310 CMR, § 10.53 - 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 a
Resource Area to protect the interest 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 site of a
proposed project is subject to a Restriction Order which has been duly recorded
under the provisions of M.G.L. c. 131, § 40A, such a project shall conform
to both the provisions contained in that Order and
310 CMR 10.51
through
10.60.
(3) Notwithstanding the provisions of
310 CMR
10.54 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 permitting the following limited 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
10.59) . In determining whether to exercise
its discretion to approve the limited projects listed in 310 CMR 10.53(3), the
Issuing Authority shall consider the following factors: the magnitude of the
alteration and the significance of the project site to the interests identified
in M.G.L. c. 131, § 40, the availability of reasonable alternatives to the
proposed activity, 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.
(a) Work on land to be
used primarily and directly in the raising of animals, including but not
limited to dairy cattle, beef cattle, poultry, sheep, swine, horses, ponies,
mules, goats, bees and fur-bearing animals or on land to be used in a related
manner which is incidental thereto and represents a customary and necessary use
in raising such animals; and work on land to be used primarily and directly in
the raising of fruits, vegetables, berries, nuts and other foods for human
consumption, feed for animals, tobacco, flowers, sod, trees, nursery or
greenhouse products, and ornamental plants and shrubs; or on land to be used in
a related manner which is incidental thereto and represents a customary and
necessary use in raising such products, provided they are carried out in
accordance with the following general conditions and any additional conditions
deemed necessary by the issuing authority:
1.
there shall occur no change in the existing topography or the existing soil and
surface water levels of the area;
2. all fertilizers, pesticides, herbicides
and other such materials shall be used in accordance with all applicable state
and federal laws and regulations governing their use; and
3. all activities shall be undertaken in such
a manner as to prevent erosion and siltation of adjacent water bodies and
wetlands as specified by the U.S.D.A. Soil Conservation Service, Guidelines for
Soil and Water Conservation. A plan prepared by the U.S.D.A. Soil Conservation
Service through a county conservation district for the improvement of land for
agriculture shall be deemed adequate to prevent erosion and
siltation.
(b) Work on
land to be used primarily and directly in the raising of cranberries or on land
to be used in a related manner which is incidental thereto and represents a
customary and necessary use in raising such products, provided it is carried
out in accordance with the following general conditions and any additional
conditions deemed necessary by the issuing authority:
1. all fertilizers, pesticides, herbicides
and other such materials shall be used in accordance with all applicable state
and federal laws and regulations governing their use; and
2. all activities shall be undertaken in such
a manner as to prevent erosion and siltation of adjacent water bodies and
wetlands as specified by the U.S.D.A. Soil Conservation Service, Guidelines for
Soil and Water Conservation.
(c) Work on land to be used primarily and
directly in the raising of forest products under a planned program to improve
the quantity and quality of a continuous crop or on land to be used in a
related manner which is incidental thereto and represents a customary and
necessary use in raising such products, provided it is carried out in
accordance with the following general conditions and any additional conditions
deemed necessary by the issuing authority:
1.
there shall occur no change in the existing topography or the existing soil and
surface water levels of the area except for temporary access roads;
2. the removal of trees shall occur only
during those periods when the ground is sufficiently frozen, dry or otherwise
stable to support the equipment used; and
3. all activities shall be undertaken in such
a manner as to prevent erosion and siltation of adjacent water bodies and
wetlands as specified by the U.S.D.A. Soil Conservation Service, Guidelines for
Soil and Water Conservation.
4. the
placement of slash, branches and limbs resulting from the cutting and removal
operations shall not occur within 25 feet of the bank of a water
body.
(d) The
construction, reconstruction, operation and maintenance of underground and
overhead public utilities, such as electrical distribution or transmission
lines, or communication, sewer, water and natural gas lines, may be permitted,
in accordance with the following general conditions and any additional
conditions deemed necessary by the issuing authority:
1. the issuing authority may require a
reasonable alternative route with fewer adverse effects for a local
distribution or connecting line not reviewed by the Energy Facilities Siting
Council;
2. best available measures
shall be used to minimize adverse effects during construction;
3. the surface vegetation and contours of the
area shall be substantially restored; and
4. all sewer lines shall be constructed to
minimize inflow and leakage.
(e) The construction and maintenance of a new
roadway or driveway of minimum legal and practical width acceptable to the
planning board, where reasonable alternative means of access from a public way
to an upland area of the same owner is unavailable. Such roadway or driveway
shall be constructed in a manner which does not restrict the flow of water.
Reasonable alternative means of access may include any previously or currently
available alternatives such as realignment or reconfiguration of the project to
conform to
310 CMR
10.54 through
10.58 or to
otherwise minimize adverse impacts on resource areas. The issuing authority may
require the applicant to utilize access over an adjacent parcel of land
currently or formerly owned by the applicant, or in which the applicant has, or
can obtain, an ownership interest. The applicant shall design the roadway or
driveway according to the minimum length and width acceptable to the Planning
Board, and shall present reasonable alternative means of access to the Board.
The applicant shall provide replication of bordering vegetated wetlands and
compensatory flood storage to the extent practicable. In the Certificate of
Compliance, the issuing authority may continue a condition imposed in the Order
of Conditions to prohibit further activities under 310 CMR
10.53(3)(e).
(f) Maintenance and
improvement of existing public roadways, but limited to widening less than a
single lane, adding shoulders, correcting substandard intersections, and
improving inadequate drainage systems.
(g) The excavation of wildlife impoundments,
farm ponds and ponds for fire protection. The above uses are allowed provided
that no fill or other material is placed upon the wetland except as may be
necessary to construct said impoundments or ponds, to provide access thereto,
and to provide bank stabilization.
(h) The maintenance of beaches and boat
launching ramps which existed on the effective date of
310 CMR 10.51
through
10.60
(April 1, 1983).
(i) The
maintenance, repair and improvement (but not substantial enlargement except
when necessary to meet the Massachusetts Stream Crossing Standards) of
structures, including dams and reservoirs and appurtenant works to such dams
and reservoirs, buildings, piers, towers, headwalls, bridges, and culverts
which existed on the effective date of
310 CMR 10.51
through
10.60
(April 1, 1983). When water levels are drawn down for the maintenance, repair,
or improvement of dams or reservoirs or appurtenant works to such dams or
reservoirs under 310 CMR 10.53(3)(i), water levels that existed immediately
prior to such projects being undertaken shall be restored upon completion of
the work, and a new Notice of Intent need not be filed for such restoration. If
the Department of Conservation and Recreation Office of Dam Safety determines
that it would not be safe to restore the water level existing prior to the
project being undertaken, the applicant shall submit a new Notice of Intent
within ninety days of the date of the determination describing the measures
necessary with a schedule for repairing or replacing the dam and returning
water levels to the previous condition, or removing the dam and restoring the
riparian habitat.
(j) The
construction and maintenance of catwalks, footbridges, wharves, docks, piers,
boathouses, boat shelters, duck blinds, skeet and trap shooting decks and
observation decks; provided, however, that such structures are constructed on
pilings or posts so as to permit the reasonably unobstructed flowage of water
and adequate light to maintain vegetation.
(k) 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 the effective date of
310 CMR 10.51
through
10.60
(April 1, 1983).
(l) The
construction, reconstruction, operation or maintenance of water dependent uses;
provided, however that:
1. any portion of such
work which alters a bordering vegetated wetland shall remain subject to the
provisions of
310
CMR 10.55,
2. such work in any other resource area(s)
found to be significant to flood control or prevention of storm damage shall
meet the performance standards for that interest(s), and
3. adverse impacts from such work in any
other resource area(s) shall be minimized regarding the other statutory
interests for which that resource area(s) is found to be significant.
(m) Lake drawdown projects (except
those related to the breaching of a dam or a reservoir or an appurtenant work
to such dam or reservoir) undertaken in response to written Orders or
Recommendation Letters issued by the Department of Conservation and Recreation
Office of Dam Safety (DCR). The issuing authority shall, in the Order of
Conditions, limit the duration of the drawdown based on information contained
in the written finding or superseding finding by DCR pursuant to M.G.L. c. 253,
§§ 44 through 50, concerning the time required to repair the dam and
the economic practicability of repairing the dam. In no event shall the
drawdown continue longer than three years without a new or extended Order of
Conditions being obtained permitting the drawdown. Water levels that existed
immediately prior to such drawdowns shall be restored no later than the
expiration date of the Order of Conditions or any new or extended Order of
Conditions, and a new Notice of Intent need not be filed for such restoration.
(n) Airport vegetation removal
projects; provided, however, that:
1. 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;
2.
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);
3. the requirement outlined in 310 CMR
10.53(3)(n)1. must be certified in writing by the FAA or by the MAC;
4. such projects shall not include the
construction of new airport facilities or the expansion or relocation of
existing airport uses;
5. Notices
of Intent filed for such projects shall:
a.
delineate the vegetation requiring removal;
b. delineate the affected resource
areas;
c. identify the proposed
method for removal of vegetation and analyze alternatives. At a minimum, the
alternatives analysis shall include:
i. 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;
ii. an assessment of impacts to resource
areas resulting from mechanical methods of vegetation removal, including the
use of both large and small equipment; and
iii. an assessment of impacts to resource
areas resulting from chemical methods of vegetation removal;
d. quantify the likely impacts to
wildlife habitat and water quality;
e. 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, monitoring, and compensatory flood storage;
and
f. 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;
6. 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;
7. in addition to existing notice
requirements contained in
310 CMR
10.00, for projects pursuant to 310 CMR 10.53(3)(n)
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 Conservation and Recreation (Areas
of Critical Environmental Concern Program), and the Division of Water Supply in
the Department of Environmental Protection; and
8. 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:
a. hydrological changes to resource areas
shall be minimized;
b. 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;
c. mitigating
measures shall be implemented that contribute to the protection of the
interests identified in M.G.L. c. 131, § 40;
d. compensatory storage shall be provided in
accordance with the standards of
310 CMR
10.57(4)(a)1. for all flood
storage volume that will be lost;
e. no access road or other structure or
activity shall restrict flows so as to cause an increase in flood stage or
velocity;
f. no change in the
existing surface topography or the existing soil and surface water levels shall
occur except for temporary access roads;
g. 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;
h. 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
i. slash, branches, and limbs resulting from
cutting and removal operations shall not be placed within 25 feet of the bank
of any water body.
(o) The exploration, development,
construction, expansion, maintenance, operation, and replacement of public
water supply wells or wellfields (including necessary associated roads, ways,
structures, and underground and overhead utility lines) derived from
groundwater, provided, however, that:
1.
approval for the water supply has been granted under the Public Water Supply
Source Approval Process pursuant to
310 CMR
22.21: Ground Water Supply Protection and/or
the Water Management Act, M.G.L. c. 21G. This general condition shall not apply
to exploration; and
2. 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:
a. hydrological changes to
resource areas shall be minimized;
b. 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;
c. mitigating measures shall be implemented
that contribute to the protection of the interests identified in M.G.L. c. 131,
§ 40;
d. compensatory storage
shall be provided in accordance with the standards of
310 CMR
10.57(4)(a)1. for all flood
storage volume that will be lost;
e. no access road or other structure or
activity shall restrict flows so as to cause an increase in flood stage or
velocity;
f. temporary structures
and work areas in resource areas, including 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;
and
g. work in resource areas shall
occur only when the ground is sufficiently frozen, dry, or otherwise stable to
support the equipment being used.
(p) The closure of landfills when undertaken
to comply with the requirements of 310 CMR 19.000: Solid Waste Management;
provided, however, that:
1. a project design
alternative analysis shall be prepared in accordance with
310 CMR
19.150: Landfill Assessment Requirements;
and
2. 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:
a. hydrological changes to resource areas
shall be minimized;
b. 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;
c. mitigating
measures shall be implemented that contribute to the protection of the
interests identified in M.G.L. c. 131, § 40;
d. compensatory storage shall be provided in
accordance with the standards of
310 CMR
10.57(4)(a)1. for all flood
storage volume that will be lost;
e. 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;
f. 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;
g. 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;
h. work in resource areas shall occur only
when the ground is sufficiently frozen, dry, or otherwise stable to support the
equipment used; and
i. such
projects shall not include the construction of new landfills or the expansion
or modification of existing landfills.
(q) 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) ) :
1. 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, at a minimum, the
following:
a. an alternative that does not
alter resource areas, which will provide baseline data for evaluating other
alternatives; and
2. 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 shall meet the following standards to the maximum extent
practicable:
a. hydrological changes to
resource areas shall be minimized;
b. 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;
c. mitigating measures shall be implemented
that contribute to the protection of the interests identified in M.G.L. c. 131,
§ 40;
d. compensatory storage
shall be provided in accordance with the standards of
310 CMR
10.57(4)(a)1. for all flood
storage volume that will be lost;
e. 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;
f. 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
g. work in resource areas shall occur only
when the ground is sufficiently frozen, dry, or otherwise stable to support the
equipment being used.
(r) The construction of a new access for
forestry, including leaving in place an access constructed in accordance with
310 CMR 10.04
(Agriculture)(b)14.d., or the enlargement of an
existing access for forestry, provided that:
1. the access is constructed:
a. in accordance with a Forest Cutting Plan
approved by the Department of Environmental Management (DEM) under the
provisions of M.G.L. c. 132, §§ 40 through 46; or
b. on land subject to a permanent, recorded
conservation restriction that has been created in accordance with M.G.L. c.
184, §§ 31 through 33 and maintains the land in perpetual forest use;
2. the access is of the
minimum practicable width that is required for the cutting and removal of
trees;
3. practicable alternative
access across upland in not available;
4. the number of access ways located within
resource areas is minimized;
5.
activities shall be conducted when the soil is frozen, dry, or otherwise stable
to support the equipment used;
6.
the access does not increase flood stage or velocity;
7. the design and installation of the access
complies with the Massachusetts Forestry Best Management Practices Manual. When
the access involves fill, culverts or other structures that will obstruct flow,
it shall be designed, constructed, and maintained in accordance with the
Massachusetts Forestry Best Management Practices Manual. When crossings involve
fill, culverts or other structures that will obstruct flow, they shall be
designed, constructed, and maintained in accordance with the Massachusetts
Forestry Best Management Practices Manual to allow the unobstructed passage of
existing flows for at least the 25 year storm; and
(s) The cutting of trees by owners for their
own use of more than 10,000 board feet or 20 cords but less than 25,000 board
feet or 50 cords during any 12 month period, provided that:
1. after the cutting, the remaining trees in
the resource area shall be evenly distributed throughout the area where cutting
occurred and the crown cover shall not be less than 50%. Crown cover is
determined as the percent of the ground's surface that would be covered by a
vertical projection of foliage from trees with a diameter at breast height of
five inches or greater, where minor gaps between branches are disregarded and
areas of overlapping foliage are counted only once;
2. the cutting and removal of trees shall
occur only during those periods when the ground is sufficiently frozen, dry, or
otherwise stable to support the equipment used;
3. the cutting, removal, or other destruction
of trees and understory vegetation shall be minimized within 25 feet of the
bank of a water body, except for the purpose of providing access for the
activities described in
310 CMR 10.04
(Agriculture)(b)15.;
4. the placement of slash, branches, and
limbs resulting from cutting and removal operations shall not occur within 25
feet of the bank of a water body;
5. no filling, excavation, or other change
shall occur in the existing topography or hydrology of a resource area;
and
6. landings for forest products
shall not be located in Bordering Vegetated Wetland or Bank.
(t) 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, where reasonable alternative means of access to an upland area is
unavailable, provided that it is carried out in accordance with the following
general conditions and any additional conditions deemed necessary by the
issuing authority. Reasonable alternative means of access may include any
previously or currently available alternatives such as realignment or
reconfiguration of the project to conform to
310 CMR
10.54 through
10.58 or to
otherwise minimize adverse impacts on resource areas. The issuing authority may
require the applicant to utilize access over an adjacent parcel of land
currently or formerly owned by the applicant, or in which the applicant has, or
can obtain, an ownership interest. Such projects shall be designed,
constructed, implemented, operated, and maintained to meet all of the following
standards to the maximum extent practicable:
1. Hydrological changes to resource areas
shall be minimized.
2. 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 s/he 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.
3. No access
road or other structure or activity shall restrict flows so as to cause an
increase in flood stage or velocity.
4. No change in the existing surface
topography or the existing soil and surface water levels shall occur except for
temporary access roads.
5.
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 area 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.
6. 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.
7. 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. The applicant
shall provide replication of bordering vegetated wetlands and compensatory
flood storage to the extent practicable.
9. The applicant demonstrates to the
satisfaction of the Issuing Authority that any stream crossings meet the
general performance standards in
310 CMR
10.54(4) a. and 10.56(4)a.
(4)
Ecological Restoration Limited Projects.
(a) Notwithstanding the requirements of any
other provision 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 10.53(4)(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 involves the dredging of
100 cubic yards of sediment or more or dredging of any amount in an Outstanding
Resource Water, the applicant has applied for or obtained a Water Quality
Certification by the Department; and
5. the project complies with all applicable
provisions of 310 CMR 10.53(1), (2), (7), and (8).
(b) An Ecological Restoration Project
permitted as an Ecological Restoration Limited Project in accordance with 310
CMR 10.53(4) 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
coastal 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. void 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
issuing authority may permit the following projects as Ecological Restoration
Limited Projects in accordance with 310 CMR 10.53(4)(a) through (d).
1.
Dam Removal
Projects. A dam removal project, that does not meet all of the
eligibility criteria set forth in
310 CMR
10.13, may be permitted as an Ecological
Restoration Limited Project provided that in addition to meeting the
eligibility criteria set forth in 310 CMR 10.53(4)(a) through (d), the project
as proposed furthers at least one of the interests identified in M.G.L. c. 131,
§ 40. In considering the factors set forth in 310 CMR 10.53(4)(d)3., the
Issuing Authority shall consider whether the project as proposed is consistent
with the Department's 2007 Guidance entitled Dam Removal and the Wetlands
Regulations.
2.
Freshwater Stream Crossing Repair and Replacement
Projects. A freshwater stream crossing repair or replacement
project that does not meet all of the eligibility criteria set forth in
310 CMR
10.13 may be permitted as an Ecological
Restoration Limited Project provided that in addition to meeting the
eligibility criteria set forth in 310 CMR 10.53(4)(a) through (d), the project
meets all of the following eligibility criteria:
a. the applicant demonstrates to the
satisfaction of the Issuing Authority that meeting the eligibility criteria set
forth in
310 CMR
10.13 would result in significant stream
instability or flooding hazard that cannot otherwise be mitigated, and site
constraints make it impossible to meet said criteria;
b. the project is designed to ensure that the
project will not impair the stability of the Bank;
c. to the maximum extent practicable, the
project provides for the restoration of the stream upstream and downstream of
the structure as needed to restore stream continuity and eliminate barriers to
aquatic organism movement; and the project complies with the requirements of
310 CMR 10.53(7) and (8).
3.
Stream Daylighting
Projects. A stream daylighting project 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 eligibility
criteria set forth in 10.53(4)(a) through (d), the proposed project meets to
the maximum extent practicable, consistent with the project's ecological
restoration goals, all the performance standards for Bank and Land under Water
Bodies and Waterways. As set forth in
310 CMR
10.12(3), a person
submitting a Notice of Intent for a Stream Daylighting Project that meets the
requirements of
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.
4.
Tidal Restoration Projects. 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 eligibility
criteria set forth in 310 CMR 10.53(4)(a) through (d), the project, including
any proposed flood mitigation measures, will not significantly increase
flooding or storm damage to the built environment, including without
limitation, buildings, wells, septic systems, roads or other man-made
structures or infrastructure,
5.
Other Restoration Projects. An Ecological Restoration
Project that is not listed in
310 CMR
10.54(4)(e)2. through 4.,
that will improve the natural capacity of a Resource Area(s) to protect the
interests identified in M.G.L. c. 131, § 40, may be permitted as an
Ecological Restoration Limited Project provided that the project meets the
eligibility criteria set forth in
310 CMR
10.54(4)(a) though (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 retard pond and
lake eutrophication, the thinning or planting of vegetation to improve habitat
value, riparian corridor re-naturalization, river floodplain reconnection,
in-stream habitat enhancement, fill removal and regrading, flow restoration,
and the installation of fish passage structures.
(5) Notwithstanding the
provisions of 310 CMR 10.53(1),
10.54
through
10.58, and
10.60,
the issuing authority shall issue an Order of Conditions permitting as a
limited project for the support of existing agricultural production the
reconstruction of existing dikes, the construction of new ponds or reservoirs,
the expansion of existing ponds or reservoirs, and the construction of
tailwater recovery systems and by pass canals/channels, provided that the
following criteria are met:
(a) The Notice of
Intent shall include all relevant portions of the farm Conservation Plan (CP)
covering the work which has been prepared for the property and the applicant in
cooperation with the United States Soil Conservation Service (SCS) pursuant to
the January 20, 1993, Memorandum of Understanding (MOU) between the Department
and SCS concerning CPs. At a minimum, the Notice of Intent shall include a
description of the project, the number of square feet of each type of resource
area that will be altered, and the alternatives that were considered in order
to avoid alterations of wetland resource areas.
(b) There shall be a rebuttable presumption,
which may be overcome upon a clear showing to the contrary, that:
1. work described in the CP avoids impacts to
wetland resource areas or minimizes impacts where they are unavoidable;
and
2. construction specifications
and mitigation measures contained in the CP minimize impacts where impacts are
unavoidable and adequately protect the interests of M.G.L. c. 131, §
40.
(c) If any
presumption set forth in 310 CMR 10.53(5)(b) is overcome upon a clear showing
to the contrary, the issuing authority shall impose such conditions on the work
as are necessary to restore the presumption.
(d) The project will not have any adverse
effect on specified habitat sites of Rare Species, as identified by procedures
established under
310 CMR
10.59.
(e) The maximum amount of Bordering Vegetated
Wetland which may be altered by the above activities is:
1. 20,000 square feet for the construction or
expansion of a pond or reservoir;
2. 20,000 square feet for the construction of
a tailwater recovery system;
3.
20,000 square feet for the construction of a by-pass canal/channel;
and
4. 10,000 square feet for the
reconstruction of an existing dike.
(f) There shall not be any filling or
dredging of a Salt Marsh.
(6) Notwithstanding the provisions of
310 CMR 10.58,
the Issuing Authority may issue an Order of Conditions permitting as a limited
project the construction, rehabilitation, and maintenance of footpaths,
bikepaths, and other pedestrian or nonmotorized vehicle access to or along
riverfront areas but outside other resource areas, provided that adverse
impacts from the work are minimized and that the design specifications are
commensurate with the projected use and are compatible with the character of
the riverfront area. Generally, the width of the access shall not exceed ten
feet of pavement, except within an area that is already altered (e.g., railroad
beds within rights of way). Access shall not be located in vernal pools or
fenced in a manner which would impede the movement of wildlife.
(7) 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.
(8) Any person proposing the 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, 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 of 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
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No prior version found.