In June of 2017, the Massachusetts Appeals Court addressed the scope of authority of the Wetlands Protection Act (WPA) over commercial fishing using hydraulic dredging methods. In addition, the Court addressed whether a town by-law prohibiting hydraulic dredging with respect to commercial fishing is preempted by state law.

In Aqua King Fishery v Conservation Commission of Provincetown, the Conservation Commission of Provincetown (Commission) alleged that Aqua Kind violated both the WPA and a Provincetown by-law when it failed to obtain a permit from the Commission before engaging in hydraulic dredge fishing off of the coast of Provincetown. Specifically, Aqua King engaged in clamming using methods what the Commission deemed to be “dredge fishing” without a permit, and the Commission issued an enforcement order requiring Aqua King to cease dredge fishing and file a restoration plan with the Commission for the affected seabed. Aqua King challenged the Commission’s authority to issue such an enforcement order. The Superior Court held that the Commission had the authority to issue an enforcement order under the WPA, but not the by-law. Both parties appealed the Superior Court’s ruling. The Court of Appeals affirmed the Superior Court’s decision.

The Appeals Court first addressed Provincetown’s by-law, which prohibited any kind of hydraulic dredging without a permit from the Commission. The Court noted that although municipalities may enact by-laws such as the one at issue, they cannot adopt by-laws that are inconsistent with state laws. The Court therefore looked to MGL c. 130, sec. 52, which authorizes towns to regulate “…the taking of…all kinds of shellfish…” except for two types of shellfish, one of which is sea clams. Looking to the legislative intent of carving out only two specific exceptions, the Court determined that the state meant to withhold authority from municipalities for regulations related to sea clams. Thus, the Court concluded that the Superior Court correctly held that the Commission did not have the authority to regulate the fishing of sea clams in its by-laws and it therefore could not require Aqua King to apply for a permit to fish for sea clams under the by-law.

The Court also addressed whether the Commission properly issued its enforcement order pursuant to the Wetlands Protection Act. Aqua King argued that commercial fishing is regulated by the Division of Marine Fisheries and therefore cannot also be regulated by the WPA, as the WPA falls within the authority of the Massachusetts Department of Environmental Protection (DEP). The Court, however, noted that although the Division of Marine Fisheries (pursuant to 322 Code Mass. Regs. sec. 6.08(2)(1993)) had the authority to regulate sea clam dredging, it chose to do so only for specified times of the year. The regulation does not prohibit further regulation by other authorities, such as the DEP, for times of the year not specified in the regulation. The WPA specifically prohibits dredge fishing without first obtaining a permit. Since Aqua King’s fishing practices caused trenches of one to two feet deep and six to eight feet in width, the Court found that this fell squarely within the definition of “dredging” and therefore found in favor of the Commission under the WPA.

The environmental laws, regulations, and codes are complex and, as the Aqua King case shows, often touch on similar issues in different sections of the laws. It is not enough to read only one regulation, as understanding the interplay between federal, state, and municipal regulations is critical to avoiding penalties or “stop work” orders that may affect your business and livelihood. As a company owner, if there is any question whatsoever regarding your company’s actions and compliance with the law, it is always best to seek legal counsel before acting.

John Gardella and Bryna Misiura have represented clients in environmental-related claims, including land cleanup and waste issues. If you have any questions or would like more information, please contact John (email him or 617-936-4353, ext. 204).