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September 19, 2017

Legal Update
Dylan Sanders

Update: Massachusetts SJC leaves in place ruling allowing local conservation commissions to regulate hydraulic dredging of sea clams and ocean quahogs

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The Massachusetts Supreme Judicial Court has denied the request of a commercial fishing company that the SJC review a ruling by the Massachusetts Appeals Court that allows local authorities to regulate hydraulic dredging for sea clams in local shallow waters. The SJC’s action leaves in place the decision of the Appeals Court in the case, Aqua King Fishery v. Conservation Commission of Provincetown (June 16, 2017) (previously discussed here).  That decision held that local conservation commissions have authority to regulate this controversial clamming practice under the state Wetlands Protection Act, even where the state Division of Marine Fisheries has issued a permit to allow it.

Hydraulic dredging—or mechanical harvesting—is a method for harvesting sea 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. 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.

The Appeals Court’s decision, now that the SJC has refused further review, provides important clarity for the management and protection of shallow-water shellfish habitats.