This chapter shall be known and may be cited
as the "Town of Brookhaven Shellfish Law."
[Amended 3-5-1996 by L.L. No. 6-1996,
effective 3-8-1996; 3-17-1998 by L.L. No. 4-1998, effective 3-20-1998; 4-16-2002 by L.L. No. 2-2002,
effective 4-25-2002; 5-18-2010 by L.L. No. 5-2010, effective 5-28-2010; 7-17-2012 by L.L. No. 16-2012, effective 7-31-2012; 4-23-2020 by L.L. No. 5-2020, effective 4-30-2020]
For the purpose of this chapter, the following
words and phrases shall be given the definitions contained herein:
Controlled or partially controlled raising, breeding or growing,
planting of aquatic or marine plant or animal life in any marine or
aquatic hatchery or through on-bottom or off-bottom cultivation, for
human consumption and resource restoration, as permitted by the County
of Suffolk, NY State Fish and Wildlife Law (NYS ELC Article 11) and
other applicable federal, state, and local laws and regulations.
[Added 3-17-2022 by L.L. No. 4-2022, effective 3-24-2022]
Shellfish and assorted bottom material unavoidably taken
during harvesting.
Use of a small (20 hp or less) outboard motor to dislodge
razor clams and softshell steamers attached to a special floating
rig.
[Added 9-18-2023 by L.L. No. 7-2023, effective 10-2-2023]
A special approval that is issued on a Town of Brookhaven
commercial shellfish permit that enables the holder of the commercial
shellfish permit/hard clam endorsement to harvest hard clams commercially
from Town-owned underwater land in the Great South Bay lying west
of a line running along the west side of the Suffolk County Bridge
(William Floyd Parkway) between Shirley on the north and Smith Point
County Park on the south and east of the line that runs from a point
located 290 feet east of the entrance to Homan's Creek in Bayport
to a point on Fire Island located approximately 2,950 feet west of
the Barrett Beach Pier and which is coincident with the eastern property
line of the underwater lands of The Nature Conservancy.
Spouse, siblings, parents, children, grandparents, grandchildren,
and, if domiciled in the house of the commercial hard clam endorsement
holder, all persons who are related by blood, marriage or adoption.
Any area designated by the Town Board of the Town of Brookhaven
for the conservation, preservation, protection, rehabilitation, seeding
and/or growth of shellfish or to promote the health, safety and welfare
of the residents of the Town of Brookhaven.
Any person who does not have his principal place of abode
and domicile in the Town of Brookhaven and/or any person who does
not own real property within the Town of Brookhaven at the time of
the act permitted or prohibited by this chapter.
Any firm, partnership, corporation, association or individual.
Any person who has his principal place of abode and domicile
in the Town of Brookhaven and/or any person who owns property within
the Town of Brookhaven at the time of the act permitted or prohibited
by this chapter.
All varieties and types of the following forms of marine
life commonly known as "oysters" (Crassostrea virginica), "hard clams"
(Mercenaria mercenaria), "soft or steamer clams" (Mya arenaria), "mussels"
(Mytilus edulis), "bay scallops" (Pecten irradians) and "razor clams"
(Ensis directus) and any combination thereof.
[Amended 9-18-2023 by L.L. No. 7-2023, effective 10-2-2023]
The actual time of sunrise or up to 1/2 hour before the actual
time of sunrise on any given date.
The actual time of sunset or up to 1/2 hour after the actual
time of sunset on any given date.
The removal of shellfish by any means from Town-owned land
and all lesser acts of disruption of shellfish with or without the
use of any implement, aid or device, regardless of whether such acts
result in the removal of shellfish.
All land, land underwater and the waters above land underwater
in and owned by the Trustees of the Freeholders and Commonalty of
the Town of Brookhaven. Such land shall not, however, include land,
land underwater or waters above land underwater leased by the Town
and/or the Trustees of the Freeholders and Commonalty of the Town
of Brookhaven to any person for shellfish cultivation.
The Trustees of the Freeholders and Commonalty of the Town
of Brookhaven.
An area designated by the New York State Department of Environmental
Conservation as an area in such unsanitary condition that shellfish
therein may not be taken for use as food.
A conditional clamming area restricted during specific seasons
or periods of weather conditions as designated by the Commissioner
of Planning, Environment and Land Management or designee and adopted
in local law form by the Town Board.
Any area lying close to the Long Island shoreline as may
be designated by the Town Board of the Town of Brookhaven in order
to provide safe, warm shellfishing areas during winter months and
promote environmental and economic benefits to the Town of Brookhaven
and its residents by closing such areas during summer months.
A nonresident shall not gather, take or attempt to take, either on his own account or for his own benefit, the benefit of any other person or for sale, any shellfish from Town-owned land, except as set forth in § 57-5 of this chapter.
[Amended 5-18-2010 by L.L. No. 5-2010, effective 5-28-2010; 3-17-2022 by L.L. No. 4-2022, effective 3-24-2022]
No person, individual, partnership, corporation or association shall take shellfish from Town-owned land, or engage in any aquaculture activity on Town-owned land, for commercial purposes unless such person has obtained a permit for such purposes as prescribed by § 57-6 of this chapter.
[Amended 5-18-2010 by L.L. No. 5-2010, effective 5-28-2010]
A.Â
A resident of the Town of Brookhaven may take no more than 100 bay scallops, soft clams, hard clams, or oysters or any combination thereof or 300 mussels from Town-owned land during each day of the open season, excluding Sunday, and in the manner hereinafter provided, for the sole purpose of consumption as food in his or her own household (noncommercial purposes) without obtaining a commercial shellfish permit, provided such shellfish are taken in conformance with Articles II and III of this chapter.
(1)Â
A resident
of the Town of Brookhaven desiring to avail himself of the privileges
hereinbefore stated shall display proof of residency in the Town of
Brookhaven to any harbormaster, constable or peace officer upon request.
Failure to do so shall be prima facie evidence that such person is
not a resident of the Town of Brookhaven.
(2)Â
It shall
be unlawful for any resident to take shellfish for noncommercial purposes
with any device other than a hand-held rake having a head no wider
than 14 inches measured perpendicular to the tynes and a straight
handle not in excess of seven feet in length or by any means other
than use of a resident's hands and feet. Possession or use of any
device or aid other than as described above shall be presumptive evidence
of an intent to harbor shellfish for commercial purposes.
B.Â
A resident
of the Town of Islip who has duly obtained a commercial permit from
the Islip Town Clerk for the taking of shellfish from lands underwater
in and owned by the Town of Islip, in accordance with the Islip Town
Shellfish Ordinance, may take shellfish other than hard clams for
commercial purposes from Town-owned land in the Great South Bay, from
the Islip Town line to a line drawn running due south of Howell's
Point in the Town of Brookhaven to the north shoreline of Fire Island.
C.Â
A resident
of the Town of Islip who has duly obtained a Town of Islip commercial
shellfish permit and who has a Town of Islip commercial hard clam
endorsement may take hard clams for commercial purposes from Brookhaven-owned
land in the Great South Bay, from the Town of Brookhaven-Town of Islip
town line to a line drawn running due south of Howell's Point in the
Town of Brookhaven to the north shoreline of Fire Island.
[Amended 7-17-2012 by L.L. No. 16-2012, effective 7-31-2012]
D.Â
A resident
of the Town of Islip desiring to avail himself of the privileges stated
herein shall display evidence of the commercial permit and the commercial
hard clam endorsement for the harvest of hard clams if hard clams
are harvested issued to him by the Town of Islip in a conspicuous
place, either upon his person or upon the vessel used in the taking
of shellfish.
[Amended 7-17-2012 by L.L. No. 16-2012, effective 7-31-2012]
[Amended 5-18-2010 by L.L. No. 5-2010, effective 5-28-2010; 7-17-2012 by L.L. No.
16-2012, effective 7-31-2012; 4-23-2020 by L.L. No. 5-2020, effective 4-30-2020]
A.Â
Commercial shellfish permit. A commercial shellfish permit shall
allow the resident to whom it is issued to take shellfish from Town-owned
underwater lands for commercial purposes, except that hard clams (Mercenaria
mercenaria) may not be taken from Town-owned underwater land in the
Great South Bay lying west of a line running along the west side of
the Suffolk County Bridge (William Floyd Parkway) between Shirley
on the north and Smith Point County Park on the south and east of
the line that runs from a point located 290 feet east of the entrance
to Homan's Creek in Bayport to a point on Fire Island located approximately
2,950 feet west of the Barrett Beach Pier and which is coincident
with the eastern property line of the underwater lands of the Nature
Conservancy property unless a commercial hard clam endorsement has
been issued on the commercial shellfish permit.
B.Â
Commercial hard clam endorsement. To harvest hard clams (Mercenaria
mercenaria) commercially from Town-owned underwater land in the Great
South Bay lying west of a line running along the west side of the
Suffolk County Bridge (William Floyd Parkway) between Shirley on the
north and Smith Point County Park on the south and east of the line
that runs from a point located 290 feet east of the entrance to Homan's
Creek in Bayport to a point on Fire Island located approximately 2,950
feet west of the Barrett Beach Pier and which is coincident with the
eastern property line of the underwater lands of The Nature Conservancy
property and the Town of Brookhaven, the commercial shellfish permit
shall also have a commercial hard clam endorsement.
(1)Â
A commercial hard clam endorsement shall only be issued to a resident
of the Town of Brookhaven who has a Town of Brookhaven commercial
shellfish permit and who can demonstrate that he/she:
(a)Â
Has held a commercial hard clam permit endorsement in 2011;
or
(b)Â
Was issued a commercial hard clam endorsement in 2013; or
(c)Â
Subsequent to 2013 was issued a commercial hard clam endorsement
in the previous year;
(d)Â
Is a Town resident who did not obtain a commercial hard clam
endorsement in 2010 or in subsequent years and meets any one of the
criteria specified below and provides such clear and unambiguous proof
as may be required by the Town Clerk:
[1]Â
Was unable to obtain a commercial hard clam endorsement due
to active military service; or
[2]Â
Held a commercial shellfish harvest permit issued by the Town
of Islip, Brookhaven, or Babylon during any five consecutive years
while a resident of the Town of Islip, Brookhaven, or Babylon; or
[3]Â
The resident's immediate family has historically been and is
currently engaged in commercial hard clamming in the Great South Bay,
provided that the applicant is at least 16 years old at the time of
application; or
[4]Â
Demonstrates an investment in the equipment necessary for participation
in the Great South Bay commercial hard clam fishery and possesses
a valid New York State shellfish digger's license and held such license
for at least three out of the five years prior to the date of application;
or
[5]Â
Held a commercial hard clam endorsement or its equivalent while
a resident of the Town of Islip or Babylon.
(e)Â
If a commercial hard clam endorsement is not renewed by February 14 of the year following its issuance, the commercial hard clam endorsement shall be deemed to have expired and will not be reissued to that holder unless the number of commercial hard clam endorsements for that year has not been reached and the applicant has met the criteria set forth in Subsection B(1)(f).
(f)Â
If an individual does not qualify for a commercial hard clam
endorsement but wishes to obtain such endorsement, that individual
shall be placed on a waiting list. If after February 14 the number
of commercial hard claim endorsements issued for that year is less
than the number that could be issued, individuals on the waiting list
will be issued a commercial hard clam endorsement based on their position
on the waiting list.
(2)Â
Number of commercial hard clam endorsements. The number of commercial
hard clam endorsements issued shall be determined by Town Board resolution.
(a)Â
The Town Board, by resolution, may adjust the number of commercial
hard clam endorsements issued by the Town in a calendar year if the
Town Board, based on the recommendation of the Division of Environmental
Protection and any other relevant information, finds that the long-term
sustainability of the hard clam resources will not be adversely impacted
by the number of commercial hard clam endorsements issued.
[1]Â
The Division of Environmental Protection shall submit to the
Town Board a report that recommends the number of commercial hard
clam endorsements that could be issued without adversely impacting
the long-term sustainability of the hard clam resource that is based
on the best available scientific analyses and takes into account,
at a minimum, the abundance of hard clams as determined by a hard
clam census, available annual harvest statistics, the magnitude of
the commercial shellfish harvesting, the current and projected hard
clam harvest, the number of commercial hard clam endorsements issued
by the Towns of Brookhaven, Babylon and Islip, the baywide hard clam
population and any other relevant information.
(3)Â
The person to whom a commercial hard clam endorsement has been issued
shall not harvest or be in possession of more than 2,000 hard clams
harvested per day from Town-owned underwater land in the Great South
Bay lying west of a line running along the west side of the Suffolk
County Bridge (William Floyd Parkway) between Shirley on the north
and Smith Point County Park on the south and east of the line that
runs from a point located 290 feet east of the entrance to Homan's
Creek in Bayport to a point on Fire Island located approximately 2,950
feet west of the Barrett Beach Pier which is coincident with the property
line between The Nature Conservancy property and the Town of Brookhaven.
A.Â
The holder of a New York State or Town commercial
shellfish permit shall not be entitled to the privileges of a resident
of the Town of Brookhaven and shall not be permitted to engage in
the taking of shellfish for noncommercial purposes.
B.Â
No person having had a shellfish permit suspended
or revoked by the Town of Brookhaven, Town of Islip or the New York
State Department of Environmental Conservation shall engage in the
taking of shellfish from Town-owned lands at any time during the period
of such suspension or revocation.
A.Â
Permits shall be issued to residents only. The applicant
shall provide two forms of proof of residency. Acceptable proof of
residency shall include: property tax bill, utility bill, bank statement,
W-2 income tax form, voter registration card, major credit card bill,
a valid New York State driver's license or identification card. One
form of proof of residency must be dated no earlier than three months
preceding the date of the application for a permit. In the case of
a minor, the parent or guardian must provide proof of residency.
[Amended 5-18-1995 by L.L. No. 14-1995, effective 5-24-1995; 3-17-1998 by L.L. No. 7-1998, effective 3-20-1998]
B.Â
Each permit application shall be made, in writing,
on duplicate forms to be provided by the Town Clerk and shall include
the following:
(1)Â
The applicant's name.
(2)Â
The applicant's residence with street and number.
(3)Â
The applicant's mailing address.
(4)Â
The applicant's length of residence in the Town of
Brookhaven.
(5)Â
The citizenship of the applicant.
(6)Â
The applicant's date of birth.
(7)Â
The applicant's weight.
(8)Â
The applicant's height.
(9)Â
The applicant's color of hair and eyes.
(10)Â
The applicant's signature.
(11)Â
All other information requested and deemed necessary
by the Town Clerk.
C.Â
An application for a permit by a minor (17 years of
age or under) shall be cosigned by that minor's parent or guardian.
D.Â
Prior to the issuance of a permit, the Town Clerk
shall be satisfied as to the identification and residence of the applicant.
E.Â
Each commercial permit application shall be accompanied
by two full-face photographs of the applicant taken within three months
prior to the application.
F.Â
Any commercial permit application shall contain the
description of any vessel which may be used by the applicant, including
the New York State registration numbers for such vessel.
G.Â
Each commercial permit application shall be accompanied
by the applicant's New York State Department of Environmental Conservation
shellfish permit.
I.Â
The Town Clerk shall furnish a description and map
of currently designated bay management or winter-ground areas to each
person issued a shellfish permit.
[Amended 5-18-2010 by L.L. No. 5-2010, effective 5-28-2010]
Permits issued pursuant to § 57-4 of this article shall be valid from the date of issuance until and shall expire on the last day of December of the year in which they were issued next ensuing unless such permits shall be suspended or revoked as hereinafter provided.
A.Â
Each permit shall be in the form prescribed by the
Town Clerk with a photograph of the permit holder affixed thereto
and shall contain the matter set forth upon the application. Each
permit issued shall contain the exact date and time of issuance.
B.Â
The original application for a permit with the permit
holder's photograph affixed thereto shall be filed in the Town Clerk's
office, and the duplicate application shall be filed in the Harbormaster's
office.
C.Â
A person to whom a permit has been issued shall not transfer, assign or allow any other person to use the permit, except that the holder of a commercial hard clam endorsement may transfer such endorsement to a member of the holder's immediate family as defined in § 57-2, provided that the family member is a resident of the Town.
[Amended 7-17-2012 by L.L. No. 16-2012, effective 7-31-2012]
D.Â
No person shall use, display or possess a permit issued
to another person.
E.Â
Any attempt to transfer or assign any permit shall
terminate the same and render it null and void.
F.Â
Any person whose permit or display card is lost or
stolen shall report the same to the Town Clerk's office immediately
and shall obtain a duplicate permit or display card from the Town
Clerk.
[Amended 1-24-2017 by L.L. No. 4-2017, effective 2-6-2017]
G.Â
The holder of a commercial hard clam endorsement who has a valid
New York State vessel endorsement issued pursuant to New York State
Environmental Conservation Law § 13-0311 may have individuals
on the holder's vessel who can carry out harvesting activities as
allowed by New York State Environmental Conservation Law § 13-0311
even if they do not have a Town of Brookhaven commercial shellfish
permit and/or commercial hard clam endorsement.
[Added 7-17-2012 by L.L. No. 16-2012, effective 7-31-2012]
A.Â
All persons engaged in taking shellfish from Town-owned
land for commercial purposes, whether working aboard a vessel or otherwise,
shall exhibit their permit to any harbormaster, constable or peace
officer on request. Failure to do so shall be prima facie evidence
that such person has not obtained a permit.
B.Â
The Town Clerk, upon issuing a commercial shellfish
permit, will also issue to the permittee a commercial shellfish permit
display card. The permittee shall not be engaged in the taking of
shellfish for commercial purposes from Town-owned land without having
a shellfish card displayed in a prominent place on his person or on
the vessel from which he is operating.
A.Â
The holder of a permit shall immediately notify the
Town Clerk of the Town of Brookhaven upon the holder ceasing to be
a resident of the Town of Brookhaven. Permits shall be void if the
holder thereof ceases to be a resident of the Town of Brookhaven.
Failure to notify the Town Clerk shall not be deemed to toll the voiding
of a permit under this section.
[Amended 4-23-2020 by L.L. No. 5-2020, effective 4-30-2020]
B.Â
Permits may be suspended by the Town Clerk upon recommendation
of the Director of the Division of Environmental Protection for a
period of not less than six months from the date of conviction if
the holder thereof is convicted of any violation of this chapter and/or
state law enacted for the conservation or protection of shellfish.
C.Â
A permit shall not survive the permittee.
D.Â
Permits may be suspended by the Town Clerk upon recommendation
of the Director of the Division of Environmental Protection for a
period of not less than six months from the date of compromise of
civil penalties if the holder thereof is permitted to settle by agreement
or civilly compromise any violation of this chapter or the Environmental
Conservation Law of the State of New York and/or any state law enacted
for the conservation and protection of shellfish.
E.Â
A permit shall be automatically suspended or revoked
upon the suspension or revocation by the New York State Department
of Environmental Conservation of a like permit. The period of suspension
or revocation shall be for the same duration as that of the New York
State permit.
