defining working waterfronts

Based on widely varied stakeholder needs and interests across Maine, working waterfront has earned numerous, distinctly different definitions. Several are highlighted below.

how is working waterfront legally defined?

Ever since the Coastal Zone Management Act of 1972 first suggested that states prioritize planning to protect water-dependent uses, consensus as to exactly which waterfront uses ought to be protected has eluded federal, state and local managers. Many managers and planners recognize, often without agreement on the finer points, that the concept of working waterfronts may encompass uses that are water-dependent, water-related, water-enhanced, and non-water-dependent. Whether captured in constitution, statute or agency guideline, these definitions range from a narrow fisheries-only categorization to more open-ended definitions that include boatyards, marinas, and even resorts and hotels.

Setting aside the aim of uniformity, after a comprehensive survey of working waterfront definitions, researchers at the University of Florida Levin College of Law suggest that the most effective working waterfront definitions include the following:

  • A statement of purpose
  • A locally or regionally tailored description of place
  • Examples of included and excluded uses
  • Provisions addressing working water-related and water-enhanced uses as well as water-dependent uses

There are limited legal definitions for working waterfront in Maine. One definition is from the state of Maine’s Working Waterfront Covenant, used for the Working Waterfront Access Protection Program (WWAPP). Another definition is in the Maine Current Use and Taxation for the Working Waterfront. These definitions are crucial because they determine what qualifies for protection through tax incentives and/ or funding opportunities, yet they codify what constitutes working waterfront in a narrow sense. See the section below for more information on the WWAPP and Current Use Taxation.

other considerations

While legal definitions of working waterfront are clearly defined by state agencies and within tax programs it is also important to consider how the general public perceives working waterfronts. When many people imagine the working waterfronts of New England, they conjure images of wharves and piers in a harbor with boats docked and fishermen hauling their catch of the day back to land. They may also envision other water-dependent commercial businesses such as boat tours, ferries, boat builders, working waterfront services like fuel docks, ice or supplies, or boat maintenance. Often overlooked forms of working waterfronts, sometimes referred to as discreet working waterfronts, include mudflats where wild shellfish, worms, and various sea vegetables are harvested. Included in these working waterfronts are the footpaths necessary to get to those mudflats. This is important because public perception and awareness determines what level of working waterfront protection may be implemented in a town or region

maine

Application: Current Use Taxation

Under Maine’s current use taxation policy, “Working waterfront land means a parcel of land, or a portion thereof, abutting water to the head of tide or land located in the intertidal zone that is used primarily or used predominantly to provide access to or support the conduct of commercial fishing activities.” 36 M.R.S. § 1132. The statute further describes the phrase “support the conduct of commercial fishing activities” and specifies that “predominantly” means more than 90% of the land is used for commercial fishing activity, while “primarily” means more than 50%, and the rate of reduction on the tax valuation varies accordingly.
More on Maine’s Current Use Tax Programs.

Application: Working Waterfront Access PRotection Program

In 2005 in Maine, LD 1930 An Act Regarding Working Waterfront Covenants under the Land For Maine’s Future Program, approved the statute which defined and described the legal basis for a Working Waterfront Covenant, thereby giving legal authority to a method for preserving working waterfront land in perpetuity. The working waterfront covenant is a legally binding deed restriction held by the Department of Marine Resources. The covenant protects all current and future fisheries related uses of the land by prohibiting all conflicting non-fisheries activities (i.e. condos, marinas, restaurants). The covenant does allow a degree of mixed uses that are compatible with the primary fisheries use and provides the property owner with the flexibility to manage the property as needed to remain financially viable. The property owner also retains all other rights of ownership; that is, they are free to sell or lease. If and when the property owner chooses to sell the property, the State has a “right of first refusal” to assure that the land will be valued at its working waterfront value and thus remain affordable to those who would purchase it with the intent to continue commercial fishing activities.
Though still tied to fisheries, the broader definition adopted by Maine’s Working Waterfront Access Protection Program encompasses properties fitting one or more of the following criteria:

  • Active working waterfront which is strategically significant to the local, regional and state fisheries related economy;
  • Currently located and developed to fully support commercial fishing activities, providing key supports such as all tide access, fuel, bait, sales, and/or adequate parking;
  • Under current and emerging threat by development and changing population dynamics of conversion to uses incompatible with commercial fishing activities;
  • In a community with a clear desire to maintain and support their commercial fishing enterprises as evidenced by zoning, comprehensive plans, etc, and;
  • A critical part of the local fishing infrastructure and provides key access for the area.

For more information on the WWAPP contact Melissa Britsch, Senior Planner, Maine Coastal Program, at melissa.britsch@maine.gov.

Application: Department of Environmental Protection

By contrast, Maine’s Department of Environmental Protection more inclusively refers to “functionally water-dependent uses,” defined as those uses that require, for their primary purpose, location on submerged lands or that require direct access to, or location in, coastal or inland waters and that cannot be located away from these waters. The uses include, but are not limited to commercial and recreational fishing and boating facilities, excluding recreational boat storage buildings, finfish and shellfish processing, fish storage and retail and wholesale fish marketing facilities, waterfront dock and port facilities, shipyards and boat building facilities, marinas, navigation aids, basins and channels, retaining walls, industrial uses dependent upon water-borne transportation or requiring large volumes of cooling or processing water that cannot reasonably be located or operated at an inland site, and uses that primarily provide general public access to coastal or inland waters. Dept. of Envtl. Protec. 06-096 CMR Ch. 1000.