Section 11.03 - Coordination of Permitting and Licensing When an ENF Is Being Filed(1)Applicability. This Part applies when a developer is filing an Environmental Notification Form (ENF).(2)Review of Draft Notification Form. Before filing with the agencies, the developer shall submit a draft version of the combined ENF-Hydropower Supplement to the Council. The Council shall make a determination, not later than ten days after receiving such draft form, whether or not it is complete. The Council may reject a draft form which is patently deficient or it may accept it but recommend to the developer that supplementary information be included that would improve and expedite the permitting and licensing agencies' review process. The Council shall inform the developer in writing of its action within ten days of submission of the draft form.(3)Filing. A developer shall file the combined ENF-Hydropower Supplement in accordance with the fihng instructions and "List of Agencies" in the Hydropower Supplement, in the number of copies indicated. Evidence of proper filing shall be provided by a developer to the Council. Filing of the ENF-Hydropower Supplement shall be made at such point in project planning or management as a developer may deem to be appropriate to the circumstances of the project, but shall be made no later than 60 days after official notice in the Federal Register that such developer has filed for a license or exemption with the Federal Energy Regulatory Commission. A developer may request, and the Council may approve, an extension of this filing time upon a showing of good cause.
These filing instructions do not affect the requirement to publish a "notice of intent to submit an ENF", under M.G.L. c. 30, §§ 62-62H and implementing regulations, within 30 days before filing the ENF.
The Council may require a developer to submit information supplementing his filing to the agencies, in advance of the pre-licensing conference.
(4)Effect of Filing. Receipt of the ENF and Hydropower Supplement by the agencies will trigger the Massachusetts Environmental Policy Act review process and the review process of all agencies. The ENF and Hydropower Supplement shall, at the option and indication of the developer in such form, serve in lieu of the Notice of Intent for the local Conservation Commission's review process under M.G.L. c. 131, § 40.(5)Arrangements for Pre-Licensing Conference.(a) The Council shall set a date for any pre-licensing conference to be held under 980 CMR 11.03(6) after consultation with the MEPA Unit. This date shall be within 40 days after the Council receives an ENF and Hydropower Supplement, or within 30 days after publication in the Environmental Monitor under M.G.L. c. 30, §§ 62-62H and implementing regulations, whichever is sooner. The pre-licensing conference, whenever feasible, should be held in conjunction with the MEPA Unit's "scoping session", held under M.G.L. c. 30, §§ 62-62H and implementing regulations, and should be held at or near the project site.(b) The Council shall notify or direct the developer to notify all agencies, federal regulatory agencies, providers of financial assistance, the electric utility in whose service territory the proposed facility is located, and other interested persons or parties of the time, date and place of the pre-licensing conference. Notification shall be a accomplished by mail and publication, as the Council deems appropriate.(6)Pre-Licensing Conference. (a) Pre-licensing conference shall be co-chaired by a person designated by the Council and one designated by the Secretary of the Executive Office of Environmental Affairs, unless they agree otherwise.
(b) Pre-licensing conferences will be public and non-adjudicatory, and it is not required that an official record be kept. Copies of documents circulated, however, will be kept by the Council for inspection by any persons interested.(c) Matters for discussion may include the developer's proposal and the responses of the agencies and other participants. The agencies may be asked to comment upon the following matters: 1. their jurisdiction over the project as proposed;2. their particular concerns regarding the project;3. what additional information, data and studies they will need; and4. what additional fonns or applications the developer will be required to fill out.(7)Statement of Agency Requirements.(a) Within 15 days after the pre-licensing conference, each agency notified of the pre-licensing conference shall mail or deliver a statement to the developer, and file a copy with the Council. The statement shall specify: 1. the extent of the agency's jurisdiction over the project as proposed;2. the agency's particular concerns regarding the project;3. what additional information, data or studies the agency will need in order to make a permitting or licensing decision;4. what additional forms or apphcations developers will be required to fill out; and5. that the agency's responses to 980 CMR 11.03(7)(a) l. through 4. are complete and accurate.(b)980 CMR 11.03(7)(a) statements may be used by a developer as evidence of state and local consultation for Federal Energy Regulatory Commission licensing.(c) These 980 CMR 11.03(7)(a) statements shall be considered by the Council in any informal dispute resolution under 980 CMR 11.03(11), and shall be part of the record in appeal hearings under 980 CMR 11.05.(8)Determination of Filing Adequacy.(a) Once a developer has filed the infomiation, data, studies, forms and applications asked for by a particular agency under 980 CMR 11.03(7), he shall mail a letter to that agency, with a copy mailed or hand delivered the same day to the Council, stating his opinion that he has filed all materials necessary for that agency to make a final decision.(b) Within 15 days after receipt of a 980 CMR 11.03(8)(a) letter, an agency shall mail a responding letter to the developer, with a copy mailed or hand delivered the same day to the Council, stating:1. that the materials filed are sufficient for the agency to make a final decision; or2. what additional materials are still needed.(c) If the agency's response under 980 CMR 11.03(8)(b) is that additional materials are still needed, the developer should file the additional requested materials. If the agency does not respond within seven days after this filing, the filing shall be presumed complete.(9)Information Deadlock. If a developer believes that an agency is unreasonable in requiring additional information,data, or studies under 980 CMR 11.03(7)(a), 11.03(8)(a), or 11.03(8)(b)2., it may withhold the required materials and request a permit or license denial, such denial shall be provided within seven days by the agency. This denial may then be appealed under 980 CMR 11.05, after exhaustion of administrative remedies, as an "action or failure to act".(10)Project Alterations.(a) If a developer makes any substantial changes or modifications in the design or operational plans of his project after the pre-licensing conference, he shall send a description of said changes or modifications to each agency notified of the pre-licensing conference, and to the Council.(b) If an agency finds the changes or modifications significant, it shall reflect that fact in its 980 CMR 11.03(7) statement, or shall mail or deliver to the developer, and send a copy to the Council, an amended 980 CMR 11.03(7) statement. If an amended 980 CMR 11.03(7) statement is not sent within 15 days after receipt of notice of the change or modification, the developer and the Council may assume that they will not affect that agency's requirements or final decision.(11)Informal Dispute Resolution. Upon request by a developer or an agency, the Council shall make reasonable efforts to assist them in resolving disputes concerning the form, content, level of detail and schedules of agency requirements.(12)Time Limits for Final Agency Decisions. Once the Council determines, based on informal or written communication, receipt of agency statements under 980 CMR 11.03(7) or 11.03(8)(b)l., or apphcability of the 980 CMR 11.03(8)(c) presumption, that no agency requires any further materials from the developer in order to make a final decision, the Council shall set a single time limit of not greater than 90 days within which all agencies must issue their final determinations whether or not to issue the appropriate licenses, certificates, sign-offs or other evidence of approval of the application.
(13)Effect of Environmental Impact Report Upon Time Limits. If the developer is required to file an environmental impact report under M.G.L. c. 30, s. 62B, the Council may alter the time fi-amework contemplated in 980 CMR 11.00, to conform with the requirements of M.G.L. c. 30, § 62D.