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 10.70 - Variance

Universal Citation: 321 CMR 10.00 MA Code of Regs 10.70

Current through Register 1531, September 27, 2024

(1) The Director may issue a variance from the requirement of 321 CMR 10.66 that an alteration not reduce the Viability of the Significant Habitat if she finds that:

(a) there are no reasonable conditions or alternatives that would allow the project to proceed in compliance with the regulation;

(b) that avoidance, minimization, or mitigating measures are proposed that will allow the project to be conditioned so as to contribute to the protection of the Viability of the Significant Habitat to support the local population of Endangered or Threatened species involved; and

(c) that the variance is necessary to avoid permit conditions or the denial of a permit that so restricts the use of property as to constitute an unconstitutional taking without compensation.

(2) A request for a variance shall be made in writing and shall include, at a minimum, the following information:

(a) a description of alternatives explored that would allow the project to proceed in compliance with the regulation and an explanation of why each is unreasonable;

(b) a description of the avoidance, minimization, or mitigating measures to be used to contribute to the protection of the Viability of the Significant Habitat to support the population of Endangered or Threatened species involved; and

(c) evidence that the permit conditions or denial of a permit so restricts the use of the land that it constitutes an unconstitutional taking without compensation.

(3) The request for a variance shall be sent to the Director by certified mail or hand delivered and shall not be filed until the applicant first completes the review procedures described at 321 CMR 10.66. The Director shall arrange forthwith for publication of notice of receipt of the request in the Environmental Monitor. After reviewing the information submitted with the request for a variance and any other information submitted by any party within 21 days of the publication of the notice in the Environmental Monitor, the Director shall issue a written decision whether to grant the request.

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