Current through Register 1531, September 27, 2024
(1)
Definitions: for the purposes of 321 CMR 2.08, the
following words and phrases have the following meanings:
Agriculture or
Agricultural Use means farming or agriculture as
defined in M.G.L. c. 111, § 1.
Cage or Box Type Trap means a trap
that confines the whole animal without grasping any part of the animal.
Conibear Type Trap means "Conibear"
model traps and similar body-gripping traps and devices, whether or not
enclosed in or comprising part of a box, tube, or other enclosing
device.
Department of Environmental Protection
means the Department of Environmental Protection within the Executive Office of
Energy and Environmental Affairs, as provided for in M.G.L. c. 21A, §7.
Department of Public Health means the
Department of Public Health within the Executive Office of Health and Human
Services, as provided for in M.G.L. c. 6A, § 7G.
Director means the Director of the
Division of Fisheries and Wildlife, as provided for in M.G.L. c. 21, §
7G.
Division means the Division of
Fisheries and Wildlife within the Department of Fish and Game, as provided for
in M.G.L. c. 21A, § 8.
Federal Department of Public Health
means the United States Public Health Service.
Fur-bearing Mammals means all mammals
in the Class Mammalia, as defined in M.G.L. c. 131, §1.
Municipal Board of Health means a
board of health as defined in M.G.L. c. 111, § 1.
Municipal Conservation Commission
means a conservation commission as provided for in M.G.L. c. 40, § 8C, provided
that, if a town or city does not have a conservation commission, the authority
thereof shall be exercised by the board of selectmen in a town or the mayor in
a city.
Permissible Traps means cage or box
type traps, common type mouse and rat traps, and net traps.
Prohibited Traps means all traps used
for the capture of fur-bearing mammals except cage or box type traps, common
type mouse and rat traps, and net traps.
Restricted Traps means conibear type
traps.
(2)
Use
of Certain Traps Prohibited. Except as provided in M.G.L. c. 131,
§ 80A, and 321 CMR 2.08, a person shall not use, set, place, maintain, or
possess for the purpose of capturing fur-bearing mammals, any prohibited trap
in any wood, field, or waters of Massachusetts or in any other place where
fur-bearing mammals may be found.
(3)
Health and Safety
Exceptions. Notwithstanding the provisions of 321 CMR 2.08(2), the
Department of Public Health, the federal department of public health, or a
municipal board of health may use prohibited traps for the purpose of
protection from threats to human health and safety.
(4)
Criteria for Determining
Threats to Human Health and Safety. A threat to human health and
safety may include, but not be limited to, one or more of the following
situations:
(a) beaver or muskrat occupancy
of a public water supply;
(b)
beaver or muskrat-caused flooding of drinking water wells, wellfields, or water
pumping stations;
(c) beaver or
muskrat-caused flooding of sewage beds, septic systems, or sewage pumping
stations;
(d) beaver or
muskrat-caused flooding of a public or private way, driveway, railway, or
airport runway or taxiway;
(e)
beaver or muskrat-caused flooding of electrical or gas generation plants or
transmission or distribution structures or facilities, telephone or other
communications facilities, or other public utilities;
(f) beaver or muskrat-caused flooding
affecting the public use of hospitals, emergency clinics, nursing homes, homes
for the elderly, or fire stations;
(g) beaver or muskrat-caused flooding
affecting hazardous waste sites or facilities, incineration or resource
recovery plants, or other structures or facilities whereby flooding may result
in the release or escape of hazardous or noxious materials or
substances;
(h) the gnawing,
chewing, entering, or damage to electrical or gas generating or transmission
equipment, cables, alarm systems, or facilities by any beaver or muskrat;
(i) beaver or muskrat-caused
flooding or structural instability on property owned by the applicant if such
animal problem poses an imminent threat of substantial property damage or
income loss, which shall be limited to:
1.
flooding of residential, commercial, industrial or commercial buildings or
facilities;
2. flooding of or
access to commercial agricultural lands which prevents normal agricultural
practices from being conducted on such lands;
3. reduction in the production of an
agricultural crop caused by flooding or compromised structural stability of
commercial agricultural lands;
4.
flooding of residential lands in which the municipal board of health, its chair
or agent or the state or federal department of health has determined a threat
to human health and safety exists.
(5)
Special Permits to Use
Restricted Traps or Other Means of Relief. A person or his duly
authorized agent may apply for a permit to use restricted traps or other means
of relief, as follows:
(a) to the municipal
board of health, in situations involving a threat to human health and safety,
in accordance with 321 CMR 2.08(6) through (14);
(b) to the director, in situations not
involving a threat to human health and safety, in accordance with 321 CMR
2.08(16) through (18).
(6)
Emergency Permit to Use
Restricted Traps, Breaching of Water Impedance Structures, or Water Flow
Control Devices. An applicant or his duly authorized agent may
apply to the municipal board of health for an emergency permit to immediately
alleviate a threat to human health and safety pursuant to 321 CMR 2.08(4), on
property owned, leased, or lawfully occupied by the applicant, provided, that
in the case of a tenant or lessee, such applicant shall secure the
authorization of the property owner prior to making such application.
(7)
Authorizations Under an
Emergency Permit. Such emergency permit shall authorize the
applicant or his duly authorized agent, as named in the permit, to immediately
remedy the threat to human health and safety, by one or more of the following
options, for a period not to exceed ten consecutive days:
(a) the use of restricted traps or
permissible traps, subject to the provisions of 321 CMR 2.08(21);
(b) the breaching of dams, dikes, bogs or
berms, so-called, subject to the determinations and conditions of municipal
conservation commissions pursuant to provisions of M.G.L. c. 131, §
40;
(c) the employment of any
non-lethal management control devices or water flow control devices, subject to
the determinations and conditions of municipal conservation commissions
pursuant to provisions of M.G.L. c. 131, § 40.
(8)
Determination of Threat to
Human Health and Safety and Issuance of Emergency Permit. The
municipal board of health shall, after receipt of an application for an
emergency permit pursuant to 321 CMR 2.08(6), and after making a determination
that such threat exists, and subject to the provisions of 321 CMR 2.08(7)(b)
and (c), immediately issue said emergency permit for a period not to exceed ten
consecutive days.
(9)
Exception to Determination of Threat to Human Health and
Safety. Notwithstanding the provisions of 321 CMR 2.08(8), the
department of environmental protection shall make any determination of a threat
to a public water supply, pursuant to 321 CMR 2.08(4)(a). The municipal board
of health and the department of public health shall receive such determination
from the department of environmental protection prior to issuing an emergency
permit for such public water supply.
(10)
Denial of Application for an
Emergency Permit to Use Restricted Traps. If an application for
such emergency permit is denied, an applicant may:
(a) appeal to the department of public
health, if the denial involves a determination as to the existence of a
bona-fide threat to human health and safety. If such alleged
threat involves a public water supply, the department of public health shall
consult with the department of environmental protection prior to rending a
decision on the appeal.
(b) if the
department of public health determines that a bona-fide threat
to public health and safety exists, it shall render such decision to the
municipal board of health, which shall, subject to the provisions of 321 CMR
2.08(7)(b) and (c), immediately issue said emergency permit for a period not to
exceed ten consecutive days.
(c)
appeal to the director, if the municipal board of health determines that a
bona-fide threat to human health and safety exists, but the
board's denial involves a question as to whether the threat is caused by the
activities of beaver or muskrat.
(d) if the director determines that such
threat to human health and safety is caused by the activities of beaver or
muskrat, he shall render such decision to the municipal board of health, which
shall, subject to the provisions of 321 CMR 2.08(7)(b) and (c), immediately
issue said emergency permit for a period not to exceed ten consecutive
days.
(11)
Extension of Existing Emergency Permit. In the event
that a threat to human health and safety, as specified in an emergency permit
issued pursuant to 321 CMR 2.08(8), has not been abated or alleviated within
the authorized ten day period, the applicant or his duly authorized agent, with
the concurrence of the municipal board of health, shall apply to the director
for an extension to such permit for a period not to exceed 30 consecutive days.
If the director determines that a bona-fide threat to human
health and safety exists, as advised by the municipal board of health, the
department of public health, or the department of environmental protection, as
the case may be, he shall immediately issue such extension permit for a period
not to exceed 30 calendar days.
(12)
Development of Abatement
Plans. If the director determines that an extension to an
emergency permit should be issued, he shall, within 30 days of such decision,
develop a plan using alternative, non-lethal management techniques to address
the beaver or muskrat problem which instigated the issuance of the permit. Such
plan shall:
(a) be developed with the
participation and assistance of the applicant or his duly authorized agent, the
municipal board of health, and the municipal conservation commission as
required pursuant to M.G.L. c. 131, § 40; and
(b) describe measures which may be employed
to address said beaver or muskrat problem, using barriers, fencing, or other
alternative non-lethal management techniques, water flow control devices, if
appropriate to the situation, subject to the determinations and conditions of
municipal conservation commissions pursuant to M.G.L. c. 131, § 40, and, if
necessary, continued use of permissible traps to provide a long-term
solution.
(c) The director shall,
after development of such a plan, provide such reasonable technical advice,
assistance, and support as shall be necessary for the applicant or his agent to
implement the abatement plan.
(13)
Additional Emergency
Permits. Notwithstanding the provisions of 321 CMR 2.08(6) through
(12), an applicant or his duly authorized agent may apply to the municipal
board of health for additional emergency permits, provided:
(a) the applicant states in writing that
there exists on property owned, leased or lawfully occupied by him a beaver or
muskrat problem which the applicant or his authorized agent has:
1. attempted to address using alternative,
non-lethal management techniques or permissible traps, and the problem cannot
reasonably be abated by the continued use of such alternative, non-lethal
management techniques or permissible traps; or
2. the applicant has applied for and is
awaiting an extension emergency permit pursuant to 321 CMR 2.08(11).
(b) an applicant or his duly
authorized agent, in the case of application for an additional emergency permit
pursuant to 321 CMR 2.08(13)(a), shall be eligible for only two such additional
emergency permits, in accordance with 321 CMR 2.08(14).
(14)
Authorizations Under an
Additional Emergency Permit. An additional emergency permit shall
be authorized and valid as follows:
(a)
application shall be made in the same manner as provided for in 321 CMR
2.08(6), (8) and (9);
(b) the first
such permit shall authorize the applicant or his duly authorized agent, as
named in the permit, to use any or all of the measures specified in 321 CMR
2.08(7). Said additional emergency permit shall be valid for a period of ten
consecutive days;
(c) if the
director has not approved an extension emergency permit within the ten day
period provided in 321 CMR 2.08(14)(b), the applicant or his duly authorized
agent may apply for a second additional emergency permit. Such second
additional emergency permit shall authorize the applicant or his duly
authorized agent, as named in the permit, to use only those measures proved for
in 321 CMR 2.08(7)(b) and (c). Such additional emergency permit shall be valid
for a period not to exceed ten consecutive days, or until the date on which the
director renders his decision regarding the applicant's extension emergency
permit, whichever period is shorter.
(15)
Recommended Subregulatory
Guidelines and Standards. For the purposes of 321 CMR 2.08(5)
through (14), the director, in consultation with the departments of
environmental protection and public health, may recommend guidelines and
standards for permits, applications, reports, site inspections, dam or dike
breaching periods, and water flow control structure installation. Such
guidelines and standards may be set forth or distributed to boards of health,
municipal conservation commissions, applicants or their agents, by postal mail
or agency websites, or otherwise, and may include reference to published or
unpublished agency documents, brochures, or handouts relevant to such
activities. Such standards and guidelines may be issued jointly with the
departments of environmental protection and public health. Such standards and
guidelines, where not repugnant to law, shall be construed consistently with
the provisions of 321 CMR 2.08 and M.G.L. c. 131, § 80A. Nothing in 321 CMR
2.08(15) shall be construed to limit the powers and authorities of the
departments of environmental protection and public health.
(16)
Non-emergency Special Permit
to Use Restricted Traps in Situations Not Involving Threats to Human Health and
Safety. The director may authorize an applicant or his duly
authorized agent, as named in the permit, to use restricted traps to abate
animal problems on property owned by the applicant, in accordance with 321 CMR
2.08(16) through (18).
(17)
Application Procedure for Obtaining Non-emergency Special Permit to
Use Restricted Traps. The applicant shall apply to the director in
writing and the application shall contain the following information:
(a) name, address, and telephone number of
the applicant where the applicant may be reached between the hours of 9:00 A.M.
and 5:00 P.M. and name of corporation or business represented by the applicant,
if any;
(b) name, address, and
telephone number of the property owner or lessee, if different;
(c) a statement by the applicant that there
exists on property owned or leased by him, or on which the applicant intends to
act as agent for the owner or lessee, a problem caused by fur-bearing mammals
which cannot reasonably be abated by the use of permissible traps;
(d) a statement by the applicant that he, or
the owner or lessee, has attempted to abate the problem using permissible traps
and has failed to make such abatement;
(e) description of the type of damage caused
by fur-bearing mammals, and the kind of mammal;
(f) street address or geographical location
where the mammal damage is occurring;
(g) trap registration number of the
applicant, if required pursuant to M.G.L. c. 131, § 80;
(h) the date the application was
executed;
(i) the applicant's
signature, executed under the pains and penalties of perjury; and
(j) the signature of the property owner or
lessee, if different, executed under the pains and penalties of
perjury.
(18)
Review and Approval Procedure for Obtaining Non-emergency Special
Permit. When the director receives an application for a
non-emergency special permit to use a restricted trap, as provided for in 321
CMR 2.08(17), he shall:
(a) review the
application and the type and circumstances of the mammal problem described
therein and may, at his discretion, additionally cause a field inspection to be
made of the situation; and shall further, if he determines that the
circumstances warrant issuance of such permit,
(b) cause the applicant to demonstrate that
he has used permissible traps for a period of at least 15 consecutive days, and
that usage of such traps has failed to abate the mammal problem, and a signed
statement by the applicant, signed under the pains and penalties of perjury,
shall be accepted by the director as sufficient evidence of such permissible
trap usage; and shall further, if he determines that the circumstances warrant
issuance of such permit,
(c) cause
the applicant to demonstrate that he has attempted to resolve the mammal
problem with alternative, non-lethal management techniques, including, where
appropriate, flow devices, exclosures, barriers, or harassment, and that usage
of such alternative, non-lethal techniques has failed to abate the problem, and
a signed statement by the applicant, signed under the pains and penalties of
perjury, shall be accepted by the director as sufficient evidence of such usage
of alternative, non-lethal techniques; and
(d) when the applicant has complied with 321
CMR 2.08(18)(a) through (c), to the satisfaction of the director, the director
may authorize in writing the use, setting, placing, tending, and maintenance of
restricted traps, of such number and type as he shall determine, and subject to
the provisions of 321 CMR 2.08(21), for a period not to exceed 30 consecutive
days at the address or location specified in the application by the named
applicant.
(e) At the conclusion of
the 30 day period, the applicant shall make a report in writing to the
director, and shall state the number of days and/or trap-nights during which
restricted traps were used, the success or failure of trap usage, and the
number and kind of fur-bearing mammals trapped, if any, their disposition, and
any other information as shall have been required by the director in the
permit.
(f) If the applicant was
unsuccessful in abating the mammal problem in accordance with such
non-emergency special permit, the applicant may reapply and shall again comply
with provisions of 321 CMR 2.08(18)(a) through (c).
(19)
Procedure for Reviewing
Complaints of Damage by Fur-bearing Mammals. If a report is
received by the division of damage by or problems with beaver, muskrat, or
other fur-bearing mammals:
(a) the
circumstances of the complaint shall ascertained; and
(b) if the complaint or problem is alleged to
pose a threat to human health and safety as provided for in 321 CMR 2.08(4),
the complainant shall be referred to the municipal board of health in the city
or town in which the problem occurs, or, if on federal property, to the federal
department of public health; or
(c)
if the complaint or problem is alleged not to pose a threat to human health and
safety, as provided for in 321 CMR 2.08(4), the division may record the
complaint data and may thereafter provide technical information, conduct a site
visit, issue a dam-breaching permit pursuant to
321 CMR 2.02(6)
subject to the determinations and conditions
of municipal conservation commissions pursuant to provisions of M.G.L. c. 131,
§ 40, refer the complainant to a licensed hunter or trapper for harvest using
firearms or permissible traps during the lawful open season, refer the
complainant to a licensed problem animal control agent for taking with firearms
or permissible traps, issue a permit to the applicant or a duly authorized
agent to control the animal out of season using firearms, advise the
complainant of the process for obtaining a non-emergency special permit to use
restricted traps as provided for in 321 CMR 2.08(17) and (18), or take such
other actions or provide such advice as is deemed appropriate to the
situation.
(20)
Denial of Non-emergency Special Permit to Use Restricted
Traps. Where not repugnant to provisions of M.G.L. c. 30A, the
procedure for appealing the denial of a non-emergency special permit to use
restricted traps shall be as provided in
321 CMR
2.02(11).
(21)
Use of Traps and
Firearms. Traps and firearms may be used, set, placed, maintained,
tended, or possessed for the capture of fur-bearing mammals in accordance with
M.G.L. c. 131, §§ 4, 5, and 37, and
321 CMR
2.14 and
321 CMR
3.02(5), provided that a
person lawfully using traps pursuant to permits issued under provisions of 321
CMR 2.08 shall:
(a) register all traps used,
placed, set, maintained, possessed or tended on land of another, in accordance
with provisions of M.G.L. c. 131, § 80.
(b) use restricted traps with a jaw spread
not less than four inches and not greater than seven inches, provided such
traps are used only when completely submerged in water or when set inside a
dwelling or other building with the permission of the owner or occupant
thereof. When set inside a building, such traps must have two functioning
springs. Notwithstanding the foregoing, restricted traps with a maximum jaw
spread not greater than ten inches may be used for the trapping of beaver only,
provided that such traps are used only when completely submerged in
water.
(c) use permissible traps
only when in conformance with the provisions of
321 CMR 2.14(24)
and
321 CMR
3.02(5)(c), unless otherwise
allowed by law.
(d) for the
purposes of 321 CMR 2.08, determine the jaw spread of a trap by measuring
midway across the open jaws at right angles to the hinges between the extreme
outside edges; and all persons subject to M.G.L. c. 131 shall
(e) use firearms only when in conformance
with the provisions of
321 CMR 2.14(24)(f)
and 321 CMR 3.00, and M.G.L. c. 140, unless
otherwise allowed by law.
(22)
Use of Certain Alternative
Management Techniques. Notwithstanding the provisions of M.G.L. c.
131, § 80A and 321 CMR 2.08, a person not wishing to obtain an emergency permit
or non-emergency special permit to use restricted traps pursuant to 321 CMR
2.08 shall not otherwise be required to obtain a permit to use certain
alternative, non-lethal management techniques for the abatement or alleviation
of problems caused by fur-bearing mammals, including, but not restricted to,
barriers, exclosures, repellents registered and applied consistent with
provisions of M.G.L. c. 131, § 43, and c. 132B, harassment, and similar
techniques not otherwise repugnant to law, and subject to the determinations
and conditions of municipal conservation commissions pursuant to provisions of
M.G.L. c. 131, § 40, and the determinations and conditions of the division
pursuant to
321 CMR
2.02(6).
(23)
Agents.
Licensed trappers, including licensed problem animal control agents, may act as
agent for an applicant pursuant to 321 CMR 2.08, provided that such agent shall
comply with the trapper training provisions of
321 CMR 2.14(24)(b) and
(26), and
321 CMR 3.02(5)(c) and
(f), and such other provisions of 321 CMR as
shall be applicable.
(24)
Incidental Capture. Any person taking a fur-bearing
mammal or any other vertebrate animal under provisions of a permit issued
pursuant to 321 CMR 2.08 shall, if the animal is killed in the trap, surrender
the entire carcass of such animal within 48 hours to the Division, provided
that if the animal is a beaver or a muskrat, or such other fur-bearing mammal
as shall be specifically named in the permit as causing a threat to human
health and safety, the permittee may retain the animal subject to relevant
provisions of 321 CMR and M.G.L. c. 131. If an animal other than a beaver, a
muskrat, or other fur-bearing mammal as shall be specifically named in the
permit is taken alive in a trap, such animal shall immediately be released at
the site of capture.
(25)
Validity of Permits. Except where a shorter time
period is specified in M.G.L. c. 131, § 80A and 321 CMR 2.08, all permits
issued pursuant to 321 CMR 2.08 shall be issued and may be reapplied for
consistent with provisions of M.G.L. c. 131, § 32.
