A Massachusetts Appeals Court affirmed a determination by the Commissioner of the Massachusetts Department of Environmental Protection (MassDEP) that a seawall-walkway lies seaward of the historic high water mark based on a comparison of current conditions and historic maps.  Wendy Stone-Ashe v. Department of Environmental Protection, 86 Mass. App. Ct. 16 (Mass. App. July 16, 2014).  Evidence purporting to show the position of an existing seawall, by itself, is insufficient to prove the historic high water mark. 

A group of residents known as Harbor Access Group (HAG) filed a request with MassDEP in 2006 to determine MassDEP’s jurisdiction over a seawall-walkway on a parcel of coastal property in Rockport, Massachusetts.  MassDEP concluded that the seawall-walkway is in fact located seaward of the historic high water mark and therefore within its jurisdiction and subject to public rights.  The trustee of the Stone-Ashe Realty Trust appealed the determination, and a battle of experts ensued.   

DEP’s jurisdiction over tidelands extends only to those tidelands that are seaward of the historic high water mark.  The historic high water mark is defined in 310 CMR 9.02 as “the high water mark which existed prior to human alteration of the shoreline by filling, dredging, excavating, impounding, or other means.”  Where human activity has altered the shoreline, the location of the historic high water mark is “the farthest landward former shoreline” that is ascertainable from historic maps, survey, and other similar documentation.  Thus, locating the historic high water mark requires topographical documentation of such and a comparison to current conditions.

The parties’ experts relied on wholly different sets of evidence.  Whereas HAG’s expert surveyed the present condition of the shoreline and superimposed the survey on historic maps from 1819, 1832, and 1859, plaintiff’s expert relied on language in an 1813 deed from which the plaintiff’s property derived and which reserved a seawall as part of the property.  HAG’s expert concluded that the 1819 map, which most closely aligned with current conditions, showed the historic high water mark landward of the seawall.  Plaintiff’s expert opined that seawalls built in the 1830s were generally built just landward of the high water mark.  86 Mass. App. Ct.  at 20-21. 

The Appeals Court concluded that plaintiff’s expert did not offer sufficient historical evidence for his conclusion that the historic high water mark was at the base of the seawall.  Id. at 25-26 MassDEP’s determination was not one of credibility but of fact:  the expert’s opinion that seawalls constructed in the early 1800s were built landward of the high water mark because they were not designed to withstand wave action was conclusory and unsupported by any historical or geographical facts.  Id.  And although plaintiff’s experts challenged the accuracy of HAG’s expert’s survey and conclusions – contending that the 1819 map was a preliminary plan rather than an “as built” plan  – the details did not render the map unreliable.  Id. at 26-27.