321 CMR 10:00 MASSACHUSETTS ENDANGERED SPECIES ACT321 CMR 10.00: MASSACHUSETTS ENDANGERED SPECIES ACT REGULATIONS PART I: GENERAL PROVISIONS: DEFINITIONS, LISTING, 10.01: Introduction and Purpose PART II: DELINEATION OF PRIORITY HABITAT AND 10.11: Introduction PART III: DESIGNATION OF SIGNIFICANT HABITAT 10.30: Designation of Significant Habitat PART IV: ALTERATION OF SIGNIFICANT HABITAT 10.60: Introduction Section: continued PART V: SPECIES LIST, DESIGNATED SIGNIFICANT HABITATS 10.90: List of Endangered, Threatened, and Special Concern Species 321 CMR 10.00 governs the implementation of the Massachusetts Endangered Species Act, M.G.L. c. 131A. PART I: GENERAL PROVISIONS: DEFINITIONS, LISTING, 10.01: Introduction and Purpose (1) Introduction. 321 CMR 10.00 is promulgated by the Massachusetts Division of Fisheries and Wildlife Division pursuant to the authority granted under M.G.L. c. 131A, The Massachusetts Endangered Species Act ("MESA"). 321 CMR 10.00 shall complement MESA and shall have the force of law upon their effective date. (2) Purpose. The purpose of 321 CMR 10.00 is to define and clarify the procedures and rules necessary for the agency to carry out responsibilities under M.G.L. c. 131A, Massachusetts Endangered Species Act. 321 CMR 10.00 establishes a comprehensive approach to the protection of the Commonwealth’s Endangered, Threatened, and Special Concern species and their habitats. Regulations include provisions for the protection of habitat areas (Significant Habitat) where in the Division’s opinion a Project or Activity would result in the Take of any Threatened or Endangered species. Also included are environmental review provisions for habitat areas (Priority Habitat) identified as areas where there is the potential that a Take of any Endangered, Threatened, or Special Concern species may occur as a result of any Project or Activity. Separate review mechanisms are established for Projects or Activities in these areas. Priority Habitats are used for screening Projects or Activities that may result in the Take of State-listed Species and to provide guidance to project proponents regarding a Project or Activity through consultation with the Division. The Priority Habitat review procedures are designed to assist proponents with Projects or Activities that will take place in mapped Priority Habitat in order to avoid a Take of a State-listed Species. Specifically, 321 CMR 10.00 sets forth procedures for the listing of Endangered, Threatened, and Special Concern species, establishes rules and prohibitions regarding activities which Take such species or alter designated Significant Habitats, the Taking and possession of State-listed Species, and procedure for the delineation of Priority Habitat, and the review of Projects or Activities within Priority Habitat. 10.02: Definitions and Abbreviations For the purposes of 321 CMR 10.00, the following words or phrases shall have the following meanings: Agriculture. 10.02: continued waterways, dikes, sub-surface drainage systems, watering facilities, water transport systems, and water storage systems; agricultural composting sites; agricultural storage and work areas; and land under farm structures. 10.02: continued 14. the cutting and removal of trees for the purpose of selling the trees or any products derived therefrom, when carried out in accordance with an approved Forest Cutting Plan under the provisions of M.G.L. c. 132, §§ 40 through 46, and 304 CMR 11.04, provided that upon the receipt of the Division’s recommendations, the Department of Conservation and Recreation shall modify the Forest Cutting Plan to incorporate conditions to protect the State-listed Species. Alter means to change the physical or biological condition of a designated Significant Habitat in any way that detrimentally affects the capacity of the Significant Habitat to support a population of Endangered or Threatened species and shall include without limitation those activities listed in 321 CMR 10.63(1). Animal means any member of the animal kingdom including, but not limited to, any mammal, bird, reptile, amphibian, fish, mollusk, crustacean, arthropod or other invertebrate or any part, product, egg or offspring or the dead body or any part thereof. Aquaculture. 10.02: continued Best Scientific Evidence Available means species occurrence records, population estimates, habitat descriptions, assessments, peer reviewed scientific literature, documented consultation with experts and information contained in the records of the Natural Heritage and Endangered Species Program or other credible scientific reports or species sighting information reasonably available to the Director. Capacity of a Designated Significant Habitat to Support a Population of Endangered or Threatened Species means those biological or physical features in an area which could be utilized by an Endangered or Threatened plant or animal or play a role in the survival of an Endangered or Threatened species. Components of the capacity of a Designated Significant Habitat to support a population of Endangered or Threatened species include, but are not limited to, space, food, shelter, nesting and foraging sites, overwintering sites, host plants, soils, vegetation, hydrologic regime, substrate, degree of exposure to sun or shade, water temperature, and water quality. Director means the Director of the Division of Fisheries and Wildlife within the Department of Fish and Game. Division means the Division of Fisheries and Wildlife within the Department of Fish and Game for purposes of 321 CMR 10.00 located at Rte. 135, North Drive, Westboro, MA 01581. Endangered Species means any species of plant or animal listed as an Endangered species pursuant to 321 CMR 10.03 and so listed at 321 CMR 10.90. Extinction means the loss of a species from its entire global range. Extirpation means the loss of a species from its entire range within Massachusetts. Federal Endangered Species Act means The Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq., and the regulations promulgated thereunder. Federal List means the List of Endangered and Threatened Wildlife (50 CFR 17.11) and the List of Endangered and Threatened Plants (50 CFR 17.12). Federally Listed Species means any species on the federal list. Fisheries & Wildlife Board means the board established pursuant to M.G.L. c. 131, § 1A. Habitat means an area which, due to its physical or biological features, protects or provides important elements for the growth and survival of plants or animals such as food, shelter, or living space, and includes without limitation, breeding, feeding, resting, migratory, or overwintering areas. Physical or biological features include, but are not limited to: structure and composition of the vegetation; faunal community; soils; water chemistry and quality; and geologic, hydrologic, and microclimatic factors. Native, in reference to species, means a species which either occurs, or has occurred, within Massachusetts; provided that the original occurrence of such species is not the result of a deliberate or accidental introduction by humans into Massachusetts nor an introduction elsewhere which spread into Massachusetts. Natural Heritage and Endangered Species Advisory Committee means the committee established pursuant to M.G.L. c. 131, § 5B. Natural Heritage and Endangered Species Program (NHESP) means the program within the Division of Fisheries and Wildlife responsible for the inventory, research, and protection of rare plant and animal species and the maintenance of computerized and manual records of rare species locality information. 10.02: continued Net Benefit means an action, or set of actions, that contributes, on its own or in the context of other actions, significantly to the long-term conservation of a State-listed Species and that the conservation contribution to the impacted State-listed Species exceeds the harm caused by a proposed Project or Activity. Person means an individual, corporation, partnership, trust, association or other private entity or any officer, agent, department or instrumentality of the federal government or any state or its political subdivisions, including but not limited to any agency, department, board, commission or authority thereof. Plant means any member of the plant kingdom including seeds, roots, or other parts. Priority Habitat means the geographic extent of Habitat for State-listed Species as delineated by the Division pursuant to 321 CMR 10.12. Priority Habitats are delineated based on records of State-listed Species observed within the 25 years prior to delineation and contained in the Division’s NHESP database. Project or Activity means any action, including, but not limited to: Record Owner means any person or entity holding a legal or equitable interest, right or title to real property, as reflected in a written instrument or recorded deed, or any person authorized in writing by any such person. Significant Habitat means any specific area of Massachusetts designated pursuant to 321 CMR 10.30 through 10.40. Species means any distinct plant or animal population whose members interbreed or cross pollinate when mature or are self perpetuating through the production of viable seed or offspring and can include any subspecies or variety of plant or animal. Species of Special Concern and Special Concern Species mean any species of plant or animal listed as a Species of Special Concern pursuant to 321 CMR 10.03 and so listed at 321 CMR 10.90. State Agencies means all agencies, departments, boards, commissions, and authorities of the Commonwealth, including any authority of any political subdivision which is specifically created as an authority under special or general law. State-list means the Massachusetts list of Endangered, Threatened, and Special Concern species found at 321 CMR 10.90. State-listed Species means any species on the state list. Take, in reference to animals, means to harass, harm, pursue, hunt, shoot, hound, kill, trap, capture, collect, process, disrupt the nesting, breeding, feeding or migratory activity or attempt to engage in any such conduct, or to assist such conduct, and in reference to plants, means to collect, pick, kill, transplant, cut or process or attempt to engage or to assist in any such conduct. Disruption of nesting, breeding, feeding or migratory activity may result from, but is not limited to, the modification, degradation or destruction of Habitat. Threatened Species means any species of plant or animal listed as a Threatened species pursuant to 321 CMR 10.03 and so listed at 321 CMR 10.90. 10.02: continued Viability of a Significant Habitat to Support a Population of Endangered or Threatened Species means the ability of a Significant Habitat to sustain one or more populations of Endangered or Threatened species in the short and long term and may be expressed as the likelihood that the local population(s) of a given size will persist in a Significant Habitat. Abbreviations: The following abbreviations for agency names, programs, and other terms are used in 321 CMR 10.00. (1) Introduction. The list of Endangered, Threatened, and Special Concern species in effect prior to the effective date of 321 CMR 10.00, as amended by the Fisheries and Wildlife Board on December 30, 1991, is established within 321 CMR 10.90 as the first edition of the list. 321 CMR 10.03 establishes the procedures for amending and updating all subsequent editions of the list. (2) Species Investigations. The NHESP shall conduct investigations, including but not limited to field surveys and reviews of museum collections, herbaria and published reports, in order to determine whether any species of plant or animal should be considered for listing. (3) Eligible Species. Any species native to Massachusetts is eligible for listing. (4) Federally Listed Species. Any species which regularly occurs within Massachusetts and which is listed as endangered or threatened under the provisions of the Federal Endangered Species Act shall be listed in an equivalent category on the state list found at 321 CMR 10.90; provided, however, that the listing of any species on the federal list as a Threatened species shall not limit the discretion of the Director to list said species as Endangered. (5) Criteria for Listing Species. The criteria for determining Endangered, Threatened, or Special Concern status shall be based on biological data, including, but not limited to: (6) List Categories. 10.03: continued (c) Species of Special Concern. The Director shall list as a species of Special Concern any species of plant or animal which has been documented by biological research and inventory to have suffered a decline that could threaten the species if allowed to continue unchecked or that occurs in such small numbers or with such a restricted distribution or specialized habitat requirements that it could easily become threatened within Massachusetts. (7) Proposals for Listing or Delisting Species. Any person may propose the addition or deletion of species to or from the list, or for changes in classification of listed species. The burden of proof for delisting species shall be on the person requesting such change in status. Proposals must be submitted in writing to the Director and must contain the following information: (8) Review of Proposals. Within 21 days of receipt of a proposal and after consultation with the Natural Heritage and Endangered Species Program, the Director shall determine whether sufficient evidence has been submitted to warrant a review of the species' status. Upon a determination that sufficient evidence has been submitted, the Director shall refer the proposal to the Natural Heritage and Endangered Species Advisory Committee for its review. The committee, in conducting its review, may seek the advice of additional persons and shall advise the Director concerning appropriate action. The Director may then recommend any changes to the Fisheries and Wildlife Board. Upon a determination that insufficient evidence has been submitted to warrant further review, the Director shall so notify the person proposing the changes in the list and send a copy to the Natural Heritage and Endangered Species Advisory Committee. (9) Public Hearing. The establishment of the Massachusetts list of Endangered, Threatened, and Special Concern species, and any proposed changes thereto, shall be by regulation after a public hearing subject to the provisions of M.G.L. c. 30A. Not less than 21 days prior to the public hearing, the Director shall make available a summary of the biological data upon which the listing proposal is based. The Director shall submit to the Secretary of EOEA in time for publication in the Environmental Monitor at least 21 days prior to the public hearing a notice of such hearing and the availability of such summary of biological data. (10) List Review Frequency. The Director shall review the list of Endangered, Threatened, and Special Concern species, in consultation with the Natural Heritage and Endangered Species Advisory Committee, at least once every five years for the purpose of listing or delisting species. (11) The List. The official Massachusetts list of Endangered, Threatened, and Special Concern species is found at 321 CMR 10.90. 10.04: Taking and Possession of Species on State and Federal Lists (1) Prohibitions. Except as otherwise provided in 321 CMR 10.04(2) and (3), no person may take, possess, transport, export, process, sell or offer for sale, buy or offer to buy, nor shall a common or contract carrier knowingly transport or receive for shipment, any plant or animal or part thereof on the state list or federal list; provided, however, that ownership, sale, or purchase of real property on which such plant or animal occurs is not prohibited. 10.04: continued (2) Exemptions. (b) Plant Propagation and Nursery Sales. A person may take, possess, propagate, buy, or sell all plants or parts thereof on the state list or federal list in cultivation, provided that such plants or parts thereof are lawfully held under other state or federal laws and shall not have been taken from the wild in Massachusetts after March 27, 1991 or after the time of subsequent listing of said species pursuant to 321 CMR 10.03. (3) Permits for Taking and Possession of Species. Any violation of a permit is a violation of M.G.L. c. 131A, § 2. 10.04: continued (4) Requests for Permits and Information. 10.05: Responsibilities of State Agencies (1) All state agencies shall utilize their authorities in furtherance of the purposes of MESA and 321 CMR 10.00: review, evaluate and determine the impact on Endangered, Threatened and Special Concern species or their habitats of all works, projects or activities conducted by them; and use all practicable means and measures to avoid or minimize damage to such species or their habitats. For the purposes of 321 CMR 10.05, "state actions" means any work, project, or activity either directly undertaken by a state agency, or if undertaken by a person, which seeks the provision of financial assistance by an agency or requires the issuance of permits by an agency (but not including a grant of aid for medical services or personal support, such as welfare or unemployment funds) to a person or a third party on behalf of a person, and "activities" means any acts carried out by a state agency which could affect any state listed species or their habitats. (2) The following types of state actions shall be considered in compliance with MESA and 321 CMR 10.05(1): 10.05: continued (d) All other state actions that do not require a permit under MESA, are not subject to review under MEPA, and do not involve actions on state owned lands shall be presumed to be in compliance with 321 CMR 10.05(1), unless the Secretary of EOEA initiates the following review. The Secretary of EOEA may initiate a review of a state action when he/she determines that such a state action may damage state listed species or their habitats. Such state actions for which the Secretary has initiated such review and which fulfill the consultation and review procedures described below shall be considered in compliance with 321 CMR 10.05(1): (1) Unauthorized Taking, Possession, and Sale of Species on the State or Federal Lists. Any person who violates the provisions of the first paragraph of M.G.L. c. 131A, § 2 or 321 CMR 10.04 or 10.11 through 10.24 shall be punished by a fine of not less than $500 or imprisonment for not more than 90 days or both such fine and imprisonment. Upon a second or subsequent conviction such person shall be punished by a fine of not less than $5,000 nor more than $10,000 or by imprisonment for not more than 180 days or both such fine and imprisonment. (2) Unauthorized Alteration of Significant Habitat. Any person who violates the provisions of the second paragraph of M.G.L. c. 131A, § 2 or 321 CMR 10.61(1) shall be punished by a fine of not less than $1,000 nor more than $10,000 or by imprisonment for not more than 90 days or both such fine and imprisonment. Upon a subsequent conviction, such person shall be punished by a fine not less than $10,000 nor more than $20,000 or by imprisonment for not more than 180 days or both such fine and imprisonment. In addition or as an alternative to such penalties, any such person may be ordered to restore the Significant Habitat to its prior condition. (3) Civil Penalties. Any person who violates M.G.L. c. 131A, § 2 or any rule or regulation adopted thereunder shall be subject to a civil assessment not to exceed $10,000 for each such violation. (4) Multiple Violations. The commission of an act prohibited by M.G.L. c 131A or any rule or regulation adopted thereunder with respect to each individual animal or plant, or part thereof, shall constitute a separate offense. For the Director and Division: MA Division of Fisheries & Wildlife, 251 Causeway Street, Suite 400, Boston, MA 02114. PART II: DELINEATION OF PRIORITY HABITAT AND REVIEW Part II of 321 CMR 10.00 establishes the criteria for the delineation of Priority Habitat, establishes standards and procedures for determining which Projects or Activities are located, or will take place, in Priority Habitat, review procedures and performance standards for determination of whether a Project or Activity will result in a Take, and requirements necessary to obtain a Conservation and Management Permit from the Director, and appeal procedures. Exempt Projects and Activities are defined in 321 CMR 10.14. Persons or entities undertaking Projects or Activities within Priority Habitat that are not exempt from review shall submit those Projects or Activities to the review process set forth in 321 CMR 10.18 or, where applicable, shall request Division review in coordination with MEPA review. 10.12: Delineation of Priority Habitat of State-listed Species (1) Priority Habitats are used for screening Projects and Activities that may result in the Take of State-listed Species and to provide guidance to Record Owners regarding a Project or Activity through consultation with the Division. Priority Habitats shall be delineated based on the Best Scientific Evidence Available. (2) The delineation of Priority Habitat by the Division for all State-listed Species shall be based on the Best Scientific Evidence Available and shall include examination of individual occurrence records in the context of species listing status, and shall apply the following criteria: the nature and/or significance of the occurrence as it relates to the conservation and protection of the species, including but not limited to, evidence of breeding, persistence, life stages present, number of individuals, extent of necessary supporting habitat, and proximity to other occurrences. (3) For each species, habitat mapping guidelines will be prepared that identify the important habitat features, and that describe the methodology by which Priority Habitats are delineated. (4) Where the delineation will extend to areas previously disturbed by Projects or Activities, the delineation shall to the maximum extent feasible and consistent with the Best Scientific Evidence Available and to the extent those areas no longer provide important habitat features for State-listed Species, exclude any such disturbed areas from the delineated Priority Habitat. (5) In the delineation of Priority Habitat and the selection of occurrence records to be included in Priority Habitat mapping, the Division shall take into consideration the listing status of individual species and use a methodology that draws clear distinctions between State-listed Species based on the relative threat of extinction or extirpation for each of those classifications. The Division will develop guidelines and criteria for the acceptance and inclusion of occurrence records into the NHESP data base. (6) Promptly after completion, the Division shall provide town-based Priority Habitat map to planning boards and conservation commissions in cities and towns where Priority Habitats exists. The Priority Habitat maps shall also be made available electronically as a GIS data layer. (7) The delineation of Priority Habitat will be re-evaluated every two years by the Division. The Division shall within 60 days of that re-evaluation publish an updated version of the Priority Habitat map reflecting: 10.12: continued (8) Any Record Owner of real property in Priority Habitat may request reconsideration by the Division of the delineation affecting that Record Owner’s property. Such request shall be made in writing by certified mail to the Division. Within 30 days of the Division’s receipt of a request for reconsideration, the Division shall make available to the Record Owner, consistent with the provisions of M.G.L. c. 66 § 17D, information from the Division’s files relating to the delineation and species listing affecting that property. In providing such records, the Division shall require the Record Owner to execute a confidentiality agreement pursuant to M.G.L. c. 66 §17D and shall redact the names and personal information of persons submitting State-listed Species occurrence information affecting a property. Following the receipt of information used as the basis of the delineation the Record Owner shall notify the Division in writing if they wish to proceed with the reconsideration. If the Record Owner determines to proceed with the reconsideration they shall provide the following information: 10.13: Projects Not in Priority Habitat (1) Projects and Activities that are not located or will not take place in Priority Habitats shall not be subject to the review provision of 321 CMR 10.18, except as provided in 321 CMR 10.13(2), or if, prior to: (2) For Projects or Activities that are subject to MEPA review pursuant to M.G.L. c. 30, § 61 through 62H, the following provisions shall apply: 10.13: continued (a) The Division may, consistent with MEPA regulations at 301 CMR 11.00, review and comment on any Environmental Notification Form, Environmental Impact Report, draft Environmental Impact Report or Notice of Project Change submitted to the MEPA Office. If the Division has credible information indicating the occurrence of a State-listed Species or its habitat within the area to be disturbed by the Project or Activity, the Division may request in its comments to the MEPA Office that the project proponent be required to assess the area to be disturbed by the Project or Activity to determine if State-listed Species are present. Otherwise, the Priority Habitat Map in effect as of the time of the Division’s review of the Environmental Notification Form or Notice of Project Change shall be deemed final for the purpose of the Division’s review. (3) A Record Owner may at any time undertake a voluntary assessment following protocols pre-approved in writing by the Division for which a review fee shall be charged, the amount of which shall be determined by the commissioner of administration under the provisions of M.G.L. c. 7, § 3B, to determine if Threatened and Species of Special Concern are present on a property (or portion thereof). Upon approval of that assessment by the Division, that assessment shall remain valid for the purposes of 321 CMR 10.00 Part II for a period of three years from the date of its approval in writing by the Division. The approval by the Division of a Record Owner’s assessment documenting the absence of Threatened and Special Concern Species shall provide the Record Owner with a guarantee that no new occurrence records will be considered in relation to a MESA or MEPA (321 CMR 13.2) review of the property for a period of three years. This guarantee does not include any species that is subsequently listed. 10.14: Exemptions from Review for Projects or Activities in Priority Habitat The following Projects and Activities shall be exempt from the requirements of 321 CMR 10.18 through 10.23: (1) Agriculture and Aquaculture. The normal maintenance and improvement of land in agricultural or aquacultural use. This exemption shall continue only so long as such land remains in agricultural or aquacultural use. Land in agricultural use does not include those portions of a site that are not in such use and are not designated fallow land. The normal maintenance and improvement of land in agricultural or aquacultural use does not include site preparation for purposes of conversion to another, non-agricultural or non-aquacultural use; (2) the maintenance, repair, or replacement, the vertical expansion, or additions that do not exceed 20% of the footprint of existing commercial and industrial buildings, multifamily and mixed use structures within existing paved areas and lawfully developed and maintained lawns or landscaped areas; (3) the maintenance, repair, or replacement, the vertical expansion, or additions that do not exceed 50% of the footprint of an existing single family or two family home within existing paved and lawfully developed and maintained lawns or landscaped areas; (4) construction of sheds and other out-buildings within existing paved areas and lawfully developed and maintained lawns or landscaped areas; (5) construction, repair, replacement or maintenance of septic systems, utility lines, sewer lines, wastewater treatment systems, or residential water supply wells within existing paved areas and lawfully developed and maintained lawns or landscaped areas; (6) installation, repair, replacement, and maintenance of utility lines (gas, water, sewer, phone, electrical) for which all associated work is within ten feet from the edge of existing paved roads; 10.14: continued (7) routine operation and maintenance on existing electrical, gas, and telecommunication distribution and transmission lines and existing substations, provided that the operation and maintenance are part of an operation and maintenance plan approved by the Division, for which a review fee shall be charged, the amount of which shall be determined by the commissioner of administration under the provisions of M.G.L. c.7, §3B; (8) the maintenance, repair or replacement, but not widening, of existing paved roads, shoulder repair that does not exceed four feet from an existing travel lane, paved driveways, and paved parking areas, but not including parking areas on barrier beaches, coastal beaches, coastal dunes, or salt marshes, as defined by the Massachusetts Wetlands Protection Act (M.G.L. c. 131, § 40 and 310 CMR 10.00), and not including actions that are likely to result in changes in storm water drainage; (9) the maintenance or replacement but not the expansion of existing lawns and landscaped areas; (10) performance of customary land surveying activities, wetland resource area delineations, environmental assessments and investigations performed in accordance with M. G. L. c. 21E, and other customary preliminary site investigations; (11) The active management of State-listed Species habitat, including but not limited to mowing, cutting, burning, or pruning of vegetation, or removing exotic or invasive species, for the purpose of maintaining or enhancing the habitat for the benefit of rare species, provided that the management is carried out in accordance with a habitat management plan approved in writing by the Division, and; (12) The management of vegetation within existing utility rights-of-way provided that the management is carried out in accordance with a vegetation management plan approved in writing by the Division prior to the commencement of work for which a review fee shall be charged, the amount of which shall be determined by the commissioner of administration under the provisions of M.G.L. c.7, § 3B; Any person requesting permission to do an emergency Project or Activity shall specify to the Director why the Project or Activity is necessary for the protection of the health or safety of the citizens of Massachusetts and what agency of the Federal Government, the Commonwealth or political subdivision thereof is to perform the project or activity, or has ordered the Project or Activity to be performed. If the Project or Activity is approved by the Director as an emergency, the approval shall include a description of work which is to be allowed and the duration of the work, and shall not include work beyond that necessary to abate the emergency. Upon completion of an emergency Project or Activity, the authorized person shall file a written report with the Director detailing the work that was done under this emergency authorization and a description of any restoration that may be necessary to restore the site of the Project or Activity. In emergencies that require immediate response in order to protect the health or safety of the public and the responding person is unable to contact the Division prior to responding to the emergency, the Division shall be notified as soon as possible and any additional work shall require approval of the Director. Any Person that initiates an emergency response without prior approval shall file a written report within 30 days with the Director detailing the work that was performed and a description of any restoration that may be necessary to restore the site of the Project or Activity. Projects shall not be segmented or phased to evade or defer the review requirements of 321 CMR 10.18 through 10.23. For the purposes of 321 CMR 10.18 through 10.23, the entirety of a proposed Project subject to review, including likely future expansions, shall be considered, and not separate phases or segments thereof. In determining whether two or more segments or components are in fact parts of one Project, all circumstances shall be considered, including but not limited to time interval between phases, whether the segments or components, taken together, constitute a part of a common plan or scheme, and whether environmental impacts are separable. Ownership by different entities does not necessarily indicate that two segments or components are separate. 10.17: Requests for State-listed Species Information (1) Whether a Project or an Activity is within or encroaches upon a Priority Habitat shall be determined by consulting the Natural Heritage Atlas, which shall be the authoritative delineation of the boundaries of said Priority Habitat. (2) A Record Owner of land in Priority Habitat may submit a written request to the Division for a list of State-listed Species occurring in the Priority Habitat located on that Record Owner’s property. (3) The Division shall respond in writing to such requests within 30 days of receipt of all information required by 321 CMR 10.17(4) and the payment of a fee, the amount of which shall be determined by the commissioner of administration under the provisions of M.G.L. c.7, § 3B. (4) All requests made under 321 CMR 10.17(2) shall include the following information: 10.18: Review of Projects or Activities for Take of State-listed Species in Priority Habitat (1) Except as provided in 321 CMR 10.13 and 10.14, any Project or Activity that will be located or will take place in Priority Habitat shall be reviewed by the Division as provided in this section prior to commencement of any physical work or action in Priority Habitat. The Division shall review any such Project or Activity for the purposes of determining if a Take will result from any temporary or permanent modification, degradation or destruction of Priority Habitat occurring as a result of the proposed Project or Activity. Prior to the commencement of any physical work in Priority Habitat, the Record Owner of the land where such Project or Activity will occur shall submit the information listed in 321 CMR 10.20 to the Division. The Division shall notify the Record Owner within 30 days if the materials submitted satisfy 321 CMR 10.20 and request submission of any missing materials. Once the Division has determined all of the materials required by 321 CMR 10.20, including a review fee, the amount of which shall be determined by the commissioner of administration under the provisions of M.G.L. c.7, §3B, then the Division shall issue a file number for the review of that Project or Activity. (2) After the issuance of a file number, the Division shall review the submitted materials to determine, based on the performance standard in 321 CMR 10.19, if the proposed Project or Activity either: 10.18: continued (b) will result in a Take and cannot proceed as proposed. For purposes of M.G.L. c. 30A, §§ 10 through 14, the determination of a Take shall constitute final agency decision in the form of a denial. The Division’s determination shall be made in writing within 60 days after the issuance of a file number. Failure of the Division to issue a written determination within 60 days after the issuance of a file number shall be deemed to be a determination that the proposed Project or Activity does not result in a Take and requires no further review. The Director may extend the 60-day review period for up to two successive 20 day periods if circumstances beyond the control of the Division require additional time to complete the review, in which case the Division shall notify the Record Owner in writing of the extension and the reason for the extension. The response time may also be extended at the written request of the Record Owner. (3) If the Division has made a determination of a Take, the Record Owner may request a consultation with the Division to discuss options for the Project or Activity that may avoid a Take. (4) Any Project or Activity that receives a determination that no Take will result (whether in writing or by expiration of the 60-day review period, as may be extended) shall not be subject to further review under 321 CMR 10.18 if physical work on the Project or Activity is commenced within three years from the date of the determination (or the expiration of the 60-day review period, as may be extended). If no physical work is commenced on the Project or Activity within that three-year period, or there is a material change in the plans that were submitted to the Division, the Project or Activity may be subject to further review by the Division. 10.19: Performance Standard for Avoidance of Take of State-listed Species Project proponents shall demonstrate that the proposed Project or Activity does not result in a Take, as defined in 321 CMR 10.02 and 10.04. 10.20: Project Filing Requirements The following information shall be submitted to the Division in order to commence review pursuant to 321 CMR 10.18: (1) Projects or Activities Impacting Less than Ten Acres. (2) Projects or Activities Impacting Ten Acres or More. 10.20: continued (f) The area of physical disturbance from the Project or Activity, including the area (square feet or acres) and the percent of the property impacted; Record Owners for Projects or Activities that the Division has determined under 321 CMR 10.18 will result in a Take may either apply to the Director for a Conservation and Management Permit as provided in 321 CMR 10.23, or appeal the decision as provided in 321 CMR 10.25. 10.22: Extension of a Determination (1) The Director may extend a determination made under 321 CMR 10.13 or 10.18 for a period of up to three years. Request for an extension shall be made in writing to the Director at least 30 days prior to the expiration of the determination. (2) The Director may deny the request for an extension and require a review for the remaining work in the following circumstances: 10.23: Conservation and Management Permit (1) The Director may in accordance with provisions of M.G.L. c. 131A, § 3 permit the Taking of a State-listed Species for conservation or management purposes provided there is a long-term Net Benefit to the conservation of the impacted species. (2) If the Director determines that the applicant for a permit has avoided, minimized and mitigated impacts to State-listed Species consistent with the following performance standards, then the Director may issue a conservation and management permit, provided: (3) If a conservation and management permit applicant is unable to demonstrate the long-term Net Benefit performance standard on the project site and the applicant has made every reasonable effort to avoid, minimize and mitigate impacts to the State-listed Species on site, then the conservation and management plan may with the approval of the Director, be designed to meet the long-term Net Benefit performance standard by providing for financial or in-kind contributions toward the development and/or the implementation of an off-site conservation recovery and protection plan for the impacted species. 10.23: continued (4) Within 30 days of the receipt of a final conservation and management plan including a review fee, the amount of which shall be determined by the commissioner of administration under the provisions of M.G.L. c. 7, § 3B or, if a conservation and management plan has been submitted and the Project or Activity is undergoing a MEPA review, then 30 days after the issuance of a final MEPA certificate, whichever is longer, the Director shall make a determination that the submitted plan meets the performance standards and is approved, or a determination that the plan as submitted is inadequate and is denied. Failure of the Director to respond to the final conservation and management plan shall constitute approval of the submitted plan as an approved conservation and management permit. The 30 day response time may be extended for two successive 30 day periods by the Director due to circumstances beyond the control of the Division and the applicant shall be notified in writing of the extension, its period and the reason for the extension. (5) The conservation and management permit, if and when issued, shall contain such terms and conditions as the Director deems necessary or appropriate to carry out the purposes of M.G.L. c. 131A, including but not limited to, adequate funding for the conservation and management permit provided by the applicant, and appropriate monitoring and reporting of the results of the conservation and management permit. After being notified in writing, and confirming that the terms of a conservation and management permit have been fulfilled, the Division will promptly issue a certificate of compliance. Amendments to the definition of the terms “Alter”, “Best Scientific Evidence Available”, “Capacity of a Designated Significant Habitat to Support a Population of Endangered or Threatened Species”, “Priority Habitat”, “Project of Activity”, “Record Owner”, and “Take”, as set forth in 321 CMR 10.02, to regulations concerning “Permits for the Taking and Possession of Species, as set forth in 321 CMR 10.04(3), and to regulations concerning “Delineation of Priority Habitat and Review of Activity or Projects within Priority Habitat” as set forth in 321 CMR 10.11 through 10.24, shall take effect following the approval by the Secretary of Administration and Finance of fees for environmental review under 321 CMR 10.00, and the publication of said fees in the Massachusetts Register and 801 CMR 4.00, and shall apply to any then pending and new requests for information or applications for a Conservation and Management Permit. The most recently published July 1, 2005, Priority Habitat maps, including updated maps posted on Mass Graphic Information System (GIS), available July 1, 2005 will be the maps used for purposes of 321 CMR 10.00. Changes to Priority Habitat maps will follow guidelines set forth in 321 CMR 10.12. Any person who, prior to the publication of notice of hearing of amendments to the provisions of 321 CMR 10.00, requested and obtained a determination from the NHESP Program that the Program is not aware of any Endangered, Threatened or Special Concern species on the subject land, submitted a project that was approved or that the proposed location of the project does not lie near any estimated or Priority Habitats, such determination shall continue to be effective for a period of three years from the effective date of 321 CMR 10.00. (1) Adjudicatory Hearing Before the Division. Any person aggrieved by a final agency decision made pursuant to 321 CMR 10.12, 10.18 or 10.23 shall have the right to an adjudicatory hearing at the Division pursuant to M.G.L. c. 30A, § 11 in accordance with the procedures for informal hearings set forth at 801 CMR 1.02 and 1.03. (2) Any notice of claim for an adjudicatory hearing shall be made in writing and be accompanied by a filing fee the amount of which shall be determined by the commissioner of administration under the provisions of M.G.L. c. 7, § 3B, and be sent to the Division by certified mail, hand delivered or postmarked within 21 days of the date of the agency final decision. 10.25: continued (3) Any notice of claim for an adjudicatory hearing shall include the following information: (4) The presiding officer in an adjudicatory proceeding at the Division may allow a person who demonstrates, as required by 321 CMR 10.25(3)(b), that they are aggrieved to join or intervene in the adjudicatory proceeding. (5) Judicial Review under M.G.L. c. 30A. Any person aggrieved by any final decision of the Division made under 321 CMR 10.12, 10.18, or 10.23 in an adjudicatory proceeding shall be entitled to judicial review in accordance with the provisions of M.G.L. c. 30A, § 14. PART III: DESIGNATION OF SIGNIFICANT HABITAT 10.30: Designation of Significant Habitat (1) Purpose. Listed species are frequently restricted in their occurrence to rare, reduced, or specialized habitat types. Consequently, listed species may be jeopardized if their habitat areas are threatened by direct or indirect habitat altering activities. The types of habitat which presently harbor state listed species are diverse and may include, but are not limited to: coastal plain kettle ponds, sandplain grasslands, limestone wetlands, vernal pools, pitch pine/scrub oak barrens, coastal heathlands, floodplain forests, estuaries, barrier beaches, and marshes with emergent vegetation. (2) Designation Process. The designation of a Significant Habitat shall consist of a review of biological data, a designation proposal, notice and public hearing, a review of the proposed designation, and the Director's finding and designation. On an annual basis, the Director shall consult the records of the Natural Heritage and Endangered Species Program and shall propose for designation as Significant Habitats those areas for which, in her judgment, there is sufficient scientific evidence that the area contains physical or biological features important to the conservation of one or more Endangered or Threatened species populations and which may require special management considerations or protection. 10.32: Notice and Public Hearing (1) Notice of Public Hearing. Before designating an area as Significant Habitat, the Director shall first give notice, as provided in 321 CMR 10.32, of a public hearing. Not less than 30 days prior to the public hearing, notice shall be sent: 10.32: continued (c) at the Director's discretion, to other interested citizens, agencies, and organizations. (2) Publication of Notice. The Director shall submit the notice to the Secretary of EOEA in time for publication in the Environmental Monitor at least 21 days prior to the public hearing. The Director shall also publish notice of the public hearing at least 21 days prior to the date of the public hearing in a newspaper of general circulation in the vicinity of the proposed area and in such appropriate trade, industry, informational, or professional publications as she may choose. (3) Filing Notice With the Secretary of State. The Director shall file notice of the public hearing with the Secretary of State at least 21 days prior to the date of the public hearing. (4) Special Notice to Landowners. Notice to landowners shall include: a citation of authority under which the designation would occur; a general description of the area proposed for designation, copies of pertinent sections of M.G.L. c. 131A and 321 CMR 10.30; a summary of the reasons for such designation; a map of the approximate area to be designated; the time and place of the public hearing, and the method by which persons may make their views known. (5) Public Hearing. The Director and the Fisheries and Wildlife Board shall hold a public hearing prior to designating an area as Significant Habitat. The hearing must be held within 25 miles of the area proposed for designation or at the nearest location where a suitable facility exists. The chairman of the Fisheries and Wildlife Board or her designee shall conduct the public hearing. A summary of the reasons for the designation and a map of the approximate area to be designated shall be made available to the public not less than 21 days prior to the date of the public hearing. 10.33: Review of Proposed Designation Prior to designating an area as Significant Habitat, the Director shall review the information presented at the public hearing, any written comments submitted within 21 days after the public hearing, and any other information the Director deems appropriate, and shall take into consideration the following: (1) the size of the population, as evidenced by current estimates of the number of individuals in the population of the Endangered or Threatened species; (2) the current and foreseeable uses of the land or water, as evidenced by its existing condition; existing roads, structures, and other improvements; proposed uses and improvements; zoning status; existing easements, encumbrances and other restrictions on the use of the land or water; and other regulatory constraints; (3) the current and foreseeable threats to the population or its habitat, as evidenced by existing or proposed activities that may impact or fragment the habitat such as: landform alterations; pollution of surface, ground, or marine waters; alteration of the hydrology; proposals for development projects; and plans for infrastructure developments such as sewers, water systems, and roads; or regional growth trends; and (4) the potential benefits of designation to the population and to the status and welfare of the species generally, as evidenced by how designation will help further the conservation of the population and of the species generally in the state. 10.34: Director's Finding and Designation (1) Decision. Within 60 days of the public hearing held pursuant to 321 CMR 10.32, the Director shall make a final decision, with the approval of the Fisheries and Wildlife Board and the advice of the Natural Heritage and Endangered Species Advisory Committee, whether to designate a proposed area as Significant Habitat. The Director shall decide in favor of designating a proposed area as Significant Habitat upon finding that, on the basis of the best scientific evidence available, the area contains physical or biological features important to the conservation of an Endangered or Threatened species population and, on the basis of the factors listed in 321 CMR 10.33, the area requires special management considerations or protection, and therefore is a Significant Habitat of Endangered or Threatened species. (2) Preparation of Designation Regulation. Upon making a final decision to designate an area as Significant Habitat, the Director shall prepare for filing with the Secretary of State a regulation establishing said area as Significant Habitat, which regulation shall be in the form of an addition to 321 CMR 10.99 (Designated Significant Habitats). (3) Specifications. The Director may specify in the designation regulation certain activities which may or may not alter the Significant Habitat; provided, however, that the Director may specify that such activity shall be considered an alteration, but that the Director may not specify that a categorical alteration under 321 CMR 10.63(1) shall be considered a non alteration. (4) Designation Document. Upon making a final decision to designate an area as Significant Habitat, the Director shall prepare a Designation Document. The Designation Document shall include a general description of the area to be designated, a summary of the reasons for such designation, a citation of authority for the designation, a copy of the designation regulation as submitted to the Secretary of State, and a map or aerial photograph showing the boundaries of the designated Significant Habitat described by metes and bounds or another adequate method. (5) Decision to Not Designate. Upon making a final decision not to designate an area as Significant Habitat, the Director shall prepare a notice of such decision together with a description of the reasons for not designating the Significant Habitat. The Director shall distribute said notice to those persons and publications which received the public notice of the public hearing. (6) Notice of Director's Finding. Upon making a final decision to designate or not to designate an area as Significant Habitat, the Director shall submit a notice of such decision to the Secretary of EOEA for publication in the Environmental Monitor. 10.35: Filing of Designation Regulation and Effective Date No later than seven days after making a decision to designate, the Director shall submit a copy of the designation regulation to the Secretary of State for publication in the Massachusetts Register. The effective date of any designation shall be the date of publication in the Massachusetts Register. 10.36: Distribution of and Availability of Designation Document The Director shall make the Designation Document available for inspection by the public in the Division's office at 251 Causeway Street, Suite 400, Boston, MA, during regular business hours. The Director shall send by first class mail such Designation Documents to zoning boards of appeals, planning boards, conservation commissions, municipal departments of public works, and the boards of selectmen or mayors and city councils, in those communities where the Significant Habitat which is the subject of the Designation Document is located, appropriate regional permit granting commissions, and by certified mail to record owners within seven days of the Director's decision under 321 CMR 10.34. 10.37: Recording of Designation Within 180 days of the effective date of a regulation designating Significant Habitat, or within 30 days after the secretary's finding under 321 CMR 10.38(2) on any pending appeal, whichever is later, the Director shall prepare a Recording Document identifying the location of the Significant Habitat, together with a list of the record owners of such Significant Habitat, which shall be recorded in the proper registry of deeds or, if the land containing Significant Habitat is registered land, in the appropriate registry district of the land court. The Director shall send a copy of the Recording Document by certified mail to each record owner. 10.38: Appeals of Significant Habitat Designations (1) Process. Within 21 days of the effective date of a regulation designating Significant Habitat, record owners of lands or interests in lands containing such Significant Habitat may appeal the Director's designation by sending a notice of appeal by certified mail to the Secretary of EOEA. The Secretary shall hold a hearing on such appeal within a reasonable time, and in no case later than 120 days after the effective date of the regulation designating the Significant Habitat, and shall make a determination thereon within 60 days of the hearing. (2) Standard of Review. The Secretary of EOEA shall reverse a designation of the Director only upon a finding that the designation was without substantial basis in fact. For the purposes of 321 CMR 10.38, "without substantial basis in fact" shall mean that there is no credible scientific information in the record that supports the Director's finding and designation under 321 CMR 10.34. (3) Reversal of Designation. Upon the reversal of a designation the Director shall rescind the regulation or a part thereof, which established such designation, as it affects the appealing record owner, and shall file with the registry of deeds or land court, as appropriate, a recordable document indicating said rescission if a Recording Document previously had been filed with respect to the land. 10.39: Petition to Purchase Significant Habitat In addition to the procedures specified in 321 CMR 10.38, within 21 days of the effective date of a regulation designating Significant Habitat, record owners of land which has been designated as Significant Habitat may petition the Director to consider purchasing either the affected portion or the entire parcel of land upon which the Significant Habitat is located with monies appropriated by the general court or from bond funds. 10.40: Review and Revision of Significant Habitat Designations The Director shall review designated Significant Habitats on a yearly basis and may, from time to time, revise such designations by designating additional areas as Significant Habitat or undesignating areas that no longer warrant designation. Such revisions shall be treated as new designations and subject to the procedures at 321 CMR 10.31 through 10.38. PART IV: ALTERATION OF SIGNIFICANT HABITAT Part IV of 321 CMR 10.00 applies to activities within designated Significant Habitat and is promulgated in addition to those regulations set forth in Parts I, III, and V of 321 CMR 10.00. Part IV of 321 CMR 10.00 establishes rules and procedures for determining which activities are alterations of Significant Habitat and therefore need to obtain an alteration permit from the Director. Activities which are exempted from any review are also defined. Part IV of 321 CMR 10.00 establishes rules and procedures for the review of alterations in Significant Habitats. Permits may be sought through either a standard review process or through procedures coordinated with the MEPA process or the Department of Agricultural Resources’ Rights of way Management program. 10.61: Activities Within Significant Habitat (1) General Rule. Except as otherwise provided, no person may undertake any activity that constitutes an alteration of a Significant Habitat without a written Alteration Permit issued by the Director. (2) Activities Which Require an Alteration Permit. An activity requires an Alteration Permit before commencing if the activity: (3) Activities That Do Not Require an Alteration Permit. An activity does not require an Alteration Permit before commencing if the activity: (4) Determining Whether an Activity Will Occur in a Significant Habitat. (5) Preliminary Notice of Activities. Any person filing a petition, request, or application to a board of health, building inspector, zoning board, planning board, or conservation commission for any kind or type of permit, order, variance, ruling or approval regarding a proposed activity within a Significant Habitat shall send notice in writing to the Director within 21 days of such filing; provided that a filing with the NHESP pursuant to rare species provisions of the Wetlands Protection Act regulations (310 CMR 10.37 or 10.59) shall constitute compliance with this provision. 10.62: Activities Exempt from the Requirement for an Alteration Permit (1) Agriculture and Aquaculture. The normal maintenance and improvement of land in agricultural or aquacultural use shall be exempt from the requirement to obtain an Alteration Permit. This exemption shall continue only so long as such land remains in agricultural or aquacultural use. Land in agricultural or aquacultural use does not include those portions of a site that are not in such use and are not designated fallow land. The normal maintenance and improvement of land in agricultural or aquacultural use does not include site preparation for purposes of conversion to another, non agricultural or non aquacultural use. To qualify for this exemption, land in agricultural use shall have been in such use and not fallow or inactive three out of five years preceding the effective date of designation. To maintain this exemption land in agricultural use must remain in such use but may lie fallow for a period of time if used for agriculture at least three out of every five years. Land lying fallow more than two out of five years shall qualify or continue to qualify for this exemption upon certification by the 10.62: continued Commissioner of the Department of Agricultural Resources that the fallow condition of the land is necessary to maintain the land in agricultural use. (2) Land in Forestry Use. The normal maintenance and improvement of land in forestry use for which the landowner has engaged in the following consultation and certification process, shall be exempt from the requirement of an Alteration Permit. (3) Single Family House. A landowner may construct without the requirement of an Alteration Permit a single family house covering no more than 3,000 square feet of ground and install any necessary utilities to service said house and construct in a reasonable fashion a single access driveway to the nearest public or private way on a lot having an area of at least three acres; provided, however, that the lot on which said construction takes place was owned by said landowner and in existence on January 1, 1990; and provided, further, that said lot was not held in common ownership with any adjoining land as of said date. For purposes of 321 CMR 10.62(3)(e) the phrase "in existence" shall mean a lot shown on a definitive plan that has received final approval under M.G.L. c. 41 or shown on a plan that has been endorsed under M.G.L. c. 41, § 81(P). Upon submission of a Notice of Intent under the Wetlands Protection Act M.G.L. c. 131, § 40 or application for a building permit, whichever is first, landowners intending to construct such a house shall submit by certified mail or hand delivery to the Director a completed form, available upon request from the Division of Fisheries and Wildlife, and supporting documentation demonstrating that the conditions for the exemption have been met. The form shall request the following information: 10.62: continued (4) Projects in Receipt of a Building Permit or which are in Compliance with MEPA. Activities within a Significant Habitat shall be exempt from the requirement of an Alteration Permit if either of the following have occurred prior to the issuance of notice of public hearing of proposed Significant Habitat designation pursuant to 321 CMR 10.32(1)(a): 10.63: Categorical Alterations and Non alterations (1) Alterations of Significant Habitat. The following categories of activities shall always be considered alterations: (2) Non alterations of Significant Habitat. Unless a Significant Habitat designation regulation indicates to the contrary, the following categories of activities shall not constitute alterations of Significant Habitat: 10.64: Director's Determination Whether an Activity Will Alter Significant Habitat (1) Any activity proposed in a Significant Habitat that is not exempted by 321 CMR 10.62, is neither a categorical alteration (321 CMR 10.63(1)) nor a categorical non alteration (321 CMR 10.63(2)) and is not specified as an alteration in the regulation designating the Significant Habitat, must be reviewed by the Director prior to commencing in order to determine whether the activity is an alteration of Significant Habitat requiring an Alteration Permit. (2) Requests for such a determination shall be submitted to the Director on an Activity Description Form. Activity Description Forms are available from the Division and shall request the following information: 10.64: continued (g) commencement and completion dates; (3) The Director shall respond in writing to such requests within 30 days of receipt of all information required on the form. Failure of the Director to respond within 30 days shall be equivalent to a determination that the proposed activity is not an alteration requiring a permit. (4) The Director shall determine that an activity is an alteration requiring an Alteration Permit if the activity will detrimentally affect the capacity of the habitat to support a population of Endangered or Threatened species. Activities requiring an Alteration Permit shall be reviewed pursuant to the Standard Permit Review procedures at 321 CMR 10.66 unless the alteration is subject to Coordinated Permit Review. The following alterations shall be subject to Coordinated Permit Review procedures: (1) MEPA. Alterations which are part of a project subject to environmental review under MEPA shall be reviewed according to the Coordinated Permit Review procedures at 321 CMR 10.67. (2) Utility Rights of way. Vegetation management activities conducted by gas or electric utility companies on existing rights of way shall be reviewed according to the Coordinated Permit Review procedures at 321 CMR 10.68. (1) Submission of Request to Alter Significant Habitat. A person wishing to alter Significant Habitat shall submit to the Director a completed Request to Alter Significant Habitat (RTA) form. RTA forms are available from the Division and shall request the following information: (2) Segmentation. Several alterations of Significant Habitat which are part of a single project shall be described on a single RTA. In conducting permit review, the entirety of a proposed project, including likely future expansions, shall be considered, and not separate phases or segments thereof. In determining whether two or more alterations are in fact parts of one project, all circumstances are to be considered, including but not limited to time interval between phases; whether the alterations, taken together, constitute a part of a common plan or scheme; and whether environmental impacts are separable. Ownership by different entities does not necessarily indicate that two alterations are separate. It is the intent of this rule that projects not be segmented or phased to evade or defer review. 10.66: continued (3) Initial Review of RTA for Completeness. The Director shall review the RTA and determine if it contains all necessary information. The Director shall notify the proponent of any additional information necessary to review the alteration no more than 21 days after receiving the RTA. If the Director does not notify the proponent of any additional information requirements within the 21 day period the RTA shall be considered complete. (4) Director's Review. Within 45 days of receiving all required information, the Director shall determine whether the alteration will reduce the Viability of the Significant Habitat to support the population of Endangered or Threatened species involved; provided, however, that the Director may enter into a written agreement with the proponent to extend the period for such determination. (5) Consultation. Prior to acting on a RTA, the Director will schedule with the proponent a public consultation session to review the proposed alteration and discuss potential impacts. The Director shall publish a notice of the consultation session in a newspaper of general circulation in the area of the Significant Habitat involved at least seven days before the consultation session. (6) Criteria for Issuing Permits. The Director shall apply the following criteria when determining whether the proposed alteration will reduce the Viability of the Significant Habitat. The Director shall determine that the alteration will reduce the Viability of the Significant Habitat if an alteration may directly or indirectly: (7) Issuance of Permit. The Director shall issue an Alteration Permit only upon determining that the alteration will not reduce the Viability of the Significant Habitat. The Alteration Permit shall contain such conditions as are necessary to ensure that the alteration will not reduce the Viability of the Significant Habitat. The Director may include requirements for biological monitoring as a means for assessing compliance with the terms of the Alteration Permit and the success or failure of avoidance, minimization, or mitigation measures. Unless the terms of the Alteration Permit indicate otherwise, the proponent shall complete the permitted activities within three years of the issuance of the Alteration Permit. (8) Denial of Permit. The Director shall issue a permit denial upon determining that the alteration will likely reduce the Viability of the Significant Habitat, including a statement of the reasons for such denial. (9) Revocation. Upon a determination that a proponent is conducting or has conducted activities in violation of an Alteration Permit, the Director may revoke said Alteration Permit. Revocation of a permit shall not limit any other enforcement or penalty for violation of M.G.L. c. 131A or 321 CMR 10.30. 10.67: MEPA: Coordinated Permit Review (1) General. Activities which are part of projects reviewed under MEPA are subject to the following coordinated permit review procedures. (2) Procedures. 10.67: continued (b) If an EIR was prepared for a project and the Final EIR was certified by the secretary, the proponent shall submit to the Director a copy of the secretary's certificate on the Final EIR. 10.68: Vegetation Management on Existing Utility Rights of way: Coordinated Permit Review (1) General. Activities which consist of vegetation management activities conducted by gas or electric utility companies on existing rights of way subject to review under 333 CMR 11.00 are not subject to standard review under 321 CMR 10.66 by the Director if the following coordinated permit review procedures are followed. (2) Review of Vegetation Management and Yearly Operating Plans. Vegetation Management Plans (VMPs) and Yearly Operating Plans (YOPs) shall be submitted to NHESP at the same time they are submitted to the Department of Agricultural Resources, pursuant to M.G.L. c. 132B, § 6B and 333 CMR 11.00. For the purposes of 321 CMR 10.38, the VMP or YOP shall mean the document prepared for the Department of Agricultural Resources pursuant to 333 CMR 11.00 and any maps or plans of appropriate scale and detail requested by NHESP for the purpose of determining the precise location of vegetation management activities. If NHESP does not request any such maps or plans during the review period the VMP or YOP shall be considered complete. No more than 90 days following receipt of the VMP or YOP, NHESP shall provide recommendations to the applicant and the Department of Agricultural Resources with respect to the avoidance, minimization or mitigation of impacts on state listed species. (3) Issuance of a Permit By the Director. 10.68: continued Director shall send a copy of the Alteration Permit to the Department of Agricultural Resources. (4) Failure of NHESP to Comment. Failure of the NHESP to make any recommendations within 90 days of receipt of the VMP or YOP shall be equivalent to the issuance of a permit by the Director. This rule applies only to VMPs or YOPs submitted to NHESP after the issuance of notice of public hearing of proposed Significant Habitat designation pursuant to 321 CMR 10.32(1)(a). Upon request of the landowner or applicant, the Director shall determine whether NHESP failed to comment within 90 days of receipt of the VMP or YOP and certify in writing NHESP's failure to comment if such failure occurred. 10.69: Recording of Alteration Permits Prior to commencement of any alteration permitted by an Alteration Permit, the Alteration Permit shall be recorded by the record owner in the Registry of Deeds, or filed with the Land Court for the district in which the land is located, within the chain of title of the affected property and shall also be noted in the Registry's Grantor Index under the name of the owner of the land upon which the proposed alteration will take place. If the record owner fails to record the Alteration Permit, the Director may do so. In the case of registered land, the Alteration Permit shall also be noted on the Land Court Certificate of Title of the owner of the land upon which the proposed alteration will take place. (1) The Director may issue a variance from the requirement of 321 CMR 10.66 that an alteration not reduce the Viability of the Significant Habitat if she finds that: (2) A request for a variance shall be made in writing and shall include, at a minimum, the following information: (3) The request for a variance shall be sent to the Director by certified mail or hand delivered and shall not be filed until the applicant first completes the review procedures described at 321 CMR 10.66. The Director shall arrange forthwith for publication of notice of receipt of the request in the Environmental Monitor. After reviewing the information submitted with the request for a variance and any other information submitted by any party within 21 days of the publication of the notice in the Environmental Monitor, the Director shall issue a written decision whether to grant the request. 10.71: Appeals of Alteration Permit Decisions (1) Process. Within 21 days of the Director's decision under 321 CMR 10.66, 10.67, or 10.68, or failure to act under 321 CMR 10.66, record owners of lands or interests in lands aggrieved thereby may appeal by sending a notice of appeal to the Secretary of EOEA by certified mail. The Secretary shall hold a hearing on such appeal within a reasonable time, and in no case later than 120 days after such decision. The Secretary shall make a determination thereon within 60 days of the hearing. (2) Standard of Review. The Secretary of EOEA shall overturn a decision of the Director only upon a finding that it was without substantial basis in fact, but shall fully examine on the merits any appeal involving the Director's failure to act under 321 CMR 10.66. For the purposes of 321 CMR 10.71, "without substantial basis in fact" shall mean: In addition to the procedures specified in 321 CMR 10.71, a landowner aggrieved by a decision of the Director may file an action in superior court department of the trial court to determine whether such decision constitutes an unconstitutional taking without compensation. PART V: LISTS, DESIGNATED SIGNIFICANT HABITATS 10.90: List of Endangered, Threatened, and Special Concern Species (1) Introduction. The list in 321 CMR 10.90 contains the names of all species of plants and animals which have been determined to be Endangered, Threatened, or of Special Concern pursuant to M.G.L. c. 131A and 321 CMR 10.03. (2) List Format. The columns entitled "Common Name" and "Scientific Name" define the species listed. In the "Status" columns the following symbols are used: "E" for Endangered, "T" for Threatened, and "SC" for Special Concern. The status defined under the "MA" column denotes the official status of the species in Massachusetts pursuant to M.G.L. c.131A and 321 CMR 10.00. The status under the "US" column is the status of the species under |