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The 192nd General Court of the Commonwealth of Massachusetts

Section 19: Providing passage for salt water fish into fresh water to spawn; refusal or neglect to repair or construct fishway; operation and maintenance of fishways

Section 19. For the purpose of providing suitable passage for salt water fish coming into fresh water to spawn, the director or some person thereunto authorized by him in writing, may (1) seize and remove, summarily if need be, at the expense of the owner using and maintaining the same, all illegal obstructions, except dams, mills or machinery, to the passage of such fish, (2) examine all dams and other obstructions to such passage in brooks, rivers and streams, the waters of which flow into coastal water, where in his judgment fishways are needed, and (3) shall determine whether existing fishways, if any, are suitable and sufficient for the passage of such fish in such brooks, rivers and streams or whether a new fishway is needed for the passage of fish over such dam or obstruction; and he shall prescribe by written order what changes or repairs, if any, shall be made therein, and where, how and when a new fishway shall be built, and at what times the same shall be kept open and shall serve a copy of such order upon the person maintaining the dam or other obstruction. A certificate of the director that service has been so made shall be sufficient proof thereof. The supreme judicial or superior court shall, on petition of the director, have jurisdiction in equity or otherwise to enforce any such order and to restrain any violation thereof.

Before the director makes any such order for the construction of a new fishway, as provided in this section, upon any stream or portion of a stream not in coastal waters, he shall in writing notify the director of the division of fisheries and wildlife of such proposed order, together with plans for such proposed construction, and said last mentioned director shall within ten days after receiving such notice, if he desires to object to such construction, in writing request a hearing before the commissioner, whose decision on the matter shall be final.

If the owner of such dam or obstruction refuses or neglects to repair or construct a fishway after written order therefor has been received from the director, the director may after such time as he may deem sufficient enter with workmen and material upon the premises of such person required to construct or maintain such fishway and may at the expense of the commonwealth, if in his opinion such person is unable to afford such expense, otherwise at the expense of such person, improve an existing fishway or cause one to be constructed if none exists and may, if necessary, for such purpose, take, by due process of law, the land of any other person who is not obliged by law to maintain such fishway. If a fishway has been constructed in accordance with an order of the director as provided in this section no alteration thereof shall be required within a period of five years after such construction.

All damages caused by taking land hereunder shall, upon the application of any party in interest, be recovered from the commonwealth under chapter seventy-nine. The amount so recovered shall be a charge against the person required by law to construct and maintain such fishway and shall be recovered in contract in the name of the commonwealth, with costs and with interest at the rate of six per cent per annum.

The director shall determine all matters relating to the operation and maintenance of all fishways constructed for the passage of anadromous fish, including the time and method of opening and closing thereof, in such manner as will, in his opinion, give adequate protection to such fish passing to or from the coastal waters, and shall prescribe the same by written order. For the protection of any such fishway and the fish using the same, he may set aside a certain area adjacent to the fishway and may prohibit all persons from fishing or entering, or both, within such boundaries by posting notices thereon to that effect, giving a description of the bounds thereof; provided, that the area so set aside shall not extend for a distance of more than one hundred yards from any such fishway; and provided, further, that the prohibition of entrance into such area shall not deny to the owner or other lawful occupant of the property on which the fishway is built or maintained the right of reasonable access to or passage through such area for the necessary care of such property; and provided, further, that such closing and prohibition shall not interfere with the lawful operation of any special fishery established therein.