# Management of Small Docks and Piers

Legal Authorities and Management Techniques

# 

**Introduction---**

Understanding individual and cumulative impacts of small docks and piers
is only the first step in the management process. Based on the
understanding of impacts, decisions need to be made as to which are
acceptable and which should not be allowed. Finally, there must be a
system in place to ensure that unacceptable impacts are avoided. This
latter aspect of the management process will be discussed here.

Two general techniques are available for managing impacts: regulatory
techniques such as permitting reviews, zoning, building codes; or
non-regulatory methods such as land acquisition and construction of
public facilities, public education, and planning efforts.

### Management through Regulatory Techniques---

The **Police Powers** of government were established to protect public
health, welfare, safety and morals and they may be applied at the
federal, state, or municipal level (including counties, parishes,
cities, and towns). Police powers are typically utilized as a basis for
environmental regulation and, as such, all decisions must be limited to
the interests of public health, welfare, safety and morals.

The regulatory abilities of municipalities generally fall into one of
two categories. In some states, all municipal powers have to be
specifically authorized by the State constitution and legislature.
Municipalities that fall into this category can only exercise those
powers that have been expressly delegated and/or implied by the State.
These are often referred to as \"Dillon's Rule\" states---named after
19th Century Judge Dillon of Iowa. Here, if the State does not say that
the municipalities can regulate, then they cannot regulate.

Other States, however, give general grants of authority through their
constitutions that allow municipalities to exercise those decisions
necessary to govern their communities. Within these states, typically
referred to as \"Home Rule\" states, municipalities can adopt charters
(akin to a \"Constitution\") that form the foundation of the municipal
government and its regulatory powers. Here, unless the State says
municipalities cannot regulate, then they can.

**Ownership rights**---or property rights such as easements---of a state
or local jurisdiction provide additional management opportunities.
Public lands may include, for example, parkland, roadways, or boat
ramps. Germane to the discussion regarding docks is the fact that land
below the tide line generally is owned by the state or, in limited
instances by a municipality. In these situations, the proprietary
interests in the property provide a far broader basis for authority than
do the police powers. In this situation, the state has the authority to
issue---or deny--- leases or licenses for private structures on public
lands based on a wide range of state purposes.

The **Public Trust** **Doctrine** holds that citizens have certain
fundamental rights and interests in natural resources such as the sea,
the shore, and the air; and that the State, as trustee of the public
interest, has a duty to preserve and enhance both the natural resources
and the public right to use them. This forms the basis for most
regulatory programs pertaining to navigation and public access.

In the case of private docks, it is not uncommon for multiple regulatory
authorities to apply. Police powers may provide the state and/or local
government with regulatory authority over environmental or visual
impacts. The federal government, through the U.S. Army Corps of
Engineers, may have authority over potential impacts to navigation.
Lastly, the state or municipal government may have authority over the
use of submerged lands and public access or shoreline use rights.

### Regulatory Management at the State Level---

All states have an environmental review process and/or licensing program
for docks. Therefore, the issue is not creation of a regulatory
mechanism, rather a clarification of the impacts and development of
adequate resource protection standards. Impacts are discussed in detail
in previous sections of this workbook.

### Regulatory Management at the Local Level

As mentioned previously, management capabilities at the local level
depend on whether a municipality is within a "Dillon's Rule" or "Home
Rule" state. Several management options, however, are available in all
states.

1.  *Zoning*

All states provide the option of some form of zoning administered at the
local level. The principal benefit of zoning ordinances is to allow for
geographic segregation of conflicting activities. Zoning allows local
jurisdictions to set standards for structures or activities including
dimensions, appearance, or natural resource protection. These may be
applied community-wide or in specific areas referred to as Overlay
Districts. They may define uses or actions that are permitted without
review, those permissible with a favorable review, and those prohibited
altogether. Most zoning provides for variances for just cause.

> A recent variation on zoning---and one relatively untested by the
> courts---is to zone the surface waters (or watersheet) within a
> community. This is being explored on Cape Cod, MA through the regional
> planning agency, the Cape Cod Commission. Although the submerged ocean
> land may be "owned" by the state, if it falls within the boundaries of
> the community it may be subject to their zoning process and standards.
> This could provide a very valuable tool for dock management.

#### Case Study, Lloyd Harbor, NY---

A recent case in New York illustrates the use of a shoreline Overlay
Zoning District for dock management. The Village of Lloyd Harbor
established a Coastal Overlay District with standards designed to manage
land and water uses within the harbor and specifically to protect the:

1.  significant natural resources of the area,

2.  relatively undeveloped open space and uses along and in the harbor,
    and

3.  scenic and visual qualities---essentially the community character of
    the waterfront.

> Within the Overlay District, dock length was limited to 75 feet from
> the mean high water mark, or to a depth no greater than two feet mean
> low water at the seaward end of the dock, whichever produced the
> shortest dock. This was done as a way to reduce encroachments into the
> navigable channel, and minimize the effects of the docks' physical
> presence on the character of the area.
>
> An owner of upland property abutting Lloyd Harbor desired to construct
> a longer dock than the Overlay District allowed and challenged the
> ordinance in court. The appellants claimed that the ordinance dampened
> "their legal and constitutional rights to own and use their property
> and its riparian rights" under the Fifth Amendment of the US
> Constitution and resulted in a "taking of their property for public
> use without just compensation." In making this claim, the plaintiffs
> asserted that the ordinances were "unconstitutional, illegal, and
> invalid" and did "not promote the health, safety, welfare or morals of
> the general public; \[were\] not enacted in furtherance of a
> comprehensive land use plan; are not rationally related to achieving a
> permissible municipal goal; and are arbitrary and capricious."
>
> The case (Stuchin v. Town of Huntington and Village of Lloyd Harbor)
> was tried in US District Court in the Eastern District of New York. In
> September of 1999, the judge handed down a 68-page decision (71 F.
> Supp 2d 76, No.CV 98-3580 (ADS)) finding that the property owners had
> not been denied their right to access the waterway adjacent to their
> property, but merely had their "mode of access ... limited to a dinghy
> launched from the foreshore of their property." He went on to note
> that both the right of access and construction of a private dock are
> "subject to general rules and regulations as the Legislature may see
> proper to impose for the protection of the rights of the public,
> whatever these may be." In short, the Court ruled that the Overlay
> District was legally valid and did not violate the property owner's
> constitutional rights. The Court upheld the denial of the permit for
> the proposed dock.

In making this decision, the judge found there was a "substantial
rational basis for reducing the size of docks in these waters including
the Village's ... concerns regarding 1) obstruction to navigation, 2)
preservation of the pristine natural habitat and precious resources of
Lloyd Harbor and 3) aesthetics." The judge dismissed the regulatory
taking claim and concluded that the village standards "pass
constitutional muster."

> The Court concluded that the Village Lloyd Harbor did not act in an
> "arbitrary or irrational manner" in establishing the Overlay District
> standards related to dock design, noting that "\[g\]enerally a
> municipal zoning ordinance is presumed to be valid and will not be
> held unconstitutional if its wisdom is at least fairly debatable and
> it bears a rational relationship to a permissible state objective."
> Citing RRI Realty Corp v. Village of Southampton, NY (2d Cir, 1989)
> "zoning regulations will survive substantive due process challenge
> unless they are 'clearly arbitrary and unreasonable, having no
> substantial relation to the public health, safety, morals, or general
> welfare'." Accordingly the Court found that the zoning ordinances bore
> a "rational relationship to a legitimate government objective."
>
> [Case Study, Blakely Harbor, Bainbridge Island WA---]{.underline}
>
> As part of a harbor planning exercise on Bainbridge Island, WA,
> planners assessed the potential for visual impacts from dock
> construction (Best, 2002). A GIS model was created showing existing
> structures and the potential for a full build-out of docks. There are
> three existing small piers in this generally shallow embayment, but
> there is the potential for more than 50. Using these two scenarios,
> the narrowing of views (i.e., views unobstructed by the presence of
> docks) was calculated from "select public vistas" such as parks and
> scenic roadways along the harbor as well as views of the land from the
> water side. Assessments were not done for visual impacts on views from
> private properties. Analysis showed that the view corridors from the
> public land sites would be narrowed between 27--58 percent for
> projects that had already been proposed and up to 78 percent at
> maximum build-out. Additional assessments were made for impacts to
> navigation and to natural resources.
>
> Following the planning exercise, the City Council amended the City's
> Shoreline Management Master Program to limit future construction of
> docks within the harbor. The amendment (Ordinance 2003-30,
> [www.ci.bainbridge-isl.wa.us/blakely2_rev.asp](http://www.ci.bainbridge-isl.wa.us/blakely2_rev.asp))
> limits the number of new docks to one small day-use public pier and
> two small (five or fewer boats) community docks---one on the north
> shore and one on the south---for the private use of harborside
> residents. The plan was appealed but ultimately was adopted by the
> Washington State Department of Ecology into the State's Coastal
> Management Program.

#### Case Study, Ashley River (SC) Special Area Management Plan---

States also have the potential to develop Special Area Management Plans
(SAMP). One such plan was developed for the Ashley River in South
Carolina. The State's Coastal Council approved the SAMP in 1992. It
established standards for dock size, design, and use. One of the
provisions of the SAMP is a prohibition against widening walkways to
pierheads and floats. A riparian property owner challenged this
provision seeking to widen the walkway for storage of a kayak and a
rowing shell. The State of South Carolina Administrative Law Judge found
against the property owner noting, among other findings, that the
petitioner failed to demonstrate that there were not other reasonable
alternatives for storing his boats than on the walkway, and that denying
the request "limits the long range cumulative effect that will lead to
other possible development that may impact the general character of the
area" (State of South Carolina, 1996)

2.  *Subdivision Control Ordinances*

Subdivision ordinances and regulations fine-tune zoning. Utilizing this
mechanism, local boards have the authority to review and condition the
division of land into new parcels. Typically this process is used to
define new lot boundaries and ensure sufficient infrastructure and
roadways to support the increased population of homes and people.
However, subdivision controls can also be used to establish or codify
covenants over the new lots. For waterfront areas this could provide a
mechanism to limit numbers and/or sizes of docks by mandating communal
docks or even a single community dock or landing. The reviewing body
often has the opportunity to require certain benefits designed to
mitigate impacts from the new subdivision development.

3.  *Building Codes*

In some states, local jurisdictions have the authority to establish
building codes in addition to any state standards. These can apply to
any structure, including docks and piers, where its enforcement protects
the public health, welfare, and safety elements of the police powers.
This allows local ordinances to define dock size, materials, and means
of construction.

4.  *Local Environmental Ordinances*

In Home Rule states, municipalities may have the capability to establish
local ordinances to protect and/or manage wetlands and related
resources. In Dillon's Rule states, this authority must be clearly
transferred to municipalities. Local environmental ordinances can be
used to strengthen state programs by adding additional interests
(*e.g.*, recreation or aesthetics) to be protected or strengthening
standards to protect resources.

5.  *Harbormaster and Dock Commissioner Management*

> Harbormasters or Dock Commissioners generally control municipal docks,
> wharves, landings, and the like within a waterbody. In most
> communities, the harbormaster also controls moorings, floats, and
> other non-permanent structures in the water. This authority may
> provide some dock management capabilities regarding such controlling
> dock length (to preclude interference with mooring or anchoring areas)
> or height and pile spacing (to allow passage "through" the pier by
> small vessels or to avoid obscuring navigational sight lines). Some
> docks consist of a bottom-anchored float with a temporary walkway to
> shore. If these are not fixed structures, the harbormaster may have
> the sole management authority.
>
> Many communities additionally have Harbor Management Commissions or
> Committees charged with developing a master plan for the use of the
> harbor. Depending on the state or municipality, these master plans may
> include regulatory standards administered by the Commission or other
> agency.

### Challenges to Regulatory Authorities and Management Mechanisms---

It is not uncommon for someone who feels aggrieved by decisions
resulting from a regulatory program---at any level of government---to
challenge either the decision itself or the legality of that program as
a whole. Typical challenges include (based on McGregor, 2003):

1.  *Exceeding Authority*

The challenge may allege that the technical and/or administrative
aspects of a regulatory program exceed the authority provided by their
statutory language or legislative intent. It is critical, in developing
regulations for either state statutes or local ordinances, to be
cognizant of the authority provided and to be able to justify all
procedures or standards within the enabling legislation. (Additionally,
while local ordinances and regulations can strengthen or complement
state or federal law, municipal authorities cannot supersede state or
federal authority by "weakening" or modifying standards established by
those entities.)

2.  *Violation of Legal Processes*

> Regulatory violations in the implementation of existing laws may occur
> through substantive errors (*e.g.,* making decisions not in accordance
> with enabling legislation), procedural errors (*e.g.,* not providing
> appropriate public notice, opportunity for input, or charging
> inappropriate fees), or in not protecting public trust obligations.
> Regulatory entities must be careful to follow all regulatory
> procedures and make decisions within the authority of enabling
> authorities.

3.  *Arbitrary or Capricious*

Challenges of ordinances, regulations or specific decisions as arbitrary
or capricious may argue that such legal mechanisms do not have a
rational relationship to a legitimate government objective such as
public health, welfare, safety, or morals. Decisions under regulatory
programs may be challenged if they are not based on substantive evidence
or testimony.

4.  *Unconstitutional Taking*

> The Fifth Amendment of the U.S. Constitution requires that property
> cannot be taken from its owners without just compensation. Over the
> past two decades there have been several highly visible challenges to
> government environmental regulation suggesting that those regulations
> have so limited the use of property as to constitute a "taking" and
> render the private property deprived of all reasonable uses. The
> specifics of the legal arguments are beyond the scope of this document
> but excellent summaries may be found in Duerksen & Roddewig (1994) and
> McElfish *et al.* (1996).
>
> In the case of docks, it is sometimes alleged that dock regulatory
> programs may deprive the owners of their riparian rights---the right
> to access waters adjacent to private property. Generally, the courts
> have found that riparian rights only require access to the waters but
> do not guarantee a dock or other structure to gain that access.
> Additionally, they have found that an environmental management program
> that protects reasonable public interests will not be considered a
> taking. This is based on the premise that private property may be
> regulated under police powers to protect the public health, welfare,
> and safety.

### Non-regulatory Management Techniques---

There are various non-regulatory techniques for dock management that are
available to states, municipalities, and in some instances, residents of
waterfront areas. These include:

1.  *Public Education Regarding Dock Impacts and Ways to Avoid Them*

Education can be a powerful tool. Ensuring that people are aware of the
impacts of their actions is one of the foundations for both regulatory
and non-regulatory programs. Ways to implement this effort can be
workshops, mailings, demonstration projects, public service
announcements, etc. These materials were developed as a mechanism to
help with this process.

##### *Communal Docks*

Shared docks lessen the number of structures---as well as the
impacts---within a waterbody. This sharing can come in a number of ways:

-   Community or other publicly owned docks, wharves, or landings.

These generally require public funding for acquisition or maintenance.
Fees can be charged or donations solicited from individuals,
corporations, or "friends of" groups as a means of covering costs.

-   Yacht Clubs and Marinas.

In this case, private groups and businesses establish communal
facilities and allow them to be utilized at a cost to the user, through
either dues or rental costs.

-   Voluntary (or mandated) sharing between neighbors or members of a
    neighborhood association. These may be entirely voluntary so as to
    take advantage of favorable water depth or access, or be the result
    of exactions through regulatory programs. Whatever the driving
    interest, communal docks of this sort come at no financial expense
    to a community as a whole, although users typically pay for
    construction and maintenance.

NOAA's Coastal Services Center web site provides three scenarios of how
communal dock development might work (Coastal Services Center, 2005). In
this exercise, they envisioned build-out of docks in a community under
three different scenarios. These include: These include:

-   The "Conventional" scenario where every waterfront property has a
    private dock,

-   The "Conservation" scenario where there are no private docks. They
    are replaced by community docks and a public boat lift.

-   The "New Urbanist" scenario includes community docks within each of
    three communities.

Specifics of dock sizes, types, and numbers are shown in Table 1 below.

+--------------+------------------+------------------+----------------+
|              | Conventional     | Conservation     | New Urbanist   |
+--------------+------------------+------------------+----------------+
| **Type of    | 2 public docks   | 1 public boat    | 5 public       |
| Docks**      | in a marina.     | lift             | docks, 2 in a  |
|              |                  |                  | marina         |
|              | 4 community      | 3 community-use  |                |
|              | --use docks.     | docks            | 6              |
|              |                  |                  | community-use  |
|              | 11 shared docks  | 0 shared docks   | docks          |
|              |                  |                  |                |
|              | 86 single-family | 0 single-family  | 0 shared docks |
|              | docks            | docks            |                |
|              |                  |                  | 0              |
|              |                  |                  | single-family  |
|              |                  |                  | docks          |
+--------------+------------------+------------------+----------------+
| **Total Dock | 43,721 feet      | 1,013 feet       | 2,086 feet     |
| Length**     |                  |                  |                |
+--------------+------------------+------------------+----------------+
| **Total Area | 262, 326 square  | 6,078 square     | 12,518 square  |
| Covered by   | feet             | feet             | feet           |
| Docks**      |                  |                  |                |
+--------------+------------------+------------------+----------------+
| **Total      | 103 docks        | 4 docks          | 7 docks        |
| Number of    |                  |                  |                |
| Docks in     |                  |                  |                |
| Each         |                  |                  |                |
| Scenario**   |                  |                  |                |
+--------------+------------------+------------------+----------------+

> **Table 1:** Table showing differences between three possible dock
> development scenarios in a community. Coastal Services Center, 2005.

##### Mechanisms for Promoting Non-regulatory Methods---

Non-regulatory management techniques can be implemented in several ways
including:

1.  *Acquisition*

States or municipalities have the option to acquire land from willing
sellers or donors, or through their powers of eminent domain. Land
acquired in this way can be utilized for communal docks or ramps. A
project of this type generally requires funding for acquisition and
construction, obtaining a permit and/or license for construction, and
maintenance costs.

2.  *Incentives/Disincentives*

> States or municipalities may also provide incentives or disincentives
> for communal or private dock construction. Many of these techniques
> are untried or in very early stages of discussion. Some of the
> techniques include:

-   Funding or tax incentives/disincentives

Funding and/or technical assistance can be provided to neighborhood
groups or other entities to design, acquire permits, and construct
communal docks, marinas, or yacht clubs that will lessen the need for
private docks.

Many communities increase property taxes if a dock is present on the
lot. If this increase is significant, property owners may investigate
communal dock options. Lessening or even waiving property taxes on
communal docks, even when they are located on private property, may also
act as an incentive.

-   Permitting incentives/disincentives

> The permitting process can be a significant disincentive due to costs
> and time required to complete that process. "Permits by Rule", *e.g.,*
> *a priori* permission for construction if docks meet established
> criteria, can speed the process. A standardized design and permit by
> rule option for communal docks can encourage their installation rather
> than private structures.

-   Social pressure for not constructing private docks

If there is a general agreement among people living on a water body to
avoid private docks and/or develop and use communal docks, social
pressure may have the effect of limiting individual structures. An
example of this took place on Martha's Vineyard where property owners
fronting on Vineyard Sound agreed among themselves not to construct
docks. When a dock was eventually proposed for one lot, the neighbors
spoke with the property owner who "graciously withdrew" her request for
a permit.

### Regional Planning for Dock Management---

Most proposals for small docks are reviewed on a case-by-case basis.
This precludes an effective review of cumulative impacts. Moreover, when
taken individually, most docks have very minimal impacts and therefore
are often difficult to deny.

A more successful approach appears to be regional planning and
management. Typically, there are five steps in this approach.

1.  Establish well-defined boundaries, clearly explaining the reasons
    they were selected.

2.  Develop public agreement as to the resources to be protected, based
    on community values

3.  Define the impacts of individual docks or a full build-out of
    potential docks, and

4.  Create a method to implement the plan once it has been completed

5.  Establish a mechanism for periodic review and update.

In order to manage the number of small docks, planners may consider the
following techniques:

-   Identifying areas where no further dock development should occur and
    areas where managed growth is permitted.

-   Encouraging community docks.

-   Promoting marinas as an alternative to individual docks.

-   Regulating groups of docks in a limited area using conditions
    similar to those for marinas.

The framework for such a special area planning effort can be one of a
number of options including:

1.  *Zoning Overlay Districts*

> Zoning Overlay Districts were described previously in the section on
> Regulatory Management at the Local Level as a means of implementing
> community-based standards.

## *Harbor Management Areas*

> Many states have a formal harbor planning process, either as part of
> an environmental regulatory program, a public trust management
> program, or through a community planning mechanism.
>
> In most harbor plans, the central issue is to resolve potential
> conflicting human uses within a specific geographic area, whether
> resource-based (*e.g.,* shellfishing), recreation-based (*e.g.,*
> swimming, boating, water-skiing), commercially-based wharfs and
> associated uses, or residential-based uses such as private docks.

2.  *Coastal Zone Management Special Area Management Plans*

> State coastal zone management programs include the capability to
> establish, or assist in the establishment of, special area management
> plans. These may be administered at either local or state levels to
> preserve or restore natural resources or manage activities that might
> have adverse impacts on such natural resources.
>
> Many state coastal management programs enable municipalities to
> develop local coastal management plans that are adopted as part of the
> state program. Under this system, proposed development, which can
> include private docks, must be consistent with the local plan.

## *Wild and Scenic River Designations*

> Wild and Scenic River designation provides another framework for
> management of private docks. Rivers and their immediate environments
> selected for their, "outstandingly remarkable scenic, recreational,
> geologic, fish and wildlife, historic, cultural, or other similar
> values shall be preserved in free-flowing condition, and that they and
> their immediate environments shall be protected for the benefit and
> enjoyment of present and future generations." (The Federal Wild and
> Scenic Rivers Act; P.L. 90-542 as amended; 16 USC. 1271--1287)
>
> Rivers can be designated either by Congress or state legislatures.
> Many states have developed parallel state legislation to designate and
> manage wild and scenic rivers (*e.g.,* New Jersey's Wild and Scenic
> Rivers Act of 1977; N.J.S.A. 13:8--45 *et seq.*). Within such
> designated areas, management plans are developed that may be
> implemented through either state statutes or municipal ordinances.
> This planning process allows a state or municipality to address issues
> related to the development of private docks.

3.  *Critical Resource Areas*

> Many states and municipalities have the authority to define certain
> areas as critical to the protection of coastal resources. These may be
> known as aquatic preserves, Areas of Critical Environmental Concern,
> Areas for Preservation and Restoration, significant wildlife or marine
> resource habitat, or some similar designation, but all provide a
> framework for dock management. In some of these areas, scenic
> resources are a factor in designation, leading to the potential for
> construction standards to minimize or avoid visual impacts.

**Case Studies of Regional Dock Management Plans---**

There are a number of excellent examples of Regional Dock Management
Plans. Already referenced have been plans from Blakely Harbor, WA; Lloyd
Harbor, NY; and Ashley River, SC. Two regional plans from Connecticut
are recommended for review; The Town of Chester Dock Management Study
(Roberge and Steadman, 2003) and The Lower Connecticut River Dock Impact
Study (Downes, 2004).

The two case studies that follow were selected because they reflect
plans developed for areas with similar geographic and environmental
aspects, but in which there are differing resources to be
protected---based on differing human values ascribed to those resources.

*Pleasant Bay, Massachusetts---*

Pleasant Bay is an estuary bordering on four towns on Cape Cod. In 1987
the Commonwealth of Massachusetts designated the Bay and some
surrounding uplands as an Area of Critical Environmental Concern. This
designation precluded state issuance of permits for dock construction
until a state-approved Resource Management Plan was in place. Such a
plan was submitted for approval in 2000 (Macfarlane *et al*., 2000).
During the development of the resource management plan for the bay, an
inventory was taken of existing private piers and the potential for
further construction. The planning group developed a matrix designed to
predict the impacts from individual docks and piers---as well as
cumulative impacts---and applied this to 26 geographic subsections
within the bay. Each subsection was rated for susceptibility to impacts.
This resulted in a moratorium on dock construction in some areas and the
establishment of standards for design and construction in others. The
moratoria and standards are implemented in a similar manner by each of
the four bordering towns through parallel local ordinances. Macfarlane
et al. (2000) note that, "By eliminating the lot-by-lot procedures, we
have also eliminated a more subjective approach to the permitting
procedure."

+--------------------------+-------------------------------------------+
| ### Si                   |                                           |
| mplified Version of Matr |                                           |
| ix used in Pleasant Bay  |                                           |
| Resource Management Plan |                                           |
+--------------------------+-------------------------------------------+
| #                        | ### Values Applied                        |
| ## Categories Considered |                                           |
+--------------------------+-------------------------------------------+
| > The nature of water    | > Semi-enclosed or open water body. This  |
| > body                   | > relates to the flushing capacity of the |
|                          | > water body.                             |
+--------------------------+-------------------------------------------+
| > Dock ratio             | > The number of lots with docks compared  |
|                          | > to the number that do not, but where a  |
|                          | > dock could be constructed.              |
+--------------------------+-------------------------------------------+
| > Shellfish habitat      | > Historical, present, and proposed       |
|                          | > propagation areas. Yes = evidence of    |
|                          | > being able to support shellfish, Slight |
|                          | > = supports shellfish but not in         |
|                          | > abundance, No = no evidence for         |
|                          | > supporting or being able to support     |
|                          | > shellfish                               |
+--------------------------+-------------------------------------------+
| > Width of Fringing      | > Width of Fringing marsh.                |
| > marsh                  |                                           |
+--------------------------+-------------------------------------------+

+--------------------------+-------------------------------------------+
| > Abundance of eelgrass  | > Heavy = covered with eelgrass with a    |
|                          | > few bare spots, Medium = eelgrass       |
|                          | > interspersed with bare sediment of      |
|                          | > equal proportions, Light = no eelgrass  |
|                          | > or few sporadic individual plants).     |
+--------------------------+-------------------------------------------+
| > Water depth within 150 | > Deep = greater than 4' at mean low      |
| > feet of shore          | > water, Medium = 3--4' at MLW, Shallow = |
|                          | > less than 3'.                           |
+--------------------------+-------------------------------------------+
| > Moorings within 150    | > Heavy = more than 3 moorings or mapped  |
| > feet                   | > public mooring field, Light = 0--3      |
|                          | > moorings, None = no moorings in area.   |
+--------------------------+-------------------------------------------+
| > Navigation channel     | > Yes or No.                              |
| > within 500 fee         |                                           |
+--------------------------+-------------------------------------------+
| > Recreational use       | > Heavy = heavy use usually from boating  |
|                          | > activity, Medium = some boating or      |
|                          | > other water use, Light = very little    |
|                          | > boating or other water use).            |
+--------------------------+-------------------------------------------+

> **Table 1.** A simplified form of the matrix used to rank subsections
> of Pleasant Bay. From the Pleasant Bay Resource Management Alliance
> (1999).

Numerical values were assigned to each evaluation and then added
together to produce an overall value for each segment of the bay.
Appendix 1 provides a list of the standards docks must meet for
approval. For further details see
www.pleasantbay.org/dockguidelines.pdf.

![](media/image1.png){width="3.0881944444444445in"
height="4.0152777777777775in"}

**Figure 1.** Pleasant Bay, MA Resource Management Plan. Dark areas are
those where new dock construction is prohibited.

The most sensitive areas were identified and made subject to town
ordinances that regulated whether docks could be built and, if so, their
dimensions and/or types of structure. The dark areas in Figure 1
represent the portions of the Bay where new construction is prohibited.

*Marion, Massachusetts---*

The Town of Marion, Massachusetts sought to develop a harbor-wide dock
management plan. Members of the planning group developed a series of
criteria and assigned numerical values to each (Costa and Rockwell,
2004). As is evident, the criteria were heavily weighted to protect
shellfish resource areas.

+-------------------------------------------+--------------------------+
| #                                         |                          |
| ## Marion (MA) Resource Evaluation Matrix |                          |
+-------------------------------------------+--------------------------+
| ### Resource                              | ### S                    |
|                                           | coring Range (in points) |
+-------------------------------------------+--------------------------+
| Eel grass area (as defined by the MA DEP  | 4.0 if present           |
| or Marion Shellfish Department            |                          |
+-------------------------------------------+--------------------------+
| Softshell clam resource area (rated poor, | .0.9 Poor                |
| fair, good, excellent)                    |                          |
|                                           | 1.8 Fair                 |
|                                           |                          |
|                                           | 2.7 Good                 |
|                                           |                          |
|                                           | 3.6 Excellent            |
+-------------------------------------------+--------------------------+
| Hardshell clam (quahog) resource area     | .0.9 Poor                |
| (rated poor, fair, good, excellent)       |                          |
|                                           | 1.8 Fair                 |
|                                           |                          |
|                                           | 2.7 Good                 |
|                                           |                          |
|                                           | 3.6 Excellent            |
+-------------------------------------------+--------------------------+
| Oyster resource area (rated poor, fair,   | .0.8 Poor                |
| good, excellent)                          |                          |
|                                           | 1.6 Fair                 |
|                                           |                          |
|                                           | 2.4 Good                 |
|                                           |                          |
|                                           | 3.3 Excellent            |
+-------------------------------------------+--------------------------+
| Bay scallop resource area                 | 3.1 if present           |
+-------------------------------------------+--------------------------+
| Razor clam resource area                  | 2.7 if present           |
+-------------------------------------------+--------------------------+
| Natural Heritage Endangered Species       | 1.6 points if present    |
| Program Diamond-back Terrapin habitat     |                          |
+-------------------------------------------+--------------------------+

> **Table 2.** Marion (MA) resource evaluation matrix (Costa and
> Rockwell, 2004).

The specific numerical values within the scoring range evolved out of a
discussion among the members of the planning committee based on the
perceived value of which resources were important to the community and
which were most important. The scoring was subjective based on best
professional judgment. (Staff scientists and planners from the Buzzards
Bay National Estuary Program provided technical assistance to this
effort.)

Swimming Beaches (public and semi-public), though not scored, were a
factor in placing final exclusion zones. A 50-foot setback was proposed
from existing docks.

Based on these criteria, several areas were proposed where docks and
piers will be prohibited as part of a shoreline and watersheet Zoning
Overlay District. For further details on the proposal and its status see
www.buzzardsbay.org/dockpiermodel.htm.

![](media/image2.jpeg){width="4.2444444444444445in"
height="5.668055555555555in"}

##### 

##### Figure 2. Draft map of Marion, Massachusetts dock management area. Docks would be prohibited in dark colored areas 

##### (Costa and Rockwell, 2004).

The examples above show that planning processes may differ in their
priorities and means of implementation. However, in each case an
evaluation was made of a discrete geographic area for the
appropriateness of private dock development.

### Bibliography---

> Best, Peter Namvedt. 2002. *Blakely Harbor Cumulative Impact
> Assessment: Working Draft of February 22, 2002.* City of Bainbridge
> Island, Department of Planning and Community Development,
> [www.ci.bainbridge-isl.wa.us](http://www.ci.bainbridge-isl.wa.us/). 27
> Pp.
>
> Coastal Services Center. 2005. *Alternatives for Coastal Development:
> One site, three scenarios.*
> [www.csc.noaa.gov/alternatives/docks.html](http://www.csc.noaa.gov/alternatives/docks.html).
>
> Costa, Joe and John Rockwell. 2004. *A prioritization method for
> protecting aquatic resources using dock and pier regulations and water
> sheet zoning.* A paper presented at the Coastal Society 19^th^
> International Conference. Buzzards Bay National Estuary Program, East
> Wareham, MA 02538.. www.buzzardsbay.org/dockpiermodel.htm
>
> Downes, J.J. Torrance. 2004. *Lower Connecticut River Dock Impact
> Study: Creation of a General Plan*. Connecticut River Estuary Regional
> Planning Agency, Old Saybrook, CT.
>
> Duerksen, Christopher J. and Richard J. Roddewig. 1994. *Takings Law
> in Plain English*. American Resources Information Network. Washington,
> DC 20033.
>
> Macfarlane, S.L., J. Early, T. Henson, T. Balog & A. McClennen. 2000.
> A Resource-based Methodology to Assess Dock and Pier Impacts on
> Pleasant Bay, Massachusetts *J. Shellfish Research.* 19: 455--464.
>
> McElfish, James M., Philip Warburg, and John Pendergrass. 1996.
> *Property: Past, Present, Future.* Research Brief #6. Environmental
> Law Institute.Washington, DC 20036.
>
> McGregor, Gregor. 2003. *Developing a Science-Based Decision Support
> Tool for Small Dock Management. Phase II Management Options.* A
> workshop presentation. McGregor & Associates, Boston, MA 02111.
>
> Pleasant Bay Technical Advisory Committee & Ridley & Associates. 1998.
> *Pleasant Bay Resource Management Plan*. Prepared for the Pleasant Bay
> Steering Committee. Brewster, Chatham, Harwich, and Orleans, MA.
>
> Pleasant Bay Resource Management Alliance. 1999. *Guidelines and
> Performance Standards for Docks and Piers in Pleasant Bay*.
> [www.pleasantbay.org/dockguidelines.pdf](http://www.pleasantbay.org/dockguidelines.pdf)
>
> Roberge, John C. and Geoffrey Steadman. 2004. *Town of Chester Dock
> Management Study: Proposed dock management addendum to the Chester
> Harbor Management Plan.* Prepared for the Chester Harbor Management
> Commission, Chester, Connecticut.
>
> State of South Carolina. 1996. *Docket No. 96-ALJ-07-0305-CC; John P.
> Hall vs. South Carolina Department of Health and Environmental
> Control, Office of Ocean and Coastal Resource Management: Final
> Decision.* www.scalc.net/dhec7/dhec7_3/960305.htm

**Appendix 1:** Standards for docks in Pleasant Bay (MA) Area of
Critical Environmental Concern

+---------------------------+------------------------------------------+
| ### Parameter             | ### Design Criteria                      |
+---------------------------+------------------------------------------+
| Maximum length (pier and  | 80 feet from MHW                         |
| float):                   |                                          |
+---------------------------+------------------------------------------+
| Required water depth at   | 2.5 feet minimum                         |
| MLW                       |                                          |
+---------------------------+------------------------------------------+
| Width                     | 4 feet maximum                           |
+---------------------------+------------------------------------------+
| Height                    | 4 feet maximum above MHW                 |
+---------------------------+------------------------------------------+
| Pile size and spacing     | Not more that 4 x 4 posts spaced a       |
|                           | minimum of 8 feet apart. Stub pipes are  |
|                           | not appropriate below MHW                |
+---------------------------+------------------------------------------+
| Plank spacing             | Minimum of 1' spacing between planks or  |
|                           | alternate decking that achieves same     |
|                           | light penetration                        |
+---------------------------+------------------------------------------+
| Seasonal requirement      | Seasonal use only (6 months/year;        |
|                           | off-season storage plan to be approved.  |
+---------------------------+------------------------------------------+
| Float size                | 300 square foot maximum                  |
+---------------------------+------------------------------------------+
| Float configuration       | "T" preferred                            |
+---------------------------+------------------------------------------+
| Pier location and         | No less than 50 foot setback from        |
| setbacks                  | property boundary. Shared use piers may  |
|                           | be located 50 feet from outermost        |
|                           | property boundary of the contiguous      |
|                           | waterfront properties.                   |
|                           |                                          |
|                           | No closer than 50 feet from existing     |
|                           | eelgrass bed.                            |
|                           |                                          |
|                           | No closer than 50 feet from existing     |
|                           | boating channels or mooring areas.       |
|                           |                                          |
|                           | Adequate distance (*e.g.,* 250 feet)     |
|                           | from nearest pier or boat ramp.          |
+---------------------------+------------------------------------------+
| Pier orientation          | North/South preferred, or perpendicular  |
|                           | to coastal bank.                         |
+---------------------------+------------------------------------------+
| Materials and             | Non-leaching materials preferred.        |
| installation              |                                          |
|                           | Installation to use floating barge or    |
|                           | boat.                                    |
|                           |                                          |
|                           | Design and installation plan must be     |
|                           | approved by a licensed engineer.         |
+---------------------------+------------------------------------------+