310 CMR, § 10.53

Current through Register 1533, October 25, 2024

Section 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

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;

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

a. hydrological changes to resource areas shall be minimized;

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

b. an assessment of alternatives to both temporary and permanent impacts to resource areas.

A "Comprehensive Remedial Action Alternative" that is selected in accordance with the provisions of 310 CMR 40.0851 through 40.0869 shall be deemed to have met the requirements of 310 CMR 10.53(3)(q)1.; 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;

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.

310 CMR, § 10.53

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