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Maine Shellfish Advisory Council Meeting Minutes, May 11, 2010

Shellfish Advisory Council members attending: Fiona De Koning, Lori Howell, Virginia Olsen, Matt Craig, Neil Pollis, Randy Ramsdell, Abden Simmons, Dick Lemont, Dan Devereaux
Shellfish Advisory Council members not present: Joe Porada, James West, Chris Davis, John Fancy
DMR staff attending: George Lapointe, David Etnier, Amy Fitzpatrick, Darcie Couture, Anna Bourakovsky, Dennis Marc Nault, Deirdre Gilbert, Mercuria Cumbo

Meeting called to order at 9:40 am.

Introductions: Members of the Council introduced themselves.

Motion to approve by L. Howell, second by F. De Koning
Vote: Unanimous

Lab Report to the Legislature:
L. Howell explained that a subcommittee of the Shellfish Advisory Council (SHAC) was charged with writing a report back to the Marine Resources Committee explaining the results of the pilot program. L. Howell had previously circulated a draft to the subcommittee and had received no comments.

F. De Koning said that with regard to point #17, the Council may want to say that it encourages local shellfish committees and municipalities to continue work on pollution abatement efforts with DMR and use private labs as appropriate.

Motion to include the proposed change: V. Olsen, second by F. De Koning
Vote: Unanimous

Motion to accept the report as amended for the Legislature: N. Pollis, second by V. Olsen
Vote: Unanimous

DMR Workplan:
A. Fitzpatrick provided the breakdown of the areas where DMR will be doing shoreline survey work in this year. The appendix has the process by which the areas were chosen. Staff assignments are provided. Everyone will know where DMR will be working this year. DHHS is working with us and with municipal code enforcement officers to correct problems identified.
A. Simmons asked when the Medomak will be surveyed? A. Fitzpatrick explained that DMR is waiting for information from the town about mapping sewer lines. We are prepared to move forward in 2011 when that is received.

Land access issue:
Commissioner Lapointe explained that there have been some problems with landowners allowing access – we might expect this to grow with increased testing. We need help with this, and we plan to work on something for next legislative session.
D. Etnier said that DMR will try to come up with something that more closely mirrors what DEP has. However, we will need help in the Legislature, because such a proposal may come under fire from landowners. We do have an SOP.

L. Howell asked, does this include volunteers and wardens?
Our SOP covers them, and the changes in the law would as well.
A. Fitzpatrick added that it is sampling as well as shoreline survey work.
F. De Koning asked if it could be addressed through better education efforts?
A. Fitzpatrick said that we let the towns know, and they put it in their local newsletter. Sometimes because landowners know we are coming, they are ready to say no…sometimes it helps to have the local shellfish warden with us.

Flood closure protocol:
V. Olsen explained that this conversation started because of the large number of flood closures in recent years. It was hurting the industry and our markets, having a devastating effect. So, some people put their heads together to come up with something that they thought would work for the Dept and FDA.
F. De Koning asked if the Council should table this until everyone has had a chance to review?
V. Olsen asked what the DMR thought an appropriate timeline would be?
A. Fitzpatrick said that given other commitments, it could be reviewed by the end of June.
L. Howell said the Council could talk today about questions, and the importance of doing something to mitigate impacts. It is devastating.
Commissioner Lapointe said that one of the fundamental questions for the Department is the choice between a hard and fast 2-inch standard versus exercising discretion – his thought is that you can’t have both. One of his concerns about moving toward using discretion is that we will start arguing about every decision.
V. Olsen said she thought that discretion is a large part of running this Program. That’s how the model ordinance is set up.
L. Howell said that the industry has lived under the system of not having the ability to use discretion for a while and is ready to get back to using professional judgment.
D. Devereaux said it’s a good document – it puts boundaries around discretion and provides an explanation.
F. De Koning said it needs to be taken carefully and discussed thoughtfully.
V. Olsen said that she thinks it’s a great place to start - industry can help and work together with the department.
F. De Koning said the Council will need to understand the dept’s perspective.
V. Olsen said that the MSA decided the proposal should be run through the SHAC.
D. Devereaux said it would be nice to get a sense of the scientists’ point of view.

V. Olsen explained that the proposal is to take the coast of Maine, break it into smaller sections, use shoreline surveys and use that information to further break things down – the colors along the coast will match up to one of three different categories of flood impact – low, medium, high – which will shut down for X number of days after Y amount of rain. DMR can continue to take samples.

Commissioner Lapointe asked, where does the discretion come in? This just looks like a different decision tree?

This is what would be used for the first 3 years, to fill in the information that we don’t currently have – use the samples, put them into our dataset to see if rain is impacting on growing areas.

D. Lemont asked, does that consider that out of the last 5 years, 4 have been record rainfall?
That information is currently in the database.

N. Pollis asked for an explanation of the depuration to conditional protocol?
V. Olsen said that in the conditional areas, you can continue to depurate. L. Howell said it is a different protocol – it has nothing to do with changes in classification. It would allow depuration to continue up to a certain point.

L. Howell said this would be a starting point for a different way to think about flood closures. Despite everyone’s best efforts, it’s not working for anyone. It would also collect information. It’s a starting point for a discussion.

F. De Koning asked, the information collected during a rainfall closure used for P90 calculations? This is addressed in the document.

D. Devereaux agreed that it is necessary to start thinking out of the box.

L. Howell asked how the DMR plans to work with FDA without a specialist?
A. Fitzpatrick said that someone has been assigned.
L. Howell asked if Amy would tell Donald Ulstrom that DMR wants to talk about this proposal when he is here in June?
A. Fitzpatrick said no, I would rather wait until we have it worked out, and explain to him how we will still be protecting public health.

F. De Koning and Commissioner Lapointe both noted that it is helpful to have the change proposed in writing for people to evaluate.

This document should be circulated widely. Who should be contacted with questions? Gary Edwards.

It will be reviewed at the next meeting – DMR will be prepared to discuss it the week of July 12th?

D. Devereaux said he would just like to know if DMR thinks it’s a good idea, if there are other programs that are similar?
L. Howell asked, is there merit here, is it possible to move forward with parts of this?

Under New Business, the rainfall protocols to provide more discretion and flexibility will be discussed.

Rainfall depuration policy:
D. Etnier explained why the 2-inch closure became a hard and fast rule. We will go back to a discretionary regime, but it can’t work both ways. Please help explain this to people.

D. Devereaux said, we are in transition…this plan is to collect the data, to support the discretion.

D. Etnier explained, they are 2 different things…we are going to use our discretion, and also evaluate the plan.

Motion: While reviewing the proposal, DMR should go back to using discretion on rainfall closures (V. Olsen). Second: L. Howell, with a friendly amendment: That the Shellfish Advisory Council recommends trending away from using hard and fast rules toward using professional judgment when dealing with flood closures. Amendment accepted.
Vote: Unanimous

D. Devereaux said that DMR did a lot of hard work to get out in front of management aspects of quahogs in the New Meadows. It’s not a new area, but people found it. He is starting to see more quahogs intertidally. Thank you to the DMR for being proactive. DMR had meetings, did some emergency regulations, put Denis on the job to do the assessment.

D. Lemont asked whether the prohibition on harvesting through ice was for safety or public health?
Commissioner Lapointe stated that it was because of concerns about the impact on product.

D. Devereaux asked, are the regulations going to be put in on other small estuaries – Barry’s pond in Bath? He suggested it might need to be done statewide.
Commisisoner Lapointe said he would talk to staff and address at the next meeting.
D. Devereaux said that the more diversified people can be, it helps.
D. Lemont said no diving would be good.
D. Nault explained that applies to quahogs as it is.

A. Simmons explained that there are concerns about access to the pond. The woman who owns the access owes back taxes – the town may take it over for the back taxes, and we could lose access
D. Devereaux said there is a need to educate harvesters about parking in saltwater marshes

There are methods of preserving access for the purpose of commercial use. V. Olsen said she would send the Council a link for the website put together by Sea Grant that describes all the tools.

Contract depuration policy:
Chad Coffin had asked that this be put on the list of agenda items, but he is not here to further define.

Old business:
Question about the status of the federal fisheries disaster request.
D. Etnier explained that it is a two part process – first, need to get the disaster declaration from the Secretary of Commerce, but then funding will need to be appropriated by Congress. Commissioner Lapointe will check on the status of NMFS review of the request.

A. Fitzpatrick provided a list of classification upgrades since the last meeting in December. Staff are editing reports, will have a larger list next time. The staff listing shows areas of responsibility.

M. Cumbo explained the Yarmouth dye study on the Royal River. FDA will be coming out soon with the final report. FDA is also working on a white paper on wastewater treatment plants and viruses. The dye study is on May 24th.
Yarmouth has upgraded outfall, moved it, put diffusers on it – so the information also needed to be evaluated for new hydrographics.

D. Nault reported that Ron Aho is back on full time as of second week of April.
There is one more town to vote for the Frenchman’s Bay regional shellfish program – Trenton. It is almost the last pocket of the coast without ordinances
D. Nault is finalizing meetings with Cobscook Bay to regionalize Cobscook Bay – this could ensure better management, better enforcement.
This is probably the last pocket that can regionalize – 5-7towns working together.
Passamaquoddys will be involved, could help provide some enforcement.
Quahogs survey will be in June – it is a groundbreaking survey.

D. Couture clarified that although the Working Waterfront article may have been a little confusing, the Biotoxin Monitoring program does have federal funding for the expanded testing through 2011.

Commissioner Lapointe asked if anyone has any suggestions about how the red tide emails should be modified? There are a limited number of complaints about them having possible negative impacts. But, we believe staff does a good job getting information out, so people can deal with the facts.
D. Lemont said we find it far better to know ahead of time, on the business end of the scale.
D. Devereaux said that press now uses the disclaimers
N. Polls suggested put ting something (disclaimer) at the end of any announcements

Motion to adjourn: L. Howell. Second: V. Olsen
Vote: Unanimous.

Adjourned at 11 am.