Code of Massachusetts Regulations
310 CMR - DEPARTMENT OF ENVIRONMENTAL PROTECTION
Title 310 CMR 9.00 - WATERWAYS
Section 9.38 - Use Standards for Recreational Boating Facilities
Universal Citation: 310 MA Code of Regs 310.9
Current through Register 1531, September 27, 2024
(1) Public Recreational Boating Facilities. Any project that includes a public recreational boating facility, any portion of which is located on Commonwealth tidelands or Great Ponds, shall include measures to ensure patronage of such facility by the general public. In applying this standard the Department shall act in accordance with the following provisions:
(a)
all vacant berths shall be assigned in a fair and equitable manner to the
public patrons of said facility, by means of a waiting list or other comparably
unbiased method; nothing in this provision shall be construed to prevent
berthing assignments based on vessel characteristics, or the offer of first
refusal rights to existing patrons of the facility who wish to relocate to a
vacant berth;
(b) any contract or
other agreement for exclusive use of berths at said facility shall have a
maximum term of one year, and may be renewable upon each expiration for an
additional period of up to one year;
(c) reasonable arrangements shall be made to
accommodate transient boaters, including, at a minimum, a procedure for making
any berth available for transient use during periods of vacancy in excess of 24
hours;
(d) all exterior pedestrian
facilities on the project site shall be open to the general public, except
where access restrictions are necessary in order to avoid significant
interference with the operation of the facility or to maintain security at
slips, ramps, floats, and other docking facilities; any such access
restrictions shall be stated in the license.
(2) Private Recreational Boating Facilities.
(a) Any project that
includes a private recreational boating facility, any portion of which is
located on Commonwealth tidelands or Great Ponds, shall include measures to
avoid undue privatization in the patronage of said facility. In applying this
standard, the Department shall act in accordance with the following provisions:
1. no berth in a marina shall be assigned
pursuant to any contract or other agreement that makes use of the berth
contingent upon ownership or occupancy of a residence or other
nonwater-dependent facility of private tenancy;
2. no berth in a marina shall be assigned
pursuant to a contract or other agreement for exclusive use with a maximum term
that exceeds one year, unless:
a. for existing
marinas, the lease agreement, master lease agreement or notice thereof for such
berths was recorded at the Registry of Deeds prior to July 6, 1990 in which
event all berths subject to such agreement shall be exempt from the provisions
of 310 CMR 9.38(2)(b); or
b. for
new marinas or berths in an existing marina not grandfathered pursuant to 310
CMR 9.38(2)(a), the following conditions are met:
i. said marina is located on tidelands
outside of Designated Port Area;
ii. the Department expressly authorizes the
assignment of long-term exclusive use of such berths in the license, and the
license includes a condition requiring written notification to any assignee
that said license does not convey ownership of Commonwealth
tidelands;
iii. the number of
berths authorized in the license does not exceed 50% of the total berths in
said marina; and
iv. said marina
provides water-related public benefits commensurate with the degree of
privatization, as deemed appropriate by the Department.
(b) No project shall
include a private recreational boating facility with fewer than ten berths on
Commonwealth tidelands or Great Ponds, if the Department receives written
certification from the municipal official or planning board of the municipality
in which the project is located that such facility does not conform to a
formal, areawide policy or plan which establishes municipal priorities among
competing uses of the waterway, unless the Department determines that such
certification:
1. is arbitrary, capricious, or
an abuse of discretion; or
2.
conflicts with an overriding state, regional, or federal interest.
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