Current through Register 1531, September 27, 2024
(1) The plans described at 310 CMR 36.22(4)
through (7), including a timetable for implementation, shall be submitted for
review and written approval by the Department as part of an application for a
new or renewed permit as required by
310 CMR
36.21. 310 CMR 36.22(4) through (7) specify
the minimum requirements for each component.
(2) The Department may, in consultation with
the EOEEA agencies, specify additional or alternative requirements to address
cumulative impacts of tier 2 and tier 3 withdrawals in a water
source.
(3) All required planning
components may be combined in a single written plan.
(4)
Coldwater Fish Resource
Optimization Review: An applicant with a withdrawal point(s)
impacting a coldwater fish resource(s) shall, after consultation with the
Department and EOEEA agencies, submit an evaluation of options for shifting
withdrawals to the applicant's other withdrawal points, if any, to minimize
impacts at the coldwater fish resource.
(5)
Minimization
Plan: A groundwater applicant with a withdrawal point(s) in a
subbasin(s) having August net groundwater depletion of 25% or greater shall
submit a plan to minimize the impacts of the withdrawals to the greatest extent
feasible, including but not limited to:
(a)
minimizing depletion of groundwater during the late summer bioperiod
(July-September) by optimizing use of the applicant's withdrawal points located
in subbasins that are less groundwater depleted, if any, or by use of any
feasible alternative source(s) or interconnection(s);
(b) releasing water from surface water supply
impoundments and other measures that return water to the subbasin or water
source to improve streamflow taking into consideration the ability of the
applicant to meet demand;
(c)
adopting restrictions on nonessential outdoor water use more stringent than
those required by the permit conditions described at
310 CMR
36.28(4)(c)4.;
(d) adopting water conservation measures,
consistent with health and safety, more stringent than those required by the
permit conditions described at
310 CMR
36.28(4)(c)1., 2., and
3;
(e) adopting agricultural,
horticultural or industry-specific best management practices as
applicable.
(6)
Mitigation Plan for Tier 2: A tier 2 applicant shall
submit a plan to mitigate the withdrawal above baseline that must be offset, as
determined at
310 CMR
36.21(3)(b) or (4)(b), to
the greatest extent feasible, as follows:
(a)
First, the applicant shall evaluate direct mitigation activities that can be
volumetrically quantified and compared to the applicant's mitigation volume
including, but not limited to:
1.releases
from any surface water impoundments that enhance downstream flows;
2.activities that return stormwater to
groundwater, including but not limited to, physically disconnecting or removing
impervious areas directly connected to surface water;
3.activities that physically return
wastewater to groundwater;
4.improvements to wastewater conveyance
systems that reduce infiltration and inflow; and
5.activities or releases that will offset
impacts to coldwater fish resources as applicable.
(b) If the applicant cannot achieve all the
mitigation required through direct mitigation, then the applicant must evaluate
indirect mitigation activities that will improve fluvial habitat, but which
cannot be volumetrically quantified including, but not limited to:
1.culvert repair/replacement to meet stream
crossing standards;
2.removal of a
dam or flow barrier;
3.fish passage
improvement;
4.streambank
restoration;
5.stream channel
restoration;
6.streamside buffer
restoration;
7.habitat
restoration;
8.development and
implementation of stormwater bylaw with recharge requirements;
9.development and implementation of a
stormwater utility;
10.implementation of MS4 requirements;
and
11.development and
implementation of low impact development bylaws.
(c) The proximity of the proposed mitigation
to the withdrawal point(s) and the net groundwater depletion of the receiving
subbasin(s) will be considered by the Department in determining the equivalence
of mitigation measures to withdrawal impacts.
(d) Mitigation measures implemented since
2005 that the applicant demonstrates will mitigate the impact of the proposed
withdrawal may be credited toward an applicant's mitigation
obligation.
(7)
Alternative Demonstration and Mitigation Plan for Tier
3.
(a) A tier 3 groundwater
applicant shall demonstrate that there is no feasible alternative source that
is less environmentally harmful than the withdrawal point(s) identified in the
application. In order to make this demonstration, the applicant must show that:
1.all alternative groundwater sources are in
subbasins in groundwater withdrawal category 4 or 5; or
2.taking additional withdrawals from an
alternative groundwater source would result in an adverse change to that
source's subbasin's biological category, groundwater withdrawal category or
seasonal groundwater withdrawal category; and
3.taking additional withdrawals from an
alternative surface water supply source would result in unacceptable streamflow
impacts or affect the permittee's ability to meet demonstrated water needs. In
determining whether an alternative surface water supply source is a feasible
alternative, the Department may consider reservoir release plans, downstream
flow impacts and other operational considerations on a case-by-case
basis.
(b) If a tier 3
groundwater applicant demonstrates there is no feasible alternative source that
is less environmentally harmful, then the applicant shall submit a plan for
mitigation commensurate with the impact of their additional withdrawal as
described in 310 CMR 36.22(6). The Department shall consider the adverse change
in the subbasin's biological category, groundwater withdrawal category or
seasonal groundwater withdrawal category in determining the scope of
commensurate mitigation. If the applicant is unable to provide commensurate
mitigation through direct mitigation and demand management, the Department
shall require the applicant to provide a higher ratio of indirect mitigation
when feasible.
(c) The proximity of
the proposed mitigation to the withdrawal point(s) and the net groundwater
depletion of the receiving subbasin(s) will be considered by the Department in
determining the equivalence of mitigation measures to withdrawal
impacts.
(d) Mitigation measures
implemented since 2005 that the applicant demonstrates will mitigate the impact
of the proposed withdrawal may be credited toward an applicant's mitigation
obligation.
(8)
Implementation Timetable: An implementation timetable
shall be submitted as part of any coldwater fish resource, minimization, and
mitigation plan.
(a) An applicant may phase
the implementation of the mitigation plan, provided that the measures
associated with specific increases in withdrawals are implemented prior to
those increases.
(b) If
demonstrated water needs exceed the baseline prior to issuance of the permit,
an applicant may request additional time during the first five years of a
permit to implement the mitigation plans.
(9) The fact than an activity fulfills one or
more of the permittee's obligations under another regulatory program shall not
preclude such activity from receiving mitigation credit in water management
permitting, provided such activities meet the objectives of 310 CMR
36.22.
(10) The final plan(s) as
approved by the Department will be included as a condition of any permit issued
by the Department authorizing the requested withdrawal.