New England Fisheries
A dredge is a dredge is a dredge
Three recent Barnstable Superior Court decisions have the potential for wide-ranging effects on the management of the shellfish industry, and present a great opportunity to improve the conservation of critical nearshore habitats around Massachusetts. The cases arose from enforcement actions and fines issued by the Provincetown Conservation Commission (PCC) against three clam dredging vessels for allegedly operating in town waters without a proper permit. Emerging from a tangle of statutory language and regulatory details, the verdicts clarify and reinforce the powers and responsibilities of local conservation commissions.
The turning point in each case was the court’s interpretation of the definition of “dredge.” The Massachusetts Wetlands Protection Act (WPA) defines “dredge” as “to deepen, widen, or excavate, either temporarily or permanently, land below the mean high tide line in coastal waters.” The fishers argued the WPA was intended to regulate construction and excavation dredges, which are substantially different in size, nature, and effect from their hydraulic fishing dredging, so they should not be covered.
While shellfish dredges are functionally distinct from excavation dredges, they still have the same telltale effects as their larger cousins. They leave behind trenches about 8” deep with windrows of sediment on either side. They disrupt, if not destroy, any seafloor vegetation. And they create sediment clouds, which can take up to 24 hours to settle. It can take months for the seafloor to fully recover from shellfish dredges. Relying on expert testimony, scientific studies, and statutory language that does not distinguish different types of dredges, the Barnstable court found “ample grounds” to include hydraulic shellfish dredging gear under the WPA “dredge” definition.
Who holds the power?
The court next considered whether municipalities have enforcement power over shellfish dredges. The answer is pretty clear. The WPA gives local conservation commissions express power to regulate waters within their borders and enforce the statute’s provisions. The WPA also requires any dredging activity to receive approval from the state Department of Environmental Protection (DEP) or the local conservation commission. So if shellfish dredges are included under the WPA, it follows that the PCC and other commissions have authority over them.
But does this conflict with existing fisheries management plans? The fishers argued the power to regulate clam dredging belongs only to the Massachusetts Division of Marine Fisheries (DMF), which already has an extensive regulatory scheme for shellfishing.
The court acknowledged that DMF has the primary ability to regulate fishing industries, but ruled that DEP and conservation commissions are not precluded from creating and enforcing additional rules for two reasons. First, DMF and DEP are part of the same larger state agency—the Executive Office of Energy & Environmental Affairs (EEA). The court found no reason to speculate that DEP could not also create fishing rules, since they would fit within the larger EEA network. Second, the court interpreted DMF rules as the “ceiling” for fisheries management. DEP and conservation commissions are able to regulate shellfish dredging, even if it incidentally impacts the shellfish industry, so long as those rules do not exceed the established “ceiling.”
This creates an overlap. Essentially, DMF has power over the industry as a whole, while DEP and the PCC can create rules regarding specific pieces within the industry. Towns have the ability to regulate shellfish dredging within their local waters but do not have the authority to totally manage shellfishing in their waters. Therefore, it is unlikely that towns can completely ban shellfish dredging in their waters; such a provision would clearly go beyond the “ceiling” set by DMF. They also likely do not have the ability to impose gear restrictions; that work is done at the state or regional level depending on the species.
Dredging restrictions yield environmental benefits
But towns now clearly have some power, such as making certain areas off limits or controlling the number of vessels operating at any given time. This is good news for habitat conservation efforts. Temporal or spatial restrictions, particularly over eelgrass, can have enormous benefits to burgeoning fish populations. These areas often serve as refuges and nurseries for young and juvenile fish and shellfish, particularly cod and scallops. Eelgrass beds also filter water and absorb nutrients, increase dissolved oxygen levels, and reduce storm strength. Eelgrass represent some of the most important habitats on the east coast, and the local knowledge and abilities of municipal conservation commissions put them in very good positions to manage these vital habitats.
While the final rulings coming out of Barnstable will need further clarification, they do present a unique opportunity to increase local control, sustainably manage fishing, and instill new conservation efforts around some of Massachusetts’s most critical and most used ocean areas.
Tyler Archer is a Legal Intern for Conservation Law Foundation.