Section 188-2-66 - Emergency Aquaculture Lease for Shellfish1. The Commissioner may grant an emergency aquaculture lease for shellfish pursuant to 12 M.R.S.A. §6072-B when the health and safety of those shellfish or those of the consumer are threatened and the Commissioner determines that the relocation of those shellfish will not threaten the water quality of the receiving waters or the health of marine organisms in those waters. The purpose of this section is to allow for the quick relocation of shellfish as the result of an unanticipated, natural phenomenon that is beyond the control of the lease holder. There are two types of emergency situations for which these provisions can be used: 1) a non-disease or an environmental emergency such as a major storm event or accident and2) a pathogen or disease-related emergency. The applicant bears the burden of proof to demonstrate that the organisms to be relocated will not transmit pests, disease, pathogens or parasites to the new location and that the proposed lease meets all the standards set forth in these regulations.2. Application Requirements A. Form. Emergency aquaculture lease applications must be submitted on forms prescribed by the Commissioner and must contain all information required by the Commissioner for consideration of the lease.B. Fee. No filing fee is required for an emergency lease application.C. Emergency Relocation for Non-disease and Environmental Emergencies.(1) Notification Requirements. For non-disease and environmental emergencies only, the lessee can apply for a Letter of Permission when circumstances require immediate relocation of shellfish to ensure their health and safety or that of the consumer. The lessee must notify the Department in writing prior to the relocation of any shellfish. The written notification must include the lessee's name, address, home and business phone number, the name and number of the lease site from which the shellfish will be moved, a location map showing the area to which the shellfish will be moved (U.S.G.S. topographic map, a nautical chart or other map of appropriate scale showing the area), and the number and size of the shellfish to be relocated.(2) Letter of Permission. Within 48 hours of receipt of the written notification of a request for emergency relocation, the Department will either issue a Letter of Permission allowing for the temporary relocation of shellfish or issue a written denial of the request.(3) Submission of Emergency Lease Application. Within 10 days of the receipt of the Letter of Permission, the applicant must submit a written application for an emergency lease. Failure to submit a written application within this timeframe will result in the revocation of the Letter of Permission. If the Letter of Permission is revoked, the shellfish must be returned to a legal lease site within 3 days of the revocation.(4) Terms for Temporary Approval. The Letter of Permission will remain in effect until the Department issues an emergency lease. If the Department denies the emergency lease request, the applicant must remove the shellfish within 3 days of the receipt of the decision.D. Emergency Lease Application Requirements:(1) The lessee's name, address, home and business phone number of applicant and the location of the existing lease from which organisms will be moved.(2) A description of the threat and need for the emergency relocation of the organisms.(3) A description of the proposed lease metes and bounds or coordinates, total acreage, a map of the lease area and its adjoining waters and shorelines, with the names and addresses of known riparian owners indicated on the map as listed in the municipal tax records.(4) A list of species and an estimate of the numbers of individuals to be relocated to the proposed lease site and their life cycle stage(s).(5) The date of proposed relocation, the anticipated duration of the relocation, and a description of how the organisms will be managed for the duration of the lease. Indicate the size, shape and orientation of structures that will be used.(6) A description of the degree or exclusive use required by the project.(7) A general description of the site including type of bottom, the presence of eelgrass, natural shellfish beds, saltmarsh and the general shoreline and upland characteristics.(8) A written statement from a local harbor master, or Marine Patrol Officer on the fishing activity, moorings and navigational channels in the area and the use of the area by riparian owners for ingress and egress.(9) The written permission of every owner of intertidal land in, on or over which the emergency aquaculture activity will occur.(10) For pathogen or disease-related emergencies, the applicant may also be required to submit a statement of examination by a state, federal, or Department approved private laboratory indicating its findings and certifying that the marine organisms to be relocated are free of any infectious or contagious disease agents, pathogens, pests, or parasites based on standard methods of diagnosis.E. Completion. Upon receipt of a written application, the Commissioner shall determine whether the application is complete and contains sufficient information for making a decision on the application. If the application is incomplete, it shall be returned to the applicant with a written explanation of the additional information required in order to be complete.3. Department Site and Project Review. The Department may inspect the proposed site and immediate area to obtain information on but not limited to the general characteristics of the area, the commercial and recreational use of the area and evidence of fishing activity, moorings and navigational channels. The Department may seek advice with regards to shellfish diseases for consideration in the final decision.4. Decision. After reviewing the application and any information obtained by the Department, the Commissioner shall issue a written decision. The Commissioner may grant a lease if they are satisfied that the proposed project meets the conditions contained in 12 M.R.S.A. §6072-B. A. Standards: In making the decision, the Commissioner must consider the following: (1) The applicant's status as a leaseholder pursuant to 12 M.R.S.A. §6072. (2) The threat to the water quality of the receiving waters and to the health of marine organisms in those waters. (3) The reason and need for an emergency lease. The Commissioner shall consider the need for an emergency lease and whether the cause of the emergency was an unanticipated, natural phenomenon that was beyond the control of the leaseholder. Applicants are encouraged to secure a lease under 12 M.R.S.A. §6072 or §6072-A for non-emergency situations; and(4) All applicable criteria as established in Chapter 2.37(A).5. Limit on Duration. An emergency aquaculture lease may only be issued for 6 months or less.6. Extension of emergency aquaculture lease. A person wanting to extend an emergency lease beyond 6 months must submit an application for either a standard lease pursuant to 12 M.R.S.A. §6072 or a limited purpose lease pursuant to 12 M.R.S.A. §6072-A for that lease area within 60 days of being granted the emergency aquaculture lease. If the application for a new lease is accepted, the emergency aquaculture lease will remain in effect until the effective date of the new lease. If the Commissioner denies that person a lease under §6072 or §6072-A, that person's emergency aquaculture lease remains in effect until 30 days after the Commissioner's decision.7. Public Notice. Upon granting an emergency aquaculture lease, the Commissioner must provide notice to the municipality in which the emergency aquaculture lease is located. Within at least 30 days from granting an emergency aquaculture lease, the Commissioner shall:A. Publish notice of the emergency aquaculture lease in a newspaper of general circulation in the lease area. The notice must describe the area leased and list any restrictions in the leased area;B. Mail a notice to any state agency the Department determines should be notified.8. Actions Required of lease holder. After being granted an emergency aquaculture lease, a lessee shall establish an escrow account or secure a performance bond in the amount required by the Department in the lease. The amount is to be determined according to the schedule contained in Chapter 2.40. The site must also be marked in accordance with Chapter 2.80.9. Revocation. The Commissioner may revoke the lease if they determine that the aquaculture project fails to meet the criteria contained in 12 M.R.S.A. §6072-B(1) and Chapter 2.66 of these regulations. The revocation of an emergency aquaculture lease is not an adjudicatory proceeding as established in 5 M.R.S.A. §8002(1).
13-188 C.M.R. ch. 2, § 66