Chapter 91 : the Massachusetts Public Waterfront Act

12 Pages·2003·0.95 MB·English

by  Massachusetts. Dept. of Environmental Protection

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Massachusetts
Department of
Environmental
Protection
This brochure. Chapter91: The Massachusetts Public WaterfrontAct, is the result ofthe
thoughtful contributions of many people. The following individuals contributed expertise
thatwas essential to the completion ofthis document.
Special thanks areextended to Steve Bliven, in conjunction with the University of
Massachusetts, Urban Harbors Institute, Boston for writing this document.
Page Layoutand Design by Cheryl Kimber.
DEP also gratefully acknowledges the following state and federal agency stafffor sharing
their knowledge with us in the development ofthis document (in order ofagency):
Massachusetts CoastalZone Management Office
Tom Skinner and Susan Snow-Cotter.
U.S. Environmental Protection Agency. Region 1
Ed Reiner
DEPalso acknowledges the contributions ofitsstaffin thepreparationofthis brochure
especially: Lois Bruinooge, Cynthia Giles, GaryGonyea, Philip Griffiths, Glenn Haas,
Elizabeth Kouloheras, Edward Kunce, Lealdon Langley NancyLin, Ben Lynch, Thomas
Maguire, Arleen O'Donnell, Magdalena Pavlak, Sharon Pelosi, Michelle Portman, David
Slagle. Alex Strysky, andMitchellZiencina.
This documentwas developed and printed with funds provided by U. S. Environmental
Protection Agency (EPA) to the Massachusetts Department of Environmental Protection
under Section 104(b)(3) ofthe Clean Water Act.
Massachusetts DepartmentofEnvironmentalProtection
RobertW. Golledge, Jr., Commissioner
Bureau ofResource Protection
Cynthia Giles, Assistant Commissioner
Division ofWatershedManagement
Glenn Haas, Director
Wetlandsand Waterways Program
Lealdon Langley, Director
Commonwealth ofMassachusetts
Mitt Romney, Governor
Kerry Healey, Lieutenant Governor
Ellen Roy Hertzfelder, Secretary, Executive Office of Environmental Affairs
Printable copies ofthis document can be downloaded at the following DEP Web site:
www.state.ma.us/dep/brp/waterway/waterway.htm
This information is also available in alternate formats upon request by contacting the DEP
ADA Coordinator at 617/574-6872.
September 2003
"
THE MASSACHUSETTS PUBLIC
Chapter 91
WATERFRONT ACT
MASSACHUSETTS PUBLIC WATERFRONT ACT ADOPTED 1866
CHAPTER 91, SECTION 10
"TheDepartmentshallhavegeneralcaresupervision oftheharborsand tide waters within the Commonwealth,
oftheflatsandlandsflowed thereby, ofthe watersandbanksofthe ConnecticutRiverandthebanksandwaters
ofthe non-tidal portion ofthe Merrimack River and ofall structures therein, in order to prevent and remove
unauthorized encroachments andcauses ofeverykind which mayinjure said Connecticut Riverorsaidpartof
Merrimack Riverorinterfere with the navigation ofsuch harbors, injure theirchannels orcausea reduction of
their tide waters, and toprotectanddevelop therightsandpropertyofthe Commonwealth in such waters, flats
and lands; and it maymake such surveys, examinations, and observations as it deems necessary therefor. The
DepartmentofEnvironmentalProtectionshallprotect theinterestofthe Commonwealthinareasdescribedhere-
in in issuinganylicenseandpermitauthorizedpursuant to this chapter.
PREFACE
—
Please note that the following material is intended for informational purposes to provide a general
explanation ofthenature andsubstance ofthe Chapter 91 law and itssupporting regulations and poli-
cies. Thisdocumentshouldnotbe considered legal text. Forspecific detailsconsultthe Massachusetts
Public WaterfrontAct (Chapter 91) and related regulations.
This document was prepared for the Massachusetts Department of Environmental Protection by the
Urban Harbors Institute ofthe University ofMassachusetts Boston as project #96-08A/104. This proj-
ect has been financed partially with federal funds granted to the Massachusetts Department of
Environmental Protection bythe U.S. Environmental Protection AgencyunderSection 104(b)(3) ofthe
Clean Water Act. The contents do not necessarily reflect the views and policies ofEPA. Any part or
all ofthis document may be copied for public information purposes. However, it may not be sold or
otherwise used for personal gain.
.
THE MASSACHUSETTS PUBLIC WATERFRONT ACT
History
(CHAPTER 91)
Massachusetts'principaltoolforprotectionandprudentmanagementofitsinlandwatersandtidelandsistheChapter91 waterwayslicensingstatuteof1866,also
knownasthe"PublicWaterfrontAct". Theoldestlawofitskindinthenation,Chapter91 regulatesactivitiesinbothinlandandcoastalareassuchasgreatponds,
certainriversandstreams,andtidelands.
The public trustdoctrine, theorigin ofChapter91, evolved from Roman and takingstepstoguarantee accessand to ensurethatwaterfrontdevelopment
English law. Two majorprinciples formthe basisofthe doctrine: bestutilizesthispreciouspublicresource.
1. The publichas fundamental rights andinterestinnatural resources
such as the air, thesea, and the shore; and TheWetlandsand Waterways Program (WWP) ofthe Department of
2. Thestate, astrustee ofthe publicinterest, hasa dutyto preserve and Environmental Protection (DEP) administers Chapter91 and itsassociated
enhanceboth thesenatural resourcesand the public'srightto use them. regulations found at 310 CMR9.00. Theregulationsseekto:
—
In the 1630s, a cash-poorcolonialgovernment eagerto promote commer- 1 Ensuivthatthewaterfrontandwaterwaysareusedprimarilyforwater-
—
cial ties between land and sea extended ownership rightsofupland prop- dependent uses. These include commercial fishing, shipping, passenger
erty-holders to tidal flats adjacent to their holdings. Although theso-called transportation, boat buildingand repair, marinas, and otheractivities
Colonial Ordinance changed ownership ofmostintertidal flatsfrompublic forwhich proximityto thewateris eitheressentialorofgreat advan-
toprivate, itdidnottransferall propertyrightsoriginallyheld in trust bythe tage. Techniques to effectthis objectiveinclude:
state. The lawrequired that theselandsbesubject to easementsguarantee- A. Preventingencroachmentbyincompatibledevelopment, and
ing publicaccessforfishing, fowling, and navigation aswell as directlyrelat- B. Avoidingthe disruption ofexisting maritimeand waterwaypur-
ed activities. Thus, earlyin itshistoryMassachusettsaffirmeda public right suitswhile promotingnewwater-dependent operations.
totidalwaterfront access, regardlessofprivate development. 2. Providepublicaccessforthe useandenjoymentofwaterwaysby:
A. Preservingand promotingthe rightsofsafepedestrian activities
The resultsofamajorcourtcase (BostonWaterfront Dev. Corp.v. alongthewater'sedgeand itsimmediate environment, and
Commonwealth) in 1979 reaffirmedthat thepublic retained rightsin tide- B. Securingpublicaccessbenefitsas compensation fornonwater-
—
lands evenwhen they have been filled. Amendmentsto the statutorylan- dependentprivatedevelopment on tidelands. Such benefits may
guage ofChapter91 in 1983 and 1986added important new substantiveand includemandatoryexterioropen spacesanduseswithin buildings
procedural requirementsin ordertoensure that the tidelandsare utilized that promoteyear-round publicaccesstothewaterfront, aswellas
onlyforwater-dependent usesorserveaproper public purpose. In this water-dependentprojectcomponentslikewatertransportation
process, thejurisdiction under Chapter91 "came ashore" and filledtidelands services, communityboating, publiclandings, and fishpiers.
have sincebeenrecognized as beingunderthe samejurisdictionasthose
areas presentlysubjectto the ebband flow ofthe tide.
Similarly, the landundergreat ponds, thosewaterbodiesofover 10acresin
their natural state, are owned by the Commonwealth and heldin trust for
publicpurpose. Landownersabuttinggreat pondsdo nothave a rightto use Sr
-
the pond forprivate purposesunlessauthorized bylegislativegrantorbya
Chapter91 license. The Massachusetts courtshave historically upheld a
wide arrayofpublic rights touse greatponds includingthe rights to fish, n ••in ->> TV'i
_
fowl, navigate, andcutice. MWIifc.':'"VMK
-" -
Chapter91 also provides formanagement ofdevelopment on certain naviga-
ble rivers, streams, and waterways.
Today, theCommonwealth recognizes thecontinuingneed to affirmpublic
jurisdictionover tidelands, great ponds, and other inland waterways, and is
GEOGRAPHICAL
Areas
JURISDICTION
TherearefourbasicareasofgeographicaljurisdictionsubjecttotheprovisionsofChapter91. Anyactivityoccurring inoneoftheareaslistedbelowrequiresthe
issuanceofsomeformofChapter91 authorization. Thisappliestoexistingunauthorizedactivitiesaswellasnewprojects.
FLOWED TIDELAIMDS 2 FILLED TIDELANDS
1
Any project located in; on, over, or under tidal waters seaward ofthe Filled tidelands are former submerged lands and tidal flats which are
present mean high water (MHW) shoreline is subject to the provisions no longer subject to tidal action due to the presence offill. Chapter 91
ofChapter 91. Jurisdiction in this case extends seaward to the state jurisdiction includes all filled tidelands up to the historic high water
limit ofterritorialjurisdiction. (See figure 1 below). mark, except for landlocked tidelands. Landlocked tidelands are a
Flowed tidelands may include areas ofprivate ownership type offilled tideland that is at least 250 feet from the shoreline and
(referred to as private tidelands) that generally lie between the mean separated from this shoreline by a public way in existence as of
high water mark and the historic mean low water mark (or a line run- Jan.1,1984. There are no landlocking provisions under Chapter 91 for
ning 1650 feet seaward ofthe high water mark, whichever is farther Designated PortAreas.
landward). Private Tidelands are subject to an easement to the public In Designated Port Areas the limit ofjurisdiction on filled tide-
for the purposes offishing, fowling, and ofpassing freely over and lands is the historic mean high water shoreline (i.e., all filled areas).
through the water. Filled tidelands may also include Private Tidelands. In this
instance, the limits ofthe private property subject to easement range
from the historic mean high tide to the historic mean low tide line.
HjjforicHiy, UPLANDWITHBUILDINGSD
3PIK
*%&^> NotsubjecttoChapter91
re
J'he
LANDLOCKED
lie.landwardofthefirstpublicway
andmorethan250feetlandwardofMHW}
FILLEDTIDELANDSWITH
BUILDINGC
DoesnotrequireaChapter91 license
FirstPublicWay wsiitnhcienthaeDseistieginsantoetdlPoocratteAdrea
FILLEDTIDELANDS
PresentMeanHighWaterShoreline WITHBUILDINGSA,B&E
PresentMeanLowWaterShoreline Chapter91 licenserequired
FIGURE
1
FLOWEDTIDELANDS
Chapter91 licenserequired Chapter 91
Jurisdiction
3 GREAT PONDS
4 NON-TIDAL RIVERS AND STREAMS
Any project located in, on, over or under the water ofa great pond is
By statute, certain segments ofthe Connecticut, Westfield and
within thejurisdiction ofChapter 91. Agreat pond is defined as any
Merrimack Rivers are within thejurisdiction ofChapter 91.
pond or lake that contained more than 10 acres in its natural state.
Additionally, projects located in, on, over, or under any non-tidal river
Ponds or lakes presently larger than 10 acres are presumed to be great
or stream on which public funds have been expended (either upstream
ponds unless the applicant provides unequivocal evidence otherwise. —
or downstream within the river basin) except for any portions not
Ponds that once measured 10 or more acres in their natural state, but —
normally navigable during any season by anyvessel are also under
which are now smaller, are still considered great ponds. An advisory
thejurisdiction ofChapter 91. Contact DEP's Wetlands and
listing ofgreat ponds is available through the Wetlands and
Waterways Program for definitions ofgeographicjurisdiction over
Waterways Program or on DEP's web site at:
specific river/stream segments.
www.state.ma.us/dep/brp/waterway/research.htm#ponds.
ACTIVITIES REQUIRING A CHAPTER 91
Activities
LICENSE OR PERMIT
There are seven basic categories of activity that require authorization under Chapter 91. These include both new and existing unauthorized activities as listed
WWP
below. CertainotheractivitieswithinthegeographicaljurisdictionofChapter91 thatcontinueauseorstructureeithercurrentlylicensedorpermittedbythe
WWP
orwhichwereexistingasof 1984 maynotrequireadditional regulatoryreview. Itisbesttocheckwiththe toensurewhetherthe proposed activityissub-
jecttopermitting.
1 1 STRUCTURES NOT ALREADY AUTHORIZED 2| FILLING NOT ALREADY AUTHORIZED
Placement, construction, oralterationofanystructure—regardlessofsizeorwhether Placementofanyunconsolidatedmaterialthatisconfinedorexpectedtoremain
—
permanentorseasonal. Examplesoftypical structures Include butare not limited inplace ina waterway. Such material includes beach nourishmentaswell as
—
to piers, wharves, dams, seawalls, weirs, booms,jetties, breakwaters, bulkheads, underwater disposal ofdredged materials.
riprap, revetments, piles, groins, roads, culverts, bridges, buildings, parking lots,
cables, pipes, conduits, tunnels, wires, and floats. Continuation ofany use or struc-
tureon privatetidelands, if legallycompleted (and not subsequently altered without
a license/permit) prior to 1984, may not requireauthorization.
3 USES NOT CURRENTLY AUTHORIZED 4 CHANGES IN A PREVIOUSLY AUTHORIZED USE
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Anyuseoffillorstructuresnotcoveredbyapresently validlicense orauthorizedby Anychangefromanauthorizeduse. An exampleofsuch a change in usewould be
a Legislativegrant. Structures and uses located on privatetidelandsthatwere in theconversion ofa commercial fishing establishmentto an office building orcon-
existence priorto 1984, that do not havea Chapter 91 licensedo not requireauthori- version ofan office building to retail use.
zation, provided that no changes have been madesincethen.
5 ALTERATION OFACURRENTLY AUTHORIZEDSTRUCTURE OR FILL. 6 DEMOLITION OR REMOVAL OF STRUCTURES
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Anychangeina structureorfillfromthespecificationscontainedintheexisting Removalofanyunauthorizedstructureorfillforwhichthere isnocurrentandvalid
license. Maintenance, repair or minoralterationsofan authorized structure or fill grantorlicensemayproceedafter writtenpermission from DEP.
may not require regulatory review.
7 CHANGE IN WATER LEVELS IN GREAT PONDS 8 OTHER WORK IN WATERS SUBJECT TO CHAPTER 91
| — |
Loweringofthe waterlevelofagreatpondrequiresa Chapter91 license unless Removalofmaterials (i.e., dredging) including, butnotlimitedto: rocks, bottomsed-
thatbodyofwateris usedforagriculture, manufacturing, irrigation, insectcontrol iments, debris, sand, refuse, plantoranimalmatter, duringanyexcavating, cleaning,
purposes, orpublic watersupplyandtheloweringfurthers thoseactivities. deepening, widening, orlengtheningofanytidal waters oftheCommonwealth.
(Removal of "plantor animal matter" in this instancedoes notapply toshellfishing,
hunting, orseaweed harvesting.)
OTHER ACTIVITIES
Some activities within the geographicaljurisdiction ofChapter 91 do not require a license or permit but may require notice and/orwritten authorization
WWP
from DEP. (It is bestto checkwith the to ensure that the proposed activity is, indeed, not subject to review.) See the Waterways Regulations at 310
CMR 9.05(3) for specific guidance. In general, activities such as the following may not require Chapter 91 a license or permit:
Constructionoffish ladders, fishwaysandother Minor modificationsto licensed fill orstructures, Removaloffill orstructuresundercertain
devicestoassistfishtopasssomeobstruction ina subjecttopriorreviewandwrittenapproval ofthe conditions, or
waterway, DEP, Installationand useofbottomanchored moorings,
Constructionofbulkheads, revetments, headwalls, Reconfigurationoflicenseddocking facilities ina floatsandraftsthatreceiveapproval bythe local
orstormwaterdrainageoutfallswithin riversand marina providedtheoption forreconfiguration is harbormasterunder Section 10AofChapter91.
streams, providedsuchstructuresareplacedsothat included inthe license,
thereisno impedimenttonavigation, Someemergencyactions withwrittenapprovalof
Maintenanceand repairoflicensedfill orstructures, theDepartment,
6
DIFFERENCES BETWEEN WATER-DEPENDENT
Differences
AND NONWATER-DEPENDENT USES
TheChapter91 regulationsdistinguishbetweenprojectsthatare"water-dependent"andthosethatare"nonwater-dependent". Muchofthelicensingprocessand
theregulatorystandardsreflectthisdifference. Ingeneral,thestatuteandregulationsaredesignedtoensurethatactivitieswithintidelandsbewater-dependent.
Nonwater-dependentprojectproposalsmustdemonstratethattheyservea "properpublicpurpose"which providesgreaterbenefitsthandetrimenttotherights
ofthepublicinthetidelandareaorinareasofgreatpondsbelowthehighwatermark.
"Water-dependent" activities require direct access to, or location in, tidal Any activity not explicitly determined by DEP to be water-dependent is
waters or great ponds and therefore cannot be located away from the considered to be "nonwater-dependent".
water's edge. Such uses include:
The Chapter 91 Waterways Regulations encourage use ofthe waterfront
• Boating activities such as marinas, boat basins, channels, storage forwater-dependent activities and therefore these are presumed to serve
areas, and other related commercial or recreational uses;
a proper public purpose. Consequently, there are fewer performance
Water-based recreation activities such as fishing or swimming;
standards for such activities.
Facilities which promote the public use and enjoyment ofthe
waterfront such as boardwalks, parks, or esplanades;
Aquaculture facilities; Nonwater-dependent projects, on the other hand, are presumed not to
Beach nourishment; serve a proper public purpose. Chapter 91 requires that these nonwater-
Waterborne transportation facilities; dependent projects provide greater benefit than detriment to the public's
Activities related to navigation, such as dredging, navigation aids,
rights in tidelands. These rights include fishing, fowling, and navigation
or marine police/fire stations;
and the right ofaccess thereto in private tidelands, in commonwealth
Shore protection structures designed to protect an existing
structure or to protect or expand a water-dependent use; tidelands, great ponds and the broader rights ofpublic use for all lawful
Discharge pipes; purposes.
Marine terminals and related facilities in tideland areas;
Commercial fishing and fish processing facilities;
Boatyards and related facilities; and
Other industrial infrastructure facilities which cannot reasonably
be located at an inland site.
TYPES OF CHAPTER 91
Authorizations
AUTHORIZATIONS
TherearefivetypesofChapter91 authorizations;
:LOWED TIDELANDS
Allactivitiessubject to thejurisdictionofChapter91 requireaWaterways ture wasbuilt orsubstantiallyaltered afterJanuaryof 1984, toqualifyforthe
—
License unlesstheyareeligibleforoneoftheotherauthorizationslistedin simplified procedure, it must be water-dependentandpile-supportedwith
2-5 below. no fill involved, beno more than 600 square feetseaward ofthe mean high
waterline, and serve lessthan ten vessels. In additiontothesestandards,
A. General License DEPmayauthorizefill supported structureswith asimplified license only if
Typicallyalicenseisforafixed termnottoexceed30yearsandrunswiththe the fillwasplacedpriortoJanuary of 1984. The simplified licenseprovides
deedfortheland, allowingitto betransferreduponchangeofownership. In fora substantial costsavingsto the applicant byallowingjointnotification
certaininstancesthistermmaybeextendedupto65yearsforprojectslocated forpermitting (under theWetlands ProtectionAct, M.G.L. c. 131 s.40 and the
on flowed tidelandsandupto99yearsforprojectsonfilledtidelandsorfillin PublicWaterfrontAct M.G.L. c. 91) with thelocal conservation commission
greatponds. andshorter processing timeswith DEP. In addition, thissimplified proce-
B. SimplifiedLicense durewaivesthe requirement that license plansbe stamped byaprofessional
WWP
Foraprojectconsistingentirely ofa dock, pier, seawall, bulkhead, orother engineer. The license has arenewabletermof15years. Contact the for
small-scale structure thatis an accessoryto aresidential useorserves a com- furtherinformation (see the "Additional Information Section" atthe backof
munitydocking facility, there isa simplified licensingprocedure. Ifthestruc- thisbrochure).
2 DEP WATERWAYS (CHAPTER 91) PERMIT 3 LICENSE OR PERMIT AMENDMENT
Some activities, generally ofa one-time or short-term nature, may be eli- Applicants may apply to amend a valid waterways license to authorize a
gible for a DEP Waterways permit. Examples of such activities include changeinuseorastructuralmodificationthatisnotsubstantialinnature (sub-
dredging, beach nourishment, in-water disposal ofunconsolidated mate- stantial = less than a 10% increasein height or ground coverage ofa structure
rials, site preparation, excavation, or demolition. orless than a 10%increasein an areaoffill).
4 LETTER OF APPROVAL 5 HARBORMASTER ANNUAL PERMIT
—
In certain instances DEP can authorize activities without requiring a full PursuanttoChapter91 andWaterwaysRegulations,theplacement onatem-
—
licenseorpermitonthebasisofwrittennotification. Examplesinclude;adock porary basis of moorings, floats or rafts held by bottom-anchor, and any
and slip reconfiguration within a licensed marina, minor modifications to an associated ramps may be authorized by an annual permit from the local
existing license, and demolition orremovalofauthorized structures. Harbormaster. No other Chapter 91 authorization is required so long as the
Harbormaster permit remains valid. Additionally, with approval ofthe DEP,
acommunity mayestablishanannual Local PermittingProcessforsmall,pile-
IlllHlll supported structures accessory to residences to be administered by the
L. .. : Harbormasterorsomeotherlocal official orgovernmental body.
|«ll&P#"'i
8
LICENSING PROCEDURES FOR
Procedures
WATER-DEPENDENT USE PROJECTS
FollowingisachronologicaldescriptionofDEPproceduresuponreceiptofanapplicationforaChapter91 authorization.
Pleasenote: thisisa verygeneralizedlistandissubject tochange. Fordetails, consult with theDEP's Wetlandsand WaterwaysProgram (WWP).
1 PRE-APPUCATION CONSULATION required to distribute this notice to his/her represen- Wetlands and Waterways Program unless the Project
|
Ifthe proposed project is large or complex (particu- tative^); all property abutters; and to certain munici- • Complies with applicable environmental regu-
larly ifthe filing ofan Environmental Impact Report is pal, state, and federal officials or agencies. The latory programs ofthe Commonwealth,
required), DEP will conduct a pre-application meet- applicant is also required, at his/her own expense, to • Conforms to theapplicable provisions ofeither
ing. This will include a presentation ofthe project by publish the public notice in one or more newspapers an approved Municipal Harbor Plan or, for
the applicant, preliminary guidance by DEP's WWP having circulation in the area affected by the project. docks and piers, a Resource Management plan
on the applicability or regulatory standards, and a Priorto or upon applying to DEP, applicants for an Area ofCritical Environmental Concern if
discussion ofthe necessary licensing procedures. mustalso submit a copy oftheir application tothe one is currently in place wherethe project is
Even iftheproject is not largeorcomplex, the Planning Board ofthe municipality where the project proposed,
project proponent isencouragedto meetwith theWWP is proposed. Within 30 days of its receipt of a copy • Conforms to local zoning and by-laws, and
staffpriorto filing an applicationto reviewthe project ofthe license application, the Planning Board may • Complies with the performance standards for
in relationto regulatorystandardsand procedures. electto hold a public hearing. Subsequently, the various activities provided in the Waterways
Board may submit comments and a written recom- Regulations.
2 MEPA FILING mendation asto whether, and why, the projectwould
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Prior to filing an application for a Chapter 91 license not be detrimental to public rights in tidelands and 8 LICENSE ISSUANCE
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for a nonwater-dependent use project, the applicant whether it serves a proper public purpose. DEP will When DEP decidesto issue a license, theapplicant
must file an Environmental Notification Form (ENF) consider recommendations from the Planning Board will be notified in writing ofany required fees. In
with the Massachusetts Environmental Policy Act in making its decision whether to granta license. general, these fees are for the displacementofwaters
(MEPA) Unit. Any project proposing a nonwater- within Chapter 91jurisdiction and for the occupation
dependent use ofone or more acres oftidelands or 6 PUBLIC HEARING ofcommonwealth tidelands. Within 21 days ofthe
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within a great pond categorically requires submitting For projectsdetermined to be nonwater-dependent, the date of issuance, aggrieved persons may submitan
WWP
an Environmental Impact Report (EIR). will hold a public hearing in the municipality in appeal according to provisions provided in the regu-
which the project is proposed. lations.
3 APPLICATION FILED TheWWPwill acceptwritten commentsfrom
|
Upon receiptofa license application, the WWP per- any person for 30days (15 daysfor permitapplica- 9 RECORDING OF LICENSE
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forms a preliminary reviewto determine its com- tions) from thedate ofpublicationofthe public The license and accompanying plan(s) must be
pleteness. A copy ofthe Notice of Intent filed with notice—or within anyadditional period granted by DEP. recorded at theappropriate Registry of Deeds within
the local Conservation Commission underthe 60 daysofthe date ofissuance. Ifthe license is not
Massachusetts Wetlands Protection Act must also be 7 | LICENSE DECISION recorded within 60 days of its issuance, itwill
included with the Chapter 91 application For nonwater-dependentuse projects, theWWPwill become void.
(www.state.ma.us/dep/brp/ww/wwforms.htm). issue a written determination of its intentto issuea
Ifan application is not complete, DEP will con- license—including proposed licenseconditions—for 10 | CERTIFICATE OF COMPLIANCE
tactthe applicantor his/her representativeand the public review. In thecaseofa water-dependent proj- Within 60 days ofthecompletion ofany licensed
WWP
application will be returned in its entirety. Ifan appli- ect, the need not issuea written determination project and no later than fiveyears from the dateof
cation is determined to be complete, a DEP file num- for public review—unlessthere has been a public license issuance, the Licensee mustrequest that DEP
WWP
ber will be assigned and the application review will hearing or ifthe intendsto deny the licenseor issue a certificateofcompliance. The request must
proceed to public notice. permitapplication. The WWP may issuea draft be accompanied by certification from a registered
license for public review for water-dependent licenses. professional engineer that the project was completed
4 FORMAL DETERMINATION Licenses or permitswill bewritten so thatthey according to the plans, specifications, and conditions
|
asto Water Dependency preserve, insofar as is possible the capacity for ofthe license.
As an initial step in its review, the WWP will classify water-dependent use, public trust rights for the law-
the project use as either water-dependentor nonwa- ful useoftidelands, great ponds, and other water-
ter-dependent. ways including existing rightsofaccess.
Performancestandards for various types of projects
5 PUBLIC NOTICE are provided in the Waterways Regulationsand will
|
The WWP will send a notice of license or permit be incorporated into the license or permit.
application to theapplicant. The applicant is No License or Permit May Be Issued by DEP's
9
HOW THE PUBLIC BENEFITS FROM THE
Benefits
CHAPTER 91 LICENSING PROCESS
Ingeneral, thepublic benefits obtained through the Chapter91 licensingprocess mayinclude:
• Pedestrian and waterfront walkways or strolling rights within the intertidal zone,
• Transient or dinghy docks,
• Public boat landings or boat ramps,
• Piers and floats for public recreational boating or fishing facilities or to provide public water transportation facilities and services,
• Public sailing programs, or
• Creation ofparkland.
Small water-dependent projects such as docks and piers are typically required to provide intertidal access over or around the structure for fishing,
fowling navigation and strolling. The following are a few examples ofpublic benefits provided through Chapter 91 s Waterways licenses at four
,
major project sites.
SALEM, BOSTON HARBOR,
Jefferson Properties (JPI) NONWATER-DEPENDENT Battery Wharf NONWATER-DEPENDENT
PROJECT PROJECT
Creation ofa large public park with elevated viewing areas Public open space.
looking toward the North River. Public recreational fishing areas.
Dedicated public parking spaces for the park. Asheltered waiting area for water taxis.
Interpretive exhibits concerning the history ofthe site. Transient dockage.
Public rest rooms. Aself-guided historical walking tour.
Public restrooms.
A US Coast Guard historical exhibit.
BOSTON HARBOR, PROVINCETOWN,
Rowes Wharf MacMillan Pier
NONWATER-DEPENDENT WATER-DEPENDENT
PROJECT PROJECT
Public waterfront, pedestrian walkways and plazas. 23,000 square feet ofpublic access walkways (with possible
Ferry terminals and water shuttles. expansion to 33,000 square feet) for passive recreational uses.
Public restrooms. A public courtesy dock.
Public recreational marina that includes restrooms, showers, Two ramps accessible to the handicapped.
and a vessel pumpout facility. Information kiosks.
Transient (temporary) boat dockage. Public seating areas.
Public observatory in the rotunda ofthe Atlantic Avenue A designated public fishing pier.
building.
10