Code of Massachusetts Regulations
301 CMR - EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS
Title 301 CMR 11.00 - Mepa Regulations
Section 11.01 - General Provisions

Universal Citation: 301 MA Code of Regs 301.11

Current through Register 1531, September 27, 2024

(1) Authority and Purpose.

(a) General. 301 CMR 11.00 is promulgated to create a uniform system for compliance with the Massachusetts Environmental Policy Act, M.G.L. c. 30, §§ 61 through 62L (MEPA). The purpose of MEPA and 301 CMR 11.00 is to provide meaningful opportunities for public review of the potential environmental impacts of Projects for which Agency Action is required, and to assist each Agency in using (in addition to applying any other applicable statutory and regulatory standards and requirements) all feasible means to avoid Damage to the Environment or, to the extent Damage to the Environment cannot be avoided, to minimize and mitigate Damage to the Environment to the maximum extent practicable.

(b) MEPA Review. MEPA review is an informal administrative process that is intended to involve any interested Agency or Person as well as the Proponent and each Participating Agency. The Secretary conducts MEPA review in response to one or more review documents prepared and filed by a Proponent. The Secretary's decision that a review document is adequate or that there has been other due compliance with MEPA and 301 CMR 11.00 means that the Proponent has adequately described and analyzed the Project and its alternatives, and assessed its potential environmental impacts and mitigation measures. A Participating Agency retains authority to fulfill its statutory and regulatory obligations in permitting or reviewing a Project that is subject to MEPA review, which does not itself result in any formal adjudicative decision approving or disapproving a Project. Consistent with M.G.L. c. 30, § 62K, the Secretary and all EEA agencies must consider Environmental Justice Principles in implementing MEPA review. Accordingly, MEPA review shall be conducted in a manner that provides sufficient disclosures to allow for a full consideration of Environmental Justice Principles in order to reduce the potential for unfair or inequitable effects upon Environmental Justice Populations.

(c) MEPA and Agency Actions. MEPA review is intended to inform the Proponent and each Participating Agency, to maximize consistency between Agency Actions, and to facilitate coordination of all environmental and development review and permitting processes of the Commonwealth. It provides an opportunity in one or more review documents for the Proponent to identify required Agency Actions and describe and analyze how the Project complies with applicable regulatory standards and requirements. Each Participating Agency shall review the MEPA submittals and specify any aspects of the Project or issues regarding its Agency Action that require additional description or analysis (beyond that already provided in the review documents or any application for a Permit, Financial Assistance, or a Land Transfer) to enable it to take Agency Action on the Project or fulfill its obligations in accordance with M.G.L. c. 30, § 61 and M.G.L. c. 30, § 62K. The Secretary may specify in the certificate on a review document any appropriate consultation by and between the Proponent and each Participating Agency and may hold informational meetings prior to or during MEPA review to ensure appropriate consultation.

(d) MEPA and Environmental Planning. MEPA review is intended to facilitate environmental planning for Projects requiring Agency Action, including an Agency's programs, regulations, or policies. It enables the Proponent and each Participating Agency to consider the positive and negative, short-term and long-term potential environmental and public health impacts for all phases of a Project, and the cumulative impacts of the Project and any other Project or other work or activity in the immediate surroundings and region. It also enables an Agency to consider the cumulative impacts of Projects requiring individual Agency Actions taken in accordance with each of its programs, regulations and policies that may not otherwise be subject to adequate MEPA review or that may have similar environmental impacts such that a common assessment may be necessary or appropriate. MEPA review can influence the planning and design of a program, regulations, policy, or other Project to enable an Agency to achieve these goals, provided that MEPA review is initiated sufficiently early and in any event prior to the Proponent finalizing or otherwise irreversibly committing to the program, regulations, policy, or other Project.

(2) Applicability.

(a) Jurisdiction.
1. MEPA establishes jurisdiction over: a Project undertaken by an Agency; those aspects of a Project within the subject matter of any required Permit; a Project that seeks the provision of Financial Assistance; and those aspects of a Project within the area of any Land Transfer. MEPA jurisdiction determines the Scope, if an EIR is required. The Scope shall enable Agencies to fulfill their obligations under 301 CMR 11.12(5).

2. MEPA jurisdiction is broad when a Project is undertaken by an Agency or seeks the provision of Financial Assistance. Broad, or full scope, jurisdiction means that the Scope, if an EIR is required, shall extend to all aspects of a Project that are likely, directly or indirectly, to cause Damage to the Environment.

3. MEPA jurisdiction is limited when a Project is undertaken by a Person and requires one or more Permits or involves a Land Transfer, but does not seek the provision of Financial Assistance. Limited, or subject matter, jurisdiction means that the Scope, if an EIR is required, shall be limited to those aspects of the Project within the subject matter of any required Permit or within the area subject to a Land Transfer that are likely, directly or indirectly, to cause Damage to the Environment. Subject matter jurisdiction may be functionally equivalent to full scope jurisdiction in the case of a Project, for example, requiring a Chapter 91 License or involving a Land Transfer of the entire Project site. Subject matter jurisdiction may be limited to a particular structure, facility or activity and its direct and indirect environmental impacts in the case of a Project, for example, requiring a Sewer Extension/Connection Permit or involving a Land Transfer of a discrete portion of the Project site on which the access roadway is proposed.

(b) Review Thresholds.
1.301 CMR 11.00 establishes review thresholds that identify categories of Projects or aspects thereof, of a nature, size or location that are likely, directly or indirectly, to cause Damage to the Environment. Except when the Secretary requires fail-safe review, the review thresholds determine whether MEPA review is required.

2. MEPA review is required when one or more review thresholds are met or exceeded and the subject matter of at least one review threshold is within MEPA jurisdiction. A review threshold that is met or exceeded specifies whether MEPA review shall consist of an ENF and a mandatory EIR or of an ENF and other MEPA review if the Secretary so requires. The subject matter of a review threshold is within MEPA jurisdiction when there is full-scope jurisdiction (i.e., the Project is undertaken by an Agency or seeks the provision of Financial Assistance) or when the subject matter of the review threshold is conceptually or physically related to the subject matter of one or more required Permits (provided that the review thresholds for Land and Areas of Critical Environmental Concern shall be considered to be related to the subject matter of any required Permit) or the area subject to a Land Transfer.

3. The review thresholds do not apply to: a lawfully existing structure, facility or activity; Routine Maintenance; a Replacement Project; or a Project that is consistent with a Special Review Procedure review document, or other plan or document that has been prepared with the express purpose of assessing the potential environmental impacts from future Projects, has been reviewed as such in accordance with MEPA and 301 CMR 11.00, and has been allowed or approved by any Participating Agency, unless the filing of an ENF and an EIR was required by a decision of the Secretary on any such review document, plan or document.

4. Any Project seeking to qualify in its entirety as an Ecological Restoration Project, but not including an Ecological Restoration Limited Project under 310 CMR 10.24(8) and 10.53(4), shall not be required to undergo MEPA review, provided the requirements of 301 CMR 11.01(2)(b)4. are met. At least 60 days prior to filing a Notice of Intent for a Restoration Order of Conditions, the Proponent shall submit a Notice of Project with the MEPA Office for publication in the Environmental Monitor. Said Notice of Project shall include, in a format prescribed by the Secretary, a scope of work for the proposed restoration activities, an estimate of the nature and extent of wetlands alteration, and a statement that the Project will meet the eligibility criteria for a Restoration Order of Conditions under 310 CMR 10.13: Eligibility Criteria for Restoration Order of Conditions for an Ecological Restoration Project, but not including an Ecological Restoration Limited Project under 310 CMR 10.24(8) and 10.53(4), together with identification of the project type and a list of the documentation that will be provided to the issuing authority. Any Project that is located within a Designated Geographic Area around one or more Environmental Justice Populations shall also comply with 301 CMR 11.05(4), and shall include in the Notice of Project a description of measures taken to enhance public involvement opportunities by the identified Environmental Justice Populations, and a description of any Environmental Burdens or Environmental Benefits that may result for the Environmental Justice Populations by reason of the Project. Advance notification shall be provided in accordance with 301 CMR 11.05(4)(b) no later than 45 Days, and no earlier than 90 Days, prior to submitting the Notice of Project to the MEPA Office for publication. Comments on the Notice of Project shall be received for 20 Days following publication of the notice, and unless the Secretary issues a determination within ten Days after the close of the comment period indicating that the Project requires an ENF filing, any Agency Action required for the Project may be taken if required to obtain a Restoration Order of Conditions, provided that the Agency Action shall be deemed to be conditioned on the ultimate issuance of the Restoration Order of Conditions. If the Restoration Order of Conditions for an Ecological Restoration Project is denied, a Project that requires Agency Action and meets or exceeds one or more MEPA review thresholds must thereafter undergo MEPA review, and any conditional Agency Action taken in accordance with 301 CMR 11.01(2)(b)4. shall not become effective until MEPA review is completed. Consistent with 301 CMR 11.12(6), the Agency may reconsider the Agency Action and any conditions thereof following the completion of MEPA review.

(c) Segmentation In determining whether a Project is subject to MEPA jurisdiction or meets or exceeds any review thresholds, and during MEPA review, the Proponent, any Participating Agency, and the Secretary shall consider the entirety of the Project, including any likely future Expansion, and not separate phases or segments thereof. The Proponent may not phase or segment a Project to evade, defer or curtail MEPA review. The Proponent, any Participating Agency, and the Secretary shall consider all circumstances as to whether various work or activities constitute one Project including, but not limited to, whether the work or activities, taken together, comprise a common plan or independent undertakings, regardless of whether there is more than one Proponent; any time interval between the work or activities; and whether the environmental impacts caused by the work or activities are separable or cumulative. Examples of work or activities that constitute one Project include work or activities that:
1. meet or exceed one or more review thresholds on an area previously subject to a Land Transfer, provided that not more than five years have elapsed between the Land Transfer and the work or activities; and

2. construct more than one structure (such as more than one single family dwelling) and appurtenant structures, facilities, and other improvements on a site, unless a plan for the subdivision or other legal division creating or allowing separate lots or parcels was definitively approved or endorsed in accordance with applicable statutes and regulations prior to the effective date of 301 CMR 11.00.

(3) Relation to Other Authority.

(a) Information regarding Other Authority. The Secretary may require a Proponent to provide information regarding a Project's consistency or compliance with any applicable Federal, municipal, or regional statutes and regulations. MEPA and 301 CMR 11.00 do not give the Secretary authority to make any formal determination regarding such consistency or compliance.

(b) Applicability of Other Authority. MEPA and 301 CMR 11.00 do not alter the review or permitting authority of any Agency or any Federal, municipal, or regional governmental entity over, or otherwise alter the applicability of any statutes and regulations to, a Project.

(4) General Procedure.

(a) ENF. If a Project is subject to MEPA jurisdiction and either it meets or exceeds one or more review thresholds or the Secretary requires fail-safe review, the Proponent begins MEPA review by preparing and filing an ENF with the Secretary. The Secretary publishes the appropriate pages of the ENF in the next Environmental Monitor. A 30-Day review period follows, during the first 20 Days of which Agencies, Persons, the MEPA Office (which ordinarily conducts a site visit and public consultation session), and the Secretary review and/or comment on the ENF. At the close of the review period for an ENF, the Secretary decides whether to require an EIR. If the Secretary does not require an EIR, an Agency may take Agency Action on the Project (see 301 CMR 11.05 and 11.06).

(b) EIR. If the Secretary requires an EIR, the Proponent prepares and files it with the Secretary. The Secretary shall ordinarily require a draft and final EIR, but may allow a single or rollover EIR. The Secretary publishes notice of the availability of the EIR in the next Environmental Monitor. A 37-Day review period follows, during the first 30 Days of which Agencies, Persons, the MEPA Office, and the Secretary review and/or comment on the EIR. At the close of the review period, the Secretary decides whether the EIR is adequate, and must consider Environmental Justice Principles in making this determination. An Agency may take Agency Action on the Project, provided that the Secretary has determined that the single or final EIR is adequate and 60 Days have elapsed following the publication of the notice of the availability of the single or final EIR in the Environmental Monitor (see 301 CMR 11.07 and 11.08).

(c) Section 61 Findings. An Agency that takes Agency Action on a Project for which the Secretary required an EIR:
1. issues Section 61 Findings that specify, based on the EIR, all feasible means to be used to avoid Damage to the Environment, or, to the extent Damage to the Environment cannot be avoided, to minimize and mitigate Damage to the Environment to the maximum extent practicable;

2. if applicable, includes in its Section 61 Findings any and all actions to be taken to reduce the potential for unfair or inequitable effects upon Environmental Justice Populations;

3. makes its Section 61 Findings part of the Permit or other document allowing or approving the Agency Action; and

4. files a copy of its Section 61 Findings with the MEPA Office (see 301 CMR 11.12(5)).

(5) Administration.

(a) Authority of Assistant Secretary. The staff of the Secretary that carries out day-to-day administration of MEPA and 301 CMR 11.00 is organized as the MEPA Office, under the direction of the Assistant Secretary of Energy and Environmental Affairs, who is also known as the MEPA Director. The Secretary may delegate to the Assistant Secretary any of the Secretary's authority in accordance with MEPA and 301 CMR 11.00 that the Secretary deems appropriate. Any certificate, determination, or other document executed by the Assistant Secretary in accordance with the delegation shall be deemed the valid and duly authorized certificate, determination, or other document of the Secretary.

(b) Responsibilities of MEPA Office. The MEPA Office is responsible for: responding to inquiries from Proponents and other Agencies and Persons; reviewing documents filed in accordance with MEPA and 301 CMR 11.00; conducting site visits and public consultation sessions; ensuring adequate prior public notice of site visits, public consultation sessions, and comment periods, and meaningful opportunities for public review of review documents; coordinating with any Agency that expects to take Agency Action on a Project; preparing drafts of certificates, determinations, and other documents for the Secretary; and maintaining publicly accessible files that contain the complete administrative record on which the Secretary's decisions in certificates, determinations, and other documents are based.

(6) Advisory Opinion.

(a) Request for Advisory Opinion. In case of doubt as to the meaning or applicability of any provision or requirement in MEPA or 301 CMR 11.00 (including whether an entity is an Agency, whether a decision or action is Agency Action, whether a Project is subject to MEPA jurisdiction, or whether a Project meets or exceeds one or more review thresholds) an Agency or Person may request an advisory opinion of the Secretary in accordance with M.G.L. c. 30A, § 8, and 301 CMR 11.00.

(b) Decision on Advisory Opinion. The Secretary shall respond within 20 Days of receiving a request for an advisory opinion either with a request for further information or with the advisory opinion, unless the Secretary publishes notice of the request in accordance with 301 CMR 11.01(6)(c). If the Secretary requests further information, the Secretary shall provide the advisory opinion 20 Days of receiving the requested information.

(c) Public Comment on a Request for an Advisory Opinion. In the case of a request for an advisory opinion concerning Routine Maintenance or a Replacement Project, the Secretary shall, and in all other cases, the Secretary may: publish notice of the request in the next Environmental Monitor and receive into the record, within 20 Days following publication of the notice of the request (unless extended by the Secretary with the consent of the Proponent), written comments from any Agency or Person concerning the request. The Secretary shall provide the advisory opinion within 20 Days after the close of the comment period.

Disclaimer: These regulations may not be the most recent version. Massachusetts may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.