For the purpose of this chapter, the following
words and phrases shall have the meanings indicated:
CERTIFIED AREA
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.
CHURNING
The disturbance of bottom soil by use of an outboard motor.
[Amended 5-3-1983 by Res. No. 3]
COMMERCIAL HARD CLAM HARVEST ENDORSEMENT
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]
COMMERCIAL SHELLFISH PERMIT
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]
IMMEDIATE FAMILY MEMBER
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]
MANAGEMENT AREA
An area set aside by the Town Board for the conservation,
preservation, protection, rehabilitation, seeding and/or growth of
shellfish.
NIGHT
The period between sunset and sunrise.
PERSONAL SHELLFISH PERMIT
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]
RESIDENT
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.
SHELLFISH
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.
TAKING
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.
UNCERTIFIED AREA
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.
[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.
E. Each permit application shall be accompanied by the appropriate fee.
(1) Personal permit: $5, except that there shall be no fee for a person
62 years of age or older.
(2) Commercial permit: $75, except that the fee shall be $25 for persons
62 years of age or older.
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.
[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.
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.
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.
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 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.
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. Taking, or dealing without permit. Any person convicted of taking shellfish without a permit, as required by §
183-2, or dealing with shellfish for commercial purposes without a permit, as required by §
183-19, shall be guilty of an offense punishable as follows:
(1) By a fine not less than $200 nor more than $500 for
a first offense.
(2) By a fine of not less than $500 nor more than $1,000
for a second or subsequent offense committed within five years of
the first offense.
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:
(1) By a fine of not less than $50 nor more than $250
for a first offense.
(2) By a fine of not less than $250 nor more than $500
for a second or subsequent offense committed within five years of
the first offense.
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.