Section 10.14 - Restoration Order of ConditionsIf after reviewing a Notice of Intent for an Ecological Restoration Project, the issuing authority determines that the Ecological Restoration Project meets the eligibility criteria in 310 CMR 10.13(1) and the applicable provisions of 310 CMR 10.13(2) through (7), the issuing authority shall issue a Restoration Order of Conditions that contains the general conditions set forth in 310 CMR 10.14(1), and all applicable special conditions set forth in 310 CMR 10.14(2) through (7). The Restoration Order of Conditions may reference the plans and specifications for the Ecological Restoration Project approved by the issuing authority. If the Restoration Order of Conditions is issued in response to a Combined Application for an Order of Conditions pursuant to 310 CMR 10.00, 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 a Chapter 91 license, permit or other written approval pursuant to 310 CMR 9.00: Waterways, 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/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. A Restoration Project Order of Conditions is subject to the provisions of 310 CMR 10.05 that apply to any Order of Conditions except as expressly provided otherwise in 310 CMR 10.00.
(1)General Conditions Applicable to all Ecological Restoration Projects. The Restoration Order of Conditions shall contain the following general conditions: (a) Failure to comply with all conditions stated herein and with all related statutes and other regulatory measures shall be deemed cause to revoke or modify this Restoration Order of Conditions.(b) This Restoration 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 private rights.(c) This Restoration Order of Conditions does not relieve the permittee or any other person of the necessity of complying with all applicable federal, state or local statutes, ordinances, bylaws or regulations.(d) The work authorized under this Restoration Order of Conditions shall be completed within three years from the date of issuance of this General Order unless the General Order is extended in accordance with 310 CMR 10.05(6)(d) or by operation of law.(e) This Restoration Order of Conditions may be extended by the issuing authority for one or more periods of up to three years upon application to the issuing authority at least 30 days prior to the expiration date of this Restoration Order.(f) Any fill used in connection with this project shall be clean fill. Any fill shall contain no trash, refuse, rubbish or debris, including but not limited to lumber, bricks, plaster, wire, lath, paper, cardboard, pipe, trees, ashes, refrigerators, motor vehicles or parts of any of the foregoing.(g) This Restoration Order of Conditions is not final until all administrative appeal periods from this Restoration Order have elapsed or if such an appeal has been taken, until all proceedings before the Department have been completed.(h) No work shall be undertaken until the Restoration Order of Conditions has become final and has been recorded in the Registry of Deeds or the Land Court for the district in which the land is located within the chain of title to the affected property. In the case of recorded land, the Final Restoration Order of Conditions 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 done. The recording information shall be submitted to the Issuing Authority prior to commencement of the work.(i) A sign that is not less than two square feet or more than three square feet shall be displayed at the site. The sign shall bear the words "Massachusetts Department of Environmental Protection" and include the File Number.(j) Where the Department is requested to issue a Superseding Order, the Conservation Commission shall be a party to all agency proceedings and hearings before the Department. (k) Upon completion of the work described herein, the applicant shall submit a Request for a Certificate of Compliance to the issuing authority.(l) The work shall conform to the plans and special conditions referenced in this Restoration Order of Conditions.(m) Any change to the plans approved in this Restoration Order of Conditions shall require the applicant to inquire of the Issuing Authority in writing whether the change is significant enough to require the filing of a new Notice of Intent. (n) Representatives of the Conservation Commission and the Department of Environmental Protection shall have the right to enter and inspect the area subject to this Restoration Order of Conditions at reasonable hours to evaluate compliance with the conditions set forth in this Restoration Order of Conditions and may require the submittal of any data deemed necessary by the Conservation Commission or the Department for that evaluation. (o) This Restoration Order of Conditions shall apply to any successor in interest or successor in control of the property subject to this Restoration Order of Conditions and to any contractor or other person performing work conditioned by this Order.(p) Prior to the start of work, and if the project involves work adjacent to a Bordering Vegetated Wetland or Salt Marsh, the boundary of the wetland in the vicinity of the proposed work area shall be marked by wooden stakes or flagging. Once in place, the wetland boundary markers shall be maintained until a Certificate of Compliance has been issued by the issuing authority. (q) All sedimentation barriers shall be maintained in good repair, until all disturbed areas have been fully stabilized with vegetation or other means. During construction, the applicant or his or her designee shall inspect the erosion controls on a daily basis and shall remove accumulated sediments as needed. The applicant shall immediately control any erosion problems that occur at the site and shall also immediately notify the issuing authority. The Issuing Authority reserves the right to require any additional erosion and/or damage prevention controls it deems necessary. Sedimentation barriers shall serve as the limit of work unless another limit of work line has been approved by this Order. (r) The project shall be conducted in accordance with any preliminary written determination obtained from the Natural Heritage and Endangered Species Program as set forth in 310 CMR 10.11(2) and any time of year restrictions or other conditions recommended in writing by the Division of Marine Fisheries (for projects in coastal Resource Areas) and the Division of Fisheries and Wildlife (for projects in inland Resource Areas) as set forth in 310 CMR 10.11(3) through (5).(s) The applicant shall implement the plan submitted with the Notice of Intent as approved by the Issuing Authority to prevent and control invasive species. (t) If the project involves the dredging of 100 cubic yards or more in a Resource Area or dredging of any amount in an Outstanding Resource Water, the dredging and Dredged Material management shall be performed in accordance with the Water Quality Certification submitted with the Notice of Intent. (u) If the project involves infrastructure, the owner shall operate and maintain the infrastructure in accordance with the operation and maintenance plan submitted with the Notice of Intent as approved by the Issuing Authority. 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 Certificate of Compliance. (2)Special Conditions for Dam Removal Projects. If the Ecological Restoration Project involves dam removal, the Restoration Order of Conditions shall contain the following special conditions in addition to the general conditions set forth in 310 CMR 10.14(1): (a) An as-built plan and a written statement from a registered professional engineer or other environmental professional expert in ecological restoration certifying substantial compliance with the design plan and construction specifications approved in the Restoration Order of Conditions shall be submitted to the Issuing Authority within 90 days of completion of the dam removal.(b) The applicant shall monitor the dam removal site during the first two years following completion of the dam removal. Said monitoring shall include a topographic survey of the longitudinal profile and stream cross-sections from downstream of the former dam through the upstream end of the former impoundment. The survey reference point shall comprise a permanent marker or recoverable survey point with known coordinates, such as a fixed point shown on the as-built plan, an existing bench mark, or a new benchmark. That marker should be identified or referenced on the plans and on the as-built plans. The applicant shall establish at least two photo-points for pre- and post-restoration monitoring at the dam removal site. At least one photo-point location shall be chosen to document a view of the dam pre-restoration and to document the same site after the dam is removed. A second location shall be chosen to document a view of the impoundment pre- and post-restoration. Photos shall be taken for two years after the dam removal is completed.(c) The applicant shall submit a report detailing the results of this monitoring within six months of the completion of the two year post-construction monitoring period, or within 30 months after the dam removal is complete whichever is sooner. The report shall include a comparison of post-restoration survey data with pre-restoration survey data as illustrated by the photos taken during the monitoring period.(3)Special Conditions for Freshwater Stream Crossing Repair and Replacement Projects. If the Ecological Restoration Project involves freshwater crossing repair or replacement, the Restoration Order of Conditions shall contain the following special conditions in addition to the general conditions set forth in 310 CMR 10.14(1): (a) An as-built plan and/or a written statement from a registered professional engineer or other environmental professional expert in ecological restoration certifying substantial compliance with the design plans and construction specifications approved in the Restoration Order of Conditions shall be completed within 90 days of completion of construction. The as-built plan shall include the dimensions of the structure, the invert elevation of the upstream and downstream ends of the structure and the road or other surface elevation above the structure.(b) The applicant shall monitor the site by collecting sufficient data within 12 months after construction is complete to evaluate the effect of the structure. At a minimum, when a Certificate of Compliance is requested, the applicant shall provide post-construction photo-points that capture longitudinal views of the crossing inlet, the crossing outlet and the upstream and downstream channel beds during low flow conditions. The photo-points shall be located at the same geographic photo-point latitude and longitude coordinates as required in the Notice of Intent per 310 CMR 10.12(1)(n). The applicant shall submit a report to the Issuing Authority detailing the results of this monitoring within 18 months after construction is complete. The report shall include a comparison of the post-restoration data with pre-restoration data.(4)Special Conditions for Stream Daylighting Projects. If the Ecological Restoration Project involves stream daylighting, the Restoration Order of Conditions shall include the following special conditions in addition to the general conditions set forth in 310 CMR 10.14(1): (a) An as-built plan and a written statement from a registered professional engineer or other environmental professional expert in ecological restoration certifying substantial compliance with the design plan and construction specifications approved in the Restoration Order of Conditions shall be submitted to the Issuing Authority within 90 days of completion of the project. At a minimum, when a Certificate of Compliance is requested, the applicant shall provide post-construction photo-points that capture longitudinal views of the upstream and downstream channel beds of the daylighted reach during low flow conditions.(b) The applicant shall conduct photo-point monitoring by establishing at least three photo-points for pre- and post-restoration monitoring at the stream daylighting site. One photo-point location shall be chosen to document the upstream end of the site and one photo-point location shall be chosen to document the downstream end of the site. A third photo-point shall be chosen to document conditions in the restored channel. Photos shall be taken during high flow and low (summer) flow of each year during the two years following completion of the project.(c) Within 30 months after the completion of the project, the applicant shall submit a report describing the ecological changes observed at the project site during the two years following completion of the project, as illustrated by the photos.(5)Special Conditions for Tidal Restoration Projects. If the Ecological Restoration Project involves restoration of tidal influence, the Restoration Order of Conditions shall contain the following special conditions in addition to the general conditions set forth in 310 CMR 10.14(1): (a) If the project is a culvert or bridge replacement or repair project, an as-built plan and a written statement from a registered professional engineer or other environmental professional expert in ecological restoration certifying substantial compliance with the design plans and construction specifications approved in the Restoration Order of Conditions shall be submitted to the Issuing Authority within 90 days of completion of construction. The as-built plan shall include the dimensions of the structure, the invert elevation of the upstream and downstream ends of the structure and the road or other surface elevation above the structure.(b) The applicant shall monitor pre- and post-construction tidal conditions upstream and downstream of the tidal restriction with water level readings measured at an interval no greater than every ten minutes over a minimum of a one-week period that includes a spring tide. Pre- and post-construction water level readings shall be taken at approximately the same locations and shall be referenced to the same vertical elevation datum. The applicant shall prepare a report detailing the results of this monitoring within 12 months after construction is complete. The report shall include and compare pre- and post-construction tidal elevation monitoring data to assess attainment of the project's predicted post-restoration tidal conditions.(6)Special Conditions for Rare Species Habitat Restoration. If the Ecological Restoration Project is a Rare Species Habitat Restoration Project, the Restoration Order of Conditions shall in addition to the general conditions set forth in 310 CMR 10.14(1) include the following special conditions:(a) An as-built plan and a written statement from a registered professional engineer or other environmental professional expert in ecological restoration certifying substantial compliance with the design plan, construction specifications, and the Habitat Management Plan submitted with the Notice of Intent as approved in the Restoration Order of Conditions shall be submitted to the Issuing Authority within 90 days of completion of the project.(b) The applicant shall establish at least two photo-points for pre- and post-restoration monitoring at the project site. Photos shall be taken for two years after construction is complete. Within 30 months of completion of the project, the applicant shall submit to the Issuing Authority a report describing the ecological changes observed at the project site as illustrated by the photos.(7)Special Conditions for Fish Passageway Restoration Projects. If the Ecological Restoration Project involves the repair or replacement of a fish passageway, the Restoration Order of Conditions shall in addition to the general conditions set forth in 310 CMR 10.14(1) contain the following special conditions: (a) The property owner is responsible for maintaining and repairing the fishway in good condition so that it will support safe and efficient fish passage in accordance with an operation and maintenance plan approved by the Division of Marine Fisheries. This requirement is a continuing condition that shall be set forth in the Certificate of Compliance.(b) A post-construction project summary using surveys, a narrative and photographs as needed, that confirm the fishway slope and entrance and exit elevations shall be submitted to and approved by the Division of Marine Fisheries, prior to submittal of a request for a Certificate of Compliance.Adopted by Mass Register Issue 1272, eff. 10/24/2014.