Section 9.04 - Activities Requiring an ApplicationThe activities identified in 314 CMR 9.04(1) through (13) require a 401 Water Quality Certification application and are subject to the Criteria for Evaluation of Applications for the Discharge of Dredged or Fill Material in 314 CMR 9.06 and/or 9.07:
(1)More than 5000 Sq. Ft. Any activity in an area subject to 310 CMR 10.00: Wetlands Protection which is also subject to 33 U.S.C. 1251, et seq. and will result in the loss of more than 5000 square feet cumulatively of bordering and isolated vegetated wetlands and land under water, except for an Ecological Restoration Project not requiring a Water Quality Certification application pursuant to 314 CMR 9.03(8).(2)Outstanding Resource Waters. Dredging in, or any activity resulting in any discharge of dredged or fill material to any Outstanding Resource Water.(3)Real Estate Subdivision - Any discharge of dredged or fill material associated with the creation of a real estate subdivision, unless there is a valid, unexpired Final Order of Conditions, followed by a Certificate of Compliance, and a recorded deed restriction providing notice to subsequent purchasers limiting the amount of fill for the single and complete project to less than 5000 square feet cumulatively of bordering and/or isolated vegetated wetlands and land under water and the discharge is not to an Outstanding Resource Water. Real estate subdivisions include divisions where approval is required and where approval is not required under the Subdivision Control Law, M.G.L. c. 41, §§ 81K through 81GG. Discharges of dredged or fill material to create the real estate subdivision include but are not limited to discharges resulting from the construction of roads, drainage, sidewalks, sewer systems, buildings, septic systems, wells, and accessory structures.(4)Activities Exempt under M.G.L. c. 131, § 40. Any activity not subject to M.G.L. c. 131, § 40 and which is subject to 33 U.S.C. 1251 and will result in any discharge of dredged or fill material to bordering vegetated wetlands or land under water.(5)Routine Maintenance. Routine maintenance of existing channels, such as mosquito control projects or road drainage maintenance, that will result in the annual loss of more than 5000 square feet cumulatively of bordering and isolated vegetated wetland and land under water will be evaluated under the criteria of 314 CMR 9.06. A single application may be submitted and a single certification may be issued for repeated routine maintenance activities on an annual or multi-year basis not to exceed five years.(6)More than 5000 Sq. Ft. of Isolated Vegetated Wetlands. Any activity in an area not subject to jurisdiction of M.G.L. c. 131, § 40 but which is subject to 33 U.S.C. 1251 (i.e., isolated vegetated wetlands) and which will result in the loss of more than 5000 square feet cumulatively of bordering and isolated vegetated wetlands and land under water.(7)Rare Species Habitat in Isolated Vegetated Wetlands. Any activity resulting in the discharge of dredged or fill material to an isolated vegetated wetland that has been identified as Rare Species Habitat.(8)Salt Marsh. Any activity resulting in the discharge of dredged or fill material in any salt marsh, except for an Ecological Restoration Project not requiring a Water Quality Certification application pursuant to 314 CMR 9.03(8).(9)Individual 404 Permit. Any activity subject to an individual Section 404 permit by the Corps of Engineers, except for an Ecological Restoration Project not requiring a Water Quality Certification application pursuant to 314 CMR 9.03(8).(10)Agricultural Limited Project. Agricultural work, not exempt under M.G.L. c. 131, § 40, referenced in and performed in accordance with 310 CMR 10.53(5). Provided the activity does not result in any discharge of dredged or fill material to an Outstanding Resource Water, such work will be presumed to meet the criteria of 314 CMR 9.06 where a comparable alternatives analysis is performed or approved by the USDA Natural Resources Conservation Service and included in the Notice of Intent.(11)Discretionary Authority. Any activity where the Department invokes discretionary authority to require an application based on cumulative effects of multiphased activities, cumulative effects of dredging, or from the discharge of dredged or fill material to bordering or isolated vegetated wetlands or land under water, or other impacts which may jeopardize water quality. The Department will issue a written notice of and statement of reasons for its determination to invoke this discretionary authority not later than ten business days after its receipt of an Order of Conditions.(12)Dredging 100 Cubic Yards or More. Any dredging or dredged material re-use or disposal of 100 cubic yards or greater.(13) Any activity not listed in 314 CMR 9.03 or 9.04 is an activity requiring an application subject to the requirements of 314 CMR 9.05 and 9.06 through 9.13 as applicable.Amended by Mass Register Issue 1272, eff. 10/24/2014.