Code of Massachusetts Regulations › 310 CMR - DEPARTMENT OF ENVIRONMENTAL PROTECTION › Title 310 CMR 9.00 - WATERWAYS › Section 9.35 - Standards to Preserve Water-related Public Rights

Current through Register 1525, July 5, 2024
(1)
General
. The
			 project shall preserve any rights held by the Commonwealth in trust for the
			 public to use tidelands, Great Ponds and other waterways for lawful purposes;
			 and shall preserve any public rights of access that are associated with such
			 use. In applying this standard the Department shall act in accordance with the
			 provisions of 310 CMR 9.35(2) through (6), and shall give particular
			 consideration to applicable guidance specified in an Approved Municipal Harbor
			 Plan, as provided in
			 310 CMR
			 9.34(2)(b)2. Further, in
			 assessing the significance of any interference with public rights pursuant to
			 310 CMR 9.35(2) and(3), the Department shall take into account that the
			 provision of public benefits by certain water-dependent uses may give rise to
			 some unavoidable interference with certain water-related public rights. Such
			 interference may be allowed provided that mitigation is provided to the
			 greatest extent deemed reasonable by the Department, and that the overall
			 public trust in waterways is best served.
(2)
Public Rights Applicable to
			 All Waterways
.
(a)
Navigation
. The project shall not significantly
			 interfere with public rights of navigation which exist in all waterways. Such
			 rights include the right to conduct any activity which entails the movement of
			 a boat, vessel, float, or other watercraft; the right to conduct any activity
			 involving the transport or the loading/unloading of persons or objects to or
			 from any such watercraft; and the natural derivatives thereof.
1. The Department shall find that the
			 standard is not met in the event a project will:
a. extend seaward of any state harbor line,
			 unless said project is specifically authorized by law or, if not so authorized,
			 is a pipeline, conduit or cable which is entirely embedded in the soil and does
			 not in any part occupy or project into such tidewater beyond the harbor line,
			 provided also that the Department may at any time require any pipeline, conduit
			 or cable to be removed or relocated if channel changes or alterations demand
			 the same, as required by M.G.L. c. 91, § 14;
b. extend into or over any existing channel
			 such as to impede free passage;
c.
			 impair any line of sight required for navigation;
d. require the alteration of an established
			 course of vessels;
e. interfere
			 with access to adjoining areas by extending substantially beyond the projection
			 of existing structures adjacent to the site;
f.extend beyond the length required to
			 achieve a safe berthing, where there are no adjacent structures;
g.generate water-borne traffic that would
			 substantially interfere with other water-borne traffic in the area at present,
			 or in the future as may be evidenced by documented projections;
h.alter, due to the building of a solid fill
			 structure, tidal action or other currents so as to interfere with the ability
			 to handle vessels;
i.adversely
			 affect the depth or width of an existing channel; or
j.impair in any other substantial manner the
			 ability of the public to pass freely upon the waterways and to engage in
			 transport or loading/unloading activities.
The Department may require, among other things, warning
				devices and other navigation aids as it deems appropriate to reduce
				interference with navigation.