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Code of Massachusetts Regulations (CMR)
321 CMR 10:00 MASSACHUSETTS ENDANGERED SPECIES ACT REGULATIONS
PART I: GENERAL PROVISIONS: DEFINITIONS, LISTING, TAKING PERMITS, RESPONSIBILITIES OF STATE AGENCIES
Section
10.01: Introduction and Purpose
10.02: Definitions and Abbreviations
10.03: Listing of Species
10.04: Taking and Possession of Species on State
and Federal Lists
10.05: Responsibilities of State Agencies
10.06: Penalties
10.07: Addresses
10.11: Introduction
10.12: Delineation of Priority Habitat of State-listed
Species
10.13: Projects or Activities Not in Priority Habitat
10.14: Exemptions from Review for Projects or Activities
in Priority Habitat
10.15: Emergencies
10.16: Project Segmentation and the Availability
of Comprehensive MESA Reviews and Permits for Certain Municipalities
10.17: Requests for State-listed Species Information
10.18: Review of Projects or Activities for Take
of State-listed Species in Priority Habitat
10.19: Performance Standard for Avoidance of Take
of State-listed Species
10.20: Project Filing Requirements
10.21: Denial and Appeal
10.22: Extension of a Determination
10.23: Conservation and Management Permit
10.24: Effective Date
10.25: Appeal Process
10.26: Conservation Planning for State-listed Species
of Special Concern
PART III: DESIGNATION OF SIGNIFICANT HABITAT
10.30: Designation of Significant Habitat
10.31: Designation Proposal
10.32: Notice and Public Hearing
10.33: Review of Proposed Designation
10.34: Director's Finding and Designation
10.35: Filing of Designation Regulation and Effective
Date
10.36: Distribution of and Availability of Designation
Document
10.37: Recording of Designation
10.38: Appeals of Significant Habitat Designations
10.39: Petition to Purchase Significant Habitat
10.40: Review and Revision of Significant Habitat
Designations
PART IV: ALTERATION OF SIGNIFICANT HABITAT
10.60: Introduction
10.61: Activities Within Significant Habitat
10.62: Activities Exempt from the Requirement for
an Alteration Permit
10.63: Categorical Alterations and Non alterations
10.64: Director's Determination Whether an Activity
will Alter Significant Habitat
10.65: Review Procedures
10.66: Standard Permit Review
10.67: MEPA: Coordinated Permit Review
10.68: Vegetation Management of Existing Utility
Rights of way: Coordinated Permit Review
10.69: Recording of Alteration Permits
10.70: Variance
10.71: Appeals of Alteration Permit Decisions
10.72: Court Action
PART V: SPECIES LIST, DESIGNATED SIGNIFICANT HABITATS
10.90: List of Endangered, Threatened, and Special
Concern Species
10.91: Index to State-listed Species
10.99: Designated Significant Habitats (Reserved)
321 CMR 10.00 governs the implementation of the Massachusetts Endangered Species Act, M.G.L. c. 131A.
PART I: GENERAL PROVISIONS: DEFINITIONS, LISTING,
TAKING PERMITS, RESPONSIBILITIES OF STATE AGENCIES
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.
(a) Land in Agricultural Use means land presently and primarily used
in producing or raising one or more of the following agricultural commodities
for commercial purposes:
1. animals, including but not limited to livestock, poultry, and bees;
2. fruits, vegetables, berries, nuts, maple sap, and other foods for
human consumption;
3. feed, seed, forage, tobacco, flowers, sod, nursery or greenhouse
products, and orna-mental plants or shrubs; and
4. forest products on Land Devoted to Forest Purposes, including but
not limited to biomass, sawlogs, and cordwood, but not including the
agricultural commodities described in 321 CMR 10.02: Agriculture(a)1.
through 3.
Additionally, land in agricultural use means land presently and primarily
used in a manner related to, and customarily and necessarily used in,
producing or raising such commodities, including but not limited to:
existing access roads and livestock crossings; windbreaks; hedgerows;
field edges; bee yards; sand pits used as part of an agricultural activity;
landings for forest products; fence lines; water management projects
such as reservoirs, farm ponds, irrigation systems, field ditches, cross
ditches, canals/channels, grass
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.
Land in agricultural use may lie inactive for up to five consecutive
years unless it is under a United States Department of Agriculture (USDA)
contract for a longer term pursuant to the Conservation Reserves Program
(the Food Securities Act of 1985, as amended by the Food, Agriculture,
Conservation and Trade Act of 1990; and 7 CFR 1410), or it is used for
the forestry purposes described in 321 CMR 10.02: Agriculture(b)14.
The issuing authority may require appropriate documentation, such as
a USDA Farm Plan or aerial photography, to demonstrate agricultural
use.
(b) Normal Maintenance of Land in Agricultural Use means the following
activities, without enlargement as to geographical extent, that are
occurring on land in agricultural use, when directly related to production
or raising of the agricultural commodities referenced in 321 CMR 10.02:
Agriculture(a), and when conducted in accordance with federal and state
laws:
1. all crop management practices customarily employed to enhance existing
growing conditions, including but not limited to: tillage, trellising,
pruning, mulching, shading, and irrigating; and all customary harvesting
practices such as digging, picking, combining, threshing, windrowing,
baling, curing, and drying;
2. the use of fertilizers, manures, compost materials, and other soil
amendments; pesticides and herbicides; traps; and other such materials;
3. the repair or replacement of existing access roads and livestock
crossings;
4. the maintenance of:
a. existing forest boundary lines up to five feet wide limited to cutting
vegetation within the existing boundary lines;
b. windbreaks;
c. hedgerows; and
5. the management of existing field edges, limited to within 100 feet
from the land in production, including the following practices:
a. mowing;
b. burning;
c. brush cutting; and
d. removing trees;
6. the maintenance and repair of existing fences and the management
of temporary fence lines;
7. the cleaning, clearing, grading, repairing, dredging, or restoring
of existing man made or natural water management systems such as reservoirs,
farm ponds, irrigation systems, field ditches, cross ditches, canals/channels,
grass waterways, dikes, sub surface drainage systems, watering facilities,
water transport systems, vents, and water storage systems, all in order
to provide drainage, prevent erosion, provide more effective use of
water, or provide for efficient use of equipment, and all for the purpose
of maintaining favorable conditions for ongoing growing or raising of
agricultural commodities;
8. the maintenance and repair of ongoing agricultural composting sites,
storage areas, and work areas and the storage of fertilizers, pesticides,
manures, compost materials, and other soil amendments;
9. the repair and maintenance of existing farm structures;
10. the seeding of eroded or disturbed areas;
11. maintaining the flow of existing natural waterways;
12. the keeping of livestock and poultry and the management of beehives;
13. the cultivation of cranberries, including the following practices:
a. the activities described in 321 CMR 10.02: Agriculture(b)1. through
11;
b. the application of sand to existing bogs and the excavation of sand
from sand pits;
c. the repair and reconstruction of water control structures including
flumes, pumps, dikes, and piping above and below the ground;
d. the regrading, including modification of drainage, and replanting
of existing cranberry bogs;
e. the repair and replacement of dikes;
f. water harvesting activities; and
g. flooding and flood release;
10.02: continued
14. the cutting and removal of trees for the purpose of selling the
trees or any products derived therefrom, (a) 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
the approved Forest Cutting Plan incorporates the Division's requested
conditions to protect the State-listed Species; or (b) if such commercial
forest management activities do not require a Forest Cutting Plan under
the provisions of M.G.L. c. 132, §§ 40 through 46, and 304
CMR 11.04, then provided a management plan for such activities is approved
by the Division and they occur on Land Devoted to Forest Purposes.
15. pre-commercial forest management activities that do not require
an approved Forest Cutting Plan under the provisions of M.G.L. c. 132,
§§ 40 through 46, and 304 CMR 11.00, limited to pruning, pre-commercial
thinning, selective herbicide application, or other activity designed
to maintain or improve existing timber stock for future commercial harvest,
provided that said management activities are carried out on Land Devoted
to Forest Purposes and in accordance with a management plan approved
in writing by the Division.
(c) Normal Improvement of Land in Agricultural Use, includes but is
not limited to:
1. the following activities when they occur on land in agricultural
use or when they are directly related to production or raising of the
agricultural commodities referenced in 321 CMR 10.02: Agriculture(a),
and the activity is conducted in accordance with federal and state laws:
a. the installation of permanent fencing, windbreaks, hedgerows, or
the cutting of vegetation to create forest boundaries up to five feet
wide;
b. the installation of dikes within a cranberry bog;
c. the construction of farm structures, not including habitable dwellings;
d. the squaring off of fields and bogs, provided there is no increase
in the amount of land in production beyond the minimum increase necessarily
resulting from making the boundary of any field or bog more regular;
e. the construction of by pass canals/channels and tail water recovery
systems;
f. a change in commodity other than from maple sap production or forest
products to any other commodity;
g. the construction of a water management system such as a farm pond,
irrigation system, field ditch, cross ditch, canal/channel, grass waterway,
dike, sub surface drainage system, watering facility, water transport
system, vent, or water storage system, or of a livestock access; and
h. the construction of composting and storage areas.
2. the reconstruction of existing dikes, the reconstruction and expansion
of existing ponds and reservoirs, and the construction of tailwater
recovery ponds and by pass canals/channels when directly related to
production or raising of the agricultural commodities referenced in
321 CMR 10.02: Agriculture(a).
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.
(a) Land in Aquacultural Use means land presently and primarily used
in the growing of aquatic organisms under controlled conditions, including
one or more of the following uses: raising, breeding or producing a
specified type of animal or vegetable life including, but not limited
to, finfish such as carp, catfish, black bass, flatfishes, herring,
salmon, shad, smelt, sturgeon, striped bass, sunfishes, trout, whitefish,
eel, tilapia; shellfish such as shrimp, crabs, lobster, crayfish, oysters,
clams, periwinkles, scallops, mussels, squid; amphibians such as frogs;
reptiles such as turtles; seaweeds such as irish moss and dulse; and
edible freshwater plants.
(b) Normal Maintenance or Improvement of land in aquacultural use means
the following activities, when done in connection with the production
of aquatic organisms as defined above: draining, flooding, heating,
cooling, removing, filling, grading, compacting, raking, tilling, fertilizing,
seeding, harvesting, filtering, rafting, culverting or applying chemicals
in conformance with all state and federal laws; provided, however, that
such activities are clearly intended to improve and maintain land in
aquacultural use and that best available measures are utilized to ensure
that there will be no adverse effect on wetlands outside the area in
aquacultural use, and further provided that removing, filling, dredging
or altering of a salt marsh is not to be considered normal maintenance
or improvement of land in aquacultural use.
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.
DEP means the Department of Environmental Protection.
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.
EIR means a draft or final environmental impact report filed pursuant
to MEPA.
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.
ENF means an environmental notification form filed pursuant to MEPA.
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.
Land Devoted to Forest Purposes means forest land used or intended to
be used for management, cultivation, regeneration, or use of forest
products and for which no contrary or inconsistent use is being pursued
by the Landowner.
MEPA means the Massachusetts Environmental Policy Act, M.G.L. c. 30,
§ 61 through 62H and the MEPA regulations at 301 CMR 11.00.
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.
NPC means a notice of project change filed pursuant to MEPA.
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:
(a) grading, excavating, filling, demolition, draining, dumping, dredging,
or discharging;
(b) the erection, reconstruction, or expansion of any buildings or structures;
(c) the construction, reconstruction, improvement or expansion of roads
and other ways;
(d) the installation of drainage, sewage and water systems;
(e) beach nourishment or dune building;
(f) the construction or reconstruction of seawalls, groins, dikes, jetties
or retaining walls; or
(g) the destruction of plant life.
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.
Secretary means the Secretary of the Executive Office of Energy and
Environmental Affairs ("EOEEA").
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.
DEP Department of Environmental Protection
EIR Environmental Impact Report, as defined under 301 CMR 11.07
ENF Environmental Notification Form, as defined under 301 CMR 11.28
EOEA Executive Office of Environmental Affairs
MEPA Massachusetts Environmental Policy Act, M.G.L. c. 30, §§
61 htrough 62H and its implementing regulations, 301 CMR 11.00.
MESA Massachusetts Endangered Species Act, M.G.L. c. 131A
NHESP Natural Heritage and Endangered Species Program
RTA Request to Alter Significant Habitat Form
VMP Vegetation Management Plan, as defined under 333 CMR 11.00
YOP Yearly Operating Plan, as defined under 333 CMR 11.00
10.03: Listing of Species
(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:
(a) taxonomic status;
(b) reproductive and population status and trends;
(c) whether the species is native or has been introduced;
(d) vulnerability, as determined by threats to the species or its habitat;
(e) specialization, as determined by unique habitat requirements;
(f) restricted distribution, as determined by limited or disjunct geographic
range; and
(g) rarity, as determined by a limited number of occurrences or by occurrence
in limited numbers.
(6) List Categories.
(a) Endangered. The Director shall list as Endangered any species of
plant or animal in danger of extinction throughout all or a significant
portion of its range and species of plants or animals in danger of extirpation
as documented by biological research and inventory.
(b) Threatened. The Director shall list as Threatened any species of
plant or animal likely to become an endangered species within the foreseeable
future throughout all or a significant portion of its range and any
species declining or rare as determined by biological research and inventory
and likely to become endangered in the foreseeable future.
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:
(a) the date submitted; the proponent's name, signature, address, and
telephone number; and the association, institution, or business, if
any, represented by the proponent.
(b) the common and scientific name of the species;
(c) the listing category being proposed;
(d) a detailed justification of the proposed listing or delisting action,
including the past and present population status and distribution in
Massachusetts, and any known or suspected threats;
(e) information on the known status of the species throughout its range;
(f) supporting documentation (for example, literature citations, copies
of written reports, letters from scientific authorities, maps, or species
records, if appropriate); and
(g) other information requested by the Director.
(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.
(a) In Transit. Any person may transport, possess or sell, in accordance
with the terms of any necessary state and federal permit, any plant
or animal or part thereof on the state list or federal list, which enters
Massachusetts from another state or from a point outside the territorial
limits of the United States; provided that such plants or animals or
parts thereof are lawfully possessed outside of Massachusetts; and provided
further that such plants or animals are possessed not more than 24 hours
in Massachusetts and are transported through Massachusetts while in
transit to another destination outside of Massachusetts. For the purposes
of 321 CMR 10.04(2)(a), necessary state and federal permits shall include,
but not be limited to, those required under M.G.L. c. 131 and the regulations
promulgated thereunder and any other state or federal permit required
for the possession or sale of species on the state list or federal list.
(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.
(c) Animal Possession Prior to Effective Date. Any person may possess
any animal, or part thereof, on the state list or federal list, that
was lawfully possessed on March 27, 1991 or at the time of subsequent
listing of said species pursuant to 321 CMR 10.03, provided however,
that no such animal or part thereof may be sold or traded for value.
(d) Federally Authorized Uses of Species on the Federal List.
1. Any person may, in accordance with all applicable federal laws, possess,
sell, buy, or trade any finished products, including but not limited
to carvings, clothing, jewelry, and similar goods, made from species
on the federal list.
2. Any person may, in accordance with all applicable federal laws, possess
parts of plants or animals on the federal list for ceremonial and religious
purposes.
(3) Permits for Taking and Possession of Species. Any violation of a
permit is a violation of M.G.L. c. 131A, § 2.
(a) Scientific and Educational Use Permits. The Director may in accordance
with provisions of M.G.L. c. 131, § 4 and c. 131A, § 3 permit
the taking, possession, purchase, sale, transportation, exportation
or shipment of any species on the state list for scientific or educational
purposes, including but not limited to scientific collecting, educational
use, wildlife rehabilitation, salvage, or bird banding.
(b) Conservation and Management Permit. The Director may in accordance
with provisions of M.G.L. c. 131A, § 3 permit the taking of a species
on the state list for conservation or management purposes pursuant to
the criteria and process set forth in 321 CMR 10.23.
(c) Captive Propagation of State Listed Species.
1. Animals. The Director may permit, in accordance with provisions of
M.G.L. c. 131, § 23, and 321 CMR 2.12, the artificial propagation
and maintenance of animals on the state list. Such permits may be issued
only after the Director approves a written propagation program prepared
by the applicant.
2. Plants. The Director may permit the artificial propagation and maintenance
of plants on the state list. Such permits may be issued only after the
Director approves a written propagation program prepared by the applicant.
(d) Falconry. The Director may permit the possession, barter or sale
of species of raptors listed on the state list or federal list which
have come from captive propagation in compliance with 321 CMR 3.04 and
50 CFR 21, for the purposes of falconry. The Director may permit the
taking of Special Concern species for falconry so long as such taking
is in accordance with 321 CMR 3.04 and any additional conditions established
by the Director designed to insure that such taking does not jeopardize
the security of breeding populations of the species within Massachusetts
or outside the state.
(e) Public Health. Except as prohibited by federal law, the Director
may permit the removal, capture, or destruction of any state listed
species to protect human health during the period and within the geographic
area of a public health hazard as certified in writing by the Commissioner
of Public Health; provided that the Director has found that all reasonable
efforts have been undertaken to avoid the removal, capture or destruction
of such species.
10.04: continued
(4) Requests for Permits and Information.
Requests for information regarding a Conservation and Management permit
should be sent to: Environmental Review, Natural Heritage and Endangered
Species Program, Division of Fisheries and Wildlife, Rte. 135, Westborough,
MA 01581.
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):
(a) State actions that have received any permits required pursuant to
MESA and 321 CMR 10.00.
(b) State actions that are part of a project which has been reviewed
under MEPA and the Secretary of EOEA has issued either a certificate
on an ENF stating that project does not require the preparation of an
EIR or a certificate on a Final EIR stating that the EIR fully and adequately
complies with MEPA, provided, however, that said project has been reviewed
under MEPA regulations (301 CMR 11.00) that have incorporated review
thresholds for permits issued under 321 CMR 10.00 and that no taking
will occur or that a Conservation and Management Permit has been issued.
(c) State actions occurring on state owned land that are in conformance
with a management plan which was developed in accordance with the following
inventory and planning procedures and management policies:
1. Inventory Procedures. State agencies shall request and the NHESP
shall provide information on the location, biology, and habitat requirements
of state listed species documented by the NHESP as occurring on said
agency's lands. NHESP shall also provide to state agencies such information
and recommendations as are necessary to allow said agencies to use all
practicable means and measures to avoid or minimize damage to state
listed species or their habitats.
2. Planning Procedures. State agencies shall submit to NHESP any draft
management plans they prepare for state owned lands on which state listed
species are known to occur. NHESP shall review such draft plans and
provide comments and recommendations to the state agency concerning
the protection, conservation, and restoration of the listed species
on the land subject to the plan. Such review and recommendations shall
be repeated at least once every five years or every time the land management
plan is updated, whichever is sooner.
3. Management Policies. Unless specifically required otherwise by statute,
localities on state owned lands that provide habitat for state listed
species shall be managed for the benefit of such listed species. Said
agencies shall give management priority to the protection, conservation,
and restoration of Endangered, Threatened, and Special Concern species
occurring on state owned lands. All practicable means and measures shall
be taken to resolve conflicts between the protection, conservation,
and restoration of state listed species on state owned lands and other
uses of such lands in favor of the listed species.
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 EOEEA initiates the following review.
The Secretary of EOEEA 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. Upon notification by the Secretary of EOEEA that a state action may
damage state listed species or their habitats the affected agency shall
initiate consultation with NHESP. Said agency shall submit to NHESP
such information that is necessary for the NHESP to determine the location
and nature of the proposed state action.
2. NHESP shall review the information submitted by the agency and determine
if the state action is likely to result in damage to any state listed
species or their habitats. If the NHESP determines that the state action
is likely to damage state listed species or their habitats the NHESP
shall provide to the agency such guidance and information that is necessary
to allow the agency to avoid such damage. If NHESP determines that the
state action is not likely to result in damage to state listed species
or their habitats the NHESP shall provide a written opinion to the agency
that such state action is in compliance with MESA and 321 CMR 10.05(1).
An agency that receives guidance and information from NHESP regarding
the avoidance of damage to state listed species and their habitats shall
take all practicable means and measures to modify their actions to avoid
such damage.
3. Said agency shall submit to the Secretary of EOEEA and NHESP evidence
that all practicable means and measures have been taken to avoid damage
to state listed species and their habitats. The Secretary shall certify
that the state action is in compliance with 321 CMR 10.05(1) if she
finds that the agency has taken all practicable means and measures to
avoid damage to state listed species and their habitats pursuant to
the recommendations of NHESP.
10.06: Penalties
(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.
10.07: Addresses
For the Director and Division: MA Division of Fisheries & Wildlife,
251 Causeway Street, Suite 400, Boston, MA 02114.
For the Natural Heritage & Endangered Species Program: Natural Heritage
& Endangered Species Program, MA Div. of Fisheries & Wildlife,
Route, 135, Westborough, MA 01581.
PART II: DELINEATION OF PRIORITY HABITAT AND REVIEW
OF PROJECTS OR ACTIVITIES WITHIN PRIORITY HABITAT
10.11: Introduction
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. The Division also reserves the right not
to delineate an area as Priority Habitat with occurrence records of
State-listed Species of Special Concern or, in exceptional circumstances,
State-listed Endangered or Threatened Species, based on factors such
as the listing status of the species, the known population status of
the species or the quality of habitat, or the existence of a Conservation
Plan for a State-listed Species of Special Concern issued by the Division
pursuant to 321 CMR 10.26
(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) Division Updates to the Priority Habitat Map.
(a) The delineation of Priority Habitat will be re-evaluated every four
years by the Division. The current Priority Habitat map issued by the
Division in October, 2008 shall remain in effect through calendar year
2011, or until such time as a new Priority Habitat map is issued by
the Division. The Successor Priority Habitat maps will be on a four
calendar year cycle. Revisions or updates to the Priority Habitat map
are generally the result of the Division's consideration of factors
such as:
1. the Division's re-evaluation of the existing basis for a delineation,
including whether there have been relevant changes to the Best Scientific
Evidence Available;
2. any revised delineation made by the Division in the preceding four
years in response to a request for reconsideration pursuant to 321 CMR
10.12(8) or as the result of a final adjudicatory or final judicial
appeal;
3. the existence of any new occurrence records contained in the NHESP
data base or any occurrence records observed more than 25 years prior
to delineation, which, because of their age, are no longer used to delineate
Priority Habitats, but are retained in the NHESP data base for historical
purposes;
4. the extent to which an existing or potential delineation includes
areas previously disturbed by Projects or Activities; or
5. a change made by the Division to the listing status of a species;
and
6. upon the issuance of any Conservation Plan for a State-listed Species
of Special Concern by the Division pursuant to 321 CMR 10.26, the subsequent
updated Priority Habitat maps, beginning with the Natural Heritage Atlas,
15th Edition, will not include the delineation of new Priority Habitat
outside of the conservation protection zones established in the Conservation
Plan for that species.
(b) Upon completion of its re-evaluation of the Priority Habitat map,
the Division will provide a sixty (60) day public comment period on
all proposed revisions or updates to the map. Specifically, the Division
will request public comment on the status of areas proposed for delineation
or removal as Priority Habitat regarding the physical or biological
features of the habitat, or the current scope of existing development
in the area. The Division will post its proposed updated version of
the Priority Habitat map, together with a summary explanation of the
significant changes to the map, on the Division's website. The Division
will also publish notice of the availability of the proposed updated
Priority Habitat map and the public comment period on the Division's
website, in the Environmental Monitor, in a newspaper with state-wide
circulation, and in other newspapers with regional or local circulation,
as deemed appropriate by the Division, and provide such notice to planning
boards, building inspectors and conservation commissions in municipalities
where existing or new Priority Habitats have been or are proposed to
be delineated or modified.
(c) Within thirty (30) days after the close of the public comment period,
the Division will determine whether any modifications to its proposed
updated Priority Habitat map are appropriate, evaluating the relevance
and substance of a public comment against the Division's criteria for
delineating Priority Habitat in 321 CMR 10.12(2). The Division reserves
the right to take more time to complete its review of the public comments
and for determining whether any modifications to its proposed updated
Priority Habitat map are appropriate.
(7) Division's Publication of the Final Updated Priority Habitat Map.
(a) The Division will post the final updated Priority Habitat map, together
with a summary response to public comments and a summary explanation
of any significant modifications to the proposed updated map, on the
Division's website within thirty (30) days of its determination of whether
any modifications to its proposed updated Priority Habitat map are appropriate.
The Division will also make available the final updated Priority Habitat
map to the public electronically as a geographic information system
(GIS) data layer.
(b) The Division will provide the final town-based Priority Habitat
map to planning boards, building inspectors and conservation commissions
in municipalities where Priority Habitats have been delineated.
(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:
(a) Name;
(b) Address;
(c) Ownership interest in the property;
(d) Acreage of the property;
(e) A copy of a USGS topographic map in scale 1:24,000 or 1:25,000 with
the property location clearly marked and centered on the page, and;
(f) A clear statement explaining the reasons for the reconsideration
request with specific reference to scientific studies, records, surveys
or other information relevant to the request.
Within 45 days of its receipt of such information 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, the Division
shall, applying the criteria in 321 CMR 10.12(2), issue a written decision
either confirming the original delineation or modifying that delineation
as the Division determines is warranted by the additional information
submitted to the Division. The decision shall state the grounds for
the Division's determination, and shall be mailed by certified mail
to the Record Owner. This decision shall be considered the final agency
action for the purposes of M.G.L. c. 30A. No Record Owner may appeal
the delineation in the Priority Habitat Map pursuant to c. 30A without
first requesting reconsideration as provided above. However, the failure
to request reconsideration shall not preclude a Record Owner from challenging
the Priority Habitat delineation in connection with the review of a
Project or Activity pursuant to 321 CMR 10.18 or in any subsequent appeal
relating to that review.
10.13: Sites or Projects Not in Priority Habitat
(1) Sites or Projects and Activities that are not located or will not
take place in Priority Habitats.
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 in the circumstances described in 321 CMR 10.13(1)(a)
and (b) below:
(a) New Occurrence Information is Received by the Division.
1. If the Division receives new information on a State-listed Endangered
or Threatened Species occurrence relating to a site that is not located
in Priority Habitat, the Division may determine, within 30 days of its
receipt of such occurrence information, whether the new State-listed
Species occurrence meets the criteria for delineation of a Priority
Habitat under 321 CMR 10.12, and whether any proposed Project or Activity
at the site shall be reviewed under 321 CMR 10.18, provided, however,
that the Division's determination is issued to the Record Owner of the
site:
a. prior to the issuance of a final Order of Conditions by a conservation
commission or DEP for a Project or Activity on the site;, or
b. if the Project or Activity is not subject to the jurisdiction of
the conservation commission, then prior to the issuance of any permit
that has been subject to public hearing that was publicly noticed; or
c. if not subject to such a public hearing then prior to the issuance
of a building permit;
2. Only that portion of the Project or Activity that meets the exemption
criteria in 321 CMR 10.13 (1)(a)1 is not required to be reviewed under
321 CMR 10.18. Subject to the limitation in 321 CMR 10.13(1)(a)1, the
Division shall notify the Record Owner upon its receipt of the new occurrence
information, and shall provide the written determination described in
321 CMR 10.13(1)(a)1 to the Record Owner(s) of all the affected properties
within 45 days of the receipt of such new occurrence information.. Any
Division determination made pursuant to 321 CMR 10.13(1)(a)1 shall remain
valid for a period of five years after the date of its issuance.
(b) The Division's MEPA Comments Request an Assessment of whether a
State-listed Species is Present.
1. When a Project or Activity that is not located in Priority Habitat
is subject to MEPA review pursuant to M.G.L. c. 30, § 61 through
62I, the Division may, consistent with MEPA regulations at 301 CMR 11.00,
review and comment on any ENF, draft supplemental or final EIR or NPC
submitted to the MEPA Office. If the Division has credible information
indicating the occurrence of a State-listed Endangered or Threatened
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 such State-listed Species
are present. Otherwise, the Priority Habitat Map in effect as of the
time of the Division's review of the ENF, the draft, supplemental or
final EIR or the NPC shall be deemed final for the purpose of the Division's
review, except where the project site is subsequently mapped as Priority
Habitat prior to the issuance of a MEPA certificate for the final stage
of MEPA review by the Secretary of EOEEA, in which case the provisions
of 321 CMR 10.13(2)(a) shall apply.
2. Following the issuance of a certificate by the Secretary of Environmental
Affairs for the final stage of review for a Project or Activity any
determinations made in or pursuant to that certificate with respect
to the delineation of Priority Habitat or avoiding, minimizing and mitigating
the Take of State-listed Species, provided there is no material change
requiring the filing of a Notice of Project Change for the Project or
Activity, shall remain valid for the purposes of 321 CMR 10.00 for a
period of five years.
(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,
(c) Other Permitting Actions
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.
(3) Voluntary Assessment of Whether State-listed Species are Present.
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 five 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.
(a) Normal Maintenance and Improvement of Land in Agricultural or Aquacultural
Use.
All activities described under the definitions of Normal Maintenance
and Improvement of Land in Agricultural Use or Normal Improvement of
Land in Agricultural Use Aquacultural Use are exempt. 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;
(b) Activities on Land adjacent to or in the immediate vicinity of Land
in Agricultural Use or Land in Aquacultural Use.
The following activities on land adjacent to or in the immediate vicinity
of Land in Agricultural Use or Land in Aquacultural Use are exempt,
provided such activities are carried out in accordance with a habitat
management plan approved in writing by the Division:
1.the construction, expansion, or reconstruction of a water management
system such as a reservoir, farm pond, ditch, dike, tailwater recovery
systems or canal/channel;
2. the construction or expansion of storage, staging, work and composting
areas;
3. farm structures, not including habitable dwellings, provided that
the cumulative footprint of such farm structures does not exceed 4,000
square feet;
4. the installation of permanent windbreaks or hedgerows, or the cutting
of vegetation to create forest boundaries up to five feet wide;
5. the squaring-off of fields and bogs, provided there is no increase
in the amount of land in production beyond the minimum increase necessarily
resulting from making the boundary of any field or bog more regular;
and
6. the excavation of sand from sandpits (vertically and horizontally)
for use in associated, on-site, agricultural and aquacultural operations,
provided that such excavation activities are reasonable in scope and
used exclusively for the related on-site crop production.
(c) The exemption under 321 CMR 10.14(1)(b) does not include site preparation
for purposes of conversion to land in production or to other non-agricultural
or non-aquacultural uses, or the sale or off-site use of any commodity
that is associated with the exempt on-site agricultural and aquacultural
activities.
(2) non-commercial forest management activities that do not require
an approved Forest Cutting Plan under the provisions of M.G.L. c. 132,
§§ 40 through 46, and 304 CMR 11.00, including but not limited
to pruning, cutting of fuelwood for personal use, planting of tree seedlings,
or selective cutting of trees for aesthetic purposes, provided that
said management activities are carried out on Land Devoted to Forest
Purposes and in accordance with a management plan approved in writing
by the Division;
(3) the maintenance, repair, removal, or replacement, or additions that
do not exceed 50% 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;
(4) the maintenance, repair, or replacement, or additions, including
the construction of a driveway for an existing single family or two
family home within existing paved and lawfully developed and maintained
lawns or landscaped areas, provided there is no expansion of such existing
paved, lawn and landscaped areas;
(5) construction or removal of structures that are secondary to the
primary residence and located within existing paved areas and lawfully
developed and maintained lawns or landscaped areas on residential properties,
provided there is no expansion of such existing paved, lawn and landscaped
areas;
(6) construction, repair, replacement or maintenance of septic systems,
private sewage treatment facilities, utility lines, sewer lines, or
residential water supply wells within existing paved areas and lawfully
developed and maintained lawns or landscaped areas, provided there is
no expansion of such existing paved, lawn and landscaped areas;
(7) repair, replacement or maintenance of existing, properly maintained
stormwater detention basins or other stormwater management systems;
(8) construction of new stormwater management systems that are designed
to improve stormwater management at previously developed sites, provided
that the plans for the system are submitted to the Division for prior
review, and the Division makes a written determination that such systems
will not have an adverse impact on state-listed species or their habitats;
(9) repair, replacement or maintenance of existing, properly maintained
dry hydrant pipe systems;
(10) 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, and the repair
and maintenance of overhead utility lines (phone, electrical) for which
all associated work is within ten feet from the edge of existing unpaved
roads, provided, however, that unpaved utility access roads associated
with exempt activities under 321 CMR 10.14(11) shall be addressed in
and subject to the Division-approved operation and maintenance plan
required thereunder;
(11) 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;
(12) 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 and unpaved driveways and paved and unpaved
parking areas, provided such unpaved driveways and unpaved parking areas
are for year-round use and are not thereafter paved, but not including
bike paths, or 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;
(13) the maintenance or replacement but not the expansion of existing
lawns and landscaped areas;
(14) performance of customary land surveying activities, wetland resource
area delineations, percolation tests, environmental assessments and
investigations performed in accordance with M. G. L. c. 21E, and other
customary preliminary site investigations or customary property due
diligence activities, provided that vegetation clearing and soil alteration
are avoided or minimized to the maximum extent practicable;
(15) 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;
(16) 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;
(17) (a) the management of vegetation within rail ballast necessary
to maintain existing rail lines; and (b) other vegetation management
outside of ballast areas necessary to maintain existing rail lines,
provided that such maintenance is implemented in accordance with a vegetation
management plan approved in writing by the Division, for which a review
fee shall be charged, and
(18) the construction of a new residential dwelling, including the proposed
lawfully developed paved areas, lawns and landscaped areas associated
with such dwelling, on an infill lot, with frontage, of no greater than
two acres in size, or such smaller lot size approved by a municipality
under the applicable zoning bylaw or ordinance, provided that such lot
is part of a residential subdivision that has received final, definitive
approval pursuant to M.G.L. c. 41, ss.81K-81GG (the state subdivision
control law), or is part of residential housing development that has
received final, definitive approval pursuant to M.G.L. c. 40B or a special
permit pursuant to M.G.L. c. 40A, and the development of the lot does
not require a prospective Order of Conditions under the Wetlands Protection
Act.
10.15: Emergencies
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.
10.16: Project Segmentation and the Availability of Comprehensive MESA Reviews and Permits for Certain Municipalities
(a) Project Segmentation. Projects shall not be segmented or phased
to evade or defer the review requirements of 321 CMR 10.13 and 10.18
through 10.23 or the eligibility requirements for an exemption under
321 CMR 10.14. For the purposes of 321 CMR 10.13, 10.14 and 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, whether there is a commonality of ownership
interests across two or more separate legal entities, whether and whether
environmental impacts are separable. Ownership by different entities
does not necessarily indicate that two segments or components are separate.
The Division may, based on the above considerations, require that two
or more projects be reviewed as a common project under 321 CMR 10.18.
(b) Comprehensive MESA Reviews and Permits for Municipalities.
1. Municipalities that contain substantial areas of Priority Habitat
within their boundaries may request technical assistance from the Division
to undertake a joint comprehensive review of existing or potential development
or habitat protection and management areas within the municipality for
MESA planning and permitting purposes, including obtaining one or more
reviews under 321 CMR 10.18 or a comprehensive conservation and management
permit under 321 CMR 10.23. Such permit may include permitting approaches
or permit conditions that authorize a local mitigation bank for affected
state-listed species or the pre-permitting of building envelopes within
one or more development areas identified during the above MESA review
and permitting process.
2. A municipality requesting technical assistance from the Division
pursuant to 321 CMR 10.16(b) shall submit a plan for the Division's
approval that sets forth the municipality's proposed public participation
process associated with the assessment and identification of existing
or potential development or habitat protection and management areas
within the municipality for MESA planning and permitting purposes.
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:
(a) Name;
(b) Address;
(c) Ownership interest in the property;
(d) Acreage of the Property, and;
(e) A copy of a USGS topographic map in scale 1:24,000 or 1:25,000 with
the property location and the location of a proposed Project or Activity
clearly marked and centered on the page.
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:
(a) has avoided a Take as proposed, or with conditions and may proceed
without further review; or
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 five 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 five-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.
(5) Performance Standards for Obtaining a No Take Determination for
Certain Activities
(a) Notwithstanding 321 CMR 10.18(1) and (2), a Project or Activity
that impacts no more than 10,000 square feet of Priority Habitat mapped
solely for a State-listed animal Species of Special Concern will receive
a No Take determination from the Division under 10.18, provided that
the Division determines that the following performance standards have
been met:
1. such Project or Activity is not subject to regulation under the Wetlands
Protection Act and 310 CMR 10.00;
2. such Project or Activity will not occur within three hundred (300)
feet of a vernal pool that has been certified or otherwise determined
to provide vernal pool habitat by the Division, or is subject to protection
by a municipality, and such vernal pool is mapped as Priority Habitat
for any State-listed animal Species that uses vernal pool habitat;
3. the proponent files a plan with the Division that clearly delineates
the limit of the work and the location and scope of the impact to Priority
Habitat;
4. the proponent thereafter records the plan on the deed of the affected
property or properties; and provided that:
5. no more than one such Project or Activity shall be allowed for the
affected property; no action has been taken to segment the Project or
Activity to evade compliance with the above performance standards or
MESA, as determined by the Division; and the Division, in reviewing
any subsequent Project or Activities for the site pursuant to 321 CMR
10.18 may take into account the impact previously authorized under 321
CMR 10.18(5)(a)1.-4. when determining the MESA permitting and mitigation
requirements for the subsequent Project or Activity.
(b) The Division may establish in guidance, performance standards for
other Projects or Activities that, if complied with, will receive a
No Take determination from the Division under 321 CMR 10.18.
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.
(a) Name;
(b) Address;
(c) Ownership interest in the property;
(d) Acreage of the property;
(e) A copy of a USGS topographic map in scale 1:24,000 or 1:25,000 with
the property location clearly marked and centered on the page;
(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;
(g) Assessor’s map or right-of-way plan of the site;
(h) Project plans with existing and proposed conditions;
(i) Project description; and
(j) Photographs representative of the site.
The Division may at its discretion request additional information beyond
that described above, on a case by case basis such as, but not limited
to, species surveys, wetland reports, soil map and reports, and stormwater
management reports.
(2) Projects or Activities Impacting Ten Acres or More.
(a) Name;
(b) Address;
(c) Ownership interest in the property;
(d) Acreage of the property;
(e) A copy of a USGS topographic map in scale 1:24,000 or 1:25,000 with
the property location clearly marked and centered on the page;
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;
(g) Assessor map or right-of-way plan of the site;
(h) Project plans with existing and proposed conditions;
(i) Project description;
(j) Photographs representative of the site;
(k) A vegetation cover type map of the site;
(l) Description of hydrology, and
(m) The mapped extent of Priority Habitat on the Project or Activity
site.
The Division may at its discretion request additional information beyond
that described above, on a case by case basis such as, but not limited
to, species and habitat surveys, wetland reports, soil map and reports,
and stormwater management reports.
10.21: Denial and Appeal
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 or extend the time by which physical work under an individual
or general conservation and management permit issued by the Director
under 321 CMR 10.23 must commence or be completed. Request for an extension
shall be made in writing to the Director at least 30 days prior to the
expiration of the applicable deadline.
(2) The Director may deny the request for an extension and require a
review for the remaining work in the following circumstances:
(a) where no work has begun on the project, except where such failure
is due to an unavoidable delay, such as appeals, in the obtaining of
other necessary permits;
(b) where new information, not available at the time the original determination
was issued, has become available and indicates that the determination
is not adequate to protect the interests identified in M.G.L. c. 131A;
(c) where incomplete work is causing damage to the interests identified
in M.G.L. c. 131A; or
(d) where work has been done in violation of the determination of 321
CMR 10.00.
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. The requirements for permitting
the Take of a State-listed Species for conservation or management purposes,
including a State-listed Species of Special Concern that will occur
within a conservation protection zone established in a conservation
plan issued by the Division pursuant to 321 CMR 10.26, are set forth
in 321 CMR 10.23(2) through (5). The general permit requirements authorizing
the Take of a State-listed Species of Special Concern that will occur
outside of a conservation protection zone established in a conservation
plan issued by the Division pursuant to 321 CMR 10.26 are set forth
in 321 CMR 10.23(6). The general mitigation standards to be applied
by the Director when issuing individual and general conservation and
management permits are set forth in 321 CMR 10.23(7).
(2) Except as provided in 321 CMR 10.23(6) below, 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:
(a) The applicant has adequately assessed alternatives to both temporary
and permanent impacts to State-listed Species;
(b) An insignificant portion of the local population would be impacted
by the Project or Activity, and;
(c) The applicant agrees to carry out a conservation and management
plan that provides a long-term Net Benefit to the conservation of the
State-listed Species that has been approved by the Director, as provided
in 321 CMR 10.23(5), and shall be carried out by the applicant.
(3) Except as provided in 321 CMR 10.23(6) below, 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) Except as provided in 321 CMR 10.23(6) below, 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.
(6) Projects or Activities Eligible for Coverage under a General Conservation
and Management Permit when the Division has issued a Conservation Plan
(a) Eligibility. The Director may permit the Take of a State-listed
Species of Special Concern that will occur outside of a conservation
protection zone established in a conservation plan issued by the Division
pursuant to 321 CMR 10.26 through the issuance of a general conservation
and management permit meeting the requirements of 321 CMR 10.23(6).
Nothwithstanding the above, a project proponent retains the option of
obtaining an individual conservation and management permit meeting the
requirements of 321 CMR 10.23(2) through (5) in lieu of obtaining coverage
under a general permit issued pursuant to 321 CMR 10.23(6).
(b) Minimum Requirements and Performance Standards applicable to the
General Permit. The Director may authorize an eligible Project or Activity
to be covered under a general conservation and management permit if
the Director determines that the applicant has submitted a complete
and timely application for coverage to the Division, including paying
the applicable review fee, that obligates the applicant to comply with
the following minimum requirements and performance standards, which
will be further specified by the Division in the general permit.
1. The applicant shall implement and comply with species-specific development standards or best management practices, or both, applicable to the geographic area and the species habitat that would be impacted by the Project or Activity. Notwithstanding 321 CMR 10.23(2), the proponent is not required to provide an alternatives analysis or to demonstrate that an insignificant portion of the local population of the affected State-listed Species of Special Concern would be impacted by the Project or Activity.
2. The applicant shall provide off-site mitigation, or a combination of on-site and off-site mitigation subject to the Division's approval, that achieves the long-term Net Benefit standard in 321 CMR 10.23(1), as determined by the Division. Any off-site mitigation provided by the applicant in the form of a financial contribution will be used to fund habitat management or the protection of land or other appropriate mitigation within one or more conservation protection zones established in the conservation plan issued by the Division pursuant to 321 CMR 10.26. The amount of any such off-site mitigation payment will be determined by the Division based on a formula set forth in written guidance that, at a minimum, considers the area of impact on the on-site habitat of the affected State-listed Species of Special Concern and the land values within one or more of the conservation protection zones. Notwithstanding 321 CMR 10.23(3), the applicant may propose off-site mitigation without a showing that the applicant has made every reasonable effort to avoid, minimize and mitigate impacts to the affected State-listed Species of Special Concern on-site.
3. An applicant that submits a complete application for coverage meeting
the requirements 321 CMR 10.23(6) and fulfills in a timely manner all
of the obligations required by the general permit, as determined by
the Division, will be deemed to have carried out a conservation and
management plan that provides a long-term Net Benefit to the conservation
of the State-listed Species as required by 321 CMR 10.23.
(c) Other Provisions and Requirements related to the Director's General
Permit Authority
1. The contents of the application for coverage under the general permit
and related requirements will be specified by the Division in the general
permit or in an application for coverage form developed by the Division.
The application for coverage will require the submission of information
and other action by the applicant as deemed necessary by the Division
for its effective administration of the general permit program.
2. The general permit shall contain such terms and conditions as the
Director deems necessary or appropriate to ensure compliance with M.G.L.
c. 131A and for the Division's effective administration of the general
permit program, including but not limited to, the species-specific development
standards or best management practices, or both, applicable to the geographic
area and the species habitat that would be impacted by the Project or
Activity; funding for the mitigation of impacts to the affected species;
and appropriate monitoring and reporting requirements.
3. Within 30 days of an applicant's submission of a complete and timely
application for coverage form to the Director and payment of the required
fee, the Director will issue a written notification of inclusion of
coverage under the general permit to the proponent or a determination
that the notice as submitted is inadequate and that coverage is denied.
Failure of the Director to respond to the application for coverage within
the above time period will constitute the Director's approval that the
Project or Activity is authorized under the general 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 duration
and the reason for the extension.
4. The Director may require any permittee authorized under the general
permit to apply for and obtain an individual conservation and management
permit pursuant to 321 CMR 10.23(2) through (5). Cases where an individual
conservation and management permit may be required include a written
determination by the Director that:
a. the permittee is not in compliance with the general permit;
b. circumstances have changed since the time of the submittal of the
application for coverage so that the Project or Activity is not longer
appropriately regulated for conservation and management purposes under
the general permit; and
c. other relevant factors.
(7) General Mitigation Standards applicable to Individual and General
Conservation and Management Permits issued by the Director.
(a) The Director, in determining the appropriate nature and scope of
mitigation necessary for an applicant for an individual or general conservation
and management permit to achieve the long-term Net Benefit performance
standard in 321 CMR 10.23(1), will generally apply the following areal
habitat mitigation ratios, based on the category of State-listed Species:
1. Endangered Species: 1:3 (i.e., protection of three times the amount
of areal habitat of the affected Endangered Species that is impacted
by the Project or Activity);
2. Threatened Species: 1:2 (i.e., protection of two times the amount
of areal habitat of the affected Threatened Species that is impacted
by the Project or Activity).
3. Special Concern Species: 1:1.5 (i.e., protection of one and one half
times the amount of areal habitat of the affected Species of Special
Concern that is impacted by the Project or Activity).
(b) The Director reserves the right to require, on a permit-by-permit
basis, an areal habitat mitigation ratio or an alternative mitigation
approach that differs from the otherwise applicable ratio in 321 CMR
10.23(7)(a)1.-3. when the Director determines in writing that the alternative
mitigation ratio or alternative mitigation approach is either sufficient
or required to achieve the long-term Net Benefit performance standard
in 321 CMR 10.23(1). A project proponent may also request in writing
that the Director apply an alternative mitigation ratio or alternative
mitigation approach to the Project or Activity. Any such request shall
explain why an alternative mitigation ratio or alternative mitigation
approach is appropriate, addressing the relevant factors in 321 CMR
10.23(7)(b)1.-5. below. In determining whether an alternative mitigation
ratio or alternative mitigation approach is appropriate, the Director
will consider factors that include but are not limited to:
1. the size and configuration of the habitat impact;
2. the threats to the affected State-listed Species posed by uses or
activities located adjacent or in close proximity to the Project or
Activity that is the subject of the conservation and management permit;
3. the size, configuration and quality of the habitat proposed to be
protected by the applicant;
4. the population density of the affected State-listed Species; and
5. the habitat management and research needs associated with the affected
State-listed Species.
(c) For the purposes of providing ongoing, updated guidance to project
proponents and the public, the Division will post guidelines on its
website for avoiding and minimizing impacts and for achieving the long-term
Net Benefit performance standard in 321 CMR 10.23(1) for those State-listed
Species for which the Director has issued three or more conservation
and management permits during a three year time period. The Director
reserves the right to require, on a permit-by-permit basis, mitigation
that differs from any relevant mitigation guidelines developed by the
Division when the Director determines in writing that the permit-specific
mitigation is either sufficient or required to achieve the long-term
Net Benefit performance standard in 321 CMR 10.23(1). In determining
whether to require permit-specific mitigation that differs from any
relevant mitigation guidelines, the Director will take into consideration
factors that include those set forth in 321 CMR 10.23(7)(b)1.-5.
10.24: Effective Date
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.
Any project proponent who has obtained an ORAD for a Project or Activity
that was not in Priority Habitat prior to the effective date of the
2010 amendments to 321 CMR 10.00 and would otherwise be eligible for
the exemption from MESA review under 321 CMR 10.13(2)(b), shall not
be subject to review under MESA if the project proponent thereafter
obtains an Order of Conditions, if needed, or 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 as required by 321 CMR 10.13(2)(b).
10.25: Appeal Process
(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:
(a) the file number of the project;
(b) the complete name, address and telephone number of the person filing
the request; the name, address and telephone number of any authorized
representative; and the specific facts that demonstrate that a party
filing a notice of claim satisfies the requirements of an "aggrieved
person," including but not limited to how they have a definite
interest in the matters in contention within the scope of interests
or area of concern of M.G.L. c. 131A or the regulations at 321 CMR 10.00
and have suffered an actual injury which is special and different from
that of the public and which has resulted from violation of a duty owed
to them by the Division;
(c) a clear statement that an adjudicatory hearing is being requested;
(d) a clear and concise statement of facts which are grounds for the
proceeding, the specific objections to the actions of the Division and
the basis for those objections, and the relief sought through the adjudicatory
hearing; and a statement that a copy of the request has been sent by
certified mail or hand delivered to the applicant and the Record Owner,
if different from the applicant.
(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.
10.26: Conservation Planning for State-listed Species of Special Concern
(1) The Division may develop and issue a conservation plan for a State-listed
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. A conservation plan
for a State-listed Species of Special Concern shall, at a minimum, include:
(a) a description of the biology, life history, historic distribution,
and population status of the species;
(b) an assessment of the current threats to the species;
(c) identification of specific geographic areas that the Division determines
would serve as conservation protection zones that are critical to ensuring
the long term viability and protection of the species;
(d) identification of specific conservation goals, including targets
for protecting land containing habitat for the species within the conservation
protection zones established by the Division in the plan, and an assessment
of the extent to which such land protection targets have been met as
well as other conservation approaches for the species; and
(e) the proposed general permit that will authorize, and set forth the
conditions applicable to, any take of the species that will occur outside
of a conservation protection zone established in the plan.
(2) The Division will provide a sixty (60) day public comment period
on any proposed or modified conservation plan, and post the plan on
the Division's website. The Division will also publish notice of the
public comment period on the Division's website, in the Environmental
Monitor, in a newspaper with state-wide circulation and in other newspapers
with regional or local circulation, as deemed appropriate by the Division.
(3) Following the close of the public comment period, the Division will
determine whether any modifications to the proposed conservation plan
are appropriate. The Division will post the final conservation plan,
together with a summary explanation of and any significant modifications
to the proposed plan, on the Division's website.
(4) Once a final conservation plan has been issued by the Division in
accordance with the procedures in 321 CMR 10.26(1) - (3), a Project
or Activities proposed within a Priority Habitat for the State-listed
Species of Special Concern subject to the conservation plan will continue
to be subject to review by the Division pursuant to 321 CMR 10.18. In
addition, any take of a State-listed Species of Special Concern subject
to the conservation plan may be authorized by the Division through the
issuance of a conservation and management permit pursuant to 321 CMR
10.23, except that any take of the species that will occur outside of
a conservation protection zone established in the plan may be authorized
by the Division through the issuance of a general conservation and management
permit in accordance with the requirements of 321 CMR 10.23(6).
(5) The Division will periodically review the content, status and effect
of a final conservation plan and may modify the plan based on its review,
including making changes to the number, location and configuration of
conservation protection zones. Any substantial modifications to a final
conservation plan will be adopted by the Division in accordance with
the public review and comment procedures in 321 CMR 10.26.
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.
10.31: Designation Proposal
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:
(a) by certified mail to record owners of lands or interests in lands
containing habitat proposed to be designated;
(b) by first class mail to boards of selectmen, town managers, city
councils, or mayors; regional permit granting agencies; zoning boards;
planning boards; and conservation commissions of towns or cities in
which the habitat is located; and
10.32: continued
(c) at the Director's discretion, to other interested citizens, agencies,
and organizations.
The Director shall give notice by mail to any person who has filed a
written request to receive the notice of said public hearing to be held
under 321 CMR 10.00 at least 14 days prior to the date of the public
hearing. Any of the notices required to be given pursuant to 321 CMR
10.00 shall be deemed to have been given upon mailing a copy of the
notice.
(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
10.60: Introduction
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:
(a) will occur within a Significant Habitat;
(b) is not exempted by 321 CMR 10.62; and
(c) is an alteration of Significant Habitat, as determined by:
1. the categorical list of alterations under 321 CMR 10.63(1);
2. the list of alterations specified in 321 CMR 10.99; or
3. the Director under 321 CMR 10.64.
(3) Activities That Do Not Require an Alteration Permit. An activity
does not require an Alteration Permit before commencing if the activity:
(a) will not occur within a Significant Habitat;
(b) is exempted under 321 CMR 10.62; or
(c) is not an alteration of Significant Habitat, as determined by:
1. the categorical list of non alterations under 321 CMR 10.63(2);
2. the list, if any, of non alterations specified in the Significant
Habitat designation regulation (321 CMR 10.99, Part III); or
3. the Director under 321 CMR 10.64.
(4) Determining Whether an Activity Will Occur in a Significant Habitat.
(a) A person may determine whether an activity will occur in a Significant
Habitat by consulting the descriptions of Significant Habitats at 321
CMR 10.99, which shall be considered the authoritative description of
the boundaries of said Significant Habitat. Maps showing the approximate
location of Significant Habitats shall be available for inspection at
the NHESP and shall have been mailed, pursuant to 321 CMR 10.36, 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 such habitats occur,
and appropriate regional permit granting commissions.
(b) An owner of land or interest in land adjacent to or potentially
within Significant Habitat may request the Director to make a determination
whether an activity will occur in a Significant Habitat. The Director
may also, on her own initiative, make such a determination.
(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.
(a) Plan Submission. A landowner shall submit a forest management plan
to the state forester and NHESP for review.
(b) Plan Review and Consultation. NHESP shall review the forest management
plan; shall make recommendations with respect to the avoidance, minimization
or mitigation of impacts on Endangered, Threatened, or Special Concern
species; and shall submit such recommendations to the landowner and
the state forester. Failure of the NHESP to make any such recommendations
within 60 days of receipt of such plan shall constitute consultation
and approval by NHESP of the plan. The state forester shall review the
forest management plan and the NHESP's recommendations. The state forester
shall certify the plan if she finds:
1. that the plan constitutes a planned program to improve the quantity
and quality of a continuous crop for the purpose of selling such products
in the regular course of business; and
2. that the NHESP has determined that the plan will take all practicable
means and measures to avoid damage to state listed species or their
habitats.
(c) Certification of Plan. If the state forester finds that either requirement
has not been met she shall deny certification of the plan and return
the plan to the landowner with a statement of the reasons for the denial.
If the state forester finds that both requirements have been met she
shall prepare a certification document to be signed by both the state
forester and the NHESP and affixed to the approved plan and shall send
copies of the same to the landowner and NHESP.
(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:
(a) property owner's name and mailing address;
(b) address of new house;
(c) occupancy of the proposed house (number of families)
(d) square feet of ground covered by the house;
(e) the size of the lot in acres;
(f) owner of the lot on January 1, 1990;
(g) ownership of any adjoining land by property owner specified in 321
CMR 10.62(3)(f) on January 1, 1990;
(h) date of approval of the definitive subdivision plan, prepared pursuant
to M.G.L. c. 41, or date of endorsement of a plan pursuant to M.G.L.
c. 41, § 81(P), showing the house lot, if any;
(i) a plan showing the boundaries of the lot, the location and footprint
of the house, the location of any proposed driveways, the location of
the nearest public way, and the location of any other existing or proposed
structures.
(j) an 8½" X 11" section of a USGS 7½ minute
topographic map (original or photocopy) showing the location of the
proposed house clearly; and
(k) signature of property owner and date.
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):
(a) a building permit for such activities has been issued; or
(b) the Secretary of EOEA has certified no more than three years prior
to designation that a Final EIR for such activities fully and adequately
complies with MEPA; provided, however, that such EIR evaluated the potential
impacts of the project on the state listed species occurring in the
Significant Habitat at the time of designation.
10.63: Categorical Alterations and Non alterations
(1) Alterations of Significant Habitat. The following categories of
activities shall always be considered alterations:
(a) construction, reconstruction, or expansion of buildings, structures,
roads, driveways, parking areas, towers, sub surface sewage disposal
systems, stormwater management systems, golf courses, reservoirs and
dams, ponds however created, utility transmission lines, pipelines,
lawns, irrigation systems, or landscaped areas;
(b) clearing, paving, grading, or excavation of land;
(c) mining, including the excavation of sand and gravel;
(d) any activity subject to the jurisdiction of the Wetlands Protection
Act (M.G.L. c. 131, § 40) and the regulations promulgated thereunder;
(e) discharge, storage, or disposal of solid waste, rubbish, stormwater,
waste water, toxic or hazardous substances, petroleum based products,
dredged materials, or fill;
(f) the pumping or diversion of surface or ground water for any purpose
other than for an individual household;
(g) application of pesticides, herbicides, or other biocides; and
(h) forestry activities that are not exempt under 321 CMR 10.62(2).
(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:
(a) maintenance, use, or vertical expansion of existing buildings and
structures;
(b) maintenance and use of existing improved roads, driveways, and parking
areas, but not including changes in storm water drainage;
(c) maintenance and use of existing lawns and landscaped areas, but
not including the application of pesticides, herbicides or other biocides
or the installation of underground irrigation systems, and
(d) performance of land surveying activities by a registered land surveyor.
For the purposes of 321 CMR 10.63(2), "existing" shall mean
in existence prior to the issuance of notice of public hearing of proposed
Significant Habitat designation pursuant to 321 CMR 10.32(1)(a).
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:
(a) project/activity name and address;
(b) proponent's name and address;
(c) landowner's name and address;
(d) exact location(s) of each activity within the Significant Habitat;
(e) description of each activity;
(f) type of each activity;
10.64: continued
(g) commencement and completion dates;
(h) signature of proponent and date; and
(i) signature of landowner and date.
(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.
10.65: Review Procedures
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.
10.66: Standard Permit Review
(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:
(a) project/activity name and address;
(b) proponent's name and address;
(c) landowner's name and address;
(d) a complete description of the project and the anticipated uses,
including project locus, site plans, grading plans, and Notice of Intent
and response of NHESP to any filing pursuant to the rare species provisions
of the Wetlands Protection Act regulations (310 CMR 10.37 or 10.59),
if any;
(e) the possible alternatives to the proposed project and anticipated
use(s);
(f) the anticipated impacts of the proposed project on any Endangered
or Threatened species;
(g) full plans for the protection of any Endangered or Threatened species
present and the short term and long term avoidance, minimization or
mitigation measures to be taken to provide amelioration of the impact;
(h) the potential economic effects of the proposed project on the proponent
and the local community, if any;
(i) signature of proponent and date; and
(j) signature of landowner and date.
(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:
(a) change the environment in any way which likely will result in stress,
lowered reproduction or growth, or decline of the local population of
the Endangered or Threatened species involved;
(b) prevent, hinder, or stop ecological processes which are important
for the survival or recovery of the Endangered or Threatened species
involved;
(c) isolate portions of the Endangered or Threatened species populations
from each other;
(d) disrupt seasonal or daily movements or migrations of Endangered
or Threatened animals or dispersal of Endangered or Threatened plants;
or
(e) decrease the probability of long term survival or recovery of the
affected local population(s) of Endangered or Threatened species.
(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.
(a) If the secretary of EOEA has certified that a project does not require
the preparation of an EIR, the proponent shall submit to the Director
a copy of the secretary's ENF certificate.
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.
(c) The Director shall determine whether the NHESP reviewed the project
within the time periods prescribed at 321 CMR 10.67(2)(e) and made recommendations
with respect to the avoidance, minimization or mitigation of impacts
on Endangered, Threatened, or Special Concern species; and whether the
project proponent has incorporated any such avoidance, minimization,
or mitigation measures in the project design. If the Director finds
that the NHESP made such recommendations and that they were incorporated
into the project design by the project proponent, the Director shall
issue an Alteration Permit forthwith without further conditions, except
that the permit may be conditioned upon implementation of such avoidance,
minimization, or mitigation measures, which may include biological monitoring
and reporting requirements to enable the Director to determine if the
avoidance, minimization, or mitigation measures are fulfilling the conditions
of the permit.
(d) If the Director finds that the project proponent has not incorporated
such recommendations, the Director shall deny the permit.
(e) Failure of the NHESP to make any recommendations within the following
time periods shall be equivalent to the issuance of a permit by the
Director:
1. if an EIR is not required, or further review is not required after
notice of project change, 90 days after the secretary issues a notice
of the receipt of the ENF, as described in M.G.L. c. 30, § 62A
and the regulations thereunder;
2. if an EIR is required, or further review is required, prior to certification
by the Secretary that the final EIR or project change adequately and
properly complies with MEPA; or
3. if preparation of an EIR has been waived by the Secretary, during
the time period prescribed by the MEPA regulations for comments on the
tentative grant of waiver.
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.
(a) Request for Permit. Prior to commencing vegetation management activities
the applicant shall submit to the Director copies of the VMP, YOP, and
comments submitted by the NHESP on the VMP and YOP, if any.
(b) Review of Materials. Based on the materials submitted, the Director
shall determine whether the NHESP reviewed the VMP and YOP within 90
days of receipt of such plans and made recommendations with respect
to the avoidance, minimization or mitigation of impacts on state listed
species; and whether the applicant has incorporated any such avoidance,
minimization, or mitigation measures in the VMP and YOP. If the Director
finds that the NHESP made such recommendations and that they were incorporated
into the VMP and YOP by the applicant, the Director shall issue an Alteration
Permit forthwith without further conditions, except that the permit
may be conditioned upon implementation of such avoidance, minimization,
or mitigation measures, which may include biological monitoring and
reporting requirements to enable the Director to determine if the avoidance,
minimization, or mitigation measures are fulfilling the conditions of
the permit. The
10.68: continued
Director shall send a copy of the Alteration Permit to the Department
of Agricultural Resources.
(c) Denial of Permit. If the Director finds that the applicant has not
incorporated such recommendations, the Director shall deny the permit.
The Director shall send notice of denial of the permit to the applicant
and 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.
10.70: Variance
(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:
(a) there are no reasonable conditions or alternatives that would allow
the project to proceed in compliance with the regulation;
(b) that avoidance, minimization, or mitigating measures are proposed
that will allow the project to be conditioned so as to contribute to
the protection of the Viability of the Significant Habitat to support
the local population of Endangered or Threatened species involved; and
(c) that the variance is necessary to avoid permit conditions or the
denial of a permit that so restricts the use of property as to constitute
an unconstitutional taking without compensation.
(2) A request for a variance shall be made in writing and shall include,
at a minimum, the following information:
(a) a description of alternatives explored that would allow the project
to proceed in compliance with the regulation and an explanation of why
each is unreasonable;
(b) a description of the avoidance, minimization, or mitigating measures
to be used to contribute to the protection of the Viability of the Significant
Habitat to support the population of Endangered or Threatened species
involved; and
(c) evidence that the permit conditions or denial of a permit so restricts
the use of the land that it constitutes an unconstitutional taking without
compensation.
(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:
(a) with respect to a permit denial, that there is no credible scientific
information in the record to support the finding that the proposed alteration
will reduce the Viability of the Significant Habitat; or
(b) with respect to the Director's conditioning of a permit, that there
is no credible scientific information in the record that said conditions
do not reasonably limit the proposed alteration's potential adverse
effect on the Viability of the Significant Habitat.
10.72: Court Action
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 the federal Endangered Species Act at the time of the latest revision of 321 CMR 10.00 and is given for informational purposes only. Recent changes in the federal list might not be reflected on this list. The U.S. Fish and Wildlife Service should be consulted for official and up to date information on the federal status of any species. Inquiries may be made by writing to U.S. Fish and Wildlife Service, 70 Commercial Street, Suite 300, Concord, NH 03301-5087. The "Taxonomic Family/Taxonomic Group" column of the list is included for the purpose of organization. The "Notes" column directs the reader to footnotes which further define or clarify the status of a species or alternative names of species.
(3) Organization of the List. The list is generally organized according to the relationship of the listed species as determined by the science of taxonomy, which groups and categorizes species that are similar on the basis of shared evolutionary descent. The most basic division in the list is between animals and plants. Within animals the list is divided between vertebrates (animals with backbones) and invertebrates (animals without backbones). Within vertebrates, invertebrates, and plants the list is further divided into categories which are generally recognized, such as fish, mammals, dragonflies, and violets. All such information has no regulatory effect and is provided only for the purpose of organizing the list. The following outline shows the taxonomic categories used and their order. A species name index is provided after the list at 321 CMR 10.91 to assist the reader in finding species on the list.
10.90: continued
Outline of State List:
ANIMALS
Vertebrates
Fish
Amphibians
Reptiles
Birds
Mammals
Invertebrates
Sponges
Flatworms
Moss Animals
Segmented Worms
Snails
Mussels
Crustaceans
Dragonflies
Damselflies
Beetles
Butterflies and Moths
PLANTS
Aceraceae (Maples)
Adiantaceae (Cliff Ferns)...
through...(alphabetically by scientific family name)
Verbenaceae (Vervains)
Violaceae (Violets)
(4) The List. The Massachusetts List of Endangered, Threatened, and Special Concern species follows:
10.90: continued
Massachusetts List of Endangered, Threatened, and Special Concern Species
ANIMALS
Taxonomic Group Status
Common Name Scientific Name MA US Notes
VERTEBRATES:
Fish
American Brook Lamprey Lampetra appendix T
Shortnose Sturgeon Acipenser brevirostrum E E
Atlantic Sturgeon Acipenser oxyrhynchus E
Lake Chub Couesius plumbeus E
Eastern Silvery Minnow Hybognathus regius SC
Bridle Shiner Notropis bifrenatus SC
Northern Redbelly Dace Phoxinus eos E
Longnose Sucker Catostomus catostomus SC
Burbot Lota lota SC
Threespine Stickleback Gasterosteus aculeatus T 1
Amphibians
Jefferson Salamander Ambystoma jeffersonianum SC 2
Blue spotted Salamander Ambystoma laterale SC 3
Marbled Salamander Ambystoma opacum T
Eastern Spadefoot Scaphiopus holbrookii T
Reptiles
Loggerhead Seaturtle Caretta caretta T T
Green Seaturtle Chelonia mydas T T
Hawksbill Seaturtle Eretmochelys imbricata E E
Kemps’s Ridley Seaturtle Lepidochelys kempii E E
Leatherback Seaturtle Dermochelys coriacea E E
Wood Turtle Glyptemys insculpta SC
Bog Turtle Glyptemys muhlenbergii E T
Blanding's Turtle Emydoidea blandingii T
Diamond-backed Terrapin Malaclemys terrapin T
Northern Red-bellied Cooter Pseudemys rubriventris E E 4
Eastern Box Turtle Terrapene carolina SC
Eastern Wormsnake Carphophis amoenus T
Eastern Ratsnake Patherophis alleghaniensis E
Copperhead Agkistrodon contortrix E
Timber Rattlesnake Crotalus horridus E
──────────────────────────
1 Trimorphic freshwater population only.
2 Including triploid and other polyploid forms within the Ambystoma jeffersonianum/Ambystoma laterale complex.
3 Ditto.
4 This species is listed by the U.S. Fish & Wildlife Service as P.r. bangsi (Plymouth Redbelly Turtle) in 50 CFR 17.11.
E = Endangered, T = Threatened, SC = Special Concern
10.90: continued
Massachusetts List of Endangered, Threatened, and Special Concern Species
ANIMALS
Taxonomic Group Status
Common Name Scientific Name MA US Notes
VERTEBRATES: continued
Birds
Common Loon Gavia immer SC
Pied billed Grebe Podilymbus podiceps E
Leach's Storm petrel Oceanodroma leucorhoa E
American Bittern Botaurus lentiginosus E
Least Bittern Ixobrychus exilis E
Bald Eagle Haliaeetus leucocephalus T
Northern Harrier Circus cyaneus T
Sharp shinned Hawk Accipiter striatus SC
Peregrine Falcon Falco peregrinus E
King Rail Rallus elegans T
Common Moorhen Gallinula chloropus SC
Piping Plover Charadrius melodus T T
Upland Sandpiper Bartramia longicauda E
Roseate Tern Sterna dougallii E E
Common Tern Sterna hirundo SC
Arctic Tern Sterna paradisaea SC
Least Tern Sternula antillarum SC
Barn Owl Tyto alba SC
Long eared Owl Asio otus SC
Short eared Owl Asio flammeus E
Sedge Wren Cistothorus platensis E
Golden winged Warbler Vermivora chrysoptera E
Northern Parula Parula americana T
Blackpoll Warbler Dendroica striata SC
Mourning Warbler Oporornis philadelphia SC
Vesper Sparrow Pooecetes gramineus T
Grasshopper Sparrow Ammodramus savannarum T
Henslow's Sparrow Ammodramus henslowii E
Whip-poor-will Caprimulgus vociferus SC
Mammals
Water Shrew Sorex palustris SC
Rock Shrew Sorex dispar SC
Indiana Myotis Myotis sodalis E E
Small footed Myotis Myotis leibii E
Little Brown Myotis Myotis lucifugus E
Tricolored Bat Perimyotis subflavus E
Northern Long-eared Bat Myotis septentrionalis E
Southern Bog Lemming Synaptomys cooperi SC
Sperm Whale Physeter macrocephalus E E
Fin Whale Balaenoptera physalus E E
Sei Whale Balaenoptera borealis E E
Blue Whale Balaenoptera musculus E E
Humpback Whale Megaptera novaeangliae E E
Northern Right Whale Eubalaena glacialis E E
E = Endangered, T = Threatened, SC = Special Concern
10.90: continued
Massachusetts List of Endangered, Threatened, and Special Concern Species
ANIMALS
Taxonomic Group Status
Common Name Scientific Name MA US Notes
INVERTEBRATES
Sponges
Smooth Branched Sponge Spongilla aspinosa SC
Flatworms
Sunderland Spring Planarian Polycelis remota E
Segmented Worms
New England Medicinal Leech Macrobdella sestertia SC
Snails
Walker's Limpet Ferrissia walkeri SC
New England Siltsnail Floridobia winkleyi SC
Coastal Marsh Snail Littoridinops tenuipes SC
Slender Walker Pomatiopsis lapidaria E
Boreal Marstonia Marstonia lustrica E
Boreal Turret Snail Valvata sincera E
Mussels
Dwarf Wedgemussel Alasmidonta heterodon E E
Swollen Wedgemussel Alasmidonta varicosa E
Yellow Lampmussel Lampsilis cariosa E
Tidewater Mucket Leptodea ochracea SC
Eastern Pondmussel Ligumia nasuta SC
Creeper Strophitus undulatus SC
Crustaceans
Intricate Fairy Shrimp Eubranchipus intricatus SC
Agassiz's Clam Shrimp Eulimnadia agassizii E
Northem Spring Amphipod Gammarus pseudolimnaeus SC
American Clam Shrimp Limnadia lenticularis SC
Taconic Cave Amphipod Stygobromus borealis E
Piedmont Groundwater
Amphipod Stygobromus tenuis tenuis SC
Coastal Swamp Amphipod Synurella chamberlaini SC
Dragonflies
Subarctic Darner Aeshna subarctica E
Comet Darner Anax longipes SC
Ocellated Darner Boyeria grafiana SC
Spine crowned Clubtail Gomphus abbreviatus SC
Harpoon Clubtail Gomphus descriptus E
E = Endangered, T = Threatened, SC = Special Concern
10.90: continued
Massachusetts List of Endangered, Threatened, and Special Concern Species
ANIMALS
Taxonomic Group Status
Common Name Scientific Name MA US Notes
INVERTEBRATES: continued
Dragonflies: continued
Midland Clubtail Gomphus fraternus E
Rapids Clubtail Gomphus quadricolor E
Cobra Clubtail Gomphus vastus SC
Skillet Clubtail Gomphus ventricosus T
Umber Shadowdragon Neurocordulia obsoleta SC
Stygian Shadowdragon Neurocordulia yamaskanensis SC
Brook Snaketail Ophiogomphus aspersus SC
Riffle Snaketail Ophiogomphus carolus T
Spatterdock Darner Rhionaeschna mutata SC
Ski-tipped Emerald Somatochlora elongata SC
Forcipate Emerald Somatochlora forcipata E
Coppery Emerald Somatochlora georgiana E
Incurvate Emerald Somatochlora incurvata E
Kennedy's Emerald Somatochlora kennedyi E
Mocha Emerald Somatochlora linearis SC
Riverine Clubtail Stylurus amnicola E
Ebony Boghaunter Williamsonia fletcheri E
Ringed Boghaunter Williamsonia lintneri T
Damselflies
Tule Bluet Enallagma carunculatum SC
Attenuated Bluet Enallagma daeckii T
Scarlet Bluet Enallagma pictum T
Pine Barrens Bluet Enallagma recurvatum T
Beetles
Twelve spotted Tiger Beetle Cicindela duodecimguttata SC
Hentz's Redbelly Tiger Beetle Cicindela rufiventris hentzii T
Northeastern Beach Tiger
Beetle Cicindela dorsalis dorsalis E T
Bank Tiger Beetle Cicindela limbalis SC
Cobblestone Tiger Beetle Cicindela marginipennis E
Barrens Tiger Beetle Cicindela patruela E
Puritan Tiger Beetle Cicindela puritana E T
Purple Tiger Beetle Cicindela purpurea SC
American Burying Beetle Nicrophorus americanus E E
Butterflies and Moths
Coastal Heathland Cutworm Abagrotis nefascia SC
Barrens Daggermoth Acronicta albarufa T
Drunk Apamea Moth Apamea inebriata SC
New Jersey Tea Inchworm Apodrepanulatrix liberaria E
Hessel's Hairstreak Callophrys hesseli SC
Frosted Elfin Callophrys irus SC
Bog Elfin Callophrys lanoraieensis T
E = Endangered, T = Threatened, SC = Special Concern
10.90: continued
Massachusetts List of Endangered, Threatened, and Special Concern Species
ANIMALS
Taxonomic Group Status
Common Name Scientific Name MA US Notes
INVERTEBRATES: continued
Butterflies and Moths: continued
Gerhard's Underwing Catocala herodias gerhardi SC
Precious Underwing Moth Catocala pretiosa pretiosa E
Waxed Sallow Moth Chaetaglaea cerata SC
Melsheimer's Sack Bearer Cicinnus melsheimeri T
Chain Dot Geometer Cingilia catenaria SC
Unexpected Cycnia Cycnia inopinatus T
Three lined Angle Moth Digrammia eremiata T
Imperial Moth Eacles imperialis T
Early Hairstreak Erora laeta T
Persius Duskywing Erynnis persius persius E
Sandplain Euchlaena Euchlaena madusaria SC
Dion Skipper Euphyes dion T
The Pink Streak Dargida rubripennis T
Phyllira Tiger Moth Grammia phyllira E
Slender Clearwing Sphinx Moth Hemaris gracilis SC
Barrens Buckmoth Hemileuca maia SC
Buchholz's Gray Hypomecis buchholzaria E
Pine Barrens Speranza Speranza exonerata SC
Pale Green Pinion Moth Lithophane viridipallens SC
Twilight Moth Lycia rachelae E
Pine Barrens Lycia Lycia ypsilon T
Barrens Metarranthis Metarranthis apiciaria E
Coastal Swamp Metarranthis Metarranthis pilosaria SC
Northern Brocade Moth Neoligia semicana SC
Dune Noctuid Moth Sympistis riparia SC
Pitcher Plant Borer Papaipema appassionata T
Ostrich Fern Borer Papaipema sp. 2 SC 1
Chain Fern Borer Papaipema stenocelis T
Water willow Stem Borer Papaipema sulphurata T
Mustard White Pieris oleracea T
Pink Sallow Moth Psectraglaea carnosa SC
Southern Ptichodis Ptichodis bistrigata T
Orange Sallow Moth Pyrrhia aurantiago SC
Oak Hairstreak Satyrium favonius SC
Spartina Borer Photedes inops SC
Faded Gray Geometer Stenoporpia polygrammaria T
Pine Barrens Zale Zale lunifera SC 2
Sandplain Heterocampa Heterocampa varia T
Pine Barrens Zanclognatha Zanclognatha martha T
──────────────────────────
1 Undescribed species near P. pterisii
2 True Z. lunifera, sensu Schmidt (2010). Taxonomic Reassessment of
Zale lunifera (Hubner) (Erebidae, Erebinae). Zookey 39:99-106
E = Endangered, T = Threatened, SC = Special Concern
10.90: continued
Massachusetts List of Endangered, Threatened, and Special Concern Species
PLANTS
Taxonomic Family Status
Common Name Scientific Name MA US Notes
Adiantaceae (Cliff Ferns)
Fragile Rock brake Cryptogramma stelleri E
Alismataceae (Arrowheads)
Estuary Arrowhead Sagittaria montevidensis ssp.
spongiosa E
Wapato Sagittaria cuneata T
Terete Arrowhead Sagittaria teres SC
Apiaceae (Parsleys, Angelicas)
Hemlock Parsley Conioselinum chinense SC
Saltpond Pennywort Hydrocotyle verticillata T
Canadian Sanicle Sanicula canadensis T
Long styled Sanicle Sanicula odorata T
Aquifoliaceae (Hollies)
Mountain Winterberry Ilex montana E
Araceae (Arums)
Green Dragon Arisaema dracontium T
Golden Club Orontium aquaticum E
Araliaceae (Ginsengs)
Ginseng Panax quinquefolius SC
Asclepiadaceae (Milkweeds)
Purple Milkweed Asclepias purpurascens E
Linear leaved Milkweed Asclepias verticillata T
Aspleniaceae (Spleenworts)
Mountain Spleenwort Asplenium montanum E
Wall rue Spleenwort Asplenium ruta muraria T
Asteraceae (Asters, Composites)
Lesser Snakeroot Ageratina aromatica E
Eaton's Beggar ticks Bidens eatonii E
Estuary Beggar ticks Bidens hyperborea E
Cornel-leaved Aster Doellingeria infirma E
E = Endangered, T = Threatened, SC = Special Concern
10.90: continued
Massachusetts List of Endangered, Threatened, and Special Concern Species
PLANTS
Taxonomic Family Status
Common Name Scientific Name MA US Notes
Asteraceae (Asters, Composites): continued
New England Boneset Eupatorium novae-angliae E
Purple Cudweed Gamochaeta purpurea E
New England Blazing Star Liatris scariosa var. novae-angliae SC
Lion's Foot Nabalus serpentarius E
Sweet Coltsfoot Petasites frigidus var. palmatus E
Sclerolepis Sclerolepis uniflora E
Large leaved Goldenrod Solidago macrophylla T
Upland White Aster Oligoneuron album E
Rand's Goldenrod Solidago simplex ssp. randii var. monticola E
Eastern Silvery Aster Symphyotrichum concolor E
Crooked-stem Aster Symphyotrichum prenanthoides SC
Tradescant’s Aster Symphyotrichum tradescantii T
Betulaceae (Birches, Alders)
Mountain Alder Alnus viridis ssp. crispa T
Swamp Birch Betula pumila E
Boraginaceae (Borages)
Northern Wild Comfrey Cynoglossum virginianum var. boreale E
Oysterleaf Mertensia maritima E
Brassicaceae (Mustards)
Lyre-leaved Rock-cress Arabidopsis lyrata E
Smooth Rock cress Boechera laevigata SC
Green Rock cress Boechera missouriensis T
Purple Cress Cardamine douglassii E
Long's Bitter cress Cardamine longii E
Fen Cuckoo Flower Cardamine dentata T
Cactaceae (Cacti)
Prickly Pear Opuntia humifusa E
Campanulaceae (Bluebells, Lobelias)
Great Blue Lobelia Lobelia siphilitica E
Caprifoliaceae (Honeysuckles)
Hairy Honeysuckle Lonicera hirsuta E
Snowberry Symphoricarpos albus var. albus E
Broad Tinker's weed Triosteum perfoliatum E
Downy Arrowwood Viburnum rafinesquianum E
Caryophyllaceae (Pinks, Sandworts)
Nodding Chickweed Cerastium nutans E
Michaux's Sandwort Minuartia michauxii T
Large leaved Sandwort Moehringia macrophylla E
Silverling Paronychia argyrocoma E
Celastraceae (Staff Tree Family)
American Bittersweet Celastrus scandens T
Chenopodiaceae (Saltworts)
Fogg’s Goosefoot Chenopodium foggii E
American Sea blite Suaeda calceoliformis SC
──────────────────────────
E = Endangered, T = Threatened, SC = Special Concern
10.90: continued
Massachusetts List of Endangered, Threatened, and Special Concern Species
PLANTS
Taxonomic Family Status
Common Name Scientific Name MA US Notes
Cistaceae (Rockroses, Pinweeds)
Bushy Rockrose Crocanthemum dumosum SC
Beaded Pinweed Lechea pulchella var. moniliformis E
Clusiaceae (St. John's worts)
Creeping St. John's wort Hypericum adpressum T
Giant St. John's wort Hypericum ascyron E
St. Andrew's Cross Hypericum stragulum E
Convolvulaceae (Morning Glories)
Low Bindweed Calystegia spithamaea E
Crassulaceae (Sedums)
Pygmyweed Crassula aquatica T
Cupressaceae (Cedars, Junipers)
Arborvitae Thuja occidentalis E
Cyperaceae (Sedges)
Foxtail Sedge Carex alopecoidea T
Back’s Sedge Carex backii E
Bailey's Sedge Carex baileyi T
Bush's Sedge Carex bushii E
Chestnut colored Sedge Carex castanea E
Creeping Sedge Carex chordorrhiza E
Davis' Sedge Carex davisii E
Glaucescent Sedge Carex glaucodea E
Handsome Sedge Carex formosa T
Slender Woodland Sedge Carex gracilescens E
Gray's Sedge Carex grayi T
Hitchcock's Sedge Carex hitchcockiana SC
Shore Sedge Carex lenticularis T
Glaucous Sedge Carex livida E
False Hop-sedge Carex lupuliformis E
Midland Sedge Carex mesochorea E
Michaux's Sedge Carex michauxiana E
Mitchell's Sedge Carex mitchelliana T
Rich Woods Sedge Carex oligocarpa T
Few-seeded Sedge Carex oligosperma E
Few flowered Sedge Carex pauciflora E
Variable Sedge Carex polymorpha E
Schweinitz's Sedge Carex schweinitzii E
Dioecious Sedge Carex sterilis T
Walter's Sedge Carex striata E
Fen Sedge Carex tetanica SC
Hairy fruited Sedge Carex trichocarpa SC
Tuckerman's Sedge Carex Tuckermanii E
Cat tail Sedge Carex typhina T
Engelmann's Umbrella sedge Cyperus engelmannii T
Houghton's Flatsedge Cyperus houghtonii E
──────────────────────────
E = Endangered, T = Threatened, SC = Special Concern
10.90: continued
Massachusetts List of Endangered, Threatened, and Special Concern Species
PLANTS
Taxonomic Family Status
Common Name Scientific Name MA US Notes
Cyperaceae (Sedges): continued
Wright’s Spike-rush Eleocharis diandra E
Intermediate Spike sedge Eleocharis intermedia T
Tiny fruited Spike sedge Eleocharis microcarpa var. filiculmis E
Ovate Spike sedge Eleocharis ovata E
Few flowered Spike sedge Eleocharis quinqueflora E
Three angled Spike sedge Eleocharis tricostata E
Slender Cottongrass Eriophorum gracile T
Dwarf Bulrush Lipocarpha micrantha T
Capillary Beak sedge Rhynchospora capillacea E
Inundated Horned sedge Rhynchospora inundata T
Short beaked Bald sedge Rhynchospora nitens T
Long beaked Bald sedge Rhynchospora scirpoides SC
Torrey's Beak sedge Rhynchospora torreyana E
Northeastern Bulrush Scirpus ancistrochaetus E E
Long's Bulrush Scirpus longii T
Papillose Nut sedge Scleria pauciflora E 1
Tall Nut sedge Scleria triglomerata E
Dryopteridaceae (Wood Ferns)
Braun’s Holly-fern Polystichum braunii E
Smooth Woodsia Woodsia glabella E
Elatinaceae (Waterworts)
American Waterwort Elatine americana E
Equisetaceae (Horsetails)
Dwarf Scouring rush Equisetum scirpoides SC
Ericaceae (Laurels, Blueberries)
Great Laurel Rhododendron maximum T
Mountain Cranberry Vaccinium vitis idaea ssp. minus E
Eriocaulaceae (Pipeworts)
Parker's Pipewort Eriocaulon parkeri E
Fabaceae (Beans, Peas, Clovers)
Large-bracted Tick-trefoil Desmodium cuspidatum T
Wild Senna Senna hebecarpa E
Fagaceae (Oaks, Beeches)
Bur Oak Quercus macrocarpa SC
Yellow Oak Quercus muhlenbergii T
Fumariaceae (Fumitories)
Climbing Fumitory Adlumia fungosa SC
──────────────────────────
1 Includes the two varieties of this species that occur in Massachusetts:
s. p. var. pauciflora and s. p. var. caroliniana
E = Endangered, T = Threatened, SC = Special Concern
10.90: continued
Massachusetts List of Endangered, Threatened, and Special Concern Species
PLANTS
Taxonomic Family Status
Common Name Scientific Name MA US Notes
Gentianaceae (Gentians)
Andrew’s Bottle Gentian Gentiana andrewsii E
Spurred Gentian Halenia deflexa E
Slender Marsh Pink Sabatia campanulata E
Plymouth Gentian Sabatia kennedyana SC
Sea Pink Sabatia stellaris E
Grossulariaceae (Currants)
Bristly Black Currant Ribes lacustre SC
Haemodoraceae (Redroots)
Redroot Lachnanthes caroliana SC
Haloragaceae (Water milfoils)
Alternate flowered Water
milfoil Myriophyllum alterniflorum E
Farwell's Water-
milfoil Myriophyllum farwellii E
Pinnate Water milfoil Myriophyllum pinnatum SC
Comb Water milfoil Myriophyllum verticillatum E
Hydrophyllaceae (Waterleaves)
Broad Waterleaf Hydrophyllum canadense E
Hymenophyllaceae (Filmy ferns)
Appalachian Bristle-fern Trichomanes intricatum E
Iridaceae (Irises)
Sandplain Blue eyed Grass Sisyrinchium fuscatum SC
Slender Blue eyed Grass Sisyrinchium mucronatum E
Isoetaceae (Quillworts)
Acadian Quillwort Isoetes acadiensis E
Lake Quillwort Isoetes lacustris E
Juncaceae (Rushes)
Weak Rush Juncus debilis E
Thread Rush Juncus filiformis E
Black fruited Woodrush Luzula parviflora ssp. melanocarpa E
Lamiaceae (Mints)
Purple Giant-hyssop Agastache scrophulariifolia E
Downy Wood mint Blephilia ciliata E
Hairy Wood mint Blephilia hirsuta E
Gypsywort Lycopus rubellus E
False Pennyroyal Trichostema brachiatum E
E = Endangered, T = Threatened, SC = Special Concern
10.90: continued
Massachusetts List of Endangered, Threatened, and Special Concern Species
PLANTS
Taxonomic Family Status
Common Name Scientific Name MA US Notes
Lentibulariaceae (Bladderworts)
Resupinate Bladderwort Utricularia resupinata T
Subulate Bladderwort Utricularia subulata SC
Liliaceae (Lilies)
Devil's bit Chamaelirium luteum E
Linaceae (Flaxes)
Sandplain Flax Linum intercursum SC
Rigid Flax Linum medium var. texanum T
Lycopodiaceae (Clubmosses)
Foxtail Clubmoss Lycopodiella alopecuroides E
Appalachian Firmoss Huperzia appressa E
Mountain Firmoss Huperzia selago E
Lythraceae (Loosestrifes)
Toothcup Rotala ramosior E
Magnoliaceae (Magnolias)
Sweetbay Magnolia Magnolia virginiana E
Melastomataceae (Meadow Beauties)
Maryland Meadow Beauty Rhexia mariana E
Moraceae (Mulberries)
Red Mulberry Morus rubra E
Nymphaeaceae (Water Lilies)
Tiny Cow lily Nuphar microphylla E
Onagraceae (Evening Primroses)
Many fruited False loosestrife Ludwigia polycarpa E
Round fruited False loosestrife Ludwigia sphaerocarpa E
Ophioglossaceae (Grape Ferns)
Adder's tongue Fern Ophioglossum pusillum T
Orchidaceae (Orchids)
Putty root Aplectrum hyemale E
Arethusa Arethusa bulbosa T
Autumn Coralroot Corallorhiza odontorhiza SC
Ram's head Lady's slipper Cypripedium arietinum E
E = Endangered, T = Threatened, SC = Special Concern
10.90: continued
Massachusetts List of Endangered, Threatened, and Special Concern Species
PLANTS
Taxonomic Family Status
Common Name Scientific Name MA US Notes
Orchidaceae (Orchids): continued
Small Yellow Lady's slipper Cypripedium parviflorum var. makasin E
Showy Lady's slipper Cypripedium reginae E
Dwarf Rattlesnake plantain Goodyera repens E
Small Whorled Pogonia Isotria medeoloides E T
Lily-leaf Twayblade Liparis liliifolia T
Heartleaf Twayblade Listera cordata E
Bayard's Green Adder's-mouth Malaxis bayardii E
White Adder's mouth Malaxis monophyllos var. brachypoda E
Crested Fringed Orchis Platanthera cristata E
Leafy White Orchis Platanthera dilatata T
Pale Green Orchis Platanthera flava var. herbiola T
Hooded Ladies' tresses Spiranthes romanzoffiana E
Grass leaved Ladies' tresses Spiranthes vernalis T
Cranefly Orchid Tipularia discolor E
Nodding Pogonia Triphora trianthophora E
Oxalidaceae (Wood sorrels)
Violet Wood sorrel Oxalis violacea E
Poaceae (Grasses)
Annual Peanutgrass Amphicarpum amphicarpon E
Purple Needlegrass Aristida purpurascens T
Seabeach Needlegrass Aristida tuberculosa T
Reed Bentgrass Calamagrostis pickeringii E
New England Northern Reed Grass Calamagrostis stricta ssp. inexpansa
E
Tufted Hairgrass Deschampsia cespitosa var. glauca E
Commons's Panic grass Dichanthelium ovale ssp. pseudopubescens SC
Mattamuskeet Panic grass Dichanthelium dichotomum ssp. mattamuskeetense
E
Rough Panic grass Dichanthelium scabriusculum T
Wright's Panic grass Dichanthelium wrightianum SC
Hairy Wild Rye Elymus villosus E
Frank's Lovegrass Eragrostis frankii SC
Saltpond Grass Leptochloa fusca ssp. fascicularis T
Sea Lyme grass Leymus mollis E
Woodland Millet Milium effusum T
Gattinger's Panic-grass Panicum philadelphicum ssp. gattingeri SC
Long leaved Panic-grass Panicum rigidulum ssp. pubescens T
Philadelphia Panic grass Panicum philadelphicum ssp. philadelphicum
SC
Drooping Speargrass Poa saltuensis ssp. languida E
Bristly Foxtail Setaria parviflora SC
Salt Reedgrass Spartina cynosuroides T
Shining Wedgegrass Sphenopholis nitida T
Swamp Oats Sphenopholis pensylvanica T
Small Dropseed Sporobolus neglectus E
Northern Gama grass Tripsacum dactyloides E
Spiked False oats Trisetum spicatum E
E = Endangered, T = Threatened, SC = Special Concern
10.90: continued
Massachusetts List of Endangered, Threatened, and Special Concern Species
PLANTS
Taxonomic Family Status
Common Name Scientific Name MA US Notes
Polygonaceae (Docks, Knotweeds)
Strigose Knotweed Persicaria setacea T
Sea-beach Knotweed Polygonum glaucum SC
Pondshore Knotweed Persicaria puritanorum SC
Seabeach Dock Rumex pallidus T
Swamp Dock Rumex verticillatus T
Portulacaceae (Spring Beauties)
Narrow leaved Spring Beauty Claytonia virginica E
Potamogetonaceae (Pondweeds)
Algae-like Pondweed Potamogeton confervoides T
Fries' Pondweed Potamogeton friesii E
Hill's Pondweed Potamogeton hillii SC
Ogden's Pondweed Potamogeton ogdenii E
Straight-leaved Pondweed Potamogeton strictifolius E
Vasey's Pondweed Potamogeton vaseyi E
Pyrolaceae (Shinleaf)
Pink Pyrola Pyrola asarifolia ssp. asarifolia E
Ranunculaceae (Buttercups)
Black Cohosh Actaea racemosa E
Purple Clematis Clematis occidentalis SC
Golden Seal Hydrastis canadensis E
Tiny flowered Buttercup Ranunculus micranthus E
Bristly Buttercup Ranunculus pensylvanicus SC
Rosaceae (Roses, Shadbushes)
Small flowered Agrimony Agrimonia parviflora E
Hairy Agrimony Agrimonia pubescens T
Bartram's Shadbush Amelanchier bartramiana T
Roundleaf Shadbush Amelanchier sanguinea SC
Bicknell's Hawthorn Crataegus bicknellii E
Sandbar Cherry Prunus pumila var. depressa T
Northern Prickly Rose Rosa acicularis ssp. sayi E
Northern Mountain ash Sorbus decora E
Barren Strawberry Geum fragarioides SC
Rubiaceae (Bedstraws, Bluets)
Northern Bedstraw Galium boreale E
Labrador Bedstraw Galium labradoricum T
Long leaved Bluet Houstonia longifolia E
Salicaceae (Willows)
Swamp Cottonwood Populus heterophylla E
Sandbar Willow Salix exigua ssp. interior T
E = Endangered, T = Threatened, SC = Special Concern
10.90: continued
Massachusetts List of Endangered, Threatened, and Special Concern Species
PLANTS
Taxonomic Family Status
Common Name Scientific Name MA US Notes
Scheuchzeriaceae (Pod grasses)
Pod grass Scheuchzeria palustris E
Schizaeaceae (Climbing Ferns)
Climbing Fern Lygodium palmatum SC
Scrophulariaceae (Figworts)
Sandplain Gerardia Agalinis acuta E E
Winged Monkey flower Mimulus alatus E
Muskflower Mimulus moschatus E
Swamp Lousewort Pedicularis lanceolata E
Hairy Beardtongue Penstemon hirsutus E
Sessile Water speedwell Veronica catenata E
Culver's root Veronicastrum virginicum T
Sparganiaceae (Bur reeds)
Small Bur reed Sparganium natans E
Verbenaceae (Vervains)
Narrow leaved Vervain Verbena simplex E
Violaceae (Violets)
Sand Violet Viola adunca SC
Britton's Violet Viola brittoniana T
Viscaceae (Christmas-mistletoes)
Dwarf Mistletoe Arceuthobium pusillum SC
E = Endangered, T = Threatened, SC = Special Concern
10.91: Index to State Listed Species
The following index is intended to help users of the state list of
Endangered, Threatened, and Special Concern species determine the official
status of any species listed under MESA. This is particularly important
for users of the list who are not familiar with the scientific names
of species. Starting with only a common or scientific name, the index
tells the user where to find the species on the list. The index accomplishes
this by specifying the name of the animal group or plant family under
which the species will be found.
For example, to find the status of Acipenser brevirostrum, one would
look up "Acipenser" in the index and find that it is a fish.
Where fish occur in the list is specified by the outline appearing just
before the list at 321 CMR 10.90(3). The outline shows that fish is
the first category of vertebrate animals. By looking for "Acipenser
brevirostrum" in that section of the list one would determine that
it is the "Shortnose Sturgeon" and is listed as an Endangered
species on both the state and federal lists.
Note that all plants are found under plant families which end with " aceae" and that animals are listed under commonly known categories, such as birds, mammals, or butterflies.
Index to State Listed Species
Abagrotis, Butterflies and Moths
Accipiter, Birds
Acer, Aceraceae
Acipenser, Fish
Acronicta, Butterflies and Moths
Actaea, Ranunculaceae
Adder's mouth, Orchidaceae
Adlumia, Fumariaceae
Aeshna, Dragonflies
Agalinis, Scrophulariaceae
Agastache, Lamianeae
Ageratina, Asteraceae
Agkistrodon, Reptiles
Agrimonia, Rosaceae
Agrimony, Rosaceae
Alasmidonta, Mussels
Alder, Betulaceae
Alnus, Betulaceae
Ambystoma, Amphibians
Amelanchier, Rosaceaes
Ammodramus, Birds
Amphicarpum, Poaceae
Amphipod, Crustaceans
Anax, Dragonflies
Annelids, Segmented Worms
Apamea, Butterflies and Moths
Aplectrum, Orchidaceae
Apodrepanulatrix, Butterflies and Moths
Arabidopsis, Brassicaceae
Arborvitae, Cupressaceae
Arceuthobium, Viscaceae
Arethusa, Orchidaceae
Arisaema, Araceae
Aristida, Poaceae
Arrowhead, Alismataceae
Arrowwood, Caprifoliaceae
Asclepias, Asclepiadaceae
Asio, Birds
Asplenium, Aspleniaceae
Aster, Asteraceae
Bagisara, Butterflies and Moths
Balaenoptera, Mammals
Bald sedge, Cyperaceae
Barn owl, Birds
Bartramia, Birds
Beak sedge, Cyperaceae
Beardtongue, Scropholariaceae
Bedstraw, Rubiaceae
Beetle, Beetles
Beggar ticks, Asteraceae
Betula, Betulaceae
Bidens, Asteraceae
Bindweed, Convolvulaceae
Birch, Betulaceae
Bitter cress, Brassicaceae
Bittern, Birds
Bladderwort, Lentibulariaceae
Blazing Star, Asteraceae
Blephilia, Lamiaceae
Blue eyed Grass, Iridaceae
Bluet, Rubiaceae
Bluet, Damselflies
Boechera, Brassicaceae
Boghaunter, Dragonflies
Bolboschoenus, Cyperaceae
Boneset, Asteraceae
Borer, Butterflies and Moths
Botaurus, Birds
Boyeria, Dragonflies
Bristle-fern, Hymenophyllaceae
Bryozoans, Moss Animals
Buckmoth, Butterflies and Moths
Bulrush, Cyperaceae
Bur reed, Sparganiaceae
Burbot, Fish
Buttercup, Ranunculaceae
Calamagrostis, Poaceae
Callophrys, Butterflies and Moths
Calystegia, Convolvulaceae
Cardamine, Brassicaceae
Caretta, Reptiles
Carex, Cyperaceae
Carphophis, Reptiles
Catocala, Butterflies and Moths
Catostomus, Fish
Cerastium, Caryophyllaceae
Chaetaglaea, Butterflies and Moths
Chamaelirium, Liliaceae
Charadrius, Birds
Chelonia, Reptiles
Chenopodium, Chenopodiaceae
Cherry, Rosaceae
Chub, Fish
Cicindela, Beetles
Cicinnus, Butterflies and Moths
Cingilia, Butterflies and Moths
Circus, Birds
Cistothorus, Birds
Clam Shrimp, Crustaceans
Claytonia, Portulacaceae
Clematis, Ranunculaceae
Club, Araceae
Clubmoss, Lycopodiaceae
Clubtail, Dragonflies
Cohosh, Ranunculaceae
Coleoptera, Beetles
Coltsfoot, Asteraceae
Conioselinum, Apiaceae
Cooter, Reptiles
Copperhead, Reptiles
Corallorhiza, Orchidaceae
Coralroot, Orchidaceae
Corema, Empetraceae
Cottongrass, Cyperaceae
Couesius, Fish
Cow-lily, Nymphaeaceae
Cranberry, Ericaceae
Creeper, Mussel
Cress, Brassicaceae
Crocanthemum, Cistaceae
Crotalus, Reptiles
Crowberry, Empetraceae
Cryptogramma, Adiantaceae
Cuckoo Flower, Brassicaceae
Cudweed, Asteraceae
Culver's-root, Scrophulariaceae
Currant, Grossulariaceae
Cutworm, Butterflies and Moths
Cycnia, Butterflies and Moths
Cynoglossum, Boraginaceae
Cyperus, Cyperaceae
Cypripedium, Orchidaceae
Dace, Fish
Daggermoth, Butterflies and Moths
Damelfly, Damelflies
Darner, Dragonflies
Dendroica, Birds
Dermochelys, Reptiles
Deschampsia, Poaceae
Desmodium, Fabaceae
Devil's-bit, Liliaceae
Dichanthelium, Poaceae
Digrammia, Butterflies and Moths
Dock, Polygonaceae
Doellingeria, Asteraceae
Dragon, Araceae
Dragonfly, Dragonflies
Dropseed, Poaceae
Eacles, Butterflies and Moths
Eagles, Birds
Elatine, Elatinaceae
Eleocharis, Cyperaceae
Elymus, Poaceae
Emerald, Dragonflies
Emydoidea, Reptiles
Enallagma, Damselflies
Equisetum, Equisetaceae
Eragrostis, Poaceae
Eretmochelys, Reptiles
Eriocaulon, Eriocaulaceae
Eriophorum, Cyperaceae
Erora, Butterflies and Moths
Erynnis, Butterflies and Moths
Eubalaena, Mammals
Eubranchipus, Crustaceans
Euchlaena, Butterflies and Moths
Eulimnadia, Crustaceans
Eupatorium, Asteraceae
Euphyes, Butterflies and Moths
Fairy Shrimp, Crustaceans
Falco, Birds
Falcon, Birds
False-loosestrife, Onagraceae
False-oats, Poaceae
Faronta, Butterflies and Moths
Fern, Dryopteridaceae, Ophioglossaceae,
Schizaeceae
Ferrissia, Snails
Firmoss, Lycopodiaceae
Flax, Linaceae
Floater, Mussel
Floridobia, Snails
Foxtail, Poaceae
Fumitory, Fumariaceae
Galium, Rubiaceae
Gallinula, Birds
Gama-grass, Poaceae
Gammarus, Crustaceans
Gamochaeta, Asteraceae
Gasterosteus, Fish
Gavia, Birds
Gentian, Gentianaceae
Gentiana, Gentianaceae
Geometer, Butterflies and Moths
Gerardia, Scrophulariaceae
Giant-hyssop, Scrophulariaceae
Ginseng, Araliaceae
Glyptemys, Reptiles
Golden Club, Araceae
Golden Seal, Ranunculaceae
Goldenrod, Asteraceae
Gomphus, Dragonflies
Goodyera, Orchidaceae
Goosefoot, Chenopodiaceae
Grammia, Butterflies and Moths
Grass, Poaceae
Gray, Butterflies and Moths
Grebe, Birds
Green Dragon, Araceae
Gypsywort, Lamiaceae
Hairgrass, Poaceae
Hairstreak, Butterflies and Moths
Halenia, Gentianaceae
Haliaeetus, Birds
Harrier, Birds
Hawk, Birds
Hawkmoth, Butterflies and Moths
Hawksbill, Reptiles
Hemaris, Butterflies and Moths
Hemileuca, Butterflies and Moths
Holly-fern, Dryopteridaceae
Honeysuckle, Caprifoliaceae
Horned-sedge, Cyperaceae
Houstonia, Rubiaceae
Huperzia, Lycopodiaceae
Hybognathus, Fish
Hydrastis, Ranunculaceae
Hydrocotyle, Apiaceae
Hydrophyllum, Hydrophyllaceae
Hypericum, Clusiaceae
Hypomecis, Butterflies and Moths
Ilex, Aquifoliaceae
Inchworm, Butterflies and Moths
Isoetes, Isoetaceae
Isotria, Orchidaceae
Itame, Butterflies and Moths
Ixobrychus, Birds
Juncus, Juncaceae
Knotweed, Polygonaceae
Lachnanthes, Haemodoraceae
Ladies'-tresses, Orchidaceae
Lady's-slipper, Orchidaceae
Lampetra, Fish
Lamprey, Fish
Lampsilis, Mussels
Laurel, Ericaceae
Leatherback, Reptiles
Lechea, Cistaceae
Leech, Segmented Worms
Lemming, Mammals
Lepidochelys, Reptiles
Lepidoptera, Butterflies and Moths
Leptochloa, Poaceae
Leptodea, Mussels
Leymus, Poaceae
Liatris, Asteraceae
Ligumia, Mussels
Limnadia, Crustaceans
Limpet, Snails
Linum, Linaceae
Lion's Foot, Asteraceae
Liparis, Orchidaceae
Lipocarpha, Cyperaceae
Listera, Orchidaceae
Lithophane, Butterflies and Moths
Littoridinops, Snails
Lobelia, Campanulaceae
Loggerhead, Reptiles
Lonicera, Caprifoliaceae
Loon, Birds
Lota, Fish
Lousewort, Scrophulariaceae
Lovegrass, Poaceae
Ludwigia, Onagraceae
Luzula, Juncaceae
Lycia, Butterflies and Moths
Lycopdiella, Lycopodiaceae
Lycopus, Lamiaceae
Lygodium, Schizaeaceae
Lyme-grass, Poaceae
Macrobdella, Segmented Worms
Magnolia, Magnoliaceae
Malaclemys, Reptiles
Malaxis, Orchidaceae
Maple, Aceraceae
Marstonia, Snails
Meadow Beauty, Melastomataceae
Megaptera, Mammals
Mertensia, Boraginaceae
Metarranthis, Butterflies and Moths
Milium, Poaceae
Milkweed, Asclepiadaceae
Millet, Poaceae
Mimulus, Scrophulariaceae
Minnow, Fish
Minuartia, Caryophyllaceae
Mistletoe, Viscaceae
Moehringia, Caryophyllaceae
Molluscs, Mussels
Monkey-flower, Scrophulariaceae
Moorhen, Birds
Morus, Moraceae
Moth, Butterflies and Moths
Mountain-ash, Rosaceae
Mucket, Mussels
Mulberry, Moraceae
Muskflower, Scrophulariaceae
Mussel, Mussels
Myotis, Mammals
Myriophyllum, Haloragaceae
Nabalus, Asteraceae
Needlegrass, Poaceae
Neoligia, Butterflies and Moths
Neurocordulia, Dragonflies
Nicrophorus, Beetles
Notropis, Fish
Nuphar, Nymphaeaceae
Nut-sedge, Cyperaceae
Oak, Fagaceae
Oats, Poaceae
Oceanodroma, Birds
Odonata, Dragonflies or Damselflies
Oncocnemis, Butterflies and Moths
Ophioglossum, Ophioglossaceae
Ophiogomphus, Dragonflies
Oporornis, Birds
Opuntia, Cactaceae
Orchid, Orchidaceae
Orchis, Orchidaceae
Orontium, Araceae
Owl, Birds
Oxalis, Oxalidaceae
Oysterleaf, Boraginaceae
Panax, Araliaceae
Panic-grass, Poaceae
Panicum, Poaceae
Papaipema, Butterflies and Moths
Paronychia, Caryophyllaceae
Parsley, Apiaceae
Parula, Birds
Patherophis, Reptiles
Peanutgrass, Poaceae
Pedicularis, Scrophulariaceae
Pennyroyal, Lamiaceae
Pennywort, Apiaceae
Penstemon, Scrophulariaceae
Persicaria, Polygonaceae
Petasites, Asteraceae
Phoxinus, Fish
Physeter, Mammals
Pieris, Butterflies and Moths
Pink, Gentianaceae
Pinweed, Cistaceae
Pipewort, Eriocaulaceae
Planarian, Flatworms
Platanthera, Orchidaceae
Plover, Birds
Poa, Poaceae
Pod-grass, Scheuchzeriaceae
Podilymbus, Birds
Podostemum, Podostemaceae
Pogonia, Orchidaceae
Polycelis, Flatworms
Polygonum, Polygonaceae
Polystichum, Dryopteridaceae
Pomatiopsis, Snails
Pondweed, Potamogetonaceae
Pooecetes, birds
Populus, Salicaceae
Potamogeton, Potamogetonaceae
Prickly Pear, Cactaceae
Prunus, Rosaceae
Psectraglaea, Butterflies and Moths
Pseudemys, Reptiles
Ptichodis, Butterflies and Moths
Putty-root, Orchidaceae
Pygmyweed, Crassulaceae
Pyrola, Pyrolaceae
Quercus, Fagaceae
Quillwort, Isoetaceae
Rail, Birds
Rallus, Birds
Ranunculus, Ranunculaceae
Rattlesnake, Reptiles
Rattlesnake-plantain, Orchidaceae
Redroot, Haemodoraceae
Reedgrass, Poaceae
Rhexia, Melastomataceae
Rhionaeschna, Dragonflies
Rhododendron, Ericaceae
Rhodoecia, Butterflies and Moths
Rhynchospora, Cyperaceae
Ribes, Grossulariaceae
Ridley, Reptiles
Rock-brake, Adiantaceae
Rock-cress, Brassicaceae
Rockrose, Cistaceae
Rosa, Rosaceae
Rose, Rosaceae
Rotala, Lythraceae
Rumex, Polygonaceae
Rush, Juncaceae
Rye, Poaceae
Sabatia, Gentianaceae
Sack Bearer, Butterflies and Moths
Sagittaria, Alismataceae
Salamander, Amphibians
Salix, Salicaceae
Sallow, Butterflies and Moths
Sandpiper, Birds
Sandwort, Caryophyllaceae
Sanicle, Apiaceae
Sanicula, Apiaceae
Satyrium, Butterflies and Moths
Scaphiopus, Amphibians
Scheuchzeria, Scheuchzeriaceae
Scirpus, Cyperaceae
Scleria, Cyperaceae
Sclerolepis, Asteraceae
Scouring-rush, Equisetaceae
Sea-blite, Chenopodiaceae
Sedge, Cyperaceae
Senna, Fabaceae
Setaria, Poaceae
Shadbush, Rosaceae
Shadowdragon, Dragonflies
Shrew, Mammals
Shiner, Fish
Siltsnail, Snails
Silverling, Caryophyllaceae
Sisyrinchium, Iridaceae
Skipper, Butterflies and Moths
Snail, Snails
Snake, Reptiles
Snakeroot, Asteraceae
Snaketail, Dragonflies
Snowberry, Caprifoliaceae
Solidago, Asteraceae
Somatochlora, Dragonflies
Sorbus, Rosaceae
Sorex, Mammals
Spadefoot, Amphibians
Sparganium, Sparganiaceae
Sparrow, Birds
Spartina, Poaceae
Spartiniphaga, Butterflies and Moths
Speargrass, Poaceae
Sphenopholis, Poaceae
Spike-sedge, Cyperaceae
Spiranthes, Orchidaceae
Spleenwort, Aspleniaceae
Sponge, Sponges
Spongilla, Sponges
Sporobolus, Poaceae
Spring Beauty, Portulacaceae
St. John's-wort, Clusiaceae
St. Andrew's Cross, Clusiaceae
Stenoporpia, Butterflies and Moths
Sterna, Birds
Sternula, Birds
Stickleback, Fish
Storm-petrel, Birds
Strawberry, Rosaceae
Streak, Butterflies and Moths
Strophitus, Mussel
Sturgeon, Fish
Stygobromus, Crustaceans
Stylurus, Dragonflies
Suaeda, Chenopodiaceae
Sucker, Fish
Symphoricarpos, Caprifoliaceae
Symphyotrichum, Asteraceae
Synaptomys, Mammals
Synurella, Crustaceans
Tern, Birds
Terrapene, Reptiles
Terrapin, Reptiles
Threadfoot, Podostemaceae
Thuja, Cupressaceae
Tick-trefoil, Fabaceae
Tigermoth, Butterflies and Moths
Tillaea, Crassulaceae
Tinker's-weed, Caprifoliaceae
Tipularia, Orchidaceae
Toothcup, Lythraceae
Trichomanes, Hymenophyllaceae
Trichostema, Lamiaceae
Triosteum, Caprifoliaceae
Triphora, Orchidaceae
Tripsacum, Poaceae
Trisetum, Poaceae
Turtle, Reptiles
Twayblade, Orchidaceae
Tyto, Birds
Umbrella-sedge, Cyperaceae
Utricularia, Lentibulariaceae
Vaccinium, Ericaceae
Valvalta, Snails
Verbena, Verbenaceae
Vermivora, Birds
Veronica, Scrophulariaceae
Veronicastrum, Scrophulariaceae
Vervain, Verbenaceae
Viburnum, Caprifoliaceae
Viola, Violaceae
Violet, Violaceae
Waldsteinia, Rosaceae
Walker, Snails
Wapato, Alismataceae
Warbler, Birds
Water-milfoil, Haloragaceae
Water-speedwell, Scrophulariaceae
Water-starwort, Callitrichaceae
Waterleaf, Hydrophyllaceae
Waterwort, Elatinaceae
Wedgegrass, Poaceae
Whale, Mammals
White, Butterflies and Moths
Williamsonia, Dragonflies
Willow, Salicaceae
Winterberry, Aquifoliaceae
Wood-mint, Lamiaceae
Wood-sorrel, Oxalidaceae
Woodrush, Juncaceae
Woodsia, Dryopteridaceae
Wren, Birds
Yarrow, Asteraceae
Zale, Butterflies and Moths
Zanclognatha, Butterflies and Moths
(10:99: Designated Significant Habitats: Reserved)
REGULATORY AUTHORITY
321 CMR 10.00: M.G.L. c. 131A.
Regulatory Authority: M.G.L. c. 131A, § 4.
Last Revised: 10-15-2010