| Proposed Ordinance in the Town of Whiting, Maine Intertidal Zone Protection Section 1. Purpose The purpose of this ordinance is to protect Town of Whiting property owners and specifically their intertidal zone area. It is a further purpose to protect a part of the marine habitat that supports many marine species important to commercial fisheries. The "intertidal zone" means all land associated with a shore front property affected by marine tides between the mean high water mark and either 100 rods seaward or the mean low water mark whichever is closer to the mean high water mark. A "marine plant" (e.g.; rock weed, Irish moss), in this ordinance, is an organism rooted in or attached to soil or rocks in the intertidal zone. Section 2. Authority and Administration This ordinance is adopted and may hereafter be amended pursuant to and consistent with Article VIIIA of the State of Maine Constitution, Title 30-A, MRSA Sec. 3001 et seq. (Home Rule). The Town of Whiting Code Enforcement Officer and Clam Warden as well as Sheriff's Department and State Police officers shall enforce this ordinance. Section 3. Applicability This ordinance applies to all marine shore properties in the Town of Whiting including river and stream mouths experiencing tidal level changes. It does not apply to freshwater shore properties (lakes, rivers, etc.). Individuals otherwise authorized to collect or dig clams and worms, etc. in the intertidal zone shall not be limited by this ordinance. Section 4. Requirements Commercial gathering or harvesting of marine plants is prohibited in the intertidal zone in the absence of express documented permission of the landowner. Commercial gathering or harvesting implies an intent to sell or otherwise profit from the marine materials. Incidental materials gathering or harvesting for home consumption by the gatherer is exempt from this ordinance. Before a harvester begins activity in the intertidal zone, he shall obtain written permission, including dates of validity, from the land owner and shall file a copy of that permission at the Town of Whiting Municipal Office. The harvester shall present evidence to the landowner, and note in the permission document, the means whereby he can recognize boundaries of the owner's property. Possession of a Global Positioning System receiver or equivalent terrestrial survey information in conjunction with property deed data shall be satisfactory evidence that boundaries are recognizable. Maximum probable position error shall be fifty (50) feet for a mechanical device or deed boundary marker data. Commercial transportation of marine plants in the Town of Whiting shall occur only when a current written permit, bill of sale, or other written proof of ownership accompanies the marine plants. The transporting vehicle driver shall carry the permit on his person or in the vehicle. An individual receiving, storing, or trans-shipping marine plants in the absence of documents describing the origin of the plants, and accompanied by land owner permission, shall be guilty of theft. As used in this section, "receiving" means acquiring possession, control or title, or lending on the security of the plants. The Town of Whiting Clerk shall maintain a file of permission documents for review by enforcement officers. The Clerk shall have no other responsibility relative to permission documents. Section 5. Validity and Separability Should any section or provision of this ordinance be declared by any court to be invalid, such decision shall not invalidate any other section or provision of the ordinance. When the requirements of this ordinance are inconsistent with requirements of any other ordinance, code, or statute, the more restrictive shall apply. Section 6. Penalties Consistent with MRSA Title 30-A, Sec. 4452, the minimum penalty for harvesting, possessing, or transporting marine materials without express landowner permission shall be $100 and the maximum penalty is $2,500. In setting a penalty, the court shall consider, but is not limited to, the following: (1) Prior violations by the same party; (2) The degree of environmental damage that cannot be abated or corrected; (3) The degree to which the violation continued following an orderto stop; (4) The extent to which the Town contributed via false information or failure to take timely action. The maximum penalty may exceed $2,500, but may not exceed $25,000, when it is shown that there has been a previous conviction of the same party, for illegal harvesting, possession, or transporting in the Town of Whiting, within the past two years. |