AQUACULTURE LICENSES / SHELLFISH GRANTS
 20mm hard clam seed ready for fall planting.  View down the barrel of a graduated cylinder at 300,000 (500 micron size) hard clams Mercenaria mercenaria notata. Tom Leach photo. |
TABLE OF CONTENTS
Final Draft
Section 1 INTRODUCTION
4.1.1 The Town of Harwich Board of Selectmen, through its Natural Resources
Department, establishes the following rules and regulations governing over the development of private aquaculture licenses within the territorial water of the Town. These regulations are established to accommodate the increasing interest in methods of culturing aquatic organisms. This is due in part to four things: (a) the fact that certain natural stocks appear to be over-exploited; (b) an increasing consumer demand and increased value for certain "luxury seafood"; (c) technological advances, and (d) fall out from fishermen employed in an offshore system which is becoming rapidly stressed by over-exploitation and governmental closure regulations.
The feeling of the Town of Harwich toward aquacultural pursuits is one of continued skepticism leaning towards the philosophy that it is very risky at best and the potential for loss is far greater than the potential for gain at this time. Successful aquaculture entrepreneurs should have adequate financial capital to absorb the risk of loss. In short, the Town will not "bail out" any unsuccessful or undercapitalized ventures.
4.1.2 For the purpose of these regulations, the term aquaculture will refer to the
raising or farming of anything in water. The term mariculture is gaining acceptance and refers to the raising of anything in seawater (tidal).
Section 2 ENVIRONMENTAL ADAPTABILITY
BACKGROUND
4.1.2 Animals are most successful in geographic areas where their best living
conditions can be found. Even though many of these operations are economically viable or technically feasible in the particular region in which they are pursued, they will not be so on Cape Cod if the species are physiologically unsuited to this area. The initial screening of aquatic species as a means of evaluating their potential for culture should eliminate those that are physiologically incapable of tolerating the environmental conditions of this area. The species best for farming are those indigenous to the area and offer the greatest production. Trying to farm a species at the ends of its range is foolhardy because these animals live on a marginal basis (Gates 1974). Bringing in species which are not indigenous can be potentially dangerous. The possible introduction of parasites, pathogens, or diseases, as well as competition in an open niche may cause detrimental impacts upon native populations.
Section 3 COMPLEMENTARY DEVELOPMENT
4.3.1 Harwich encourages the complementary development of aquaculture to its
fisheries where and when the method does not threaten or take away from the wild fishery. The Town’s chief obligation is to preserve and where possible enhance the existing wild fisheries. The size and scope of the area licensed shall coexist with and not diminish the common property of commercial and recreational shellfisheries or finfisheries. The Town will allow traditional hook fishing methods to continue to take place in all leased areas, i.e. fluke fishing in Nantucket Sound as an example.
4.3.2 Where a proposal involves shellfish and is being considered for an area that
is considered historically unproductive, it is considered that the wild fishery will be supplemented through increased spawning of parent shellfish stock used on these individual licensed areas or "shellfish farms." Further, where such licenses are allowed as a supplement to the productive "wild" area, it may lead to decreasing pressure on traditional fisheries.
Section 4 LOCATION
4.4.1 It is noted here how and where aquaculture licenses might be allowed in
Harwich. Harwich has several diversely different areas which might be considered for grant possibilities. The dynamics allow for the possibility of five categories:
4.4.2 A-1 Deep Water Nantucket Sound - This would be the deep water area
from the 12’ contour down slope to the deep water of Nantucket Sound. This area would run out to the Town line (marked on the Chart as the line where state jurisdiction turns to federal jurisdiction. At three (3) miles. This area would seem the most likely site for mariculture of species in addition to invertebrates; however, includes restricted zones to protect traffic lanes, etc (see chart). Total cumulative non-resident grant acreage not to exceed thirty (30) acres. Total grant acreage not to exceed eighty (80) acres.
4.4.3 A-2 Near Shore Nantucket Sound - Shallow water from edge of primary
bar to MLW at the beach. This would be less than 10 feet at MLW. This area shall be off limits to grants due to liability of other users, i.e., waterskiers, swimmers, windsurfers, etc.
4.4.4 B-1 Open Embayment Areas - These would include those areas that
continue to stay open throughout the year. These areas include small areas of off-bottom rafts or bottom "trawls" in Pleasant Bay. These areas shall be restricted to Harwich residents.
4.4.5 C-1 Seasonally Closed Areas - These areas are our primary shellfishing
grounds. They are represented as Section 74A closures and include Allen Harbor (south side and channel), Wychmere Harbor, Herring River (south of Route 28), and Round Cove off Pleasant Bay. Aquaculture in this area will be reserved for Harwich residents and are subject to special conditions of the Director of Marine Fisheries under MGL Chapter 130, Section 17A.
4.4.6 C-2 Permanently Closed Areas - These would be backwater areas and
headwaters such as Herring River above Route 28, the Muddy Creek Ponds (west of Route 28), Red River Marsh, Saquatucket Harbor, and Allen Harbor, north side. Mariculture here, if allowed, would be subject to special conditions of the Director of Marine Fisheries under MGL Chapter 130, Section 17A and restricted to Harwich residents only.
Section 5 EXCLUDED AREAS
4.5.1 The following areas are excluded from aquaculture for safety and liability
reasons shown in Figure 1 (chart).
4.5.2 1. Protected traffic lanes as shown on chart fig. 1. These include traffic
lanes used routinely by: commercial fishing vessels to and from Monomoy Point; ferry and recreation boat traffic to and from Nantucket; boat traffic arriving at Harwichport from Martha’s Vineyard and Hyannis west.
4.5.3 2. Protected recreational water sheet. These include: high use regatta
areas used by Harwichport’s sailing fleet; bottom fishing and party fishing vessels; shoreline traffic used by waterskiing interests; swimming areas and protected shor waters governed by Harbormaster regulatory buoys; in Pleasant Bay an area for recreational use as open water as protected.
4.5.4 3. All areas which are a part of the historically "wild" shellfishery.
4.5.5 Of primary concern tot he aquaculture industry is the court’s ruling (Pazolt
v. Director of Marine Fisheries, et. al.) that aquaculture is not an extension of the public’s right to fish in the intertidal tidelands without permission of the owner. Therefore, all license holders working in the intertidal zone shall ascertain the ownership of any intertidal land, privately owned and contact the owner to negotiate an agreement for use of the property.
Section 7 POLICY
LICENSED AREAS
4.7.1 (1) The Board of Selectmen may license specific areas of the waters of
the Town of Harwich to individuals for the purpose of granting exclusive rights to plant, grow, and take shellfish or other marine organisms from that area, said license to be subject to the provisions of MGL Ch. 130, Sec. 57 and any terms, conditions, and/or restrictions set forth in the regulations of the State, Town, its By-laws, or Harbor Management Plan and any specific conditions or restrictions set forth in the license.
4.7.2 (2) This license does not grant any property rights. This license does
not authorize any injury to private property or invasion of private property rights. The issuance of this license is not a determinations of title or ownership. A license holder may not rely on this license as a defense to an action in trespass (see permission).
4.7.3 (3) With the exception of area defined as Deep Water Nantucket
Sound, licenses will be issued only to bonafide domiciled resident of the Town of Harwich, 18 years of age or older, who have knowledge, experience, and resources to fulfill the responsibilities specified in the license. At such time as a licensee ceases to be a bonafide domiciled resident of the Town of Harwich, it is the responsibility of the licensee to notify the Board of Selectmen of this change of residence. The Board of Selectmen will then remove the name of that individual from the license. The status of other licensees will not change.
4.7.4 (4) The Board of Selectmen will accept and process applications for
aquaculture licenses in accordance with MGL 130, Sec 57.
4.7.5 (5) The initial term for a new license shall be two (2) years. The first
renewal of a license may be for five (5) years, unless the licensee agrees to a shorter term. Subsequent renewals may be for five (5) years unless licensee agrees to a shorter term. Renewals may be requested and acted upon during the twenty-four (24) months immediately prior to the expiration date of the license. The renewal period shall begin on the expiration of the existing license.
4.7.6 (6) No license will be for more than one half (1/2) acre in areas
designated as C-1, C-2. No license will be for more than one (1) acre in areas designated as B-1. No license will be for more than ten (10) acres in areas designated as A-1.
4.7.7 (7) Any proposals identifying shellfish rafts in Nantucket Sound shall
apply for a Town of Harwich mooring permit; concurrently applications should be made to the Army Corps of Engineers for structures in navigable waters and buoy permit applications and approval of the Coast Guard. In addition rafts in navigable waters shall be lighted and anchored with chain meeting all mooring specifications.
4.7.8 (8) Bottom trawls shall be anchored using traditional anchors or anchor
pots; high fly buoys shall be clearly marked with shellfish grant markings.
Section 8 RESEARCH AND DEVELOPMENT PROJECTS
.8.1 The Selectmen of Harwich may issue a license to an individual or an
institution (including a corporation) which proposes to conduct aquaculture research and development projects if the Selectmen feel that it is appropriate, in the best interests of the Town, or beneficial to the aquaculture industry. The following terms and conditions will apply:
4.8.2 The initial term of a research and/or development license shall not exceed
two (2) years. The license may then be renewed for a period of up to four (4) years.
4.8.3 The applicant shall provide a plan of the project including all aspects of the
management and operations of the project to the Board of Selectmen, the Natural Resources Department and the Division of Marine Fisheries.
4.8.4 All data and subsequent results shall be organized into a report and made
available to the Board of Selectmen, the Natural Resources Department, and the Division of Marine Fisheries.
4.8.5 The Board of Selectmen may accept any stock produced as a result of the
research project in addition to any fees.
4.8.6 Licenses under this section shall not be transferable to any other individual
or group.
4.8.7 Products resulting from the exercise of this license, in excess of those
required for aquacultural research and development specified in 4.8 will become property of the Town of disposed of (if deceased) by the research corporation.
Section 9 AQUACULTURE GRANT APPLICATION PROCEDURES
APPLICATION FORMAT
4.9.1 Obtain application form, regulations and instructions from the Harwich
Natural Resources Department. Determine if area requested has been previously requested by other person(s). Applicants shall complete and submit all information required by the Town’s approved application form.
4.9.2 What species will you be targeting? If this is not part of the normal range
for the species, explain how you expect the animals to survive. Will the species endanger any niche or other wild species?
4.9.3 Determine and explain in writing what area(s) you wish to apply for, then
designate the area(s) on the chart. Formulate a list of abutters and property owners within five hundred (500) feet from the outside boundaries of the anticipated license area.
4.9.4 Check the substrate of the area to determine the suitability for growing
shellfish. A sieve analysis, penetrations test, and pH measurement of surface substrate and overlying waters, and salinity prism should be conducted and results recorded and included with report.
4.9.5 Determine the extent to which shellfish already exist in the area. What
species and numbers are present? Include both flora and fauna. What are the numbers per square foot? If this is a subtidal area, explain how you conducted this survey (rake, diving, etc.). Is the area historically part of the "wild" fishery?
4.9.6 How do you propose to develop the area selected? Include details of
proposal for management practice. What equipment will be used, i.e. pens, floats, cars, tidal upwellers, anchors, etc.?
4.9.7 Does the proposal require permanent structures being driven into the
bottom? If so, a determination must be filed with the Conservation Commission. If the project involves aquaculture by raft(s), mooring, and/or ground tackle floats or any other structure, it must be approved by the Harbormaster. If the area is one use for boat mooring the Harbormaster may determine that the raft be made part of the waiting list for the spot.
4.9.8 The determination of Division of Marine Fisheries will be made and
forwarded before final permit is issued. Propagation permit must be applied for and received before commencement.
4.9.9 Aquaculture license applications shall be sent to the Board of Selectmen by
registered mail - return receipt requested.
4.9.10 Aquaculture license applications shall be considered for approval on a first
come first served basis. Criterion for approval will be based on creativity, room, and opportunity. Successful applications will be those appearing to have the fewest conflicts. A pre-screening will be conducted by the Harwich Shellfish and Marine Water Quality Study Committee, Harbormaster, and Natural Resources Department who will determine completeness of application and their recommendations by letter will be forwarded to the Board of Selectmen for Public Hearing. In addition, the application may be subject to review and approval of the Conservation Commission, State Division of Marine Fisheries, and the US Army Corps of Engineers.
4.9.11 Following receipt of a complete aquaculture license application, the Board
of Selectmen shall establish an Advertised Public Hearing date and time and notify the applicant and abutters (within 500 feet) by registered mail of the time, date, and place of the hearing.
Section 10 SUSPENSION, REVOCATION, TRANSFER
4.10.1 Any license issued under the provisions of MGL 130, Sec. 57 shall, upon
the death of the licensee, continue in full force and effect, subject to the same terms, conditions, and regulations imposed by the original license, for the balance of the unexpired term, or one year, whichever is longer, for the use and benefit of the immediate family of the deceased licensee. For purposes of this section, immediate family shall mean spouse, son, daughter, mother, father, brother, and sister of the deceased.
Section 11 HOLD HARMLESS STATEMENT
DREDGE LIABILITY CLAUSE
4.11.1 The Town of Harwich will not be held liable for any damage to a licensed
area, or gear, or stock thereon, by reason of any action taken by the Town of Harwich or its employees, nor in any event beyond the control of the Town of Harwich, nor any act of God.
4.12.1 Copies of these Shellfish Policies and Regulations and any supplements
thereto and any temporary regulations, which the Board of Selectmen of the Town of Harwich may from time to time publish will be posted in the Town Hall of Harwich and the Harbormaster’s Office at Saquatucket Harbor.
Section 14 LICENSED AQUACULTURE AREA REGULATIONS
4.14.1 Aquaculture licensees shall file annual reports on their activities in
accordance with MGL Ch. 130, Sec. 57 on or before the 31st of December of each year. This report must include any changes or deviations from the original plan filed with the original application or any subsequent amendment.
4.14.2 Any aquaculture licensee who submits on oath a false licensed area report
in violation of MGL 130, Sec.65 shall be penalized by revocation of the aquaculture license.
4.14.3 Aquaculture licensees may not transfer any rights or responsibilities
assigned to their license to any individual(s) or corporation, except with the express written consent of the Board of Selectmen of the Town of Harwich. Aquaculture licensees shall be responsible for any and all actions taken by any persons, employees, or contracted persons working in the licensed area. Violation will result in revocation of the license.
4.14.4 No person shall plant, transplant, sell, or have in their possession seed
shellfish, sublegal fish, etc., without first obtaining a state seed permit or an aquaculture permit. Except that seed shellfish collected by any means from a licensed area may be possessed or cause to be possessed on that licensed area. In no case shall the amount of seed taken or possessed exceed the amount permitted by the terms of their seed permit. 1st violation - $500, 2nd violation - $1000, 3rd violation - Loss of Grant License.
4.14.5 Every licensee shall mark the corners of the area licensed under their
aquaculture grant with buoys marked with the number of the license. From April 1st to October 30th, the corners shall be marked with fluorescent yellow "poly-ball" buoys, at least twenty (20) inches in circumference. Buoys shall be attached to the anchors with cable, chain, or non-floating lines. Numbers shall be marked on said buoys, and shall be at least two (2) inches high and shall be black in color. From November 1st until March 31st the corners shall be marked by any alternative device, as long as the intent to mark the area is clear. Each violation - $25.
4.14.6 No equipment or gear shall be placed within the boundaries of the licensed
area that rises more than eighteen (18) inches above grade at mean low water. Each violation - $25.
4.14.7 All trays, boxes, holding cars, floats, etc., shall be clearly marked with the
licensees number in a manner that is clearly visible. Each violation - $25.
4.14.8 In the case of deep water aquaculture in area A-1 no sub-surface device,
car, cage, float, etc. designed to contain, hold, grow any species shall float within eight feet of the surface at MLW. Each violation - $25.
4.14.9 There shall be a one hundred (100) foot wide buffer zone between licensed
areas and/or traffic lanes.
4.14.10 Mechanized harvesting gear may be utilized within the boundaries of a
licensed aquaculture area in Nantucket Sound only under seasons allowed under the Code of Mass Regulations (CMR); the Natural Resources Department shall have authority to order anyone so engaged to cease and desist.
4.14.11 No aquaculture license holder shall dig, pile, take, harvest, or carry away
any shellfish or shell during the period from one half (1/2) hour after sunset to one half hour before sunrise by any method whatsoever. In the event of impending natural emergencies due to storms, ice, or the like, and only after notifying the Natural Resources Department of their intention to empty stock from aquaculture trays, pens, cars, floats, etc. the licensee may conduct such activity at such times when extreme weather or tide require immediate action. Each violation - $25.
4.14.12 No person shall plant, transplant, or introduce for purposes of transplanting
seed or adult oysters into any waters or within any shellfish areas within the Commonwealth without first obtaining a special permit therefore from the Director of Marine Fisheries. Any oysters introduced or moved in violation of these regulations shall be confiscated and destroyed. Violation not less than $10 nor more than $1000 or by imprisonment for one month or both. (322 CMR 3.03)
4.14.13 If, in any year, it is determined that there is a harvestable concentration of
scallops in the licensed area, then it will be the responsibility of the licensee to relocate said scallops to an area designated by the Shellfish Constable and under supervision of the members of the Natural Resources Department. In the event that the grant holder fails to remove the scallops from the licensed area, any person possessing a valid recreational permit may enter the licensed area and, by dip netting or dragging, remove scallops for personal use.
4.14.14 If at any time it becomes necessary to dredge and/or otherwise accomplish
maintenance dredging on or within the vicinity of the grant area to improve or maintain any navigable channel the aquaculture licensee will agree under the terms of the permit not to obstruct said dredging operations. The licensee will be given ninety (90) days notice prior to commencement of any dredging operations.
4.14.17 Before, during and after dredging operations are completed and if in the
opinion of the grant holder, the Shellfish Constable and Division of Marine Fisheries, that the bottom conditions are unsuitable for planting or maintaining shellfish, finfish mariculture etc. Immediate and temporary placement of animals shall be relocated at the expense of the licensee.
4.14.18 The Board of Selectmen shall review any aquaculture license renewal
within sixty (60) days prior to the renewal date.
Section 15 ENFORCEMENT
4.15.1 The Board of Selectmen of the Town of Harwich or the Director of Marine
Fisheries may revoke an aquaculture license in accordance with the provisions set forth in MGL Ch. 130 Sections 57 and 65.
4.15.2 The Town of Harwich Shellfish Constable, Deputy Shellfish Constable,
Police Officers (including special officers) and any State or Town Natural Resources Officer, shall have the authority to enforce all sections and subsections and provisions of these Rules and Regulations, which enforcement shall include without limitation the non-criminal disposition included in MGL Ch. 40 Section 21D.
4.15.3 Public hearings will be afforded on revocation or suspension of any
aquaculture license at the next available meeting of the Board of Selectmen.
4.15.4 All sections of Chapter 130 of the Mass General Laws (MGL) which apply
shall be enforced.
Section 16 SURVEY
4.16.1 Prior to issuance of the aquaculture license, the applicant shall be required
to have the area surveyed by a registered engineer or surveyor. A recordable plan delineating the boundaries of the license area together with a full description of the area shall be submitted. If the area proposed is below MLW, the corners of the area may be given in terms of latitude and longitude. A GPS unit accurate to within 30’ may be used to determine this area offshore.
Section 17 FEES
4.17.1 A fifty dollar ($50.00) advertising fee for the public hearing shall be
payable at the time of submitting the aquaculture license application.
4.17.2 An annual permit fee of one hundred dollars ($100.00) per acre or any part
thereof, payable at the time of the grant approval and then on April 1st of each year, shall be required.
4.17.3 A recording fee of ten dollars ($10.00) shall be payable at the time of grant
approval.
4.17.4 A processing charge of four (4) dollars shall be paid at the time of the grant
approval.
Per Order of Board of Selectmen
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Section 12 POSTING REGULATIONS