The balance of this meeting was devoted to review and discussion by the Council of marine resource-related legislation pending before the State Legislature. The sections below present this discussion for each bill. Each bill is identified by its filing number(s) and sponsor(s). The provisions of the bill are briefly described. The highlights of the Council’s discussion of the bill are then presented, along with any action taken by the Council to support or oppose the bill, or to suggest modification to the language of the bill. As is the case in each legislative session, some of the bills this year are new and some are bills that were first introduced in the previous or an earlier legislative session, were not enacted, and have been reintroduced in 2003. Bulletin readers are encouraged to review the language of these bills, all of which are available on the New York State Senate or New York Assembly web pages, www.senate.state.ny.us and assembly.state.ny.us, respectively.

S4329/Johnson. Establishes the annual number of commercial fishing licenses to be issued during 2004 - 2007; sets guidelines for issuing commercial conch licenses; authorizes DEC to adopt regulations establishing a commercial license apprenticeship program. This legislation originated as a DEC Program Bill that incorporated most of the recommendations made by the Council in September and November 2002 on revising the laws governing commercial fishing license eligibility. The Council’s recommendations drew heavily on an initial report prepared by a joint DEC-Council Work Group on Commercial Fishing License Eligibility.

Discussion. Mr. Colvin reminded the Council that it had recommended a limit be placed on the number of new foodfish licenses that could be issued to individuals also holding party and charter boat operators licenses, based on the percentage or number of current foodfish license holders who used income from charter and partyboat fishing to qualify for their license. The present bill sets this limit at 10% (i.e., a maximum of 10% of new foodfish licenses could be issued to those using only income from charter and/or partyboat fishing to qualify for the license). Several Councilors raised questions about how the 10% figure was arrived at; these questions were satisfied by Mr. Colvin’s explanation. The bill authorizes DEC to adopt regulations establishing a foodfish license apprenticeship program, consistent with a recommendation of the Council. Mr. Colvin noted that the details of this program are not spelled out; this will await a focused effort by DEC in concert with the commercial fishing industry and the Council to develop a detailed apprenticeship program. This bill enables the holder of a commercial fishing license to designate an immediate family member to receive their license by transfer in the event of their death or incapacitation. Councilor Somma expressed concern with regard to what would happen to a new license applicant who only has income from party and/or charter boats after the 10% limit referenced above is reached. Mr. Colvin said the individual would have to reapply for a license the following year.

Action. The Council adopted a motion expressing support for S4329. The motion was adopted by a vote of 11 in favor; 2 opposed; 0 abstentions.

DEC Program Bill #236. Extends and streamlines DEC’s regulatory authority to set management measures (i.e., open seasons, size and catch limits, manner of taking, etc.) for marine species.

Discussion. With three exceptions (25-fish commercial possession limit on tautog [blackfish], prohibitions on finning of sharks, and striped bass minimum size limits and open season dates), this bill eliminates those sections of the Environmental Conservation Law (ECL) that set specific management measures for selected marine species (e.g., 10-fish recreational possession limit for bluefish and the 6-fish possession limit/16” minimum size limit on recreationally-caught weakfish) and consolidates DEC’s ability to manage these and all other species under a broad regulatory empowerment. Several Councilors and some among the Council’s visitors and guests were uncomfortable that the bill did not repeal the above specific statutory provisions on blackfish, sharks and striped bass, leaving them outside the general regulatory authority of the DEC to manage marine species in New York’s waters. Others suggested that there may be strong political support for treating, for example, striped bass separately; an attempt to remove these exemptions from the present bill might make the bill more difficult to pass. A representative from the Long Island Sound Lobstermen’s Association stated that the Association opposed DEC regulatory authority over marine fishery species and felt that all responsibility for developing management measures for New York’s marine fisheries should reside with the State Legislature.

Action. It was moved that the Council support this Program Bill, contingent on its language being revised to repeal the present statutory commercial possession limit for tautog, or blackfish (blackfish). Operationally, this would mean the deletion of lines 23 & 24 on page 3 of the bill . This motion was adopted by a vote of 12 in favor; 0 opposed; 1 abstention.

A1782/Thiele S841/LaValle. Provides that no owner or operator of a party boat, charter boat or other vessel shall be criminally liable for the acts of individuals aboard such boats or vessels.

Discussion. Chairman Wise noted that this bill was first introduced in last year’s legislative session. It was reviewed by the Council at its 16 April 2002 meeting, at which time the Council adopted a motion opposing the bill. Councilor McBride stated that he thought the bill applies more to party boats than to charter boats; charter boats carry many fewer passenger and the captain and mate can more easily observe the behavior of individual fishermen who might be violating state marine fishery laws or regulations. Some vessel captains complained that, the current law, under which they can be held liable for the conduct of their paying passengers, was unfair and at times they were given summons by law enforcement officers for a fare’s infraction simply because the fare had left the vessel already or the identity of the offending individual could not be determined. It was suggested that the most effective approach to catching violators aboard party boats was for the Division of Law Enforcement to go under cover on these boats. Mr. Colvin explained that DEC presently has the discretion to ticket someone or not, but this bill would take away that right. DEC strongly opposes this bill. Major Fanelli reiterated Mr. Colvin’s view, stating that this bill would tie law enforcement’s hands. It was pointed out that a literal reading of the bill’s language would include the vessel captain under the word, “individual;” thus, even a captain who was personally guilty of a violation, or who was clearly complicit in a violation by one of his/her fares, would be exempt from prosecution.

Action. By acclamation, the Council acted to maintain its opposition to this bill.

A1825/Thiele. Provides that monies received by the state from imposition of taxes on motor fuel used in the operation of a pleasure or recreational boat shall be used for boating services. Establishes a “boating and marine improvement fund” under the joint control of the state Commissioner of Taxation and Finance and the State Comptroller to receive and disburse such monies.

Discussion. Mr. Colvin explained that the bill potentially requires a determination of what proportion of motor fuel taxes are attributable to use in boats and move that percentage into this new fund. Currently the tax is 70 cents/gallon for diesel.

Action. The Council adopted a motion to support this bill. The vote was 13 in favor; 0 opposed; 0 abstentions.

A1972/Thiele S1031/LaValle. Provides that lobster permits shall be transferable between persons who each possess a food fish license.

Discussion. The council is on record for opposing this bill for the following reasons: 1) this degree of transferability could lead to the consolidation of lobster licenses in fewer and fewer hands and 2) the lobster trap tag program does not provide for the transferability of trap tags and a new entrant into the lobster fishery who received a license through transfer would not have a trap tag allocation and could not fish. Additionally, the Council, in supporting the commercial fishing license eligibility provisions of S4329, above, was on record as supporting continuation of very strict entry limits into the commercial lobster fishery, in the form of a moratorium on the issuance of new lobster licenses.

Action. By acclamation, the Council moved to maintain its opposition to this legislation.

A2673/Calhoun. Prohibits the taking of striped bass from the waters of the Hudson River for commercial purposes.
A4138/Manning. Prohibits the sale of striped bass taken from the inland waters of New York.

Discussion. Chairman Wise reminded the Council that these two bills had been introduced in the previous legislative session, at which time the Council went on record opposing them. The Council was concerned that both bills, if enacted, would likely have a negative impact on the fishing practices of lower Hudson River shad fishermen beyond a prohibition on the keeping and marketing of any striped bass they inadvertently catch, which prohibition is currently a state regulation. The language of these bills is unchanged from those introduced last year.

Action. By acclamation, the Council moved to maintain its opposition to A2673 and A4138.

A3164/Thiele S1469/LaValle. Affirms the right of persons possessing the required licenses/permits from the state and the Town of Easthampton to take shellfish for commercial purposes from the waters of Lake Montauk regardless of whether the underwater lands involved are in public or private ownership. Only in the case where a private underwater land owner takes specific actions demonstrating an intent to protect and propagate shellfish on his/her lands can wild harvesters be excluded.

Discussion. Due to a complex history of land ownership and transference actions dating to colonial times, underwater lands in Lake Montauk are a mixture of privately- and publicly-owned parcels. Controversy has arisen over the ability of baymen to dig shellfish on the privately-held lands. The underwater lands in the center of the lake are owned by the Town of Easthampton and are in the public domain, while the underwater lands along the shore remain in private hands. Some of the private land owners are contesting the right of baymen to harvest shellfish from land they own. Councilor Yaxa pointed out that, in a very similar situation, a court found in favor of baymen who wish to continue to harvest naturally-occurring shellfish from privately-owned underwater lands in the Village of Asharoken in the Town of Huntington. Councilor Freierman stated that ownership of land under the water does not convey the authority to restrict or prohibit legitimate fishing activities. Councilor McBride suggested that this was an instance in which some shorefront property owners living around Lake Montauk did not want baymen working in what they considered their backyards. Councilor Jordan sympathized with the property rights views of the private land owners. In his analogy, if you own an apple orchard, you do not have to allow the public onto your property to pick apples or collect those that have fallen to the ground.

Action. By a vote of 12 in favor, 0 opposed, and 1 abstention, the Council moved to support this bill.

A4124/Englebright. Establishes a marine life protection task force to study the species of marine life in the state and law and regulations protecting such species.

Discussion. Chairman Wise reminded the Council that this bill has been reintroduced several times and the Council has consistently opposed it on the basis that its provisions are too sweeping and ambitious and, without a tremendous amount of effort and resources (financial and personal), which presently do not exist and would not be provided by the bill, DEC could not be expected to conduct the environmental and fishery-related assessments it requires.

Action. By acclamation, the Council moved to continue its opposition to A4124.

A4268/Englebright. Makes changes in the definition of the habitat protection zone for Long Island Sound, expanding to the east the no-trawl zone in the Sound.

Discussion. Chairman Wise reminded the Council that this bill was first introduced in the late 1990’s and has been reintroduced each year since. The Council has consistently taken no position on this legislation because it presents no compelling justification for further restricting commercial trawling in the affected section of eastern Long Island Sound, an area of great importance to trawl fisherman in the Sound.

Action. The Councilor adopted a motion to oppose A4268. The vote was 13 in favor; 0 opposed; 0 abstentions.

A4291/Conte. Directs the state Commissioner of Motor Vehicles to provide printed information to boat owners on the penalties for dumping sewage or other wastes in the waters of the state, as well as legitimate waste disposal options and general boating safety.

Discussion. There was general agreement that many boat owners would benefit from ready access to the type of information provided by this legislation.

Action. The Council moved to support A4291 by a vote of 11 in favor; 0 opposed; 1 abstention.

A465/Cook. Prohibits any person whose license to hunt, fish, trap or guide has been suspended or revoked in any U.S. jurisdiction or Canada from getting a New York license.

Discussion. Chairman Wise reminded the Council that this bill was first introduced in a previous legislative session and the Council has opposed it to date. A question was posed as to how DEC would find out or determine whether a license applicant had their license suspended or revoked in another governmental jurisdiction. There was another question regarding the term “suspended.” It was asked if someone who simply forgot to renew their license one year fell under the same category as someone who had committed a more serious offense.

Action. By acclamation, the Council moved to retain its opposition to this legislation.

A5881/Tocci. Prohibits the use of fish picks in state waters to cull and/or sort fish and increases the penalties for the illegal taking of saltwater fish, shellfish and crustaceans.

Discussion. Chairman Wise reminded the Council that it has offered conditional support for this legislation in the past several sessions. The Council sees no reason to prohibit the use of picks on fish that are to be kept and sold; the language prohibiting picks should be modified to apply only to fish that are to be released back into the water. The Council supports the proposed increases to the financial penalties for illegal taking of marine species. The language of the present bill appears unaltered from that introduced in previous legislative sessions.

Action. By acclamation, the Council reaffirmed its historic position on this bill, described above.

A5934/Brodsky. Prohibits the taking of striped bass from the waters of the Hudson River for commercial purposes.

Discussion. Chairman Wise reminded the Council that it had opposed this bill in the previous legislative session because its language would have unduly affected commercial fisheries for species other than striped bass in the Hudson River. Councilor Dearborn pointed out that the language of the present bill has been modified from previous versions and such collateral impacts to other fisheries no longer seems to be an issue. There was general agreement that this appeared to be the case.

Action. The Council moved to support A5934. The vote was 10 in favor; 0 opposed; 3 abstentions.

A5970/Brodsky. Prohibits the purchase, sale, trade or barter of fish caught in New York waters containing levels of PCB’s greater than one part per million (ppm).

Discussion. Chairman Wise reminded the Council that it had opposed this bill in last year’s legislative session, when it appeared to the Council that this was really an indirect way of banning the commercial harvest of striped bass from the Hudson River. It was questioned whether the State Legislature should set food-related health standards for one kind of food. This responsibility, for all foods and food products, lies with the State Health Department. The regulatory standard for PCB’s set by the US Food and Drug Administration is 2 ppm for most kinds of food, including fish.

Action. By acclamation, the Council moved to maintain its opposition to this legislation.

A7182/Thiele. Permits the cultivation of all shellfish under water in the Gardiner’s and Peconic Bays pursuant to lease agreements with Suffolk County and specifies required surveying and mapping of aquaculture zones in these bays by the County and stipulates public notice requirements of any proposed aquaculture lease.

Discussion. In 2002, two separate committees conducted reviews of constraints and issues affecting commercial aquaculture in the Peconic Bays. One was a Suffolk County legislative committee that examined legal and county tax revenue-specific issues related to lands in these bays for which oyster cultivation rights had been previously granted to private individuals and/or companies. The other committee was convened and facilitated by The Nature Conservancy. It dealt primarily with the scientific/technical, environmental, and management issues constraining commercial aquaculture in these waters. Council Chairman William Wise served as chairman of The Nature Conservancy group. Mr. Colvin stated that both groups produced recommendations that the DEC feels should be helpful in any future dialogue concerning aquaculture in the Peconic Bays. Representatives from the aquaculture industry spoke on behalf of the legislation, arguing that the potential economic and social benefits to the East End from an expanded aquaculture industry would not be achievable without the kind of management framework provided by a leasing program. There was considerable discussion with regard to what specific areas in these bays would be designated as “aquaculture zones” and how this designation process would or would not be handled in ways that accommodated the needs and concerns of other groups using these waters, including boaters and wild harvest fishermen. Several individuals felt the language of this bill was too scanty or general on this issue. A representative from the North Shore Baymen’s Association cautioned that, in other areas, the guidelines and restrictions on aquaculture leases were often violated or ignored, with severe consequences to wild shellfish populations and the baymen who harvest them. A representative of the Southampton Baymen’s Association supported this bill and suggested that Suffolk County should take the reports of its own legislative committee and The Nature Conservancy Committee and move forward with a leasing program based on the findings and recommendations of these groups. Councilor Relyea stated that a more organized and planned approach to aquaculture development on the East End is desirable and this legislation provides a good start. Councilor Yaxa wanted reassurance that the intent of this bill is not to have private aquaculture displace wild harvest baymen but to find a way to have both groups co-exist. DeWitt Davies of the Suffolk County Planning Department, who was involved in the County legislative planning committee mentioned above, confirmed that the County had a renewed interest in determining whether and to what extend it should act on its current legal authorities to conduct an aquaculture leasing program in the Peconics.

Action. The Council adopted a motion that offered support for S3329/7182 on the condition that its language be amended to 1) make reference to the reports of the two aquaculture committees mentioned above and 2) direct the County to use the recommendations of these groups, as described in their respective reports, as the basis for the development of a County-led aquaculture leasing program in the Peconic Bays. The motion was adopted by a vote of 12 in favor; 0 opposed; 1 abstention.

A7298/Sweeney. Extends by four weeks the prohibition against setting gill and trammel nets in certain portions of the Great South Bay.

Discussion. Chairman Wise reminded the Council that it has opposed this bill in previous legislative sessions. He read a letter from the Executive Director of the Long Island Fishing Association expressing the Association’s opposition to this extension of the current netting restriction in Great South Bay.

Action. By acclamation, the Council moved to maintain its opposition to A7298.

A7297/Sweeney. Prohibits the use in state waters of trawls with attached weights, commonly known as “rollers” or “cookies,” more than 4” in diameter; all such rollers must be made of non-metallic materials.

Discussion. Chairman Wise reminded the Council that it has opposed this bill in previous years, on the basis that its enactment would have the practical effect of banning commercial trawling in all marine waters of the state and, when used and sized appropriately, rollers actually reduce the impact of trawling activity on the bottom being trawled. Chairman Wise read a letter from the Executive Director of the Long Island Fishing Association opposing passage of this bill.

Action. By acclamation, the Council moved to retain its opposition to this bill.

A1850/Grannis. Prohibits the release of more than 25 balloons at a single event outdoor event.

Discussion. Chairman Wise reminded the Council that it has supported this legislation since its initial introduction several years ago. Helium and other gas-filled balloons, once released outdoors, often float over marine waters, eventually deflate and fall into the water, becoming hazardous to marine life, especially to endangered sea turtles, who ingest them.

Action. By acclamation, the Council moved its continued support of this proposed prohibition.

A2139/Levy. Stipulates specific sizes & colors of buoys/ markers which are used to designate the location of lobster and crab traps.

Discussion. Chairman Wise reminded the Council that it opposed this bill in last year’s legislative session. In the Council’s view, requiring those setting lobster and/or crab traps to use specific colors and sizes of buoys to mark their gear would probably result in much confusion between fisherman as to who owns what gear. The issue of the proliferation of commercial or semi-commercial crab gear in the South Shore bays, the apparent target of this legislation, is better addressed more comprehensively through DEC regulation. Crab regulations have been under development for several years by DEC.

Action. By acclamation, the Council moved to continue its opposition to A2139.