Current through Register 1531,
September 27, 2024
(1)
The Director may, in accordance with provisions of M.G.L. c. 131A, § 3, permit
the Taking of a State-listed Species for conservation or management purposes
provided there is a long-term Net Benefit to the conservation of the impacted
species. The requirements for permitting the Take of a State-listed Species for
conservation or management purposes, including a State-listed Species of
Special Concern that will occur within a conservation protection zone
established in a conservation plan issued by the Division pursuant to
321
CMR 10.26, are set forth in 321 CMR 10.23(2)
through (5). The general permit requirements authorizing the Take of a
State-listed Species of Special Concern that will occur outside of a
conservation protection zone established in a conservation plan issued by the
Division pursuant to
321
CMR 10.26 are set forth in 321 CMR 10.23(6).
The general mitigation standards to be applied by the Director when issuing
individual and general conservation and management permits are set forth in 321
CMR 10.23(7).
(2) Except as
provided in 321 CMR 10.23(6), if the Director determines that the applicant for
a permit has avoided, minimized and mitigated impacts to State-listed Species
consistent with the following performance standards, then the Director may
issue a conservation and management permit, provided:
(a) The applicant has adequately assessed
alternatives to both temporary and permanent impacts to State-listed
Species;
(b) An insignificant
portion of the local population would be impacted by the Project or Activity,
and;
(c) The applicant agrees to
carry out a conservation and management plan that provides a long-term Net
Benefit to the conservation of the State-listed Species that has been approved
by the Director, as provided in 321 CMR 10.23(5), and shall be carried out by
the applicant.
(3)
Except as provided in 321 CMR 10.23(6), if a conservation and management permit
applicant is unable to demonstrate the long-term Net Benefit performance
standard on the project site and the applicant has made every reasonable effort
to avoid, minimize and mitigate impacts to the State-listed Species on site,
then the conservation and management plan may with the approval of the
Director, be designed to meet the long-term Net Benefit performance standard by
providing for financial or in-kind contributions toward the development and/or
the implementation of an off-site conservation recovery and protection plan for
the impacted species.
(4) Except as
provided in 321 CMR 10.23(6), within 30 days of the receipt of a final
conservation and management plan 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 or, if a conservation and management plan has been
submitted and the Project or Activity is undergoing a MEPA review, then 30 days
after the issuance of a final MEPA certificate, whichever is longer, the
Director shall make a determination that the submitted plan meets the
performance standards and is approved, or a determination that the plan as
submitted is inadequate and is denied. Failure of the Director to respond to
the final conservation and management plan shall constitute approval of the
submitted plan as an approved conservation and management permit. The 30 day
response time may be extended for two successive 30 day periods by the Director
due to circumstances beyond the control of the Division and the applicant shall
be notified in writing of the extension, its period and the reason for the
extension.
(5) The conservation and
management permit, if and when issued, shall contain such terms and conditions
as the Director deems necessary or appropriate to carry out the purposes of
M.G.L. c. 131A, including but not limited to, adequate funding for the
conservation and management permit provided by the applicant, and appropriate
monitoring and reporting of the results of the conservation and management
permit. After being notified in writing, and confirming that the terms of a
conservation and management permit have been fulfilled, the Division will
promptly issue a certificate of compliance.
(6)
Projects or Activities
Eligible for Coverage Under a General Conservation and Management Permit when
the Division has Issued a Conservation Plan.
(a)
Eligibility. The
Director may permit the Take of a State-listed Species of Special Concern that
will occur outside of a conservation protection zone established in a
conservation plan issued by the Division pursuant to
321
CMR 10.26 through the issuance of a general
conservation and management permit meeting the requirements of 321 CMR
10.23(6). Nothwithstanding the above, a project proponent retains the option of
obtaining an individual conservation and management permit meeting the
requirements of 321 CMR 10.23(2) through (5) in lieu of
obtaining coverage under a general permit issued pursuant to 321 CMR
10.23(6).
(b)
Minimum
Requirements and Performance Standards Applicable to the General
Permit. The Director may authorize an eligible Project or Activity
to be covered under a general conservation and management permit if the
Director determines that the applicant has submitted a complete and timely
application for coverage to the Division, including paying the applicable
review fee, that obligates the applicant to comply with the following minimum
requirements and performance standards, which will be further specified by the
Division in the general permit.
1. The
applicant shall implement and comply with species-specific development
standards or best management practices, or both, applicable to the geographic
area and the species habitat that would be impacted by the Project or Activity.
Notwithstanding 321 CMR 10.23(2), the proponent is not required to provide an
alternatives analysis or to demonstrate that an insignificant portion of the
local population of the affected State-listed Species of Special Concern would
be impacted by the Project or Activity.
2. The applicant shall provide off-site
mitigation, or a combination of on-site and off-site mitigation subject to the
Division's approval, that achieves the long-term Net Benefit standard in 321
CMR 10.23(1), as determined by the Division. Any off-site mitigation provided
by the applicant in the form of a financial contribution will be used to fund
habitat management or the protection of land or other appropriate mitigation
within one or more conservation protection zones established in the
conservation plan issued by the Division pursuant to
321
CMR 10.26. The amount of any such off-site
mitigation payment will be determined by the Division based on a formula set
forth in written guidance that, at a minimum, considers the area of impact on
the on-site habitat of the affected State-listed Species of Special Concern and
the land values within one or more of the conservation protection zones.
Notwithstanding 321 CMR 10.23(3), the applicant may propose off-site mitigation
without a showing that the applicant has made every reasonable effort to avoid,
minimize and mitigate impacts to the affected State-listed Species of Special
Concern on-site.
3. An applicant
that submits a complete application for coverage meeting the requirements 321
CMR 10.23(6) and fulfills in a timely manner all of the obligations required by
the general permit, as determined by the Division, will be deemed to have
carried out a conservation and management plan that provides a long-term Net
Benefit to the conservation of the State-listed Species as required by 321 CMR
10.23.
(c)
Other Provisions and Requirements Related to the Director's General
Permit Authority.
1. The contents
of the application for coverage under the general permit and related
requirements will be specified by the Division in the general permit or in an
application for coverage form developed by the Division. The application for
coverage will require the submission of information and other action by the
applicant as deemed necessary by the Division for its effective administration
of the general permit program.
2.
The general permit shall contain such terms and conditions as the Director
deems necessary or appropriate to ensure compliance with M.G.L. c. 131A and for
the Division's effective administration of the general permit program,
including but not limited to, the species-specific development standards or
best management practices, or both, applicable to the geographic area and the
species habitat that would be impacted by the Project or Activity; funding for
the mitigation of impacts to the affected species; and appropriate monitoring
and reporting requirements.
3.
Within 30 days of an applicant's submission of a complete and timely
application for coverage form to the Director and payment of the required fee,
the Director will issue a written notification of inclusion of coverage under
the general permit to the proponent or a determination that the notice as
submitted is inadequate and that coverage is denied. Failure of the Director to
respond to the application for coverage within the above time period will
constitute the Director's approval that the Project or Activity is authorized
under the general permit. The 30 day response time may be extended for two
successive 30 day periods by the Director due to circumstances beyond the
control of the Division and the applicant shall be notified in writing of the
extension, its duration and the reason for the extension.
4. The Director may require any permittee
authorized under the general permit to apply for and obtain an individual
conservation and management permit pursuant to 321 CMR 10.23(2) through (5).
Cases where an individual conservation and management permit may be required
include a written determination by the Director that:
a. the permittee is not in compliance with
the general permit;
b.
circumstances have changed since the time of the submittal of the application
for coverage so that the Project or Activity is not longer appropriately
regulated for conservation and management purposes under the general permit;
and
c. other relevant
factors.
(7)
General Mitigation Standards
Applicable to Individual and General Conservation and Management Permits Issued
by the Director.
(a) The
Director, in determining the appropriate nature and scope of mitigation
necessary for an applicant for an individual or general conservation and
management permit to achieve the long-term Net Benefit performance standard in
321 CMR 10.23(1), will generally apply the following areal habitat mitigation
ratios, based on the category of State-listed Species:
1. Endangered Species: 1:3
(i.e., protection of three times the amount of areal habitat
of the affected Endangered Species that is impacted by the Project or
Activity);
2. Threatened Species:
1:2 (i.e., protection of two times the amount of areal habitat
of the affected Threatened Species that is impacted by the Project or
Activity).
3. Special Concern
Species: 1:1.5 (i.e., protection of one and one half times the
amount of areal habitat of the affected Species of Special Concern that is
impacted by the Project or Activity).
(b) The Director reserves the right to
require, on a permit-by-permit basis, an areal habitat mitigation ratio or an
alternative mitigation approach that differs from the otherwise applicable
ratio in 321 CMR 10.23(7)(a)1. through 3. when the Director determines in
writing that the alternative mitigation ratio or alternative mitigation
approach is either sufficient or required to achieve the long-term Net Benefit
performance standard in 321 CMR 10.23(1). A project proponent may also request
in writing that the Director apply an alternative mitigation ratio or
alternative mitigation approach to the Project or Activity. Any such request
shall explain why an alternative mitigation ratio or alternative mitigation
approach is appropriate, addressing the relevant factors in 321 CMR
10.23(7)(b)1. through 5. In determining whether an alternative mitigation ratio
or alternative mitigation approach is appropriate, the Director will consider
factors that include but are not limited to:
1. the size and configuration of the habitat
impact;
2. the threats to the
affected State-listed Species posed by uses or activities located adjacent or
in close proximity to the Project or Activity that is the subject of the
conservation and management permit;
3. the size, configuration and quality of the
habitat proposed to be protected by the applicant;
4. the population density of the affected
State-listed Species; and
5. the
habitat management and research needs associated with the affected State-listed
Species.
(c) For the
purposes of providing ongoing, updated guidance to project proponents and the
public, the Division will post guidelines on its website for avoiding and
minimizing impacts and for achieving the long-term Net Benefit performance
standard in 321 CMR 10.23(1) for those State-listed Species for which the
Director has issued three or more conservation and management permits during a
three year time period. The Director reserves the right to require, on a
permit-by-permit basis, mitigation that differs from any relevant mitigation
guidelines developed by the Division when the Director determines in writing
that the permit-specific mitigation is either sufficient or required to achieve
the long-term Net Benefit performance standard in 321 CMR 10.23(1). In
determining whether to require permit-specific mitigation that differs from any
relevant mitigation guidelines, the Director will take into consideration
factors that include those set forth in 321 CMR 10.23(7)(b)1. through
5.
