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Section 1 - Overview of Environmental Regulations and Permits
This section of the guide is a narrative review of the Massachusetts environmental permitting process and covers project siting, project construction, operations, and maintenance.
The state's Department of Conservation and Recreation (DCR, which is made up of the former Department of Environmental Management and Metropolitan District Commission) administers the Areas of Critical Environmental Concern (ACEC) (1) program. ACECs are complexes of natural resources that have been judged to be of statewide significance, and therefore any project proposed in an ACEC is subject to a heightened regulatory review of wetlands and waterways impacts. Solid waste facilities are prohibited. Improvement dredging and construction of new docks and piers are only permittable under limited circumstances.
The state had a Coastal Wetlands Restriction (2) program under which activities in selected wetlands were curtailed. The restrictions were recorded with the property at the Registry of Deeds. Though new wetland areas are no longer being added to the program, the original restrictions are still recorded and are in effect.
Construction in a floodplain (3) may make it necessary to get flood insurance in order to obtain construction financing. Use of state funds to construct infrastructure, such as roads, and construction of coastal engineering structures is discouraged on barrier beaches (4). Locating a facility near a barrier beach may invoke some prohibitions, which would affect both project design and the availability of state-funded services.
The presence of state (5) or federally listed threatened and endangered species (6) at or near a proposed project site will make obtaining the necessary environmental permits difficult or impossible. The state's Natural Heritage Program staff can help to identify any mapped habitat for endangered species.
Fisheries are of great importance to the Commonwealth. The presence of shellfish beds, spawning runs of anadromous fish, and federally designated essential fish habitat may trigger mitigation requirements and time-of-year restrictions on construction. State fisheries regulations (9) and federal fisheries regulations (10) must be considered. The state's Ocean Sanctuaries Act (11), administered by DCR, also places limits on some projects in state-designated Ocean Sanctuaries.
In urbanized ports, non-water dependent uses generally are not permitted in Designated Port Areas (DPAs) (12) and there are limits on projects that are not considered maritime industrial uses. Some cities and towns have chosen to develop state-approved Municipal Harbor Plans (13). These plans may include siting and design criteria for proposed projects or may prohibit in-water construction or mooring placement.
In Massachusetts, municipalities have the authority to enact local zoning by-laws (14) that affect permissible uses and construction. Increasingly, towns have passed by-laws that include environmental and growth management restrictions. It is important to contact the Town or City Clerk about these provisions.
In addition, local permissions, other state statutory considerations, and federal permits must be taken into consideration. The information that follows is presented roughly in the order in which the permits are issued.
A proposal to construct a project that requires a state environmental permit or that will be constructed with state funds must be reviewed under the Massachusetts Environmental Policy Act (15). This review gives state permitting agencies and the public an opportunity to comment on a proposal while it is still in the planning stages so that environmental concerns and permitting problems can be brought to the applicant's attention and remedied before significant investment is made into a proposal that may require considerable alteration to meet permitting requirements. Anyone proposing a state permitted or state funded project that has potential impacts above certain thresholds would have to file an Environmental Notification Form (ENF) with the MEPA Unit. If significant environmental problems are identified at the ENF stage, or if the project impacts are such that it is automatically required, the MEPA Unit may determine that an Environmental Impact Report (EIR) is necessary. In addition, certain projects, generally those with significant environmental impacts, may be reviewed under the National Environmental Policy Act (16). Analysis of alternatives and impacts are conducted through the preparation of an Environmental Impact Statement (EIS). MEPA and the lead federal permitting agency make every effort to combine the review into a single process.
Concurrent with or right after the MEPA review, a Notice of Intent (NOI) should be filed with the town or city's Conservation Commission, which administers the Massachusetts Wetlands Protection Act (17). Land under the water, coastal banks, dunes, and land subject to coastal storm flowage are all considered wetlands under the Act, and any construction on a wetland must meet its performance standards. The Conservation Commission will issue an Order of Conditions, which specifies construction methods that will avoid or minimize and mitigate damage to wetland areas. Either the applicant or people that object to the Orders can appeal local Orders to DEP. MassDEP will consider the issues raised by the appeal and issue a Superceding Order of Conditions.
In recent years the Wetlands Protection Act has been revised to include the Rivers Protection Act (17). In most towns, an area 200 feet wide on each side of a river is specially protected to limit impacts to resources such as water supplies, storm damage and flood control, and fisheries. In densely developed areas, the protected river corridor is 25 feet wide. The Act is administered by the local Conservation Commission along with its Wetlands Protection Act responsibilities.
Projects of minimal impact to wetlands are assumed to be consistent with state surface water quality standards if a final Order of Conditions has been issued for the project. However, if a construction project requires dredging more than 100 cubic yards of material, or will result in the loss of more than 5,000 square feet of wetlands, alter any salt marsh, or will discharge dredged material or fill to an Outstanding Resource Water (which includes public water supplies, ACECs, and certified vernal pools) a 401 Water Quality Certification for dredging (18) is required from DEP. This Certification represents the state's assurance that dredging will not adversely affect water quality. Conditions of the Certification may include requirements to use silt curtains, "environmental buckets" for certain sediment types, dewatering methodologies, and time-of-year restrictions to protect fish spawning.
Several other state statutes that may affect projects are implemented locally. The Building Inspector administers state and local building codes and can be a good source of information about local permitting requirements. The municipality's Building Inspector will issue a building permit to comply with the Massachusetts State Building Code (19) and the Board of Health will ensure that sewage disposal is accomplished in accordance with the State Environmental Code (Title 5) (20).
To place structures in the water and on adjacent land, and to allow dredging to take place, a license must be obtained under the Public Waterfront Act (Chapter 91) (21). The Chapter 91 or Waterways program regulates activities on filled and flowed tidelands of the Commonwealth. To comply, an engineer will have to prepare stamped drawings of the project layout, which will eventually be filed at the Registry of Deeds along with the deed to the property. Because tidelands are "public trust" lands, (i.e., they are owned in common by the citizens of the state), public benefits must be offered in exchange for private use of this land. The license itself will include conditions that ensure that public benefits, such as public walkways, are constructed.
The last state requirement is the Federal Consistency Review (22) by CZM. Any project that requires a federal permit must be consistent with state coastal policies, as administered by CZM. CZM has worked with both the Corps and the U.S. Environmental Protection Agency (EPA) to develop general permits for projects of minimal environmental impact. If a project is eligible for one of these general permits, it does not generally have to undergo a separate CZM federal consistency review.
On the federal level, Section 10/404 and 103 permits from U.S. Army Corps of Engineers (23) may be required. Section 10 of the Rivers and Harbors Act governs placement of structures in navigable waters and covers issues such as location of federal navigation channels, access of adjacent users to their waterfront, and safe navigation. Section 404 of the federal Clean Water Act ensures that any fill placed in the waters of the U.S. (wetlands are also considered waters of the U.S.) will not harm the quality of the water or the plants and animals in it. Federal resource agencies will consider impacts to wetlands, eelgrass, shellfish, sediment transport, and water quality when conditioning this permit. A Section 103 permit is required to dispose of dredged material in the ocean. Again, the issues of concern are water quality and the impact of dumped sediment on animal and plant life. All of these permits have been incorporated into the Massachusetts Programmatic General Permit (PGP) and, for projects of little or no environmental impact, the permitting process is minimal.
If a project will alter more than five acres of land, a National Pollution Discharge Elimination System (NPDES) Construction Stormwater General Permit (24) is required. This permit is similar to the PGP in that it contains a number of construction provisions, however, as it is a general permit, the application is simply a one page notification to EPA.
State and federal regulatory agencies have made a significant effort in recent years to develop permits that have similar review thresholds and resource definitions. This effort has resulted in a more streamlined review process. For example, federal agencies now usually require minimal review of impacts that have already been conditioned and mitigated by the state permitting process.
Many facilities use large amounts of water in their operation. To preserve water tables and minimum stream flows, Massachusetts implements the Water Management Act (25) and the Interbasin Transfer Act (26). New water withdrawals of 100,000 gallons per day and/or projects that withdraw "significant" amounts of water from one river basin and discharge it to another basin or to the ocean must obtain a permit from MassDEP and the Massachusetts Water Resources Commission.
Discharges of wastewater to municipal treatment plant systems and discharges of industrial wastewater and stormwater are regulated under a federal Clean Water Act, National Pollution Discharge Elimination System (NPDES) (27) permit and MGL Ch 21. In Massachusetts, EPA issues the permit after the state certifies that the proposed discharge is consistent with Massachusetts surface water quality standards through the 401 Water Quality Certification program (28).
Operations may use or generate hazardous materials (29), such as waste oil, solvents, and paints. The property owner or manager is responsible for proper storage and disposal of these hazardous materials. Different materials require different storage containers. The appropriate containers can be obtained from a licensed hauler or an industrial supply company. Disposal must be by a licensed hauler. Although the property owner or manager does not have to have a permit to dispose of this material (the hauler has the permits), he or she is required to identify the wastes that are to be transported so that the hauler can file proper freight manifests with DEP.
Local Boards of Health administer regulations governing the storage, removal, and transport of solid waste (30). Because of the shortage of safe disposal facilities, the state strongly encourages recycling as a means of solid waste disposal.
If an operation has the potential to generate "significant" air pollution, the requirements of the federal and state Clean Air Acts (31) must be met. "Significant" air pollution generally means one or more tons of pollutants generated in a year.
Both an Order of Conditions (17) and Chapter 91 license (21) may have conditions that either require or allow certain kinds future activities. The Order may, for example, include restrictions on equipment that can be dragged or driven across marshes. It probably requires regular maintenance on any stormwater control structures on the property. The town's conservation officer may want to visit the property to ensure that these conditions have been carried out.
A Chapter 91 license is usually written to allow a property owner to construct and maintain the project as originally proposed. This means that structures such as bulkheads and piers in the original footprint can be replaced without getting a new license. If expansion of this type of structure is proposed, however, a new license may be required. Dredging is also permitted under the Chapter 91 license. Maintenance of the existing dredged footprint may be allowed for five to ten years under a single permit. Improvement dredging will require a new Chapter 91 license.
Federal permits from the Corps (23) may include conditions requiring, for example, monitoring the success of planting, shellfish bed seeding, or beach nourishment projects. EPA's NPDES permits (27) will almost certainly require testing and reporting on the quality of the permitted discharge.
Publication Date: Fall, 2003
A publication of the Massachusetts Office of Coastal Zone Management (CZM) pursuant to National Oceanic and Atmospheric Administration Award No. NA170Z2338. This publication is funded (in part) by a grant/cooperative agreement from the National Oceanic and Atmospheric Administration (NOAA). The views expressed herein are those of the author(s) and do not necessarily reflect the views of NOAA or any of its sub-agencies.