Section 10.23 - Conservation and Management Permit(1) The Director may, in accordance with provisions of M.G.L. c. 131A, § 3, permit the Taking of a State-listed Species for conservation or management purposes provided there is a long-term Net Benefit to the conservation of the impacted species. The requirements for permitting the Take of a State-listed Species for conservation or management purposes, including a State-listed Species of Special Concern that will occur within a conservation protection zone established in a conservation plan issued by the Division pursuant to 321 CMR 10.26, are set forth in 321 CMR 10.23(2) through (5). The general permit requirements authorizing the Take of a State-listed Species of Special Concern that will occur outside of a conservation protection zone established in a conservation plan issued by the Division pursuant to 321 CMR 10.26 are set forth in 321 CMR 10.23(6). The general mitigation standards to be applied by the Director when issuing individual and general conservation and management permits are set forth in 321 CMR 10.23(7).(2) Except as provided in 321 CMR 10.23(6), if the Director determines that the applicant for a permit has avoided, minimized and mitigated impacts to State-listed Species consistent with the following performance standards, then the Director may issue a conservation and management permit, provided: (a) The applicant has adequately assessed alternatives to both temporary and permanent impacts to State-listed Species;(b) An insignificant portion of the local population would be impacted by the Project or Activity, and;(c) The applicant agrees to carry out a conservation and management plan that provides a long-term Net Benefit to the conservation of the State-listed Species that has been approved by the Director, as provided in 321 CMR 10.23(5), and shall be carried out by the applicant.(3) Except as provided in 321 CMR 10.23(6), if a conservation and management permit applicant is unable to demonstrate the long-term Net Benefit performance standard on the project site and the applicant has made every reasonable effort to avoid, minimize and mitigate impacts to the State-listed Species on site, then the conservation and management plan may with the approval of the Director, be designed to meet the long-term Net Benefit performance standard by providing for financial or in-kind contributions toward the development and/or the implementation of an off-site conservation recovery and protection plan for the impacted species.(4) Except as provided in 321 CMR 10.23(6), within 30 days of the receipt of a final conservation and management plan including a review fee, the amount of which shall be determined by the commissioner of administration under the provisions of M.G.L. c. 7, § 3B or, if a conservation and management plan has been submitted and the Project or Activity is undergoing a MEPA review, then 30 days after the issuance of a final MEPA certificate, whichever is longer, the Director shall make a determination that the submitted plan meets the performance standards and is approved, or a determination that the plan as submitted is inadequate and is denied. Failure of the Director to respond to the final conservation and management plan shall constitute approval of the submitted plan as an approved conservation and management permit. The 30 day response time may be extended for two successive 30 day periods by the Director due to circumstances beyond the control of the Division and the applicant shall be notified in writing of the extension, its period and the reason for the extension.(5) The conservation and management permit, if and when issued, shall contain such terms and conditions as the Director deems necessary or appropriate to carry out the purposes of M.G.L. c. 131A, including but not limited to, adequate funding for the conservation and management permit provided by the applicant, and appropriate monitoring and reporting of the results of the conservation and management permit. After being notified in writing, and confirming that the terms of a conservation and management permit have been fulfilled, the Division will promptly issue a certificate of compliance.(6)Projects or Activities Eligible for Coverage Under a General Conservation and Management Permit when the Division has Issued a Conservation Plan.(a)Eligibility. The Director may permit the Take of a State-listed Species of Special Concern that will occur outside of a conservation protection zone established in a conservation plan issued by the Division pursuant to 321 CMR 10.26 through the issuance of a general conservation and management permit meeting the requirements of 321 CMR 10.23(6). Nothwithstanding the above, a project proponent retains the option of obtaining an individual conservation and management permit meeting the requirements of 321 CMR 10.23(2) through (5) in lieu of obtaining coverage under a general permit issued pursuant to 321 CMR 10.23(6).(b)Minimum Requirements and Performance Standards Applicable to the General Permit. The Director may authorize an eligible Project or Activity to be covered under a general conservation and management permit if the Director determines that the applicant has submitted a complete and timely application for coverage to the Division, including paying the applicable review fee, that obligates the applicant to comply with the following minimum requirements and performance standards, which will be further specified by the Division in the general permit.1. The applicant shall implement and comply with species-specific development standards or best management practices, or both, applicable to the geographic area and the species habitat that would be impacted by the Project or Activity. Notwithstanding 321 CMR 10.23(2), the proponent is not required to provide an alternatives analysis or to demonstrate that an insignificant portion of the local population of the affected State-listed Species of Special Concern would be impacted by the Project or Activity.2. The applicant shall provide off-site mitigation, or a combination of on-site and off-site mitigation subject to the Division's approval, that achieves the long-term Net Benefit standard in 321 CMR 10.23(1), as determined by the Division. Any off-site mitigation provided by the applicant in the form of a financial contribution will be used to fund habitat management or the protection of land or other appropriate mitigation within one or more conservation protection zones established in the conservation plan issued by the Division pursuant to 321 CMR 10.26. The amount of any such off-site mitigation payment will be determined by the Division based on a formula set forth in written guidance that, at a minimum, considers the area of impact on the on-site habitat of the affected State-listed Species of Special Concern and the land values within one or more of the conservation protection zones. Notwithstanding 321 CMR 10.23(3), the applicant may propose off-site mitigation without a showing that the applicant has made every reasonable effort to avoid, minimize and mitigate impacts to the affected State-listed Species of Special Concern on-site.3. An applicant that submits a complete application for coverage meeting the requirements 321 CMR 10.23(6) and fulfills in a timely manner all of the obligations required by the general permit, as determined by the Division, will be deemed to have carried out a conservation and management plan that provides a long-term Net Benefit to the conservation of the State-listed Species as required by 321 CMR 10.23.(c)Other Provisions and Requirements Related to the Director's General Permit Authority.1. The contents of the application for coverage under the general permit and related requirements will be specified by the Division in the general permit or in an application for coverage form developed by the Division. The application for coverage will require the submission of information and other action by the applicant as deemed necessary by the Division for its effective administration of the general permit program.2. The general permit shall contain such terms and conditions as the Director deems necessary or appropriate to ensure compliance with M.G.L. c. 131A and for the Division's effective administration of the general permit program, including but not limited to, the species-specific development standards or best management practices, or both, applicable to the geographic area and the species habitat that would be impacted by the Project or Activity; funding for the mitigation of impacts to the affected species; and appropriate monitoring and reporting requirements.3. Within 30 days of an applicant's submission of a complete and timely application for coverage form to the Director and payment of the required fee, the Director will issue a written notification of inclusion of coverage under the general permit to the proponent or a determination that the notice as submitted is inadequate and that coverage is denied. Failure of the Director to respond to the application for coverage within the above time period will constitute the Director's approval that the Project or Activity is authorized under the general permit. The 30 day response time may be extended for two successive 30 day periods by the Director due to circumstances beyond the control of the Division and the applicant shall be notified in writing of the extension, its duration and the reason for the extension.4. The Director may require any permittee authorized under the general permit to apply for and obtain an individual conservation and management permit pursuant to 321 CMR 10.23(2) through (5). Cases where an individual conservation and management permit may be required include a written determination by the Director that: a. the permittee is not in compliance with the general permit;b. circumstances have changed since the time of the submittal of the application for coverage so that the Project or Activity is not longer appropriately regulated for conservation and management purposes under the general permit; andc. other relevant factors.(7)General Mitigation Standards Applicable to Individual and General Conservation and Management Permits Issued by the Director.(a) The Director, in determining the appropriate nature and scope of mitigation necessary for an applicant for an individual or general conservation and management permit to achieve the long-term Net Benefit performance standard in 321 CMR 10.23(1), will generally apply the following areal habitat mitigation ratios, based on the category of State-listed Species: 1. Endangered Species: 1:3 (i.e., protection of three times the amount of areal habitat of the affected Endangered Species that is impacted by the Project or Activity);2. Threatened Species: 1:2 (i.e., protection of two times the amount of areal habitat of the affected Threatened Species that is impacted by the Project or Activity).3. Special Concern Species: 1:1.5 (i.e., protection of one and one half times the amount of areal habitat of the affected Species of Special Concern that is impacted by the Project or Activity).(b) The Director reserves the right to require, on a permit-by-permit basis, an areal habitat mitigation ratio or an alternative mitigation approach that differs from the otherwise applicable ratio in 321 CMR 10.23(7)(a)1. through 3. when the Director determines in writing that the alternative mitigation ratio or alternative mitigation approach is either sufficient or required to achieve the long-term Net Benefit performance standard in 321 CMR 10.23(1). A project proponent may also request in writing that the Director apply an alternative mitigation ratio or alternative mitigation approach to the Project or Activity. Any such request shall explain why an alternative mitigation ratio or alternative mitigation approach is appropriate, addressing the relevant factors in 321 CMR 10.23(7)(b)1. through 5. In determining whether an alternative mitigation ratio or alternative mitigation approach is appropriate, the Director will consider factors that include but are not limited to: 1. the size and configuration of the habitat impact;2. the threats to the affected State-listed Species posed by uses or activities located adjacent or in close proximity to the Project or Activity that is the subject of the conservation and management permit;3. the size, configuration and quality of the habitat proposed to be protected by the applicant;4. the population density of the affected State-listed Species; and5. the habitat management and research needs associated with the affected State-listed Species.(c) For the purposes of providing ongoing, updated guidance to project proponents and the public, the Division will post guidelines on its website for avoiding and minimizing impacts and for achieving the long-term Net Benefit performance standard in 321 CMR 10.23(1) for those State-listed Species for which the Director has issued three or more conservation and management permits during a three year time period. The Director reserves the right to require, on a permit-by-permit basis, mitigation that differs from any relevant mitigation guidelines developed by the Division when the Director determines in writing that the permit-specific mitigation is either sufficient or required to achieve the long-term Net Benefit performance standard in 321 CMR 10.23(1). In determining whether to require permit-specific mitigation that differs from any relevant mitigation guidelines, the Director will take into consideration factors that include those set forth in 321 CMR 10.23(7)(b)1. through 5.