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Home My WebLink Aboutch 91 lisenceCommonwealth of Massachusetts Executive Office of Energy & Environmental Affairs Department of Environmental Protection Southeast Regional Office• 20 Riverside Drive, Lakeville MA 02347 • 508-946-2700 Maura T. Healey Rebecca L. Tepper Governor Secretary Kimberley Driscoll Bonnie Heiple Lieutenant Governor Commissioner The Sousa Family Irrevocable Trust, Joseph and Arlene Sousa, Trustees c/o Shorefront Consulting Attn: Mark Burgess 290 Center Street Dennis Port, MA 02639 RE: ISSUANCE OF CHAPTER 91 WATERWAYS LICENSE Waterways License Application No. 24-WW0l-0015-APP, License No. WW0l-0000520 The Sousa Family Irrevocable Trust, Joseph and Arlene Sousa, Trustees, Bass River, 80 Grandview Drive, 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 fmal 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 land, 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) days of the date of issuance will render this license void pursuant to 310 CMR 9.18. Upon recording the License and Plan, you must notify the Department by accessing your Authorization record at https://eplace.eea.mass.gov/citizenaccess and entering the recording information. Instructions for entering recording information may be found at: https://www.mass.gov/doc/eplace-waterways-recording- information-amendment/download. Failure to notify the Department of the recording of this License is a violation of 310 CMR 9.00. This information is available in alternate format. Please contact MassDEP at 617-292-5500. TTY# MassRelay Service 1-800-439-2370 MassDEP Website: www.mass.gov/dep Printed on Recycled Paper ISSUANCE OF CHAPTER 91 WATERWAYS LICENSE Waterways License Application No. 24-WW0l-0015-APP, License No. WW0l-0000520 The Sousa Family Irrevocable Trust, Joseph and Arlene Sousa, Trustees, Bass River, 80 Grandview Drive, Yarmouth REQUEST CERTIFICATE OF COMPLIANCE Page2 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 later 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. NOTICE OF APPEAL RIGHTS Who has the right to appeal? 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(1): (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, § l0A, 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 adjudicatory hearing? 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: https://www.mass.gov/doc/adiudicatorv-hearing-fee-transmittal-form/download. The Notice of Claim must be made in writing and sent by certified mail or hand delivery to: MassDEP Office of Appeals and Dispute Resolution Case Administrator 100 Cambridge Street, Suite 900 Boston, MA 02114 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 Waterways License Application No. 24-WW0l-0015-APP, License No. WW0l-0000520 The Sousa Family Irrevocable Trust, Joseph and Arlene Sousa, Trustees, Bass River, 80 Grandview Drive, 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? Page3 Pursuant to 310 CMR 9.17(3), any Notice of Claim 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, ifrepresented 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 Cally Harper of the Wetlands and Waterways Program, (617) 549-3598 or cally.harper@mass.gov, if you have any questions pertaining to the Chapter 91 License. Brendan C. Mullaney Section Chief Waterways Program cc: w/enc. Daniel J. Padien, Waterways Program Chief, DEP Boston Office of Coastal Zone Management Yarmouth Harbormaster Yarmouth Conservation Commission Joseph and Arlene Sousa, Trustees 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 5" x 10" (or 50 square inches) in size. Letter height shall be a minimum of½". • 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. ~ FOR Mass DEP M.G.L. Ch. 91 LICENSE # ------- WW01- 0000520 11 II ii ii \ltbe <!Con1monwealtb of Jffilassacbusetts No. WWOl-0000520 'Wbtrta~, The Sousa Family Irrevocable Trust, Joseph and Arlene Sousa, Trustees of --Lexington --in the County of --Middlesex --and Commonwealth aforesaid, have applied to the Department of Environmental Protection for license to --maintain an existing rock revetment, pier, ramp and float and perform improvement dredging -- and have submitted plans of the same; and whereas due notice of said application, and of the time and place fixed for a hearing thereon, has been given, as required by law, to the --Select Board --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 --The Sousa Family Irrevocable Trust, Joseph and Arlene Sousa, Trustees--, 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 --maintain an existing rock revetment, pier, ramp and float and perform improvement dredging-- in and over the waters of --Bass River --at --80 Grandview Drive --in the --Town of Yarmouth -- and in accordance with the locations shown and details indicated on the accompanying DEP License Plan No. WW0l-0000520 (4 sheets). wwo 1-0000520 Page 2 The structures hereby authorized shall be limited to the following use(s): noncommercial docking and boating access to navigable waters and shoreline stabilization for the protection of existing structures This license will expire thirty (30) years from the date of license issuance. By written request of the licensee for an amendment, the Department may grant a renewal for the term of years not to exceed that authorized in the original license. This license supersedes Department of Environmental Protection License No. 3857, issued on June 17, 1994 to George F. O'Brien. Special Waterways Conditions: 1. 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 under or around all structures within such intertidal area. Accordingly, the Licensee shall place and maintain, in good repair, .a public access sign at each property line, 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 la~eral passage. 2. In partial compensation for 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.17 c apply. 3. The use of unencapsulated polystyrene as part of any permanent or temporary component of the structures and/or fill authorized herein is prohibited. 4. 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. 5. 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. WW0I-0000520 Page 3 Special Dredge Conditions: 1. Dredging of approximately 99 cubic yards shall be performed by mechanical methods. 2. Dredging shall be to a maximum of-3.0 feet below the mean low water (ML W) datum with an allowable I-foot over dredge. 3. A time-of-year (TOY) restriction shall be observed on all in-water activities to protect sensitive life stages of winter flounder. No in-water, silt-producing activities shall take place from January 15 th -May 31 st of any year. 4. Dredge material shall be transported to an approved upland facility or beneficially reused on site. 5. Maintenance dredging may be performed for a period often (10) years subsequent to the date of issuance of this license. 6. 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 90 days of completion of dredging. Please see pages 4 & 5 for additional conditions to this license.------------...,,. Duplicate of said plan, number WW0l-0000520 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. wwo 1-0000520 Page4 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 grarited 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 license 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 fmal 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. 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 o{ the subject property lying between the high and low water marks, for the purposes of fishing, fowling, navigation, and the natural derivatives thereof. _lL 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 lawful 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. wwo 1-0000520 Page 5 STANDARD WATERWAYS DREDGING CONDITIONS 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. 4 0(5), which provides, in part, that the transportation and dumping of dredge material shall be done under the supervision of the Department, and, v1hen required, the Licensee shall provide at his/her expense a dredge inspector approved by the Department. 2. This \Vatenvays Permit is issued upon the e~cpress condition that dredging and transportation and disposal of dredge material shall be in strict conformance vlith the 'Nater Quality Certification issued by the Department of Environmental Protection. 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 or NA VD88 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 work. 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 impriso~ent for not more than one year, or both such fine and imprisonment; or shall be subject to civil penalty not to exceed $25,000 per day for each day such violation occurs or continues. WW0 1-0000520 Page 6 The amount of tide-water displaced by the work hereby authorized has been ascertained by said Department, and compensation thereof has been made by the said --The Sousa Family Irrevocable Trnst, Joseph and Arlene Sousa, Trustees --by paying into the Treasury of the Commonwealth --two dollars and zero cents ($ 2.00) --for each cubic yard so displaced, being the amount hereby assessed by said Department. (1 cy = $ 2.00) 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 wrn~·\ESS WHEREAS, said Department of Environmental Protection have hereunto set their hands this I o+ day of F...Q__br uw~ in the year two-thousand twenty-five. \-Program Chief Department of Environmental Protection Commissioner THE COMMONWEALTH OF MASSACHUSETTS This license is approved in consideration of the payment into the treasury of the Commonwealth by-the said --The Sousa Family Irrevocable Trnst, Joseph and Arlene Sousa, Trustees -- of the further sum of --one thousand five hundred and twenty-four dollars and zero cents ($1,524.00) the amount determined by the Governor as a just and equitable charge for rights and privileges hereby granted in the land of the Commonwealth. BOSTON, Approved by the Governor. I I ti fx~~·nN~? 0~4'"'-q)•~f~ -"'"'~ TC.f ~ -i7'.3'" I