Authorities: M.G.L. c. 91: Public Waterfront Act; 310 CMR 9.00: Waterways Regulations.

Jurisdiction: Dredging, placement of structures, change in use of existing structures, placement of fill, and alteration of existing structures in any of the following coastal areas (recognizing that MGL Ch. 91 applies more broadly than to coastal areas):

• Flowed tidelands - projects in, on, over, or under tidal areas between the mean high water (MHW) line and the limit of state territorial waters (generally 3 miles from shore).
• Filled tidelands outside Designated Port Areas (DPAs) - projects up to the first public way or 250 feet from MHW, whichever extends farther inland.
• Filled tidelands inside DPAs - projects between the present and historic MHW (i.e. all filled areas inside DPAs).

For moorings, floats, rafts, and other bottom-anchored structures, an annual Section 10A permit may be obtained from the local harbormaster in lieu of a Chapter 91 license.

Applicability: Any project proposed in, under, or over flowed or filled tidelands or great ponds requires a Chapter 91 license or permit. A Simplified Chapter 91 Waterways License is available to owners of small residential docks, piers, seawalls, and bulkheads. Water-Dependent Chapter 91 Waterways Licenses cover all new or unauthorized water-dependent use projects that are not eligible for the Simplified License. All new or unauthorized nonwater-dependent uses must obtain a Nonwater-Dependent Chapter 91 Waterways License. The term of a Simplified License is 10 years, all others are 30 years.

Work not involving fill or structures, such as dredging, may apply for a Chapter 91 Waterways Permit. The term of a Permit is 5-10 years.

Regulatory Summary: The Division of Wetlands and Waterways in the Department of Environmental Protection (MassDEP) administers the Chapter 91 Waterways Program. Chapter 91 is the Massachusetts public trust statute and, as such, protects the public’s rights to fish, fowl, and navigate below the current or historic high water line, as well as in great ponds and navigable rivers and streams in Massachusetts, the so-called public trust lands. Waterways regulations promote the preservation of tidelands for water-dependent uses that require direct access to the water. In addition, the regulations seek to ensure that areas in jurisdiction are maintained for public use and enjoyment when privately developed.

Projects are reviewed to ensure that they: (1) do not unreasonably interfere with navigation, (2) are structurally sound, (3) provide a proper public purpose, (4) do not interfere with public rights or rights of adjacent property owners, (5) will not adversely affect natural resources, and (6) preserve DPAs for maritime industrial use.

Review Process: The applicant must provide MassDEP with the proposed project location, type of project, project plans, information about other applicable state permits, a certification that the project does not violate municipal zoning, and notification of the municipal planning board. Projects are subject to a 30-day public comment period advertised in a newspaper of general circulation. Nonwater-dependent projects also require a public hearing. MassDEP licensing decisions are subject to a 21-day appeal period.

The Chapter 91 License must be recorded at the Registry of Deeds with the property’s chain of title within 60 days of issuance or the license becomes invalid.

Forms: CH91 Waterways License, Simplified License, Permits, Amendments at www.mass.gov/dep/water/approvals/wwforms.htm.

Fees: Application fees range from $50 - $2,500 depending on the application type.

Occupation fees are $1 or $2 per square yard per year of the license term, depending on the application type.

Tidewater Displacement fee of $2 or $10 per cubic yard depending on application type.

Website: www.mass.gov/dep/water/resources/waterway.htm.

Contact: MassDEP Waterways Program (617) 292-5696.