314 CMR, § 21.04 - Application Review Process

(1) Permit Review Standard. The Department shall not issue a Watershed Permit if the proposed Watershed Management Plan does not provide for either achievement of the Necessary Nitrogen Load Reductions during the permit term or reasonable progress in achievement of those Necessary Nitrogen Load Reductions within the permit term. The Department will make a finding of reasonable progress if it determines that:

(a) the Applicant's proposed alternative provided under 314 CMR 21.03(2)(b)13. is reasonable considering the financial costs and environmental impacts of the complete and proposed alternative compliance scenarios provided under 314 CMR 21.03(2)(b)13;

(b) the Applicant cannot reasonably achieve the Necessary Nitrogen Load Reductions within the permit term; and

(c) either:

1. at least 75% of the Necessary Nitrogen Load Reduction will be achieved within 20 years, or

2. an alternative schedule is appropriate based on watershed-specific issues (e.g., number or complexity of watersheds, proportion of community's land area in watershed, total nitrogen load to be reduced, logistical and financial planning for wastewater infrastructure, complexity of achieving nitrogen reduction targets). The alternative schedule must, at a minimum, include planning and a schedule to achieve all Necessary Nitrogen Load Reductions.

(2) Tentative Determination and Preparation of Draft Permits

(a) After receiving a complete application, the Department will issue for public comment a draft permit or a tentative determination to deny a permit.

(b) If the Department issues a draft permit, the draft permit shall contain such terms and conditions as the Department deems necessary to ensure that the permitted discharges, activities and facilities will comply with all applicable requirements of 314 CMR 21.00.

(c) The Department may determine to withdraw a draft permit before issuing a final permit. The Department may provide a written statement to the applicant and any other person who requests it stating why the Department has withdrawn the draft permit and whether the Department intends to issue a revised draft permit for public comment in the future.

(d) Public Notice. The applicant shall provide public notice of the draft Watershed Permit or tentative determination to deny a permit at the applicant's expense in accordance with the requirements of 314 CMR 21.04(2)(d)1. through 6. Public notice shall afford a period of at least 60 days after the date of publication during which the public may comment or request a public hearing. The Department may elect to extend the public comment period. If the Department provides such an extension, the applicant shall provide notice thereof in the same manner as the original notice.

1. The applicant shall publish public notice of the Watershed Permit proceeding in the Environmental Monitor and in a local or regional newspaper with the largest readership distribution both online and in hardcopy, if hardcopy exists, within the area that will be affected by the Watershed Permit. The applicant will also request that notice be published in the local town or city hall and on the website of the community or communities that may be affected. The Department will post the notice on the Department's webpage. The applicant shall send a copy of the public notice to the Department at least two business days before the date of publication.

2. In municipalities with Environmental Justice Populations where the preceding manner for publishing public notice does not specifically serve the Environmental Justice Population(s), the applicant shall provide public notice to at least one additional news organization that primarily serves the Environmental Justice Population(s) within the area that may be affected by the Watershed Permit. The public notice shall be translated into other languages that are prevalent in areas with persons of limited English proficiency.

3. Within seven days after the date of publication, the applicant shall submit to the Department a copy of the public notice as published in the Environmental Monitor and the name and address of the newspaper(s) in which it was published and the date the notice appeared in the newspaper(s).

4. The Department will post the notice on the Department's webpage and shall send a copy of a public notice to any person who has submitted a written request for notice of the proceeding.

5. The date of publication in the Environmental Monitor shall constitute the date of publication of public notice for purposes of 314 CMR 21.00.

6. The public notice shall contain the following minimum information and any additional information the Department deems appropriate:

a. the name and address of the applicant;

b. identification of the watershed or sub-watershed to be addressed by the Watershed Permit;

c. the statutory and regulatory authority under which the final determination will be made;

d. the name, telephone number, and e-mail address of the person from whom a copy of the draft Watershed Permit or tentative determination may be obtained; and

e. the time within which the public may comment or request a public hearing.

(3) Public Hearings. If the applicant requests a public hearing, or if the Department determines a public hearing to be in the public interest, then the Department shall schedule and conduct such hearing either remotely or in a community within the area that may be affected by the Watershed Permit. The applicant shall provide public notice of the public hearing in accordance with 314 CMR 21.04(2)(d)1. through 6. at least 30 days prior to the hearing. Where a public hearing is held, the public comment period shall be extended to the conclusion of the public hearing or such later date as may be established by the Department.

(4) Issuance or Denial of Permit. After the conclusion of the public comment period, the Department may issue or deny a final Watershed Permit. The Department's determination shall be effective upon the date of issuance or denial of the permit, unless an appeal is filed during the 21-day period following issuance or denial, pursuant to 314 CMR 21.11 and 310 CMR 1.01: Adjudicatory Proceeding Rules for the Department of Environmental Protection. If the filing of the Watershed Permit application or a Notice of Intent for such application operated to suspend the application of any applicable Title 5 upgrade or New Construction requirements under 310 CMR 15.215(2), then within 28 days of a permit denial becoming effective, the Department will publish notice of the denial and that the mandatory Title 5 upgrade and New Construction requirements are invoked in accordance with the timeframes established in 310 CMR 15.215(2)(d) as if a Watershed Permit had been terminated or revoked, effective on the date the Department publishes the notice of denial. The Department shall publish the notice: in the forthcoming Environmental Monitor; on the Department's website; in the town hall where similar notices are published; and in a local or regional newspaper with the largest readership distribution within the area that may be affected by the Title 5 upgrade and New Construction requirements. In municipalities with Environmental Justice Populations where the preceding method for publishing public notice does not specifically serve the Environmental Justice Population(s), the Department must also provide the preceding notice to at least one additional news organization that primarily serves the Environmental Justice Population(s) within the area that may be affected by the designation. The public notice shall be translated into other languages that are prevalent in areas with persons of limited English proficiency.

Notes

314 CMR, § 21.04

Adopted by Mass Register Issue 1499, eff. 7/7/2023. Amended by Mass Register Issue 1501, eff. 7/7/2023.