MSA Submits a Flood Closure Proposal to DMR

May 7, 2010

SOURCE: MSA

Download the full text (PDF file)

In May the MSA Board of Directors offered the following proposal to the Maine Department of marine Resources.

Industry Proposed Flood Closure Transition Plan

May 7, 2010

Executive Summary

The industry is currently suffering with a two-inch flood closure policy administered by the Maine Department of Marine Resources (DMR), compounded by the perception of less DMR discretion since the Industry Audit. This “lack of discretion” has resulted in strict and rigid policy interpretations. Previously, the DMR had the ability to exercise their best professional judgment, evaluate circumstances, and often hold off on a closure until 3 inches of rain had fallen. Often, based on the totality of circumstances such as expected rainfall amount, ground conditions, or recent rain events, no closure was implemented.

On March 9, 2010 the Board of Directors of Maine Seafood Alliance (MSA) agreed to approach DMR and other industry sectors to begin a dialog to move toward a plan that will mitigate the negative effect that flood closures have on the Maine shellfish industry. A closer look, however, at the 2-inch flood closure policy strongly suggests that the current policy is inherently over-simplistic and inadequate to address the variety of flood condition impacts on Maine's different growing areas, various industry segments, and changing weather patterns.

In this document, the MSA is proposing a strategic plan to address flood conditions in the future. This proposal takes the form of a transition plan and recommends regional flood impact zones, timed re-openings, discontinuation of the flood sampling protocol, and repair of the systematic random sampling database. Advantages of this approach include:

• Fewer overall regional and state-wide closure days,
• Less damage to industry allowing improved supply management,
• Repair of the systematic random sampling (SRS) database and protection of the P90 ,
• Equivalent and/or improved public health protection, and;
• Less disruption and better use of industry-critical resources within DMR.

In addition, it is the hope of the MSA that this effort will improve overall industry/regulator relations and increase the level of discretion that the Maine DMR must have to operate as an effective public health entity.

Introduction

Statement of Purpose

In recent years adverse weather conditions, industry frustration, and industry's general lack of understanding of the National Shellfish Sanitation Program (NSSP) principles have combined to reduce the ability of the DMR Public Health Division to utilize their discretion. A result has been to reduce flexibility and increase conservatism within DMR. Of late, the DMR is held to hard and fast “rules” even when this might not be absolutely necessary. Such an approach impacts the entire Maine molluscan shellfish industry and often has the effect of penalizing some regions and industry sectors that may not have detrimental effects with two inches of rain. Some areas may not show an adverse effect of rainfall on their shellfish until three inches, or perhaps even four. Yet under the current situation where DMR cannot use professional judgment, all areas are treated the same under the two-inch flood closure policy. Changes in regional weather, rainfall patterns, and perhaps even climate over the past ten years require increased flexibility and creativity, decreased conservatism, and abundant discretion within the DMR. The Department needs full discretion and industry support to bring positive change to the program so that damage to the shellfish industry from flood closures is minimized. The purpose of this proposal is to recommend a new flood closure policy for DMR consideration, to support and encourage DMR in these efforts, and to return the needed level of discretion back to the department.

Statement of the Problem

Practices that started many years ago in a genuine effort to keep poor water quality scores collected during times of flooding out of the SRS water quality database led to the current two-inch flood closure policy. The strategy of protecting the P90 by suspending SRS during flood conditions has been somewhat effective in preventing further downgrades of classification of key high flood impact growing areas. With the increased frequency of two-inch and higher rainfall events over the past several years, this strategy has backfired and big gaps in the data have developed. Consequently there is insufficient data to keep growing areas open following rain events.

Systematic random sampling (SRS) was developed by the Interstate Shellfish Sanitation Conference (ISSC) as an alternative to adverse pollution condition sampling. SRS is more efficient for water quality monitoring personnel to pre-schedule and collect water quality samples in an orderly fashion even during flood conditions.

Under normal conditions, water quality samples are collected according to a schedule based on the SRS requirements in the NSSP Model Ordinance. A vast number of sampling stations are distributed along the Maine coast. DMR collects and evaluates these samples a minimum of 6 times per year. The most recent 30 samples are used to determine the geometric mean and the 90th percentile. Growing area classification is limited by standards for geometric mean and 90th percentile based on the laboratory method employed and the standards in the Model Ordinance. A flood closure suspends or vastly reduces SRS in order to handle the flood sampling protocol workload. This is resource intensive, is exhausting on DMR, and only samples a smaller subset of Maine sampling stations. This leaves a significant data gap in the majority of water quality sampling stations along the coast.

By focusing all efforts on reopening, gaps in the database have formed around rainfall and flood events. In the absence of data showing which growing areas consistently test clean during heavy rains and floods, regulators are unable to keep Maine's non-degraded shellfish growing areas open. The more we try to keep things open, the more the SRS database becomes fragmented. It is imperative that this Catch-22 stops. SRS must continue on schedule, regardless of rainfall/flooding conditions, so that over time, DMR can see where the impact is and where it is not.

There are many inherent advantages in using SRS in Maine. The manpower needed to sample all stations in Maine after a rainfall event using adverse pollution condition at all the sampling stations in Maine is unrealistic. DMR is already pushed to its limits in an effort to sample a minority of sampling stations (70 out of the Boothbay Harbor Laboratory alone requiring three 12-hour runs and extra laboratory resources). Obtaining two clean back-to-back samples requires doubling this effort, at a minimum. Imagine the manpower and laboratory resources needed to sample all of Maine's 1000+ water-quality monitoring stations, State wide over the adverse pollution condition of a two-inch rainfall. It is simply not feasible. This is why the ISSC developed the SRS protocol. This SRS protocol can be very forgiving. It is widely used in other states. With monthly systematic random samples, the probability of missing a single flooding rainfall event with a 3-5 day window of degraded water quality is significant. Over time, however, systematic random sampling will detect sensitivity to rainfall and flooding conditions. These conditions, once identified, do not necessarily close the growing area. The impacted data can be excluded from the calculation of P90 if the growing area is closed during the period of time when the degrading conditions exist.

Economic Significance of the Problem

Flood closures have a significant negative impact on the State of Maine. Lost harvesting does not merely impact diggers, growers, dealers, and businesses, which serve the shellfish sector but reaches throughout the state. What starts as supplies that go un-bought and marine fuel un-pumped dominoes ultimately into income lost for Maine families, sales lost for Maine tourist businesses, a net loss of revenue to the state for shellfish that go un-exported to markets anxious for them throughout the nation.

A January 2008 study conducted by Kevin Athearn, PhD, Assistant Professor of Natural Resource Economics at the University of Maine at Machias, examined 2005 shellfish closures to determine real and estimated economic impact upon the state. The Athearn study, in which Maine DMR provided data on landings and closures, found that combined flood and red tide closures that year resulted in total soft-shell clam, mahogany quahogs, and mussel harvester losses of $5.96 million. Projected out, this represented a total loss of sales of $14.8 million to Maine businesses, of which $7.9 million was lost income for Maine residents.

Further, Athearn went on to estimate total losses for a single week of closure to shellfish harvesting during busy summer months such as August run as high as $2.9 million per week.

It is important to note that this study did not include lost sales of oysters, hard clams or whelks. The actual losses are significantly greater when these species are included.
2009 was a year with an extraordinary number of damaging flood-closures and 2010 is off to a disastrous start with four flood closures through late April.

On top of such immediate effects, Athearn also found long-term impact of shellfish closures compounding the economic losses. Not only may consumers avoid shellfish after negative media publicity surrounding a closure, Maine dealers find their positions compromised by the interruption in shellfish supply. Jin et al. (2008) describe lost markets and reduced demand following closures in 2004 and 2005, when supply is disrupted shellfish buyers switch to other regions or different species that offer a more reliable pipeline. Lower prices in 2006 suggest such effects lingered well after 2004 and 2005.

It is clear that both the immediate impact and the long-term effects of flood closures call for a collaborative effort between the Maine shellfish industry and DMR.

Industry Strategic Plan for Flood Conditions

Regional Flood Impact Zones

Maine has a vast coastline with distinct regional differences in population density, watershed character, and water quality sensitivity to flooding conditions. For example, Southern Maine is typified by high population densities in a narrow strip of land east of the Route 1 and Interstate 95 corridor. This population density is generally concentrated along small inland estuaries with shellfish growing areas. This section of Maine and its growing areas are susceptible to rainfall and fecal contamination with heavy runoff. In contrast, the southern extent of the comparatively sparsely settled Blue Hill Peninsula is oceanic, characterized by limited upland watersheds and open bays and islands jutting into the ocean remote from river systems. This growing area would be resistant to rainfall and flood degradation of water quality.

With this in mind, the concept of regional flood impact zones is offered and a model is developed. This model specifies three zones of rainfall/flooding sensitivity including:

• High Flood Impact zones correspond to regions with high rainfall/flood sensitivity,
• Medium Flood Impact zones correspond to regions with moderate rainfall/flooding
sensitivity, and;
• Low Flood Impact zones correspond to regions with low rainfall/flooding sensitivity.

Southern Maine would be an example of a high flood impact zone and the Blue Hill Peninsula a low flood impact zone. In this fashion, section maps can be developed categorizing the Maine Coast into one of these three flood impact zones. Many prohibited and restricted growing areas exist in Southern Maine and in Western Casco Bay where the high flood impact zone is appropriate. The high flood impact zone will give protection to the P90 if systematic random samples collected during flood closure are excluded from the calculation. There are many industry and recreational interest groups in this region who may prefer the high flood impact designation. The region off the Blue Hill Peninsula may prefer the low flood impact designation and this would be appropriate with respect to Public Health.

Three ranges of rainfall ranges are specified in this model and include:

• Heavy Runoff corresponding with greater than 2 inches in 24-hour or 3 inches in
48-hour rainfall events,
• Significant Flooding corresponding with greater than 3 inches in 24-hour or 4 inches
in 48-hour rainfall events, and;
• Major Flooding corresponding with greater than 4 inches in 24-hours or 5 inches in
48-hour rainfall events.

The Flood Impact Matrix (shown in Figure 2) consists of the three flood impact zones as the column headings and the three rainfall ranges as the row headings. The intersection of the various flooding impact zones and rainfall ranges prescribe different actions by the DMR. In this manner, the model recommends appropriate action as a function of the rainfall/flooding event and the rainfall/flooding sensitivity of the specific zone.

For regional flood impact zoning to work in a practical manner, it is paramount that broad regions or zones are identified. While sanitary surveys are growing area specific, flooding events are regional. Thus issues of enforcement, closure notifications, and practicality necessitate a regional approach to emergency flood closure policy. Patch working for local interest groups will so complicate this approach as to make it unfeasible. The coastline of Maine is surprisingly adaptable to regional flood impact zoning. For instance, Western and Inner Casco Bay would all be suitable for the high flood impact designation. Outer Eastern Casco Bay would be suitable for a medium flood impact designation. The region between Cape Small and Boothbay is strongly influenced by the Kennebec River and supports the high flood impact designation. Section maps color-coding high flood impact in red, medium flood impact in yellow, and low flood impact in green are presented later in this proposal.

Basis for Flood Impact Zoning

The basis for flood impact zoning would include:

1) Upland watershed and population analysis,
2) The current classifications determined through sanitary surveys,
3) Existing systematic random sampling database and flood data, and;
4) DMR experience and discretion.

Analysis of the upland watershed need not be overly complicated or involved. Major river systems draining population centers such as the Kennebec and Penobscot River require larger high flood impact zones. Multiple small rivers and streams draining villages with higher population densities, as in Southern Maine, would require the high flood impact zone. Regions on peninsulas, islands, or in outer reaches of large bays such as Penobscot or Frenchman Bay are only impacted by the most severe flooding circumstances. An abundance of restricted or conditionally approved areas typically indicates rainfall sensitivity. Rainfall sensitivity in a large inner bay would suggest high flood impact zoning and require protection of the P90 as in Western Casco. DMR personnel have extensive knowledge, experience, and data, which can be used to refine these zones. Although the SRS database is currently fragmented, it is still useful when combined with the limited flood data to identify the regions of high, medium, and low flood impact. Once the systematic random sampling database is repaired and complete, it will be essential to validating these flood impact zone assessments.

Closures and Timed Re-Openings

Timed re-openings are a major element of this proposal. Presently, when a two-inch or greater rainfall event occurs, the standard operating procedure (SOP) is to close the region, wait 2 days, sample on the third and fourth days and read those samples on the fifth and sixth days. If the data is clean, the region can be opened after reading the results on the sixth day. The existing flood closure sampling protocol has demonstrated that over time six-day closures are adequate for the 2 to 3 inch in 24 hours or the 3 to 4 inch in 48 hours flooding/runoff events. Under these conditions, water quality returns in 3 to 4 days (6 to 8 tide cycles). Two days of in-situ depuration are required for the purging of potential pathogenic organisms, which may have accumulated in the shellfish gut during the contamination event. Over the past eight years of flood closures, six days have proven adequate to protect public health.

The Flood Impact Matrix specifies the need for closure and the duration in days of the closure for each flood impact zone after various rainfall/flooding events. Since the duration in days of the closures are prescribed by the Flood Impact Matrix, the closure notices can be written to include the re-opening dates. Thus timed re-openings after flood closures are developed. For example, a State-wide 2.2 to 2.8-inch in 24-hour rainfall event would trigger a six-day closure in the high flood impact zones. No closures would be needed in the medium and low flood impact zones. If such a flood closure was to occur on April 5th and signed as of 2:00 PM, then closure notification could include the timed re-opening of April 11th at 2:00PM.

There are great advantages for DMR with respect to program management with this approach. Although the closure procedures are nominally more complex than what currently exists, the re-opening dates can be specified in the closure announcements. This alleviates the need to execute the flood sampling procedures as well as re-opening procedures and corresponding notifications. In addition to significant savings in effort, manpower, and resources, the integrity of the systematic random sampling database will be restored and preserved; a top priority.

Advantages

The advantages for the DMR and industry with the suggested approach are substantial and immediate. They include:

1) Fewer overall regional and state-wide closure days,
2) Timed re-openings leading to better supply management by industry,
3) Less stress and disruption for all dealers, harvesters, municipalities and regulators,
4) Repair of the systematic random sampling database for a better program in the future,
5) Significantly less resource intensive for DMR,
6) Protects P90's where appropriate, and;
7) Equivalent public health protection.

Proposed Flood Condition Transition Plan

The FDA and the ISSC may use a transition plan as a basis for program change. The program recommended here is consistent with approaches taken by state and federal regulators and industry within the ISSC. The FDA is well versed in the pragmatic difficulties in program change and desires conformity with the Model Ordinance and a reasonable level of consistency between different state shellfish control programs. In general, the Agency responds positively to a well thought out and deliberately executed transition plan, especially if it moves the program towards a higher level of conformity. The process flow chart presented below in Figure 1, provides a timeline and details on the tasks required.

Figure 1. Proposed Flood Condition Transition Plan

Proposed Flood
Condition Transition Plan

DMR Review, Modification,
And Implementation

2010 Transition Flood Plan
• Flood Impact Matrix
• Timed Re-openings
• Section Maps
• Closure Procedures

DMR Flood Policy Direction
• Suspend Flood Sampling Protocol
• Prioritize Systematic Random Sampling
• Optimize Closure and Timed Re-opening Procedures
• Refine Flood Impact Matrix, Section Maps, and
Flood Impact Zones Lines

2015 Validated Flood Plan
• Validated Flood Plan
• Repaired Database
• Optimized Program

Flood Impact Matrix

The Flood Impact Matrix combines the concepts of rainfall ranges, impact zones, and timed re-openings. Figure 2 compares the Flood Impact Matrix with the current Flood Closure Protocol (grey). The high flood impact (red), medium flood impact (yellow), and low flood impact zones (green) correspond with suggested zoning in the section maps in the next section of this proposal. Rainfall conditional closures (not shown in the matrix) activate on less than 2” of rain and are all 14 days in duration. The restricted areas within high flood impact zones are exempted from closure until major flooding condition of >4” in 24 hours or >5” in 48 hour occur. Depuration plants are required to go into the more conservative “conditional status” protocol during significant runoff and flooding conditions, which elevate testing requirements and lot release criteria.