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June 21, 2017

Legal Update
Dylan Sanders

Local conservation commissions may clam(p) down on hydraulic dredging

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In a case with significant implications for the management of the state’s shellfish industry, the Massachusetts Appeals Court has ruled that local conservation commissions, acting under their authority from the state Wetlands Protection Act (WPA), may regulate hydraulic dredging for sea clams—even where doing so impinges on rights otherwise granted to fishermen under state permits from the Department of Marine Fisheries (DMF).

In Aqua King Fishery v. Conservation Commission of Provincetown (June 16, 2017), the Appeals Court struck down a Provincetown bylaw that regulated hydraulic dredging, after finding the bylaw inconsistent with state law. But the Court also held, in a significant win for local jurisdictions, that Provincetown could regulate hydraulic dredging for sea clams in shallow waters in its capacity as the local enforcement authority under the state Wetlands Protection Act.

Hydraulic dredging is a method for harvesting clams from the ocean floor. It uses high-pressure jets of water to drive clams from the sediment or sand. Once in the water column, the clams are ensnared by an open-mouthed cage, or dredge, which is towed along the ocean bottom behind a fishing vessel. (Hydraulic dredging is also called “mechanical harvesting,” to distinguish it from traditional harvesting of shellfish with hand rakes.)

Some representatives of the clamming industry claim that hydraulic dredging is the only commercially viable method for harvesting sea clams. They also argue that the water pressure used only temporarily disturbs soft sand in areas that generally are subject to natural wave and current action, in which clams have evolved to survive. Other fishermen, as well as environmentalists and conservationists, argue that the technique is harmful to the environment in general, and to the sea clams’ near-shore habitats in particular.

In 2007, after studying the issue, Provincetown enacted a regulation under the town’s wetlands bylaw that prohibited hydraulic dredging in wetlands-resource areas without a filing with the Conservation Commission. (The resource areas were those where the water was less than 40 feet deep, measured at mean low tide.)

Provincetown’s regulation led to several confrontations between the Provincetown Conservation Commission and fishing vessels that ignored the regulation (see, e.g., here and here). The fishermen pointed out that hydraulic dredging is permitted, at certain times and in certain areas, by regulations administered by the Department of Marine Fisheries, and the fishermen contended that DMF’s statutory and regulatory authority preempted Provincetown’s attempt to regulate the dredging practice in shallow surf-clam habitats. These confrontations culminated in the Provincetown Conservation Commission issuing enforcement orders to the owners of several vessels, including the Sentinel, owned by Aqua King Fishery.

Aqua King Fishery appealed the Conservation Commission’s enforcement order to the superior court. A judge ruled that the town’s bylaw was preempted by state law, but still granted the Conservation Commission the injunction it sought, based on its authority as the enforcement authority under the Wetlands Protection Act.

On appeal, the Appeals Court agreed with the superior court and Aqua King that state law preempted Provincetown’s attempt to regulate the harvesting of sea clams under its local wetlands bylaw. The Court looked to a state statute that expressly authorizes towns “to control, regulate or prohibit the taking of . . . any or all kinds of shellfish,” except sea clams and ocean quahogs, and held that this effectively withheld from municipalities the authority to regulate the commercial harvesting of sea clams through such local regulation.

But the Appeals Court also agreed with the lower court that the state Wetlands Protection Act, and regulations enacted under it, required anyone conducting a “dredging” activity in a resource area subject to the conservation commission’s jurisdiction, to file with the commission a “notice of intent” and obtain an “order of conditions” for such activity. It was clear to the court that in general, “dredging without filing a notice of intent . . . and without receiving an order of conditions is expressly prohibited by the WPA.” And the court had little problem finding that hydraulic dredging for clams was a form of dredging governed by the WPA, since “the express definition of the term ‘dredge’ . . . includes even a slight or temporary deepening of the ocean floor.” Dredging is dredging, said the court in essence, no matter what the ultimate purpose of the activity might be.

The Appeals Court also gave short shrift to Aqua King’s argument that so long as its activities were in compliance with its DMF shellfish license, which permitted it to hydraulically dredge for sea clams in the shallow water where and when it did, no order of conditions from the Provincetown commission was required. In the court’s view, nothing in DMF’s regulations or grant of a license “prohibits further regulations by other authorities, including the commission, affecting other unspecified areas or times of the year.” Implicit in this conclusion is the thought that the WPA and DMF regulations serve different, independent purposes: the former to protect wetlands resources, the latter to manage fish and shellfish.

Aqua King Fishery has been closely watched by both fishermen and local regulators on Cape Cod and elsewhere in the state. Subject to possible further review by the Supreme Judicial Court, the decision provides important clarity for the management and protection of shallow-water shellfish habitats.

Interestingly, neither DMF nor the Massachusetts Department of Environmental Protection (MassDEP), the agency responsible for administering the Wetlands Protection Act, participated in the case. One possible opportunity for future development on this issue could occur if a party unsuccessfully files a notice of intent to conduct hydraulic dredging in a wetlands resource area, and then seeks a superseding order of conditions from MassDEP. Stay tuned.