Meeting Minutes

ADVISORY COUNCIL MEETING
December 14, 2021 @ 9:30 a.m.
353 Water Street, 4th floor conference room, Augusta, ME
(and virtually via Microsoft Teams)

Attending:

Judy Camuso, Commissioner
Timothy Peabody, Deputy Commissioner
Christl Theriault, Assistant to the Commissioner
Dan Scott, Colonel, Maine Warden Service
Mark Latti, Director of Communications
Jim Connolly, Director Bureau of Resource Management
Nate Webb, Wildlife Division Director
Jen Vashon, Bear Biologist
Danielle D' Auria, Bird Biologist
Francis Brautigam, Fisheries & Hatcheries Division Director
Steve Walker, E/T Species Coordinator
Linda Ahearn, Supervisor of Licensing and Registration
Nick Bragg, Licensing & Registration
Becky Orff, Secretary/Recorder

COUNCIL MEMBERS
Jerry Scribner (Chair)
Bob Duchesne
Kristen Peet
Mike Gawtry
Shelby Rousseau br> Al Cowperthwaite
Tony Liguori - attending via Teams
Eric Ward - attending via Teams
Jennifer Geel - attending via Teams
Lindsay Ware - attending via Teams

GUESTS
17 citizens and additional staff

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. Gawtry.

Vote: unanimous in favor - minutes approved.

IV. Rulemaking

A. Step 3
There were no items under Step 3.

B. Step 2
1. Species of Special Concern

Mr. Webb stated the proposal was the result of Public Law Chapter 65 which required the Department to establish a list of species of special concern including the criteria for those species and the subcategory for the species that are rare. The special concern list was a list of species that we had a policy for many years but this effort in our view of public transparency of this and make it a bit easier for the public for those we interact with on this list. We had a public hearing on the proposal on November 1, 2021. There was one member of the public that offered comment at the hearing and we received three written comments as well.

Mr. Walker stated there were four public comments received. The Maine Audubon Society requested that we include text requiring a regular update of the list and suggested that happen every 10 years. In our working definition of rare, they suggested we add a note about climate change and vulnerability being a factor driving the species into the rare category. They also requested a clarification that while we stated in the definition of rare that several of the species would qualify for the Maine Endangered Species Act, Maine Audubon wanted us to clarify that yes, they qualified, but were not included on the list. They also recommended the addition of Common Murre and Leach's Storm-petrel to the list of rare species. The bird group was fine with listing them given the few numbers of nesting locations.

Mr. Walker stated Maine Forest Products Council also commented. Largely they were encouraged by the public process and suggested more public availability of the data regarding each species and the reason for listing. We did have worksheets that biologists put together and a handbook that guided the listing process. All those materials were public information and could be made available upon request. A member of the public, Mr. Fred Hartman, requested we consider Pied-billed Grebe be added to the list and King Rail. Internally, there was no reason to do that. He also requested Least Bittern which was currently on the Maine endangered species list.

Mr. Walker stated a member of the public came to the public hearing and suggested adding wolf to the list. Staff did not support that recommendation.

Commissioner Camuso stated she would like to clarify when the Department was undergoing rulemaking, we were bound by the Administrative Procedures Act (APA). We could not really step outside those rules that were set for Department rulemaking. We got feedback a lot similar to the request from Maine Forest Products Council suggesting that perhaps they could review the list before we presented it to the Council for rulemaking. We were not allowed to do that under the APA. We were going to try and work with the Attorney Generals office to clarify that our understanding was accurate. We recognized there was some frustration, but it was not the Department trying to not be inclusive. We had to operate under the APA.

Mr. Walker stated since the last meeting, staff had reconsidered the Fox sparrow being rare so that would be dropped down to special concern.

There were no further questions or comments.

2. Boating Event Rules

Mr. Connolly stated a public hearing was held and the comment period had ended on the proposal. This was an opportunity to set the direction of the proposal. There were two directions where people would like to see the proposal go. One was a more nuanced approach to dealing with loons, and one was a very structured, size driven, presence driven criteria that would limit boat racing in many lakes. At that point in time, the Department had chosen to use data on a case by case basis rather than creating a formula that would guide us across the board. There was also a current proposal in the Legislature to go to mandatory boater education.

Commissioner Camuso stated one of the carry over bills from the last legislative session directed the Department to look at implementing a mandatory boater education for all boaters in the state that would be phased in so people would have until a certain date to comply. They would need to then have proof of the boater education course any time they were operating a vessel. Most states currently had mandatory boater education so it was very common in the rest of the country and we believed that many of the issues (not just boat racing) and many of the complaints were from people frustrated with lack of understanding of boat rules and regulations and irresponsible operation. Our hope was with the mandatory boater education we could tailor those and include additional components about shoreland erosion, harassment of wildlife, etc. Staff had been working on a mandatory boater education option that we would bring back to the Legislature. The Department would be supporting the proposal and working to implement that with the hope that would alleviate some of the stress.

Mr. Connolly stated the rule proposal affected all races. Currently, you needed permits for formal public events. The types of events were motorboat races, canoe, kayak or rowing races, boat parades, sailboat races, motorboat exhibitions and water ski shows. In 2018, there were 67 of those races, the dominant one was canoe and kayak races. There were 84 in 2019 and again, 38 motorboat exhibitions, 18 sailboat races. The non-motorboat races were not an issue in terms of rulemaking. There were some comments and concerns about camps being regulated when they had a race for a camp and we were looking at that as a separate issue. The focus of the proposal in terms of public comment came down to the motorboat races. The motorboat races were very few and focused primarily on one lake. That was what took the initial bill to the Legislature and was driving the comments on the proposal. Loons did get killed by fast, high powered boats but the majority of loon mortalities occurred through recreational boating, not the races associated with the proposed rule. Was there a correlation between loon mortality and motorboat races, no. Was there a correlation between boat strikes on loons and recreational boating, yes. There were many lakes in the state where that occurred, he thought 30 in one year out of all the lakes in Maine.

Mr. Connolly stated regarding the public comments that were received on the proposal. The 300-foot distance was felt to be a hardship. The water safety zone is 200 feet within the shoreline whether it was the mainland or an island. Headway speed, there was a section in Title 12 that governed operating watercraft that we had to take into account. A permit for a motorboat race did not give a pass on following any of the other regulations in Title 12. Related to the water safety zone and headway speed, a person may not operate a watercraft greater than headway speed within the water safety zone. The water safety zone is the minimum speed necessary to maintain steerage and control of watercraft while the watercraft is moving. There was an exemption for fishing and waterskiing. Even if you did not create a wake, the permit did not create the ability to have a motorboat race within the headway speed zone. There was some confusion there, and why we were looking to the boater education piece. The proposal added 100 feet to the water safety zone for boat races to create a 100 foot buffer around the headway speed zone so if you were operating a boat you had an area on the lake if there was a race going on where you could move at a speed greater than headway speed.

Mr. Connolly stated there was a question about the definition of hazards. A change was being discussed to address the concern which may add docks, sunken logs, ledges and other objects when we asked for a map that people would then share with us what those were. We also were discussing the addition of loon nests in response to public comments. The application would include resources for the applicant to research loon nesting locations, the Department would review the map and accept, modify or reject the proposed course consistent with the objectives of the rule to protect public safety and wildlife.

Mr. Duchesne stated one of the tools the Department had were screening maps on the natural resources protection act. Most of the loons would be nesting in those same areas where they were already screen mapped. Was that a resource to use in the proposal saying they had to avoid certain areas already protected.

Mr. Connolly stated when we looked at the issue we thought moving out 300 feet from the shoreline allowed to cover that issue in general. We were looking to find a way to inform folks about location of loon nests or information to include on that.

Ms. DAuria stated Maine Audubon did a loon count every year and primarily the result was a map online that anybody could go and look up a lake and see the tally of adults and chicks for that year. Loon counts on a datasheet location of nests and additional notes were not digitized or in a form just anyone could look up. If there came a time to evaluate a racecourse typically we would ask Maine Audubon for that datasheet form.

Mr. Duchesne stated the loon nests werent mapped but the wildlife habitat was mapped and there was probably a 90% overlap that was where the loons would be because it was shallow and somewhat protected. Furthermore, these were areas that were likely to be very shallow and not appropriate for a racecourse anyway. The actual impact of a potential race was probably minimal, but it did more directly impact how much wave action could significantly impact wildlife habitat we had already mapped.

Commissioner Camuso stated the concern with identifying the loon nest on the application is depending on the time of year when the race was, the nests may not be established. We did not want non-biologists trying to find and disturb nesting loons. We felt we had a solution with the biologists establishing where the loons were in the area.

Ms. DAuria stated loons tended to nest in the same location. Looking back on the most recent data (last 5 years or so) we had a pretty good idea where they would be nesting.

Mr. Connolly stated on the majority of lakes there was nothing to stop recreational boaters 200 feet from shore traveling fast. There was much discussion about race boats creating a wake. If that was a problem with the races he felt we should be looking at the recreational boaters and we had not done that. We were trying to create a balance. There were also comments received regarding spotters. We had intended to include information and a guide sheet along with the application, but in response to comments we were looking at adding a section that the spotters must be on the lookout during the entirety of the race for intrusions into the course area from boats, people, wildlife or other hazards, etc. We made it clear the applicant had to provide information to the best of their knowledge, we committed to reviewing those applications looking for issues, weve asked the applicant to notify the town and the lake association will have the opportunity to send us comments and weve clarified and put the burden on the race holder that they would have two spotters and that was their job and how they would react. It was also clear we would get a report at the end of the race and we could use that information to deny a permit in the future. We felt that was a reasonable and balanced approach.

Mrs. Peet asked if wardens typically circulated through boat races?

Colonel Scott stated not intentionally but would as part of a normal patrol.

Mr. Duchesne asked under what circumstances must someone stop a race? How far outside the path did the spotter have to make the decision about when the race needed to be curtailed until the threat was removed?

Mr. Connolly stated certainly if it was within the course or adjacent to the course. If they were not acting responsibly and we got a report then we could deal with it and work forward. We had not set a minimum guideline in terms of that.

Mr. Duchesne stated the nature of the threat to the loon was different than it was for a recreational boater and he wanted to make sure there was a recognition that the spotters had the power to stop the race under circumstances that the Department understood and guided.

Mr. Connolly stated the majority of the races occurring were done with boats that were fragile enough that if they hit a loon it would be a catastrophic failure that would impact not just the loon, but the boat and driver. The boaters in the races were acting responsibly to protect themselves, their property and their actions. There was no information to show that any of them had actually ever killed a loon. There was one loon found dead on a water body where a race occurred in the race weekend, but no way to tie that loon mortality to the race.

Mr. Duchesne stated it seemed self-limiting as they couldnt do it in a big lake with big waves, they were somewhat limited to small bodies of water due to the nature of the watercraft.

Mr. Connolly stated there were additional public comments regarding the two aquatic plant inspectors and we thought that was reasonable to reduce the number to one. There was some request for waiving that requirement for regattas that occurred where the people on the lake decided to hold the event so we were looking at a way to address that. There was also a request from the camp association that they held private water ski exhibitions for the camp participants as part of their educational program and we were looking at trying to find a way to address that.

Mrs. Rousseau stated Mr. Connolly mentioned there was one loon mortality during the weekend of a race event, how long ago was that and on what lake?

Mr. Connolly stated it was on Watchic Lake in 2018 that one was found.

Mrs. Rousseau asked if IFW or Audubon kept track of how much loon mortality there was?

Mr. Connolly stated we gathered loon carcasses and it was part of a public effort looking at the lead sinker issue and lead poisoning of loons to address that. We were trying to identify causes of death. Loons killed each other, he felt there was more documentation of loons killing each other than from motorboat races.

Mr. Scribner stated he understood Maine Audubon had a body of data that was supposedly reliable, and they were a very respected organization. Why wouldnt we want to utilize that information in the permitting process to set the criteria up front. If we had the data to suggest there were some bodies of water that had very high densities of loons, why wouldnt we want to utilize that data in the permitting process to determine where it made sense to have the races and where it did not. He agreed with the education portion and certification, that was where a lot of the problems came from in terms of loon mortality. The proposal was supposed to deal with loon safety, he believed their responsibilities as Council members was to convey the publics views and input on proposals. He had been inundated with views stating that we were not addressing what the legislation intended us to do. Why wouldnt we want to utilize the data up front in the permit process to head off some of these mortality issues.

Commissioner Camuso stated the proposed modification to the proposal did include a requirement that the applicant identify any known loon nests in the area. They would then have to place the course at least 300 feet away from that area which was more protective than any of our significant wildlife habitat protections. If there were loons in or adjacent to the race they would have to stop the race.

Ms. Ware stated the Commissioner mentioned that the Department would be consulting with Danielle DAuria when it came to identifying nests as potential hazards. Was that just when the applicant had identified a loon nest being in the area or was that for every application?

Commissioner Camuso stated the thought was it would be for every application for the motorboat races. Because there was a limited number of them, we felt it would be manageable.

Ms. Ware asked about the status of the modifications to the rule that were being discussed.

Commissioner Camuso stated the goal today was to receive feedback from the Council and based on that would make modifications to the rule and consult with the Attorney General to see if the changes would be considered substantive. If they were determined to be substantive, we would need to start over at Step 1. If they were minor in nature, we would proceed with the proposal to Step 3.

Mrs. Peet stated they heard if they did something wrong at the event there was the potential their permit would not be renewed, but if a warden was to see a spotter not acknowledge something was the spotter the one that would be written up, or the boat driver, or both?

Colonel Scott stated if they saw a violation of the rule as written, they could stop the boat race and address it. The way it was written was either the organizer could be addressed, or the individual boat operator could be excluded from future races as well. The races were very well organized, and they did not get a lot of complaints regarding them. One loon was killed adjacent to a weekend race four years ago; they received thousands more complaints around recreational boaters every weekend.

Mrs. Peet asked about the boater safety course. Would that be for Maine residents or for anybody operating a boat?

Commissioner Camuso stated it would be for anybody operating a boat in Maine regardless of where they were from. It would be reciprocal, if they took the course in another state. It was a nationally recognized class.

Mr. Cowperthwaite stated if they were going to do something to help the loons the mandatory boater education course would be a lot better than trying to regulate four or five boat races in a season.

Mr. Connolly stated we would finalize the edits we were proposing and verify they were not substantive changes before moving forward to Step 3.

There were no further questions or comments.

C. Step 1
2. Bear Hunting Rules

Mr. Webb stated the proposal went back to 2017 with the big game management plan. One of the key recommendations of the plan was to request broad authority from the Legislature for the Department to be able to have more flexibility in setting bear season dates and bag limits. That turned out to be a lengthy process with the Legislature. LD 142 was signed into law in June 2021 and outlined the changes. It took the season dates that were previously in statute and authorized the Department to set the dates in rule with some sideboards. The bill also required the Department to set the bag limit for bears taken by hunting that could be up to 2 bears taken by hunting and 1 by trapping, but no more than 2 total. It also made some changes to the way the bear trapping permit was structured. It required a mandatory bear trapper education course starting in January, 2022. It reduced the permit fee for residents for both bear hunting and trapping to $10 with the goal of increasing hunter participation. With the passing of the bill, the Department now had to set in rule what was previously in statute. We had seen a fairly substantial increase in both the bear hunting permit sales and the total bear harvest the past two years. We felt it was due in part to the pandemic, but also our R3 efforts that the I&E division had been working on. With this increased activity, we did not feel any additional changes to the season dates or bag limits were warranted at this time.

Mrs. Vashon discussed the handouts that were in the Councils packet. (a copy of the handouts may be requested by contacting becky.orff@maine.gov)

V. Other Business

Commissioner Camuso stated the Legislature directed the Department to convene a stakeholder group to assess the publics feeling on Sunday hunting. The group met several times, a professional survey firm was hired (Responsive Management) to survey the public on their feelings on Sunday hunting. There were about 2000 survey respondents which should get us about a 95% confidence interval and would survey hunters, landowners and the general population. This information would be used to report back to the Legislature in early February 2022.

Mr. Gawtry asked if there had been any other surveys recently on the topic.

Commissioner Camuso stated the last one was done in 2005 and was just an up or down question, did you support the ban on Sunday hunting. The question at that point was about 52% supported the ban, 48% did not. Looking back at summaries from sportsmans shows it was consistent and very close to 50/50 as well.

Commissioner Camuso stated during the pandemic the Governor issued an executive order basically saying that boards and commissions could conduct their business virtually. When the state of emergency ended, so did the provision to conduct activities of boards and commissions virtually. We needed to adopt a policy that would allow the Department boards and commissions to conduct business virtually. It did not need to go through normal rulemaking, so we would draft a policy and bring it to the Council to review. The expectation was that Council members would still come in person, but felt it was beneficial to have that option due to weather, etc. and for the public if they wanted to listen in.

1. PFAS update

Mr. Webb stated we issued a consumption advisory for deer in the Fairfield area. We received about 300 calls in a 7-hour period along with emails, Facebook inquiries, media interviews, etc. It was a substantial issue that generated a lot of public interest and concern. We had continued to get requests and questions from states across the country and were thinking about similar issues in their state. There had been concern about PFAS levels in the Fairfield area for a couple of years based on work that DEP had done both in the soil of fields where industrial sludge was spread back in the 70s as well as some water sampling they had been doing in the area. We were aware of that testing and over the course of the summer and early fall we started to get questions from hunters, and we started to question if there was a wildlife issue there. There hadnt been much in the way of testing wildlife for PFAS anywhere, it was very new. We felt it prudent to sample some deer from the affected fields in that immediate area in mid-October in hopes of getting results back to inform a potential advisory if one was warranted for the firearms season on deer. Unfortunately, the lab turn around was longer than anticipated and took over a month. We got the results just prior to Thanksgiving and consulted with CDC and DEP to determine the course of action and arrived at issuing an advisory in the area for consumption of deer.

Mr. Webb stated we sampled 8 deer and all 8 of them came back with elevated levels, 5 of the 8 were very high. Based on CDC advice we had no choice but to communicate an advisory to the public. Using what we knew about deer movement at that time of year we used our best professional judgement to delineate an advisory area based on landscape features that would be easy to communicate to the public. We were working on developing a broader sampling plan for wildlife. We would use the Fairfield area as a model or a test case to determine what other species may be impacted for wildlife and hopefully refine the geographic extent of the advisory area. We did also intend to follow DEPs sampling as they sampled other locations around the state. They had 34 tier one sites that had sludge with significant industrial components spread at relatively high volumes going back to the 70s that based on their expertise would likely have the highest risk of contamination. We may need to issue advisories for other areas, but were taking a strategic measured approach.

Mr. Webb stated questions we had received were asking if we would be using hunters or the general public to contribute samples to our surveillance efforts. At this point, the answer was no. The lab costs were extremely expensive ($400 per sample). The testing was done in a way that looked for contamination at the level of parts per billion or trillion. There were only a few labs in the country that could do the testing and had very limited capacity and were prioritizing state and federal agencies for broad public health issues. The way the testing was done, there was a high risk of contamination...simply rubbing against an animal with your Gortex jacket (which had PFAS in it) could result in contamination of the sample and give an erroneous result. Another complicating factor, because the work was public health related, we believed none of the work was eligible for typical funding stream or federal PR grants, they were all about conserving wildlife, animal disease and health. If the work we were doing was really focused on human health then our understanding was it was not eligible for those regular funding streams.

Commissioner Camuso stated she would be going to the Legislature during the supplemental budget request and ask for substantial funding for hiring a limited term coordinator to oversee the issue and funding for the lab testing.

Mr. Latti stated we were the fourth state to issue a PFAS advisory. The first was Michigan, and the other two states, Wisconsin and New Hampshire, had a do not eat liver advisory.

Commissioner Camuso stated we would also be testing fish, turkeys and other species.

Mr. Scribner asked if there was a determination of how it got into the deer, via water or vegetation?

Mr. Webb stated they assumed it was likely through consumption of vegetation in those fields. There was some degree of surface water contamination in the Fairfield area so that was a possible route as well. In addition to the surveillance work and consumption advisories there was a whole body of research that over time would help inform how extensive the issue was.

Mr. Connolly stated before this, it was a Fairfield problem and the people in Fairfield were very concerned about it, but it wasnt perceived as a statewide issue. The deer advisory changed that. DEP received $30 million during the last legislative session to start testing the 700 sites. They prioritized them by the type of biosolids they thought were a priority. They had four years to do the testing, they would be testing soil and drinking water and then creating a plan to test out from the central area which was where the fields were spread and look at drinking water. We were trying to connect our testing given what we knew about deer and turkeys in association with the field where the solids were spread and do it in a way that was responsible and may give us some information so we may get to the point where we could issue a broader advisory based on levels.

Mr. Brautigam stated with fisheries the DEP had a long-standing partnership with monitoring contaminants out in the wild. Weve had statewide fish consumption advisories in place for a long time, some of those were related to statewide mercury deposition, etc. With the availability of additional information in Fairfield we had additional conversations with DEP and the CDC about how we could better partner to better understand the dynamic of PFAS assimilation in fish. We had youth ponds that we stocked there so we established a research project there where we could stock uncontaminated hatchery fish and we would monitor assimilation rates over time. The goals were to look at the relationship between PFAS levels in the water and what level it was realized in fish tissue. We needed to think about costs and how we assessed potential effects in fish moving forward.

VI. Councilor Reports

Councilors gave reports

VII. Public Comments & Questions

Katie Hansberry stated she knew Responsive Management often would do focus groups in addition to surveys, was that considered for the Sunday hunting study?

Commissioner Camuso stated they didnt do that because of the cost associated with it. The Legislature did not request that in particular. Depending on the results of the survey, if the Legislature asked us to do that, she was sure Responsive Management would accommodate that.

Agnes Wiggin stated just as Jim mentioned with drinking water in Fairfield and how it was viewed as a Fairfield problem not a state problem, on March 1st the Legislature held a public hearing on LD 394 and the organizer of the race stated they had raced on North Pond in Warren, Pennesewassee Lake in Norway, Little Sebago Lake, Number One Road in Sanford and they did plan to go to other locations. She wanted to mention it was a statewide issue. She thought it was important the rulemaking be as objective as possible.

Commissioner Camuso stated the Administrative Procedures Act did not allow comments at this point in time about the boating events rule. The public comment period was closed, and the Attorney Generals office had given direction that at this point we were not allowed to accept additional comments on the proposal. There was a lengthy comment period and after that the Council gave the Department direction and we moved forward from there.

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.

IX. Adjournment

A motion was made by Mr. Duchesne and that was seconded by Mr. Gawtry to adjourn the meeting. The meeting was adjourned at 12:00 p.m.