Section 9.36 - Standards to Protect Water-dependent Uses(1)General. The project shall preserve the availability and suitability of tidelands, Great Ponds, and other waterways that are in use for water-dependent purposes, or which are reserved primarily as locations for maritime industry or other specific types of water-dependent use. In applying this standard the Department shall act in accordance with 310 CMR 9.36(2) through (5), 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.(2)Private Access to Littoral or Riparian Property. The project shall not significantly interfere with littoral or riparian property owners' right to approach their property from a waterway, and to approach the waterway from said property, as provided in M.G.L. c. 91, § 17. In evaluating whether such interference is caused by a proposed structure, the Department may consider the proximity of the structure to abutting littoral or riparian property and the density of existing structures. In the case of a proposed structure which extends perpendicular to the shore, the Department shall require its placement at least 25 feet away from such abutting property lines, where feasible.(3) The project shall not significantly disrupt any water-dependent use in operation, as of the date of license application, at an off-site location within the proximate vicinity of the project site. The project shall include such mitigation and/or compensation measures as the Department deems appropriate to avoid such disruption.(4) The project shall not displace any water-dependent use that has occurred on the site within five years prior to the date of license application, except upon a clear showing by the applicant that said use:(a) did not take place on a reasonably continuous basis, for a substantial period of time; or (b) has been or will be discontinued at the site by the user, for reasons unrelated to the proposed project or as a result of voluntary arrangements with the applicant. Absent the above showings, the project shall include arrangements determined to be reasonable by the Department for the water-dependent use to be continued at its existing facility, or at a facility at an alternative location having physical attributes, including proximity to the water, and associated business conditions which equal or surpass those of the original facility and as may be identified in an Approved Municipal Harbor Plan, if any. Permanent relocation to an off-site facility may occur in order to accommodate a public service project for which relocation arrangements are governed by law, or if the Department determines that it is not appropriate for the water-dependent use to continue on the site. Otherwise, only temporary relocation may occur as necessary for project construction.
(5) The project shall not include fill or structures for nonwater-dependent or water-dependent, non-industrial uses which preempt water-dependent-industrial use within a Designated Port Area (DPA). In applying this standard the Department shall act in accordance with the following provisions:(a) such fill or structures shall not occupy tidelands which the Department determines are necessary to accommodate a competing party who intends to develop such tidelands for water-dependent industrial use, provided written notice of such party'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 competing project would promote water-dependent-industrial use of the DPA to a greater degree than the proposed project, and that the competing party:1. is a state or local government agency, or is a maritime business or other organization with the expertise, experience, and financial ability to implement the competing project;2. has prepared detailed development plans for the competing project, including appropriate feasibility studies;3. has tendered an offer to purchase title or other rights to the tidelands in question, at fair market value for water-dependent-industrial use; and4. has proposed waterways license conditions or other arrangements which will restrict the tidelands in question to the uses contained in the competing projects for a period of time deemed appropriate by the Department;(b) reasonable arrangements shall be made to prevent commitments of space or facilities that would significantly discourage present or future water-dependent-industrial activity on the project site or elsewhere in the DPA; such arrangements shall include, but are not limited to, the following: 1. in general, no structures shall be built or altered which cannot be subsequently removed or converted to water-dependent-industrial use with relative ease; otherwise, the Department may impose, as a condition of the license, a requirement for removal or restoration of such structures upon expiration of the license;2. nonwater-dependent uses shall not be located in any spaces or facilities with attributes that are necessary to maintain the utility of the project site for prospective water-dependent-industrial use, especially that for which it is among the most suitable in the harbor in question; at a minimum, such nonwater-dependent uses shall not occur in new structures within the water-dependent use zone;3. within a marine industrial park, conditions governing the duration of tenancy or other mechanisms must be established to ensure that nonwater-dependent activity occurs in a manner that preserves adequate flexibility over time for the park to accommodate water-dependent-industrial uses; at a minimum, reasonable steps shall be taken to assign a priority for said uses to occupy spaces or facilities as they become available in the future;4. in the case of supporting DPA use, conditions governing the nature and extent of operational or economic support must be established to ensure that such support will be effectively provided to water-dependent-industrial uses.Amended, Mass Register Issue 1261, eff. 5/23/2014.Amended by Mass Register Issue 1483, eff. 11/25/2022.