Current through Register 1537, December 20, 2024
(1)
The
General License. In accordance with M.G.L. c. 91, § 18C, the
Department will issue a General License for noncommercial, small-scale,
water-dependent structures accessory to a residential use. The General License
shall be a final license signed by the Governor and may authorize eligible
small-scale, water-dependent structures accessory to a residential use in lieu
of an individual license. The General License shall be issued under the
following procedures:
(a) The draft General
License will be posted on the Department website and published in the
Environmental Monitor for a 30-day public comment period. After the close of
the public comment period, the Department will issue the final General License
and notify the public of its availability on the Department website.
(b) The General License shall be in effect
for a fixed term not to exceed 30 years for structures in coastal waters, and
15 years for structures in fresh waters, unless a shorter effective term is
specified by the Department in the General License.
(c) The General License shall be recorded at
every Registry of Deeds in the Commonwealth, indexed under "Commonwealth of
Massachusetts" as the Grantor.
(d)
The Department may amend or modify the General License in accordance with the
procedures of 310 CMR 9.29(1)(a) through (c).
(2)
Projects Eligible for General
License Certification. A Certification to the General License
issued under 310 CMR 9.29(1) must be submitted for all proposed structures,
previously unauthorized structures, and previously licensed structures applying
for renewal, that meet the following eligibility criteria:
(a) Are for a water-dependent, noncommercial
use accessory to residential property;
(b) Are for pile-supported (e.g., by wooden
or metal posts) small-scale dock, pier, and similar structures with associated
ramp(s) and float(s) that require no fill or dredging;
(c) Are not located within an Area of
Critical Environmental Concern (ACEC);
(d) Are not located within a Designated Port
Area (DPA); and
(e) Otherwise meet
the General License standards and procedures described in 310 CMR 9.29(3) and
(4).
The above thresholds are established for determination of
eligibility only; structures licensed under 310 CMR 9.29 shall be the minimum
size necessary to achieve the intended water-related purposes.
(3)
Standards. The General License contains specific
conditions that will ensure that projects certified under 310 CMR 9.29 will
meet the following performance standards which shall supersede the standards
listed in
310 CMR
9.35 and
9.37.
(a) An eligible project shall not:
1.Exceed the minimum size necessary to
achieve the intended water-dependent use;
2.Extend beyond the length required to
achieve safe berthing;
3.Impair the
lines of sight necessary for navigation;
4.Interfere with access to adjoining areas by
extending substantially beyond the projection of existing structures adjacent
to the site;
5.Interfere with
access or public rights associated with a public landing, easement, or other
public access to water;
6.Generate
water-borne traffic that would substantially interfere with other vessels;
and
7.Impair in any other
substantial manner the ability of the public to swim or float freely upon the
waterways.
(b) An
eligible project shall:
1.Preserve all rights
held by the Commonwealth in trust for the public to use tidelands, Great Ponds
and other waterways for lawful purposes;
2.Preserve public rights of access on private
tidelands for fishing, fowling, and navigation;
3.be structurally sound; and
4.meet all other standards and conditions
stated in the General License, including but not limited to the dimensional
criteria for flowed tidelands or fresh waters.
(c) The Department may consider the
cumulative impact of docks, piers and similar structures in a geographic area
in determining whether a project is appropriate for coverage under a General
License.
(4)
Certification Procedures. Unless otherwise specified
in 310 CMR 9.29, the procedural requirements of
310
CMR 9.10 through
9.19,
9.21,
9.23
through 25, 9.34, 9.37, shall not apply to Certifications submitted under the
General License issued pursuant to 310 CMR 9.29 and M.G.L. c. 91, § 18C. A
Certification shall assert under the pains and penalties of perjury that the
proposed project meets all eligibility requirements set forth in 310 CMR
9.29(2), and that the project proponent will comply with all standards and
conditions of the General License. For purpose of authorizing eligible projects
under the General License, the following certification procedure shall apply.
(a)
Application and
Plans. A project proponent shall submit a completed Certification
form provided by the Department, which shall be signed by the project proponent
and landowner, if other than the project proponent. The Certification shall be
prepared in accordance with the instructions contained in the Department's
Certification package and include a copy of any legislative grant. The
Certification shall include a plan that clearly demonstrates that the project
meets the General License eligibility criteria of 310 CMR 9.29(2), will comply
with all standards and conditions of the General License; and is drawn in
accordance with the formatting and information requirements described in the
Department's Certification package. When plans have been submitted with a
Notice of Intent or referenced in an Order of Conditions under the Wetlands
Protection Act, a copy of those plans shall accompany the application. When
plans have not been prepared under the Wetlands Protection Act, a plot plan or
other scaled plan with structures to be licensed measured accurately from lot
lines or other fixed structures shall be prepared in accordance with the
application instructions.
(b)
Coordination with Municipal Officials. The project
proponent shall coordinate with the following municipal officials on the
proposed project and provide an opportunity to comment prior to submitting the
completed Certification package to the Department.
1.
Planning Board.
The project proponent shall submit to the planning board a statement and plan
that includes the proposed use, location, dimensions and limits and mode of
work to be performed, and describes the proposed project with sufficient detail
for the planning board to determine if the proposed project complies with the
eligibility criteria and applicable standards and conditions of the General
License. The planning board may solicit the opinions of other municipal
officials such as the board of selectmen, harbormaster or conservation
commission. Within 45 days of receipt of an adequate statement from the project
proponent, the planning board may submit a written opinion to the Department on
whether the project meets the eligibility criteria listed in 310 CMR 9.29(2)
and will comply with the standards and conditions of the General License and
310 CMR 9.29(3). The Department may affirm a Certification after the expiration
of 45 days without local planning board comment or upon receiving notification
from the local planning board that it does not oppose the project's eligibility
for a Certification.
2.
Conservation
Commission. The project proponent shall provide to the Department
adequate documentation with the Certification package that the project complies
with the Wetlands Protection Act, in the form of an Order of Conditions,
negative or conditionally negative Determination of Applicability, or
Certificate of Compliance.
3.
Zoning Compliance.
The project proponent shall include on the Certification form a certification
from the local Zoning Enforcement Officer that the project complies with
applicable zoning ordinances and bylaws.
(c)
Public Notice.
The project proponent shall publish in a newspaper of general circulation in
the area where the project is located, a public notice including the
proponent's name and address, the project location, a description of the
project, and a statement that written comments will be accepted by the planning
board within 30 days of the submittal of the statement to the planning board.
At the same time the proponent submits its statement to the planning board, a
copy of the public notice shall be distributed to the Municipal Official,
harbormaster, if any, and the conservation commission. The notice shall
indicate that the proposed project is under review by the planning board. No
public hearing will be required by the Department for a General License
Certification. The public notice of the project shall be published before or at
the same time as the statement is provided to the planning board and other
municipal officials and may be included in a public notice for the proposed
project required by other applicable statutes or regulations, such as the
Wetlands Protection Act.
(d)
Fees. Any Certification submitted to the Department
shall include the applicable Certification form and payment of the applicable
tidewater displacement or occupation fee described at
310 CMR 9.16.
Notwithstanding the provisions of
310 CMR 9.16(3)(d) and
(e) to the contrary, all such fees shall be
paid in full by certified check or money order made payable to the Commonwealth
of Massachusetts at the same time as the Certification is submitted to the
Department.
(e) Any change in use
or structural alteration of a previously licensed structure that is eligible
for the General License, regardless of when the structure was first licensed or
certified, on or after the effective date of this section, shall require a new
Certification. The new Certification shall be submitted to the Department for a
shortened local review that includes only the planning board in accordance with
310 CMR 9.29(4)(b)1. and M.G.L. c. 18(C). The new Certification shall be
submitted to the Department and Planning Board at least 60 days prior to the
start of construction.
(5)
Decision on
Certifications. The Department shall acknowledge receipt of a
complete Certification package, or request additional information, within 60
days of the date of receipt by the Department. The submission of the
Certification to the Department shall not occur until the latter of the
completion of the public comment period or the expiration of the planning
board's 45 day review period. The Department shall affirm the Certification if
the project meets the eligibility criteria of 310 CMR 9.29(2), will comply with
all standards and conditions of the General License, and the applicant has met
all the requirements of 310 CMR 9.29(3) and (4), except that the Department
shall not affirm a Certification if the planning board recommends that the
project be subject to individual licensing. If an existing, previously
unauthorized structure is found ineligible for Certification, an application
shall be submitted for an annual local permit, a simplified license, or an
individual license in accordance with
310 CMR
9.07,
9.10,
or
9.11.
(6)
Terms of Certifications and
Recording.
(a) The term of the
affirmed Certification shall expire on the same date as the General License,
unless the Department specifies in its affirmation that a shorter term is
necessary to protect the public interest.
(b) The affirmed Certification, with the plan
as an exhibit, shall be recorded at the Registry of Deeds within the chain of
title of the affected property within 60 days of the date of the Department's
affirmation. The Certification becomes valid on the date the affirmed
Certification is recorded. Failure to record the Certification and accompanying
plan within 60 days will render the Certification void in accordance with
M.G.L. c. 91, § 18C. The applicant shall provide notification to the
Department within 30 days of the recording in accordance with
310 CMR
9.18(2).
(c) Work or change in use shall not commence
until the affirmed Certification is recorded and the Department has received
notification of the recordation.
(d) All work authorized by an affirmed
Certification under this General License shall be completed within five years
of the date of the Department's affirmation. Said construction period may be
extended by the Department for one or more one year periods without public
notice, provided that the Applicant submits to the Department, 30 days prior to
the expiration of said construction period, a written request to extend the
period and provides an adequate justification for said extension.
(7)
Recertification
and Transfer of Certifications from the Department. The Department
may reissue a General License under the procedures of 310 CMR 9.29(1) twelve
months prior to the expiration of the General License term. At least 90 days
prior to the expiration of the General License, or the date of reissuance of
the General License whichever is later, a person responsible for a structure
with an affirmed Certification under the General License shall file a request
for continued coverage with the Department. The Department may require planning
board review in accordance with 310 CMR 9.29(4)(b)1. based on comments received
about the structure or other relevant information. The Certification procedures
of 310 CMR 9.29(4) shall apply to requests to recertify.
(a) Projects meeting the eligibility
provisions of 310 CMR 9.29(2), which previously obtained a license, simplified
license, amnesty license or interim approval, shall request Certification under
310 CMR 9.29 instead of renewal, before the expiration of the previously issued
license or interim approval.
(b)
Any person applying for a recertification under 310 CMR 9.29 shall compensate
the Commonwealth for the rights granted in such lands through payment of an
occupation fee, in accordance with the provisions of
310 CMR 9.16.
(c) Unless otherwise provided in the
Certificate, a valid affirmed Certificate shall run with the land and shall
automatically be transferred upon a change of ownership of the affected
property within the chain of title of which the license has been recorded. All
rights, privileges, obligations, and responsibilities specified in the General
License shall be transferred to the new landowner upon recording the changed
ownership in the Registry of Deeds.
(8)
Appeals. The
appeal provisions of
310 CMR 9.17 shall apply
to the issuance of a General License. Copies of a Notice of Claim filed
concerning the issuance of a General License pursuant to 310 CMR 9.29 shall be
provided as required by
310 CMR 9.17(2) and
(3) to the extent applicable. The appeal
provisions of
310 CMR 9.17 shall not
apply to the Certification of a project under the General License issued in
accordance with 310 CMR 9.29.
(9)
Enforcement, Suspension or Revocation of a Certification under a
General License. The enforcement provisions of
310 CMR 9.08 shall
apply to any structure eligible for certification or Certified under the
General License pursuant to 310 CMR 9.29. The Department shall perform annual
audits to monitor compliance with the General License standards and conditions
in accordance with M.G.L. c. 91, § 18C. Consistent with the provisions of
310 CMR
9.26, the Department may revoke a
Certification for non-compliance with the standards and conditions set forth in
the General License or the individual Certification.