Land Containing Shellfish

(1) Preamble. Land containing shellfish is found within certain of the resource areas under the jurisdiction of M.G.L. c. 131, § 40. "Land containing shellfish" is also specifically one of the interests of M.G.L. c. 131, § 40. The purpose of 310 CMR 10.34 is to identify those resource areas likely to contain shellfish, to provide criteria for determining the significance of land containing shellfish, and to establish regulations for projects which will affect such land. Land containing shellfish is, under 310 CMR 10.34(3), significant to the protection of marine fisheries as well as to the protection of the interest of land containing shellfish. Shellfish are a valuable renewable resource. The maintenance of productive shellfish beds not only assures the continuance of shellfish themselves, but also plays a direct role in supporting fish stocks by providing a major food source. The young shellfish in the planktonic larval stage that are produced in large quantities during spring and summer are an important source of food for the young stages of marine fishes and many crustaceans. When a resource area is found to be significant to the protection of land containing shellfish under 310 CMR 10.34(3), and is, therefore, also significant to marine fisheries the following factors are critical to the protection of those interests: (a) shellfish; (b) water quality; (c) water circulation; and (d) the natural relief, evaluation or distribution of sediment grain size of such land. (2) Definitions. Land Containing Shellfish means land under the ocean, tidal flats, rocky intertidal shores, salt marshes and land under salt ponds when any such land contains shellfish. Shellfish means the following species: Bay scallop (Argopecten irradians); Blue mussel (Mytilus edulis); Ocean quahog (Arctica islandica); Oyster (Crassostrea virginica); Quahog (Mercenaria merceneria); Razor clam (Ensis directus); Sea clam (Spisula solidissima); Sea scallop (Placopecten magellanicus); Soft shell clam (Mya arenaria). Shellfish Constable means the official in a city or town, whether designated a constable, warden, natural resources officer, or by some other name, in charge of enforcing the laws regulating the harvest of shellfish. (3) Significance. Land containing shellfish shall be found significant to the protection of land containing shellfish and to the protection of marine fisheries when it has been identified and mapped as follows: (a) by the conservation commission or the Department in consultation with the Division of Marine Fisheries and based upon maps and designations of the Division of Marine Fisheries; or (b) by the conservation commission or the Department, based upon maps and written documentation of the shellfish constable or the Department. In making such identification and maps the following factors shall be taken into account and documented: the density of shellfish, the size of the area and the historical and current importance of the area to recreational or commercial shellfishing. 10.34: continued WHEN A RESOURCE AREA, INCLUDING LAND UNDER THE OCEAN, TIDAL FLATS, ROCKY INTERTIDAL SHORES, SALT MARSHES, OR LAND UNDER SALT PONDS IS DETERMINED TO BE SIGNIFICANT TO THE PROTECTION OF LAND CONTAINING SHELLFISH AND THEREFORE TO THE PROTECTION OF MARINE FISHERIES, 310 CMR 10.34(4) THROUGH (8) SHALL APPLY: (4) Except as provided in 310 CMR 10.34(5), any project on land containing shellfish shall not adversely affect such land or marine fisheries by a change in the productivity of such land caused by: (a) alterations of water circulation; (b) alterations in relief elevation; (c) the compacting of sediment by vehicular traffic; (d) alterations in the distribution of sediment grain size; (e) alterations in natural drainage from adjacent land; or (f) changes in water quality, including, but not limited to, other than natural fluctuations in the levels of salinity, dissolved oxygen, nutrients, temperature or turbidity, or the addition of pollutants. (5) Notwithstanding the provisions of 310 CMR 10.34(4), projects which temporarily have an adverse effect on shellfish productivity but which do not permanently destroy the habitat may be permitted if the land containing shellfish can and will be returned substantially to its former productivity in less than one year from the commencement of work, unless an extension of the Order of Conditions is granted, in which case such restoration shall be completed within one year of such extension. (6) In the case of land containing shellfish defined as significant in 310 CMR 10.34(3)(b) (i.e., those areas identified on the basis of maps and designations of the Shellfish Constable), except in Areas of Critical Environmental Concern, the issuing authority may, after consultation with the Shellfish Constable, permit the shellfish to be moved from such area under the guidelines of, and to a suitable location approved by, the Division of Marine Fisheries, in order to permit a proposed project on such land. Any such project shall not be commenced until after the moving and replanting of the shellfish have been commenced. (7) Notwithstanding 310 CMR 10.34(4) through (6), projects approved by the Division of Marine Fisheries that are specifically intended to increase the productivity of land containing shellfish may be permitted. Aquaculture projects approved by the appropriate local and state authority may also be permitted. (8) Notwithstanding the provisions of 310 CMR 10.34(4) through (7), no project may be permitted which will have any adverse effect on specified habitat of rare vertebrate or invertebrate species, as identified by procedures established under 310 CMR 10.37.