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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
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
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 maintained in forest use, 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, when carried out in accordance
with an approved Forest Cutting Plan under the provisions of M.G.L.
c. 132, §§ 40 through 46, and 304 CMR 11.04, provided that
upon the receipt of the Division’s recommendations, the Department
of Conservation and Recreation shall modify the Forest Cutting Plan
to incorporate conditions to protect the State-listed Species.
(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.
Director means the Director of the Division of Fisheries and Wildlife within the Department of Fish and Game.
Division means the Division of Fisheries and Wildlife within the Department of Fish and Game for purposes of 321 CMR 10.00 located at Rte. 135, North Drive, Westboro, MA 01581.
Endangered Species means any species of plant or animal listed as an Endangered species pursuant to 321 CMR 10.03 and so listed at 321 CMR 10.90.
Extinction means the loss of a species from its entire global range.
Extirpation means the loss of a species from its entire range within Massachusetts.
Federal Endangered Species Act means The Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq., and the regulations promulgated thereunder.
Federal List means the List of Endangered and Threatened Wildlife (50 CFR 17.11) and the List of Endangered and Threatened Plants (50 CFR 17.12).
Federally Listed Species means any species on the federal list.
Fisheries & Wildlife Board means the board established pursuant to M.G.L. c. 131, § 1A.
Habitat means an area which, due to its physical or biological features, protects or provides important elements for the growth and survival of plants or animals such as food, shelter, or living space, and includes without limitation, breeding, feeding, resting, migratory, or overwintering areas. Physical or biological features include, but are not limited to: structure and composition of the vegetation; faunal community; soils; water chemistry and quality; and geologic, hydrologic, and microclimatic factors.
Native, in reference to species, means a species which either occurs, or has occurred, within Massachusetts; provided that the original occurrence of such species is not the result of a deliberate or accidental introduction by humans into Massachusetts nor an introduction elsewhere which spread into Massachusetts.
Natural Heritage and Endangered Species Advisory Committee means the committee established pursuant to M.G.L. c. 131, § 5B.
Natural Heritage and Endangered Species Program (NHESP) means the program within the Division of Fisheries and Wildlife responsible for the inventory, research, and protection of rare plant and animal species and the maintenance of computerized and manual records of rare species locality information.
10.02: continued
Net Benefit means an action, or set of actions, that contributes, on its own or in the context of other actions, significantly to the long-term conservation of a State-listed Species and that the conservation contribution to the impacted State-listed Species exceeds the harm caused by a proposed Project or Activity.
Person means an individual, corporation, partnership, trust, association or other private entity or any officer, agent, department or instrumentality of the federal government or any state or its political subdivisions, including but not limited to any agency, department, board, commission or authority thereof.
Plant means any member of the plant kingdom including seeds, roots, or other parts.
Priority Habitat means the geographic extent of Habitat for State-listed Species as delineated by the Division pursuant to 321 CMR 10.12. Priority Habitats are delineated based on records of State-listed Species observed within the 25 years prior to delineation and contained in the Division’s NHESP database.
Project or Activity means any action, including, but not limited to:
(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.
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 emergency as declared under M.G.L. c. 17, §
2A; 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.
(a) 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.
(b) Requests for all other permits should be sent to: Division of Fisheries
and Wildlife, 251 Causeway Street, Suite 400, Boston, MA 02114.
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 EOEA initiates the following review.
The Secretary of EOEA may initiate a review of a state action when he/she
determines that such a state action may damage state listed species
or their habitats. Such state actions for which the Secretary has initiated
such review and which fulfill the consultation and review procedures
described below shall be considered in compliance with 321 CMR 10.05(1):
1. Upon notification by the Secretary of EOEA 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 EOEA 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.
(5) In the delineation of Priority Habitat and the selection of occurrence records to be included in Priority Habitat mapping, the Division shall take into consideration the listing status of individual species and use a methodology that draws clear distinctions between State-listed Species based on the relative threat of extinction or extirpation for each of those classifications. The Division will develop guidelines and criteria for the acceptance and inclusion of occurrence records into the NHESP data base.
(6) Promptly after completion, the Division shall provide town-based Priority Habitat map to planning boards and conservation commissions in cities and towns where Priority Habitats exists. The Priority Habitat maps shall also be made available electronically as a GIS data layer.
(7) The delineation of Priority Habitat will be re-evaluated every
two years by the Division. The Division shall within 60 days of that
re-evaluation publish an updated version of the Priority Habitat map
reflecting:
(a) any revisions to the delineation resulting from Division’s
re-evaluation;
(b) any revisions to the delineation made in the preceding two years
in response to a request for reconsideration or appeal;
(c) any revisions resulting from new occurrence records; and
(d) listing changes. The updated version of the Priority Habitat map
shall be distributed as provided in 321 CMR 10.12(6).
10.12: continued
(8) Any Record Owner of real property in Priority Habitat may request
reconsideration by the Division of the delineation affecting that Record
Owner’s property. Such request shall be made in writing by certified
mail to the Division. Within 30 days of the Division’s receipt
of a request for reconsideration, the Division shall make available
to the Record Owner, consistent with the provisions of M.G.L. c. 66
§ 17D, information from the Division’s files relating to
the delineation and species listing affecting that property. In providing
such records, the Division shall require the Record Owner to execute
a confidentiality agreement pursuant to M.G.L. c. 66 §17D and shall
redact the names and personal information of persons submitting State-listed
Species occurrence information affecting a property. Following the receipt
of information used as the basis of the delineation the Record Owner
shall notify the Division in writing if they wish to proceed with the
reconsideration. If the Record Owner determines to proceed with the
reconsideration they shall provide the following information:
(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: Projects Not in Priority Habitat
(1) Projects and Activities that are not located or will not take place
in Priority Habitats shall not be subject to the review provision of
321 CMR 10.18, except as provided in 321 CMR 10.13(2), or if, prior
to:
(a) the issuance of a final Order of Conditions by a conservation commission;
(b) or if not subject to the jurisdiction of the conservation commission,
then upon the issuance of any permit that has been subject to public
hearing that was publicly noticed;
(c) or if not subject to such a public hearing then 15 days after the
issuance of a building permit,
new information on a State-listed Species occurrence is received by
the Division relating to the site of a proposed Project or Activity.
Upon receipt of such new information the Division shall notify the Record
Owner. The Division shall determine whether the new State-listed Species
occurrence meets the criteria for delineation of a Priority Habitat
under 321 CMR 10.12, and, whether the proposed Project or Activity shall
be reviewed under 321 CMR 10.18. Within 30 days of the receipt of such
new occurrence information, the Division’s determination shall
be provided in writing to the Record Owners(s) of the site(s) where
the Project or Activity is proposed. Any determination provided under
321 CMR 10.13 shall remain valid for a period of three years after the
date of its issuance.
(2) For Projects or Activities that are subject to MEPA review pursuant to M.G.L. c. 30, § 61 through 62H, the following provisions shall apply:
10.13: continued
(a) The Division may, consistent with MEPA regulations at 301 CMR 11.00,
review and comment on any Environmental Notification Form, Environmental
Impact Report, draft Environmental Impact Report or Notice of Project
Change submitted to the MEPA Office. If the Division has credible information
indicating the occurrence of a State-listed Species or its habitat within
the area to be disturbed by the Project or Activity, the Division may
request in its comments to the MEPA Office that the project proponent
be required to assess the area to be disturbed by the Project or Activity
to determine if State-listed Species are present. Otherwise, the Priority
Habitat Map in effect as of the time of the Division’s review
of the Environmental Notification Form or Notice of Project Change shall
be deemed final for the purpose of the Division’s review.
(b) 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 three years.
(3) A Record Owner may at any time undertake a voluntary assessment following protocols pre-approved in writing by the Division for which a review fee shall be charged, the amount of which shall be determined by the commissioner of administration under the provisions of M.G.L. c. 7, § 3B, to determine if Threatened and Species of Special Concern are present on a property (or portion thereof). Upon approval of that assessment by the Division, that assessment shall remain valid for the purposes of 321 CMR 10.00 Part II for a period of three years from the date of its approval in writing by the Division. The approval by the Division of a Record Owner’s assessment documenting the absence of Threatened and Special Concern Species shall provide the Record Owner with a guarantee that no new occurrence records will be considered in relation to a MESA or MEPA (321 CMR 13.2) review of the property for a period of three years. This guarantee does not include any species that is subsequently listed.
10.14: Exemptions from Review for Projects or Activities in Priority Habitat
The following Projects and Activities shall be exempt from the requirements of 321 CMR 10.18 through 10.23:
(1) Agriculture and Aquaculture. The normal maintenance and improvement of land in agricultural or aquacultural use. This exemption shall continue only so long as such land remains in agricultural or aquacultural use. Land in agricultural use does not include those portions of a site that are not in such use and are not designated fallow land. The normal maintenance and improvement of land in agricultural or aquacultural use does not include site preparation for purposes of conversion to another, non-agricultural or non-aquacultural use;
(2) the maintenance, repair, or replacement, the vertical expansion, or additions that do not exceed 20% of the footprint of existing commercial and industrial buildings, multifamily and mixed use structures within existing paved areas and lawfully developed and maintained lawns or landscaped areas;
(3) the maintenance, repair, or replacement, the vertical expansion, or additions that do not exceed 50% of the footprint of an existing single family or two family home within existing paved and lawfully developed and maintained lawns or landscaped areas;
(4) construction of sheds and other out-buildings within existing paved areas and lawfully developed and maintained lawns or landscaped areas;
(5) construction, repair, replacement or maintenance of septic systems, utility lines, sewer lines, wastewater treatment systems, or residential water supply wells within existing paved areas and lawfully developed and maintained lawns or landscaped areas;
(6) installation, repair, replacement, and maintenance of utility lines (gas, water, sewer, phone, electrical) for which all associated work is within ten feet from the edge of existing paved roads;
10.14: continued
(7) routine operation and maintenance on existing electrical, gas, and telecommunication distribution and transmission lines and existing substations, provided that the operation and maintenance are part of an operation and maintenance plan approved by the Division, for which a review fee shall be charged, the amount of which shall be determined by the commissioner of administration under the provisions of M.G.L. c.7, §3B;
(8) the maintenance, repair or replacement, but not widening, of existing paved roads, shoulder repair that does not exceed four feet from an existing travel lane, paved driveways, and paved parking areas, but not including parking areas on barrier beaches, coastal beaches, coastal dunes, or salt marshes, as defined by the Massachusetts Wetlands Protection Act (M.G.L. c. 131, § 40 and 310 CMR 10.00), and not including actions that are likely to result in changes in storm water drainage;
(9) the maintenance or replacement but not the expansion of existing lawns and landscaped areas;
(10) performance of customary land surveying activities, wetland resource area delineations, environmental assessments and investigations performed in accordance with M. G. L. c. 21E, and other customary preliminary site investigations;
(11) The active management of State-listed Species habitat, including but not limited to mowing, cutting, burning, or pruning of vegetation, or removing exotic or invasive species, for the purpose of maintaining or enhancing the habitat for the benefit of rare species, provided that the management is carried out in accordance with a habitat management plan approved in writing by the Division, and;
(12) The management of vegetation within existing utility rights-of-way provided that the management is carried out in accordance with a vegetation management plan approved in writing by the Division prior to the commencement of work for which a review fee shall be charged, the amount of which shall be determined by the commissioner of administration under the provisions of M.G.L. c.7, § 3B;
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
Projects shall not be segmented or phased to evade or defer the review requirements of 321 CMR 10.18 through 10.23. For the purposes of 321 CMR 10.18 through 10.23, the entirety of a proposed Project subject to review, including likely future expansions, shall be considered, and not separate phases or segments thereof. In determining whether two or more segments or components are in fact parts of one Project, all circumstances shall be considered, including but not limited to time interval between phases, whether the segments or components, taken together, constitute a part of a common plan or scheme, and whether environmental impacts are separable. Ownership by different entities does not necessarily indicate that two segments or components are separate.
10.17: Requests for State-listed Species Information
(1) Whether a Project or an Activity is within or encroaches upon a Priority Habitat shall be determined by consulting the Natural Heritage Atlas, which shall be the authoritative delineation of the boundaries of said Priority Habitat.
(2) A Record Owner of land in Priority Habitat may submit a written request to the Division for a list of State-listed Species occurring in the Priority Habitat located on that Record Owner’s property.
(3) The Division shall respond in writing to such requests within 30 days of receipt of all information required by 321 CMR 10.17(4) and the payment of a fee, the amount of which shall be determined by the commissioner of administration under the provisions of M.G.L. c.7, § 3B.
(4) All requests made under 321 CMR 10.17(2) shall include the following
information:
(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 three years from the date of the determination (or the expiration of the 60-day review period, as may be extended). If no physical work is commenced on the Project or Activity within that three-year period, or there is a material change in the plans that were submitted to the Division, the Project or Activity may be subject to further review by the Division.
10.19: Performance Standard for Avoidance of Take of State-listed Species
Project proponents shall demonstrate that the proposed Project or Activity does not result in a Take, as defined in 321 CMR 10.02 and 10.04.
10.20: Project Filing Requirements
The following information shall be submitted to the Division in order to commence review pursuant to 321 CMR 10.18:
(1) Projects or Activities Impacting Less than Ten Acres.
(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 for a period of up to three years. Request for an extension shall be made in writing to the Director at least 30 days prior to the expiration of the determination.
(2) The Director may deny the request for an extension and require
a review for the remaining work in the following circumstances:
(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.
(2) If the Director determines that the applicant for a permit has
avoided, minimized and mitigated impacts to State-listed Species consistent
with the following performance standards, then the Director may issue
a conservation and management permit, provided:
(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) If a conservation and management permit applicant is unable to demonstrate the long-term Net Benefit performance standard on the project site and the applicant has made every reasonable effort to avoid, minimize and mitigate impacts to the State-listed Species on site, then the conservation and management plan may with the approval of the Director, be designed to meet the long-term Net Benefit performance standard by providing for financial or in-kind contributions toward the development and/or the implementation of an off-site conservation recovery and protection plan for the impacted species.
10.23: continued
(4) Within 30 days of the receipt of a final conservation and management plan including a review fee, the amount of which shall be determined by the commissioner of administration under the provisions of M.G.L. c. 7, § 3B or, if a conservation and management plan has been submitted and the Project or Activity is undergoing a MEPA review, then 30 days after the issuance of a final MEPA certificate, whichever is longer, the Director shall make a determination that the submitted plan meets the performance standards and is approved, or a determination that the plan as submitted is inadequate and is denied. Failure of the Director to respond to the final conservation and management plan shall constitute approval of the submitted plan as an approved conservation and management permit. The 30 day response time may be extended for two successive 30 day periods by the Director due to circumstances beyond the control of the Division and the applicant shall be notified in writing of the extension, its period and the reason for the extension.
(5) The conservation and management permit, if and when issued, shall contain such terms and conditions as the Director deems necessary or appropriate to carry out the purposes of M.G.L. c. 131A, including but not limited to, adequate funding for the conservation and management permit provided by the applicant, and appropriate monitoring and reporting of the results of the conservation and management permit. After being notified in writing, and confirming that the terms of a conservation and management permit have been fulfilled, the Division will promptly issue a certificate of compliance.
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.
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.
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 add