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:
AQUACULTURE
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]
BAY CULL
Shellfish and assorted bottom material unavoidably taken
during harvesting.
CHURNING
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]
COMMERCIAL HARD CLAM ENDORSEMENT
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.
IMMEDIATE FAMILY MEMBER
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.
MANAGEMENT AREAS
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.
NONRESIDENT
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.
PERSON
Any firm, partnership, corporation, association or individual.
RESIDENT
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.
SHELLFISH
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]
SUNRISE
The actual time of sunrise or up to 1/2 hour before the actual
time of sunrise on any given date.
SUNSET
The actual time of sunset or up to 1/2 hour after the actual
time of sunset on any given date.
TAKING
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.
TOWN-OWNED LAND
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.
TRUSTEES
The Trustees of the Freeholders and Commonalty of the Town
of Brookhaven.
UNCERTIFIED AREA
A.
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.
B.
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.
WINTER GROUNDS
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. 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) 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) 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. 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. 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. 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. 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. 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) 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)
Has held a commercial hard clam permit endorsement in 2011;
or
(b)
Was issued a commercial hard clam endorsement in 2013; or
(c)
Subsequent to 2013 was issued a commercial hard clam endorsement
in the previous year;
(d)
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]
Was unable to obtain a commercial hard clam endorsement due
to active military service; or
[2]
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]
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]
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]
Held a commercial hard clam endorsement or its equivalent while
a resident of the Town of Islip or Babylon.
(e)
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)
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) Number of commercial hard clam endorsements. The number of commercial
hard clam endorsements issued shall be determined by Town Board resolution.
(a)
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]
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) 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.
[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.