BULLETIN

16 April 2002
Volume XI, No. 3

Review of Marine Resource Legislation

Chairman Wise described to the Council that the bills under review fall into two categories: 1) new proposals for the 2002 legislative session; 2) proposals introduced into the 2001 or previous legislative sessions that did not pass and that have been reintroduced into the 2002 session. The Council reviewed and adopted positions on many of the latter bills when they were first introduced. He stated that the Council will first discuss the new bills. After these have been dealt with, if a Councilor wants to re-open discussion on a bill on which the Council has previously adopted a position, this can be done. Bills that are introduced into the present legislative session after today’s meeting will be discussed at the Council’s 14 May 2002 meeting.

DEC Program Bill #277. This authorizes the Commissioner of Motor Vehicles to issue "Conserve Habitat" vehicle license plates in consultation with the Commissioner of DEC. The annual fee for the plates would be $25, with the income going to the state’s Conservation Fund. The financial solvency of The Conservation Fund remains a major concern for all New Yorker’s with an interest in environmental conservation. This bill has not yet been introduced into either the State Senate or Assembly.

Discussion. Council Melton noted that up to $6,000 of the revenue from the special "Conserve Habitat" plates would revert to the Department of Motor Vehicles to pay for the production of the plates themselves.

Action. Councilor Danielson moved that the Council support DEC Program Bill #277. The motion was adopted by a vote of 11 in favor; 0 opposed; 0 abstentions.

S.6810/Johnson. This proposal authorizes DEC to issue resident lobster landing permits, gives DEC regulatory authority over whelks, and extends DEC’s regulatory authority over squid. At present, DEC issues three commercial lobster permits: resident and non-resident harvest/possession/landing permits and a non-resident landing-only permit. This prevents New York fishermen who fish and catch lobsters outside of state waters (e.g., in federal waters) from landing their catch in New York and these catches must be landed in other states. This imposes a hardship on these New York fishermen which this bill would correct. Mr. Colvin noted that the number of commercial whelk permits has risen sharply, raising concerns that an excessive level of effort may be present. The DEC does not presently have regulatory authority over squid.

Discussion. Councilor Freierman questioned whether the Department needed regulatory authority over squid. Mr. Colvin cited a situation several years ago when the federal trip limit on squid was low and boats moved inshore into state waters and fished squid very heavily, undermining the intent of the low trip limits. DEC did not have regulatory authority over squid fishing in state waters at the time and was powerless to control this activity. He further noted that, if the state cannot control fisheries in state waters in fisheries that are the subject of officially adopted fishery management plans, it risks having the federal government step in to regulate these fisheries in state waters, which nobody wants. Mr. Colvin mentioned that the Department has moved or is moving to more closely regulate pot/trap-based fisheries in state waters: lobster, fish pots, crabs. The lack of this authority to manage the pot-based whelk fishery is a significant gap in this effort. Councilor Davi asked whether the DEC intended to limit the number of whelk pots. Mr. Colvin stated that this was not the present intent of the Department. Councilor Freierman stated that she thought that the squid fishery was being effectively managed under the federal fishery management plan, which applied to federally-licensed squid fishermen wherever they fished. Councilor Relyea noted that whelks were shellfish predators and might need to controlled at times.

Action. Councilor Jordan motioned that the Council express its support for S6810. The motion was adopted by a vote of 9 in favor; 0 opposed; 2 abstentions.

S.5298/Johnson. Authorizes DEC to manage American lobster fisheries in state waters by regulation, consistent with existing state law and the current ASMFC lobster fishery management plan, through 31 December 2003. Current management authority for most aspects of the lobster fishery is held by the State Legislature.

Discussion. Councilor Davi stated he was opposed to this bill; giving DEC regulatory authority over lobsters, in his view, would undercut the role of the industry-based Lobster Conservation Management Teams (LCMT’s). Mr. Colvin noted that a bill similar to this, but restricted to Lobster Conservation Management Area #4 (south shore of Long Island), was enacted in the previous legislative session. He thought it unlikely that the sponsor is seeking to "move" S.5298 this year, in light of this previously-conveyed regulatory authority. Chairman Wise asked how would broader DEC regulatory authority over lobster affect the role of the LCMT’s. Mr. Colvin responded that the Area #4 Lobster Conservation Management Team developed recommendations that were found consistent with the ASMFC lobster fishery management plan and the regulatory authority given the Department last year for Area #4 is being used to implement these recommendations. Councilor Melton suggested that the sponsor be contacted to ascertain his interest in moving this bill at this time.

Action. The Council took no position on S5298.

The Council next discussed a group of bills that each pertain to the prohibition of taking striped bass from the Hudson River for commercial purposes.

A.4904/Calhoun. Prohibits the taking of striped bass from the waters of the Hudson River for commercial purposes.

S.5392/Gentile. Prohibits the taking of striped bass from the waters of the Hudson River for commercial purposes.

A.10141/Brodsky. Prohibits the taking of striped bass from the waters of the Hudson River (George Washington Bridge to Troy dam) for commercial purposes.

S6197/Leibell. Prohibits the sale of striped bass taken in the inland waters on New York State (includes the Hudson River north of the George Washington Bridge).

Discussion. Under current regulations, striped bass harvested from the Hudson River north of the George Washington Bridge must be returned to the water, dead or alive. The objective of these bills would be to make this prohibition a matter of law, rather than regulation. Councilor Jordan asked after the final recommendations of the Commissioner’s Hudson River Striped Bass Advisory Committee. Mr. Colvin responded that the committee did not reach a consensus on whether or not to allow striped bass harvested from the Hudson River to be marketed. The committee did recommend that, if striped bass bycatch were again allowed to be sold, a annual cap be put on the bycatch of about 40,000 lbs. This would not be taken from the existing state commercial striped bass harvest quota for New York. These fish are currently classified as dead discards and a regulatory change that would make them available for marketing would not increase the overall fishing mortality experienced by striped bass in New York waters. In response to a question, Mr. Colvin stated that current PCB body burdens of striped bass in the lower Hudson River vary depending on the season, location in the river, and size of fish. Fish taken incidentally in shad gill nets set in the George Washington Bridge – Bear Mountain reach of the river have shown a clear long-term decline in PCB contamination to below 2 ppm (the federal action limit). However, the State Health Department has not issued an unequivocal ruling about the human health concerns of consuming Hudson River striped bass. The EPA Administrator has ruled that removal of remnant PCB’s in Hudson River sediments must be removed by dredging; how this dredging activity might affect PCB levels in fish, including striped bass, in the river is not known with certainty. Councilor Jordan stated that it was his understanding that only a handful of shad fishermen are presently impacted by the ban on marketing striped bass caught in their nets as a bycatch. He also stated that he understood that this bycatch can be reduced if not eliminated by regulating the depth at which the gill nets are set. He suggested the Council support one of the above bills outlawing commercial harvest of striped bass in the Hudson River. Councilor Melton stated that, in its review of legislation that would ban commercial harvest of striped bass from the River last year, the Council asked the sponsor for information on what the foregone economic opportunities would amount to, but has had no response. Councilor Doxsee stated that this striped bass bycatch is happening now and will likely continue to occur; he saw no harm in allowing these fish to be marketed rather than put back dead into the river.

Councilor Jordan suggested that, should shad fishermen in the Hudson River be allowed to sell striped bass caught as bycatch, this should occur only under the same type of management measures faced by other commercial striped bass harvesters in New York. Councilors Danielson and Melton asked whether there are gears that shad fishermen would use that striped bass fishermen would not use so that, if the striped bass-directed gear were banned, the activities of shad fishermen would not be unduly affected. Mr. Colvin’s response was that it would be easier and cleaner for a bill to not address allowable gears and focus solely on striped bass as a species of fish. He suggested that A10141 was such a bill; it simply prohibited the commercial taking of striped bass from the Hudson River and did not get into restricting gear of specific sizes, dimensions, or characteristics. A4904, S5392, and S6197 all include gear restrictions that would impact shad fishing.

Mr. Colvin observed that the present consumption advisory issued by the New York State Health Department for striped bass from the lower Hudson River is to eat none. A legitimate issue is raised should the state allow striped bass from this part of the river into the marketplace, where the origins of the fish would soon be lost and unavailable to the eventual purchaser/consumer. The Hudson River striped bass consumption advisory may be revised and perhaps somewhat relaxed by the Health Department as part of an overall reassessment by that agency of their advisories, but this has yet to occur. Councilor Danielson stated that he thought the state should take extra precautions to conserve striped bass populations in producer areas, such as the lower Hudson River. Mr. Colvin responded that the predominant source of striped bass fishing mortality in the Hudson River is the recreational fishery. The overall removals of fish from the Hudson River stock occur within the Marine District, when fish migrate out into coastal waters, and is both commercial and recreational. Mr. Wise spoke against these bills because 1) they propose a draconian, and likely permanent solution to a complex problem and 2) allowing the sale of striped bass caught as bycatch in the lower Hudson River would not impact the condition of the Hudson River spawning stock nor the larger coastal migratory stock of striped bass of which the Hudson River population is a part. Mr. Colvin stated that DEC does not have a departmental position on possible re-instatement of commercial sale of striped bass caught in the Hudson River and he was unaware of any departmental position on any of the above bills. He said the Department may articulate a position later this year.

Action. Councilor Jordan made a motion that the Council oppose A4904, S5392, and S6197 on the basis that, if enacted, each of these laws would likely have a negative impact on the fishing practices of lower Hudson River shad fishermen beyond a prohibition on the keeping & marketing of any striped bass caught as bycatch. This motion was adopted by a vote of 11 in favor; 0 opposed; 0 abstentions. Councilor Freierman moved that the Council also oppose A10141, on the basis that it would impose a legislative permanent solution to an issue about which there is still considerable public debate and a statutory ban on the sale of Hudson River striped bass imposed now might be difficult to remove later should occasion warrant. Ms. Freierman’s motion was adopted by a vote of 8 in favor; 3 opposed; 0 abstentions.

S5825B/Johnson;A.6647/Sweeney. This directs the State Commissioner of Motor Vehicles to issue "Marine and Coastal District of New York" vehicular license plates. A majority of the proceeds from the sale of such plates would be deposited into a special fund and used to fund conservation, education, and research grants based on guidance provided by a special 3-person advisory board empanelled by DEC.

Discussion. The estimated annual revenue to the new Marine and Coastal District Conservation, Education, and Research Fund was ± $47,000. Some Councilors questioned whether this figure was accurate and, if it was, the level of conservation project activity that could be supported by this amount of money. Councilor Freierman questioned whether programs and activities involving mainly the commercial fishing would be eligible for support through the proposed program and the general assessment was that such programs would be eligible.

Action. Councilor Danielson moved that the Council support this bill. The motion was adopted by a vote of 10 in favor; 0 opposed; 1 abstention.

S.6647/LaValle. This bill would direct DEC to establish recreational harvest permits for fluke (summer flounder), scup, and (black) sea bass. Holders of such permits would be subject to special catch restrictions and catch/effort reporting requirements developed by the Department.

Discussion. If enacted, this legislation would establish the first marine recreational fishing permit/license in New York State, albeit only for the three named species. There was some uncertainty among Councilors as to whether the sponsor of the bill intended its provisions to apply to all recreational fishermen in the Marine District or just those fishing from charter and/or party boats, although the language of the bill is explicit in applying it to all recreational fishermen. It was speculated that proponents of this bill may see it as a means of developing sufficiently accurate and detailed information on recreational catches and fishing effort for different modes of fishing (i.e., for-hire vessel; beach; private boat) to justify area-specific regulations on these three species. Councilor Jordan noted the work of the Council’s marine resource programs financing subcommittee, suggesting that, if a limited or comprehensive state marine recreational fishing license/permit was an appropriate thing to consider, the subcommittee should make mention of it in its report.

Action. Councilor Melton moved that the Council oppose S6647. The motion was adopted by a vote of 11 in favor; 0 opposed; 0 abstentions.

A8683C/Englebright. This bill would, two years after its enactment, institute a ban on the sale of lead sinkers weighing 0.5 oz. or less. Ingestion of lead in the form of lead birdshot and split shot sinkers has been linked to deaths of waterfowl, especially loons.

Discussion. Councilor Ferrera took issue with the relevance of this law to the Marine and Coastal District and noted that, the ban on use of lead shot to kill birds notwithstanding, one can still hunt squirrels and other mammals with lead shot. He thought the bill was more relevant to upstate areas. Mr. Wise noted that wintering loons were common on Long Island’s bays. Councilor Melton felt that the scientific data upon which this proposed ban is based is not all that strong and there were questions about whether particular birds examined had died of lead poisoning. The recreational fishing industry had advised the bill’s sponsor that prohibiting the sale of lead split shot 3/16" diameter or less would be acceptable; setting the limit at 0.5 oz would eliminate from the recreational fishing industry a number of other sinker types that are unlikely to be ingested by birds. Mr. Melton said that sinkers made of alternative materials have a cost 3-4 times that of sinkers made of lead. He noted that New York wholesalers often sell sinkers to out-of-state retail bait & tackle shops and this would be allowable under the proposed law, but retail sale of these same sinkers would be prohibited.

Action. Councilor Melton moved that the Council oppose this legislation. His motion was adopted by the Council; the vote was 10 in favor; 1 opposed; 0 abstentions.

A9078/Levy et al. This bill would stipulate the size (&Mac179; 10") and color (white or yellow) of buoys used to mark warps or individual lobster and crab traps/pots.

Discussion. Mr. Colvin noted that the proposed crabbing regulations were put out for public comment by DEC after this bill was introduced into the 2001 legislative session. Those regulations drew extensive and often negative comment and are being revised based on comments received. These regulations address many of the issues that are the ultimate target of this bill. Councilor Davi suggested that to limit buoy colors to white or yellow was unnecessarily restrictive and would quickly lead to confusion over gear ownership.

Action. Councilor Davi moved that the Council oppose A9078. Mr. Davi’s motion was adopted unanimously, 11 in favor; 0 opposed; 0 abstentions.

A9589A/Brodsky. This bill would prohibit the purchase, sale, trade, or barter of fish caught in New York waters that have in excess of 1 part per million (ppm) PCB’s.

Discussion. Several Councilors observed that it is not reasonable to require that a determination be made of the PCB content of a specific fish before that fish is allowed in the marketplace. There is no quick, easy, affordable, and reliable assay presently available to make such an assessment.

Action. Chairman Wise moved that the Council oppose A9589. The motion was adopted by a vote of 11 in favor; 0 opposed; 0 abstentions.

A10024/Thiele. This legislation would exempt the owners/operators of party or charter boats from criminal or other liability for acts of other individuals aboard such boats.

Discussion. At present, boat owners/operators can be fined for violations of ECL laws perpetrated aboard their boats by fare-paying customers or others. Councilor Jordan said the law should be changed to empower holders of the special striped bass charter and partyboat operators license or at-sea fluke filet permit to regulate the behavior of their customers as opposed to making them entirely unaccountable for their customers’ behavior. Mr. Colvin noted that these special permits were originally developed and made available to the party and charter boat industry based on an implicit agreement that those receiving these permits would be accountable for seeing to it that their fares comply with the terms of these permits while on their vessels. DEC Division of Law Enforcement opposes this bill. Mr. Colvin suggested that, if this bill is enacted, DEC would consider eliminating these special permits altogether. Chairman Wise observed that this law would exempt owners/operators not just from violations of the special striped bass and fluke filleting permits by their fares, but from any actions of their fares while aboard their vessel, including any and all violations of the Environmental Conservation Law and implementing regulations. Most Councilors expressed the view that the owner/operator of a charter or party boat should be accountable for what happens aboard their boats, and not entirely removed from any liability for the action of fares.

Action. Councilor Freierman motioned that the Council oppose this legislation. Her motion was adopted by unanimous vote: 11 in favor; 0 opposed; 0 abstentions.

A433/Brodsky. This bill would prevent DEC from implementing any fishery management plan or regulation that included a provision for the transfer of a fishing license.

Discussion. Chairman Wise reminded the Council that it has opposed this bill since the bill’s initial introduction several years ago. The Council has always supported the transferability of commercial fishing licenses between immediate family members and this bill would prohibit such transfers. Councilor Freierman noted that a national study of Individual Transferable Quota (ITQ’s) recommended that fishery management organizations keep ITQ’s in their tool kits, as they were found to be effective fishery management tools in certain situations. She assumed A433 would prohibit ITQ’s and this concerned her.

Action. None.

A6905A/Tocci. This bill increases penalties for violations of certain sections of the Environmental Conservation Law and prohibits use of fish picks for culling/sorting fish.

Discussion. The Council is on record in support of this proposal, although its support is conditional on the bill being revised to limit the ban on the use of fish picks to fish that are destined for release. Using picks on fish that are to be kept and marketed is appropriate. The sponsor has yet to revise the language of the bill accordingly.

Action. None.

The following bills have been resubmitted from previous legislative sessions. Existing Council positions on these bills are unchanged. A summary of the Council’s original discussion on these bills can be found in the bulletins of the Council’s April and May meeting bulletins for the years 2001 and earlier.

Support:

A299. Bans the mass release of helium balloons into the environment.

A9960. Bans the disposal of any dredged spoils containing toxic pollutants into the waters of the state’s Marine District

Oppose:

S3263/A6501. Allows commercial lobster permits to be transferable between persons who each possess a commercial foodfish license

S.2019/A3393. Gives town trustees exclusive rights to regulate harvest of shellfish in town waters without limits imposed by DEC

A.777. Creates a state Advisory Council on Seafood Policy

A.2668. Establishes a Marine Life Protection Task Force within DEC

A.3060. Requires a commercial foodfish license to harvest/possess finfish in the waters of the state’s Marine and Coastal District

No Position:

A.6082. Creates a habitat protection zone in Long Island Sound.

Mr. Wise reminded the Council that any additional bills dealing with marine resources introduced after the present meeting will be discussed at the May 2002 Council meeting.