Frequently Asked Questions (FAQ)

Question:
Are naturally accreted lands treated similarly to human-filled tidelands under the provisions of the Massachusetts Public Waterfront Act (Chapter 91)?
Answer:
(Caveat: The following response is based on interpretation of state statutes and regulations by staff members of the Urban Harbors Institute of the University of Massachusetts Boston and are presented here to provide general background. We believe that they are substantially correct. However, final interpretation of the statutes and regulations cited are the purview of the Massachusetts Department of Environmental Protection (DEP). Contact the Regional Office of DEP for more detailed explanations and interpretations.)

No. The general rule is that any lands above the high water line created entirely by natural accretion are not subject to Chapter 91. On the other hand, Chapter 91 does have jurisdiction over all “filled” tidelands that are not landlocked in accordance with the following definitions [310 CMR 9.04(2)].

Filled Tidelands are defined are defined as “former submerged lands and tidal flats which are no longer subject to tidal action due to the presence of fill” (310 CMR 9.02).

Fill is defined as “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 …; material placed on a beach for beach nourishment purposes; and dredged material placed below the low water mark for purposes of subaqueous disposal” (310 CMR 9.02).

Landlocked Tidelands are defined as “any filled tidelands … 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 … within 250 feet of the high water mark …” (310 CMR 9.02). DEP does not exert jurisdiction over landlocked tidelands (310 CMR 9.04).

Copies of the regulations pursuant to Chapter 91 may be found at www.mass.gov/dep/brp/ww/files/310cmr09.pdf. Contact the Regional Office of DEP for more detailed explanations.

Question:

What is the landward limit of fill within Nantucket Harbor? What is the extent of Department of Environmental Protection jurisdiction under Chapter 91, The Public Waterfront Act?

Answer:
(Caveat: The following response is based on interpretation of state statutes and regulations by staff members of the Urban Harbors Institute of the University of Massachusetts Boston and are presented here to provide general background. We believe that they are substantially correct. However, final interpretation of the statutes and regulations cited are the purview of the Massachusetts Department of Environmental Protection (DEP). Contact the Regional Office of DEP for more detailed explanations and interpretations.)

The historic high tide line for all of Nantucket and Madaket Harbors is not presently known with precision. The Massachusetts Office of Coastal Zone Management has funded a project to develop “presumptive” historic high tide lines in harbors around the state. (Presumptive lines are those developed with best available information. They may be challenged but can be overcome only with a clear showing that another line better meets the regulatory definition.) That process is underway and preliminary results are expected by the end of 2005.

The limit of jurisdiction exerted by The Department of Environmental Protection’s over filled tidelands under Chapter 91 is the first public way or 250 feet from the current mean high water line—whichever is further landward. Consequently, even if a filled area more than the most landward of the first public way or 250 feet from the present mean high water line was once flooded by the tide, it is considered to be a “landlocked tidelands” and DEP does not exert jurisdiction under Chapter 91.

Copies of the regulations pursuant to Chapter 91 may be found at www.mass.gov/dep/brp/ww/files/310cmr09.pdf . Contact the Regional Office of DEP for more detailed explanations.

Question:
Can the provisions of Chapter 91 override local zoning?

Answer:
(Caveat: The following response is based on interpretation of state statutes and regulations by staff members of the Urban Harbors Institute of the University of Massachusetts Boston and are presented here to provide general background. We believe that they are substantially correct. However, final interpretation of the statutes and regulations cited are the purview of the Massachusetts Department of Environmental Protection (DEP). Contact the Regional Office of DEP for more detailed explanations and interpretations.)

No. Local zoning provisions and Chapter 91 may apply to a proposed project, but the project must comply with both—Chapter 91 has no authority to override local zoning or other by-laws and regulations legally adopted.

In fact, DEP cannot issue a license under Chapter 91 for projects on filled Commonwealth tidelands or private tidelands without certification from the Town that the project is consistent with local zoning. (310 CMR 9.34 (1))

Copies of the regulations pursuant to Chapter 91 may be found at www.mass.gov/dep/brp/ww/files/310cmr09.pdf. Contact the Regional Office of DEP for more detailed explanations.

Question:
What are the differences between a state-approved Municipal Harbor Plan and a locally approved plan? What are the benefits to the Town of Nantucket of each?

Answer:
(Caveat: The following response is based on interpretation of state statutes and regulations by staff members of the Urban Harbors Institute of the University of Massachusetts Boston and are presented here to provide general background. We believe that they are substantially correct. However, final interpretation of the statutes and regulations cited are the purview of the Massachusetts Department of Environmental Protection (DEP). Contact the Regional Office of DEP for more detailed explanations and interpretations.)

A Municipal Harbor Plan is one approved by the Massachusetts Secretary of Environmental Affairs in accordance with state regulations (301 CMR 23.00) and any associated written guidelines provided by the Massachusetts Coastal Zone Management Office (CZM). The process leading to a Municipal Harbor Plan involves developing a scope of work in conjunction with the CZM and meeting the requirements of the regulations mentioned above. It is not uncommon for the Municipal Harbor Planning process to take well over a year from inception to final approval. Initial plans are typically approved for a period of five years. Renewals are often approved for up to ten years. A Municipal Harbor Plan maintains its legal standing only as long as the state approval specifies.

There is no formal, regulatory description of local, harbor plans. These may, therefore, be developed and implemented in a wide variety of ways as decided at the municipal level. Such plans may be adopted through a Board of Selectmen, a Planning Board, or some other administrative entity, or through a Town Meeting vote. The level at which the plan is adopted depends largely on the means of implementation, e.g., a plan that calls for a rezoning of the waterfront will need initial approval by the Planning Board and a subsequent positive vote at a town meeting; a plan that calls for increased monitoring of water quality can be implemented through an administrative action within a town agency.

The Municipal Harbor Plan has its most significant regulatory impacts through its use in project review and licensing by the Massachusetts Department of Environmental Protection (DEP). Through the Public Waterfront Act (or Chapter 91 as it is commonly referred to), the DEP is charged with protecting the public’s rights in tidelands (those areas where the tide rises and falls—and where it historically rose and fell prior to human-placed fill.

A Municipal Harbor Plan offers the benefit of developing harbor-specific guidance for DEP to use in making Chapter 91 decisions. While Municipal Harbor Plans often contain some Chapter 91-related guidance that is generic or conceptual in nature, it is also common to find more detailed stipulations that are specific to individual projects or sites. For example:

There are two general types of guidance that a Municipal Harbor Plan can provide for Chapter 91 decisions.

A Municipal Harbor Plan may address issues that are not specifically mentioned in the Chapter 91 regulations—so long as any requirements in the plan are consistent with state coastal management policies and are complementary in effect with the regulatory principles underlying the Public Waterways Act program.

A Municipal Harbor Plan may also provide guidance for Chapter 91 decisions by addressing standards contained within the Chapter 91 regulations. This may be accomplished in two ways:

A Municipal Harbor Plan can be used to further guide the application of these discretionary standards to meet local interests. This does not mean that a Municipal Harbor Plan may contradict the provisions of Chapter 91 regulations, but it does allow a community to establish guidelines for applying these general standards to specific situations.

Local zoning can address some of these topics, although the Town will have to decide whether it has sufficient authority to establish the standards it deems necessary. Only the state has the authority to protect some public interests in tidelands. Where the Town lacks authority to protect public trust issues, it may attempt to use zoning to reach the same end. However, due to protection of private property rights, this may lead to some form of compensation, or “trade-off” as a means to reach the desired goal.

A significant legal difference exists, however, between the authorities on which Chapter 91 and local zoning are based. Zoning is based on the “police powers”—the protection of public health, welfare, and safety—and all decisions must be justified under these powers. Chapter 91, however, is based on public property rights (certain property rights in tidelands are held in trust by the state for the benefit of the public, even though the land otherwise may be privately owned.) Decisions under Chapter 91, therefore have a wider latitude than merely public health, welfare, and safety.

There is no regulatory language to suggest that a Municipal Harbor Plan will lead to greater availability of state funding for implementation or other harbor-related activities. Experience has not shown any measurable difference between types of plans in the gaining state funds.

There is nothing in state statute or regulation to preclude a town developing both a local harbor plan and a Municipal Harbor Plan.

In determining whether a Municipal Harbor Plan or a local harbor plan is most suitable, the Town needs to determine the issues to be addressed and the steps necessary for their management. If sufficient management options exist at the local level, a Municipal Harbor Plan may not be necessary. If, however, it would be beneficial to use the Chapter 91 process in better managing waterfront issues, a Municipal Harbor Plan may be the ideal vehicle.