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HomeMy WebLinkAboutCommissioner Morin - Shellfish Ratings regarding TOB regs March 31Shellfish and Shellfish Habitat Map Ratings (as of 3/31/2023) Questions: under what provisions of the Town of Barnstable Ordinance (Ch. 237) and/orRegulation (Ch. 703) [Conservation Regulations] AND to the extent applicable,any Rules, Regulations, policies or Town of Barnstable Board, Committee andCommission Handbook that mentions, describes or governs the authority and powersof the Shellfish Committee and any Sub-Committees created thereunder, as tohow shellfish “ratings” are to be “determined”, proposed, presented, adopted or “approved”, but also how Shellfish Committee and any Sub-Committees allegedlyderiving its authority from said Committee are required to be created and operate? 1. With Reference to Chapter 237 Wetlands Protection (Ordinance):237-1 refers to “wetlands and related water resources, and their values and functions,including but not limited to:wildlife habitatshellfishfisheriesrecreationhistorical values (that’s a stretch!!)237-2A. Mentions “an activity occuring beyond the limit of jurisdiction noted aboveis having or has had a significant effect on the wetlands values of a resource area,(BUT) this section just mandates the filing of an NOI or RDA237-2B. Includes that “The Commission is empowered to deny a permit for failure tomeet performance standards, policy guidelines or other requirements in regulationsof the Commission;where it is deemed that the denial is necessary to preserve the environmental quality of the resource areas;where (there are) no conditions (that are) adequate to protect those values.Due consideration shall be given to a demonstrated hardship on the applicantby reason of denial, as presented at a public hearing.237-8AAfter public notice and public hearing, the Commission MAY… promulgateperformance standards, policy guidelines and other rules and regulations to accomplish the purposes of this chapter.237-13 DefinitionsThere are no words or terms which relate to, describe, mention or have anyassociation with Shellfish or Shellfish habitat RATINGS. 2. Relating to the current provisions under Ch. 703 (last amended 2-20-2018) of the Town of Barnstable Conservation Commission and any Administrative Regulations promulgatedunder the Town Council Administrative Code [Sec. 241 as noted below];703-1 PreambleB. Purpose is to establish performance standards. (see reference to Ch. 237, Section 8)C. This section makes reference to “wetland resource values”which include relating tofin and shellfisheries and the use of piers (regarding) adverse effects onresource areas, and the use of these areas for recreational purposes.It appears from the remaining subsections of the Preamble that there are no referencesto or connections to “shellfish ratings” including under what criteria they are to beconducted and determined, or by whom they are to be prepared and/or approved.703-2 DefinitionsDocks and Piers.Surprisingly, there are no references to or suggestions associated withShellfish ratingsShellfish Habitatfirst part addresses “Areas below MHW that exist”, but this does not applyto or make any reference to Shellfish Ratings.Second part deals with “a determination of shellfish habitat”.There is a reference to “...maps or reports developed by the Marineand Environmental Affairs Division filed with the Commission and the Town Clerk (for example “The Significant Shellfish Resource and HabitatArea Mapping Project for the Three Bay Area” dated 8-21-2000).However, there is no mention in this provision as to who and how shellfishratings are “recommended” or “determined and on what evidence they may be based, nor is there any reference as to what role, if any, the Commission is authorizedto have, including but not limited to the manner by which the Commissionis required to review, consider, “adopt” or take any other actions regardingchanges to such Ratings.703-3 Filing ProtocolsThese sub-sections prescribe the procedures and requirements incident to thepreparation and submission of filings (ie. RDA, NOI, etc.)D.(6) specifies the requirements of shellfish survey but there is no referenceor requirement that “shellfish ratings” be stated or specified.D.(7) specifies the content of shellfish survey reports but there are no statedrequirements that such reports make reference to or based upon Shellfish Ratings (continued)E. specifies what the project plans shall show:BUT for all of the subsections (1) – (11), not a single one of theseprovisions require any reference to the Shellfish Ratings.703-4 RegulationsPrior to 2018, the subsections of these Regulations covered the location,position, materials, features, walkways, permit numbers, storage of floats,impacts, dimensions, water depths (associated only with those formotorized boats), and performance standards.But from Subsection A. through P., there is not a single reference to inclusionof Shellfish Ratings.For the 2018 Amendments, those from Q. to R. were introduced and approvedonly for boat lifts, elevators, davits, and improvement (versus maintenance)dredging.There are no conditions or requirements under this Subsection that make anyreference to Shellfish Ratings. However, 703-4M.(1) provides as follows:“Within the limits of performance standards governing overall length of docks, the following depth requirements must be met for motorized vessels with thesedraft requirements continuing over time.(1) In areas “determined” to be high value shellfish habitat, the minimum depthunder the draft of the boat must be 30 inches at MLW. High-value shellfish habitatsare those found to be “significant” to the provision or protection of the wetlandvalues protected under Chapter 237 [237-2A?], Wetlands Protection, of the GeneralOrdinances of the Code of the Town of Barnstable [Ch. 237, not ch. 703].Are any “rated six or above” on any maps or reports developed by the NaturalResources Division and filed with the Commission and the Town Clerk shall bepresumptively considered (to be) a high-value shellfish area.NOTE: at issue, is there a connection or “nexus” between Chapter 237 of the Town Ordinance, and Ch. 703 of the Commission Regulations, and is there anyfurther connection/”nexus” between either of these Chapters to any regulationor other binding document associated with the Shellfish Committee?703-5 Presumptions, adverse effect, burden of proof, cumulative impactSimply stated, there is absolutely no reference to or mention of Shellfish Ratingsin this subsection. And that also means that the concept of “cumulative effect”includes factors and criteria but without mentioning “shellfish ratings”703-6 Construction ProtocolsNo mention of or references to “Shellfish Ratings”Board, Committee and Commission HandbookMakes reference to the Administrative Code as posted on the Town website,and the relevant provisions that apply to Shellfish Committee include the following:Chapter 188. Shellfisheries188-1 states that the Town Manager shall annually adopt rules and regulations(pertaining to shellfisheries);188-4 states that For Undertakings not requiring Town Council approval,under item (4) undertakings that promote the propagation efforts for the enhancement of Town of Barnstable fisheries with the advice of the Shellfish Committee.Chapter 241/Administrative CodeArticle III. Multiple-Member Appointive Organizationswould, by their nature, apply to both the Conservation Commission (as aregulatory body) and the Shellfish Committee (as an Advisory body).241-15B(3) provides that the Conservation Commission is responsiblefor the implementation of the provisions of MGL Ch. 131, Section 40 (the WetlandsProtection Act).241-15C(1) provides that the Conservation Commission interacts with theTown Council for purposes of… protecting, promoting and enhancing the quantityand quality of the natural resources with the Town.241-15C(2) provides that the Conservation Commission interacts with the(Town) Manager for all matters… (incident) to the Administrative Support to theCommission…. through the Conservation Division of the Regulatory ServicesDepartment.NOTE: In essence, these provisions are very general and thusfar haveprovided minimal guidance towards trying to answer the questions posed above.241-41 provides, with respect to the Shellfish Committee, the following:A. Term of Office: nine (9) committee members appointed bythe Town Council (with staggered terms);B. Authorities and Responsibilities (include but are not limited to)annually review regulations…. (in its capacity as anAdvisory Committee to the Town); andC. Interrelationships (1), (2) and (3) are self explanatory and shedlittle light on the issues at hand.3. Chapter 407. Shellfish-1A states that Regulations are made by the Town Manager (regarding shellfish);There is a reference to “Article VIII (which follows 407-40) ..,. Copy attached407-62 relates to “Marking Boundaries of Licensed Areas”, but there is noreference to “Shellfish Ratings” as to what they are or may be, howthey are to be determined and how they are to be submitted, reviewedand “approved” (ie. Conservation has considered this as “adopt”). 4. 241-47.31 deals with Marine and Environmental Affairs [MEA] Department.A. Marine and Environmental Affairs Department is (entrusted or directed to)protect the safety of people and vessels [no mention of the environmentor shellfish habit]…. and to provide for the protection, preservation andenhancement of the Town’s natural resources. B. the Federal Clear Water Act calls for MEA to provide technical assistanceto the Waterways Committee, which includes programming relative toshellfish protection, propagation and management pursuant toMGL Ch. 130, Sec 40 [Wetlands Protection Act].However, based on the undersigned’s research and attempt to locate allpertinent regulations pertaining to each of the relevant boards, committeesor commissions that appear to be involved as to these isues, there areno such declarations of authority or procedure on the Town’s websitedealing with Waterways. Perhaps if those can be produced, we can weighand evaluate their responsibilities and roles in these issues.C. makes reference to the Natural Resources Division but with no other connectionor correlation to the “shellfish ratings” and/or their “adoption” or implementation.D. Interrelationships are described as including:(1) Town Manager… for approval of rules and regulations including but not limitedto shellfish regulatory matters;(2) Marine Environment Affairs (MEA) for purposes noted above, and(3) Multiple Member Boards… including the Conservation Commission ShellfishCommittee and Waterways.