Code of Maine Rules › 13 - DEPARTMENT OF MARINE RESOURCES › 188 - MARINE RESOURCES - GENERAL › Chapter 2 - AQUACULTURE LEASE REGULATIONS › Section 188-2-37 - Decision

Current through 2024-29, July 17, 2024
1. After review of the agency record, the
				Commissioner shall issue a written decision, complete with findings of fact and
				conclusions of law.
The Commissioner may grant an aquaculture lease if they are
				  satisfied that the proposed project meets the conditions outlined by 12
				  M.R.S.A. §
										6072 (7-A).
A. Standards: In making his decision the
				Commissioner shall consider the following with regard to each of the statutory
				criteria:
(1) Riparian Owners Ingress and
				Egress. The Commissioner shall examine whether the riparian owners can safely
				navigate to their shore. The Commissioner shall consider the type of shore
				involved and the type of vessel that can reasonably land on that shore. The
				Commissioner shall consider the type of structures proposed for the lease and
				their potential impact on the vessels which would need to maneuver around those
				structures.
(2) Navigation. The
				Commissioner shall examine whether any lease activities requiring surface and
				or subsurface structures would interfere with commercial or recreational
				navigation around the lease area. The Commissioner shall consider the current
				uses and different degrees of use of the navigational channels in the area in
				determining the impact of the lease operation. High tide "short cuts" shall not
				be considered navigational ways for the purposes of this section.
(3) Fishing. The Commissioner shall examine
				whether the lease activities would unreasonably interfere with commercial or
				recreational fishing or other water-related uses of the area. This examination
				shall consider such factors as the number of individuals that participate in
				recreational or commercial fishing, the amount and type of fishing gear
				utilized, the number of actual fishing days, and the amount of fisheries
				resources harvested from the area.
(4) Other Aquaculture Uses. The Commissioner
				shall consider any evidence submitted concerning other aquaculture uses of the
				area. The intensity and frequency of such uses as well as the degree of
				exclusivity required for each use shall be factors in the Commissioner's
				determination of whether any interference is unreasonable. The number, size,
				location, and type of other aquaculture leases shall be considered by the
				Commissioner.
(5) Existing System
				Support. The Commissioner shall consider the degree to which the use of the
				lease site will interfere with significant wildlife habitat and marine habitat
				or with the ability of the lease site and marine and upland areas to support
				ecologically significant flora and fauna. Such factors as the degree to which
				physical displacement of rooted or attached marine vegetation occurs, the
				amount of alteration of current flow, increased rates of sedimentation or
				sediment resuspension, and disruption of finfish migration shall be considered
				by the Commissioner in this determination.
(6) Source of Organisms to be Cultured. The
				Commissioner shall include but not be limited to, consideration of the source's
				biosecurity, sanitation, and applicable fish health practices.
(7) Interference with Public Facilities. The
				Commissioner shall consider the degree to which the lease interferes with
				public use or enjoyment within 1,000 feet of a beach, park, docking facility or
				certain conserved lands owned by the Federal Government, the State Government
				or a municipal government. Conserved lands means land in which fee ownership
				has been acquired by the state, federal or municipal government in order to
				protect the important ecological, recreational, scenic, cultural or historic
				attributes of that property. In determining interference with the public use or
				enjoyment of conserved lands, the Commissioner shall consider the purpose(s)
				for which the land has been acquired.
(8) Lighting
Applicability. These rules apply to all exterior lighting
				  used on buildings, equipment, and vessels permanently moored or routinely used
				  at all aquaculture facilities, with the exception of lighting for navigation,
				  emergencies, and construction of a temporary nature.
Exterior lighting. All exterior lighting shall be mounted in
				  cutoff fixtures. A cutoff fixture is one that projects no more than 2.5% of
				  light above the horizontal plane of the light fixture's lowest part. This does
				  not include spotlights or floodlights, which are addressed below.
All exterior lighting shall be designed, located, installed,
				  and directed in such a manner as to illuminate only the target area and to
				  reduce glare.
Exterior lighting shall be no more than 250 watts per
				  fixture, with the exception of required navigational lighting, spotlights and
				  floodlights.
When harvest schedules, feed schedules, or other similar
				  circumstances result in the need to work beyond daylight hours, spotlights or
				  floodlights may be used to ensure safe working conditions and safe vessel
				  operation. Such lighting shall be directed only at the work area to be
				  illuminated, and must be the minimum needed for safe operations.
If used, all husbandry lighting shall be submersible and
				  operated at all times below the water line, except during examination for
				  maintenance and repair.
When necessary, security lighting may be used, but shall
				  conform to the requirements for exterior lighting.
An applicant shall demonstrate that all reasonable measures
				  will be taken to mitigate light impacts from the lease activities.
No provision in these rules is intended to restrict vessel
				  lighting levels below what is necessary for safety or as is otherwise required
				  by state or federal law.
(9)
				Noise
Applicability. These rules apply to the routine operation of
				  all aquaculture facilities, including harvesting, feeding, and tending
				  equipment at leases authorized by the Department of Marine Resources, with the
				  following exemptions:
Watercraft, harvest or transport barges, and
					 maintenance equipment while underway;
												The unamplified human voice and other sounds of natural
					 origin;
												Bells, whistles, or other navigational aids;
												Emergency maintenance and repair of aquaculture
					 equipment;
												Warning signals and alarms; and
												Events not reasonably within the control of the
					 leaseholder.
Mitigation:
All motorized equipment used during routine operation at an
				  aquaculture facility must be designed or mitigated to reduce the sound level
				  produced to the maximum extent practical.
Centralized feeding barges, or feeding distribution systems,
				  shall be designed or mitigated to reduce noise by installing the most effective
				  commercially available baffles at air intakes and outlets, mounting of all
				  relevant equipment to minimize vibration between it and the hull, and using the
				  most effective commercially available soundproofing insulation.
All fixed noise sources shall be directed away from any
				  residences or areas of routine use on adjacent land.
An applicant shall demonstrate that all reasonable measures
				  will be taken to mitigate noise impacts from the lease activities.
(10) Visual Impact
Applicability. This rule applies to all equipment, buildings,
				  and watercraft used at an aquaculture facility, excluding watercraft not
				  permanently moored or routinely used at a lease location such as harvest or
				  feed delivery vessels. Other equipment or vessels not moored within the
				  boundaries of a lease, but routinely used or owned by the leaseholder are
				  subject to these requirements.
Building profiles. The size, height, and mass of buildings
				  and equipment used at aquaculture facilities shall be constructed so as to
				  minimize the visual impact as viewed from the water.
Height limitations. All buildings, vessels, barges, and
				  structures shall be no more than one story and no more that 20 feet in height
				  from the water line. Height shall be measured from waterline to the top of the
				  roof or highest fixed part of the structure or vessel. This height limitation
				  excludes antennae, cranes, and other similar auxiliary equipment. Structures
				  that exist as of April 1, 2018 are exempted from the height restriction for
				  their useful lifetime.
Roof & siding materials. Roofing and siding materials
				  shall not be reflective or glossy in appearance or composition.
Color. Equipment and structures shall be painted, or be of, a
				  color that does not contrast with the surrounding area. Acceptable hues are
				  grays, blacks, browns, blues, and greens that have a sufficiently low value, or
				  darkness, so as to blend in with the surrounding area. Colors shall be flat,
				  not reflective, in appearance.
The color of equipment, such as buoys, shall not compromise
				  safe navigation or conflict with US Coast Guard Aids to Private Navigation
				  standards.