The Right to Wharf Out

by Nicholas Walsh, PA

If your land abuts navigable waters, whether fresh or tidal, your property ends at the water’s edge. The state owns the submerged lands. At common law – that’s the law judges make when ruling in court cases, as opposed to the statutes made by Congress or state legislatures – the owner has the right to make reasonable use of the abutting stream, including the right to build a warehouse by the water’s edge, and to build a wharf extending into the water to the edge of the channel. This is the right to “wharf out,” and it still exists – after a fashion.

The right to wharf out has always been subject to the public’s right to use the channel: a shorefront owner never could build a wharf that blocked the channel. Now the right to build a wharf is subject to local, state and federal approvals. Of these, state approval is likely to the biggest challenge.

State approval is controlled by Maine’s Natural Resources Protection Act. This extensive law controls development in the parts of Maine most sensitive to development, including fresh and salt water shorelands.  NRPA requires that any proposed construction or activity submitted to the DEP for a permit “[must] not unreasonably interfere with existing scenic, aesthetic, recreational or navigational uses.” The decision whether to issue the permit lies with Maine Department of Environmental Protection, Division of Land Resource Regulation. Its charge is to see that a project avoids and minimizes damage to the marine environment to the greatest extent possible.

Whether the permit will issue turns on three sets of factors. The first set asks, in effect, whether the damage which even a carefully executed wharf will cause can be avoided – by avoiding building the wharf at all. DEP wants to know how badly you need the wharf. Are you a commercial fisherman? Is there a marina nearby? What about a boat launch? Have you asked about availability?

Second, what kind of physical impact will your project have? Will the pier be built on pilings, granite cribwork or – most difficult to permit – solid fill? What sort of habitat will the project be built on? DEP requires the applicant to sample the habitat, determine what sorts of worms, clams etc. occupy the project site, and their relative abundance. What will the project’s impact be on the non-tidal marine environment? Will the wharf affect shoreland bird or wading bird habitat, an issue of increasing concern to DEP lately? As a practical matter, the landowner will probably hire a biologist.

The third set of factors is often the most tricky: Characterizing how the completed project will affect existing uses. Some of these uses are aesthetic. Will the project be visible from a “National Natural Landmark or other outstanding natural feature?” What about a state or national wildlife refuge, sanctuary, or preserve, or a state game refuge? A state or federal trail? A public site or structure listed on the National Register of Historic Places, a national, state or municipal park, a public open space, or “a publicly owned land visited, in part, for the use, observation, enjoyment and appreciation of natural or man-made visual qualities?” If it is visible, is it visible year ‘round, or does foliage screen it in summer? These are tricky considerations.

Other uses are navigational, and DEP (as well as the Army Corps of Engineers) want impact on navigation minimized. Wharf applications have been denied because the wharf would interfere with the ability of sailboats to race around a cove or small bay, recreation being a recreational “existing use.”

Complicating matters for the would-be wharf owner is that most applications require public notice and a public comment period, and sometimes hearings. Until a few years ago DEP allowed wharfing out applications to proceed by “permit by rule.” Under permit by rule, widely used by agencies, the agency determines that projects which meet certain minimum criteria may be permitted without individual application. But wharf applications are too individual, and too varied, for permit by rule, and after too many trips to court (by denied applicants as well as by aggrieved abutters), DEP dropped permit by rule for wharfs.

Nicholas Walsh is a Portland maritime attorney with 26 years’ experience. He may be reached at (207) 772-2191, or nwalsh@gwi.net.