Section 44.04 - Eligible Projects(1) Any water pollution abatement project, as defined in 310 CMR 44.03, is eligible to receive financial assistance from the Trust pursuant to 310 CMR 44.00. More specifically, eligible projects fall into the following categories: (a) Wastewater Treatment Projects, as defined in 310 CMR 44.03;(b) Infiltration Inflow (I/I) Projects, as defined in 310 CMR 44.03;(c) Collection System Projects, as defined in 310 CMR 44.03, provided, however, that at least 85% of the expected wastewater flow into the proposed collection system will be for wastewater flows in existence as of July 1, 1995, except, subject to the approval of the Department, in areas designated as city or town centers, rural village districts, or brownfields redevelopment areas, areas designated under M.G.L. c. 40R as "smart growth districts" or projects in Growth Districts designated by the Executive Office of Housing and Economic Development with the concurrence of the Executive Office of Energy and Environmental Affairs;(d) Nonpoint Source Projects, as defined in 310 CMR 44.03, including but not limited to projects financed under the Community Septic Management Program within the Fund to assist eligible homeowners to upgrade failed septic systems in compliance with 310 CMR 15.000: The State Environmental Code, Title 5: Standard Requirements for the Siting, Construction, Inspection, Upgrade and Expansion of On-site Sewage Treatment and Disposal Systems and for the Transport and Disposal of Septage through underlying betterment agreements between a Local Governmental Unit and such homeowners;(e) The planning and/or design for any one of the project categories identified in 310 CMR 44.04(1)(a) through (d), including but not limited to comprehensive wastewater management planning under 310 CMR 44.09(2) and (3) and planning projects which implement the Nonpoint Source Management Plan, as developed and updated by the Department pursuant to § 319 of the CWA, provided that the total funding allocated for planning and/or design projects shall not exceed 10% of the total financial assistance authorized on the calendar year Intended Use Plan Project Listing portion of the priority list. The Department may modify the allocation of funds consistent with its identification of planning and/or design projects as a funding priority in a particular calendar year pursuant to 310 CMR 44.06(3);(f) Any project in the categories identified in 310 CMR 44.04(1)(a) through (d) which utilizes a single contractor to design, build and/or operate the project facilities, provided the procurement and use of such contractor is authorized by law, the project conforms with the state constitutional requirements governing the use of Commonwealth funds for public purposes, and the project otherwise meets the requirements of 310 CMR 44.00. The operational costs of such projects shall be ineligible for SRF assistance;(g) Projects for the development and implementation of a conservation and management plan under § 320 of the CWA, 33 U.S.C. § 1330;(h) The construction, repair, or replacement of publicly- or privately-owned decentralized wastewater treatment systems that treat municipal wastewater or domestic sewage;(i) Publicly and privately owned, permitted and unpermitted projects that manage, reduce, treat, or recapture stormwater or subsurface drainage water;(j) Projects that reduce the demand for POTW capacity through water conservation, efficiency, or reuse, regardless of whether the activity takes place at publicly or privately owned properties;(k) Projects that develop and implement a watershed pilot project related to at least one of the six areas identified in § 122 of the CWA, 33 U.S.C. § 1274: watershed management of wet weather discharges, stormwater best management practices, watershed partnerships, integrated water resource planning, municipality-wide stormwater management planning, or increased resilience of treatment works;(l) Projects that reduce energy consumption needs for POTWs and related planning activities, such as energy audits and optimization studies;(m) Projects that include the equipment and piping required to reuse or recycle wastewater, stormwater, or subsurface drainage water;(n) Projects that provide financial assistance to any qualified nonprofit entity to provide assistance to small- and medium-sized POTWs for training activities, planning, design, and associated preconstruction activities and to assist POTWs in achieving compliance with the CWA. Ongoing operation and maintenance activities are not eligible;(o) Acquisition of land that is an integral part of the treatment system (e.g., land for spray irrigation or subsurface disposal) and that is necessary for construction of POTWs, including surface and subsurface easements, a place to store equipment and material during construction, land needed to locate eligible projects (e.g., pumping stations), and land integral to the treatment process;(p) Projects that increase the security of POTWs; and(q) Projects that use regional water resources to offset, by at least 100%, the impact of water withdrawals on local water resources in the watershed basin of the receiving community.(2) Subject to the limits on contract assistance provided in M.G.L. c. 29C,§ 6, a Local Governmental Unit applying for a Nutrient Removal Project, as defined in 310 CMR 44.03, on the Intended Use Plan for calendar year 2009 to calendar year 2019, is eligible for loans and other forms of financial assistance at the financial equivalent of a loan made at an interest rate at 0% if the Local Governmental Unit demonstrates to the Department's satisfaction that it meets all of the following criteria: (a) the Local Governmental Unit is not currently subject, due to a violation of a nutrient-related total maximum daily load standard or other nutrient based standard, to a Department enforcement order, administrative consent order or unilateral administrative order, enforcement action by the United States Environmental Protection Agency or subject to a state or federal court order relative to the proposed project, excluding any such order or action establishing a schedule for coming into compliance with more stringent effluent limitations contained in a NPDES renewal permit or permit modification;(b) the Local Governmental Unit has a Comprehensive Wastewater Management Plan (CWMP) that has been approved by the Department;(c) the project is consistent with the regional water resources management plan, if such a plan exists, as evidenced by written notice of such by the Regional Land Use Planning Agency for the region where the Local Governmental Unit is located; and(d) the Local Governmental Unit demonstrates in accordance with 310 CMR 44.04(3) to the Department's satisfaction, in consultation with the Massachusetts Department of Housing and Economic Development and, where applicable, the Regional Land Use Planning Agency for the region where the Local Governmental Unit is located, that it has adopted Land Use Controls that ensure the overall wastewater flow amount in the community will not increase as a result of sewering beyond the flow amount authorized under the Land Use Controls that were in effect on the date the Secretary issued a MEPA certificate for the CWMP.(3) To demonstrate that it has adopted adequate Land Use Controls to ensure that the overall wastewater flow in the community will be "flow neutral," as required by M.G.L. c. 29C,§ 6 and 310 CMR 44.04(2)(d), a Local Governmental Unit must estimate wastewater flow volume to demonstrate that overall wastewater flow in the sewered watershed will not increase as a result of the project for which a zero rate of interest is sought. A Local Governmental Unit will be deemed to have established such "flow neutral" Land Use Controls if the Local Governmental Unit has a Department-approved CWMP that includes a watershed benchmark flow, and the Local Governmental Unit has established Land Use Controls that limit future wastewater flow volume to the watershed benchmark flow contained in the Department-approved CWMP. Such Land Use Controls must be in effect prior to closing to receive zero rate of interest loans. In demonstrating that it has established such "flow neutral" Land Use Controls, a Local Governmental Unit may use either one of the two methods in 310 CMR 44.04(3)(a) or (b). In doing so, the Local Governmental Unit should express all flow volumes as an annual average in gallons per day per acre.(a)Method 1: Presumptive Determination of Flow Neutrality. To demonstrate that the Local Governmental Unit has established Land Use Controls that limit future wastewater flow volume to the watershed benchmark flow, the Local Governmental Unit shall establish as the watershed benchmark flow the total flow volume for all parcels of land within the Nutrient Sensitive Watershed subject to the Local Governmental Unit's jurisdiction, as identified in the CWMP, excluding only those parcels whose owners have been allowed to opt out in accordance with M.G.L. c. 83,§ 1B, calculated as follows:1.Flow Volume for the Developed Residential Parcels. The Local Governmental Unit shall utilize actual water meter flow data to establish the annual average flow volume for the developed residential parcels. If no actual water meter flow data exists to establish an annual average residential flow, then the Local Governmental Unit shall utilize actual water meter flow data for comparable developed residential parcels in the same or similaly sized city or town or watershed to estimate the annual average flow volume for the developed residential parcels.2.Flow Volume for the Undeveloped Residential Parcels. The Local Governmental Unit shall utilize actual water meter flow data for comparable developed residential properties in the same city or town or watershed to estimate the annual average flow volume for the undeveloped residential properties under the local Land Use Controls in effect as of the date the Secretary issued a MEPA certificate for the CWMP.3.Flow Volume for the Developed Non-residential Parcels. The Local Governmental Unit shall utilize actual water meter flow data to establish the annual average flow volume for the developed non-residential parcels. If no actual water meter flow data exists to establish such annual average flow volumes, then the Local Governmental Unit shall utilize actual water meter flow data for comparable developed non-residential parcels in the same city or town or watershed to estimate the annual average flow volume for the developed non-residential parcels under the Local Land Use Controls in effect as of the date the secretary issued a MEPA certificate for the CWMP.4.Flow Volume for the Undeveloped Non-residential Parcels. The Local Governmental Unit shall utilize actual water meter flow data for comparable developed non-residential parcels in the same city or town or watershed to estimate an annual average flow volume for the undeveloped non-residential properties under the local Land Use Controls in effect as of the date the Secretary issued a MEPA certificate for the CWMP.(b)Method 2: Non-presumptive Determination of Flow Neutrality. As an alternative to Method 1, a Local Governmental Unit may elect to establish flow neutrality by demonstrating that future total wastewater flow volume under full build-out conditions will not exceed the total wastewater flow volume under full build-out conditions in effect as of the date the Secretary issued a MEPA certificate for the CWMP. Under this alternative, the watershed benchmark flow is considered the total wastewater flow volume under full build-out conditions in effect as of the date the Secretary issued the MEPA certificate. To demonstrate that the Local Governmental Unit has established Land Use Controls that limit future wastewater flow volume to the watershed benchmark flow, the Local Governmental Unit shall prepare two separate build-out analyses for all parcels of land within the Nutrient Sensitive Watershed subject to the Local Governmental Unit's jurisdiction, as identified in the CWMP, excluding only those parcels whose owners have been allowed to opt out in accordance with M.G.L. c. 83,§ 1B, as follows:1. The first build-out analysis shall establish wastewater flows based on a full build-out under the local Land Use Controls in effect as of the date the Secretary issued a MEPA certificate for the CWMP (i.e., the "pre-sewer build-out").2. The second build-out analysis shall establish wastewater flows based on a full build-out under the local Land Use Controls in effect at the time construction of the project for which a zero rate of interest is sought is expected to be completed (i.e., the "post-sewer build-out").3. For both the pre-sewer and post-sewer build-out analyses, the residential and non-residential flows must be calculated utilizing actual water meter flow data to establish the annual average flow volume. For the pre-sewer build-out analyses, if no actual water meter flow data exists, then the Local Governmental Unit shall utilize actual water meter flow data for comparable parcels in the same city or town or watershed to estimate the annual average flow volume or the flow volume allowable under local Land Use Controls in effect as of the date the Secretary issued a MEPA certificate for the CWMP, whichever is less. For the post-sewer build-out analysis, if no actual water use data exists, then the Local Governmental Unit shall utilize actual water meter flow data for comparable parcels in the same city or town or watershed or the flow volume allowable under local Land Use Controls at the time construction of the project for which a zero rate of interest is sought is expected to be completed, whichever is less.4. Each build-out analysis shall include an analysis of all built and buildable parcels, including redevelopment potential, and a rigorous analysis of typical exceptions to Land Use Controls, such as use/dimensional variances, special permits, waivers, expansion and change of use in pre-existing non-conforming uses, M.G.L. c. 40A,§ 3 exempt uses, municipal uses and vested rights (e.g., grandfathered uses).5. All assumptions made in the build-out analyses shall be clearly identified and explained. Future infrastructure needs, such as parking, wastewater infrastructure, landscape, and driveways, shall be factored into the build-out analyses and include the source and rationale for any ratios, multipliers or variables used in calculating such needs.Amended by Mass Register Issue S1331, eff. 1/27/2017.