MF shellfish letter to MV Shipyard imminent

Acting director says ongoing tussle with FDA clouds marina, mooring regs.

DMF Acting Director Dan McKiernan, left, and Environmental Police Major Pat Moran, right.– Rich Saltzberg


At a Division of Marine Fisheries (DMF) hearing at the Katharine Cornell Theater Thursday morning, fishermen learned that the potential scale of the shellfishing closure around a marina proposed for Lagoon Pond will be revealed shortly. The hearing was meant to discuss proposed regulations for a number of specific fisheries including striped bass and menhaden. Once the agenda items were done, acting DMF director Dan McKiernan opened the floor up to any fisheries-related comments. 

Vineyard Haven fisherman Glenn Pachico, proprietor of John’s Fish Market, asked about rules and regulations regarding mandatory closures around marinas, especially as they relate to a marina proposed by the Martha’s Vineyard Shipyard. “As you know we’re having some docks proposed to go in at Lagoon Pond,” Pachico said. “Already at Burt’s Boatyard, the old Burt’s, there’s now a mandatory closure. They’re planning on closing 30 acres of our most productive shellfish grounds in Tisbury.”

“I know this is a controversial issue … on the Island,” McKiernan said. He went on to tell Pachico the commonwealth was battling Uncle Sam over the meat of those regulations.

“This is an issue that we’ve been fighting the FDA (Food and Drug Administration) over a few years and the fight isn’t over in terms of how much we need to close in a mooring area or in areas adjacent to marinas,” McKiernan said. “And it’s a three-year battle. It hasn’t been resolved yet.”

McKiernan went on to say a resolution emerged on the regulations at ISSC, the Interstate Shellfish Sanitation Conference.

Martha’s Vineyard Shellfish Group co-director Amandine Surier Hall later told The Times the FDA draft regulations emerged from the conference in October. “If this comes into effect it’s going to be disastrous for the state in terms of shellfish grounds,” she said. 

The regulations “could close down the whole shellfish fishing industry on the Island,” Phil Hale, Martha’s Vineyard Shipyard owner later told The Times. James Hale, Martha’s Vineyard Shipyard vice president, later said the details and impact of the regulations, which remain fluid, have posed a challenge to what he described as a project that was geared to be environmentally responsible from the get go. He also said it was somewhat mysterious why the FDA seems to have selected the shipyard’s project as something of an initial test case. The shellfishing exclusion zone it could create stands to be “larger than we expected, larger than anything before in the state,” he said. 

“So we are in disagreement with the feds,” McKiernan went on to say at the meeting. “The feds are saying we need to close more areas than we need to.” He said the FDA metric  evaluates “the number of boats that you have in the marina, assume[s] a certain number might be discharging, look[s] at the volume of water, calculate[s] that, and close[s] those areas in season. We’ve taken issue with that because we think those are too restrictive. There is a letter coming from my agency, which will be part of the public record, to the developer of that marina.”  

Asked by The Times what specific issue the FDA is trying to regulate, McKiernan said human waste.

“It’s the release of human waste by people on the boats that would degrade the water and concentrate viruses and bacteria in shellfish.”

What exactly the regulations will finally look like remains cloudy. “I can’t give you a definitive answer because we’re still arguing with the FDA on it,” he told Pachico. “So it’s not a state rule that triggers what has to be closed, it’s a federal standard and the federal standard is being argued over. We’ve been asked point blank by the developer, ‘please explain how much you think has to be closed’ and we’re in the process of doing that.” “If they include mooring fields, they’re going to be putting my son out of business because he fishes year round shellfishing and he brings the boat. If they include mooring fields that’s not going to be good,” Pachico said. He went on to say “you’re going to put fishermen out of business.”

McKiernan made it clear it was the federal government, not the commonwealth, that was the driving force behind the regulations and governed them. Pachico acknowledged it was “the federal people.” “Well it’s the federal people forcing our hand on the scale of this closure,” McKiernan said. “I know what your concerns are. Tomorrow or early next week we’re going to be sending a letter to the developer …”

He stressed the DMF role is advisory, “to forecast impacts,” and that in any event the real players for permitting the marina are the Massachusetts Department of Environmental Protection and the Army Corps of Engineers.

“Have you been asked directly by the developer for recommendations …?” asked Vineyard Haven fisherman Tubby Medeiros. “Not recommendations. Under the FDA guidelines, they’re asking us how much has to close and the staff are working on that letter,” McKiernan said. 

Hall told The Times her rough estimation of the shellfish closure that would be triggered by the marina was 23 acres.  “It’s a very productive fishing ground,” she said. She added the Shellfish Group has been fighting the marina proposal since it’s earliest stages. 

James Hale said given the unknowns the regulations present, the permitting process for the project has been slowed a bit. He also said Massachusetts already has some of the most stringent inshore discharge regulations in the country so he found FDA focus on the project curious. Nevertheless, his family has added a pumpout proposal to the project. Proximity to a pumpout station appears to be a mitigating factor in evaluating the shellfishing exclusion zone, he said. Such a pumpout station would be groundbreaking, because he said “at the moment, there’s no pump out in Lagoon Pond.”

“Over the last three months we have met with DMF twice,” Hale went on to say, “and had many emails back and forth. We have repeatedly asked them what we can improve, and we have tried to address every concern from their original letter. Also we don’t want this FDA regulation to change either.” 

Updated to include comments from the Hales. -ed


  1. The FDA has really gone overboard here. They have declared that mooring tackle is considered a structure – and therefore a mooring field with more than 20 boats needs to be regulated like a marina. They don’t accept that we have invested millions in pumpouts, holding tanks, training, and enforcement. They don’t believe our no discharge zones are working. They have no evidence to show this. There are some 500 mooring fields in MA that will need to be managed as conditional areas and the state would have to hire two full time people just to do that. They don’t have the money so they will probably just close these areas. Conditional closures will pose a huge burden on fishermen and farmers with no public health justification. Call your congressman! Keating needs to hear what the FDA is doing to your state! Limit mooring areas to 19 boats to preserve harvest areas.

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