Massachusetts Has a Public Beach Access Problem
Jose Da Silva | Boston Magazine | July 28, 2022
https://www.bostonmagazine.com/news/2022/07/28/intertidal-zones-massachusetts-beaches/
Massachusetts summers arrive with gifts—Red Sox games, maybe some free furniture from Jordan’s, and, of course, days to tan and splash along the shore—but also a particular frustration. Full beaches, full parking lots. Not enough shoreline.
In my memory as a kid growing up in the Bay State, this frustration sounds like the dull hum of an outboard boat engine, and it looks like a man in a green wooden skiff.
As kids, my cousins and I would head to Pine Island Cove, in Lewis Bay, to find a specific sandbar. The sandy spit, exposed at low tide, extended into a small channel. We’d run, spring from the sandbar, and achieve a rarified launch from dry land into water so deep we couldn’t touch the bottom. Inevitably, the telltale sound of the outboard would come in from the bay. The man in the skiff worked for Great Island, the group of private property owners who owned the land that rings the cove. He’d order us away, because that stretch of sand? That was private property.
But I think we (and you, too) should own that sandy spit in Pine Island Cove. And, maybe, we can. Our old liftoff spot belonged to a specific category of coastal landscape called the intertidal zone, which is the land between high tide and low tide marks.
In Massachusetts, private land can extend all the way to the mean low tide mark, a standard established in the Colonial Ordinances of 1641-47. As the tide goes out along a private beach, the wet sand exposed becomes private property. In every other coastal state except Maine, Delaware, and Virginia, private property ends at the high tide mark. In some states, like Texas, private property ends even earlier, at the vegetation line before the sand. In other words, the Bay State is a major outlier. And it’s no small quantity of our exquisite coastland that’s affected. According to a recent GBH report, only 12 percent of Massachusetts’ 1,400 miles of coastline is public and open to all 6.8 million residents, a situation exacerbated by the inequitable placement of those few beaches and limited parking.
Before I get into how the state could rectify this issue, I want to offer an important reason why it should: It just feels right. And this is not a sentiment unique to me—societies have been considering the concept that some landscapes shouldn’t be individually owned dating all the way back to the Romans, from whom we got the idea for collective ownership of national parks. In the years since, this notion has been expanded to include the ocean, in our understanding of international waters, and the ocean floor.
Even the Massachusetts intertidal law, though restrictive, reflects this notion, as it grants the non-beach-house-owning public certain exceptions. You can fish, hunt waterfowl, and navigate the waters—so long as you float or swim by without touching the bottom. But I think the law should also encompass what most people want to do at the beach: lounge or loaf or loll about or play in the sand.
There are more urgent reasons, beyond sentiments shared throughout history, to join the other states. For one, as heat levels rise in coming summers, ocean access will be less of a leisure and more of a necessary respite from oppressive urban heat. A public intertidal zone would create public land, albeit ephemeral and sometimes slim and still only accessible by existing public beaches, along every bit of the Massachusetts shore.
Of course, attempts at reform are likely to meet firm opposition, considering many past attempts have failed. In the 1970s, Senate President Billy Bulger attempted to legislate public access to the intertidal zone by adding “walking” to a list of land use exceptions. The Massachusetts Supreme Court struck it down, and then Bulger started a program, now obscure and unused, to buy back tideland from landowners and place it in the public trust. This cycle was initiated again recently by two local politicians who rep parts of the Cape and Islands: Sen. Julian Cyr and state Rep. Dylan Fernandes. Last year, the two filed a bill in the House and Senate that would add “recreation” to the list of public activities permitted in the intertidal zone, effectively allowing the public to use the tidelands at their discretion.
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