Shellfish Conservation Ordinance

TOWN OF WHITING 

 

  1. Authority: This ordinance is enacted in accordance with 12 M.R.S.A. Section 6671

 

  1. Purpose: To establish a shellfish conservation program for the Town of Whiting which will ensure the protection and optimum utilization of shellfish resources within its limits. These goals will be achieved by means which may include:
  2. Licensing.
  3. Limiting the number of shellfish harvesters.
  4. Restricting the time and area where digging is permitted.
  5. Limiting the minimum size of clams taken.
  6. Limiting the amount of clams taken daily by a harvester.

 

  1. Shellfish Conservation Committee: The Shellfish Conversation Program for the Town

of Whiting will be administered by the Shellfish Conservation Committee consisting of

three members to be appointed by the selectmen for three years, serving staggered terms.

The Committee’s responsibilities include:

  1. Establishing annually in conjunction with the department of marine Resources

the number of shellfish digging licenses to be issued;

  1. Submitting proposals for the expenditures of funds for the purpose of shellfish

conservation;

  1. Keeping this ordinance under review and making recommendations for its

amendments;

  1. Securing and maintaining records of shellfish harvest from the Town’s managed

Shellfish areas and closed areas that are conditionally opened by the Department of

Marine Resources;

  1. Recommending conservation closures and openings in conjunction with the area

Biologists of the Department of Marine Resources;

  1. Submitting an annual report to the Town and the Department of Marine Resources

covering the above topics and all other committee activities.

 

  1. Definitions:
  2. Resident: The term “resident” refers to a person who owns or rents residential

real estate and has been domiciled in this municipality for at least three months(90 days)

prior to the time their claim of residency is made for the purpose of applying for a shellfish

license. To prove they are a resident, a person must provide documentation of real estate

ownership in the form of a deed or property tax bill, or if rented real estate, rent receipts or a

lease agreement signed by the property owner that provides residency for the three

months (90 days) prior to applying for the shellfish license.

In addition to the above domicile requirements, the applicant must show documentation of at

least one of the additional residence criteria from:

 

  1. Motor vehicle license registration
  2. Motor vehicle registration address
  3. Voter registration address
  4. Hunting licenses
  5. Utility service address

 

 

  1. Non-resident: The term “non-resident” means anyone not qualified as a resident

under this ordinance.

 

  1. Shellfish, Clams, and Intertidal shellfish resources: When used in the context

of this ordinance, the words “shellfish,” “clams,” and “intertidal shellfish resources” mean

soft shell clams(Mya arenaria).

 

  1. Municipality: Refers to the Town of Whiting, Maine.

 

  1. Licensing: Municipal Shellfish Digging License is required. It is unlawful for any person

to dig or take shellfish from the shores and flats of this municipality without having a current

license issued by this municipality as provided by this ordinance. No person shall be issued

a Municipal Shellfish License who, upon the time of request, has failed to appear in court

for a shellfish license violation, or has failed to pay outstanding shellfish violation fines.

 

  1. Designation, Scope and Qualifications:

 

(1). Resident Commercial Shellfish License: The license is available to

residents Town of Whiting and entitles the holder to dig and take any amount of

shellfish from the shores and flats of this municipality and reciprocating

municipalities.

(2). Non-resident Commercial Shellfish License: The license is available to non-

residents of this municipality and entitles the holder to dig and take any amount

of shellfish from the shores and flats of this municipality.

(3).  Resident Junior Commercial License: This license is available to residents

of this municipality who have attained his or her 10th birthday but has not yet

attained his or her 18th birthday as of June 1st of the year of application. The

student applicant shall be enrolled fulltime in a primary or secondary school or

educational program. The student must remain enrolled, or had graduated, for

the period of issuance. This license entitles the student to dig and take any

amount of shellfish to sell from the shores and flats of this municipality.

(4). Non-Resident Junior Commercial License: This license is available to non-

residents of the Town of Whiting who have attained his or her 10th  birthday

but has not yet attained his or her 18th birthday as of June 1st of the year of

application. The applicant shall be enrolled fulltime in a primary, secondary,

or educational program. The student must remain enrolled, or had graduated,

for the period of issuance. This license entitles the student to dig and take any

amount of shellfish from the shores, flats of this municipality.

(5). Residents Recreational Shellfish License: The license is available to

residents and real estate taxpayers of this municipality and entitles the holder

to dig and take no more than one peck of shellfish in any one day for the use

of himself and his family.

(6). Non-Resident Recreational Shellfish License: The license is available to

non-residents and entitles the holder to dig and take no more than one peck

of shellfish in any one day for the use of himself and his family.

(7). Restrictions on Recreational License:

  1. Any person who is issued a Commercial Shellfish License by the

Maine Department of Marine Resources will not be eligible for issuance

of a Whiting Recreational Shellfish License.

  1. Any person who is issued a Whiting Recreational License and

subsequently obtains a Commercial Shellfish License from either the

Maine Department of Marine Resources or the Town of Whiting will

have his or her Whiting Recreational License revoked immediately.

(8). License must be signed: The licensee must sign the license to make it valid.

 

(9) Change of Residence: If a person holding a Resident Shellfish License

moves out of town, the license will be invalid 30 days after moving.

 

 

  1. Application Procedures: Any person may apply to the Town Clerk for the

licenses required by this ordinance on forms provided by the municipality.

 

(1). Contents of Application: The application must be in the form of an

affidavit and must contain the applicant’s name, current address, birth date,

height, weight, signature and whatever information the municipality may

require. An application for a junior shellfish license shall also be in the form of

an affidavit, which shall include:

  1. Proof that the applicant has attained his or her 10th birthday but has not

yet attained his or her 18th birthday as of June 1st of the license year.

  1. Proof of residency.
  2. Proof of enrollment in a school or state approved educational program.

(2). Misrepresentation: Any person who gives false information on a license

application will cause said license to become invalid and void.

 

  1. Fees: The number of licenses and fees for the licenses will be determined annually

by the Shellfish Conservation Committee. Fees for the licenses must accompany in

full the application for the respective license. The Town Clerk shall pay all fees

received to the Town Treasurer. Fees received for shellfish licenses shall be used by

the Town for shellfish management, conservation, and enforcement.

 

  1. Limitation of Diggers: Clam resources vary in density and size distribution from

year to year and over the limited soft shell clam producing area of the Town. It is

essential that the town carefully husband its shellfish resources. Following the annual

review of the Town’s clam resources, its size distribution, abundance, and the

warden’s reports, as required by the Section 3, the Shellfish Conservation Committee

in consultation with the DMR area biologist will determine whether limiting

commercial or recreational shellfish licenses is appropriate shell fish conservation

management option for the following year.

 

(1). Prior to June 1 the Town Shellfish Conservation Committee with the approval of the

Commissioner of Marine Resources will establish the number of commercial and

noncommercial licenses to be permitted following the requirements of 12 M.R.S.A.

Section 6671(3).

(2) The Shellfish Conservation Committee shall notify the Town Clerk in writing prior to June 1

of the number of licenses to be issued.

(3) Notice of the number of licenses to be issued and the procedure for application shall be

published in a trade or industry publication, or in a newspaper or combination of newspapers

with the general circulation, which the Board of Selectmen consider effective in reaching

persons affected, not less than 10 days prior to the period of issuance and shall be posted in

the Town Office until the period concludes.

(4) The Town Clerk shall issue licenses to residents and non-residents as allocated (paragraph

5C) from June 1 and until September 1 after which licenses shall be issued to residents and

non-residents on a first come first serve basis or by lottery.

(5) Licenses may be returned to the Town voluntarily and reissued to another person at the

current fee according the priorities established in this section.

 

 

 

  1. Open License Sales: When the Shellfish Conservation Committee determines limiting shellfish

licenses is not an appropriate shellfish management option for one or more license categories for the

following year;

 

(1) Notice of dates, places, times and procedures for the license sales shall be published in a trade

or industry publication, or in a newspaper or combination of newspapers with general circulation

which the municipal officers consider effective in reaching persons affected, not less than 10 days

prior to the initial sale date and shall be posted in the municipal offices.

(2) For each commercial license category, the Town Clerk shall issue one license to non-residents

when six licenses are issued to residents and one more to non- residents when four more are

issued to residents; thereafter, one non-resident will be issued for every ten additional resident

license issued.

 

  1. License Expiration Date: Each license issued under authority of this ordinance expires at

midnight on the 31st of May next following date of issue.

 

  1. Reciprocal Harvesting Privileges: Licenses from any other municipality cooperating with

Whiting on a joint shellfish management program may harvest shellfish according to the terms of

their  license.

 

  1. Suspensions: Any shellfish licensee having been convicted for violation of this ordinance or in a

Municipal closed Conservation Area shall have his shellfish license automatically suspended.

 

(1) A license whose shellfish license has been suspended pursuant to this ordinance may reapply

for a license only after the suspension period has expired.

(2) The suspension shall be effective from the date of mailing of a Notice of Suspension by the

Town Clerk to the licensee.

(3) Any licensee whose shellfish license has automatically been suspended pursuant to this

section shall be entitled to a hearing before the Shellfish Conservation committee upon filing of

a written Request for Hearing with the Town Clerk within thirty (30) days following the

effective date of suspension. The licensee may appeal the decision of the Shellfish

Conservation Committee before the Board of Appeals by filing a written Request for Appeal

with the Town Clerk within (7) days of the decision of the Shellfish Conservation Committee.

(4) Length of Suspension: The suspension of a license may not exceed the following:

  1. 30 days from the date of the first conservation
  2. 365 days(one year) from the date of the second conservation

 

  1. Opening and Closing of Flats: The Board of Selectmen, upon the approval of the Commissioner of Marine Resources, may open and close areas for shellfish harvest. Upon recommendations of the Shellfish Conservation Committee and concurrence of the Department of Marine Resources area biologist that the status of shellfish resources and other factors bearing on sound management indicate that an area should be opened or closed, the Board of Selectmen may call a public hearing, and shall send a copy of the notice to the Department of Marine Resources. The decision of the Board of Selectmen made after the hearing shall be based on findings of fact.

 

  1. A. Closed Areas: It shall be unlawful for any person to harvest, take or possess shellfish from any areas

closed by the town of Whiting in accordance with DMR Regulation, Chapter 7. Harvesting shellfish in a

closed area is a violation of this municipality’s ordinance and is punishable under MSRA Title 12§ 6671.

 

Boundaries of conservation closures are explicitly defined in the conservation closure application

submitted by the Town of Whiting to DMR and are part of the resulting permit issued by DMR. These

permits are posted at the town office and online.

 

 

 

 

  1. Minimum Legal Size of Soft Shell Clams: It is unlawful for any person to process soft shell clams within the Town of Whiting, County of Washington, which are less than two (2) inches in the longest diameter except as

provided by Subsection B of this section.

 

  1. Definitions:

(1). Lot: The word “lot” as used in this ordinance means the total number of soft shell clams

in any bulk pile. Where soft shell clams are in a box, barrel, or other container, the contents

of each box, barrel, or other container constitutes a separate lot.

(2). Possess:  For the purpose of this section, the word “possess” means dig, take, harvest,

ship, transport, hold, buy, and sell retail and wholesale soft shell clam shell stock.

 

  1. Tolerance: Any person may possess soft shell clams that are less than two (2) inches if they

comprise less than 10% of any lot. The tolerance shall be determined by numerical count of not less

than one peck nor more than four pecks taken at random from various parts of the lot or by count of

the entire lot if it contains less than one peck.

 

  1. Penalty: A person who violates any provision of this section shall be punished as provided in 12

M.R.S.A. Section 6681.

 

  1. Penalty: A person who violates this ordinance shall be punished as provided by 12 M.R.S.A. Section 6671(10).

 

  1. Effective Date: This ordinance, which has been approved by the Commissioner of Marine Resources, shall become effective after its adoption by the Town of Whiting provided a certified copy of this ordinance is filed with the Commissioner within twenty (20) days of its adoption.

 

  1. Period of Ordinance: This Ordinance shall remain in effect for from the effective date until repealed by the municipality or rescinded by the commission.

 

  1. Separability: If any section, subsection, sentence or part of this ordinance is for any reason held to be invalid or unconstitutional, such as decisions shall not affect the validity of the remaining portions of the ordinance.

 

  1. Repeal: Any ordinance regulating the harvesting or conservation of shellfish in the Town and any provisions of any other Town ordinance which is inconsistent with this ordinance is hereby repealed.

 

 

 

 

Selectmen of Whiting:

 

/s/ Steven C. Pressley I

 

/s/ Mary Alice Look

 

/s/ Janice Bronson

 

 

 

 

/s/ Caron Kilton, Town Clerk       09/19/2016