Massachusetts Aquaculture White Paper - Legal and Regulatory Issues

There are several levels of regulatory control that emanate from a multi-agency approach to permitting aquaculture facilities in Massachusetts. Local, state, and federal permits are used to meet the mandates of all regulatory authorities. Each situation or aquaculture facility will have different permits to obtain based on their location, size, and activities. The following is a summary of the agencies and organizations involved in the permitting process of inland aquaculture operations.

Local Organizations

Conservation Commissions, as established in MGL 40:8C, serve to promote and develop natural resources and to protect the watershed resources of their respective towns. Conservation Commissions are responsible for the implementation of the provisions found in the Massachusetts Wetlands Protection Act (MGL 131:40) and will determine if work to be done to an aquaculture facility is significant to 1) public or private water supply, 2) groundwater supply, 3) flood control, 4) storm damage prevention, 5) prevention of pollution, 6) protection of land containing shellfish, 7) protection of wildlife habitat, or 8) protection of fisheries.

Conservation Commissions are most commonly involved with three related permitting processes: Notices of Intent, Determinations of Applicability, and Orders of Conditions.

New aquaculture facilities located within 100 feet of a wetland resource need to file a Notice of Intent (NOI) with the local Conservation Commission. If the applicant has any questions about the jurisdiction of the Wetlands Protection Act, they can request a Determination of Applicability.

After the applicant submits the necessary information to the Conservation Commission, including any additional information requested by the Commission, the Commission will schedule a public hearing, review all relevant information, and then issue an Order of Conditions. The Order of Conditions, which either approves or denies the project may be appealed to the DEP regional wetlands office.

State Agencies

Division of Fisheries and Wildlife

Massachusetts General Law (MGL) chapter 131 provides the primary authority for regulation of inland aquacultural activities. The statute uses general terminology to provide state agency authority over such activities as recreational fishing, importation and liberation of fish, and permitting of aquacultural facilities. The Division of Fisheries and Wildlife (DFW), operating under this chapter and its mandate to protect, conserve, restore, and manage the biological resources of the state, has the authority to make the rules and regulations necessary to carry out the provisions of MGL 131.

Anyone intending to possess, maintain, culture buy or sell any live fish (except aquarium trade fish as defined in 321 CMR 9.01) in freshwater must have an aquaculture permit issued by the DFW. Section 23 of Chapter 131 sets the guidelines by which inland aquaculture permits are issued in the Commonwealth. This section outlines the types of licenses that are available and a general description of those licenses. Section 24 is also directly relevant to inland aquaculturists as it lists some requirements for selling fish as food.

Although sections 23 and 24 are the most relevant to inland aquaculture, the regulatory authority of the DFW stems from sections 4, 5, 23, 24, 26, 30, 49, 50, 51, and 52(a).

Chapter 321, section 4.09, of the Code of Massachusetts Regulations (CMR) outlines the regulations governing inland aquaculture in Massachusetts. These regulations were revised in August of 1994 to provide a more streamline, efficient process for issuing aquaculture permits (See Appendix). These regulations use a "watershed approach" to permitting inland aquaculture operations in Massachusetts. Species that are ubiquitous in Massachusetts (occur in greater than or equal to 95% of the watersheds) may be cultured in any watershed. Species that are not ubiquitous can be grown only in the watersheds where they occur unless the facility growing the fish meets a set of strict criteria. Some of these criteria include facility location restrictions, structural requirements for the fish holding facilities and discharge water requirements. The strict requirements are designed to ensure that cultured fish are separated physically and biologically from wild fish. Uncommon or entirely exotic fish species pose an increased risk to the native species if they were to escape into the wild.

Massachusetts Environmental Policy Act (MEPA) Unit

The MEPA unit is responsible for ensuring that the provisions of the Massachusetts Environmental Policy Act (MGL chapter 30:61-62H) are met before any state permits are issued. The regulations concerning this provision are found in 301 CMR 11.00. The MEPA Unit reviews activities for environmental impacts. Certain thresholds, usually triggered by the size of the project and the type of activity, determine if the provisions of MEPA need to be invoked. MEPA review will usually take place if the following conditions exist:

1. The project involves an Area of Critical Environmental Concern (ACEC) and the project action is appealed to the DEP.

2. The project results in the dredging, filling, alteration, or removal of one or more acres of bordering vegetated wetlands, or ten or more acres of any other resource area protected by wetlands regulations.

3. The project needs a superseding Order of Conditions from the DEP and includes: any fill or structure within a regulatory floodway of rivers or streams delineated under the National Flood Insurance Program; alteration of a primary dune; construction in a velocity zone on a barrier beach; armoring of a coastal bank; alteration of 1000 square feet or more or salt marsh, 5000 square feet or more of a bordering vegetated wetland, or .5 acre or more of any other area subject to the wetlands protection act.

4. The project is located in an ACEC and needs a state permit listed in the thresholds (301 CMR 11.26).

If a review is necessary, the aquaculturist will need to file an Environmental Notification Form (ENF) that describes the proposed project, the potential environmental impacts, and the alternatives available that would avoid or minimize damage to the environment. An ENF must be filed for any discharge to a Class surface water or Outstanding Water Resource. The MEPA Unit would then publish and review the ENF and determine if an Environmental Impact Report is required.

Department of Environmental Protection

The Department of Environmental Protection should be contacted in reference to Surface and Ground Water Discharge permits, and Water Withdrawal permits, and Water Quality Certificates.

The Massachusetts Department of Environmental Protection's (DEP's) Office of Watershed Management (OWM) administers the Surface Water Discharge Permit Program 314 CMR 3.00. This program regulates the discharge of pollutants to the Commonwealth's surface waters and reflects requirements of both the State and Federal Clean Water Acts. Massachusetts is a non-delegated state which means that the United States Environmental Protection Agency (USEPA) controls the permitting process. Dischargers who qualify pursuant to the state regulations must apply to the USEPA (and also the DEP) for a National Pollutant Discharge Elimination System (NPDES) permit.

Those facilities that need permits are those that contain, grow, or hold aquatic animals and discharge at least thirty days per year and also fall into one of the categories below (314 CMR 3.15):

1. Coldwater Species: Those that produce 9090 harvest weight kilograms or more of animals or fish per year, or feed 2272 kilograms or more of food during the month of heaviest feeding.

2. Warmwater Species: Those that produce 45,454 harvest weight kilograms or more of aquatic animals per year.

It should be noted that the Director of OWM can designate any facility as requiring a permit based on location of facility, quality of the receiving water, the capacities of the facility, the quantity and nature of pollutants reaching the receiving water and other relevant factors. These other relevant factors include: the location of the facility in relation to surface drinking water supplies, the presence of Outstanding Resource Waters, flow volume in receiving waters, and trophic status of receiving waters.

Applicants must apply to both the USEPA Region 1 and the DEP simultaneously for a Surface Water Discharge Permit. Applications for a non-process wastewater permit (Category BRP WM 13) are available from the DEP Information Service Center at (617) 338-2255. Application packages include instructions and all the necessary state and federal forms. Permit issuance can take an extended period of time. The USEPA and DEP are currently working on a general permit format for these types of facilities and hope to have one in place within the next twelve months.

Discharge permits under the permit code BRP WM 13 for non-process wastewater have a $500.00 application fee associated with them. There is also an annual compliance fee of $100.00. Permits are issued for five years.

The DEP should also be contacted in regard to Water Withdrawal permits. The Water Management Act Regulations (310 CMR 36.17) regulate the amount of water withdrawn from both surface and groundwater supplies on a watershed basis. Two basins are currently closed for new withdrawals (Jones River and North Coastal). The purpose of Water Management Plans is to assess localized impacts of water withdrawals to other water resources such as public and private water supply wells and wetlands.

Unregistered water users withdrawing over 100,000 gallons per day on average need to apply for a water withdrawal permit and file an ENF. (Existing large water users had an opportunity to register their 1981 - 1985 withdrawal amounts up until January of 1988. These registered withdrawals do not require a permit unless an increase is sought over the 100,000 gallons per day).

Applicants must apply for a withdrawal permit with the DEP's Office of Watershed Management (OWM). There is an initial application fee of $1900.00 for this permit. There is an annual compliance fee of $100.00 and the permit is issued for 20 years.

401 Water Quality Certificates (WQC) are also issued by the DEP. If a new aquaculture facility alters less than 5,000 square feet, the Final Order of Conditions may also serve as the 401 WQC. Facilities that propose to alter more than 5,000 square feet of Bordering Vegetated Wetland, Land Under Water, Isolated Wetland, or an Outstanding Resource Water will require an indivisual 401 WQC. Facilities greater than one acre may also require a 401 WQC.

Federal Agencies

U.S. Army Corp of Engineers (ACOE)

The ACOE is responsible for issuing a Programmatic General Permit (PGP). This permit is issued under section 404 of the Federal Clean Water Act (33 U.S.C. 1344) and section 10 of the Rivers and Harbors Act of 1899. These Acts help protect natural resources from unauthorized dredge and fill and manage obstructions in navigable waters.

There are three categories listed under the PGP: 1) alteration less than 5,000 square feet requires only a Final Order of Conditions, 2) alteration of 5,000 square feet to 1 acre requires a 401 WQC and possibly a 404 permit, 3) alterations of greater than one acre require a 404 permit.

The PGP provides a simplified review process for minimal-impact projects that fall within ACOE jurisdiction. A letter of permission will be issued to the applicant that states all requirements and universal conditions that must be met.

All other state and federal permit requirements must be met before a PGP is issued. For example, when filing a NOI with the Conservation Commission, a copy of those materials should be submitted to the ACOE.

United States Environmental Protection Agency (USEPA)

The USEPA is responsible for issuing National Pollution Elimination Discharge System (NPDES) Permits. These permits are jointly issued with state authorities and were previously mentioned in the section on DEP permits.

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Published: September 1995