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Massachusetts Aquaculture White Paper - Legal and Regulatory Issues
The utilization of public and private resources in the coastal zone lies at the bottom of a complex, often confusing mix of federal, state, and local requirements and rules governing aquaculture.
There are several federal, state, and local determinations, permits and/or licenses required to engage in coastal aquaculture. The number of agencies and governments involved, and the corollary amount of paperwork required, will vary with the type of aquacultural activity proposed. The system is a three-tiered one (local, state and federal), reflecting the policy positions, general conditions, and specific local requirements for engaging in aquaculture.
For example, local cities and towns are concerned about managing conflicting land and water uses, such as recreational beach use, areas set aside for recreational boating, coastal development, and public access. Local conservation commissions are concerned about natural resource protection, as they must implement the state Wetlands Protection Act. In addition, local economic conditions are significant factors in the determinations of coastal cities and towns when considering the licensing of particular areas for shellfish grants. In Massachusetts, local authorities with a hand in coastal aquaculture include boards of selectmen/ mayors, conservation commissions, shellfish officers, and harbormasters.
The Commonwealth of Massachusetts has additional concerns. Protection, maintenance, and enhancement of the state coastal zone, coastal wetlands, endangered species, ocean sanctuaries and areas of critical environmental concern (ACEC) are all state priorities. Of similar concern is the protection of local species and water quality. The licenses and permits applicable to aquaculture in Massachusetts, including surface water discharge permits, water quality certifications, waterways licenses, state aquaculture permits, reflect the state agenda. In Massachusetts, the agencies relevant to coastal aquaculture are the Executive Office of Environmental Affairs/Coastal Zone Management, the Department of Fisheries, Wildlife, and Environmental Law Enforcement/Division of Marine Fisheries, the Department of Environmental Protection, Department of Environmental Management, Division of Wetlands and Waterways, and the Department of Food and Agriculture.
The federal government, through the U.S. Army Corps of Engineers, the Coast Guard, the U.S. Fish and Wildlife Service, the National Marine Fisheries Service and the U.S. Environmental Protection Agency, implements a broad national agenda: the assurance that United States navigational routes are maintained, that marine mammals and endangered species (and their habitats) are protected, that waters of the United States are not degraded. The permit and review programs that have application to coastal aquaculture, including the National Environmental Policy Act, the Rivers and Harbors Act of 1899, the Clean Water Act, and the National Pollution Discharge Elimination System permits, protect and advance these policies.
The following overview provides a broad look at the three tiers governing coastal aquaculture.
Shellfish licenses are issued by coastal cities and towns under the authority of Massachusetts General Law Chapter 130, Section 57, for a period of ten (10) years, with a right to request renewal. A shellfish license authorizes a named individual a) to plant and grow shellfish, whether bottom or water column culture; b) to place shellfish in or under protective devices affixed directly to the tidal flats or land under coastal waters, such as boxes, trays, pens, bags, or nets; c) to harvest and take legal shellfish; d) to plant cultch for the purpose of catching shellfish seeds; and e) to grow shellfish by means of racks, rafts, or floats.
Section 57 was amended on July, 10 1994 to eliminate the distinction between bottom culture and water column licenses (previously issued under Section 68A); all licenses for shellfish aquaculture will now be issued under the procedures found in Section 57.
In order to obtain a license, an application under Section 57 must be submitted to the municipality. The exact form of a licensing application and the amount of fees payable vary to some extent among municipalities. The Massachusetts Division of Marine Fisheries (DMF) must certify that issuance of the license will have no adverse effect on the shellfish or other natural resources of the town. This is accomplished by conducting an inventory of existing resources by a DMF biologist at the site. The survey will consist of a description of the total size of the proposed area to be licensed, the sediment composition of the proposed area, the number of transects used for sampling of naturally-occurring shellfish, the method used to conduct the sampling, and the number, species, and size of naturally-occurring shellfish found in the sampling area. DMF must also examine the public record to consider other issues raised, which may include other fisheries, endangered species, eelgrass, etc. If DMF concludes that "no adverse effect" will occur, the area will be certified by DMF.
Issuance of the license does not convey any property rights to the aquaculturist. While Massachusetts honors the public trust rights of fishing, fowling, and navigation in the intertidal zone, it is one of the few states in which private property extends to the low water mark. The Massachusetts Supreme Judicial Court has recently ruled, in Pazolt v. Director of the Division of Marine Fisheries, et al., (April 20, 1994) that aquaculture (generally placing structures, such as nursery trays or boxes) is not part of the public trust right of fishing and, therefore, aquaculturists must obtain permission from the private upland property owner in order to practice aquaculture in the intertidal zone.
Massachusetts General Law Chapter 131, Section 40, the Wetlands Protection Act (WPA), requires anyone who intends to "remove, fill, dredge, or alter" any coastal resource area, including wetlands, beaches, flats, dunes, land under the ocean, and land subject to tidal action or coastal storm flowage, to file an application called a Notice of Intent with the local conservation commission and receive a permit, called an Order of Conditions, before proceeding.
While some projects for the "normal maintenance or improvement of land in ... aquaculture use" may be exempt from WPA restrictions, the local conservation commission must make this determination. Therefore, all aquacultural activities with a potential impact on resources protected by the WPA must file a Notice of Intent with the conservation commission.
Since conservation commission jurisdiction extends to the limits of offshore municipal jurisdiction (3 miles), any shellfish or finfish operation within that area which impacts land under the ocean is subject to conservation commission review. The placement of nursery trays and boxes for shellfish cultivation typically qualifies as a regulated activity under the WPA. In addition, access (particularly vehicular access) to and from the aquaculture operation may also require the filing of a Notice of Intent if the activity will impact or occur within 100 feet of a wetland resource areas (the buffer zone), such as dunes, banks or beaches.
An applicant who is unsure of the conservation commission's jurisdiction may file a "Request for Determination of Applicability" with the commission for a relatively quick ruling as to whether a full Notice of Intent will be required.
The wetland regulations (310 CMR 10.00) provide all necessary forms. The applicant may also obtain forms from the local conservation commission. Upon submission of a completed Notice of Intent, including a description of the proposed work, resource areas, plans, and payment of a filing fee, the conservation commission will conduct a hearing on the Notice of Intent and either issue the applicant an Order of Conditions authorizing the aquacultural activity and setting forth specific terms and conditions under which the activity (i.e. placement of clean sand) shall be conducted; or deny the application if it cannot be conditioned to protect the interests of the wetlands act.
Appeals, called "Requests for Superseding Orders of Conditions," may be taken to the regional office of the Department of Environmental Protection (DEP).
A number of communities also have their own wetlands protection bylaws that may require additional permits for aquaculture operations in wetland zoning districts. If the project is sited in a local wetland district, a separate application must be filed with the town zoning enforcement officer (usually the building inspector or planning board) according to the procedures of the local zoning ordinance.
General Law Chapter 130 provides the primary authority for regulation of activities concerning or affecting aquaculture in Massachusetts. The statute is broadly drawn and includes provisions for state agency authority and oversight of coastal and marine fishing, licensing and permitting, coastal pollution, riparian rights, reporting requirements, specific coastal and marine species, commercial and business activities, wetlands protection, and shellfish activities. The Chapter also vests the authority to promulgate rules and regulations for its implementation in the Division of Marine Fisheries (DMF) within the Department of Fisheries, Wildlife, and Environmental Law Enforcement.
Section 57 of Chapter 130, governing the licensing of shellfish areas for aquaculture, is discussed in the paragraphs above on local permits. Additional sections of Chapter 130 that may be of interest to the coastal aquaculturist include Section 17B aquacultural enterprise permits. Application may be made to the DMF for a permit to possess, take, or harvest any fish out of season and outside of the size limitations if it is (1) for use in aquaculture, and (2) kept separate from natural stock of the same species. This permit would not apply where shellfish seed is re-planted on flats and not held separately from whatever limited natural stock might exist, but is applicable to the sale of seed shellfish.
In addition, DMF issues Section 69 Permits (under the authority of 322 CMR 7.01, 3.03) for possessing or importing seed quahogs, clams, oysters, and scallops.
Massachusetts General Law Chapter 91 protects and manages Massachusetts tidelands and waterways promoting a balance among the many competing public and private uses of the coast. Specific circumstances, provisions, obligations, and requirements are articulated in the regulations promulgated under c. 91 at 310 CMR 9.00 et seq.: Administration of Waterways Licenses.
Chapter 91 also protects the public's property rights in coastal (as well as in many inland) waterways. Below the low water mark in tidal areas, the state owns all land and water outright, while in the intertidal zone, the public has a reserved right to enter and pass freely for the purposes of fishing, fowling, and navigation. The Commonwealth also owns the state's Great Ponds, and protects the public right of navigation on most inland rivers and streams.
In addition to direct ownership rights, the Commonwealth regulates and licenses water-dependent uses such as maritime commerce and transportation, fishing (including shellfishing), recreational boating and swimming, and other activities which enable the public to use and enjoy the waterfront.
Certain aquaculture activities, including bottom, off-bottom culture and fish farms could be required to submit applications for waterways permits or licenses.
Permits under Chapter 91 must be obtained from the local harbormaster for the placement on a temporary basis of moorings, floats or rafts held by bottom-anchor. If the aquaculture activity fits this description, no additional permit is needed from DEP under Chapter 91.
A Chapter 91 license is required for fill or structures in tidelands; the definition of "structure" includes any weir, boom, breakwater, line, or wire, plus any pile-held or permanently fixed float or aquaculture gear. Structure does not include any mooring, float or raft which has received an annual permit from the harbormaster, nor does it include any weir, pound net, or fish trap that has been approved by DMF.
If a license is required, the applicant must provided detailed information on the project, including plans prepared by a registered professional engineer or a land surveyor; must pay occupation and tidewater displacement fees; and must comply with all substantive standards for environmental protection, water-related public rights (navigation, fishing, fowling, free passage), protection of existing water dependent uses, and engineering and construction standards. If the project is located in an Ocean Sanctuary, the applicant must demonstrate during the Chapter 91 process, that the project meets the "public necessity and convenience" requirement of the Ocean Sanctuary Act. Once approved, the applicant is given a long-term, recordable license for exclusive use of the area.
Prior to the issuance of many state permits, the requirements of the Massachusetts Environmental Policy Act, General Law Chapter 30, Sections 61-62H, (MEPA), must be satisfied. MEPA is administered by the Executive Office of Environmental Affairs, MEPA Unit, with regulations at 301 CMR 11.00. MEPA requires the state to review, for environmental impacts many direct state activities, plus many projects that use state funding, or projects that require issuance of a state permit or license. The need for review is typically triggered by the size of the project and type of state activity (permitting, funding, etc.) involved; specific thresholds are listed in the regulations and should be consulted for each proposed project. A request for a determination can be made to MEPA to conclude whether or not the specified project surpasses MEPA thresholds and requires further review. Aquaculture projects are likely not to require MEPA review unless the site is located in an ACEC and the project action is appealed to DEP. Other examples of MEPA thresholds that may be of concern to the coastal aquaculturist include:
* any project resulting in the dredging, filling, alteration or removal of one or more acres of bordering vegetated wetland or salt marsh, or ten or more acres of any other resource area protected by the wetlands regulations;
* any project needing a Superseding Order of Conditions from the DEP that 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; new, expanded, or reconstructed armoring of a coastal bank; the alteration of 1,000 square feet or more of salt marsh, or 5,000 square feet or more of bordering vegetated wetland, or 500 feet or more of bank, or 1/2 acre or more of any other area subject to the wetlands protection act;
* licensing under Chapter 91 of any solid fill structure of 1,000 square feet or more base area, or pile-supported structures of 2,000 square feet or more; and
* any project located in an area of critical environmental concern that needs a state permit or license listed in the thresholds (301 CMR 11.26).
If a listed threshold is met, an Environmental Notification Form (ENF) must be filed, describing the proposed project, the potential for environmental impacts, and the alternatives available that would avoid or minimize damage to the environment. The Executive Office of Environmental Affairs, through its MEPA Unit, will publish and review the ENF in the Environmental Monitor, hold a meeting with state and local agencies, and the public, to identify environmental issues, review any written comments received about the ENF and make a determination about whether further environmental information in the form of an Environmental Impact Report (EIR) is required.
If no EIR is required, there is no further obligation under MEPA and the appropriate state permits may be issued. If an EIR is determined to be necessary, the applicant will have to file the EIR, describing in detail the proposed project, alternatives to the proposed project, a description of the existing environment, an analysis of environmental impacts and the mitigation measure(s) that may be employed to avoid, or if not possible, to minimize negative impacts. The EIR, as was the ENF, will be published and reviewed by the public, state, local agencies and MEPA. Once the Final EIR has been reviewed and certified as complete, the permitting agencies are free to act on the project; each permitting decision must contain a finding (called a Section 61 finding) that all feasible measures have been taken to avoid or minimize damage to the environment.
The Massachusetts Clean Water Act, General Law Chapter 21 Sections 26 - 53, establishes a management structure for the protection and maintenance of the quality of the waters of the Commonwealth.
Section 43 of the Act establishes a program, implemented through the regulations promulgated at 314 CMR 3.00: Surface Water Discharge Permit Program, regulating the discharge of pollutants into the waters of the Commonwealth. These permits are issued jointly with EPA's National Pollution Discharge Elimination System (NPDES) permits described below.
Any activity resulting in a discharge into Commonwealth waters may be subject to the requirements of the surface water permit program and an anti-degradation demonstration. As an example, an aquaculturist establishing a shellfish hatchery might utilize one influent line and one effluent line. Whatever is discharged from the effluent line, such as circulating water, water used to carry nutrients and wastes from seed trays, etc., would be subject to the effluent limits established under the NPDES permit.
The above permits and licenses are generally required of all aquaculture projects located in state waters. Other state agencies may review many aquaculture proposals via MEPA and ACOE interagency reviews. For example, the Department of Environmental Management reviews MEPA, Chapter 91 and ACOE applications with an eye for projects located in Massachusetts Ocean Sanctuaries (generally speaking, all state waters (below mean low water) with the exception of the area between Lynn and Marshfield. The Ocean Sanctuaries Act derives its authority under Massachusetts General Laws, Chapter 132 A, Sections 13-16 and 18 and regulations 302 CMR 5.00. This Act is designed to protect coastal waters by prohibiting activities that could be environmentally or aesthetically damaging. To date, DEM has not taken jurisdiction over any aquaculture project.
State Certification of Federal Permits or Licenses
Section 401 of the federal Clean Water Act (33 U.S.C. 1344), requires states to certify that federal actions, such as the issuance of federal permits or licenses that allow discharges to state waters, comply with state water quality standards. Typically, DEP issues a water quality certification for 1) point-source discharges allowed by federal NPDES permits; and 2) the discharge of dredged or fill materials allowed under federal Section 404 or Section 10 permits. These federal programs are discussed more fully below. DEP is in the process of promulgating new regulations for the 401 program that are compatible with the Army Corps of Engineers Programmatic General Permit (also discussed below). Aquaculture projects that meet certain criteria identified in the new regulations will not need individual water quality certification.
Similarly, the Massachusetts Coastal Zone Management Office must certify federal actions, including the issuance of licenses and permits, to ensure they are consistent with the state Coastal Zone Management Program. The Massachusetts Coastal Zone Management Program contains 27 broad policies that can be found in 301 CMR 20.00. These policies provide the state with an important tool, as they are often the only state standards and review applicable to aquaculture operations in federal waters (i.e. any project beyond the 3 mile limit or the bay closure lines). Federal permits relating to aquaculture which could trigger the Consistency requirement include ACOE Section 10/404 permits, New England Fisheries Management Council actions and NPDES permits.
Section 404 of the federal Clean Water Act (33 U.S.C. 1344), requires a permit for the discharge of dredged or fill material into the navigable waters at specified disposal sites.
Section 10 of the Rivers and Harbors Act of 1899 requires a permit for any activity affecting or obstructing navigable waters.
On August 24, 1993, the Army Corps of Engineers issued a Programmatic General Permit (PGP) to administer both of these programs in Massachusetts. The PGP will be in effect for five years before being reevaluated.
The PGP provides a simplified review process for minimal-impact projects that fall within the Corps' permitting jurisdiction. Most shellfish aquaculture activities will fall under "Category II - Screened PGP" activities. Category II Projects will be screened by the Corps of Engineers and the federal resource agencies (Environmental Protection Agency, U.S. Fish and Wildlife Service, and National Marine Fisheries Service) for a case-by-case determination of the applicability under this general permit.
Substantively, the Corps will look to its previously issued "Letter of Permission" for guidance in determining whether to issue the PGP or to require an individual permit for shellfish operations. The Letter of Permission (dated August 21, 1991) established information requirements (i.e. the proposed work, the location of the proposed license, a description of fill activities (importation of clean sand for nursery trays and subsequent discharge of naturally-occurring dredged sand to the surrounding substrate) and a description of the natural resources and bottom sediments in the grant) and a series of universal conditions that must be satisfied by an applicant.
In order for an aquaculture applicant to receive a PGP, all other state and local permitting conditions must be satisfied; i.e. Order of Conditions, a Section 57 license, Chapter 91 permit, etc. For these projects, applicants should submit a permit application to the Corps; applicants filing a Notice of Intent (NOI) with their local Conservation Commission should submit a copy of their NOI materials to the Corps at the same time they apply to their Commission, along with additional information concerning the work within Corps jurisdiction.
Screened projects may not proceed until written notification is received by the ACOE and the applicable certifications or waivers concerning water quality and coastal zone management are received by the applicant.
Section 402 of the federal Clean Water Act, (33 U.S.C. 1342) requires a permit for any activity resulting in the discharge of any pollutant, or combination of pollutants into navigable waters. These permits, called NDPES permits, are issued jointly with the state. As an example, an aquaculturist establishing a shellfish hatchery might utilize one influent line and one effluent line. Whatever is discharged from the effluent line, such as circulating water, water used to carry nutrients and wastes from seed trays, etc., would be subject to the effluent limits established under the NPDES permit.
In some cases, particularly for large projects or those expected to have significant environmental impacts, the requirements of the National Environmental Policy Act, 42 U.S.C. 4321, (NEPA) may need to be satisfied. The burden is on the federal agency proposing the action (such as permit or license issuance) to identify environmental impacts, to avoid and minimize those impacts, and to explore alternatives that may be less environmentally damaging. An environmental assessment, or if the project is significant and controversial, an Environmental Impact Statement (EIS) is prepared by the permitting agency.
Aquaculture projects located in federal waters could be required to obtain an authorization from the NEFMC to site facilities. No precedent exists for this type of authorization off of Massachusetts state waters although a proposal for sea scallop aquaculture is now before the Council.
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Published: September 1995