Danvers Office:
185 Centre Street
Danvers, MA 01923
(978) 777-3050
(800) 998-3050
F: (978) 774-7816

Marlborough Office:
315 Elm Street
Marlborough, MA 01752
(508) 460-1111
F: (508) 460-1121

Lakeville Office:
4 Freetown St.
Lakeville, MA 02347
(877) 923-1002
(508) 923-1002

Chelmsford Office:
313 Littleton Road, Unit 18
Chelmsford, MA 01824
(978) 244-0110
F: (978) 244-1133

Salem, NH Office:
403 Main Street, Unit 202
Salem, NH 03079
(603) 898-4701
F: (603) 898-6263

Additional Offices
click to close

Press Room

Chapter 91 (the Massachusetts Public Waterfront Act)

By John G. Dick

History

The Waterways Regulations (310 CMR 9.00) were most recently promulgated by DEP under authority of Massachusetts General Laws Chapter 91A, section 18. The regulations establish procedures, criteria and standards for the administration of M.G.L. c. 91 sections 1 through 63 and M.G.L. c. 21A, sections 2, 4, 8, and 14. These regulations also form part of the Coastal Zone Management Program.

English Common Law and later the Colonial Ordinances of 1641-47 protect a public interest in tidelands, Great Ponds and non-tidal rivers and streams. Laws and regulations based upon this interest (known as the Public Trust Doctrine) assure that Commonwealth waters remain in water-related or other "proper public uses". There are certain strictly regulated provisions for so-called "non-water related uses". The overarching principal is that private use of public resources should protect and serve the public interest, and that such private uses should be temporary in nature.

In 1866, the Massachusetts Legislature enacted the Public Waterfront Act, the first law of its kind in America. Its purpose was to regulate activities in marine and freshwater resources of the Commonwealth. The Public Waterfront Act established a basis for licensing occupation and filling of public waters. Prior to 1866, the power to allow such uses was vested in the Massachusetts General Court. Prior to the Colonial Ordinances, one petitioned the King of England. Before the Public Waterfront Act, tidelands were filled or ponds and rivers dammed in support of commercial interests such as shipping, transportation and providing mills with water power. Such grants were often made in fee simple (the term signifies that lands so filled or occupied actually became the property of the petitioner). The Public Waterfront Act still permits such uses, but under a license that protects the underlying public interests. Fees, time limits and public access are some of the terms commonly imposed upon licensees.

There are four categories of jurisdictional areas. These areas are defined in the following several paragraphs. A fairly comprehensive set of regulatory definitions appears in 310 CMR section 9.02.

Flowed Tidelands

The landward limit of regulatory jurisdiction in tidelands is Mean High Water. Flowed tidelands may be privately owned, but state jurisdiction extends over this ownership to protect public rights of fishing, fowling and navigation (the last of these is considered to mean travel over and through the water. Rights of pedestrian access are a matter of much debate, and are far too complicated to address in this article).

Filled tidelands

Filled tidelands are no longer subject to tidal action due to the presence of historic fill. Chapter 91 jurisdiction extends to the limit of the Historic High Water Mark except in Landlocked Tidelands. Landlocked Tidelands are separated from the present-day line of Mean High Water by a public way and are located more than 250 feet from Mean High Water. A lot of land in Boston and Salem falls under this classification.

It is important to note that landlocking provisions do not apply in Designated Port Areas. In these areas the limit of jurisdiction is Historic Mean High Water, no matter the distance from present-day Mean High Water.

Great Ponds

Great Ponds are ponds greater than 10 acres in natural surface area. Some Great Ponds are presently less than 10 acres in area, but remain great ponds. Some bodies of water presently larger than 10 acres are not Great Ponds, as they have either been artificially enlarged or represent flooded areas that were not historically ponds at all.

Chapter 91 jurisdiction extends landward to the Natural Mean High Water Mark. The Commonwealth holds the land beneath Great Ponds in public trust below the natural low water mark, subject to any private rights that may have been granted by the Commonwealth (many great ponds are or were mill ponds).

The term natural as applied to high and low water marks is defined within the regulations as meaning historic. The term historic describes conditions prior to human alteration. A determination as to the location of historic lines can involve a great deal of research, interpretation of archival documentation and field data, and possibly expert testimony by a Professional Land Surveyor.

Non-tidal Rivers and Streams

Certain segments of the Connecticut, Westfield and Merrimack Rivers are jurisdictional by statutory definition. Any navigable river or stream on which public funds have been expended is also subject to jurisdiction. There may be a navigable river somewhere in Massachusetts upon which no public funds have been expended – I haven't made that river's acquaintance.

Regulated Activities

In addition to regulations concerning dredging and the placement of fill and new structures, Chapter 91 also calls for limits on the use and occupation of filled tidelands. A typical license will describe not only the placement of a timber bulkhead and solid fill, but the purpose for which the filled area is intended. Conversion to a new use requires regulatory authorization. This is the case even if the conversion is within an existing building; conversion of office to retail use requires additional regulatory review.

Continuation of unauthorized uses in existence prior to 1984, if on filled private tidelands, does not require authorization. However, changes to such uses may trigger regulatory review.

A number of other activities are specified in the regulations at 310 CMR section 9.05. [See DEP website: www.mass.gov/dep/service/regulations/310cmr09.pdf]

An important distinction is drawn between water-dependent and non-water dependent uses. The latter are very strictly limited if not prohibited outright; any proposal for a non-water dependent use must clearly demonstrate a "proper public purpose".

Authorizations

All jurisdictional activities require a Waterways License unless they are determined to be of short duration (such a dredging or beach nourishment) or are so minor in impact as to be subject to letters of approval or Harbormaster permits. The Wetlands and Waterways Program issues Amendments and Letters of Approval for small changes in the area or configuration of a previously authorized use. Harbormaster Permits are meant to address bottom-moored floats and rafts and associated ramps for seasonal use.

The term of a Waterways License is fixed, and runs for no more than 30 years, except in certain special cases. License fees are calculated [by the DEP Wetlands and Waterways Program] on the basis of water displacement.

Permitting

Most projects require review by the local Conservation Commission under the Wetlands Regulations. A copy of the Notice of Intent and Order of Conditions must accompany the Waterways filing. If the permit site plan is not already in the [11 x 17] form of a Waterways License plan, drawings must now be prepared to accompany the Chapter 91 application. The local Planning Board must review the application to determine if a public hearing is necessary, and the Building Inspector or Zoning Officer must make a determination as to compliance with local ordinances. Both agencies sign the application before it may be submitted to DEP.

The DEP Wetlands and Waterways Program participates in pre-application meetings for large or complex projects. An applicant for non-water dependent project must file an Environmental Notification Form or Environmental Report prior to seeking Chapter 91 licensing.

The Wetlands and Waterways Program will initially determine the nature of the filing and send a notice of license or permit application to the applicant. The applicant is responsible for distribution of this notice to abutters and regulatory agencies, and for public notice by advertisement.

After review of any public comment, the Wetlands and Waterways Program (WWP) drafts performance standards and conditions for the license and calculates fees. Upon receipt of the specified fees, the WWP will issue the License. The appeal period is 21 days from date of issuance. The License becomes void if not recorded within 60 days of issuance. Within 60 days of completion of the project, the Licensee must request a Certificate of Compliance.

Compliance with Chapter 91 can be a complicated process. It helps to keep the following principles in mind.

The Commonwealth owns or has controlling interests in tidelands, Great Ponds and rivers. That interest has been expressed (for the last 140 years) in terms of rights of use and access. Many properties not presently subject to the Wetland Protection Act are filled tidelands subject to Chapter 91. Mean High Water is not a fixed datum in time or space. The historic record is incomplete, ambiguous and difficult to research.

In researching the record for Chapter 91 licenses, the Registry of Deeds is only the beginning. The Wetlands and Waterways Program maintains files of historic permits and plans at 1 Winter Street, Boston. Many filled tidelands are the result of legislative grants hundreds of years old. An excellent reference for the City of Boston is a recent book, Gaining Ground: A History of Landmaking in Boston by Nancy A. Seasholes. In the rest of our coastal cities and milltowns, you can try the local historical society.