Current through Register Vol. 48, No. 9, September 27, 2024
1. Sanitary Survey. A sanitary survey of
shellfish growing areas shall be conducted by the Department, and each area
shall be classified prior to its approval for shellfish harvesting. Sanitary
Surveys and reports will be conducted and prepared consistent with the National
Shellfish Sanitation Program Guide for the Control of Molluscan
Shellfish.
2. Classification of
Growing Area. Shellfish growing areas shall be identified and assigned
harvesting classifications of approved, conditionally approved, restricted,
conditionally restricted, or prohibited. The assigned classification will be
based upon a sanitary survey conducted by the Department. Growing areas for
which a sanitary survey has not been completed shall be classified as
prohibited. The Department may also designate a growing area as a closed area
and prohibit harvesting when it determines that conditions have occurred that
may potentially render shellfish unsafe for human consumption.
3. Approved Area. Growing areas shall be
classified approved when the sanitary survey concludes that fecal material,
pathogenic microorganisms, and poisonous or deleterious substances are not
present in concentrations that would render shellfish unsafe for human
consumption. Approved classifications shall be determined upon a sanitary
survey that includes water samples collected from stations in the designated
area adjacent to actual or potential sources of pollution. For waters sampled
under adverse pollution conditions, the median fecal coliform Most Probable
Number (MPN) or the geometric mean MPN shall not exceed fourteen per one
hundred milliliters, nor shall more than ten percent of the samples exceed a
fecal coliform MPN of forty-three per one hundred milliliters (per five tube
decimal dilution). For waters sampled under a systematic random sampling plan,
the geometric mean fecal coliform MPN shall not exceed fourteen per one hundred
milliliters, nor shall the estimated ninetieth percentile exceed an MPN of
forty three per one hundred milliliters (per five tube decimal dilution).
Computation of the estimated ninetieth percentile shall be determined using
National Shellfish Sanitation Program Guide for the Control of Molluscan
Shellfish methodology.
4.
Conditionally Approved Area.
(a) Growing
areas may be classified conditionally approved when they are subject to
temporary conditions of actual or potential pollution. When such events are
predictable, as in non-point source pollution from rainfall runoff or discharge
of a major river, a management plan describing conditions under which
harvesting will be allowed shall be adopted by the Department prior to
classifying an area as conditionally approved. Where appropriate, the
management plan for each conditionally approved area shall include performance
standards for sources of controllable pollution (e.g., wastewater treatment and
collection systems), evaluation of each source of pollution, and means of
rapidly closing and subsequently reopening areas to shellfish harvesting.
Memorandums of agreements shall be a part of these management plans where
appropriate.
(b) Shellfish shall
not be directly marketed from a conditionally approved area until conditions
for an approved classification have been met for a period of time likely to
ensure the shellfish are safe for consumption.
(c) Shellstock from conditionally approved
areas that have been subjected to temporary conditions of actual or potential
pollution may be relayed to approved areas for purification or depurated
through controlled purification operations only by special permit issued by the
Department.
5.
Restricted Area.
(a) Growing areas shall be
classified restricted when sanitary survey data show a moderate degree of
pollution or the presence of deleterious or poisonous substances to a degree
that may cause the water quality to fluctuate unpredictably or at such a
frequency that a conditionally approved classification is not feasible.
Shellfish may be harvested from areas classified as restricted only for the
purposes of relaying or depuration and only by special permit issued by the
Department and under Department supervision.
(b) The suitability of restricted areas for
harvesting of shellstock for relay or depuration purposes may be determined
through the use of comparison studies of background tissue samples with
post-process tissue samples, as well as other process verification techniques
deemed appropriate by the Department.
(c) For restricted areas to be utilized as a
source of shellstock for depuration, or as source water for depuration, the
fecal coliform geometric mean MPN of restricted waters sampled under adverse
pollution conditions shall not exceed eighty-eight per one hundred milliliters
nor shall more than ten percent of the samples exceed a MPN of two hundred and
sixty per one hundred milliliters for a five tube decimal dilution test. For
waters sampled under a systematic random sampling plan, the fecal coliform
geometric mean MPN shall not exceed eighty-eight per one hundred milliliters
nor shall the estimated ninetieth percentile exceed an MPN of two hundred and
sixty (five tube decimal dilution). Computation of the estimated ninetieth
percentile shall be obtained using National Shellfish Sanitation Program Guide
for the Control of Molluscan Shellfish methodology.
6. Conditionally Restricted Area.
(a) Growing areas may be classified
conditionally restricted when they are subject to temporary conditions of
actual or potential pollution. When such events are predictable, as in the
malfunction of wastewater treatment facilities, non-point source pollution from
rainfall runoff, discharge of a major river or potential discharges from dock
or harbor facilities that may affect water quality, a management plan
describing conditions under which harvesting will be allowed shall be prepared
by the Department prior to classifying an area as conditionally restricted.
Where appropriate, the management plan for each conditionally restricted area
shall include performance standards for sources of controllable pollution,
e.g., wastewater treatment and collection systems and an evaluation of each
source of pollution, and description of the means of rapidly closing and
subsequent reopening areas to shellfish harvesting. Memorandums of agreements
shall be a part of these management plans where appropriate.
(b) Shellfish may be harvested from areas
classified as conditionally restricted only for the purposes of relaying or
depuration and only by permit issued by the Department and under Department
supervision.
(c) For conditionally
restricted areas to be utilized as a source of shellstock for depuration, the
fecal coliform geometric mean MPN of conditionally restricted waters sampled
under adverse pollution conditions shall not exceed eighty-eight per one
hundred milliliters nor shall more than ten percent of the samples exceed a MPN
of two hundred and sixty per one hundred milliliters for a five tube decimal
dilution test. For waters sampled under a systematic random sampling plan, the
fecal coliform geometric mean MPN shall not exceed eighty-eight per one hundred
milliliters nor shall the estimated ninetieth percentile exceed an MPN of two
hundred and sixty per one hundred milliliters (five tube decimal dilution).
Computation of the estimated ninetieth percentile shall be obtained using
National Shellfish Sanitation Program Guide for the Control of Molluscan
Shellfish methodology.
7. Prohibited Area.
(a) Growing areas shall be classified
prohibited if there is no current sanitary survey report or if the sanitary
survey report or monitoring data show unsafe levels of fecal material,
pathogenic microorganisms, or poisonous or deleterious substances in the
growing area or otherwise indicate that such substances could potentially reach
quantities that could render shellfish unfit or unsafe for human
consumption.
(b) Harvesting of
shellfish from prohibited areas for human consumption shall not be allowed by
the Department. This item shall not be construed to prohibit seed hatchery or
nursery operations, provided such operations comply with applicable provisions
of this regulation.
(c) Shellfish
may be depleted for non-food use from prohibited areas upon approval of the
Department and under specified conditions as outlined in D.4.
(d) Growing areas receiving sewage treatment
plant and other waste discharges shall be classified as prohibited. The
following assumptions and criteria will be considered in determining the area
that could be potentially impacted:
(1)
Pollution Conditions;
(a) Flow
rate;
(b) Sewage treatment plant
performance;
(c) Location of
shellfish resources.
(2)
Dispersion, dilution, and time of travel;
(a)
Current velocity and net transport velocity;
(b) Volume;
(c) Depth of water;
(d) Direction of travel and
stratification;
(e) Location of
discharge;
(f) Tidal
characteristics;
(g) Receiving area
geometry.
(3) Decay rate
(bacteriological die-off);
(4)
Bacteriological quality required;
(5) Adjacent harvest use
classification;
(6) Identifiable
landmarks for boundaries.
(e) Growing waters within and adjacent to
marinas shall be classified as prohibited. The size and extent of closures
within and adjacent to marinas shall be determined using a dilution analysis
that incorporates the following assumptions:
(1) An occupancy rate of the
marina;
(2) An assumed rate of
boats that will discharge untreated waste;
(3) An occupancy rate of two (2) persons per
boat;
(4) A rate of discharge of 2
x 10 to the ninth power fecal coliform per day;
(5) Wastes are completely mixed in and around
the marina;
(6) The volume of water
in the vicinity of the marina;
(7)
A theoretical calculated fecal coliform level of fourteen (14) MPN per one
hundred (100) milliliters.
(f) Nothing in this regulation shall be
construed to require that a dilution analysis be conducted for any existing
marina historically encompassed by a prohibited closure of one thousand (1000)
feet; provided however, that in the event a request or application is made
seeking authorization to increase the marina's potential boat occupancy rate,
the Department shall calculate the prohibited closure area in accordance with
B.7. (e).
(g) Any proposed or
existing dry stack or fueling facility having effective docking space of two
hundred and fifty (250) linear feet or less and providing moorage for ten (10)
or less boats shall not constitute sole cause for classification or closure in
accordance with item B.7. (e) of this Regulation.