Once areas are identified by the Natural Resources Department as potentially suitable for the location of shellfish aquaculture, and the areas are under the control of the Town, the Select Board may exercise its discretion as the licensing authority for the issuance of license(s) for shellfish aquaculture (grants) in compliance with MGL c. 130.
In the event that a licensed aquaculture area previously certified by the DMF becomes available, it will be considered on whether it should continue for the purpose of aquaculture and, if so, offered first to the Town of Nantucket for propagation use, and if not needed, the next in line on the waiting list of qualified approved applicants shall be notified by the Natural Resources Department. The Select Board shall hold a public hearing to determine who shall be granted the right to use such available acreage for aquaculture.
The annual fee for an aquaculture license to be paid to the Town by each licensee shall be set from time to time by the Select Board, but in no event shall the fee be more than $25 per acre (or portion thereof) per licensee, as required by MGL c. 130, § 64. The fee shall be due no later than March 31 of any given year.
Grants are located in the following areas:
A. 
Area 1: Head of Harbor (60 acres).
B. 
Area 2: Coskata Pond (10 acres).
C. 
Area 3: Pocomo Meadows (6 acres).
D. 
Area 4: Coskata entrance (12 acres).
E. 
Area 5: Polpis Harbor (12 acres).
*Approval of the proposed licensed areas shall be determined by the Natural Resources Department, Harbor and Shellfish Advisory Board, and ultimately the Select Board with appropriate regard for reasonable navigational and recreational/commercial interest in the areas concerned.
The Select Board may license specific areas beneath the waters of the Town to individuals for the purpose of granting exclusive rights to plant, grow and harvest shellfish from that area. Said license is subject to the provisions of MGL c. 130, those set forth in current regulations of the Division of Marine Fisheries, these regulations or other Town bylaws, as well as any specific conditions or restrictions set forth in the license by the Select Board.
The Select Board or its designee will accept and process applications for area licenses in accordance with MGL c. 130, § 57, and the application procedure of the Town, specifically the Natural Resources Department.
The Select Board may, at a duly advertised public hearing, declare a moratorium (a time-specific closure) on license approvals at any time this action is deemed appropriate and in the best interests of the fishery and the environment.
Licenses issued will be issued only to domiciled residents (See Part 8, Definitions, of this Article IV.) of the Town, 18 years of age or older, who have the knowledge and experience to fulfill the responsibilities specified in the license, provided that the applicant has held and used a Nantucket commercial shellfishing permit during two of the last three years or the applicant can demonstrate some experience in shellfish propagation and aquaculture. This may be supported by a letter from a license holder describing the type of work performed and any other information which might be relevant. At such time as a licensee ceases to be a domiciled resident of the Town, that individual shall be removed from the license and the waiting list.
The initial term for a new license shall be two years. Provided appropriate effort has been demonstrated, as required, the first renewal of a license may be for up to 10 years, unless the licensee agrees to a shorter term. Renewals may be requested and acted upon only during the six months immediately prior to the expiration date of the current license. The renewal period shall begin on the expiration date of the existing license.
All individuals authorized by a licensed grant holder to work the grant in the absence of a licensed grant holder must be registered with the Natural Resources Department or department designated by the Select Board. Licensees are responsible for the actions of all such employees or otherwise affiliated persons while they are working on the grant designated by their registration.
No licensee shall hold a license for, or have use of, more than one to four acres (depending on availability) during lease years 1 to 3 and upon good standing and demonstrated need for expansion may apply for one to six more acres but not to exceed 10 acres total per lease. Special consideration may be given by the Select Board or its designee for earlier expansions if environmental conditions prohibit or alter production plans as originally proposed. Each person named on a license as a licensee shall be charged with the total acreage covered by that license.
A. 
Licensees shall have the exclusive use of the area described in their license for the purpose of aquaculture, for the duration of their terms. No other individual may use the license without the express permission of the licensee(s).
B. 
Licensees may transfer the rights or responsibilities assigned to their license to any other individuals, companies or corporations by vote of the Select Board. (See MGL c. 130, § 58.)
Any license issued under the provisions of MGL c. 130, § 57 shall, upon the death of the sole licensee, continue in full force and effect, subject to the same terms, conditions and regulations imposed by the original license, for the balance of the unexpired term or one year, whichever is longer. This is for the use and benefit of the immediate family of the deceased licensee. For purposes of this section, the term "immediate family" shall mean a spouse, son, daughter, mother, father, brother or sister of said deceased licensee.
The Town will not be held liable for any damage to a licensed area, or gear, or stock thereon by reason of any dredging or other harbor improvements undertaken by the Town.
"Evidence of productivity" shall be defined as listed below in § 260-4.51, Minimum levels of production.
There shall be minimum level of shellfish production required in order to retain an aquaculture license. This shall be a minimum inventory maintained of 10,000 shellfish per acre. These standards are subject to review by the Select Board or its designee and may be amended.
Failure of the licensee(s) to meet the specified production level for any three consecutive years may result in the forfeiture of the aquaculture license and licensed area, as stated in MGL c 130; § 65.
The Natural Resources Department shall have the right to waive the minimum production requirement when there is evidence that the failure to meet the minimum standard is due to events beyond the control of the license holder.
In the event of an extension being granted to a presently licensed area, the same level of effort per acre for the newly licensed area is required as described above.
Licensees shall file annual reports, under oath, on their activities in accordance with MGL c. 130, § 65 on or before December 31 each year. The report must include any changes or deviation from the original plan filed with the original application or any subsequent application.
Any licensee who submits a false licensed area report in violation of MGL c. 130, § 65 shall be penalized by the revocation of his or her license.
Subsequent to the filing of the annual report, the Natural Resources Department will notify any license holder who, in the opinion of the Town, has failed to meet the minimum requirements. The license holder has the right to appeal to the Select Board within two weeks after notification. If no appeal is filed on a timely basis, the license will be forfeited.
The Natural Resources Department shall make no less than one visit per year to the site of each licensed area in the company of the license holder.
No person shall harvest, plant, transplant, transport, sell or otherwise have in his/her possession seed shellfish, without first obtaining a state seed permit from the Massachusetts DMF, as required by MGL c. 130, § 80 and 322 CMR 15.04(1)(b)1.
It shall be unlawful to use lethal means to control or exclude predators or other organisms from any area used for aquaculture. Nonlethal exclosures, including, but not limited to, nets, fences, bubble curtains and noise, may be used, if approved for a specific site and purpose. Invertebrate predators, pests and fouling organisms may be removed manually from an aquaculture site and disposed of in a lawful manner. [(CMR 322, Section 13.7.2); (322 CMR 15.07(2)]
Horseshoe crabs shall not be intentionally killed while practicing predator control.
No person shall maintain a predator control method that will intentionally threaten any endangered species.
In the event that a significant amount of bay scallop seed sets within the boundaries of a licensed aquaculture lease, every effort shall be made to remove and relocate the seed by the licensee and the Department of Natural Resources.
A. 
Every licensee shall mark the corners of the area licensed under his/her license with buoys marked with the license number. From April 1 to November 1, the corners shall be marked with float balls approved by the Natural Resources Department.
B. 
Buoys shall be attached to their anchor by cables, chains or nonfloating lines. Numbers shall be marked on said buoys, and shall be at least two inches high and shall be black in color. Winter sticks shall be required from November 1 through April 1.
Every licensee shall clearly and permanently mark any and all trays, boxes, holding cars and all other aquaculture gear with the license number of the license area in a manner that is clearly visible.
All gear on licensed areas must be securely fastened to the bottom or removed. All unusable gear, including loose nets, twisted and damaged racks, loose envelopes, grow-out bags and fastening devices, must be removed from a licensed area and disposed of properly.
If the gear is not properly secured and ends up outside of the leaseholder's designated area or on shore, it is up to the leaseholder to provide immediate removal.
Oyster Gro cages or other floating/suspended gear located in NT5 must be sunk and secure by December 15, unless the Natural Resources Department deems it necessary to require an earlier winterizing date due to potential damaging weather or water temperatures.
The Shellfish Constable shall have the authority to temporarily waive these regulations if the presence of ice hampers the ability of a licensee to immediately comply with these regulations.
After receiving a written warning, the licensee has seven days to comply. After the seventh day, a $50 ticket shall be issued for each day of noncompliance. After 30 days of noncompliance, the licensee shall have his or her license revoked.
The use of hydraulic harvesting gear for the purpose of harvesting shellfish from within the boundaries of a licensed area is permitted under the following conditions and with the following restrictions:
A. 
Devices used shall be for the hosed ejection of water under pressure into a shellfish bed.
B. 
Pressure pumps shall not exceed five horsepower as rated by the manufacturer.
C. 
Noise-control devices (i.e., mufflers) shall be in place and in good repair at all times.
D. 
Not more than one device may be used on any grant at any time.
E. 
Hours of operation shall be between 7:00 a.m. and 1/2 hour before sunset.
F. 
The Natural Resources Department shall have the authority to direct an individual involved in the use of such equipment to cease and desist if it feels that there is a problem that necessitates such action. Any individual so ordered shall have the right to appeal the decision to the Select Board at its first scheduled meeting after the service of such order.
No aquaculture license holder may willfully extend or cause to extend his or her grant boundaries, or allow cultivation, operation, propagation or products and equipment to exist beyond the duly recorded boundaries of his or her licensed area. The Natural Resources Department may cause a licensed area to be resurveyed by a registered civil engineer in the event that the assigned boundaries of an aquaculture license are called into question. If a violation of this Part 5 is then established, the aquaculture license of the individual guilty of the infraction shall then be revoked.[1]
[1]
Editor's Note: Original Sec. 5.38, Disturbance of grant by other than the licensee and (MGL Chapter 130; Section 57, Section 63 and Section 67), which immediately followed this section, was repealed 4-13-2022.
In the event of abandonment or default of a lease, the leaseholder is required to remove all personal property from the licensed area at his/her cost. If gear is not completely removed, the Town of Nantucket may remove the gear at the expense of the leaseholder.
All licensed aquaculture growers must adhere to all state policies regarding vibriosis and the harvesting of shellfish.