Forest Cutting Plan Review

Legal Background

The Natural Heritage and Endangered Species Program (NHESP) reviews land-use projects (e.g., development, excavation, forest harvesting) for compliance with the Massachusetts Endangered Species Act (MESA; M.G.L. c. 131A) and its implementing regulations (321 CMR 10.00). Projects are screened using Priority Habitat, which is defined in 321 CMR 10.02 as the geographic extent of Habitat for State-listed Species as delineated by the Division of Fisheries and Wildlife pursuant to 321 CMR 10.12. Habitat is defined as 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 wintering 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. Priority Habitat is delineated based on records of state-listed species observed within the last 25 years prior to delineation and contained in the NHESP database.

In addition to being used to screen projects for compliance with MESA, Priority Habitat is intended for use with the Massachusetts Environmental Policy Act (M.G.L. c. 30 sec. 61–62H) and the Massachusetts Forest Cutting Practices Act (M.G.L. c. 132 sec. 40–46). A second classification of habitat is termed Estimated Habitat and is intended for use with the Wetlands Protection Act (M.G.L. c. 131 sec. 40) and its implementing regulations 310 CMR 10.00. Estimated Habitat is a subcomponent of Priority Habitat and includes only those areas delineated as Habitat for vertebrate species having wetland-habitat requirements; hence, Estimated Habitat excludes portions of Priority Habitat delineated for plant species and for vertebrate species having strictly upland-habitat requirements.

Under the MESA regulations (321 CMR 10.00), land-use projects that are conducted within Priority Habitat must undergo regulatory review for prevention of harm to state-listed species (defined as “Take” by MESA). However, a project consisting only of cutting and removal of trees for the purpose of selling the trees or their derivative products may be exempt from the project filing requirements of 321 CMR 10.20 when the project is carried out on land maintained in forest use. This exemption requires that the forestry project be conducted in accordance with an approved Forest Cutting Plan under the provisions of the Forest Cutting Practices Act (M.G.L. c. 132 sec. 40–46) and its implementing regulations (304 CMR 11.00*). To determine whether your forestry project may be exempt from the MESA filing requirements of 321 CMR 10.20, please refer to 321 CMR 10.14.

Procedures for Review of Forest Cutting Plans

Forest Cutting Plans are submitted to the Department of Conservation and Recreation (DCR) for review and approval. However, under 304 CMR 11.04(6), the DCR shall forward a Forest Cutting Plan to the NHESP whenever the harvest area proposed in the plan coincides with Priority Habitat. The NHESP reviews the plan to determine whether there is reasonable potential for harvesting activities proposed in the plan to result in "Take" of state-listed species, which may include direct harm (e.g., mortality of individual animals or plants) or indirect harm (e.g., alteration of habitat) to a local population. Following its review of a Forest Cutting Plan, the NHESP issues a letter (commonly called a “determination”) to the DCR that explains whether there is potential for harvesting activities to adversely impact state-listed species. When the NHESP does not expect adverse impacts, it makes no recommendation for modification of the Forest Cutting Plan. When there is reasonable potential for adverse impacts, the NHESP provides a list of recommended modifications of the plan to avoid take of state-listed species. The DCR then modifies the plan accordingly prior to final approval. If procedures for filing the Forest Cutting Plan are followed properly by the landowner, and harvesting activities are carried out in accordance with the approved Forest Cutting Plan, then the landowner shall be presumed to have complied with MESA.

To obtain more information about filing a Forest Cutting Plan and about how the DCR reviews Forest Cutting Plans, please visit the DCR Forestry website. Comprehensive procedures for the filing and review process are described in 304 CMR 11.00, copies of which may be requested from the Massachusetts Trial Court Law Libraries.

Timeline for NHESP Review of Forest Cutting Plans

Upon receipt of a Forest Cutting Plan from the DCR, the NHESP verifies whether the property within which harvesting is proposed coincides with Priority Habitat and/or Estimated Habitat. If the property coincides with Priority Habitat only, then the NHESP has 10 business days to issue its determination to the DCR. If the property coincides with Estimated Habitat, then the NHESP has 15 business days to issue its determination. The review period to which these deadlines pertain begins the first business day following the day that the NHESP receives a complete Forest Cutting Plan (including legible maps) from the DCR.

Streamlining the NHESP Review Process

Modification of a Forest Cutting Plan for compliance with MESA may be frustrating for a landowner when modification results in delay of the harvest, changes in the amount and distribution of timber to be harvested, or changes in the number, type, or location of stream and wetland crossings. The NHESP is working to alleviate this problem by making species-specific management guidelines (termed Conservation Management Practices (CMPs)) available to landowners prior to development of Forest Cutting Plans. With proper planning and attention to detail, incorporation of CMPs into a Forest Cutting Plan should maximize the probability that the plan will be approved by the NHESP without need for modification.

* In 304 CMR 11.00, Estimated Habitat is termed “Estimated Habitat of Rare Wetlands Wildlife” and Priority Habitat is termed “High Priority Sites of Rare Species Habitat.”