310 Mass. Reg. 10.05

Current through Register 1523, June 7, 2024

Section 10.05 - Procedures

(1)Time Periods. All time periods of ten days or less specified in M.G.L. c. 131, § 40 and 310 CMR 10.00 shall be computed using business days only. In the case of a determination or Order, such period shall commence on the first day after the date of issuance and shall end at the close of business on the tenth business day thereafter. All other time periods specified in M.G.L. c. 131, § 40 and 310 CMR 10.00 shall be computed on the basis of calendar days, unless the last day falls on a Saturday, Sunday or legal holiday, in which case the last day shall be the next business day following.

(2)Actions by Conservation Commission. Where M.G.L. c. 131, § 40 states that a particular action (except receipt of a request or notice) is to be taken by the conservation commission, that action is to be taken by more than half the members present at a meeting of at least a quorum. A quorum is defined as a majority of the members then in office.

Where M.G.L. c. 131, § 40 states that an order or notification shall be signed by a majority of the conservation commission, that action is to be taken by a majority of the members then in office, who need not convene as a body in order to sign, provided they met pursuant to the open meeting law, M.G.L. c. 39, §§ 23A through 23C, when voting on the matter.

Where M.G.L. c. 131, § 40 states that the conservation commission is to receive a request or notice, conservation commission means a member of the conservation commission or an individual designated by the conservation commission to receive such request or notice.

(3)Determinations of Applicability.

(a)Requests for Determination of Applicability.

1. Any person who desires a determination as to whether M.G.L. c. 131, § 40 applies to land, or to work that may affect an Area Subject to Protection under M.G.L. c. 131, § 40, may submit to the conservation commission by certified mail or hand delivery a Request for a Determination of Applicability, Form 1. To obtain confirmation of a delineated boundary of bordering vegetated wetlands and other resource areas on the site to establish the extent of the buffer zone and resource areas prior to filing a Notice of Intent for proposed work, an applicant generally should file an Abbreviated Notice of Resource Area Delineation. Alternatively, the boundary of bordering vegetated wetland (or other resource areas) may be determined through the filing of a Notice of Intent. For work within riverfront areas, an applicant may submit to the conservation commission by certified mail or hand delivery a Request for Determination of Applicability to identify the scope of alternatives to be evaluated under 310 CMR 10.58(4)(c)2., including sufficient information to enable the conservation commission to determine the applicable scope.

2. Any person who proposes to perform work within the Buffer Zone shall submit to the conservation commission either a Notice of Intent for such work or a Request for Determination of Applicability. Said request shall include sufficient information, as required on Form 1, to enable the conservation commission to find and view the area and to determine whether the proposed work will alter an Area Subject to Protection under M.G.L. c. 131, § 40. Applicants may use the Abbreviated Notice of Resource Area Delineation to confirm the boundaries of resource areas and the buffer zone.

Any person who proposes to apply herbicides in the Buffer Zone pursuant to the presumption of 310 CMR 10.03(6)(b) shall be required only to submit a request for determination of the boundaries of the Buffer Zone and the Areas Subject to Protection under M.G.L. c. 131, § 40. Such Request for Determination shall be submitted prior to the filing of the Vegetation Management Plan, as required by 333 CMR 11.00: Rights of Way Management, on maps of a scale which will enable the issuing authority to find and delineate those Areas Subject to Protection under M.G.L. c. 131, § 40 identified in 310 CMR 10.02(1)(a) through (c) and the Buffer Zone identified in 310 CMR 10.02(2) within the vicinity of the project area.

3. A request for a Determination of Applicability shall include certification that the Department and the owner of the area subject to the request, if the person making the request is not the owner, have been notified that a determination is being requested under M.G.L. c. 131, § 40.

(b)Determination of Applicability.

1. Within 21 days after the date of receipt of the Request for a Determination of Applicability, the conservation commission shall issue a Determination of Applicability, Form 2. Notice of the time and place of the public meeting at which the determination will be made shall be given by the conservation commission at the expense of the person making the request not less than five days prior to such meeting, by publication in a newspaper of general circulation in the city or town in which the land is located, and by mailing a notice to the person making the request, the owner, the board of health and the planning board of said city or town. Notice shall also be given in accordance with the open meeting law, M.G.L. c. 39, § 23B. Said determination shall be signed by a majority of the conservation commission, and copies thereof shall be sent by the conservation commission to the Department, to the person making the request, and to the owner. Delivery of the copy to the person making the request shall be by hand delivery or certified mail, return receipt requested. Said determination shall be valid for three years from the date of issuance, except that a determination of the boundaries of the Areas Subject to Protection under M.G.L. c. 131, § 40 and the Buffer Zone which are to apply to such plans as are required by the Department of Food and Agriculture pursuant to 333 CMR 11.00: Rights of Way Management, effective July 10, 1987, shall be valid throughout the effective duration of the Vegetation Management Plan.

2. The conservation commission shall find that M.G.L. c. 131, § 40 applies to the land, or a portion thereof, if it is an Area Subject to Protection under M.G.L. c. 131, § 40 as defined in 310 CMR 10.02(1). The conservation commission shall find that M.G.L. c. 131, § 40 applies to the work, or portion thereof, if it is an Activity Subject to Regulation under M.G.L. c. 131, § 40 as defined in 310 CMR 10.02(2). The conservation commission shall identify the scope of alternatives to be evaluated, if requested, for work within riverfront areas under 310 CMR 10.58(4)(c)2.

3. A Notice of Intent which is filed as a result of a positive determination, whether such determination is made by the Department or a conservation commission, shall be filed with the conservation commission, and all of the procedures set forth in 310 CMR 10.05(4) shall apply.

(c)Appeal to the Department. Following a positive or negative Determination of Applicability, the identification of the scope of alternatives for work within the riverfront area, or the failure of a conservation commission to make a determination within 21 days, any person specified in 310 CMR 10.05(7) may, within ten days, request the Department to issue a Superseding Determination of Applicability pursuant to the procedures set forth in 310 CMR 10.05(7). The Department shall issue its determination within 35 days from receipt of such request.

(d)Work Pending Appeal of Determination.

1. Upon a positive Determination of Applicability by a conservation commission, work may not proceed until the Department or the Commissioner issues a negative determination, or until a Notice of Intent has been filed, a final order has been issued and recorded, and all administrative appeal periods have elasped, except that a Notice of Intent shall not be required for the application of herbicides in accordance with 310 CMR 10.03(6).

2. Upon a positive Determination of Applicability by the Department, work may not proceed until the Commissioner issues a negative determination or until a Notice of Intent has been filed, a final order has been issued and recorded, and all administrative appeal periods have elapsed.

3. Upon a positive Determination of Applicability by the Commissioner, work may not proceed until a judicial determination is made that the proposed work is not subject to M.G.L. c. 131, § 40 or until a Notice of Intent has been filed and a final order has been issued and recorded, and all administrative appeal periods have elapsed.

4. Upon a negative Determination of Applicability by a conservation commission or upon the failure of a conservation commission to act within the 21 day time period, and where the Department has been requested to issue a Superseding Determination of Applicability but has failed to do so within 35 days, work may proceed at the owner's risk upon notice to the Department and to the conservation commission.

5. Upon a negative Determination of Applicability by the Department, work may proceed at the owner's risk even if a request for an adjudicatory hearing has been made. 6. Upon a negative Determination of Applicability by the Commissioner after an adjudicatory hearing, work may proceed at the owner's risk even if a petition for judicial review has been filed.

7. Upon a positive Determination of Applicability by a conservation commission, the Department, or the Commissioner which identifies the scope of alternatives to be evaluated under 310 CMR 10.58(4)(c)2. for work within the riverfront area, work may not proceed until a Notice of Intent has been filed and a final Order has been issued and recorded and all administrative appeal periods have elapsed.

(4)Notices of Intent.

(a) Any person who proposes to do work that will remove, fill, dredge or alter any Area Subject to Protection under M.G.L. c. 131 § 40 shall file a Notice of Intent on Form 3 and other application materials in accordance with the submittal requirements set forth in the General Instructions for Completing Notice of Intent (Form 3). If the applicant is not a landowner of the Project Locus, the applicant shall obtain written permission from a landowner(s) prior to filing a Notice of Intent for proposed work, except for work proposed on Great Ponds or Commonwealth tidelands. Two copies of the completed Notice of Intent with supporting plans and documents shall be sent by certified mail or hand delivery to the conservation commission, and one copy of the same shall be sent concurrently in like manner to the Department. If the project requires a 401 Water Quality Certification pursuant to

314 CMR 9.00: 401 Water Quality Certification for Discharge of Dredged or Fill Material, Dredging, and Dredged Material Disposal in Waters of the United States Within the Commonwealth and/or is a water-dependent use project that requires a permit, license or written approval pursuant to 310 CMR 9.00: Waterways the applicant may file a Notice of Intent that is a Combined Application. In that event, an additional copy of the Combined Application shall be sent to the Department's Boston Office.

Concurrent with the filing of the Notice of Intent, the applicant shall provide notification to all Abutters. Notwithstanding the foregoing, the requirement to provide Abutter notification is subject to the following limits. An applicant is required to provide notification to an Abutter whose Lot is separated from the Project Locus by a public or private street or body of water only if the Abutter's Lot is within 100 feet from the property line of the Project Locus. An applicant who proposes work solely within Land under Water Bodies or Waterways, or solely within a Lot with an area greater than50 acres, is required to provide notification only to Abutters whose Lot is within one hundred feet from the Project Site. An applicant proposing a Linear- shaped Project greater than 1,000 feet in length is required to provide notification only to Abutters whose Lot is within 1,000 feet from the Project Site. Abutter notification is not required for projects proposed by the Massachusetts Department of Transportation Highway Division pursuant to St. 1993, c. 472 as approved on January 13, 1994. The applicant shall provide notification at the mailing addresses shown on the most recent applicable tax list from the municipal assessor. Notification shall be at the applicant's expense. The notification shall state where within the municipality copies of the Notice of Intent may be examined or obtained and where information on the date, time, and location of the public hearing may be obtained. To ensure compatibility with local procedures, applicants must comply with any rules of the local conservation commission pertaining to the location for examining or obtaining the Notice of Intent and information about the hearing. The applicant shall provide written notification to all Abutters required to be notified by hand delivery or certified mail, return receipt requested, or by certificates of mailing. Mailing at least seven days prior to the public hearing shall constitute timely notice. The applicant shall present either the certified mail receipts or certificate of mailing receipts for all Abutters at the beginning of the public hearing. The presentation of the receipts for all abutters required to be notified as identified on the tax list shall constitute compliance with Abutter notification requirements. The conservation commission shall determine whether the applicant has complied with Abutter notification requirements. The Department will dismiss Requests for Action based on allegations of failure to comply with Abutter notification requirements, absent a clear showing by an Abutter seeking Department action that the applicant failed to notify the Abutter. An applicant submitting a Notice of Intent for a project that is also subject to 310 CMR 9.00: Waterways and/or 314 CMR 9.00: 401 Water Quality Certification for Discharge of Dredged or Fill Material, Dredging, and Dredged Material Disposal in Waters of the United States Within the Commonwealth may provide joint public notice by appending to the public notice required by 310 CMR 9.13: Public Notice and Participation Requirements and/or 314 CMR 9.05: Submission of an Application, as applicable, notification that a Notice of Intent is pending before the issuing authority, provided the notification complies with 310 CMR 10.05(4). An applicant may provide a joint public notice, even if the Notice of Intent is not a Combined Application. (b) For certain purposes, other forms of Notices may be used.

1. For certain projects, applicants may at their option use the Abbreviated Notice of Intent. This latter form may only be used when all three of the following circumstances exist:

a. the proposed work is within the Buffer Zone, as defined in 310 CMR 10.04, or within Land Subject to Flooding, as defined in 310 CMR 10.57(2) or within the Riverfront Area, as defined in 310 CMR 10.58.

b. the proposed work will disturb less than 1,000 square feet of surface area within the Buffer Zone and/or Land Subject to Flooding or less than 1000 square feet of riverfront area, provided the work conforms to 310 CMR 10.58(4)(c)2.a.

c. the proposed work will not require U.S. Army Corps of Engineer Section 10 or Section 404 permits, or a license from the Division of Waterways pursuant to M.G.L. c. 91.

2. To establish the extent of bordering vegetated wetland and/or other resource areas on land subject to protection under M.G.L. c. 131, § 40, applicants may use the Abbreviated Notice of Resource Area Delineation for the confirmation of a delineated boundary of bordering vegetated wetlands and/or other resource areas on the site, prior to filing a Notice of Intent for proposed work. Alternatively, the boundary of bordering vegetated wetland or other resource areas may be determined through the filing of a Notice of Intent.

3. To confirm the boundaries of resource areas applicants shall use the Abbreviated Notice of Resource Area Delineation.

(c) Upon receipt of the application materials referred to in 310 CMR 10.05(4)(a), the Department shall issue a file number. The designation of a file number shall not imply that the plans and supporting documents have been judged adequate for the issuance of an Order, but only that copies of the minimum submittal requirements contained in the General Instructions have been filed.

(d) In the event that only a portion of a proposed project or activity lies within an Area Subject to Protection under M.G.L. c. 131, § 40 or within the Buffer Zone, and the remainder of the project or activity lies outside those areas, only that portion within those areas must be described in the detail called for by the General Instructions and Form 3 and 4; provided, however, that in such circumstances the Notice of Intent shall also contain a description and calculation of peak flow and estimated water quality characteristics of discharge from a point source (both closed and open channel) when the point of discharge falls within an Area Subject to Protection under M.G.L. c. 131, § 40 or within the Buffer Zone.

Notwithstanding the foregoing, when the issuing authority has determined that an activity outside the Areas Subject to Protection under M.G.L. c. 131, § 40 and outside the Buffer Zone has in fact altered an Area Subject to Protection under M.G.L. c. 131, § 40, it may require such plans, supporting calculations and other documentation as are necessary to describe the entire activity.

(e) The requirement under M.G.L. c. 131, § 40 to obtain or apply for all obtainable permits, variances and approvals required by local by-law with respect to the proposed activity shall mean only those which are feasible to obtain at the time the Notice of Intent is filed. Permits, variances, and approvals required by local by-law may include, among others, zoning variances, permits from boards of appeals, permits required under floodplain or wetland zoning by-laws and gravel removal permits. They do not include, among others, building permits under the State Building Code, M.G.L. c. 23B, § 16, or subdivision control approvals under the State Subdivision Control Law, M.G.L. c. 41, §§ 81K through 81GG, which are issued by local authorities. When an applicant for a comprehensive permit (under M.G.L. c. 40B, §§ 20 through 23) from a board of appeals has received a determination from the board granting or denying the permit and, in the case of a denial, has appealed to the Housing Appeals Committee (established under M.G.L. c. 23B, § 5A), said applicant shall be deemed to have applied for all permits obtainable at the time of filing.

(f) If the issuing authority rejects a Notice of Intent because of a failure to obtain or apply for all permits, variances and approvals required by local by-law, it shall specify in writing the permit, variance or approval that has not been applied for. A ruling by the municipal agency within whose jurisdiction the issuance of the permit, variance or approval lies, or by the town counsel or city solicitor, concerning the applicability or obtainability of such permit, variance or approval shall be accepted by the issuing authority. In the absence of such a ruling, other evidence may be accepted.

(g) A Notice of Intent shall expire where the applicant has failed to diligently pursue the issuance of a Final Order in proceedings under 310 CMR 10.00. A Notice of Intent shall be presumed to have expired two years after the date of filing unless the applicant submits information showing that (a) good cause exists for the delay of proceedings under 310 CMR 10.00; and (b) the applicant has continued to pursue the project diligently in other forums in the intervening period; provided, however, that unfavorable financial circumstances shall not constitute good cause for delay. No Notice of Intent shall be deemed expired under 310 CMR 10.05 when an adjudicatory hearing is pending and when the applicant has provided all information necessary to continue with the prosecution of the case.

Notwithstanding the provisions contained in 310 CMR 10.10, 310 CMR 10.05(4)(g) shall apply to any Notice of Intent whenever filed.

(h) The issuing authority may require that supporting plans and calculations be prepared and stamped by a registered professional engineer (PE) when, in its judgment, the complexity of the proposed work warrants this professional certification. The issuing authority may also require the preparation of supporting materials by other professionals including, but not limited to, registered landscape architect, registered land surveyor, environmental scientist, geologist or hydrologist when in its judgment the complexity of the proposed work warrants the relevant specialized expertise. The issuing authority may require a delineation in an Abbreviated Notice of Resource Area Delineation to be performed by a professional with relevant specialized expertise. If the Notice of Intent is a Combined Application, the supporting plans and calculations shall also conform to the requirements of 310 CMR 9.11(3)(b) and 314 CMR 9.05(1): Application Requirements to the extent they are applicable.

(5)Public Hearings by Conservation Commissions.

(a) A public hearing shall be held by the conservation commission within 21 days of receipt of the minimum submittal requirements set forth in the General Instructions for Completing Notice of Intent (Form 3), Abbreviated Notice of Intent (Form 4) and Abbreviated Notice of Resource Area Delineation, and shall be advertised in accordance with M.G.L. c. 131, § 40 and the requirements of the open meeting law, M.G.L. c. 39, § 23B.

(b) Public hearings may be continued as follows:

1. without the consent of the applicant to a date, announced at the hearing, within 21 days, of receipt of the Notice of Intent;

2. with the consent of the applicant, to an agreed-upon date, which shall be announced at the hearing; or

3. with the consent of the applicant for a period not to exceed 21 days after the submission of a specified piece of information or the occurrence of a specified action. The date, time and place of said continued hearing shall be publicized in accordance with M.G.L. c. 131, § 40, and notice shall be sent to any person at the hearing who so requests in writing.

(6)Orders of Conditions Regulating Work and Orders of Resource Area Delineation .

(a) Within 21 days of the close of the public hearing, the conservation commission shall either:

1. make a determination that the area on which the work is proposed to be done, or which the proposed work will remove, fill, dredge or alter, is not significant to any of the interests identified in M.G.L. c. 131, § 40, and shall so notify the applicant and the Department on Form 6;

2. make a determination that the area on which the work is proposed to be done, or which the proposed work will remove, fill, dredge or alter, is significant to one or more of the interests identified in M.G.L. c. 131, § 40, and shall issue an Order of Conditions for the protection of said interest(s), on Form 5. If the issuing authority also determines that the project meets the eligibility criteria for issuance of a Restoration Order of Conditions set forth in the applicable provisions of 310 CMR 10.00, the Order of Conditions for the project shall be a Restoration Order of Conditions; or

3. make a determination that bordering vegetated wetland and other resource areas subject to jurisdiction have been identified and delineated according to the definitions in 310 CMR 10.00 and shall issue an Order of Resource Area Delineation to confirm or modify the delineations submitted. The Order of Resource Area Delineation shall be effective for three years.

The standards and presumptions to be used by the issuing authority in determining whether an area is significant to the interests identified in M.G.L. c. 131, § 40, are found in 310 CMR 10.21 through 10.37 (for coastal wetlands) and 10.51 through 10.60 (for inland wetlands).

(b) The Order of Conditions shall impose such conditions as are necessary to meet the performance standards set forth in 310 CMR 10.21 through 10.60 for the protection of those areas found to be significant to one or more of the interests identified in M.G.L. c. 131, § 40 and the Stormwater Management Standards provided in 310 CMR 10.05(6)(k) through (q). The Order shall prohibit any work or any portion thereof that cannot be conditioned to meet said standards.

The Order shall impose conditions only upon work or the portion thereof that is to be undertaken within an Area Subject to Protection under M.G.L. c. 131, § 40 or within the Buffer Zone. The Order shall impose conditions to control erosion and sedimentation within resource areas and the Buffer Zone. The Order shall impose conditions setting limits on the quantity and quality of discharge from a point source (both closed and open channel), when said limits are necessary to protect the interests identified in M.G.L. c. 131, § 40; provided, however, that the point of discharge falls within an Area Subject to Protection under M.G.L. c. 131, § 40 or within the Buffer Zone, and further provided that said conditions are consistent with the limitations set forth in 310 CMR 10.03(4).

Notwithstanding the foregoing, when the issuing authority has determined that an Activity outside the Areas Subject to Protection under M.G.L. c. 131, § 40 and outside the Buffer Zone has in fact altered an Area Subject to Protection under M.G.L.c. 131,§ 40, it shall impose such conditions on any portion of the activity as are necessary to contribute to the protection of the interests identified in M.G.L.c. 131, § 40.

When the issuing authority determines that a project meets the eligibility criteria for a Restoration Order of Conditions, the issuing authority shall impose only the conditions set forth in the applicable provisions of 310 CMR 10.00 for that Restoration Order of Conditions. A Restoration Order of Conditions may reference the plans and specifications approved by the issuing authority. If the Department issues a Combined Permit, the Department may append to the Restoration Order of Conditions any conditions that the Department has authority to impose pursuant to 310 CMR 9.00: Waterways and 314 CMR 9.00: 401 Water Quality Certification for Discharge of Dredged or Fill Material, Dredging, and Dredged Material Disposal in Waters of the United States Within the Commonwealth to the extent they are applicable. The requirement that an Order shall impose conditions only upon work or the portion thereof that is to be undertaken within an Area Subject to Protection under M.G.L. c. 131, § 40, or within the Buffer Zone does not restrict the authority of the Department to append to a Combined Permit any conditions that the Department has the authority to impose under 310 CMR 9.00: Waterways and 314 CMR 9.00: 401 Water Quality Certification for Discharge of Dredged or Fill Material, Dredging, and Dredged Material Disposal in Waters of the United States Within the Commonwealth to the extent they are applicable.

(c) If the conservation commission finds that the information submitted by the applicant is not sufficient to describe the site, the work or the effect of the work on the interests identified in M.G.L. c. 131, § 40, it may issue an Order prohibiting the work. The Order shall specify the information which is lacking and why it is necessary.

(d) Except as provided in M.G.L. c. 131, § 40 for maintenance dredging, an Order of Conditions, Order of Resource Area Delineation, or Notification of Non-significance shall be valid for three years from the date of its issuance; provided, however, that the issuing authority may issue an Order for up to five years where special circumstances warrant and where those special circumstances are set forth in the Order. An Order of Resource Area Delineation shall be valid for three years, and may be extended by the issuing authority for one or more years up to three years each under 310 CMR 10.05(8) upon written confirmation by a professional with relevant expertise that the resource area delineations remain accurate. (e) The Order or Notification of Non-significance shall be signed by a majority of the conservation commission and shall be mailed by certified mail (return receipt requested) or hand delivered to the applicant or his or her agent or attorney, and a copy mailed or hand delivered at the same time to the Department. If the Order imposes conditions necessary to meet any performance standard contained in 310 CMR 10.37 or 10.59, a copy shall be mailed or hand delivered at the same time to the Massachusetts Natural Heritage and Endangered Species Program.

(f) A copy of the plans describing the work and the Order shall be kept on file by the conservation commission and by the Department, and shall be available to the public at reasonable hours.

(g) Prior to the commencement of any work permitted or required by the Final Order, including a Final Order of Resource Area Delineation, or Notification of Non-significance, the Order or Notification shall be recorded in the Registry of Deeds or the Land Court for the district in which the land is located, within the chain of title of the affected property. In the case of recorded land, the final order shall also be noted in the Registry's Grantor Index under the name of the owner of the land upon which the proposed work is to be done. In the case of registered land, the final order shall also be noted on the Land Court Certificate of Title of the owner of the land upon which the proposed work is to be done. Certification of recording shall be sent to the issuing authority on the form at the end of Form 5. If work is undertaken without the applicant first recording the Order, the issuing authority may issue an Enforcement Order (Form 9) or may itself record the Order of Conditions.

(h) Notwithstanding the provisions contained in 310 CMR 10.10(1) and (3), any Order of Conditions not containing an expiration date, issued for work proposed in a Notice of Intent filed under M.G.L. c. 131, § 40 prior to November 18, 1974, shall expire on April 17, 1986.

(i) An Order of Conditions does not grant any property rights or any exclusive privileges; it does not authorize any injury to private property or invasion of property rights.

(j) Failure to comply with conditions stated in the Order and with all related statutes and other regulatory measures shall be deemed cause to revoke or modify the Order of Conditions.

(k) No Area Subject to Protection under M.G.L. c. 131, § 40 other than bordering land subject to flooding, isolated land subject to flooding, land subject to coastal storm flowage, or riverfront area may be altered or filled for the impoundment or detention of stormwater, the control of sedimentation or the attenuation of pollutants in stormwater discharges, and the applicable performance standards shall apply to any such alteration or fill. Except as expressly provided, stormwater runoff from all industrial, commercial, institutional, office, residential and transportation projects that are subject to regulation under M.G.L. c. 131, § 40 including site preparation, construction, and redevelopment and all point source stormwater discharges from said projects within an Area Subject to Protection under M.G.L. c. 131, § 40 or within the Buffer Zone shall be provided with stormwater best management practices to attenuate pollutants and to provide a setback from the receiving waters and wetlands in accordance with the following Stormwater Management Standards as further defined and specified in the Massachusetts Stormwater Handbook:

1. No new stormwater conveyances (e.g. outfalls) may discharge untreated stormwater directly to or cause erosion in wetlands or waters of the Commonwealth.

2. Stormwater management systems shall be designed so that post-development peak discharge rates do not exceed pre-development peak discharge rates. This Standard may be waived for discharges to land subject to coastal storm flowage as defined in 310 CMR 10.04.

3. Loss of annual recharge to ground water shall be eliminated or minimized through the use of infiltration measures including environmentally sensitive site design, low impact development techniques, stormwater best management practices and good operation and maintenance. At a minimum, the annual recharge from the postdevelopment site shall approximate the annual recharge from the pre-development conditions based on soil type.

This Standard is met when the stormwater management system is designed to infiltrate the required recharge volume as determined in accordance with the Massachusetts Stormwater Handbook.

4. Stormwater management systems shall be designed to remove 80% of the average annual post-construction load of Total Suspended Solids (TSS). This Standard is met when:

a. Suitable practices for source control and pollution prevention are identified in a long-term pollution prevention plan and thereafter are implemented and maintained;

b. Structural stormwater best management practices are sized to capture the required water quality volume determined in accordance with Massachusetts Stormwater Handbook; and

c. Pretreatment is provided in accordance with the Massachusetts Stormwater Handbook.

5. For land uses with higher potential pollutant loads, source control and pollution prevention shall be implemented in accordance with the Massachusetts Stormwater Handbook to eliminate or reduce the discharge of stormwater runoff from such land uses to the maximum extent practicable. If through source control and/or pollution prevention, all land uses with higher potential pollutant loads cannot be completely protected from exposure to rain, snow, snow melt and stormwater runoff, the proponent shall use the specific structural stormwater BMPs determined by the Department to be suitable for such use as provided in the Massachusetts Stormwater Handbook. Stormwater discharges from land uses with higher potential pollutant loads shall also comply with the requirements of the Massachusetts Clean Waters Act, M.G.L. c. 21, §§ 26 through 53, and the regulations promulgated thereunder at 314 CMR 3.00: Surface Water Discharge Permit Program, 314 CMR 4.00: Massachusetts Surface Water Quality Standards and 314 CMR 5.00: Ground Water Discharge Permit Program.

6. Stormwater discharges within the Zone II or Interim Wellhead Protection Area of a public water supply and stormwater discharges near or to any other critical area require the use of the specific source control and pollution prevention measures and the specific structural stormwater best management practices determined by the Department to be suitable for managing discharges to such area as provided in the Massachusetts Stormwater Handbook. A discharge is near a critical area, if there is a strong likelihood of a significant impact occurring to said area, taking into account site-specific factors. Stormwater discharges to Outstanding Resource Waters and Special Resource Waters shall be removed and set back from the receiving water or wetland and receive the highest and best practical method of treatment. A "storm water discharge" as defined in 314 CMR 3.04(2)(a) or (b) to an Outstanding Resource Water or Special Resource Water shall comply with 314 CMR 3.00: Surface Water Discharge Permit Program and 314 CMR 4.00: Massachusetts Surface Water Quality Standards. Stormwater discharges to a Zone I or Zone A are prohibited, unless essential to the operation of the public water supply.

7. A redevelopment project is required to meet the following Stormwater Management Standards only to the maximum extent practicable: Standard 2, Standard 3, and the pretreatment and structural stormwater best management practice requirements of Standards 4, 5 and 6. Existing stormwater discharges shall comply with Standard 1 only to the maximum extent practicable. A redevelopment project shall also comply with all other requirements of the Stormwater Management Standards and improve existing conditions.

8. A plan to control construction related impacts including erosion, sedimentation and other pollutant sources during construction and land disturbance activities (construction period erosion, sedimentation and pollution prevention plan) shall be developed and implemented.

9. A long-term operation and maintenance plan shall be developed and implemented to ensure that the stormwater management system functions as designed.

10. All illicit discharges to the stormwater management system are prohibited.

(l) The Stormwater Management Standards shall not apply to:

1. A single-family house;

2. Housing development and redevelopment projects comprised of detached singlefamily dwellings on four or fewer lots, provided that there are no stormwater discharges that may potentially affect a critical area;

3. Multi-family housing development and redevelopment projects, with four or fewer units, including condominiums, cooperatives, apartment buildings and townhouses, provided that there are no stormwater discharges that may potentially affect a critical area; and

4. Emergency repairs to roads or their drainage systems.

(m) The Stormwater Management Standards shall apply to the maximum extent practicable to the following:

1. Housing development and redevelopment projects comprised of detached singlefamily dwellings on four or fewer lots that have a stormwater discharge that may potentially affect a critical area;

2. Multi-family housing developments and redevelopment projects with four or fewer units, including condominiums, cooperatives, apartment buildings, and townhouses, that have a stormwater discharge that may potentially affect a critical area;

3. Housing development and redevelopment projects comprised of detached singlefamily dwellings, on five to nine lots, provided there is no stormwater discharge that may potentially affect a critical area; and

4 Multi-family housing development and redevelopment projects, with five to nine units, including condominiums, cooperatives, apartment buildings and townhouses, provided there is no stormwater discharge that may potentially affect a critical area.

5. Marinas and boatyards provided that the hull maintenance, painting and service areas are protected from exposure to rain, snow, snowmelt, and stormwater runoff; and

6. Footpaths bikepaths and other paths for pedestrian and/or nonmotorized vehicle access.

(n) For phased projects the determination of whether the Stormwater Management Standards apply is made on the entire project as a whole including all phases. When proposing a development or redevelopment project subject to the Stormwater Management Standards, proponents shall consider environmentally sensitive site design that incorporates low impact development techniques in addition to stormwater best management practices. (o) Project proponents seeking to demonstrate compliance with some of all of the Stormwater Management Standards to the maximum extent practicable shall demonstrate that:

1. They have made all reasonable efforts to meet each of the Standards;

2. They have made a complete evaluation of possible stormwater management measures including environmentally sensitive site design and low impact development techniques that minimize land disturbance and impervious surfaces, structural stormwater best management practices, pollution prevention, erosion and sedimentation control and proper operation and maintenance of stormwater best management practices; and

3. If full compliance with the Standards cannot be achieved, they are implementing the highest practicable level of stormwater management.

(p) Notwithstanding anything to the contrary in 310 CMR 10.00, stormwater runoff from all industrial, commercial, institutional, office, residential and transportation projects subject to regulation under M.G.L. c. 131, § 40, including site preparation, construction, and redevelopment, and all point source stormwater discharges from said projects within an Area Subject to Protection under M.G.L. c. 131, § 40, or within the Buffer Zone, for which a Notice of Intent or Notice of Resource Area Delineation has been filed prior to January 2, 2008 shall be managed according to the Stormwater Management Standards as set forth in the Stormwater Policy issued by the Department on November 18, 1996.

(q) Compliance with the Stormwater Management Standards set forth in 310 CMR 10.05(6)(k) through (q) does not relieve a discharger of the obligation to comply with all applicable Federal, State, and local laws, regulations and permits including without limitation all applicable provisions of 310 CMR 10.00, 314 CMR 3.00: Surface Water Discharge Permit Program, 4.00: Massachusetts Surface Water Quality Standards, 5.00: Ground Water Discharge Permit Program, 9.00: 401 Water Quality Certification for Discharge of Dredged or Fill Material, Dredging, and Dredged Material Disposal in Waters of the United States Within the Commonwealth, local land use controls adopted to comply with 310 CMR 22.21: Ground Water Supply Protection or the NPDES General Permit for Small Municipal Separate Storm Sewer Systems, the requirements of the NPDES General Stormwater permits such as the Construction General Permit, and the Multi-sector General Permit.

(7)Requests for Actions by the Department (Appeals).

(a) The following persons may request the Department to act:

1. the applicant;

2. the owner, if not the applicant;

3. any person aggrieved by a Determination or an Order;

4. any owner of land abutting the land on which the work is to be done;

5. any ten residents of the city or town where the land is located; and

6. the Department.

(b) Any person(s) permitted to request the Department to act under 310 CMR 10.05(7)(a) may request the Department to issue a Superseding Determination of Applicability or to issue a Superseding Order, whichever is appropriate, whenever a conservation commission has:

1. issued a Determination of Applicability (Form 2);

2. issued a Notification that an area is not significant to any interest identified in M.G.L. c. 131, § 40 (Form 6);

3. issued an Order of Conditions allowing, conditioning or prohibiting work (Form 5) or an Order of Resource Area Delineation; or

4. failed to hold a public hearing or issue an Order, Notification or Determination within the time period required by M.G.L. c. 131, § 40.

Where the Department is requested to issue a Superseding Determination or Order of Conditions, the conservation commission shall be a party to all agency proceedings and hearings before the Department.

(c) A request for a Superseding Order or Determination shall be made in writing and shall be sent by certified mail or hand delivered within ten days of issuance of the Order, Determination or Notification which is being appealed. When the basis of such request is the conservation commission's failure to act, the request may be made at any time up to 70 days after the expiration of the period within which the conservation commission was to have acted. Said request shall state clearly and concisely the objections to the Order, Determination or Notification which is being appealed and, in the case of a request for a Superseding Order, how the Order of Conditions or Notification of Non-significance issued by the conservation commission is inconsistent with 310 CMR 10.00 and does not contribute to the protection of the interests identified in M.G.L. c. 131, § 40. When the Order is a Restoration Order of Conditions, the basis of the request is limited to claim(s) that the applicant did not comply with one or more of the applicable procedural requirements of 310 CMR 10.05 and/or the conservation commission issued the Restoration Order of Conditions in contravention of one or more of the applicable eligibility criteria. The request for Department action shall specifically identify any procedural requirements and eligibility criteria that the person requesting Department action alleges have not been met.

(d) All requests for the Department to act shall be sent to the appropriate Regional Office of the Department. A copy of the request shall at the same time be sent by certified mail or hand delivered to the conservation commission and the applicant, if he is not the appellant. (e) Within 35 days from receipt of such a request, the Department shall issue a Superseding Determination of Applicability (Form 2) or a Notification that an area is not significant to any interest identified in M.G.L. c. 131, § 40 (Form 6).

(f) Within 70 days from receipt of such a request, the Department shall issue a Superseding Order unless either of the following apply, or in the event that both apply, whichever is later:

1. compliance with M.G.L. c. 30, §§ 61 through 62H and 301 CMR 11.00 is required, in which case the Department shall issue a Superseding Order within 40 days of the issuance of a statement by the Secretary of the Executive Office of Energy and Environmental Affairs that the applicant has complied with M.G.L. c. 30, §§ 6 through 62H and 301 CMR 11.00: MEPA Regulations;

2. the Department has requested additional plans, information or documentation pursuant to 310 CMR 10.05(7)(g), in which case the Department shall issue a Superseding Order within 40 days of receipt of such plans, information, or documentation, or of the failure of the applicant to comply with such request.

(g) The Department shall notify the applicant within 30 days of receipt of a request for the Department to act if additional information or documentation is necessary to make its determination; provided, however, that further information may be requested should the information supplied in response to the original notification so require. When requested to issue a Superseding Order of Resource Area Delineation, the Department shall limit its review to the resource area delineations. The Department shall consider the objections to the resource area delineations stated in the request. The Department may affirm an Order of Resource Area Delineation based upon a conclusion that the Order of Resource Area Delineation substantially conforms to the locations identified by the Department through a site inspection.

(h) When the request for a Superseding Order concerns an Order prohibiting work and issued pursuant to 310 CMR 10.05(6)(c), the Department shall limit its review to the information submitted to the conservation commission. If the Department determines that insufficient information was submitted, it shall affirm the denial and instruct the applicant to refile with the conservation commission and include the appropriate information. If the Department determines that sufficient information was submitted, it shall so inform the applicant and the conservation commission, and shall proceed to issue a Superseding Order as provided in 310 CMR 10.05.

(i) After receipt of a request for a Superseding Determination or Order, the Department may conduct an informal meeting and may conduct an inspection of the site. In the event an inspection is conducted, all parties shall be invited in order to present any information necessary or useful to a proper and complete review of the proposed activity and its effects upon the interests identified in M.G.L. c. 131, § 40. Any party presenting information as a result of such a meeting shall provide copies to the other parties.

Based upon its review of the Notice of Intent, the Order, any informal meeting or site inspection, and any other additional plans, information, or documentation submitted under 310 CMR 10.05(7)(f) or (g), the Department shall issue a Superseding Order for the protection of the interests identified in M.G.L. c. 131, § 40. The Superseding Order shall impose such conditions as are necessary to meet the performance standards set forth in 310 CMR 10.21 through 10.60 and stormwater standards set forth at 301 CMR 10.05(6)(k) for the protection of those interests. The Superseding Order shall prohibit any work or any portions thereof that cannot be conditioned to protect such interests. The Department may issue a Superseding Order which affirms the Order issued by the conservation commission. The Department shall issue a Restoration Order of Conditions as the Superseding Order of Conditions in the event it determines that the project meets the eligibility criteria for a Restoration Order of Conditions. If the applicant submitted a Combined Application for a project that requires a 401 Water Quality Certification pursuant to 314 CMR 9.00: 401

Water Quality Certification for Discharge of Dredged or Fill Material, Dredging, and Dredged Material Disposal in Waters of the United States Within the Commonwealth, or a water-dependent use project that requires a Chapter 91 license, permit or other written approval pursuant to 310 CMR 9.00: Waterways, the Department may issue a Combined Permit that serves as the Superseding Order of Conditions, the 401 Water Quality Certification, and/or the Chapter 91 permit, license or other written approval, whichever is applicable, provided the Department determines that the project meets the requirements for obtaining such Order, Certification, permit, license or other written approval.

(j)Administrative Hearings.

1.Timely Filings. Papers required or permitted to be filed under 310 CMR 10.05 must be filed with the Department, at the address designated in the Reviewable Decision, within the timelines specified in 310 CMR 10.05. Papers shall be considered filed as set forth in 310 CMR 1.01(3): Time.

2.Appeal Notice.

a. Any applicant, landowner, aggrieved person if previously a participant in the permit proceedings, conservation commission, or any ten residents of the city or town where the land is located, if at least one resident was previously a participant in the permit proceeding may request review of a Reviewable Decision by filing an Appeal Notice no later than ten business days after the issuance of the Reviewable Decision. Previously participating in the permit proceeding means the submission of written information to the conservation commission prior to close of the public hearing, requesting an action by the Department that would result in a Reviewable Decision, or providing written information to the Department prior to issuance of a Reviewable Decision. The Appeal Notice must be filed with the Department with a copy sent to the appropriate regional Department office by certified mail or hand delivered within ten days after the date of issuance of the Reviewable Decision, and a copy thereof must at the same time be sent by certified mail or hand delivered to the conservation commission (if not filed by the conservation commission) and to the applicant (if not filed by the applicant). The Appeal Notice shall also be served by certified mail or hand delivered on any person that requested the action by the Department that resulted in the Reviewable Decision. In the event that the entity that requested the action is a ten resident group, the Appeal Notice shall be served on the designated representative of the ten resident group, whose name and contact information shall be included in the Reviewable Decision. Any party listed in 310 CMR 10.05(7)(j)2.a. that fails to timely file an Appeal Notice pursuant to 310 CMR 10.05, shall be deemed to have waived its right to appeal the Reviewable Decision.

b. The Appeal Notice shall include all of the following:

i. the Petitioner's complete name, address, phone number, fax number and email address and, if represented, counsel's name, address, phone number, fax number and email address, and if a ten resident group, the same information for the group's designated representative.

ii. the department's wetlands file number, if applicable, the name of applicant and address of the project.

iii. if filed by an aggrieved person, demonstration of participation in previous proceedings, in accordance with 310 CMR 10.05(7)(j)3.a. and sufficient written facts to demonstrate status as a person aggrieved;

iv. if filed by a ten resident group, demonstration of participation in previous proceedings, in accordance with 310 CMR 10.05(7)(j)(3)(a);

v. a clear and concise statement of the alleged errors contained in the Reviewable Decision and how each alleged error is inconsistent with 310 CMR 10.00 and does not contribute to the protection of the interests identified in the Wetlands Protection Act, M.G.L. c. 131, § 40, including reference to the statutory or regulatory provisions the Party alleges has been violated by the Reviewable Decision, and the relief sought, including specific changes desired in the Reviewable Decision. In the event that the Reviewable Decision is a Superseding Order of Conditions that is a Restoration Order of Conditions, the appeal is limited to a claim that the applicant did not comply with one or more of the applicable procedural requirements of 310 CMR 10.05 and/or the Department issued the Reviewable Decision in contravention of one or more of the applicable eligibility criteria. The notice of claim shall specifically identify the procedural requirements and eligibility criteria that the person requesting an adjudicatory hearing alleges have not been met;

vi. a copy of the Reviewable Decision appealed and a copy of the underlying Conservation Commission decision if the Reviewable Decision affirms the Conservation Commission decision; and vii. if asserting that a matter is Major or Complex, a statement requesting that the Presiding Officer make a designation of Major or Complex, with specific reasons supporting the request.

c. An Appeal Notice that does not contain all of the information required in 310 CMR 10.05(7)(j)1.b. may be dismissed.

d. Within five business days of receipt of a written request by any potential party, the applicant shall make all documents submitted to the department in support of the Reviewable Decision, including but not limited to the notice of intent, plan of record, or other information, available to any person who states that they intend to appeal or intervene. In the case of a ten resident group, or a group intervening pursuant to M.G.L. c. 30A, the applicant need only make one copy available to the group's designated representative.

e. Within five days of the receipt by the applicant and/or property owner of a written request by any person who has filed an appeal or intervened, and/or such person's consultants, attorneys, or other representatives, shall be allowed to visit the site with the property owner, upon reasonable conditions of the applicant and/or property owner. The purpose of a site visit shall be related solely to the Reviewable Decision under appeal and shall be specifically identified by the requesting party. The person requesting the site visit may request a later date for the site visit, which shall be reasonably accommodated by the applicant and/or property owner.

f. The Department, the conservation commission, the petitioner, the applicant, and any interveners pursuant to 310 CMR 10.05(7)(j) shall be deemed to be parties to the proceeding and are entitled to service of all documents filed in the proceeding, and shall be included in a certificate of service to accompany all filings in accordance with 310 CMR 1.01(4)(f).

g. No work shall be undertaken until all administrative appeal periods from a Reviewable Decision have elapsed, or if such an appeal has been taken, until all procedures before the Department have been completed.

h. The Presiding Officer may rule on the timeliness, standing and compliance with the requirements of 310 CMR 10.05(7)(j)3.b., sua sponte, and provide a prompt ruling to the parties; or if in response to a motion, within ten days of the filing of such motion.

3.Petitioner's Direct Case.

a. A Party who has timely filed an Appeal Notice must file with the Department and serve a copy on all parties its Direct Case no later than 45 days after the Prescreening Conference.

b. The Petitioner has the burden of going forward pursuant to 310 CMR 10.03(2), and proving its direct case by a preponderance of the evidence.

c. In its Direct Case, the Petitioner must establish the legal and factual basis for its position on the issues identified by the Presiding Officer in the pre-screening report. Failure to do so will result in a waiver of Petitioner's Direct Case for that issue. In addition, the Direct Case at a minimum shall include:

i. a description of the subject matter of the Reviewable Decision;

ii. credible evidence from a competent source in support of each claim of factual error, including any relevant expert report(s), plan(s), or photograph(s).

4.Respondents' Direct Case. A party that seeks to support or defend the Reviewable Decision shall file and serve on all parties a Direct Case within 30 days of the filing of the Petitioner's Direct Case. A responding party shall be deemed to be a "Respondent".

a.Response Content: The response shall at a minimum include:

i. A rebuttal to the Petitioner's Direct Case setting forth the legal and factual basis supporting the Reviewable Decision, including relevant statutory and regulatory citations and evidentiary support consisting of credible evidence from a competent source;

ii. any affirmative defenses and evidentiary support for them, including but not limited to the defense of lack of standing; and iii. if asserting that a matter is Major or Complex, a statement requesting that the Presiding Office make designation of Major or Complex, with specific reasons supporting the request.

5.Intervention and Intervenors' Direct Case.

a. Pursuant to M.G.L. c. 30A, § 10A, a group of ten citizens may intervene in a proceeding by filing and serving on all parties a Motion to Intervene within 21 days of the filing of the Appeal Notice. The Motion to Intervene shall provide the names, addresses, phone and fax numbers and email address of each of the members of the ten citizens group, and a certification under oath by each member that they consent to the Motion to Intervene, and authorize the group representative to act for the member. The Motion shall also designate a representative who shall represent the group and receive documents on its behalf. Upon filing a Motion in conformance with 310 CMR 10.05(7)(j)5.a., the ten citizen group shall be deemed a party, subject to disqualification if the Presiding Officer determines that the group does not consist of at least ten consenting citizens.

b. A person who claims that he or she is substantially and specifically affected by the proceeding, may intervene by filing and serving on all parties a Motion to Intervene within 21 days of the filing of the Appeal Notice. The Motion must include a statement demonstrating that the moving party is substantially and specifically affected, in accordance with 310 CMR 1.01(7)(d): Intervenors. Upon filing a Motion in conformance with 310 CMR 10.05(7)(j)5., the moving party shall be deemed a party, subject to disqualification if the Presiding Officer determines that the moving party is not substantially and specifically affected.

c. An intervenor that contests the Reviewable Decision shall file a Direct Case that conforms to 310 CMR 10.05(7)(j)3. no later than the due date of Petitioner's Direct Case. An intervenor that supports the Reviewable Decision shall file a Direct Case that conforms to 310 CMR 10.05(7)(j)4. no later than the due date of the Respondent's Direct Case.

d. The Presiding Officer may rule on the timeliness, standing and compliance with the requirements of 310 CMR 10.05(7)(j)5., sua sponte, and provide a prompt ruling to the parties, or if in response to a motion within ten days of the filing of such motion.

6.Rebuttal. The Petitioner or an Intervenor aligned with the Petitioner may file and serve on all parties rebuttal evidence no later than seven days after the filing of the Direct Case by the Respondent or any Intervenor aligned with the Respondent. The rebuttal evidence shall be limited to countering evidence submitted in a Respondent's or Intervenor's Direct Case in support of the Reviewable Decision.

7.Pre-screening and Hearing

a. Upon receipt of the Appeal Notice, the Presiding Officer will schedule a prescreening conference to be conducted pursuant to 310 CMR 1.01(5)(a)15., and will send notice to all parties. Such prescreening conference will presumptively occur not more than 30 days after the Appeal Notice is filed. As used in this regulation, "presumptively" means that the time-line is binding, absent extraordinary circumstances in which case the Presiding Officer has authority to extend the timeline.

b. Upon receipt of the Appeal Notice, the Department will schedule a hearing and will send notice to all parties. A hearing will be presumptively held within 120 days after the Appeal Notice is filed.

c. Intervenors who subsequently intervene shall promptly receive the notice, but intervention shall not change the schedule of the pre-screening conference or the hearing.

d. Parties may file motions regarding jurisdictional defects such as standing or timeliness by a date set by the presiding officer before the prescreening. Motions for directed verdict or summary decision may be filed by a date set by the presiding officer at the prescreening. Motions will not change the schedule of the prescreening conference or the hearing.

e. Upon notice to the parties, the Presiding Officer may provide an opportunity for a simplified hearing conducted pursuant to 310 CMR 1.01(8)(a): Simplified Hearing. f. If the Presiding Officer determines an appeal to be Major or Complex, she will adjust the schedule either by extending it up to 30 days, or by taking the matter ahead of other cases.

g. All parties must attend and be prepared to discuss settlement and the narrowing of issues at the pre-screening conference. At the conclusion of the pre-screening conference or shortly thereafter, the Presiding Officer shall prepare and circulate a prescreening conference report, for any appeal not resolved in prescreening. The prescreening conference report shall contain a list of issues that are in dispute and which are legally relevant, and that are to be addressed in the parties' direct and rebuttal cases.

h. The Presiding Officer shall conduct a hearing. At the hearing, the parties' Direct Cases shall consist of, and be limited to, the evidence contained in their respective Direct Cases and rebuttal evidence, subject to evidentiary rulings of the Presiding Officer. The primaryfunction of the hearing shall be cross-examination of witnesses and, at the Presiding Officer's discretion an oral closing argument. The hearing shall be limited to one day, unless the Presiding Officer finds that there is good cause for a longer hearing.

8.Final Action. The Presiding Officer shall issue a written recommended decision, not more than 30 days after the close of hearing, that shall include findings on the contested issues. The Commissioner shall issue a final written decision consistent with 310 CMR 1.01(14)(b), presumptively within six months of the Reviewable Decision, or in the case of an appeal deemed Major or Complex in which the schedule was extended, within seven months of the Reviewable Decision. Should a party request a tentative decision, the request shall be governed by 310 CMR 1.01(14)(a).

9.Relationship to Other Rules of Adjudicatory Proceedings.

a. To the extent there is conflict between the regulations governing wetland appeals set forth in 310 CMR 10.04 and 10.05(7)(j), on the one hand, and the Rules of Adjudicatory Proceedings set forth in 310 CMR 1.01: Adjudicatory Proceeding Rules for the Department of Environmental Protection, on the other hand, the former shall prevail.

b. The following regulations shall apply to wetland appeals: 310 CMR 1.01(1) through (5), (6)(c), (f) through (k); (8); (10); (12)(a), (c), (d); (13)(a) through (c), (e) through (h), (j), (l) through (n); (14)(b) through (g) and 1.03: Miscellaneous Provisions Applicable to All Adjudicatory Proceedings.

10.Coordination of Appeals. The Department may coordinate adjudicatory hearings under 310 CMR 10.05(7)(j), 310 CMR 9.17: Appeals, and 314 CMR 9.10: Appeals or other administrative appeals.

a. If a 401 Water Quality Certification been issued pursuant to 314 CMR 9.00: 401 Water Quality Certification for Discharge of Dredged or Fill Material, Dredging, and Dredged Material Disposal in Waters of the United States Within the Commonwealth and/or a permit, license or other written approval has been issued pursuant to 310 CMR 9.00: Waterways, the Department may exclude issues solely within the jurisdiction of 314 CMR 9.00: 401 Water Quality Certification for Discharge of Dredged or Fill Material, Dredging, and Dredged Material Disposal in Waters of the United States Within the Commonwealth and/or 310 CMR 9.00: Waterways at an adjudicatory hearing held under 310 CMR 10.05(7)(j).

b. If an adjudicatory hearing has been requested in accordance with 310 CMR 9.17: Appeals and/or 314 CMR 9.10: Simplified Procedures for Small Structures Accessory to Residences, or another administrative appeal, the Department may consolidate the proceedings.

c. In the event that the Department has issued a Combined Permit that serves as a Superseding Order of Conditions and/or a 401 Water Quality Certification issued pursuant to 314 CMR 9.00: 401 Water Quality Certification for Discharge of Dredged or Fill Material, Dredging, and Dredged Material Disposal in Waters of the United States Within the Commonwealth and/or a permit, license or other written approval issued pursuant to 310 CMR 9.00: Waterways, the appeal may include issues solely within the jurisdiction of 314 CMR 9.00:401 Water Quality Certification for Discharge of Dredged or Fill Material, Dredging, and Dredged Material Disposal in Waters of the United States Within the Commonwealth and/or 310 CMR 9.00: Waterways only as follows: The appeal may include issues solely within the jurisdiction of 314 CMR 9.00: 401 Water Quality Certification for Discharge of Dredged or Fill Material, Dredging, and Dredged Material Disposal in Waters of the United States Within the Commonwealth, only if the appeal has been requested in accordance with the requirements of 314 CMR 9.10: Simplified Procedures for Small Structures Accessory to Residences. The appeal may include issues solely within the jurisdiction of 310 CMR 9.00: Waterways, only if the appeal has been requested in accordance with the requirements of 310 CMR 9.17: Appeals.

(k) No work shall be undertaken until all administrative appeal periods from an Order or Notification of Non-significance have elapsed or, if such an appeal has been taken, until all proceedings before the Department have been completed.

(8)Extensions of Orders of Conditions and Orders of Resource Area Delineations.

(a) The issuing authority may extend an Order for one or more periods of up to three years each, except as otherwise provided in 310 CMR 10.05(11)(f) (extensions for Test Projects). Any extension granted by the issuing authority shall be made on Form 7. The request for an extension shall be made to the issuing authority at least 30 days prior to expiration of the Order.

(b) The issuing authority may deny the request for an extension and require the filing of a new Notice of Intent for the remaining work or a new Abbreviated Notice of Resource Area Delineation in the following circumstances:

1. where no work has begun on the project, except where such failure is due to an unavoidable delay, such as appeals, in the obtaining of other necessary permits;

2. where new information, not available at the time the Order was issued, has become available and indicates that the Order is not adequate to protect the interests identified in M.G.L. c. 131, § 40; or

3. where incomplete work is causing damage to the interests identified in M.G.L. c. 131, § 40;

4. where work has been done in violation of the Order or 310 CMR 10.00; or

5. where a resource area delineation or certification under 310 CMR 10.02(2)(b)2. in an Order of Resource Delineation is no longer accurate.

(c) If issued by the conservation commission, the Extension Permit shall be signed by a majority of the commission. A copy of the Extension Permit shall be sent to the conservation commission or the Department, whichever is appropriate, by the issuing authority.

(d) The Extension Permit shall be recorded in the Land Court or the Registry of Deeds, whichever is appropriate. Certification of recording shall be sent to the issuing authority on the form at the end of Form 7. If work is undertaken without the applicant so recording the Extension Permit, the issuing authority may issue an Enforcement Order (Form 9) or may itself record the Extension Permit.

(9)Certificates of Compliance.

(a) Upon completion of the work described in a Final Order of Conditions, but not later than the three year term of an Order of Resource Area Delineation or any extension thereunder, the applicant shall request in writing the issuance of a Certificate of Compliance stating that the work has been satisfactorily completed. Upon written request by the applicant, a Certificate of Compliance shall be issued by the issuing authority within 21 days of receipt thereof, and shall certify on Form 8 that the activity or portions thereof described in the Notice of Intent and plans has been completed in compliance with the Order. If issued by the Conservation Commission, the Certificate of Compliance shall be signed by a majority of the commission. A copy of the Certificate of Compliance shall be sent to the conservation commission or the Department, whichever is appropriate, by the issuing authority.

(b) Prior to the issuance of a Certificate of Compliance, a site inspection shall be made by the issuing authority, in the presence of the applicant or the applicant's agent. If the Department is the issuing authority, it shall notify the conservation commission of the request and the date of the site inspection.

(c) If the issuing authority determines, after review and inspection, that the work has not been done in compliance with the Order, it may refuse to issue a Certificate of Compliance. Such refusal shall be issued within 21 days of receipt of a request for a Certificate of Compliance, shall be in writing and shall specify the reasons for denial.

(d) If a project has been completed in accordance with plans stamped by a registered professional engineer, architect, landscape architect or land surveyor, a written statement by such a professional person certifying substantial compliance with the plans and setting forth what deviation, if any, exists from the plans approved in the Order shall accompany the request for a Certificate of Compliance.

(e) If the final order contains conditions which continue past the completion of the work, such as maintenance or monitoring, the Certificate of Compliance shall specify which, if any, of such conditions shall continue. The Certificate shall also specify to what portions of the work it applies, if it does not apply to all the work regulated by the Order.

(f) The Certificate of Compliance shall be recorded in the Land Court or Registry of Deeds, whichever is appropriate. Certification of recording shall be sent to the issuing authority on the form at the end of Form 8. Upon failure of the applicant to so record, the issuing authority may do so.

(10)Variance.

(a) The Commissioner may waive the application of any regulation(s) in 310 CMR 10.21 through 10.60 when he or she finds that:

1. there are no reasonable conditions or alternatives that would allow the project to proceed in compliance with 310 CMR 10.21 through 10.60;

2. that mitigating measures are proposed that will allow the project to be conditioned so as to contribute to the protection of the interests identified in M.G.L. c. 131, § 40; and 3. that the variance is necessary to accommodate an overriding community, regional, state or national public interest; or that it is necessary to avoid an Order that so restricts the use of property as to constitute an unconstitutional taking without compensation.

(b)Procedure. A request for a variance shall be made in writing and shall include, at a minimum, the following information:

1. a description of alternatives explored that would allow the project to proceed in compliance with 310 CMR 10.21 through 10.60 and an explanation of why each is unreasonable;

2. a description of the mitigating measures to be used to contribute to the protection of the interests identified in M.G.L. c. 131, § 40; and

3. evidence that an overriding public interest is associated with the project which justifies waiver of 310 CMR 10.21 through 10.60, or evidence that the Superseding Order so restricts the use of the land that it constitutes an unconstitutional taking without compensation.

The request for a variance shall be sent to the Department by certified mail or hand delivered and a copy thereof shall at the same time be sent by certified mail or hand delivered to the conservation commission and any other parties.

The Department will place a notice in the Environmental Monitor published by the Massachusetts Environmental Policy Act Office of the Executive Office of Energy and Environmental Affairs to solicit public comments on the request. The Department shall conduct a public hearing on a request for a variance. After reviewing the information submitted with the request for a variance and any other information submitted by any party within the public comment period, the Commissioner shall issue a decision as to whether to grant the variance. Within ten days of the date of issuance of the Commissioner's decision on the variance, any person who submitted comments during the public comment period may, according to the procedures specified in 310 CMR 10.05(7)(j), request an adjudicatory hearing on the decision. On a request for a variance based on overriding public interest, the Commissioner may dismiss the request to hold an adjudicatory hearing if the request repeats matters adequately considered in the variance decision, renews claims or arguments previously raised, or attempts to raise new claims or arguments not raised during the public comment period. On a request for a variance to avoid restrictions that would constitute an unconstitutional taking, the Commissioner shall hold an adjudicatory hearing. If an adjudicatory hearing is held, the applicant has the burden of demonstrating that the project meets the criteria necessary for a variance. Other parties to the adjudicatory hearing may introduce evidence either in favor of or opposing the request for a variance.

For projects in which all of the proposed work will be undertaken on land within the boundaries of one city or town, the request for a variance shall not be filed until the applicant first files a Notice of Intent with the Conservation Commission. The Commission shall review the project in accordance with the procedures set forth in 310 CMR 10.01 through 10.10 and issue an Order of Conditions consistent with 310 CMR 10.21 through 10.60. Within ten days of the issuance of the Order of Conditions, the applicant may request the Department to issue a Superseding Order. The Department staff shall review the project in accordance with the procedures set forth in 310 CMR 10.01 through 10.10 and shall issue a Superseding Order consistent with the provisions of 310 CMR 10.21 through 10.60. Within ten days of the issuance of the Superseding Order, the applicant may request an adjudicatory hearing on that order and/or a variance under 310 CMR 10.05(10) according to the procedure previously described.

For projects in which the proposed work will be undertaken on land within the boundaries of more than one city or town, the applicant may file a request for a variance directly with the Commissioner, with a copy to each affected conservation commission. If, after public notice, the Commissioner finds that a project meets the variance criteria, he shall specify which regulation(s) has been waived and what general requirements or conditions must be met to satisfy the variance criteria listed in 310 CMR 10.05(10)(a). The applicant shall then file a Notice of Intent with the appropriate conservation commissions in accordance with the procedures contained in 310 CMR 10.01 through 10.10. The conservation commissions shall issue Orders of Conditions consistent with all provisions of 310 CMR 10.21 through 10.60 except those waived by the Commissioner and containing any additional conditions or requirements imposed by the Commissioner in the variance. The usual procedures contained in 310 CMR 10.01 through 10.10 for requesting Superseding Orders and adjudicatory hearings remain applicable.

Commentary

310 CMR 10.05(10), which provides that the Commissioner may waive the application of one or more of the regulations on the basis of overriding public benefit is intended to be employed only in rare and unusual cases. The provision authorizing a variance request directly to the Commissioner for projects on land within more than one city or town is intended to apply to projects that involve functionally related work in several contiguous towns (e.g., transportation and energy transmission facilities) and to provide for a single uniform determination concerning alternative locations and the other variance criteria.

(11)Permitting of Test Projects.

(a)General. The purpose of 310 CMR 10.05(11) is to establish procedures for permitting Test Projects to promote the development of potential new renewable energy technologies and other Innovative Technologies. Innovative Technologies must be proven through field testing before any large scale commercial deployment can occur in order to develop the data and information needed to support siting and full-scale deployment in a cost-effective manner. 310 CMR 10.05(11) will facilitate and encourage the development, testing and demonstration of Innovative Technologies, including water dependent renewable energy technologies, through review procedures for Test Projects. Given their limited scope and duration, these projects are expected to have minimal adverse environmental impacts and, therefore, are permittable under 310 CMR 10.05(11), provided that the applicant provides for adequate post-installation monitoring to identify any unanticipated adverse environmental impacts that occur in the course of the project. The issuing authority may require the alteration or removal of the project if the monitoring study or other information indicates that the project has unexpected or more than minimal adverse environmental impacts. Pre-application consultation with the issuing authority is recommended. Proposed Test Projects that do not meet the eligibility criteria in 310 CMR 10.05(11)(b) may be permitted provided they meet all applicable requirements of 310 CMR 10.24 through 10.35 for projects in coastal resource areas and 310 CMR 10.54 through 10.58 and 10.60 for projects in inland resource areas.

(b)Eligibility Criteria. Notwithstanding the provisions of 310 CMR 10.24 through 10.35, 10.53 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, to permit Test 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 10.37 and 10.59) provided:

1. the applicant documents the readiness of the device or technology for in situ testing with the results of laboratory testing, modeling, technical evaluations, or similar forms of supporting material;

2. the structures associated with the project will not be located in specified habitat sites of Rare Species located within a resource area or Buffer Zone;

3. the structures associated with the project are not located within a salt marsh or seagrass bed; and

4. any structures associated with the project can be easily and quickly removed with minimal disruption to resource areas.

(c)Application Requirements. For the purpose of authorizing eligible Test Projects pursuant to 310 CMR 10.05(11), the following provisions shall apply:

1. In lieu of plans prepared by a Registered Professional Engineer or Registered Land Surveyor a Notice of Intent for a Test Project may include documentation that appropriate laboratory testing and/or modeling has occurred and show the proposed location of the project on a plan designating all project components by coordinates referenced to the Massachusetts State Plane Coordinate System.

2. In addition to the documentation provided in 310 CMR 10.11(c)1., a Notice of Intent for a Test Project shall include the following:

a. a description of the device or technology to be tested and the purpose of the project;

b. a description of the installation process and schedule for installation, testing, and removal of the devices, technologies and associated equipment;

c. a demonstration that the project complies with the eligibility requirements of 310 CMR 10.05(11)(b)1. through 4.;

d. a plan for the restoration of all disturbed resource areas to pre-existing conditions and a schedule for completing the restoration before the Order of Conditions expires; e. an environmental monitoring plan sufficiently broad to ensure the project meets all applicable regulatory standards; and f. a plan for prompt removal of the components of the project if the Department or conservation commission determines that the project threatens public health, safety or the environment.

(d)Order of Conditions. At a minimum, the Order of Conditions authorizing a Test Project pursuant to 310 CMR 10.05(11) shall require the applicant to implement the monitoring plan and the restoration plan submitted with the Notice of Intent as approved by the issuing authority. The Order of Conditions shall also provide that if the Department or the conservation commission determines that the Test Project threatens the public health, safety or the environment, the applicant shall implement the removal plan submitted with the Notice of Intent as approved by the issuing authority, or modify the project as directed by the conservation commission or the Department.

(e)Term. Notwithstanding the provisions of 310 CMR 10.05(6)(b), an Order of Conditions for a Test Project issued under 310 CMR 10.05(11) shall be valid for no more than one year.

(f)Extension Permits. An Order of Conditions for a Test Project issued in accordance with 310 CMR 10.05(11) may be extended for one additional year upon written application by the applicant in accordance with 310 CMR 10.5(8)(a), The issuing authority may deny a request for an extension, if it determines that: the project objectives have not been advanced during the initial term; the continuation of the project would not adequately protect public health, safety, or the environment; or the extension should be denied based on the one 0or more of the circumstances identified in 310 CMR 10.05(8)(c). An extension permit issued for a Test Project in accordance with 310 CMR 10.05(11) is subject to the provisions of 310 CMR 10.05(8)(d) and (e).

(g)Appeals. The provisions governing Department action and adjudicatory hearings set forth in 310 CMR 10.05(7) shall apply to decisions authorizing Test Projects pursuant to 310 CMR 10.05(11). In the event that the Department issues a Superseding Order of Conditions denying a Test Project on the ground that it does not meet the eligibility criteria set forth in 310 CMR 10.05(11)(b), the applicant may file a Notice of Intent seeking authorization for the Test Project under the applicable provisions of 310 CMR 10.24 through 10.37, 10.53 through 10.58 and 10.60 in lieu of requesting an adjudicatory hearing.

310 CMR 10.05

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