The Town of Barnstable advocates the orderly
development of aquaculture that is complementary to the continuing
development of the Town's shellfishery as it pertains to aquaculture
licenses. In consideration of any aquaculture license the Town is
obligated to protect and preserve the existing fisheries and to minimize
the impact on other uses of the marine environment. The right of public
navigation through a license shall not be infringed upon except in
areas containing approved structures that are properly marked according
to these regulations. The size and scope of the license shall co-exist
with and not diminish the common property commercial and recreational
shellfisheries or other existing water-related activities.
[Amended 12-3-2016; 12-1-2018; 12-23-2020]
Aquaculture licenses, herein referred to as the "license," will
be issued to Town of Barnstable residents only who can prove to the
satisfaction of the licensing authority that they are a bona fide,
principally domiciled resident of the Town of Barnstable and have
been principally domiciled within the Town for at least 12 consecutive
months prior to the date of application. Two forms of written proof
of residency are required; tax bills paid by the applicant, rent receipts
with accompanying lease agreement, utility bills paid by the applicant,
driver's license, car registration issued to the applicant, etc.,
may serve as proof. All local tax obligations must be paid in full
in order for an application to be considered in accordance with MGL
c. 40, § 57, which was adopted by Town Meeting in November
1986. Any licensed area so licensed subsequent to the adoption of
these rules and regulations shall be forfeited if the holder of the
license, herein referred to as the "licensee," ceases to be a bona
fide, principally domiciled resident in the Town of Barnstable. Annual
documentation to verify the licensee is principally domiciled in the
Town of Barnstable is required. This may be a current real estate
tax bill, mortgage statement or residential lease and copy of motor
vehicle registration. (A driver's license is not valid proof of domicile.)
The burden of proof is on the licensee and shall be included with
the annual license fee, due by December 31 each year.
[Amended 1-1-2016]
Applicants, other than renewal applications,
desiring a license shall be required to complete and submit all information
required on the Town's approved application form and shall be submitted
under the pains and penalties of perjury. Any information on a license
application that is determined to be untruthful before or after approval
of any license application shall be grounds for denial and/or forfeiture
of a license. The nonrefundable application fee is $125 payable to
the Town of Barnstable upon submittal of a license application to
the Town Manager. Following the receipt of a completed license application,
the Town Manager shall establish a public hearing date. At least 15
days prior to the established hearing date, the Town Manager shall
notify the applicant of the time, date, and place of the hearing.
The applicant is required to notify all abutters (as certified by
the Town Assessor) within 300 feet of the outside boundaries of the
proposed licensed area of the date, time and place of the public hearing.
The notification by the applicant to the abutters must be made at
least 10 days prior to the hearing date by certified mail return receipt
requested, which receipts must be submitted to the Town Manager at
the time of the public hearing. In addition the Town Manager shall
post the hearing notice in the Town Hall at least 15 days prior to
the hearing and cause the hearing notice to be published in the local
newspaper at least seven days prior to the hearing.
The Town Manager may issue a moratorium on the
issuance of new licenses at any time when this action is deemed appropriate
and in the best interests of the Town's shellfisheries.
[Amended 12-1-2018]
A list of applicants for licenses that have been reverted to
or created by the Town in order of date and application shall be kept
on file by the Marine Environmental Affairs Division Office and the
Town Manager, and an up-to-date copy shall be permanently posted on
an official bulletin board in the Town Hall. Those applying to be
added to the list at the Marine Environmental Affairs Division Office
shall pay a nonrefundable $5 fee. It shall be the responsibility of
the applicant to notify the Marine Environmental Affairs Division
Office, in writing, between January 1 and February 15 of each year
of his/her desire to remain on the list. The Marine Environmental
Affairs Division Office must receive said notice on forms supplied
by the Marine Environmental Affairs Division Office by 4:15 p.m. on
the deadline date (February 15) along with a $5 fee.
Upon receipt of a completed application the
Town Manager shall deliver, within seven days, a copy of the completed
application to Natural Resources, the Harbormaster, the Waterways
Committee, the Recreation Department, the Conservation Commission,
the Town Attorney, the Shellfish Committee, the precinct Councilor,
civic association, and the village library for their review and written
comments. Said written comments are to be received by the Town Manager
no later than 30 days after the applications are received by the reviewing
departments and committees.
[Amended 12-3-2016]
Approval of any aquaculture license shall be subject to all
federal, state and local laws, rules and regulations as in force and
as amended from time to time. The licensee shall comply with all such
rules and regulations pertaining to the operation of an aquaculture
license in the state of Massachusetts. Failure to comply with any
of the aforementioned laws, rules and regulations shall be cause to
revoke the license. The Town Manager's approval of a shellfish aquaculture
license shall become effective upon the expiration of 30 days from
the date the Town Council is notified, in writing, of said license
approval unless the Town Council votes within said time to disapprove
of said license.
Prior to submittal of application, the licensee
shall meet with the GIS staff of the Town of Barnstable to locate
the proposed licensed area boundaries by latitude and longitude on
the Town GIS system and obtain a map delineating proposed licensed
area for submittal with the application. The licensee shall place
approved boundary markers at all changes of angles of the licensed
area in compliance with these regulations.
[Amended 12-3-2016; 12-1-2018]
Licenses are issued to and for the exclusive use of the licensee, who may contract with or employ others to work for the licensee. Subleasing of the licensed area or portion thereof is prohibited. Licenses are renewable, heritable and transferable, subject to Town Manager written approval and pursuant to Massachusetts General Laws Chapter 130. Licenses are transferable only after five years from the original license issuance date, subject to review by the Natural Resource Office for reporting requirements and production standards under §§ 407-59 and 407-60 and subject to the Town Manager's written approval and pursuant to Massachusetts General Laws Chapter 130. A licensee proposing to transfer his or her license shall first notify the Town Manager in writing that he/she no longer wishes to operate the license and requests a transfer of his/her licensed area to a designated recipient. Such recipient shall thereupon file an application under § 407-48. Thereafter, the application shall be treated, insofar as apt, as a new application. If, however, the licensee is under any pending investigations or violations, the license may not be transferred.
All proposed changes to the original working
plans as described in the original application, and all additions
of material investments, which may include, but are not limited to,
rafts, floats, racks, cages, trays, nets, etc., must be submitted
in writing to Natural Resources and if in the discretion of Natural
Resources the changes are such that further review is warranted then
the NR may recommend to the Town Manager that further review of the
proposed change take place and the Town Manager upon review of the
proposed change may approve or deny said proposed change.
[Amended 12-3-2016]
A new license shall be issued for a period not to exceed five
years, and for a total maximum area not to exceed two acres. The licensee
may apply for renewal of the license at any time within two years
prior to the expiration date of the license. The Town Manager shall
review the licensee's request for renewal within 60 days after receipt
of the renewal request. Under the legal discretion of the Town Manager,
the license holder shall have the option of a renewal period up to
10 years.
The maximum total acreage licensed to any licensee
shall not exceed two acres on the Northside and two acres on the Southside
within the Town of Barnstable inner bays. This acreage limitation
does not apply to any existing so-called grant (now referred to as
a "license") which is in excess of four acres and will not prevent
the grant holder (now referred to as the "licensee") from future renewals,
provided that said licensee abides by all other applicable regulations
set forth herewith.
An annual license fee of $25 per acre or any
part thereof shall be paid to the Town by the licensee upon the issuance
of the license and thereafter on or before December 31 of each year.
If the fee is not paid within 30 days after it becomes due, the license
shall be forfeited.
[Amended 12-3-2016]
An annual review of each license will be conducted by NR in
order to determine reasonable production value. If, after the third
year of a new license, any licensee cannot show that a reasonable
amount of shellfish product has been produced on the license during
the preceding year, the license may be forfeited. For purposes stated
herein, "reasonable amount of shellfish product" shall mean not less
than $4,000 per acre per year based upon market value. This amount
is subject to change with inflation rates. Failure of the licensed
shellfish product to meet such a value shall result in a forfeit of
the shellfish aquaculture license and licensed area. If, for any year,
the licensee does not meet the reasonable production value, then upon
written request to the Town Manager, said reasonable production value
may be waived at the discretion of the Town Manager for that particular
year, provided that the licensee can demonstrate to the Town Manager
that the cause of the lower amount produced is the direct result of
a natural disaster or other unforeseen personal misfortune.
[Amended 11-17-2014; 12-3-2016]
Licensees shall file annual reports with NR in accordance with
the form provided by NR on or before February 28 of each year and
shall produce documents upon the request of NR showing purchase and
sale slips stating the total amount of each kind of shellfish planted,
produced or marketed during the preceding year (January 1 through
December 31) upon or from the licensed area, and an estimate of the
total number of each kind remaining. The report shall disclose all
necessary information as required by these regulations and NR which
establishes that the licensee reached the reasonable production value.
A new licensee is required to submit purchase and sale slips for the
source(s) of seed planted on his/her licensed site and/or gear purchased
for his/her licensed site for the first three years of his/her original
license.
[Amended 9-25-2008]
No person shall transplant seed, seed stock or stock from the
public fisheries within the Town for purposes of stocking licensed
aquaculture land with such seed or stock. Said regulation is subject
to fine schedule for noncompliance.
[Amended 7-9-2007; 9-25-2008]
A.
Shellfish aquaculture sites bordering the channel within the ninety-eight-acre
aquaculture area in Barnstable Harbor shall be marked with red buoys
bordering the northside of the channel and green buoys bordering the
southside of the channel where individual site boundary changes of
angles border the channel. Said red and green buoys shall not be less
than 11.5 inches in diameter.
B.
Shellfish aquaculture sites on the periphery of the ninety-eight-acre
aquaculture area in Barnstable Harbor shall use yellow buoys not less
than 15.5 inches in shortest diameter to mark only the most external
changes of angles on said sites. The buoys shall bear the state propagation
permit number issued to the licensee and the words "Aquaculture Area."
Said numbers and letters shall not be less than two inches in height.
[Amended 2-21-2013]
C.
All other licensed area boundaries shall be marked at all corners
and changes of angles by uniform yellow buoys, not less than 11.5
inches in shortest diameter, and bear the state propagation permit
number issued to the licensee. Said numbers shall not be less than
two inches in height. Where a licensed area borders another licensed
area, a buoy may bear the state propagation permit number of more
than one licensee. All said buoys shall be deployed from April 1 until
November 15, annually.
[Amended 2-21-2013]
D.
Any proposed alternative marking of a licensed area must be submitted
in writing to Natural Resources and if in the discretion of Natural
Resources the changes are warranted, they may be approved in writing.
The Harbormaster may direct licensees of licensed areas that border
navigational channels to use specified buoys to mark their licensed
area boundaries for navigational purposes.
E.
Each licensee is responsible for maintaining the buoys marking their
licensed area. Failure to place or reasonably to maintain said buoys
shall be sufficient cause for revocation of the license. Said regulation
is subject to fine schedule for noncompliance. The Shellfish Constable
shall have the authority to temporarily waive these regulations if
the presence of ice, severe weather or other condition hampers the
ability of the licensee to immediately comply with these regulations.
[Amended 9-25-2008; 2-9-2018; 12-1-2018]
The license holder assumes all liability for all gear and tackle
used on the licensed site. If any such gear and tackle is moved to
a location off the licensed site, it shall be the responsibility of
the licensee to remove said gear. If within 21 days after notification
to the licensee by NR that the licensee has not complied with this
requirement, the Town may cause such gear and tackle to be removed
at the expense of the licensee. Every licensee shall permanently mark
or tag, in a conspicuous place, any and all gear and tackle used on
the licensed site, including without limitation trays, bags, racks,
lines and pipes with the six-digit state propagation permit number
issued to the licensee. Netting shall be marked or tagged in a conspicuous
place, per every 200 square feet. Said regulation is subject to a
fine schedule for noncompliance. The Shellfish Constable shall have
the authority to temporarily waive these regulations if the presence
of ice, severe weather or other condition hampers the ability of the
licensee to immediately comply with these regulations.
[Amended 12-3-2016]
When a license is discontinued or terminated for any reason,
the license holder shall be required to remove all gear from the waters
and substrate within 60 days of the license termination date. Any
and all equipment not removed within 60 days may be removed by a third
party, contracted by the Town, at the expense of the licensee.
[Amended 12-1-2018; 12-23-2020]
No licensee shall hold the Town of Barnstable or the Commonwealth
of Massachusetts liable for any damage to a licensed site as a result
of harbor improvements. Any license bounded by a navigational channel,
as defined by the Harbormaster, that has migrated by natural or man-made
causes into or through a permitted shellfish license and has eroded
a portion of the permitted land within the license to a navigational
depth of at least three feet at mean low water, said channel shall
become the natural boundary of the license and supersede any previous
agreed boundaries of the license. The license holder shall sacrifice
any and all rights of his/her license within this defined navigational
channel. Should sediment migrate and settle within Aquaculture Zone
1 in Barnstable Harbor, due in whole or in part to natural conditions,
leaving an area along the channel with less than three feet of water
at mean low tide and adjacent to a licensed site less than two acres
in size, a licensee may apply in writing to redefine the boundaries
of the license along the channel through the Natural Resources Office.
Final determination of whether or not a redefinition of boundaries
is warranted will be decided by the Town Manager though a Town Manager
public hearing.
The Shellfish Constable and/or assistants shall
have authority to inspect the licensed area at any time, and said
inspection may include any and all containers on the site. In the
event that the Shellfish Constable and/or assistants have reason to
believe that inspection of the contents of any or all containers on
the site is in the best interest of the town, the Shellfish Constable
and/or assistant shall contact the licensee by telephone or by leaving
a notice at the address of the licensee indicated on the license,
however, advising the licensee that the Town intends to inspect the
contents of containers on the license and further inviting the licensee
to be present at the time of said inspection. In the event that the
Shellfish Constable and/or assistant does not receive a response from
the licensee within 48 hours of notification by phone or by written
notice, the inspection of containers may be conducted without the
presence of the licensee. The Town of Barnstable reserves the right
at any time to obtain samples of any shellfish from a licensed area
for the purpose of certified testing for disease.
[Added 9-25-2008]
Whoever takes or attempts to take shellfish of any description
upon any shellfish grounds or beds covered by a license granted by
the Town of Barnstable or Commonwealth of Massachusetts, or in any
way disturbs the growth of shellfish thereon, or whoever discharges
any substance which may directly or indirectly injure the shellfish
upon any such grounds or beds, without the consent of the licensee
or transferee shall be subject to fine schedule for said violation.
Violation of these rules and regulations subjects
the licensee to review and possible revocation of the license at the
discretion of the Barnstable Town Manager.
If any provision of these rules and regulations
is declared invalid by any court or tribunal of competent jurisdiction,
the remaining provisions of these rules and regulations shall not
be affected thereby.
