Code of Massachusetts Regulations
980 CMR - ENERGY FACILITIES SITING COUNCIL
Title 980 CMR 11.00 - Licensing Of Hydropower Generating Facilities
Section 11.01 - General
Current through Register 1531, September 27, 2024
(1) Scope. 980 CMR 11.00 shall apply to actions taken by the Council under M.G.L. c. 164, § 69H1/2, which deals with licensing of hydropower generating facilities.
(2) Statutory Authority. 980 CMR 11.00 is promulgated pursuant to M.G.L. c. 164, § 69H1/2 and M.G.L. c. 30A, §§ 2 and 9.
(3) Purpose. The purpose of 980 CMR 11.00 is to implement the policy and provisions of M.G.L. c. 164, § 69H1/2 which requires the Energy Facilities Siting Council to coordinate the permitting and licensing of hydropower generating facilities by simplifying requirements for permits and licenses in Massachusetts. To this end, the Council has established preliminary notification forms and other forms to be employed for permitting and licensing; will conduct pre-licensing conferences between developers and these agencies jointly with the Secretary of the Executive Office of Environmental Affairs; will assist in resolving disputes between developers and agencies concerning the form, content, level of detail and schedules of information and data requirements; will increase cooperation between the state and federal licensing agencies and will serve as a forum for final administrative appeal for any party aggrieved by a permitting and licensing agency's action or failure to act.
A developer should use the procedures established by this new hydropower statute and regulations. If he does not enter and follow this process, starting with filing one of the new forms - the Hydropower Preliminary Notification Form or the Environmental Notification Form and Hydropower Supplement, he cannot use the appeal section, 980 CMR 11.05.
It is to be noted that 980 CMR 11.00, promulgated under M.G.L. c. 164, § 69H1/2, do not affect the responsibilities of the Executive Office of Environmental Affairs under M.G.L. c. 30, §§ 62 through 62H. They do not affect deadlines for final orders imposed upon the Department of Environmental Quality Engineering under M.G.L. c. 131, § 40. Nor do they affect the "federal consistency" review authority of the Massachusetts Coastal Zone Management Office under 16 U.S.C. Sec. 1451 et seq.
Developers who have already begun the state licensing process when 980 CMR 11.00 become effective may utilize the procedures of 980 CMR 11.00, but cannot utilize the appeal section, 980 CMR 11.05, unless they have gone through an informal Council-run pre-licensing conference similar to that described in 980 CMR 11.03(6).
(4) Application of 980 CMR 2.00 and 1.00. 980 CMR 2.00 shall apply to 980 CMR 11.00 except to the extent that 980 CMR 2.00 and 980 CMR 11.00 are in conflict. In the event of a conflict, 980 CMR 11.00 shall prevail over 980 CMR 2.00. For the application of 980 CMR 1.00 to appeals under 908 CMR 11.00, see 980 CMR 11.05(2).
(5) Application of 980 CMR 11.00 to Final Orders of the Department of Environmental Protection. Notwithstanding other provisions of 980 CMR 11.00, the Department of Environmental Quality Engineering shall act on a request for a final order within the time limitations specified by M.G.L. c. 131, § 40.
(6) Definitions. For the purpose of 980 CMR 11.00 the following definitions shall apply unless the context or subject matter requires and specifies a different interpretation.
Action or failure to act occurs when:
Agency means one of the "permitting and licensing agencies" as defined in M.G.L. c. 164, § 69H1/2. "Permitting and licensing agencies" are defined there as "all agencies, authorities, and departments of the Commonwealth, and local conservation commissions whose approval, order, order of conditions, permit, license, certificate, or permission in any form is required prior to or for construction of a hydropower generating facility, except the Secretary of Environmental Affairs acting under the provisions of M.G.L. c. 30, §§ 62 through 62H and shall include, but not be limited to, the Department of Environmental Protection including the Division of Water Pollution Control, the Department of Environmental Management, the Department of Fisheries, Wildlife and Recreational Vehicles, the Conservation Commission with jurisdiction over the proposed site, the Massachusetts Historical Commission, the Department of Public Utilities, and any other agency, authority, or department of the Commonwealth, county, city or town government, as may from time to time be so designated by the Energy Facilities Siting Council."
Appeal means an appeal under 980 CMR 11.05 from an action or failure to act on the part of a permitting and licensing agency.
Conduit means an enclosed water conveyance facility used primarily as a water supply aqueduct or sewer pipe.
Dam means any structure for impounding water which is usable for electric or mechanical power generation, if the impoundment supplies all, or the substantial part of, the total hydraulic pressure (head) developed for such generation.
Days means calender days; provided that in computing time periods under these regulations, such periods shall exclude the day of the event which triggers the time period. It is further provided that should the last day of a period fall on a Saturday, Sunday, legal holiday or declared state of emergency day, such period shall be extended to the close of business on the next business day.
Developer means any person, corporation, partnership, municipality, utility or other entity which is attempting to obtain the permits and licenses required prior to or for the construction or start-up of a hydropower generating facility.
ENF is an Environmental Notification Form as defined in the Massachusetts Environmental Policy Act regulations under M.G.L. c. 30, §§ 62 through 62H.
Existing Dam means any dam which does not require any construction or enlargement of impoundment structures (other than repairs or reconstruction) in connection with the installment of any small hydropower generating facility.
Flashboards means any appurtenant structure to a dam consisting of a set of boards or gates attached to the top, or crest, of such damso as to impound water to a higher elevation than the dam alone, but being designed to bend or otherwise fail or allow removal or mechanical lowering of such boards or gates under conditions of high flow of water, or water and ice, in the impounded waterway.
Hearing Officer means any person designated by the Council or its Executive Director to conduct hearings of appeals pursuant to 980 CMR 11.05.
Hydropower Generating Facility means any electric or mechanical power generating unit whose power source is water flow and which is not a facility as defined in M.G.L. c. 164, § 69G.
HPNF is the Hydropower Preliminary Notification Form established by the Council as the developer's preliminary filing form under 980 CMR 11.04.
Hydropower Supplement is the form established by the Council to be filed along with the ENF as the developer's preliminary filing form under 980 CMR 11.03.
Land Subject to Flooding is as defined in M.G.L. c. 131, § 40 and implementing regulations.
MEPA Unit is that branch of the Executive Office of Environmental Affairs which implements the Massachusetts Environmental Policy Act and regulations thereunder.
Pre-licensing Conference means the meeting between the developer and the agencies to be called, noticed and conducted under 980 CMR 11.03(4) to 11.03(6). Whenever possible, this conference will be combined with the MEPA "scoping session", held under M.G.L. c. 30, §§ 62 through 62H and implementing regulations, in a single meeting.
Waterway is as defined in M.G.L. c. 91 and implementing regulations.
Wetland is a wetland, swamp, marsh, salt marsh, or flat as each term is defined in M.G.L. c. 131, § 40 and implementing regulations.
