(4)
Notices of
Intent.
(a) Any person who
proposes to do work that will remove, fill, dredge or alter any Area Subject to
Protection under M.G.L. c. 131 § 40 shall file a Notice of Intent on Form
3 and other application materials in accordance with the submittal requirements
set forth in the
General Instructions for Completing Notice of Intent
(Form 3). If the applicant is not a landowner of the Project Locus,
the applicant shall obtain written permission from a landowner(s) prior to
filing a Notice of Intent for proposed work, except for work proposed on Great
Ponds or Commonwealth tidelands. Two copies of the completed Notice of Intent
with supporting plans and documents shall be sent by certified mail or hand
delivery to the conservation commission, and one copy of the same shall be sent
concurrently in like manner to the Department. If the project requires a 401
Water Quality Certification pursuant to
314 CMR 9.00: 401
Water Quality Certification for Discharge of Dredged or Fill Material,
Dredging, and Dredged Material Disposal in Waters of the United States Within
the Commonwealth and/or is a water-dependent use project that requires
a permit, license or written approval pursuant to
310 CMR
9.00: Waterways the applicant may
file a Notice of Intent that is a Combined Application. In that event, an
additional copy of the Combined Application shall be sent to the Department's
Boston Office.
Concurrent with the filing of the Notice of Intent, the
applicant shall provide notification to all Abutters. Notwithstanding the
foregoing, the requirement to provide Abutter notification is subject to the
following limits. An applicant is required to provide notification to an
Abutter whose Lot is separated from the Project Locus by a public or private
street or body of water only if the Abutter's Lot is within 100 feet from the
property line of the Project Locus. An applicant who proposes work solely
within Land under Water Bodies or Waterways, or solely within a Lot with an
area greater than50 acres, is required to provide notification only to Abutters
whose Lot is within one hundred feet from the Project Site. An applicant
proposing a Linear- shaped Project greater than 1,000 feet in length is
required to provide notification only to Abutters whose Lot is within 1,000
feet from the Project Site. Abutter notification is not required for projects
proposed by the Massachusetts Department of Transportation Highway Division
pursuant to St. 1993, c. 472 as approved on January 13, 1994. The applicant
shall provide notification at the mailing addresses shown on the most recent
applicable tax list from the municipal assessor. Notification shall be at the
applicant's expense. The notification shall state where within the municipality
copies of the Notice of Intent may be examined or obtained and where
information on the date, time, and location of the public hearing may be
obtained. To ensure compatibility with local procedures, applicants must comply
with any rules of the local conservation commission pertaining to the location
for examining or obtaining the Notice of Intent and information about the
hearing. The applicant shall provide written notification to all Abutters
required to be notified by hand delivery or certified mail, return receipt
requested, or by certificates of mailing. Mailing at least seven days prior to
the public hearing shall constitute timely notice. The applicant shall present
either the certified mail receipts or certificate of mailing receipts for all
Abutters at the beginning of the public hearing. The presentation of the
receipts for all abutters required to be notified as identified on the tax list
shall constitute compliance with Abutter notification requirements. The
conservation commission shall determine whether the applicant has complied with
Abutter notification requirements. The Department will dismiss Requests for
Action based on allegations of failure to comply with Abutter notification
requirements, absent a clear showing by an Abutter seeking Department action
that the applicant failed to notify the Abutter. An applicant submitting a
Notice of Intent for a project that is also subject to
310 CMR
9.00: Waterways and/or
314 CMR 9.00: 401
Water Quality Certification for Discharge of Dredged or Fill Material,
Dredging, and Dredged Material Disposal in Waters of the United States Within
the Commonwealth may provide joint public notice by appending to the
public notice required by
310 CMR
9.13: Public Notice and Participation
Requirements and/or
314 CMR
9.05: Submission of an
Application, as applicable, notification that a Notice of Intent is
pending before the issuing authority, provided the notification complies with
310 CMR 10.05(4). An applicant may provide a joint public notice, even if the
Notice of Intent is not a Combined Application. (b) For certain purposes, other
forms of Notices may be used.
1. For
certain projects, applicants may at their option use the Abbreviated Notice of
Intent. This latter form may only be used when all three of the following
circumstances exist:
a. the proposed work is
within the Buffer Zone, as defined in
310 CMR
10.04, or
within Land Subject to Flooding, as defined in
310 CMR
10.57(2) or within the
Riverfront Area, as defined in
310 CMR
10.58.
b. the proposed work will disturb less than
1,000 square feet of surface area within the Buffer Zone and/or Land Subject to
Flooding or less than 1000 square feet of riverfront area, provided the work
conforms to
310 CMR
10.58(4)(c)2.a.
c. the proposed work will not require U.S.
Army Corps of Engineer Section 10 or Section 404 permits, or a license from the
Division of Waterways pursuant to M.G.L. c. 91.
2. To establish the extent of bordering
vegetated wetland and/or other resource areas on land subject to protection
under M.G.L. c. 131, § 40, applicants may use the Abbreviated Notice of
Resource Area Delineation for the confirmation of a delineated boundary of
bordering vegetated wetlands and/or other resource areas on the site, prior to
filing a Notice of Intent for proposed work. Alternatively, the boundary of
bordering vegetated wetland or other resource areas may be determined through
the filing of a Notice of Intent.
3. To confirm the boundaries of resource
areas applicants shall use the Abbreviated Notice of Resource Area
Delineation.
(c) Upon
receipt of the application materials referred to in 310 CMR
10.05(4)(a), the
Department shall issue a file number. The designation of a file number shall
not imply that the plans and supporting documents have been judged adequate for
the issuance of an Order, but only that copies of the minimum submittal
requirements contained in the General Instructions have been filed.
(d) In the event that only a portion of a
proposed project or activity lies within an Area Subject to Protection under
M.G.L. c. 131, § 40 or within the Buffer Zone, and the remainder of the
project or activity lies outside those areas, only that portion within those
areas must be described in the detail called for by the General Instructions
and Form 3 and 4; provided, however, that in such circumstances the Notice of
Intent shall also contain a description and calculation of peak flow and
estimated water quality characteristics of discharge from a point source (both
closed and open channel) when the point of discharge falls within an Area
Subject to Protection under M.G.L. c. 131, § 40 or within the Buffer Zone.
Notwithstanding the foregoing, when the issuing authority has
determined that an activity outside the Areas Subject to Protection under
M.G.L. c. 131, § 40 and outside the Buffer Zone has in fact altered an
Area Subject to Protection under M.G.L. c. 131, § 40, it may require such
plans, supporting calculations and other documentation as are necessary to
describe the entire activity.
(e) The requirement under M.G.L. c. 131,
§ 40 to obtain or apply for all obtainable permits, variances and
approvals required by local by-law with respect to the proposed activity shall
mean only those which are feasible to obtain at the time the Notice of Intent
is filed. Permits, variances, and approvals required by local by-law may
include, among others, zoning variances, permits from boards of appeals,
permits required under floodplain or wetland zoning by-laws and gravel removal
permits. They do not include, among others, building permits under the State
Building Code, M.G.L. c. 23B, § 16, or subdivision control approvals under
the State Subdivision Control Law, M.G.L. c. 41, §§ 81K through 81GG,
which are issued by local authorities. When an applicant for a comprehensive
permit (under M.G.L. c. 40B, §§ 20 through 23) from a board of
appeals has received a determination from the board granting or denying the
permit and, in the case of a denial, has appealed to the Housing Appeals
Committee (established under M.G.L. c. 23B, § 5A), said applicant shall be
deemed to have applied for all permits obtainable at the time of
filing.
(f) If the issuing
authority rejects a Notice of Intent because of a failure to obtain or apply
for all permits, variances and approvals required by local by-law, it shall
specify in writing the permit, variance or approval that has not been applied
for. A ruling by the municipal agency within whose jurisdiction the issuance of
the permit, variance or approval lies, or by the town counsel or city
solicitor, concerning the applicability or obtainability of such permit,
variance or approval shall be accepted by the issuing authority. In the absence
of such a ruling, other evidence may be accepted.
(g) A Notice of Intent shall expire where the
applicant has failed to diligently pursue the issuance of a Final Order in
proceedings under
310 CMR
10.00. A Notice of Intent shall be presumed to have
expired two years after the date of filing unless the applicant submits
information showing that (a) good cause exists for the delay of proceedings
under
310 CMR
10.00; and (b) the applicant has continued to pursue
the project diligently in other forums in the intervening period; provided,
however, that unfavorable financial circumstances shall not constitute good
cause for delay. No Notice of Intent shall be deemed expired under 310 CMR
10.05 when an adjudicatory hearing is pending and when the applicant has
provided all information necessary to continue with the prosecution of the
case.
Notwithstanding the provisions contained in
310 CMR 10.10, 310
CMR 10.05(4)(g) shall apply to any Notice of Intent whenever filed.
(h) The issuing authority may
require that supporting plans and calculations be prepared and stamped by a
registered professional engineer (PE) when, in its judgment, the complexity of
the proposed work warrants this professional certification. The issuing
authority may also require the preparation of supporting materials by other
professionals including, but not limited to, registered landscape architect,
registered land surveyor, environmental scientist, geologist or hydrologist
when in its judgment the complexity of the proposed work warrants the relevant
specialized expertise. The issuing authority may require a delineation in an
Abbreviated Notice of Resource Area Delineation to be performed by a
professional with relevant specialized expertise. If the Notice of Intent is a
Combined Application, the supporting plans and calculations shall also conform
to the requirements of
310 CMR
9.11(3)(b)
and
314 CMR
9.05(1):
Application
Requirements to the extent they are applicable.
(6)
Orders of
Conditions Regulating Work and Orders of Resource Area Delineation
.
(a) Within 21 days of the close of the
public hearing, the conservation commission shall either:
1. make a determination that the area on
which the work is proposed to be done, or which the proposed work will remove,
fill, dredge or alter, is not significant to any of the interests identified in
M.G.L. c. 131, § 40, and shall so notify the applicant and the Department
on Form 6;
2. make a determination
that the area on which the work is proposed to be done, or which the proposed
work will remove, fill, dredge or alter, is significant to one or more of the
interests identified in M.G.L. c. 131, § 40, and shall issue an Order of
Conditions for the protection of said interest(s), on Form 5. If the issuing
authority also determines that the project meets the eligibility criteria for
issuance of a Restoration Order of Conditions set forth in the applicable
provisions of
310 CMR
10.00, the Order of Conditions for the project shall
be a Restoration Order of Conditions; or
3. make a determination that bordering
vegetated wetland and other resource areas subject to jurisdiction have been
identified and delineated according to the definitions in
310 CMR
10.00 and shall issue an Order of Resource Area
Delineation to confirm or modify the delineations submitted. The Order of
Resource Area Delineation shall be effective for three years.
The standards and presumptions to be used by the issuing
authority in determining whether an area is significant to the interests
identified in M.G.L. c. 131, § 40, are found in
310 CMR 10.21
through
10.37
(for coastal wetlands) and 10.51 through 10.60 (for inland
wetlands).
(b) The
Order of Conditions shall impose such conditions as are necessary to meet the
performance standards set forth in
310 CMR
10.21
through
10.60
for the protection of those areas found to be significant to one or more of the
interests identified in M.G.L. c. 131, § 40 and the Stormwater Management
Standards provided in 310 CMR
10.05(6)(k) through (q). The Order shall prohibit
any work or any portion thereof that cannot be conditioned to meet said
standards.
The Order shall impose conditions only upon work or the
portion thereof that is to be undertaken within an Area Subject to Protection
under M.G.L. c. 131, § 40 or within the Buffer Zone. The Order shall
impose conditions to control erosion and sedimentation within resource areas
and the Buffer Zone. The Order shall impose conditions setting limits on the
quantity and quality of discharge from a point source (both closed and open
channel), when said limits are necessary to protect the interests identified in
M.G.L. c. 131, § 40; provided, however, that the point of discharge falls
within an Area Subject to Protection under M.G.L. c. 131, § 40 or within
the Buffer Zone, and further provided that said conditions are consistent with
the limitations set forth in
310 CMR
10.03(4).
Notwithstanding the foregoing, when the issuing authority has
determined that an Activity outside the Areas Subject to Protection under
M.G.L. c. 131, § 40 and outside the Buffer Zone has in fact altered an
Area Subject to Protection under M.G.L.c. 131,§ 40, it shall impose such
conditions on any portion of the activity as are necessary to contribute to the
protection of the interests identified in M.G.L.c. 131, § 40.
When the issuing authority determines that a project meets
the eligibility criteria for a Restoration Order of Conditions, the issuing
authority shall impose only the conditions set forth in the applicable
provisions of
310 CMR
10.00 for that Restoration Order of Conditions. A
Restoration Order of Conditions may reference the plans and specifications
approved by the issuing authority. If the Department issues a Combined Permit,
the Department may append to the Restoration Order of Conditions any conditions
that the Department has authority to impose pursuant to
310 CMR
9.00: Waterways and
314 CMR 9.00: 401
Water Quality Certification for Discharge of Dredged or Fill Material,
Dredging, and Dredged Material Disposal in Waters of the United States Within
the Commonwealth to the extent they are applicable. The requirement
that an Order shall impose conditions only upon work or the portion thereof
that is to be undertaken within an Area Subject to Protection under M.G.L. c.
131, § 40, or within the Buffer Zone does not restrict the authority of
the Department to append to a Combined Permit any conditions that the
Department has the authority to impose under
310 CMR
9.00: Waterways and
314 CMR 9.00: 401
Water Quality Certification for Discharge of Dredged or Fill Material,
Dredging, and Dredged Material Disposal in Waters of the United States Within
the Commonwealth to the extent they are applicable.
(c) If the conservation commission finds that
the information submitted by the applicant is not sufficient to describe the
site, the work or the effect of the work on the interests identified in M.G.L.
c. 131, § 40, it may issue an Order prohibiting the work. The Order shall
specify the information which is lacking and why it is necessary.
(d) Except as provided in M.G.L. c. 131,
§ 40 for maintenance dredging, an Order of Conditions, Order of Resource
Area Delineation, or Notification of Non-significance shall be valid for three
years from the date of its issuance; provided, however, that the issuing
authority may issue an Order for up to five years where special circumstances
warrant and where those special circumstances are set forth in the Order. An
Order of Resource Area Delineation shall be valid for three years, and may be
extended by the issuing authority for one or more years up to three years each
under 310 CMR
10.05(8) upon written confirmation by a professional with
relevant expertise that the resource area delineations remain accurate. (e) The
Order or Notification of Non-significance shall be signed by a majority of the
conservation commission and shall be mailed by certified mail (return receipt
requested) or hand delivered to the applicant or his or her agent or attorney,
and a copy mailed or hand delivered at the same time to the Department. If the
Order imposes conditions necessary to meet any performance standard contained
in
310 CMR
10.37 or
10.59,
a copy shall be mailed or hand delivered at the same time to the Massachusetts
Natural Heritage and Endangered Species Program.
(f) A copy of the plans describing the work
and the Order shall be kept on file by the conservation commission and by the
Department, and shall be available to the public at reasonable hours.
(g) Prior to the commencement of any work
permitted or required by the Final Order, including a Final Order of Resource
Area Delineation, or Notification of Non-significance, the Order or
Notification shall be recorded in the Registry of Deeds or the Land Court for
the district in which the land is located, within the chain of title of the
affected property. In the case of recorded land, the final order shall also be
noted in the Registry's Grantor Index under the name of the owner of the land
upon which the proposed work is to be done. In the case of registered land, the
final order shall also be noted on the Land Court Certificate of Title of the
owner of the land upon which the proposed work is to be done. Certification of
recording shall be sent to the issuing authority on the form at the end of Form
5. If work is undertaken without the applicant first recording the Order, the
issuing authority may issue an Enforcement Order (Form 9) or may itself record
the Order of Conditions.
(h)
Notwithstanding the provisions contained in
310 CMR
10.10(1) and
(3), any Order of Conditions not containing
an expiration date, issued for work proposed in a Notice of Intent filed under
M.G.L. c. 131, § 40 prior to November 18, 1974, shall expire on April 17,
1986.
(i) An Order of Conditions
does not grant any property rights or any exclusive privileges; it does not
authorize any injury to private property or invasion of property
rights.
(j) Failure to comply with
conditions stated in the Order and with all related statutes and other
regulatory measures shall be deemed cause to revoke or modify the Order of
Conditions.
(k) No Area Subject to
Protection under M.G.L. c. 131, § 40 other than bordering land subject to
flooding, isolated land subject to flooding, land subject to coastal storm
flowage, or riverfront area may be altered or filled for the impoundment or
detention of stormwater, the control of sedimentation or the attenuation of
pollutants in stormwater discharges, and the applicable performance standards
shall apply to any such alteration or fill. Except as expressly provided,
stormwater runoff from all industrial, commercial, institutional, office,
residential and transportation projects that are subject to regulation under
M.G.L. c. 131, § 40 including site preparation, construction, and
redevelopment and all point source stormwater discharges from said projects
within an Area Subject to Protection under M.G.L. c. 131, § 40 or within
the Buffer Zone shall be provided with stormwater best management practices to
attenuate pollutants and to provide a setback from the receiving waters and
wetlands in accordance with the following Stormwater Management Standards as
further defined and specified in the Massachusetts Stormwater Handbook:
1. No new stormwater conveyances
(e.g. outfalls) may discharge untreated stormwater directly to
or cause erosion in wetlands or waters of the Commonwealth.
2. Stormwater management systems shall be
designed so that post-development peak discharge rates do not exceed
pre-development peak discharge rates. This Standard may be waived for
discharges to land subject to coastal storm flowage as defined in
310 CMR
10.04.
3. Loss of annual recharge to ground water
shall be eliminated or minimized through the use of infiltration measures
including environmentally sensitive site design, low impact development
techniques, stormwater best management practices and good operation and
maintenance. At a minimum, the annual recharge from the postdevelopment site
shall approximate the annual recharge from the pre-development conditions based
on soil type.
This Standard is met when the stormwater management system is
designed to infiltrate the required recharge volume as determined in accordance
with the Massachusetts Stormwater Handbook.
4. Stormwater management systems shall be
designed to remove 80% of the average annual post-construction load of Total
Suspended Solids (TSS). This Standard is met when:
a. Suitable practices for source control and
pollution prevention are identified in a long-term pollution prevention plan
and thereafter are implemented and maintained;
b. Structural stormwater best management
practices are sized to capture the required water quality volume determined in
accordance with Massachusetts Stormwater Handbook; and
c. Pretreatment is provided in
accordance with the Massachusetts Stormwater
Handbook.
5. For
land uses with higher potential pollutant loads, source control and pollution
prevention shall be implemented in accordance with the Massachusetts Stormwater
Handbook to eliminate or reduce the discharge of stormwater runoff from such
land uses to the maximum extent practicable. If through source control and/or
pollution prevention, all land uses with higher potential pollutant loads
cannot be completely protected from exposure to rain, snow, snow melt and
stormwater runoff, the proponent shall use the specific structural stormwater
BMPs determined by the Department to be suitable for such use as provided in
the Massachusetts Stormwater Handbook. Stormwater discharges from land uses
with higher potential pollutant loads shall also comply with the requirements
of the Massachusetts Clean Waters Act, M.G.L. c. 21, §§ 26 through
53, and the regulations promulgated thereunder at
314 CMR
3.00:
Surface
Water Discharge Permit Program,
314 CMR
4.00:
Massachusetts Surface Water Quality Standards and
314 CMR
5.00:
Ground
Water Discharge Permit Program.
6. Stormwater discharges within the Zone II
or Interim Wellhead Protection Area of a public water supply and stormwater
discharges near or to any other critical area require the use of the specific
source control and pollution prevention measures and the specific structural
stormwater best management practices determined by the Department to be
suitable for managing discharges to such area as provided in the Massachusetts
Stormwater Handbook. A discharge is near a critical area, if there is a strong
likelihood of a significant impact occurring to said area, taking into account
site-specific factors. Stormwater discharges to Outstanding Resource Waters and
Special Resource Waters shall be removed and set back from the receiving water
or wetland and receive the highest and best practical method of treatment. A
"storm water discharge" as defined in
314 CMR
3.04(2)(a) or (b) to an
Outstanding Resource Water or Special Resource Water shall comply with
314 CMR
3.00:
Surface
Water Discharge Permit Program and
314 CMR
4.00:
Massachusetts Surface Water Quality Standards. Stormwater
discharges to a Zone I or Zone A are prohibited, unless essential to the
operation of the public water supply.
7. A redevelopment project is required to
meet the following Stormwater Management Standards only to the maximum extent
practicable: Standard 2, Standard 3, and the pretreatment and structural
stormwater best management practice requirements of Standards 4, 5 and 6.
Existing stormwater discharges shall comply with Standard 1 only to the maximum
extent practicable. A redevelopment project shall also comply with all other
requirements of the Stormwater Management Standards and improve existing
conditions.
8. A plan to control
construction related impacts including erosion, sedimentation and other
pollutant sources during construction and land disturbance activities
(construction period erosion, sedimentation and pollution prevention plan)
shall be developed and implemented.
9. A long-term operation and maintenance plan
shall be developed and implemented to ensure that the stormwater management
system functions as designed.
10.
All illicit discharges to the stormwater management system are
prohibited.
(l) The
Stormwater Management Standards shall not apply to:
1. A single-family house;
2. Housing development and redevelopment
projects comprised of detached singlefamily dwellings on four or fewer lots,
provided that there are no stormwater discharges that may potentially affect a
critical area;
3. Multi-family
housing development and redevelopment projects, with four or fewer units,
including condominiums, cooperatives, apartment buildings and townhouses,
provided that there are no stormwater discharges that may potentially affect a
critical area; and
4. Emergency
repairs to roads or their drainage systems.
(m) The Stormwater Management Standards shall
apply to the maximum extent practicable to the following:
1. Housing development and redevelopment
projects comprised of detached singlefamily dwellings on four or fewer lots
that have a stormwater discharge that may potentially affect a critical
area;
2. Multi-family housing
developments and redevelopment projects with four or fewer units, including
condominiums, cooperatives, apartment buildings, and townhouses, that have a
stormwater discharge that may potentially affect a critical area;
3. Housing development and redevelopment
projects comprised of detached singlefamily dwellings, on five to nine lots,
provided there is no stormwater discharge that may potentially affect a
critical area; and
4 Multi-family
housing development and redevelopment projects, with five to nine units,
including condominiums, cooperatives, apartment buildings and townhouses,
provided there is no stormwater discharge that may potentially affect a
critical area.
5. Marinas and
boatyards provided that the hull maintenance, painting and service areas are
protected from exposure to rain, snow, snowmelt, and stormwater runoff;
and
6. Footpaths bikepaths and
other paths for pedestrian and/or nonmotorized vehicle access.
(n) For phased projects the
determination of whether the
Stormwater Management Standards
apply is made on the entire project as a whole including all phases. When
proposing a development or redevelopment project subject to the
Stormwater Management Standards, proponents shall consider
environmentally sensitive site design that incorporates low impact development
techniques in addition to stormwater best management practices. (o) Project
proponents seeking to demonstrate compliance with some of all of the Stormwater
Management Standards to the maximum extent practicable shall demonstrate that:
1. They have made all reasonable efforts to
meet each of the Standards;
2. They
have made a complete evaluation of possible stormwater management measures
including environmentally sensitive site design and low impact development
techniques that minimize land disturbance and impervious surfaces, structural
stormwater best management practices, pollution prevention, erosion and
sedimentation control and proper operation and maintenance of stormwater best
management practices; and
3. If
full compliance with the Standards cannot be achieved, they are implementing
the highest practicable level of stormwater management.
(p) Notwithstanding anything to the contrary
in
310 CMR
10.00, stormwater runoff from all industrial,
commercial, institutional, office, residential and transportation projects
subject to regulation under M.G.L. c. 131, § 40, including site
preparation, construction, and redevelopment, and all point source stormwater
discharges from said projects within an Area Subject to Protection under M.G.L.
c. 131, § 40, or within the Buffer Zone, for which a Notice of Intent or
Notice of Resource Area Delineation has been filed prior to January 2, 2008
shall be managed according to the
Stormwater Management
Standards as set forth in the Stormwater Policy issued by the
Department on November 18, 1996.
(q) Compliance with the
Stormwater
Management Standards set forth in 310 CMR
10.05(6)(k) through (q) does
not relieve a discharger of the obligation to comply with all applicable
Federal, State, and local laws, regulations and permits including without
limitation all applicable provisions of
310 CMR
10.00,
314 CMR
3.00:
Surface
Water Discharge Permit Program, 4.00:
Massachusetts Surface
Water Quality Standards, 5.00:
Ground Water Discharge Permit
Program, 9.00:
401 Water Quality Certification for Discharge
of Dredged or Fill Material, Dredging, and Dredged Material Disposal in Waters
of the United States Within the Commonwealth, local land use controls
adopted to comply with
310 CMR
22.21:
Ground Water Supply
Protection or the NPDES General Permit for Small Municipal Separate
Storm Sewer Systems, the requirements of the NPDES General Stormwater permits
such as the Construction General Permit, and the Multi-sector General
Permit.
(7)
Requests for Actions by the Department (Appeals).
(a) The following persons may request the
Department to act:
1. the
applicant;
2. the owner, if not the
applicant;
3. any person aggrieved
by a Determination or an Order;
4.
any owner of land abutting the land on which the work is to be done;
5. any ten residents of the city or town
where the land is located; and
6.
the Department.
(b) Any
person(s) permitted to request the Department to act under 310 CMR
10.05(7)(a)
may request the Department to issue a Superseding Determination of
Applicability or to issue a Superseding Order, whichever is appropriate,
whenever a conservation commission has:
1.
issued a Determination of Applicability (Form 2);
2. issued a Notification that an area is not
significant to any interest identified in M.G.L. c. 131, § 40 (Form
6);
3. issued an Order of
Conditions allowing, conditioning or prohibiting work (Form 5) or an Order of
Resource Area Delineation; or
4.
failed to hold a public hearing or issue an Order, Notification or
Determination within the time period required by M.G.L. c. 131, § 40.
Where the Department is requested to issue a Superseding
Determination or Order of Conditions, the conservation commission shall be a
party to all agency proceedings and hearings before the Department.
(c) A request for a
Superseding Order or Determination shall be made in writing and shall be sent
by certified mail or hand delivered within ten days of issuance of the Order,
Determination or Notification which is being appealed. When the basis of such
request is the conservation commission's failure to act, the request may be
made at any time up to 70 days after the expiration of the period within which
the conservation commission was to have acted. Said request shall state clearly
and concisely the objections to the Order, Determination or Notification which
is being appealed and, in the case of a request for a Superseding Order, how
the Order of Conditions or Notification of Non-significance issued by the
conservation commission is inconsistent with
310 CMR
10.00 and does not contribute to the protection of the
interests identified in M.G.L. c. 131, § 40. When the Order is a
Restoration Order of Conditions, the basis of the request is limited to
claim(s) that the applicant did not comply with one or more of the applicable
procedural requirements of 310 CMR
10.05 and/or the conservation commission
issued the Restoration Order of Conditions in contravention of one or more of
the applicable eligibility criteria. The request for Department action shall
specifically identify any procedural requirements and eligibility criteria that
the person requesting Department action alleges have not been met.
(d) All requests for the Department to act
shall be sent to the appropriate Regional Office of the Department. A copy of
the request shall at the same time be sent by certified mail or hand delivered
to the conservation commission and the applicant, if he is not the appellant.
(e) Within 35 days from receipt of such a request, the Department shall issue a
Superseding Determination of Applicability (Form 2) or a Notification that an
area is not significant to any interest identified in M.G.L. c. 131, § 40
(Form 6).
(f) Within 70 days from
receipt of such a request, the Department shall issue a Superseding Order
unless either of the following apply, or in the event that both apply,
whichever is later:
1. compliance with M.G.L.
c. 30, §§ 61 through 62H and
301 CMR
11.00 is required, in which case the Department shall
issue a Superseding Order within 40 days of the issuance of a statement by the
Secretary of the Executive Office of Energy and Environmental Affairs that the
applicant has complied with M.G.L. c. 30, §§ 6 through 62H and
301 CMR
11.00:
MEPA Regulations;
2. the Department has requested additional
plans, information or documentation pursuant to 310 CMR
10.05(7)(g), in which
case the Department shall issue a Superseding Order within 40 days of receipt
of such plans, information, or documentation, or of the failure of the
applicant to comply with such request.
(g) The Department shall notify the applicant
within 30 days of receipt of a request for the Department to act if additional
information or documentation is necessary to make its determination; provided,
however, that further information may be requested should the information
supplied in response to the original notification so require. When requested to
issue a Superseding Order of Resource Area Delineation, the Department shall
limit its review to the resource area delineations. The Department shall
consider the objections to the resource area delineations stated in the
request. The Department may affirm an Order of Resource Area Delineation based
upon a conclusion that the Order of Resource Area Delineation substantially
conforms to the locations identified by the Department through a site
inspection.
(h) When the request
for a Superseding Order concerns an Order prohibiting work and issued pursuant
to 310 CMR
10.05(6)(c), the Department shall limit its review to the
information submitted to the conservation commission. If the Department
determines that insufficient information was submitted, it shall affirm the
denial and instruct the applicant to refile with the conservation commission
and include the appropriate information. If the Department determines that
sufficient information was submitted, it shall so inform the applicant and the
conservation commission, and shall proceed to issue a Superseding Order as
provided in 310 CMR
10.05.
(i)
After receipt of a request for a Superseding Determination or Order, the
Department may conduct an informal meeting and may conduct an inspection of the
site. In the event an inspection is conducted, all parties shall be invited in
order to present any information necessary or useful to a proper and complete
review of the proposed activity and its effects upon the interests identified
in M.G.L. c. 131, § 40. Any party presenting information as a result of
such a meeting shall provide copies to the other parties.
Based upon its review of the Notice of Intent, the Order, any
informal meeting or site inspection, and any other additional plans,
information, or documentation submitted under 310 CMR 10.05(7)(f) or (g), the
Department shall issue a Superseding Order for the protection of the interests
identified in M.G.L. c. 131, § 40. The Superseding Order shall impose such
conditions as are necessary to meet the performance standards set forth in
310 CMR 10.21
through
10.60
and stormwater standards set forth at 301 CMR 10.05(6)(k) for the protection of
those interests. The Superseding Order shall prohibit any work or any portions
thereof that cannot be conditioned to protect such interests. The Department
may issue a Superseding Order which affirms the Order issued by the
conservation commission. The Department shall issue a Restoration Order of
Conditions as the Superseding Order of Conditions in the event it determines
that the project meets the eligibility criteria for a Restoration Order of
Conditions. If the applicant submitted a Combined Application for a project
that requires a 401 Water Quality Certification pursuant to 314 CMR
9.00: 401
Water Quality Certification for Discharge of Dredged
or Fill Material, Dredging, and Dredged Material Disposal in Waters of the
United States Within the Commonwealth, or a water-dependent use
project that requires a Chapter 91 license, permit or other written approval
pursuant to
310 CMR
9.00: Waterways, the Department may
issue a Combined Permit that serves as the Superseding Order of Conditions, the
401 Water Quality Certification, and/or the Chapter 91 permit, license or other
written approval, whichever is applicable, provided the Department determines
that the project meets the requirements for obtaining such Order,
Certification, permit, license or other written approval.
(j)
Administrative
Hearings.
1.
Timely
Filings. Papers required or permitted to be filed under 310 CMR
10.05 must be filed with the Department, at the address designated in the
Reviewable Decision, within the timelines specified in 310 CMR
10.05. Papers
shall be considered filed as set forth in
310
CMR
1.01(3):
Time.
2.
Appeal Notice.
a. Any
applicant, landowner, aggrieved person if previously a participant in the
permit proceedings, conservation commission, or any ten residents of the city
or town where the land is located, if at least one resident was previously a
participant in the permit proceeding may request review of a Reviewable
Decision by filing an Appeal Notice no later than ten business days after the
issuance of the Reviewable Decision. Previously participating in the permit
proceeding means the submission of written information to the conservation
commission prior to close of the public hearing, requesting an action by the
Department that would result in a Reviewable Decision, or providing written
information to the Department prior to issuance of a Reviewable Decision. The
Appeal Notice must be filed with the Department with a copy sent to the
appropriate regional Department office by certified mail or hand delivered
within ten days after the date of issuance of the Reviewable Decision, and a
copy thereof must at the same time be sent by certified mail or hand delivered
to the conservation commission (if not filed by the conservation commission)
and to the applicant (if not filed by the applicant). The Appeal Notice shall
also be served by certified mail or hand delivered on any person that requested
the action by the Department that resulted in the Reviewable Decision. In the
event that the entity that requested the action is a ten resident group, the
Appeal Notice shall be served on the designated representative of the ten
resident group, whose name and contact information shall be included in the
Reviewable Decision. Any party listed in 310 CMR
10.05(7)(j)2.a. that fails to
timely file an Appeal Notice pursuant to 310 CMR
10.05, shall be deemed to have
waived its right to appeal the Reviewable Decision.
b. The Appeal Notice shall include all of the
following:
i. the Petitioner's complete name,
address, phone number, fax number and email address and, if represented,
counsel's name, address, phone number, fax number and email address, and if a
ten resident group, the same information for the group's designated
representative.
ii. the
department's wetlands file number, if applicable, the name of applicant and
address of the project.
iii. if
filed by an aggrieved person, demonstration of participation in previous
proceedings, in accordance with 310 CMR
10.05(7)(j)3.a. and sufficient written
facts to demonstrate status as a person aggrieved;
iv. if filed by a ten resident group,
demonstration of participation in previous proceedings, in accordance with 310
CMR
10.05(7)(j)(3)(a);
v. a clear
and concise statement of the alleged errors contained in the Reviewable
Decision and how each alleged error is inconsistent with
310 CMR
10.00 and does not contribute to the protection of the
interests identified in the Wetlands Protection Act, M.G.L. c. 131, § 40,
including reference to the statutory or regulatory provisions the Party alleges
has been violated by the Reviewable Decision, and the relief sought, including
specific changes desired in the Reviewable Decision. In the event that the
Reviewable Decision is a Superseding Order of Conditions that is a Restoration
Order of Conditions, the appeal is limited to a claim that the applicant did
not comply with one or more of the applicable procedural requirements of 310
CMR
10.05 and/or the Department issued the Reviewable Decision in contravention
of one or more of the applicable eligibility criteria. The notice of claim
shall specifically identify the procedural requirements and eligibility
criteria that the person requesting an adjudicatory hearing alleges have not
been met;
vi. a copy of the
Reviewable Decision appealed and a copy of the underlying Conservation
Commission decision if the Reviewable Decision affirms the Conservation
Commission decision; and vii. if asserting that a matter is Major or Complex, a
statement requesting that the Presiding Officer make a designation of Major or
Complex, with specific reasons supporting the request.
c. An Appeal Notice that does not contain all
of the information required in 310 CMR
10.05(7)(j)1.b. may be
dismissed.
d. Within five business
days of receipt of a written request by any potential party, the applicant
shall make all documents submitted to the department in support of the
Reviewable Decision, including but not limited to the notice of intent, plan of
record, or other information, available to any person who states that they
intend to appeal or intervene. In the case of a ten resident group, or a group
intervening pursuant to M.G.L. c. 30A, the applicant need only make one copy
available to the group's designated representative.
e. Within five days of the receipt by the
applicant and/or property owner of a written request by any person who has
filed an appeal or intervened, and/or such person's consultants, attorneys, or
other representatives, shall be allowed to visit the site with the property
owner, upon reasonable conditions of the applicant and/or property owner. The
purpose of a site visit shall be related solely to the Reviewable Decision
under appeal and shall be specifically identified by the requesting party. The
person requesting the site visit may request a later date for the site visit,
which shall be reasonably accommodated by the applicant and/or property
owner.
f. The Department, the
conservation commission, the petitioner, the applicant, and any interveners
pursuant to 310 CMR
10.05(7)(j) shall be deemed to be parties to the proceeding
and are entitled to service of all documents filed in the proceeding, and shall
be included in a certificate of service to accompany all filings in accordance
with
310
CMR
1.01(4)(f).
g. No work shall be undertaken until all
administrative appeal periods from a Reviewable Decision have elapsed, or if
such an appeal has been taken, until all procedures before the Department have
been completed.
h. The Presiding
Officer may rule on the timeliness, standing and compliance with the
requirements of 310 CMR
10.05(7)(j)3.b.,
sua sponte, and
provide a prompt ruling to the parties; or if in response to a motion, within
ten days of the filing of such motion.
3.
Petitioner's Direct
Case.
a. A Party who has timely
filed an Appeal Notice must file with the Department and serve a copy on all
parties its Direct Case no later than 45 days after the Prescreening
Conference.
b. The Petitioner has
the burden of going forward pursuant to
310 CMR
10.03(2), and proving its
direct case by a preponderance of the evidence.
c. In its Direct Case, the Petitioner must
establish the legal and factual basis for its position on the issues identified
by the Presiding Officer in the pre-screening report. Failure to do so will
result in a waiver of Petitioner's Direct Case for that issue. In addition, the
Direct Case at a minimum shall include:
i. a
description of the subject matter of the Reviewable Decision;
ii. credible evidence from a competent source
in support of each claim of factual error, including any relevant expert
report(s), plan(s), or photograph(s).
4.
Respondents' Direct
Case. A party that seeks to support or defend the Reviewable
Decision shall file and serve on all parties a Direct Case within 30 days of
the filing of the Petitioner's Direct Case. A responding party shall be deemed
to be a "Respondent".
a.
Response
Content: The response shall at a minimum include:
i. A rebuttal to the Petitioner's Direct Case
setting forth the legal and factual basis supporting the Reviewable Decision,
including relevant statutory and regulatory citations and evidentiary support
consisting of credible evidence from a competent source;
ii. any affirmative defenses and evidentiary
support for them, including but not limited to the defense of lack of standing;
and iii. if asserting that a matter is Major or Complex, a statement requesting
that the Presiding Office make designation of Major or Complex, with specific
reasons supporting the request.
5.
Intervention and Intervenors'
Direct Case.
a. Pursuant to
M.G.L. c. 30A, § 10A, a group of ten citizens may intervene in a
proceeding by filing and serving on all parties a Motion to Intervene within 21
days of the filing of the Appeal Notice. The Motion to Intervene shall provide
the names, addresses, phone and fax numbers and email address of each of the
members of the ten citizens group, and a certification under oath by each
member that they consent to the Motion to Intervene, and authorize the group
representative to act for the member. The Motion shall also designate a
representative who shall represent the group and receive documents on its
behalf. Upon filing a Motion in conformance with 310 CMR
10.05(7)(j)5.a., the
ten citizen group shall be deemed a party, subject to disqualification if the
Presiding Officer determines that the group does not consist of at least ten
consenting citizens.
b. A person
who claims that he or she is substantially and specifically affected by the
proceeding, may intervene by filing and serving on all parties a Motion to
Intervene within 21 days of the filing of the Appeal Notice. The Motion must
include a statement demonstrating that the moving party is substantially and
specifically affected, in accordance with
310
CMR
1.01(7)(d):
Intervenors. Upon filing a Motion in conformance with 310 CMR
10.05(7)(j)5., the moving party shall be deemed a party, subject to
disqualification if the Presiding Officer determines that the moving party is
not substantially and specifically affected.
c. An intervenor that contests the Reviewable
Decision shall file a Direct Case that conforms to 310 CMR
10.05(7)(j)3. no
later than the due date of Petitioner's Direct Case. An intervenor that
supports the Reviewable Decision shall file a Direct Case that conforms to 310
CMR
10.05(7)(j)4. no later than the due date of the Respondent's Direct
Case.
d. The Presiding Officer may
rule on the timeliness, standing and compliance with the requirements of 310
CMR
10.05(7)(j)5.,
sua sponte, and provide a prompt ruling to
the parties, or if in response to a motion within ten days of the filing of
such motion.
6.
Rebuttal. The Petitioner or an Intervenor aligned with
the Petitioner may file and serve on all parties rebuttal evidence no later
than seven days after the filing of the Direct Case by the Respondent or any
Intervenor aligned with the Respondent. The rebuttal evidence shall be limited
to countering evidence submitted in a Respondent's or Intervenor's Direct Case
in support of the Reviewable Decision.
7.
Pre-screening and
Hearing
a. Upon receipt of the
Appeal Notice, the Presiding Officer will schedule a prescreening conference to
be conducted pursuant to
310
CMR
1.01(5)(a)15., and will
send notice to all parties. Such prescreening conference will presumptively
occur not more than 30 days after the Appeal Notice is filed. As used in this
regulation, "presumptively" means that the time-line is binding, absent
extraordinary circumstances in which case the Presiding Officer has authority
to extend the timeline.
b. Upon
receipt of the Appeal Notice, the Department will schedule a hearing and will
send notice to all parties. A hearing will be presumptively held within 120
days after the Appeal Notice is filed.
c. Intervenors who subsequently intervene
shall promptly receive the notice, but intervention shall not change the
schedule of the pre-screening conference or the hearing.
d. Parties may file motions regarding
jurisdictional defects such as standing or timeliness by a date set by the
presiding officer before the prescreening. Motions for directed verdict or
summary decision may be filed by a date set by the presiding officer at the
prescreening. Motions will not change the schedule of the prescreening
conference or the hearing.
e. Upon
notice to the parties, the Presiding Officer may provide an opportunity for a
simplified hearing conducted pursuant to
310
CMR
1.01(8)(a):
Simplified Hearing. f. If the Presiding Officer determines an
appeal to be Major or Complex, she will adjust the schedule either by extending
it up to 30 days, or by taking the matter ahead of other cases.
g. All parties must attend and be prepared to
discuss settlement and the narrowing of issues at the pre-screening conference.
At the conclusion of the pre-screening conference or shortly thereafter, the
Presiding Officer shall prepare and circulate a prescreening conference report,
for any appeal not resolved in prescreening. The prescreening conference report
shall contain a list of issues that are in dispute and which are legally
relevant, and that are to be addressed in the parties' direct and rebuttal
cases.
h. The Presiding Officer
shall conduct a hearing. At the hearing, the parties' Direct Cases shall
consist of, and be limited to, the evidence contained in their respective
Direct Cases and rebuttal evidence, subject to evidentiary rulings of the
Presiding Officer. The primaryfunction of the hearing shall be
cross-examination of witnesses and, at the Presiding Officer's discretion an
oral closing argument. The hearing shall be limited to one day, unless the
Presiding Officer finds that there is good cause for a longer
hearing.
8.
Final Action. The Presiding Officer shall issue a
written recommended decision, not more than 30 days after the close of hearing,
that shall include findings on the contested issues. The Commissioner shall
issue a final written decision consistent with
310
CMR
1.01(14)(b),
presumptively within six months of the Reviewable Decision, or in the case of
an appeal deemed Major or Complex in which the schedule was extended, within
seven months of the Reviewable Decision. Should a party request a tentative
decision, the request shall be governed by
310
CMR
1.01(14)(a).
9.
Relationship to Other Rules of
Adjudicatory Proceedings.
a. To
the extent there is conflict between the regulations governing wetland appeals
set forth in
310 CMR
10.04 and
10.05(7)(j), on the one hand, and the Rules of Adjudicatory Proceedings set
forth in
310
CMR
1.01:
Adjudicatory Proceeding
Rules for the Department of Environmental Protection, on the other
hand, the former shall prevail.
b.
The following regulations shall apply to wetland appeals:
310
CMR
1.01(1) through (5), (6)(c), (f) through
(k); (8); (10); (12)(a), (c), (d); (13)(a)
through (c), (e) through (h), (j), (l) through (n); (14)(b) through (g) and
1.03:
Miscellaneous Provisions Applicable to All Adjudicatory
Proceedings.
10.
Coordination of Appeals. The Department may coordinate
adjudicatory hearings under 310 CMR
10.05(7)(j),
310 CMR
9.17:
Appeals, and
314 CMR
9.10:
Appeals or other administrative appeals.
a. If a 401 Water Quality Certification been
issued pursuant to
314 CMR
9.00:
401
Water Quality Certification for Discharge of Dredged or Fill Material,
Dredging, and Dredged Material Disposal in Waters of the United States Within
the Commonwealth and/or a permit, license or other written approval
has been issued pursuant to
310 CMR
9.00:
Waterways, the Department may
exclude issues solely within the jurisdiction of
314 CMR
9.00:
401
Water Quality Certification for Discharge of Dredged or Fill Material,
Dredging, and Dredged Material Disposal in Waters of the United States Within
the Commonwealth and/or
310 CMR
9.00:
Waterways at an adjudicatory
hearing held under 310 CMR
10.05(7)(j).
b. If an adjudicatory hearing has been
requested in accordance with
310 CMR
9.17:
Appeals and/or
314 CMR
9.10:
Simplified Procedures for Small Structures Accessory to
Residences, or another administrative appeal, the Department may
consolidate the proceedings.
c. In
the event that the Department has issued a Combined Permit that serves as a
Superseding Order of Conditions and/or a 401 Water Quality Certification issued
pursuant to
314 CMR
9.00:
401
Water Quality Certification for Discharge of Dredged or Fill Material,
Dredging, and Dredged Material Disposal in Waters of the United States Within
the Commonwealth and/or a permit, license or other written approval
issued pursuant to
310 CMR
9.00: Waterways, the appeal may include issues solely
within the jurisdiction of
314 CMR 9.00:401 Water Quality
Certification for Discharge of Dredged or Fill Material, Dredging, and Dredged
Material Disposal in Waters of the United States Within the
Commonwealth and/or
310 CMR
9.00:
Waterways only as follows: The
appeal may include issues solely within the jurisdiction of
314 CMR
9.00:
401
Water Quality Certification for Discharge of Dredged or Fill Material,
Dredging, and Dredged Material Disposal in Waters of the United States Within
the Commonwealth, only if the appeal has been requested in accordance
with the requirements of
314 CMR
9.10:
Simplified Procedures for Small Structures Accessory to
Residences. The appeal may include issues solely within the
jurisdiction of
310 CMR
9.00:
Waterways, only if the appeal
has been requested in accordance with the requirements of
310 CMR
9.17:
Appeals.
(k) No work shall be undertaken until all
administrative appeal periods from an Order or Notification of Non-significance
have elapsed or, if such an appeal has been taken, until all proceedings before
the Department have been completed.
(9)
Certificates of
Compliance.
(a) Upon completion
of the work described in a Final Order of Conditions, but not later than the
three year term of an Order of Resource Area Delineation or any extension
thereunder, the applicant shall request in writing the issuance of a
Certificate of Compliance stating that the work has been satisfactorily
completed. Upon written request by the applicant, a Certificate of Compliance
shall be issued by the issuing authority within 21 days of receipt thereof, and
shall certify on Form 8 that the activity or portions thereof described in the
Notice of Intent and plans has been completed in compliance with the Order. If
issued by the Conservation Commission, the Certificate of Compliance shall be
signed by a majority of the commission. A copy of the Certificate of Compliance
shall be sent to the conservation commission or the Department, whichever is
appropriate, by the issuing authority.
(b) Prior to the issuance of a Certificate of
Compliance, a site inspection shall be made by the issuing authority, in the
presence of the applicant or the applicant's agent. If the Department is the
issuing authority, it shall notify the conservation commission of the request
and the date of the site inspection.
(c) If the issuing authority determines,
after review and inspection, that the work has not been done in compliance with
the Order, it may refuse to issue a Certificate of Compliance. Such refusal
shall be issued within 21 days of receipt of a request for a Certificate of
Compliance, shall be in writing and shall specify the reasons for
denial.
(d) If a project has been
completed in accordance with plans stamped by a registered professional
engineer, architect, landscape architect or land surveyor, a written statement
by such a professional person certifying substantial compliance with the plans
and setting forth what deviation, if any, exists from the plans approved in the
Order shall accompany the request for a Certificate of Compliance.
(e) If the final order contains conditions
which continue past the completion of the work, such as maintenance or
monitoring, the Certificate of Compliance shall specify which, if any, of such
conditions shall continue. The Certificate shall also specify to what portions
of the work it applies, if it does not apply to all the work regulated by the
Order.
(f) The Certificate of
Compliance shall be recorded in the Land Court or Registry of Deeds, whichever
is appropriate. Certification of recording shall be sent to the issuing
authority on the form at the end of Form 8. Upon failure of the applicant to so
record, the issuing authority may do so.
(11)
Permitting of Test Projects.
(a)
General. The
purpose of 310 CMR
10.05(11) is to establish procedures for permitting Test
Projects to promote the development of potential new renewable energy
technologies and other Innovative Technologies. Innovative Technologies must be
proven through field testing before any large scale commercial deployment can
occur in order to develop the data and information needed to support siting and
full-scale deployment in a cost-effective manner. 310 CMR
10.05(11) will
facilitate and encourage the development, testing and demonstration of
Innovative Technologies, including water dependent renewable energy
technologies, through review procedures for Test Projects. Given their limited
scope and duration, these projects are expected to have minimal adverse
environmental impacts and, therefore, are permittable under 310 CMR
10.05(11),
provided that the applicant provides for adequate post-installation monitoring
to identify any unanticipated adverse environmental impacts that occur in the
course of the project. The issuing authority may require the alteration or
removal of the project if the monitoring study or other information indicates
that the project has unexpected or more than minimal adverse environmental
impacts. Pre-application consultation with the issuing authority is
recommended. Proposed Test Projects that do not meet the eligibility criteria
in 310 CMR
10.05(11)(b) may be permitted provided they meet all applicable
requirements of
310 CMR
10.24
through
10.35
for projects in coastal resource areas and
310 CMR
10.54 through
10.58 and
10.60
for projects in inland resource areas.
(b)
Eligibility
Criteria. Notwithstanding the provisions of
310 CMR
10.24
through
10.35,
10.53 through
10.58, and
10.60,
the issuing authority may issue an Order of Conditions, and impose such
conditions as will contribute to the interests identified in M.G.L. c. 131,
§ 40, to permit Test Projects (although no such project may be permitted
which will have any adverse effect on specified habitat sites of Rare Species,
as identified by procedures established under
310 CMR
10.37 and
10.59)
provided:
1. the applicant documents the
readiness of the device or technology for in situ testing with the results of
laboratory testing, modeling, technical evaluations, or similar forms of
supporting material;
2. the
structures associated with the project will not be located in specified habitat
sites of Rare Species located within a resource area or Buffer Zone;
3. the structures associated with the project
are not located within a salt marsh or seagrass bed; and
4. any structures associated with the project
can be easily and quickly removed with minimal disruption to resource
areas.
(c)
Application Requirements. For the purpose of
authorizing eligible Test Projects pursuant to 310 CMR
10.05(11), the following
provisions shall apply:
1. In
lieu of plans prepared by a Registered Professional Engineer
or Registered Land Surveyor a Notice of Intent for a Test Project may include
documentation that appropriate laboratory testing and/or modeling has occurred
and show the proposed location of the project on a plan designating all project
components by coordinates referenced to the Massachusetts State Plane
Coordinate System.
2. In addition
to the documentation provided in
310
CMR
10.11(c)1., a Notice of
Intent for a Test Project shall include the following:
a. a description of the device or technology
to be tested and the purpose of the project;
b. a description of the installation process
and schedule for installation, testing, and removal of the devices,
technologies and associated equipment;
c. a demonstration that the project complies
with the eligibility requirements of 310 CMR
10.05(11)(b)1. through 4.;
d. a plan for the restoration of
all disturbed resource areas to pre-existing conditions and a schedule for
completing the restoration before the Order of Conditions expires; e. an
environmental monitoring plan sufficiently broad to ensure the project meets
all applicable regulatory standards; and f. a plan for prompt removal of the
components of the project if the Department or conservation commission
determines that the project threatens public health, safety or the environment.
(d)
Order of Conditions. At a minimum, the Order of
Conditions authorizing a Test Project pursuant to 310 CMR
10.05(11) shall
require the applicant to implement the monitoring plan and the restoration plan
submitted with the Notice of Intent as approved by the issuing authority. The
Order of Conditions shall also provide that if the Department or the
conservation commission determines that the Test Project threatens the public
health, safety or the environment, the applicant shall implement the removal
plan submitted with the Notice of Intent as approved by the issuing authority,
or modify the project as directed by the conservation commission or the
Department.
(e)
Term. Notwithstanding the provisions of 310 CMR
10.05(6)(b), an Order of Conditions for a Test Project issued under 310 CMR
10.05(11) shall be valid for no more than one year.
(f)
Extension
Permits. An Order of Conditions for a Test Project issued in
accordance with 310 CMR
10.05(11) may be extended for one additional year upon
written application by the applicant in accordance with 310 CMR
10.5(8)(a), The
issuing authority may deny a request for an extension, if it determines that:
the project objectives have not been advanced during the initial term; the
continuation of the project would not adequately protect public health, safety,
or the environment; or the extension should be denied based on the one 0or more
of the circumstances identified in 310 CMR
10.05(8)(c). An extension permit
issued for a Test Project in accordance with 310 CMR
10.05(11) is subject to
the provisions of 310 CMR
10.05(8)(d) and (e).
(g)
Appeals. The
provisions governing Department action and adjudicatory hearings set forth in
310 CMR
10.05(7) shall apply to decisions authorizing Test Projects pursuant to
310 CMR
10.05(11). In the event that the Department issues a Superseding Order
of Conditions denying a Test Project on the ground that it does not meet the
eligibility criteria set forth in 310 CMR
10.05(11)(b), the applicant may file
a Notice of Intent seeking authorization for the Test Project under the
applicable provisions of
310 CMR
10.24
through
10.37,
10.53 through
10.58 and
10.60
in
lieu of requesting an adjudicatory
hearing.
