ࡱ>   bjbjVV 7<<&l l dH[[[ooo8CDo""!!!!!!!#m&H![PPP![[!PL[[!P!oL!!0"&.&&[hJ`<!!"PPPP&l u: COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL PROTECTION ONE WINTER STREET, BOSTON, MA 02108 617-292-5500 January 7, 2011 ________________________ In the Matter of Docket No. 2010-017 Lawrence and Charlotte Oliveira Mattapoisett ________________________ RECOMMENDED FINAL DECISION A Ten Residents Group (the Petitioners) appealed a draft waterways license issued by the Massachusetts Department of Environmental Protection (the Department) for a 223 foot long pier on Commonwealth tidelands and private tidelands owned by Lawrence and Charlotte Oliveira (the "Applicant") in Mattapoisett. M.G.L. c. 91; 310 CMR 9.00. The proposed pier would allow the Applicant to use a motorized inflatable dinghy to reach a motorboat at a nearby mooring. Neighborhood residents who use a common beach and nearshore waters adjacent to the proposed pier for swimming and boating in predominantly small boats claim, inter alia, that the project will significantly interfere with public rights of free passage and navigation in the area. The Applicant proposed a plan change, which would add stairs for lateral access. From a regulatory perspective, this appeal is grounded in a dispute between the Applicant as the proponent of a water-dependent use project, which is presumed to serve a proper public purpose under the regulations, and neighborhood residents and members of the general public who are currently engaging in water-dependent uses of the project site. See 310 CMR 9.31(2)(a). The parties differed in their views of how the regulations, which protect the exercise of public trust rights, should apply to this project, given the physical characteristics and uses of the site. After a hearing and consideration of all the testimony, I conclude that the proposed pier will impair the ability of the public to pass freely over the water, require users of small boats to alter an established course of passage through the site, and impede swimming activities. Thus, the project will significantly interfere with public rights of navigation and free passage. 310 CMR 9.35(2)(a) and (b). Project revisions or additional conditions on the license to address this interference appear precluded by the site constraints, particularly the shallow subtidal area that requires a 233 foot long pier to reach an adequate berthing depth.  Because I conclude that the Petitioners have shown that the overall public trust in waterways at the project site is best served by allowing the current uses to continue unimpaired, I recommend that the Departments Commissioner deny the license for this proposed pier. ISSUES FOR ADJUDUCATION 1. Has the applicant provided sufficient evidence of legal authority to pursue the project at this project site? 310 CMR 9.11(3)(a). 2. Does the project "interfere with access to adjoining areas by extending substantially beyond the projection of existing structures adjacent to the site, in contravention of 310 CMR 9.35(2)(a)1.e.? 3. Does the project meet the requirements of 310 CMR 9.35(2)(a) and (b), by not significantly interfering with public rights of navigation or of free passage over and through the water column? 4. Does the project meet the requirements of 310 CMR 9.35(3)(b), by not significantly interfering with public rights to walk or otherwise pass freely on private tidelands for fishing, fowling, and navigation and on Commonwealth tidelands for all lawful activities? 5. Does the project meet the requirements of 310 CMR 9.36(2) through placement of the proposed pier at least 25 feet from abutting property lines, where feasible? 6. Do the project's benefits outweigh its detriments to c. 91 interests? M.G.L. c. 91, 14(3)? 7. Does the project meet the requirements for compliance with applicable regulatory programs of the Commonwealth? In the discussion of the testimony below, I first address Issue 3, related to the protection of public rights of navigation and free passage, because this standard presents a barrier to licensing of the proposed pier. I then address the other issues, although to some extent the issues were interrelated. APPLICABLE REGULATIONS 310 CMR 9.35: Standards to Preserve Water-Related Public Rights (1) General. The project shall preserve any rights held by the Commonwealth in trust for the public to use tidelands, Great Ponds and other waterways for lawful purposes; and shall preserve any public rights of access that are associated with such use. In applying this standard the Department shall act in accordance with the provisions of 310 CMR 9.35(2) through (6), and shall give particular consideration to applicable guidance specified in a municipal harbor plan, as provided in 310 CMR 9.34(2)(b)2. Further, in assessing the significance of any interference with public rights pursuant to 310 CMR 9.35(2) and (3), the Department shall take into account that the provision of public benefits by certain water-dependent uses may give rise to some unavoidable interference with certain water-related public rights. Such interference may be allowed provided that mitigation is provided to the greatest extent deemed reasonable by the Department, and that the overall public trust in waterways is best served. (2) Public Rights Applicable to All Waterways. (a) Navigation -- The project shall not significantly interfere with public rights of navigation which exist in all waterways. Such rights include the right to conduct any activity which entails the movement of a boat, vessel, float, or other watercraft; the right to conduct any activity involving the transport or the loading/unloading of persons or objects to or from any such watercraft; and the natural derivatives thereof. 1. The Department shall find that the standard is not met in the event a project will: . . . . d. require the alteration of an established course of vessels; e. interfere with access to adjoining areas by extending substantially beyond the projection of existing structures adjacent to the site; f. extend beyond the length required to achieve a safe berthing, where there are no adjacent structures; . . . : or j. impair in any other substantial manner the ability of the public to pass freely upon the waterways and to engage in transport or loading/unloading activities. . . . . (b) Free Passage Over and Through Water -- The project shall not significantly interfere with public rights of free passage over and through the water, which exist in all waterways. Such rights include the right to float on, swim in, or otherwise move freely within the water column without touching the bottom, and, in Commonwealth Tidelands and Great Ponds, to walk on the bottom. 310 CMR 9.35(3) (b) On-foot Passage -- The project shall not significantly interfere with public rights to walk or otherwise pass freely on private tidelands for purposes of fishing, fowling, navigation, and the natural derivatives thereof; and on Commonwealth tidelands and Great Ponds for said purposes and all other lawful activities, including swimming, strolling, and other recreational activities. The Department shall find that the standard is not met if the project does not comply with the following conditions governing public pedestrian access: 1. if the project site includes flowed private tidelands, the project shall allow continuous, on-foot, lateral passage by the public in the exercise of its rights therein, wherever feasible; any pier, wharf, groin, jetty, or other structure on such tidelands shall be designed to minimize interference with such passage, either by maintaining at least a five-foot clearance above the ground along the high water mark or by providing a stairway for the public to pass laterally over such structures; where obstruction of continuous access below the high water mark is unavoidable, the project shall provide alternate lateral passage to the public above said mark in order to mitigate interference with the public right of passage on flowed private tidelands; 9.36: Standards to Protect Water-Dependent Uses . . . . (2) Private Access to Littoral or Riparian Property -- The project shall not significantly interfere with littoral or riparian property owners' right to approach their property from a waterway, and to approach the waterway from said property, as provided in M.G.L. c. 91, 17. In evaluating whether such interference is caused by a proposed structure, the Department may consider the proximity of the structure to abutting littoral or riparian property and the density of existing structures. In the case of a proposed structure which extends perpendicular to the shore, the Department shall require its placement at least 25 feet away from such abutting property lines, where feasible. Chapter 91, Section 14. . . . Except as provided in section eighteen, no structures or fill may be licensed on private tidelands or commonwealth tidelands unless such structures or fill are necessary to accommodate a water dependent use; provided that for commonwealth tidelands said structures or fill shall also serve a proper public purpose and that said purpose shall provide a greater public benefit than public detriment to the rights of the public in said lands. TESTIMONY OF THE PARTIES Despite the testimony of multiple lay and expert witnesses in this dispute, much remains uncontested. The project site extends from Lot 27 on Starboard Way and Shore View Avenue within the Bayside Meadows subdivision, adjacent to Mattapoisett Harbor and across the street from the Oliveiras house. The intertidal and subtidal area slopes very gently toward Mattapoissett Harbor. The site is within mapped shellfish habitat and near mapped eelgrass beds. The shoreline is a shallow cove. McGrath PFT at para. 26; Daylor Reb. at para. 7. The proposed pier would be located in an area that contains large rocks, and is shown as a foul area on coastal maps. The closest docks are to the east- southeast about 2,500 feet away and to the northwest about 1200 to 1400 feet away. The beach adjacent to the site of the proposed pier is used by most or all of the residents of the Bayside Meadows subdivision. Mollys Cove is around the point to the east-southeast. The project is a five foot wide timber pier extending 223 feet into Mattapoisett Harbor. A 37 foot timber wave break is attached to the pier on the northerly end, with an additional wavebreak along the outer 28 feet of the pier. A 24 foot aluminum ramp leads to a seasonal 10 by 20 foot float behind the northerly wave break, with boats to be tied to the float along the northwesterly (toward the common beach) and southwesterly (landward) sides of the float. There are rocks shown on the plan to the east, north, and west of the pier, and a line identified as DEP Eelgrass 2001 that extends from the east and bears northwesterly approximately at the midpoint of the 37 foot wavebreak, with the line appearing to touch the northern corner of the pier. Water depths along the western side of the structure appear to range from 2.6 to 2.8 feet. Id. The area is also within a mapped shellfish bed. The draft c. 91 license contains special conditions requiring that no structure extend seaward of the mapped eelgrass line, no vessels shall be berthed on the northerly end of the pier or seaward of the eelgrass line, and that floats stops be installed to maintain two feet of clearance off the bottom at extreme low tide. Delaplain PFT; draft license special conditions 7, 9, and 13. The pier itself extends along the approximate centerline of the lot, 46 feet from the extended property line to the east but the float would be located 10 feet from the edge of the extended property line of the 10 foot right of way for Starboard Way. Nilson PFT, Ex. 2, Plan p. 2 of 7. The pier is 8 feet above mean low water, so that it provides the required 5 feet of lateral passage along the shore at low tide but not at mid or high tides. There are stairs on one side to pass over the pier. The Oliveiras have owned Lot 27 for 22 years. Mr. Oliveira testified that the reason he has proposed the pier is that he has four grandsons who love the water and it is getting increasingly difficult to get them into boats in a safe way. . . . We will use the inflatable to get our boat to the pier and load the grandkids and our supplies. Oliveira PFT at para. 9. Mr. Oliveira has a mooring close to the end of the pier where he keeps a Boston Whaler. He also owns another Whaler and a 28 foot Bertram, both of which are kept at slips at the Town Dock, a kayak, a damaged day sailor, and a rowboat which he currently uses to reach his Boston Whaler on the mooring. Oliveira Cross. Other residents of the subdivision have boats at nearby moorings which they reach by using dinghies either moored near the shore or pulled out above high water. Mr. Oliveira stated that due to the rocks along the shore, boat traffic is not east and west but instead north and away from the rocks. Oliveira PFT at para. 22. Thus he believes the pier will not interfere with motorized craft. Oliveira PFT at para. 34. He states that after 20 years and a few boat prop repairs we know where the rocks are and where to travel to avoid them. Oliveira PFT at para. 36. The Applicant filed the testimony of expert witnesses Susan E. Nilson and John A. DeRugeris, both Professional Engineers at CLE Engineering, Inc. with extensive experience with the construction and licensing of piers including the design of this project. Mr. DeRugeris testified that he believes the use of the area where the pier is proposed is quite limited due to the rocks and potential for damage, as boaters could use the remainder of Mattapoisett Harbor instead. DeRugeris PFT at para. 17 and 18. Mr. DeRugeris stated that the pier would reduce the potential for conflicts with boaters and swimmers because the Oliveiras would reach the mooring from the pier rather than cross the nearshore area with their dinghy. Mr. DeRugeris stated that the beach was cobbled, would attract only local residents, and the swimming options were better elsewhere around the harbor, so that the number of swimmers would be limited. DeRugeris PFT at para. 18. Ms. Nilson testified that small paddle craft could maneuver either under or around the pier. Nilson PFT at para. 23. Michael B. McGrath, of Holmes and McGrath,Inc., a Professional Engineer and Land Surveyor, testified for the Applicant on boundary issues. He stated that he examined the various deeds of the lots of the Bayside Meadows subdivision, and concluded that the property lines shown on the license plans were appropriately drawn. McGrath PFT at para. 38. He described the shoreline as a shallow cove. McGrath PFT at para. 36. He testified that the proposed float would have 15 foot and 10 foot offsets to the extended property lines, but that given the physical constraints, the project meets the regulatory requirement of 310 CMR 9.36(2), even absent the 25 foot setback. McGrath PFT at para. 43. In addition to the testimony of neighborhood residents, the Petitioners submitted the expert testimony of Robert Daylor, a Professional Land Surveyor and Engineer, and Sterling Wall, a coastal geologist, both employed at TetraTech Rizzo, a consulting firm. In pre-filed testimony, Mr. Wall focused primarily on the littoral rights of abutting property owners, how the property lines would be extended, the lack of a 25 foot setback as required where feasible in the regulations, and the potential for the construction of this pier to preclude piers on abutting property. Wall PFT at para. 40 to 43. On cross, Mr. Wall stated that the 2.5 feet depth specified in Department guidance for the end of piers was insufficient and that he would recommend a depth of five feet to avoid scouring by propellers. In addition to agreeing with Mr. Wall about the boundary lines, Mr. Daylor testified that the beach area would be within 150 feet of the float, causing motorboats approaching the float to come closer to the shore and increasing the potential for conflicts with swimmers. He identified numerous boulders that would make construction of the pier difficult. Daylor PFT at paras. 10, 13-14, and 21. The Petitioners submitted the testimony of Peter Trow, who has lived at 18 Shore View Avenue since 1953. He attached photographs of the beach, showing the small boats used by various residents to access boats kept at nearby moorings and for other recreational purposes. He stated that the Oliveiras currently use a dinghy to reach their mooring, consistent with the use of the beach and small boats by neighbors. In response to Mr. Oliveiras testimony that it was difficult to get his grandsons safely on to boats, Mr. Trow testified that, in his experience over 50 years, people, including children, have continuously gotten safely from the shore to moored boats. Trow Reb. at para. 8. One photograph shows the inlet known as Mollys Cove, which was mentioned numerous times in testimony as a destination for small boats that passed through the area of the proposed pier. Trow PFT at para. 7 and Exh. C-6. He described his own use of the nearshore area and stated that the proposed pier would interrupt the direct access routes he now uses. Trow PFT at para. 11,12, and 22. He included photographs intended to show that there are large boulders below the surface in the vicinity of the proposed float; the photographs also show that the water is quite shallow in the vicinity of the proposed float. Trow Reb. Exh. A-1 to A-3. The Petitioners also submitted the testimony of Alfredo Gonzalez, who has owned property at 12 Shore View Avenue since 2007. Dr. Gonzalez testified that he, and neighbors that he had observed, used small boats in the area where the pier is proposed. Gonzalez PFT at para. 11 and 15. On cross, he stated that he typically kayaks around, rather than attempting to pass under, piers and estimated that going around the Oliveira pier would take five to ten minutes. He was also particularly concerned about lateral access along the shore. Gonzalez PFT at para. 14. He stated that Mr. Oliveiras observations are unreliable as he is not often at his house on Shore View Avenue. Gonzalez PFT at para. 16. Jane Machado, another neighbor and trustee of 19 Shore View Avenue testified that, although she had been less active recently, she has swum and shellfished in the vicinity of the proposed pier in the past and the pier would interfere with that use. Dwight Smith of 6 Windward Way within Bayside Meadows, has lived or owned property there since 1969. Smith PFT at para. 2. He testified that, as a kayaker, he typically paddled along the shore within the rocky area where the proposed pier would be located. Smith Reb. at para. 2. He testified that the pier would interfere with passage, because at high tide an adult kayaker needs 45 inches of clearance to paddle under a pier. Smith PFT at 3. On cross, he stated that to kayak 225 feet the length of the pier - would take him a couple of minutes, but that he kayaked along the shore, not 225 feet from the shore. Mr. Smith testified that kayakers from outside the neighborhood often travel over the area of the proposed pier along the shoreline from the Town Landing on Mattapoisett River to Mollys Cove, which he described as a popular destination. Smith PFT at para. 7 and Reb. at para. 1. He testified that he and his wife kayak every day that they are in Mattapoisett. Smith PFT at para. 6. Mr. Smith stated that his wife counted more than 20 kayaks and rowboats crossing the location of the proposed pier in one day, on July 4, 2010, and that this high level was typical of a summer weekend. Smith PFT at para. 11. He testified that he, along with a majority of his neighbors, swim every day. Smith PFT at para. 12. He stated that the harbormaster had instructed a motorboat to operate elsewhere in an incident where the boat came too close to his wife while she was swimming from the beach in August 2009. Smith PFT at 13. He also stated concerns about the lack of lateral access provided by the draft license. Smith PFT at para. 15. The Department filed the testimony of Kathleen Delaplain and Andrea Langhauser, both staff in the Waterways Regulation Program. Ms. Delaplain stated that she had reviewed the Oliveira deed and concluded that the restriction related to buildings did not apply to the pier, and thus the Oliveiras had the requisite legal authority to construct the project. Delaplain PFT at Issue 1. She concluded that the existing piers were too far away for the proposed pier to interfere with access to adjacent structures by extending beyond existing structures. Delaplain PFT at Issue 2. She concluded that the project would not interfere with navigation because there was no harbor line or channel present, and the Applicants consultant had informed her that the opposite shoreline was a mile away, so there was ample room to navigate around the pier. Delaplain PFT at Issue 3. She conducted a site inspection, and based upon her observation of the rocky and shallow subtidal area, concluded that the project site could not be an established course of vessels. 310 CMR 9.35(2)(a1.d. Id. As to swimming, Ms. Delaplain measured the height of the pier at 3 feet above high tide and 7 feet above low tide, and concluded that the pier would not interfere with free passage over the water because a swimmer could pass under the pier. Id. As to lateral on-foot passage, Ms. Delaplain testified that the draft license contained Special Condition 4 which required the licensee to allow pedestrian passage under the structure and around the structure on the landward side. She stated that the Department had issued a Statement of Technical Deficiency on November 3, 2009, providing that if the pier does not allow 5 feet of clearance at mean high tide, stairs and an upland route around the dock may be required. Ms. Delaplain testified that the Petitioners had stated at the Pre-Hearing Conference that there were stairs on only one side, and that the Applicant has agreed to add stairs which could be included as a plan modification when issuing the final license. 310 CMR 9.35(3)(b). Delaplain PFT at Issue 4.  As to the question of property boundaries and the 25 foot setback where feasible, Ms. Delaplain testified that she measured the distance from the pier to the adjacent boundaries extended to mean low tide, the extent of private ownership. She testified that the distances were 41 feet to Starboard Way and 48 feet to the Machado extended line, both exceeding the 25 foot distance specified in the regulations. 310 CMR 9.36(2). Delaplain PFT at Issue 5. As to Issues 6 and 7, she testified that the Department presumes that the public purpose test is met for a pier based upon the regulatory language and that the project would comply with applicable regulatory programs by obtaining an Amended Order of Conditions for the lesser pier length and the stairs. In rebuttal testimony, she explained that the project had been conditioned so as not to eliminate shellfishing. Delaplain Reb. Ms. Langhauser provided additional testimony on Issue 3, whether the project meets the requirements for navigation and free passage. In describing the proposed project, she stated that the lowest deck planking would be two feet above the high water elevation. Langhauser PFT, p. 7. She explained that an example of an established course of vessels was where there is a popular destination for boats in an area that is otherwise constrained, such as a town pier or yacht club within a narrow harbor further constrained by mooring fields. 310 CMR 9.35(2)(a)1.d. She distinguished the Oliveira site, which is in a residential area with no town wharf, marina, or significant mooring field nearby. Langhauser PFT at Issue 3. In response to the testimony of Mr. Trow and Dr. Gonzalez, Ms. Langhauser reiterated that established course of vessels is intended for larger vessels occurring at greater frequency in a constrained harbor. Langhauser Reb. at para. 8. On cross-exam, she clarified that, in her view, small boats have more flexibility and can easily alter their route. Ms. Langhauser explained that the float was designed to maintain a separation of two feet at extreme low water, or 2.1 to 2.7 feet above the bottom sediments. She testified that this provision met the 2.5 foot distance at mean low water for shellfish areas stated in the Departments Small Dock and Pier Guidance. On cross-exam, she conceded that the draft license did not meet the 2.5 foot separation specified in the Guidance, but it was close enough. She testified that it was not uncommon for the Department to issue licenses for piers at 200 feet or longer. Her testimony included three examples of licenses for piers at 200 feet or longer, but she conceded that the three licenses were all authorizations of existing structures. She testified that the pier would not be a substantial obstruction to other uses because only small boats use the area, the area is rocky, and swimmers can pass under the pier as the lowest decking is two feet above the mean high water elevation and four feet above mean low water. Langhauser PFT, p. 6-7. She stated on cross-exam that the practice of the Department not to extend lot lines for the 25 foot setback could result in a first come, first serve result for abutting property owners as to the construction of piers. She also stated that nothing in the regulations would necessarily limit the number of piers that could be built, even multiple docks for the same property. Langhauser Cross. DISCUSSION The question of whether a pier project meets the regulatory requirements is a site-specific, case-by-case inquiry. Where a water-dependent use project such as a pier is proposed and there are no existing water-dependent uses or site constraints, the decision to issue a license for the water-dependent use project is typically straightforward. The proposed project is distinguished by the question of whether this permanent water-dependent structure supporting the access to a waterway by a littoral owner will interfere with the publics water-dependent activities, primarily navigation by small boats and swimming. I conclude that the Petitioners have shown that the project will significantly interfere with water-related public rights, as identified in Issue 3. I address this issue first, followed by the other issues where I find no barrier to the issuance of a license for this project. Issue 3 Alleged interference with navigation may not be merely an inconvenience, or based on anecdotal or conclusory statements. See Matter of Abdelnour, Docket Nos. 88-138, 88-358, 88-359, 88-360, 88-361, 90-270, Final Decision (November 22, 1994); Matter of Lipkin, Docket No. 92-043, Final Decision (December 22, 1995). Factors in determining whether interference is significant may include the difficulty of adjustments by existing users, whether alternatives are available, and whether the interference would be experienced by the public or a single abutter. Matter of Stanley A. Sylvia, Docket No. 95-110, Final Decision (February 4, 1997). The regulations acknowledge that water-dependent uses may give rise to some unavoidable interference with certain water-related public rights. 310 CMR 9.35. The regulations provide guidance on assessing the significance of any interference with water-related public rights by instructing the Department that such interference may be allowed provided that mitigation is provided to the greatest extent deemed reasonable and the overall public trust in waterways is best served. Id. Thus, allowing unavoidable interference with public trust rights is discretionary and may involve balancing of public trust rights between an applicant seeking to construct a water-dependent use project and water-dependent users of the site, to best serve the overall public trust in waterways. Id. Reasonable mitigation for the interference must be provided. Id. The evidence does not support the Applicants contention that boats do not pass through the area of the proposed pier. On the contrary, the Petitioners have shown that small boats in fact navigate through the site. Trow PFT at para. 11, 12, and 22; Gonzalez PFT at para. 11 and 15; Smith PFT at para. 6, 7, and 11; Smith Reb. at para. 1. The pier would not interfere with the passage of larger boats, as the physical characteristics of the site already constrain their passage, but would interfere with the passage of small boats currently using the area. The Petitioners have shown that small boats pass through the area of the proposed pier on a routine basis, up to 20 per summer weekend day, to a destination, Mollys Cove, so as to constitute an established course of vessels. 310 CMR 9.35(2)(a)1.d. Trow PFT at para. 7; Smith PFT at para. 11. The public trust interest of navigation by the users of small craft is not discounted or diminished by either vessel size or maneuverability. The Commonwealths waterways are open to navigation by recreational and commercial vessels alike. Attorney General v. Woods, 108 Mass. 436 (1871) (If water is navigable for pleasure boating, it must be regarded as navigable water, though no craft has ever been upon it for the purposes of trade or commerce). Navigability within the Commonwealth extends to any vessel including canoe, kayak, raft, or rowboat. 310 CMR 9.04(1). An area that is navigable by small boats is thus navigable, even where it may be denoted on charts as foul water, where it is, in fact, navigated by small boats. The Department argues that the construction of a pier promotes public trust interests as compared to not constructing a pier. It is certainly clear that a water-dependent use, such as a pier, occupies a favored status as compared to a nonwater-dependent use. 310 CMR 9.31. But the Departments argument assumes that the area where the pier would be constructed serves insignificant public trust interests and that any public trust rights of the users of small boats, such as rowboats and kayaks, and swimmers can be realized by relocating their use to another area. Indeed, it gives preference to a single motorized inflatable dinghy over the countervailing and multiple interests of others to travel unimpeded along the shore. See Squeek Realty Trust, Docket No.s. 2008-137, 138, 140 and 141, Recommended Final Decision (July 2, 2010), adopted by Final Decision (July 7, 2010)(reduction in size of public boating facility to accommodate personal float would have net effect of reducing access by the public). In the Departments view, there would be some restriction but not a substantial obstruction of the ability to pass freely on the waters because swimmers can pass under the pier as designed, there are boulders in the area, and only small boats use this section of the harbor. Langhauser PFT p. 7 (emphasis in original). A substantial obstruction represents a higher standard than an inconvenience that has been found to be acceptable in prior cases. It may be true that small boats may be more maneuverable, but they are also be more vulnerable to wind and waves. Although the Department may most frequently encounter the phrase established course of vessels within the context of larger boats and physically constrained circumstances, the regulatory language is not so limited. While the residents of Bayside Meadows display divergent preferences as to recreational activities and routes, the use shown by the Petitioners includes a significant number of trips by both residents and the general public across the site of the proposed pier toward Mollys Cove. In evaluating the overall public trust, the foreseeable, aggregate use of the area by small craft would appear to far exceed the actual water-dependent use of the pier by the Applicant or any other single family owner over the term of the license. Although interference with water-related public benefits may be allowed, I find that under these circumstances the overall public trust is not best served by licensing a 223 foot pier that would force small boats to proceed a greater distance and further offshore than they would normally travel. I also find that the proposed pier would alter an established course of vessels in contravention of 310 CMR 9.35(2)(a)1.d. Even if the evidence related to the passage of small boats along the shore across the site of the proposed pier had not been sufficient to find an established course of vessels, the ability of the public to pass freely upon the waterways as is now occurring would be impaired in a substantial manner by the alteration of course necessary to accommodate the piers 223 foot length. 310 CMR 9.35(2)(a)1.j. Indeed, best serving overall public trust interests requires taking into consideration all water-dependent uses of all public trust lands and waters. The Department cannot be expected to weigh idiosyncratic uses by individuals, resolve disputes over inconveniences between abutters, or accommodate subjective concerns. What distinguishes this site is that there are numerous neighborhood residents actively using the area, and, most importantly, members of the public that pass through the area to reach Mollys Cove. In this case, allowing the passage of small boats along the shore to continue would promote overall trust interests to a greater extent that the construction of a pier for a single family home that would obstruct nearshore passage for the 30 year term of the license and likely much longer. Allowing the pier to be constructed in this location would significantly diminish the overall public trust interest in navigation, in contravention of 310 CMR 9.35(1). The Petitioners have also shown that the beach is used by neighborhood residents who swim in the vicinity of the proposed pier. A license may not be issued for a project which significantly interferes with public rights of free passage over and through the water in all waterways, a right which specifically includes swimming. 310 CMR 9.35(2)(b). The Petitioners cite to regulations of the Office of Environmental Law Enforcement which state that motorboats shall not be operated . . .within 150 feet of shoreline which is being used as a swimming area, whether public or private. 323 CMR 2.07. This regulation governs the operation of motorboats, not the siting of piers, and a pier could be used for nonmotorized boats or by motorboats at times when the beach was not being used for swimming. The 150 foot distance, however, provides a useful guideline as to a safe distance between swimmers and motorboats. In other words, swimmers, and those charged with their safety, may have subjective views about the proximity of motorboats, but the distance of 150 feet from the shoreline offers an objective measure. Based on the Petitioners testimony, I find that the beach is used regularly as a swimming area. I find that while swimmers could pass under the pier, the more pressing constraint on free passage is the potential for conflicts with motorboats. The conflict arises due to site constraints rather than the actual or anticipated behavior of the various users of the area. The pier is 233 feet long because of the shallow subtidal area, and residents swim a greater distance from shore for the same reason. The pier is designed so that motorboats will proceed around boulders to the landward side of the float for berthing, as the Departments draft license prohibits use of the end of the pier due to eelgrass. Thus, the mitigation of restricting use of the dock to the end to address the interference of the right of free passage by maximizing the distance between swimmers and motorboats is foreclosed. The Applicant faces site constraints, including the shallow depths, eelgrass, shellfish, and boulders, which together prevent a pier design which will not significantly impede navigation and free passage by others. In these circumstances, the overall public trust interests would best be served by denial of the license. Issues 1, 2, 4, 5, 6 and 7 I find that the Petitioners have not met their burden of going forward as to Issue 1, as the Applicant has provided sufficient evidence of legal authority to pursue the project at this site. As the Petitioners concede, the Department does not resolve questions of property law, so that any issues related to the extent of deeded rights must be pursued elsewhere. Tindley v. DEQE, 10 Mass. App. Ct. 623 (1980). I also conclude that they cannot prevail on Issue 2, as to whether the project interferes with access to adjoining areas by extending beyond the projection of existing structures. 310 CMR 9.35(2)(a)1.e. Although the Petitioners point to the lack of existing structures as demonstrating that the pier will create a new obstruction where there are no existing structures, the regulation is followed by the related provision specifically governing circumstances where there are no existing structures. 310 CMR 9.35(2)(a)1.f. The applicable regulatory provision requires that the project not extend beyond the length necessary to achieve safe berthing, a claim not made by the Petitioners. Id. I addressed the issues related to the length of the pier under Issue 3. As to Issue 4, the Petitioners have shown that the Applicant did not meet the regulatory requirement for lateral passage, a point which the Applicant has conceded and has proposed a plan change to add additional stairs on the westerly side of the pier. The question of whether the stairs should be built within or appended to the seawall was raised at the hearing. The license must contain provision for lateral access, but in light of my findings on Issue 3, I need not resolve the question of access design here. As to Issue 5, whether the pier must be set back 25 feet from the property lines, the Department and Applicant correctly argue that the abutting property ends at the mean low water mark and does not extend seaward. In addition, the regulations require a 25 foot setback where feasible. The setback from the property lines could be addressed by a smaller pier design that is not 37 feet wide at the end. Nonetheless, the proposed pier does not appear to significantly interfere with the rights of littoral property owners. As to Issue 6, whether the projects benefits outweigh its detriments to c. 91 interests as provided by M.G.L. c. 91, 14(3), the regulatory provisions at 310 CMR 9.31(2) govern. The regulations specifically provide that the Department shall presume that a water-dependent use project serves a proper public purpose which provides greater benefit than detriment to the rights of the public in tidelands. The proposed pier is unquestionably a water-dependent use project, because the pier requires direct access to tidal waters and is a recreational boating facility. 310 CMR 9.12(2)(a)2. The only available basis for rebuttal of the presumption by the Petitioners is a showing that the project does not meet another regulatory requirement, as listed in 310 CMR 9.31(1). The other relevant regulatory requirements have been identified for adjudication and are addressed in that context. As to Issue 7, whether the project meets the requirements for compliance with applicable regulatory programs of the Commonwealth, the Petitioners note that the Applicant has not yet received an Order of Conditions for the project, as revised, from the Mattapoisett Conservation Commission. See 310 CMR 9.33. Although the Wetlands Protection Act is specifically identified as an environmental regulatory program with which c. 91 licensees must comply, the regulations allow receipt of state and local approvals after a decision on the draft license but prior to issuance of the final license. 310 CMR 9.14(5). Thus, the fact that the Applicant still must obtain approval for the revised plan is not fatal. Also as to Issue 7, the Petitioners cite to regulations of the Office of Environmental Law Enforcement which state that motorboats shall not be operated . . . within 150 feet of shoreline which is being used as a swimming area, whether public or private. 323 CMR 2.07. This regulatory program governs the use of vessels, including activities in which either the Applicant or the Petitioners, as well as others, may engage. The regulatory program does not apply to the construction or siting of the pier itself. It appears to be a public safety program rather than an environmental program, and thus I conclude that it is not, per se, an applicable environmental regulatory program with which the project must comply. 310 CMR 9.33. However, I addressed the guidance it may provide in considering the protection of free passage by swimmers in the context of Issue 3. CONCLUSION For the reasons stated, I recommend that the Commissioner issue a Final Decision which denies a license for the proposed pier. _______________________ Pamela D. Harvey Presiding Officer NOTICE- RECOMMENDED FINAL DECISION This decision is a Recommended Final Decision of the Presiding Officer. It has been transmitted to the Commissioner for her Final Decision in this matter. This decision is therefore not a Final Decision subject to reconsideration under 310 CMR 1.01(14)(e), and may not be appealed to Superior Court pursuant to M.G.L. c. 30A. The Commissioners Final Decision is subject to rights of reconsideration and court appeal and will contain a notice to that effect. Because this matter has now been transmitted to the Commissioner, no party shall file a motion to renew or reargue this Recommended Final Decision or any part of it, and no party shall communicate with the Commissioners office regarding this decision unless the Commissioner, in her sole discretion, directs otherwise.  Hereinafter, where I use the term small boats, I refer to shallow draft, nonmotorized vessels that are propelled by oars or paddles, such as rowboats and kayaks. Small boats may also include shallow draft vessels propelled by wind, such as sailing dinghys and windsurfers, although these vessels are dependent upon wind direction and cannot necessarily maintain a course parallel to the shore. I have avoided the term small craft, an official but undefined category used by NOAAs National Weather Service in advisories of potentially hazardous wind and wave conditions that includes larger vessels.  For purposes of comparison, a football or soccer field is 300 feet long; the combined length of three tennis courts is 234 feet.  Mr. Oliveira did not specify the nature of his concerns about safety in accessing his boat on the mooring. The witnesses variously expressed subjective views about boating and swimming safety.  The witnesses had differing levels of boating and swimming abilities. Mr. Smith, although retired, was head football coach and associate professor of physical education at MIT for 30 years. Smith PFT at para. 3.  Ms. Delaplain conducted her site visit on September 10, 2009, when boating activities would likely have been less intense than during a summer weekend.  The Applicant submitted a Motion for Plan change to add the stairs, which the Petitioners opposed. It appears that, had the Petitioners not appealed, the project would receive a license without provision for lateral passage.  The Department has traditionally placed the burden of production and of proof on the party contesting the Departments position. See 310 CMR 1.01(13)(c)1; 310 CMR 10.03(2); Matter of Town of Hamilton, Town of Topsfield, Town of Wenham,Docket Nos. 2003-065, 2003-079, 2003-068, Recommended Final Decision (January 19, 2006), adopted by Final Decision (March 27, 2006).  Interestingly, the Petitioner neighbors in Stanley had the viable alternative of using another dock for access to the waterway. Here, the Applicant has access to Mattapoisett Harbor through two slips at the Town Dock in addition to his mooring currently accessed by his rowboat stored on the Bayside Meadows beach.  Much of the Applicants and Departments argument would place a higher priority on use of waterways by larger vessels and the construction of permanent structures, based upon the Colonial Ordinance that ceded to upland owners the land between mean high and mean low tide to encourage wharfing. The Commonwealths history of wharfing statutes is reflected in the regulatory provisions for water-dependent uses, where private development provided the public benefit of increased maritime commerce.  The Department also argues that c. 91 is not designed to address resource protection, or that resource protection is enhanced where the construction of docks allows berthing of boats away from resource areas. In this case, the residents apparently have been storing their small boats at nearshore moorings, on the beach, or landward of resource areas, and does not present the situation where a dock would better protect resource areas.  The Department argued that the rules of the road for mariners require smaller, more maneuverable vessels to yield to larger vessels, which cannot change direction as easily. The U.S. Coast Guards navigation rules provide that power-driven vessels must give way to vessels under sail, and both must give way to vessels engaged in fishing and a vessel restricted in her ability to maneuver which describes vessels engaged in various types of work. See HYPERLINK "http://www.navcen.uscg.gov"www.navcen.uscg.gov. The USGC navigation rules make no reference at all to rowboats, kayaks, and canoes, except as to a light requirement for vessels under oars. Id. at FAQ.  The Applicant and the Department correctly noted that the residents of Bayside Meadows exhibited varied uses of, and routes through, the intertidal and subtidal zone, swimming and boating various distances and directions. In many areas, such an approach would essentially privatize the nearshore area, rather than the area between mean high and mean low that was actually conveyed to upland owners by the Colonial Ordinances.  Appeals of c. 91 pier projects are most often by abutters where the bulk of the testimony is of personal use, as the Departments observations are limited to a site visit and members of the public who may use the affected waterway are unlikely to be aware of the application and participate in the public comment period. While littoral rights and use of waterways by abutters are within the ambit of the public trust, these concerns tend to obscure whether and how the interests of the public will be affected by a project. See 310 CMR 9.36(2) (project may not significantly interfere with private access to littoral property).  The Applicants witnesses suggested that another provision related to headway speed should apply, an interpretation that is inconsistent with the plain language of the regulation.  The Applicant notes that as an alternative to construction of the pier, the Oliveiras would travel the longer distance from the beach to their mooring in a dinghy with an outboard. The Petitioners expressed concern about increased use of the pier by motorboats, given that Mr. Oliveira has two other motorboats that he keeps on slips at the Town Dock in addition to his Boston Whaler at the nearby mooring. The licensing of a pier for 30 years need not hinge on such specific uses.     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