(1)
Basic
Requirements. No license or permit shall be issued by the
Department for any project subject to
310 CMR
9.03 through
9.05
and
9.09,
unless said project:
(a) includes only fill
and structures for uses that have been categorically determined to be eligible
for a license, according to the provisions of
310 CMR
9.32;
(b) complies with applicable environmental
regulatory programs of the Commonwealth, according to the provisions of
310 CMR
9.33;
(c) conforms to applicable provisions of an
Approved Municipal Harbor Plan, if any, and local zoning law, according to the
provisions of
310 CMR
9.34;
(d) complies with applicable standards
governing the preservation of water-related public rights, according to the
provisions of
310 CMR
9.35;
(e) complies with applicable standards
governing the protection of water-dependent uses, according to the provisions
of
310 CMR
9.36;
(f) complies with applicable standards
governing engineering and construction of structures, according to the
provisions of
310 CMR
9.37;
(g) complies with applicable standards
governing use and design of boating facilities for recreational or commercial
vessels, according to the provisions of
310 CMR
9.38 and
9.39;
(h) complies with applicable standards
governing dredging and disposal of dredge materials, according to the
provisions of
310 CMR
9.40; and
(i) does not deny access to its services and
facilities to any person in a discriminatory manner, as determined in
accordance with the constitution of the Commonwealth of Massachusetts, of the
United States of America, or with any statute, regulation, or executive order
governing the prevention of discrimination.
(2)
Proper Public Purpose
Requirement. No license or permit shall be issued by the
Department for any project on tidelands or Great Ponds, except for
water-dependent use projects located entirely on private tidelands, unless said
project serves a proper public purpose which provides greater benefit than
detriment to the rights of the public in said lands. In applying 310 CMR
9.31(2), the Department shall act in accordance with the following provisions:
(a)
Water-dependent Use
Projects - The Department shall presume 310 CMR 9.31(2) is met if
the project is a water-dependent use project.
(b)
Nonwater-dependent Use
Projects - The Department shall presume 310 CMR 9.31(2) is met if
the project is a nonwater-dependent use project which:
1. complies with the standards for conserving
and utilizing the capacity of the project site to accommodate water-dependent
use, according to the applicable provisions of
310 CMR
9.51 through
9.52;
and complies with the additional standard for activating Commonwealth tidelands
for public use, according to the applicable provisions of
310 CMR
9.53;
2. if located in the coastal zone, complies
with the standard governing consistency with the policies of the Massachusetts
Coastal Zone Management Program, according to
310 CMR
9.54; and
3. if consisting entirely of infrastructure
facilities, to which 310 CMR 9.31(2)(b)1. does not apply, complies with the
special mitigation and public access standards governing such facilities,
according to
310 CMR
9.55.
(3)
Rebuttal of
Presumptions. The presumptions of 310 CMR 9.31(2) may be overcome
only if:
(a) the basic requirements specified
in 310 CMR 9.31(1) have not been met; or
(b) a clear showing is made by a municipal,
state, regional, or federal agency that requirements beyond those contained in
310 CMR
9.00 are necessary to prevent overriding detriment to
a public interest which said agency is responsible for protecting; in the case
of a project for which a final EIR has been prepared, the presumption may be
overcome only if such detriment has been identified during the M.G.L. c. 30,
§§ 61 through 62H review process.
(4)
Requirements for Projects
with Special Legislative Authorization. Notwithstanding the
provisions of 310 CMR 9.31(1) through (3), the Department shall issue a license
or permit where the project comprises fill or structures that have been
specifically authorized in a grant or other enactment of the legislature,
provided that the Department may prescribe such alterations and conditions as
it deems necessary to ensure the project conforms with:
(a) any requirements contained in the
legislative authorization; and
(b)
the standards of 310 CMR 9.31 through 9.60, to the extent consistent with the
legislative authorization.
