Code of Massachusetts Regulations
301 CMR - EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS
Title 301 CMR 28.00 - OCEAN MANAGEMENT PLAN
Section 28.04 - Management Areas and Standards

Universal Citation: 301 MA Code of Regs 301.28

Current through Register 1531, September 27, 2024

(1) Management Areas. Within the Ocean Management Planning Area, the following management areas are defined in the Ocean Management Plan:

(a) Prohibited Areas. Areas where Activities are expressly prohibited by either the Ocean Sanctuaries Act or Ocean Management Plan.

(b) Wind Energy Areas. Areas suitable and presumptively allowed for community-scale wind energy facilities and other renewable energy Activities subject to standards and conditions contained in the Ocean Management Plan and 301 CMR 28.00.

(c) Multi-use Areas. Areas, including portions of state waters not identified as Ocean Sanctuaries pursuant to the M.G.L. c. 132A § 13(a), where Activities allowed under the Ocean Sanctuaries Act and 301 CMR 27.00: Ocean Sanctuaries are subject to the standards and conditions contained in the Ocean Management Plan and 301 CMR 28.00.

(2) Management Standards for Special, Sensitive or Unique Resources. The following standards apply only to those Activities that are required to file an Environmental Impact Report pursuant to MEPA:

(a) Activities proposed in the Ocean Management Planning Area are presumptively excluded from the Special, Sensitive or Unique Resource areas delineated on maps contained in the Ocean Management Plan and maintained in the Massachusetts Ocean Resources Information System.

(b) This presumption may be overcome by demonstrating to the Secretary that:
1. The maps delineating the Special, Sensitive or Unique Resources do not accurately characterize the resource based on substantial site-specific information collected in accordance with data standards and processes contained in 301 CMR 28.08; or

2. No less environmentally damaging practicable alternative exists. For the purposes of this standard, an alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics with respect to the purpose of the Activity; and

3. The Proponent has taken all practicable measures to avoid damage to Special, Sensitive or Unique Resources, and the Activity will cause no significant alteration Special, Sensitive, or Unique Resources. Demonstrating compliance with this standard may include the incorporation of measures to avoid resources and impacts through time of year controls such that the construction, operation, or removal of the Activity will not occur when the Special, Sensitive or Unique Resource is present or may be adversely effected; and

4. The public benefits associated with the proposed Activity outweigh the public detriments to the Special, Sensitive or Unique Resource.

(3) Management Standards for Concentrations of Water-dependent Uses. The following standard applies only to those Activities which are required to develop an Environmental Impact Report pursuant to MEPA. To the maximum extent practicable, Proponents of Activities must avoid, minimize, and mitigate impacts to areas of Concentrations of Water-dependent Uses delineated on maps developed in the Ocean Management Plan and maintained in the Massachusetts Ocean Resources Information System.

(4) Additional Management Standards for Renewable Energy Activities. The following standards apply to Renewable Energy Activities:

(a) Pursuant to M.G.L. c. 132A, § 15, a Regional Planning Agency shall define the appropriate scale of offshore renewable energy Activities and review such Activities as developments of regional impact in municipalities where Regional Planning Agencies have regulatory authority. A Proponent may seek review of the Regional Planning Agency's development of regional impact determination, but not its determination of appropriate scale, pursuant to M.G.L. c. 164, §§ 69K through 690.

(b) For Commercial Scale Wind Energy Activities, the following standard applies. For Activities not subject to review by Regional Planning Agencies with regulatory authority as developments of regional impact, appropriate scale shall be determined by the Secretary in consultation with the Host Community and shall include consideration of economic benefits that the Host Community must receive from the Commercial Scale Wind Energy Activity.

(c) For Community Scale Wind Energy Activities, the following standard applies. The Ocean Management Plan lists the maximum number of turbines allocated for Community-scale Wind Energy Activities within each Regional Planning Agency's planning area. The maximum allocation may be raised by the Secretary based on a demonstration by a Regional Planning Agency that the existing cap for a community-scale wind energy facility is not economically viable or that raising the allocation will cause no significant impact to appropriate scale interests.

(d) For Community-scale Wind and Pilot Wave or Tidal Activities, the standards in 301 CMR 28.04(4)(d) l. through 3. apply:
1. For Activities not subject to review by Regional Planning Agencies with regulatory authority as developments of regional impact, appropriate scale shall be determined by the Secretary in consultation with the Host Community.

2. Proponents of Activities must demonstrate that the Host Community formally supports the project. Such support may be demonstrated by a letter from the town's Board of Selectman, or the city's Mayor or City Council; and

3. Proponents of Activities other than test or demonstration-scale renewable energy projects must provide an economic benefit to the Host Community.

(e) For Pilot Wave or Tidal Activities, the following standards apply: If subject to MEPA review through the preparation of an EIR, the Secretary will determine the SSU resources and concentrations of water-dependent uses that apply in the MEPA scope.

(5) Additional Management Standards for Sand and Gravel Extraction Activities. The following standards apply to Sand and Gravel Extraction Activities:

(a) Public benefits associated with the proposed project must outweigh public detriments, such that:
1. The proponent shall demonstrate that sand resources from public tidelands will be utilized for a properly designed and constructed nourishment project that has a documented critical erosion problem and will protect public infrastructure, natural resources, and other public interest factors, such as increased access and recreation; and

2. Alternative, compatible sand sources from beneficial re-use associated with navigational or other dredging projects or from upland sources are not reasonably practicable, taking into consideration cost, geographic proximity, timing, logistics, and other reasonable factors.

(b) Project proponents must develop and implement a biological and physical monitoring plan for the sand source area and beach nourishment site, in consultation with EEA agencies and subject to the Secretary's approval.

(6) Additional Management Standards for Cable Activities. The following standards apply to Cable Activities:

(a) Cable Activities proposed in the preliminary areas for offshore wind transmission cables as shown in the Ocean Management Plan are in presumptive compliance with the siting standards in the Ocean Management Plan and in 301 CMR 28.04(2), provided that:
1. Investigations and survey confirm the predominance of soft-bottom seafloor (i.e., the general absence of hard-bottom substrate) within the preliminary areas for offshore wind transmission cables such that sufficient burial depths for cables can be reasonably expected. The presence of relatively small areas of hard-bottom substrate, such that the cable route cannot be practicably located without going through these areas of hard-bottom substrate, within acceptable limits, is permissible, based on review and determination by the Secretary in consultation with EEA agencies.

2. Time of year controls are in place such that operations and dredging will avoid damage and cause no significant alteration to the following Special, Sensitive or Unique Resources: North Atlantic right whale core habitat, Humpback whale core habitat, and Fin whale core habitat.

(b) Project proponents must develop and implement a biological and physical monitoring plan for the sand source area and beach nourishment site, in consultation with EEA agencies and subject to the Secretary's approval.

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