Historic Mean High Water

V-D-2. Properties Within Chapter 91 Jurisdiction in Provincetown

Chapter 91 applies in tidelands, great ponds, and along certain rivers and streams. Tidelands refer to all land presently or formerly beneath the waters of the ocean, including lands that are always submerged as well as those in the intertidal area, i.e., between the mean high and low water marks. These areas are governed by a concept in property law known as the public trust doctrine, which establishes that all rights in tidelands and the water are held by the state "in trust" for the benefit of the public.

There are two types of tidelands: (1) Commonwealth tidelands which are, for most of the Massachusetts coastline, all lands below the historic low water mark extending out three miles to the limit of state jurisdiction. This area is owned by the Commonwealth or held by private persons in accordance with the trust for the benefit of the public. (2) Private tidelands are those areas between historic high and historic low water, which are usually privately owned but on which the Commonwealth reserves and protects public rights of fishing, fowling and navigation (and the natural derivatives thereof). The historic high water marks are the farthest landward tide lines which existed "prior to human alteration" by filling, dredging, impoundment or other means (310 Code of Massachusetts Regulations 9.02) (see Figure V-1). Thus, Chapter 91 applies to filled as well as flowed tidelands, so that any filled areas, moving inland to the point of the historic high tide line, are subject to jurisdiction.

In Provincetown, the distinction between private and Commonwealth tidelands is somewhat different than in other communities. The area of Provincetown east of Howland Street was formerly part of Truro. As in other coastal towns in Massachusetts, the colonial government of Truro granted owners of upland property ownership rights to the intertidal area adjacent to their property area (the private tidelands), subject to easements guaranteeing the public rights of fishing, fowling and navigation. The area to the west of Howland Street was known as the Province Lands. The Provincetown charter of 1727 did not provide the new town with authority to grant land to its settlers. St. 1893, section 470 (presently found in Massachusetts General Law, Chapter 91, Section 25) divided the Province Lands into two parts. The "town" is the coast west of Howland Street and the "wild lands" is the area to the northeast of Howland Street. On the "town" side of the former Province Lands, private ownership of property is limited to the area landward of the historic mean high water mark. So, west of Howland Street, land seaward of the historic mean high water mark is Commonwealth tidelands.

For planning purposes, the location of the historic high water mark as of 1848 has been delineated on maps prepared under contract to the Department of Environmental Protection (DEP). The map was presented at a public information meeting in Provincetown on September 4, 1996. DEP will use the mapped line as the presumptive line of jurisdiction in its determinations of which structures and uses along the shoreline of Provincetown Harbor require Chapter 91 licensing. A transcription of the DEP Map is provided for reference purposes (see Figure 9. Provincetown Historic Tidelands (3 pages)); the original map should be referred to concerning questions or issues on specific properties. Based on the DEP map, the Plan identifies the existing structures and uses that appear to be located on filled Commonwealth tidelands and other tidelands subject to jurisdiction of the waterways licensing program.