ENV-41-10-00003-A Sanitary Condition of Shellfish Lands
1/19/11 N.Y. St. Reg. ENV-41-10-00003-A
NEW YORK STATE REGISTER
VOLUME XXXIII, ISSUE 3
January 19, 2011
RULE MAKING ACTIVITIES
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
NOTICE OF ADOPTION
I.D No. ENV-41-10-00003-A
Filing No. 4
Filing Date. Jan. 03, 2011
Effective Date. Jan. 19, 2011
Sanitary Condition of Shellfish Lands
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of Part 41 of Title 6 NYCRR.
Statutory authority:
Environmental Conservation Law, sections 13-0307 and 13-0319
Subject:
Sanitary Condition of Shellfish Lands.
Purpose:
To reclassify underwater lands to prohibit the harvest of shellfish.
Text of final rule:
6 NYCRR Part 41, Sanitary Condition of Shellfish Lands, is amended to read as follows:
Section 41.0 through clause 41.2(b)(1)(ii)('f') remain unchanged.
New Clauses 41.2(b)(1)(ii)('g') and 41.2(b)(1)(ii)('h') are adopted to read as follows:
('g') During the period May 15-September 30, both dates inclusive, all that area of East Bay, Hempstead Bay, and all other bays creeks and tributaries south of a line running southeasterly of the easternmost point of land at Fighting Island (west side of Merrick Bay) to the northernmost point of land at False Channel Meadow; continuing southeasterly to the northernmost point of land at Ned's Meadow; continuing southeasterly to the northernmost point of land at Ball Island; continuing southeasterly across Broad Creek Channel to the northernmost point of land at Cuba Island; continuing southeasterly to the northwesternmost point of land at East Island; west of a line running south from the northwesternmost point of East Island along the western shoreline of Middle Island to the northwestern most point of Deep Creek Meadow; and north of a line from the northwestern most point of Deep Creek Meadow over Sloop Channel running along the northern shoreline of East Crow Island to the Northern Shoreline of Middle Crow Island; and along the northern shoreline of West Crow Island to the southwestern end of the Fundy Channel Bridge of the Meadowbrook State Parkway; and East of a line running north from the southwestern tip of the Fundy Channel Bridge along the eastern shoreline of Pettit Marsh (Pettit Island) and Great Sand Creek; and along the Eastern Shoreline of False Channel to the easternmost point of land at Fighting Island.
('h') During the period December 1 - February 28, both days inclusive, all that area of East Bay, Hempstead Bay, and all other bays creeks and tributaries south of a line running southeasterly from the northwestern most point of East Island along the northern shoreline of East Island; to the northeasternmost point of land at East Island; continuing southeasterly to the southernmost point of land at Low Island at the northwestern base of the Goose Creek Bascule Bridge; continuing southerly across Goose Creek along the western side of said bascule bridge (Wantagh State Parkway-Jones Beach Causeway); to Green Island and running southerly along the western coast of Green Island to the southeasternmost point of the Sloop Channel Bridge; to the Eastern Shore of Sripe Island; running north along the northern coast of Sripe Island over the channel to the northern coast of Deep Creek Meadow to the northwesternost point and; east of a line running northerly from the northwesternmost point at Deep Creek Meadow to the southern tip of Middle Island; and north along the western coast of Middle Island to the northwestern most tip of East Island.
Subparagraph 41.2(b)(1)(iii) through clause 41.3(b)(2)(i)('c') remain unchanged.
Existing clauses 41.3 (b)(2)(i)('d') through 41.3(b)(2)(i)('m') are renumbered to 41.3(b)(2)(i)('e') through 41.3(b)(2)(i)('n').
New clause 41.3(b)(2)(i)('d') is adopted to read as follows:
('d') All that area of Nicoll Bay lying within a 500 foot radius of the southernmost tip of the pier on the western side of Homan Creek at the Town of Islip's Bayport Beach.
Renumbered clauses 41.3(b)(2)(i)('e') through 41.3(b)(2)(i)('n') remain unchanged.
Subparagraphs 41.3(b)(2)(ii) through 41.3(b)(5)(iii) remain unchanged.
Existing clauses 41.3(b)(5)(iv)('a') and ('b') are repealed.
New clauses 41.3(b)(5)(iv)('a') and ('b') are adopted to read as follows:
('a') During the period May 1st through November 30th (both dates inclusive), all that area of Three Mile Harbor within a 500 foot radius in all directions of the entrance to the East Hampton Point Marina (located on the eastern shoreline at 295 Three Mile Harbor Road) and extending across the entrance into the Maidstone Harbor/Maidstone Marina Boat Basin, locally known as Duck Creek, located approximately 50 feet north of the East Hampton Point Marina.
('b') All that area of the Maidstone Harbor/Maidstone Marina Boat Basin, locally known as Duck Creek, lying east of a line extending northerly from the landward end of the northern wave break wall of the East Hampton Point Marina, including the entrance leading into the harbor.
Existing clauses 41.3(b)(5)(iv)('c') and ('d') are renumbered 41.3(b)(5)(iv)('g') and ('h').
New clauses 41.3(b)(5)(iv)('c'), ('d'), ('e'), and ('f') are adopted to read as follows:
('c') During the period from May 1st through November 30th (both dates inclusive), all that area of Three Mile Harbor within a 500 foot radius in all directions of the entrance to Shagwong Marina (local name), located on the eastern shoreline of Three Mile Harbor Road.
('d') During the period from May 1st through November 30th (both dates inclusive), all that area of Three Mile Harbor and tributaries lying southeast of a line extending northeasterly from the northeasternmost point of land on the peninsula located at the western side of the entrance into "Head of the Harbor" (local name), at the southern end of Three Mile Harbor and continuing to the western terminus of Breeze Hill Road, and lying north of a line extending northeasterly from the northernmost corner of the residence located at South Pond Road on the western shoreline, to the northern side of the entrance of an unnamed creek on the opposite eastern shoreline (the entrance to this creek is located approximately 350 feet northwest of the entrance to Gardiner's Marina).
('e') All that area of "Head of the Harbor" (local name) at the southern end of Three Mile Harbor, lying south of a line extending northeasterly from the northernmost corner of the residence located at 5 South Pond road on the western shoreline, to the northern side of entrance of an unnamed creek on the opposite eastern shoreline (the entrance to this creek is located approximately 350 feet northwest of the entrance to Gardiner's Marina).
('f') During the period May 1st through November 30th (both dates inclusive), all that area of Hands Creek, including tributaries and all that area within a 500 foot radial closure in all directions of the entrance to Hands Creek.
Renumbered clauses 41.3(b)(5)(iv)('g') and ('h') remain unchanged.
Existing clause 41.3(b)(5)(v)('a') is amended to read as follows:
('a') During the period [April 1st through December 14th] May 1st through November 30th (both dates inclusive), all that area of Hog Creek, including tributaries, lying easterly of a line extending southeasterly from the flagpole (located near the east side of the entrance to Hog Creek) on the property of the Clearwater Beach Property Owners Association, Inc. (local landmarks, local name) to the western end of the dock serving the residence at No. 152 Water Hole Road (local landmark, local name).
New clauses 41.3(b)(5)(v)('c') and ('d') are adopted to read as follows:
('c') All that area of Hog Creek lying south of a line extending easterly from the highest point of the white center peak of the residence located at 59 Isle of Wight Road to the red brick chimney on the north facing side of the residence located at 50 Fenmarsh Road on the opposite shoreline.
('d') During the period May 1st through November 30th (both dates inclusive), all that area of Hog Creek lying north of a line extending easterly from the highest point of the white center peak of the residence located at 59 Isle of Wight Road to the red brick chimney on the north facing side of the residence located at 50 Fenmarsh Road on the opposite shoreline, and lying south of a line extending easterly from the highest point of the center peak of the grey residence located at 99 Isle of Wight Road to the northerly corner of the whitish-grey, hexagon shaped residence located at 120 Fenmarsh Road on the opposite shoreline.
Existing subparagraphs 41.3 (b)(5)('vi') through 41.3(b)(7)(xi)('d') remain unchanged.
New clause 41.3(b)(7)(xi)('e') is adopted to read as follows:
('e') West Creek. During the period of May 1 through November 30, all that area of West Creek including all that area of Great Peconic Bay within 750 feet in all directions of the southernmost point of the jetty on the east side of the mouth of West Creek.
Existing subparagraph 41.3(b)(7)(xii) through section 41.5 remain unchanged.
Final rule as compared with last published rule:
Nonsubstantive changes were made in sections 41.2 and 41.3.
Text of rule and any required statements and analyses may be obtained from:
Gina Fanelli, NYSDEC, 250 N. Belle Meade Rd., East Setauket, NY 11733, (631) 444-0482, email: gmfanell@gw.dec.state.ny.us
Additional matter required by statute:
Pursuant to the State Environmental Quality Review Act, a Negative Declaration is on file with the Department of Environmental Conservation.
Revised Regulatory Impact Statement
This statement explains why a revised Regulatory Impact Statement is not required to accompany this Notice of Adoption. Nonsubstantive changes were made to text of the proposed rule to correct typographical and grammatical errors. The words “to” and “and” were added where they were unintentionally omitted. The date of February 31 was changed to February 28.
Revised Regulatory Flexibility Analysis
This statement explains why a revised Regulatory Flexibility Analysis is not required to accompany this Notice of Adoption. Nonsubstantive changes were made to text of the proposed rule to correct typographical and grammatical errors. The words “to” and “and” were added where they were unintentionally omitted. The date of February 31 was changed to February 28.
Revised Rural Area Flexibility Analysis
This statement explains why a revised Rural Area Flexibility Analysis is not required to accompany this Notice of Adoption. Amendments to Part 41 will not impose an adverse impact on rural areas. Only the State’s marine district will be directly affected by regulatory initiatives to open or close shellfish lands. The Department of Environmental Conservation (DEC) has determined that there are no rural areas within the marine district, and no shellfish lands within the marine district are located adjacent to any rural areas of the State. The proposed regulations will not impose reporting, record keeping, or other compliance requirements on public or private entities in rural areas. Since no rural areas will be affected by amendments of Part 41 "Sanitary Condition of Shellfish Lands" of Title 6 NYCRR, the DEC has determined that a Rural Area Flexibility Analysis is not required.
Revised Job Impact Statement
This statement explains why a revised Job Impact Statement is not required to accompany this Notice of Adoption. Nonsubstantive changes were made to text of the proposed rule to correct typographical and grammatical errors. The words “to” and “and” were added where they were unintentionally omitted. The date of February 31 was changed to February 28.
Assessment of Public Comment
The New York State Department of Environmental Conservation (DEC or department) is proposing to amend 6 NYCRR Part 41, "Sanitary Condition of Shellfish Lands" to reclassify areas that were originally designated as certified or seasonally certified for the harvest of shellfish to seasonally uncertified or uncertified year-round. The reclassifications are based on evaluations of water quality data and the determination that the affected areas do not meet the bacteriological standards for certified shellfish lands during all or part of the year.
Several comments were received from one municipality.
1. Comment: The department will make no further changes to the classification of areas within that commenter's particular town of residence "…until after the next three year cycle of data collection was complete…" in 2013.
Department's response: Bacteriological data are collected regularly as part of Environmental Conservation Law statutorily mandated sanitary surveys of shellfish lands in the marine district of the State. The department reviews the data on an annual basis. If an annual review indicates that water quality in an area has improved, then a new comprehensive analysis of water quality data can be performed to determine if areas meet the bacteriological criteria to support upgrading the classification of areas which were downgraded by the rule making.
2. Comment: The department used data from as long ago as 1997 to evaluate water quality for the cold weather portion of the year.
Department's response: In compliance with requirements of the National Shellfish Sanitation Program (NSSP) and maintaining statistical validity, analyses of bacteriological data to evaluate water quality in an area must include at least 30 data points for the sampling stations in the area being evaluated. When the evaluation of the data is for only a limited portion of the year, for example November through April, then several more years worth of data are required to provide 30 data points. As new data are added, older data are dropped out of the analyses.
3. Comment: It was noted that although water quality had declined, as stated in a DEC water quality evaluation report, no new pollution sources were observed in the area since 2006.
Department's response: Water quality is often affected by both direct and indirect non-point source runoff. Some sources that generate intermittent non-point runoff, particularly indirect sources, may not be readily observed while others may be hidden and not observed. Systematic random sampling is used to monitor water quality in areas affected by non-point sources. It is possible that changes to existing pollution sources, the introduction of new, hidden sources or other factors could have caused the level of fecal coliform bacteria in an area to increase above the acceptable level for certified shellfish harvesting areas. Additionally, runoff caused by rainfall can vary from year to year which will affect the results of bacteriological examinations of water samples. If sampling happens to be done shortly after rainfall events in a particular year, as can happen with randomly scheduled sampling, then elevated fecal coliform levels may be detected in those samples.
4. Comment: It does not seem appropriate for the department to use fecal coliform data "by default" to evaluate water quality.
Department's response: In 2003, the department's microbiology laboratory switched to a method for detecting coliform bacteria in water samples that yields results within 24 hours. That method only detects fecal coliform bacteria in samples, therefore, evaluations of water quality in shellfish harvesting areas must be based on that fecal coliform data. The NSSP accepts that method for detecting fecal coliform bacteria and has determined that the total and fecal coliform standards for classifying shellfish harvesting areas provide equivalent public health protection. The U.S. Food and Drug Administration has evaluated the department's growing area classification and microbiology laboratory programs and found them to be in compliance with the requirements of the NSSP.
5. Comment: The department keeps areas within a marina seasonally uncertified for the harvest of shellfish during the summer months, even though "water quality is better."
Department's response: The NSSP requires that all areas within marinas with more than 10 boats be classified as uncertified (closed) for the harvest of shellfish when the boats are present, which is during the late spring, summer and early autumn months. Marine sanitation devices on boats are potential, direct sources of fecal material located in very close proximity to shellfish harvesting areas. The intermittent or occasional discharges that can come from boats in marinas or mooring areas are not readily detected by systematic random sampling which is conducted approximately every 60 days during those months when boats are present in marinas.
6. Comment: It may not be valid for the department to use data analyses that included fecal coliform data that the commenter characterized as "outliers" (elevated fecal coliform levels in a few water samples following heavy rainfall and runoff) to evaluate water quality in an area.
Department's response: The water quality data included in the analyses for the area in question was collected using systematic random sampling. Sampling is scheduled as much as eight (8) weeks before samples are collected in an area, with no knowledge of the rainfall-runoff conditions that may affect water quality in an area when the samples are collected. To be classified as certified, water quality in an area must meet the NSSP and New York State fecal coliform standards specified in the departments regulations. Water quality in an area, as measured by fecal coliform levels in samples, must meet those standards under typical post-rainfall/runoff conditions. Variability in water quality in a harvest area that exceeds the inherent variability of the bacteriological method used to examine water samples is an indication that the area has excessively variable water quality, under typical post-rainfall conditions, that is not consistent with the safe harvest of shellfish for direct human consumption.
7. Comment: In addition to imposing additional restrictions on shellfishing in Three Mile Harbor and Hog Creek, the department has not implemented conditional shellfish harvesting programs and commercial harvesters have suffered economic losses.
Department's response: Decisions regarding the classification of shellfishing areas as certified or uncertified that are based on the analyses of fecal coliform data are made independently from the department's operation of conditional harvesting programs within towns. The total acreage for which classifications were downgraded in the two areas of concern to the commenter is approximately 3.1 percent (57 acres) of the total certified area (2,655 Acres) within the commenter's town. Approximately 14 acres, or 25 percent, of the total of reclassified acres will be available to commercial harvesters (baymen) during several months of the year. Annual shellfish landings data reported to the department by wholesale shellfish shippers, for a large reporting area that includes Three Mile Harbor and Hog Creek, indicate that 167 bushels of shellfish (hard clams, soft clams and oysters) were harvested in 2008 and 275 bushels of shellfish (hard clams, soft clams and oysters) were harvested in 2009, for an average of about 3 bushels per week in 2008 and about 5 bushes per week in 2009 for the entire, larger reporting area.
8. Comment: Shellfish seeding programs which have been in place for years are now at risk due to inconsistent and outdated data.
Department's response: The department does not agree that shellfish seeding programs are at risk. Seeding programs operated by an agency in the commenter's town have not been placing juvenile (seed) shellfish in the areas affected by the reclassifications. With the foreknowledge that the areas are now designated as uncertified either year-round or during a part of the year, that agency can avoid placing juvenile shellfish in those areas. The department does not agree that the data are inconsistent and outdated. The water quality data have been collected using the same sample planning method since 1997 and the NSSP requires that at least 30 data points must be included in the data set to generate statistically acceptable data analyses.
