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 10.66 - Standard Permit Review

Universal Citation: 321 CMR 10.00 MA Code of Regs 10.66

Current through Register 1531, September 27, 2024

(1) Submission of Request to Alter Significant Habitat. A person wishing to alter Significant Habitat shall submit to the Director a completed Request to Alter Significant Habitat (RTA) form. RTA forms are available from the Division and shall request the following information:

(a) project/activity name and address;

(b) proponent's name and address;

(c) landowner's name and address;

(d) a complete description of the project and the anticipated uses, including project locus, site plans, grading plans, and Notice of Intent and response of NHESP to any filing pursuant to the rare species provisions of the Wetlands Protection Act regulations ( 310 CMR 10.37 or 10.59 ), if any;

(e) the possible alternatives to the proposed project and anticipated use(s);

(f) the anticipated impacts of the proposed project on any Endangered or Threatened species;

(g) full plans for the protection of any Endangered or Threatened species present and the short term and long term avoidance, minimization or mitigation measures to be taken to provide amelioration of the impact;

(h) the potential economic effects of the proposed project on the proponent and the local community, if any;

(i) signature of proponent and date; and

(j) signature of landowner and date.

(2) Segmentation. Several alterations of Significant Habitat which are part of a single project shall be described on a single RTA. In conducting permit review, the entirety of a proposed project, including likely future expansions, shall be considered, and not separate phases or segments thereof. In determining whether two or more alterations are in fact parts of one project, all circumstances are to be considered, including but not limited to time interval between phases; whether the alterations, taken together, constitute a part of a common plan or scheme; and whether environmental impacts are separable. Ownership by different entities does not necessarily indicate that two alterations are separate. It is the intent of this rule that projects not be segmented or phased to evade or defer review.

(3) Initial Review of RTA for Completeness. The Director shall review the RTA and determine if it contains all necessary information. The Director shall notify the proponent of any additional information necessary to review the alteration no more than 21 days after receiving the RTA. If the Director does not notify the proponent of any additional information requirements within the 21 day period the RTA shall be considered complete.

(4) Director's Review. Within 45 days of receiving all required information, the Director shall determine whether the alteration will reduce the Viability of the Significant Habitat to support the population of Endangered or Threatened species involved; provided, however, that the Director may enter into a written agreement with the proponent to extend the period for such determination.

(5) Consultation. Prior to acting on a RTA, the Director will schedule with the proponent a public consultation session to review the proposed alteration and discuss potential impacts. The Director shall publish a notice of the consultation session in a newspaper of general circulation in the area of the Significant Habitat involved at least seven days before the consultation session.

(6) Criteria for Issuing Permits. The Director shall apply the following criteria when determining whether the proposed alteration will reduce the Viability of the Significant Habitat. The Director shall determine that the alteration will reduce the Viability of the Significant Habitat if an alteration may directly or indirectly:

(a) change the environment in any way which likely will result in stress, lowered reproduction or growth, or decline of the local population of the Endangered or Threatened species involved;

(b) prevent, hinder, or stop ecological processes which are important for the survival or recovery of the Endangered or Threatened species involved;

(c) isolate portions of the Endangered or Threatened species populations from each other;

(d) disrupt seasonal or daily movements or migrations of Endangered or Threatened animals or dispersal of Endangered or Threatened plants; or

(e) decrease the probability of long term survival or recovery of the affected local population(s) of Endangered or Threatened species.

(7) Issuance of Permit. The Director shall issue an Alteration Permit only upon determining that the alteration will not reduce the Viability of the Significant Habitat. The Alteration Permit shall contain such conditions as are necessary to ensure that the alteration will not reduce the Viability of the Significant Habitat. The Director may include requirements for biological monitoring as a means for assessing compliance with the terms of the Alteration Permit and the success or failure of avoidance, minimization, or mitigation measures. Unless the terms of the Alteration Permit indicate otherwise, the proponent shall complete the permitted activities within three years of the issuance of the Alteration Permit.

(8) Denial of Permit. The Director shall issue a permit denial upon determining that the alteration will likely reduce the Viability of the Significant Habitat, including a statement of the reasons for such denial.

(9) Revocation. Upon a determination that a proponent is conducting or has conducted activities in violation of an Alteration Permit, the Director may revoke said Alteration Permit. Revocation of a permit shall not limit any other enforcement or penalty for violation of M.G.L. c. 131A or 321 CMR 10.30.

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