§ 57 — Shellfish aquaculture licenses

Section 57. The city council or mayor of any city, or the selectmen of any town, may upon written application, accompanied by plans sufficient to show the intended project and project area to be licensed, and after public notice and hearing pursuant to section sixty, grant to any person a shellfish aquaculture license.Said license shall authorize said licensee in such city or town at all times of the year, in, upon, or from a specific portion of coastal waters of the commonwealth, of tidal flats or land under coastal waters: (1) to plant and grow shellfish, bottom/off bottom culture; (2) to place shellfish in or under protective devices affixed directly to the tidal flats or land under coastal waters, such as boxes, trays, pens, bags, or nets; (3) to harvest and take legal shellfish; (4) to plant cultch for the purpose of catching shellfish seed; and (5) to grow shellfish by means of racks, rafts or floats.After receipt of a written application by the city council or selectmen, and after the notice and public hearing requirements of this section are satisfied and the licensing authority approves the application, the director shall, after inspection of the intended project area, certify that issuance of a shellfish aquaculture license and operation thereunder will cause no substantial adverse effect on the shellfish or other natural resources of the city or town. Upon such certification by the director, the city council or selectmen may issue the license, provided, however, that no license shall be issued for any areas then or within two years prior thereto, closed for municipal cultivation under the provisions of section fifty-four. Failure of the director to so certify shall be deemed a denial of the shellfish aquaculture license. The director's certification or refusal to certify shall be reviewable in accordance with section fourteen of chapter thirty A.Licenses under this section shall be granted or denied in writing within sixty days after receipt of the written application and shall be issued upon forms supplied by such cities and towns and upon such terms and conditions and subject to such terms, conditions or regulations as the city council or selectmen issuing the same shall deem proper, but not so as to impair the private rights of any person or to materially obstruct navigable waters, and said license shall describe by metes and bounds the waters, flats or creeks covered thereby. Shellfish aquaculture licenses pursuant to this section shall be subject to any rules and regulations promulgated by the director, including those concerning the use and scope of predator controls in the intertidal zone, and said licenses may be further conditioned by the director as he deems necessary and appropriate, including species to be propagated and the source and movement of seed shellfish.Said license shall be for a period of not more than ten years and may be renewed for similar periods. Said license may be revoked by the city council, selectmen or the director for failure to comply with any terms, conditions or regulations set forth by these entities, or for lack of substantial use of the licensed area. Said licensee shall have the right to the exclusive use of the lands and waters for the purposes of growing shellfish thereon, and the licensee shall plainly mark the boundaries of said area. The selectmen or city council shall permit, as a condition of the license, such public uses of said waters and lands as are compatible with the aquacultural enterprise.Whoever without the consent of the licensee, unless otherwise permitted by the terms and conditions of said license: (1) takes shellfish from the licensed lands or waters or from said racks, rafts or floats; (2) disturbs the licensed area or the growth of the shellfish thereon in any way; (3) discharges any substance which may directly or indirectly injure the shellfish; (4) willfully injures, defaces, destroys, removes or trespasses upon said racks, rafts, or floats; or (5) willfully injures, defaces, destroys, removes or trespasses upon said protective devices affixed directly to the tidal flats, such as boxes, trays, pens, bags, or nets shall be liable in tort for treble damages and costs to the licensee injured by such act.Nothing in this section shall be deemed to affect the validity, conditions, or terms of any license granted under the corresponding provisions of earlier laws and in full force upon the effective date of this section. Nothing in this section shall excuse the licensee from complying with other laws of the commonwealth, including environmental laws and laws concerning interference with navigation.Said shellfish aquaculture license may be transferred pursuant to section fifty-eight and all rights and privileges enjoyed by the licensee shall be assumed by the transferee.Any license issued under the provisions of this section shall, upon the death of the licensee, continue in full force and effect, subject to the same terms, conditions, and regulations imposed upon the original license, for the balance of the unexpired term, or one year whichever is longer, for the use of the members of the immediate family of the deceased licensee. For the purposes of this section, immediate family shall mean the spouse, son, daughter, mother, father, brother and sister of said deceased licensee.Nothing in this section shall be deemed to affect the validity, conditions, or term of any license granted under corresponding provisions of earlier laws and in full force upon the effective date of this section.