This chapter is enacted in accordance with 12 M.R.S.A. § 6671.
[HISTORY: Adopted by the Town of Kennebunkport 3-28-1998; amended 6-13-2017. Subsequent amendments noted where applicable.]
The purpose of this chapter is to establish a shellfish conservation program for the Town of Kennebunkport that will ensure the protection and optimum utilization of shellfish resources within its limits. These goals will be achieved by means that may include:
[Amended 11-4-2025]
The Shellfish Conservation Program for the Town of Kennebunkport will be administered by the Shellfish Conservation Committee consisting of a minimum of five members and a maximum of seven members, including the Shellfish Warden, who may be a nonresident, to be appointed by the Selectmen of the Town of Kennebunkport for terms of three years. No more than three members shall possess current commercial shellfish licenses. The Shellfish Warden may not posses a commercial shellfish license. The Committee's responsibilities include:
A.
Establishing annually in conjunction with the Department of Marine Resources the number of shellfish digging licenses to be issued.
B.
Surveying each clam-producing area at least once every three years to establish size distribution and density, and annually estimating the status of the Town's shellfish conservation.
C.
Submitting to the Board of Selectmen proposals for the expenditure of funds for the purpose of shellfish conservation.
D.
Keeping this chapter under review and making recommendations for its amendments.
E.
Securing and maintaining records of shellfish harvest from the Town's managed shellfish areas and closed areas that are conditionally opened by the Department of Marine Resources.
F.
Recommending conservation closures and openings to the Board of Selectmen in conjunction with the Marine Resource Scientist of the Department of Marine Resources.
G.
Submitting an annual report to the municipality and the Department of Marine Resources covering the above topics and all other committee activities.
H.
Recommending daily harvest limits to the Board of Selectmen.
I.
Prepare and maintain a Shellfish Management Plan as required in Chapter 7.20 of the Department of Marine Resources Regulations.
[Amended 11-3-2020; 11-4-2025]
As used in this chapter, the following terms shall have the meanings indicated:
Refers to the Town of Kennebunkport, Maine.
Anyone not qualified as a resident under this chapter.
Refers to a real estate taxpayer or person who has been domiciled in this municipality for at least three months prior to the time their claim of such residence is made.
Refers to a person 65 years or older.
When used in the context of this chapter, the words "shellfish," clams," and "intertidal shellfish resources" mean soft-shell clams (Mya arenaria).
[Amended 11-3-2020; 11-8-2022; 11-4-2025]
It is unlawful for any person to dig or take shellfish from the shores and flats of this municipality without having a current license issued by this municipality as provided by this chapter.
A.
Designation, scope and qualifications.
(1)
Resident recreational shellfish license. The license is available to residents and real estate taxpayers of this municipality and entitles the holder to dig and take no more than one peck of shellfish in any one day for personal or family use.
(2)
Senior resident recreational shellfish license. The license is available to residents and real estate taxpayers of this municipality and entitles the holder to dig and take no more than one peck of shellfish in any one day for personal or family use.
(3)
Nonresident recreational shellfish license. The license is available to any person not a resident or real estate taxpayer of this municipality and entitles the holder to dig and take not more than one peck of shellfish in any one day for personal or family use.
(4)
Senior nonresident recreational shellfish license. The license is available to any person not a resident of this municipality and entitles the holder to dig and take not more than one peck of shellfish in any one day for personal or family use.
(5)
Resident commercial shellfish license. The license is available to residents and real estate taxpayers of this municipality and entitles the holder to dig and take no more than the amount of shellfish as recommended by the Shellfish Conservation Committee and approved by the Board of Selectmen in any one day, unassisted only, as advised at time of purchase of license. This license shall be revoked if the license holder ceases to reside in the municipality.
(6)
Nonresident commercial shellfish license. The license is available to any person not a resident or real estate taxpayer of this municipality and entitles the holder to dig and take no more than the amount of shellfish as recommended by the Shellfish Conservation Committee and approved by the Board of Selectmen in any one day, unassisted only. Commercial license holders must keep a daily log of clams harvested.
(7)
Shellfish Warden license. This license is a complimentary recreational license offered to the Shellfish Warden annually without regard to age or residency.
(8)
Daily recreational shellfish license. The license is available to residents and real estate taxpayers of this municipality and entitles the holder to dig and take no more than one peck of shellfish in any one day for personal and family use. The license is good only for the date stated on the license.
(9)
The license application or affidavit must be signed to make it valid.
B.
Application procedure. Any person who would like to obtain a license must apply in person with the Town Clerk for the licenses required by this chapter on forms provided by the municipality.
(1)
Contents of application. The application must be in the form of an affidavit and must contain the applicant's name, current address, telephone number, birth date, height, weight, signature, and whatever additional information the municipality may require.
(2)
Misrepresentation. Any person who gives false information on a license application will cause said license to become invalid and void.
C.
Fees. The fees for the licenses shall be set by the municipal officers upon the approval of the Commissioner of the Department of Marine Resources and must accompany in full the application for the respective license. Fees received for shellfish licensing shall be used by the Town for shellfish management, conservation and enforcement.
D.
Limitation of diggers. Clam resources vary in density and size distribution from year to year and over the limited soft-shell clam-producing area of the Town. Following the annual review of the Town's clam resources, and the Warden's reports, as required by § 127-3, the Shellfish Conservation Committee, in consultation with the Department of Marine Resources, will determine whether limiting commercial or recreational shellfish licenses is an appropriate shellfish management option for the following year.
(1)
Prior to January 1, the Committee shall report its findings and document recommendations for the allocation of commercial and recreational licenses to be made available for the following license year to the Commissioner of Marine Resources for concurrence.
(2)
After receiving approval of proposed license allocations from the Commissioner of Marine Resources and prior to January 1, the Shellfish Conservation Committee shall notify the Town Clerk, in writing, of the number and allocation of shellfish licenses to be issued.
(3)
Notice of the number of licenses to be issued and the procedure for application shall be published using one of the following methods, as approved by the Department of Marine Resources: social media, a trade or industry publication, or a newspaper or combination of newspapers with general circulation that the municipal officers consider effective in reaching persons affected, not less than 10 days prior to the period of issuance. This information shall also be posted in the municipal offices until the period concludes.
(4)
The Town Clerk shall issue seasonal licenses regardless of residency after 90 days from the start of sales.
E.
License expiration date. Each license issued under authority of this chapter expires one year after the date of issuance. Each daily license issued under the authority of this chapter shall be valid only for the date stated on the license.
F.
Reciprocal harvesting privileges. Licensees from any other municipality cooperating with this municipality on a joint shellfish management program may harvest shellfish according to the terms of this license.
G.
License fee waiver. Recreational shellfish license fees will be waived for residents and real estate taxpayers 65 years or older based upon the allocations approved by the Department of Marine Resources for that year.
H.
Children 12 years and younger do not require a license but must be accompanied by a parent or guardian who holds a current Kennebunkport recreational shellfish license. The total combined daily limit for adults and children is one peck per license.
I.
A shellfish license is not available to anyone whose municipal or state shellfish license is under suspension or who has been convicted of violating Maine marine statutes or state wildlife statutes within a prior twenty-four-month period.
J.
Suspension/revocation. A shellfish license issued under this chapter is subject to suspension as follows:
(1)
In cases where a court enforcement proceeding is brought under this chapter or state law:
(a)
In the case of a first court judgment finding any violation, an automatic suspension of 60 days;
(b)
In the case of a second court judgment finding any violation against the same licensee, an automatic revocation of the existing license, and the person found in violation is prohibited from reapplying for a license under this chapter for one year.
(2)
In cases where the Shellfish Warden believes that a licensee has violated this chapter, he may give notice to the licensee of such belief. If, after providing the licensee with an opportunity to rebut any evidence he has, the Shellfish Warden concludes that a violation has occurred, he may issue a notice of suspension not to exceed 30 days.
(a)
A licensee who has received a notice of suspension may appeal to the Board of Selectmen by filing a written request with the Town Clerk within seven days of the day the Shellfish Warden's decision is rendered. Upon filing the request, the suspension is stayed pending the Board's decision.
(b)
The Board of Selectmen shall hear the appeal as soon as practicable and shall provide the appellant with at least seven days' written notice of hearing. It shall hear all the evidence and decide whether to uphold or reverse the decision of the Shellfish Warden. The rules of evidence do not apply.
[Amended 11-4-2025[1]]
A.
The municipal officers, upon the approval of the Commissioner of Marine Resources, may open and close areas for shellfish harvest. Upon recommendations of the Shellfish Conservation Committee and concurrence of the Department of Marine Resources Scientist that the status of shellfish resource and other factors bearing on sound management indicate that an area should be opened or closed, the municipal officers may call a public hearing and shall send a copy of the notice to the Department of Marine Resources. The decision of the municipal officers made after the hearing shall be based on findings of fact.
B.
It shall be unlawful for any person to harvest, take or possess shellfish from any areas closed by the Town of Kennebunkport in accordance with Department of Marine Resources Regulation, Chapter 7.[2] Harvesting shellfish in a closed area is a violation of this municipality's ordinance and is punishable under 12 M.R.S.A. § 6671.
[2]
Editor's Note: See 13-188 CMR Ch. 7, Requirements for Municipalities Having Shellfish Conservation Programs.
C.
Boundaries of conservation closures are explicitly defined in the conservation closure application submitted by the Town of Kennebunkport to the Department of Marine Resources and are part of the resulting permit issued by the Department of Marine Resources. These permits are posted at the Town office and online: https://www.maine.gov/dmr/fisheries/shellfish/nearshore-marine-resources-program/general-shellfish-ordinance-information/general-town-shellfish-information.
D.
The municipality shall provide sufficient notification to the public of any conservation closure or opening by publishing, advertising and/or posting in public places an official municipal closure or opening notice signed by the Shellfish Warden or the Department-issued permit, five days prior to the initial closure or opening date. The method of notification must be approved by the Department prior to issuance of the permit.
It is unlawful for any person to possess soft-shell clams within the Town of Kennebunkport, County of York, that are less than two inches in the longest diameter except as provided by Subsection B of this section.
A. LOT POSSESS
Definitions. As used in this section, the following terms shall have the meanings indicated:
The total number of soft-shell clams in any bulk pile. Where soft-shell clams are in a box, barrel, or other container, the contents of each box, barrel, or other container constitutes a separate lot.
Dig, take, harvest, transport, or hold soft-shell clam shell stock.
B.
Tolerance. Any person may possess soft-shell clams that are less than two inches if they comprise less than 10% of any lot.
A person who violates this chapter shall be punished as provided by 12 M.R.S.A. § 6671, Subsection 10.
This chapter, which has been approved by the Commissioner of Marine Resources, shall become effective after its adoption by the municipality provided a certified copy of the chapter is filed with the Commissioner within 20 days of its adoption.
This chapter shall remain in effect until repealed by the municipality or rescinded by the Commissioner of the Department of Marine Resources.
If any section, subsection, sentence or part of this chapter is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this chapter.
Any ordinance regulating the harvesting or conservation of shellfish in the Town and any provision of any other Town ordinance that is inconsistent with this chapter is hereby repealed.