Shellfish Advisory Committee
Duxbury , Massachusetts
Allan Hoban, Chairman
Daniel W. Baker,
Secretary
7.3 Shellfish Aquaculture (“Grant Program”)
1.
PROLOGUE
The Town of
2.
AUTHORITY
2.1. The following
Regulations concerning licenses are adopted as part of the Shellfish Management
Plan of the Town of
1.
2.2. A license
shall authorize the licensee at all times of the year, in, upon, or from a
specific portion of the coastal waters of the Commonwealth, of tidal flats or
land under coastal water to:
2.2.1.
Plant and grow shellfish, bottom/off-bottom culture;
2.2.2.
Place shellfish in or under protective devices affixed
directly to the tidal flats or under coastal waters, within boxes, trays, pens,
or nets;
2.2.3.
Harvest and take legal shellfish;
2.2.4.
Plant clutch for the purposes of catching shellfish seed;
and grow shellfish by means of racks, rafts or floats.
2.3.
The
licensing authority shall permit, as a condition of the license, such public
uses of said waters as are compatible with aqua cultural enterprise.
3.
PRIVATE
PROPERTY RIGHTS
Licenses
granted under these Paragraphs do not convey property rights. Any use of a
license for other than digging and taking shellfish upon privately owned
property shall not proceed over the objections of the property owner. Pursuant
to MGL Chapter 130, Section 57, a license does not impair the private rights of
any person. A license does not authorize injury to private property or invasion of private rights. The
granting of a license is not a determination of title or ownership of a
licensed area. The licensee acknowledges, it is the responsibility of the
licensee to obtain permission, if required, from the private property owner
before exercising the rights conferred by
a license other than for the digging and taking of shellfish.
4.
COMPLIANCE
WITH FEDERAL, STATE, AND LOCAL REQUIREMENTS
Approval
of a license shall be subject to all federal, state, and local laws and
regulations, as in force and as amended from time to time. Compliance with such
laws and regulations is required as a condition of a license. Failure to comply
with applicable federal, state or local regulations shall be cause to revoke a
license. The licensee is expected to be familiar with relevant laws and
regulations.
2.
5.
ELIGIBILITY
5.1. PROOF OF
RESIDENCY
Licenses shall
be granted only to residents of the Town who can prove to the
satisfaction of the licensing authority that they are, indeed, a bona fide
domiciled resident of the Town and have been domiciled within the Town for at
least twelve (12) consecutive months prior to the date of the application. All
local tax obligations must be paid in full in order for an application to be
considered. A licensed area shall be forfeited if the licensee, ceases to be a
bona fide domiciled resident of the Town.
6.
MORATORIA
The licensing
authority may declare a moratorium on the granting of licenses at any time when
this action is deemed appropriate and in the best interests of the Town. The
licensing authority will consider applications for licenses on a first come
first serve basis, within the limitations of acceptable land and water space.
Further the licensing authority reserves the right to review the entire Grant
Program and may amend these Regulations at any time.
7.
APPLICATION
PROCESS
7.1. FEES
There shall be
a non-refundable application fee of one hundred dollars ($100.00) of which one
dollar ($1.00) is a recording fee, fifteen dollars ($15.00) is for advertising
in the local paper, and the remainder is for costs incurred in granting the
application. In addition, there shall be a renewal fee of twenty-five dollars
($25.00), and an annual fee of twenty-five ($25.00) dollars per acre per year.
The application fee must be submitted with the completed application form.
7.2. APPLICATION
SUBMITTAL
7.2.1.
The completed application shall be submitted to the
licensing authority by United States Postal Service certified mail, return
receipt requested.
3.
7.2.2.
The application shall be on forms provided by the Town, and shall include a map or
plan of the proposed project sufficient to locate the licensed area accurately,
and to describe the licensed area in metes and bounds. In addition, at the time
of application submittal, the applicant must file with the licensing authority
a shellfish development plan (on the form).
7.2.3. All documents in accordance with this
paragraph submitted shall be submitted under the pains and penalties of
perjury. The Town assumes no responsibility / liability for incomplete or
missing attachments.
7.2.4
The applicant shall also submit any other information as
requested by the licensing authority.
7.2.5
No application shall be deemed received until all the
requirements for submittal of an application have been met.
7.3
PUBLIC HEARING AND NOTICE
7.3.1
Following receipt of a completed application, the Town shall
establish a public hearing date. No license shall be granted, transferred or renewed until after a public hearing,
due notice of which has been posted in three (3) or more public places, and
published in a local newspaper by the Town at least ten (10) days before the
time fixed for the hearing, stating the name and residence of the applicant or
transferee, as the case may be, the date of the filing of the application for a
license, transfer or renewal, and
the location, area, and description of the proposed or currently licensed area.
7.3.2
The licensing authority shall notify the applicant at least
fourteen (14) days prior to the public hearing of the time, date, and place of
the hearing.
7.3.3
The applicant will be required to notify all abutters (as
certified by the assessors office) and licensee’s within seven hundred (700)
feet of any point along the perimeter of the requested licensed area by
certified mail return receipt requested. The notice to abutters and licensees
must be made at least 10 days prior to
the public hearing date.
4.
7.3.4
The U.S. Postal Service Receipt for Certified Mail for each
notice shall be submitted to the licensing authority at or before the time of
the hearing.
7.4
LICENSE
GRANTING
7.4.1 Upon receiving
a completed application, the licensing authority shall forward copies of the
application to the Shellfish Advisory Committee (“Committee”) for comment.
Written comment shall be returned to the licensing authority within thirty (30)
days of being received by the committee. In reviewing the application, the
licensing authority may consider, but is not bound by, submitted comments.
7.4.2 Upon reviewing
the application, and following the public hearing, the licensing authority may
grant a license with or without conditions or deny a license. Licenses shall be
granted or denied in writing within sixty (60) days after receipt of the
written application and shall be granted upon forms supplied by the licensing
authority and upon such terms and conditions and subject to such terms,
conditions and regulations as the licensing authority deem proper, but not so
as to impair or to materially obstruct navigational waters, and a license shall
describe by metes and bounds the waters, flats or creeks covered thereby.
7.4.3 In the event
that the licensing authority shall fail to take vote on a license application
within sixty (60) days after receipt of the application for a license, such
failure shall be considered a approval of the application.
7.4.4 Licenses
granted by the licensing authority are intended to be on a trial basis. To
start, licenses may be granted for a three (3) year period with a compulsory
two (2) year review by the licensing authority.
Licensees may request, only after the compulsory review, a renewal of a
license the third year. Renewal shall be
subject to the approval of the licensing authority. The licensing authority and the Committee
shall review each license annually to insure a reasonable amount of shellfish
has been planted and produced on the licensed area during the preceding year. A
licensee may not have interest in more than one (1) license. For the purposes
of this paragraph, one (1) license shall be the maximum acreage (singly or
aggregate) allowed by law, that may be granted to an individual. Licenses not
exceeding (3) three acres in size may be issued.
5.
7.4.5 In the event the licensing authority approves
the application, but prior to granting a license, the applicant shall request
an inspection and certification of the licensed area by the Division of Marine
Fisheries (“DMF”) that the granting of a license and operation thereunder will
cause no adverse harm on the shellfish or other natural resources of the Town.
Failure of the DMF to so certify shall be deemed a denial of a license.
7.4.6 Upon
certification by the DMF, the licensing authority may grant a license,
provided, however, that no license shall be granted for any areas then or
within two years prior thereto, closed for municipal cultivation under
provisions of M.G.L. Chapter 130, Section 54.
7.4.7 The granting
of a license does not relieve the applicant from obtaining any other necessary
licenses, approvals, and/or permits prior to conducting operations, including,
but not limited to the U.S. Army Corps of Engineers, Massachusetts Department
of Environmental Protection, or any division of the same, the Town's
Conservation Commission, Board of Appeals or Planning Board, all as may be
applicable. Prior to operation, the applicant will be required to have the
licensed area surveyed by a registered engineer or a registered surveyor. A recorded plan defining the boundaries of a
license, together with a full specific description of the licensed area shall
be submitted. Upon completion of the
plan, the applicant shall have the boundaries marked as prescribed by Paragraph 8.3.
7.4.8 The granting
of a license may be conditional upon obtaining all licenses, approvals and/or
permits. All licenses, approvals and/or permits required to use a license shall
be appended to a license.
7.4.9 Licenses
pursuant to this Paragraph shall be subject to any rules and regulations
promulgated by the DMF, including those concerning the use and scope of
predator controls in the intertidal zone, and licenses may be further
conditioned by the DMF as they deem necessary and appropriate, including species
to be propagated and the source and movement of seed shellfish.
6.
7.5
CRITERIA FOR LICENSE GRANTING, RENEWAL AND TRANSFER
In reviewing an application for a new
or amended license; or for license renewal or transfer, the licensing authority
shall determine whether the shellfish aquaculture plan proposed by the
applicant meets all of the requirements of these Regulations and the provisions
of MGL Chapter 130; whether the plan proposed by the applicant is designed so
as to cause no substantial adverse effect on the shellfish or other natural
resources of Town; whether the granting
of a license will not impair the private rights of any person and will not
materially conflict with the purposes of these Regulations to protect and
preserve the existing fisheries and minimize impact on other uses of the marine
environment. Licenses are permissible beyond seven hundred fifty (750’)
feet from mean high water. This
requirement is not applicable in areas that are separated from the shoreline or
mean high water line by guzzles or
channels containing water at mean low
water as interpreted by the licensing authority. Applications
cannot be approved if the area conflicts with existing laws or uses. For any
renewal, the licensee need not file a new application.
8
TERMS OF THE
LEASE
8.1 EXCLUSIVE USE
A licensee, or their legal
representative, in accord with the terms set forth in these regulations shall
have during the term of a license or renewal thereof the exclusive use of all
waters, flats, or creeks described in a license, and the exclusive right to
take all shellfish therefrom during the time therein specified, subsequent to
the granting of a license or the renewal thereof, as the case may be; provided
that this paragraph shall not be construed to authorize any taking prohibited
by law.
8.2 RIGHT TO
TRANSFER AND SUBLEASE
8.2.1 Licenses
are granted to and for the exclusive use of a licensee. Subleasing of the
licensed area or portion thereof is prohibited.
8.2.2 Except as
provided herein licenses are renewable, heritable and transferable subject to
the approval of the licensing authority and pursuant to MGL Chapter 130.
7.
8.2.3
A licensee proposing to transfer his/her license
shall first notify the licensing authority in writing that he/she no longer
wishes to operate a license and requests a transfer of his/her licensed area to
a designated recipient. Such recipient shall thereupon file an application
under Paragraph 7 of these Regulations. Thereafter, the application shall be
treated, insofar as applicable, as a new application.
8.3
MARKING OF BOUNDARIES
The licensee upon receiving
his/her license shall cause the territory covered thereby to be plainly marked
out by monuments, marks, or ranges and to mark the license boundaries (corners)
with stakes. Each boundary stake is to be
a plastic pole with a diameter no greater than 1.5 in. not higher than
18” above the surface of the licensed area with attached a painted yellow sign,
measuring 8” x 10” with two inch block black lettering with the words PRIVATE
LICENSE NO.____” . Signage shall be
visible at mean low tide only. If rafts or any other floatation devices are
allowed and used they will be marked with plastic poles with a sign attached
having the same terminology as above. Reflector paint or tape shall be used in
a manner as to be visible during hours of darkness. Any such boundary marker
shall be subject to the inspection and approval by the Shellfish Constable.
8.4
MARKING AND REMOVAL OF EQUIPMENT
8.4.1 The boundaries
of all hard structures and or devices shall be plainly marked with (6”) orange
sphere buoys every 25 feet to be attached and anchored with a 36 inch length of 1/8 inch tire cord from the
top of any hard structure or device. Each boundary corner of the area of hard
structures and or devices shall be marked with (2) two (6”) orange sphere buoys
as mandated above. Each (6”) orange sphere buoy shall be plainly marked in
(white) on (2) sides with the uniform state waterway marking system (symbol)
for :
DANGER! .
8.4.2
All gear,
tackle or other equipment must be indelibly marked with the number
conspicuously placed on each of piece of equipment.
8.4.3
In accordance
with M.G.L. Chapter 130, Section 32, if gear, tackle or other equipment leaves
the licensed area for any reason and is deposited on the shore, beaches or
flats, whether public or private, a licensee must recover the equipment within
fifteen (15) days from the time of its deposit without any liability for
trespass; provided, that a licensee in so doing does not commit any
unreasonable or wanton injury to the property where the equipment is deposited.
In the event a licensee does not recover the equipment within fifteen (15)
days, the Town shall recover the equipment, at the expense of the licensee.
8.
8.4.4
When a license is terminated for any reason, the licensee
shall be required to remove all gear, tackle or other equipment from the
licensed area within thirty (30) days of the license termination date. Any and
all gear, tackle or other equipment not removed within thirty (30) days may be
removed by the Town at the expense of the licensee.
8.5
HEIGHT LIMITATION
No structure or device (except marking buoys, and as otherwise noted in this Paragraph) shall protrude more than eighteen (18") inches above the substrate. Shellfish may be rafted only in those areas so specified in a license. Shellfish rafting in areas outside the limit of any raft area shall be prohibited.
8.6
SET-BACKS AND BUFFER AREAS
No activity
shall occur within a distance of twenty-five (25) feet from beds of eelgrass,
widgeongrass, or saltmarsh, nor shall such vegetation be damaged or moved. In
addition, a buffer area of seventy-five (75’) feet shall be maintained between
licensed areas.
Buffer
areas, open to anyone and everyone on an equal basis, shall be maintained for
access and retrieval of product and equipment. The lessee shall have 15 days to
retrieve product and equipment from day of giving Shellfish Constable written
notice.
8.7
MINIMUM PRODUCTIVITY, ANNUAL REPORT, AND REVIEW BY TOWN
8.7.2
An annual review of each license will be conducted by the
licensing authority in order to determine substantial use of the lease during
the previous year.
8.7.3
If by the end of the third year, a licensee cannot show
substantial use of the licensed area during the preceding year, his/her license
may be subject to forfeiture. In accordance with M.G.L. Chapter 130, Section
57, for the purpose of this Paragraph, substantial use shall be defined as an
expenditure of $1,500 per acre per year for gear and seed stock specifically
for the grant. Such expense shall be exclusive of vehicle / vessel or other
business development expenses not specifically related to propagation of
aquaculture.
9.
8.7.3
Failure of a licensee to achieve substantial use of the
licensed area for three (3) consecutive years thereafter shall result in a
forfeit of his/her license. If for any year, a licensee does not meet the
substantial use value, then upon written request to the licensing authority the
substantial use requirement may be waived at the discretion of the licensing
authority for that particular year provided that a licensee can demonstrate to
the satisfaction of the licensing authority that the cause of the lower amount
produced is the direct result of a natural disaster or other unforeseen cause.
8.7.4
Licensees shall file an annual report with the licensing
authority in accordance with the form provided by the licensing authority,
submitted no later than December 31 of each year. A licensee shall also submit
upon request of the licensing authority receipts, purchase and sale slips,
etc., reasonably requested by the licensing authority in support of this
paragraph.
8.8
PROHIBITIONS
8.8.1 No person shall dig, take or carry shellfish or shells between one-half hour after sunset and one-half hour before sunrise, by any method whatever, from any waters, flats, or creeks as to which a license under these Regulations. A licensee or transferee of a license violating this Paragraph shall forfeit his/her license and all shellfish remaining on the licensed area.
8.8.2 . All shellfish transferred to the licensed
area shall be obtained from hatcheries or sources certified by the DMF and as
approved by the Committee. Annually, no later than the 1st of
February, the licensee shall seek in writing, on forms provided by the town,
authorization from the committee to obtain seed, seed stock, or stock for the
ensuing year from the hatcheries and or sources selected by the licensee. The
committee will approve or deny the
authorization request in writing, in a timely manner.
8.8.3 No person shall transplant shellfish or shellfish seed to the licensed area until the Shellfish Constable has been notified. Notification shall be in writing at least seven (7) days prior to any transplanting, and shall be attached to documentation of the source and species of the shellfish and copies of permits.
8.8.4 . All
shellfish harvesting shall be by hand without the assistance of power unless
the use of mechanical power is approved by the Committee on a case-by-case basis.
10.
8.9
REVOCATION OF LICENSE
8.9.1 Failure of the licensee to comply
with the provisions of any rule of regulation, term, condition, statute, or law
may result in an order to revoke the license.
8.9.2 Revocation of any license
pursuant to Section 8.9.1 shall be preceded by a public hearing held in
accordance with the Open Meeting Law. The licensee shall be entitled to be
present and have counsel and cross examine any witnesses and present witnesses
on his or her behalf.
9
OTHER
REQUIREMENTS
9.7 AUTHORITY TO INSPECT
9.7.3 The Shellfish Constable and/or deputies shall have the authority to inspect the licensed area at any time deemed necessary and the inspection may include any and all containers on the licensed area.
9.7.4 The Town reserves the right to obtain samples of any species held in the licensed area for the purpose of certification and testing for disease, and in order to assure that the activities begin performed under the authority of this regulation are in accordance with the terms and conditions described herein.
9.8 CHANGES TO THE LICENSE
9.8.3 Proposed changes to a license and all additions of material investments, which may include, but are not limited to, rafts, floats, racks, cages, trays, nets, etc., must be submitted in writing to the licensing authority.
9.8.4 The licensing authority, in its discretion, will determine if the changes are significant, such that further review is warranted. If the changes are found to be significant, the licensing authority shall hold a public hearing to review the proposed changes, public notice of which shall be given as described in Paragraph 7.3. of these Regulations.
11.
9.8.5 For the purposes of this Paragraph, a significant change shall include, but not be limited to, any amendment of a license which may affect the navigable waters; which changes the form of aquaculture or the category of aquaculture performed by the licensee; and any changes which may impact the marine environment.
9.8.6 Upon review of the proposed changes, the licensing authority may approve or deny the proposed changes.
9.9 TOWN REQUIREMENTS AND RECORDS OF LICENSES GRANTED
9.9.3 The licensing authority shall keep in its office plans showing all licensed areas, and in a book devoted to that purpose only, a record of each license granted and transfers or renewals thereof, which shall include the name and residence of the licensee or transferee, the dates of granting the license, transfer, renewal, and expiration thereof, and a copy of the description of the licensed area.
9.9.4 Each license, transfers, or renewals thereof, shall forthwith after the granting thereof be transmitted by the licensing authority to the Town Clerk, who shall enter the name in a book kept especially therefor in its office.
9.9.5 The records shall be open for public inspection at all reasonable times.
9.9.6 The licensing authority, at the expense of the Town, shall provide application forms for licenses including these Regulations and procedures, forms for transfer or renewal, and for annual reporting.
9.10 LIABILITY OF THE TOWN
9.10.3 The licensee shall not hold the town liable for any damages or injury to the licensed area.
12.
9.4.2 In addition the licensee shall not
hold the Town liable for any damage or injury to the licensed area due to any
dredging or improvements done in the best interests of the Town. If at any time
it becomes necessary to dredge and/or otherwise accomplish maintenance dredging
on or within the vicinity of the licensed area to improve or maintain channels
for navigation, a licensee agrees not to obstruct the dredging plans and operations.
A licensee will have ninety (90) days notice prior to commencement of any
dredging operation. Before, during and after dredging operations are completed
and if, in the opinion of a licensee, the Shellfish Constable and the state
marine biologist, the bottom conditions are considered temporarily unsuitable
for planting or maintaining shellfish, immediate and temporary permission for
relocation of a licensee’s stock shall be reviewed by the licensing
authority. In the event that shellfish
need to be relocated under these conditions, they shall be relocated at the
expense of the licensee All foregoing
Regulations shall apply to any temporary placement of shellfish.
10
OTHER
If
any provision of these Regulations is declared invalid by any court or tribunal
of competent jurisdiction, the remaining provisions of these Regulations shall
not be affected.
The
penalty for violations of any of these Regulations shall be a fine not less
than twenty five dollars ($25.00) nor more than two hundred dollars ($200.00)
for each offense and the revocation of license or permit or both.
13.
13.