Sec. A-1. 7 MRSA §401-B, first ¶, as enacted by PL 1983, c. 563, §1, is amended to read:
To further the purposes of this Part, the commissioner shall initiate and implement programs necessary to facilitate the effective, profitable marketing of Maine agricultural products. For the purposes of this subchapter, the terms "agricultural products" and "farm products" include, but are not limited to, products of aquaculture as defined in Title 12, section 6001, subsection 1. These programs shall include, but are not be limited to, the following.
Sec. A-2. 12 MRSA §6052, sub-§3, as amended by PL 2003, c. 60, §2, is further amended to read:
3. Marketing. Serve Except for aquaculture, serve as the primary state agency providing promotional and marketing assistance to the commercial fishing industries, including assisting in marketing seafood, stimulating of consumer interest in and consumption of seafood, increasing the sales of seafood domestically and abroad, supporting and expanding existing markets and developing new markets for traditional and underutilized species;
Sec. A-3. 12 MRSA §6072, sub-§2, ¶E, as amended by PL 1997, c. 609, §1, is further amended to read:
E. The Except as provided in subsection 13-A, the lease does not result in a person being a tenant of any kind in leases covering an aggregate of more than 250 300 acres; and
Sec. A-4. 12 MRSA §6072, sub-§4, ¶J, as enacted by PL 1987, c. 453, §1, is amended to read:
J. Include a nonrefundable application fee of at least $100, but not more than $1,000 $2,000, the amount to be set by the commissioner depending on the proposed acreage, type of aquaculture proposed and complexity of the application.
Sec. A-5. 12 MRSA §6072, sub-§5-A, as amended by PL 1997, c. 138, §4, is further amended to read:
5-A. Department site review. Prior to the lease hearing, the department shall conduct an assessment of the proposed site and surrounding area to determine the possible effects of the lease on commercially and ecologically significant flora and fauna and conflicts with traditional fisheries and all other uses. This review must take place any time between April 1st and November 15th. This information must be provided to the intervenors and made available to the public 30 days before the hearing. As part of the site review, the department shall request information from the municipal harbor master about designated or traditional storm anchorages in proximity to the proposed lease. The commissioner may by rule establish levels of assessment appropriate to the scale or potential environmental risk posed by a proposed lease activity. The rules must provide a method of establishing a baseline to monitor the environmental effects of a lease activity. Rules adopted pursuant to under this subsection are major substantive rules pursuant to as defined by Title 5, chapter 375, subchapter II-A 2-A.
Sec. A-6. 12 MRSA §6072, sub-§7-A, as amended by PL 2003, c. 247, §4, is further amended to read:
7-A. Decision. The In evaluating the proposed lease, the commissioner shall take into consideration the number and density of aquaculture leases in an area and may grant the lease if the proposed project lease meets the following conditions as defined by rule:.
A. Will The lease will not unreasonably interfere with the ingress and egress of riparian owners;.
B. Will The lease will not unreasonably interfere with navigation;.
C. Will The lease will not unreasonably interfere with fishing or other uses of the area taking into consideration the number and density of aquaculture leases in an area. For the purposes of this paragraph, "fishing" includes public access to a redeemable shellfish resource, as defined by the department, for the purpose of harvesting, provided that the resource is commercially significant and subject to a pollution abatement plan that predates the lease application, that includes verifiable activities in the process of implementation and that is reasonably expected to result in the opening of the area to the taking of shellfish within 3 years;.
D. Will The lease will not unreasonably interfere with significant wildlife habitat and marine habitat or with the ability of the lease site and surrounding marine and upland areas to support existing ecologically significant flora and fauna;.
E. The applicant has demonstrated that there is an available source of organisms to be cultured for the lease site;.
F. The lease does not unreasonably interfere with public use or enjoyment within 1,000 feet of municipally owned, state-owned or federally owned beaches and parks or municipally owned, state-owned or federally owned docking facilities; a beach, park or docking facility owned by the Federal Government, the State Government or a municipal governmental agency or certain conserved lands. For purposes of this paragraph, "conserved lands" means land in which fee ownership has been acquired by the municipal government, State Government or Federal Government in order to protect the important ecological, recreational, scenic, cultural or historic attributes of that property.
The Executive Department, State Planning Office shall maintain a list of conserved lands. The commissioner shall request this information from the State Planning Office prior to holding a preapplication proceeding.
G. Will The lease will not result in unreasonable impact from noise or light at the boundaries of the lease site; and.
H. Upon the implementation of rules, the lease must be in compliance with visual impact criteria adopted by the commissioner relating to color, height, shape and mass.
The commissioner shall adopt rules to quantify permissible impact under paragraph G and to establish noise, light and visual impact criteria under paragraph paragraphs G and H, which are major substantive rules as defined in Title 5, chapter 375, subchapter 2-A.
Sec. A-7. 12 MRSA §6072, sub-§9, as amended by PL 1987, c. 453, §1 and PL 1995, c. 502, Pt. E, §30, is further amended to read:
9. Rents. After consulting with the Director of the Bureau of Parks and Lands, the commissioner shall determine the rent which shall that must be paid under each lease. The rent shall must represent a fair value based upon the use of and any structures in the leased area, but in no instance may the rental fee be set at less than $50 an acre or more than $100 an acre. The commissioner shall have has the discretion to increase the rental fees for categories of leases. These changes may take effect over the term of a lease. The commis-sioner also may discount a portion of the rental fee during the first 2 years of operation of a new lease. This discounted rate shall may not be less than $50 an acre.
Sec. A-8. 12 MRSA §6072, sub-§12, as repealed and replaced by PL 2003, c. 247, §8, is amended to read:
12. Renewal. The commissioner shall renew a lease if:
A. The commissioner receives, at least 90 days prior to the termination of a lease, an application for renewal that includes information on the type and amount of aquaculture to be conducted during the new lease term;
B. The lessee has complied with the lease agreement during the term of the lease;
C. The commissioner determines that renewal of the lease is in the best interest of the State;
D. The Except as provided in subsection 13-A, the renewal will not cause the lessee to become a tenant of any kind in leases covering an aggregate of more than 250 300 acres; and
E. The lease is not being held for speculative purposes.
When aquaculture has not been routinely or substantially conducted on a lease that is proposed for renewal, the commissioner may renew the lease, as long as the proposed renewal will continue to meet the criteria for approval in subsection 7-A.
A lease renewal is an adjudicatory proceeding under Title 5, chapter 375, subchapter 4. Public notice must be given as required under subsection 6 and a hearing must be held if it is requested in writing by 5 persons. The commissioner may review multiple leases concurrently during the lease renewal process.
A lease renewal application must include a nonrefundable application fee of no more than $1,500, the amount to be set by the commissioner depending on the type of aquaculture permitted by the lease.
Sec. A-9. 12 MRSA §6072, sub-§12-A, ¶B, as amended by PL 1997, c. 609, §3, is further amended to read:
B. The commissioner may grant lease transfers if the commissioner determines that:
(1) The change in lessee does not violate any of the standards in subsection 7;
(2) The transfer is not intended to circumvent the intent of subsection 8;
(3) The transfer is not for speculative purposes; and
(4) The Except as provided in subsection 13-A, the transfer will not cause the transferee to be a tenant of any kind in leases covering an aggregate of more than 250 300 acres.
Sec. A-10. 12 MRSA §6072, sub-§12-A, ¶C is enacted to read:
C. A lease transfer application must include a nonrefundable application fee of not more than $5,000, the amount to be set by the commissioner depending on the type of aquaculture permitted by the lease.
Sec. A-11. 12 MRSA §6072, sub-§13, ¶F, as amended by PL 1997, c. 138, §6, is further amended to read:
F. For defining application requirements, an application review process and decision criteria; and
Sec. A-12. 12 MRSA §6072, sub-§13, ¶G, as enacted by PL 1993, c. 525, §2, is amended to read:
G. For adding or deleting authorization for the holder of an aquaculture lease to grow specific species on the lease site.; and
Sec. A-13. 12 MRSA §6072, sub-§13, ¶H is enacted to read:
H. For establishing fallowing requirements and procedures.
Sec. A-14. 12 MRSA §6072, sub-§13-A is enacted to read:
13-A. Lease acreage increase; fallowing. The commissioner may authorize a person to exceed the 300-acre limit established in subsections 2, 12 and 12-A if that person submits an annual fallowing plan to the commissioner that identifies lease sites that have been actively operated during the lease period and will be fallowed for a 12-month period. A person may not be a tenant of any kind in leases covering an aggregate of more than 300 nonfallowed acres at any time. A person may not be a tenant of any kind in leases covering an aggregate of more than 500 acres including fallowed leases at any time. For purposes of this subsection, "fallow" means a lease site without cultured fish, shellfish, scallops and gear except marked mooring blocks. A lease site fallowed pursuant to an enforcement action may not be considered fallowed for the purpose of this subsection.
Sec. A-15. 12 MRSA §6072-A, sub-§15, as enacted by PL 1997, c. 231, §6, is amended to read:
15. Conditions. The commissioner may establish conditions that govern the use of the leased area and limitations on the aquaculture activities. These conditions must encourage the greatest multiple, compatible uses of the leased area, but must also address the ability of the lease site and surrounding area to support ecologically significant flora and fauna and preserve the exclusive rights of the lessee to the extent necessary to carry out the lease purpose. The commissioner may grant the lease on a conditional basis until the lessee has acquired all the necessary federal, state and local permits. A lease may not be approved unless the commissioner has received certification from the Department of Environmental Protection that the project will not violate the standards ascribed to the receiving waters classification in Title 38, section 465-B.
Sec. A-16. 12 MRSA §6072-D is enacted to read:
§6072-D. Aquaculture Management Fund
1. Fund established. The Aquaculture Management Fund, referred to in this section as "the fund," is established as a dedicated, nonlapsing fund within the department. All income received by the commissioner under this section must be deposited with the Treasurer of State. Any balance remaining in the fund at the end of a fiscal year does not lapse and must be carried forward to the next fiscal year. Any interest earned on assets of the fund is credited to the fund.
2. Fees. In accordance with the authority of the commissioner to levy lease rents pursuant to section 6072, subsections 9 and 13 and section 6072-A, subsection 14 and application fees pursuant to section 6072, subsections 4, 12 and 12-A, the commissioner shall adopt routine technical rules as defined in Title 5, chapter 375, subchapter 2-A to implement a fee structure for lease rents and application fees that are in addition to the minimum lease rents and application fees that are in effect on the effective date of this subsection. Any rent or fee assessed pursuant to this subsection that is in addition to the fees that are in effect on the effective date of this subsection must be credited to the fund. A person who does not pay the rent or fee commits a civil violation for which a fine of not more than $1,000 may be adjudged.
3. Additional revenues. The commissioner may expend annual revenues that are in excess of the operating expenses of a program under subsection 4 to address matters that the commissioner determines are of an emergency nature to the State's aquaculture industry, to address matters that the commissioner determines are of long-term interest to the State's aquaculture industry and to rebate revenues to all those persons who paid fees under subsection 2. The fund may receive money from any source for the purposes of this subsection.
4. Uses of fund. The commissioner may make expenditures from the fund to develop and manage effective and cost-efficient water quality licensing and monitoring criteria, analyze and evaluate monitoring data, process lease applications and make information about aquaculture available to the public.
5. Reports. On or before February 1st of each year, the commissioner shall report to the joint standing committee of the Legislature having jurisdiction over marine resources matters on all expenditures made from the fund in the previous fiscal year and a summary of work accomplished and planned.
Sec. A-17. 12 MRSA §6077, first ¶, as enacted by PL 1991, c. 381, §6, is amended to read:
The department is responsible for establishing and maintaining a comprehensive may establish and maintain an information base pertaining to all aspects of the siting, development and operation of finfish aquaculture facilities within the State.
Sec. A-18. 12 MRSA §6077, sub-§§2 and 3, as enacted by PL 1991, c. 381, §6, are amended to read:
2. Data requirements. The commissioner shall ensure that, at a minimum, may collect information in the following site-specific categories is collected and organized in such a manner as, including, but not limited to, those listed in this subsection, to allow effective enforcement of all laws pertaining to finfish aquaculture at individual facilities:
A. Geophysical site characteristics, including currents and bathymetry;
B. Benthic habitat characteristics and effects, including changes in community structure and function;
C. Water column effects, including water chemistry and plankton;
D. Feeding and production data sufficient to estimate effluent loading;
E. Smolt and broodstock introduction and transfer data;
F. Disease incidence and use of chemical therapeutics; and
G. Other ancillary information as the commissioner may find necessary.
3. Data collection; authority. The commissioner may require persons holding licenses related to finfish aquaculture under this Title to report information in the categories listed in subsection 2. Personnel retained by leaseholders to perform tasks required for data collection as specified in subsection 2 and this subsection must be reviewed and approved by the commissioner for acceptable professional qualifications and experience prior to performing any data collection services. Routine notations of site operation do not require approved personnel.
Sec. A-19. 12 MRSA §6078-A, sub-§2, ¶¶A and B, as enacted by PL 2003, c. 247, §19, are repealed.
Sec. A-20. 12 MRSA §6078-A, sub-§2, ¶C, as enacted by PL 2003, c. 247, §19, is amended to read:
C. The commissioner may develop by rule a fee schedule for the production of shellfish reared on an aquaculture lease. A person who does not pay a fee under this paragraph commits a civil violation for which a fine not to exceed of not more than $1,000 may be adjudged.
Sec. A-21. 12 MRSA §6673, as amended by PL 1999, c. 267, §3, is further amended to read:
§6673. Municipal shellfish aquaculture permit
A municipality, which that has established a shellfish conservation program as provided under section 6671, may lease areas, consistent with the rights of property owners, issue a municipal shellfish aquaculture permit to a person for the exclusive use of shellfish in a designated area in the intertidal zone to the extreme low water mark, within the municipality for the purpose of shellfish aquaculture. Municipal authority to issue a municipal shellfish aquaculture permit under this section does not limit in any way the authority of the commissioner to issue leases in the intertidal zone in accordance with sections 6072, 6072-A and 6072-B.
1. Municipal procedure. A lease application written on a form supplied by the commissioner may be approved by the municipal officers if they find that it conforms to the shellfish program, that it will not cause the total area under lease to exceed 1/4 of all the municipal intertidal zone that is open to the taking of shellfish and that granting it is in the best interests of the municipality. On approval, the lease must be forwarded to the commissioner.
1-A. Application. A municipality shall review an application for a municipal shellfish aquaculture permit on a form supplied by the municipality. The municipality shall publish a summary of the application in a newspaper of general circulation in the area that would be affected by the permit. A person may provide comments to the municipality on the proposed permit within 30 days of publication of the summary.
Prior to issuing a municipal shellfish aquaculture permit, a municipality shall hold a public hearing if requested in writing by 5 or more persons. The public hearing must be held in accordance with procedures established in ordinances adopted in subsection 3.
2. Department procedure for review and approval. The commissioner shall use the same procedure and the same grounds for approval as required for aquaculture leases under section 6072, except:
A. Preference shall be given to municipal leases;
B. No rent shall be set, but there shall be an annual municipal lease fee of not less than $1 per acre;
C. The municipality may establish the conditions and limits on the lease; and
D. The advice and consent of the advisory council shall not be required.
2-A. Decision. In evaluating a proposed municipal shellfish aquaculture permit, a municipal officer shall take into consideration the number and density of permits and leases in the area and may issue the permit if the municipal officer finds the proposed project meets the following criteria.
A. The permit conforms to the municipality's shellfish conservation program.
B. The permit will not cause the total area under the permit to exceed 1/4 of the entire municipal intertidal zone that is open to the taking of shellfish.
C. Issuing the permit is in the best interests of the municipality.
D. The permit will not unreasonably interfere with ingress and egress of riparian owners.
E. The permit will not unreasonably interfere with navigation.
F. The permit will not unreasonably interfere with fishing or other uses of the area. For purposes of this paragraph, "fishing" includes public access to a redeemable shellfish resource, as defined by the department, for the purpose of harvesting, provided that the resource is commercially significant and is subject to a pollution abatement plan that predates the permit application, that includes verifiable activities in the process of implementation and that is rea-sonably expected to result in the opening of the area to the taking of shellfish within 3 years.
G. The permit will not unreasonably interfere with significant wildlife habitat and marine habitat or with the ability of the site affected by the permit and surrounding marine and upland areas to support existing ecologically significant flora and fauna.
H. The applicant has demonstrated that there is an available source of organisms to be cultured for the site affected by the permit.
I. The permit does not unreasonably interfere with public use or enjoyment within 1,000 feet of a beach, park or docking facility owned by the Federal Government, the State Government or a municipal government or conserved lands. For purposes of this paragraph, "conserved lands" means land in which fee ownership has been acquired by the municipal government, State Government or Federal Government in order to protect the important ecological, recreational, scenic, cultural or historic attributes of that property.
A municipality shall review the Executive Department, State Planning Office's list of conserved lands compiled pursuant to section 6072, subsection 7-A, paragraph F prior to issuing a municipal shellfish aquaculture permit.
A municipality shall put its findings on each of the criteria listed in this subsection in writing and make those findings available to the public.
3. Municipal shellfish aquaculture permit. Prior to issuing a municipal shellfish aquaculture permit pursuant to this section, a municipality shall adopt ordinances that establish procedures for consideration of permit applications under the decision criteria in subsection 2-A, including but not limited to provisions for a public hearing process. An ordinance proposed by a municipality under this subsection must be approved in writing by the commissioner prior to its adoption.
When approved, a municipal shellfish aquaculture permit must be forwarded to the commissioner. The municipality may charge a municipal shellfish aquaculture permit fee not to exceed $50 per acre. The municipality may establish conditions and limits on the permit. A municipal shellfish aquaculture permit may be granted for a period of up to 10 years and is renewable upon application by the permittee. The municipality shall monitor and enforce the terms and conditions of a permit.
4. Renewals. A municipality shall give public notice for a municipal shellfish aquaculture permit renewal as required under subsection 1-A, and a hearing must be held if it is requested in writing by 5 or more persons. If a public hearing is required, it must be held in accordance with procedures established in an ordinance adopted under subsection 3. A renewal may be granted as long as the permit continues to meet the criteria of subsection 2-A. The findings of the municipality regarding the criteria in subsection 2-A must be in writing and made available to the public.
Sec. A-22. 12 MRSA §6674, as enacted by PL 1977, c. 661, §5, is amended to read:
§6674. Interference with municipal shellfish aquaculture permit
It shall be unlawful to interfere with the rights provided in a municipal lease or to A person may not knowingly interfere with the ability of a person who holds a municipal shellfish aquaculture permit from carrying out the privileges granted to the permittee under that permit. Except for the permittee, a person may not take shellfish by any means or disturb or molest any shellfish or area in the intertidal zone in an area that is included in a municipal lease shellfish aquaculture permit. A person who violates this section commits a civil violation for which a fine of not less than $100 nor more than $500 may be adjudged.
Sec. A-23. 38 MRSA §3, as amended by PL 1991, c. 685, §1 and c. 838, §16, is further amended to read:
In all harbors wherein channel lines have been established by the municipal officers, as provided in section 2, and in all other coastal and tidal waters, harbors and great ponds where mooring rights of individuals are claimed to be invaded and protection is sought of the harbor master, the harbor master shall assign and indicate only to the masters or owners of boats and vessels the location that they may occupy for mooring purposes and shall change the location of those moorings from time to time when the crowded condition of that harbor or great pond, the need to conform to section 7-A or other conditions render the change desirable.
Unless permitted by an ordinance adopted under section 3-A, mooring assignments may not be transferred. Assignments may not be rented unless the provision for rental was part of the agreement when the mooring was assigned.
Assignment of these mooring privileges does not confer any right, title or interest in submerged or intertidal lands owned by the State. To the extent that there is any inconsistency between this subchapter and any law which that establishes or otherwise provides for a port authority, board of harbor commissioners or similar authority for any coastal waters of the State, that inconsistency shall must be resolved in favor of this subchapter.
Whenever practicable, the harbor master shall assign mooring privileges in those waters where individuals own the shore rights to a parcel of land, are masters or owners of a boat or vessel and are complainants, and shall locate suitable mooring privileges therefor for boats and vessels, temporarily or permanently, as the case may be, fronting their land, if so requested, but not to encroach upon the natural channel or channels established by municipal officers; provided that not more than one mooring may be assigned to any shore-front shorefront parcel of land under this privilege. Notwithstanding section 11, persons who, prior to January 1, 1987, owned shore rights of at least 100 feet of frontage regardless of the size of the lot shall have mooring privileges assigned according to this section. The limitation of one mooring assigned under this privilege shall does not prevent the owner of a shore-front shorefront parcel from receiving additional mooring assignments under the allocation system for all other residents.
A harbor master may refuse to assign mooring privileges to any vessel or boat owner or master who has not paid any fee, charge for services, forfeiture or penalty levied pursuant to this subchapter.
Municipalities may not charge mooring fees for and do not have jurisdiction over the siting or specifications of structural moorings used to secure aquaculture equipment within the boundaries of a lease site when that site's lease is issued pursuant to Title 12, section 6072, 6072-A or 6072-B.
Municipalities have jurisdiction over boat and vessel moorings within the boundaries of a lease site when that site's lease is issued pursuant to Title 12, section 6072, 6072-A or 6072-B. A municipality may not charge a mooring fee for a boat or vessel within the boundaries of a lease that is inconsistent with that municipality's other mooring fees for commercial vessels.
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