Chapter 91, The Massachusetts Public Waterfront Act

The Commonwealth's primary tool for protection and promotion of public use of its tidelands and other waterways is Massachusetts General Law Chapter 91, the waterways licensing program. The Commonwealth formally established the program in 1866, but the philosophy behind Chapter 91 dates back to the earliest days of the Massachusetts Bay Colony, most notably in the Colonial Ordinances of 1641-1647.

The Colonial Ordinances codified the "public trust doctrine," a legal principle that dates back nearly 2000 years, which holds that the air, the sea and the shore belong not to any one person, but rather to the public at large.

The oldest program of its kind in the nation, Chapter 91 regulates activities on both coastal and inland waterways, including construction, dredging and filling in tidelands, great ponds and certain rivers and streams.

Through Chapter 91, the Commonwealth seeks to preserve and protect the rights of the public, and to guarantee that private uses of tidelands and waterways serve a proper public purpose. While other agencies, including the Department of Environmental Management, Massachusetts Coastal Zone Management and the Division of Fisheries and Wildlife, play a role in preserving public rights in public trust lands, the Waterways Regulation Program, the section of MassDEP that oversees Chapter 91, is the primary division charged with implementing the "public trust doctrine." Specifically, the MassDEP Waterways Regulation Program:

• Preserves pedestrian access along the water's edge for fishing, fowling and navigation and, in return for permission to develop non-water dependent projects on Commonwealth tidelands, provides facilities to enhance public use and enjoyment of the water.
• Seeks to protect and extend public strolling rights, as well as public navigation rights.
• Protects and promotes tidelands as a workplace for commercial fishing, shipping, passenger transportation, boat building and repair, marinas and other activities for which proximity to the water is either essential or highly advantageous.
• Protects Areas of Critical Environmental Concern, ocean sanctuaries and other ecologically sensitive areas from unnecessary encroachment by fill and structures.
• Protects the rights of waterfront property owners to approach their property from the water.
• Encourages the development of city and town harbor plans to dovetail local waterfront land use interests with the Commonwealth's statewide concerns.
• Assures removal or repair of unsafe or hazardous structures.

More than ever, the presence of a program like Chapter 91 is vital, especially because many of the fastest growing regions of the state, such as the North Shore, South Shore and Cape Cod and the Islands, are coastal areas. In these coastal areas, Chapter 91 regulations serve to protect traditional maritime industries, such as fishing and shipping, from displacement by commercial or residential development.

Chapter 91 comprises four basic areas of geographical jurisdiction. Any activity that takes place in one of the hot link areas listed below requires Chapter 91 authorization. The areas are:

• Flowed Tidelands - Any project located in, on, over or under tidal waters seaward of the present mean high water (MHW) shoreline. Jurisdiction in this case extends seaward three miles, to the state limit of territorial jurisdiction.
• Filled Tidelands - The limit on filled tidelands is: A.) Outside Designated Port Areas, the first public way or 250 feet from mean high water, whichever is farther landward and B.) Inside Designated Port Areas, the historic MHW shoreline (i.e., all filled areas).
• Great Ponds - Any project located in, on, over or under the water of a great pond. A great pond is defined as any pond or lake that contained more than 10 acres in its natural state. Ponds or lakes presently larger than 10 acres are presumed to be great ponds, unless the applicant provides unequivocal evidence to the contrary. Ponds 10 or more acres in their natural state, but which are now smaller, are still considered great ponds.
  List of Great Ponds in Massachusetts
• Non-Tidal Rivers and Streams - Projects located in, on, over, or under any non-tidal, navigable river or stream on which public funds have been expended either upstream or downstream within the river basin, except for any portions not normally navigable during any season by any vessel. Additionally, the Connecticut River, the Merrimack River and portions of the Westfield River are within jurisdiction.

There are five basic types of activities subject to Chapter 91 authorization. These include both new and existing unauthorized activities, and are as follows:

• Structures - Placement or construction of any structure, regardless of size, whether permanent or seasonal. Examples of typical structures include, but are not limited to: piers, wharves, dams, seawalls, weirs, booms, breakwaters, bulkheads, ripraps, revetments, jetties, piles, lines, groins, roads, culverts, bridges, buildings, parking lots, cables, pipes, conduits, tunnels, wires, floats, etc.
• Filling - Placement of any unconsolidated materials that is confined or expected to remain in place in a waterway, except for material placed by natural processes. Such placement includes material placed for the purposes of shoreline protection, beach nourishment, or subaqueous disposal of dredged spoils.
• Dredging - Removal of materials, including but not limited to rocks, bottom sediments, debris, sand, refuse, plant or animal matter, in any excavating, cleaning, deepening, widening, or lengthening of any waters in the Commonwealth. The Department must also know the location where the removed material will be disposed.
• Change in Use - Any use of the authorized premises or structures for a purpose unrelated to the authorized use, whether express or implied. An example of such a change in use would be the conversion of a commercial fishing establishment to an office building.
• Structural Alteration - Any change in the dimensions of a structure or fill from the specifications contained in the existing authorization.
• Demolition/Removal of Structures - Approval is required for removal of any unauthorized structure or fill that was previously not authorized or for which there is not a current and valid grant or license.

Placements of structures or fill in non-tidal rivers and streams that do not reduce the space available for navigation do not require Chapter 91 authorization, in accordance with 310 CMR 9.05(3)(g). However, even though the following activities do not require Chapter 91 licensing, applicants must notify the Department of their intent to perform such projects before undertaking them. The Department will in turn provide written notification as to whether or not a Chapter 91 License authorization is required. Examples of these exemptions include:

• Overhead cables, wires or conduits constructed and maintained in accordance with the National Electrical Safety Code;
• Fish ladders, fishways and other devices that allow or assist fish to pass a dam or other obstruction in the waterway;
• Pipelines, cables, conduits, sewers and aqueducts entirely embedded in the soil beneath such river or stream; and
• Bulkheads, revetments, headwalls, storm drainage outfalls and similar structures that do not extend into such river or stream, except as may be necessary for bank stabilization.

The four types of Chapter 91 licenses are:

• MassDEP Waterways License - All activities subject to the jurisdiction of Chapter 91 require a standard Waterways license unless they are eligible for one of the other three authorizations listed below.
• MassDEP Waterways Permit - Activities not involving work on structures or fill may apply for a MassDEP Waterways Permit. These activities include beach nourishment, dredging, disposal involving subaqueous placement or unconsolidated materials, burning of rubbish or other material upon the water, and lowering the water level of any great pond except for purposes described in 310 CMR 9.15(2)(e).
• License or Permit Amendment - Applicants may apply to amend a valid waterways license or permit, issued pursuant to the 1999 regulations, for the following reasons:
  • To renew a license of permit term in accordance with the provisions of 310 CMR 9.25(2);
  • To delineate a reconfiguration zone within a marina in accordance with 310 CMR 9.39(1)(b); and
  • To authorize a structural alteration or change in use that is not exempt pursuant to 310 CMR 9.05(3).
• Harbormaster Annual Permit - Pursuant to Section 10A of Chapter 91 statutes and 310 CMR 9.07 of the Waterways Regulation, the placement on a temporary basis of moorings, floats, rafts held by bottom anchor and associated ramps may be authorized by an annual permit from the local Harbormaster. No other Chapter 91 authorization is required for so long as the Harbormaster permit remains valid. This provision only applies to bottom-anchored moorings, floats or rafts. No piles may be placed without proper Chapter 91 authorization from the Department of Environmental Protection's Waterways Regulation Program.

When an applicant seeks authorization through Chapter 91, the Department makes a decision as to whether the applicant's project or use is water-dependent or nonwater-dependent. In general, water-dependent uses are those that require direct access to or location in tidal or inland waters. Examples of uses include piers, wharves, marinas, boathouses, shoreline protection, jetties, revetments, seawalls, ripraps and floats. Nonwater-dependent uses are those which may be located on waterfront property, but do not rely on their close proximity to the water. Examples of uses include retail and commercial outlets, hotels, offices, restaurants, gas stations and residences. The Chapter 91 Waterways Regulations encourage the use of the waterfront for water-dependent uses, such as recreational boating, commercial fishing, lobstering and shipping commerce. Water-dependent projects are therefore presumed to have a proper public purpose. Nonwater-dependent projects, on the other hand, are not presumed to serve a proper public purpose. The Chapter 91 regulations require that nonwater-dependent projects must provide greater benefits than detriments to the public's rights in waterways. As such, Waterways Regulation Program staff members work closely with developers and applicants to ensure such rights for the public. Waterfront lands are divided into two general classifications within the Chapter 91 regulations. Private tidelands are generally those areas landward of mean low water, which are owned by private parties. In Commonwealth tidelands, which generally are areas seaward of mean low water and which are owned by the Commonwealth, the public retains all rights. The amount of public benefits an applicant must provide varies depending on whether the project in question is situated on Private tidelands or Commonwealth tidelands. In addition to the preservation of fishing, fowling and navigation, examples of other public benefits obtained through the Chapter 91 licensing process include:

• Strolling rights in intertidal areas
• Pedestrian and waterfront walkways
• Dinghy docks
• Public boat landings
• Public Restrooms
• Public Meeting Rooms
• Transient dockage
• Public water transportation facilities and services
• Creation of parkland
• Boat ramps
• Piers and floats for public recreational boarding facilities
• Fishing piers
• Public sailing programs
• Interpretive Display
• Interior Facilities of Public Accommodation in private buildings, such as restaurants, museums and retail stores