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BULLETIN |
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10 April 2001
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Volume X, No. 3
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BULLETIN |
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10 April 2001
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Volume X, No. 3
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Chairman Wise opened this discussion by observing that most of the marine resource bills this year were bills that were not passed in the previous legislative session and that had been refiled for 2001. The Council had discussed these bills last spring, taking positions on many. There were also a handful of new legislative proposals for 2001. Below is set out the Council’s review of the current slate of bills: 1) bills discussed last year which the Council decided not to take up this year and for which any current Council position is retained (text lifted from bulletins of Council’s April and May 2000 meeting bulletins); 2) bills discussed last year that one or more councilors wished to review and discuss again this year; and 3) bills new in the current legislative session. For each bill, the following information is provided: legislative sponsor(s); brief précis of the bill’s major features; major comments made during discussion of the bill; any action taken by the Council on the bill. All of the bills refiled from last session have been given new numbers and it is these bill numbers that are used below. The comments contained in the bill discussion section should not be interpreted as consensus views of the Council; they reflect the pros and cons of each bill as raised by Councilors, as well as those speaking from among the Council’s visitors and guests.
Readers of this bulletin can secure a copy of the text of these bills via the World Wide Web pages of either the New York State Senate (http://www.senate.state.ny.us) or the New York State Assembly (http://assembly.state.ny.us/ALIS/billsearch.html). Both pages offer a complete listing of all bills before the State Legislature, searchable by keyword and/or bill number.
Bills Refiled from 1999-2000 Legislative Session; No Change in Council Position
A433, Assemblyman Brodsky et al. Prohibits DEC from instituting any fishery management plan or regulation that allows for the trade, transfer, or assignment of a license to harvest fish, shellfish, or crustacea.
Discussion. The final DEC proposal for the ocean surf clam management plan does not allow the transfer of licenses. State law once provided for the transfer of commercial foodfish, lobster, and crab licenses between immediate family members and the Council is seeking reinstatement of this transferability. The Council opposed earlier proposals for management of the state’s ocean surf clam resources because they provided for ITQ’s (Individual Transferable Quotas). Some provision for license transferability (such as to immediate family members) is desirable; this should be communicated to the bill sponsors.
Action. The Council adopted a motion opposing A433. The vote was 13 in favor; 0 opposed; 0 abstentions. The Council would welcome an opportunity to review an amended version of this bill that allows at least the license transfers to immediate family members once allowed for the commercial foodfish, crab, and lobster licenses.
A777, Assemblyman Brodsky. This bill establishes an advisory council on seafood policy within the State Department of Agriculture and Markets with authority to advise the Governor, the Legislature, and relevant state agencies on the formulation and coordination of policies affecting the harvesting, production, processing, retailing, promotion, and consumption of seafood and seafood products. This bill has been submitted for several consecutive legislative sessions and has been consistently opposed by the Council. In the last two sessions, it has been passed by the Legislature but vetoed by Governor Pataki. The Council’s continuing concern has been that, to the extent that the proposed new council would provide guidance and advice on fishery management regulations (i.e., "harvesting," above), its role overlaps and duplicates that of the Council. Previously, the Council had expressed this concern to the bill’s sponsors, suggesting that it would support the legislation if the mandate of the proposed new council were focused on seafood and seafood product processing, retailing, promotion, etc.
Discussion. The bill should be modified to remove fish and shellfish harvesting policies & regulations from the purview of the proposed new advisory council, and then it would be acceptable. The state should stay out of the seafood promotion business; that is industry’s responsibility. It was pointed out, however, that New York has a long history of providing marketing assistance to a variety of agricultural products. Some shellfish harvesting regulations have nothing to do with resource management and are in place because of sanitation and public health concerns; the Council has historically not involved itself with these regulations to a great extent.
Action. A motion was made to oppose A.10802/S.7435. A second motion was then made to amend the first motion, to wit: to oppose the bill but to indicate to the sponsors that the Council would support an amended bill that deleted those areas of responsibility of the proposed advisory council on seafood that overlapped existing responsibilities of the Marine Resources Advisory Council. The motion to amend was adopted; the vote was 8 in favor; 3 opposed; 0 abstentions. The amended motion was adopted by a vote of 8 in favor; 3 opposed; 0 abstentions.
A2668, Assemblyman Englebright. This bill would establish a task force within DEC to conduct a very broad assessment of the state and condition of living marine resources found throughout New York’s Marine District and to develop recommendations for the establishment of "marine life reserves" wherein extractive activities (e.g., fishing) would be prohibited as a means of fostering the conservation of the state’s living marine resources.
Discussion. The proposed new task force duplicates too nearly the duties of the Marine Resources Advisory Council. The living marine resources assessment called for in the bill is so comprehensive and potentially detailed that it would take years to effectively accomplish and the bill provides no financial support to do the work. The language of the bill indicates that the task force could draw upon any staff, financial, and other resources not only of the DEC but also any agency of state government. Is this realistic? Marine preserves and special management areas are active topics of discussion among fishery scientists, ecologists, and natural resource managers as a mechanism for conserving marine resources, marine biodiversity, etc. Some view such areas as effective; others disagree. The bill authorizes the task force to hire and fire personnel. How would this work? The concept of this bill is consistent with public views of the National Audubon Society. The Legislature should move to require DEC to be more responsive to the recommendations, requests, and positions of the Marine Resources Advisory Council. The problem of regulating human activities so as to have minimal impact on the integrity of the state’s marine ecosystems is a real one, even if the approach to it taken by this bill might be inappropriate or unrealistic. The DEC’s current special management area authority is quite restricted and applies only to officially designated artificial reefs, natural reefs, and shipwrecks.
Action. The Council adopted a motion to oppose this bill as written, but to recommend to the sponsor that stronger statutory language requiring the DEC to more closely adhere to the guidance, requests, and positions of the Council would be appropriate. The vote was 8 in favor; 1 opposed; 2 abstentions.
A3060, Assemblyman Thiele. Restricts the taking and possession of finfish from New York’s Marine and Coastal District to persons possessing a commercial foodfish license and raises fines levied against those convicted of illegal harvesting/possession of marine finfish.
Discussion. On the face of it, this bill would outlaw marine recreational fishing in New York. Assuming that such a sweeping impact is not the sponsor’s intent, the Council Chairman has been in touch with the sponsor’s office trying to clarify the exact intent, thus far with no success. The Council supports increasing fines for violation of marine fishery laws and regulations.
Action. By acclamation, the Council moved to retain its opposition to this bill, as it is presently worded. The Council Chairman will continue to work with the sponsor’s office to clarify the basic intent and purpose of this bill and to suggest wording changes that would better effect this purpose.
A4817, Assemblymen Diaz & Brodsky. This legislation increases the penalties for taking fish, shellfish, or crustaceans in violation of the Environmental Conservation Law (ECL). Now, a fine of $10/fish or $25 total (whichever is greatest) is levied for each infraction; A.8376/S.5401 would increase these to $25/fish or $250 total, whichever is greatest.
Discussion. It was pointed out by the DEC’s Division of Law Enforcement that certain newly-revised sections of law that stipulate new management measures for several important species, e.g., sea bass, blackfish, bluefish, weakfish, and scup, would not be covered
by this proposed legislation and its increased penalties. The Division recommended that the bill be modified to extend its coverage to these new sections (Section 13-0340 series) of the ECL. Several Councilors agreed with this view. Division of Law Enforcement was lukewarm with regards to the present need for higher penalties under the sections of law to be revised by A.8376/S.5401. Commercial fishery violations are typically processed under another section of state law that already provides stiffer penalties. Several Councilors spoke in favor of stiffer penalties across the board, for both commercial and recreational fishery violators. It was clarified that this bill would not result in commercial fishermen facing higher penalties (for violations of the sections of law cited in the bill) than recreational fishermen; the two groups would be treated alike.
Action. The Council adopted a motion to support A.4817, provided that the language of the bill is modified to include Section 13-0340 of the ECL so as to include various new management measures recently adopted covering a number of important marine finfish species. The vote was 6 in favor; 5 opposed; 0 abstentions.
A5090, Assemblyman Englebright. A proposal to expand the area of eastern Long Island Sound in which commercial trawls cannot be used, defining this area as an "essential fish habitat protection zone."
Discussion. The bill’s referenced essential fish habitat protection zone does not describe an area that has been officially or uniquely designated as such by DEC or any other state agency. The Mid-Atlantic Fishery Management Council has revised all fishery management plans to identify essential habitat for each species covered by these plans. It is likely that most of New York’s Marine and Coastal District (and probably all of the waters of Long Island Sound) have been judged as essential habitat for one or more species, including waters on either side of the proposed demarcation line laid out in this bill. The New York Sportfishing Federation indicated that the intent of this legislation was to prevent habitat destruction by trawls in nearshore areas along the north shore of Long Island. Excluding trawlers from more extensive areas forces them to concentrate and fish harder in the few remaining areas that are open to them.
Action. The Council voted to table discussion of this bill, pending provision of information by the sponsor of the objective of the bill and how the particular redrawing of the trawl exclusion line in the eastern Long Island Sound supports that objective. The vote was 10 in favor; 1 opposed; 0 abstentions.
A6905, Assemblymen Tocci & Brodsky. This bill would prohibit the use of fish picks or other devices that cause unwarranted injury to fish to sort or cull fish on board a vessel while on the waters of New York’s Marine District. It would suspend NYS licenses when holder has a similar license suspended in another state’s jurisdiction and increases financial penalties for violations of specific sections of the ECL.
Discussion. In reviewing a similar bill several years ago, the Council recommended that any ban on the use of fish picks be applied only to those fish that were being returned to the water; use of picks and similar devices on fish that are to be kept is appropriate. DEC staff pointed out that there is limited evidence indicated that fish returned to the water after being "picked" had higher survival than fish put back into the water "unpicked"! Would New York state officials know of an applicant’s license suspension or revocation in another jurisdiction? A clearinghouse has been set up among the natural resource management enforcement agencies in the Northeast just for this purpose. The bill memo states that the sponsors intend through this legislation to prohibit non-residents from getting New York State licenses while under license suspension/revocation in their own state. The language of the bill, however, would appear to extend far beyond that particular situation. Several individuals felt that being held liable in one state for licensing actions taken in another state was unfair and unjust. Others felt it was quite appropriate and cited the common practice of drivers licenses suspended for DWI/DUI convictions in one state being automatically applied by the driver’s home state, too. This bill has been looked at by the agency’s counsel office, and has been judged legally sound. Some expressed concern that enforcement agencies of other states might apply their natural resource laws and regulations very harshly against non-resident fishermen, suspending or even revoking their licenses on trumped-up charges in an effort to limit access of non-residents to these states’ marine fishery resources. Under the terms of A.8439/S.4158, this would precipitate a similar action in New York.
Action. The Council took no new action on this bill. Its view remains that a prohibition on the use of picks and similar devices on fish that are being returned to the water is reasonable and appropriate.
S.2019/A3393, LaValle/Thiele & Acampora. Current state law requires that town ordinances affecting the taking of shellfish must be at least as restrictive as similar measures in the ECL or in state regulation. This bill would remove this obligation and allow towns to implement shellfish ordinances in town waters without reference to existing state law or regulation.
Discussion. The Trustees of the Town of Easthampton strongly support this idea, as do the governments of several other East End towns. This legislation would only apply to towns with historic or colonial titles to underwater lands vested in them. The bill sets a dangerous precedent that could undo such basic principles of fishery management as, for example, a uniform minimum size limit on hard clams. DEC and East End towns should engage in discussions about specific shellfish issues on which they disagree. The solution should not be to give individual towns the ability to undercut state law/regulation.
Action. The Council adopted a motion opposing S.2019/A.3393 by a vote of 8 in favor; 2 opposed; 1 abstention.
Bills Refiled from 1999-2000 Legislative Session Which Council Discussed Anew
A4904, Assemblyman Calhoun. Prohibits the commercial harvest of striped bass from the waters of the Hudson River.
The Council took no position on this bill last year. At that time, a special temporary advisory commission charged with studying the issues surrounding the possible reestablishment of commercial fishing for striped bass in the Hudson River had only just started its work and the Council was reluctant to endorse this ban until the commission’s work was done and its findings and recommendations had been reviewed. Moreover, there was some concern that this legislation, if enacted, would result in the closing down of the shad gillnet fishery in the River and some Councilors were restive about whether such a secondary impact was acceptable. At present, the report of the special advisory commission on the future of commercial fishing for striped bass in the Hudson River is in its second draft, which is undergoing review. Among the Councilors, only Mr. Schwab, who is on the temporary commission, had seen its contents.
Councilor Schwab predicted that the commission’s report would ultimately endorse the reopening of the Hudson River to commercial striped bass fishing with certain provisions. Mr. Colvin of the DEC had a different impression of the report, and he advised that the Council wait for the draft report, which would be finished by the end of April. He noted that the earlier Hudson River Management Report addressed all this issues in detail. The consensus recommendation in that report was to allow a very limited commercial fishery in the lower Hudson River south of Bear Mountain Bridge with a 47,000 lb harvest, tags, and 24" size limit. It would not affect Long Island’s commercial quota at all. It assumed that there would be no objections to this from the State Health Department. Councilor McBride expressed concern that a directed fishery could develop to pursue a by-catch quota. Councilor Melton raised the question of the shad fishery: the language of the bill which allowed "any means" could unintentionally eliminate the shad and bait fisheries.
Councilor Sullivan motioned that the Council support A4904. Chairman Wise advised the Council to first read the final report of the special commission before taking a position on this legislation. Councilor McBride agreed. Councilor Doxsee added that there was no conservation issue since there were plenty of striped bass. Pat Augustine of the New York Sport Fishing Federation suggested the Council defer a position on A4904 until it had read the special commission report. The motion to support A4904 failed by a vote of 3 in favor:8 opposed; 0 abstentions.
A6871/S1460, Assemblyman Vitaliano et a./Senator Marchi. This bill would prohibit the disposal of dredged material containing toxic pollutants as defined in ECL 17-0105 into the waters of the state’s Marine and Coastal District.
Discussion. The Council opposed this bill when it was introduced during the previous legislative session. At that time, the bill’s language referred to toxic pollutants as defined in ECL 17-0501, a section of the ECL that does not contain a definition of "toxic pollutants." The Council was concerned about this vagueness and the impact such a potentially sweeping prohibition would have. This year’s bill refers to ECL Section 17-0105, which does define "toxic pollutants": those pollutants or combination of pollutants, including disease-causing agents which, after discharge and upon exposure, ingestion, inhalation, or assimilation into any organism, either directly from the environment or indirectly through food chains, will, on the basis of information available (to the DEC) cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunctions, including malfunctions in reproduction, or physical deformations, in such organisms or their offspring."
Councilor Schwab stated that the Council should support this bill as a means of expressing its concern to the Legislature over the need to protect New York’s marine environment. Councilor Sullivan noted that there were alternatives to reintroducing toxic materials to the marine district’s waters through dredged material disposal. Mr. Wise commented on the impossibility of finding dredging material without at least trace amounts of contaminants, and the extreme expense of land disposal. Councilor Melton motioned to table further discussion on this legislation until the list of Section 17 contaminants could be examined. The motion to table carried 9:1:1.
Mr. Colvin subsequently distributed the above language from Section 17-0501 of the ECL defining toxic pollutants those pollutants listed in Section 17 that will cause negative health effects if introduced into the environment. Mr. Wise stated that A6871/S1460’s language now was precise and focused on impact, so he was much more comfortable with the bill, although disposal activities that DEC felt would cause negative environmental impacts would presumably not receive the required water quality certificate from the Department, anyway. In response to Councilor McBride’s question about the DEC’s position, Mr. Colvin said that extensive water quality standards already existed. Councilor Sullivan responded that NY now had no law to stop the US Army Corps of Engineers from dumping toxic dredged materials in our waters. Councilor Melton thought the bill’s justification was weak. Councilor Schwab said he would support it to get the attention of the Legislature.
Action. Councilor Sullivan moved that the Council support A6871/S1460. The motion was adopted by a vote of 10 in favor; 0 opposed; 1 abstention.
First-time Bills in the 2000-2001 Legislative Session
A6501/S3263. Asemblyman Thiele/Senator LaValle. Allows the transfer of commercial lobster licenses between two persons if they each already possess a foodfish license.
Discussion. Concern was expressed that this would make it possible for a few individuals to buy up most of the lobster licenses, perhaps holding some of the licenses for speculative purposes. There is at present no restriction on the number of lobster licenses a single individual may hold. Some questioned why those holding shellfish diggers permits, rather than a commercial foodfish license, would not be accorded the ability to transfer lobster licenses. Even if a license were so transferred, the lobster trap tag allocation would not go with it and the new lobster license recipient could not get a trap tag allocation unless they could demonstrate a catch history in the commercial lobster fishery.
Action. The Council adopted a motion opposing this bill by a vote of 11 in favor: 0 opposed: 0 abstentions.
A7522/S3910. Assemblyman Thiele et al./Senator LaValle. A7522/S3910 would allow patent tong gear to be used in certain areas of state-owned underwater lands through 2003.
Discussion. Currently, mechanical harvesting of shellfish is not allowed in state waters with very limited exceptions for scallops and mussels off eastern Long Island. Several baymen groups had communicated with the Council on this proposed legislation and all opposed it. Representatives from the lobster fishery spoke in support of the bill, indicating it could put some lobstermen back to work who had been idled by the loss of the western Long Island Sound lobster fishery. One lobstermen indicated that the intent of the bill’s supporters had been to restrict the areas in which patent tongs could be used to harvest molluscan shellfish to waters of a certain minimum depth—deeper than hand gear can be readily used. That minimum depth provision is not contained in the current bill.
Action. A motion that the Council to oppose A7522/S3910 was adopted by a vote of 11 in favor: 0 opposed: 0 abstentions.
A459, Assemblyman Brodsky. This bill would extend DEC’s current regulatory authority over striped bass until 1 July 2007.
Discussion: The Department’s present regulatory authority over this species expires 31 December 2003. The Council has historically supported DEC’s regulatory authority over striped bass.
Action. The Council adopted a motion supporting A459; the vote was 11 in favor: 0 opposed: 0 abstentions.
A299, Assemblyman Grannis et al. This bill would ban the intentional release of more than 25 balloons from a single event or by a single business, corporation, association, etc. within a 24-hour period.
Discussion: Environmental groups strongly support these kinds of proposals because balloons have often been documented as causing death when ingested by various marine animals, including and especially endangered sea turtles. Long Island Sound lobstermen report that deflated balloons often litter the surface of the Sound after weekend celebratory events. All discussion favored the bill and some felt that no such balloons should be released. DEC’s Division of Law Enforcement felt that a smaller number would be difficult to enforce.
Action. The Council voted unanimously to support A299; 11 in favor: 0 opposed: 0 abstentions.
A451, Assemblyman Thiele. Changes the date on which bay scallops can be first possessed for commercial sale for food purposes from 15 September to the first Monday in October.
Discussion. The first Monday in October is the opening day of the scallop harvesting season. This bill would make the season for commercial possession of scallops coincident with the season for commercial harvest of this species.
Action. A motion supporting this bill was adopted by a vote of 11 in favor: 0 opposed: 0 abstentions.
DEC Program Bill 3-2001
The Council reviewed one DEC Program bill, a bill prepared by the DEC and then sent to the Legislature. It is not formally before the Legislature until one or more legislators agree to actually introduce the bill under their sponsorship.
DEC Program Bill 3-2001 would 1) allow transfer of commercial fishing licenses to a family member; 2) provide DEC with regulatory authority over lobster through 31 December 2003; and provide DEC with regulatory authority over squid until 31 December 2003.
Discussion. The Council had earlier recommended to the Legislature that it reinstate the immediate family member transferability of the commercial foodfish, lobster, and crab licenses. This provision had apparently been inadvertently omitted when the Legislature adopted revised commercial license eligibility requirements two years ago. The DEC would have requirements that would constitute proof that an immediate family member was, in fact, an immediate family member of a license-holder. Normal administrative practice required proof. Representatives of the Long Island Sound Lobster Association stated their opposition to giving DEC regulatory authority over lobsters. In their view, the current management regime involving the ASMFC and local area lobster management teams was working well. Mr. Colvin of DEC noted that new lobster regulations would be needed soon in one of the management areas around Long Island. In the previous legislative session, the Council had supported a similar granting of regulatory authority to DEC for lobsters. The pros and cons of requiring immediate family members also to meet the legal income requirements necessary for commercial foodfish, lobster, and crab licenses were actively discussed. Some were concerned that transferring licenses from people who didn’t use them to immediate family members who did would create additional fishing effort in our fisheries at a time when few such fisheries could sustain additional fishing effort. This possibility was recognized, but DEC, the Council, and the State Legislature have consistently taken the position that the social and cultural issues surrounding maintaining traditional fishing families were important enough to take the risk that in some cases there might be increase in fishing effort.
Action. The Council adopted a motion supporting DEC Program Bill 3-2001. The vote was 10 in favor; 1 opposed; 0 abstentions.