310 Mass. Reg. 9.11

Current through Register 1523, June 7, 2024

Section 9.11 - Application Requirements

(1)Pre-application Consultation

(a) Upon request of a prospective applicant for a license for any large or complex project, including those required to file an EIR, the Department shall conduct a pre-application consultation meeting in order to receive a presentation of the project proposal, provide preliminary guidance on the applicability of the substantive standards of 310 CMR 9.00 to the project, explain the necessary licensing procedures, and answer any appropriate inquiries concerning the program or 310 CMR 9.00 When appropriate, the Department may invite representatives of CZM, any other state agency, or representatives of the municipality in which the project is located, including the lead agency responsible for implementation of a Municipal Harbor Plan. The participants in the pre-application consultation meeting may make arrangements for further consultation sessions and for coordinated review of the project.

(b) In the case of an unusually large and complex set of activities undertaken by a public agency the Department may establish, in cooperation with the prospective applicant, a special procedure for the review of one or more applications for such activities. Such procedure may include, without limitation, as deemed appropriate by the Department, consolidation procedures, expedited review, and single or multiple licenses, permits, or written determinations. Public notice of any such procedure established under 310 CMR 9.11 shall be published in the Environmental Monitor.

(2)Application Review Schedules.

(a) For a water-dependent use project, the Department shall, within 45 days of receipt of the information required under 310 CMR 9.11(3)(a) and (b), assign a file number, make a determination of water-dependency under 310 CMR 9.12, and issue a public notice under 310 CMR 9.13(1). Within 20 days of the notification date, the Department may hold a public hearing under 310 CMR 9.13(2). The public comment period shall begin at the notification date and end no less than 30 days and no more than 60 days from the notification date. Within 60 days of the close of the public comment period and notification by the applicant that the public notice has been published, the Department shall conduct an administrative completeness review under 310 CMR 9.11(3)(c) and either determine the application to be complete or request additional information. Within 90 days of making a determination of administrative completeness, the Department shall complete a technical review and issue either a draft license or a final license as specified in 310 CMR 9.14.

(b) For a nonwater-dependent use project, the applicant may elect one of four application options by submitting the selected category of application under the Timely Action and Fee Schedule at 310 CMR 4.00: Timely Action Schedule and Fee Provisions.

1.Partial Application. Within 45 days of receiving an application with all information identified in 310 CMR 9.11(3)(a) and (b), the Department shall assign a file number, make a determination of water-dependency under 310 CMR 9.12, and issue a public notice under 310 CMR 9.13(1). The public comment period shall begin at the notification date and end no less than 30 days and no more than 60 days from the notification date. Within 20 days of the notification date, the Department shall hold the public hearing under 310 CMR 9.13(3). The applicant shall submit the information identified in 310 CMR 9.11(3)(c)2. prior to the close of the public comment period, and the information identified in 310 CMR 9.11(3)(c)1. and 3. prior to the issuance of the written determination. Within 30 days of the close of the public comment period and notification by the applicant that the public notice has been published, the Department shall conduct its administrative completeness review and determine the application to be complete or request additional information. Within 60 days of determining the application to be complete, or 90 days from the close of the public comment period, whichever comes later, the Department shall issue the written determination under 310 CMR 9.14(1). The Department shall issue the final license under 310 CMR 9.14(5) within 45 days of the expiration of the appeal period or final decision, or 15 days from the date of the Governor's signature, whichever is later.

2.Full Application. Within 45 days of receiving an application with all information identified in 310 CMR 9.11(3)(a), and 310 CMR 9.11(3)(b)1., 2., 6., and 7., and 310 CMR 9.11(3)(c)1. through 3., the Department shall assign a file number, make a determination of water-dependency under 310 CMR 9.12, conduct an administrative completeness review of the information received, and determine the application to be complete or request additional information. The Department shall issue a public notice under 310 CMR 9.13(1) upon determination that the application is complete. The public comment period shall begin at the notification date and end no less than 30 days and no more than 60 days from the notification date. The Department shall provide upon request the draft license conditions seven days prior to the public hearing. Within 20 days of the notification date, the Department shall hold the public hearing under 310 CMR 9.13(3). Within 60 days from the close of the public comment period and notification by the applicant that the public notice has been published, or the submission of the information identified in 310 CMR 9.11(3)(c)4., and 5., whichever is later, the Department shall issue the written determination under 310 CMR 9.14(1). The Department shall issue the final license under 310 CMR 9.14(5) within 45 days of the expiration of the appeal period or final decision, or 15 days from the date of the Governor's signature, whichever is later.

3.Municipal Harbor Plan Application. For a project within an area governed by and in compliance with an Approved Municipal Harbor Plan approved under 301 CMR 23.00: Review and Approval of Municipal Harbor Plans and listed in 310 CMR 9.57, within 45 days of receiving an application containing the information identified in 310 CMR 9.11(3)(a) and (b), the Department shall assign a file number, make a determination of water-dependency under 310 CMR 9.12, and issue a public notice under 310 CMR 9.13(1). The public comment period shall begin at the notification date and end no less than 30 days and no more than 60 days from the notification date. Within 20 days of the notification date, the Department shall hold the public hearing under 310 CMR 9.13(3). Within 30 days of the close of the public comment period and notification by the applicant that the public notice has been published, the Department shall conduct its administrative completeness review and determine an application to be complete or request additional information. Within 45 days of determining an application to be complete, the Department shall issue a written determination under 310 CMR 9.14(1). The Department shall issue the final license under 310 CMR 9.14(5) within 45 days of the expiration of the appeal period or final decision, or 15 days from the date of the Governor's signature, whichever is later.

4.Joint MEPA EIR Application. An applicant may initiate coordinated review under MEPA and 310 CMR 9.00 by specifying in the Environmental Notification Form (ENF) filing under 301 CMR 11.05: ENF Preparation and Filing the intent to pursue a joint filing. The Draft EIR submitted under 301 CMR 11.07(3) shall also include information to meet the application requirements of 310 CMR 9.11(3)(a) through (c)2. for preapplication review by the Department. Within 25 days of receipt of a Final EIR meeting the requirements of 310 CMR 9.11(3)(a) through (c)2., the Department shall assign a file number, make a determination of water-dependency under 310 CMR 9.12, conduct an administrative completeness review, and issue the text for the public notice under 310 CMR 9.13(1). The Department shall hold a public hearing within 20 days of the notification date or ten days after the date of the Secretary's Final Certificate, whichever is later. The public comment period shall begin at the notification date and end no less than 30 days and no more than 60 days from the notification date. The Department shall send to the applicant, within ten days of the close of the public comment period and receipt by the Department of notification from the applicant that the public notice has been published, whichever is later, any public comment submitted within the comment period for response and may request additional information or determine the application to be complete in accordance with 310 CMR 9.11(3)(c). Any response to comments provided by the applicant shall also be distributed by the applicant to all persons that submitted comments during the public comment period. The Department shall issue the written determination under 310 CMR 9.14(1) within 30 days of receipt of the response to comments, or a determination that the application is complete, whichever is later. The Department shall issue the final license under 310 CMR 9.14(5) within 45 days of the expiration of the appeal period or final decision, or 15 days from the date of the Governor's signature, whichever is later.

(c) For a project requiring a permit under 310 CMR 9.05(2), the Department shall, within 45 days of receiving an application with all information identified in 310 CMR 9.11(3)(a) and (b), assign a file number, make a determination of water dependency, issue a public notice under 310 CMR 9.13(1), conduct an administrative completeness review, and determine the application to be complete or request additional information. The public comment period shall be 15 days from the notification date. Within 45 days from the date the application is complete the Department shall issue a permit decision.

(3)Filing and Completion of Application.

(a) An applicant for a license or permit shall submit a written application on forms provided by the Department, signed by the applicant and the landowner if other than the applicant. In lieu of the landowner's signature, the applicant may provide other evidence of legal authority to submit an application for the project site. The application shall be prepared in accordance with all applicable instructions contained in the Department's application package. A partial application under 310 CMR 9.11(2)(b)1. requires only the information identified in 310 CMR 9.11(3)(a) and (b). If the project is a water-dependent use project, the application may be a Combined Application.

(b) The Department shall assign a file number to the project only after receipt of an application which includes the following information:

1. the names and addresses of the applicant, all landowners, any representative thereof and the abutters to the project site;

2. detailed description of the proposed project which identifies:

a. the location of the project site, and whether it lies within a DPA, ACEC, or Ocean Sanctuary; and

b. the specific use(s) of existing and proposed fill and structures and, if dredging is involved, estimates of the volume of dredged material and a description of the dredged material disposal area;

3. a set of plans containing at least the applicable information specified in 310 CMR 9.11(3)(a) through (c); the Department may accept appropriately-scaled preliminary plans in lieu of final plans certified in accordance with 310 CMR 9.11(3)(c)1., provided such preliminary plans are prepared by:

a. a Registered Professional Engineer, Land Surveyor, or Architect, as deemed appropriate by the Department; and

b. in the case of a nonwater-dependent use project requiring an EIR, a Registered Landscape Architect, unless otherwise deemed appropriate by the Department;

4. a list of state environmental regulatory programs with which the project must comply, in accordance with the applicable provisions of 310 CMR 9.33; a copy of the Notice of Intent if the project is subject to M.G.L. c. 131, § 40, and 310 CMR 10.00: Wetlands Protection which may be provided in a Combined Application; and a copy of any state and local approvals which must be obtained and have been obtained by the project as specified in 310 CMR 9.11(3)(c)3.;

5. any other preliminary information specified in the application instruction package;

6. payment of the application fee in accordance with the provisions of 310 CMR 9.16(1); and

7. if the project triggers M.G.L. c. 30, §§ 61 through 62H review, a copy of the Environmental Notification Form (ENF) and a Certificate from the Secretary of the Executive Office of Energy and Environmental Affairs demonstrating compliance with MEPA, with the exception of a joint MEPA Application under 310 CMR 9.11(2)(b)4. For a project subject to MEPA, the Department will not hold a public hearing until the Secretary has issued a Certificate on the Final EIR.

(c) The Department shall determine an application to be complete only if the following information has been submitted:

1. a set of final plans which are prepared in accordance with the format standards required for recording of licenses in the appropriate Registry of Deeds or Land Court for the district in which the licensed activity is to be performed; and which are certified by a Registered Professional Engineer or Land Surveyor, as deemed appropriate by the Department containing, at a minimum, the following:

a. an appropriately-scaled location map of the project site, and of any area where dredged material disposal will occur;

b. appropriately-scaled principal dimensions and elevations of proposed and existing fill and structures and, if dredging is involved, the principal dimensions of all relevant footprints, contours and slopes;

c. a delineation of the present high and low water marks, as relevant;

d. a delineation of the historic high and low water marks, as relevant and in a manner acceptable to the Department in accordance with the definitions thereof at 310 CMR 9.02;

e. references to any previous licenses or other authorizations for existing fill, structures, or dredging at the project site, and a delineation thereof as well as a delineation of any historic dredging, filling, or impoundment;

f. indication of any base flood elevation of the statistical 100-year storm event, or of any coastal high hazard area, which is located on the project site; and

g. indication of the location of any on-site or nearby state harbor lines, federal pier and bulkhead lines, federal channel lines, and public landings or other easements for public access to the water.

2. a statement as to how the project serves a proper public purpose, provides greater benefit than detriment to public rights in tidelands or Great Ponds, and is consistent with the policies of the Coastal Zone Management Program, as applicable, in accordance with the provisions of 310 CMR 9.31(2); and a description of how the project conforms to any applicable provisions of an Approved Municipal Harbor Plan, pursuant to 310 CMR 9.34(2);

3. final documentation relative to other state and local approvals which must be obtained by the project, including:

a. if the project is subject to zoning, but will not require any municipal approvals thereunder, a certification to that effect pursuant to 310 CMR 9.34(1);

b. a certification that a copy of the license application has been submitted to the planning board of each city or town where the work is to be performed, except in the case of a proposed bridge, dam, or similar structure across a river, cove, or inlet, in which case notice shall be given to the planning board of every municipality into which the tidewater of said river, cove, or inlet extends;

c. if an EIR is required, the Certificate of the Secretary stating that it adequately and properly complies with M.G.L. c. 30, §§ 61 through 62H; and, if applicable, any Notice of Project Change and any determination issued thereon in accordance with M.G.L. c. 30, §§ 61 through 62H;

d. a final Order of Conditions and a Water Quality Certificate, if applicable pursuant to 310 CMR 9.33, unless the application is a Combined Application, and a certification of compliance with municipal zoning, if applicable pursuant to 310 CMR 9.34(1); or a satisfactory explanation as to why it is appropriate to postpone receipt of such documentation to a later time prior to license or permit issuance; and

e. copies of all other state regulatory approvals if applicable pursuant to 310 CMR 9.33; or a satisfactory explanation as to why it is appropriate to postpone receipt of such documentation to a later time prior to license or permit issuance, or to issue the license or permit contingent upon subsequent receipt of such approvals.

4. responses to public comment submitted to the Department within the public comment period, as deemed appropriate by the Department; and adequate proof that the responses were sent to all persons that submitted comments during the public comment period; and

5. any additional plans, documentation, and other information which have been requested by the Department, or a statement by the applicant indicating that no further information will be forthcoming in response to such request.

(4)Additional Information and Extensions.

(a) The Department shall request additional information as soon as practicable when an application is incomplete or when otherwise allowed under 310 CMR 9.00. Applicants shall provide requested information as soon as practicable but no later than 180 days from the request.

(b) With the consent of the applicant or upon the applicant submitting revised or additional information, the Department may extend the period for actions under 310 CMR 9.11 as provided under 310 CMR 4.04: Permit Applications Schedules and Fee.

(5)Expiration of Application

(a) An application shall expire if the applicant has failed to diligently pursue the issuance of said license or permit in proceedings under 310 CMR 9.00.

(b) With the exception of applications filed under 310 CMR 9.28, an application shall be presumed to have expired six months after any request for additional information by the Department unless the applicant submits information showing that:

1. good cause exists for the delay of proceedings under 310 CMR 9.00; and

2. 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.

(c) No application shall be deemed to have expired under 310 CMR 9.11 when a completed application is pending and when the applicant has provided all information necessary for the Department to determine whether to issue a license or permit.