Code of Massachusetts Regulations › 310 CMR - DEPARTMENT OF ENVIRONMENTAL PROTECTION › Title 310 CMR 9.00 - WATERWAYS › Section 9.02 - Definitions

Current through Register 1525, July 5, 2024
Abutter
means the owner of land which
				shares, along the water's edge, a common boundary or corner with a project
				site, as well as the owner of land which lies within 50 feet across a water
				body from such site. Ownership shall be determined according to the records of
				the local tax assessors office.
Accessory Use
means a use determined
				to be accessory to a water-dependent use, in accordance with the provisions of
				310 CMR
				9.12(3).
Aggrieved Person
means any person who,
				because of a decision by the Department to grant a license or permit, may
				suffer an injury in fact, which is different either in kind or magnitude, from
				that suffered by the general public and which is within the scope of the public
				interests protected by M.G.L. c. 91 and c. 21A.
Applicant
means any person submitting
				a license or permit application or other request for action by the Department
				pursuant to
				310 CMR
				9.00, and shall include the heirs, assignees, and
				successors in interest to such person.
Approved Municipal Harbor Plan
means
				any Municipal Harbor Plan listed in 310 CMR 9.57(1).
Area of Critical Environmental Concern
				(ACEC)
means an area which has been so designated by the Secretary
				pursuant to
				301 CMR 12.00:
Areas
				of Critical Environmental Concern
.
Base Flood Elevation
means the maximum
				elevation of flood water, including wave heights if any, which will
				theoretically result from the statistical 100-year frequency storm. Said
				elevation shall be determined by reference to the most recently available flood
				profile data prepared for the municipality within which the work is proposed
				under the National Flood Insurance Program, currently administered by FEMA; and
				in accordance with Wetlands Protection Act regulations at
				310 CMR
				10.57:
Land Subject to Flooding
				(Bordering and Isolated Areas).
Beach Nourishment
means the placement
				of clean sediment, of a grain size compatible with existing beach sediment, on
				a beach to increase its width and volume for purposes of storm damage
				prevention, flood control, or public recreation. The seaward edge of the
				nourished beach shall not be confined by any structure.
Berth
means any space wherein a vessel
				is confined by wet slip, dry stack, float, mooring, or other type of docking
				facility.
Boatyard
means a facility whose
				function is the construction, repair, or maintenance of boats, which may
				include boat storage and docking for boatyard services.
Boston Waterfront Decision
means the
				decision of the Massachusetts Supreme Judicial Court in
Boston
				Waterfront Development Corporation vs. Commonwealth
, 378 Mass. 629,
				393 N.E.2d 356 (1979).
Channel
means a navigable route for
				the passage of vessels, established by customary use or under the authority of
				federal, state, or municipal law.
Coastal Atlas
means the volume of maps
				of the coastal zone at a scale of 1:40,000 prepared as part of the CZM Program
				and available for public review at CZM offices.
Coastal Beach
means unconsolidated
				sediment subject to wave, tidal, and coastal storm action which forms the
				gently sloping shore of a body of salt water and including tidal flats. Coastal
				beaches extend from the low water line landward to the dune line, coastal bank
				line or the seaward edge of existing man-made structures, when these structures
				replace one of the above lines, whichever is closest to the ocean.
Coastal Dune
means any natural hill,
				mound or ridge of sediment landward of a coastal beach deposited by wind action
				or storm overwash. Coastal dune also means sediment deposited by artificial
				means and serving the purpose of storm damage prevention or flood
				control.
Coastal High Hazard Area
means an area
				subject to high velocity waters, as defined in accordance with FEMA regulations
				and as designated on a Flood Insurance Rate Map, as issued and as may be
				revised or amended hereafter by FEMA.
Coastal or Shoreline Engineering
				Structure
means any breakwater, bulkhead, groin, jetty, revetment,
				seawall, weir, riprap or any other structure which by its design alters wave,
				tidal, current, ice, or sediment transport processes in order to protect inland
				or upland structures from the effects of such processes.
Coastal Processes
means natural forces
				which can modify coastal lands and waters through the action of wind, waves,
				tides, currents, or ice.
Coastal Zone
means that area subject
				to the CZM Program and defined in
				301 CMR 20.02:
Definitions
.
Combined Application
means an
				application that may serve as a Notice of Intent pursuant to
				310 CMR
				10.00:
Wetlands Protection
, an
				application for a 401 Water Quality Certification pursuant to
				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
, and/or an application for a Chapter 91 license,
				permit or other written approval for a water-dependent use pursuant to
				310 CMR
				9.00. Notwithstanding the foregoing, a Combined
				Application may not serve as an application for an annual permit for a mooring,
				float, raft or small structure accessory to a residence in accordance with
				310 CMR
				9.07, an application for a Chapter 91 license
				for a small structure accessory to a residence in accordance with the
				simplified process set forth in
				310
				CMR 9.10, or the certification submitted as
				an application for a General License in accordance with
				310 CMR
				9.29.
Combined Permit
means a decision
				issued in response to a Combined Application that serves as two or more of the
				following: a Superseding Order of Conditions issued pursuant to
				310 CMR
				10.00:
Wetlands Protection
; a 401
				Water Quality Certification issued pursuant to
				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
; and/or a Chapter 91 permit, license or other written
				approval issued pursuant to
				310 CMR
				9.00.
Commonwealth Tidelands
means tidelands
				held by the Commonwealth, or by its political subdivisions or a quasi-public
				agency or authority, in trust for the benefit of the public; or tidelands held
				by a private person by license or grant of the Commonwealth subject to an
				express or implied condition subsequent that it be used for a public purpose.
				In applying 310 CMR 9.02:
Definitions
:
Commonwealth Tidelands
, the Department shall act in
				accordance with the following provisions:
(a) the Department shall presume that
			 tidelands are Commonwealth tidelands if they lie seaward of the historic low
			 water mark or of a line running 100 rods (1650 feet) seaward of the historic
			 high water mark, whichever is farther landward; such presumption may be
			 overcome only if the Department issues a written determination based upon a
			 final judicial decree concerning the tidelands in question or other conclusive
			 legal documentation establishing that, notwithstanding the
Boston
			 Waterfront
decision of the Supreme Judicial Court, such tidelands are
			 unconditionally free of any proprietary interest in the Commonwealth;
(b) the Department shall presume that
			 tidelands are not Commonwealth tidelands if they lie landward of the historic
			 low water mark or of a line running 100 rods (1650 feet) seaward of the
			 historic high water mark, whichever if farther landward; such presumption may
			 be overcome only upon a showing that such tidelands including, but not limited
			 to, those in certain portions of the Town of Provincetown, are not held by a
			 private person.
Commissioner
means the Commissioner of
				the Department of Environmental Protection (DEP).
CZM
means the Massachusetts Coastal
				Zone Management Office.
CZM Program
means the Massachusetts
				Coastal Zone Management Program established pursuant to M.G.L. c. 21A and
				codified in
				301 CMR 20.00:
Coastal Zone Management Program
.
Date of Receipt
means the date of
				delivery to an office, home or usual place of business by mail or hand
				delivery. The Department will presume that a document is received three
				business days after it is mailed, certified mail return receipt requested, to
				the correct address, unless good cause is shown otherwise.
DCR
means the Department of
				Conservation and Recreation.
Department
means the Department of
				Environmental Protection (DEP).
Designated Port Area (DPA)
means an
				area that has been so designated by CZM in accordance with
				301 CMR
				25.00:
Designation of Port
				Areas
.
Development Site
means the area owned,
				controlled, or proposed for development by the applicant in which a project
				will occur.
DPA Master Plan
means the component of
				an Approved Municipal Harbor Plan pertaining to lands and waters of a DPA
				within the municipality. Such master plan or portion thereof shall take effect
				under
				310 CMR
				9.00 only upon written approval by the Secretary in
				accordance with
				301 CMR 23.00:
Review
				and Approval of Municipal Harbor Plans
and any associated written
				guidelines of CZM and approval by the Department through the adoption of the
				substitute provisions of Approved Municipal Harbor Plans listed in 310 CMR
				9.57.
Dredged Material
means rocks, bottom
				sediment, debris, refuse, plant or animal matter, or other materials which are
				removed by dredging.
Dredged Material Disposal
means the
				discharge of dredged material, the transportation of such material prior to
				discharge, and the dispersion, deposition, assimilation or biological uptake or
				accumulation of such material after transportation or discharge.
Dredging
means the removal of
				materials including, but not limited to, rocks, bottom sediments, debris, sand,
				refuse, plant or animal matter, in any excavating, cleaning, deepening,
				widening or lengthening, either permanently or temporarily, of any flowed
				tidelands, rivers, streams, ponds or other waters of the Commonwealth.
Dredging
shall include: improvement dredging,
				maintenance dredging, excavating and backfilling or other dredging and
				subsequent refilling.
Ecological Restoration Project
means a
				project whose primary purpose is to restore or otherwise improve the natural
				capacity of a Resource Area(s) to protect and sustain the interests identified
				in M.G.L. c. 131, § 40, when such interests have been degraded or
				destroyed by anthropogenic influences.
Ecological Restoration
				Project
shall not include projects specifically intended to
				provide mitigation for the alteration of a Resource Area authorized by a Final
				Order or Variance issued pursuant to
				310 CMR
				10.00:
Wetlands Protection
or a 401
				Water Quality Certification issued pursuant to
				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
.
EIR
means Environmental Impact Report
				as defined in
				301 CMR
				11.00:
MEPA Regulations
.
Environmental Monitor
means the
				semi-monthly publication of proposed actions and projects which require MEPA
				filings with the Secretary pursuant to M.G.L. c. 30, §§ 61 through
				62H.
EOEEA
means the Executive Office of
				Energy and Environmental Affairs.
Facility of Limited Accommodation
means a facility at which goods or services are made available directly
				(
e.g
., in person by customer access to the facility, not
				exclusively by means of mail order, telecommunications or other electronic
				transmission) to the public on a regular basis primarily by appointment or
				enrollment on essentially equal terms to the public at large rather than
				restricted to a relatively limited group of specified individuals. Facilities
				of Limited Accommodation may be either water-dependent, accessory to
				water-dependent, or nonwater-dependent, and shall include but not be limited
				to:
(a) Rehabilitation clinics and
			 medical facilities;
(b) Business or
			 professional offices that serve customers by appointment or enrollment and by
			 customer access to the facility;
(c)
			 Child care centers and elderly or other social service centers, provided that
			 the facility does not interfere with access to public spaces outside of a
			 building; and
(d) Artist and
			 photography studios open to the public by appointment.
Facility of Private Tenancy
means a
				facility at which the advantages of use accrue, on either a transient or a
				permanent basis, to a relatively limited group of specified individuals
				(
e.g.
, members of a private club, owners of a condominium
				building) rather than to the public at large (
e.g.
, patrons of
				a public restaurant, visitors to an aquarium or museum). Such facilities may be
				water-dependent, accessory to water-dependent, or nonwater-dependent, and may
				include but are not limited to:
(a)
			 houses, apartments, condominiums, and other residential units;
(b) business or professional offices that do
			 not rely upon customer access as a significant element of the business or
			 profession;
(c) industrial
			 facilities, including but not limited to manufacturing plants and electric
			 power generating stations;
(d)
			 vehicular ways or parking facilities not open to the public;
(e) open spaces, pedestrian walkways, or
			 outdoor recreation facilities not open to the public; and
(f) marina berths for long-term exclusive
			 use.
Facility of Public Accommodation
means
				a facility at which goods or services are made available directly to the
				transient public on a regular basis, or at which advantages of use are
				otherwise open on essentially equal terms to the public at large
				(
e.g.
, patrons of a public restaurant, visitors to an aquarium
				or museum), rather than restricted to a relatively limited group of specified
				individuals (
e,g,
, members of a private club, owners of a
				condominium building). Facilities of public accommodation may be either
				water-dependent, accessory to water-dependent, or nonwater-dependent, and shall
				include but are not limited to:
(a)
			 public restaurants or entertainment facilities;
(b) theaters, performance halls, art
			 galleries, or other establishments dedicated to public presentation of the fine
			 arts;
(c) hotels, motels, or other
			 lodging facilities of transient occupancy;
(d) educational, historical, or other
			 cultural institutions open to the public;
(e) interior spaces dedicated to the
			 programming of community meetings, informational displays, special recreational
			 events, or other public activities;
(f) sports or physical fitness facilities
			 open to the public;
(g) open spaces,
			 pedestrian walkways, or outdoor recreation facilities open to the
			 public;
(h) retail sales or service
			 facilities;
(i) ferry terminals,
			 transit stations, and other public transportation facilities;
(j) marina berths for transient use;
			 and
(k) vehicular ways open to the
			 public or parking facilities open to the public, including users of facilities
			 of public accommodation.
FEMA
means the Federal Emergency
				Management Agency.
Fill
means any unconsolidated material
				that is confined or expected to remain in place in a waterway, except for:
				material placed by natural processes not caused by the owner or any predecessor
				in interest; material placed on a beach for beach nourishment purposes; and
				dredged material placed below the low water mark for purposes of subaqueous
				disposal.
Filled Tidelands
means former
				submerged lands and tidal flats which are no longer subject to tidal action due
				to the presence of fill.
Final Order
means the order of
				conditions issued pursuant to the Wetlands Protection Act, M.G.L. c. 131,
				§ 40, as the term is defined in
				310 CMR 10.04:
Definitions
.
Fish
means any animal life inhabiting
				waterways or the land beneath them that is utilized for recreational or
				commercial purposes, or that is part of the food chain for such animal
				life.
Flowed Tidelands
means present
				submerged lands and tidal flats which are subject to tidal action.
Great Pond
means any pond which
				contained more than ten acres in its natural state, as calculated based on the
				surface area of lands lying below the natural high water mark. The title to
				land below the natural low water mark is held by the Commonwealth in trust for
				the public, subject to any rights which the applicant demonstrates have been
				granted by the Commonwealth. The Department shall presume that any pond
				presently larger then ten acres is a Great Pond, unless the applicant presents
				topographic, historic, or other information demonstrating that the original
				size of the pond was less than ten acres, prior to any alteration by damming or
				other human activity.
Harbor Line
means any line established
				by the legislature pursuant to M.G.L. c. 91, § 34.
Harbormaster
means the individual
				appointed pursuant to M.G.L. c. 102, § 19, or as otherwise provided by
				law.
High Water Mark
means:
(a) for tidelands, the present mean high tide
			 line, as established by the present arithmetic mean of the water heights
			 observed at high tide over a specific 19-year Metonic Cycle (the National Tidal
			 Datum Epoch), and shall be determined using hydrographic survey data of the
			 National Ocean Survey of the U.S. Department of Commerce; and
(b) for Great Ponds, rivers, and streams, the
			 present arithmetic mean of high water heights observed over a one year period
			 using the best available data as determined by the Department.
Historic High Water Mark
means the
				high water mark which existed prior to human alteration of the shoreline by
				filling, dredging, excavating, impounding, or other means. In areas where there
				is evidence of such alteration by fill, the Department shall presume the
				historic high water mark is the farthest landward former shoreline which can be
				ascertained with reference to topographic or hydrographic surveys, previous
				license plans, and other historic maps or charts, which may be supplemented as
				appropriate by soil logs, photographs, and other documents, written records, or
				information sources of the type on which reasonable persons are accustomed to
				rely in the conduct of serious business affairs. Such presumption may be
				overcome by a clear showing that a seaward migration of such shoreline occurred
				solely as a result of natural accretion not caused by the owner or any
				predecessor in interest. For Great Ponds, the historic high water mark is
				synonymous with the natural high water mark.
Historic Low Water Mark
means the low
				water mark which existed prior to human alteration of the shoreline by filling,
				dredging, excavating, impounding or other means. In areas where there is
				evidence of such alteration by fill, the Department shall make its
				determination of the position of the historic low water mark in the same manner
				as described in
				310
				CMR 9.02:
Definitions
:
Historic High Water Mark
.
Improvement Dredging
means any
				dredging under a license or a permit in an area which has not been previously
				dredged or which extends the original dredged width, depth, length, or
				otherwise alters the original boundaries of a previously dredged area.
Infrastructure Crossing Facility
means
				any infrastructure facility which is a bridge, tunnel, pipeline, aqueduct,
				conduit, cable, or wire, including associated piers, bulkheads, culverts, or
				other vertical support structures, which is located over or under the water and
				which connects existing or new infrastructure facilities located on the
				opposite banks of the waterway. Any structure which is operationally related to
				such crossing facility and requires an adjacent location shall be considered an
				ancillary facility thereto. Such ancillary facilities generally include, but
				are not limited to, power transmission substations, gas meter stations, sewage
				headworks and pumping facilities, toll booths, tunnel ventilation buildings,
				drainage structures, and approaches, ramps, and interchanges which connect
				bridges or tunnels to adjacent highways or railroads.
Infrastructure Facility
means a
				facility which produces, delivers, or otherwise provides electric, gas, water,
				sewage, transportation, or telecommunication services to the public.
Innovative Technology
means technology
				that has not been commercially deployed or is in limited deployment in
				Massachusetts, and includes, but is not limited to, energy technology that
				obtains energy from the ocean, waterway, or conditions associated with the
				ocean or waterway, other forms of renewable energy technology.
Landlocked Tidelands
means any filled
				tidelands which on January 1, 1984 were entirely separated by a public way or
				interconnected public ways from any flowed tidelands, except for that portion
				of such filled tidelands which are presently located:
(a) within 250 feet of the high water mark,
			 or
(b) within any Designated Port
			 Area. Said public way or ways shall also be defined as landlocked tidelands,
			 except for any portion thereof which is presently within 250 feet of the high
			 water mark.
Licensee
means the person to whom a
				license is issued and shall include the heirs, assignees, and successors in
				interest to such person.
Local Economic Development Authority
means a municipal planning board, zoning board, or other board or commission so
				designated by a municipality; community development corporations designated in
				accordance with M.G.L. c. 40H; municipal economic development and industrial
				corporations designated in accordance with M.G.L. c. 121C; municipal housing
				authorities designated in accordance with M.G.L. c. 121B, § 3; municipal
				redevelopment authorities designated in accordance with M.G.L. c. 121B, §
				4; urban development corporations designated in accordance with M.G.L. c. 121A;
				and 40B district planning commissions established under M.G.L. c. 40B,
				including, but not limited to, the Cape Cod Commission, the Martha's Vineyard
				Commission and the Boston Redevelopment Authority.
Low Water Mark
means the present mean
				low tide line, as established by the present arithmetic mean of water heights
				observed at low tide over a specific 19-year Metonic Cycle (the National Tidal
				Datum Epoch), and shall be determined using hydrographic survey data of the
				National Ocean Survey of the U.S. Department of Commerce.
Maintenance Dredging
means dredging in
				accordance with a license or permit in any previously authorized dredged area
				which does not extend the originally dredged depth, width, or length.
Marina
means a berthing area with
				docking facilities under common ownership or control and with berths for ten or
				more vessels, including commercial marinas, boat basins, and yacht clubs. A
				marina may be an independent facility or may be associated with a
				boatyard.
Marine Industrial Park
means a
				multi-use complex on tidelands within a DPA, at which:
(a) the predominant use is for
			 water-dependent industrial purposes; in general, at least b of the park site
			 landward of any project shoreline must be used exclusively for such purposes;
(b) spaces and facilities not
			 dedicated to water-dependent industrial use are available primarily for general
			 industrial purposes; uses that are neither water-dependent nor industrial may
			 occur only in a manner that is incidental to and supportive of the
			 water-dependent industrial uses in the park, and may not include general
			 residential or hotel facilities; and
(c) any commitment of spaces and facilities
			 to uses other than water-dependent industry is governed by a comprehensive park
			 plan, prepared in accordance with M.G.L. c. 30, §§ 61 through 62H, if
			 applicable, and accepted by the Department in a written determination issued
			 pursuant to
			 310
			 CMR 9.14.
MEPA
means the Massachusetts
				Environmental Policy Act, M.G.L. c. 30, §§ 61 through 62H, and
				301 CMR
				11.00:
MEPA Regulations
.
MOU
means a Memorandum of
				Understanding between the Department and another public agency. The draft text
				of any such document or other written interagency agreement shall be published
				in the
Environmental Monitor
for public review and comment,
				and the final text shall be published therein upon adoption and made available
				by the Department upon request.
Municipal Harbor Plan (MHP)
means a
				document (in words, maps, illustrations, and other media of communication)
				setting forth, among other things: a community's objectives, standards, and
				policies for guiding public and private utilization of land and water bodies
				within a defined harbor or other waterway planning area; and an implementation
				program which specifies the legal and institutional arrangements, financial
				strategies, and other measures that will be taken to achieve the desired
				sequence, patterns, and characteristics of development and other human
				activities within the harbor area. Such plan shall take effect under
				310 CMR
				9.00 only upon approval by the Department through the
				adoption of the substitute provisions of Approved Municipal Harbor Plans listed
				in 310 CMR 9.57.
Municipal Official
means the mayor of
				a city, the board of selectmen of a town, or the council of a municipality
				having a manager-council form of government.
Natural High Water Mark
means the
				historic high water mark of a Great Pond.
Natural Low Water Mark
means the
				historic low water mark of a Great Pond.
Net Operating Income
means the rental
				income from a Facility of Limited Accommodation within the licensed structure
				minus its operating expenses and property taxes calculated as an amount per
				square foot for the licensed structure or a comparable value if owner occupied.
				Operating expenses may include expenses for management, legal and accounting
				services, insurance, janitorial and security services, maintenance, supplies,
				and utilities.
Noncommercial Community Docking
				Facility
means a facility for berthing of recreational vessels
				accessory to residential or nonprofit seasonal camp use (
e.g
.,
				summer camps).
Nonprofit Organization
means an
				organization exempt from federal income taxation under § 501(c)(3) of the
				U.S. Internal Revenue Code.
Nonwater-dependent Use
means a use as
				specified in
				310
				CMR 9.12.
Nonwater-dependent Use Project
means a
				project consisting of one or more nonwater-dependent uses, or a mix of
				water-dependent and nonwater-dependent uses, as specified in
				310
				CMR 9.12(1).
Notification Date
means a specified
				date by which a public notice must be published in the newspaper and/or the
Environmental Monitor
, and mailed to municipal officials, and
				on which the public comment period commences.
Ocean Sanctuary
means an ocean area
				wherein certain restrictions on activities apply, as defined in M.G.L. c. 132A,
				§ 13 and
				302 CMR
				5.00:
Ocean Sanctuaries
.
Party
means the applicant, any person
				allowed by the Department to intervene pursuant to M.G.L. c. 30A, § 1, or
				any ten citizens allowed by the Department to intervene pursuant to M.G.L. c.
				30A, § 10A.
Person
means any individual,
				partnership, trust, firm, corporation, association, commission, district,
				department, board, municipality, public or quasi-public agency or
				authority.
Present
means contemporaneous with the
				review of an application, request for determination of applicability, or other
				action by the Department.
Private Recreational Boating Facility
means a facility for berthing of recreational vessels at which all berths and
				accessory uses thereto are not available for patronage by the general public,
				or where exclusive use of any such berth is available on a long-term basis.
				Such berths shall not include a berth reserved for the operator of said
				facility.
Private Tidelands
means tidelands held
				by a private person subject to an easement of the public for the purposes of
				navigation and free fishing and fowling and of passing freely over and through
				the water. In accordance with the Colonial Ordinances of 1641-47, the
				Department shall presume that tidelands are private tidelands if they lie
				landward of the historic low water mark or of a line running 100 rods (1650
				feet) seaward of the historic high water mark, whichever is farther landward;
				such presumption may be overcome upon a showing that such tidelands, including
				but not limited to those in certain portions of the Town of Provincetown, are
				not held by a private person or upon a final judicial decree that such
				tidelands are not subject to said easement of the public.
Project
means any work, action,
				conduct, alteration, change of use, or other activity subject to the
				jurisdiction of the Department under M.G.L. c. 91, in accordance with the
				provisions of
				310 CMR
				9.03 through
				9.05,
				which is the subject of a license or permit application.
Project Shoreline
means the high water
				mark, or the perimeter of any pier, wharf, or other structure supported by
				existing piles or to be replaced pursuant to
				310 CMR
				9.32(1)(a)4., whichever is
				farther seaward.
Project Site
means the area owned,
				controlled, or proposed for development by the applicant in which a project
				will occur and which is subject to the geographic jurisdiction of the
				Department, as specified in
				310 CMR
				9.04.
Public Agency
means any agency,
				department, board, district, commission, or authority of the Commonwealth or
				the United States, or any municipality or other political subdivision of the
				Commonwealth.
Public Recreational Boating Facility
means a facility for berthing of recreational vessels at which all berths and
				accessory uses thereto are available for patronage by the general public on a
				seasonal or transient basis. Such facility may be either publicly or privately
				owned, and may include town piers, commercial rental marinas, or community
				sailing centers or yacht clubs offering open membership to the public. Nothing
				in
				310 CMR
				9.00 shall be construed as prohibiting the adoption of
				minimum eligibility criteria of broad, objective applicability, such as basic
				knowledge of boating safety or a willingness to make regular work commitments;
				nor as prohibiting the reservation of a berth for the operator of said
				facility.
Public Service Project
means a
				project:
(a) whose entire control,
			 development, and operation is undertaken by a public agency for the provision
			 of facilities or services directly to the public (or to another public agency
			 for such provision to the public) by the public agency or its contractor or
			 agent; or
(b) which consists
			 entirely of Infrastructure Facilities, as defined at 310 CMR 9.02.
Public Way
means a road, street, or
				highway for vehicular use open to the public at large and for which a public
				agency is responsible for maintenance and repair.
Resource Area
means any of the areas
				specified in
				310 CMR
				10.25 through
				10.35
				and
				310 CMR
				10.54 through
				10.58. It is used
				synonymously with Area Subject to Protection under M.G.L. c. 131, § 40,
				each one of which is enumerated in
				310 CMR
				10.02(1):
Areas
				Subject to Protection Under M.G.L. c. 131, § 40
.
Restoration Order of Conditions
means
				the General Order of Conditions issued pursuant to
				310 CMR
				10.14:
General Ecological Restoration
				Project Order of Conditions
for a project that meets the eligibility
				criteria set forth in
				310 CMR
				10.13:
Eligibility Criteria for
				General Restoration Order of Conditions
.
Secretary
means the Secretary of the
				Executive Office of Energy and Environmental Affairs.
Shellfish
means the following species:
				Bay Scallop (
Argopecten irradians
); Blue Mussel
				(
Mytilus edulis
); Ocean Quahog (
Arctica
				islandica
); Oyster (
Crassostrea virginica
); Quahog
				(
Mercenaria mercenaria
); Razor Clam (
Ensis
				directus
); Sea Clam (
Spicula solidissima
); Sea
				Scallop (
Placopecten megallanicus
); and Soft Clam (
Mya
				arenaria
).
State Agency
means any agency,
				department, board, district, commission, or authority of the
				Commonwealth.
Structure
means any man-made object
				which is intended to remain in place in, on, over, or under tidelands, Great
				Ponds, or other waterways. Structure shall include, but is not limited to, any
				pier, wharf, dam, seawall, weir, boom, breakwater, bulkhead, riprap, revetment,
				jetty, piles (including mooring piles), line, groin, road, causeway, culvert,
				bridge, building, parking lot, cable, pipe, pipeline, conduit, tunnel, wire, or
				pile-held or other permanently fixed float, barge, vessel or aquaculture gear.
Structure
does not include any mooring, float, or raft
				which has been authorized by annual permit of a harbormaster, in accordance
				with M.G.L. c. 91, § 10A and with
				310 CMR
				9.07; nor any weir, pound net, or fish trap
				which has been authorized in tidewater by permit of the municipal official and
				approved by the Department and the Division of Marine Fisheries, in accordance
				with M.G.L. c. 130, § 29. Any such mooring, float, raft, weir, pound net,
				or fish trap, which has not been so authorized shall be considered a structure
				under
				310 CMR
				9.00.
Substantial Change in Use
means a use
				for a continuous period of at least one year of 10% or more of the surface area
				of the authorized or licensed premises or structures for a purpose unrelated to
				the authorized or licensed use or activity, whether express or implied.
Substantial Structural Alteration
means a change in the dimensions of a principal building or structure which
				increases by more than 10% the height or ground coverage of the building or
				structure specified in the authorization or license, or an increase by more
				than 10% of the surface area of the fill specified in the authorization or
				license.
Superseding Order
means an order of
				conditions issued by the Department pursuant to the Wetlands Protection Act
				M.G.L. c. 131, § 40, as defined in
				310 CMR 10.04:
Definitions
.
Supporting DPA Use
means an industrial
				or commercial use in a Designated Port Area that provides water-dependent
				industrial use in the DPA with direct economic or operational support, to an
				extent that adequately compensates for the reduced amount of tidelands on the
				project site that will be available for water-dependent industrial use during
				the term of the license. The type, location, scale, duration, operation, and
				other relevant aspects of the industrial or commercial use must be compatible
				with activities characteristic of a working waterfront and its backlands, in
				order to preserve in the long run the predominantly industrial character of the
				DPA and its viability for maritime development. In determining whether an
				industrial or commercial use qualifies as a Supporting DPA Use, the Department
				shall act in accordance with the following provisions as well as all applicable
				provisions of a DPA Master Plan.
In the case of commercial uses, any use may be determined to be
				compatible with the DPA except where the inherent nature of the use gives rise
				to conflict with port operations or excessive consumption of port space, either
				directly or indirectly (
e.g.
as a result of collateral
				development activity). Accordingly, new or expanded uses that shall not be
				determined to be a Supporting DPA Use include, but are not limited to,
				transient group quarters such as hotels/motels, nursing homes, and hospitals;
				recreational boating facilities; amusement parks and other major entertainment
				or sports complexes; and new buildings devoted predominantly to office
				use.
Unless otherwise provided in a DPA Master Plan, the amount of
				tidelands occupied by Supporting DPA Uses and any accessory uses thereto shall
				not exceed 25% of the area of the project site (excluding tidelands seaward of
				the project shoreline), so that the remainder of the project site will continue
				to be available exclusively for water-dependent industrial or temporary
				use.
Temporary Use
means warehousing,
				trucking, parking, and other industrial and transportation uses which occupy
				vacant space or facilities in a Designated Port Area, for a maximum term of ten
				years as specified in
				310 CMR
				9.15(1)(d), and without
				significant structural alteration of such space or facilities. Temporary uses
				may be licensed only if marketing efforts have failed to identify any
				prospective water-dependent industrial tenant, and if the license is
				conditioned to require further solicitation of such tenancy upon expiration of
				the license term.
Test Project
means the installation or
				deployment of water dependent Innovative Technology
in situ
for purposes of evaluating its performance and environmental effects.
Tidelands
means present and former
				submerged lands and tidal flats lying between the present or historic high
				water mark, whichever is farther landward, and the seaward limit of state
				jurisdiction. Tidelands include both flowed and filled tidelands, as defined in
				310 CMR 9.02.
Trust Lands
means present and former
				waterways in which the fee simple, any easement, or other proprietary interest
				is held by the Commonwealth in trust for the benefit of the public. All
				geographic areas subject to the jurisdiction of M.G.L. c. 91, as specified in
				310 CMR
				9.04, are generally considered to be trust
				lands.
Upper Floor Accessory Services
means
				utility and access facilities which must be located on the ground floor of any
				building to serve any facility of private tenancy located on any other floors,
				provided that such accessory services do not occupy more than 25% of the
				building footprint. Examples of such services include utility shafts,
				elevators, stairways, and entryways.
Water-dependent Use
means a use as
				specified in these regulations at
				310 CMR
				9.12(2).
Water-dependent Use Project
means a
				project consisting entirely of fill or structures for one or more
				water-dependent or accessory uses as specified in
				310 CMR
				9.12(1).
Water-dependent Use Zone
means an area
				within the geographic jurisdiction of the Department and running landward of
				and parallel to the project shoreline, the width of which is determined in
				accordance with
				310 CMR
				9.51(3)(c). For purposes of
				such determination, the landward lot line of a property shall mean that in
				existence as of the effective date of
				310 CMR
				9.00, unless subsequent reconfiguration thereof
				results in a more landward location at the time of license application; and all
				baselines and distances shall be specified according to accepted land
				regulation and survey practices.
Waterway
means any area of water and
				associated submerged land or tidal flat lying below the high water mark of any
				navigable river or stream, any Great Pond, or any portion of the Atlantic Ocean
				within the Commonwealth, which is subject to
				310 CMR
				9.04.
Wetlands Protection Act
means M.G.L.
				c. 131, § 40 and
				310 CMR
				10.00:
Wetlands
				Protection
.