Code of Massachusetts Regulations
310 CMR - DEPARTMENT OF ENVIRONMENTAL PROTECTION
Title 310 CMR 9.00 - WATERWAYS
Section 9.07 - Activities Subject to Annual Permit

Universal Citation: 310 MA Code of Regs 310.9

Current through Register 1531, September 27, 2024

(1) General. A written application for an annual permit must be submitted to the harbormaster of a city or town or, in a municipality where no harbormaster has been appointed, to the municipal official or other designated local official(s), for the placement on a temporary basis of moorings, floats or rafts held by bottom-anchor, and ramps associated thereto, which are located within the territorial jurisdiction of the municipality. A written application for an annual permit for small structures accessory to residences must be submitted to the harbormaster or other designated local official when a city or town has been approved by the Department to administer a local permitting program under 310 CMR 9.07(3), unless a license or other authorization under 310 CMR 9.00 is obtained from the Department. The harbormaster or other designated local official shall establish a schedule for receipt of applications. Completed applications shall be acted upon within a period of 15 days from receipt, according to the schedule. Any permit may contain such terms, conditions and restrictions as deemed necessary, consistent with the requirements of 310 CMR 9.07. No license shall be required from the Department if an annual permit is issued pursuant to 310 CMR 9.07. A city or town implementing 310 CMR 9.07 shall not discriminate against any citizen of the Commonwealth on the basis of residency, race, religion, sex, age, disability, or other illegal distinction. The provisions of 310 CMR 9.07 shall be enforced by local officials. The Department may enforce the provisions of 310 CMR 9.07 upon the request of a local permitting program or upon a finding that local enforcement is inadequate.

(2) Annual Permits for Moorings, Floats and Rafts.

(a) The harbormaster or other local official shall provide a written procedure for the fair and equitable assignment from a waiting list for use of vacant or new moorings, floats or rafts held by bottom-anchor and ramps associated thereto. Methods for mooring assignment which are appropriate include, but are not limited to, one or more of the following:
1. date of application;

2. physical characteristics of vessels, e.g., size and type;

3. purpose of vessel use, e.g., commercial vs. recreational or public vs. private.

The harbormaster, however, may allow the previous permit holder of a mooring to renew, on an annual basis, that mooring or another mooring within the control of the harbormaster.

(b) If the placement of floats or rafts for public recreational boating facilities, exclusive of moorings, extends beyond any established state harbor line, encompasses an area greater than 2,000 square feet, or constitutes a marina, additional procedures apply:
1. a public hearing must be held by the harbormaster or other local official in the affected municipality with notice at least seven days in advance published in the local newspaper at the expense of the applicant; and

2. the harbormaster or other local official must set forth the reasons for issuing such permit in a written statement, which must include findings to the effect that the project will serve a public purpose, will not unreasonably interfere with navigation in the harbor, and:
a. cannot be located reasonably within the harbor line, if the project extends beyond such line; and/or

b. complies with the provisions of 310 CMR 9.39(1), if the project includes a marina.

A copy of the permit and written statement shall be submitted upon issuance to the Department. The Department may review any such permit within 30 days of receipt and may either affirm the permit, set such action aside or amend such action by imposing its own conditions and restrictions as deemed necessary.

(c) A copy of the permit and written statement shall be submitted upon issuance to the Department. The Department may review any such permit within 30 days of receipt and may either affirm the permit, set such action aside or amend such action by imposing its own conditions and restrictions as deemed necessary. No permit for a mooring, float or raft may authorize unreasonable interference with the public rights to use waterways for any lawful purposes including fishing, fowling, and navigation in tidelands and Great Ponds. All permits shall meet the terms and conditions described in 310 CMR 9.07(4).

(d) No permit for a mooring, float or raft shall be transferrable to another person, except to a person within the immediate family of the permittee upon approval of the harbormaster. Nothing in 310 CMR 9.07 shall be construed to prevent moorings for which permits are issued to a recreational boating facility from being assigned to individual patrons or members of such facility.

(3) Annual Permits for Small Structures Accessory to Residences.

(a) Petition for Local Permitting Program. A city or town may petition the Department for approval to administer a local permitting program for small structures accessory to residences. The Department shall state the basis for approval or denial of any petition in writing. The Department may withdraw its approval of a local permitting program if it determines that the local program exhibits a repeated failure to comply with the provisions of 310 CMR 9.07.
1. A city or town may elect to issue permits for small structures accessory to residences under the provisions of 310 CMR 9.07. The city or town shall provide public notice and an opportunity to comment on the petition for approval prior to its submittal to the Department. The petition shall include:
a. the designation of a local official or local governmental body to administer the program;

b. a demonstration that public access has been or will be provided to waterbodies within the town, including at least one formal means of access to the waterway, reasonable in type and scope for the waterway and its anticipated use by any citizen of the Commonwealth, established prior to the date of the petition or scheduled to be available within a reasonable period of time; and

c. provision that any fees collected be used for support of the local permitting program, the improvement of waterways, or the enhancement of public access to or along waterways.

2. Where the Legislature has created a lake commission (e.g., the Lake Quinsigamond Commission) with authority to issue permits, the commission may petition the Department for approval under 310 CMR 9.07(3), without designation by a city or town.

3. A local permitting program may also be approved by the Department if it provides substantially equivalent procedures and protection of public rights as 310 CMR 9.07. A city or town may petition for approval of a local permitting program pursuant to a local ordinance or bylaw. Where the Legislature has created a lake commission with authority to issue permits, the commission may petition the Department for approval of regulations implementing a local permitting program. Upon request, the Department shall provide advisory opinions on draft petitions for approval.

(b) Eligibility. An application for a local permit under 310 CMR 9.07(3) may be submitted only for a project consisting entirely of a dock, pier, seawall, bulkhead, or other small-scale structure that is accessory to a residential use or serves as a noncommercial community docking facility, provided that:
1. for proposed structures, or for structures built or substantially altered after January 1, 1984:
a. any structure is water-dependent and pile-supported (e.g., by wooden or metal posts) or bottom-anchored, without any fill;

b. any structures total no more than 600 square feet below the mean high water shoreline for coastal waters or below the ordinary high water shoreline for inland waters;

c. the structure is not a marina (i.e., does not serve ten or more vessels);

d. if within an ACEC, such structures were existing on October 4, 1990 or the effective date of the ACEC designation, whichever is later, and, if a resource management plan for the ACEC has been adopted by the municipality and approved by the Secretary, said structures are consistent with said plan;

e. if within an ACEC, such structures, if built or substantially altered after October 4, 1990 or the effective date of the ACEC designation, whichever is later, are consistent with a resource management plan adopted by the municipality and approved by the Secretary;

2. for structures or fill constructed prior to January 1, 1984 and not substantially altered since that date:
a. any structure or fill must be water-dependent;

b. any structure and fill total no more than 600 square feet below the mean high water shoreline for coastal waters and below the ordinary high water shoreline for inland waters;

c. the structure is not a marina (i.e., does not serve ten or more vessels).

(c) Standards. The local permitting program must find that the structure is limited to the minimum size necessary to achieve the intended water-related purposes, will not significantly interfere with any public rights to use waterways for fishing, fowling, navigation and other lawful purposes, mitigates for any interference by providing lateral access or other mitigation according to guidance issued by the Department, and complies with the provisions of 310 CMR 9.07.

(d) Application Requirements. The initial application shall be accompanied by plans or other documentation sufficient to accurately show the location and size of the structure. For proposed structures, the applicant must provide an Order of Conditions, a negative or conditional negative Determination of Applicability, or evidence of written request for action by the Conservation Commission and subsequent failure of the Conservation Commission to respond. For existing structures, no permit shall be issued if the Conservation Commission has determined that the structure or fill is in violation of the Wetlands Protection Act, M.G.L. c. 131, § 40. The applicant shall provide notice to the Selectmen or Mayor, the Conservation Commission, and to abutters for proposed structures and for previously unauthorized structures. The applicant shall also publish a public notice of the project in a newspaper of general circulation, which may serve as joint notice for M.G.L. c. 91 and M.G.L. 131, § 40. Notices must be provided or published at least ten business days prior to the deadline for receipt of applications established by the local permitting program. Notices must include the applicant's name and address, the location and a concise description of the project, the address to which comments may be sent, and the deadline for receipt of comments.

(e) Program Requirements. The local program shall send to the Department a copy of each permit issued for proposed or previously unauthorized structures, but not renewals. The local program shall maintain in the municipality a list of applicants and permittees, and provide the list to any person upon written request. The local permitting program shall annually publish a public notice of its intention to renew permits for small structures in specifically named water bodies at least ten business days prior to the renewal date, identifying the address where information on the renewal applications may be obtained and comments should be sent, and specifying the deadline for receipt of comments. A copy of the annual notice and a list of permittees shall be sent to the Department. Any written comments within the scope of M.G.L. c. 91 submitted to the local permitting program on any permit application shall be considered, and a permit may not be issued prior to the close of the public comment period. A copy of any permit on which public comment was received shall be sent immediately upon issuance or renewal to persons submitting comments and to the Department.

(f) Renewals and Transfer. Projects meeting the provisions of 310 CMR 9.07(3), which previously obtained an annual permit, license, amnesty license or interim approval, may apply for extension of authorization under 310 CMR 9.07 as a renewal. No individual notice is required for renewals, unless specifically requested by the local permitting program. A permit for an eligible small structure attached to land under 310 CMR 9.07(3) is transferrable upon change of ownership of the land to a new owner.

(4) Terms and Conditions Applicable to All Annual Permits.

(a) No permit may be valid for a period longer than to the end of any given calendar year. (b) No permit may authorize structures other than the placement of moorings, floats, rafts or eligible small structures accessory to residences under 310 CMR 9.07.

(c) No permit shall be construed as authorizing the placement of moorings, floats, rafts, or other structures on private tidelands of anyone other than the applicant if objected to by the owner or owners thereof.

(d) No permit may authorize the placement of moorings, floats, rafts or other structures in any navigation channel or turning basin formally designated by the federal or state government or by a municipality pursuant to an Approved Municipal Harbor Plan, unless the designating authority or other agency with jurisdiction over said area has previously approved such placement.

(e) No permit shall be inconsistent with an Approved Municipal Harbor Plan, if any, or unless permitted under 310 CMR 9.07(2)(b), be issued for a project extending beyond the harbor line.

(f) No mooring, float, raft, or other small structure may interfere with public rights associated with a common landing, public easement, or other historic legal form of public access that may exist on or adjacent to the project site.

(g) Any person receiving a permit for a small structure accessory to a residence shall post signage as required by the city or town in accordance with guidance issued by the Department.

(5) Review of Local Decision.

(a) Any applicant aggrieved by a refusal to permit a mooring, float, raft, or small structure accessory to a residence or by any condition or restriction imposed relative thereto, may request a review in writing to the Department within 30 days after receiving notice of such refusal or of the imposition of such condition or restriction. The failure of the harbormaster, other local official, or local program to act upon a complete application within a reasonable time shall be deemed by the Department to be a denial of a permit. A copy of the request shall be sent at the same time to the harbormaster, other local official, or local permitting program.

(b) The Department may review any permit within 30 days of receipt, with notification to the applicant, harbormaster or other local official, or local program, and may either affirm the permit, set such action aside or amend such action by imposing its own conditions and restrictions as deemed necessary. The Department may review a permit upon its own initiative or may initiate a review upon written request of any person who submitted written comments on a permit application to a harbormaster, other local official, or local permitting program and who sends the request to the Department within ten days of the postmarked date of the permit or of the decision on a renewal.

(c) The Department shall consider all written comments from the harbormaster, other local official, local permitting program, the applicant, and interested persons that are submitted within 30 days of the date of receipt of the request by the Department pursuant to 310 CMR 9.07(5)(a), or of the date the Department initiates a review pursuant to 310 CMR 9.07(5)(b).

(d) The Department may conduct a site inspection or a public hearing if deemed appropriate.

(e) After reviewing the request and other relevant documents, the Department shall render a written determination either affirming the local action, setting such action aside, or amending such action by imposing its own conditions and restrictions as deemed necessary.

(f) The Department shall affirm the local decision except upon a finding that:
1. it is arbitrary, capricious, or an abuse of discretion;

2. it conflicts with an overriding state, regional, or federal public interest;

3. it fails to meet any requirement contained in 310 CMR 9.07;

4. it was based on plans or other documentation submitted with the application which contained substantially inaccurate or incomplete depictions of the structure and its surroundings; or

5. it allows floats, rafts, or small structures which significantly interfere with public rights to use waterways for fishing, fowling, and navigation or for other lawful purposes. The Department shall issue its decision within 30 days of the close of the period for comments described in 310 CMR 9.07(5)(c).

(g) The Department's decision shall be the final administrative review under 310 CMR 9.07; there shall be no right to an adjudicatory hearing.

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