(1) The Department has determined that in
certain situations fill or structures categorically do not meet the statutory
tests for approval under M.G.L. c. 91 or are otherwise not in keeping with the
purposes of
310 CMR
9.00. Accordingly, a project shall be eligible for a
license only if it is restricted to fill or structures which accommodate the
uses specified below, within the geographic areas specified in 310 CMR
9.32(1)(a) through (e).
(a)
Tidelands (Outside of ACECs and DPAs).
1. fill or structures for any use on
previously filled tidelands;
2.
fill or structures for water-dependent use located below the high water mark,
provided that, in the case of proposed fill, reasonable measures are taken to
minimize the amount of fill, including substitution of pile-supported or
floating structures and relocation of the use to a position above the high
water mark;
3. structures to
accommodate public pedestrian access on flowed tidelands, provided that it is
not reasonable to locate such structures above the high water mark or within
the footprint of existing pile-supported structures or pile fields;
4. pile-supported structures located below
the high water mark for nonwater-dependent uses which replace or modify
existing, previously authorized wharves, piers, pile fields, or other filled or
pile-supported structures, in accordance with the provisions of
310 CMR
9.51(3)(a) and
(b);
5. new fill located below the high water mark
for accessory or nonwater-dependent use provided that:
a. the purpose of such fill is to eliminate
irregularities in previously altered portions of the project shoreline;
and
b. such fill will replace
previously authorized fill elsewhere along the project shoreline, on a 1:1
square foot basis and without seaward projection beyond the adjacent shoreline;
6. stationary vessels
located below the high water mark and proposed for conversion to accessory use
or to nonwater-dependent facilities of public accommodation, provided that such
vessels:
a. do not consist of platform-like
floating structures, such as barges, built or modified to serve primarily as
support for new buildings; and
b.
will be licensed for a limited term, in accordance with the provisions of
310 CMR
9.15(1)(d)2.
7. fill or structures located
below the high water mark for wind turbine facilities found to be non-water
dependent, pursuant to
310 CMR
9.12(2)(e), in accordance
with the mitigation and/or compensation measures for non-water dependent
infrastructure facilities required by
310 CMR
9.55.
(b)
Tidelands Within Designated
Port Areas (DPAs).
1. fill or
structures for any water dependent industrial use, and accessory uses thereto,
provided that:
a. in the case of proposed
fill, neither pile supported nor floating structures are a reasonable
alternative; and
b. in the case of
parking, where the use cannot reasonably be located above the high water mark,
and is not located within a water dependent use zone; and
c. when parking is limited to persons
employed by or doing business with the water-dependent industrial use over
flowed tidelands;
2.
fill or structures for recreational boating facilities of nine slips or less
under the conditions specified in a DPA Master Plan;
3. Supporting DPA Uses, as defined at
310 CMR 9.02, shall
not exceed 25% of the area of the project site, excluding tidelands seaward of
the project shoreline.
4.
Supporting DPA Uses on pile-supported structures over flowed tidelands may be
allowed only through a DPA Master Plan or a Marine Industrial Park Master Plan,
provided that said plan is based on a clear showing that the use meets the
following requirements and is appropriate for the harbor in question:
a. no Supporting Use structure may be allowed
in the Water-dependent Use Zone;
b.
no Supporting Use parking shall be allowed on pile-supported structures over
flowed tidelands;
c. non
Water-dependent Supporting Use structure meet the standards of
310 CMR
9.51(3)(b) through (e);
and
d. Supporting Use structures
shall otherwise be appropriately sized and located, in accordance with
310 CMR
9.36(5)(b).
5. The Department shall waive the
numerical standard for Supporting DPA Uses as defined at
310 CMR 9.02, if the
project conforms to a DPA Master Plan or Marine Industrial Park Master Plan
which specifies alternative site coverage ratios and other requirements which
ensure that:
a. said Supporting Uses are
relatively condensed in footprint and compatible with existing water-dependent
industrial uses on said pier;
b.
said Supporting Use locations shall preserve and maintain the site's utility
for existing and prospective water-dependent industrial uses;
c. parking associated with a Supporting Use
is limited to the footprint of existing licensed fill and is not located within
a Water-dependent Use Zone; and
d.
The use of tidelands for this purpose in a DPA shall also be governed by the
provisions of
310 CMR
9.15(1)(d)1. and
310 CMR
9.36(5).
6. maintenance of existing,
previously-authorized recreational boating facilities;
7. recreational berths authorized in
connection with a Boatyard in accordance with
310 CMR
9.39(2)(b), or as included
in an approved Designated Port Area Master Plan pursuant to
301 CMR
23.05(2)(e)5.;
8. structures to accommodate public
pedestrian access, provided that such structures are located above the high
water mark or within the footprint of existing pile supported structures or
pile fields, wherever feasible;
9.
structures on filled tidelands to accommodate the following uses on a limited
basis:
a. a use to be licensed in combination
with water dependent industrial uses within a marine industrial park, as
defined in
310 CMR 9.02;
or
b. a temporary use, as defined
in
310 CMR 9.02.
The use of filled tidelands in a DPA for the above purposes
shall also be governed by the provisions of
310 CMR
9.15(1)(d)1. and
9.36(5).
(c)
Great Ponds.
1. fill or structures for any use on
previously filled lands below the natural high water mark;
2. structures for water-dependent use on
submerged lands below the natural high water mark, provided such structures are
designed to avoid unnecessary encroachment in the water;
3. fill or structures on submerged lands
above the natural high water mark, for uses listed for flowed tidelands in 310
CMR 9.32(1)(a).
(d)
Non-tidal Rivers and Streams (Outside ACECs). Fill or
structures for uses below the high water mark, as listed for flowed tidelands
in 310 CMR 9.32(1)(a).
(e)
Areas of Critical Environmental Concern (ACECs).
1. fill or structures for any use on
previously filled tidelands;
2.
structures to accommodate public pedestrian access on flowed tidelands,
provided that it is not feasible to locate such structures above the high water
mark or within the footprint of existing pile-supported structures or pile
fields;
3. fill or structures to
accommodate an Ecological Restoration Project, subject to approval under
314 CMR 9.00: 401
Water Quality Certification for Discharge of Dredged or Fill Material,
Dredging, and Dredged Material Disposal in Waters of the United States Within
the Commonwealth,
310 CMR
10.00: Wetlands Protection, and 310
CMR 40.000: Massachusetts Contingency Plan if applicable,
provided that any fill or dredged material used in an Ecological Restoration
Project may not contain a chemical above the RCS-1 concentration, as defined in
310 CMR 40.000: Massachusetts Contingency Plan;
4. publicly-owned structures for other
water-dependent use below the high water mark, provided that such structures
are designed to minimize encroachment in the water;
5. privately-owned structures for other
water-dependent use below the high water mark, provided that:
a. the proposed use is not industrial and is
located within the footprint of existing previously authorized pile-supported
structures, unless an insignificant deviation from said footprint is authorized
by the Department in order to protect public health, safety, or the
environment; or
b. such structures
are necessary to accommodate infrastructure facilities, provided that such
structures are designed to minimize encroachment in the water; or
c. 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;
or
d. 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)
Notwithstanding the provisions of 310 CMR 9.32(1), the Department may license
fill or structures necessary for the following uses, provided that reasonable
measures are taken to avoid, minimize, and mitigate any encroachment in a
waterway:
(a) shoreline stabilization or the
rehabilitation of an existing shore protection structure, irrespective of the
uses proposed landward of such fill or structures;
(b) installation of drainage, ventilation, or
utility structures, or placement of minor and incidental fill, necessary to
accommodate any replacement, reconstruction or other modification to existing
public roadways or existing railroad track and/or rail bed;
(c) improvement or rehabilitation of existing
public roadways or existing railroad track and/or rail bed, provided that any
net encroachment with respect to public roadways is limited to widening by less
than a single lane, adding shoulders, and upgrading substandard intersections;
or
(d) except as may be provided in
310 CMR 9.32(1)(b)1., accessory uses, other than parking, which are clearly
subordinate and incidental to a water-dependent use, provided that:
1. the fill or structures in question are not
located in an ACEC, and do not result in any encroachment in the waterway
beyond the area occupied by the water-dependent use itself; and
2. the accessory use cannot reasonably be
located above the high water mark, and is not located within a water-dependent
use zone.