Code of Massachusetts Regulations
321 CMR - DIVISION OF FISHERIES AND WILDLIFE
Title 321 CMR 10.00 - Massachusetts Endangered Species Act
Part II - Delineation of Priority Habitat and Review of Projects or Activities within Priority Habitat
Section 10.12 - Delineation of Priority Habitat of State-listed Species

Universal Citation: 321 CMR 10.00 MA Code of Regs 10.12

Current through Register 1531, September 27, 2024

(1) Priority Habitats are used for screening Projects and Activities that may result in the Take of State-listed Species and to provide guidance to Record Owners regarding a Project or Activity through consultation with the Division. Priority Habitats shall be delineated based on the Best Scientific Evidence Available.

(2) The delineation of Priority Habitat by the Division for all State-listed Species shall be based on the Best Scientific Evidence Available and shall include examination of individual occurrence records in the context of species listing status, and shall apply the following criteria: the nature and/or significance of the occurrence as it relates to the conservation and protection of the species, including but not limited to, evidence of breeding, persistence, life stages present, number of individuals, extent of necessary supporting habitat, and proximity to other occurrences.

(3) For each species, habitat mapping guidelines will be prepared that identify the important habitat features, and that describe the methodology by which Priority Habitats are delineated.

(4) Where the delineation will extend to areas previously disturbed by Projects or Activities, the delineation shall to the maximum extent feasible and consistent with the Best Scientific Evidence Available and to the extent those areas no longer provide important habitat features for State-listed Species, exclude any such disturbed areas from the delineated Priority Habitat. The Division also reserves the right not to delineate an area as Priority Habitat with occurrence records of State-listed Species of Special Concern or, in exceptional circumstances, State-listed Endangered or Threatened Species, based on factors such as the listing status of the species, the known population status of the species or the quality of habitat, or the existence of a Conservation Plan for a State-listed Species of Special Concern issued by the Division pursuant to 321 CMR 10.26

(5) In the delineation of Priority Habitat and the selection of occurrence records to be included in Priority Habitat mapping, the Division shall take into consideration the listing status of individual species and use a methodology that draws clear distinctions between State-listed Species based on the relative threat of extinction or extirpation for each of those classifications. The Division will develop guidelines and criteria for the acceptance and inclusion of occurrence records into the NHESP data base.

(6) Division Updates to the Priority Habitat Map.

(a) The delineation of Priority Habitat will be re-evaluated every four years by the Division. The current Priority Habitat map issued by the Division in October, 2008 shall remain in effect through calendar year 2011, or until such time as a new Priority Habitat map is issued by the Division. The Successor Priority Habitat maps will be on a four calendar year cycle. Revisions or updates to the Priority Habitat map are generally the result of the Division's consideration of factors such as:

1. the Division's re-evaluation of the existing basis for a delineation, including whether there have been relevant changes to the Best Scientific Evidence Available;

2. any revised delineation made by the Division in the preceding four years in response to a request for reconsideration pursuant to 321 CMR 10.12(8) or as the result of a final adjudicatory or final judicial appeal;

3. the existence of any new occurrence records contained in the NHESP data base or any occurrence records observed more than 25 years prior to delineation, which, because of their age, are no longer used to delineate Priority Habitats, but are retained in the NHESP data base for historical purposes;

4. the extent to which an existing or potential delineation includes areas previously disturbed by Projects or Activities; or

5. a change made by the Division to the listing status of a species; and

6. upon the issuance of any Conservation Plan for a State-listed Species of Special Concern by the Division pursuant to 321 CMR 10.26, the subsequent updated Priority Habitat maps, beginning with the Natural Heritage Atlas, 15th Edition, will not include the delineation of new Priority Habitat outside of the conservation protection zones established in the Conservation Plan for that species.

(b) Upon completion of its re-evaluation of the Priority Habitat map, the Division will provide a sixty (60) day public comment period on all proposed revisions or updates to the map. Specifically, the Division will request public comment on the status of areas proposed for delineation or removal as Priority Habitat regarding the physical or biological features of the habitat, or the current scope of existing development in the area. The Division will post its proposed updated version of the Priority Habitat map, together with a summary explanation of the significant changes to the map, on the Division's website. The Division will also publish notice of the availability of the proposed updated Priority Habitat map and the public comment period on the Division's website, in the Environmental Monitor, in a newspaper with state-wide circulation, and in other newspapers with regional or local circulation, as deemed appropriate by the Division, and provide such notice to planning boards, building inspectors and conservation commissions in municipalities where existing or new Priority Habitats have been or are proposed to be delineated or modified.

(c) Within thirty (30) days after the close of the public comment period, the Division will determine whether any modifications to its proposed updated Priority Habitat map are appropriate, evaluating the relevance and substance of a public comment against the Division's criteria for delineating Priority Habitat in 321 CMR 10.12(2). The Division reserves the right to take more time to complete its review of the public comments and for determining whether any modifications to its proposed updated Priority Habitat map are appropriate.

(7) Division's Publication of the Final Updated Priority Habitat Map.

(a) The Division will post the final updated Priority Habitat map, together with a summary response to public comments and a summary explanation of any significant modifications to the proposed updated map, on the Division's website within thirty (30) days of its determination of whether any modifications to its proposed updated Priority Habitat map are appropriate. The Division will also make available the final updated Priority Habitat map to the public electronically as a geographic information system (GIS) data layer.

(b) The Division will provide the final town-based Priority Habitat map to planning boards, building inspectors and conservation commissions in municipalities where Priority Habitats have been delineated.

(8) Any Record Owner of real property in Priority Habitat may request reconsideration by the Division of the delineation affecting that Record Owner's property. Such request shall be made in writing by certified mail to the Division. Within 30 days of the Division's receipt of a request for reconsideration, the Division shall make available to the Record Owner, consistent with the provisions of M.G.L. c. 66 § 17D, information from the Division's files relating to the delineation and species listing affecting that property. In providing such records, the Division shall require the Record Owner to execute a confidentiality agreement pursuant to M.G.L. c. 66 §17D and shall redact the names and personal information of persons submitting State-listed Species occurrence information affecting a property. Following the receipt of information used as the basis of the delineation the Record Owner shall notify the Division in writing if they wish to proceed with the reconsideration. If the Record Owner determines to proceed with the reconsideration they shall provide the following information:

(a) Name;

(b) Address;

(d) Acreage of the property;

(e) A copy of a USGS topographic map in scale 1:24,000 or 1:25,000 with the property location clearly marked and centered on the page, and;

(f) A clear statement explaining the reasons for the reconsideration request with specific reference to scientific studies, records, surveys or other information relevant to the request.

Within 45 days of its receipt of such information and the payment of a fee, the amount of which shall be determined by the commissioner of administration under the provisions of M.G.L. c.7, § 3B, the Division shall, applying the criteria in 321 CMR 10.12(2), issue a written decision either confirming the original delineation or modifying that delineation as the Division determines is warranted by the additional information submitted to the Division. The decision shall state the grounds for the Division's determination, and shall be mailed by certified mail to the Record Owner. This decision shall be considered the final agency action for the purposes of M.G.L. c. 30A. No Record Owner may appeal the delineation in the Priority Habitat Map pursuant to c. 30A without first requesting reconsideration as provided above. However, the failure to request reconsideration shall not preclude a Record Owner from challenging the Priority Habitat delineation in connection with the review of a Project or Activity pursuant to 321 CMR 10.18 or in any subsequent appeal relating to that review.

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