310 Mass. Reg. 10.37
If a project is within estimated habitat which is indicated on the most recent Estimated Habitat Map of State-listed Rare Wetlands Wildlife (if any) published by the Natural Heritage and Endangered Species Program (hereinafter referred to as the Program), a fully completed copy of the Notice of Intent (including all plans, reports, and other materials required under 310 CMR 10.05(4)(a) and (b) ) for such project shall be sent to the Program via the U.S. Postal Service by express or priority mail (or otherwise sent in a manner that guarantees delivery within two days). Such copy shall be sent no later than the date of the filing of the Notice of Intent with the issuing authority. Proof of timely mailing or other delivery to the Program of the copy of such Notice of Intent shall be included in the Notice of Intent which is submitted to the issuing authority and sent to the Department's regional office.
Estimated Habitat Maps shall be based on the estimated geographical extent of the habitats of all state-listed vertebrate and invertebrate animal species for which a reported occurrence within the last 25 years has been accepted by the Program and incorporated into its official data base.
Within 30 days of the filing of such a Notice of Intent with the issuing authority, the Program shall determine whether any state-listed species identified on the aforementioned map are likely to continue to be located on or near the site of the original occurrence and, if so, whether the area to be altered by the proposed project is in fact part of such species' habitat. Such determination shall be presumed by the issuing authority to be correct. Any proposed project which would alter a resource area that is not located on the most recent Estimated Habitat Map (if any) provided to the conservation commission, shall be presumed not to be within a rare species' habitat. Both of these presumptions are rebuttable and may be overcome upon a clear showing to the contrary. If the issuing authority fails to receive a response from the Program within 30 days of the filing of such a Notice of Intent, a copy of which was received by the Program in a timely manner, it shall issue its Order of Conditions based on available information; however, the fact that a proposed project would alter a resource area that is located on an Estimated Habitat Map shall not be considered sufficient evidence in itself that such project is in fact within the habitat of a rare species.
If the Program determines that a resource area which would be altered by a proposed project is in fact within the habitat of a state-listed species, it shall provide in writing to the applicant and to the Conservation Commission and the Department, the identification of the species whose habitat would be altered by the proposed project, and all other relevant information which the Program has regarding the species' location and habitat requirements, insofar as such information may assist the applicant and the issuing authority to determine whether the project is or can be designed so as to meet the performance standard set in 310 CMR 10.37.
Notwithstanding 310 CMR 10.24(7) and 10.25 and 10.27 through 10.35, if a proposed project is found by the issuing authority to alter a resource area which is part of the habitat of a state-listed species, such project shall not be permitted to have any short or long term adverse effects on the habitat of the local population of that species. A determination of whether or not a proposed project will have such an adverse effect shall be made by the issuing authority. However, a written opinion of the Program on whether or not a proposed project will have such an adverse effect shall be presumed by the issuing authority to be correct. This presumption is rebuttable and may be overcome upon a clear showing to the contrary.
The conservation commission shall not issue an Order of Conditions under 310 CMR 10.05(6) regarding any such project for at least 30 days after the filing of the Notice of Intent, unless the Program before such time period has elapsed has either determined that the resource area(s) which would be altered by the project is not in fact within the habitat of a state-listed species or, if it has determined that such resource area(s) is in fact within rare species habitat, rendered a written opinion as to whether the project will have an adverse effect on that habitat.
Notwithstanding any other provision of 310 CMR 10.37, should an Environmental Impact Report be required for a proposed project under the M.G.L. c. 60, §§ 6 through 62H, as determined by 301 CMR 11.00: MEPA Regulations the performance standard established under 310 CMR 10.37 shall only apply to proposed projects which would alter the habitat of a rare species for which an occurrence has been entered into the official data base of the Massachusetts Natural Heritage and Endangered Species Program prior to the time that the Secretary of the Executive Office of Energy and Environmental Affairs has determined, in accordance with the provisions of 301 CMR 11.09(4), that a final Environmental Impact Report for that project adequately and properly complies with the M.G.L. c. 30, §§ 6 through 62H (unless, subsequent to that determination, the Secretary requires supplemental information concerning state-listed species, in accordance with the provisions of 301 CMR 11.17: Transition Rules).
310 CMR 10.37