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 10.05 - Responsibilities of State Agencies

Universal Citation: 321 CMR 10.00 MA Code of Regs 10.05

Current through Register 1531, September 27, 2024

(1) All state agencies shall utilize their authorities in furtherance of the purposes of MESA and 321 CMR 10.00: review, evaluate and determine the impact on Endangered, Threatened and Special Concern species or their habitats of all works, projects or activities conducted by them; and use all practicable means and measures to avoid or minimize damage to such species or their habitats. For the purposes of 321 CMR 10.05, "state actions" means any work, project, or activity either directly undertaken by a state agency, or if undertaken by a person, which seeks the provision of financial assistance by an agency or requires the issuance of permits by an agency (but not including a grant of aid for medical services or personal support, such as welfare or unemployment funds) to a person or a third party on behalf of a person, and "activities" means any acts carried out by a state agency which could affect any state listed species or their habitats.

(2) The following types of state actions shall be considered in compliance with MESA and 321 CMR 10.05(1):

(a) State actions that have received any permits required pursuant to MESA and 321 CMR 10.00.

(b) State actions that are part of a project which has been reviewed under MEPA and the Secretary of EOEA has issued either a certificate on an ENF stating that project does not require the preparation of an EIR or a certificate on a Final EIR stating that the EIR fully and adequately complies with MEPA, provided, however, that said project has been reviewed under MEPA regulations ( 301 CMR 11.00) that have incorporated review thresholds for permits issued under 321 CMR 10.00 and that no taking will occur or that a Conservation and Management Permit has been issued.

(c) State actions occurring on state-owned land that are in conformance with a management plan which was developed in accordance with the following inventory and planning procedures and management policies:
1. Inventory Procedures. State agencies shall request and the NHESP shall provide information on the location, biology, and habitat requirements of state listed species documented by the NHESP as occurring on said agency's lands. NHESP shall also provide to state agencies such information and recommendations as are necessary to allow said agencies to use all practicable means and measures to avoid or minimize damage to state listed species or their habitats.

2. Planning Procedures. State agencies shall submit to NHESP any draft management plans they prepare for state-owned lands on which state listed species are known to occur. NHESP shall review such draft plans and provide comments and recommendations to the state agency concerning the protection, conservation, and restoration of the listed species on the land subject to the plan. Such review and recommendations shall be repeated at least once every five years or every time the land management plan is updated, whichever is sooner.

3. Management Policies. Unless specifically required otherwise by statute, localities on state-owned lands that provide habitat for state listed species shall be managed for the benefit of such listed species. Said agencies shall give management priority to the protection, conservation, and restoration of Endangered, Threatened, and Special Concern species occurring on state-owned lands. All practicable means and measures shall be taken to resolve conflicts between the protection, conservation, and restoration of state listed species on state-owned lands and other uses of such lands in favor of the listed species.

(d) All other state actions that do not require a permit under MESA, are not subject to review under MEPA, and do not involve actions on state-owned lands shall be presumed to be in compliance with 321 CMR 10.05(1), unless the Secretary of EOEEA initiates the following review. The Secretary of EOEEA may initiate a review of a state action when he/she determines that such a state action may damage state listed species or their habitats. Such state actions for which the Secretary has initiated such review and which fulfill the consultation and review procedures described below shall be considered in compliance with 321 CMR 10.05(1):
1. Upon notification by the Secretary of EOEEA that a state action may damage state listed species or their habitats the affected agency shall initiate consultation with NHESP. Said agency shall submit to NHESP such information that is necessary for the NHESP to determine the location and nature of the proposed state action.

2. NHESP shall review the information submitted by the agency and determine if the state action is likely to result in damage to any state listed species or their habitats. If the NHESP determines that the state action is likely to damage state listed species or their habitats the NHESP shall provide to the agency such guidance and information that is necessary to allow the agency to avoid such damage. If NHESP determines that the state action is not likely to result in damage to state listed species or their habitats the NHESP shall provide a written opinion to the agency that such state action is in compliance with MESA and 321 CMR 10.05(1). An agency that receives guidance and information from NHESP regarding the avoidance of damage to state listed species and their habitats shall take all practicable means and measures to modify their actions to avoid such damage.

3. Said agency shall submit to the Secretary of EOEEA and NHESP evidence that all practicable means and measures have been taken to avoid damage to state listed species and their habitats. The Secretary shall certify that the state action is in compliance with 321 CMR 10.05(1) if she finds that the agency has taken all practicable means and measures to avoid damage to state listed species and their habitats pursuant to the recommendations of NHESP.

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