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?
There is no single, generally accepted, legal definition of working waterfront. 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. Depending on the jurisdiction and its policy goals, definitions across the country range from a narrow fisheries-only categorization to more open-ended classifications that include boatyards, marinas, and even resorts and hotels.
Public perceptions of working waterfronts influence the level of protection that may be implemented in a town or region. 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. Some types of working waterfronts, such as mudflats where wild shellfish, worms, and various sea vegetables are harvested, are often overlooked. Included in these working waterfronts are the footpaths necessary to get to those mudflats.
For decades, coastal state policymakers across the country have grown progressively more concerned over the disappearance of large percentages of working waterfront access (land that provides access to coastal waters for persons engaged in water-dependent fisheries and marine-related businesses). According to research conducted by the Island Institute in Maine in 2007 (The Last 20 Miles), in Maine, nearly 70% of Maine’s working waterfront access is privately owned and therefore vulnerable to conversion to another use if sold on the open market. Of Maine’s 149 coastal towns and over 5,300 miles of coastline, only 20 miles of the coastline are devoted to commercial fishing today. Working waterfront is increasingly displaced at the shoreline by residential and other development more competitive in today’s economy than traditional, functionally water-dependent uses.
There are two 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. See the section below for more information on the WWAPP and Current Use Taxation.
maine
Application: Current Use Taxation
Under Maine’s current use taxation policy, “Working waterfront land” means “a parcel of land, or a portion thereof, that fully or partially abuts 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, including, but not limited to, berthing and storage of a boat and maintenance and storage of commercial fishing gear.” 36 M.R.S. § 1132. Commercial fishing activities include both commercial fishing and commercial aquaculture production. 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, the Maine Legislature passed LD 1930 An Act Regarding Working Waterfront Covenants under the Land For Maine’s Future Program. This statute provided 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 or a qualified nonprofit organization. Only nonprofit organizations whose purposes include either (1) the permanent protection of working waterfront or the enlargement of working waterfront opportunities for commercial fisheries business or (2) retaining or protecting coastal community values, culture or heritage, coastal habitat or real property that provides coastal water access” may hold a working waterfront covenant. See Me. Rev. Stat. tit. 33, § 131
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 Working Waterfront Access Protection Program adopted a broader definition of working waterfront that encompasses properties fitting one or more of the following criteria:
For more information on the WWAPP contact Melissa Britsch, Senior Planner, Maine Coastal Program, at melissa.britsch@maine.gov.
Application: Department of Environmental Protection
The Mandatory Shoreland Zoning Act (MSZA) requires municipalities to adopt, administer, and enforce local ordinances that regulate land use activities in the shoreland zone. The MSZA encourages municipalities to give preference to “functionally water-dependent uses”, including through the creation of special districts. 38 Me. Rev. Stat. § 447. Functionally water-dependent uses are defined broadly in the statute 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-related storage and retail and wholesale marketing facilities, waterfront dock and port facilities, shipyards and boat building facilities, marinas, navigation aids, basins and channels, shoreline structures necessary for erosion control purposes, industrial uses dependent upon water-borne transportation or requiring large volumes of cooling or processing water that can not reasonably be located or operated at an inland site and uses that primarily provide general public access to coastal or inland waters. Recreational boat storage buildings are not considered to be a functionally water-dependent use.” 38 Me. Rev. Stat. Ann. § 436-A(6).