Defining Working Waterfronts

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

State: 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 Pilot 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 Pilot 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.

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.

State: Florida

Application: Working Waterfront Protection Act
Florida’s Working Waterfront Protection Act has adopted a broader definition that describes and protects “recreational and commercial working waterfront,” which includes boatyards, marinas, and, since 2006, resort hotels in its definition of working waterfront. Fla. Const. art. VII (amended 2008); Fla. Stat. § 342.201 (2009).

In Florida’s Act, the term “recreational and commercial working waterfront” means a parcel or parcels of real property that provide access for water-dependent commercial activities, including hotels and motels...or provide access for the public to the navigable waters of the state. Recreational and commercial working waterfronts require direct access to or a location on, over, or adjacent to a navigable body of water. The term includes water-dependent facilities that are open to the public and offer public access by vessels to the waters of the state or that are support facilities for recreational, commercial, research, or governmental vessels. These facilities include public lodging establishments, docks, wharfs, lifts, wet and dry marinas, boat ramps, boat hauling and repair facilities, commercial fishing facilities, boat construction facilities, and other support structures over the water. Fla. Stat. § 342.07 (2009).

University of Florida Levin College of Law Conservation Clinic provides additional resources.

Federal Working Waterfront Acts

Compare the Federal Working Waterfront Preservation Act of 2005, introduced by Maine Senator Susan Collins, with the Keep America’s Waterfront Working Act of 2009, introduced by Maine Representative Chellie Pingree. According to Collins’s bill: “A working waterfront area is defined as ‘land that is used for or that supports commercial fishing or the aquaculture industry.’” S. 1723, 109th Cong. (Sept. 19, 2005); see also Josh Clemons, Stephanie Showalter, & Jason Savarese, National Sea Grant Law Center, Working Waterfronts in Alabama and Mississippi (April 2006). This definition did not change when Senator Collins reintroduced a modified version of the bill in 2009. S. 533, 111th Cong. (March 5, 2009).

Representative Pingree’s bill defines water-dependent commercial activities to include “commercial fishing, recreational fishing, tourism, aquaculture, boatbuilding, transportation,” as well as, somewhat ambiguously, “many other water-dependent businesses.” H.R. 2548, 111th Cong. (May 21, 2009).