310 CMR, § 9.35 - Standards to Preserve Water-related Public Rights

(1) General. The project shall preserve any rights held by the Commonwealth in trust for the public to use tidelands, Great Ponds and other waterways for lawful purposes; and shall preserve any public rights of access that are associated with such use. In applying this standard the Department shall act in accordance with the provisions of 310 CMR 9.35(2) through (6), 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. Further, in assessing the significance of any interference with public rights pursuant to 310 CMR 9.35(2) and(3), the Department shall take into account that the provision of public benefits by certain water-dependent uses may give rise to some unavoidable interference with certain water-related public rights. Such interference may be allowed provided that mitigation is provided to the greatest extent deemed reasonable by the Department, and that the overall public trust in waterways is best served.

(2) Public Rights Applicable to All Waterways.

(a) Navigation. The project shall not significantly interfere with public rights of navigation which exist in all waterways. Such rights include the right to conduct any activity which entails the movement of a boat, vessel, float, or other watercraft; the right to conduct any activity involving the transport or the loading/unloading of persons or objects to or from any such watercraft; and the natural derivatives thereof.

1. The Department shall find that the standard is not met in the event a project will:

a. extend seaward of any state harbor line, unless said project is specifically authorized by law or, if not so authorized, is a pipeline, conduit or cable which is entirely embedded in the soil and does not in any part occupy or project into such tidewater beyond the harbor line, provided also that the Department may at any time require any pipeline, conduit or cable to be removed or relocated if channel changes or alterations demand the same, as required by M.G.L. c. 91, § 14;

b. extend into or over any existing channel such as to impede free passage;

c. impair any line of sight required for navigation;

d. require the alteration of an established course of vessels;

e. interfere with access to adjoining areas by extending substantially beyond the projection of existing structures adjacent to the site;

f.extend beyond the length required to achieve a safe berthing, where there are no adjacent structures;

g.generate water-borne traffic that would substantially interfere with other water-borne traffic in the area at present, or in the future as may be evidenced by documented projections;

h.alter, due to the building of a solid fill structure, tidal action or other currents so as to interfere with the ability to handle vessels;

i.adversely affect the depth or width of an existing channel; or

j.impair in any other substantial manner the ability of the public to pass freely upon the waterways and to engage in transport or loading/unloading activities.

The Department may require, among other things, warning devices and other navigation aids as it deems appropriate to reduce interference with navigation.

2.In the event that reducing the length of a structure to avoid significant interference with navigation would create adverse effects on the environment due to dredging, the Department may license or permit a longer structure provided its construction will entail less dredging without producing substantial interference with navigation.

3.In the event the project is located within a Designated Port Area, the Department may authorize fill, structures, or dredging that significantly interferes with navigation by recreational vessels or with shellfishing areas, provided that such activities are for water-dependent-industrial use and that all feasible measures will be taken to mitigate such interference.

(b) Free Passage Over and Through Water. The project shall not significantly interfere with public rights of free passage over and through the water, which exist in all waterways. Such rights include the right to float on, swim in, or otherwise move freely within the water column without touching the bottom, and, in Commonwealth Tidelands and Great Ponds, to walk on the bottom.

(c) Access to Town Landings. The project shall not significantly interfere with public rights associated with a common landing, public easement, or other historic legal form of public access from the land to the water that may exist on or adjacent to the project site.

(3) Public Rights Applicable to Tidelands and Great Ponds

(a) Fishing and Fowling. The project shall not significantly interfere with public rights of fishing and fowling which exist in tidelands and Great Ponds. Such rights include the right to seek or take any fish, shellfish, fowl, or floating marine plants, by any legal means, from a vessel or on foot; the right to protect habitat and nutrient source areas in order to have fish, fowl, or marine plants available to be sought and taken; and the natural derivatives thereof. The Department shall find that the standard is not met in the event the project:

1.poses a substantial obstacle to the public's ability to fish or fowl in waterway areas adjacent to the project site; or

2.results in the elimination of a traditional fishing or fowling location used extensively by the public.

(b) On-foot Passage. The project shall not significantly interfere with public rights to walk or otherwise pass freely on private tidelands for purposes of fishing, fowling, navigation, and the natural derivatives thereof; and on Commonwealth tidelands and Great Ponds for said purposes and all other lawful activities, including swimming, strolling, and other recreational activities. The Department shall find that the standard is not met if the project does not comply with the following conditions governing public pedestrian access:

1.if the project site includes flowed private tidelands, the project shall allow continuous, on-foot, lateral passage by the public in the exercise of its rights therein, wherever feasible; any pier, wharf, groin, jetty, or other structure on such tidelands shall be designed to minimize interference with such passage, either by maintaining at least a five-foot clearance above the ground along the high water mark or by providing a stairway for the public to pass laterally over such structures; where obstruction of continuous access below the high water mark is unavoidable, the project shall provide alternate lateral passage to the public above said mark in order to mitigate interference with the public right of passage on flowed private tidelands;

2.if the project site includes filled tidelands or Great Ponds, the project shall include reasonable measures to provide on-foot passage on such lands for the public in the exercise of its rights therein, in accordance with the following provisions:

a.if the project is a nonwater-dependent use project, said project shall provide public pedestrian access facilities in accordance with the applicable provisions of 310 CMR 9.52 or, for infrastructure facilities, of 310 CMR 9.55;

b.if the project is a water-dependent use project on filled Commonwealth tidelands, said project shall provide for public passage thereon by such means as are consistent with the need to avoid undue interference with the water-dependent uses in question; measures which may be appropriate in this regard include, but are not limited to, allowing the public to pass laterally along portions of the project shoreline, or transversely across the site to a point on the project shoreline.

(4) Compensation for Interference with Public Rights in Commonwealth Tidelands and Great Ponds. Any water-dependent use project which includes fill or structures for private use of Commonwealth tidelands or Great Ponds shall provide compensation to the public for interfering with its broad rights to use such lands for any lawful purpose. Such compensation shall be commensurate with the extent of interference caused, and shall take the form of measures deemed appropriate by the Department to promote public use and enjoyment of the water, at a location on or near the project site if feasible. If the project includes a private recreational boating facility, the Department shall apply this standard in accordance with the following provisions:

(a) for any private recreational boating facility, reasonable arrangements shall be made to accommodate public pedestrian access along or to the water's edge; generally, unless other measures are determined to be more appropriate by the Department, such access shall be provided by establishing, as a condition of the license, a lateral accessway at or near the high water mark wherein the public may pass freely across the seaward end of the property from dawn to dusk;

(b) if the private recreational boating facility is a marina, additional arrangements shall be made to provide water-related benefits to the public commensurate with the scale of such facility; examples of such benefits include construction of a public boat launching ramp, operation of an ongoing program of community sailing or boating instruction, dedication of a substantial number of berths to public transient use, and provision of public pedestrian facilities beyond those required elsewhere in 310 CMR 9.00.

Nothing in the above provision shall be construed to prevent the licensee from restricting public access to slips, floats, ramps, and other docking facilities where security for recreational vessels is required.

(5) Management of Areas Accessible to the Public. Any project that includes tidelands or Great Ponds accessible to the public, in accordance with any of 310 CMR 9.35(1) through (4), shall provide for long-term management of such areas which achieves effective public use and enjoyment while minimizing conflict with other legitimate interests, including the protection of private property and natural resources. In applying this standard, the Department shall act in accordance with the following provisions.

(a) No limitation on hours of availability or scope of allowed activity, or other substantial restriction, may be placed on said public access except as expressly authorized in the license; reasonable rules and regulations governing public use of such areas may be adopted by the licensee, and may be subject to review and approval by the Department, or its designee, if so provided in the license.

(b) Any project required to provide public access facilities in accordance with 310 CMR 9.35(3)(b)2. or (4)(b), or any other project as deemed appropriate by the Department, shall encourage public patronage of such facilities by placing and maintaining adequate signage at all entryways and at other appropriate locations on the project site; said signage shall:

1.conform to all local laws and regulations and any design guidelines that may be specified by the Department or its designee; and

2.include at least one sign, in a prominent location, which advises the public of its access rights; discloses whatever access-related rules and regulations are in effect, including restrictions on hours of operation, if any; and discloses the license number of the project and a location on the site where a copy of the license may be inspected by the public.

(c) No gates, fences, or other structures may be placed on any areas open to public access in a manner that would impede or discourage the free flow of pedestrian movement thereon; and all pedestrian exterior open spaces shall be open to the public 24 hours a day, unless otherwise authorized in writing by the Department.

(d) The Department may include conditions in a license which restrict public pedestrian access in order to protect public health, safety, or the environment, and shall specify such additional access-related requirements as are deemed appropriate to offset any significant loss of benefits to the public which may be associated with such restrictions.

(6) Limitation on Liability. If a project includes measures to accommodate public pedestrian access in accordance with any provision of 310 CMR 9.35, the licensee shall be considered to be a private landowner who opens land to public recreational use without a fee and who is therefore not liable, pursuant to M.G.L. c. 21, § 17C, for injuries to persons or property due to public use, unless the owner's conduct is willful or reckless.

Notes

310 CMR, § 9.35

Amended, Mass Register Issue 1261, eff. 5/23/2014. Amended by Mass Register Issue 1334, eff. 3/10/2017. Amended by Mass Register Issue 1483, eff. 11/25/2022.