The Massachusetts Endangered Species
Act Regulations (321 CMR 10.00):
Revisions Effective October 15, 2010
In July 2005, the Division of Fisheries and Wildlife promulgated revisions to the MESA regulations which specified a process for the mapping of Priority Habitat for regulatory purposes, clarified filing requirements for projects and activities located within Priority Habitat, established project review timelines that the Division must meet, and clarified the MESA appeal process. These and other associated changes were designed to ensure a fair and efficient review process for project proponents while providing significant endangered species protections consistent with the MESA statute.
After five years of successful implementation, the Division once again engaged stakeholders and the public in order to consider whether additional changes might lead to further improvements in the regulatory process. This review culminated in an August 26, 2010 vote by the Fish & Wildlife Board to approve MESA regulatory changes that were then promulgated on October 15, 2010. Here, we provide a summary of the 2010 MESA Revisions.
I. Transparency in Priority Habitat Mapping
- Beginning in 2012, the Priority Habitat mapping cycle will be on a 4 year calendar year cycle, which provides a longer period between mapping cycles while still keeping the maps sufficiently current. Note: the next update to the Priority Habitat maps will be in early 2012.
- Updates to future Priority Habitat maps will be subject to a 60 day public comment period. The Division will post the final updated Priority Habitat map, together with a summary response to public comments, on its website.
- The revised regulations clarify that, in certain circumstances the
Division does not delineate Priority Habitat for valid occurrences
of state-listed species based on factors such as the listing status
of the species, the quality of habitat, or the existence of a Conservation
Plan for a Species of Special Concern (discussed below).
II. Conservation Planning and Streamlined Permitting for Species of Special Concern
- Conservation Planning - The Division may elect to develop a Conservation
Plan for a Species of Special Concern whenever the Division determines
that such a plan will be an effective means of ensuring the long term
viability and protection of the species in the Commonwealth. Any such
conservation plan will include:
- A description of the biology, life history, historic distribution, population status of and current threats to the species.
- The identification of conservation protection zones that are important to ensuring the long term viability and protection of the species in Massachusetts, as well as land protection and habitat management targets within the conservation protection zones.
- As discussed in more detail below, inclusion of the proposed general permit that will authorize the take of the species within Priority Habitat but outside of a conservation protection zone established in the plan.
- The Division will provide a 60 day public comment period on any proposed conservation plan.
- Once a conservation plan is finalized, the Division will not
map new Priority Habitat outside of conservation protection zones
for the species of Special Concern covered by the plan. This will
help to reduce change in Priority Habitat boundaries between mapping
Note: The Division has developed a Draft Conservation Plan for the Eastern Box Turtle. Other Conservation Plans may be developed in the future.
- Use of a General Conservation and Management Permit - If a project
resulting in a take of a species covered by a conservation plan will
occur outside of a conservation protection zone established in the
plan, the project may be authorized pursuant to a general conservation
and management permit. Unlike the requirements for an individual permit,
a proponent covered under the general permit would not be required
to do an alternatives analysis, demonstrate that only an insignificant
portion of the local population would be impacted by the project,
or show that every reasonable effort has been made to avoid, minimize
and mitigate impacts on-site before being allowed to propose off-site
- The general permit will require the applicant to implement species-specific best management practices on-site.
- Required mitigation to benefit the affected species will take the form of contributions to a mitigation bank to fund land protection and habitat management within one or more conservation protection zones established in the conservation plan.
III. Permit Mitigation Standards and Guidance
- The revised MESA regulations specify areal mitigation standards for achieving "long-term net-benefit" (see 321 CMR 10.23), based on the listing status of the affected species (Endangered, 3:1; Threatened 2:1; Special Concern 1.5:1). When the Division determines that a departure from the general mitigation standards is required, it will consider the factors specified in the regulations and explain its decision in writing.
- For the purpose of providing clear guidance to project proponents and the public, the Division will post guidelines on its website for avoiding take, minimizing habitat impacts, and achieving the long-term net benefit performance standard in 321 CMR 10.23(1) for those species for which the Division has issued three or more conservation and management permits during a 3 year time period.
- The Division's existing Transition Rules Guidance document, which addresses whether a MESA review is required for projects located outside of Priority Habitat but later mapped, has been modestly expanded and incorporated into regulation. These grandfathering provisions include allowing a proponent who has received an Order of Resource Area Delineation ("ORAD") under the Wetlands Protection Act for a project while outside of Priority Habitat to be exempt from MESA review, provided the proponent obtains an Order of Conditions, or if and Order of Conditions is not needed, one of the other permits or approvals specified in these grandfathering provisions by the expiration of the initial 3 year term of the final ORAD.
- In addition, consistent with the theme of regulating impacts to Species of Special Concern in a more flexible manner, DFW will limit its use of new occurrence information to Endangered or Threatened species (but not Species of Special Concern) as a basis for regulating or commenting in MEPA on a project that is outside of Priority Habitat.
V. Expanded Exemptions from MESA Review
- The Division has added to, expanded and clarified the list of project and activities that are exempt from MESA review under 321 CMR 10.14. The new exemptions include the construction of a new residential dwelling on an infill lot of no greater than 2 acres, provided such lot is part of a residential subdivision approved under the state subdivision control law or a residential housing development that has received a special permit under Chapter 40A or approval under Chapter 40B, and the lot does not require a prospective Order of Conditions under the WPA.
- DFW has also revised 321 CMR 10.18 to incorporate performance standards for obtaining an automatic no take determination for projects that would impact no more than 10,000 s.f. of Priority Habitat for animal Species of Special Concern and are not subject to the Wetlands Protection Act or within 300 ft. of a vernal pool.
VI. Extensions of No Take Determinations and Conservation and Management Permits
- The revised regulations extend the time by which physical work must commence under a no take determination from 3 to 5 years, and give the Division more generally stated authority to extend the time by which physical work must commence or be completed under a conservation and management permit.
VII. Comprehensive MESA Reviews and Permits for Certain Municipalities
- Municipalities that contain substantial areas of Priority Habitat can engage the Division in a joint MESA planning and review process that may result in a comprehensive conservation and management permit that can authorize a local mitigation bank or the pre-permitting of building envelopes within one or more development areas.