|ACEC REGULATORY SUMMARY|
What do the ACEC regulations say?
The Areas of Critical Environmental Concern (ACEC) Regulations (301 CMR 12.00) describe the purpose and procedures for the nomination, review, and designation of ACECs by the Massachusetts Secretary of Energy and Environmental Affairs. The ACEC Regulations also direct the agencies of the Executive Office of Environmental Affairs (in 2007 renamed Energy and Environmental Affairs, or EOEEA) to take actions, administer programs, and revise regulations in order to preserve, restore, or enhance the natural and cultural resources of ACECs. The regulations also call for EOEEA agencies to acquire useful scientific data on ACECs, ensure that activities in or impacting an area minimize adverse effects on the resources, and apply close scrutiny to the environmental review of projects subject to their jurisdiction.
An ACEC designation is a formal state designation of a significant ecological area directed to the actions and programs of Massachusetts environmental agencies. The designation works through the existing state environmental regulatory and review framework and does not change local regulations or zoning. The Department of Conservation and Recreation (DCR) administers the ACEC Program on behalf of the Secretary and coordinates with other state agencies and programs in the review of ACEC nominations and in the implementation of ACEC designations.
It is important to understand that the goals of ACEC designation are not achieved exclusively through state regulations. Besides the regulatory authorities listed below, several state agencies and programs give priority attention to ACECs through non-regulatory means such as grants and technical assistance. In addition, the purpose of ACEC designation – to protect, restore, and enhance the resources – can only be accomplished through the combined efforts of many other public and private partners. These programs and other proactive ways to achieve the goals of ACEC designation are described in other ACEC Program materials and on the ACEC website.
Which state regulations refer specifically to ACECs?
The principal state agencies with regulations referring to ACECs are the Massachusetts Office of Coastal Zone Management (CZM), the Massachusetts Environmental Policy Act (MEPA) Office, and the Department of Environmental Protection (MassDEP).
The following information briefly summarizes their regulations and programs. For more detailed information, request the ACEC Guide to State Regulations and Programs or contact the agencies directly.
• CZM Program Regulations (301 CMR 21.00) call for all appropriate EOEEA agencies to preserve, restore, and enhance complexes of coastal resources of regional or statewide significance through the ACEC Program. CZM develops state policies to protect resources and manage development in the coastal zone and implements coastal policies in several areas as set forth in the CZM Program Policies (301 CMR 21.98) including water quality, habitat, protected areas, coastal hazards, port and harbor infrastructure, public access, energy, ocean resources, and growth management. Through the federal Coastal Zone Management Act, CZM is empowered to ensure that all federal development activities, all federally licensed or permitted activities, or any federally funded activities in the Massachusetts coastal zone are consistent with state coastal policies, including those concerning ACECs.
• MEPA Regulations (301 CMR 11.00) require that state agencies study the environmental consequences of their actions, including permitting and financial assistance, and take all feasible measures to avoid, minimize, and mitigate damage to the environment. Projects subject to MEPA review must involve some state agency action – that is, they are either proposed by a state agency or are proposed by private, municipal, or nonprofit parties and require a permit, financial assistance, or land transfer from state agencies. MEPA review occurs before state permitting agencies act, to ensure that they know the environmental consequences of their actions. The purpose of MEPA review is to ensure that a proposed project will avoid or minimize adverse impacts to the natural and cultural resources of an area.
ACECs are addressed in the MEPA regulations at 301 CMR 11.03(11). The proponent of any project (as defined by the MEPA regulations) located within an ACEC must file an Environmental Notification Form (ENF) for MEPA review, unless the project consists solely of one single family dwelling. What this means in practical terms is that projects located within ACECs subject to MEPA jurisdiction require closer scrutiny than projects located outside of ACECs. Project review thresholds (for the size or type of a project) that require a proponent to file an ENF are reduced to include all projects located within an ACEC.
Examples of projects proposed by state agencies that require the filing of an ENF when located within an ACEC are highway improvement projects proposed by the Massachusetts Highway Department (MassHighway), or park improvement projects proposed by the Massachusetts Department of Conservation and Recreation (DCR). An example of a land transfer from a state agency is the transfer of a utility easement to a public or private entity over land owned by a department, division, or agency of the Commonwealth.
Examples of projects receiving state financial assistance that require the filing of an ENF when located within an ACEC are projects receiving state funds for the construction of school facilities, for chemical treatment of aquatic vegetation for lakes or ponds, or for road improvements that do not qualify as routine maintenance.
Examples of state permits for projects located within ACECs that require the filing of an ENF are a state highway access permit from MassHighway, a request for a Wetlands Protection Act Regulations Superseding Order of Conditions from the Department of Environmental Protection (MassDEP), an Individual Water Quality (401) Certificate from MassDEP, or a sewer extension permit from MassDEP.
Projects that qualify as routine maintenance projects are not required to undergo MEPA review. These projects are defined as any maintenance work or activity carried out on a regular or periodic basis in a manner that has no potential for damage to the environment, or for which performance standards have been developed that avoid, minimize, or mitigate potential environmental impacts to the maximum extent practicable.
• MassDEP regulations and programs regarding ACECs include the Waterways Regulation Program, the Wetlands Protection Program, and the Solid Waste Facilities Site Assignment Regulations.
• Waterways (Chapter 91) Regulations (310 CMR 9.00) jurisdiction extends to activities (such as construction, dredging, and filling) in, on, over or under mean high water in both coastal and inland areas, including in tidelands, previously filled tidelands, Great Ponds, and certain rivers and streams. Through Chapter 91 the Commonwealth seeks to preserve and protect the rights of the public by ensuring that such waterways are used only for water-dependent purposes or otherwise serve a proper public purpose.
The Waterways Regulations do not allow new fill in ACEC waters and place increased limits on new structures within ACECs (see sections 9.32(1)(e) and 9.32(2)(d)). Proposed new, privately owned structures for water-dependent use below the high-water mark, such as private docks or piers, are only eligible for a license provided that such structures are consistent with an ACEC resource management plan adopted by the municipality and approved by the Secretary of Energy and Environmental Affairs.
Improvement (new) dredging is prohibited within an ACEC except for the sole purpose of fisheries and wildlife enhancement. Maintenance dredging remains eligible for a permit. The disposal of dredged material is prohibited within an ACEC except for the purposes of beach nourishment, dune construction or stabilization with proper vegetative cover, or the enhancement of fishery or wildlife resources (see section 9.40(1)(b) regarding dredging or disposal).
• Wetlands Protection Act Regulations (310 CMR 10.00) require that no one shall remove, fill, dredge, or alter any of the coastal or inland (freshwater) wetland resource areas listed in the Wetlands Protection Act without filing a Notice of Intent (NOI) to do so with the local Conservation Commission. Conservation Commissions are required to issue an Order of Conditions (OOC) designed to protect the specific interests of the Act.
For coastal Resource Areas within ACECs, the performance standard is raised to "no adverse effect" on the interests of the Act, except for maintenance dredging for navigational purposes of "Land Under the Ocean" (see section 10.24(5)(b)).
A higher performance standard also applies to the inland (freshwater) wetlands Resource Area known as “Bordering Vegetated Wetland (BVW).” Within an ACEC, potential projects are prohibited that would result in the loss of up to 5,000 square feet or, in some cases, in the loss of up to 500 square feet of BVW (310 CMR 10.55(4)(e)). This standard for BVW applies to all ACECs. Work affecting BVW maybe permitted if it can be authorized under the “limited projects” section listed at 310 CMR 10.53(3).
However, ACEC designation does not prohibit work affecting BVW if such work can be authorized under any section of the Wetlands Protection Regulations, including if the presumption of significance can be rebutted, if the proposed project is for maintenance of permitted stormwater structures (310 CMR 10.55(4)(e)4), or if the proposed project can meet the specific performance standards for “limited projects” listed at 310 CMR 10.53(3). If a project in an ACEC qualifies as a limited project, alteration of BVW may be permitted under 310 CMR 10.53(3), although no limited project may have any adverse effect on specified habitat sites of rare species. For the specific “limited project” provision for the construction, reconstruction, operation, or maintenance of water-dependent projects (310 CMR 10.53(1)), the project must still meet performance standards for impacts to BVW (except the ACEC provision for no impairment, 310 CMR 10.55(4)(e)3). That is, a water-dependent limited project impacting BVW may not impact more than 5000 square feet with replication, or 500 square feet if a “finger-like” wetland. For all reviews of limited projects, Conservation Commissions’ discretion in the evaluation of projects should be based on a balancing of the magnitude of the wetland impacts proposed against the significance of the particular wetland to the interests of the Wetlands Act, the availability of alternatives, minimizing of adverse impacts, and mitigation provided (310 CMR 10.53(3)).
• Solid Waste Facilities Site Assignment Regulations (310 CMR 16.00) prohibit the siting of new solid waste facilities within an ACEC (see section 16.40(4)(d)). The regulations also prohibit the siting of such a facility located adjacent to an ACEC if such a siting “would fail to protect the outstanding resources of an ACEC.”
This regulatory summary is a brief description of state regulations and programs concerning ACECs. More detailed information is provided in the ACEC Guide to State Regulations and Programs available from the ACEC Program in Boston or the ACEC Program website. Contact the particular agency or program cited with further questions.