Section 10.13 - Sites or Projects not in Priority Habitat(1)Sites or Projects and Activities that are not Located or Will not Take Place in Priority Habitats. Projects and Activities that are not located or will not take place in Priority Habitats shall not be subject to the review provision of 321 CMR 10.18, except in the circumstances described in 321 CMR 10.13(1)(a) and (b):(a)New Occurrence Information is Received by the Division.1. If the Division receives new information on a State-listed Endangered or Threatened Species occurrence relating to a site that is not located in Priority Habitat, the Division may determine, within 30 days of its receipt of such occurrence information, whether the new State-listed Species occurrence meets the criteria for delineation of a Priority Habitat under 321 CMR 10.12, and whether any proposed Project or Activity at the site shall be reviewed under 321 CMR 10.18, provided, however, that the Division's determination is issued to the Record Owner of the site: a. prior to the issuance of a final Order of Conditions by a conservation commission or DEP for a Project or Activity on the site; orb. if the Project or Activity is not subject to the jurisdiction of the conservation commission, then prior to the issuance of any permit that has been subject to public hearing that was publicly noticed; orc. if not subject to such a public hearing then prior to the issuance of a building permit;2. Only that portion of the Project or Activity that meets the exemption criteria in 321 CMR 10.13(1)(a)1. is not required to be reviewed under 321 CMR 10.18. Subject to the limitation in 321 CMR 10.13(1)(a)1., the Division shall notify the Record Owner upon its receipt of the new occurrence information, and shall provide the written determination described in 321 CMR 10.13(1)(a)1. to the Record Owner(s) of all the affected properties within 45 days of the receipt of such new occurrence information. Any Division determination made pursuant to 321 CMR 10.13(1)(a)1. shall remain valid for a period of five years after the date of its issuance.(b)The Division's MEPA Comments Request an Assessment of Whether a State-listed Species is Present.1. When a Project or Activity that is not located in Priority Habitat is subject to MEPA review pursuant to M.G.L. c. 30, § 61 through 62I, the Division may, consistent with MEPA regulations at 301 CMR 11.00, review and comment on any ENF, draft supplemental or final EIR or NPC submitted to the MEPA Office. If the Division has credible information indicating the occurrence of a State-listed Endangered or Threatened Species or its habitat within the area to be disturbed by the Project or Activity, the Division may request in its comments to the MEPA Office that the project proponent be required to assess the area to be disturbed by the Project or Activity to determine if such State-listed Species are present. Otherwise, the Priority Habitat Map in effect as of the time of the Division's review of the ENF, the draft, supplemental or final EIR or the NPC shall be deemed final for the purpose of the Division's review, except where the project site is subsequently mapped as Priority Habitat prior to the issuance of a MEPA certificate for the final stage of MEPA review by the Secretary of EOEEA, in which case the provisions of 321 CMR 10.13(2)(a) shall apply.2. Following the issuance of a certificate by the Secretary of Environmental Affairs for the final stage of review for a Project or Activity any determinations made in or pursuant to that certificate with respect to the delineation of Priority Habitat or avoiding, minimizing and mitigating the Take of State-listed Species, provided there is no material change requiring the filing of a Notice of Project Change for the Project or Activity, shall remain valid for the purposes of 321 CMR 10.00 for a period of five years.(2)Projects or Activities that Were not in Priority Habitat when they Were Proposed but the Project Site is Thereafter Delineated by the Division as Priority Habitat. Projects or Activities that were not in Priority Habitat when they were proposed but the project site is thereafter delineated by the Division as Priority Habitat shall not be subject to the review by the Division pursuant to 321 CMR 10.18, provided the following project milestones have been met prior to the project site being mapped as Priority Habitat or within the specified timeframes, as set forth in 321 CMR 10.13(2)(a) through (d):(a)MEPA Review.1. The project proponent has filed an ENF and no issue involving MESA was raised in any comment letter submitted during the MEPA comment period by the Division, or, if a MESA issue was raised, it has been resolved to the satisfaction of the Division; and the Secretary determined that an EIR was not required; or2. The Secretary has determined that the Draft EIR was adequate and no MESA issues were raised by the Division during the MEPA comment period, or, if a MESA issue was raised, it has been resolved to the satisfaction of the Division; or3. The Secretary has issued a certificate on a Final EIR determining that the project or activity adequately and properly complies with MEPA.4. Notwithstanding 321 CMR 10.13(2)(a)1. through 3., Projects or Activities for which an NPC that the Division determines would impact a state-listed species or its habitat is thereafter filed with MEPA are not exempt from MESA review and shall be subject to review by the Division pursuant to 321 CMR 10.18. The scope of the MESA review hereunder shall be limited to those aspects of the Project or Activity that would be materially modified by the NPC, as determined by the Division.(b)Permitting Under the Wetlands Protection Act. If 321 CMR 10.13(2)(a) does not apply, and:1. The issuing authority has issued an Order of Conditions, a Superseding Order of Conditions or an Order of Resource Area Delineation (ORAD) for the Project or Activity, provided that, in the case of an ORAD, the project proponent obtains an Order of Conditions, if needed, or one of the permits or approvals in 321 CMR 10.13(2)(c) by the expiration date of the initial three year term of the Final ORAD; or2. The project proponent has obtained either an Order of Conditions or a Superseding Order of Conditions for the Project or Activity within six months after the publication of the subsequent Priority Habitat map delineating the project site as Priority Habitat,(c)Other Permitting Actions. 1. If the Project or Activity is not subject to the Wetlands Protection Act, and 321 CMR 10.13(2)(a) does not apply, then upon the issuance of any permit or final approval for the Project or Activity, provided such permit or approval has been subject to public hearing that was publicly noticed; or2. if the Project or Activity is not subject to the Wetlands Protection Act, and 321 CMR 10.13(2)(a) does not apply, and the Project or Activity does not require the issuance of a permit or approval for which a public hearing is required pursuant to 321 CMR 10.13(2)(c), then if a building permit for the Project or Activity has been issued.(d) Notwithstanding 321 CMR 10.13(2)(a) through (c):1. only that portion of the Project or Activity that meets an exemption category in 321 CMR 10.13(2)(a) through (c) is not required to be reviewed under 321 CMR 10.18;2. the Division reserves the right to determine, based on special circumstances, that any Project or Activity meeting an exemption category in 321 CMR 10.13(2)(a) through (d) shall be subject to review under 321 CMR 10.18 to prevent a substantial and permanent modification, degradation or destruction of Priority Habitat for an Endangered or Threatened State-listed Species, as determined by the Division; and3. no Project or Activity that has already obtained a Take determination or been issued a Conservation and Management Permit by the Division is covered by the provisions of 321 CMR 10.13(2).4. the Division may issue further guidance regarding its interpretation and implementation of 321 CMR 10.13.(3)Voluntary Assessment of Whether State-listed Species are Present. A Record Owner may at any time undertake a voluntary assessment following protocols pre-approved in writing by the Division for which a review fee shall be charged, the amount of which shall be determined by the commissioner of administration under the provisions of M.G.L. c. 7, § 3B, to determine if Threatened and Species of Special Concern are present on a property (or portion thereof). Upon approval of that assessment by the Division, that assessment shall remain valid for the purposes of 321 CMR 10.00 Part II for a period of three years from the date of its approval in writing by the Division. The approval by the Division of a Record Owner's assessment documenting the absence of Threatened and Special Concern Species shall provide the Record Owner with a guarantee that no new occurrence records will be considered in relation to a MESA or MEPA ( 321 CMR 13.2) review of the property for a period of five years. This guarantee does not include any species that is subsequently listed.