Code of Massachusetts Regulations
321 CMR - DIVISION OF FISHERIES AND WILDLIFE
Title 321 CMR 10.00 - Massachusetts Endangered Species Act
Part I - General Provisions: Definitions, Listing, Taking Permits, Responsibilities of State Agencies
Section 10.02 - Definitions and Abbreviations

Universal Citation: 321 CMR 10.00 MA Code of Regs 10.02

Current through Register 1531, September 27, 2024

For the purposes of 321 CMR 10.00, the following words or phrases shall have the following meanings:

Agriculture.

(a) Land in Agricultural Use means land presently and primarily used in producing or raising one or more of the following agricultural commodities for commercial purposes:

1. animals, including but not limited to livestock, poultry, and bees;

2. fruits, vegetables, berries, nuts, maple sap, and other foods for human consumption;

3. feed, seed, forage, tobacco, flowers, sod, nursery or greenhouse products, and orna- mental plants or shrubs; and

4. forest products on Land Devoted to Forest Purposes, including but not limited to biomass, sawlogs, and cordwood, but not including the agricultural commodities described in 321CMR 10.02: Agriculture(a)1. through 3.

Additionally, land in agricultural use means land presently and primarily used in a manner related to, and customarily and necessarily used in, producing or raising such commodities, including but not limited to: existing access roads and livestock crossings; windbreaks; hedgerows; field edges; bee yards; sand pits used as part of an agricultural activity; landings for forest products; fence lines; water management projects such as reservoirs, farm ponds, irrigation systems, field ditches, cross ditches, canals/channels, grass waterways, dikes, sub-surface drainage systems, watering facilities, water transport systems, and water storage systems; agricultural composting sites; agricultural storage and work areas; and land under farm structures.

Land in agricultural use may lie inactive for up to five consecutive years unless it is under a United States Department of Agriculture (USDA) contract for a longer term pursuant to the Conservation Reserves Program (the Food Securities Act of 1985, as amended by the Food, Agriculture, Conservation and Trade Act of 1990; and 7 CFR 1410) , or it is used for the forestry purposes described in 321 CMR 10.02: Agriculture(b)14. The issuing authority may require appropriate documentation, such as a USDA Farm Plan or aerial photography, to demonstrate agricultural use.

(b) Normal Maintenance of Land in Agricultural Use means the following activities, without enlargement as to geographical extent, that are occurring on land in agricultural use, when directly related to production or raising of the agricultural commodities referenced in 321 CMR 10.02: Agriculture(a), and when conducted in accordance with federal and state laws:

1. all crop management practices customarily employed to enhance existing growing conditions, including but not limited to: tillage, trellising, pruning, mulching, shading, and irrigating; and all customary harvesting practices such as digging, picking, combining, threshing, windrowing, baling, curing, and drying;

2. the use of fertilizers, manures, compost materials, and other soil amendments; pesticides and herbicides; traps; and other such materials;

3. the repair or replacement of existing access roads and livestock crossings;

4. the maintenance of:
a. existing forest boundary lines up to five feet wide limited to cutting vegetation within the existing boundary lines;

b. windbreaks;

c. hedgerows; and

5. the management of existing field edges, limited to within 100 feet from the land in production, including the following practices:
a. mowing;

b. burning;

c. brush cutting; and d. removing trees;

6. the maintenance and repair of existing fences and the management of temporary fence lines;

7. the cleaning, clearing, grading, repairing, dredging, or restoring of existing man made or natural water management systems such as reservoirs, farm ponds, irrigation systems, field ditches, cross ditches, canals/channels, grass waterways, dikes, sub surface drainage systems, watering facilities, water transport systems, vents, and water storage systems, all in order to provide drainage, prevent erosion, provide more effective use of water, or provide for efficient use of equipment, and all for the purpose of maintaining favorable conditions for ongoing growing or raising of agricultural commodities;

8. the maintenance and repair of ongoing agricultural composting sites, storage areas, and work areas and the storage of fertilizers, pesticides, manures, compost materials, and other soil amendments;

9. the repair and maintenance of existing farm structures;

10. the seeding of eroded or disturbed areas;

11. maintaining the flow of existing natural waterways;

12. the keeping of livestock and poultry and the management of beehives;

13. the cultivation of cranberries, including the following practices:
a. the activities described in 321 CMR 10.02: Agriculture(b)1. through 11;

b. the application of sand to existing bogs and the excavation of sand from sand pits;

c. the repair and reconstruction of water control structures including flumes, pumps, dikes, and piping above and below the ground;

d. the regrading, including modification of drainage, and replanting of existing cranberry bogs;

e. the repair and replacement of dikes;

f. water harvesting activities; and

g. flooding and flood release;

14. the cutting and removal of trees for the purpose of selling the trees or any products derived therefrom, (a) when carried out in accordance with an approved Forest Cutting Plan under the provisions of M.G.L. c. 132, §§ 40 through 46, and 304 CMR 11.04, provided that the approved Forest Cutting Plan incorporates the Division's requested conditions to protect the State-listed Species; or (b) if such commercial forest management activities do not require a Forest Cutting Plan under the provisions of M.G.L. c. 132, §§ 40 through 46, and 304 CMR 11.04, then provided a management plan for such activities is approved by the Division and they occur on Land Devoted to Forest Purposes.

15. pre-commercial forest management activities that do not require an approved Forest Cutting Plan under the provisions of M.G.L. c. 132, §§ 40 through 46, and 304 CMR 11.00, limited to pruning, pre-commercial thinning, selective herbicide application, or other activity designed to maintain or improve existing timber stock for future commercial harvest, provided that said management activities are carried out on Land Devoted to Forest Purposes and in accordance with a management plan approved in writing by the Division.

(c) Normal Improvement of Land in Agricultural Use, includes but is not limited to:

1. the following activities when they occur on land in agricultural use or when they are directly related to production or raising of the agricultural commodities referenced in 321 CMR 10.02: Agriculture(a), and the activity is conducted in accordance with federal and state laws:
a. the installation of permanent fencing, windbreaks, hedgerows, or the cutting of vegetation to create forest boundaries up to five feet wide;

b. the installation of dikes within a cranberry bog;

c. the construction of farm structures, not including habitable dwellings;

d. the squaring off of fields and bogs, provided there is no increase in the amount of land in production beyond the minimum increase necessarily resulting from making the boundary of any field or bog more regular;

e. the construction of by pass canals/channels and tail water recovery systems;

f. a change in commodity other than from maple sap production or forest products to any other commodity;

g. the construction of a water management system such as a farm pond, irrigation system, field ditch, cross ditch, canal/channel, grass waterway, dike, sub surface drainage system, watering facility, water transport system, vent, or water storage system, or of a livestock access; and

h. the construction of composting and storage areas.

2. the reconstruction of existing dikes, the reconstruction and expansion of existing ponds and reservoirs, and the construction of tailwater recovery ponds and by pass canals/channels when directly related to production or raising of the agricultural commodities referenced in 321 CMR 10.02: Agriculture(a).

Alter means to change the physical or biological condition of a designated Significant Habitat in any way that detrimentally affects the capacity of the Significant Habitat to support a population of Endangered or Threatened species and shall include without limitation those activities listed in 321 CMR 10.63(1).

Animal means any member of the animal kingdom including, but not limited to, any mammal, bird, reptile, amphibian, fish, mollusk, crustacean, arthropod or other invertebrate or any part, product, egg or offspring or the dead body or any part thereof.

Aquaculture.

(a) Land in Aquacultural Use means land presently and primarily used in the growing of aquatic organisms under controlled conditions, including one or more of the following uses: raising, breeding or producing a specified type of animal or vegetable life including, but not limited to, finfish such as carp, catfish, black bass, flatfishes, herring, salmon, shad, smelt, sturgeon, striped bass, sunfishes, trout, whitefish, eel, tilapia; shellfish such as shrimp, crabs, lobster, crayfish, oysters, clams, periwinkles, scallops, mussels, squid; amphibians such as frogs; reptiles such as turtles; seaweeds such as irish moss and dulse; and edible freshwater plants.

(b) Normal Maintenance or Improvement of land in aquacultural use means the following activities, when done in connection with the production of aquatic organisms as defined above: draining, flooding, heating, cooling, removing, filling, grading, compacting, raking, tilling, fertilizing, seeding, harvesting, filtering, rafting, culverting or applying chemicals in conformance with all state and federal laws; provided, however, that such activities are clearly intended to improve and maintain land in aquacultural use and that best available measures are utilized to ensure that there will be no adverse effect on wetlands outside the area in aquacultural use, and further provided that removing, filling, dredging or altering of a salt marsh is not to be considered normal maintenance or improvement of land in aquacultural use.

Best Scientific Evidence Available means species occurrence records, population estimates, habitat descriptions, assessments, peer reviewed scientific literature, documented consultation with experts and information contained in the records of the Natural Heritage and Endangered Species Program or other credible scientific reports or species sighting information reasonably available to the Director.

Capacity of a Designated Significant Habitat to Support a Population of Endangered or Threatened Species means those biological or physical features in an area which could be utilized by an Endangered or Threatened plant or animal or play a role in the survival of an Endangered or Threatened species. Components of the capacity of a Designated Significant Habitat to support a population of Endangered or Threatened species include, but are not limited to, space, food, shelter, nesting and foraging sites, overwintering sites, host plants, soils, vegetation, hydrologic regime, substrate, degree of exposure to sun or shade, water temperature, and water quality.

DEP means the Department of Environmental Protection.

Director means the Director of the Division of Fisheries and Wildlife within the Department of Fish and Game.

Division means the Division of Fisheries and Wildlife within the Department of Fish and Game for purposes of 321 CMR 10.00 located at Rte. 135, North Drive, Westboro, MA 01581.

EIR means a draft or final environmental impact report filed pursuant to MEPA.

Endangered Species means any species of plant or animal listed as an Endangered species pursuant to 321 CMR 10.03 and so listed at 321 CMR 10.90.

ENF means an environmental notification form filed pursuant to MEPA.

Extinction means the loss of a species from its entire global range.

Extirpation means the loss of a species from its entire range within Massachusetts.

Federal Endangered Species Act means The Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq., and the regulations promulgated thereunder.

Federal List means the List of Endangered and Threatened Wildlife (50 CFR 17.11) and the List of Endangered and Threatened Plants (50 CFR 17.12) .

Federally Listed Species means any species on the federal list.

Fisheries & Wildlife Board means the board established pursuant to M.G.L. c. 131, § 1A.

Habitat means an area which, due to its physical or biological features, protects or provides important elements for the growth and survival of plants or animals such as food, shelter, or living space, and includes without limitation, breeding, feeding, resting, migratory, or overwintering areas. Physical or biological features include, but are not limited to: structure and composition of the vegetation; faunal community; soils; water chemistry and quality; and geologic, hydrologic, and microclimatic factors.

Land Devoted to Forest Purposes means forest land used or intended to be used for management, cultivation, regeneration, or use of forest products and for which no contrary or inconsistent use is being pursued by the Landowner.

MEPA means the Massachusetts Environmental Policy Act, M.G.L. c. 30, § 61 through 62H and the MEPA regulations at 301 CMR 11.00.

Native, in reference to species, means a species which either occurs, or has occurred, within Massachusetts; provided that the original occurrence of such species is not the result of a deliberate or accidental introduction by humans into Massachusetts nor an introduction elsewhere which spread into Massachusetts.

Natural Heritage and Endangered Species Advisory Committee means the committee established pursuant to M.G.L. c. 131, § 5B.

Natural Heritage and Endangered Species Program (NHESP) means the program within the Division of Fisheries and Wildlife responsible for the inventory, research, and protection of rare plant and animal species and the maintenance of computerized and manual records of rare species locality information.

Net Benefit means an action, or set of actions, that contributes, on its own or in the context of other actions, significantly to the long-term conservation of a State-listed Species and that the conservation contribution to the impacted State-listed Species exceeds the harm caused by a proposed Project or Activity.

NPC means a notice of project change filed pursuant to MEPA.

Person means an individual, corporation, partnership, trust, association or other private entity or any officer, agent, department or instrumentality of the federal government or any state or its political subdivisions, including but not limited to any agency, department, board, commission or authority thereof.

Plant means any member of the plant kingdom including seeds, roots, or other parts.

Priority Habitat means the geographic extent of Habitat for State-listed Species as delineated by the Division pursuant to 321 CMR 10.12. Priority Habitats are delineated based on records of State-listed Species observed within the 25 years prior to delineation and contained in the Division's NHESP database.

Project or Activity means any action, including, but not limited to:

(a) grading, excavating, filling, demolition, draining, dumping, dredging, or discharging;

(b) the erection, reconstruction, or expansion of any buildings or structures;

(c) the construction, reconstruction, improvement or expansion of roads and other ways;

(d) the installation of drainage, sewage and water systems;

(e) beach nourishment or dune building;

(f) the construction or reconstruction of seawalls, groins, dikes, jetties or retaining walls; or

(g) the destruction of plant life.

Record Owner means any person or entity holding a legal or equitable interest, right or title to real property, as reflected in a written instrument or recorded deed, or any person authorized in writing by any such person.

Secretary means the Secretary of the Executive Office of Energy and Environmental Affairs ("EOEEA").

Significant Habitat means any specific area of Massachusetts designated pursuant to 321 CMR 10.30 through 10.40.

Species means any distinct plant or animal population whose members interbreed or cross pollinate when mature or are self perpetuating through the production of viable seed or offspring and can include any subspecies or variety of plant or animal.

Species of Special Concern and Special Concern Species mean any species of plant or animal listed as a Species of Special Concern pursuant to 321 CMR 10.03 and so listed at 321 CMR 10.90.

State Agencies means all agencies, departments, boards, commissions, and authorities of the Commonwealth, including any authority of any political subdivision which is specifically created as an authority under special or general law.

State-list means the Massachusetts list of Endangered, Threatened, and Special Concern species found at 321 CMR 10.90.

State-listed Species means any species on the state list.

Take, in reference to animals, means to harass, harm, pursue, hunt, shoot, hound, kill, trap, capture, collect, process, disrupt the nesting, breeding, feeding or migratory activity or attempt to engage in any such conduct, or to assist such conduct, and in reference to plants, means to collect, pick, kill, transplant, cut or process or attempt to engage or to assist in any such conduct. Disruption of nesting, breeding, feeding or migratory activity may result from, but is not limited to, the modification, degradation or destruction of Habitat.

Threatened Species means any species of plant or animal listed as a Threatened species pursuant to 321 CMR 10.03 and so listed at 321 CMR 10.90.

Viability of a Significant Habitat to Support a Population of Endangered or Threatened Species means the ability of a Significant Habitat to sustain one or more populations of Endangered or Threatened species in the short and long term and may be expressed as the likelihood that the local population(s) of a given size will persist in a Significant Habitat.

Abbreviations: The following abbreviations for agency names, programs, and other terms are used in 321 CMR 10.00.

DEP

Department of Environmental Protection

EIR

Environmental Impact Report, as defined under 301 CMR 11.07

ENF

Environmental Notification Form, as defined under 301 CMR 11.28

EOEA

Executive Office of Environmental Affairs

MEPA regulations

Massachusetts Environmental Policy Act, M.G.L. c. 30, §§ 61 htrough 62H and its implementing, 301 CMR 11.00.

MESA

Massachusetts Endangered Species Act, M.G.L. c. 131A

NHESP

Natural Heritage and Endangered Species Program

RTA

Request to Alter Significant Habitat Form

VMP

Vegetation Management Plan, as defined under 333 CMR 11.00

YOP

Yearly Operating Plan, as defined under 333 CMR 11.00

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