---------------------------------------------
Notes from Aquaculture Task Force Stakeholder Advisory Panel meeting of October 2, 2003
(The Stakeholder Advisory Panel met October 2nd to develop a joint
statement on noise and lights which they will give to the task force
Notes on Stakeholder Advisory Panel (SAP) Meeting Hutchinson Center, Belmont Avenue, Belfast, Maine October 2, 2003
The Stakeholders Advisory Panel (SAP) met in Belfast for two hours on Friday, October 2, 2003 to discuss the Task Force's request for input on DMR proposals concerning (1) noise; (2) lighting; and (3) structures on marine lease sites. Present at the meeting were the following SAP members: Rob Bauer, David Turner, Dave Schmanska, Sebastian Belle, Chris Hamilton, Carolyn Manson, Erick Swanson, Eric Horne, and Roger Fleming (by telephone hook-up). An observer, Mike Hastings of MAIC, was invited to take meeting notes
(1) Noise
David Turner stated that members of the commercial fishing industry are concerned about the prospect of regulation of noise. This may make it difficult for the state to regulate noise levels at aquaculture lease sites. Should the Task Force consider the fishing industry's concern about regulation of noise? On this question there was no consensus. Some stakeholders said that this should not be the task Force's concern because the legislature has already passed the law setting a standard regulating noise from aquaculture facilities, and is requiring a rule to quantify the level of permissible impact; others stressed that the Task Force would need to face the reality of widespread fishing industry opposition to "creeping" state regulation of noise. . In response, it was pointed out aquaculture facilities are easy to distinguish from commercial fishing vessels.
David Turner stated his view that the 45-decibel level is too low. "Routine levels of noise on the Eastport breakwater or on the piers in Rockland exceed this level." "Our conversation in this conference room exceeds 45." In response to a Chris Hamilton question, Sebastian Belle agreed that industry has the technical capacity to meet the standard proposed by DMR, although he agreed with David turner that 45 decibels was too low. However, he also emphasized that the industry would not want to be the only marine user group to whom noise regulations applied. Chris Hamilton stressed his organization's view that in some areas no noise at all should be generated by the aquaculture industry. Roger agreed and suggested that may be the case in particularly wild areas, for example.
Roger noted that the suggested level is consistent with information from a consultant he works with that the L90 level for quiet (low wind) conditions by the shore is typically about 35 dBA which is also considered a good level for nighttime/sleeping. Day time levels of about 45 dBA would normally not arouse any concern, except possibly with some wildlife, provided the noise did not have annoying characteristics.
Dave Schmanska expressed the view that limitations on noise should be set by the DMR Commissioner on a "case by case," i.e. lease-by-lease, basis. Eric Swanson agreed, but he went on to say that island owners also make noise. In Swanson's view, aquaculture sites should not be held to higher standards than island owners who use generators. Eric Horne asked Sebastian Belle if noise standards would be included in the aquaculture industry's Code of Practice document. Belle replied that noise standards would be included, but that they would not include numerical limits. Belle further questioned whether industry self-enforcement would satisfy all segments of the public.
There was further discussion of enforcement. Carolyn Manson raised the possibility that site leases could be revoked if leaseholders exceeded the established noise standards. Rob Bauer noted that a number of Maine communities are attempting to ban the use of "Jake" breaks within heavily populated areas. Sebastian Belle noted that DMR was increasingly writing regulations to limit their litigative liability. Dave Schmanska expressed his view that DMR lacks the people to effectively enforce new regulations dealing with noise. He also asked if DMR has the authority to revoke the lease. There was consensus that DMR, in the past, has avoided outright revocation in favor of the leaseholder taking actions to bring itself into compliance with regulations or lease restrictions.
Stakeholders discussed the possibility of requiring marine lease applicants to include noise mitigation plans in their applications. Rob Bauer referred to this as a "HACCP approach" to the noise problem. "Noise is a hazard and you have to present acceptable plans to mitigate hazards." Sebastian Belle said that while it would be reasonable for DMR to require a noise mitigation statement (as part of a lease application), DMR should not force applicants to hire expensive consultants to write such statements. "Ultimately, all enforcement will be complaint driven." Eric Horne said that he favored the use of noise mitigation plans over the establishment in regulation of an absolute level of noise that could not be exceeded.
Roger Fleming asked: "Does machinery that generates noise on an aquaculture site need to be operated 24 hrs a day? Could hours of operation be established?" Sebastian Belle responded by noting that each farm is different and that farms have not been able to agree on "hours of operation" that could apply across-the-board.
[David Turner said that the noise issue appears to be very important in Blue Hill Bay. "I can't speak to the issue of background noise in Blue Hill Bay because I didn't go on the boat trip." Stakeholders generally agreed that they should have been included on the boat trip so that they would be working from a similar understanding of local circumstances.]
The Stakeholders agreed to convey the following comments to the Task Force on the subject of noise regulation:
a. The SAP recognizes that DMR has a statutory obligation to quantify a noise standard and wishes to avoid litigation on this subject. However, in deference to concerns expressed by the commercial fishing industry, the SAP is unable to recommend a decibel figure that represents a reasonable level of background noise.
[Roger Comment - you can rephrase the comment if you want, but as far as CLF/Enviros are concerned, 45 dB is a reasonable maximum level of daytime noise for any facility, but lower levels of permissible noise (including none at all) should be specifically required on a case-by-case basis. This could be easily done in rule by setting 45 dB as the max. and giving the Commissioner the discretion to set lower levels based on the record of the lease hearing. It would also be a good idea, from our perspective, to set a lower nighttime standard of 35 dB. I note that in the future, it may be possible through planning to designate areas where less or more noise is permissible.]
b. The aquaculture industry has the technical capacity (using mufflers, insulation, structures, etc.) to comply with the standard of 45 decibels proposed by DMR, but wishes to be treated like other marine users.
c. The SAP recommends that a Noise Mitigation Plan should be included as part of an aquaculture lease application.
d. The SAP recommends that DMR establish a maximum decibel level only as part of a comprehensive noise policy, applicable to all marine resource users (this has now been struck)
[Disagreement with statement by Roger Fleming - [I completely disagree with this [above] statement and do not recall this being discussed at all. Must be I was wrestling with a barking dog or something. As is stated above, it is easy to distinguish this industry (b/c it leases public trust resources and is a stationary source, etc.) and the legislature has already spoken on the issue, anyway. I reiterate my statement from the call that we have no interest in trying to regulate noise in the commercial fishing industry (or other mobile sources).]
(2) Lighting
The discussion began with general comments on the need for (a) husbandry lighting and (b) operational lighting. Sebastian Belle explained the reasons why growers use husbandry lighting. He urged the SAP not to preclude the use of lighting for husbandry purposes. Chris Hamilton said: "This may not be a big issue if the lights are below the water and are domed." Roger Fleming suggested that the effect of underwater lighting on other plants and animals needs to be considered. Chris Hamilton said he would like to visit a site using underwater husbandry lighting so he can assess first-hand the impact. Others agreed that such a visit might be productive. Rob Bauer asked if husbandry lighting could be limited to certain times of the year.
Lighting affects safety. SAP members stressed that Coast Guard requirements relating to safety have to be considered. Worker safety must be paramount.
Does the 250-watt limitation apply to the whole site or to each point of light? The SAP understands the limitation to be at each light point source. i.e. it is not cumulative. Sebastian Belle said that spotlights and floodlights are both necessary from time to time and should not be prohibited. Other light standards should be established to minimize the visual impact of light use.
Members of the SAP expressed concern about the use of the word "glare" in the proposed policy documents. The term is subjective at best.
Erick Swanson explained that lighting is especially important when harvesting occurs at night. This sometimes happens because "that is when the boat shows up." Eric Horne asked Dave Turner if OSHA regulations cover deck lights on draggers. Turner responded by saying that Coast Guard regulations apply on board draggers [?? - my notes are not clear on this] "Coast Guard does not require deck lights, but if a vessel has them, the Coast Guard does require that they work." Turner said that some draggers use very high wattage halogen lamps on deck.
The Stakeholders agreed to convey the following comments to the Task Force on the subject of lighting regulation:
a. The SAP suggests that the phrase "prevent glare" should be changed to "reduce glare." b. The SAP suggests the addition of an exclusion to allow for compliance related to safety standards. c. The SAP recommends that a Lighting Mitigation Plan should be included as part of an aquaculture lease application.
[Roger Comment - since it is my understanding that husbandry lighting is not used now, and that the effects of its use on flora and fauna are not known (at least by any of us), that husbandry lighting be prohibited unless specifically authorized at a lease site by the commissioner after opportunity for public comment and his making a finding that their use will no unreasonably interfere with ecologically significant flora and fauna. This could easily be done with new applications as part of the lease application process.]
(3) Structures
[ Roger: I thought Chris H[amilton]. suggested that the point of view should include not just from the water, but also from the land? If so, I agree with him.
[Roger Fleming:]The SAP discussion regarding structures focused on the 20' height limitation, whether vessels frequently moored at the site should be covered or excluded, and whether existing structures that do not meet the standard will be "grandfathered" when and if current leases are renewed.
Does a structure have to be 20' high? Erick Swanson said that 20 feet is necessary to use a forklift effectively on a net pen site.
It may be worth noting that no one seemed to know the basis for the 20 foot high standard. My understanding is that Erick 's is the only site with a building that is 20 feet high? If so, then it seems many sites can get by with something smaller?
I also thought we discussed recommending a mitigation plan similar to Eric's recommendation on noise? ]
A lengthy discussion ensued concerning vessels that might be moored at a site for an extended period of time. Are these vessels covered structures/equipment, or exempt vessels? After comments all around, the SAP agreed that it should be fairly easy for a regulator to determine whether a vessel was being used to skirt the structure regulations. Sebastian Belle expressed the hope that all SAP members would, at the very least, assume "good faith" on the part of growers operating under the new rules.
Will existing two-story structures be permitted to remain if lease renewals are granted? Sebastian Belle said that some of the structures in use were built recently, "If farmers are forced to discontinue the use of these buildings at lease renewal time, significant economic hardship mould result." Chris Hamilton or Roger Fleming (?) suggested that dilapidated structures be replaced by new structures that comply with the regulations, or that all existing structures be replaced with compliant buildings within a "reasonable"(?) period of time. The SAP came to no definitive conclusion on these options.
The meeting adjourned at 11:30 AM.