Chapter 91 of the Massachusetts General Laws is the Public Waterfront Act. This law protects our waterways for public use. The law dates back to 1866, but its ideas go all the way back to the Colonial period. These questions and answers explain how Chapter 91 permits work.
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Waterways Permitting - Frequently Asked Questions
Table of Contents
Waterways Permitting Frequently Asked Questions
What is the purpose of Chapter 91?
The Massachusetts Department of Environmental Protection (MassDEP) administers and enforces Chapter 91 to:
- Protect and promote the public's interest in waterways of the Commonwealth;
- Protect the public health, safety and general welfare as it may be affected by any project in tidelands, great ponds and non-tidal rivers and streams;
- Ensure that public rights to fish, fowl and navigate are not unreasonably restricted and that unsafe or hazardous structures are repaired or removed;
- To protect the legal rights of adjacent water property owners to approach their land from the water;
- Support public and private efforts to revitalize unproductive property along urban waterfronts, in a manner that promotes public use and enjoyment of the water.
Source: 310 CMR 9.01(2). See also the Waterways Permitting Guide for details on which type of Chapter 91 authorization your proposed activity or project requires.
How do I determine if my project or activity is subject to requiring authorization under Chapter 91?
Any activity occurring in, on, over or under one of the geographical areas listed below requires the issuance of some form of Chapter 91 authorization. This applies to existing unauthorized activities as well as new projects.
- Flowed Tidelands - Flowed tidelands are defined as lands that are in, on, over, and under tidal waters seaward of the current mean high tide line. This jurisdiction extends seaward to the Commonwealth's 3-mile limit of territorial jurisdiction. Chapter 91 Authorization is then required for the placement of any structure or activity located seaward and within 3 miles from the current mean high tide line.
- Filled tidelands - Filled Tidelands are defined as former submerged lands and tidal flats which are no longer subject to tidal action due to the presence of fill. Chapter 91 authorization is required for activities on filled tidelands if located in: (a) Designated Port Areas; or (b) between the first public way and the present mean high shoreline, or between 250 feet and the shore, whichever is further from the water.
- Great Ponds - A Great Pond is a pond having a water surface area of 10 acres or more in its natural (historic) state. Chapter 91 authorization is required for all activities in, on, over, or under the entire area of any Great Pond, whether larger or smaller today than historically. See a county-by-county list of Massachusetts Great Ponds List.
- Non-Tidal Rivers and Streams - A non-tidal river or stream is a river or stream that is not affected by the actions of the ocean's tide. Non-tidal rivers and streams subject to Chapter 91 jurisdiction include:
- The Connecticut River
- The section of the Westfield River in the Towns of West Springfield and Agawam lying between the confluence of said River with the Connecticut River and the bridge across said river at Suffield Street in Agawam
- The non-tidal portions of the Merrimack River
- Any non-tidal river or stream on which public funds have been expended for stream clearance, channel improvement, or any form of flood control or prevention work, either upstream or downstream within the river basin except for any portion not normally navigable by any vessel during any season of the year. Certain specified projects not affecting navigation by any vessel on non-tidal rivers and streams, however, are exempt from Chapter 91 licensing under the provisions of 310 CMR 9.05(3)(g). Any activity that reduces the space available for navigation requires Chapter 91 authorization.
Source: 310 CMR 9.04(1)
What do I do if I am not sure whether my proposed project or activity is subject to Chapter 91 authorization?
If it is unclear whether you are in an area of Chapter 91 jurisdiction, you may submit a formal Request for Determination of Applicability (RDA) to MASSDEP. The purpose of an RDA is essentially to determine if you are subject to Chapter 91 authorization.
What activities require Chapter 91 authorization?
The basic categories of activity that require authorization according to Chapter 91 are listed below. These include both proposed and existing unauthorized activities occurring in, on or under the designated areas of Chapter 91 jurisdiction, which include: flowed tidelands, filled tidelands, great ponds and certain non-tidal rivers and streams. It is best to check with the Waterways Program at MassDEP (firstname.lastname@example.org) to determine if your activity is subject to Chapter 91 authorization.
- Structures not already authorized - Placement, construction or alteration of any structure, regardless of size, whether permanent or seasonal.
- Filling not already authorized - 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 materials.
- 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 tidal waters in the Commonwealth. The Department must also know the location where the removed material will be disposed.
- Changes in a previously authorized use - Any use of the authorized premises or structures other than the authorized use, whether expressed 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 of a currently authorized structure or fill - Any change in the dimensions of a structure or fill from the specifications contained in the existing authorization.
- Demolition/Removal of Structures - Removal of any structure or fill for which there is no current and valid grant or license may be authorized by written approval by MassDEP.
- Change in Water levels in Great Ponds - Authorization is required for any activity that lowers the water level of a Great Pond, unless that body of water is used for agriculture, manufacturing, irrigation, insect control purposes or public water supply and the lowering furthers those activities.
- Burning of Rubbish - Authorization is required for any burning of rubbish or other material upon the water in the designated areas of Chapter 91 jurisdiction.
What activities are exempt from requiring Chapter 91 authorization?
Some activities taking place within the geographical jurisdiction of Chapter 91 do not require authorization. Prior to undertaking any of the following activities, you must first notify MassDEP of your intent to perform such projects. In turn, MassDEP will provide written notification to the applicant as to whether or not Chapter 91 authorization is required. Activities that may be exempt from Chapter 91 authorization include but are not limited to:
- Placement of structures or fill in non-tidal rivers and streams that do not reduce the space available for navigation by any vessel do not require Chapter 91 authorization, in accordance with 310 CMR 9.05(3)(g). Such fill or structures are limited to:
- 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.
- Maintenance, repair and minor modifications to valid licensed fill or structures, subject to prior review and written letter of approval from the MassDEP;
- Structures, uses and activities located within landlocked tidelands are exempt from Chapter 91 authorization. Landlocked tidelands are defined as any filled tidelands, which on January 1, 1984 were not located within a designated port area (DPA) and were entirely separated from the high tide line by 250 feet (or more) and by a public way.
For more detailed information on which activities are exempt from Chapter 91 licensing and permitting requirements, please consult 310 CMR 9.05(3) (a)-(m) of the MassDEP Waterways regulations.
What are the different types of Chapter 91 authorizations?
- Locally issued Annual Harbormaster Permit (Issued by your Local Harbormaster)
- MassDEP Waterways Licenses, including
- Simplified License - Application # BRP WW 06
- Water-Dependent License - Application # BRP WW 01
- Nonwater-Dependent licenses - Application # BRP WW 14, BRP WW 15, BRP WW 16, BRP WW 17
- MassDEP Waterways Permit - Application # BRP WW 01
- Mass DEP License or Permit Amendment - Application # WW 03
- MassDEP Letter of Approval
What is the difference between a Chapter 91 license and a permit?
A Chapter 91 license application is required for activities involving work on or use of fill or structures that are to be undertaken in an area of Chapter 91 jurisdiction. However, a Chapter 91 permit application is required for activities of a one-time or short-term nature that do not involve work on structures or fill.
What activities require Chapter 91 license approval?
A license application is required for the following activities involving work on or use of fill or structures, located in an area of Chapter 91 jurisdiction:
- Any construction, placement, excavation, addition, improvement, maintenance, repair, replacement, reconstruction, demolition or removal of any fill or structures, not previously authorized, or for which a previous grant or license is not presently valid.
- Any existing or proposed use of any fill or structures not previously authorized, or for which a previous grant or license is not presently valid.
- Any structural alteration of fill or structures from the specifications contained in a valid grant or license, whether such authorization was obtained prior to or after January 1, 1984;
- Any change in use of fill or structures from that explicitly authorized in a valid grant or license or, if no such use statement was included from that reasonably determined by MassDEP to be implied therein, whether such authorization was obtained prior to or after January 1, 1984.
Source: 9.05 (1) (a)-(d)
Certain activities are categorically prohibited in areas within the jurisdiction of Chapter 91. Please see 310 CMR 9.32 or contact the Waterways program (email@example.com) for details.
If I plan to construct a small residential dock, what type of authorization will I require?
If you propose to construct a small dock, pier, seawall, bulkhead or other small-scale structure that is an accessory to a residential use or serves as a non-commercial community docking facility, you may qualify for a simplified Chapter 91 Waterways license if your structure meets the following eligibility requirements:
- Structures existing prior to 1984 must be less than 600 square feet: or
- All post-1984 structures, whether existing or new, must be less than 600 square feet and water-dependent with no fill involved.
If, however, you propose to install a floating dock, float or raft that is bottom-anchored, seasonal and not permanently pile-supported, it may be authorized by the local harbormaster or other authorized municipal official through an annual Section 10A permit, instead of MassDEP. No other Chapter 91 authorization is required, as long as the locally issued annual Harbormaster permit remains valid.
What is the application procedure for a Simplified Chapter 91 License?
- Applicant determines their small residential dock, pier, seawall, or bulkhead is less than 600 square feet for all structures existing before 1984. All post-1984 existing or new structures must be less than 600 square feet, water-dependent, pile-supported and not a marina serving more than 10 vessels;
- Applicant provides notice application to Local Conservation Commission, Board of Selectman, or Mayor and City Council, Planning Board and Zoning Authority;
- Applicant must also send notice of application by certified mail to any interested parties, abutters and the landowner, if not the applicant;
- Applicant is responsible for publishing a public notice in a newspaper of local circulation that includes name, address, project location, description (see a sample Public Notice in Appendix A of the Simplified License application form);
- Applicant completes and signs only pages 1 and 2 of the Simplified License (BRP WW06) application form. Enclose with completed and signed application form the following:
- Transmittal form for Permit Application and Payment
- An application fee of $75
- Plan specification Drawings using Appendices B and C of the application form, as guides.
- Proof of published advertisement
- Proof of Conservation approval if obtained
- Submit Nonwater-dependent applications to MASSDEP's Boston office and Water-dependent applications to MASSDEP's West or Southeast Regional Office, corresponding to the project's location;
- Applicant will be notified of, and required to pay, an Occupation fee (assessed by MASSDEP) if the structure extends below the mean low water mark. If applicable, occupation fees must be paid prior to the issuance of the license;
- Simplified Chapter 91 License issued to Applicant;
- License must be recorded with the Registry of Deeds within the property's chain of title within 60 days of the date of issue. If license is not recorded within 60 days after the date of issue, it will become void;
- Applicant provides MASSDEP with written notice of said recordation on the form attached to the license, when received.
When can I apply to MassDEP for a Chapter Waterways 91 permit?
You may submit an application to MassDEP for a Chapter 91 Waterways Permit for the following activities that do not involve work on structures or fill. Please note that at the applicant's discretion, these activities may instead be included as part of a Chapter 91 Waterways license application if a longer license term is sought.
- Any removal of materials (i.e. dredging) during any excavating, cleaning, deepening, widening or lengthening of any tidal waters of the Commonwealth. Materials include but are not limited to: rocks, sediment, debris, sand, refuse, plant or animal matter.
- Any beach nourishment, which is the process of placing clean, compatible-size sediment (usually sand) on the inter-tidal zone of a beach for the purposes of storm damage prevention, flood control or public recreation.
Any disposal of subaqueous placement of unconsolidated material below the present mean low tide line.
Any burning of rubbish or other material upon the water, in accordance with MGL Chapter 91 Section 52.
Any lowering of the water level of a Great Pond, except for a body of water used for agriculture, manufacturing, mercantile, irrigation, insect control purposes, or for flowing cranberry bogs, or for public water supply in accordance with M.G.L. c. 91, s. 19A.
How do I apply for a Chapter 91 Waterways Permit?
In order to apply for a Chapter 91 Waterways Permit, an applicant needs to complete and submit a Chapter 91 Waterways License application to MassDEP. For further instructions, please see the following:
- In section A of the Chapter 91 Waterways License application, please check the box entitled "other" under Water-Dependent - General (A - H)
- Complete Sections B and C of the Application
- In section D, submit plans for your project in accordance with the instructions contained in Appendix B (Permit plan)
- Please sign Section E and complete Section F of the application.
How to determine if my project or use site is classified as a Water-Dependent use or Nonwater-dependent use?
When an applicant seeks authorization through Chapter 91, MassDEP makes a decision as to whether the applicant's project or use is Water-dependent or Nonwater-dependent.
In general, water-dependent uses require direct access to, or a location in, tidal waters or great ponds and therefore, cannot be located away from the water's edge. Examples of water-dependent uses include but are not limited to:
- Private docks and piers; marinas, boat basins, boatyards, and other commercial or recreational boating facilities;
- Facilities for fishing, swimming, diving and other water-based recreational facilities;
- Shore protection structures such as seawalls, revetments, bulkheads and any associated fill designed to protect an existing structure;
- Facilities which promote the public use and enjoyment of the waterfront, such as public parks, boardwalks, esplanades;
- Aquaculture facilities;
- Waterborne passenger transportation facilities, such as those serving ferries, cruise ships, commuter and excursion boats, water taxis and shuttles;
- Beach Nourishment;
- Dredging and subaqueous disposal of the dredged materials below the water mark;
- Discharge pipes, outfalls, tunnels for conveyance of storm water, wastewater or other effluents to a receiving waterway;
- Flood, water level or tidal control facilities
- Industrial uses or infrastructure facilities, including renewable energy, which cannot reasonably be located at an inland site.
See 310 CMR 9.12 (2) in the Waterways regulations for more water-dependent uses.
Nonwater-dependent uses, however, do NOT require water for the structure or use to exist. Examples of nonwater- dependent uses include:
- Restaurants or other food/beverage service establishments;
- Retail shops and stores;
- Parking facilities;
- Office facilities;
- Housing units and other residential facilities;
- Hotels, motels, and other facilities for transient lodging;
- Gas stations
- Roads, causeways, railways, and other facilities for land-based vehicular movement, other than those found to be water-dependent.
- Subaqueous disposal, below the low water mark of material excavated or otherwise originating on land.
What if my proposed project or use site consists of a mixture of water-dependent and nonwater-dependent uses?
If any part of a project or use site, no matter how small, is considered nonwater-dependent, then MassDEP classifies the entire site as Nonwater-dependent. For example, if a single family home (nonwater-dependent) located on the water has a small dock, which would generally be considered water-dependent, then the entire property would be classified by MassDEP as a Nonwater-dependent use.
What is the licensing application procedure for Water-Dependent use projects?
Licensing Application Procedures for Water-Dependent Use Projects
- Pre-Application Consultation with the Waterways Program staff at MassDEP (optional);
- Chapter 91 Application (BRP WW01) filed to the MassDEP's West or Southeast Regional office, corresponding to project location;
- Formal MassDEP Determination of Water Dependency;
- Notice of license sent to applicant for publication;
- 30-day public comment period;
- File completion review
- License Issuance and Fee Payment
- Appeal Period
- Recording of License
- Certificate of Compliance
Within 60 days of completion of any licensed project, the Licensee must request in writing that the MassDEP issue a certificate of compliance. Failure to request a certificate of compliance may result in revocation of the subject license.
What class of nonwater-dependent Chapter 91 license application should I submit?
An applicant may submit one of the following four application review options for Nonwater-Dependent Chapter 91 Waterways License. In addition to fees and processing time, selection of a particular nonwater-dependent application review option will largely depend upon the location, nature and complexity of the proposed activity and the level of detailed information compiled and contained in the initial application submittal. These include (see 310 CMR 9.11):
- A Full Application Type (BRP WW14) - The full application must contain complete professionally certified construction plans (on Mylar) and documentation of all local approvals;
- A Partial Application Type (BRP WW15) - The partial application should contain the SAME as the full application, except preliminary plans and a list of local and state approvals needed may be provided at time of initial submittal.
- Municipal Harbor Plan Type (BRP WW16) - If a project is proposed in an area governed by a Municipal Harbor Plan approved by the Secretary of Energy and Environmental Affairs, an application should contain the same information required in a Partial Application noting how the proposed project is governed by and in compliance with the approved municipal harbor plan. To date, the following municipalities have adopted Municipal Harbor Plans.
- New Bedford
- Joint MEPA/EIR Application Type (BRP WW17) - If a Nonwater-dependent use project triggers one or more established MEPA thresholds, the applicant will, at minimum, have to file an Environmental Notification Form (ENF) with the Massachusetts Environmental Policy Act (MEPA). Any project proposing a Nonwater-dependent use of one or more acres of tidelands or within a great pond also categorically requires submitting an Environmental Impact Report (EIR) to MEPA. The applicant should initiate coordinated review under MEPA and 310 CMR 9.00 by specifying in the ENF filing under 301 CMR 11.05 the intent to pursue a joint filing.
Please carefully examine 301 CMR 11.00, the MEPA regulation, to determine if your project exceeds the MEPA review thresholds, or for more information contact the MEPA Unit of the Executive Office of Environmental Affairs: 617-626-1020. Please note that MassDEP will not issue notice of license for publication until MEPA review process is complete.
What is the licensing application procedure for Nonwater-Dependent use projects?
Licensing Application Procedures for Nonwater-Dependent Use Projects:
- Pre-Application Consultation with the Waterways Program staff at MassDEP (recommended);
- File an Environmental Notification Form (ENF) with MEPA; any project proposing a Nonwater-dependent use of 1 or more acres of tidelands or within a great pond, also requires submission of an Environmental Impact Report (EIR) to MEPA. See 301 CMR 11.03.
- File appropriate application to MassDEP, including a copy of the ENF Certificate filed with MEPA;
- MassDEP performs preliminary review of license application to determine its completeness. File number is assigned to complete applications. An application found to be incomplete will be returned to applicant in its entirety;
- Formal MassDEP Determination of Water Dependency;
- Notice of license is sent to applicant for publication. MassDEP will NOT issue public notice of license to the applicant until the entire MEPA review process is complete;
- 30-day public comment period;
- Public Hearing is held during the comment period within the city or town where the project is located;
- Review application for completeness;
- Issue a written determination of MassDEP's intent to issue a license;
- Appeal Period (21 days);
- File Completion;
- License Issuance and Fee Payment;
- Recording of License;
- Certificate of Compliance. Within 60 days of completion of any licensed project, the Licensee must request in writing that the MassDEP issue a certificate of compliance. Failure to request a certificate of compliance may result in revocation of the subject license.