Designation of port areas

301 CMR: EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS

301 CMR 25.00: DESIGNATION OF PORT AREAS

Section

25.01: Purpose 25.02: Definitions 25.03: Designation Procedures 25.04: Designation Standards 25.05: DPA Boundary Maps 25.06: Miscellaneous

25.01: Purpose

(1) .00 serves as the primary agency of the Commonwealth for environmental planning, as set forth in M.G.L. c. 21A, §§ 2 and 4; and to implement the Massachusetts Coastal Zone Management Program (CZM Program), established by M.G.L. c. 21A, § 4A for the purpose of securing for the inhabitants of the Commonwealth the objectives and benefits of the Federal Coastal Zone Management Act, 16 USC 1451 et seq. .00 forms part of the CZM Program and shall be interpreted and applied in a manner consistent therewith.

(2) Purpose. .00 sets forth a procedure for establishing and modifying the boundaries of Designated Port Areas (DPAs). Since 1978, the CZM Program has identified DPAs as geographic areas of particular state, regional, and national significance with respect to the promotion of commercial fishing, shipping, and other vessel-related activities associated with water-borne commerce and the promotion of manufacturing, processing, and production activities reliant upon marine transportation or the withdrawal or discharge of large volumes of water. These water-dependent industrial uses vary in scale and intensity but generally share a need for infrastructure with three essential components: a waterway and associated waterfront that has been developed for some form of commercial navigation or other direct utilization of the water, backland space that is conducive in both physical configuration and use character to the siting of industrial facilities and operations, and land-based transportation and public utility services appropriate for general industrial purposes. This special combination of industrial attributes is found in a very limited and diminishing portion of the coastal zone, and particularly few areas are of sufficient contiguous extent to invite concentrations of related businesses and/or large-scale facilities. Because economic, environmental, and social factors now virtually preclude further development of such an intensive nature, what remains of the industrialized coast should be preserved to the maximum extent practicable in order to meet the long-term, cumulative space needs of the water-dependent industries that these areas are so well-suited to accommodate. As a matter of state policy, it is not desirable to allow these scarce and non-renewable resources of the marine economy to be irretrievably committed to, or otherwise significantly impaired by, non-industrial or nonwater-dependent types of development, which enjoy a far greater range of locational options. Accordingly, within DPAs it is the intent of the CZM Program to encourage water-dependent industrial use and to prohibit on tidelands subject to the jurisdiction of M.G.L. c. 91 other uses except for compatible public access and certain industrial, commercial, and transportation activities that can occur on an interim basis without significant detriment to the capacity of DPAs to accommodate water-dependent industrial use in the future. The additional purposes served by .00 are as follows: (a) to carry out overall state growth policy by encouraging further maritime build-out of existing industrialized waterfronts, in order to both minimize incremental detriments to the environment and maximize the effective return on prior expenditures for port infrastructure; (b) to carry out overall state environmental policy by, among other things, providing for the management of land and water resources to assure the protection and balanced utilization of such resources; promoting the best usage of land and water by encouraging and providing for, in cooperation with other appropriate state agencies, planned industrial, commercial, and community development; and assisting other state agencies and regional planning agencies in developing programs and policies relating to land use planning and regulation in the Commonwealth; and

(MA REG. # 1334, Dated 3-10-17)

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(c) to comply with and implement national coastal policy as set forth in the Federal Coastal Zone Management Act of 1972, as amended, by giving priority consideration to coastal-dependent uses and orderly processes for siting major facilities related to national defense, energy, fisheries development, ports and transportation, and to the location, to the maximum extent practicable, of new commercial and industrial developments in or adjacent to areas where such development already exists.

25.02: Definitions

Coastal Zone means that area subject to the CZM Program and defined in 301 CMR 20.03: State Implementation of the Massachusetts Coastal Program and 20.99: Severability.

CZM means the Massachusetts Office of Coastal Zone Management established pursuant to M.G.L. c. 21A, § 4A.

CZM Program means the Massachusetts Coastal Zone Management Program established pursuant to M.G.L. c. 21A and codified in .00: Coastal Zone Management Program.

DEP means the Department of Environmental Protection.

Design Depth means the required project depth, as measured at mean low water, specified in the applicable authorizing documents for a navigation dredging project. In the event multiple construction projects have been carried out in a channel, the design depth shall be the deepest of the required depths specified for the respective projects.

Designated Port Area (DPA) means an area of contiguous lands and waters in the coastal zone that has been so designated in accordance with .00. Copies of official DPA maps and any superseding revisions are available from CZM.

Director means the Director of CZM as provided in M.G.L. c. 21A, § 4A, as amended in St. 1983, c. 589.

EEA means the Executive Office of Energy and Environmental Affairs.

Environmental Monitor means the publication published by the Secretary and further described in 301 CMR 11.15: Public Notice and the Environmental Monitor.

Municipal Official means the mayor of a city, the board of selectmen of a town, or the council of a municipality having a manager-council form of government.

Municipality means any city or town of the Commonwealth of Massachusetts.

Person means any individual, corporation, partnership, trust, association, or other business or non-profit organization, or any state, federal, municipal, or regional governmental, intergovernmental or other entity.

Planning Representative means the person(s) designated by the municipal official to represent the municipality in all proceedings under .00.

Regional Planning Agency means one of the six coastal regional planning organizations established pursuant to statewide enabling legislation that help communities plan and implement short- and long-range improvements for transportation, economic development, environmental, land use, and community development needs.

Requesting Party means any person eligible to request the initiation of a DPA review, as listed in .03(1).

Secretary means the Secretary of the Executive Office of Energy and Environmental Affairs.

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State Agency means any public or quasi-public agency, department, board, district, commission, or authority of the Commonwealth.

Tidelands means present and former submerged lands and tidal flats lying between the present or historic high water mark, whichever is farther landward, and the seaward limit of state jurisdiction. Tidelands include both flowed and filled tidelands as defined in 310 CMR 9.02: Definitions.

Water-dependent Industrial Use means any use found to be such in accordance with 310 CMR 9.12(2)(b).

Waterway means any area of water and associated submerged land or tidal flat lying below the high water mark of any navigable river or stream, any Great Pond, or any portion of the Atlantic Ocean within the Commonwealth, which is subject to 310 CMR 9.04: Geographic Areas Subject to Jurisdiction.

Waterways Regulations means the regulations established by DEP under M.G.L. c. 91, at 310 CMR 9.00: Waterways.

25.03: Designation Procedures

(1) Initiation of Review. CZM shall perodically carry out reviews under .00 to determine whether particular areas of land or water shall be included or remain in an existing DPA, or form a new DPA. Except as provided in .03(2), the Director also may carry out a review upon the written request of: (a) the municipal official or planning board, or the City Council or other municipal body with authority to enact zoning, of the municipality where the area proposed for review is located; (b) any state agency or regional planning agency with planning, regulatory, or development authority over the area proposed for review; (c) the owner(s) of the area proposed for review; or (d) any ten citizens of the Commonwealth. Such written request shall be accompanied by an assessors map and mailing addresses for all persons owning property within the area proposed for review, as shown on the most recent applicable tax list of the assessors, as well as by preliminary documentation prepared in accordance with any content and format instructions provided by CZM, with whom advance consultation is encouraged in order to obtain guidance as to the minimum information submittal necessary for the request to be completed. Within 45 days of receiving a completed request, the Director shall determine in writing whether the request for review has been accepted or declined and shall summarize the reasons for the determination. In the event a request for review is accepted, the Director may require that additional information be provided by the requesting party, in accordance with any written guidelines that may be provided by CZM.

(2) Areas Not Eligible for Review. The following areas shall not be included in any review carried out under .00: (a) any area that has been the subject of a DPA designation decision within the previous five years, except upon a demonstration by a requesting party that substantial and rapid change has occurred in circumstances affecting the suitability of the area to accommodate water-dependent industrial use, as governed by the designation standards set forth in .04; (b) any area within a DPA that consisted primarily of Water-dependent Industrial Use throughout the previous five years; (c) any area within a DPA that is recommended for exclusion from review by the City Council or other municipal body with authority to enact zoning, unless the area is the site of a proposed project that is exempt by law from compliance with zoning or has been granted relief from the use restrictions applicable under zoning; or

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(d) any land area within a DPA that is entirely bounded by existing DPA lands and/or DPA waters, exclusive of existing roads, residential properties, and sensitive wetland resource areas, such as salt marsh, dunes, banks, beaches, etc.

(3) Commentary. As a general rule, CZM intends to apply the foregoing eligibility criteria in the context of groups of parcels that form coherent planning units, rather than to individual project sites or other properties under common ownership or control. DPA-related attributes typically vary across different parcels, such that the combined characteristics of associated parcels in the same general vicinity are not reflected accurately in the characteristics of any single property. For this reason, it is important that geographic areas subject to review be sized and configured in a manner that allows consideration of all relevant factors affecting overall eligibility to accommodate Water-dependent Industrial Use.

(4) Information Gathering Process. CZM shall carry out all DPA reviews in accordance with the following provisions: (a) Notice of the review shall be published in the Environmental Monitor and, on or before the date of such publication, in a local newspaper of general circulation. A copy of the notice shall be sent to all organizations and persons identified in .06(5) and to all property owners identified on any list provided in accordance with .03(1). (b) For a period of 30 days after publication of the notice in the Environmental Monitor, CZM shall accept public comments relative to areas and issues that might be addressed in the review. Within this comment period, a public information meeting shall be convened in the municipality where the area subject to review is located. CZM may extend the public comment period upon the request of any interested person and shall publish notice of any extension in the next available edition of the Environmental Monitor. (c) Upon the close of the public comment period, CZM shall arrange a consultation session involving one or more meetings with the planning representative of any affected municipality and with DEP. As appropriate the Director shall also consult with affected state agencies, the operators of water-dependent industrial facilities in the DPA, and any other organizations or persons with expertise related to the designation standards of .04. The purpose of the consultation session is to obtain further input and assistance in conducting the review. A work plan shall be established that identifies, among other things, the scope of any additional information that needs to be compiled together with an appropriate division of information-gathering responsibility. CZM shall adopt a target schedule for the information-gathering process, which shall not exceed six months except as may be agreed upon by CZM and the planning representative of the affected municipality. If the accuracy or appropriateness of any factual information gathered during the consultation session is disputed by the planning representative of an affected municipality, or a state agency, the Director shall seek to resolve the dispute through appropriate mediation measures. (d) Within 30 days after the close of the consultation session, CZM shall issue a written designation report for public review and comment. The report shall indicate which areas CZM proposes to include and/or exclude from a DPA and shall include a map(s) showing all proposed changes to existing boundaries and/or specifications of new boundaries. The report shall set forth the data and analysis on which the proposed map amendments are based, in accordance with the designation standards set forth in .04.

(5) Public Comment on Designation Report. CZM shall solicit public response to the designation report in accordance with the following provisions: (a) A notice of availability of the report and of the location and date of the public hearing scheduled in accordance with .03(5)(c) shall be published in the next available edition of the Environmental Monitor and, on or before the date of such publication, in a local newspaper of general circulation. A copy of the notice shall be sent to the relevant planning representative(s) and to all the organizations and persons identified in 301 CMR 25.06(5).

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(b) For a period of 30 days after publication of the notice in the Environmental Monitor, CZM shall accept public comments on the designation report. CZM may extend the public comment period upon the request of any interested person, and shall publish notice of any extension in the next available edition of the Environmental Monitor. (c) A public hearing shall be held by CZM prior to the close of the public comment period and within the municipality where the area subject to review is located.

(6) Issuance of Designation Decision and Map Amendment. Within 60 days after the close of the public comment period, the Director shall issue a final written designation decision stating whether the area(s) under review shall be included or remain within a DPA, in accordance with the designation standards set forth at .04. The decision shall include an amended map(s) showing the modified or new boundaries of the DPA, and shall state the reasons for any boundary changes relative to the map previously proposed in the designation report. The Director may qualify, limit, or otherwise condition the designation decision in any manner that serves the purposes of .00, and the decision shall take effect immediately upon the date of issuance. A copy of the decision shall be sent to the relevant planning representative(s), to all public agency representatives with whom consultation occurred, and to any other person on request. Notice of the decision shall be published in the next available edition of the Environmental Monitor and a copy of the notice shall be sent to all organizations and persons identified in .06(5).

25.04: Designation Standards

(1) Designation of Waters. An area of water reviewed under .00 shall be included or remain in a DPA if and only if CZM finds that the area is in substantial conformance with the following criteria governing suitability to accommodate water-dependent industrial use, as appropriate to the harbor in question: (a) the water area must include, or be contiguous with, other DPA waters that include: 1. a navigable entrance or main channel with a design depth of at least 20 feet; and 2. a shoreline that has been substantially developed with piers, wharves, bulkheads, or other structures that establish a functional connection with a land area meeting the criteria set forth in .04(2); and (b) the water area must be of a configuration, size, and location appropriate for the maneuvering or berthing of vessels, the placement of intake/outfall structures, or other activities involving direct utilization of the water; at a minimum, the DPA shall include: 1. all channels (including sloped sides necessary to create actual depth) and mooring and turnaround areas within or serving as access channels to land or water areas meeting the designation standards of .04; and 2. any water area lying between an entrance or main channel and any land or water areas meeting the designation standards of .04, extending channelward from such areas.

(2) Designation of Lands. An area of land reviewed under .00 shall be included or remain in a DPA if and only if CZM finds that the area is in substantial conformance with the following criteria governing suitability to accommodate Water-dependent Industrial Use, as appropriate to the harbor in question: (a) the land area must include, or be contiguous with other DPA lands that include, a shoreline that has been substantially developed with piers, wharves, bulkheads, or other structures that establish a functional connection with a water area meeting the criteria set forth in .04(1); (b) the land area must lie in reasonable proximity to: 1. established road or rail links leading to major trunk or arterial routes; and 2. water and sewer facilities capable of supporting general industrial use; (c) the land area must exhibit a topography that is generally conducive to industrial use, or reasonably capable of becoming so in terms of technology, cost, and other appropriate factors governing engineering feasibility; and (d) the land area must exhibit a use character that is predominately industrial or reasonably capable of becoming so because it does not contain a dense concentration of:

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1. non-industrial buildings that cannot be removed or converted, with relative ease, to industrial use; or 2. residential, commercial, recreational, or other uses that unavoidably would be destabilized if commingled with industrial activity.

(3) Commentary. As a general rule, CZM intends to apply the foregoing suitability criteria in the context of groups of parcels that form coherent planning units, rather than to individual project sites or other properties under common ownership or control. DPA-related attributes typically vary across different parcels, such that the combined characteristics of associated parcels in the same general vicinity are not reflected accurately in the characteristics of any single property. For this reason, it is important that geographic areas subject to review be sized and configured in a manner that allows consideration of all relevant factors affecting overall suitability to accommodate Water-dependent Industrial Use.

25.05: DPA Boundary Maps

(1) Maps. Maps showing DPA boundaries currently in effect are available from CZM.

(2) Boundary Delineation. Except as otherwise deemed appropriate by the Director, DPA boundaries shall coincide to the maximum extent practicable with roadways, property lines, or other physical or legal landmarks that are generally permanent and can be ascertained with relative ease through field observation or inspection of scaled maps available from municipalities or other government sources. Notwithstanding any other provision of .00, CZM may make minor adjustments of an existing DPA boundary to facilitate its identification in relation to such physical or legal landmarks, provided however that such adjustments generally should not result in a net reduction in the total area of the DPA. Unless otherwise specified in a designation decision issued pursuant to 301CMR 25.00, any public or private way serving as the boundary of a DPA shall be included in its entirety.

(3) Boundary Determinations. It is the exclusive responsibility of CZM to formally interpret the DPA boundary maps to determine whether any specific parcel or portion thereof is included in a DPA. Any person who desires a boundary determination shall submit a written request to CZM and shall provide copies of the request to DEP and to such other persons as CZM may require.

25.06: Miscellaneous

(1) Effects of Designation on StateAgency Actions. Inclusion of lands and waters in a Designated Port Area shall have the following effects: (a) in accordance with .00: Coastal Zone Management Program, CZM review of federal activities within or impacting a Designated Port Area shall ensure that such activities are consistent with the purposes of .00, which implement an enforceable policy of the approved CZM Program; (b) in accordance with .00: Coastal Zone Management Program, all appropriate state agencies shall enforce their laws, process regulatory reviews, conduct program activities, disburse funds, construct or supervise the construction of works, or otherwise administer their programs as they relate to DPAs so as to advance the purposes of .00.

(2) Applicability of Designation. A decision under .00 to include a new area of land or water in a DPA shall not apply to a project within such area if, prior to the date the notice of commencement of review was published in the Environmental Monitor: (a) the public comment period on a license or permit application under M.G.L. c. 91 had commenced, in accordance with the notice requirements of 310 CMR 9.13(1): Notice Requirements; and (b) applications were submitted and accepted for all other state and federal approvals required for the project, including but not limited to any federal consistency certification to be obtained from CZM.

(3) Clarification of Designation. Upon the request of any interested person, CZM may issue written clarification of a designation decision or minor map corrections, as necessary to serve the purposes of .00.

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(4) Saturday, Sunday, or Legal Holiday. When the last day for an action under .00 falls on a Saturday, Sunday, or legal holiday, the action shall occur on the next business day. When the last day of the receipt of comments or receipt of documents for publication in the Environmental Monitor falls on a Saturday, Sunday, or legal holiday, CZM shall accept comments or documents on the next succeeding business day.

(5) Distribution of Notice. All public notices prepared in accordance with .03 shall be sent, on or before the date the notice is published in the Environmental Monitor, to the following: (a) the municipal official, the planning board, the conservation commission, the City Council or other municipal body with authority to enact zoning, and the harbormaster, if any, of the municipality where the area subject to review is located; (b) any party requesting a review under .03(1); (c) DEP, Division of Wetlands and Waterways and Regional Director; (d) Department of Conservation and Recreation, Division of Waterways; (e) Massachusetts Port Authority, Maritime Division and Planning and Development Division, as applicable; (f) Department of Transportation; (g) Executive Office of Housing and Economic Development; (h) Regional planning agencies or land use commissions, as applicable; (i) U.S. Army Corps of Engineers, New England Division; (j) any person who had previously submitted written comments in the proceeding or had requested, in writing, notification and provided the address to which notice should be sent; and (k) any other person deemed appropriate by CZM.

(6) Severability. If any provision of .00 or the application thereof is held to be invalid, the holding shall not affect the validity of any other provision of .00.

REGULATORY AUTHORITY

.00: M.G.L. c. 21A, §§ 2 and 4A.