Areas of Practice

Across the spectrum of environmental law, we offer advice and representation with practical, results-oriented lawyering in the following practice areas...
Category: Areas of Practice

Separate and distinct from regulation of work and activities in and near wetlands, floodplains and water bodies under the Wetlands Protection Act, the Department of Environmental Protection (DEP) issues licenses for filling or, occupation of, or construction and use of structures on, “tidelands.”  These are defined as “present and former submerged lands and tidal flats lying between the present or historic high water mark, whichever is further landward and the seaward limit of state jurisdiction.”

One might think of “public” tidelands involving water above public property, and “private” tidelands involving water over private property which is flowed by the tide.  The idea is that public tidelands and what are called Great Ponds and their underlying lands are generally held in trust by the state for the benefit of the general public. A Great Pond is a pond which in its natural state was more than 10 acres.

Private tidelands, while privately owned, are subject to an easement for the public for the purposes of fishing, fowling, navigating, and passing over and through the water along the waterfront where the tide ebbs and flows. These are the so-called Reserved Public Rights dating back to the Colonial Ordinances of 1641 and 1647 (thus reserving them for the public). These were codified a hundred years ago in G.L. c.91, affectionately known in the field as Chapter 91.

To many this array of statutes, regulations, and common law principles may seem byzantine. They certainly are rooted in history and grounded firmly on the authorities of the state as sovereign. We very much enjoy the challenges and satisfactions of solving thorny philosophical and practical problems where the public trust intersects private property.

Chapter 91 could be summarized as follows: a body of statutory provisions, enacted over many years, by which DEP licenses the construction and use of structures on Great Ponds, public and private tidelands, and those rivers and streams in which the state has invested funds for improvements or protection, in order to administer the Commonwealth’s sovereign interests as well as the public’s Reserved Public Rights in the waterfront.

The DEP regulations under Chapter 91 favor licenses for water-dependent uses including some industrial uses in Designated Port Areas.  The regulations require a balancing of public benefits against private benefits from development, often resulting in negotiating public benefits to be incorporated in projects or to be required by license conditions. The Legislature recently required that DEP create a regulatory program streamlining the issuance of licenses for small docks and piers.

In a very real way the Supreme Judicial Court takes a strong interest in how the Legislature and DEP interpret and apply these ancient and modern principles in service of this aspect of the public trust. There have been several court cases over the centuries which our careful clients have come to appreciate and understand.

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