Public Access to Public Landings?

The Public Trust Doctrine is a legal principle that dates back nearly 2000 years, which holds that the air, the sea and the shore belong not to any one person, but rather to the public at large.

Wonson’s Cove Rocky Neck 

Yesterday my husband, our dog, and I were walking along Wonson’s Cove in the muck of the low tide zone when a woman approached us, at first with a friendly hello. We smiled back and said hello. She immediately became confrontational and informed us that we were trespassing, demanding that we turn around and leave. We politely said that we believed we had the right to walk across the beach especially as we were heading to the Wonson’s public landing. She became livid and said she was going to call the police. I said okay, call the police. She then made some very rude remarks.

I do not wish to inconvenience or offend any property owner however, I had my camera and we were clearly only there to enjoy the great beauty of the cove. We were not littering or damaging the beach in anyway, as a matter of fact, large amounts of trash washes ashore and accumulates at that little beach and I have often come home with armfuls.

What has been your experience in a similar situation?

Below I’ve posted the Public Trust Doctrine of Chapter 91, The Public Waterfront Act, and underlined the information I think is particularly pertinent for photographers and for all lovers of nature. The complete chapter is posted in the Read More section and here is the link to the Mass DEP, or Massachusetts Department of Environmental Protection page that highlights Chapter 91.

Through Chapter 91, the Commonwealth seeks to preserve and protect the rights of the public, and to guarantee that private uses of tidelands and waterways serve a proper public purpose:

Preserves pedestrian access along the water’s edge for fishing, fowling and navigation and, in return for permission to develop non-water dependent projects on Commonwealth tidelands, provides facilities to enhance public use and enjoyment of the water.

Seeks to protect and extend public strolling rights, as well as public navigation rights.

Protects and promotes tidelands as a workplace for commercial fishing, shipping, passenger transportation, boat building and repair, marinas and other activities for which proximity to the water is either essential or highly advantageous.

Protects Areas of Critical Environmental Concern, ocean sanctuaries and other ecologically sensitive areas from unnecessary encroachment by fill and structures.

Protects the rights of waterfront property owners to approach their property from the water.

Encourages the development of city and town harbor plans to dovetail local waterfront land use interests with the Commonwealth’s statewide concerns.

Assures removal or repair of unsafe or hazardous structures.

Read More…

Chapter 91, The Massachusetts Public Waterfront Act

Chapter 91: An Overview and Summary

The Commonwealth’s primary tool for protection and promotion of public use of its tidelands and other waterways is Massachusetts General Law Chapter 91, the waterways licensing program. The Commonwealth formally established the program in 1866, but the philosophy behind Chapter 91 dates back to the earliest days of the Massachusetts Bay Colony, most notably in the Colonial Ordinances of 1641-1647.

The Colonial Ordinances codified the “public trust doctrine,” a legal principle that dates back nearly 2000 years, which holds that the air, the sea and the shore belong not to any one person, but rather to the public at large.

The oldest program of its kind in the nation, Chapter 91 regulates activities on both coastal and inland waterways, including construction, dredging and filling in tidelands, great ponds and certain rivers and streams.

Through Chapter 91, the Commonwealth seeks to preserve and protect the rights of the public, and to guarantee that private uses of tidelands and waterways serve a proper public purpose. While other agencies, including the Department of Environmental Management, Massachusetts Coastal Zone Management and the Division of Fisheries and Wildlife, play a role in preserving public rights in public trust lands, the Waterways Regulation Program, the section of MassDEP that oversees Chapter 91, is the primary division charged with implementing the “public trust doctrine.” Specifically, the MassDEP Waterways Regulation Program:

Preserves pedestrian access along the water’s edge for fishing, fowling and navigation and, in return for permission to develop non-water dependent projects on Commonwealth tidelands, provides facilities to enhance public use and enjoyment of the water.

Seeks to protect and extend public strolling rights, as well as public navigation rights.

Protects and promotes tidelands as a workplace for commercial fishing, shipping, passenger transportation, boat building and repair, marinas and other activities for which proximity to the water is either essential or highly advantageous.

Protects Areas of Critical Environmental Concern, ocean sanctuaries and other ecologically sensitive areas from unnecessary encroachment by fill and structures.

Protects the rights of waterfront property owners to approach their property from the water.

Encourages the development of city and town harbor plans to dovetail local waterfront land use interests with the Commonwealth’s statewide concerns.

Assures removal or repair of unsafe or hazardous structures.

More than ever, the presence of a program like Chapter 91 is vital, especially because many of the fastest growing regions of the state, such as the North Shore, South Shore and Cape Cod and the Islands, are coastal areas. In these coastal areas, Chapter 91 regulations serve to protect traditional maritime industries, such as fishing and shipping, from displacement by commercial or residential development.

Geographical Jurisdiction

Chapter 91 comprises four basic areas of geographical jurisdiction. Any activity that takes place in one of the hot link areas listed below requires Chapter 91 authorization. The areas are:

Flowed Tidelands – Any project located in, on, over or under tidal waters seaward of the present mean high water (MHW) shoreline. Jurisdiction in this case extends seaward three miles, to the state limit of territorial jurisdiction.

Filled Tidelands – The limit on filled tidelands is: A.) Outside Designated Port Areas, the first public way or 250 feet from mean high water, whichever is farther landward and B.) Inside Designated Port Areas, the historic MHW shoreline (i.e., all filled areas).

Great Ponds – Any project located in, on, over or under the water of a great pond. A great pond is defined as any pond or lake that contained more than 10 acres in its natural state. Ponds or lakes presently larger than 10 acres are presumed to be great ponds, unless the applicant provides unequivocal evidence to the contrary. Ponds 10 or more acres in their natural state, but which are now smaller, are still considered great ponds.

Non-Tidal Rivers and Streams – Projects located in, on, over, or under any non-tidal, navigable river or stream on which public funds have been expended either upstream or downstream within the river basin, except for any portions not normally navigable during any season by any vessel. Additionally, the Connecticut River, the Merrimack River and portions of the Westfield River are within jurisdiction.

Activities Requiring Authorization

There are five basic types of activities subject to Chapter 91 authorization. These include both new and existing unauthorized activities, and are as follows:

Structures – Placement or construction of any structure, regardless of size, whether permanent or seasonal. Examples of typical structures include, but are not limited to: piers, wharves, dams, seawalls, weirs, booms, breakwaters, bulkheads, ripraps, revetments, jetties, piles, lines, groins, roads, culverts, bridges, buildings, parking lots, cables, pipes, conduits, tunnels, wires, floats, etc.

Filling – Placement of any unconsolidated materials that is confined or expected to remain in place in a waterway, except for material placed by natural processes. Such placement includes material placed for the purposes of shoreline protection, beach nourishment, or subaqueous disposal of dredged spoils.

Dredging – Removal of materials, including but not limited to rocks, bottom sediments, debris, sand, refuse, plant or animal matter, in any excavating, cleaning, deepening, widening, or lengthening of any waters in the Commonwealth. The Department must also know the location where the removed material will be disposed.

Change in Use – Any use of the authorized premises or structures for a purpose unrelated to the authorized use, whether express or implied. An example of such a change in use would be the conversion of a commercial fishing establishment to an office building.

Structural Alteration – Any change in the dimensions of a structure or fill from the specifications contained in the existing authorization.

Demolition/Removal of Structures – Approval is required for removal of any unauthorized structure or fill that was previously not authorized or for which there is not a current and valid grant or license.

Activities Not Requiring Authorization

Placements of structures or fill in non-tidal rivers and streams that do not reduce the space available for navigation do not require Chapter 91 authorization, in accordance with 310 CMR 9.05(3)(g). However, even though the following activities do not require Chapter 91 licensing, applicants must notify the Department of their intent to perform such projects before undertaking them. The Department will in turn provide written notification as to whether or not a Chapter 91 License authorization is required. Examples of these exemptions include:

Overhead cables, wires or conduits constructed and maintained in accordance with the National Electrical Safety Code;

Fish ladders, fishways and other devices that allow or assist fish to pass a dam or other obstruction in the waterway;

Pipelines, cables, conduits, sewers and aqueducts entirely embedded in the soil beneath such river or stream; and

Bulkheads, revetments, headwalls, storm drainage outfalls and similar structures that do not extend into such river or stream, except as may be necessary for bank stabilization.

Types of Authorization

The four types of Chapter 91 licenses are:

MassDEP Waterways License – All activities subject to the jurisdiction of Chapter 91 require a standard Waterways license unless they are eligible for one of the other three authorizations listed below.

MassDEP Waterways Permit – Activities not involving work on structures or fill may apply for a MassDEP Waterways Permit. These activities include beach nourishment, dredging, disposal involving subaqueous placement or unconsolidated materials, burning of rubbish or other material upon the water, and lowering the water level of any great pond except for purposes described in 310 CMR 9.15(2)(e).

License or Permit Amendment – Applicants may apply to amend a valid waterways license or permit, issued pursuant to the 1999 regulations, for the following reasons:

To renew a license of permit term in accordance with the provisions of 310 CMR 9.25(2);

To delineate a reconfiguration zone within a marina in accordance with 310 CMR 9.39(1)(b); and

To authorize a structural alteration or change in use that is not exempt pursuant to 310 CMR 9.05(3).

Harbormaster Annual Permit – Pursuant to Section 10A of Chapter 91 statutes and 310 CMR 9.07 of the Waterways Regulation, the placement on a temporary basis of moorings, floats, rafts held by bottom anchor and associated ramps may be authorized by an annual permit from the local Harbormaster. No other Chapter 91 authorization is required for so long as the Harbormaster permit remains valid. This provision only applies to bottom-anchored moorings, floats or rafts. No piles may be placed without proper Chapter 91 authorization from the Department of Environmental Protection’s Waterways Regulation Program.

Determinations and How They Work

When an applicant seeks authorization through Chapter 91, the Department makes a decision as to whether the applicant’s project or use is water-dependent or nonwater-dependent. In general, water-dependent uses are those that require direct access to or location in tidal or inland waters. Examples of uses include piers, wharves, marinas, boathouses, shoreline protection, jetties, revetments, seawalls, ripraps and floats. Nonwater-dependent uses are those which may be located on waterfront property, but do not rely on their close proximity to the water. Examples of uses include retail and commercial outlets, hotels, offices, restaurants, gas stations and residences. The Chapter 91 Waterways Regulations encourage the use of the waterfront for water-dependent uses, such as recreational boating, commercial fishing, lobstering and shipping commerce. Water-dependent projects are therefore presumed to have a proper public purpose. Nonwater-dependent projects, on the other hand, are not presumed to serve a proper public purpose. The Chapter 91 regulations require that nonwater-dependent projects must provide greater benefits than detriments to the public’s rights in waterways. As such, Waterways Regulation Program staff members work closely with developers and applicants to ensure such rights for the public. Waterfront lands are divided into two general classifications within the Chapter 91 regulations. Private tidelands are generally those areas landward of mean low water, which are owned by private parties. In Commonwealth tidelands, which generally are areas seaward of mean low water and which are owned by the Commonwealth, the public retains all rights. The amount of public benefits an applicant must provide varies depending on whether the project in question is situated on Private tidelands or Commonwealth tidelands. In addition to the preservation of fishing, fowling and navigation, examples of other public benefits obtained through the Chapter 91 licensing process include:

Strolling rights in intertidal areas
Pedestrian and waterfront walkways
Dinghy docks
Public boat landings
Public Restrooms
Public Meeting Rooms
Transient dockage
Public water transportation facilities and services
Creation of parkland
Boat ramps
Piers and floats for public recreational boarding facilities
Fishing piers
Public sailing programs
Interpretive Display
Interior Facilities of Public Accommodation in private buildings, such as restaurants, museums and retail stores

Navigating the Process

The following is a general description of the Chapter 91 application process. Please contact the Waterways Regulation Program for more specific procedural requirements.

Licensing Procedures for Water-Dependent Use and Nonwater-Dependent Use Projects:

Pre-Application Meeting - Prior to filing an application, the project proponent is welcome to meet with MassDEP Waterways Regulation Program staff to review the project in relation to the nonwater-dependent use project requirements specified in sections 9.51-9.55 of the current Chapter 91 Waterways Regulations.

ENF Filing - Prior to filing an application for a Chapter 91 license for a nonwater-dependent use project, the proponent must file an Environmental Notification Form (ENF) with the Massachusetts Environmental Policy Act (MEPA) Unit. If the project exceeds the MEPA thresholds set forth in 301 CMR 11, a copy of the ENF Certificate must be included with the Chapter 91 application. Additionally, if an EIR (Environmental Impact Report) is required, certification of said report must be obtained before MassDEP may publish public notice of a Chapter 91 application.

Chapter 91 Application Filed - Upon receipt of a license application, the Waterways Regulation Program performs a preliminary review to determine its accuracy and completeness. All applications must be completed in conformance with the directions contained in the Permit Application Package, available upon request. If an application is not complete, the applicant or his/her representative will be contacted or the application will be returned in its entirety. If an application is determined to be complete, a file number will be assigned.

Determining Water Dependency - Once an application is assigned to a reviewer, the Waterways Regulation Program will classify the project as either water-dependent or nonwater-dependent. In general, nonwater-dependent projects are those that do not require direct access to or location in tidal or inland waters, and therefore could be located away from said waters.

Public Notice - Following determination of water-dependency, the Waterways Regulation Program sends a notice of license or permit application to the applicant or his/her representative for publication and distribution to property abutters and to certain municipal, state, and federal officials or agencies. At that time, the Waterways Regulation Program will also request any other information necessary for completion of the application. The applicant is required, at his/her own expense, to publish the notice in one or more newspapers that have general circulation in the area affected by the project. Publication of the notice begins a 30 day public comment period (15 calendar days for permit applications) during which the Waterways Regulation Program will accept written comment from any person.

Public Hearing - In the case of nonwater-dependent projects, the Department will hold a public hearing within the city or town where the project is located. The applicant is generally expected to provide the following information at the hearing: project description, location of the project, location of the historic mean high and low water marks on the site, description of existing waterways authorization that may exist for the site, and an explanation of how the project meets the nonwater-dependent requirements specified in sections 9.51-9.55 of the Chapter 91 Waterways Regulations.

Written Determination - For nonwater-dependent projects and for water-dependent projects MassDEP intends to deny, the Department will issue a written determination of its intent to issue or deny a license, including the reasons for such a decision after review of the information provided at the public hearing. (Water-dependent projects do not require preparation of a written determination, but rather proceed directly to license issuance if no adverse public comment is received, or to a draft license if adverse comment is received.) If the Department has decided to issue a license, the written determination will also include the conditions under which the Department would license the project. In order to license a project in tidelands, the Department must make three findings.

These findings, specified in Chapter 91, Section 18 are: that the structures or fill serve a proper public purpose; that the purpose provides greater public benefit than public detriment to the rights of the public in tidelands; and that the determination is consistent with the policies of the Massachusetts Coastal Zone Management (MCZM) Program.

Appeal Period - Following the issuance of the Written Determination, there is a 21-day appeal period. Appeals are processed by the Department’s Office of Administrative Appeals and may involve a hearing before an Administrative Law Judge. In the case of water-dependent applications for which no adverse public comment was received, the appeal period follows the issuance of the final license.

File Completion - Upon expiration of the public comment period, the Waterways Regulation Program awaits receipt of any outstanding information required to complete the application. In addition, the Waterways Regulation Program will request written response from the applicant to written comments received during the comment period. Upon receipt of this information, the file will be deemed administratively complete and the final regulatory and technical review process begins. During technical review, the Waterways Regulation Program reviews the project to ensure conformance with the standards governing all projects in 310 CMR 9.31-9.50.

License Issuance and Fee Payment - If the Department decides to issue a license, the applicant is notified in writing of any required fees. In general, these fees are for the displacement of tidewater and occupation of Commonwealth tidelands (310 CMR 9.14). Once payment is made, the license will be issued.

Recording of License - The license and accompanying plan must be recorded at the Registry of Deeds, within the chain of title of the affected property, within 60 days of issuance. The licensee must notify the Waterways Regulation Program upon recording the license, identifying the Registry of Deeds, date of recording and book and page number. The license document must be recorded prior to the commencement of work. Failure to record the license within 60 days of license issuance renders the license void.

Certificate of Compliance - Within 60 days of completion of any licensed project, the Licensee must request in writing that the Department issues a certificate of compliance. The request must be accompanied by a certification by a registered professional engineer that the project was completed according to the plans, specifications and conditions of the license. The Department may conduct a site inspection at any time to determine compliance prior or subsequent to issuing a certificate of compliance. Failure to request a certificate of compliance may result in revocation of the subject license. Note: A certificate of compliance is not required for any license issued for existing structures and activities (unless modifications to those structures are required).

About Kim Smith

Currently creating documentary films about the Monarch Butterfly, Black Swallowtail Butterfly, and Gloucester's Feast of St. Joseph. Landscape designer for the Gloucester Harbor Walk Gardens. Designer, lecturer, author, illustrator, photographer. Visit my blog for more information about my landscape and interior design firm- kimsmithdesigns.wordpress.com. Good Morning Gloucester daily contributor. Author/illustrator "Oh Garden of Fresh Possibilities! Notes from a Gloucester Garden"
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15 Responses to Public Access to Public Landings?

  1. Daniel D says:

    Does this even pertain to people that own waterfront property? Do they have the rights to thier property to mean low tide?

    Or ponds like Niles pond that is less than 10 acres, and almost all the land to the water edge is private property… where does this fit in with it?

    Just a heads up for those ignorant people that just want to hear themselves sound smart by being overbearing and rude, I am stating upfront this is a legit question, I honestly don’t know and would like to know more without having to decipher the above.

    Thanks!
    Dan

  2. Shannon says:

    Thank you so much for posting this. I can’t say that I had time to read through the entire doc carefully, but I see it does talk about reserving the right of strolling in intertidal areas. Here’s my question: I see that if you walk out to the side of Good Harbor Beach where the houses are there’s a sign that says “No Trespassing.” This has confused me, because I thought in Massachusetts citizens had a right to walk the shore. Can you explain the situation at Good Harbor (and any shoreline where residents seek to limit others’ access)?

    • I am not a legal expert by any means and believe that this topic is debated often enough in the courts. But if you read Chapter 91, especially the part I have underlined, the general public is allowed to walk the beach, in front of private property, if they are fishing, fowling, navigating, and strolling. Upon further reading, I have learned that activities like windsurfing and surfing are considered “navigating,” and bird watching comes under the category of “fowling.” There are several interpretations of Chapter 91 available to read on the internet, however, these are interpretations–interpretations are subject to discussion and debate.

  3. Bill Burr says:

    So can I walk along a beach ?

    • Marty Luster says:

      As I understand the law, “yes,” in the area between the mean high and low tides, even if the abutting owner owns to the low water mark (possible in Ma and Maine). However, you do not have the right to access the beach through private property without the owner’s consent, so you will need to find some public access to enjoy your stroll.

  4. Glad to hear the Chapter 91 stuff. Thank you for sharing that. Sorry to hear about your enounter, that’s depressing. I enjoy the photographs that you share here with us, thank you : – )

  5. ~ WOW ~ People have SO little to do. How shocked you must have been when this trouble maker, trouble starter confronted you so rudely! My MO is and always will be “LIVE AND LET LIVE”. Honestly what harm were you doing… I have often run into “THESE” people through out the years and have not had an outlet (til now) ! Sorry you had to deal this this IGNORANT woman while out enjoying YOUR day.

  6. Pirate says:

    Thanks for your time and energy with this! This watchdog is probably an inlander snob, unacquainted with hundred-year old traditions.
    I think we all need legal, easily understandable clarity as to where we may stroll, although I do accept the privacy for property owners during the summer months when so many people are on the beaches. Perhaps it would also be sensible for strollers with dogs (i.e. Good Harbor Beach in the Fall) to respect “private beach property”.

  7. E.J. says:

    I’m glad you were able to get such a gorgeous photo before being so rudely (especially considering its the dead of winter) chased off Wonson’s Cove.

  8. Thank you E.J. , but that photo was from an earlier series. Yes, I agree, dead of winter–so absurd!!

    We actually were not chased off the beach because Tom and I ignored her and kept walking. No police showed up. I frankly think the Gloucester Police Department has more pressing problems to deal with.

    I am sorry I missed you last night at Fred Bodin’s Valentine party–I was, for once, early to an event! The few minutes I was there it looked great and I hope you had a super time!!

  9. I have a been a resident of Rocky Neck for over 10 years. I often walk Wonson Cove at low tide and higher tides as well. I have been rudely approached, while walking on the mudflats, by a long time resident there and told to leave her property. This same woman yelled at my 10 year old grandson and a buddy who were crabbing on the mud flats. There is another long time resident on Rackliffe street who has placed a no trespassing sign and a large obstruction at the end of Rackliffe St where it turns into a cement pad and stone path that leads into Wonson Cove, though this entrance point would neither bring pedestrians through their lawn nor invade their privacy. What I don’t understand is how a human being who is afforded the extreme luxury of living in such a magnificently beautiful place would not want others to enjoy it. How could one not be inspired to share it, to encourage the public’s use of a vast open space such as this. It is obviously walked by those who love and notice nature, it’s not like people are drinking or littering or defacing or destroying these mud flats. They are, after all, mud flats. They are cleansed with the tide, they are accessable only half of the time, nothing permanent can be done to harm them, that I can see anyhow. What harm is there in sharing? I don’t understand

    • “What I don’t understand is how a human being who is afforded the extreme luxury of living in such a magnificently beautiful place would not want others to enjoy it….”–so beautifully stated Brenda! I am so sad that has happened to you and especially to your grandson!!! Am trying to think of the best solution to this problem and think the next time I go for walk on the mudflats, I will just completely ignore her. She did not respond to politeness and I don’t plan to get in a shouting match, however I am not going to be intimidated. Perhaps if we collectively ignore her, she will give up and grow up! Also, there is a printable pdf brochure of Chapter 91. Perhaps I should copy it and mail it to her.

      I am so curious about that obstruction and no trespassing sign and will go have look at it on my next walk in the neighborhood.

      Thank you so much for writing Brenda.

    • ‘There is another long time resident on Rackliffe street’ – um that would be me. Brenda sure seems to know a lot about my business, having never spoken me about this, ever. I’ve lived on Rocky Neck for 40+ years not 10. Iguess you could say I grew up here! Unfortunately Brenda has chosen to believe the first lie she hears, than observe the truth for her self.

      On your next visit to this end of Rackliffe Street, Brenda, you’ll observe a sign in the yard of the people who bought Kenny McCurdy’s house on the corner of Freemont and Rackliffe – it says ‘Dead End – Private Way‘. That sign has been posted there for as far back as I can remember, and it means that the laws that apply to private ways, apply to the end of Rackliffe Street. At the end of Rackliffe Street, the pavement ends, and abuts a grassy area. The other side of the grassy area abuts the ramp. That grassy area is backfilled behind a seawall that was built by the previous owners of the private property down here in 1924.

      Our sign simply says ‘private’ – because it is. The ramp Brenda mentions was installed by my Father, and I’m so glad that she has found it so useful. Brenda is also wrong about her assumptions about people’s behaviors – people get a few drinks in them down at the end of the Neck, and all of the sudden my front yard is a great place to have a romantic interlude. No harm you say? Tell it to my four year old when he finds beer bottle filled with piss, or a used condom or tampon in the grass. Or tell it to my dog who got crushed by a drunk driver while sleeping in the grass just past the end of the street.

      As for the ‘obstructions’ – really Brenda? A bench for people to sit on is an obstruction? Or is it the flower pots that hold cosmos? Or maybe the large beam that floated in that I pulled to the top of the ramp? They actually serve a dual purpose – but the main purpose is for the folks who get so hammered at the end of Rocky Neck and come flying down Rackliffe Street at 60mph. It’s to tell them, “Hey, there’s no road here”, but a few still manage to miss the point and end up in the water.

      You present yourself as so enlightened Brenda, so I don’t understand how you could form these opinions and come to these conclusions about me without EVER speaking to ME about this, yet you’ll call me out in public on it. Seems pretty judgmental for somebody who runs around doling out magnetic hearts and preaching the virtues of love all over town. There’s a hell of a lot more to this story Brenda, as I’m sure you are already aware. I know where you get your information and maybe you should consider that it might be one-sided before leveling accusations against your neighbors. Don’t they teach you this stuff in your Buddhist retreats?

  10. Lisa says:

    This makes me want to go over there and walk on the beach …..just to get her feathers all twisted up!

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