310 Mass. Reg. 9.32

Current through Register 1520, April 26, 2024

Section 9.32 - Categorical Restrictions on Fill and Structures

(1) The Department has determined that in certain situations fill or structures categorically do not meet the statutory tests for approval under M.G.L. c. 91 or are otherwise not in keeping with the purposes of 310 CMR 9.00. Accordingly, a project shall be eligible for a license only if it is restricted to fill or structures which accommodate the uses specified below, within the geographic areas specified in 310 CMR 9.32(1)(a) through (e).

(a)Tidelands (Outside of ACECs and DPAs).

1. fill or structures for any use on previously filled tidelands;

2. fill or structures for water-dependent use located below the high water mark, provided that, in the case of proposed fill, reasonable measures are taken to minimize the amount of fill, including substitution of pile-supported or floating structures and relocation of the use to a position above the high water mark;

3. structures to accommodate public pedestrian access on flowed tidelands, provided that it is not reasonable to locate such structures above the high water mark or within the footprint of existing pile-supported structures or pile fields;

4. pile-supported structures located below the high water mark for nonwater-dependent uses which replace or modify existing, previously authorized wharves, piers, pile fields, or other filled or pile-supported structures, in accordance with the provisions of 310 CMR 9.51(3)(a) and (b);

5. new fill located below the high water mark for accessory or nonwater-dependent use provided that:

a. the purpose of such fill is to eliminate irregularities in previously altered portions of the project shoreline; and

b. such fill will replace previously authorized fill elsewhere along the project shoreline, on a 1:1 square foot basis and without seaward projection beyond the adjacent shoreline;

6. stationary vessels located below the high water mark and proposed for conversion to accessory use or to nonwater-dependent facilities of public accommodation, provided that such vessels:

a. do not consist of platform-like floating structures, such as barges, built or modified to serve primarily as support for new buildings; and

b. will be licensed for a limited term, in accordance with the provisions of 310 CMR 9.15(1)(d)2.

7. fill or structures located below the high water mark for wind turbine facilities found to be non-water dependent, pursuant to 310 CMR 9.12(2)(e), in accordance with the mitigation and/or compensation measures for non-water dependent infrastructure facilities required by 310 CMR 9.55.

(b)Tidelands Within Designated Port Areas (DPAs).

1. fill or structures for any water dependent industrial use, and accessory uses thereto, provided that:

a. in the case of proposed fill, neither pile supported nor floating structures are a reasonable alternative; and

b. in the case of parking, where the use cannot reasonably be located above the high water mark, and is not located within a water dependent use zone; and

c. when parking is limited to persons employed by or doing business with the water-dependent industrial use over flowed tidelands;

2. fill or structures for recreational boating facilities of nine slips or less under the conditions specified in a DPA Master Plan;

3. Supporting DPA Uses, as defined at 310 CMR 9.02, shall not exceed 25% of the area of the project site, excluding tidelands seaward of the project shoreline.

4. Supporting DPA Uses on pile-supported structures over flowed tidelands may be allowed only through a DPA Master Plan or a Marine Industrial Park Master Plan, provided that said plan is based on a clear showing that the use meets the following requirements and is appropriate for the harbor in question:

a. no Supporting Use structure may be allowed in the Water-dependent Use Zone;

b. no Supporting Use parking shall be allowed on pile-supported structures over flowed tidelands;

c. non Water-dependent Supporting Use structure meet the standards of 310 CMR 9.51(3)(b) through (e); and

d. Supporting Use structures shall otherwise be appropriately sized and located, in accordance with 310 CMR 9.36(5)(b).

5. The Department shall waive the numerical standard for Supporting DPA Uses as defined at 310 CMR 9.02, if the project conforms to a DPA Master Plan or Marine Industrial Park Master Plan which specifies alternative site coverage ratios and other requirements which ensure that:

a. said Supporting Uses are relatively condensed in footprint and compatible with existing water-dependent industrial uses on said pier;

b. said Supporting Use locations shall preserve and maintain the site's utility for existing and prospective water-dependent industrial uses;

c. parking associated with a Supporting Use is limited to the footprint of existing licensed fill and is not located within a Water-dependent Use Zone; and

d. The use of tidelands for this purpose in a DPA shall also be governed by the provisions of 310 CMR 9.15(1)(d)1. and 310 CMR 9.36(5).

6. maintenance of existing, previously-authorized recreational boating facilities;

7. recreational berths authorized in connection with a Boatyard in accordance with 310 CMR 9.39(2)(b), or as included in an approved Designated Port Area Master Plan pursuant to 301 CMR 23.05(2)(e)5.;

8. structures to accommodate public pedestrian access, provided that such structures are located above the high water mark or within the footprint of existing pile supported structures or pile fields, wherever feasible;

9. structures on filled tidelands to accommodate the following uses on a limited basis:

a. a use to be licensed in combination with water dependent industrial uses within a marine industrial park, as defined in 310 CMR 9.02; or

b. a temporary use, as defined in 310 CMR 9.02.

The use of filled tidelands in a DPA for the above purposes shall also be governed by the provisions of 310 CMR 9.15(1)(d)1. and 9.36(5).

(c)Great Ponds.

1. fill or structures for any use on previously filled lands below the natural high water mark;

2. structures for water-dependent use on submerged lands below the natural high water mark, provided such structures are designed to avoid unnecessary encroachment in the water;

3. fill or structures on submerged lands above the natural high water mark, for uses listed for flowed tidelands in 310 CMR 9.32(1)(a).

(d)Non-tidal Rivers and Streams (Outside ACECs). Fill or structures for uses below the high water mark, as listed for flowed tidelands in 310 CMR 9.32(1)(a).

(e)Areas of Critical Environmental Concern (ACECs).

1. fill or structures for any use on previously filled tidelands;

2. structures to accommodate public pedestrian access on flowed tidelands, provided that it is not feasible to locate such structures above the high water mark or within the footprint of existing pile-supported structures or pile fields;

3. fill or structures to accommodate an Ecological Restoration Project, subject to approval under 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, 310 CMR 10.00: Wetlands Protection, and 310 CMR 40.000: Massachusetts Contingency Plan if applicable, provided that any fill or dredged material used in an Ecological Restoration Project may not contain a chemical above the RCS-1 concentration, as defined in 310 CMR 40.000: Massachusetts Contingency Plan;

4. publicly-owned structures for other water-dependent use below the high water mark, provided that such structures are designed to minimize encroachment in the water;

5. privately-owned structures for other water-dependent use below the high water mark, provided that:

a. the proposed use is not industrial and is located within the footprint of existing previously authorized pile-supported structures, unless an insignificant deviation from said footprint is authorized by the Department in order to protect public health, safety, or the environment; or

b. such structures are necessary to accommodate infrastructure facilities, provided that such structures are designed to minimize encroachment in the water; or

c. such structures were existing on October 4, 1990 or the effective date of the ACEC designation, whichever is later, and if a resource management plan for the ACEC has been adopted by the municipality and approved by the Secretary said structures are consistent with said plan; or

d. such structures, if built or substantially altered after October 4, 1990 or the effective date of the ACEC designation, whichever is later, are consistent with a resource management plan adopted by the municipality and approved by the Secretary.

(2) Notwithstanding the provisions of 310 CMR 9.32(1), the Department may license fill or structures necessary for the following uses, provided that reasonable measures are taken to avoid, minimize, and mitigate any encroachment in a waterway:

(a) shoreline stabilization or the rehabilitation of an existing shore protection structure, irrespective of the uses proposed landward of such fill or structures;

(b) installation of drainage, ventilation, or utility structures, or placement of minor and incidental fill, necessary to accommodate any replacement, reconstruction or other modification to existing public roadways or existing railroad track and/or rail bed;

(c) improvement or rehabilitation of existing public roadways or existing railroad track and/or rail bed, provided that any net encroachment with respect to public roadways is limited to widening by less than a single lane, adding shoulders, and upgrading substandard intersections; or

(d) except as may be provided in 310 CMR 9.32(1)(b)1., accessory uses, other than parking, which are clearly subordinate and incidental to a water-dependent use, provided that:

1. the fill or structures in question are not located in an ACEC, and do not result in any encroachment in the waterway beyond the area occupied by the water-dependent use itself; and

2. the accessory use cannot reasonably be located above the high water mark, and is not located within a water-dependent use zone.