13-188-2 Me. Code R. § 90

Current through 2025-03, January 15, 2025

Section 188-2-90 - Limited-purpose aquaculture (LPA) license

1. LPA License

A. No person may engage in the activities described in 2.90 and 12 M.R.S.A. §6072-C without a current LPA license issued by the Department of Marine Resources (DMR) in accordance with these regulations. An LPA license may be issued only to an individual or to a municipal shellfish management program established pursuant to 12 MRSA §6671. The Department shall make application forms available. LPA licenses expire at the end of each calendar year. No more than four (4) licenses may be held by any licensee at the same time. LPA licenses are non-transferable.

B. Density standard. There can be no more than three (3) LPA licensed sites within a 1,000-foot radius of any other existing LPA licensed site. This standard does not require a minimum separation between individual licenses; rather it is a density of licenses within any area of a 1,000' radius. See Figure 1 below for four examples of this standard where a license site is encircled by a radius of 1,000 feet.

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Figure 1. Density illustration for acceptable LPA license distribution

Exemption for riparian landowners. LPA licenses held by riparian property owners that are used to place authorized gear as listed in 2.90(2)(F)(2), within 150' of the riparian's property at mean low water and perpendicular to the property boundaries, are exempt from this density standard. Riparian landowners are responsible for demonstrating this requirement has been met. Requests for this exemption must be indicated on the application and are limited to one exemption per riparian property. The presence of a riparian landowner LPA does not count toward the density standard.

Exemption for certain sites. LPA licenses for gear installed within marina slips, lobster pounds, or similar enclosed or partially-enclosed sites in the coastal waters that are under the ownership or control of an entity which has the legal authority to restrict access to or use of the site and which has consented in writing to the placement of the gear on the site are exempt from this density standard.

C. Up to three (3) assistants per license may be declared as helpers. An individual may be listed as an assistant on no more than eight (8) LPAs, other than their own. If the LPA license holder represents an educational institution, students are authorized to work under the direct supervision of the license holder who signed the application, as well as any listed helpers. If the holder of the LPA license is a municipal shellfish management committee, there is no limit to the number of individuals that may be declared as helpers.

D. When a proposed LPA license site falls within the bounds of a pending aquaculture lease application, the Department may, in its discretion, postpone the decision on that LPA license application until after the final decision on the pending application has been made.

2. Application requirements

A. Species

Applications must indicate the common and scientific names of the species to be cultivated under the license in accordance with 2.90(4).

B. Sources

Applications must identify the source of the stock or seed to be cultivated or grown for each species, and for hatcheries list the current name, address and phone number of the hatchery source for each species listed under 2.90(2)(A).

(1) Hatcheries are the only permitted sources for Hard clam/quahog (Mercenaria mercenaria), Hen clam (Spisula solidissima), Arctic surf clam (Mactromeris polynyma), or Soft shelled clam (Mya arenaria), unless the Department issues a municipal shellfish transplant permit that authorizes the collection of undersized animals.

(2) Marine algae (all seaweeds such as reds, greens, browns or kelps) and green sea urchins shall be obtained or cultured from stock originating in Maine coastal waters.

(3) Any stock or seed obtained from wild sources must be taken in accordance with applicable season or size limits, or other limitations on take.

(4) All sources of hatchery supplied seed or stock must be from hatcheries approved by DMR.

(5) All shellfish stock or seed used for cultivation or grow-out that have been exposed to waters outside of an approved hatchery must originate from within the same Health Area defined under 2.05 (1) (J) as the LPA site.

C. Site location

(1) The application must provide geodetic coordinates, the coordinate source (nautical chart number, the edition and its date or software name) and the datum of the coordinate source, for the center of the longest axis of the license site, and identify the directional orientation of the longest axis. The license site must be accurately depicted on a portion of a US Geologic Survey Topographic map or nautical chart.

(2) The application must provide a brief description of the license site, including growing area and classification, bottom characteristics of the license area and whether there are eelgrass beds present in proximity to the site.

(3) The application must include a description of current commercial and recreational fishing and other uses of the proposed license area and the immediate vicinity of the proposed license area. The description should include type, duration and amount of activity.

(4) The application must include a copy of the municipal tax map for the area in the vicinity of the license site. On the map, the applicant must indicate the actual scale of the copy of the map, the location of the proposed site, and a circle drawn to scale depicting a 300-foot radius from the site. The application must also include a list of the names and current mailing addresses of the riparian owners of shorefront property within 300 feet of the site, certified by the municipal clerk or by the Bureau of Revenue Services, Unorganized Division, for unorganized territory. If the license site is located in a marina slip or lobster pound or similar site as described in 2.90 (1) (B), the owner or controlling entity of which has consented in writing to the placement of the gear, the map and list are not required.

D. Required Signatures

The application form shall require the following signatures:

(1) Applicant. The individual applicant's signature, including printed name and date, which shall verify that the application does not contain false information and that the applicant will comply with all applicable laws and regulations is required. When the applicant is a municipal shellfish management program, the chairperson of the shellfish committee or a designated municipal officer shall sign the application on its behalf, and a primary point of contact shall be provided including name, address, email address and phone number. When the applicant represents an educational institution, an administrator shall sign the application on its behalf.

(2) Municipality. Harbormaster's signature, which shall verify that it is the harbormaster's opinion that the license activities will not unreasonably impede safe navigation, will not unreasonably interfere with fishing or other uses of the area, and will not unreasonably interfere with riparian ingress and egress.

In municipalities not served by a harbormaster, a municipal officer or other elected municipal official may sign the application. For the unorganized territory where a harbormaster does not have jurisdiction, a marine patrol officer may sign.

The opinion of the harbormaster, municipal officer or official, or marine patrol officer that the license activities will not unreasonably impede safe navigation, will not unreasonably interfere with fishing or other uses of the area, and will not unreasonably interfere with riparian ingress and egress, shall not be determinative, but may be considered by the Department as a factor in deciding whether the criteria for the issuance of an LPA license have been met.

(3) Intertidal sites

(a) Municipal Shellfish Management Committee. If the proposed location is above the extreme low water mark in a municipality with a municipal shellfish management program established pursuant to 12 MRSA §6671, the signature of the chairperson of the municipal shellfish management committee or a designated town officer, which shall verify that the proposed LPA will not unreasonably interfere with the activities of the municipal shellfish management program, is required. If the municipality does not have a shellfish management committee, then a municipal official shall sign to verify that the proposed LPA will not unreasonably interfere with the activities of the municipal shellfish management program.

(b) Riparian landowner. For license sites located above the mean low-water mark, the signature of the riparian landowner, which shall verify that the landowner consents to the licensed activity being conducted on the intertidal land, is required.

(4) Signature missing or withheld. The absence of any required signature will result in the denial of the application. At the request of the applicant the Department may review the basis for the denial of a required signature, except for signature required under 2.90(D)(3)(b). The Department may, following such review and upon a determination that the signature was withheld without basis, approve a license application. Such a determination must take into consideration a review by the local marine patrol officer of the application and a statement from the marine patrol officer that the license activities will not unreasonably impede safe navigation, will not unreasonably interfere with fishing or other uses of the area, and will not unreasonably interfere with riparian ingress and egress.

E. Notification of riparian property owners & municipalities

(1) The applicant shall notify all riparian owners within 300 feet of the LPA site by sending, by certified mail, a copy of the LPA application, including information about how riparians can submit comments to the Department regarding issuance of the license, to the address certified by the municipal clerk or Bureau of Revenue Services, Unorganized Division for unorganized territory. Failure to include a copy of the receipt for certified mailing with the application will be grounds for denial of the application. If the license applicant is the only riparian, or if the license site is located in a marina slip or lobster pound or similar site as described in subsection 1(B) above, the owner or controlling entity of which has consented in writing to the placement of the gear, the notification requirement is waived.

(2) The Department shall notify any town or plantation of the final status of an application. Failure to do so does not invalidate a license.

F. Site Plans

(1) Plan view The application must include a plan view, which must be on 8.5" x 11" size paper and show the maximum layout of gear to be deployed drawn to scale, with the scale indicated to verify the 400 square foot limit. The site plan must include a north arrow with True or magnetic clearly indicated, arrows that indicate the tide's primary ebb and flood directions, mean high and low-water marks, and the distance from the license to these mean high and low-water marks. The site plan shall also include to a distance of 1,000 feet from the license in all directions, the locations of any federal or local channels, anchorages, moorings, structures, existing lease boundaries, other LPA licenses (including whether or not they are exempt from the density requirement in 2.90 (1)(B)), DMR water quality classifications (including distances from Prohibited areas if applicable), and property lines for all riparian owners within 300 feet.

(2) Gear description:

If gear is to be used, it may be deployed on the surface, in the water column, on the sea bottom, or below the surface of the bottom. The applicant shall indicate which of the following authorized gear will be used, and include an overhead view and cross-sectional elevation view of the gear that includes specifications on all mooring equipment to be used. Aquaculture gear other than the equipment listed below, may not be used. All dimensional information on the mooring equipment contained inside and outside the boundaries must be included pursuant to 12 M.R.S.A. §6072-C (5)(E)(2).

Upwellers including "FLUPSYs." Sites with upwellers renewed after January 1, 2025 are exempt from the direct supervision requirements in 12 M.R.S.A. §6072-C(2). New sites permitted after January 1, 2025 are exempt from the direct supervision requirements in 12 M.R.S.A. §6072-C(2) provided upwellers are the only gear type utilized on the site.

Shellfish rafts, associated predator nets and spat collectors

Shellfish tray racks and over wintering cages

Soft bags, semi rigid bags and floating trays

Lantern nets and pearl nets

Moorings

Scallop spat collector bags

Scallop ear hangers

Long lines (vertical or horizontal)/rope grids

Bottom anti-predator netting

G. Renewal of licenses

(1) To be eligible to renew an LPA license, the applicant must have completed any educational requirements established pursuant to 12 M.R.S.A. §6072-C(3)(A) and must submit an application for renewal to the Department online or postmarked no later than November 30. If a renewal application is not submitted to the Department by November 30, the license holder is required to remove all gear and equipment from the licensed site on or before the termination of the license on December 31^st.

Exception: LPAs applied for or held by a municipal shellfish management program for conservation activities such as resource enhancement are not required to complete the education requirement.

(2) Renewal applications shall be submitted on a form provided by the Department. The non-refundable application fee must be paid prior to renewal.

(3) The Department shall send a notice of all proposed renewals to the municipality in which those licenses are located and request that the municipality post the notice. The notice shall state that anyone may provide comments to the Department on the proposed renewals within 14 days of the date of the notice.

(4) An LPA license may be renewed if the license activities continue to meet the provisions of 2.90 and 12 M.R.S.A. §6072-C.

3. Site Limitations

A. Maximum size Gear, on any one LPA, excluding mooring equipment, may not occupy an area larger than 400 square feet. An LPA may be contiguous to another LPA.

B. Dimensions The site must include four 90-degree angled corners and may be no less than 1' or greater than 400' on any one side. Dimensions must be provided in whole feet.

C. Territorial waters LPA license sites must be located within Maine's territorial waters as defined in 12 M.R.S.A. §6001(48-B) and pursuant to 12 M.R.S.A. §6072-C(2).

D. DMR Water Quality Program Closure Areas

(1) LPA license sites may not be located within 300 feet of any area classified as prohibited.

(2) Except as provided in subsection (3) below, LPA license sites may only be located in areas that are classified as approved or conditionally approved pursuant to DMR regulations Chapters 95. Should an area be downgraded from approved or conditionally approved, an LPA located within the area may be renewed for one additional year at the next date of renewal.

(3) Exemptions

(a) Shellfish seed. An LPA license site may be located within an area classified by DMR as prohibited, restricted, or conditionally restricted under Chapters 95 and 96, provided that only shellfish seed is cultured on the site and the LPA holder has a lease or has an ownership stake in a company that holds a lease. An LPA license site for shellfish seed may not be located within the 300:1 dilution zone around a wastewater treatment plant outfall. Shellfish seed from an LPA site in a prohibited, restricted, or conditionally restricted area can be moved only to another aquaculture lease or license site and must comply with the maximum seed size limits as defined in 2.95(A)(4).

(b) Green sea urchins The boundary line and prohibited, restricted and conditionally restricted area prohibitions in 2.90(3)(D)(1 and 2) above do not apply to the sole culture of green sea urchins.

(c) Marine algae The boundary line and prohibited, restricted and conditionally restricted area prohibitions in 2.90(3)(CD)(1 and 2) above do not apply to the sole culture of marine algae, except that an LPA license site cannot be located within the 300:1 dilution zone around a wastewater treatment plant unless marine algae or seaweed cultured on the site is not for human consumption.

E. Maine Department of Inland Fisheries and Wildlife Essential Habitats LPA license sites cannot be located within any area designated as Essential Habitat by the Maine Department of Inland Fisheries and Wildlife.

F. United States Army Corps of Engineers (ACOE) Authorization Upon receipt of an LPA license application, the Department shall forward a copy of the application to the ACOE for their review.

4. Authorized Species

An LPA license may be issued only for the cultivation of the following species: blue mussel (Mytilus edulis), hard clam / quahog (Mercenaria mercenaria), hen clam (Spisula solidissima), Arctic surf clam (Mactromeris polynyma), American or eastern oyster (Crassostrea virginica), European oyster (Ostrea edulis), sea scallop (Placopecten magellanicus), soft-shelled clam (Mya arenaria), razor clam (Ensis leei), green sea urchin (Strongylocentrotus droebachiensis), bay scallops (Argopecten irradians), and for marine algae (all seaweeds, including kelp). Notwithstanding 12 M.R.S.A. §6001 (41), for purposes of 2.90, the terms "shellfish" and "seed" include sea scallops (Placopecten magellanicus) and bay scallops (Argopecten irradians).

5. Activity limitations & requirements

A. The licensed activity must not generate a discharge into territorial waters pursuant to 12 M.R.S.A. §6072-C (2)(A), 38 M.R.S.A. §413 and DMR regulations 2.05(1-G).

B. An LPA license applicant may declare assistants to be named on any LPA license. Declared assistant(s) named on any LPA license must be in possession of a copy of the LPA license whenever engaged in any activity at that licensed site. Individuals other than the license- holder's declared assistants may assist the license holder and, in that capacity, utilize, raise, lift, transfer or possess any approved aquaculture gear belonging to that license holder if a hurricane warning issued by the National Weather Service is in effect for any coastal waters of the State.

C. Marine Biotoxins

(1) Closed Area compliance There shall be no provisions made for biotoxin monitoring or testing for LPA sites.

D. Record keeping Complete, legible and accurate records of transport, transfer, harvest, and monitoring must be maintained by the license-holder and made available for inspection for at least two (2) years. The records must include the:

(1) Department's LPA license number, site location and date.

(2) Source of shellfish, including seed if the seed is from growing areas which are not in the approved classification status pursuant to 2.90;

(3) Dates of transplanting and harvest;

(4) Detailed records of sales; and

(5) Records of the origin and health status of all seed or shellfish stocks reared on the site must also be maintained.

6. Maintenance Standards

A. All aquaculture gear must be maintained, remain within the boundaries of the site, and kept in a fully operational condition. The license holder is obligated to collect and or remove any loose or errant gear or equipment that is dislodged from the licensed site.

B. The LPA site ID and SEA FARM must be clearly marked on every buoy.

C. Except for a LPA site that has received a Private Aid to Navigation permit from the United States Coast Guard, each LPA site that has gear on it must be clearly marked at each corner, centerpoint, or at each end of the gear, as is appropriate to the gear type deployed, with a yellow buoy. The marked buoys shall be readily distinguishable from aquaculture gear and shall host reflective material.

D. The LPA holder must notify the Aquaculture Division of any changes to the contact information listed on the license in writing within 30 days of the change taking effect.

13-188 C.M.R. ch. 2, § 90