301 CMR 11.05 - ENF Preparation and Filing

(1) Filing and Circulation Requirements. If a Project requires MEPA review in accordance with 301 CMR 11.01(2), the Proponent shall complete an ENF and file it with the Secretary. Prior to or when filing the ENF with the Secretary, the Proponent shall circulate copies of the ENF in accordance with 301 CMR 11.16(2) and publish a Public Notice of Environmental Review in accordance with 301 CMR 11.15(1). The Proponent's failure to circulate the ENF or publish the Public Notice properly shall allow the Secretary to require an extension or repetition of the ENF review. The Secretary may reject an incomplete ENF, in which case the Secretary shall notify the Proponent, who shall file and circulate a new ENF and publish a new Public Notice.

(2) Timely Filing. In all cases, the Proponent shall file the ENF sufficiently prior to Commencement of the Project and any required Agency Action to allow timely compliance with MEPA and 301 CMR 11.00 including analysis of alternatives, consideration of cumulative environmental impacts, and providing meaningful opportunities for public review. In the case of a Project undertaken by an Agency, the Proponent shall ordinarily file the ENF not less than one year prior to the expected Commencement of the Project, and in any event prior to the Agency's finalizing the design or making an irreversible commitment of financial resources to the Project. In the case of a Project that is undertaken by a Person and requires one or more Permits or involves Financial Assistance but does not involve a Land Transfer, the Proponent shall file the ENF at any time prior to but no later than ten Days after filing the first application for a Permit or Financial Assistance. In the case of a Project that is undertaken by a Person and involves a Land Transfer, the Proponent shall file the ENF prior to closing the Land Transfer unless the Land Transfer is not final Agency Action in accordance with 301 CMR 11.02(2). The Proponent may consult with the Secretary for specific advice as to when to file the ENF.

(3) Consultation. Prior to filing the ENF, the Proponent may consult with the Secretary and any Participating Agency to determine any review thresholds the Project may meet or exceed and any Agency Action it may require, and to avoid unnecessary MEPA review if the Project may not be eligible for the required Agency Action.

(4) Environmental Justice Populations.

(a) If a Project requires MEPA review in accordance with 301 CMR 11.01(2) and one or more Environmental Justice Populations are located within the Designated Geographic Area around the Project, the Proponent shall undertake measures to provide public involvement opportunities for such Environmental Justice Populations.

(b) A Proponent shall provide advance notification of a Project, in a form determined by the MEPA Office, to the MEPA Office and organizations and individuals based on recommendations by the EEA Environmental Justice Director, for any Project that is required to file an EIR in accordance with 301 CMR 11.06(7)(b), and either meets or exceeds mandatory EIR thresholds or intends to request that the Secretary allow a Single EIR in accordance with 301 CMR 11.06(8) or a rollover EIR in accordance with 301 CMR 11.06(13). Such advance notification shall be provided no later than 45 Days, and no earlier than 90 Days, prior to filing the ENF.

(c) The Proponent's failure to provide advance notification as required 301 CMR 11.05(4) shall allow the Secretary to require an extension or repetition of the ENF review. The Secretary may also reject an ENF as incomplete if the Proponent has failed to provide advance notification as required, or has undertaken no measures to provide public involvement opportunities for Environmental Justice Populations prior to filing the ENF.

(d) Any project consisting of one single family home shall be exempt from the requirements of this 301 CMR 11.05(4).

(5)

(a) Description of the Project and Potential Impacts. The ENF shall include a concise but accurate description of the Project and its alternatives, identify any review thresholds the Project may meet or exceed and any Agency Action it may require, present the Proponent's initial assessment of potential environmental impacts, propose mitigation measures, indicate whether the Project is reasonably likely to negatively affect any Environmental Justice Population located in whole or in part within the Project's Designated Geographic Area and what measures were taken prior to the filing of the ENF to provide meaningful opportunities for public involvement by such Environmental Justice Populations, and may include a proposed Scope. The ENF shall also identify all languages spoken by 5% or more of residents who identify as not speaking English very well in any census tract that is located in whole or in part within the Designated Geographic Area around the Project. The ENF shall indicate whether the Proponent is requesting that the Secretary allow a single EIR in accordance with 301 CMR 11.06(8), establish a Special Review Procedure in accordance with 301 CMR 11.09, or grant a waiver in accordance with 301 CMR 11.11. The Proponent shall not limit description of the Project or assessment of its potential environmental and public health impacts on account of any jurisdictional or other limitation that may apply to the Scope, if an EIR is required. The ENF shall separately assess potential environmental and public health impacts and proposed mitigation. The ENF shall identify the sources on which the assessments are based.

(b) If the Project is located in landlocked tidelands as defined in 310 CMR 9.02, the ENF shall include an explanation of the Project's impact on the public's right to access, use, and enjoy tidelands that are protected by chapter 91 and shall identify measures to avoid, minimize, or mitigate any adverse impact on those rights. If the Project is located in landlocked tidelands and an area where low groundwater levels have been identified by a municipality or by a state or federal agency as a threat to building foundations, the ENF shall also include an explanation of the Project's impact on groundwater levels and identify and commit to taking measures to avoid, minimize, or mitigate any adverse impact on groundwater levels. The ENF shall also describe the Project's compliance with any municipal regulations designed to protect groundwater levels. The Proponent may combine the information provided under 301 CMR 11.05(4)(b) with the information provided under 301 CMR 13.03.

(c) For Projects in tidelands other than landlocked tidelands, follow 310 CMR 13.00: Adopting Inland Wetland Orders.

(d) The information provided in the ENF shall be designed to facilitate consultation, elicit comments identifying any relevant and significant issues, and identify any additional measures to be used to provide opportunities for public involvement by Environmental Justice Populations located in whole or in part within the Designated Geographic Area around the Project. The Proponent's submission of a proposed Scope with the ENF shall not mean that the Proponent believes an EIR is required or that the Secretary will require an EIR. The Proponent's assessment of potential environmental and public health impacts or proposed Scope shall not limit the Secretary's discretion in determining the Scope.

(6) The ENF. The Secretary shall prescribe the form and content of the ENF, which shall be available from the MEPA Office. The Proponent shall complete the ENF in accordance with 301 CMR 11.00 and any instructions provided on or with the ENF, and shall use an original or full-sized photocopy or other version of the ENF expressly approved by the Secretary. The Secretary may from time-to-time modify the ENF or instructions, provided that the Secretary shall first publish the modified form or instructions in the Environmental Monitor and shall at the same time specify the effective date of the modified ENF or instructions.

(7) Required ENF Attachments. The Proponent shall attach to the ENF an original United States Geologic Survey Map or other location map expressly approved by the Secretary that includes and indicates the Project site, a site plan at an appropriate scale and level of detail, a map depicting all Environmental Justice Populations within five miles of the Project site, and a list of all Agencies and Persons to whom the Proponent circulated the ENF in accordance with 301 CMR 11.16(2).

(8) Expanded ENF. In addition to filing a completed ENF and the required attachments, the Proponent may file more extensive and detailed information describing and analyzing the Project and its alternatives, and assessing its potential environmental and public health impacts and mitigation measures. The Proponent may provide this additional information whenever it is available. The Proponent shall provide this additional information when the Proponent is requesting that the Secretary allow a single EIR in accordance with 301 CMR 11.06(8), establish a Special Review Procedure in accordance with 301 CMR 11.09, or grant a waiver in accordance with 301 CMR 11.11. The Proponent may refer to 301 CMR 11.07(6) for guidance and may consult with the Secretary for specific advice as to the form and content of this additional information. The Secretary shall duly consider this additional information in the ENF, although it shall not limit the Secretary's discretion to determine the Scope. A Proponent who files an expanded ENF requesting a single EIR or Special Review Procedure shall be deemed to consent to an extension of the ENF review period in accordance with 301 CMR 11.06(1) and of the ENF public comment period in accordance with 301 CMR 11.06(3).

(9) Dual Expanded ENF and Proposed EIR. For any Project required to file an EIR in accordance with 301 CMR 11.06(7)(b), the Proponent may file a dual Expanded ENF and Proposed EIR which contains, in addition to a completed ENF and the required attachments, a Proposed EIR following the form and content of 301 CMR 11.07(6) that describes and analyzes the Project and its alternatives, assesses its potential environmental and public health impacts and mitigation measures, and contains the analysis required in 301 CMR 11.07(6)(n). For a Project seeking to qualify in its entirety as an Ecological Restoration Project under the Wetlands Protection Act and implementing regulations at 310 CMR 10.00: Wetlands Protection, the Proponent may provide the analysis in 301 CMR 11.07(6)(n) in a checklist format as determined by the Secretary. The Proponent may file a dual Expanded ENF and Proposed EIR when requesting that the Secretary allow a rollover EIR in accordance with 301 CMR 11.06(13). A Proponent who files a dual Expanded ENF and Proposed EIR requesting a rollover EIR shall be deemed to consent to an extension of the ENF review period in accordance with 301 CMR 11.06(1) and of the ENF public comment period in accordance with 301 CMR 11.06(3).

(10) Voluntarily Filed ENF. The Proponent may voluntarily file an ENF and, with the Secretary's consent, undergo MEPA review for a Project that does not meet or exceed any review thresholds. Once the Secretary publishes the ENF in the Environmental Monitor in accordance with 301 CMR 11.15(2), the Proponent may withdraw the ENF only with the Secretary's consent.

(11) Enforcement Actions. If an Agency's ability to undertake an action enforcing its statutory or regulatory obligations is impeded by the failure of a Proponent to file an ENF, the Agency may, with the consent of the Secretary and after 30 Days prior written notice to the Proponent, file an ENF on behalf of the Proponent.

Notes

301 CMR 11.05

Amended by Mass Register Issue 1459, eff. 1/1/2022.