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 9.06 - Criteria for the Evaluation of Applications for Discharge of Dredged or Fill Material

Current through Register 1525, July 5, 2024
(1) No discharge of
			 dredged or fill material shall be permitted if there is a practicable
			 alternative to the proposed discharge that would have less adverse impact on
			 the aquatic ecosystem, so long as the alternative does not have other
			 significant adverse environmental consequences.
(a) Where the activity associated with the
			 discharge does not require access or proximity to or siting within wetlands and
			 waters to fulfill its basic purpose (i.e., is not "water dependent"),
			 practicable alternatives that do not involve the discharge of dredged or fill
			 material are presumed to be available, unless clearly demonstrated otherwise.
			 In addition, all practicable alternatives to the proposed activity, which do
			 not involve a discharge, are presumed to have less adverse impact on the
			 aquatic ecosystem unless clearly demonstrated otherwise.
(b) The scope of alternatives to be
			 considered shall be commensurate with the scale and purpose of the proposed
			 activity, the impacts of the proposed activity, and the classification,
			 designation and existing uses of the affected wetlands and waters in the
			 Surface Water Quality Standards at
			 314 CMR 4.00: Massachusetts
			 Surface Water Quality Standards.
1.For
			 activities associated with access for one dwelling unit, the area under
			 consideration for practicable alternatives will be limited to the lot. For
			 activities associated with the creation of a real estate subdivision, the area
			 under consideration will be limited to the subdivided lots and any adjacent
			 lots the applicant formerly owned, presently owns, or can reasonably obtain an
			 ownership interest.
2.For any
			 activity resulting in the loss of more than one acre cumulatively of bordering
			 and isolated vegetated wetlands and land under water, alternative sites not
			 presently owned by the applicant which could reasonably be obtained, utilized,
			 expanded or managed will be considered by the Department, but only if such
			 information is required in an Environmental Impact Report or in an alternatives
			 analysis conducted by the Corps of Engineers for an individuals 404
			 permit.
(c) For
			 discharges of dredged or fill material associated with an Ecological
			 Restoration Project, the alternatives analysis shall include a consideration of
			 the following:
1.Any time of year
			 restrictions or other conditions recommended by the Division of Marine
			 Fisheries for coastal waters and the Division of Fisheries and Wildlife for
			 inland waters.
2.The condition of
			 the existing ecosystem and the wetlands and waters contained therein.
3.The magnitude and significance of the
			 benefits of the Ecological Restoration Project in improving the capacity of the
			 affected ecosystem and the waters and wetlands contained therein to sustain
			 their designated uses, as identified in
			 314 CMR 4.00: Massachusetts
			 Surface Water Quality Standards.
4.The magnitude and significance of the
			 impacts of the Ecological Restoration Project on the existing ecosystem and the
			 wetlands and waters contained therein and the extent to which the applicant
			 will:
a.avoid adverse impacts to the existing
			 ecosystem that can be avoided without impeding the achievement of the project's
			 ecological restoration goals;
b.minimize adverse impacts to the existing
			 ecosystem that are necessary to the achievement of the project's ecological
			 restoration goals; and
c.utilize
			 best management practices such as erosion and siltation controls and proper
			 construction sequencing to avoid and minimize adverse construction impacts to
			 the existing ecosystem and the waters and wetlands contained therein.