Approved by the Fish and Wildlife Board
August 25, 1994

Introduction

The Division of Fisheries and Wildlife (DFW) has a mandate to conserve, restore, and manage the biological resources of the Commonwealth. The DFW, through its statutory authority, oversees activities such as fishing, hunting, trapping, and aquaculture. Each of these activities is regulated through a license/permit system and is subject to certain restrictions.

The DFW aquaculture permit process has not been significantly revised since 1968. Since that time, a burgeoning aquaculture industry and changing sportfishing demands have generated many new fish and wildlife issues. In keeping with these changes, the DFW has developed a clear, concise, and standard process for issuing aquaculture permits in the Commonwealth. These regulatory changes simplify and clarify the permit process and enhance resource protection.

The following is a summary of the regulations found in 321 CMR 4.09. This summary is intended only as a guide to permit requirements. The official regulations, available from the Statehouse Bookstore (Room 116, Statehouse, Boston, MA 02133), should be read before any final decisions about aquaculture are made.

There is a glossary in the Appendix that defines the terms found in this review. Although it defines some terms that might be considered common knowledge, a review of the glossary is necessary to fully understand this document.

Aquaculture - 321 CMR 4.09

This section is entitled "Propagation, Culture, Maintenance, and Sale of Protected Freshwater Fish." These regulations are designed to create a clear, concise process for issuing permits for the culture and sale of fish while protecting the Commonwealth's existing fisheries resources from over-exploitation, uncontrolled and unintentional introductions, and disease infestations.

Aquaculture Permits

Except in situations specifically allowed by fish and wildlife laws, it is illegal to possess, maintain, propagate, culture, or sell any fish without having a valid permit in one of four classes:

1) Class 1 private waters permit;
2) Class 2 public waters stocking permit;
3) Class 3 aquaculture permit;
4) Class 6 dealer's permit.

Harvest of fish from the wild is not allowed under any aquaculture permit.

These classes are provided for in general law and defined by fish and wildlife regulations. Fish cultured under an aquaculture permit may be harvested without regard to existing fishing regulations (321 CMR 4.01).

All permit applicants must submit information regarding their intent to culture fish (Table 1). The DFW will review the information and issue or deny the appropriate permit. The DFW may also revoke permits that have been issued if the permit holder violates any of the terms of the permit or any DFW fish and wildlife laws and regulations. Permits are good for one (1) year and renewal applications must be filed before January 1. Renewal applications should be submitted at least 15 days before this deadline to ensure that the paperwork can be handled quickly.

Table 1. Information required on all aquaculture permit applications.

1. applicant's name, address, and telephone number

2. applicant's date of birth

3. in the event the applicant is a corporation, firm, partnership, institution, or agency, the name, address,and telephone number, of the president, director, head, or principal officer

4. the location or locations where the permitted activity will be conducted

5. the species or types of fish or parts thereof which are to be propagated, cultured, maintained, or sold

6. the specific source or sources from which the fish are to be obtained

7. the date of the application

8. the applicant's signature

9. for a Class 3 permit, accurate diagrams, models or drawings in scale or pictures depicting the precise physical conditions under which the fish will be maintained

10. for a Class 6 permit, or for a Class 3 permit issued for commercial purposes, a signed affidavit certifying that the applicant has to the best of his knowledge paid all state taxes as required by the Massachusetts Department of Revenue

11. a written plan detailing the intended activity for which the fish are to be maintained, the disposition of the fish, if relevant, and other information pertinent to a full explanation and justification for the possession of the fish

12. for a Class 3C aquaculture permit, a waste management plan as provided for in 321 CMR 4.09 (4)(a).

Class 1 Private Waters Permit

A Class 1 private waters permit is issued for non-commercial aquaculture. Fish may not be sold under a Class 1 private waters permit. This permit authorizes the permit holder (i.e. individual, club, or association) to buy, possess, propagate, culture, and maintain fish for personal use only. People may fish in a waterbody licensed as a Class 1 without a Massachusetts fishing license as long as they have written permission from the permittee.

Each waterbody permitted under a Class 1 private waters permit must meet all of the following criteria: 1) it may not be located on a great pond or navigable water; 2) it must be designed to allow the passage of anadromous fish that naturally or historically occur in that body of water; 3) it must be conspicuously posted; and 4) it must be exclusively controlled by the permittee. It is important to stress that a stream or pond can not be permitted under a Class 1 private waters permit unless the applicant (i.e. individual, club or association) owns all of the shoreline of the pond or both banks of the stream.

The waterbody used to culture fish under a Class 1 permit is required to have screened intake and outflow conduits to prevent the escape of the smallest life stage being cultured or maintained. For example, if 9 to 12 inch trout are placed in a pond for fishing under a Class 1 permit, the pond must have the appropriate mesh screening to prevent the escape of trout 9 inches or larger. Class 1 permittees are authorized to grow only those fish species that are either: 1) native or naturalized in Massachusetts and found in most (approximately 95%) of the Commonwealth's watersheds; or 2) are listed as commercial bait species as approved by the Fish and Wildlife Board (Table 2). Live fish may not be taken from the premises of Class 1 permittees unless they are to be stocked under a valid liberation permit or transferred to a facility with a valid permit to culture those fish.

Class 2 Public Waters Stocking Permit

A Class 2 public waters stocking permit authorizes the permit holder to purchase, possess, propagate, culture, and maintain fish that are going to be stocked into public waters. The terms and conditions of this permit will be determined on a case by case basis. Fish may not be sold under a Class 2 public waters stocking permit.

Class 3 Aquaculture Permit

A Class 3 aquaculture permit authorizes the permit holder to propagate, culture, maintain, purchase and sell fish. Class 3 aquaculture permits may be issued for three different types of facilities:

1) Type A aquaculture facilities are those facilities with the fewest requirements to prevent the escape of cultured fish. However, they are also the most limited of the facilities in terms of the species that may be cultured;

Table 2: Fish species allowed for culture under a Class 1 permit or a Class 3 Type Aquaculture Facility.

bluegill --- Lepomis macrochirus
brook trout --- Salvelinus fontinalis
brown bullhead --- Ameiurus nebulosus
brown trout --- Salmo trutta
chain pickerel --- Esox niger
emerald shiner --- Notropis atherinoides
fallfish --- Semotilus corporalis
golden shiner --- Notemigonus crysoleucas
largemouth bass --- Micropterus salmoides
mummichog --- Fundulus heteroclitus
pumpkinseed --- Lepomis gibbosus
rainbow trout --- Oncorhynchus mykiss
spottail shiner --- Notropis hudsonius
white sucker --- Catostomus commersoni
yellow perch --- Perca flavescens

2) Type B aquaculture facilities are intermediate in their requirements to prevent the escape of cultured fish and are allowed to grow more species than Type A aquaculture systems;

3) Type C aquaculture facilities have the most requirements to prevent the escape of cultured fish and are allowed to grow the largest number of fish species.

Type A, B, and C, aquaculture facilities have four criteria in common: 1) they may not be located on great ponds or navigable waters; 2) they must be designed to allow the passage of anadromous fish that naturally or historically occur in that body of water; 3) they must be conspicuously posted; and 4) they must be exclusively controlled by the permittee.

Live fish may not be removed from any Class 3 facility without a valid permit to stock or culture those fish. The seller must keep a record of the name, address, and permit number of the buyer.

Although all aquaculture facilities are authorized to propagate, culture, and maintain fish, each type has different criteria to which it must adhere.

Aquaculture Facility Criteria

Type A Aquaculture Facilities

Type A aquaculture facilities are required to have screened intake and outflow conduits to prevent the escape of the smallest life stage being cultured. Type A aquaculture facilities are authorized to grow only those fish species that are either: 1) native or naturalized in Massachusetts and found in most (approximately 95%) of Massachusetts' watersheds; or 2) are listed as commercial bait species (Table 2).

Type B Aquaculture Facilities

Type B aquaculture facilities are required to have screened intake and outflow conduits to prevent the escape of cultured fish and also must be enclosed by a fence or similar barrier to prevent unauthorized access, theft and vandalism. Type B aquaculture facilities are authorized to culture any species found in Table 2 and additional species that already exist, as determined by the DFW, in the watershed in which the facility is located.

Type C Aquaculture Facilities

Type C aquaculture facilities require the most restrictive measures to prevent the escape of cultured fish and protect aquatic resources. These facilities must be designed to ensure the separation of cultured fish from the Commonwealth's natural aquatic environment both physically and biologically. Type C aquaculture facilities must be located and operated outside the 100 year flood plain as defined by the Federal Emergency Management Agency (FEMA). Type C facilities must be located within a secure, permanent, and enclosed building designed to prevent predation from birds and mammals, escape of cultured fish, trespass, theft, and vandalism. These facilities must also be designed, constructed and operated in such a way as to prevent the discharge of biological effluent and diseases into the environment and have a non-polluting waste disposal plan to dispose of solid waste such as fish carcasses. Lastly, to ensure continual water quality maintenance, Type C facilities need to: a) have a functional backup electrical system; or b) discharge all of their effluent into a municipal waste treatment facility.

Fish species that may be cultured in this type of facility include the following: a) all species listed in Table 2; b) all species found, as determined by the DFW, in Massachusetts watersheds; and c) tilapia, white bass, and white bass X striped bass hybrids. Other species may be allowed, at the discretion of the Director, for culture in Type C aquaculture facilities and will be considered on a case by case basis.

Amendments to Class 3 Permits

Class 3 permittees must submit written amendments to the DFW permit office to propose any changes in the species held at their facility or any expansion of the facility. The amendments must be submitted and approved before the changes may take place.

Class 6 Dealer's Permit

A Class 6 dealer's permit allows the permit holder to possess, maintain and sell live or dead fish that were harvested or cultured legally. There are two common situations where this permit is typically issued. First, this permit will allow bait store owners to hold commercial bait species for sale. Second, grocery stores or restaurants that have a live tank of fish, often trout, will be able to operate under this permit rather than having to obtain a Class 3 aquaculture permit. A Class 6 dealer's permit is not needed to sell carcasses that have already been processed and packaged legally.

If fish are to be maintained alive under a Class 6 dealer's permit, the facility must meet the established requirements for holding that species. For example, in order to maintain rainbow trout, the premises of the Class 6 dealer would have to meet the requirements for a Type A aquaculture facility. Live fish, except for commercial bait fish species sold as bait, may not be taken from the premises of Class 6 licensees unless they are to be stocked or cultured under a valid permit. The seller must keep a record of the name, address, and permit number of the buyer when selling live fish.

Special Circumstances Concerning Aquaculture Permits

Recreational Fishing

Fishing in aquaculture facilities (for example fee fishing areas or sportsmen club ponds) is an activity that has gained in popularity over the past decade. DFW regulations do allow for this activity with certain restrictions and when certain guidelines are followed. Class 1 and 3 permit holders may allow fishing in waters under their control. In these situations, the permittee must keep a log book to record the date, number and species of fish removed by angling, and the name(s) and signature(s) of angler(s) who removed fish. This log book must be used for the purposes of recording removal of any fish for which the DFW has set length or creel limits. A dated receipt from a Class 3 permittee with the name of the permittee, number, and species of fish removed will also be acceptable proof of lawful possession. The purpose of the log book or receipt becomes clear in the following example: If an individual is stopped by an Environmental Police Officer and is in possession of four trout, when the limit is three, a receipt from a licensed aquaculturist is necessary to demonstrate that those fish were taken legally. The permittee must keep a record of these receipts for a minimum of two years. State law also allows that, as an alternative to the log book, metal tags may be placed on each fish that leaves the premises.

The Sale of Bait Fish

The sale of bait fish in Massachusetts is an important addition to the income of many tackle shop owners. Recent DFW regulation changes have stipulated which species may be sold as bait and which species may be captured by licensed anglers for their own use as bait (321 CMR 4.01). A Class 6 dealers permit may allow the maintenance and sale of commercial bait species but not the capture of baitfish from the wild. A Class 3 aquaculture permit may also allow the permittee to culture, maintain, and sell commercial bait species, but again does not allow capture from the wild. A shiner permit (321 CMR 4.01) is required to capture designated commercial baitfish species from the wild for purposes of sale.

Scientific and Educational Permits

Scientific, educational, and captive breeding permits will be issued only as Class 3 permits. Fish must be held in indoor facilities that meet the aquaculture facility requirements appropriate to the species being cultured or maintained.

Selling Fish as Food

Class 3 permittees and Class 6 dealers need to meet some additional criteria in order to sell fish as food. They must have a Class 3 or Class 6 permit for each place of business; they must conspicuously post their permit in their business in full public view; and they must meet the packaging, marking and tagging requirements as follows: the fish, once killed, must be wrapped or packaged in containers that are labelled with the name and address of the permittee, and the species name, number, and the net weight of fish in each package.

Summary

The DFW has the authority to regulate aquaculture in the Commonwealth. A process and decision criteria have been established under these regulations to ensure a consistent, fair approach to issuing permits to aquaculturists while protecting the Commonwealth's aquatic resources.

The end result is a permit system that protects the resource and can be more easily implemented and applied to the multitude of modern aquaculture interests.

Click here to go back to the Table of Contents for The Massachusetts Aquaculture White Paper

Published: September 1995