Town Seeks Joint Management Over Disputed Waters

By: Tim Wood

Topics: Monomoy National Wildlife Refuge , Monomoy Refuge CCP

Terns on Monomoy Island

CHATHAM – Before moving any further with a proposed agreement, Chatham officials want assurances that both the town and U.S. Fish and Wildlife Service will have equal responsibility for management of the waters west of the Monomoy National Wildlife Refuge.

Language in a draft memorandum of understanding proposed by the Fish and Wildlife Service commits both parties to working “cooperatively” to protect the resources and manage fisheries in a 3,000-acre area west of the refuge, but town officials say that language is not strong enough. In a letter to the agency last week, Chairman of Selectmen Jeffrey Dykens wrote that joint, equal management of the area in question must be explicitly stated.

“As we have stated in the past, we believe resource protection and management can be accomplished most effectively through joint management of the contested area,” Dykens wrote in the Aug. 16 letter to Scott Kahan, regional chief of the National Wildlife Refuge System. “While the draft MOU calls for cooperation, it does not state that both the service and the town have equal responsibility for management of the contested area and the resources contained therein.”

Town officials have vehemently opposed a provision of the recently approved comprehensive conservation plan for the refuge that they say illegally extends federal authority over the subtidal areas west of the island. The original legislation establishing the refuge in 1944 specified that its jurisdiction was limited to lands above the mean low water mark, and, they say, the inclusion of a boundary line further west in Nantucket Sound was meant to indicate that any accreted land to the west would be part of the refuge.

For decades the town and state have managed fisheries in the waters west of the refuge, and that responsible stewardship should continue, town officials say. They are working with Rep. William Keating on legislation that will set the western boundary at low water.

Officials believe legislation is the appropriate mechanism for clarifying the boundary issue, according to Town Manager Jill Goldsmith's latest report to the board of selectmen. But Keating, stating the fate of the legislation is uncertain, has encouraged both town officials and the Fish and Wildlife Service to try to resolve the dispute, and several weeks ago Kahan reached to the town with the idea of developing a memorandum of understanding to clarify the western boundary. A similar agreement was reached after a draft of the comprehensive conservation plan sought to include 717 acres of town-owned South Beach within the refuge boundary. The resulting memorandum of understanding set the boundary between the refuge and South Beach further south, near where the two barrier beaches meet.

Neither the town nor Kahan would provide a copy of the draft MOU for the western boundary. Kahan said in an email that it is still in development and premature to share, but he did not preclude a stronger management role for the town.

“We agree that mutual cooperation and joint management of the shellfish resources within the contested area is in everybody's best interest,” he wrote. “We are looking forward to continuing our discussions and finalizing an agreement.”

In asserting authority over the western waters in the plan, the agency did not dispute the good stewardship of the town and state, and in fact stated that there would be no change in managing the area at this time. But the possibility that the federal agency could intervene in either a traditional or newly emerging fishery, out of concern for the impact on the shorebirds and migratory species that are its charge, worries town officials. The plan already bans mussel harvesting in the area because the shellfish are a food source for eider ducks and other species, and while no significant mussel fishery now exists there, it is entirely possible that one could develop, town officials say.

In the past, the flats west of Monomoy, known as the Common Flats, have been a significant source of income for local commercial shellfishermen. Jamie Bassett, chairman of the town's shellfish advisory committee, said protecting shellfish rights there is critical and backed the efforts of selectmen to secure local authority.

Dykens said unless the agency agrees to joint management, “we're wasting our time.”

“I think we can do a fine time together, but they have to be willing to give up full control,” he said.

In his Aug. 16 letter, Dykens said officials had seriously considered each provision of the draft MOU and have a number of suggestions to strengthen it, but the issue of joint authority over the western waters must be resolved before proceeding.

He cited two paragraphs from the MOU which read: “Whereas, there is a desire of both parties...to work cooperatively for the purposes of resource protection, management and commercial fishing use of the waters within the Declaration of Taking, and;

“Whereas, it is understood by both parties that the underlying principle of this agreement is that commercial fishing and resource protection will be served best by the mutual efforts of both parties...”

Those clauses commit both parties to working cooperatively to protect resources and manage fisheries, but the town proposed stronger language:

“Whereas, it is understood by both parties that the underlying principle of this agreement is that joint management of the contested area will ensure resource protection as well as continued public use(s) and that no change in management or regulations of the contested area can occur without the consent of both parties to this agreement...”

Dykens wrote, “We believe this proposed change will clearly state the intent of the MOU and the joint responsibility of both parties to foster the partnership both the service and the town seek to develop.”

Keating has stated that he will file the boundary legislation once Congress returns from its summer recess on Sept. 6, barring a resolution between the town and fish and wildlife service.