional
information required in order to be complete.
3. Department Site and Project Review. The
Department may inspect the proposed site and immediate area to obtain
information on but not limited to the general characteristics of the area, the
commercial and recreational use of the area and evidence of fishing activity,
moorings and navigational channels. The Department may seek advice with regards
to shellfish diseases for consideration in the final decision.
4. Decision. After reviewing the application
and any information obtained by the Department, the Commissioner shall issue a
written decision. The Commissioner may grant a lease if they are satisfied that
the proposed project meets the conditions contained in 12 M.R.S.A. §6072-B.
A. Standards: In making the decision, the
Commissioner must consider the following:
(1)
The applicant's status as a leaseholder pursuant to 12 M.R.S.A. §6072.
(2) The threat to the water quality of the
receiving waters and to the health of marine organisms in those waters.
(3) The reason and need for an
emergency lease. The Commissioner shall consider the need for an emergency
lease and whether the cause of the emergency was an unanticipated, natural
phenomenon that was beyond the control of the leaseholder. Applicants are
encouraged to secure a lease under 12 M.R.S.A. §6072 or §6072-A for non-emergency
situations; and
(4) All applicable
criteria as established in Chapter 2.37(A).
5. Limit on Duration. An emergency
aquaculture lease may only be issued for 6 months or less.
6. Extension of emergency aquaculture lease.
A person wanting to extend an emergency lease beyond 6 months must submit an
application for either a standard lease pursuant to 12 M.R.S.A. §6072 or a limited purpose lease
pursuant to 12 M.R.S.A. §6072-A for that lease area within
60 days of being granted the emergency aquaculture lease. If the application
for a new lease is accepted, the emergency aquaculture lease will remain in
effect until the effective date of the new lease. If the Commissioner denies
that person a lease under §6072 or §6072-A, that person's emergency
aquaculture lease remains in effect until 30 days after the Commissioner's
decision.
7. Public Notice. Upon
granting an emergency aquaculture lease, the Commissioner must provide notice
to the municipality in which the emergency aquaculture lease is located. Within
at least 30 days from granting an emergency aquaculture lease, the Commissioner
shall:
A. Publish notice of the emergency
aquaculture lease in a newspaper of general circulation in the lease area. The
notice must describe the area leased and list any restrictions in the leased
area;
B. Mail a notice to any state
agency the Department determines should be notified.
8. Actions Required of lease holder. After
being granted an emergency aquaculture lease, a lessee shall establish an
escrow account or secure a performance bond in the amount required by the
Department in the lease. The amount is to be determined according to the
schedule contained in Chapter 2.40. The site must also be marked in accordance
with Chapter 2.80.
9. Revocation.
The Commissioner may revoke the lease if they determine that
the aquaculture project fails to meet the criteria contained in 12 M.R.S.A.
§6072-B(1) and
Chapter 2.66 of these regulations. The revocation of an emergency aquaculture
lease is not an adjudicatory proceeding as established in 5 M.R.S.A. §8002(1).
