Code of Massachusetts Regulations
321 CMR - DIVISION OF FISHERIES AND WILDLIFE
Title 321 CMR 10.00 - Massachusetts Endangered Species Act
Part IV - Alteration of Significant Habitat
Section 10.62 - Activities Exempt from the Requirement for an Alteration Permit

Universal Citation: 321 CMR 10.00 MA Code of Regs 10.62

Current through Register 1531, September 27, 2024

(1) Agriculture and Aquaculture. The normal maintenance and improvement of land in agricultural or aquacultural use shall be exempt from the requirement to obtain an Alteration Permit. This exemption shall continue only so long as such land remains in agricultural or aquacultural use. Land in agricultural or aquacultural use does not include those portions of a site that are not in such use and are not designated fallow land. The normal maintenance and improvement of land in agricultural or aquacultural use does not include site preparation for purposes of conversion to another, non-agricultural or non-aquacultural use. To qualify for this exemption, land in agricultural use shall have been in such use and not fallow or inactive three out of five years preceding the effective date of designation. To maintain this exemption land in agricultural use must remain in such use but may lie fallow for a period of time if used for agriculture at least three out of every five years. Land lying fallow more than two out of five years shall qualify or continue to qualify for this exemption upon certification by the Commissioner of the Department of Agricultural Resources that the fallow condition of the land is necessary to maintain the land in agricultural use.

(2) Land in Forestry Use. The normal maintenance and improvement of land in forestry use for which the landowner has engaged in the following consultation and certification process, shall be exempt from the requirement of an Alteration Permit.

(a) Plan Submission. A landowner shall submit a forest management plan to the state forester and NHESP for review.

(b) Plan Review and Consultation. NHESP shall review the forest management plan; shall make recommendations with respect to the avoidance, minimization or mitigation of impacts on Endangered, Threatened, or Special Concern species; and shall submit such recommendations to the landowner and the state forester. Failure of the NHESP to make any such recommendations within 60 days of receipt of such plan shall constitute consultation and approval by NHESP of the plan. The state forester shall review the forest management plan and the NHESP's recommendations. The state forester shall certify the plan if she finds:
1. that the plan constitutes a planned program to improve the quantity and quality of a continuous crop for the purpose of selling such products in the regular course of business; and

2. that the NHESP has determined that the plan will take all practicable means and measures to avoid damage to state listed species or their habitats.

(c) Certification of Plan. If the state forester finds that either requirement has not been met she shall deny certification of the plan and return the plan to the landowner with a statement of the reasons for the denial. If the state forester finds that both requirements have been met she shall prepare a certification document to be signed by both the state forester and the NHESP and affixed to the approved plan and shall send copies of the same to the landowner and NHESP.

(3) Single Family House. A landowner may construct without the requirement of an Alteration Permit a single family house covering no more than 3,000 square feet of ground and install any necessary utilities to service said house and construct in a reasonable fashion a single access driveway to the nearest public or private way on a lot having an area of at least three acres; provided, however, that the lot on which said construction takes place was owned by said landowner and in existence on January 1, 1990; and provided, further, that said lot was not held in common ownership with any adjoining land as of said date. For purposes of 321 CMR 10.62(3)(e) the phrase "in existence" shall mean a lot shown on a definitive plan that has received final approval under M.G.L. c. 41 or shown on a plan that has been endorsed under M.G.L. c. 41, § 81(P). Upon submission of a Notice of Intent under the Wetlands Protection Act M.G.L. c. 131, § 40 or application for a building permit, whichever is first, landowners intending to construct such a house shall submit by certified mail or hand delivery to the Director a completed form, available upon request from the Division of Fisheries and Wildlife, and supporting documentation demonstrating that the conditions for the exemption have been met. The form shall request the following information:

(a) property owner's name and mailing address;

(b) address of new house;

(c) occupancy of the proposed house (number of families)

(d) square feet of ground covered by the house;

(e) the size of the lot in acres;

(f) owner of the lot on January 1, 1990;

(g) ownership of any adjoining land by property owner specified in 321 CMR 10.62(3)(f) on January 1, 1990;

(h) date of approval of the definitive subdivision plan, prepared pursuant to M.G.L. c. 41, or date of endorsement of a plan pursuant to M.G.L. c. 41, § 81(P), showing the house lot, if any;

(i) a plan showing the boundaries of the lot, the location and footprint of the house, the location of any proposed driveways, the location of the nearest public way, and the location of any other existing or proposed structures.

(j) an 81/2" X 11" section of a USGS 71/2 minute topographic map (original or photocopy) showing the location of the proposed house clearly; and

(k) signature of property owner and date.

(4) Projects in Receipt of a Building Permit or which are in Compliance with MEPA. Activities within a Significant Habitat shall be exempt from the requirement of an Alteration Permit if either of the following have occurred prior to the issuance of notice of public hearing of proposed Significant Habitat designation pursuant to 321 CMR 10.32(1)(a):

(a) a building permit for such activities has been issued; or

(b) the Secretary of EOEA has certified no more than three years prior to designation that a Final EIR for such activities fully and adequately complies with MEPA; provided, however, that such EIR evaluated the potential impacts of the project on the state listed species occurring in the Significant Habitat at the time of designation.

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