The following summarizes the Council’s discussion of marine resource-related legislation currently pending before the New York State Legislature.  The majority of these bills are re-filed from last year and the Council has already adopted a position on many of these.  Chairman Wise directed that the Council would discuss a re-filed bill only if one or more Councilors wished to review and perhaps revise the Council’s existing position on it (see list, below).  This did not occur.  Thus, the Council’s review incorporated only those bills that are newly filed in the current legislative session.

DEC Program Bill #7-05

Provisions:  This bill would grant full regulatory authority to the State Department of Environmental Conservation over oysters (Family Ostreidae), scallops (Family Pectinidae) and lobsters in Lobster Conservation Management Area Six (LCMA 6, Long Island Sound).  DEC Director of Marine Resources Gordon Colvin provided background and rationale for the Department’s request for this authority.

Oysters.  Over the last several years, DEC has received considerable interest from baymens’ associations on western Long Island and the North Shore for instituting a minimum size limit for oysters.  This has been discussed by DEC’s Shellfish Advisory Committee, which has expressed interest in the matter.  However, a minimum size limit for oysters is a potential concern for aquaculturists and baymen on the East End do not feel it is warranted in their area.  Mr. Colvin explained that DEC feels that the best approach would be to authorize the Department to adopt regulations that could include minimum size limits and then tailor minimum size regulations so that they would apply, at point of landing, only in those areas where baymen have called for a minimum size.

Mr. Colvin also noted that this bill would give DEC an additional tool with which to regulate any proposals that might come forward to introduce non-native species of oysters into New York’s waters.

Bay Scallop.  Mr. Colvin informed the Council that the East End Baymens Association has been working with The Nature Conservancy to come up with a strategy for restoration of shellfish resources in the Peconic Bays System.  Among the ideas they are currently pursuing are:

• moving the opening of the scalloping season back further in the year to assure that 100% of bay scallops have completed spawning before they are subject to harvest.
• exploring solutions to the problem of a scallop that can’t be harvested due to its size or that it has a growth ring.

Lobsters in LCMA 6.   DEC has the authority to promulgate regulations for lobster management in all Lobster Conservation Management Areas except Area Six - - Long Island Sound.  Mr. Colvin indicated that New York is facing compliance requirements in Area 6 under the Atlantic States Marine Fisheries Commission’s (ASMFC’s) interstate fishery management plan for lobster.  Under that plan, the gauge (minimum size) for lobster is being incrementally raised.  The States of New York and Connecticut, in consultation with the Area 6 Lobster Conservation Management Team, has proposed an alternative to ASMFC that, if approve, would substitute for the gauge increase.  The outcome of this proposal won’t be known until after the current session of the State Legislature adjourns.  If the proposal were eventually rejected, New York would be potentially subject to an “out-of-compliance” determination because its statutory minimum size lobster size limit would then be smaller than the raised gauge limit. Granting DEC regulatory authority would allow the State to rectify this problem through rule making.

Discussion:  Councilor David Relyea, who has an aquaculture business, expressed concern about this bill and its potential impact on aquaculturists.  Rules adopted to govern the harvest of wild oysters, including season and/or minimum size limits, should not be made to apply to culture operations.  He hoped there would be aquaculture exemptions.  Mr. Colvin reassured Mr. Relyea that the Department would continue to regulate and manage oyster culture under Section 13-0316 (Article 306) and not through any authority eventually conveyed to DEC by this bill.  He reiterated that DEC is presently concerned only about a minimum size limit(s) and only such limits applied to the point of landing, not covering the possession and/or sale of oysters.  Councilor Dean Yaxa supported the need for a size limit on wild-caught oysters, especially in the Huntington area. 

Mr. Pat Augustine, one of New York’s three commissioners on ASMFC, pointed out the joint proposal of New York and Connecticut to ASMFC to substitute a vee-notching program in Long Island Sound for lobsters, as opposed to raising the gauge limit.  This would have a vee-notch cut into the tails of approximately 150,000 - 200,000 female lobsters of 3” carapace length and larger over this year and perhaps the same number in 2006.  Vee-notched lobsters could not be retained if caught.  In the view of the two states, this would provide an equivalent level of conservation protection than the gauge increase for lobsters in Long Island Sound.  Mr. Colvin observed that if the New York/Connecticut vee-notch proposal is approved by AFMC and this regulatory bill didn’t pass, New York would not be ruled out-of-compliance on lobster management in the Sound.  DEC already has the regulatory authority to implement the vee-notch proposal in the Long Island Sound lobster fishery.

Action:  Councilor Joseph McBride made a motion that the Council support DEC Program Bill #7-05 (second by Councilor Robert Danielson).  The Council adopted this motion; 11 in favor, 1 opposed, 0 abstentions.

Mr. Colvin commented to the Council that a group in Chesapeake Bay has petitioned the National Oceanic and Atmospheric Administration (NOAA) to place the Eastern oyster (Crassostrea virginica) as a threatened species under the Endangered Species Act.  NOAA’s National Marine Fisheries Service (NMFS) accepted the petition last week and will begin a formal review of the status of this species.  The review will take 12-18 months.  Although the petition was made specifically for oysters in the Chesapeake Bay area, the NMFS review will cover the Eastern oyster throughout its geographic range, from Texas to Maine.

A6454/ S4149

Provisions:  This would 1) move the start of the state scallop season back to the 1st of November, 2) require that, to be eligible for harvest, a scallop must have an annual growth line and measure not less that 21/4” in width and 3) establish a Bay Scallop Management Advisory Board to provide advice and guidance to DEC in the formulation of a long-term management plan for bay scallops in New York waters.  The current law requires that, to be legally harvestable, a bay scallop must have an annual growth line or measure 2 ¼” in width.

Discussion:  Councilor Sima Freierman spoke against A6454/S4149, stating that the Legislature should not be in the business of managing New York’s marine fisheries at this level of detail.  She supported the idea of a scallop management board.  Several councilors expressed reservations about creating another species-specific marine resource advisory group.  Councilor Melissa Dearborn noted that the Council had just voted to support the DEC program bill to give DEC regulatory authority over scallops, including bay scallops, and she felt that it made no sense for the Council to then support legislation whose effect would be to circumscribe that authority somewhat in terms of season, minimum size limits, etc.  She felt that DEC should set these measures through regulation.  Mr. Colvin observed that the bill sponsor had apparently patterned the language of the section of the bill establishing the Bay Scallop Management Board directly on existing language in the Environmental Conservation Law (ECL) creating the Surfclam/Ocean Quahog Management Advisory Board and this language was not necessarily the best fit for bay scallop management.

Action:  Councilor Freierman moved that the Council oppose this bill (second by Councilor Tom Melton).  The Council adopted Ms. Freierman’s motion; the vote was 11 in favor, 0 opposed, 1 abstention.

A2258

Provisions:  The provisions of this bill include, inter alia, a prohibition on taking of horseshoe crabs without a permit issued by the DEC; limiting those eligible to receive a permit to persons harvesting this species for academic or medical research, or persons possessing a state commercial lobster permit; and establishing a cap of 100,000 animals that could be harvested during any calendar year. 

Discussion:  Mr. Colvin noted that DEC already had a horseshoe crab permit system in place, along with several other regulations governing the harvest of this species.  Several councilors questioned why, among commercial fishermen, only those possessing a lobster license should be eligible for a horseshoe crab permit.  Mr. Colvin suggested that perhaps the sponsor actually intended that this allowance should be made to those possessing a commercial crab license.  It was unclear whether the restriction on harvesting horseshoe crabs only for academic or medical research would apply to those receiving a permit because they already held a commercial lobster permit. 

Action:  Councilor Danielson made a motion to that the Council oppose A2258 (second by Councilor Tom Jordan).  Mr. Danielson’s motion was adopted by a vote of 12 in favor, 0 opposed, 0 abstentions.  It was suggested that the sponsor of this bill discuss current horseshoe crab regulations and management needs with DEC to identify those needs that might be best met through more targeted legislation.

S4169

Provisions:  This legislation would entitle the owners/operators of “for hire” fishing boats (i.e., charter and party boats) to be eligible for the same exemption from certain state fuel taxes presently enjoyed by state commercial fishermen, who pay the taxes but then apply for their reimbursement.

Discussion:  Councilor McBride said “for hire” vessels had not been included in the state fuel tax exemption along with commercial fishing vessels because of ambiguity in the number and identity of who was or wasn’t a bona fide charter boat owner/operator.  In his view, with DEC’s licensing of “for hire” vessels, this was no longer a problem.  It was remarked that Connecticut, Rhode Island and New Jersey all currently offer this exemption to “for hire” vessels.  Chairman Wise suggested that bill language should be tightened up so as to have its provisions apply only to licensed charter and party boats.  Mr. Roger Tollefsen of the New York Sea Food Council observed that the Council was already in support of another bill (re-filed this year) that would exempt commercial fishermen from paying these fuel taxes in the first instance at all and suggested that that bill might be revised to include “for hire” vessel owners/operators, rather than have the latter handled separately through S4169.   Chairman Wise observed that this other (Assembly) bill has been around for years and has yet to gain passage, or even a Senate sponsor.

Action:  Councilor Danielson made a motion that the Council support S4169 and recommend that its language be revised to have its provisions apply to “licensed charter and party boats” (second by Councilor Freierman).  The Council adopted Mr. Danielson’s motion.  The vote was 12 in favor, 0 opposed, 0 abstentions. 

A5808-A & A3359

Provisions:  The Council discussed these two bills together.  Both have multiple provisions, including directing DEC to undertake a fishing promotion program.

Discussion:  Councilor McBride spoke in support of these bills, suggesting that any promotion of fishing by the State will likely bring some economic benefit to businesses associated with marine recreational fishing in New York.  Other councilors felt that the focus of these bills was on upstate areas and/or freshwater fishing and that it was not likely that marine recreational fishing in New York would benefit much from any statewide fishing promotion program.  While noting that any promotion of fishing is a good thing, Mr. Gordon observed that neither bill would provide the Department with any additional funds to support an expanded fishing promotion effort.  Mr. Wise suggested supporting the bill contingent on an appropriation being added to it.  He reminded the Council that fishing promotion was one of the unmet marine resource programs identified by the Council’s Subcommittee on Marine Resource Program Funding Needs.

Action:  Councilor Freierman moved that the Council oppose both of these bills (second by Councilor McBride).  This motion was adopted by a vote of 12 in favor, 0 opposed, 0 abstentions.

A2047

Provisions:   This bill would revise the State Constitution to guarantee the people of New York the right to hunt, fish, and trap consistent with measures governing these activities promulgated by the State and reaffirming that no lower governmental entity (county, municipality) has the right to prohibit these activities.

Discussion:  Personnel from DEC’s Division of Law Enforcement stated that this bill has its origins in the increasing prevalence of prohibitions on hunting, fishing, and trapping being enacted by municipalities, ostensibly in the name of public safety, but too often and in truth undertaken as a way of reconciling competing uses, e.g., banning hunting within a town because waterfront property owners don’t like the sound of firearms being discharged by early morning duck hunters.  They stated that such actions were slowly compromising the ability of state residents to participate in these time-honored activities and urged the Council to support this legislation.

Action:  Councilor Danielson made a motion that the Council support A2047 (second by Mr. McBride).  Mr. Danielson’s motion was adopted:  12 in favor, 0 opposed, 0 abstentions.

A1579A

Provisions:  This legislation adds “fishing, surfboarding, and scuba diving” to a pre-existing list of activities in state law for which state and public corporations are exempt from liability for injuries and death of persons when lifeguards are not on duty at a beach.

Discussion:  Councilor Danielson said he would support this because it might stop frivolous lawsuits.  Mr.; Colvin suggested that, by removing a potential disincentive that local governments might have for making their beaches open to the public, this legislation might have the effect of promoting public access to the waterfront.

Action:  Councilor McBride made a motion that the Council support this bill (second by Councilor Danielson).  This motion was adopted by a vote of 10 in favor, 0 opposed, 1 abstention.

This concluded the discussion by the Council of newly filed marine resource bills.  The following is a list of re-filed bills dealing with marine resources on which the Council has an existing position.  These positions were not altered as a result of this meeting.

Re-filed Bills That the Council Opposes

A03849, provides that operators of “for hire” vessels are not responsible for acts of individuals aboard their vessels.

A02547, prohibits any person whose fishing license has been suspended/revoked in any US jurisdiction and/or Canada from getting a license in New York.

A02526/S01338, allows commercial lobster licenses to be transferred between persons who each possess a commercial foodfish license.

A02262, extends the limits of an “essential fish habitat protection” zone along the north shore of Long Island.

A10663, prohibits the purchase or sale of fish caught in New York waters that contains PCB levels higher than 1 part per million.

A01047, prohibits taking striped bass from the Hudson River for commercial purposes.

A02386, establishes the marine life protection task force within DEC and charges it to conduct a comprehensive assessment of the needs to protect marine life in New York’s Marine District and the adequacy of current laws and regulations to provide this protection.

A06893, prohibits use of rubberized rollers (“cookies”) on trawl gear used in New York’s Marine District.

A02818,requires the organizers of any fishing tournament with vessels further than 1 mile offshore to register with DEC and requires all boats in such tournaments to carry an EPIRB when more than a mile offshore.

Refiled Bills That the Council Supports

A03854/S00279, eliminates requirement for operators of commercial fishing vessels to pay diesel fuel taxes and then seek a full refund of these payments.

A05934, prohibits taking of striped bass from the Hudson River for commercial purposes, allowing lawful taking of striped bass for recreational purposes.

A06067, prohibits DEC from establishing areas closed to recreational fishing without a prior determination that recreational fishing is the cause of the conservation problem for which the closure is imposed; other limits on establishing no-take reserves.

A04739/S03323, allows licensed shellfish diggers to harvest shellfish in Lake Montauk regardless of public or private ownership of bottomlands, except for lands that are being used for private aquaculture.

A02988, provides that motor fuel tax revenues from recreational boating be used for boating services and establishes the Boating and Marine Improvement Fund.

A01373/S00714, bans the release of 25 or more balloons inflated with a lighter-than-air gas within a 24-hour period.

A03335/S02071, prohibits disposal of dredged spoils containing toxic pollutants into the waters of New York’s Marine District.

 

Page last modified Sunday, May 8, 2005 by George E. Carroll