HomeMy WebLinkAboutCh91 Waterways LicenseCommonwealth of Massachusetts
Executive Office of Energy & Environmental Affairs
Department of Environmental Protection
Southeast Regional Office • 20 Riverside Drive, Lakeville MA 02347.508-946-2700
Charles D. Baker Kathleen A_ Theoharldes
Governor Secretary
Karyn E. Polito Martin Suuberg
Lieutenant Governor Commissioner
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6 Smiths Point, LLC
c/o Cape Cod Engineering, Inc.
Attn: Robert M. Perry, P.E.
P.O. Box 1517
East Dennis, MA 02641
RE: ISSUANCE OF CHAPTER 91 WATERWAYS LICENSE
Waterways License Application No. W21-5948, License No.15383
6 Smiths Point, LLC, Uncle Roberts Cove, 6 Smiths Point Road, Yarmouth
Dear Sir or Madam,
The Department of Environmental Protection hereby issues the above -referenced Waterways License,
enclosed, authorizing you to perform certain activities pursuant to M.G.L. c. 91, the Public Waterfront
Act and its regulations 310 CMR 9.00. Any change -in use or alteration of any structure or fill not
authorized by this license may render this license void.
This License is not final until all administrative appeal periods from this License have elapsed, or if such
an appeal has been taken, until all proceedings before the Department have been completed. The appeal
period is for twenty-one (21) days. No work shall be undertaken until the License has become final and
has been recorded in the Registry of Deeds or the Land Court for the district in which the land is located,
within the chain of title of the affected property
RECORDING OF THE LICENSE
This License must be recorded at the Registry of Deeds or, if registered Iand, with the Land Registration
Office within sixty (60) days from the date of license issuance. In the case of recorded land, the License
shall also be noted in the Registry's Grantor Index under the name of the owner of the land upon which
the project is located. In the case of the registered land, the License shall be noted on the Land Court
Certificate of Title of the owner of the land upon which the project is located. Failure to record this
license within sixty (60) day of the date of issuance will render this license void pursuant to 310
CMR 9.18.
A Waterways License Recordation Notice Form has been enclosed for your use in notifying the
Department of the recording information for this License. Failure to notify the Department of the
recording of this license is a violation of 310_ CMR 9.00 and, is subject to enforcement action by the
Department.
This Information Is available In alternate format. Contact Michelle Waters-Ekanem, Director of Diversity/Civil Rights at 617-292-5751.
TTY# MasaRelay Service 1.800-439.2370
MassDEP Webslte: www.mass,govldep
Printed on Recycled Paper
ISSUANCE OF CHAPTER 91 WATERWAYS LICENSE Page 2
Waterways License Application No. W21-5948, License No. 15383
6 Smiths Point, LLC, Uncle Roberts Cove, 6 Smiths Point Road, Yarmouth
REQUEST CERTIFICATE OF COMPLIANCE
Pursuant to 310 CMR 9.19, once the proposed project is completed you must file a Request for a
Certificate of Compliance form, BRP WW05, within sixty (60) days of completion but in no event Iater
than five (5) years from the License's issuance date. The license for any project for which such a request
is not filed and certificate issued may be revoked pursuant to 310 CMR 9.26.
IZ1241001 DKItI W19 2:OYAN :�.Ct 11_
Who has the right to anneal?
The following persons shall have the right to an adjudicatory hearing concerning this decision by the
Department to grant or deny a license or permit, in accordance with 310 CMR 9.17(l): (a) an applicant
who has demonstrated property rights in the lands in question, or which is a public agency; (b) any person
aggrieved by the decision of the Department to grant a license or permit who has submitted written
comments within the public comment period; (c) ten (10) residents of the Commonwealth who, pursuant
to M.G.L. c. 30A, § 10A, have submitted comments within the public comment period with at least 5 of
the 10 residents residing in the municipality(s) in which the license or permitted activity is located. The
appeal shall clearly and specifically state the facts and grounds for the appeal and the relief sought, and
each appealing resident shall file an affidavit stating the intent to be part of the group and to be
represented by its authorized representative; (d) the municipal official in the affected municipality who
has submitted written comments within the public comment period; and (e) CZM, for any project
identified in 310 CMR 9.13(2) (a) for CZM participation or, in an Ocean Sanctuary, if it has filed a notice
of participation within the public comment period.
How can I request an ad'udicato hearin ?
A person requesting an adjudicatory hearing must submit a "Notice of Claim" to the Department, with a
copy of the MassDEP Transmittal Form and including the detail specified below, within twenty-one (21)
days of the date of issuance of this decision. The MassDEP Fee Transmittal Form is available at the
following website: http://www.mass.gov/eea/does/do/service/adr/adiherftn.doe. The Notice of
Claim must be made in writing and sent by certified mail or hand delivery to:
Case Administrator
MassDEP
One Winter Street, 2nd Floor
Boston, MA 02108
A copy of the complete Notice of Claim must be sent at the same time by certified mail or hand delivery
to: (1) the applicant, (2) the municipal official of the city or town where the project is located, and (3) the
issuing office of the MassDEP, which in this case is located at:
MassDEP Waterways Regulation Program
20 Riverside Drive
Lakeville, MA 02347
The MassDEP Fee Transmittal Form and a 'valid check payable to the Commonwealth of Massachusetts
in the amount of one hundred dollars ($100) must be mailed to:
ISSUANCE OF CHAPTER 91 WATERWAYS LICENSE Page 3
Waterways License Application No. W21-5948, License No. 15383
6 Smiths Point, LLC, Uncle Roberts Cove, 6 Smiths Point Road, Yarmouth
Mass. Department of Environmental Protection
Commonwealth Master Lockbox
P.O. Box 4062
Boston, Massachusetts 02211
What information must be included in the hearing request?
Pursuant to 310 CMR 9.17(3), any Notice of CIaim requesting an adjudicatory hearing must include the
following information:
(a) the MassDEP Waterways Application File Number,
(b) the complete name, address, fax number and telephone number of the applicant;
(c) the address of the project;
(d) the complete name, address, fax number, and telephone number of the party filing the request
and, if represented by counsel, the name, address, fax number, and phone number of the attorney;
(e) if claiming to be a person aggrieved, the specific facts that demonstrate that the party satisfies the
definition of "aggrieved person" found in 310 CMR 9.02;
(f) a clear statement that a formal adjudicatory hearing is being requested;
(g) a clear statement of the facts which are the grounds for the proceedings, the specific objections to
the MassDEP's written decision, and the relief sought through the adjudicatory hearing, including
specifically the changes desired in the final written decision; and
(h) a statement that a copy of the request has been sent to: the applicant and the municipal official of
the city or town where the project is located.
Dismissal of request
The request for appeal will be dismissed if the filing fee is not paid, unless the appellant is exempt or is
granted a waiver. The filing fee is not required if the appellant is a city or town (or municipal agency),
county, or district of the Commonwealth of Massachusetts, or a municipal housing authority. The
Department may waive the adjudicatory hearing filing fee pursuant to 310 CMR 4.06(2) for a person who
shows that paying the fee will create an undue financial hardship. A person seeking a waiver must file an
affidavit setting forth the facts believed to support the claim of undue financial hardship together with the
hearing request as provided above.
Please feel free to contact Brendan Mullaney of the Wetlands and Waterways Program, (508) 946-2707 or
brendan.mullaney(a74mass.aov, if you have any questions pertaining to the Chapter 91 License.
Sincerely,
r
6L�
Daniel F. Gilmore, Chief
Wetlands and Waterways Program
ecc: Daniel Padien, Waterways Program Chief, DEP Boston
Office of Coastal Zone Management
Yarmouth Harbormaster
Yarmouth Conservation Commission
6 Smiths Point, LLC
Brendan Mullaney
Department of Environmental Protection
Wetlands & Waterways Program
20 Riverside Drive
Lakeville, MA 02347
RE: Waterways Application No. W21-5948, License No. 15383
Uncle Roberts Cove, Yarmouth, Barnstable County
Dear Mr. Mullaney:
This is to notify you that the above referenced Waterways License was recorded with the
appropriate Registry of Deeds I Land Court for this project location and to provide your office with
the following recordation information,
Date of Recordation:
County Registry of Deeds:
Book number and page number(s)
Land Court:
Land Court Lot # Plan #
Certificate Document Number
We will notify your office in writing of the date the authorized work or change in use is
completed.
Sincerely,
Chapter 91 Waterways Licensee
LICENSE VOI
FF NOT RECORDEI]
THIN 60 DAY
OF ISSIIANCg
SIGNAGE SPECIFICATIONS - MassDEP Waterways Regulation Program (Updated September 20, 2012)
• Signs shall utilize durable materials and methods of construction and maintained in good condition.
• Signs shall be a minimum of S" x 10" (or SO square inches) in size. Letter height shall be a minimum of 112".
• The MassDEP Chapter 91 License number shall be displayed on all signs (as applicable).
• Each sign shall indicate that public passage is allowed for on -foot lateral access along the shoreline for the purpose of fishing,
fowling, navigation and strolling.
• Signs shall be posted on both sides of the pier or structure, at the mean high water shoreline, or as directed by the Chapter 91
License (see Special Waterways Conditions, Page #2 or Page #3 for Simplified Licenses).
An example of an acceptable sign is provided below.
PUBLIC PASSAGE
Mass DEP M.G.L. Ch.91 LICENSE #15383
The Commmutuealtb of JCa9;,5acbus5ettq
No.15383
3ftreag, 6 Smiths Point, LLC
of -- Topsfield -- in the County of -- Essex -- and Commonwealth aforesaid, has applied to the
Department of Environmental Protection for license to -- modify and maintain an existing private
docking facility with pile anchored floats and access ramp and perform maintenance dredging --
and has submitted plans of the same; and whereas due notice of said application, and of the time an
has been given, as required by law, to the -- Board of Selectmen -- of
the -- Town of Yarmouth. --
NOW, said Department, having heard all parties desiring to be heard, and having fully considered
said application, hereby, subject to the approval of the Governor, authorizes and licenses the said
-- 6 Smiths Point, LLC --, subject to the provisions of the ninety-first chapter of the General Laws,
and of all laws which are or may be in force applicable thereto, to -- modify and maintain an
existing private docking facility with pile anchored floats and access ramp and perform maintenance
dredging --
in and over the waters of -- Uncle Roberts Cove -- at -- 6 Smiths Point Road -- in the -- Town of
Yarmouth -- and in accordance with the locations shown and details indicated on the accompanying
DEP License Plan No. 15383 (3 sheets).
License No. 15383 Page 2
The structures hereby authorized shall be limited to the following use(s): noncommercial docking and
boating access to navigable waters.
This license will expire thirty (30) years from the date of license issuance. By written request of the
Iicensee for an amendment, the Department may grant a renewal for the term of years not to exceed
that authorized in the original license.
Maintenance dredging may be performed for a period of ten (10) years subsequent to the date of
issuance of this license.
Existing structures previously authorized under Department of Public Works License No. 2962
shall be maintained in accordance with the conditions and terms of said licenses and plans.
Special Waterways Conditions:
I . In accordance with any license condition, easement, or other public right of lateral passage that
exists in the area of the subject property lying between the high and low water marks, the Licensee
shall allow the public in the exercise of such rights to pass freely over all structures within such
intertidal area. Accordingly, the Licensee shall place and maintain, in good repair, a public access
sign on both the easterly and westerly sides of the pier authorized herein, adjacent to the mean
high water shoreline. Said signs, designed in accordance with the signage specifications provided
by the Department, attached hereto, shall be posted immediately upon the completion of
construction. Nothing in this condition shall be construed as preventing the Licensee from
excluding the public from portions of said structure(s) or property not.intended for lateral passage.
2. In partial compensation for private use of structures on tidelands of the Commonwealth, which
interferes with the rights of the public to use such lands, the Licensee shall allow the public to pass
on foot, for any purpose and from dawn to dusk, within the area of the subject property lying seaward
of the high water mark. This condition shall not be construed to prevent the Licensee from taking
reasonable measures to discourage unlawful activities by users of the area(s) intended for public
passage, including but not limited to trespassing on the adjacent private areas and deposit of refuse of
any 'kind or nature in the water or on the shore. Further, the exercise by the public of free on -foot
passage in accordance with this condition shall be considered a permitted use to which the limited
liability provisions of M.G.L. c.21, s.17c apply.
3. All work authorized herein shall be completed within five (5) years of the date of license
issuance. Said construction period may be extended by the Department for one or more one year
periods without public notice, provided that the Applicant submits to the Department, thirty (30)
days prior to the expiration of said construction period, a written request to extend the period and
provides an adequate justification for said extension.
4. Within sixty (60) days of completion of the licensed project, the Licensee shall request, in
writing, that the Department issue a Certificate of Compliance in accordance with 310 CMR 9.19.
The request shall be accompanied by a certification by a registered professional engineer licensed
in the Commonwealth that the project was completed in accordance with the License.
License No. 15383 Page 3
Special Dredge Conditions:
1. Dredging shall be performed by mechanical methods.
2. Dredging shall be to a maximum of 6.0 feet below the mean low water (MLW) datum with
an allowable 1-foot over dredge. The volume of dredge material shall not exceed 80 cubic
yards during any dredge event.
3. In order to protect winter flounder, spawning and juvenile development, no dredging shall
occur from January 15'' to May 311 of any year.
4. A minimum buffer of 25-feet shall be maintained from the top of the dredge slope to any
bordering salt marsh.
5. Dredge material shall be dewatered on -site and then transported to an approved upland site
or Massachusetts landfill for beneficial reuse or disposal.
6. This Waterways Permit is issued upon the express condition that dredging and transportation
and disposal of dredge material shall be in strict conformance with the Order of Conditions
(SE 83-2262) issued on January 27, 2021 by the Yarmouth Conservation Commission.
7. Maintenance dredging maybe performed for a period often (10) years subsequent to the date
of issuance of this license.
8. After completion of the work authorized, the Licensee shall furnish to the Department a
suitable plan showing the depths at mean low water over the area dredged within 60 days of
completion of dredging.
Duplicate of said plan, number 15383 is on file in the office of said Department, and original of
said plan accompanies this License, and is to be referred to as a part hereof.
License No. 15383 Page 4
STANDARD WATERWAYS LICENSE CONDITIONS
1. Acceptance of this Waterways License shall constitute an agreement by the Licensee to conform with all terms and
conditions stated herein.
2. This License is granted upon the express condition that any and all other applicable authorizations necessitated due to
the provisions hereof shall be secured by the Licensee prior to the commencement of any activity or use authorized
pursuant to this License.
3. Any change in use or any substantial structural alteration of any structure or fill authorized herein shall require the
issuance by the Department of a new Waterways License in accordance with the provisions and procedures established
in Chapter 91 of the Massachusetts General Laws. Any unauthorized substantial change in use or unauthorized
substantial structural alteration of any structure or fill authorized herein shall render this Waterways License void.
4. This Waterways License shall be revocable by the Department for noncompliance with the terms and conditions set
forth herein. This license may be revoked after the Department has given written notice of the alleged noncompliance to
the Licensee and those persons who have filed a written request for such notice with the Department and afforded them
a reasonable opportunity to correct said noncompliance. Failure to correct said noncompliance after the issuance of a
written notice by the Department shall render this Waterways License void and the Commonwealth may proceed to
remove or cause removal of any structure or fill authorized herein at the expense of the Licensee, its successors and
assigns as an unauthorized and unlawful structure and/or fill.
5. The structures and/or fill authorized herein shall be maintained in good repair and in accordance with the terms and
conditions stated herein and the details indicated on the accompanying Icense plans.
6. Nothing in this Waterways License shall be construed as authorizing encroachment in, on or over property not owned
or controlled by the Licensee, except with the written consent of the owner or owners thereof.
7. This Waterways License is granted subject to all applicable Federal, State, County, and Municipal laws, ordinances
and regulations including but not limited to a valid final Order of Conditions issued pursuant to the Wetlands Protection
Act, G.L. Chapter 131, s.40.
8. This Waterways License is granted upon the express condition that the use of the structures and/or fill authorized
hereby shall be in strict conformance with all applicable requirements and authorizations of the MassDEP.
t
9. This License authorizes structure(s) and/or fill on:
X Private Tidelands. In accordance with the public easement that exists by law on private tidelands, the licensee shall
allow the public to use and to pass freely upon the area of the subject property lying between the high and low water
marks, for the purposes of fishing, fowling, navigation, and the natural derivatives thereof.
X Commonwealth Tidelands. The Licensee shall not restrict the public's right to use and to pass freely, for any lawful
purpose, upon lands lying seaward of the low water mark. Said lands are held in trust by the Commonwealth for the
benefit of the public.
a Great Pond of the Commonwealth. The Licensee shall not restrict the public's right to use and to pass freely upon
lands lying seaward of the high water mark for any lawful purpose.
_ Navigable River and Streams. The Licensee shall not restrict the public's right to use and to pass freely, for any
Iawful purpose, in the waterway.
No restriction on the exercise of these public rights shall be imposed unless otherwise expressly provided in this license.
10. Unless otherwise expressly provided by this license, the licensee shall not limit the hours of availability of any areas
of the subject property designated for public passage, nor place any gates, fences, or other structures on such areas in a
manner that would impede or discourage the free flow of pedestrian movement thereon.
License No.15383
STANDARD WATERWAYS DREDGING CONDITIONS
Page 5
1. This Waterways License is issued subject to all applicable federal, state, county, and municipal
laws, ordinances, by-laws, and regulations, including but not limited to, a valid Order of Conditions
issued pursuant to the Wetlands Protection Act, M.G.L. Chapter 131, s.40. In particular, this issuance
is subject to the provisions of Sections 52 to 56, inclusive of Chapter 91 of the General Law and its
Regulations 310 CMR 9.40(5), which provides, in part, that the transportation and dumping of dredge
material shall be done under the supervision of the Department, and, when required, the Licensee
shall provide at his/her expense a dredge inspector approved by the Department.
3. All subsequent maintenance dredging, and transport and disposal/reuse of dredged material during
the term of this License shall conform to the standards and conditions applied to the original dredging
operation performed under this License.
4. After completion of the work hereby authorized, the Licensee shall furnish to the Department a
suitable plan showing the depths at mean low water over the area dredged. Dredging under this
License shall be conducted so as to cause no unnecessary obstruction of the free passage of vessels,
and care shall be taken to cause no shoaling. If, however, any shoaling is caused, the Licensee shall,
at his/her expense, remove the shoal areas. The Licensee shall pay all costs associated with such
worse. Nothing in this License shall be construed to impair the legal rights of any person, or to
authorize dredging on land not owned by the Licensee without consent of the owner(s) of such
property.
5..The Licensee shall assume and pay all claims and demands arising in any manner from the work
authorized herein, and shall save harmless and indemnify the Commonwealth of Massachusetts, its
officers, employees, and agents from all claims, suits, damages, costs and expenses incurred by reason
thereof.
6. The Licensee shall, at least three days prior to the commencement of any dredging in tide water,
give written notice to the Department of the location and amount of the proposed work, and or the
time at which work is expected to begin.
7. Whosoever violates any provision of this License shall be subject to a fine of $25,000 per day for
each day such violation occurs or continues, or by imprisonment for not more than one year, or both
such fine and imprisonment; or shall be subject to civil penalty not to exceed $25,000 per day for each
day such violation occurs or continues.
License No. 15383 Page 6
The amount of tide -water displaced by the work hereby authorized has been ascertained by said
Department, and compensation thereof has been made by the said -- 6 Smiths Point, LLC -- by paying
into the Treasury of the Commonwealth -- two dollars and zero cents ($2.00) -- for each cubic yard
so displaced, being the amount hereby assessed by said Department. (0 cy = $ 0.00)
Nothing in this License shall be so construed as to impair the legal rights of any person.
This License shall be void unless the same and the accompanying plan are recorded within 60 days
from the date hereof, in the Registry of Deeds for the County of Barnstable.
IN WITNESS WHEREAS, said Department of Environmental Protection have hereunto set their
hands this bVA day of � b�( in the year two thousand twenty-one.
Program Chief. s
Commissioner
Department of Environmental Protection
THE COMMONWEALTH OF MASSACHUSETTS
This license is approved in consideration of the payment into the treasury of the Commonwealth by
the said -- 6 Smiths Point, LLC --
of the further sum of -- seven hundred fifty-three dollars and zero cents ($ 753.00) --
the amount determined by the Governor as a j ust and equitable charge for rights and privileges hereby
granted in the land of the Commonwealth.
BOSTON,
Approved by the Governor. l�
Governor
I hereby certify that this plan was prepared in conformance with
the Rules and Regulations of the Registry's of Deeds as
adopted Jan. 1, 1976 and amended Jan. 8, 1988.
N U EXILUM W.W. LIC. NO. 3186
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DECEMBER 14, 2020
PREPARED BY
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PREPARED BY
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EAST DENNIS, MA 02641
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SHEET 3 OF 3 1