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Permitting Milestones for Grandfathering under MESA

The NHESP understands that there are project proponents who have taken significant action towards implementing a project, prior to the project site being mapped as Priority Habitat, in reliance on an earlier edition of the Atlas that showed that the project site was not located in Priority Habitat. Some such projects may not be subject to MESA review if certain permitting milestones have been met pursuant to 321 CMR 10.13(2).

The NHESP is currently working on a descriptive guide to determining whether a project meets these grandfathering criteria.

10.13: Sites or Projects Not in Priority Habitat

(2) Projects or Activities that were not in Priority Habitat when they were proposed but the Project Site is thereafter delineated by the Division as Priority Habitat.

Projects or Activities that were not in Priority Habitat when they were proposed but the project site is thereafter delineated by the Division as Priority Habitat shall not be subject to the review by the Division pursuant to 321 CMR 10.18, provided the following project milestones have been met prior to the project site being mapped as Priority Habitat or within the specified timeframes, as set forth in 321 CMR 10.13(2)(a) through (d) below:

(a) MEPA Review

1. The project proponent has filed an ENF and no issue involving MESA was raised in any comment letter submitted during the MEPA comment period by the Division, or, if a MESA issue was raised, it has been resolved to the satisfaction of the Division; and the Secretary determined that an EIR was not required; or

2. The Secretary has determined that the Draft EIR was adequate and no MESA issues were raised by the Division during the MEPA comment period, or, if a MESA issue was raised, it has been resolved to the satisfaction of the Division; or

3. The Secretary has issued a certificate on a Final EIR determining that the project or activity adequately and properly complies with MEPA.

4. Notwithstanding 321 CMR 10.13(2)(a)1.-3. above, Projects or Activities for which an NPC that the Division determines would impact a state-listed species or its habitat is thereafter filed with MEPA are not exempt from MESA review and shall be subject to review by the Division pursuant to 321 CMR 10.18. The scope of the MESA review hereunder shall be limited to those aspects of the Project or Activity that would be materially modified by the NPC, as determined by the Division.

(b) Permitting under the Wetlands Protection Act

If 321 CMR 10.13(2)(a) does not apply, and:

1. The issuing authority has issued an Order of Conditions, a Superseding Order of Conditions or an Order of Resource Area Delineation ("ORAD") for the Project or Activity, provided that, in the case of an ORAD, the project proponent obtains an Order of Conditions, or, if an Order of Conditions is not needed, one of the permits or approvals in 321 CMR 10.13(2)(c ) by the expiration date of the initial three (3) year term of the Final ORAD; or

2. The project proponent has obtained either an Order of Conditions or a Superseding Order of Conditions for the Project or Activity within six (6) months after the publication of the subsequent Priority Habitat map delineating the project site as Priority Habitat,

1. If the Project or Activity is not subject to the Wetlands Protection Act, and 321 CMR 10.13(2)(a) does not apply, then upon the issuance of any permit or final approval for the Project or Activity, provided such permit or approval has been subject to public hearing that was publicly noticed; or

2. if the Project or Activity is not subject to the Wetlands Protection Act, and 321 CMR 10.13(2)(a) does not apply, and the Project or Activity does not require the issuance of a permit or approval for which a public hearing is required pursuant to 321 CMR 10.13(2)(c), then if a building permit for the Project or Activity has been issued.

(d) Notwithstanding 321 CMR 10.13 (2)(a) through (c) above:

1. only that portion of the Project or Activity that meets an exemption category in 321 CMR 10.13 (2)(a) through (c) is not required to be reviewed under 321 CMR 10.18;

2. the Division reserves the right to determine, based on special circumstances, that any Project or Activity meeting an exemption category in 321 CMR 10.13(2)(a) through (d) shall be subject to review under 321 CMR 10.18 to prevent a substantial and permanent modification, degradation or destruction of Priority Habitat for an Endangered or Threatened State-listed Species, as determined by the Division; and

3. no Project or Activity that has already obtained a Take determination or been issued a Conservation and Management Permit by the Division shall qualify for the provisions of 321 CMR 321 CMR 10.13(2).

4. the Division may issue further guidance regarding its interpretation and implementation of 321 CMR 10.13.