Code of Massachusetts Regulations
310 CMR - DEPARTMENT OF ENVIRONMENTAL PROTECTION
Title 310 CMR 9.00 - WATERWAYS
Section 9.13 - Public Notice and Participation Requirements
Universal Citation: 310 MA Code of Regs 310.9
Current through Register 1531, September 27, 2024
(1) Notice Requirements.
(a) Public notice shall be issued by the
Department but distributed and published by the applicant. The date of the
public notice and, when required, the date of the public hearing, shall be
determined by the Department. The applicant shall send a notice of license or
permit application as described in
310
CMR 9.13(1)(c), by first
class mail, return receipt, and provide proof of such notification to the
Department, to:
1. the municipal official, the
planning board, the conservation commission, and the harbormaster, if any, in
the city or town where the project is located;
2. if the application is for a proposed
bridge, dam or similar structure across a tidal river, cove or inlet, the
municipal official, the planning board, the conservation commission, and the
harbormaster of every municipality into which the tidewater of said river,
cove, or inlet extends;
3. the
Martha's Vineyard Commission or the Cape Cod Commission, if the project is
located within an area subject to the jurisdiction of said
Commission;
4. CZM, if the project
is located within the coastal zone; DCR, if the project is located in an Ocean
Sanctuary; and the Department of Fish and Game.
5. the Environmental Monitor
for all projects exceeding M.G.L. c. 30, §§ 61 through 62H review
thresholds for Waterways activities;
6. all landowners and easement holders of the
project site and abutters thereto, as identified pursuant to
310
CMR 9.11(3)(b)1.;
and
7. U.S. Army Corps of
Engineers, New England Division.
(b) At least 45 days prior to issuance of a
license, or 21 days prior to issuance of a permit, the applicant shall cause,
at his own expense and at the direction of the Department, notice as described
in 310 CMR
9.13(1)(c)1. through 9., to
be published in one or more newspapers having circulation in the area affected
by the project.
(c) Notice shall
contain:
1. the name and address of the
applicant and the applicant's representative, if any;
2. a description of the location of the
project, including whether it is located in an ACEC, DPA, or an Ocean
Sanctuary;
3. a description of the
project including a listing of uses and the Department's determination of
water-dependency;
4. for
nonwater-dependent use projects, and for any water-dependent use project for
which the Department decides to hold a hearing, the time, place and location of
the public hearing and the date on which the public comment period
ends;
5. for other water-dependent
use projects, a statement that within 30 days of the notification date of a
license application or within 15 days of the notification date of a permit
application, written comments will be accepted, and that a public hearing may
be held upon request by the municipal official;
6. the address where the application may be
viewed, where a copy of the draft license conditions may be obtained if
applicable, and where public comments regarding the application may be
sent;
7. a statement that a
municipality, ten citizen group or any aggrieved person that has submitted
written comments before the close of the public comment period may appeal and
that failure to submit written comments will result in the waiver of any right
to an adjudicatory hearing;
8. the
notification date, as defined in
310
CMR 9.02;
9. for applications submitted under
310
CMR 9.11(2)(b)2. and 4., the
date that copies of the Department's draft license conditions will be available
seven days prior to the public hearing; and
10. an 81/2" x 11" copy of the site
plan, including a locus insert, of the project site.
(d) An applicant for a license, permit or
other written approval pursuant to
310 CMR
9.00 and whose project is also subject to
314 CMR
9.00: 401 Water Quality Certification for
Discharge of Dredged or Fill Material, Dredging, and Dredged Material Disposal
in Waters of the United States Within the Commonwealth and/or
310 CMR
10.00: Wetlands Protection may
provide joint public notice by appending to the notice required under
310
CMR 10.05(5): Public
Hearings by Conservation Commissions or
314
CMR 9.05(3): Public
Notice of an Application a statement that an application for a
license, permit or other written approval pursuant to
310 CMR
9.00 is pending before the Department, provided that
the joint notice contains the information required by
310
CMR 9.13(1)(c). An applicant
may provide a joint public notice even if the application is not a Combined
Application.
(2) Participation by CZM or DCR.
(a) Within the public comment period
specified in 310 CMR 9.13(4), CZM may participate in license or permit
proceedings for nonwater-dependent projects subject to federal consistency
review identified in to 301 CMR 21.04: Activities Subject to Federal
Consistency Review, when the Department requests CZM participation for
nonwater-dependent projects in writing, or for other nonwater-dependent
projects in the coastal zone that the Secretary has issued a final MEPA
Certificate specifying that CZM shall participate in such license or permit
proceedings, or when the Secretary otherwise directs CZM to participate. CZM
participation is limited to those issues identified in writing to the
Department in the public comment period and necessary for making a federal
consistency determination, or for those nonwater-dependent projects identified
by the Department in writing or by the Secretary in a final MEPA Certificate
for CZM participation or when the Secretary otherwise directs CZM to
participate, necessary to determine consistency with CZM Program policies. In
license or permit proceedings for such projects, CZM shall submit a written
statement to the Department as to whether the project is consistent with the
policies of the CZM Program prior to issuance of the written determination,
license, permit or draft thereof by the Department pursuant to
310 CMR
9.14 for its consideration. The Department
shall presume that a project is consistent with CZM Program policies for
projects other than those identified in 310 CMR 9.13(2)(a), and for those
projects which CZM does not submit written comments during the public comment
period. The Department will make a determination regarding the consistency of
the project with the Massachusetts coastal zone program when issuing the
license determination.
(b) Within
the public comment period specified in 310 CMR 9.13(4), DCR, for projects in an
Ocean Sanctuary, may notify the Department in writing that it intends to
participate in license or permit proceedings. DCR's notice shall identify
issues relevant to the Ocean Sanctuaries Act, M.G.L. c. 132A, §§ 13
through 16 and 18, and participation shall be limited to identified issues. A
copy of any such notice shall be sent to the applicant. If DCR files such
notice, the Department shall give DCR an opportunity to participate in all
meetings between the applicant and the Department concerning issues identified
in the notice. If DCR has filed a notice of participation regarding a license
or permit proceeding, DCR shall prepare a written statement as to whether the
project complies with M.G.L. c. 132A, §§ 13 through 16 and 18, the
Ocean Sanctuaries Act, prior to issuance of the written determination, license,
permit, or draft thereof by the Department pursuant to
310 CMR
9.14. The Department shall presume that a
project is consistent with the Ocean Sanctuaries Act unless DCR submits a
notice of its intent to participate and written comments during the public
comment period.
(3) Public Hearing
(a)
For nonwater-dependent use projects, the Department shall hold a public hearing
in the city or town in which the project is located.
(b) For water-dependent use projects, the
municipal official in the city or town in which the project is located may,
within the public comment period specified in 310 CMR 9.13(4), request that the
Department conduct a public hearing on the application. If such a request is
filed, a hearing shall be conducted in said municipality if reasonable
arrangements for such hearing are made by the municipality.
(c) The Department may conduct a public
hearing on a project for which a hearing is not otherwise required. Any person
requesting that the Department exercise its discretion to conduct such hearing
must file a written request, including a statement of reasons, within the
public comment period specified in 310 CMR 9.13(4).
(d) In the event that the project requires a
federal action which is subject to CZM federal consistency review under 301 CMR
21.00: Coastal Zone Management Program Federal Consistency Review Procedures
and CZM determines a public hearing related to consistency certification is
appropriate pursuant to
301 CMR
20.04: Consistency Review of Federal Actions
with Coastal Effects, CZM and the Department may conduct a joint hearing. The
Department may also conduct joint hearings on the project with the US Army
Corps of Engineers.
(e) The public
hearing shall be noticed in accordance with 310 CMR 9.13(1), and shall be
scheduled no later than 20 days after the notification date. For projects
requiring an EIR, such public hearing generally will occur after issuance by
the Secretary of a Certificate stating that the final EIR adequately and
properly complies with M.G.L. c. 30, §§ 61 through 62H, unless
otherwise deemed appropriate by the Department.
(f) In the event that a project is located in
more than one municipality, the Department may conduct a single public hearing
in one of such municipalities.
(g)
For projects identified pursuant to 310 CMR 9.13(2) for participation by CZM or
DCR the Department shall give CZM or DCR the opportunity to co-chair said
hearing.
(4) Public Comment Period and Intervention
(a) If a public hearing is held, any person
may submit written comments to the Department on the license or permit
application within 20 days of the close of the public hearing or within any
additional public comment period granted by the Department.
(b) If no public hearing is held, any person
may submit written comments to the Department on a license application within
30 days, or on a permit application within 15 days of the notification date or
within any additional public comment period granted by the
Department.
(c) A municipality, ten
citizen group, or any aggrieved person that has submitted written comments
before the close of the public comment period specified above may appeal in
accordance with
310 CMR 9.17. Failure to
submit written comments will result in the waiver of any right to an
adjudicatory hearing.
(5) Planning Board Recommendation
(a) Within 30 days of receipt of a license
application for a project on tidelands and Great Ponds, the planning board of
the municipality where the project is located may hold a public
hearing.
(b) Within 15 days of
conducting said public hearing, or within 45 days of receipt of the license
application if no public hearing has been conducted, the planning board shall
submit a written recommendation to the Department stating whether and why said
planning board believes the project:
1. would
not be detrimental to the public rights in tidelands and Great Ponds;
and
2. serves a proper public
purpose, except in the case of water-dependent use projects entirely on private
tidelands.
(c) If the
planning board provides a written recommendation as provided above, the
Department shall take into consideration the recommendation in making its
decision whether to grant a license. If the planning board fails to conduct a
public hearing or submit a written recommendation as provided in 310 CMR
9.13(5)(a) and (b), the Department may proceed to make a determination whether
to issue a license without the benefit of the planning board's
recommendation.
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