310 CMR, § 9.16

Current through Register 1533, October 25, 2024

Section 9.16 - Fees

(1)Application Fee. An application fee shall be charged in accordance with the accompanying fee schedule (Table 1) per application for a determination of applicability, license, permit, amendment, interim approval, General License Certification or certificate of compliance. An application fee is non-refundable and shall be paid at the time of submission of the original application or Certification, by check or money order made payable to the Commonwealth of Massachusetts, DEP.

(2)Tidewater Displacement Fee. Except as provided in 310 CMR 9.16(4), prior to issuance of a license or General License Certification for any fill or structure that will displace tidewaters below the high water mark, the applicant, or his or her heirs or assignees responsible for such displacement, shall, at the direction of the Department:

(a) pay to the Commonwealth a tidewater displacement fee, based on the net amount of tidewater displaced between the elevations of the high and the low water marks, at the rate set forth in the accompanying fee schedule (Table 1); or

(b) excavate, in some part of the same harbor, previously filled tidelands between the high and low water marks, subject to the requirements of 310 CMR 9.00 and the approval of the Department, in order to form a basin for a quantity of water equal to that displaced; or

(c) improve public harbor facilities in tidelands in any other manner satisfactory to the Department, provided that the cost of such improvement is comparable to the amount otherwise due for displacement; any improvements identified under 310 CMR 9.16 shall be in addition to any actions required under 310 CMR 9.31 through 9.40 and 310 CMR 9.51 through 9.55; the Department may consider the following improvements:

1. a harbor cleanup activity which is part of a plan approved by a public agency;

2. a shellfish reseeding program;

3. a beach nourishment program on beaches open to the public;

4. a contribution to a special fund or other program managed by a public agency or non-profit organization in order to directly provide public harbor improvements.

An applicant for a license for any existing, previously unlicensed fill or structure shall be liable for any unpaid tidewater displacement fee, unless the applicant was not responsible for the construction of the structure or the placement of the fill, and the applicant acquired the real estate upon which the structure was constructed or the fill placed before January 4, 1974.

(3)Occupation Fee. Except as provided in 310 CMR 9.16(4), any person granted a license or Certification for any activity in 310 CMR 9.05 in, on, or over any land the title to which is in the Commonwealth shall compensate the Commonwealth for the rights granted in such lands, in accordance with the following provisions:

(a) except as provided in 310 CMR 9.16(3)(b), the licensee shall pay a fee which shall be:

1.fixed for the term of the license;

2.calculated by the Department in accordance with the accompanying fee schedule (Table 1); and

3.assessed on either a lump sum or annual basis, in accordance with the provisions of 310 CMR 9.16(3)(d).

(b) the licensee shall pay an annual fee based on the full fair market rental value over the term of the license, as determined in accordance with 310 CMR 9.16(3)(c), in the event that the license is issued for:

1.an extended term, in accordance with the provisions of 310 CMR 9.15(1)(b); or

2.long term exclusive assignment of berths in a private recreational boating facility, in accordance with the provisions of 310 CMR 9.38(2)(a)2.

The Department shall presume that land the title to which is in the Commonwealth includes all Commonwealth tidelands and Great Ponds unless the applicant presents evidence of a chain of title indicating that the Commonwealth is not the fee owner of the land in question.

(c)Appraisal Procedure.

1.The determination of fair market value and fair market rental value shall be based on an appraisal of the value of the rights granted in land the title to which is in the Commonwealth and which is occupied in accordance with the license. Such determination shall include an index or other method by which periodic fee adjustments shall be made over the term of the license. The appraisal report shall be prepared at the expense of the applicant by a state-certified appraiser. The appraisal report shall be submitted to the Department after issuance of the Department's written determination to issue a license.

2.Within 45 days of receipt of the appraisal report, the Department shall conduct a review of the appraisal report. Said review appraisal shall be prepared by a state-certified appraiser. If the Department determines that the appraisal report is complete and accurate, the annual license fee shall be established based on the fair market rental value determined by the Department, based on said report. If the Department determines that the appraisal report is incomplete or inaccurate, the Department shall inform the applicant in writing of the deficiencies in the appraisal report. Upon review of the Department's evaluation, the applicant may:

a.submit a new or revised appraisal report to the Department for its review and approval; or

b.notify the Department of disagreement with the Department's review appraisal and provide the reasons therefor. If the Department and the applicant cannot agree within 30 days of said notification, both the Department and the applicant shall within 30 days designate a third, impartial state-certified appraiser. The cost of the third appraiser shall be born equally by the Department and the applicant. The third appraiser shall prepare an appraisal report after reviewing the initial report, the review appraisal and any other information deemed appropriate and shall make a recommendation to the Department as to the fair market value and fair market rental value. The Department shall presume that the values determined in that report are accurate and shall establish the annual license fee based on the fair market rental value determined therein. This presumption may be overcome only if the Commissioner issues written findings based on evidence presented in the appraisal reports before the Department explaining the reasons for disagreement with the recommendations of the third appraisal report.

(d)Payment of fees. Any fee the total amount of which during the term of the license is less than $10,000 shall be assessed as a lump sum payable in full prior to license issuance. Any fee the total amount of which during the term of the license is more than $10,000 may be assessed at the discretion of the applicant as a lump sum payable in full prior to license issuance or as a series of fixed annual payments which shall be required as a condition of the license. The initial payment of such annual fee shall be paid in full prior to the issuance of the license. All such fees shall be paid by certified check or money order made payable to the Commonwealth of Massachusetts, DEP.

(e) Payment of occupation fee for existing fill or structures

1.Any person who is granted a license for existing fill or structures, the fee for which has not been paid, shall pay the fee, if any, in effect at the time the license is granted.

2.Any person who is granted a license or license amendment for a water-dependent use project involving a change in use or structural alteration to existing fill or structures shall pay the occupation fee in effect at the time the license is granted for any portion of the project site for which a lump sum occupation fee has not been previously paid.

3.Any person who is granted a license or license amendment for a nonwater-dependent use project involving a change in use or structural alteration to existing fill or structures shall pay the occupation fee in effect at the time the license is granted for the entire project site; but shall be given credit for any lump sum occupation fee previously paid for the portion of tidelands previously occupied, pro-rated for the remaining term of the license. For purpose of calculating the credit pursuant to 310 CMR 9.16(3)(e), the lump sum occupation fee for any license with an unlimited term shall be pro-rated over a 30-year period from the date said license was issued.

4.Notwithstanding 310 CMR 9.16(3)(e)2., any person who is granted a license or license amendment for a private recreational boating facility with long-term exclusive assignment of berths pursuant to 310 CMR 9.38(2)(a)2. shall pay the fee in accordance with 310 CMR 9.16(3)(e)3.

(4)Exemption from Fees for Certain Projects.

(a)Public Agencies. The fees described in 310 CMR 9.16(2) and 9.16(3) shall not be applicable to a municipality or other public agency undertaking a public service project, provided that said project does not deny access to its services and facilities to any citizen of the Commonwealth in a discriminatory manner.

(b)Non-profit Organizations. The fees described in 310 CMR 9.16(2) and 9.16(3) shall not be applicable to a non-profit organization as defined in 310 CMR 9.02, if:

1.the project is a facility of public accommodation which does not deny access to its services and facilities to any citizen of the Commonwealth in a discriminatory manner;

2.the project is not intended to generate revenues in excess of that needed for construction, operation and maintenance of the uses specified in the license; and

3.said organization has not been created for the purpose of avoiding said fees while sheltering profits in another entity.

(c)Projects Authorized by Permits. The fees described in 310 CMR 9.16(2) and 9.16(3) shall not be applicable to any project authorized by permit.

(d) Recreational boating facilities authorized by the Metropolitan District Commission (MDC). For any recreational boating facility authorized by the MDC, the occupation fees described in 310 CMR 9.16(3) shall be reduced by the amount of any fee paid to the MDC for occupation of a waterway.

(e) Projects licensed under the Simplified Procedures for Small Structures Accessory to Residences pursuant to 310 CMR 9.10 shall be exempted from payment of Tidewater Displacement Fees.

TABLE 1 - FEES

Application Type	Permit Code	Fee Reg Citation (310 CMR 4.00)
Determination of Waterways Applicability	WW04	4.10(8)(d)
General License Certification	WW24	4.10(8)(f)(2)
Test Project Permit	WW25	4.10(8)(f)(3)
Combined Application with Water Quality Certification and/or Notice of Intent	WW26	4.10(8)(1)
Combined Application for Amendment with Water Quality Certification	WW27	4.10(8)(l)(1)
Chapter 91 Waterways License - Water-dependent 1
Water-dependent Residential Project, accessory to a residential use of four units or less	WW01a	4.10(8)(a)
Other Water-dependent Use Projects	WW01b	4.10(8)(a)
Water-dependent License with extended terms	WW01c	4.10(8)(a)
Chapter 91 Simplified License
Water Dependent Use of Small Structures, Accessory to Residence	WW06	4.10(8)(f)
Renewal, Water-dependent Use of Small Structures, Accessory to Residence	WW12	4.10(8)(f)(1)
Chapter 91 Waterways License - Non Water-dependent
Partial Initial Application - Non Water-dependent Residential four units or less	WW14a	4.10(8)(a)(1)
Partial Initial Application - Other Non Waterdependent Use Projects	WW14b	4.10(8)(a)(1)
Partial Initial Application Non Water-dependent Use Project with Extended Terms	WW14c	4.10(8)(a)(1)
Full Initial Application - Non Water-dependent Residential Use, four units or less	WW15a	4.10(8)(a)(2)
Full Initial Application - Other Non Waterdependent Use Projects	WW15b	4.10(8)(a)(2)
Full Initial Application Non W-D Use Project with Extended Terms	WW15c	4.10(8)(a)(2)
Application for License within an Approved Municipal Harbor Plan - Residential Non Waterdependent Project, four units or less	WW16a	4.10(8)(a)(3)
Application for License within an Approved Municipal Harbor Plan, Other Non Waterdependent Projects	WW16b	4.10(8)(a)(3)
Application for License within an Approved Municipal Harbor Plan, Non Water-dependent Use Project with Extended Terms	WW16c	4.10(8)(a)(3)
1 Except for facilities subject to 310 CMR 9.16(3)(b)(2), for which the applicable fees shall be the same as those listed for license with extended terms

Application Type	Permit Code	Fee Reg Citation (310 CMR 4.00)
License Application with joint MEPA application, Residential Non Water-dependent Projects, four units or less	WW17a	4.10(8)(a)(4)
License Application with joint MEPA application, Other Non Water-dependent Projects	WW17b	4.10(8)(a)(4)
License Application Non Water-dependent Use Project with joint MEPA application and extended terms	WW17c	4.10(8)(a)(4)
License or Permit Amendment
Chap 91 Amendment; Residential Water-dependent Use Project, four units or less	WW03a	4.10(8)(c)
Chap 91 Amendment; Other Water-dependent Use Projects	WW03b	4.10(8)(c)
Amendment; Residential Non Water-dependent Use Project, four units or less	WW03c	4.10(8)(c)
Amendment; Other Non Water-dependent Use Projects	WW03d	4.10(8)(c)
Amendment to License with extended terms	WW03e	4.10(8)(c)
Certificate of Compliance
Certificate of Compliance: Water-dependent	WW05a	4.10(8)(e)
Certificate of Compliance: Non Water-dependent	WW05b	4.10(8)(e)
Certificate of Compliance: License with Extended Terms	WW05c	4.10(8)(e)
Tidewater Displacement Fee (per cubic yard)	Rate
Water-dependent Projects	$2.00
Non Water-dependent Projects	$10.00
Licenses with Extended Terms	$10.00
Any Small Scale Project under 310 CMR 9.10	N/A
Occupation Fee2 (per square yard of land held by the Commonwealth)	Rate
Water-dependent Projects	$1.00 x term of license
Non Water-dependent Projects	$2.00 x term of license
Licenses with Extended Terms	Appraisal
Simplified License per 310 CMR 9.10	$1.00 x term of license
2 The fee is calculated by multiplying the dollar rate shown by the length of the license term, in years, and by the area of occupied land held by the Commonwealth. This is a fixed fee for the term of the license and is assessed on a lump sum basis, except as provided in 310 CMR 9.16(3)(d)

310 CMR, § 9.16

Amended, Mass Register Issue 1261, eff. 5/23/2014.

Amended by Mass Register Issue 1483, eff. 11/25/2022.