Monomoy Boundary Bill Filed

By: Tim Wood

Topics: Monomoy National Wildlife Refuge , Monomoy Refuge CCP

Looking west from atop the Monomoy Lighthouse. In the distance is the disputed area west of the Monomoy National Wildlife Refuge. TIM WOOD PHOTO


CHATHAM – A bill clarifying the town and state's right to manage the resources in the submerged lands west of the Monomoy National Wildlife Refuge was expected to be filed Tuesday by Congressman William Keating.

The bill that was filed differs from previous draft bills, which sought to specifically set the western boundary of the refuge at mean low water to make it clear that the town and state are responsible for managing resources within the area. The new legislation accomplishes the same thing, but with simpler language, said Selectman Seth Taylor.

The legislation states that “Congress finds that the United States did not acquire any right, title or interest in or to submerged lands in Nantucket Sound or the waters above such submerged lands as a result of the taking described in United States v. 3,000 Acres of Land,” the 1944 action that established the refuge.

By establishing that submerged lands west of Monomoy were not part of the original taking, the bill would preclude the Fish and Wildlife Service from regulating activities within that approximately 3,000 acre area, said Taylor.

“I don't see any way that Fish and Wildife can promulgate regulations in ground that they don't have ownership of,” he said.

The bill is expected to be referred to the House Natural Resources Committee, town officials said in a statement. Third Massachusetts District Representative Niki Tsongas, a longtime Chatham summer resident, is a member of the committee, and is the ranking member of the federal lands subcommittee.

In a statement emailed Tuesday evening, Keating said, "Today I introduced legislation on behalf of the town of Chatham and in support of the views of the Commonwealth of Massachusetts regarding ownership of a portion of Monomoy National Wildlife Refuge. Relatedly, we have worked with the Fish and Wildlife Service and town of Chatham for years to reach a satisfactory agreement on management of the refuge, which yielded the longest public comment period on record for a refuge comprehensive conservation plan, as well as concessions in favor of conservation on the part of both the town and agency. I will continue to facilitate further resolution on management, and am encouraged by the progress made by the Town and FWS on this front."

The western boundary became a point of contention after the refuge comprehensive conservation plan (CCP), a 15-year management plan approved earlier this year, appeared to expand federal jurisdiction into a 3,000-acre area of Nantucket Sound. Federal officials argued that the area is within the boundary set when the refuge was established by Congress in 1944, but state and local officials countered that the original taking only included the land above mean low water and not the submerged lands and waters around the refuge.

Further, local officials said the federal agency had never exerted management authority over the submerged lands west of the refuge. Fin and shellfishing activities in the area have been responsibly and sustainably managed by state and town regulations for decades, they said, calling the assertions in the CPC an illegal taking.

The town's position has been backed by Gov. Charlie Baker and Attorney General Maura Healey.

Taylor and town officials, in a statement, thanked Keating for keeping his pledge to introduce the legislation, even though, said Taylor, it happened later than originally anticipated. Had it been filed before the summer recess, it might have advanced prior to the election. But given that it was filed so late in the legislative session, however, the bill's approval will be “very difficult to accomplish this year,” Taylor said. “I don't see this thing coming through and getting any sort of proper hearing and traction until Congress goes into recess for the election,” he said.

In the meantime, town and Fish and Wildlife officials continue to work on a memorandum of understanding (MOU) which would accomplish the same goal as the legislation by giving the town and state equal standing with the federal agency in the management of resources in the disputed area.

The town recently sent some suggested revisions to a draft MOU to Scott Kahan, Regional Chief of the National Wildlife Refuge System.

“We are carefully considering these suggestions and we anticipate getting back to the town soon,” he said in an email Tuesday.

An MOU would give the town a voice in management of the disputed area until a final determination is made in its ownership, whether that be through legislation or, if that fails, litigation, said Taylor. If the legislation passes, “that ends it,” he said, but litigation “could take years.”

Jack Clarke, director of public policy and government relations for Mass Audubon, said an MOU is preferable to legislation because of the potential fallout on the national level. A number of national organizations are watching the situation, he said, and there is concern that should it pass it would open up the door to other uses at other national wildlife refuges, such as oil and gas drilling at the Arctic National Wildlife Refuge in Alaska.

The agreement reached by the town and the Fish and Wildlife Service over the eastern border of the Monomoy Refuge serves as a model for the western boundary dispute, Clarke said. After the federal agency proposed annexing 717 acres of town-owned South Beach as part of the initial CCP draft, a move solidly opposed by town officials and residents, the two parties negotiated a MOU that set an “ambulatory boundary” roughly where Monomoy and South Beach meet. That shows that selectmen and the agency can work together, Clarke said.

“Let's sort this out at town hall, and stay out of Congress,” he said.

Taylor agreed the issue has “enormous implications” both locally and nationally, and said town officials have to do everything in their power to protect their ability to maintain control over the resources west of Monomoy.

“The Fish and Wildlife Service overreached in believing they have the authority to contravene Congressional intent,” Taylor said, adding that the town and state have “demonstrated nothing but sound management” of the resources.

Introduction of the legislation is a “very significant and welcoming step forward in resolving the disagreement with the U.S. Fish and Wildlife Service,” he said.

“The town will use the coming months to build congressional support for reintroduction and passage of the bill early next year, if that becomes necessary,” he said.

Keating's office confirmed that the bill would be filed Tuesday.