Summary of Proposed Regulatory Changes
The Department of Environmental Protection (MassDEP) and the Office of Coastal Zone Management (CZM) are proposing revisions to the following regulations:
- 310 CMR 9.00: Waterways;
- 301 CMR 23.00: Review and Approval of Municipal Harbor Plans; and
- 301 CMR 25.00: Designation of Port Areas.
The purpose of these revisions is to reduce regulatory burden and increase the flexibility provided to municipalities and businesses by allowing for new and expanded economic development opportunities, while ensuring the protection of current and future marine industrial opportunities in selected areas within Designated Port Areas (DPAs) and public access and benefits in filled tidelands. MassDEP’s proposed revisions to 310 CMR 9.00 will work in concert with CZM’s proposed revisions to its MHP regulations at 301 CMR 23.00 and its DPA regulations at 301 CMR 25.00.
301 CMR 23.00: Review and Approval of Municipal Harbor Plans establishes a voluntary procedure by which municipalities may obtain Secretary approval of Municipal Harbor Plans (MHPs), which inform and guide EEA agency actions, especially MassDEP’s waterways licensing (310 CMR 9.00). The purpose of the proposed revisions to 301 CMR 23.00 is to allow MHPs to identify sub-areas within DPAs for potential location of Supporting Uses on piers over flowed tidelands, and to identify potential locations for recreational boating facilities. These revisions would allow property owners in these areas to pursue additional business opportunities to help support their primary port businesses and their critical port infrastructure.
301 CMR 25.00: Designation of Port Areas sets forth a procedure for establishing and modifying the boundaries of Designated Port Areas (DPAs). The purpose of the proposed revisions to 301 CMR 25.00 is to ease the limitations on areas within existing DPAs that are eligible to have the boundary of the DPA reviewed for possible modification. These regulatory revisions are needed to provide municipalities a greater ability to manage and plan for uses in DPAs, and to provide businesses located in DPAs with more flexibility to potentially be removed from a DPA through a boundary review or to allow additional uses that will help support the primary marine industrial business.
310 CMR 9.00: Waterways protects and promotes the public’s interest in filled and flowed tidelands, Great Ponds, and non-tidal rivers and streams in accordance with the Public Trust Doctrine. MassDEP’s licensing authority under M.G.L. c. 91, and its regulations at 310 CMR 9.00 permit uses, fill, and structures in these jurisdictional areas. 310 CMR 9.00 includes, among other things, regulations protecting traditional water-dependent industrial uses in DPA’s including, but not limited to, commercial fishing, commercial passenger vessel operation, boat repair and maintenance, and other commercial shipping activities from displacement by nonwater-dependent commercial, residential, and recreational uses.
DPAs are a distinct jurisdictional subset of regulated tidelands in the Commonwealth, and the proposed changes to 310 CMR 9.00 will allow an expanded set of compatible industrial and commercial uses that reflect new and emerging technology in water-dependent industrial commerce. The changes will also allow for alternative beneficial revenue sources to port operations, which will protect the long term vibrancy of these areas. The revisions to the Waterways regulations will:
• clarify the definition of a Boatyard;
• broaden the definition of Supporting DPA Uses;
• strengthen the definition of Temporary Uses;
• add allowable water-dependent industrial uses;
• add clarification to allowed Accessory Uses to a water-dependent industrial use;
• add more specificity to Categorical Restrictions for parking and supporting uses on pile-supported structures over flowed tidelands within a DPA;
• permit maintenance of existing previously authorized recreational boating facilities within a DPA;
• permit recreational berths authorized in connection with a Boatyard; and
• provide for more flexibility in the standards for Boatyards in a DPA.
Draft Regulatory Revisions:
310 CMR 9.00: Waterways
301 CMR 23.00: Review and Approval of Municipal Harbor Plans
301 CMR 25.00: Designation of Port Areas