Summer 2018 Maine DMR Public Health Newsletter


LD 1519 - Addressing jurisdiction of municipal shellfish programs

By Deirdre Gilbert, DMR Policy Director

LD 1519 -An Act To Define the Intertidal Zone for the Management and Enforcement of Shellfish Conservation Ordinances- was signed by Governor LePage on March 30, 2018 and will become law August 1, 2018. You can find detailed information on the bill on the Maine State Legislature website: Following is an explanation of why the bill was proposed and the issue it was intended to address.

Why was this legislation proposed?

  • Under previous language (12 MRS 6671 Municipal Shellfish Conservation Programs) it stated: "Within any area of the municipality a shellfish conservation ordinance may". Based on this language, some towns proposed to include subtidal areas in their shellfish conservation ordinance. DMR sought guidance from the Attorney General's office, and was told that because it says "within any area of the municipality" DMR could NOT reject proposals including subtidal lands and resources.
  • Therefore, the authority that municipalities could exercise over shellfish management was not limited, except by town boundaries. DMR proposed this legislation for the sole purpose of clarifying that municipalities may NOT manage subtidal resources.
  • Due to common practices, many people have assumed that town shellfish conservation ordinances were limited to mean low water, but that was NOT the case under existing law. Therefore, this new law does not GIVE towns authority to extreme low water - it LIMITS them to extreme low water.

Why does the legislation allow municipal shellfish conservation ordinances to apply to the area above the subtidal (therefore, above extreme low water):

  • DMR's interest in this legislation was simply to exclude municipal management of subtidal resources - therefore, the Department did not feel strongly either way regarding whether the jurisdictional boundary should be mean low water, or extreme low water
  • Some individuals testified at the public hearing that limiting the applicability of the shellfish ordinance to mean low water would negatively impact their shellfish management, as individuals without town licenses would harvest between mean and extreme low water.
  • Towns also were concerned that it would create an enforcement challenge - if an unlicensed individual was harvesting on town flats, how would they prove that they were above mean low water, and not between mean low and extreme low?
  • It seemed clearest to allow towns to manage to extreme low especially for enforcement purposes, as then if someone was harvesting on an exposed flat, there would be no question that they needed to have a municipal shellfish license.
  • The use of this definition of intertidal is limited ONLY to this section of law (6671) by the language that states, "for the purposes of this section, intertidal means."

How does this affect aquaculture lease applications in the intertidal zone?

  • Under section 6072 Research and aquaculture licenses, it states:
    • 3. Municipal approval. In any municipality with a shellfish conservation program under section 6671, the commissioner may not lease areas in the intertidal zone within the municipality without the consent of the municipal officers.
  • This is often construed as the towns having "veto" authority over leases in the intertidal.
  • Under 6071-A Definitions, it states "as used in this subchapter,".the following terms have the following meanings. 1. Intertidal zone. "intertidal zone" means the shores, flats, or other lands between the high and mean low water mark.?
  • This definition ONLY applies in this subchapter, which is subchapter 2, Leases and Special Licenses, of Chapter 605, General Department Activities.
  • Municipal Conservation Programs are in a different Chapter and Subchapter: Subchapter 1 Shellfish, of Chapter 623, Shellfish, Scallops, Worms and Miscellaneous Licenses
  • Therefore, the fact that a different definition is provided in 6671 has NO bearing on the town’s inability to veto proposed leases between the mean low and extreme low water line, as that definition does NOT apply in this subchapter.
  • It is common throughout Maine law to define the same term differently in different sections of law, to specify its meaning in that specific application. It does not create a conflict.
  • Therefore, this proposed change has no effect on aquaculture lease applications in the intertidal zone.

What if a town with a municipal shellfish conservation ordinance objects to a lease application that is in the intertidal zone, between mean low and extreme low water?

  • As explained above, towns will not have veto authority over lease applications between mean low and extreme low water.
  • Towns could and currently do provide input through the lease hearing process, as could any other interested party.
  • Towns would have to provide information that is germane to the lease decision criteria. For example, does the lease unreasonably interfere with significant wildlife habitat and marine habitat or with the ability of the lease site to support ecologically significant flora and fauna? Does it unreasonably interfere with fishing or other uses of the area?
  • The fact that the town has a municipal shellfish conservation program will not be a factor in denying a lease in that area. The DMR would look at the record to determine if the facts provided demonstrate unreasonable interference with the decision criteria.
  • The change made by approval of LD 1519 did not alter the process by which aquaculture lease applications will be evaluated in any way.

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Grants Improve Marine Phytoplankton Monitoring Program

By Amy Hamilton-Vailea, DMR Scientist


New volunteers Sally and Doug Leland of Freeport pick up their sampling equipment and microscope.

Maine DMR has recently been awarded two grants to enhance the capacity of the Marine Phytoplankton Monitoring Program (MPMP). Maine Sea Grant awarded the program $4,225 in development funds. Maine Outdoor Heritage Fund awarded the program $18,340 for equipment purchases. These funds have been used to procure nine new microscopes, four Pelican storage cases and eight specialized gridded slides used for counting phytoplankton cells under a microscope.

The new equipment was split between DMR's Public Health laboratories in West Boothbay Harbor and Lamoine, and between program volunteers supported by these two facilities. Several citizen scientists who have volunteered for the program for over a decade received replacement microscopes. They had been using microscopes that were no longer fully functioning as most of the microscopes currently in use by the program were purchased in the mid-1990's. The new microscopes are equipped with a camera and an 8-inch tablet mounted on the top. This configuration allows DMR staff and volunteers to capture images and videos of phytoplankton cells for further analysis, measurement, comparison and identification.


Nicole Twohig of the Quahog Bay Conservancy picks up the sampling eqipment and microscope her organization will use to help DMR monitor Harmful Algal Blooms in Harpswell.

This year, new volunteers have joined the Western Maine program as citizen scientists:

  • Kennebec Estuary Land Trust members monitor the Georgetown area
  • Members of the Damariscotta River Association members monitor the Pemaquid area
  • The Quahog Bay Conservancy monitors the Harpswell area
  • A Freeport monitoring station is being monitored by two independent citizen scientists

Phytoplankton volunteers are responsible for collecting a filtered phytoplankton sample from their site station weekly during biotoxin season and analyzing it under a microscope. Their focus is to characterize the concentration of potentially harmful algal blooms and identify the biodiversity of the phytoplankton community in their region. Their efforts complement those of DMR staff who are tasked with the same responsibilities.
DMR is thankful for the procurement of these grant funds which greatly increase our capacity to monitor and address Harmful Algal Blooms that may affect Maine's shellfisheries.

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Maine Outdoor Heritage Fund Grant Successfully Aids Biotoxin Monitoring

By Bryant Lewis, Growing Area Program Supervisor

Domoic acid is a neurotoxin produced by some species of the phytoplankton genus Pseudo-nitzschia which can accumulate in the tissue of shellfish during an algal bloom. If enough toxin has bioaccumulated and these shellfish are consumed by people, this can lead to amnesic shellfish poisoning (ASP). Symptoms of ASP include vomiting, nausea, diarrhea, abdominal cramps, and hemorrhagic gastritis. At acute levels of poisoning, neurological symptoms can manifest including headache, dizziness, disorientation, vision disturbances, loss of short-term memory, motor weakness, seizures, and coma. While extremely rare, worldwide there have been a few cases of immuno-compromised individuals dying from very high doses of this toxin. Because there is no antidote and it cannot be cooked out of shellfish tissue, preventing consumption of contaminated shellfish is of paramount importance. In the fall of 2016, a new highly toxic species of Pseudo-nitzschia, Pseudo-nitzschia australis, was discovered in the Gulf of Maine. This caused Maine's first ASP closures in Downeast Maine. In 2017, this species had spread along the entire Maine coastline causing toxic blooms that resulted in multiple ASP closures across the state.

The Maine Department of Marine Resources received a grant from the Maine Outdoor Heritage Fund in the fall of 2016 to purchase a high-performance liquid chromatography (HPLC-UV) instrument for the detection of domoic acid in shellfish following the discovery of Pseudo-nitzschia australis. Until this time, all ASP testing occurred at Bigelow Analytical Services (BAS). The purchase of this new system allowed for in-house testing beginning in the 2017 biotoxin season providing for lower cost per sample testing and the use of the BAS equipment as a back-up in case sample volume increases would cause delays in reporting or of equipment malfunction. The timing of this grant proved fortuitous, ASP shellfish sampling prior to 2016 averaged 100 samples per year, however, sampling increased to 264 samples in 2016 while this grant was being obtained, and finally resulted in an incredible 865 samples tested in 2017. Because of this new equipment, 72% of all samples were analyzed in-house. Very often both systems were running in tandem to provide the quickest results possible to keep shellfish harvesting areas open or to reduce the length of closures.

For more information on the HPLC-UV testing method, please read the Winter 2017 newsletter.

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A Busy Field Season for Shellfish Management

By Denis-Marc Nault, Program Supervisor

The 2018 year is shaping up to be a busy field season for the DMR Shellfish Management program. Area Biologists are involved in five special studies throughout the state from Downeast to Southern Maine. These studies are; a continuation of a seed clam box study in six towns, a clam brushing study in Addison, a quahog bull rake study in the upper New Meadows lakes, an inter-tidal mussel drag study in Frenchman Bay and a marine worm cull survival study. The biologists are also continuing to refine a walk over survey within select areas of their towns. The goals of these studies are to provide better scientific data and options for towns and harvesters to utilize when planning conservation activities and management plans.

The seed clam box study is a modification of a study we started with Dr. Brian Beal and the Downeast Institute. This study involves the towns of Gouldsboro, Penobscot, Deer Isle, Stonington, Boothbay and Woolwich. The placement of 60 boxes (20 wood "Beal" boxes and 40 plastic boxes) in selected coves or flats to evaluate seed clam settlement and survivability. Placement of the boxes was done in the month of June. This study is to look at the success of seed clam settlement and survivability in various locations and habitats. The boxes will give towns options to various new methods for recruitment clams.

The brushing study will evaluate settlement of seed clams as a conservation activity. This conservation activity is used in Downeast towns and some mid coast towns. There is little to no study on methods and success of this activity and concerns have been raised about the brush providing shelter for green crabs. We are just starting and hope to expand this in the coming years.

DMR has conducted a seed quahog study by divers in the New Meadows lakes since 2011. This year we are conducting a bull rake study with harvesters looking at a population of sub legal quahogs. This size range does not seem to be accurately captured in the diver survey. This type of survey has never been attempted and could provide a quick evaluation of this group of quahogs. The hope is to better assess all the size ranges of the quahogs and a management plan for transplants. Transplanting quahogs from high densities to lower densities will get the quahogs to grow quicker to legal harvestable size.

An inter-tidal mussel drag study will be starting in Lamoine at the mouth of the Jordan River this summer. This will be a 3-5-year study looking at mussel management techniques by two different methods . DMR and two mussel harvesters will drag and manage the mussel resource on 600ft x 800ft plots. The study will evaluate different harvesting methods for seed and market sized mussels. Like the brushing and quahog studies DMR does not have any studies to assess these methods and hope to design management plans with the mussel industry.

A marine worm cull study will attemt to develop Best Management Practices (BMPs) for replanting culled worms. This has been a regular practice for decades in the worm industry and like brushing a clam flat, there are many different methods. DMR and the Independent Marine Worm Harvesters Association are studying a couple of basic methods of holding culled worms and replanting them for best survivability. The study will develop BMPs for the worm industry to use for conservation measures statewide and minimize loss of harvest worms not bought or sold by dealers.

The past two years the Shellfish Management Program developed a walk over survey to quickly assess shellfish resources for the DMR Water Quality staff to help determine classification changes. Area biologists will be looking at a few flats or coves in their areas to start collecting this data. This will hopefully provide more observations of the ecology and changes to the flats or coves from year to year creating historical data for the state and towns.

This is going to be a busy summer and year for the biologists in the Shellfish Management Program so say hello when you see them on the flats.

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Shoreline Surveys - The Backbone of Maine's Growing Area Management Program

By Erik Schaefer, DMR Scientist

Why we do it: The requirements necessary to ensure that Maine shellfish are safe to eat are established by the Interstate Shellfish Sanitation Conference (ISSC) and are administered through the National Shellfish Sanitation Program (NSSP). In Maine, the program rules and regulations are implemented by the Department of Marine Resources and are audited for compliance by the United States Food and Drug Administration (FDA). This program is in place to ensure that shellfish are harvested, consumed, raised, and exported from clean waters. There are two major components to this program, "Water Quality Sampling" and "Shoreline Survey". The first component, Water Quality Sampling, was covered in the 2016 Winter Newsletter by Specialist Ed Thier. In this edition, we will cover the "Shoreline Survey" component.

The basics: The FDA, under the NSSP, requires that every area where shellfish are harvested, may be harvested, or raised through aquaculture must be surveyed for all potential or actual pollution sources that may contaminate shellfish and negatively impact public health. This survey must occur before the initial classification of the area and again at least every twelve years thereafter. Maine is divided into 45 growing areas that cover the entire coast from the Piscataqua River to the St. Croix River. The Boothbay Harbor office handles from the NH border to the west side of the Penobscot River and the Lamoine office covers from the east side of the Penobscot River to the international boundary on the St. Croix River. Each office maintains a schedule of when the last survey was completed and when the next survey is due for each of the growing areas. Every year at least 4 of the 45 growing areas are selected for shoreline survey to ensure the state remains compliant with the twelve-year mandate required by the NSSP. If a growing area is not surveyed within the twelve-year window it will be closed to all shellfish harvest until an updated survey is completed.

What we look for: All pollution sources that may negatively impact the waters of the growing area. These include but are not limited to private domestic waste systems (e.g. septic tanks and leach fields), farms, pet waste, wildlife, marinas, fuel storage tanks, and any other potential source of contamination that could impact the receiving waters of the growing area.

How we do it: Survey work is generally scheduled for the months of April through November. It is difficult to identify pollution issues with snow on the ground! Growing area supervisors send informational letters to each town that will be surveyed for that year telling them that DMR personnel will be conducting a door to door survey of all properties located within the shore land zone of the that town. Staff operate in teams of two for safety and efficiency during this process. During the survey, if a home owner is present staff conduct a brief interview asking about the location, type, and condition of their waste disposal system. During this interview permission is sought to visually inspect the waste system and property for any issues. Information collected during the interview and inspection includes property description, physical address, location of septic system, and a GPS point to identify the property location. These are then recorded in an electronic database maintained by DMR. If no one is home and the property is not posted as private one person stays at the door while the other person evaluates the waste system and records a GPS point. A door hanger is left at the property describing the shoreline survey program and provides contact information for the homeowner. It is the policy of DMR that we do not access posted or gated properties without owner permission. A list of all such properties is maintained during the survey process and given to the town licensed plumbing inspector (LPI) at the end of the survey.

What happens when we find an issue: If a pollution source is discovered and considered a threat to shellfish and subsequent consumption will impact public health the first step is to put a closure in place prohibiting shellfish harvest. DMR only has authority to close or open shellfish resource areas. Further investigation and mitigation of all identified problems or suspected problems are the responsibility of the appropriate local or state agency. This is accomplished using a "problem form" that is filled out by the DMR personnel conducting the survey. The form details the physical address, type of problem, location on the lot and if possible a picture is included. For any private subsurface septic related issue the enforcement authority is the town LPI and Department of Health and Human Services (DHHS). For any discharge that is not from a subsurface waste disposal system the Department of Environmental Protection (DEP) is the governing authority, and the Maine Department of Agriculture, Conservation & Forestry (DACF) covers all farming related issues.

What happens next:. For a problem with a private septic system that goes to the town the following process is followed: once the problem form is submitted to the town they have 30 days to respond with their findings which may include; corrective actions taken , a finding of no problem, or a plan of action to address the issue. If the town does not respond within the 30-day timeframe then the issue is referred to the state LPI who will contact the town to expedite the process. Forms that are sent to either DACF or DEP are investigated by that agency and the results are provided to DMR. Once DMR has been contacted by one of the reviewing authorities indicating the problem has been remediated staff revisit the property, confirm the information, update the database and repeal any closure that may have been put in place because of the problem.

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Vibrio Control Plan Requirement Guidance

By John Fendl, Seafood Technology Supervisor

The goal of a Vibrio Control or Vibrio Management Plan is to control the safety of molluscan shellfish for human consumption by preventing unnecessary growth of bacterial pathogens resulting from improper or ineffective cooling or from time to temperature abuse. DMR Regulation Chapter 115 /dmr/rules-enforcement/regulations-rules specifically addresses the concerns of Vibrio parahaemolyticus in oysters and hard clams harvested in the Damariscotta River and the upper New Meadows River ("New Meadows Lakes") from May 1st through October 31st.

Most Vibrios grow in shellfish and the rate of growth is dependent upon temperature. To minimize illness, these regulations include controls to limit exposure to warm temperatures. The controls begin at harvest and are applied at every level of processing and handling. This guidance document provides an explanation of those controls. All harvesters and certified shellfish dealers who take oysters and/or hard clams, buy or wet store oysters and/or hard clams from the Damariscotta River and the upper New Meadows River shall submit to DMR a Vp harvest/purchase plan and participate in training provided by the DMR. Harvesters and shellfish dealers may not harvest, buy or wet store oysters or hard clams during the control months without a DMR approved harvest/purchase plan and training.

Harvest Time to Temperature Control at the Certified Dealer

  • For products harvested from the Damariscotta River:
    The harvester must provide harvest records to the original shellfish dealer demonstrating compliance with the applicable time and temperature requirements. This record can be in the form of a harvester tag that includes the time of harvest and ambient air temperature or a separate document. Harvesters have only two hours from time of harvest to deliver the product to the certified dealer when the ambient air temperature is above 80ºF at any time during harvest. They have up to five hours to deliver the product if the air temperature stays below 80ºF. The time of harvest begins when the first shellstock in a lot is taken from the water. Anything that exceeds these limits must be rejected by the dealer with the option to resubmerge or wet store the product for a duration specified in Chapter 115. In addition, all product shall be subject to shading immediately after harvest.
  • For products harvested from the upper New Meadows River:
    All oysters and hard clams shall be subject to shading immediately after harvest and adequately iced until delivery to a certified dealer. Conveyances used to hold and transport the iced product shall have adequate drainage so that shellfish cannot sit in standing water. Product harvested from the upper New Meadows River must be delivered to the certified dealer within 18 hours and remain adequately iced from harvest to delivery.
  • Adequately iced means that the amount and application of ice is sufficient to ensure that immediate cooling begins and continues for all shellstock in a container. If a temporary ice slurry is used for initial cooling after harvest, and the shellstock are submerged, the presence of ice in the slurry indicates adequate icing. Potable water must be used for the production of ice used for cooling of shellstock.

Conveyances Used to Transport Shellstock from Harvester to Dealer

Conveyances used to transport shellstock from the harvest area to the original dealer shall be constructed to prevent contamination, deterioration, or decomposition of the shellstock during transport. A conveyance shall have adequate drainage to prevent any shellfish inside from sitting in standing water.

Conveyance means any type of container used to transport shellfish. The controls of the National Shellfish Sanitation Program (NSSP) are intended to address the container in which the shellfish are being held during transport from landing to final consumer.

Dealer Requirements for Receiving Vibrio Controlled Shellstock From Harvesters

Dealers receiving products under a vibrio control plan must verify and document that the product was harvested and transported according to the control plan. That means verification that the harvester delivered the product, and it was placed in cold storage, within the Damariscotta River control time frame; or it was adequately iced from harvest time to arrival from the upper New Meadows River. Dealers must also ensure that vibrio control products are cooled to less than 50ºF internal temperature within ten hours of receiving and document those times and temperatures. Once placed under temperature control it must remain that way.

DMR Recommendation: Dealers do NOT tarp or cover product in the cooler during the initial cooling phase as direct observations have shown this to significantly increase cooling times.

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