[HISTORY: Adopted by the Town Board of the
Town of Babylon, 12-9-1969;[1] amended in its entirety 9-3-1980 by Res. No. 10. Subsequent
amendments noted where applicable.]
For the purpose of this chapter, the following
words and phrases shall have the meanings indicated:
An area designated by the New York State Department of Environmental
Conservation to be in such sanitary condition that shellfish therein
may be taken for use as food.
The disturbance of bottom soil by use of an outboard motor.
[Amended 5-3-1983 by Res. No. 3]
Endorsement on a commercial shellfish permit enabling only
the holders of said endorsement to engage in the activity of harvesting
hard clams (Mercenaria mercenaria) from Town lands under water, for
purposes not limited to personal or family use.
[Added 1-20-2010 by L.L. No. 2-2010; amended 9-18-2012 by L.L. No.
12-2012]
A permit issued to persons to take shellfish, except hard
clams (Mercenaria mercenaria), from Town lands under water for purposes
not limited to the personal or family use of such person in quantities
of 100 or more per day.
[Amended 1-20-2010 by L.L. No. 2-2010]
Spouse, sibling, parent, child, grandparent, grandchild,
and, if domiciled in the house of a Great South Bay commercial hard
clam harvester, all persons who are related by blood, marriage, or
adoption to the Great South Bay commercial hard clam harvester.
[Added 9-18-2012 by L.L. No. 12-2012]
An area set aside by the Town Board for the conservation,
preservation, protection, rehabilitation, seeding and/or growth of
shellfish.
The period between sunset and sunrise.
A permit issued to persons to take shellfish from Town lands
under water for the personal or family use of such person in quantities
of 100 or less per day.
[Amended 1-20-2010 by L.L. No. 2-2010]
A person who has his or her principal place of residence
in the Town of Babylon for at least six months prior to the date of
the submission of a permit application.
Includes all types and varieties of oysters (Crassostrea
virginica), mussels, scallops, (Pectin irradians), hard clams (Mercenaria
mercenaria), soft clams (Mya arenaria) and any combination thereof.
Includes the actual removal of shellfish from Town lands
under water and/or the area above Town lands under water and all lesser
acts such as attempting to remove shellfish, disturbing shellfish
and using any implement or device to remove shellfish, regardless
of whether such acts result in the removal of shellfish.
Includes all land under water in and owned by the Town of
Babylon.
An area designated by the New York State Department of Environmental
Conservation not to be in such sanitary condition that shellfish therein
may be taken for use as food.
No person shall take shellfish from Town lands
under water unless such person has obtained a permit therefor as prescribed
by this chapter.
A.
Residents of the Town of Islip who have duly obtained
a permit for the taking of shellfish from lands under water in and
owned by the Town of Islip in accordance with the Town of Islip Shellfish
Law may take shellfish from Town lands under water which have not
been designated by the Town board as open only to residents of the
Town of Babylon.
B.
Residents of the Town of Islip desiring to avail themselves
of the privileges hereinbefore stated shall display evidence of the
permit issued to them by the Town of Islip in a conspicuous place
either upon their person or the vessel used in taking.
[Amended 1-20-2010 by L.L. No. 2-2010; 9-18-2012 by L.L. No. 12-2012]
A.
Personal
permit. A personal permit shall allow the person to whom it is issued
to take shellfish from Town lands under water for the personal or
family use of such person only.
B.
Commercial
permit. A commercial permit shall allow the person to whom it is issued
to take shellfish, except hard clams (Mercenaria mercenaria), from
Town lands under water for purposes not limited to the personal or
family use of such person.
C.
Commercial
permit hard clam endorsement. A hard clam endorsement shall allow
the person to whom it is issued to harvest hard clams (Mercenaria
mercenaria) in addition to other shellfish from Town lands under water
for purposes not limited to the personal or family use of such person.
A person in possession of a commercial permit hard clam endorsement
shall harvest no more than 2,000 hard clams per day from Town lands
under water.
The Town Clerk shall not issue more than one
type of permit to any person; nor shall the Town Clerk issue a personal
permit to any person holding a New York State commercial permit.
[Amended 1-20-2010 by L.L. No. 2-2010; 9-18-2012 by L.L. No. 12-2012]
A.
Permits shall be issued to residents only.
B.
Each permit application shall be made in duplicate in writing on
the form prescribed by the Town Clerk and shall include the applicant's
name, residence, mailing address, date of birth, weight, height, color
of hair and eyes, signature and all other information requested by
the Town Clerk.
C.
An application for a permit for a person under the age of 17 years
shall be cosigned by that person's parent or guardian.
D.
Prior to the issuance of a permit, the Town Clerk shall be satisfied
as to the identification and residence of the applicant.
F.
Each commercial permit application shall be accompanied by the applicant's
New York State Department of Environmental Conservation permit.
G.
Each commercial permit application shall be accompanied by two full-face
photos of the applicant taken within two months prior to the application
date.
H.
Each permit shall be in the form prescribed by the Town Clerk and
shall contain the matters set forth upon the application.
I.
The original application shall be filed in the Town Clerk's office,
and the duplicate application shall be filed in the Environmental
Control Office.
J.
A commercial hard clam endorsement requires that the individual applying
for said endorsement has a current New York State shellfish permit
and a Town commercial shellfish permit.
(1)
The number of commercial hard clam endorsements issued by the Town
Clerk in any one year shall be limited to 27. The number of available
commercial hard clam endorsements issued by the Town in any one year
may be adjusted to reflect changes in the health of the hard clam
population based on the results of the most recent population surveys
and harvest statistics available for town waters, and set, on a yearly
basis, by Town Board resolution and proper publication of notice thereof.
(2)
Any individual interested in obtaining a commercial hard clam endorsement
shall have from January 1 until February 14 to make themselves known
to the Town of Babylon Department of Environmental Control. Those
individuals shall be classified in to three categories:
(a)
Category 1: Those individuals having held a commercial hard
clam endorsement in good standing in 2011 shall be issued an endorsement.
(b)
Category 2: Those individuals who did not hold a commercial
hard clam endorsement in 2011 but who meet one of the following criteria
will be issued an endorsement upon showing documentation that they
meet at least one of the following criteria, even if the number of
approved applications is greater than the annual cap:
[1]
The individual can document that he or she has held a commercial
shellfish harvester permit during any five consecutive years while
maintaining residency in the Townships of Babylon, Brookhaven or Islip;
or
[2]
The individual was eligible for but unable to obtain an endorsement
due to active duty military service; or
[3]
The individual is able to clearly and unambiguously demonstrate
the historical and current presence of immediate family members engaged
in the commercial clamming fishery in the Great South Bay and the
individual is at least 16 years old at the time of application; or
[4]
The individual can clearly and unambiguously demonstrate an
investment in the equipment necessary for participation in the commercial
clam fishery in the Great South Bay and the possession of a currently
valid New York State shellfish diggers permit and the possession of
same in at least three years previous to 2012; or
[5]
The individual can document that he or she is age 62 or older
at the time of application.
(c)
Category 3: Those individuals who do not fall in to either of
the above two categories and who have expressed an interest in obtaining
a commercial hard clam endorsement in the coming year shall be placed
on a waiting list. If, by the end of the annual renewal period, there
are sufficient commercial hard clam endorsements remaining under the
cap, all individuals in Category 3 shall receive an endorsement. If
the number of individuals in Category 3 is greater than the number
of endorsements available under the annual cap, then endorsements
shall be awarded by random lottery.
A person to whom a permit has been issued shall
not transfer, assign or allow any other person to use the permit.
A person engaged in taking shellfish from Town
lands under water shall locate his permit so that it shall be prominently
displayed and clearly visible.
A.
A commercial permit shall be valid from the date of issuance and, unless sooner voided, suspended or revoked in accordance with § 183-30, shall expire on the 31st day of December next ensuing.
[Amended 1-20-2010 by L.L. No. 2-2010]
B.
A permit shall expire if the person to whom it is
issued ceases to be a resident.
C.
Each personal permit shall expire on December 31 of
the year of issuance.
A.
Oysters and mussels. Oysters and mussels shall be
taken from Town lands under water by means of tongs or rakes without
mechanical power.
B.
Hard clams. No implement or device shall be used in
taking hard shell clams from Town lands under water except:
C.
Soft clams. Soft clams may be taken only by implements
commonly known as "shovels," "forks" and "hoes," except that churning
shall be permitted on lands below low tide.
[Amended 1-6-1981 by Res. No. 19]
D.
Wire netting. No wire netting or other substance shall
be used in the basket of any implement used to take hard clams.
E.
Dredge. No person shall use any type of dredge to
take shellfish from Town land under water except as provided herein.
F.
Bay scallops. Bay scallops may be taken with a dredge
or scrape having an opening at the mouth not to exceed 36 inches in
width when towed by a boat operated by mechanical power or other means,
provided that such dredge or scrape is brought aboard by hand power
without the use of mechanical devices.
[Amended 9-18-2012 by L.L. No. 12-2012]
A.
Personal
permit holder with commercial permit holder. A holder of a personal
permit shall be deemed to harvest shellfish commercially if that holder
is operating in concert with a person holding a commercial permit.
"Acting in concert" shall mean harvesting shellfish from the same
vessel as a person holding a commercial permit or in such close proximity
as to make it reasonable to presume that such persons are working
in concert.
B.
The Town
shall recognize the rights granted to an individual who is in possession
of a vessel endorsement as authorized under New York Environmental
Conservation Law § 13-0311.
A.
Uncertified area. No unauthorized person shall take
shellfish from an uncertified area.
B.
At night. No person shall take shellfish from Town
lands under water during the night.
C.
Quantity. A person to whom a personal permit is issued
shall not take more than 1/4 bushel of shellfish each day.
D.
Sunday. A person to whom a commercial permit is issued
shall not take shellfish from Town lands under water on Sunday.
A.
No shellfish of less than the following size shall
be taken, bought, sold or possessed within the Town:
(1)
Hard clams: No more than 3% of each bushel, package
or other container shall consist of clams less than one inch (2.54
centimeters) in thickness.
(2)
Oysters: not less than three inches (7.62 centimeters)
in the longest diameter. Oysters measuring less than three inches
in their longest diameter may comprise no more than 5% of any bushel,
package or container.
[Amended 1-22-2008 by L.L. No. 1-2008]
(3)
Bay scallops: Only those bay scallops having an annual
growth line and measuring at least 2 1/4 inches (5.715 centimeters)
from the middle of the hinge to the middle of the bill may be taken.
Scallops that are less than the legal size and do not possess an annual
growth line may comprise no more than 2% of the catch when unavoidably
taken.
[Amended 1-22-2008 by L.L. No. 1-2008]
(4)
Soft clams or steamers: not less than 1 1/2 inches
(3.81 centimeters) in the longest dimension.
B.
A person who takes the shellfish which are smaller
than the required size shall immediately return such shellfish to
the location from which they were taken.
C.
All devices used to sort shellfish as to size, including
but not limited to cull racks, shall have no less than one inch (2.54
centimeters) of space between bars.
D.
Those
engaged in the taking of hard clams with rakes shall size-sort in
the immediate area where they were taken using a cull box with bars
having not less than one inch (2.54 centimeters) of clear space between
the bars. Such cull device shall be designed and affixed to the vessel
in such a manner as to allow hard clams that pass through the cull
bars to fall directly and unimpaired to the water from which they
were taken. Those engaged in the taking of hard clams with tongs shall
have no more than three bushels of bay cull (shellfish and assorted
bottom material unavoidably taken during harvesting) on board at any
time, and shall have none on board while underway.
[Added 1-20-2010 by L.L. No. 2-2010]
A.
Scallops shall be taken from Town lands under water
only between the first Monday in November through March 31, both days
inclusive.
[Amended 1-22-2008 by L.L. No. 1-2008]
B.
A person who takes scallops from Town lands under
water out of season shall immediately retain such scallops.
C.
No person shall take more than 10 bushels of bay scallops
from Town land under water per day.
D.
Two or more persons utilizing the same vessel concurrently
shall not take more than 20 bushels of bay scallops per vessel per
day.
E.
Scallops may not be possessed for sale for food purposes
from April 1 to the first Monday in November. This does not apply
to bay scallops harvested during the open season (first Monday in
November through March 31) that have been shucked and packed in approved
packages and frozen and kept in a frozen state.
[Added 1-22-2008 by L.L. No. 1-2008]
No beam trawls or otter trawls shall be used
in any of the waters of the Town if same shall drag upon Town lands
under water so as to interfere in any manner with the natural or cultivated
growth of any shellfish in said waters. The possession by any person
of such beam trawl or otter trawl overboard in the waters of the Town
shall be prima facie evidence that the same is dragging upon Town
lands under water and disturbing or interfering with the shellfish
therein or thereon.
A.
The Town Board may, in its discretion, designate any
portion of Town lands under water a management area.
B.
An uncertified area shall be a management area.
C.
The Commissioner of Environmental Control may prohibit,
restrict and regulate the taking of shellfish from a management area.
In making a determination whether to prohibit, restrict or regulate
the taking of shellfish from a management area, the Commissioner of
Environmental Control shall give due consideration to the following:
(1)
Whether the shellfish in the management area have
been sufficiently purified to be suitable as food for human consumption.
(2)
Whether the first spawning period has passed for the
shellfish in the management area.
(3)
Whether a minimum quantity of shellfish is available
within the management area for spawning until such time as desired
quantities of shellfish are maintained.
(4)
Recommendations from the Town of Babylon Bay Management
Commission.
D.
A description of each management area and all prohibitions,
restrictions and regulations with regard to the taking of shellfish
from a management area shall be posted in the office of the Town Clerk.
No person shall buy, sell or otherwise deal
with shellfish for commercial purposes unless such person has obtained
a commercial buyer's permit or buyer's helper permit as prescribed
by this chapter.
A.
Each commercial buyer's permit application shall be
made in duplicate in writing on the form prescribed by the Town Clerk
and shall include the applicant's name, residence, mailing address,
date of birth, weight, height, color of hair and eyes and signature,
the description, license plate number and name and address of the
owner of each motor vehicle to be used by the applicant in dealing
with shellfish for commercial purposes and all other information requested
by the Town Clerk.
B.
Each commercial buyer's permit application shall be
accompanied by a fee of $500.
C.
Each commercial buyer's permit application shall be
accompanied by a New York State Department of Environmental Conservation
permit authorizing the applicant to deal with shellfish for commercial
purposes.
A.
Each buyer's helper permit application shall be made
in duplicate in writing on the form prescribed by the Town Clerk,
and shall include the applicant's name, residence, mailing address,
date of birth, weight, height, color of hair and eyes and signature,
name and address of the applicant's employer and all other information
requested by the Town Clerk.
B.
Each buyer's helper permit application shall be accompanied
by a fee of $50.
C.
Each buyer's helper permit application shall be accompanied
by the applicant's employer's commercial buyer's permit.
A.
Commercial. No commercial shell fisherman and no person
to whom a commercial permit has been issued by the Town of Islip shall
take shellfish in that part of the Town bounded as follows:
(1)
On the east by the Islip Town line; on the south by
Oak Beach; on the north by the general south shoreline of Captree
Island and Seganic Thatch; and on the west by the westerly shoreline
or end of the Oak Island Lead and extending on a line northerly to
the south line of the State Channel.
(2)
West Gilgo Beach Lagoon.
B.
General. No person shall take shellfish in that part
of the Town lying south of the State Channel between the shoreline
of Oak Island and a line distant 100 feet from the mean shoreline
of such island.
C.
Exception. Anything herein to the contrary not withstanding,
during the months of January and February of each year, the area known
as the "Lead" between Oak Beach and Oak Island shall be opened to
commercial fishermen for shellfishing, subject, however, to all other
provisions of this chapter.
Anything to the contrary notwithstanding, all residents of Oak Island holding noncommercial fisherman permits, their subtenants and guests shall have the right to take shellfish in the area described in § 183-22B, subject, however, to all other provisions of this chapter.
A.
Each commercial buyer's permit and buyer's helper
permit shall be in the form prescribed by the Town Clerk and shall
contain the matters set forth upon the application.
B.
The original application shall be filed in the Town
Clerk's office, and the duplicate application shall be filed in the
Environmental Control Office.
A person to whom a commercial buyer's permit
or buyer's helper permit has been issued shall not transfer, assign
or allow any other person to use the permit.
Each commercial buyer's permit and buyer's helper permit shall be valid from the date of issuance and, unless sooner voided, suspended or revoked in accordance with § 183-30G, shall expire on the 31st day of December next ensuing.
A.
At night. No person shall deal with shellfish for
commercial purposes during the night.
B.
Size restrictions. A person dealing with shellfish
for commercial purposes shall be in possession of a device for the
sorting of shellfish as to size, which device shall have openings
of not less than one inch (2.54 centimeters).
C.
Buying from person without local permit. No person
shall buy or otherwise receive shellfish for commercial purposes from
a person who has not obtained a commercial permit, commercial buyer's
permit or buyer's helper permit.
D.
Buying from person without state permit. No person
shall sell or otherwise transfer shellfish for commercial purposes
to a person who has not obtained a commercial buyer's permit, buyer's
helper permit or New York State Department of Environmental Conservation
permit authorizing the person to whom it is issued to deal with shellfish
for commercial purposes.
Starfish, drills, periwinkles and conches, when
taken, shall not be returned alive to Town lands under water.
[Amended 1-6-1981 by Res. No. 19; 4-27-2022 by L.L. No. 10-2022]
A.
B.
Taking on Sunday. Any person convicted of taking shellfish on Sunday in violation of § 183-12D shall be guilty of an offense punishable as follows:
C.
Taking from uncertified or management areas. Any person convicted of taking shellfish from uncertified areas in violation of § 183-12A or violating prohibitions, restrictions or regulations with regard to taking shellfish from a management area in violation of § 183-18A or violating § 183-18B, shall be guilty of an offense punishable as follows:
(1)
A first offense is punishable by a fine of not less
than $250 nor more than $500 or by imprisonment for not more than
15 days, or by both such fine and imprisonment.
(2)
A second or subsequent offense committed within five
years of the first offense is a misdemeanor punishable by a fine of
not less than $500 nor more than $1,000 or by imprisonment for not
less than six months nor more than one year, or by both such fine
and imprisonment.
(3)
During the period December 15 through March 15 of
each year, an offense is punishable by a fine not less than $100 nor
more than $250. However, such penalty will be suspended if a winter
conditional opening is authorized by the New York State Department
of Environmental Conservation.
D.
Taking at night. Any person convicted of taking shellfish from Town lands under water during the night in violation of § 183-12B shall be guilty of an offense punishable as follows:
(1)
A first offense is punishable by a fine of not less
than $100 nor more than $500 or by imprisonment for not more than
15 days, or by both such fine and imprisonment.
(2)
A second or subsequent offense committed within five
years of the first offense is a misdemeanor punishable by a fine of
not less than $500 nor more than $1,000 or by imprisonment for not
less than six months nor more than one year, or by both such fine
and imprisonment.
E.
Violation of size restrictions. Any person convicted of taking, buying, selling or possessing of shellfish of less than legal size in violation of § 183-13 or of violating § 183-10B shall be guilty of an offense punishable as follows:
(1)
A first offense is punishable by a fine of not less
than $300 nor more than $500 or by imprisonment for not more than
15 days, or by both such fine and imprisonment.
(2)
A second or subsequent offense committed within five
years of the first offense is a misdemeanor punishable by a fine of
not less than $500 nor more than $1,000 or by imprisonment for not
less than six months nor more than one year, or by both such fine
and imprisonment.
F.
General penalty. Any person convicted of violating any provisions of this chapter, except as otherwise provided in § 183-30A through E, shall be guilty of an offense punishable as follows:
(1)
A first offense is punishable by a fine of not less
than $50 nor more than $200.
(2)
A second or subsequent offense committed within five
years of the first offense is a misdemeanor punishable by a fine of
not less than $200 nor more than $400 or by imprisonment for not less
than three months nor more than six months, or by both such fine and
imprisonment.
G.
Any person or entity found by the Bureau of Administrative Adjudication to have violated this chapter shall likewise be subject to a monetary penalty in an amount within the range of fines authorized in Subsections A, B, C, D, E and F for the respective violations referenced therein for a first offense and subsequent offenses.
H.
Suspension, revocation of permit. The Town Clerk,
upon recommendation of the Commissioner of Environmental Control,
may suspend or revoke any permit issued under this chapter to any
person convicted of one or more violations of this chapter or to any
person convicted of a crime, or to any partnership where any partner
has been convicted of one or more violations of this chapter or convicted
of a crime, or to any corporation if any person having a financial
interest in the corporation is convicted of one or more violations
of this chapter or convicted of a crime. The Town Clerk may likewise
suspend or revoke any permit issued under this chapter to any person
or entity that was found to have violated this chapter by the Bureau
of Administrative Adjudication.
