(1)
Sites or Projects and
Activities that are not Located or Will not Take Place in Priority
Habitats. Projects and Activities that are not located or will not
take place in Priority Habitats shall not be subject to the review provision of
321
CMR 10.18, except in the circumstances
described in 321 CMR 10.13(1)(a) and (b):
(a)
New Occurrence Information is Received by the
Division.1. If the Division
receives new information on a State-listed Endangered or Threatened Species
occurrence relating to a site that is not located in Priority Habitat, the
Division may determine, within 30 days of its receipt of such occurrence
information, whether the new State-listed Species occurrence meets the criteria
for delineation of a Priority Habitat under
321 CMR
10.12, and whether any proposed Project or
Activity at the site shall be reviewed under
321
CMR 10.18, provided, however, that the
Division's determination is issued to the Record Owner of the site:
a. prior to the issuance of a final Order of
Conditions by a conservation commission or DEP for a Project or Activity on the
site; or
b. if the Project or
Activity is not subject to the jurisdiction of the conservation commission,
then prior to the issuance of any permit that has been subject to public
hearing that was publicly noticed; or
c. if not subject to such a public hearing
then prior to the issuance of a building permit;
2. Only that portion of the Project or
Activity that meets the exemption criteria in 321 CMR 10.13(1)(a)1. is not
required to be reviewed under
321
CMR 10.18. Subject to the limitation in 321
CMR 10.13(1)(a)1., the Division shall notify the Record Owner upon its receipt
of the new occurrence information, and shall provide the written determination
described in 321 CMR 10.13(1)(a)1. to the Record Owner(s) of all the affected
properties within 45 days of the receipt of such new occurrence information.
Any Division determination made pursuant to 321 CMR 10.13(1)(a)1. shall remain
valid for a period of five years after the date of its issuance.
(b)
The Division's
MEPA Comments Request an Assessment of Whether a State-listed Species is
Present.
1. When a Project or
Activity that is not located in Priority Habitat is subject to MEPA review
pursuant to M.G.L. c. 30, § 61 through 62I, the Division may, consistent with
MEPA regulations at 301 CMR 11.00, review and comment on any ENF, draft
supplemental or final EIR or NPC submitted to the MEPA Office. If the Division
has credible information indicating the occurrence of a State-listed Endangered
or Threatened Species or its habitat within the area to be disturbed by the
Project or Activity, the Division may request in its comments to the MEPA
Office that the project proponent be required to assess the area to be
disturbed by the Project or Activity to determine if such State-listed Species
are present. Otherwise, the Priority Habitat Map in effect as of the time of
the Division's review of the ENF, the draft, supplemental or final EIR or the
NPC shall be deemed final for the purpose of the Division's review, except
where the project site is subsequently mapped as Priority Habitat prior to the
issuance of a MEPA certificate for the final stage of MEPA review by the
Secretary of EOEEA, in which case the provisions of 321 CMR 10.13(2)(a) shall
apply.
2. Following the issuance of
a certificate by the Secretary of Environmental Affairs for the final stage of
review for a Project or Activity any determinations made in or pursuant to that
certificate with respect to the delineation of Priority Habitat or avoiding,
minimizing and mitigating the Take of State-listed Species, provided there is
no material change requiring the filing of a Notice of Project Change for the
Project or Activity, shall remain valid for the purposes of 321 CMR 10.00 for a
period of five years.
(2)
Projects or Activities that
Were not in Priority Habitat when they Were Proposed but the Project Site is
Thereafter Delineated by the Division as Priority Habitat.
Projects or Activities that were not in Priority Habitat when they were
proposed but the project site is thereafter delineated by the Division as
Priority Habitat shall not be subject to the review by the Division pursuant to
321
CMR 10.18, provided the following project
milestones have been met prior to the project site being mapped as Priority
Habitat or within the specified timeframes, as set forth in 321 CMR 10.13(2)(a)
through (d):
(a)
MEPA
Review.
1. The project proponent
has filed an ENF and no issue involving MESA was raised in any comment letter
submitted during the MEPA comment period by the Division, or, if a MESA issue
was raised, it has been resolved to the satisfaction of the Division; and the
Secretary determined that an EIR was not required; or
2. The Secretary has determined that the
Draft EIR was adequate and no MESA issues were raised by the Division during
the MEPA comment period, or, if a MESA issue was raised, it has been resolved
to the satisfaction of the Division; or
3. The Secretary has issued a certificate on
a Final EIR determining that the project or activity adequately and properly
complies with MEPA.
4.
Notwithstanding 321 CMR 10.13(2)(a)1. through 3., Projects or Activities for
which an NPC that the Division determines would impact a state-listed species
or its habitat is thereafter filed with MEPA are not exempt from MESA review
and shall be subject to review by the Division pursuant to
321
CMR 10.18. The scope of the MESA review
hereunder shall be limited to those aspects of the Project or Activity that
would be materially modified by the NPC, as determined by the
Division.
(b)
Permitting Under the Wetlands Protection Act. If 321
CMR 10.13(2)(a) does not apply, and:
1. The
issuing authority has issued an Order of Conditions, a Superseding Order of
Conditions or an Order of Resource Area Delineation (ORAD) for the Project or
Activity, provided that, in the case of an ORAD, the project proponent obtains
an Order of Conditions, if needed, or one of the permits or approvals in 321
CMR 10.13(2)(c) by the expiration date of the initial three year term of the
Final ORAD; or
2. The project
proponent has obtained either an Order of Conditions or a Superseding Order of
Conditions for the Project or Activity within six months after the publication
of the subsequent Priority Habitat map delineating the project site as Priority
Habitat,
(c)
Other Permitting Actions.
1. If the Project or Activity is not subject
to the Wetlands Protection Act, and 321 CMR 10.13(2)(a) does not apply, then
upon the issuance of any permit or final approval for the Project or Activity,
provided such permit or approval has been subject to public hearing that was
publicly noticed; or
2. if the
Project or Activity is not subject to the Wetlands Protection Act, and 321 CMR
10.13(2)(a) does not apply, and the Project or Activity does not require the
issuance of a permit or approval for which a public hearing is required
pursuant to 321 CMR 10.13(2)(c), then if a building permit for the Project or
Activity has been issued.
(d) Notwithstanding 321 CMR 10.13(2)(a)
through (c):
1. only that portion of the
Project or Activity that meets an exemption category in 321 CMR 10.13(2)(a)
through (c) is not required to be reviewed under
321
CMR 10.18;
2. the Division reserves the right to
determine, based on special circumstances, that any Project or Activity meeting
an exemption category in 321 CMR 10.13(2)(a) through (d) shall be subject to
review under
321
CMR 10.18 to prevent a substantial and
permanent modification, degradation or destruction of Priority Habitat for an
Endangered or Threatened State-listed Species, as determined by the Division;
and
3. no Project or Activity that
has already obtained a Take determination or been issued a Conservation and
Management Permit by the Division is covered by the provisions of 321 CMR
10.13(2).
4. the Division may issue
further guidance regarding its interpretation and implementation of 321 CMR
10.13.
(3)
Voluntary Assessment of Whether State-listed Species are
Present. A Record Owner may at any time undertake a voluntary
assessment following protocols pre-approved in writing by the Division for
which a review fee shall be charged, the amount of which shall be determined by
the commissioner of administration under the provisions of M.G.L. c. 7, § 3B,
to determine if Threatened and Species of Special Concern are present on a
property (or portion thereof). Upon approval of that assessment by the
Division, that assessment shall remain valid for the purposes of 321 CMR 10.00
Part II for a period of three years from the date of its approval in writing by
the Division. The approval by the Division of a Record Owner's assessment
documenting the absence of Threatened and Special Concern Species shall provide
the Record Owner with a guarantee that no new occurrence records will be
considered in relation to a MESA or MEPA ( 321 CMR 13.2) review of the property
for a period of five years. This guarantee does not include any species that is
subsequently listed.
