ADVISORY COUNCIL MEETING
September 23, 2021 @ 9:30 a.m.
Sportsman's Alliance of Maine, LL Bean Room
205 Church Hill Road
Attending:Judy Camuso, Commissioner
Timothy Peabody, Deputy Commissioner
Dan Scott, Colonel, Maine Warden Service
Mark Latti, Director of Communications
Christl Theriault, Assistant to the Commissioner
Jim Connolly, Director Bureau of Resource Management
Nate Webb, Wildlife Division Director
Francis Brautigam, Fisheries & Hatcheries Division Director
Steve Walker, E/T Species Coordinator
Becky Orff, Secretary/Recorder
Jerry Scribner (Chair)
I. Call to Order> Council Chair, Jerry Scribner called the meeting to order.
II. Introductions Introductions were made.
III. Acceptance of Minutes of Previous Meeting A motion was made by Mr. Duchesne to approve the minutes of the previous meeting and that was seconded by Mr. Cowperthwaite.
Vote: unanimous in favor - minutes approved.
A. Step 3
1. Fishing Regulations/State Heritage Waters 2022
Commissioner Camuso stated we were proposing a modification to the proposal. The reason for the modification was not based in the biological background. The biology for the proposal was sound, and she did not have any concerns about increased risk of invasive species or other detrimental impacts based on the proposal. However, as Commissioner her job was to consider not just the biology but also the social science and the political aspect of the proposals. Given the nature of the comments and the change in the region to access and opportunity as it related to Loon Lake, the Rangeley area historically had very little winter ice fishing opportunity. This was a change to that region, and she recognized the change was challenging and uncomfortable for most people. For that reason, she felt it was a reasonable modification to accept a recommendation that some of the citizens of the area requested in that we move to a proposal which would allow for no live fish as bait on Loon Lake. Her recommendation to the Council was that they accept the fishing regulations packet for 2022 with the one modification to Loon Lake.
Mr. Brautigam stated he appreciated all the input that came in from the public. There was a high degree of accountability they tried to build into the fishing regulations packets that balanced a lot of biological issues with the social and political.
Mr. Duchesne stated he appreciated the science on the proposal was sound and robust, but he thought an extra level of caution when it came to any method of introducing invasive species was wise and he thought a good decision for Loon Lake.
Mrs. Rousseau stated she received quite a number of the comments. She thought the science behind the proposal was superb and socially it was very difficult for her because she knew a lot of the comments that came in personally. She did believe the science and thought the Department needed to be commended.
A motion was made by Mrs. Rousseau to accept the proposal as amended and that was seconded by Mr. Duchesne.
Vote: in favor unanimous motion passed.
2. Educational Trip Leader Permit Rules
Colonel Scott stated we received a few comments and felt some of them were pertinent. The work of the stakeholder group, the comments did reflect the desires and work of the stakeholder group and we made a few modifications. The educational trip leader administrator for a particular school, we redefined the educational institution, so it was not just for a school, but for the whole school administrative district. Also, under definitions (3.) we changed that the administrator was not required to be an employee or a student of the school. We tried to make these modifications for the K-12 schools that may not have the resources to have somebody on staff who was a registered Maine guide, so these schools can then look outside to hire a guide or have somebody fill in. The last change was in 28.09 under the authorization of the permit that it only includes overnight camping and paddling trips, not things like fishing, hunting, ATVing, etc. There was a paragraph that spoke to that and we were proposing to remove that. Overall, the rule reflects the desires and the recommendations of the stakeholder group. If adopted, the next step was to identify guides and folks to form the advisory committee. Institutions had one year from October to come into compliance.
A motion was made by Mr. Liguori to accept the proposal as amended and that was seconded by Mr. Ward.
Vote: in favor unanimous motion passed.
A. Step 2
There were no items under Step 2.
C. Step 1
1. Species of Special Concern
Mr. Webb stated this was a new topic and was not something that had historically been in rule. We were bringing the issue forward because during the last legislative session the Department submitted a bill seeking to create a definition for species of special concern. For quite a number of years we had used that list of species where theyre not threatened or endangered really for planning and informational purposes that are species that dont meet the criteria for threatened or endangered but were kind of on a watch list that we felt required some attention to prevent them from becoming listed. That bill generated quite a bit of discussion at the Legislature. There were some changes to the original bill; creating the definition in statute directed the Department to go through the rulemaking process to more clearly lay out the criteria that we would consider when developing the list and also the actual list of species that would fall under that definition. The new law included a provision that prohibits the collection of reptiles, amphibians or invertebrates for personal use if theyre listed as threatened, endangered or special concern. A species like wood turtle is not available for someone to collect from the wild and take into their home for personal possession. Section 4 of the law related to scientific and educational collection permits. There was a special caveat for invertebrate species requiring an individual or an organization to obtain a permit before they could collect a special concern invertebrate from the wild. That provision does not apply if the species is not threatened or of special concern. We also use the list to inform planning and budgeting and staff work plan prioritization and use it in an advisory capacity to provide recommendations to DEP when they were considering for development projects. This would be a new rule chapter and the actual proposal would be advertised in the next couple of weeks.
Mr. Walker gave a PowerPoint presentation to the group. Please contact Becky.Orff@maine.gov if you would like to view a copy of the presentation.
Mr. Walker stated the Department was responsible for not only game species but over 15,000 species out on the landscape. In order to prioritize and organize our efforts, there were multiple listing schemes that we had to juggle. The state wildlife action plan, last updated in 2015, was a document the Department had to update every 10 years. Currently, we had 378 species of greatest conservation need in it, and it was three tiers of listing organization. Tier 1 was most of our endangered and threatened species (high priority) and we currently had 58 of those as endangered in the wildlife action plan. Tier 2 we had 131 species, the difference was it took into consideration some of the historical occurrences, climate change vulnerability, etc. Tier 3 were species where we had an inkling something was going on but hadnt had the resources to do full statewide surveys or the expertise necessary to really document the declines. Sorting the three tiers took a lot of staff effort. The species specialists went through each one of the 378 species to rank them. We also had outside experts and the public helping as well.
Mr. Walker stated the Maine Endangered Species Act (ESA) had been on the books since 1975. We had 51 endangered and threatened species currently listed. The diversity ranged from aquatic invertebrates (snails, freshwater mussels, reptiles, amphibians, etc.) were represented on the list. Listing for the Maine ESA followed a handbook that was updated in 2014. It had a step-down process based on set criteria to rank the status of species and make recommendations to the Commissioner and ultimately the Legislature. It was last updated in 2015, which meant we would be coming back in 2023 with an update. There were 26 endangered species on the list and 25 threatened species. What about species of special concern? Up until LD 88 this was an informal process the Department went through where species specialist said, not quite endangered, not quite threatened, lets use this as a watch list. The list was last updated in 2011. There were comparison lists from 1996 through to the 2021 proposed list. There was a worksheet for each species to document how criteria were met.
Mr. Walker stated the language in LD 88 would set the definition of special concern in rule. We had references in the law to special concern lists as indicated in wildlife possession rules and scientific collection rules. It appeared there but there hasnt been a definition. Additionally, LD 88 gave the Commissioner the opportunity to set a category of special concern species called rare. In site location of development, if you were familiar with the DEP law, it was the review of DEP that captured large scale projects. It always had this section in it for preservation of unusual natural areas, which included the word "rare" or endangered species. To date, that had always been interpreted by the Department as including special concern broadly. We didnt regulate those species, but we did provide advisory comments to DEP when site location act was triggered. Those comments typically involved adjustments to the footprint of the development, the layout, the number of units, etc. ways to minimize focus on habitat impacts. Weve proposed a draft definition of that sub-set of species of special concern as rare, and its dependent on specific habitat types because most of our comments to DEP are based on habitat and not necessarily individual take or individual species. We were proposing 119 species for species of special concern, and the sub-set of rare would be 83 broken down by taxa group.
Council Member Questions and Comments
Commissioner Camuso stated the list had always existed, it just never had review. The proposal was to bring it forward so that it was transparent and consistent for review. Unlike the threatened or endangered species list or any of our game adjustments, the Council had never had an opportunity to weigh in on the species of concern list before.
Mr. Duchesne stated when you were dealing with special concern, most of the regulatory action behind that was just be careful. The burden was not terribly high. If you caught these things early, you could avoid much stricter regulation later.
There were no further questions or comments.
2. Boating Event Rules
Ms. Theriault stated currently in statute we had the ability to permit folks who wanted to have some sort of race for watercraft. A few years ago, we had communication about some boat race events occurring on Watchic Lake in Standish. We permitted a couple of different events there in the summer and a dead loon happened to wash up on shore. We did not know the cause of death, but there was some speculation about correlation between boaters and the boat race event. That spurred a conversation about safety of wildlife, safety of humans and water quality on the pond. The boat race events, particularly ones permitted by the Department on Watchic Lake were sponsored and coordinated by the Kiwanis Clubs. They put their own parameters on the boat race itself and having people standing by in case of emergency and they had a spotter for wildlife, etc. The shoreline owners that live on the pond and folks involved with the association were concerned about the Commissioners authority and ability to provide stronger stipulations and requirements. They put forth a bill (LD 394) last session asking for stronger authority and ability to provide some more restrictive requirements in our permitting. The Department testified in support but provided the Committee information that we currently had the ability to enforce different violations for recreational watercraft as well as boat race events. The initial concern from those people were that if we gave a permit out and somebody participating in the event did something egregious or wrong that we couldnt pull that person out of the event. Specifically, we may not be able to revoke the permit if there were some major issues with the event.
Ms. Theriault stated the Committee asked the Department to review current rules and report back to them with new rules that would give more authority and provisions to make specific requirements within those permits. Recognizing that the boat race events were a little bit different concern than some of the other types of events that occurred on the water that we permitted (sailboat races, regattas) the motorboat race events had higher concern. We separated those events in the proposed rule from some of the other types of events. We were proposing a new section in the Chapter 13 Watercraft Rules. We would go back to the Legislature after the final rule adoption and see if they felt further change was necessary.
Mr. Connolly stated the Legislature gave us specific authority and direction in statute on particular topics for rulemaking. The Commissioner also had general authority to engage in rulemaking on topics where delegated. Within the boat racing world, the Commissioner is authorized to issue a permit, and a permit is required to have a race. There was already language in rule that addressed a number of issues. When we start on a new topic, we look to see what weve been directed to do; we werent directed to ban boat races. That would be an inappropriate action. The other thing was noise. If you were upset by the noise in a boat race there was currently a specific exemption in statute for noise by boat and mufflers. The Department could not enact a noise restriction or a muffler change on boat races or regattas. If there was already an issue in statute where theres been clear direction, or in rule, we try to make those consistent. There was a water safety zone in Maine, 200 feet from the shoreline you were only supposed to operate with enough power to move forward and maintain control. That had implications for wakes and impacts on the shoreline. We then look at the event and begin to analyze if boat races, what was the distinction between a boat race and recreational boating. The authority wasnt to change recreational boating statewide, the discussion was to focus on boat races. That framework was important in terms of where we focus on this issue.
Mr. Connolly stated the other piece to start looking at was specific issues that come up. Wake, shoreline, injury to wildlife, we had someone that looked at loon mortality across the state. Was there something specific to boat races in terms of impacts to wildlife that was different than anything else that occurred with recreational boating. There wasnt. There was a mortality on that lake, we cant attribute it to the boat race, but is was blunt force trauma. We had loons that were killed on other lakes where there were no boat races. We had to look, is the particular fact that a boat race occurs mean theres going to be dead wildlife, no. We had different types of events and the criteria for each. Races, what was the scope of the problem in Maine. In 2018, there were three motorboat races, all on Watchic Lake. In 2019, there were eight total, six on Watchic Lake. In 2020, six on Watchic Lake. Was this a problem all over the state? It was currently a very focused problem. That didnt mean we werent going to address it but gave some perspective on what was going on. There were other factors impacting loons. The loon population was currently stable, chick production was flatlined and we were doing things to address that.
Mr. Connolly stated we were asking for some changes in statute to clarify our authority and clearly link wildlife safety to motorboat races. We were going to clarify that the Commissioner could put conditions on permits and revoke or refuse to issue a permit in statute and then we would create a corresponding spot in rule to do that. There were a number of suggestions for doing this that we should analyze the shoreline, look at the depth of the water, etc. After looking at all that, there really was no justification because the next day a recreational boat could be going over that same area with no consequences. We were asking applicants to submit a course map and put some criteria in terms of the layout of the course on the lake and look to them to avoid safety hazards and we were going to look at adjacent swimming areas. We were not going try to put all of the very specific things governing how we were going to look at that map in rule. We were looking at additional distance out beyond 200 feet in order to ensure that you could have a boat race going on, and people could be driving a boat between the course and the 200 foot headway speed zone and use the lake so it wasnt totally occupied by the race. Also, create an additional setback that will ensure that theres safety and minimal impact to shoreline for any other activities. We were also looking at having two spotters, we were going to ask on the application that the applicant notify the town in advance so there was an awareness to the public the event was going to happen; provide the names of two spotters; spotters will have guidelines for looking for interactions with the course and be able to communicate with the person running the course to make awareness to stop the course in case theres a risk to the participants but also to deal with wildlife issues. The other thing we were looking at was aquatic plant inspectors. We had required inspections for bass tournaments before they put the boat in, and afterwards. A motorboat race participant wasnt more risky than a bass tournament participant or recreational boater. We were going to look at requiring and then providing the names of the two aquatic plant inspectors, inspection before and afterwards and they would be trained by DEP to do that. We were also asking an emergency responder to be present. We want to designate a representative that we know in advance that was going to be present at the course we could communicate with and hold accountable for the actions that occur.
Mr. Connolly stated we were asking event officials have the boating education course certificate so the officials and participants in boat races both are certified in boating safety and have taken the course. Flags for warning will be on the course, a roster of participants, and then were asking for a report of what goes on during the race afterwards. That feedback will allow us to evaluate if the race was held responsibly and if we need to make changes. There would be less requirements for parades. The rule would also include an awareness that the Commissioner can revoke, suspend, or deny the permit.
V. Other Business
Commissioner Camuso stated she wanted to make the Council aware of the status of the Recovering Americas Wildlife Act (RAWA). This was a bill in Congress to provide permanent annual funding for species of greatest conservation need with the idea that the additional funding will minimize need to list species. The Department had 15,000 or so species we were responsible for. We also had species specialists that were dedicated to invertebrate species, not all states had one. The most recent estimate for funding from the bill for Maine would be $11million/year for nongame funding. In comparison, we currently received $8million/year from USFWS to manage all of the wildlife. It would be a monumental change in how we were able to manage wildlife species. It had support from both parties. The funding would come from mitigation fees for environmental impact.
VI. Councilor Reports
Councilors gave reports.
VII. Public Comments & Questions
Agnes Wiggin stated they were interested in the boat regulations. She wanted to make a distinction, there was talk about recreational boats vs. race boats. When she had driven a boat with a water skier, she was going the maximum of about 30mph. The race boats were going 70 to 90mph. To her, there was a big difference between a race boat and a recreational boat. The request for the legislation was a step in really protecting wildlife and in particular, loons. The legislation for harassing is very different than being in the loon nesting area and disturbing the loons. She did not think boat racers were trying to do that, she didnt feel the harassing part fit. There was a loon nesting territory that the race went through, and it was going on for three days for hours each day. That year, they had no live births. They had talked about the loon population being flat, so it was a concern to them. The Lake Association spent a lot of time and effort they had one of the cleanest lakes in Maine, they had a gold award from the state. She didnt get from the regulation anything that said a boat race must be X feet away from the loon nesting area. That was something she would like to see, whatever the experts say is a territory that you really shouldnt be zooming constantly in front of them.
Commissioner Camuso stated some of the challenges with that, when the Department enacted rules they were for the whole state. We wouldnt enact a rule for one particular location. There were many instances where recreational boats were going well in excess of 30mph in and around loon nesting areas on many lakes. We had over 4,000 pairs of loons in Maine. Because of the number of loons we had statewide, we did not feel it was appropriate to put a certain number of distance to or from. We could discuss the timing of the races. Currently, they were before Memorial Day after Labor Day which was outside the breeding season for that species. We felt that was a much more viable approach than having people measure distance from a nest. In general, the loon counts are usually the third Saturday in July, by then the chicks are probably two weeks old, its about a 30-day incubation period. June, July, August was approximate.
Agnes Wiggin stated while this was initiated because of the loon death, it happened on the day of a boat race and there was boat slice across the loon. They had pictures that were given to a warden. Nobody saw it so nobody could say thats what was happening on the lake that day. When there was a public hearing, there were 19 people who testified, 5 from Watchic Lake. Fifty people submitted written testimony in support of expanding the boat permitting process to include wildlife and they were from all over the state. She totally agreed we didnt want legislation for one spot, but there was significant support. She just hoped there would be some way to accommodate nesting areas. Nobody was against races, it was trying to protect the wildlife. Could they come up with some rules to protect the wildlife on lakes that were big enough to support wildlife and races. They did race within the 200ft. from shore, did they need to have people taking videos to show that? She did not know how that was enforced or reported. They talked about potentially having people report back after the race. If it was the people involved in the race, its going to be great theres going to be no violation. How would we know it was what it said it was, that they did what they said they would do?
Commissioner Camuso stated the Department had many processes where we had an expectation that the permittee was honest in their application and in their paperwork with the understanding that if they were not, they would not get a permit in the future. We had many processes that required people to be honest and that was the expectation. She could also assure her that when people were not honest, we heard about it. If the applicant or permittee was behaving in such a way to not comply with their permit, we would find out about it.
Mr. Connolly stated it would be more productive for them to review the written rule when it was advertised and during the comment period raise any points. If they had concerns specifically, they could contact the Advisory Council member for their area. After the comment period closes, we would address all the comments. He felt the concerns Mrs. Wiggin had was addressed in the rule in terms of a designated course being appropriate and respectful of the other laws and rules in place and the requirement they comply with the course that had been approved.
Katie Hansberry stated she was the Maine State Director of the Humane Society of the United States. During the legislative session there was a bill about the use of non-lead ammunition. Her recollection from that discussion was that a more formalized group or stakeholder group would be formed. Was that accurate or was that happening?
Mr. Webb stated there was a more informal group of folks that had been meeting virtually to discuss progress and ideas. We had started to ramp up messaging, there was some social media information that went out. It was a broader effort among states of the northeast, review of a conservation grant to pull in more resources and a more consistent strategy across the northeast states recognizing that hunters moved across state lines. There continued to be discussion and they would welcome her participation in the group if she wished. We did hold an informational session on July 1, 2021 at the Summerhaven range with representatives from fish and game clubs, staff, recreational safety officers and the North American Non-lead Partnership to talk about the issue and have a demonstration of lead vs. non-lead ammunition. There was work going on behind the scenes, but there was more to do.
Tony Touchette stated that on behalf of the association and the property owners at Loon Lake, he would like to thank the Commissioner, the Council and the Department for listening to their comments and making an amendment that was approved. He had learned a lot about the rule process.
Mr. Brautigam stated he would like to update the Council on the status of their 15-year fisheries strategic management plan. It had been a very lengthy process, but they were in the final stages of having the plan available for public comment. It was a three-document set focusing on goals and action items specific to sport fish, stocking program, goals for the entire fisheries and hatcheries division, species assessment, etc.
Mr. Connolly discussed LMF funding and reconstruction that was happening at the Fryeburg shooting range. We were also working on a family fishing area for water access at Togus Pond.
VIII. Agenda Items & Schedule Date for Next Meeting
The Advisory Council would be notified of the date and location of their next meeting at a later time.
A motion was made by Mr. Duchesne and that was seconded by Mrs. Rousseau to adjourn the meeting. The meeting was adjourned at 11:30 a.m.