After an often-tense Tuesday meeting and in a unanimous vote, the Rochester Conservation Commission found Hathaway Pond dam to be “land in agricultural use.”

It is not clear what effect the designation will have on the dam’s future. Those who oppose plans to remove the dam, however, believe the designation could complicate removal plans and aid their effort to get the now-drained Hathaway Pond refilled.

The Coalition for Buzzards Bay recently purchased the land on which the Hathaway Pond dam sits and intends to remove the 200-year-old dam in order to restore the Sippican River to its original form and appearance. The coalition's plan has drawn the ire of local cranberry growers and local residents.

The Coalition contends that dam removal will improve the herring habitat, improve water quality and provide a healthier ecosystem. Residents say the pond was already teeming with life and that the water quality is higher than in nearby Leonard's Pond.

The vote is yet another twist in the ongoing conflict over the fate of the dam.

Activities on the land requiring a permit must now preserve or aid the agricultural functions of the land.

"Land in agricultural use is an if/then situation," said Rochester Town Counsel Blair Bailey. "This vote now gives you the if," he added, saying that until specific projects or activities involving the land are proposed, the new designation's effect will be unclear.

"It doesn't change anything at this minute," said Woody Hartley, an opponent of the dam's removal and a local cranberry grower and partner in developing the Pines at Hathaway Pond, an over-55 community abutting the pond.

Tension permeated the room in the Council on Aging prior to the meeting, which had to be moved from Townhall because of the large number of people in attendance. Two items drew the, at times emotional, crowd.

The first was the coalition's notice of intent to keep the water levels in Hathaway Pond reduced. The water level in the pond was lowered to perform an inspection in March. During the inspection the dam was found to be in an “active state of failure.”  The state Office of Dam Safety released a revised dam safety order in July telling the Coalition that it must maintain the lowered water levels because of its structural deficiencies.

"I want everybody to understand why we're here tonight," said Bailey in an opening statement. "This involves water levels and the status of the dam. Not the future of the dam and whether it stays or whether it goes."

The commission voted unanimously to allow the Coalition to keep the water level in its reduced state in accordance with the safety order. The town's authority, according to Bailey, cannot supersede a state agency's authority and so the vote was largely a formality.

"This commission doesn't have the authority to countermand that order," said Bailey.

Although maintaining the water level at its present depth is a separate issue from removing the dam altogether, residents wasted no time in barraging with criticism the Coalition once the floor was open.

"We residents of Rochester, voters and taxpayers in Rochester, are almost unanimously opposed to the dam's removal," said Peter Rickard, a resident of the Pines, reading from a three-page letter he had prepared for the commission. "There has been no plan put forth which adequately describes what the Sippican River will look like if the dam is removed. We have not been privy to any study or projections as to what we'll be looking at if the water is permanently lowered."

Rickard sat down to loud  applause from residents in the crowd and was followed by numerous other residentss.

"The dam was found to be in an active state of failure," said Sarah Quintal, representing the coalition.

"The ODS has said the dam is unsafe because they have no evidence that it isn't," said Doug Beaton, a local cranberry grower who owns 55 acres of bogs that are directly affected by Hathaway Pond and has deeded rights to Hathaway Pond and the dam. "They [the Coalition for Buzzards Bay] assured me that I was going to have water but I was left on an island, you could say."

"It's a guilty until innocent situation," said Hartley.

"Regardless of what the commission decides tonight, this is not an endorsement of any particular way forward," said Laurell Farinon, Conservation Agent for the Town of Rochester, before she recommended that the commission vote in favor of the Coalition keeping the reduced water level.

The second item was the Request for Determination of Applicability filed by Beaton, Walter Hartley, Woody's brother and partner to determine whether the land is "land in agricultural use.”

"We [Beaton's Inc.] have a right to repair the road and maintain the dam," said Beaton. "Which infers to me that it's land in agricultural use."

Standing up to speak so as to better explain what "land in agricultural use" means, Representative Bill Straus (D-Mattapoisett) addressed the assembly.

Straus said that the land was clearly in agricultural use and that Beaton had withdrawn water from the pond as recently as 2010. Land in agricultural use, by law, must have been used for agricultural purposes within the last five years.

"That part of the lawyer letter, pretend it didn't happen. Give it no weight," said Straus referring to the seven-page letter sent to the commission asserting that the land is not land in agricultural use by Bennett Heart, a lawyer with Noble & Wickersham LLP, a Cambridge law firm representing the Coalition regarding the dam.

"No one in this town can credibly attack that the dam has been used for agriculture," said Straus. "I think this one, pardon the expression, is shooting fish in a barrel."

The assembled residents broke into applause after the commission voted.

"It doesn't change what the coalition intends to do with the dam," said Mark Rasmussen, President of the Coalition for Buzzards Bay, after the meeting, seeming undeterred by the vote. “We’re excited to get back to talking about the project.”

"It's important because it will carry with it a series of important exemptions to preserve the agricultural use of the land," said Straus after the meeting.

"We're kind of happy," said Beaton. "We thought it was obvious that it was land in agricultural use."

The Coalition has until September 15 to file a detailed explanation  with the town of what it will do with the Hathaway Pond dam.