The Department certifies the activities identified in 314 CMR
9.03(1) through (8) and therefore they do not require an individual 401 Water
Quality Certification application provided the specified conditions are met.
For activities meeting these specified conditions, the Final Order of
Conditions or final Restoration Order of Conditions issued pursuant to
310 CMR
10.00: Wetlands Protection, as applicable, serves as
the Water Quality Certification for the project.
(1)
Less than 5000 Sq. Ft. with
an Order of Conditions. Activities conducted in compliance with
the Wetlands Protection Act and receiving a Final Order of Conditions which
meets all applicable performance standards under
310 CMR
10.00: Wetlands Protection, provided that:
(a) the Final Order of Conditions permits
work that results in the loss of up to 5,000 square feet cumulatively of
bordering and isolated vegetated wetlands and land under water. Both bordering
and isolated vegetated wetlands must be delineated on the plans contained in
the Notice of Intent and described on a form prescribed by the Department;
and
(b) the Final Order of
Conditions includes conditions requiring at least 1:1 replacement of bordering
vegetated wetlands under
310
CMR
10.55(4)(b);
(c) if applicable, the activity conforms to
the stream crossing provisions of
310 CMR
10.24(10)
and
10.53(8);
and
(d) the proposed work is not
subject to
314 CMR
9.04.
(2)
Beach
Nourishment. Beach nourishment activities with a Final Order of
Conditions issued under M.G.L. c. 131, § 40.
(3)
Dredging Less than 100
C.Y. Dredging and dredged material disposal of less than 100 cubic
yards, provided that a Final Order of Conditions has been issued and the
proposed work is not subject to
314 CMR
9.04 and the work is not subject to an
individual 404 permit by the Corps of Engineers. Dredged sediment generated
from such activities shall be managed in accordance with the provisions of
314
CMR
9.07(9) through (11) and
may be used for beach nourishment activities or reuse within the shoreline
under a Final Order of Conditions issued under M.G.L. c. 131, §
40.
(4)
Agriculture or
Aquaculture Exempt under M.G.L. c. 131, § 40 (the Wetlands Protection
Act). Normal maintenance and improvement of land in agricultural
or aquacultural use that is exempt from the Wetlands Protection Act, as defined
and performed in accordance with
310 CMR
10.04:
Definitions:
Agriculture including the alternatives
analysis, as applicable, performed by the USDA Natural Resources Conservation
Service (formerly Soil Conservation Service) or
310 CMR
10.04:
Definitions:
Agriculture. The provisions of
314 CMR
9.04 do not apply.
(5)
Less than 5000 Sq. Ft. of
Isolated Vegetated Wetlands. Any activity in an area not subject
to jurisdiction of the Wetlands Protection Act which is subject to
33 U.S.C.
1251 (i.e., isolated vegetated wetlands)
which will result in the loss of up to 5000 square feet cumulatively of
bordering and isolated vegetated wetlands and land under water, provided there
is no discharge of dredged or fill material to any Rare Species Habitat or to
any Outstanding Resource Water.
(6)
Planning and Design Activities. Activities that are
temporary in nature, have negligible impacts, and are necessary for planning
and design purposes such as the installation of monitoring wells, exploratory
borings, sediment sampling, and surveying. The applicant shall notify the
Department and conservation commission at least ten days prior to commencing
the activity. Notification is not required if a valid, unexpired Final Negative
Determination of Applicability has been issued for the work as described
310 CMR
10.05(3)(b). Notification
shall include a description of the activity, the location of the proposed
activity and measures to be taken to avoid or minimize impacts. The site shall
be substantially restored to its condition prior to the activity.
The Department will notify the persons to whom an Order of
Conditions is issued not later than ten business days of its receipt by the
Department that based on the information available to the Department the
criteria of 314 CMR 9.03 have not been met. If the impacts to resource areas,
as defined in the Massachusetts Wetland Protection Act and the Federal Clean
Water Act, or the project size increases from the description filed with the
Notice of Intent, or there are any inaccuracies therein, the applicant must
notify the Department in writing and request a determination that the criteria
of 314 CMR 9.03 have been met before the activity begins.
(7)
Test Projects. A
Test Project authorized by and conducted in accordance with a final Order of
Conditions provided that the project: does not require an individual Section
404 permit from the U.S. Army Corps of Engineers; is not located in Outstanding
Resource Waters; and does not exceed any of the impact thresholds set forth in
314 CMR
9.03(1), (3), and (5).
The Department will notify the persons to whom an Order of
Conditions is issued not later than ten business days of its receipt by the
Department if, based on the information available to the Department, the
project is not exempt from the requirement to submit an individual 401 Water
Quality Certification application pursuant to 314 CMR 9.03(7). If the applicant
discovers that the project or its impacts on Resource Areas and waters of the
United States within the Commonwealth differ from the project and impacts
presented in the Notice of Intent, the applicant shall notify the Department in
writing within 72 hours of such discovery and request a written determination
from the Department as to whether the project is exempt from the requirement to
submit an individual 401 Water Quality Certification pursuant to 314 CMR
9.03(7). In that event, the applicant shall not commence the project until s/he
obtains a written determination from the Department that the project is exempt
from the requirement to obtain an individual 401 Water Quality Certification
pursuant to 314 CMR 9.03(7) or an individual 401 Water Quality Certification
authorizing the project.
(8)
Ecological Restoration
Project. Discharge of dredged or fill material in association with
an Ecological Restoration Project provided that the discharge of dredged or
fill material is in compliance with a valid final Restoration Order of
Conditions issued pursuant to
310
CMR
10.11: Actions Required Before Submitting
a Notice of Intent for an Ecological Restoration Project through
310 CMR
10.14: Restoration Order of Conditions
followed by a Certificate of Compliance, unless the project involves dredging
or dredged material disposal as described in
314 CMR
9.04(12). Ecological
Restoration Projects that include the activities described in
314 CMR
9.04(12) require a 401
Water Quality Certification application pursuant to
314 CMR
9.04.
