Code of Massachusetts Regulations › 310 CMR - DEPARTMENT OF ENVIRONMENTAL PROTECTION › Title 310 CMR 9.00 - WATERWAYS › Section 9.53 - Activation of Commonwealth Tidelands for Public Use

Current through Register 1525, July 5, 2024
A nonwater-dependent use project that includes fill or
				structures on Commonwealth tidelands, except in Designated Port Areas, must
				promote public use and enjoyment of such lands to a degree that is fully
				commensurate with the proprietary rights of the Commonwealth therein, and which
				ensures that private advantages of use are not primary but merely incidental to
				the achievement of public purposes. In applying this standard, the Department
				shall take into account any factor affecting the quantity and quality of
				benefits provided to the public, in comparison with detriments to public rights
				associated with facilities of private tenancy, especially those which are
				nonwater-dependent; 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. At a minimum,
				the Department shall act in accordance with 310 CMR 9.53(1) through (4).
(1) The project shall not include fill or
			 structures for nonwater-dependent use of Commonwealth tidelands which the
			 Department determines are necessary to accommodate a public agency which
			 intends to pursue a water-dependent use project on such lands, provided written
			 notice of such agency's intention is submitted to the Department prior to the
			 close of the public comment period on the license application. Such
			 determination shall be based upon a clear showing, within a period of time
			 deemed reasonable by the Department, that the agency's project has met the
			 criteria of
			 310 CMR
			 9.36(5)(a)2. through
			 4.
(2) The project shall attract
			 and maintain substantial public activity on the site on a year-round basis,
			 through the provision of water-related public benefits of a kind and to a
			 degree that is appropriate for the site, given the nature of the project,
			 conditions of the waterbody on which it is located, and other relevant
			 circumstances. In making this determination, the Department shall act in
			 accordance with 310 CMR 9.53(2)(a) through (e):
(a) in the event the project site includes a
			 water-dependent use zone, at least one facility utilizing the shoreline in
			 accordance with the provisions of
			 310 CMR
			 9.52(1)(a)  must also
			 promote water-based public activity; such facilities include, but are not
			 limited to, ferries, cruise ships, water shuttles, public landings and
			 swimming/fishing areas, excursion/ charter/rental docks, and community sailing
			 centers;
(b) the project shall
			 include exterior open spaces for active or passive public recreation, examples
			 of which are parks, plazas, and observation areas; such open spaces shall be
			 located at or near the water to the maximum reasonable extent, unless otherwise
			 deemed appropriate by the Department, and shall include related pedestrian
			 amenities such as lighting and seating facilities, restrooms and trash
			 receptacles, children's play areas, and safety ladders along shoreline
			 walkways, as appropriate; such facilities shall be sized in accordance with 310
			 CMR 9.53(2)(b)1. through 2.:
1. the amount of
			 such space shall be at least equal to the square footage of all Commonwealth
			 tidelands on the project site landward of a project shoreline and not within
			 the footprint of buildings, less any space deemed necessary by the Department
			 to accommodate other water-dependent uses; the Department may also allow a
			 portion of such open space to be devoted to public ways and/or surface parking
			 open to the public, including users of the facility of public accommodation,
			 provided that below grade or structured parking is not a reasonable alternative
			 and that the open space devoted to public vehicular use does not exceed that
			 devoted to public pedestrian use;
2. as provided in
			 310 CMR
			 9.34(2)(b)1., the Department
			 shall waive the requirements of 310 CMR 9.53(2)(b)1., if the project conforms
			 to an Approved Municipal Harbor Plan which, as determined by the Secretary in
			 the approval of said plan and by the Department through the adoption of
			 substitute provisions in said plan, specifies alternative requirements for
			 public outdoor recreation facilities that will establish the project site as a
			 year-round locus of public activity in a comparable and highly effective
			 manner;
(c) the project
			 shall devote interior space to facilities of public accommodation, other than
			 public parking, with special consideration given to facilities that enhance the
			 destination value of the waterfront by serving significant community needs,
			 attracting a broad range of people, or providing innovative amenities for
			 public use; such public interior space shall be located at the ground level of
			 all buildings containing nonwater-dependent facilities of private tenancy,
			 unless the Department determines that an alternative location would more
			 effectively promote public use and enjoyment of the project site or is
			 appropriate to make ground level space available for water-dependent use or
			 upper floor accessory services; the extent of such interior space shall be
			 determined in accordance with 310 CMR 9.53(2)(c)1. through 2.:
1. such space shall be at least equal in
			 amount to the square footage of all Commonwealth tidelands on the project site
			 within the footprint of buildings containing nonwater-dependent facilities of
			 private tenancy;
2. as provided in
			 310 CMR
			 9.34(2)(b)1., the Department
			 shall waive the requirements of
			 310 CMR
			 9.34(2)(c)1., if the project
			 conforms to an Approved Municipal Harbor Plan which, as determined by the
			 Secretary in the approval of said plan, and by the Department through the
			 adoption of substitute provisions in said plan, specifies alternative
			 requirements for interior facilities of public accommodation that will
			 establish the project site as a year-round locus of public activity in a
			 comparable and highly effective manner;
(d) the project shall include a management
			 plan for all on-site facilities offering water-related benefits to the public,
			 to ensure that the quantity and quality of such benefits will be effectively
			 sustained; management elements which may be covered by the plan include, but
			 are not limited to, signage, maintenance, hours and rules of operation,
			 organizational arrangements and responsibilities, pricing, financing, and
			 procedures for resolving use conflicts; if deemed appropriate, the Department
			 may require the applicant to offer to the public, in the form of an easement,
			 an enforceable right of access to or use of a proposed water-dependent facility
			 of public accommodation; and
(e) in
			 the event that water-related public benefits which can reasonably be provided
			 on-site are not appropriate or sufficient, the Department may consider measures
			 funded or otherwise taken by the applicant to provide such benefits elsewhere
			 in the harbor or otherwise in the vicinity of the project site.