Code of Massachusetts Regulations
310 CMR - DEPARTMENT OF ENVIRONMENTAL PROTECTION
Title 310 CMR 9.00 - WATERWAYS
Section 9.12 - Determination of Water-dependency

Universal Citation: 310 MA Code of Regs 310.9

Current through Register 1531, September 27, 2024

(1) Prior to issuance of the public notice, the Department shall classify the project as a water-dependent use project or as a nonwater-dependent use project. The Department shall classify as a water-dependent use project any project which consists entirely of:

(a) uses determined to be water-dependent in accordance with 310 CMR 9.12(2); and/or

(b) uses determined to be accessory to a water-dependent use, in accordance with 310 CMR 9.12(3).

Any other project shall be classified as a nonwater-dependent use project.

(2) The Department shall determine a use to be water-dependent upon a finding that said use requires direct access to or location in tidal or inland waters, and therefore cannot be located away from said waters. In making this determination, the Department shall act in accordance with the following provisions.

(a) The Department shall find to be water-dependent the following uses:
1. any use found to be water-dependent-industrial in accordance with 310 CMR 9.12(2)(b);

2. marinas, boat basins, channels, storage areas, and other commercial or recreational boating facilities;

3. facilities for fishing, swimming, diving, and other water-based recreational activities;

4. parks, esplanades, boardwalks, and other pedestrian facilities that promote use and enjoyment of the water by the general public and are located at or near the water's edge, including but not limited to any park adjacent to a waterway and created by a public agency;

5. aquariums and other education, research, or training facilities dedicated primarily to marine purposes;

6. aquaculture facilities;

7. beach nourishment;

8. waterborne passenger transportation facilities, such as those serving ferries, cruise ships, commuter and excursion boats, and water shuttles and taxis;

9. dredging for navigation channels, boat basins, and other water-dependent purposes, and subaqueous disposal of the dredged materials below the low water mark;

10. navigation aids, marine police and fire stations, and other facilities which promote public safety and law enforcement on the waterways;

11. shore protection structures, such as seawalls, bulkheads, revetments, dikes, breakwaters, and any associated fill which are necessary either to protect an existing structure from natural erosion or accretion, or to protect, construct, or expand a water-dependent use;

12. flood, water level, or tidal control facilities;

13. discharge pipes, outfalls, tunnels, and diffuser systems for conveyance of stormwater, wastewater, or other effluents to a receiving waterway;

14. facilities and activities undertaken or required by a public agency for purposes of decontamination, capping, or disposal of polluted aquatic sediments; and

15. wildlife refuges, bird sanctuaries, nesting areas, other wildlife habitats or an Ecological Restoration Project.

(b) The Department shall find to be water-dependent-industrial the following uses:
1. marine terminals and related facilities for the transfer between ship and shore, and the storage of, bulk materials or other goods transported in waterborne commerce;

2. facilities associated with commercial passenger vessel operations;

3. manufacturing facilities relying primarily on the bulk receipt or shipment of goods by waterborne transportation;

4. commercial fishing, shellfishing, and other seafood and fish processing facilities for fish, shellfish, and other seafood;

5. boatyards, dry docks, and other facilities related to the construction, serving, maintenance, repair, or storage of vessels or other marine structures;

6. facilities for tug boats, barges, dredges, or other vessels engaged in port operations or marine construction;

7. any water-dependent use listed in 310 CMR 9.12(2)(a)9. through 14., provided the Department determines such use to be associated with the operation of a Designated Port Area;

8. hydroelectric power generating facilities;

9. Offshore renewable energy infrastructure facilities in the Commonwealth, including ocean wave energy facilities, ocean current energy facilities, tidal energy facilities, any ancillary facility thereto or any similar facility that obtains its energy from the ocean;

10. infrastructure facilities used to deliver electricity, natural gas or telecommunications services to the public from an offshore facility located outside the Commonwealth; and

11. facilities for the manufacture, servicing, maintenance, data collection, and other functions related to coastal or offshore structures, buoys, autonomous underwater vehicles or vessels, and for the development of new technologies and systems for these structures, buoys, vehicles or vessels, provided that the facility requires transfer between ship and shore or the withdrawal and/or discharge of large volumes of water;

12. facilities for research and development or for the manufacture of technologies, e.g., robotics and acoustics, related to the marine environment, provided that the facility requires transfer between ship and shore or the withdrawal and/or discharge of large volumes of water;

13. facilities for research on, and the treatment of, marine species which require transfer between ship and shore or the withdrawal and/or discharge of large volumes of water;

14. facilities for the development and testing of offshore renewable energy infrastructure or components, provided that the facility requires transfer between ship and shore or the withdrawal and/or discharge of large volumes of water;

15. commercial aquaculture facilities that require transfer between ship and shore or the withdrawal and/or discharge of large volumes of water; and

16. other industrial uses or infrastructure facilities which cannot reasonably be located at an inland site as determined in accordance with 310 CMR 9.12(2)(c) or (d).

(c) In the case of industrial and infrastructure facilities not listed in 310 CMR 9.12(2)(b), which are dependent on marine transportation or require large volumes of water to be withdrawn from or discharged to a waterway for cooling, process, or treatment purposes, the Department shall act in accordance with the following provisions:
1. the Department shall presume to be water-dependent any alteration or expansion of a facility existing or licensed as of the effective date of 310 CMR 9.00, and any energy facility for which the proposed location has been approved by the Energy Facilities Siting Board; this presumption may be overcome only upon a clear showing that the proposed alteration or expansion or energy facility can reasonably be located or operated away from tidal or inland waters;

2. except as provided in 310 CMR 9.12(2)(c)1., the Department shall presume that any such industrial or infrastructure facility is not water-dependent; this presumption may be overcome only upon a clear showing that such facility cannot reasonably be located or operated away from tidal or inland waters.

If an EIR is submitted, the findings necessary to overcome the above presumptions shall be based on a comprehensive analysis of alternatives and other information analyzing measures that can be taken to avoid or minimize impacts on the environment, in accordance with M.G.L. c. 30, §§ 61 through 62H. If an EIR is not submitted, such findings shall be based on information presented to the Department in the application and during the public comment period thereon.

(d) In the case of an infrastructure crossing facility, or any ancillary facility thereto, for which an EIR is submitted, the Department shall find such facility to be water-dependent only if the Secretary has determined that such facility cannot reasonably be located or operated away from tidal or inland waters, based on a comprehensive analysis of alternatives and other information analyzing measures that can be taken to avoid or minimize adverse impacts on the environment, in accordance with M.G.L. c. 30, §§ 61 through 62H. If an EIR is not submitted, such finding may be made by the Department based on information presented in the application and during the public comment period thereon.

(e) In the case of a facility generating electricity from wind power (wind turbine facility), or any ancillary facility thereto, for which an EIR is submitted, the Department shall presume such facility to be water-dependent if the Secretary has determined that such facility requires direct access to or location in tidal waters and cannot reasonably be located or operated away from tidal or inland waters, based on a comprehensive analysis of alternatives and other information analyzing measures that can be taken to avoid or minimize adverse impacts on the environment, in accordance with M.G.L. c. 30, §§ 61 through 62I. If an EIR is not submitted, the Department shall presume such facility to be water-dependent. Whether or not an EIR is filed, this presumption may be overcome only upon a clear showing that the proposed facility can reasonably be located or operated away from tidal or inland waters.

(f) The Department shall not find the following uses to be water-dependent:
1. restaurants and other food/beverage service establishments;

2. retail shops and stores;

3. parking facilities;

4. office facilities;

5. housing units and other residential facilities;

6. hotels, motels, and other facilities for transient lodging;

7. parks, esplanades, boardwalks, and other pedestrian facilities other than those described in 310 CMR 9.12(2)(a)4.;

8. roads, causeways, railways, and other facilities for land-based vehicular movement, other than those found to be water-dependent in accordance with 310 CMR 9.12(2)(c) or (d); and

9. subaqueous disposal, below the low water mark, of material excavated or otherwise originating on land.

(3) Accessory Uses.

(a) The Department may determine a use to be accessory to a water-dependent use upon a finding that said use is customarily associated with and necessary to accommodate a principal water-dependent use. Such a finding shall be made only if the proposed use is:
1. integral in function to the construction or operation of the water-dependent use in question, or provides related goods and services primarily to persons engaged in such use; and

2. commensurate in scale with the operation of the water-dependent use in question.

Examples of uses that may be determined to be accessory to a water-dependent use include, but are not limited to, access and interior roadways, parking facilities, administrative offices and other offices primarily providing services to water-dependent uses on the site, yacht clubhouses, restaurants and retail facilities primarily serving patrons of the water-dependent use on the site, bait shops, chandleries, boat sales, and other marine-oriented retail facilities. Uses that may not be determined to be accessory to a water-dependent use include, but are not limited to, general residential facilities, hotels, general office facilities, and major retail establishments.

(b) The Department may find a use to be accessory to a water-dependent industrial use if, in addition to the criteria listed in 310 CMR 9.12(3)(a)1. and 2., the hours of operation of the use do not extend beyond the hours of operation of the water-dependent industrial use, except for support services which occur outside of the hours of the accessory use, and the use does not require a significant additional investment in infrastructure apart from that necessary for the primary water-dependent industrial use. Examples of water-dependent industrial accessory uses include, but are not limited to, ticketing booths for ferry operations, snack bars, and administrative offices associated with the water-dependent industrial use.

(4) The Department shall find to be nonwater-dependent any use which has not been found to be water-dependent or accessory to a water-dependent use, pursuant to 310 CMR 9.12(2) and (3).

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