WATERWAY LICENSES: on the 25th anniversary of the Treasure Island Marina license

Henry Lane, Attorney 
Lane & Hamer, PC
Whitinsville, MA

On the 25^th anniversary of the issuance of Webster Lake's most controversial waterways license, a little review is warranted. Much of the law relating to the use of water bodies in Massachusetts dates back to an era when rivers were the major source of energy to power local industry and harbors were a critical feature in the transportation infrastructure.

Lakes and ponds had economic value in colonial times for their fish and for ice harvesting purposes but later became primarily important as water power reservoirs.  Since lakes and ponds did not have major economic importance, laws relating to the use of waterways were largely focused on coastal harbors and major rivers with great ponds a bit of an afterthought. As a result, there was a functional regulatory vacuum with respect to small docks and piers on local water bodies, including Webster Lake.  But as time went on and recreational use of lakes became more intense, more attention was paid to the still limited statutory provisions relating to docks and piers.

The first and simplest provision in M.G.L. c. 91 § 10A, relates to "temporary floats and rafts" and authorizes a local harbormaster to grant permits for anchoring such seasonal structures.  As previously noted, the use of the term "harbormaster" presupposes a level of activity generally not associated with private structures used for docking small craft for recreational purposes.  Nevertheless, the limited authority which in towns like Webster resides in the Board of Selectmen, has been used to grant annual permits for structures in Webster Lake.

In addition to the temporary permits that may be granted by the harbormaster, M.G.L. c. 91 § 13 provides for a multi-year waterways license for more permanent structures such as wharfs, piers and walls in great ponds. By regulation, licenses for private docks on residential lakefront property are available under a special simplified procedure.  The license is issued by the Department of Environmental Protection and requires a bit more formality with respect to the application and also provides some standards with respect to setbacks from abutting property lines and interference with navigation.

The statutory authority expressly provides that the D.E.P. license and jurisdiction extends to the waters of any great pond below the natural high water mark which always raises the interesting question of who has the authority to regulate Webster Lake to the extent that it exists beyond its natural boundaries.  Anecdotal evidence suggests that Webster Lakes' current elevation is approximately five (5) feet above its historic natural elevation as a result of damming improvements made to enhance its capacity as a reservoir for powering Cranston Print Works.  Assuming a five (5) foot difference in elevation, the current edge of the water line may extend 20 to 30 feet horizontally beyond the natural high water mark depending on the slope of the land under the water in any particular location.  If the horizontal extent of the high water mark is currently 20 or 30 feet beyond the natural high water mark, it would appear that D.E.P. does not have statutory jurisdiction to license piers or wharfs that are constructed on that land.  However, despite the apparent lack of statutory authority, the Department of Environmental Protection through regulations, assumes that authority although it has conceded by regulation that it can only charge "occupation" fees for licensed docks to the extent that they are located below the natural high water mark of a great pond.

Twenty-five years ago, the D.E.P. issued a Waterways License for the Treasure Island Marina. The staff of the Department of Environmental Protection initially issued a waterways license for the marina consisting of 81 aluminum floating docks with capacity for 136 boat slips in a "secluded area" of the lake.  The Board of Selectmen took a firm stand against the construction of the marina and appealed from the grant of the license. Any person who is "aggrieved" by a decision to issue or deny a waterway license is entitled to appeal for an adjudicatory hearing to the Commissioner of the Department of Environmental Protection.    The hearing is much like a trial although slightly less formal and is typically conducted by a hearing officer appointed by the Commissioner.  The Commissioner must then review the evidence produced at the adjudicatory hearing and issue a ruling which is then subject to further review in the courts.

Among the more interesting findings by the Commissioner of the Department of Environmental Protection in 1987,  was that prior to the Treasure Island Marina application, there were less than five (5) licensed piers or docks on Webster Lake, that there was no harbormaster and that no temporary mooring permits had been issued.  A casual observation would suggest that prior to Treasure Island's application, there were significantly more than five (5) piers or docks on the lake but apparently none were constructed with the benefit of a license or permit. Nevertheless, the Town argued that the lake was already crowded with boats during the summer months and that additional boats would result in a public safety hazard.

However, after hearing all the evidence the Commissioner decided that the public benefit from providing better access to the lake outweighed any potential hazard resulting from increased traffic and the grant of the license was affirmed.  Now looking back 25 years, it appears that despite the concern expressed by the municipality 25 years ago, the construction of the Treasure Island Marina has not resulted in any of the anticipated concerns and may actually be contributing to public safety by providing the Webster Police Department with better access to the lake.

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