Definitions: Commonwealth Tidelands, the Department shall act in accordance with the

following provisions: (a) the Department shall presume that tidelands are Commonwealth tidelands if they lie seaward of the historic low water mark or of a line running 100 rods (1650 feet) seaward of the historic high water mark, whichever is farther landward; such presumption may be overcome only if the Department issues a written determination based upon a final judicial decree concerning the tidelands in question or other conclusive legal documentation establishing that, notwithstanding the Boston Waterfront decision of the Supreme Judicial Court, such tidelands are unconditionally free of any proprietary interest in the Commonwealth; (b) the Department shall presume that tidelands are not Commonwealth tidelands if they lie landward of the historic low water mark or of a line running 100 rods (1650 feet) seaward of the historic high water mark, whichever if farther landward; such presumption may be overcome only upon a showing that such tidelands including, but not limited to, those in certain portions of the Town of Provincetown, are not held by a private person. Commissioner means the Commissioner of the Department of Environmental Protection (DEP). CZM means the Massachusetts Coastal Zone Management Office. CZM Program means the Massachusetts Coastal Zone Management Program established pursuant to M.G.L. c. 21A and codified in 301 CMR 20.00: Coastal Zone Management Program. Date of Receipt means the date of delivery to an office, home or usual place of business by mail or hand delivery. The Department will presume that a document is received three business days after it is mailed, certified mail return receipt requested, to the correct address, unless good cause is shown otherwise. DCR means the Department of Conservation and Recreation. Department means the Department of Environmental Protection (DEP). Designated Port Area (DPA) means an area that has been so designated by CZM in accordance with 301 CMR 25.00: Designation of Port Areas. Development Site means the area owned, controlled, or proposed for development by the applicant in which a project will occur. DPA Master Plan means the component of an Approved Municipal Harbor Plan pertaining to lands and waters of a DPA within the municipality. Such master plan or portion thereof shall take effect under 310 CMR 9.00 only upon written approval by the Secretary in accordance with 301 CMR 23.00: Review and Approval of Municipal Harbor Plans and any associated written guidelines of CZM and approval by the Department through the adoption of the substitute provisions of Approved Municipal Harbor Plans listed in 310 CMR 9.57. Dredged Material means rocks, bottom sediment, debris, refuse, plant or animal matter, or other materials which are removed by dredging. Dredged Material Disposal means the discharge of dredged material, the transportation of such material prior to discharge, and the dispersion, deposition, assimilation or biological uptake or accumulation of such material after transportation or discharge. Dredging means the 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, either permanently or temporarily, of any flowed tidelands, rivers, streams, ponds or other waters of the Commonwealth. Dredging shall include: improvement dredging, maintenance dredging, excavating and backfilling or other dredging and subsequent refilling. Ecological Restoration Project means a project whose primary purpose is to restore or otherwise improve the natural capacity of a Resource Area(s) to protect and sustain the interests identified in M.G.L. c. 131, § 40, when such interests have been degraded or destroyed by anthropogenic influences. Ecological Restoration Project shall not include projects specifically intended to provide mitigation for the alteration of a Resource Area authorized by a Final Order or Variance issued pursuant to 310 CMR 10.00: Wetlands Protection or a 401 Water Quality Certification issued pursuant to 314 CMR 9.00: 401 Water Quality Certification for Discharge of Dredged or Fill Material, Dredging, and Dredged Material Disposal in Waters of the United States Within the Commonwealth. EIR means Environmental Impact Report as defined in 301 CMR 11.00: MEPA Regulations. Environmental Monitor means the semi-monthly publication of proposed actions and projects which require MEPA filings with the Secretary pursuant to M.G.L. c. 30, §§ 61 through 62H. EOEEA means the Executive Office of Energy and Environmental Affairs. Facility of Limited Accommodation means a facility at which goods or services are made available directly (e.g., in person by customer access to the facility, not exclusively by means of mail order, telecommunications or other electronic transmission) to the public on a regular basis primarily by appointment or enrollment on essentially equal terms to the public at large rather than restricted to a relatively limited group of specified individuals. Facilities of Limited Accommodation may be either water-dependent, accessory to water-dependent, or nonwater- dependent, and shall include but not be limited to: (a) Rehabilitation clinics and medical facilities; (b) Business or professional offices that serve customers by appointment or enrollment and by customer access to the facility; (c) Child care centers and elderly or other social service centers, provided that the facility does not interfere with access to public spaces outside of a building; and (d) Artist and photography studios open to the public by appointment. Facility of Private Tenancy means a facility at which the advantages of use accrue, on either a transient or a permanent basis, to a relatively limited group of specified individuals (e.g., members of a private club, owners of a condominium building) rather than to the public at large (e.g., patrons of a public restaurant, visitors to an aquarium or museum). Such facilities may be water-dependent, accessory to water-dependent, or nonwater-dependent, and may include but are not limited to: (a) houses, apartments, condominiums, and other residential units; (b) business or professional offices that do not rely upon customer access as a significant element of the business or profession; (c) industrial facilities, including but not limited to manufacturing plants and electric power generating stations; (d) vehicular ways or parking facilities not open to the public; (e) open spaces, pedestrian walkways, or outdoor recreation facilities not open to the public; and (f) marina berths for long-term exclusive use. Facility of Public Accommodation means a facility at which goods or services are made available directly to the transient public on a regular basis, or at which advantages of use are otherwise open on essentially equal terms to the public at large (e.g., patrons of a public restaurant, visitors to an aquarium or museum), rather than restricted to a relatively limited group of specified individuals (e,g,, members of a private club, owners of a condominium building). Facilities of public accommodation may be either water-dependent, accessory to water-dependent, or nonwater-dependent, and shall include but are not limited to: (a) public restaurants or entertainment facilities; (b) theaters, performance halls, art galleries, or other establishments dedicated to public presentation of the fine arts; (c) hotels, motels, or other lodging facilities of transient occupancy; (d) educational, historical, or other cultural institutions open to the public; (e) interior spaces dedicated to the programming of community meetings, informational displays, special recreational events, or other public activities; (f) sports or physical fitness facilities open to the public; (g) open spaces, pedestrian walkways, or outdoor recreation facilities open to the public; (h) retail sales or service facilities; (i) ferry terminals, transit stations, and other public transportation facilities; (j) marina berths for transient use; and (k) vehicular ways open to the public or parking facilities open to the public, including users of facilities of public accommodation. FEMA means the Federal Emergency Management Agency. Fill means 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 or any predecessor in interest; material placed on a beach for beach nourishment purposes; and dredged material placed below the low water mark for purposes of subaqueous disposal. Filled Tidelands means former submerged lands and tidal flats which are no longer subject to tidal action due to the presence of fill. Final Order means the order of conditions issued pursuant to the Wetlands Protection Act, M.G.L. c. 131, § 40, as the term is defined in 310 CMR 10.04: Definitions. Fish means any animal life inhabiting waterways or the land beneath them that is utilized for recreational or commercial purposes, or that is part of the food chain for such animal life. Flowed Tidelands means present submerged lands and tidal flats which are subject to tidal action. Great Pond means any pond which contained more than ten acres in its natural state, as calculated based on the surface area of lands lying below the natural high water mark. The title to land below the natural low water mark is held by the Commonwealth in trust for the public, subject to any rights which the applicant demonstrates have been granted by the Commonwealth. The Department shall presume that any pond presently larger then ten acres is a Great Pond, unless the applicant presents topographic, historic, or other information demonstrating that the original size of the pond was less than ten acres, prior to any alteration by damming or other human activity. Harbor Line means any line established by the legislature pursuant to M.G.L. c. 91, § 34. Harbormaster means the individual appointed pursuant to M.G.L. c. 102, § 19, or as otherwise provided by law. High Water Mark means: (a) for tidelands, the present mean high tide line, as established by the present arithmetic mean of the water heights observed at high tide over a specific 19-year Metonic Cycle (the National Tidal Datum Epoch), and shall be determined using hydrographic survey data of the National Ocean Survey of the U.S. Department of Commerce; and (b) for Great Ponds, rivers, and streams, the present arithmetic mean of high water heights observed over a one year period using the best available data as determined by the Department. Historic High Water Mark means the high water mark which existed prior to human alteration of the shoreline by filling, dredging, excavating, impounding, or other means. In areas where there is evidence of such alteration by fill, the Department shall presume the historic high water mark is the farthest landward former shoreline which can be ascertained with reference to topographic or hydrographic surveys, previous license plans, and other historic maps or charts, which may be supplemented as appropriate by soil logs, photographs, and other documents, written records, or information sources of the type on which reasonable persons are accustomed to rely in the conduct of serious business affairs. Such presumption may be overcome by a clear showing that a seaward migration of such shoreline occurred solely as a result of natural accretion not caused by the owner or any predecessor in interest. For Great Ponds, the historic high water mark is synonymous with the natural high water mark. Historic Low Water Mark means the low water mark which existed prior to human alteration of the shoreline by filling, dredging, excavating, impounding or other means. In areas where there is evidence of such alteration by fill, the Department shall make its determination of the position of the historic low water mark in the same manner as described in 310 CMR 9.02: Definitions: Historic High Water Mark. Improvement Dredging means any dredging under a license or a permit in an area which has not been previously dredged or which extends the original dredged width, depth, length, or otherwise alters the original boundaries of a previously dredged area. Infrastructure Crossing Facility means any infrastructure facility which is a bridge, tunnel, pipeline, aqueduct, conduit, cable, or wire, including associated piers, bulkheads, culverts, or other vertical support structures, which is located over or under the water and which connects existing or new infrastructure facilities located on the opposite banks of the waterway. Any structure which is operationally related to such crossing facility and requires an adjacent location shall be considered an ancillary facility thereto. Such ancillary facilities generally include, but are not limited to, power transmission substations, gas meter stations, sewage headworks and pumping facilities, toll booths, tunnel ventilation buildings, drainage structures, and approaches, ramps, and interchanges which connect bridges or tunnels to adjacent highways or railroads. Infrastructure Facility means a facility which produces, delivers, or otherwise provides electric, gas, water, sewage, transportation, or telecommunication services to the public. Innovative Technology means technology that has not been commercially deployed or is in limited deployment in Massachusetts, and includes, but is not limited to, energy technology that obtains energy from the ocean, waterway, or conditions associated with the ocean or waterway, other forms of renewable energy technology. Landlocked Tidelands means any filled tidelands which on January 1, 1984 were 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: (a) within 250 feet of the high water mark, or (b) within any Designated Port Area. Said public way or ways shall also be defined as landlocked tidelands, except for any portion thereof which is presently within 250 feet of the high water mark. Licensee means the person to whom a license is issued and shall include the heirs, assignees, and successors in interest to such person. Local Economic Development Authority means a municipal planning board, zoning board, or other board or commission so designated by a municipality; community development corporations designated in accordance with M.G.L. c. 40H; municipal economic development and industrial corporations designated in accordance with M.G.L. c. 121C; municipal housing authorities designated in accordance with M.G.L. c. 121B, § 3; municipal redevelopment authorities designated in accordance with M.G.L. c. 121B, § 4; urban development corporations designated in accordance with M.G.L. c. 121A; and 40B district planning commissions established under M.G.L. c. 40B, including, but not limited to, the Cape Cod Commission, the Martha's Vineyard Commission and the Boston Redevelopment Authority. Low Water Mark means the present mean low tide line, as established by the present arithmetic mean of water heights observed at low tide over a specific 19-year Metonic Cycle (the National Tidal Datum Epoch), and shall be determined using hydrographic survey data of the National Ocean Survey of the U.S. Department of Commerce. Maintenance Dredging means dredging in accordance with a license or permit in any previously authorized dredged area which does not extend the originally dredged depth, width, or length. Marina means a berthing area with docking facilities under common ownership or control and with berths for ten or more vessels, including commercial marinas, boat basins, and yacht clubs. A marina may be an independent facility or may be associated with a boatyard. Marine Industrial Park means a multi-use complex on tidelands within a DPA, at which: (a) the predominant use is for water-dependent industrial purposes; in general, at least b of the park site landward of any project shoreline must be used exclusively for such purposes; (b) spaces and facilities not dedicated to water-dependent industrial use are available primarily for general industrial purposes; uses that are neither water-dependent nor industrial may occur only in a manner that is incidental to and supportive of the water-dependent industrial uses in the park, and may not include general residential or hotel facilities; and (c) any commitment of spaces and facilities to uses other than water-dependent industry is governed by a comprehensive park plan, prepared in accordance with M.G.L. c. 30, §§ 61 through 62H, if applicable, and accepted by the Department in a written determination issued pursuant to 310 CMR 9.14. MEPA means the Massachusetts Environmental Policy Act, M.G.L. c. 30, §§ 61 through 62H, and 301 CMR 11.00: MEPA Regulations. MOU means a Memorandum of Understanding between the Department and another public agency. The draft text of any such document or other written interagency agreement shall be published in the Environmental Monitor for public review and comment, and the final text shall be published therein upon adoption and made available by the Department upon request. Municipal Harbor Plan (MHP) means a document (in words, maps, illustrations, and other media of communication) setting forth, among other things: a community's objectives, standards, and policies for guiding public and private utilization of land and water bodies within a defined harbor or other waterway planning area; and an implementation program which specifies the legal and institutional arrangements, financial strategies, and other measures that will be taken to achieve the desired sequence, patterns, and characteristics of development and other human activities within the harbor area. Such plan shall take effect under 310 CMR 9.00 only upon approval by the Department through the adoption of the substitute provisions of Approved Municipal Harbor Plans listed in 310 CMR 9.57. 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. Natural High Water Mark means the historic high water mark of a Great Pond. Natural Low Water Mark means the historic low water mark of a Great Pond. Net Operating Income means the rental income from a Facility of Limited Accommodation within the licensed structure minus its operating expenses and property taxes calculated as an amount per square foot for the licensed structure or a comparable value if owner occupied. Operating expenses may include expenses for management, legal and accounting services, insurance, janitorial and security services, maintenance, supplies, and utilities. Noncommercial Community Docking Facility means a facility for berthing of recreational vessels accessory to residential or nonprofit seasonal camp use (e.g., summer camps). Nonprofit Organization means an organization exempt from federal income taxation under § 501(c)(3) of the U.S. Internal Revenue Code. Nonwater-dependent Use means a use as specified in 310 CMR 9.12. Nonwater-dependent Use Project means a project consisting of one or more nonwater-dependent uses, or a mix of water-dependent and nonwater-dependent uses, as specified in 310 CMR 9.12(1). Notification Date means a specified date by which a public notice must be published in the newspaper and/or the Environmental Monitor, and mailed to municipal officials, and on which the public comment period commences. Ocean Sanctuary means an ocean area wherein certain restrictions on activities apply, as defined in M.G.L. c. 132A, § 13 and 302 CMR 5.00: Ocean Sanctuaries. Party means the applicant, any person allowed by the Department to intervene pursuant to M.G.L. c. 30A, § 1, or any ten citizens allowed by the Department to intervene pursuant to M.G.L. c. 30A, § 10A. Person means any individual, partnership, trust, firm, corporation, association, commission, district, department, board, municipality, public or quasi-public agency or authority. Present means contemporaneous with the review of an application, request for determination of applicability, or other action by the Department. Private Recreational Boating Facility means a facility for berthing of recreational vessels at which all berths and accessory uses thereto are not available for patronage by the general public, or where exclusive use of any such berth is available on a long-term basis. Such berths shall not include a berth reserved for the operator of said facility. Private Tidelands means tidelands held by a private person subject to an easement of the public for the purposes of navigation and free fishing and fowling and of passing freely over and through the water. In accordance with the Colonial Ordinances of 1641-47, the Department shall presume that tidelands are private tidelands if they lie landward of the historic low water mark or of a line running 100 rods (1650 feet) seaward of the historic high water mark, whichever is farther landward; such presumption may be overcome upon a showing that such tidelands, including but not limited to those in certain portions of the Town of Provincetown, are not held by a private person or upon a final judicial decree that such tidelands are not subject to said easement of the public. Project means any work, action, conduct, alteration, change of use, or other activity subject to the jurisdiction of the Department under M.G.L. c. 91, in accordance with the provisions of 310 CMR 9.03 through 9.05, which is the subject of a license or permit application. Project Shoreline means the high water mark, or the perimeter of any pier, wharf, or other structure supported by existing piles or to be replaced pursuant to 310 CMR 9.32(1)(a)4., whichever is farther seaward. Project Site means the area owned, controlled, or proposed for development by the applicant in which a project will occur and which is subject to the geographic jurisdiction of the Department, as specified in 310 CMR 9.04. Public Agency means any agency, department, board, district, commission, or authority of the Commonwealth or the United States, or any municipality or other political subdivision of the Commonwealth. Public Recreational Boating Facility means a facility for berthing of recreational vessels at which all berths and accessory uses thereto are available for patronage by the general public on a seasonal or transient basis. Such facility may be either publicly or privately owned, and may include town piers, commercial rental marinas, or community sailing centers or yacht clubs offering open membership to the public. Nothing in 310 CMR 9.00 shall be construed as prohibiting the adoption of minimum eligibility criteria of broad, objective applicability, such as basic knowledge of boating safety or a willingness to make regular work commitments; nor as prohibiting the reservation of a berth for the operator of said facility. Public Service Project means a project: (a) whose entire control, development, and operation is undertaken by a public agency for the provision of facilities or services directly to the public (or to another public agency for such provision to the public) by the public agency or its contractor or agent; or (b) which consists entirely of Infrastructure Facilities, as defined at 310 CMR 9.02. Public Way means a road, street, or highway for vehicular use open to the public at large and for which a public agency is responsible for maintenance and repair. Resource Area means any of the areas specified in 310 CMR 10.25 through 10.35 and 310 CMR 10.54 through 10.58. It is used synonymously with Area Subject to Protection under M.G.L. c. 131, § 40, each one of which is enumerated in 310 CMR 10.02(1): Areas Subject to Protection Under M.G.L. c. 131, § 40. Restoration Order of Conditions means the General Order of Conditions issued pursuant to 310 CMR 10.14: General Ecological Restoration Project Order of Conditions for a project that meets the eligibility criteria set forth in 310 CMR 10.13: Eligibility Criteria for General Restoration Order of Conditions. Secretary means the Secretary of the Executive Office of Energy and Environmental Affairs. Shellfish means the following species: Bay Scallop (Argopecten irradians); Blue Mussel (Mytilus edulis); Ocean Quahog (Arctica islandica); Oyster (Crassostrea virginica); Quahog (Mercenaria mercenaria); Razor Clam (Ensis directus); Sea Clam (Spicula solidissima); Sea Scallop (Placopecten megallanicus); and Soft Clam (Mya arenaria). State Agency means any agency, department, board, district, commission, or authority of the Commonwealth. Structure means any man-made object which is intended to remain in place in, on, over, or under tidelands, Great Ponds, or other waterways. Structure shall include, but is not limited to, any pier, wharf, dam, seawall, weir, boom, breakwater, bulkhead, riprap, revetment, jetty, piles (including mooring piles), line, groin, road, causeway, culvert, bridge, building, parking lot, cable, pipe, pipeline, conduit, tunnel, wire, or pile-held or other permanently fixed float, barge, vessel or aquaculture gear. Structure does not include any mooring, float, or raft which has been authorized by annual permit of a harbormaster, in accordance with M.G.L. c. 91, § 10A and with 310 CMR 9.07; nor any weir, pound net, or fish trap which has been authorized in tidewater by permit of the municipal official and approved by the Department and the Division of Marine Fisheries, in accordance with M.G.L. c. 130, § 29. Any such mooring, float, raft, weir, pound net, or fish trap, which has not been so authorized shall be considered a structure under 310 CMR 9.00. Substantial Change in Use means a use for a continuous period of at least one year of 10% or more of the surface area of the authorized or licensed premises or structures for a purpose unrelated to the authorized or licensed use or activity, whether express or implied. Substantial Structural Alteration means a change in the dimensions of a principal building or structure which increases by more than 10% the height or ground coverage of the building or structure specified in the authorization or license, or an increase by more than 10% of the surface area of the fill specified in the authorization or license. Superseding Order means an order of conditions issued by the Department pursuant to the Wetlands Protection Act M.G.L. c. 131, § 40, as defined in 310 CMR 10.04: Definitions. Supporting DPA Use means an industrial or commercial use in a Designated Port Area that provides water-dependent industrial use in the DPA with direct economic or operational support, to an extent that adequately compensates for the reduced amount of tidelands on the project site that will be available for water-dependent industrial use during the term of the license. The type, location, scale, duration, operation, and other relevant aspects of the industrial or commercial use must be compatible with activities characteristic of a working waterfront and its backlands, in order to preserve in the long run the predominantly industrial character of the DPA and its viability for maritime development. In determining whether an industrial or commercial use qualifies as a Supporting DPA Use, the Department shall act in accordance with the following provisions as well as all applicable provisions of a DPA Master Plan. In the case of commercial uses, any use may be determined to be compatible with the DPA except where the inherent nature of the use gives rise to conflict with port operations or excessive consumption of port space, either directly or indirectly (e.g. as a result of collateral development activity). Accordingly, new or expanded uses that shall not be determined to be a Supporting DPA Use include, but are not limited to, transient group quarters such as hotels/motels, nursing homes, and hospitals; recreational boating facilities; amusement parks and other major entertainment or sports complexes; and new buildings devoted predominantly to office use. Unless otherwise provided in a DPA Master Plan, the amount of tidelands occupied by Supporting DPA Uses and any accessory uses thereto shall not exceed 25% of the area of the project site (excluding tidelands seaward of the project shoreline), so that the remainder of the project site will continue to be available exclusively for water-dependent industrial or temporary use. Temporary Use means warehousing, trucking, parking, and other industrial and transportation uses which occupy vacant space or facilities in a Designated Port Area, for a maximum term of ten years as specified in 310 CMR 9.15(1)(d), and without significant structural alteration of such space or facilities. Temporary uses may be licensed only if marketing efforts have failed to identify any prospective water-dependent industrial tenant, and if the license is conditioned to require further solicitation of such tenancy upon expiration of the license term. Test Project means the installation or deployment of water dependent Innovative Technology in situ for purposes of evaluating its performance and environmental effects. 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. Trust Lands means present and former waterways in which the fee simple, any easement, or other proprietary interest is held by the Commonwealth in trust for the benefit of the public. All geographic areas subject to the jurisdiction of M.G.L. c. 91, as specified in 310 CMR 9.04, are generally considered to be trust lands. NON-TEXT PAGE Upper Floor Accessory Services means utility and access facilities which must be located on the ground floor of any building to serve any facility of private tenancy located on any other floors, provided that such accessory services do not occupy more than 25% of the building footprint. Examples of such services include utility shafts, elevators, stairways, and entryways. Water-dependent Use means a use as specified in these regulations at 310 CMR 9.12(2). Water-dependent Use Project means a project consisting entirely of fill or structures for one or more water-dependent or accessory uses as specified in 310 CMR 9.12(1). Water-dependent Use Zone means an area within the geographic jurisdiction of the Department and running landward of and parallel to the project shoreline, the width of which is determined in accordance with 310 CMR 9.51(3)(c). For purposes of such determination, the landward lot line of a property shall mean that in existence as of the effective date of 310 CMR 9.00, unless subsequent reconfiguration thereof results in a more landward location at the time of license application; and all baselines and distances shall be specified according to accepted land regulation and survey practices. 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. Wetlands Protection Act means M.G.L. c. 131, § 40 and 310 CMR 10.00: Wetlands Protection.