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 9.03 - Activities Not Requiring an Application

(1) Less than 5000 Sq. Ft. with an Order of Conditions. Activities conducted in compliance with the Wetlands Protection Act and receiving a Final Order of Conditions which meets all applicable performance standards under 310 CMR 10.00: Wetlands Protection, provided that:

(2) Beach Nourishment. Beach nourishment activities with a Final Order of Conditions issued under M.G.L. c. 131, § 40.

(3) Dredging Less than 100 C.Y. Dredging and dredged material disposal of less than 100 cubic yards, provided that a Final Order of Conditions has been issued and the proposed work is not subject to 314 CMR 9.04 and the work is not subject to an individual 404 permit by the Corps of Engineers. Dredged sediment generated from such activities shall be managed in accordance with the provisions of 314 CMR 9.07(9) through (11) and may be used for beach nourishment activities or reuse within the shoreline under a Final Order of Conditions issued under M.G.L. c. 131, § 40.

(4) Agriculture or Aquaculture Exempt under M.G.L. c. 131, § 40 (the Wetlands Protection Act). Normal maintenance and improvement of land in agricultural or aquacultural use that is exempt from the Wetlands Protection Act, as defined and performed in accordance with 310 CMR 10.04: Definitions: Agriculture including the alternatives analysis, as applicable, performed by the USDA Natural Resources Conservation Service (formerly Soil Conservation Service) or 310 CMR 10.04: Definitions: Agriculture. The provisions of 314 CMR 9.04 do not apply.

(5) Less than 5000 Sq. Ft. of Isolated Vegetated Wetlands. Any activity in an area not subject to jurisdiction of the Wetlands Protection Act which is subject to 33 U.S.C. 1251 (i.e., isolated vegetated wetlands) which will result in the loss of up to 5000 square feet cumulatively of bordering and isolated vegetated wetlands and land under water, provided there is no discharge of dredged or fill material to any Rare Species Habitat or to any Outstanding Resource Water.

(6) Planning and Design Activities. Activities that are temporary in nature, have negligible impacts, and are necessary for planning and design purposes such as the installation of monitoring wells, exploratory borings, sediment sampling, and surveying. The applicant shall notify the Department and conservation commission at least ten days prior to commencing the activity. Notification is not required if a valid, unexpired Final Negative Determination of Applicability has been issued for the work as described 310 CMR 10.05(3)(b). Notification shall include a description of the activity, the location of the proposed activity and measures to be taken to avoid or minimize impacts. The site shall be substantially restored to its condition prior to the activity.

The Department will notify the persons to whom an Order of Conditions is issued not later than ten business days of its receipt by the Department that based on the information available to the Department the criteria of 314 CMR 9.03 have not been met. If the impacts to resource areas, as defined in the Massachusetts Wetland Protection Act and the Federal Clean Water Act, or the project size increases from the description filed with the Notice of Intent, or there are any inaccuracies therein, the applicant must notify the Department in writing and request a determination that the criteria of 314 CMR 9.03 have been met before the activity begins.

(7) Test Projects. A Test Project authorized by and conducted in accordance with a final Order of Conditions provided that the project: does not require an individual Section 404 permit from the U.S. Army Corps of Engineers; is not located in Outstanding Resource Waters; and does not exceed any of the impact thresholds set forth in 314 CMR 9.03(1), (3), and (5).

The Department will notify the persons to whom an Order of Conditions is issued not later than ten business days of its receipt by the Department if, based on the information available to the Department, the project is not exempt from the requirement to submit an individual 401 Water Quality Certification application pursuant to 314 CMR 9.03(7). If the applicant discovers that the project or its impacts on Resource Areas and waters of the United States within the Commonwealth differ from the project and impacts presented in the Notice of Intent, the applicant shall notify the Department in writing within 72 hours of such discovery and request a written determination from the Department as to whether the project is exempt from the requirement to submit an individual 401 Water Quality Certification pursuant to 314 CMR 9.03(7). In that event, the applicant shall not commence the project until s/he obtains a written determination from the Department that the project is exempt from the requirement to obtain an individual 401 Water Quality Certification pursuant to 314 CMR 9.03(7) or an individual 401 Water Quality Certification authorizing the project.

(8) Ecological Restoration Project. Discharge of dredged or fill material in association with an Ecological Restoration Project provided that the discharge of dredged or fill material is in compliance with a valid final Restoration Order of Conditions issued pursuant to 310 CMR 10.11: Actions Required Before Submitting a Notice of Intent for an Ecological Restoration Project through 310 CMR 10.14: Restoration Order of Conditions followed by a Certificate of Compliance, unless the project involves dredging or dredged material disposal as described in 314 CMR 9.04(12). Ecological Restoration Projects that include the activities described in 314 CMR 9.04(12) require a 401 Water Quality Certification application pursuant to 314 CMR 9.04.