310 Mass. Reg. 10.35

Current through Register 1523, June 7, 2024

Section 10.35 - Banks of or Land under the Ocean, Ponds, Streams, Rivers, Lakes, or Creeks that Underlie an Anadromous/Catadromous Fish Run ("Fish Run")

(1)Preamble. The banks of and land under the ocean, ponds, streams, rivers, lakes or creeks that underlie an anadromous/catadromous fish run are significant to protection of marine fisheries.

Anadromous and catadromous fish ("the fish") are renewable protein resources that provide recreational, aesthetic and commercial benefits. In addition, throughout their life cycle such fish are important components of freshwater, estuarine, and marine environments and are food sources for other organisms.

The spawning migrations of such fish also provide a direct link between marine and freshwater ecosystems. This link plays a role in maintaining the productivity of fisheries.

When a proposed project involves the dredging, filling, removing or altering of a bank of a fish run, or land under the ocean, or under a pond, stream, river, lake or creek which is a fish run, the issuing authority shall presume that such bank or land is significant to the protection of marine fisheries. This presumption is rebuttable and may be overcome only upon a clear showing that such bank or land does not play a role in the protection of marine fisheries, and if the issuing authority makes a written determination to that effect.

When such a bank of a fish run, or land under the ocean or under a pond, stream, river, lake or creek which is a fish run is significant to the protection of marine fisheries, the following factors are critical to the protection of such interest:

(a) the fish;

(b) accessibility of spawning areas;

(c) the volume or rate of the flow of water within spawning areas and migratory routes; and

(d) spawning and nursery grounds.

(2)Definitions.

Anadromous Fish means fish that enter fresh water from the ocean to spawn, such as alewives, shad and salmon.

Anadromous/Catadromous Fish Run means that area within estuaries, ponds, streams, creeks, rivers, lakes or coastal waters, which is a spawning or feeding ground or passageway for anadromous or catadromous fish and which is identified by the Division of Marine Fisheries or has been mapped on the Coastal Atlas of the Coastal Zone Management Program. Such fish runs shall include those areas which have historically served as fish runs and are either being restored or are planned to be restored at the time the Notice of Intent is filed. For the purposes of 310 CMR 10.21 through 10.37, such fish runs shall extend inland no further than the inland boundary of the coastal zone.

Catadromous Fish means fish that enter salt water from fresh water to spawn, such as eels.

WHEN SUCH LAND OR BANK IS DETERMINED TO BE SIGNIFICANT TO THE PROTECTION OF MARINE FISHERIES, 310 CMR 10.35(3) THROUGH (5) SHALL APPLY:

(3) Any project on such land or bank shall not have an adverse effect on the anadromous or catadromous fish run by:

(a) impeding or obstructing the migration of the fish, unless DMF has determined that such impeding or obstructing is acceptable, pursuant to its authority under M.G.L. c. 130, § 19;

(b) changing the volume or rate of flow of water within the fish run; or

(c) impairing the capacity of spawning or nursery habitats necessary to sustain the various life stages of the fish.

(4) Unless otherwise allowed by DMF pursuant to M.G.L. c. 130, § 19, dredging, disposal of Dredged Material or filling in a fish run shall be prohibited between March 15^th and June 15^th in any year.

(5) Notwithstanding the provisions of 310 CMR 10.35(3), no project may be permitted which will have any adverse effect on specified habitat sites of rare vertebrate or invertebrate species, as identified by procedures established under 310 CMR 10.37.

(6) Any person proposing a new stream crossing of a Fish Run shall demonstrate to the issuing authority that there are no practicable alternatives to the crossing, that the impacts of the crossing 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 the construction of a new non-tidal crossing, the applicant demonstrates to the satisfaction of the issuing authority that the crossing complies with the Massachusetts Stream Crossing Standards by consisting of a span or embedded culvert in which, at a minimum, the top of the structure is above the elevation of the top of the bank and the structure spans the channel width by a minimum of 1.2 times the bankfull width.

(b) If the project includes the construction of a new tidal crossing, the applicant demonstrates to the satisfaction of the issuing authority that the project is designed in a manner that does not restrict tidal flow over the full natural tidal range by consisting of a span or embedded culvert in which, at a minimum, the top of the structure is above the elevation of the top of the bank and the structure spans the channel width by a minimum of 1.2 times the bankfull width.

This presumption that the impacts of the crossing have been avoided, minimized and that mitigation measures have been provided to contribute to the protection of the interests identified in M.G.L. c. 131, § 40 may be rebutted by credible evidence from a competent source.

310 CMR 10.35

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