310 CMR 10.24 - General Provisions

(1) If the issuing authority determines that a resource area is significant to an interest identified in M.G.L. c. 131, § 40 for which no presumption is stated in the Preamble to the applicable section, the issuing authority shall impose such conditions as are necessary to contribute to the protection of such interests. For work in the buffer zone subject to review under 310 CMR 10.02(2)(b)3., the issuing authority shall impose conditions to protect the interests of the Act identified for the adjacent resource area. The potential for adverse impacts to resource areas from work in the buffer zone may increase with the extent of the work and the proximity to the resource area. The issuing authority may consider the characteristics of the buffer zone, such as the presence of steep slopes, that may increase the potential for adverse impacts on resource areas. Conditions may include limitations on the scope and location of work in the buffer zone as necessary to avoid alteration of resource areas. The issuing authority may require erosion and sedimentation controls during construction, a clear limit of work, and the preservation of natural vegetation adjacent to the resource area and/or other measures commensurate with the scope and location of the work within the buffer zone to protect the interests of M.G.L. c. 131, § 40. Where a buffer zone has already been developed, the issuing authority may consider the extent of existing development in its review of subsequent proposed work and, where prior development is extensive, may consider measures such as the restoration of natural vegetation adjacent to the resource area to protect the interests of M.G.L. c. 131, § 40. The purpose of preconstruction review of work in the buffer zone is to ensure that adjacent resource areas are not adversely affected during or after completion of the work.

(2) When the issuing authority determines that a project in one resource area would adversely affect another resource area, the issuing authority shall impose such conditions as will protect the interest to which each resource are significant to the same degree as required in 310 CMR 10.00 concerning each resource area.

(3) A determination which finds that a resource area is not significant to an interest to which it is presumed in 310 CMR 10.21 through 10.37 to be significant, or is significant to an interest to which it is presumed to be not significant, shall be made on Form 7. No such determination shall be effective unless a copy of this form and the accompanying written explanation for the determination required by 310 CMR 10.00 is sent on the day of issuance to the appropriate regional office of the Department.

(4)

(a) 310 CMR 10.21 through 10.37 do not change the requirement of any other Massachusetts statute or by-law. A proposed project must comply with all applicable requirements of other federal, state and local statutes and by-laws, in addition to meeting the requirements of 310 CMR 10.00. Examples of such laws which may be applicable are the Coastal Restrictions Act (M.G.L. c. 130, § 105), the Ocean Sanctuaries Act (M.G.L. c. 132A, §§ 13 through 16 and 18), the Mineral Resources Act (M.G.L. c. 21, §§ 54 through 58), the Massachusetts Clean Water Act (M.G.L. c. 21, §§ 26 through 53), the Waterways laws (M.G.L. c. 91), the Massachusetts Environmental Policy Act (M.G.L. c. 30, §§ 61 through 62H), the act establishing the Martha's Vineyard Commission (St. 1974, c. 637) and the Scenic Rivers Act (M.G.L. c. 21, § 2. 17B).

(b) When the site of a proposed project is subject to a Restriction Order which has been duly recorded under the provisions of M.G.L. c. 130, § 105, such a project shall conform to 310 CMR 10.21 through 10.37.

(c) If an NPDES permit for any new point-source discharge has or will be obtained prior to the commencement of the discharge, the effluent limitations established in such permit shall be deemed to satisfy the water quality standards established in any section of 310 CMR 10.21 through 10.37 relative to the effects of the new point-source discharge on water quality. Such effluent limitations shall be incorporated or shall be deemed to be incorporated into the Order of Conditions.

(5)

(a) When any area subject to 310 CMR 10.21 through 10.37 has been designated an Area of Critical Environmental Concern by the Secretary of Energy and Environmental Affairs pursuant to 301 CMR 20.00: Coastal Zone Management Program, and when the Secretary has made a finding of the significance of the area to one or more interests of M.G.L. c. 131, § 40, the issuing authority shall presume that such area is significant to those interests.

(b) When any portion of a designated Area of Critical Environmental Concern is determined by the Issuing Authority to be significant to any of the interests of M.G.L. c. 131, § 40, any proposed project in or impacting that portion of the Area of Critical Environmental Concern shall have no adverse effect upon those interests, except as provided under 310 CMR 10.25(4) for maintenance dredging, under 310 CMR 10.11 through 10.14, 10.24(8) and 10.53(4) for Ecological Restoration Projects, and under 310 CMR 10.25(3) for improvement dredging conducted by a public entity for the sole purpose of the maintenance o r restoration of historic, safe navigation channels or turnaround basins of a minimum length, width, and depth consistent with a Resource Management Plan adopted by the municipality(ies) and approved by the Secretary of the Executive Office of Energy and Environmental Affairs.

(6) Where any section of 310 CMR 10.00 provides that a proposed project "may be permitted" in certain circumstances, no such project shall be undertaken until all of the usual procedures required by M.G.L. c. 131, § 40 and 310 CMR 10.21 through 10.37 have been followed and a Final Order has been issued approving the work. The Issuing Authority shall impose such conditions on such projects as may be necessary to contribute to the protection of the interests of M.G.L. c. 131, § 40. Notwithstanding the foregoing, 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. As set forth in 310 CMR 10.05(6)(b)., a Restoration Order of Conditions may reference the plans and specifications approved by the Issuing Authority. If the Department is the Issuing Authority for a project that is the subject of a Combined Application, the Department may attach 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.

(7) Notwithstanding the provisions of 310 CMR 10.25 through 10.35, 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, permitting the limited projects listed in 310 CMR 10.24(7)(a) through (c), 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. In determining whether to exercise its discretion to approve the limited projects listed in 310 CMR 10.24(7)(a) through (c), the Issuing Authority shall consider the following factors: the magnitude of the alteration and the significance of the project to the interests identified in M.G.L. c. 131, § 40, the availability of reasonable alternatives to the proposed activity, and the extent to which adverse impacts are minimized and the extent to which mitigation measures including replication or restoration are provided to contribute to the protection of the interests identified in M.G.L. c. 131, § 40. Adverse effects to be minimized include without limitation any adverse impacts on the relevant interests of M.G.L. c. 131, § 40, due to changes in wave action or sediment transport or adjacent coastal banks, coastal beaches, coastal dunes, salt marshes or barrier beaches. The provisions of 310 CMR 10.24(7)(a) through (c) are not intended to prohibit the Issuing Authority from imposing such additional conditions as are necessary to contribute to the interests of M.G.L. c. 131, § 40 where the indicated minimizing measures are not sufficient.

(a) The construction, reconstruction, operation and maintenance of the following structures associated with and essential to an electric generating facility may be permitted as a limited project pursuant to 310 CMR 10.24(7) provided the project is proposed to be constructed and operated in accordance with all applicable provisions of 310 CMR 10.24(1) through (6), (7)(a)1. through 6., and (9) and (10):

1. Conduits for cooling water intake or discharge, which may be emplaced by trenching with a minimum depth of four feet of cover below original grade, except where they traverse salt ponds, salt marshes and barrier beaches, in which cases they may be emplaced only by tunneling;

2. Headwalls and other essential structures appurtenant to 310 CMR 10.24(7)(a)1., except that these structures may not be constructed in salt marshes, salt ponds or barrier beaches;

3. Pipelines or other conduits for the transmission of utilities essential to the facility (water, fuel, sewage, and power), which may be emplaced by trenching with a minimum depth of four feet of cover below original grade, or which may be carried above grade on pilings or similar supports, but only if the applicant demonstrates that there will be no adverse effect on the resource area by the construction, operation, and maintenance of such pipelines or other conduits. If such pipelines or conduits are emplaced through a resource area which adverse effects are required to be minimized by 310 CMR 10.25 through 10.35, then that standard shall be applied, except that in no case shall fuel or sewage lines be operated or be designed to be operated so that they will have an adverse effect on the resource area.

4. Structures necessary for navigation, berthing and protection of such vessels and vessel movements as may be necessary to the operation of the facility, but only on coastal banks, coastal beaches, rocky intertidal shores or land under the ocean;

5. Structures for maritime dependent accessory activities essential to the facility, but only on coastal banks, coastal beaches, rock intertidal shores or land under the ocean;

6. Coastal engineering structures necessary to the protection of such other structures as may be permitted under 310 CMR 10.24, but only on coastal banks, coastal beaches, rocky intertidal shores, or land under the ocean;

(b) The construction, reconstruction, operation and maintenance of underground and overhead public utilities, limited to electrical distribution or transmission lines, or communication, sewer, water and natural gas lines, may be permitted as a limited project pursuant to 310 CMR 10.24(7) provided that the project complies with all applicable provisions of 310 CMR 10.24(1) through (6), (9) and (10), and (7)(b)1. through 9.:

1. For local distribution or connecting lines not reviewed by the Energy Facilities Siting Council, the Issuing Authority determines that alternative routes with fewer adverse effects are not physically or legally feasible;

2. Adverse effects during construction are minimized using the best available measures, which may include such equipment as Bailey bridges and helicopters;

3. The surface vegetation and contours of the area are substantially restored;

4. When a trench is made in a Salt Marsh, all spoil is removed from the Salt Marsh upon excavation. Clean sand or other appropriate material shall be used to restore the level of the trench to that of the surrounding undisturbed Salt Marsh. The surface vegetation shall be restored substantially to its original condition by immediately transplanting appropriate marsh plant nursery stock once construction is completed. Baffles of concrete, clay or other non porous material shall be placed in the trench, if necessary, to prevent groundwater excursion. During the first growing season, periodic maintenance of the marsh restoration area shall be required and shall include at least the replacement of non surviving transplants and the removal of all deposits of debris and organic litter. During construction, equipment such as Bailey bridges and helicopters shall be used to minimize, using best available measures, the adverse effects of construction on the Salt Marsh. All vehicles shall be used only on swamp mats or in such a way as to prevent tire marks, trenches, or ruts;

5. No utility shall traverse a Salt Marsh unless the applicant has shown that any thermal influence on the Salt Marsh of such line subsequent to the project being completed will not alter the natural freezing and thawing patterns of the top 24 inches of the Salt Marsh surface. Thermal sand, concrete or other suitable material may be used to backfill the trench to a point no less than 24 inches below grade. Above this level, clean sand shall be used to restore the level of the trench to that of the surrounding undisturbed Salt Marsh;

6. No permanent access roads shall be permitted except in Designated Port Areas; and

7. All sewer lines shall be constructed so as to be watertight so as to prevent inflow and leakage.

8. All fuel lines shall be double cased and watertight so as to prevent inflow and leakage.

9. The conduits or structures shall be designed to minimize, using the best available measures, adverse effects on the relevant interests of M.G.L. c. 131, § 40 due to changes in wave action or sediment transport or adjacent coastal banks, coastal beaches, coastal dunes, salt marshes or barrier beaches.

(c) The following projects may be permitted as a limited project pursuant to 310 CMR 10.24(7) provided the project complies with all applicable provisions of 310 CMR 10.24(1) through (6) and (9) and (10):

1. Maintenance and improvement of existing public roadways, but limited to widening less than a single lane, adding shoulders, correcting substandard intersections, and improving drainage systems.

2. The maintenance, repair and improvement (but not substantial enlargement except when necessary to reduce or eliminate a tidal restriction) of structures, including buildings, piers, towers, headwalls, bridges and culverts which existed on November 1, 1987.

3. The routine maintenance and repair of road drainage structures including culverts and catch basins, drainage easements, ditches, watercourses and artificial water conveyances to insure flow capacities which existed on November 1, 1987.

4. The closure of landfills when undertaken to comply with the requirements of 310 CMR 19.000: Solid Waste Management; provided, however, that:

a. a project design alternative analysis shall be prepared in accordance with 310 CMR 19.150: Landfill Assessment Requirements; and

b. such projects shall be designed, constructed, implemented, operated, and maintained to avoid or, where avoidance is not practicable, to minimize impacts to resource areas, and to meet the following standards to the maximum extent practicable:

i. hydrological changes to resource areas shall be minimized;

ii. best management practices shall be used to minimize adverse impacts during construction, including prevention of erosion and siltation of adjacent water bodies and wetlands in accordance with standard U.S.D.A. Soil Conservation Service methods;

iii. mitigating measures shall be implemented that contribute to the protection of the interests identified in M.G.L. c. 131, § 40;

iv. no access road, assessment or monitoring device, or other structure or activity shall restrict flows so as to cause an increase in flood stage or velocity;

v. temporary structures and work areas in resource areas, such as access roads and assessment and monitoring devices, shall be removed within 30 days of the Department's written determination that the closure of the facility has been completed in accordance with the closure permit. Temporary alterations to resource areas shall be substantially restored to preexisting hydrology and topography. At least 75% of the surface of any area of disturbed vegetation shall be reestablished with indigenous wetland plant species within two growing seasons and prior to said vegetative reestablishment any exposed soil in the area of disturbed vegetation shall be temporarily stabilized to prevent erosion in accordance with standard U.S.D.A. Soil Conservation Service methods. Temporary structures, work areas, and alterations to resource areas are those that no longer are necessary to fulfill the requirements of 310 CMR 19.000: Solid Waste Management;

vi. except for direct impacts to resource areas caused by the final cap and cover on the landfill, no changes in the existing topography or the existing soil and surface water levels shall be permitted, except for those resulting from temporary access roads;

vii. work in resource areas shall occur only when the ground is sufficiently frozen, dry, or otherwise stable to support the equipment used; and

viii. such projects shall not include the construction of new landfills or the expansion or modification of existing landfills.

5. Airport vegetation removal projects; provided, however, that:

a. such projects must be undertaken in order to comply with Federal Aviation Administration (FAA) Regulation Part 77 ( 14 CFR Part 77 ), FAA Advisory Circular 150/5300-13 (Navigational Aids and Approach Light Systems), and FAA Order 6480.4 (Air Traffic Control Tower Siting Criteria), all as amended, or to comply with the airport approach regulations set forth in M.G.L. c. 90, §§ 40A through 40I;

b. such projects must be undertaken at airports that are managed by the Massachusetts Port Authority (Massport) or that are subject to certification by the Massachusetts Aeronautics Commission (MAC);

c. the requirement outlined in 310 CMR 10.24(7)(c)5.a. must be certified in writing by the FAA or by the MAC;

d. such projects shall not include the construction of new airport facilities or the expansion or relocation of existing airport uses;

e. notices of Intent filed for such projects shall:

i. delineate the vegetation requiring removal;

ii. delineate the affected resource areas;

iii. identify the proposed method for removal of vegetation and analyze alternatives. At a minimum, the alternatives analysis shall include: an alternative (based on a Federal Aviation Administration waiver or airport operation changes) that does not alter resource areas, which will provide baseline data for evaluating other alternatives; an assessment of impacts to resource areas resulting from mechanical methods of vegetation removal, including the use of both large and small equipment; and an assessment of impacts to resource areas resulting from chemical methods of vegetation removal;

iv. quantify the likely impacts to wildlife habitat and water quality;

v. evaluate possible mitigation measures, including but not limited to an assessment of erosion and sedimentation controls, wetland restoration, wetland replication, on-site and off-site wetland enhancement, herbicide application guidelines, spill containment plans, development restrictions and monitoring; and

vi. propose a five-year airport vegetation management plan. The vegetation management plan shall, at minimum, contain a purpose and goals statement, identify all airport protective zones, identify proposed vegetation management areas within the protective zones, and identify and prioritize future vegetation removal projects. Updated vegetation management plans shall be provided for each Notice of Intent filed after the expiration of the most recent five-year vegetation management plan period;

f. where such projects require the filing of a Notice of Intent in more than one municipality, the Notice of Intent filed in each municipality shall describe the total impacts to resource areas proposed for the entire project;

g. in addition to existing notice requirements contained in 310 CMR 10.00, for projects pursuant to 310 CMR 10.24(7)(c)5. copies of each Notice of Intent shall be filed simultaneously with the Massachusetts Department of Food and Agriculture, the Massachusetts Historical Commission, the Massachusetts Department of Environmental Management (Areas of Critical Environmental Concern Program), and the Division of Water Supply in the Department of Environmental Protection; and

h. such projects shall be designed, constructed, implemented, operated, and maintained to avoid or, where avoidance is not practicable, to minimize impacts to resource areas, and to meet the following standards to the maximum extent practicable:

i. hydrological changes to resource areas shall be minimized;

ii. best management practices shall be used to minimize adverse impacts during construction, including prevention of erosion and siltation of adjacent water bodies and wetlands in accordance with standard U.S.D.A. Soil Conservation Service methods;

iii. mitigating measures shall be implemented that contribute to the protection of the interests identified in M.G.L. c. 131, § 40;

iv. no access road or other structure or activity shall restrict flows so as to cause an increase in flood stage or velocity;

v. no change in the existing surface topography or the existing soil and surface water levels shall occur except for temporary access roads;

vi. temporary structures and work areas in resource areas, such as access roads, shall be removed within 30 days of completion of the work. Temporary alterations to resource areas shall be substantially restored to preexisting hydrology and topography. At least 75% of the surface of any area of disturbed vegetation shall be reestablished with indigenous wetland plant species within two growing seasons and prior to said vegetative reestablishment any exposed soil in the area of disturbed vegetation shall be temporarily stabilized to prevent erosion in accordance with standard U.S.D.A. Soil Conservation Service methods;

vii. work in resource areas shall occur only during those periods when the ground is sufficiently frozen, dry, or otherwise stable to support the equipment being used; and

viii. slash, branches, and limbs resulting from cutting and removal operations shall not be placed within 25 feet of the bank of any water body.

6. Assessment, monitoring, containment, mitigation, and remediation of, or other response to, a release or threat of release of oil and/or hazardous material in accordance with the provisions of 310 CMR 40.0000: Massachusetts Contingency Plan and the following general conditions (although no such measure may be permitted which is designed in accordance with the provisions of 310 CMR 40.1020: Background Levels of Oil and Hazardous Material solely to reduce contamination to a level lower than that which is needed to achieve "No Significant Risk" as defined in 310 CMR 40.0006(12) ):

a. There are no practicable alternatives to the response action being proposed that are consistent with the provisions of 310 CMR 40.0000: Massachusetts Contingency Plan and that would be less damaging to resource areas. The alternatives analysis shall include the following:

i. an alternative that does not alter resource areas, which will provide baseline data for evaluating other alternatives; and

ii. an assessment of alternatives to both temporary and permanent impacts to resource areas. A "Comprehensive Remedial Action Alternative" that is selected in accordance with the provisions of 310 CMR 40.0851 through 40.0869 shall be deemed to have met the requirements of 310 CMR 10.24(7)(c)6.a.; and

b. Such projects shall be designed, constructed, implemented, operated, and maintained to avoid or, where avoidance is not practicable, to minimize impacts to resource areas, and to meet the following standards to the maximum extent practicable:

i. hydrological changes to resource areas shall be minimized;

ii. best management practices shall be used to minimize adverse impacts during construction, including prevention of erosion and siltation of resource areas in accordance with standard U.S.D.A. Soil Conservation Service methods;

iii. mitigating measures shall be implemented that contribute to the protection of the interests identified in M.G.L. c. 131, §40;

iv. no access road, assessment or monitoring device, or other structure or activity shall restrict flows so as to cause an increase in flood stage or velocity;

v. temporary structures and work areas in resource areas, such as access roads and assessment and monitoring devices, shall be removed within 30 days of completion of the work. Temporary alterations to resource areas shall be substantially restored to preexisting hydrology and topography. At least 75% of the surface of any area of disturbed vegetation shall be reestablished with indigenous wetland plant species within two growing seasons and prior to said vegetative reestablishment any exposed soil in the area of disturbed vegetation shall be temporarily stabilized to prevent erosion in accordance with standard U.S.D.A. Soil Conservation Service methods. Temporary structures, work areas, and alterations to resource areas are those that no longer are necessary to fulfill the requirements of 310 CMR 40.0000: Massachusetts Contingency Plan; and

vi. work in resource areas shall occur only when the ground is sufficiently frozen, dry, or otherwise stable to support the equipment being used.

7. The construction of a new access roadway, or the improvement, repair and/or replacement of an existing access roadway, needed to transport equipment to a renewable energy project site, provided that it is carried out in accordance with the following general conditions and any additional conditions deemed necessary by the issuing authority. Such projects shall be designed, constructed, implemented, operated, and maintained to meet all of the following standards to the maximum extent practicable:

a. The work is limited to the following coastal resource areas or portions thereof: the portion of Land Subject to Coastal Storm Flowage that is outside the Velocity Zone, Designated Port Areas, and Banks of or Land under the Ocean, Ponds, Streams, Rivers, Lakes or Creeks that Underlie an Anadromous/Catadromous Fish Run.

b. Hydrological changes to resource areas shall be minimized.

c. Best management practices shall be used to minimize adverse impacts during construction. An applicant shall be presumed to use best management practices to minimize adverse impacts during construction if he or she implements erosion and sediment controls in accordance with the Massachusetts Erosion and Sediment Control Guidelines. This presumption may be rebutted by credible evidence from a competent source.

d. No access road or other structure or activity shall restrict flows so as to cause an increase in flood stage or velocity.

e. No change in the existing surface topography or the existing soil and surface water levels shall occur except for temporary access roads.

f. Temporary structures and work areas in resource areas shall be removed within 30 days of completion of the work. Temporary alterations to resource areas shall be substantially restored to preexisting hydrology and topography. At least 75% of the surface of any area of disturbed vegetation shall be reestablished with indigenous wetland plant species within two growing seasons and prior to said vegetative reestablishment any exposed soil in the area of disturbed vegetation shall be temporarily stabilized to prevent erosion. Surface areas shall be presumed to be stabilized to prevent erosion if the applicant implements the procedures set forth in the Massachusetts Erosion and Sediment Control Guidelines. This presumption may be rebutted by credible evidence from a competent source.

g. Work in resource areas shall occur only during those periods when the ground is sufficiently frozen, dry, or otherwise stable to support the equipment being used.

h. Slash, branches, and limbs resulting from cutting and removal operations shall not be placed within 25 feet of the bank of any water body.

(8) Ecological Restoration Limited Project.

(a) Notwithstanding the requirements of 310 CMR 10.25 through 10.35, 10.54 through 10.58, and 10.60, the Issuing Authority may issue an Order of Conditions permitting an Ecological Restoration Project listed in 310 CMR 10.24(8)(e) as an Ecological Restoration Limited Project and impose such conditions as will contribute to the interests identified in M.G.L. c. 131, § 40, provided that:

1. The Issuing Authority determines that the project is an Ecological Restoration Project as defined in 310 CMR 10.04;

2. If the project will impact an area located within estimated habitat which is indicated on the most recent Estimated Habitat Map of State-listed Rare Wetlands Wildlife published by the Natural Heritage and Endangered Species Program (Program), the applicant has obtained a preliminary written determination from the Program in accordance with 310 CMR 10.11(2) that the project will not have any adverse long-term and short-term effects on specified habitat sites of Rare Species or the project will be carried out in accordance with a habitat management plan that has been approved in writing by the Natural Heritage and Endangered Species Program and submitted with the Notice of Intent;

3. The applicant demonstrates that the project will be carried out in accordance with any time of year restrictions or other conditions recommended by the Division of Marine Fisheries for coastal waters and the Division of Fisheries and Wildlife in accordance with 310 CMR 10.11(3);

4. If the project is located in a Coastal Dune or Barrier Beach, the applicant has demonstrated that s/he has avoided and minimized armoring of the Coastal Dune or Barrier Beach to the maximum extent practicable; and

5. The applicant demonstrates that the project complies with all applicable provisions of 310 CMR 10.24(1) through (6) and (9) and (10).

(b) An Ecological Restoration Project permitted as an Ecological Restoration Limited Project in accordance with 310 CMR 10.24(8) may result in the temporary or permanent loss of Resource Areas and/or the conversion of one Resource Area to another when such loss is necessary to the achievement of the project's ecological restoration goals.

(c) As set forth in 310 CMR 10.12(3), a person submitting a Notice of Intent for an Ecological Restoration Limited Project in accordance with 310 CMR 10.12(1) and (2) is exempt from the requirement to perform a wildlife habitat evaluation in accordance with the requirements of 310 CMR 10.60, notwithstanding the provisions of 310 CMR 10.54(4)(a)5., 10.56(4)(a)4., and 10.60.

(d) In determining whether to approve a project as an Ecological Restoration Limited Project, the issuing authority shall consider the following:

1. the condition of existing and historic Resource Areas proposed for restoration including evidence of the extent and severity of the impairment(s) that reduce the capacity of said Resource Areas to protect and sustain the interests identified in M.G.L. c. 131, § 40;

2. the magnitude and significance of the benefits of the Ecological Restoration Project in improving the capacity of the affected Resource Areas to protect and sustain the other interests identified in M.G.L. c. 131, § 40; and

3. the magnitude and significance of the impacts of the Ecological Restoration Project on existing Resource Areas that may be modified, converted and/or lost and the interests for which said Resource Areas are presumed significant in 310 CMR 10.00, and the extent to which the applicant will:

a. avoid adverse impacts to Resource Areas and the interests identified in M.G.L. c. 131, § 40, that can be avoided without impeding the achievement of the project's ecological restoration goals;

b. minimize adverse impacts to Resource Areas and the interests identified in M.G.L. c. 131, § 40, that are necessary to the achievement of the project's ecological restoration goals; and

c. utilize best management practices such as erosion and siltation controls and proper construction sequencing to avoid and minimize adverse construction impacts to resource areas and the interests identified in M.G.L. c. 131, § 40.

(e) Types of Ecological Restoration Limited Projects. The following projects may be permitted as Ecological Restoration Limited Projects in accordance with 310 CMR 10.24(8)(a) through (d):

1. Tidal Restoration Project. A project that will restore tidal flow and that does not meet all the eligibility criteria set forth in 310 CMR 10.13 may be permitted as an Ecological Restoration Limited Project provided that in addition to the criteria set forth in 310 CMR 10.24(8)(a) through (d), the project including any proposed flood mitigation measures will not significantly increase flooding or storm damage impacts to the built environment, including without limitation, buildings, wells, septic systems, roads or other human-made structures or infrastructure.

2. Shellfish Habitat Restoration Project. A project to emplace cultch or other substrate for the purpose of restoring shellfish habitat may be permitted as an Ecological Restoration Limited Project provided that in addition to the criteria set forth in 310 CMR 10.24(8)(a) through (d) the following criteria are met:

a. The applicant has received a Special Projects Permit from the Division of Marine Fisheries or, if a municipality, has received a shellfish propagation permit; and

b. The project is made of cultch (e.g., shellfish shells from oyster, surf or ocean clam) or is a structure manufactured specifically for shellfish enhancement (e.g., reef blocks, reef balls, racks, floats, rafts, suspended gear).

3. Other Ecological Restoration Projects. An Ecological Restoration Project that is not listed in 310 CMR 10.24(8)(e)1. and 2. may be permitted as an Ecological Restoration Limited Project provided the project meets the criteria set forth in 310 CMR 10.24(8)(a) through (d). Such projects include but are not limited to the restoration, enhancement, or management of Rare Species habitat, the restoration of hydrologic and habitat connectivity, the removal of aquatic nuisance vegetation to impede eutrophication, the thinning or planting of vegetation to improve habitat value, fill removal and regrading, riparian corridor re-naturalization, river floodplain re-connection, in-stream habitat enhancement, remediation of historic tidal wetland ditching, eel grass restoration, invasive species management, and the installation of fish passage structures.

(9) The Notice of Intent for any projects involving the construction, repair, replacement or expansion of public or private infrastructure shall include an operation and maintenance plan to ensure that the infrastructure will continue to function as designed. Implementation of the operation and maintenance plan as approved by the issuing authority shall be a continuing condition that shall be set forth in the Order of Conditions and the Certificate of Compliance.

(10) Any person proposing replacement of an existing stream crossing shall demonstrate to the issuing authority that the impacts of the crossing have been avoided where possible, and when not possible, have been minimized and that mitigation measures have been provided to contribute to the protection of the interests identified in M.G.L. c. 131, § 40. An applicant will be presumed to have made this showing if the project is designed as follows:

(a) If the project includes replacement of an existing non-tidal crossing that is part of an Anadromous/Catadromous Fish Run, pursuant to 310 CMR 10.35, the applicant demonstrates to the satisfaction of the issuing authority that the crossing complies with the Massachusetts Stream Crossing Standards to the maximum extent practicable.

(b) If the project includes replacement of an existing tidal crossing that restricts tidal flow, the applicant demonstrates to the satisfaction of the issuing authority that tidal restriction will be eliminated to the maximum extent practicable.

This presumption may be rebutted by credible evidence from a competent source that the impacts of the project have not been avoided, minimized or mitigated to the maximum extent practicable.

At a minimum, in evaluating the potential to comply with the standards to the maximum extent practicable the applicant shall consider site constraints in meeting the standard, undesirable effects or risk in meeting the standard, and the environmental benefit of meeting the standard compared to the cost, by evaluating the following:

* The potential for downstream flooding;

* Upstream and downstream habitat (in-stream habitat, wetlands);

* Potential for erosion and head-cutting;

* Stream stability;

* Habitat fragmentation caused by the crossing;

* The amount of stream mileage made accessible by the improvements;

* Storm flow conveyance;

* Engineering design constraints specific to the crossing;

* Hydrologic constraints specific to the crossing;

* Impacts to wetlands that would occur by improving the crossing;

* Potential to affect property and infrastructure; and

* Cost of replacement.

Notes

310 CMR 10.24

Amended by Mass Register Issue 1272, eff. 10/24/2014.