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 10.18 - Review of Projects or Activities for Take of State-listed Species in Priority Habitat

Universal Citation: 321 CMR 10.00 MA Code of Regs 10.18

Current through Register 1531, September 27, 2024

(1) Except as provided in 321 CMR 10.13 and 10.14, any Project or Activity that will be located or will take place in Priority Habitat shall be reviewed by the Division as provided in this section prior to commencement of any physical work or action in Priority Habitat. The Division shall review any such Project or Activity for the purposes of determining if a Take will result from any temporary or permanent modification, degradation or destruction of Priority Habitat occurring as a result of the proposed Project or Activity. Prior to the commencement of any physical work in Priority Habitat, the Record Owner of the land where such Project or Activity will occur shall submit the information listed in 321 CMR 10.20 to the Division. The Division shall notify the Record Owner within 30 days if the materials submitted satisfy 321 CMR 10.20 and request submission of any missing materials. Once the Division has determined all of the materials required by 321 CMR 10.20, including a review fee, the amount of which shall be determined by the commissioner of administration under the provisions of M.G.L. c.7, §3B, then the Division shall issue a file number for the review of that Project or Activity.

(2) After the issuance of a file number, the Division shall review the submitted materials to determine, based on the performance standard in 321 CMR 10.19, if the proposed Project or Activity either:

(a) has avoided a Take as proposed, or with conditions and may proceed without further review; or

(b) will result in a Take and cannot proceed as proposed. For purposes of M.G.L. c. 30A, §§ 10 through 14, the determination of a Take shall constitute final agency decision in the form of a denial. The Division's determination shall be made in writing within 60 days after the issuance of a file number. Failure of the Division to issue a written determination within 60 days after the issuance of a file number shall be deemed to be a determination that the proposed Project or Activity does not result in a Take and requires no further review. The Director may extend the 60-day review period for up to two successive 20 day periods if circumstances beyond the control of the Division require additional time to complete the review, in which case the Division shall notify the Record Owner in writing of the extension and the reason for the extension. The response time may also be extended at the written request of the Record Owner.

(3) If the Division has made a determination of a Take, the Record Owner may request a consultation with the Division to discuss options for the Project or Activity that may avoid a Take.

(4) Any Project or Activity that receives a determination that no Take will result (whether in writing or by expiration of the 60-day review period, as may be extended) shall not be subject to further review under 321 CMR 10.18 if physical work on the Project or Activity is commenced within five years from the date of the determination (or the expiration of the 60-day review period, as may be extended). If no physical work is commenced on the Project or Activity within that five-year period, or there is a material change in the plans that were submitted to the Division, the Project or Activity may be subject to further review by the Division.

(5) Performance Standards for Obtaining a No Take Determination for Certain Activities.

(a) Notwithstanding 321 CMR 10.18(1) and (2), a Project or Activity that impacts no more than 10,000 square feet of Priority Habitat mapped solely for a State-listed animal Species of Special Concern will receive a No Take determination from the Division under 321 CMR 10.18, provided that the Division determines that the following performance standards have been met:
1. such Project or Activity is not subject to regulation under the Wetlands Protection Act and 310 CMR 10.00;

2. such Project or Activity will not occur within 300 feet of a vernal pool that has been certified or otherwise determined to provide vernal pool habitat by the Division, or is subject to protection by a municipality, and such vernal pool is mapped as Priority Habitat for any State-listed animal Species that uses vernal pool habitat;

3. the proponent files a plan with the Division that clearly delineates the limit of the work and the location and scope of the impact to Priority Habitat;

4. the proponent thereafter records the plan on the deed of the affected property or properties; and provided that:

5. no more than one such Project or Activity shall be allowed for the site; no action has been taken to segment the Project or Activity to evade compliance with the above performance standards or MESA, as determined by the Division; and the Division, in reviewing any subsequent Project or Activities for the site pursuant to 321 CMR 10.18 may take into account the impact previously authorized under 321 CMR 10.18(5)(a)1. through 4. when determining the MESA permitting and mitigation requirements for the subsequent Project or Activity.

(b) The Division may establish in guidance, performance standards for other Projects or Activities that, if complied with, will receive a No Take determination from the Division under 321 CMR 10.18.

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