Code of Massachusetts Regulations › 314 CMR - DIVISION OF WATER POLLUTION CONTROL › Title 314 CMR 9.00 - 401 Water Quality Certification For Discharge Of Dredged Or Fill Material, Dredging, And Dredged Material Disposal In Waters Of The United States Within The Commonwealth › Section 9.02 - Definitions

Current through Register 1525, July 5, 2024
Activity
. Any proposed project,
				scheme or plan of action which will result in a discharge of dredged or fill
				material subject to jurisdiction under
				33 U.S.C.
				1251 or dredging and dredged material
				management. In determining thresholds for and conducting evaluations of
				applications, the entirety of the activity, including likely future expansions,
				shall be considered and not separate phases or segments thereof. The activity
				includes temporary and permanent, direct and indirect, and cumulative impacts
				from the construction and ongoing operation of a project. The calculation of
				square footage shall include the total of the applicable areas proposed to be
				lost from the impacts of the activity, without reduction for replication or
				restoration.
Aggrieved Person
. Any person who,
				because of a 401 Water Quality Certification determination by the Department,
				may suffer an injury in fact which is different either in kind or magnitude
				from that suffered by the general public and which is within the scope of
				interests identified in
				314 CMR 9.00.
Applicant
. A person proposing any
				activity that will result in a discharge of dredged or fill material, or a
				discharge from dredging or dredged material disposal in any water of the United
				States within the Commonwealth.
Aquatic Ecosystem
. Waters of the
				United States within the Commonwealth, including wetlands, that serve as
				habitat for interrelated and interacting communities and populations of plants
				and animals.
Area of Critical Environmental
				Concern
. An area designated by the Secretary pursuant to M.G.L. c.
				21A, § 2(7) and
				301 CMR 12.00:
Areas
				of Critical Environmental Concern
.
Bordering Vegetated Wetlands
. Any
				land or surface area so defined by the Massachusetts Wetlands Protection Act,
				M.G.L. c. 131, § 40 and
				310
				CMR 10.55(2):
Definition, Critical Characteristics and Boundary
.
Clean Water Act
. The federal statute
				at
				33 U.S.C.
				1251 which contains §§ 401 and
				404.
Cold-water Fisheries
. Waters in which
				the mean of the maximum daily temperature over a seven day period generally
				does not exceed 68ºF (20ºC) and, when other ecological factors are
				favorable (such as habitat), are capable of supporting a year round population
				of cold-water stenothermal aquatic life. Waters designated as cold-water
				fisheries by the Department in
				314 CMR 4.00:
Massachusetts Surface Water Quality Standards
and water
				designated as coldwater fishery resources by the Division of Fisheries and
				Wildlife are cold-water fisheries. Waters where there is evidence based on a
				fish survey that a cold-water fishery and habitat exist are also cold-water
				fisheries. Cold-water fish include but are not limited to brook trout
				(
Salvelinus fontanlis
), rainbow trout (
Oncorhynchus
				mykiss
), brown trout (
Salmo trutta
), creek chubsucker
				(
Erimyzon oblongus
), and fallfish (
Semotilus
				corporalis
).
Combined Application
. An application
				that may serve as a Notice of Intent pursuant to
				310 CMR
				10.00:
Wetlands Protection
, an
				application for a 401 Water Quality Certification pursuant to
				314 CMR 9.00, and/or an
				application for a Chapter 91 license, permit or other written approval for a
				water-dependent use pursuant to
				310 CMR
				9.00:
Waterways
.
Notwithstanding the foregoing, a Combined Application may not
				serve as an application for an annual permit for a mooring, float, raft or
				small structure accessory to a residence in accordance with
				310 CMR
				9.07:
Activities Subject to Annual
				Permit
, an application for a Chapter 91 license for a small structure
				accessory to a residence in accordance with the simplified process set forth in
				310
				CMR 9.10:
Simplified Procedures for
				Small Structures Accessory to Residences
, or the certification
				submitted as an application for a General License in accordance with
				310 CMR
				9.29:
General License
				Certification
.
Combined Permit
. A decision issued in
				response to a Combined Application that serves as two or more of the following:
				a Superseding Order of Conditions issued pursuant to
				310 CMR
				10.00:
Wetlands Protection
; a 401
				Water Quality Certification issued pursuant to
				314 CMR 9.00; and/or a Chapter
				91 permit, license or other written approval issued pursuant to
				310 CMR
				9.00:
Waterways
.
Commissioner
means the Commissioner
				of the Department.
Confined Aquatic Disposal (CAD)
. A
				subaqueous facility (typically a constructed cell or natural depression) into
				which dredged sediment is placed and then isolated from the surrounding
				environment.
Confined Disposal Facility (CDF)
. A
				facility created in open water or wetlands consisting of confinement walls or
				berms built up against or extending into existing land.
Corps of Engineers
. The United States
				Army Corps of Engineers, New England Division.
Critical Area
. Outstanding Resources
				Waters as designated in
				314 CMR 4.00:
Massachusetts Surface Water Quality Standards
, Special
				Resource Waters as designated in
				314 CMR 4.00, recharge areas
				for public water supplies as defined in
				310 CMR 22.02:
Definitions
(Zone Is, Zone IIs and Interim Wellhead Protection
				Areas for ground water sources and Zone As for surface water sources), bathing
				beaches as defined in
				105 CMR 445.000:
Minimum Standards for Bathing Beaches (State Sanitary Code:
				Chapter
VII), cold-water fisheries, and shellfish growing
				areas.
Dam
. Any artificial barrier placed
				across a watercourse that raises or has the potential to raise the level of
				water or which impounds and/or diverts water.
Department
. The Massachusetts
				Department of Environmental Protection.
Discharge of Dredged or Fill
				Material
. Any addition of dredged or fill material into, including
				any redeposit of dredged material within, waters of the United States within
				the Commonwealth. The term includes, but is not limited to:
(a) direct placement of fill, including any material used for
				the primary purpose of replacing with dry land or of changing the bottom
				elevation of a wetland or water body,
(b) runoff from a contained land or water disposal area,
				and
(c) the placement of pilings when it has the effect of fill
				material.
Disposal Site
. A structure, well,
				pit, pond, lagoon, impoundment, ditch, landfill or other place or area,
				excluding ambient air or surface water, where uncontrolled oil or hazardous
				material has come to be located as a result of any spilling, leaking, pouring,
				ponding, emitting, emptying, discharging, injecting, escaping, leaching,
				dumping, discarding, or otherwise disposing of such oil or hazardous material
				and is a "disposal site"? as defined in M.G.L.c. 21E.
Dredged Material
. Sediment and
				associated materials that are moved from below the mean high tide line for
				coastal waters and below the high water mark for inland waters during dredging
				activities.
Dredged Material Disposal
. The
				transport, placement, or deposition of sediments or other material after
				dredging.
Dredging
. The removal or
				repositioning of sediment or other material from below the mean high tide line
				for coastal waters and below the high water mark for inland waters. Dredging
				shall not include activities in bordering or isolated vegetated
				wetlands.
Ecological Restoration Project
. A
				project whose primary purpose is to restore or otherwise improve the natural
				capacity of a Resource Area(s) to protect and sustain the interests identified
				in M.G.L. c. 131, § 40, when such interests have been degraded or
				destroyed by anthropogenic influences. The term Ecological Restoration Project
				shall not include projects specifically intended to provide mitigation for the
				alteration of a Resource Area authorized by a Final Order or Variance issued
				pursuant to
				310 CMR
				10.00:
Wetlands Protection
or a 401
				Water Quality Certification issued pursuant to
				314 CMR 9.00 other than
				projects implemented pursuant to a US Army Corps of Engineers-approved in-lien
				fee program.
Environmental Impact Report
. The
				report described in the Massachusetts Environmental Policy Act, M.G.L. c. 30,
				§§ 61 through 62H and
				301 CMR
				11.00:
MEPA Regulations
.
Environmental Monitor
. The publication
				described in 301 CMR 11.19(1).
Environmentally Sensitive Site
				Design
. Design that incorporates low impact development techniques
				to prevent the generation of stormwater and non-point source pollution by
				reducing impervious surfaces, disconnecting stormwater sheet flow paths, and
				treating stormwater at its source, maximizing open space, minimizing
				disturbance, protecting natural features and processes, and/or enhancing
				wildlife habitat.
Fastland
. Land above mean high water
				formed by the placement of dredged or fill material into waters of the United
				States within the Commonwealth.
Final Order of Conditions
. The Order
				of Conditions issued by the Commissioner of the Department after an
				adjudicatory hearing or, if no request for a hearing has been filed, the
				Superseding Order or, if no request for a Superseding Order has been filed, the
				Order of Conditions issued under M.G.L. c. 131, § 40 (the Wetlands
				Protection Act) and
				310 CMR 10.05:
Procedures
.
Ground Water
. Water below the land
				surface in a saturated zone including perched ground water.
High Water Mark
. The present
				arithmetic mean of high water heights observed over a one-year period using the
				best available data as determined by the Department.
Illicit Discharge
. Discharge that is
				not entirely comprised of stormwater. Notwithstanding the foregoing, an illicit
				discharge does not include discharges from the following activities or
				facilities: firefighting, water line flushing, landscape irrigation,
				uncontaminated ground water, potable water sources, foundation drains, air
				conditioning condensation, footing drains, individual resident car washing,
				flows from riparian habitats and wetlands, dechlorinated water from swimming
				pools, water used for street washing and water used to clean residential
				buildings without detergents.
Improvement Dredging
. Any dredging in
				an area which has not been previously dredged or which extends the original
				dredged width, depth, length or otherwise alters the original boundaries of a
				previously dredged area.
Innovative Technology
. Technology
				that has not been commercially deployed or is in limited deployment, and
				includes, but is not limited to, energy technology that obtains energy from the
				ocean, waterway, or conditions associated with the ocean or waterway, other
				forms of renewable energy technology.
Intermediate Facility
. A site or
				location that is to be utilized, on either a project-specific temporary or
				permanent basis, to manage dredged material prior to its ultimate reuse or
				disposal (
e.g
., barge unloading, stockpiling or storage,
				dewatering, processing or treatment, truck or train loading or
				unloading).
Isolated Vegetated Wetlands
.
				Vegetated areas subject to jurisdiction under
				33 U.S.C.
				1251 that are not bordering vegetated
				wetlands subject to jurisdiction under M.G.L. c. 131, § 40 and
				310
				CMR 10.55(2):
Definition, Critical Characteristics and Boundary
.
Land Uses with Higher Potential Pollutant
				Loads
. Land uses identified in
				310 CMR 22.20B(2)
				 and
				22.20C(2)(a)
				through (k) and (m),
				22.21(2)(a)1.
				through 8., and (b)1. through 6.; areas within a site that are the location of
				activities that are subject to an individual National Pollutant Discharge
				Elimination System (NPDES) Permit or the NPDES Multi-Sector General Permit;
				auto fueling facilities (gas stations); exterior fleet storage areas; exterior
				vehicle service and equipment cleaning areas; marinas and boatyards; parking
				lots with high intensity use; confined disposal facilities, and disposal
				sites.
Lot
. An area of land in one
				ownership, with definite boundaries.
Low Impact Development Techniques
.
				Innovative stormwater management systems that are modeled after natural
				hydrologic features. Low impact development techniques manage rainfall at the
				source using uniformly distributed decentralized micro-scale controls. Low
				impact development techniques use small cost-effective landscape features
				located at the lot level.
Maintenance Dredging
. Dredging in
				accordance with a valid license or permit in any previously authorized dredged
				area, which does not extend the originally dredged depth, width or
				length.
Massachusetts Environmental Policy
				Act
or
MEPA
. M.G.L. c. 30, §§
				61 through 62H and
				301 CMR
				11.00:
MEPA Regulations
.
Massachusetts Oil and Hazardous Materials Release
				Prevention and Response Act or M.G.L. c. 21E
. M.G.L. c. 21E,
				§§ 1 through 18 and implementing regulations at 310 CMR 40.0000:
Massachusetts Contingency Plan
.
Massachusetts River and Stream Crossing Standards
				or the Stream Crossing Standards
. The standards developed by the
				River and Stream Continuity Partnership as corrected on March 8, 2012.
Mean High Tide Line
. - The line where
				the arithmetic mean of the high water heights observed over a specific 19-year
				metonic cycle (the National Tidal Datum Epoch) meets the shore and shall be
				determined using hydrographic survey data of the National Ocean Survey of the
				U.S. Department of Commerce.
Mixing Zone
. A mixing zone is the
				limited volume of water allowing for the initial dilution of a discharge,
e.g
., from dredging or disposal in waters.
National Environmental Policy Act or
				NEPA
.
				42 U.S.C. §§
									4321 through
				4345.
Non-invasive Sampling Activities
.
				Sampling activities, which include the collection of water, soil or sediment
				samples by techniques (
e.g
., hand-held augers) that will not
				significantly disturb existing wetland resources areas as defined in M.G.L. c.
				131, § 40 (the Massachusetts Wetland Protection Act and
				33 U.S.C. §
									1257 (the Federal Clean Water Act).
Notice of Intent
. The document
				described in
				310 CMR
				10.05(4):
Notices of
				Intent
.
Oil and Hazardous Material (OHM)
. The
				definitions included in 310 CMR 40.0000:
Massachusetts Contingency
				Plan
.
Outstanding Resource Water
. A surface
				water of the Commonwealth so designated in
				314 CMR 4.00:
Massachusetts Surface Water Quality Standards
.
Person
. Any agency or political
				subdivision of the Commonwealth or the federal government, public or private
				corporation or authority, individual, partnership or association, or other
				entity, including any officer of a public or private agency or
				organization.
Practicable
. Available and capable of
				being done after taking into consideration costs, existing technology, proposed
				use, logistics and potential adverse consequences (
e.g
.,
				degradation of Rare Species Habitat, increased flood impacts to the built
				environment) in light of the overall project purposes and is permittable under
				existing federal and state statutes and regulations.
Qualified Environmental Professional
				(QEP
). An individual who is knowledgeable about the procedures and
				methods for characterizing dredged material and contaminated media; is familiar
				with Massachusetts and federal regulations applicable to the management of such
				materials; performs or oversees the management of sediment and/or contaminated
				soil as an integral part of his or her professional duties; and is
				professionally licensed or certified in a discipline related to environmental
				assessment (
i.e
., engineering, geology, or soil science) by
				the state or a recognized professional organization.
Rare Species
. Those vertebrate and
				invertebrate animal species officially listed as endangered, threatened, or of
				special concern by the Massachusetts Division of Fisheries and Wildlife under
				321 CMR 10.60:
Introduction
.
Rare Species Habitat
. Areas
				identified as habitat for Rare, Endangered, or species of special concern by
				the Massachusetts Division of Fisheries and Wildlife's Natural Heritage Program
				as published in the Massachusetts Natural Heritage Atlas at the time an
				application is submitted.
Real Estate Subdivision
. The division
				of a tract of land into two or more lots, including division where approval is
				required and where approval is not required under the Subdivision Control Law,
				M.G.L. c. 41, §§ 81K through 81GG.
Redevelopment
. For purposes of the
				Stormwater Management Standards as provided in
				314
				CMR 9.06(6)(a) through (e),
				redevelopment is defined to include the following projects:
(a) maintenance and improvement of existing roadways including
				widening less than a single lane, adding shoulders, correcting substandard
				intersections, improving existing drainage systems and repaving;
(b) development, rehabilitation, expansion and phased projects
				on previously developed sites provided the redevelopment results in no net
				increase in impervious area; and
(c) remedial projects specifically designed to provide improved
				stormwater management such as projects to separate storm drains and sanitary
				sewers and stormwater retrofit projects.
Resource Area
. Any of the areas
				specified in
				310 CMR
				10.25 through
				10.35
				and
				310 CMR
				10.54 through
				10.58. It is used
				synonymously with Area Subject to Protection Under M.G.L. c. 131, § 40,
				each one of which is enumerated in
				310 CMR
				10.02(1):
Areas
				Subject to Protection Under M.G.L. c. 131, § 40
.
Restoration Order of Conditions
. The
				Order of Conditions issued pursuant to
				310 CMR
				10.14:
Restoration Order of
				Conditions
for a project that meets the eligibility criteria set forth
				in
				310 CMR
				10.13:
Eligibility Criteria for
				Restoration Order of Conditions
.
Salt Marsh
. A coastal wetland as
				defined in M.G.L. c. 131, § 40 and
				310 CMR
				10.32(2):
Salt
				Marsh
.
SARA 312 Generator
. A facility that
				is required by the Emergency Planning and Community right to Know Act (EPCRA)
				also known as Title III of the Superfund Amendments and Reauthorization Act of
				1989 (SARA Title III) to submit an inventory of the location of hazardous
				chemicals which are located at the site.
Secretary
. The Secretary of the
				Executive Office of Energy and Environmental Affairs.
Sediment
. For the purposes of
				dredging means all inorganic or organic matter, including detritus, situated
				under tidal waters below the mean high water line as defined in
				310 CMR
				10.23:
Additional Definitions for
				310 CMR 10.21
				through
				10.37
; and for inland waters below the upper boundary of a bank, as defined
				in
				310 CMR
				10.54(2):
Definition, Critical Characteristics and Boundary
.
Shellfish Growing Area
. Land under
				the ocean, tidal flats, rocky intertidal shores and marshes and land under salt
				ponds when any such land contains shellfish. Shellfish growing areas include
				land that has been identified and shown on a map published by the Division of
				Marine Fisheries as a shellfish growing area including any area identified on
				such map as an area where shellfish harvesting is prohibited. Shellfish growing
				areas shall also include land designated by the Department in
				314 CMR 4.00:
Massachusetts Surface Water Quality Standards
as suitable for
				shellfish harvesting with or without depuration. In addition, shellfish growing
				areas shall include shellfish growing areas designated by the local shellfish
				constable as suitable for shellfishing based on the density of shellfish, the
				size of the area, and the historical and current importance of the area for
				recreational and commercial shellfishing.
Single and Complete Project
. The
				total project proposed or accomplished by one or more persons, including any
				multiphased activity.
Special Aquatic Sites
means those
				site identified in Subpart E of 40 CFR Part 230, 404(b)(1), including
				sanctuaries and refuges, wetlands, mud flats, vegetated shallows, coral reefs,
				and riffle and pool complexes. They are geographical areas, large or small,
				possessing special ecological characteristics of productivity, habitat,
				wildlife protection, or other important and easily disrupted ecological values.
				These areas are generally recognized as significantly influencing or positively
				contributing to the general overall environmental health or vitality of the
				entire ecosystem of a region.
Stormwater Best Management Practice
.
				Structural or nonstructural technique for managing stormwater to prevent or
				reduce non-point source pollutants from entering surface waters or ground
				waters. A structural stormwater best management practice includes a basin,
				discharge outlet, swale, rain garden, filter, or other stormwater treatment
				practice or measure either alone or in combination including without limitation
				any overflow pipe, conduit or weir control structure that:
(a) is not naturally occurring;
(b) is not designed as a wetland replication area; and
(c) has been designed, constructed and installed for the
				purpose of collecting, storing, discharging, recharging or treating
				stormwater.
Nonstructural stormwater best management practices include
				source control and pollution prevention measures.
Stormwater Management System
. System
				for conveying, collecting, storing, discharging, recharging or treating
				stormwater on-site including stormwater best management practices and any pipes
				and outlets intended to transport and discharge stormwater to the ground water,
				a surface water or a municipal separate storm sewer system.
Surface Waters
. All waters other than
				groundwaters within the jurisdiction of the Commonwealth, including, without
				limitation, rivers, streams, lakes, ponds, springs, impoundments, estuaries,
				wetlands, coastal waters, and vernal pools.
Test Project
. Installation or
				deployment of water dependent Innovative Technology
in situ
for purposes of evaluating its performance and environmental effects.
Vernal Pool
. A waterbody that has
				been certified by the Massachusetts Division of Fisheries and Wildlife as a
				vernal pool. In the event of a conflict of opinion or the lack of a clear
				boundary delineation certified by the Division of Fisheries and Wildlife or the
				Department, the applicant may submit an opinion certified by a registered
				professional engineer, supported by engineering calculations, as to the
				boundary of the vernal pool. The maximum extent of the waterbody shall be based
				upon the total volume of runoff from the drainage area contributing to the
				vernal pool and shall be further based upon a design storm of 2.6 inches of
				precipitation in 24 hours.
Water-dependent
. Uses and facilities
				which require direct access to, or location in, marine, tidal or inland waters
				and which therefore cannot be located away from those waters, including any
				uses and facilities defined as water-dependent in
				310 CMR
				9.00:
Waterways
.
Waters of the Commonwealth
. All
				waters within the Commonwealth, including without limitation, rivers, streams,
				lakes, ponds, springs, impoundments, estuaries, wetlands, coastal waters and
				ground waters.
Waters of the United States within the
				Commonwealth
. Navigable or interstate waters and their
				tributaries, adjacent wetlands, and other waters or wetlands within the borders
				of the Commonwealth where the use, degradation, or destruction could affect
				interstate or foreign commerce as determined by the Corps of Engineers.
				Bordering and isolated vegetated wetlands and land under water are waters of
				the United States within the Commonwealth when they meet the federal
				jurisdictional requirements defined at 33 CFR 328 through 329.
Wetlands Protection Act
. M.G.L. c.
				131, § 40 and
				310 CMR
				10.00:
Wetlands Protection
.
401 Water Quality Certification
or
Certification
. The document issued by the Department
				to the applicant and the appropriate federal agency under
				33 U.S.C.
				1251, M.G.L. c. 21, § 27 and
				314 CMR 9.00 certifying,
				conditioning, or denying an activity.