Massachusetts Appeals Court Upholds Applicability of Wetlands Protection Act to Commercial Fishing Techniques Using Hydraulic Dredging Methods

[Elderberry]

The National Law Review by Jeanine L.G. Grachuk and Virginie K. Roveillo Thursday, June 29, 2017

The Massachusetts Appeals Court upheld the applicability of the state’s Wetlands Protection Act (WPA) to commercial fishing activities using hydraulic dredging methods on land under ocean and nearshore areas, clarifying municipal authority to impose additional requirements on activities in wetlands in relation to shell fishing.  However, in the same opinion, the Court concluded that a town bylaw prohibiting hydraulic dredging in nearshore areas without a permit is preempted by state law as applied to sea clam and quahog harvesting.

In Aqua King Fishery, the Conservation Commission of Provincetown alleged that Aqua King Fishery, LLC violated both Provincetown’s Wetlands Bylaw and the WPA when it failed to obtain the Commission’s approval for the use of hydraulic dredge fishing gear for commercial sea clam fishing near Provincetown’s shore.  The town’s Wetlands Bylaw prohibits hydraulic dredging within waters under the Commission’s jurisdiction without a permit.  Similarly, the WPA prohibits the dredging of land under the ocean and areas near the shoreline without obtaining an Order of Conditions from the local conservation commission or the Department of Environmental Protection.  M.G.L. c. 131, § 40.  The Commission concluded that Aqua King’s use of hydraulic clamming gear qualified as dredging within the scope of both the Wetlands Bylaw and the WPA and issued an enforcement order requiring Aqua King to discontinue its dredging activities and file a restoration plan with the Commission. Aqua King challenged the enforcement order in the Superior Court, arguing that the Commission had exceeded its authority.   The trial court affirmed the Commission’s authority to enforce under the WPA but not the Wetlands Bylaw, and both parties appealed.

More: http://www.natlawreview.com/article/massachusetts-appeals-court-upholds-applicability-wetlands-protection-act-to

[Suppressed]

Why should state law pre-empt what the locals want?

[Fishrrman]

Suppressed:
"Why should state law pre-empt what the locals want?"

Fishrrman:
"Why should federal law pre-empt what the states want?"

[InHeavenThereIsNoBeer]

Suppressed:
"Why should state law pre-empt what the locals want?"

Fishrrman:
"Why should federal law pre-empt what the states want?"

Why should local law pre-empt what I want?

[Elderberry]

Why should local law pre-empt what I want?

It doesn't. You don't have to follow the local laws. Its up to you.

[Smokin Joe]

In the river I grew up on, this was called "clam dredging". One county (across the river) allowed it, our county did not. In those days, the bottom of the estuary was mostly sandy, so turbidity was not generally a problem. Now, those clams are extinct, not because of dredging, but because of the ACoE eliminating aquatic vegetation (over 40 years ago) and two incursions by schools of cow-nosed ray which wiped out the clams, but which would not have likely have happened if the vegetation had been intact. (Thanks to the ACoE, commercial fishieries in the area pretty much collapsed within 10 years).