NANTUCKET'S PONDS WORTH FIGHTING FOR
BY PETER B. BRACE INDEPENDENT WRITER
She is a Happy Hooker. Kathy Kelliher, namesake of the Nantucket Anglers' Club Kathy Kelliher Fall Pond Fishing Tournament, fishes for chain pickerel, white perch, yellow perch, sunfish and, if she can catch this particularly elusive fish, crappy.

Barbara Gookin/The Independent file

Although she has not gotten a line wet in about a year, Kelliher can tell you anything you want to know about pulling fish out of Nantucket's ponds.

Her sport is one of relaxation and calm and, presumably, one apart from the maledominated frenetic huggermugger of saltwater fishing. Kelliher lists Miacomet and Maxcy

Pond as her two favorite fishing holes, an interesting combination, as each was formed of uniquely divergent glacial action that carved up

Nantucket 15,000 years ago. Kelliher, the other Happy Hookers (female members of the Nantucket Anglers Club) and scores of other Nantucketers are afforded a special kind of fishing freedom on island ponds, one that is not extended to the rest of freshwater fishermen in the State of Massachusetts. The anomaly occurs through a loophole in the regulations of the Massachusetts Division of Fisheries & Wildlife that exempts Nantucket from fishing license and limit laws because of a 16th century colonial act that Kelliher and others believe is now being abused.

"It [overfishing] just shouldn't happen," she said. "Even if they're catching them to eat, you don't take all the small ones, too. It's just not right. I've noticed there's been a lot fewer fish in the last four years and I don't know if it's people fishing or whether it's letting the ponds out every year."

Some fish kill does occur whenever the town opens Sesachacha and Hummock ponds in April and October, but the health of these great salt ponds, in addition to the stresses on all island ponds including varying levels of atmospheric pollution, nearby development, fertilizer use, beats more in time to pond openings and the resulting dissolved oxygen and salinity levels.

A case-in-point is Sesachacha Pond that, although Town Biologist Keith Conant points to the ills of development pollution sullying this coastal pond, is affected more by the brevity of each pond opening, according to the recently released Massachusetts Estuaries Project report on Sesachacha Pond.

"The highly restricted 'flushing' of pond waters per annum serves to greatly increase the nitrogen sensitivity of this system, such that even low rates of nitrogen loading cause eutrophic conditions," reads part of the report. "The difficulty in achieving adequate tidal exchange during any given opening attempt has resulted in the present ecological impairment of the Sesachacha Pond System. The low rate of nitrogen removal through tidal flushing results in high nitrogen levels, large phytoplankton blooms and periodic anoxia of bottom waters."

Conant's water quality monitoring of Sesachacha confirms this.

"It's a severely degraded water body with septic coming through the groundwater table and surface water runoff [that] is from fertilizers from the golf courses and the cranberry bogs," he said.

GOUGING AND POST-HOLING

The Immediate Post-Glacial and Peri-Glacial periods of the Wisconsin Era around 15,000 years ago produced three types of ponds on Nantucket: kettle holes, tidal ponds and glacial outwash valleys. Kettle hole ponds found in the moors and near the interior of the island were left behind after the last glacier receded northward, leaving massive chunks of ice in its wake.

When the stranded icebergs melted, the depressions left in the ground, some up to 16 feet deep, filled first with meltwater from the ice and later with rainwater and groundwater. Jewel, Wigwam, Maxcy, Pout, Washing, Almanac and Donut ponds are all kettle holes.

Coskata and Haulover, the island's two major tidal ponds, came into being at the hands of littoral drift over the last 6,000 years. Wind, waves and currents moved sand north from Wauwinet, which was once the island's northernmost point, and created sand spits cum barrier beaches now known as Great Point, Coskata and Coatue.

Ponds like Clark's Cove, Long, Miacomet, Hummock and the almost-filled-in Weweeder Pond are glacial outwash valleys with water that is gradually moving upland through an eons-long process of vegetation encroachment. Madequecham, Toupshue and Forked Pond valleys are former ponds that still have some wetland vegetation like cattails, but are largely taken over by upland plants.

Clark's Cove, Long, Miacomet, Hummock and Weweeder will eventually succumb to erosion and become wet to dry valleys.

One idea, according to the late botanist Wes Tiffney, an environmental scientist and founder (along with the University of Massachusetts) of the UMass Boston Nantucket Field Station, is that meltwater running southward of the retreating glacier eroded these glacial outwash valleys that flowed to the island at a point 45 miles from where the South Shore is today. But Tiffney refuted that theory, saying that the erosion has yet to happen.

"The counter theory is they formed by the water seeping through a gravel dam [underneath the glacier]," Tiffney said in a March 1998 story in the Nantucket Beacon. "I say that if that had happened, the [water] would have busted through the dam. All we can say is that their formation is related to the glacier.

"Personally, I still go for the straight glacial runoff myself. Before the glacier down-melted to the point where the stream would have started eroding back through the moraine, there wasn't enough water left to power the stream. All that illustrates is how geologists have a good time."

Sesachacha Pond, eked out of glacial debris left behind by the same glacier, is neither kettle hole, tidal pond nor glacial outwash valley.

NO EX POST FACTO LAW

"The white perch in Sesachacha all died in the winter of 1933 and did not reappear until 1978. Abonanza of eel fishing followed. Many hundreds of pounds of eels were caught and shipped to market between 1933 and 1940; fortunately, they brought a good price. During the Depression, many fish prices were at very low levels, but eel prices kept up very well."

These lines from "Fishing Around Nantucket," written by the late Nantucket fisherman J. Clinton Andrews, tell just part of the story of commercial fishing in the island's ponds, but it also accentuates the underpinnings of all pond usage on the Grey Lady - that Nantucket does what it wants with its ponds. During Andrews'lifetime, whole families were able to derive their incomes from fishing for eels, clams, oysters and freshwater fish - all with no regulation by state officials, a salient reality that persists in today's predominant recreational use of the island's ponds.

The perceived overfishing of Hummock Pond is spawning the latest state intervention attempt, as MassWildlife tries to discern the legalities of a colonial act of 1693 by the British Government that granted the Town of Nantucket and its people "absolute ownership of the ponds," according to Rick Blair's story in the Early Summer 2004 issue of Nantucket Magazine. One of Nantucket's first recorded challenges to this act came in 1882, according to an April 23, 1954 front page story in the Town Crier entitled, "State Will Abide By District Court Decision In Test Case To Decide Island Ponds Ownership."

In 1882, the Town Crier noted, a town committee was formed to learn if the town could legally spend money to open Madaket Ditch to the ocean. The newspaper cited definitions of portions of the act as proof that Nantucket owns exclusive rights to its ponds:

"This Colonial Act of 1693 particularly declared that all rights and privileges acquired under New York should be reserved to the people of Nantucket; and, they acquired the absolute ownership of the ponds by virtue of their several grants, while a part of New York, the ownership of all ponds was still vested in the Proprietors of the island. The State of Massachusetts never had and never can have rights in the ponds of Nantucket, by virtue of any subsequent legislation, for the Constitution expressly declares that no ex post facto law shall be passed, neither can any law impairing the obligation of contracts be passed. The law of 1869, under which Commissioners of Fisheries may lease great ponds of the Commonwealth, excepted just such rights as the proprietors."

TESTING THE WATERS

It is doubtful the large numbers of fishermen hauling yellow perch from Hummock Pond over the last two years are aware of the centuries-old act their activities are dredging up for examination in 2007.

Nonetheless, according to Tautemo Way resident Steve O'Brien, during this summer and last, these fishermen, working two to three per boat, were taking all but the tiniest fish. Because Nantucket holds tightly to its belief in island pond ownership, none of the suspect anglers had to pay the $27.50 for MassWildlife's freshwater fishing license, nor did they likely know that there is, in fact, no daily bag limit for yellow perch.

Hard pressed for direction, MassWildlife does not yet know enough about the colonial act of 1693 to initiate enforcement of Nantucket's ponds and is, at present, relying on the state's attorneys to root out a solution.

"There are a lot of complicated legal issues surrounding this that the Department of Fish and Game is currently looking into, so we cannot comment any further at this time," said Spokesman Lisa Capone, Press Secretary in the Executive Office of Energy and Environmental Affairs on Aug. 16.

But Marine Superintendent Dave Fronzuto, head of the Nantucket's Marine & Coastal Resources Department, knows what should be done. Fronzuto told the Board of Selectmen at its Aug. 8 meeting that local guidelines and enforcement are probably where Nantucket is headed.

"We don't want to have state control," he said. "I likened it to the beach driving and pond openings where the town had to fight to retain control of those rights to do that. This is a perfect example of this same type of issue."

Fifty-three years ago, the state did believe it knew what it was doing, sending newly christened State Conservation Officer Joseph Hunchard down to the island to enforce the state's freshwater fishing laws. He nailed his first "scofflaws" at Long Pond - not for fishing, but for the possession of fishing gear - arresting the late Arthur Stojak and the late John Cabral, on April 7, 1954, according to a Town Crier article "2 Island Youths Face Court In Pond Test Case" published on April 16, 1954.

Hunchard, with the full encouragement of Howard S. Willard, law enforcement officer for the Division of Fisheries and Game, proceeded with state prosecution that led to a court date of June 2, 1954 in Nantucket District Court. Judge Caroline Leveen, however, ruled that Stojak and Cabral were well within their rights, saying the state has no rights in Nantucket's ponds, according to the Town Crier on June 4, 1954. Said Judge George W. Poland, who represented the two fishing lawbreakers after Leveen's decision, "The fish in the ponds are just as private as those in the goldfish bowl in Your Honor's home."

However, Willard instructed Hunchard to issue warnings to those without licenses, but not to prosecute the offenders until state Attorney General George Fingold decided otherwise.

DR. SCANNELL

A man with a shovel and an overactive penchant for confrontation hoping to wrest pond-opening control from the DEP, former Nantucketer and scalloper Steve Scannell, prompted the next successful challenge of Nantucket's sovereignty over its ponds. Each spring and fall in the early 1990s, Scannell would trudge out to Hummock and Sesachacha ponds with his shovel, alerting then Environmental Police Officer Don "Clambo" LaHaye that he would be digging open these ponds by hand.

Scannell's hope was that he would be fined and jailed enough times to force a test case of island pond control that he believed Nantucket already had as part of the island's sheep common shares divided up for sheep grazing by the original proprietors. Scannell's persistence paid off on Oct. 22, 1993 when then Governor William Weld signed into law legislation that gave pond-opening jurisdiction to the Board of Selectmen and the Conservation Commission, allowing the town to open the island's four great ponds without state approval two times a year. Prior to this new law, Nantucket opened its ponds under the aegis of a three-year DEP permit.

GETTING PHYSICAL

Underlying Scannell's and the town's struggle for local pond control is a shared desire for healthier ponds that now, after 14 years of biannual openings of Sesachacha and Hummock Ponds, and openings of Miacomet Pond strictly to dry out flooded basements, has yielded only marginal results.

The original goals remain: to flush out the nutrient saturated pond water with enough salt water to boost the ponds' salinity and dissolved oxygen levels for survival of marine life; to allow American eels to swim out in the fall to spawn in the Sargasso Sea; for blueback herring and alewives to swim into the pond to spawn and for eels to swim back in at the spring opening and young herring to swim out. Although Conant said the openings are helping, Nantucket's four great ponds are in rough shape.

He described Sesachacha as a severely degraded pond listed on DEP's 303(d) list of the Clean Water Act that does not meet surface water quality standards. It has no eelgrass and very few life forms, a body of water that is dominated by phytoplankton that blocks sunlight and robs the pond of oxygen as these microscopic plants decay.

The Estuaries Project report for Sesachacha recommends a third opening for this pond in the middle of summer to keep the salinity at or above 25 parts per thousand and total nutrient levels below 1.0 milligram per liter.

Miacomet Pond is also in trouble, he said.

"Miacomet isn't on the 303d list, but it is also a fairly degraded water body, and that's primarily due to the large water shed in there that's contributing a lot of septic inputs," he said. "The golf course probably contributes a large portion of nutrients from fertilizers. Because it's such a shallow water body, ground water and surface water really affect it almost immediately."

Hummock Pond, which benefits from twice-yearly openings to the ocean, alternates between good and not so good water quality. The mucky, quasi-stagnant poor quality water that bubbles out from the North Head of Hummock Pond with blue-green algae blooms, causes the same problems as phytoplankton in Sesachacha Pond and is compounded by leaky septic systems on the east side of the pond.

Long Pond, Conant said, is probably the worst of the island's four great salt ponds. Despite its connection to the ocean via the Madaket Ditch and Hither Creek, it takes 76 days for the north head of the pond and 183 for the southern end to completely flush out with fresh sea water.

"Long Pond has had severe problems with fecal coliform counts on the southern end, and of course the nutrient levels are really high," said Conant. "I think it still acts as a herring run, but I'm not sure how well because of the hyper-eutrophic situation, so that pond's in big trouble and I'm not really sure what we're going to do with it."

Not the kind of report card a pond fisherwoman wants to read. Luckily for the Happy Hookers, they practice catch-and-release, but others probably do not, unaware that mercury levels in fish in both Hummock and Miacomet ponds are high enough to warrant consumption warnings for pregnant women from Nantucket's Health Inspector, an especially poignant caution given that many new islanders seem to be fishing the ponds for sustenance.

"There's seems to be a lot of it going on with people who have moved here from other countries and they seem to be spending a lot of time going out there

and catching a lot of fish," said Kelliher. I