301 CMR 11.12 - Agency Responsibilities and Section 61 Findings
(1) Review of Agency Programs. An Agency shall periodically review and evaluate its own programs, regulations, and policies and determine the potential environmental impacts of its implementation of its programs, regulations, and policies, and ensure that it and each applicant for a Permit, Financial Assistance, or a Land Transfer undertake due compliance with MEPA and 301 CMR 11.00.
(2) Determination by an Agency.
(a) Prior to Agency Action. An Agency shall determine whether MEPA and 301 CMR 11.00 require MEPA review whenever it expects to take Agency Action on a Project. MEPA review is required only if the Project is subject to MEPA jurisdiction and either it meets or exceeds one or more review thresholds or the Secretary requires fail-safe review.
(b) Proponent's Demonstration. A Participating Agency may require the Proponent to demonstrate that a Project does not meet or exceed any review thresholds or that there has been due compliance with MEPA and 301 CMR 11.00, prior to granting a Permit, providing Financial Assistance, or closing a Land Transfer.
(c) Agency's Finding . If an Agency determines that MEPA review is not required, the Agency shall, if requested by the Secretary or an applicant for a Permit, Financial Assistance, or a Land Transfer, or the Agency may, on its own initiative, make a finding regarding the determination that specifies any provisions or requirements of MEPA or 301 CMR 11.00 on which the determination is based, and shall furnish a copy of the finding to the Secretary or applicant upon request. An Agency's making a finding and furnishing a copy to the Secretary shall not mean that the Secretary has issued an advisory opinion in accordance with 301 CMR 11.01(6). The Agency's finding shall not limit the Secretary's discretion in issuing an advisory opinion.
(3) Prerequisites to Agency Action. If an Agency may take Agency Action on a Project, it shall:
(a) determine in a timely manner whether the Project requires MEPA review in accordance with 301 CMR 11.01(2);
(b) review any review documents for the Project and participate in MEPA review in accordance with 301 CMR 11.06(4) and 11.08(7);
(c) take Agency Action only in accordance with 301 CMR 11.12(4); and
(d) in the case of a Project for which the Secretary required an EIR, prepare Section 61 Findings prior to or when taking Agency Action in accordance with 301 CMR 11.12(5).
(4) Timing of Agency Action.
(a) Earliest Time for Agency Action. Unless otherwise required by other applicable statutes or regulations, an Agency may not take Agency Action on a Project that is subject to MEPA jurisdiction and meets or exceeds any review thresholds, unless and until the Secretary has determined that an EIR is not required or the Secretary has determined that the single, rollover or final EIR is adequate and 60 Days have elapsed following the publication of the notice of the availability of the single or final EIR in the Environmental Monitor.
(b) Latest Time for Agency Action. Unless otherwise required by other applicable statutes or regulations, a Participating Agency shall take Agency Action by 90 Days from the latest of:
1. the publication of the notice in the Environmental Monitor of the Secretary's determination that an EIR is not required;
2. the publication of the notice of the availability of the single or final EIR in the Environmental Monitor; or
3. the filing of a complete application for a Permit or Financial Assistance.
(5) Section 61 Findings. In accordance with M.G.L. c. 30, § 61, any Agency that takes Agency Action on a Project for which the Secretary required an EIR shall determine whether the Project is likely, directly or indirectly, to cause any Damage to the Environment and make a finding describing the Damage to the Environment and confirming that all feasible measures have been taken to avoid or minimize the Damage to the Environment.
(a) Contents of Section 61 Findings. In all cases, the Agency shall base its Section 61Findings on the EIR, including all studies, analyses and assessments contained therein regarding environmental and public health impacts and effects on Environmental Justice Populations, and shall specify in detail: all feasible measures to be taken by the Proponent or any other Agency or Person to avoid Damage to the Environment or, to the extent Damage to the Environment cannot be avoided, to minimize and mitigate Damage to the Environment to the maximum extent practicable; if applicable, any and all actions to reduce the potential for unfair or inequitable effects upon an Environmental Justice Population; an Agency or Person responsible for funding and implementing mitigation measures, if not the Proponent; and the anticipated implementation schedule that will ensure that mitigation measures shall be implemented prior to or when appropriate in relation to environmental impacts. In accordance with M.G.L. c. 30, § 61, the reasonably foreseeable climate change impacts of a project, including its additional GHG emissions, and effects, such as predicted sea level rise, are within the subject matter of any required Permit, Land Transfer or Financial Assistance.
(b) Section 61 Findings and Agency Action. Provided that mitigation measures are specified as conditions to or restrictions on the Agency Action, the Agency shall:
1. make its Section 61 Findings part of the Permit, contract or other document allowing or approving the Agency Action, which may include additional conditions to or restrictions on the Project in accordance with other applicable statutes and regulations; or
2. refer in its Section 61 Findings to applicable sections of the relevant Permit, contract or other document approving or allowing the Agency Action.
(c) Subject Matter Jurisdiction Limitations on Section 61 Findings. In the case of a Project undertaken by a Person that requires one or more Permits or a Land Transfer but does not involve Financial Assistance, any Participating Agency shall limit its Section 61 Findings, or any mitigation measures specified as conditions to or restrictions on the Agency Action, to those aspects of the Project that are within the subject matter of any required Permit or within the area subject to a Land Transfer.
(d) Proposed Section 61 Findings. Proposed Section 61 Findings prepared by a Proponent in accordance with 301 CMR 11.07(6)(k) are intended to assist a Participating Agency in fulfilling its obligations in accordance with M.G.L. c. 30, §§ 61 and 62K. The Proponent's preparation of Proposed Section 61 Findings shall not mean that a Participating Agency has made its own Section 61 Findings. Except in accordance with 301 CMR 11.06(4) and 11.08(7), the Proponent's Proposed Section 61 Findings shall not limit an Agency's discretion in making its own Section 61 Findings.
(e) Filing and Distribution of Section 61 Findings. The Proponent and a Participating Agency shall each file a copy of the Section 61 Findings with the Secretary, who shall publish notice of the availability of the Section 61 Findings in the next Environmental Monitor in accordance with 301 CMR 11.15(2), and shall each circulate copies of the Section 61 Findings to any Agency or Person upon request.
(6) Agency Action Taken without MEPA Compliance. If an Agency takes Agency Action without due compliance with MEPA and 301 CMR 11.00, the Secretary may thereafter require MEPA review, and may require the Agency to reconsider the Agency Action and any conditions thereof following completion of MEPA review.
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