Code of Massachusetts Regulations
314 CMR - DIVISION OF WATER POLLUTION CONTROL
Title 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
Section 9.02 - Definitions
Activity. Any proposed project, scheme or plan of action which will result in a discharge of dredged or fill material subject to jurisdiction under 33 U.S.C. 1251 or dredging and dredged material management. In determining thresholds for and conducting evaluations of applications, the entirety of the activity, including likely future expansions, shall be considered and not separate phases or segments thereof. The activity includes temporary and permanent, direct and indirect, and cumulative impacts from the construction and ongoing operation of a project. The calculation of square footage shall include the total of the applicable areas proposed to be lost from the impacts of the activity, without reduction for replication or restoration.
Aggrieved Person. Any person who, because of a 401 Water Quality Certification determination by the Department, may suffer an injury in fact which is different either in kind or magnitude from that suffered by the general public and which is within the scope of interests identified in 314 CMR 9.00.
Applicant. A person proposing any activity that will result in a discharge of dredged or fill material, or a discharge from dredging or dredged material disposal in any water of the United States within the Commonwealth.
Aquatic Ecosystem. Waters of the United States within the Commonwealth, including wetlands, that serve as habitat for interrelated and interacting communities and populations of plants and animals.
Area of Critical Environmental Concern. An area designated by the Secretary pursuant to M.G.L. c. 21A, § 2(7) and 301 CMR 12.00: Areas of Critical Environmental Concern.
Bordering Vegetated Wetlands. Any land or surface area so defined by the Massachusetts Wetlands Protection Act, M.G.L. c. 131, § 40 and 310 CMR 10.55(2): Definition, Critical Characteristics and Boundary.
Clean Water Act. The federal statute at 33 U.S.C. 1251 which contains §§ 401 and 404.
Cold-water Fisheries. Waters in which the mean of the maximum daily temperature over a seven day period generally does not exceed 68ºF (20ºC) and, when other ecological factors are favorable (such as habitat), are capable of supporting a year round population of cold-water stenothermal aquatic life. Waters designated as cold-water fisheries by the Department in 314 CMR 4.00: Massachusetts Surface Water Quality Standards and water designated as coldwater fishery resources by the Division of Fisheries and Wildlife are cold-water fisheries. Waters where there is evidence based on a fish survey that a cold-water fishery and habitat exist are also cold-water fisheries. Cold-water fish include but are not limited to brook trout (Salvelinus fontanlis), rainbow trout (Oncorhynchus mykiss), brown trout (Salmo trutta), creek chubsucker (Erimyzon oblongus), and fallfish (Semotilus corporalis).
Combined Application. An application that may serve as a Notice of Intent pursuant to 310 CMR 10.00: Wetlands Protection, an application for a 401 Water Quality Certification pursuant to 314 CMR 9.00, and/or an application for a Chapter 91 license, permit or other written approval for a water-dependent use pursuant to 310 CMR 9.00: Waterways.
Notwithstanding the foregoing, a Combined Application may not serve as an application for an annual permit for a mooring, float, raft or small structure accessory to a residence in accordance with 310 CMR 9.07: Activities Subject to Annual Permit, an application for a Chapter 91 license for a small structure accessory to a residence in accordance with the simplified process set forth in 310 CMR 9.10: Simplified Procedures for Small Structures Accessory to Residences, or the certification submitted as an application for a General License in accordance with 310 CMR 9.29: General License Certification.
Combined Permit. A decision issued in response to a Combined Application that serves as two or more of the following: a Superseding Order of Conditions issued pursuant to 310 CMR 10.00: Wetlands Protection; a 401 Water Quality Certification issued pursuant to 314 CMR 9.00; and/or a Chapter 91 permit, license or other written approval issued pursuant to 310 CMR 9.00: Waterways.
Commissioner means the Commissioner of the Department.
Confined Aquatic Disposal (CAD). A subaqueous facility (typically a constructed cell or natural depression) into which dredged sediment is placed and then isolated from the surrounding environment.
Confined Disposal Facility (CDF). A facility created in open water or wetlands consisting of confinement walls or berms built up against or extending into existing land.
Corps of Engineers. The United States Army Corps of Engineers, New England Division.
Critical Area. Outstanding Resources Waters as designated in 314 CMR 4.00: Massachusetts Surface Water Quality Standards, Special Resource Waters as designated in 314 CMR 4.00, recharge areas for public water supplies as defined in 310 CMR 22.02: Definitions (Zone Is, Zone IIs and Interim Wellhead Protection Areas for ground water sources and Zone As for surface water sources), bathing beaches as defined in 105 CMR 445.000: Minimum Standards for Bathing Beaches (State Sanitary Code: Chapter VII), cold-water fisheries, and shellfish growing areas.
Dam. Any artificial barrier placed across a watercourse that raises or has the potential to raise the level of water or which impounds and/or diverts water.
Department. The Massachusetts Department of Environmental Protection.
Discharge of Dredged or Fill Material. Any addition of dredged or fill material into, including any redeposit of dredged material within, waters of the United States within the Commonwealth. The term includes, but is not limited to:
(a) direct placement of fill, including any material used for the primary purpose of replacing with dry land or of changing the bottom elevation of a wetland or water body,
(b) runoff from a contained land or water disposal area, and
(c) the placement of pilings when it has the effect of fill material.
Disposal Site. A structure, well, pit, pond, lagoon, impoundment, ditch, landfill or other place or area, excluding ambient air or surface water, where uncontrolled oil or hazardous material has come to be located as a result of any spilling, leaking, pouring, ponding, emitting, emptying, discharging, injecting, escaping, leaching, dumping, discarding, or otherwise disposing of such oil or hazardous material and is a "disposal site"? as defined in M.G.L.c. 21E.
Dredged Material. Sediment and associated materials that are moved from below the mean high tide line for coastal waters and below the high water mark for inland waters during dredging activities.
Dredged Material Disposal. The transport, placement, or deposition of sediments or other material after dredging.
Dredging. The removal or repositioning of sediment or other material from below the mean high tide line for coastal waters and below the high water mark for inland waters. Dredging shall not include activities in bordering or isolated vegetated wetlands.
Ecological Restoration Project. A project whose primary purpose is to restore or otherwise improve the natural capacity of a Resource Area(s) to protect and sustain the interests identified in M.G.L. c. 131, § 40, when such interests have been degraded or destroyed by anthropogenic influences. The term Ecological Restoration Project shall not include projects specifically intended to provide mitigation for the alteration of a Resource Area authorized by a Final Order or Variance issued pursuant to 310 CMR 10.00: Wetlands Protection or a 401 Water Quality Certification issued pursuant to 314 CMR 9.00 other than projects implemented pursuant to a US Army Corps of Engineers-approved in-lien fee program.
Environmental Impact Report. The report described in the Massachusetts Environmental Policy Act, M.G.L. c. 30, §§ 61 through 62H and 301 CMR 11.00: MEPA Regulations.
Environmental Monitor. The publication described in 301 CMR 11.19(1).
Environmentally Sensitive Site Design. Design that incorporates low impact development techniques to prevent the generation of stormwater and non-point source pollution by reducing impervious surfaces, disconnecting stormwater sheet flow paths, and treating stormwater at its source, maximizing open space, minimizing disturbance, protecting natural features and processes, and/or enhancing wildlife habitat.
Fastland. Land above mean high water formed by the placement of dredged or fill material into waters of the United States within the Commonwealth.
Final Order of Conditions. The Order of Conditions issued by the Commissioner of the Department after an adjudicatory hearing or, if no request for a hearing has been filed, the Superseding Order or, if no request for a Superseding Order has been filed, the Order of Conditions issued under M.G.L. c. 131, § 40 (the Wetlands Protection Act) and 310 CMR 10.05: Procedures.
Ground Water. Water below the land surface in a saturated zone including perched ground water.
High Water Mark. The present arithmetic mean of high water heights observed over a one-year period using the best available data as determined by the Department.
Illicit Discharge. Discharge that is not entirely comprised of stormwater. Notwithstanding the foregoing, an illicit discharge does not include discharges from the following activities or facilities: firefighting, water line flushing, landscape irrigation, uncontaminated ground water, potable water sources, foundation drains, air conditioning condensation, footing drains, individual resident car washing, flows from riparian habitats and wetlands, dechlorinated water from swimming pools, water used for street washing and water used to clean residential buildings without detergents.
Improvement Dredging. Any dredging in an area which has not been previously dredged or which extends the original dredged width, depth, length or otherwise alters the original boundaries of a previously dredged area.
Innovative Technology. Technology that has not been commercially deployed or is in limited deployment, and includes, but is not limited to, energy technology that obtains energy from the ocean, waterway, or conditions associated with the ocean or waterway, other forms of renewable energy technology.
Intermediate Facility. A site or location that is to be utilized, on either a project-specific temporary or permanent basis, to manage dredged material prior to its ultimate reuse or disposal (e.g., barge unloading, stockpiling or storage, dewatering, processing or treatment, truck or train loading or unloading).
Isolated Vegetated Wetlands. Vegetated areas subject to jurisdiction under 33 U.S.C. 1251 that are not bordering vegetated wetlands subject to jurisdiction under M.G.L. c. 131, § 40 and 310 CMR 10.55(2): Definition, Critical Characteristics and Boundary.
Land Uses with Higher Potential Pollutant Loads. Land uses identified in 310 CMR 22.20B(2) and 22.20C(2)(a) through (k) and (m), 22.21(2)(a)1. through 8., and (b)1. through 6.; areas within a site that are the location of activities that are subject to an individual National Pollutant Discharge Elimination System (NPDES) Permit or the NPDES Multi-Sector General Permit; auto fueling facilities (gas stations); exterior fleet storage areas; exterior vehicle service and equipment cleaning areas; marinas and boatyards; parking lots with high intensity use; confined disposal facilities, and disposal sites.
Lot. An area of land in one ownership, with definite boundaries.
Low Impact Development Techniques. Innovative stormwater management systems that are modeled after natural hydrologic features. Low impact development techniques manage rainfall at the source using uniformly distributed decentralized micro-scale controls. Low impact development techniques use small cost-effective landscape features located at the lot level.
Maintenance Dredging. Dredging in accordance with a valid license or permit in any previously authorized dredged area, which does not extend the originally dredged depth, width or length.
Massachusetts Environmental Policy Act or MEPA. M.G.L. c. 30, §§ 61 through 62H and 301 CMR 11.00: MEPA Regulations.
Massachusetts Oil and Hazardous Materials Release Prevention and Response Act or M.G.L. c. 21E. M.G.L. c. 21E, §§ 1 through 18 and implementing regulations at 310 CMR 40.0000: Massachusetts Contingency Plan.
Massachusetts River and Stream Crossing Standards or the Stream Crossing Standards. The standards developed by the River and Stream Continuity Partnership as corrected on March 8, 2012.
Mean High Tide Line. - The line where the arithmetic mean of the high water heights observed over a specific 19-year metonic cycle (the National Tidal Datum Epoch) meets the shore and shall be determined using hydrographic survey data of the National Ocean Survey of the U.S. Department of Commerce.
Mixing Zone. A mixing zone is the limited volume of water allowing for the initial dilution of a discharge, e.g., from dredging or disposal in waters.
National Environmental Policy Act or NEPA. 42 U.S.C. §§ 4321 through 4345.
Non-invasive Sampling Activities. Sampling activities, which include the collection of water, soil or sediment samples by techniques (e.g., hand-held augers) that will not significantly disturb existing wetland resources areas as defined in M.G.L. c. 131, § 40 (the Massachusetts Wetland Protection Act and 33 U.S.C. § 1257 (the Federal Clean Water Act).
Notice of Intent. The document described in 310 CMR 10.05(4): Notices of Intent.
Oil and Hazardous Material (OHM). The definitions included in 310 CMR 40.0000: Massachusetts Contingency Plan.
Outstanding Resource Water. A surface water of the Commonwealth so designated in 314 CMR 4.00: Massachusetts Surface Water Quality Standards.
Person. Any agency or political subdivision of the Commonwealth or the federal government, public or private corporation or authority, individual, partnership or association, or other entity, including any officer of a public or private agency or organization.
Practicable. Available and capable of being done after taking into consideration costs, existing technology, proposed use, logistics and potential adverse consequences (e.g., degradation of Rare Species Habitat, increased flood impacts to the built environment) in light of the overall project purposes and is permittable under existing federal and state statutes and regulations.
Qualified Environmental Professional (QEP). An individual who is knowledgeable about the procedures and methods for characterizing dredged material and contaminated media; is familiar with Massachusetts and federal regulations applicable to the management of such materials; performs or oversees the management of sediment and/or contaminated soil as an integral part of his or her professional duties; and is professionally licensed or certified in a discipline related to environmental assessment (i.e., engineering, geology, or soil science) by the state or a recognized professional organization.
Rare Species. Those vertebrate and invertebrate animal species officially listed as endangered, threatened, or of special concern by the Massachusetts Division of Fisheries and Wildlife under 321 CMR 10.60: Introduction.
Rare Species Habitat. Areas identified as habitat for Rare, Endangered, or species of special concern by the Massachusetts Division of Fisheries and Wildlife's Natural Heritage Program as published in the Massachusetts Natural Heritage Atlas at the time an application is submitted.
Real Estate Subdivision. The division of a tract of land into two or more lots, including division where approval is required and where approval is not required under the Subdivision Control Law, M.G.L. c. 41, §§ 81K through 81GG.
Redevelopment. For purposes of the Stormwater Management Standards as provided in 314 CMR 9.06(6)(a) through (e), redevelopment is defined to include the following projects:
(a) maintenance and improvement of existing roadways including widening less than a single lane, adding shoulders, correcting substandard intersections, improving existing drainage systems and repaving;
(b) development, rehabilitation, expansion and phased projects on previously developed sites provided the redevelopment results in no net increase in impervious area; and
(c) remedial projects specifically designed to provide improved stormwater management such as projects to separate storm drains and sanitary sewers and stormwater retrofit projects.
Resource Area. Any of the areas specified in 310 CMR 10.25 through 10.35 and 310 CMR 10.54 through 10.58. It is used synonymously with Area Subject to Protection Under M.G.L. c. 131, § 40, each one of which is enumerated in 310 CMR 10.02(1): Areas Subject to Protection Under M.G.L. c. 131, § 40.
Restoration Order of Conditions. The Order of Conditions issued pursuant to 310 CMR 10.14: Restoration Order of Conditions for a project that meets the eligibility criteria set forth in 310 CMR 10.13: Eligibility Criteria for Restoration Order of Conditions.
Salt Marsh. A coastal wetland as defined in M.G.L. c. 131, § 40 and 310 CMR 10.32(2): Salt Marsh.
SARA 312 Generator. A facility that is required by the Emergency Planning and Community right to Know Act (EPCRA) also known as Title III of the Superfund Amendments and Reauthorization Act of 1989 (SARA Title III) to submit an inventory of the location of hazardous chemicals which are located at the site.
Secretary. The Secretary of the Executive Office of Energy and Environmental Affairs.
Sediment. For the purposes of dredging means all inorganic or organic matter, including detritus, situated under tidal waters below the mean high water line as defined in 310 CMR 10.23: Additional Definitions for 310 CMR 10.21 through 10.37 ; and for inland waters below the upper boundary of a bank, as defined in 310 CMR 10.54(2): Definition, Critical Characteristics and Boundary.
Shellfish Growing Area. Land under the ocean, tidal flats, rocky intertidal shores and marshes and land under salt ponds when any such land contains shellfish. Shellfish growing areas include land that has been identified and shown on a map published by the Division of Marine Fisheries as a shellfish growing area including any area identified on such map as an area where shellfish harvesting is prohibited. Shellfish growing areas shall also include land designated by the Department in 314 CMR 4.00: Massachusetts Surface Water Quality Standards as suitable for shellfish harvesting with or without depuration. In addition, shellfish growing areas shall include shellfish growing areas designated by the local shellfish constable as suitable for shellfishing based on the density of shellfish, the size of the area, and the historical and current importance of the area for recreational and commercial shellfishing.
Single and Complete Project. The total project proposed or accomplished by one or more persons, including any multiphased activity.
Special Aquatic Sites means those site identified in Subpart E of 40 CFR Part 230, 404(b)(1), including sanctuaries and refuges, wetlands, mud flats, vegetated shallows, coral reefs, and riffle and pool complexes. They are geographical areas, large or small, possessing special ecological characteristics of productivity, habitat, wildlife protection, or other important and easily disrupted ecological values. These areas are generally recognized as significantly influencing or positively contributing to the general overall environmental health or vitality of the entire ecosystem of a region.
Stormwater Best Management Practice. Structural or nonstructural technique for managing stormwater to prevent or reduce non-point source pollutants from entering surface waters or ground waters. A structural stormwater best management practice includes a basin, discharge outlet, swale, rain garden, filter, or other stormwater treatment practice or measure either alone or in combination including without limitation any overflow pipe, conduit or weir control structure that:
(a) is not naturally occurring;
(b) is not designed as a wetland replication area; and
(c) has been designed, constructed and installed for the purpose of collecting, storing, discharging, recharging or treating stormwater.
Nonstructural stormwater best management practices include source control and pollution prevention measures.
Stormwater Management System. System for conveying, collecting, storing, discharging, recharging or treating stormwater on-site including stormwater best management practices and any pipes and outlets intended to transport and discharge stormwater to the ground water, a surface water or a municipal separate storm sewer system.
Surface Waters. All waters other than groundwaters within the jurisdiction of the Commonwealth, including, without limitation, rivers, streams, lakes, ponds, springs, impoundments, estuaries, wetlands, coastal waters, and vernal pools.
Test Project. Installation or deployment of water dependent Innovative Technology in situ for purposes of evaluating its performance and environmental effects.
Vernal Pool. A waterbody that has been certified by the Massachusetts Division of Fisheries and Wildlife as a vernal pool. In the event of a conflict of opinion or the lack of a clear boundary delineation certified by the Division of Fisheries and Wildlife or the Department, the applicant may submit an opinion certified by a registered professional engineer, supported by engineering calculations, as to the boundary of the vernal pool. The maximum extent of the waterbody shall be based upon the total volume of runoff from the drainage area contributing to the vernal pool and shall be further based upon a design storm of 2.6 inches of precipitation in 24 hours.
Water-dependent. Uses and facilities which require direct access to, or location in, marine, tidal or inland waters and which therefore cannot be located away from those waters, including any uses and facilities defined as water-dependent in 310 CMR 9.00: Waterways.
Waters of the Commonwealth. All waters within the Commonwealth, including without limitation, rivers, streams, lakes, ponds, springs, impoundments, estuaries, wetlands, coastal waters and ground waters.
Waters of the United States within the Commonwealth. Navigable or interstate waters and their tributaries, adjacent wetlands, and other waters or wetlands within the borders of the Commonwealth where the use, degradation, or destruction could affect interstate or foreign commerce as determined by the Corps of Engineers. Bordering and isolated vegetated wetlands and land under water are waters of the United States within the Commonwealth when they meet the federal jurisdictional requirements defined at 33 CFR 328 through 329.
Wetlands Protection Act. M.G.L. c. 131, § 40 and 310 CMR 10.00: Wetlands Protection.
401 Water Quality Certification or Certification. The document issued by the Department to the applicant and the appropriate federal agency under 33 U.S.C. 1251, M.G.L. c. 21, § 27 and 314 CMR 9.00 certifying, conditioning, or denying an activity.
