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 9.04 - Activities Requiring an Application

Current through Register 1525, July 5, 2024
The activities identified in 314 CMR 9.04(1) through (13)
				require a 401 Water Quality Certification application and are subject to the
				Criteria for Evaluation of Applications for the Discharge of Dredged or Fill
				Material in
				314
				CMR 9.06 and/or 9.07:
(1)
More than 5000 Sq.
			 Ft
. Any activity in an area subject to
			 310 CMR
			 10.00: Wetlands Protection which is also subject to
			 33 U.S.C.
			 1251, et seq. and will result in the loss of
			 more than 5000 square feet cumulatively of bordering and isolated vegetated
			 wetlands and land under water, except for an Ecological Restoration Project not
			 requiring a Water Quality Certification application pursuant to
			 314 CMR
			 9.03(8).
(2)
Outstanding Resource
			 Waters
. Dredging in, or any activity resulting in any discharge of
			 dredged or fill material to any Outstanding Resource Water.
(3)
Real Estate
			 Subdivision
- Any discharge of dredged or fill material associated
			 with the creation of a real estate subdivision, unless there is a valid,
			 unexpired Final Order of Conditions, followed by a Certificate of Compliance,
			 and a recorded deed restriction providing notice to subsequent purchasers
			 limiting the amount of fill for the single and complete project to less than
			 5000 square feet cumulatively of bordering and/or isolated vegetated wetlands
			 and land under water and the discharge is not to an Outstanding Resource Water.
			 Real estate subdivisions include divisions where approval is required and where
			 approval is not required under the Subdivision Control Law, M.G.L. c. 41,
			 §§ 81K through 81GG. Discharges of dredged or fill material to create
			 the real estate subdivision include but are not limited to discharges resulting
			 from the construction of roads, drainage, sidewalks, sewer systems, buildings,
			 septic systems, wells, and accessory structures.
(4)
Activities Exempt under
			 M.G.L. c. 131, § 40
. Any activity not subject to M.G.L. c.
			 131, § 40 and which is subject to
			 33 U.S.C.
			 1251 and will result in any discharge of
			 dredged or fill material to bordering vegetated wetlands or land under
			 water.
(5)
Routine
			 Maintenance.
Routine maintenance of existing channels, such as
			 mosquito control projects or road drainage maintenance, that will result in the
			 annual loss of more than 5000 square feet cumulatively of bordering and
			 isolated vegetated wetland and land under water will be evaluated under the
			 criteria of
			 314
			 CMR 9.06. A single application may be
			 submitted and a single certification may be issued for repeated routine
			 maintenance activities on an annual or multi-year basis not to exceed five
			 years.
(6)
More than
			 5000 Sq. Ft. of Isolated Vegetated Wetlands
. Any activity in an
			 area not subject to jurisdiction of M.G.L. c. 131, § 40 but which is
			 subject to
			 33 U.S.C.
			 1251 (i.e., isolated vegetated wetlands) and
			 which will result in the loss of more than 5000 square feet cumulatively of
			 bordering and isolated vegetated wetlands and land under water.
(7)
Rare Species Habitat in
			 Isolated Vegetated Wetlands
. Any activity resulting in the
			 discharge of dredged or fill material to an isolated vegetated wetland that has
			 been identified as Rare Species Habitat.
(8)
Salt Marsh
. Any
			 activity resulting in the discharge of dredged or fill material in any salt
			 marsh, except for an Ecological Restoration Project not requiring a Water
			 Quality Certification application pursuant to
			 314 CMR
			 9.03(8).
(9)
Individual 404
			 Permit
. Any activity subject to an individual Section 404 permit
			 by the Corps of Engineers, except for an Ecological Restoration Project not
			 requiring a Water Quality Certification application pursuant to
			 314 CMR
			 9.03(8).
(10)
Agricultural Limited
			 Project
. Agricultural work, not exempt under M.G.L. c. 131, §
			 40, referenced in and performed in accordance with
			 310 CMR
			 10.53(5). Provided the
			 activity does not result in any discharge of dredged or fill material to an
			 Outstanding Resource Water, such work will be presumed to meet the criteria of
			 314
			 CMR 9.06 where a comparable alternatives
			 analysis is performed or approved by the USDA Natural Resources Conservation
			 Service and included in the Notice of Intent.
(11)
Discretionary
			 Authority
. Any activity where the Department invokes discretionary
			 authority to require an application based on cumulative effects of multiphased
			 activities, cumulative effects of dredging, or from the discharge of dredged or
			 fill material to bordering or isolated vegetated wetlands or land under water,
			 or other impacts which may jeopardize water quality. The Department will issue
			 a written notice of and statement of reasons for its determination to invoke
			 this discretionary authority not later than ten business days after its receipt
			 of an Order of Conditions.
(12)
Dredging 100 Cubic Yards or More
. Any dredging or
			 dredged material re-use or disposal of 100 cubic yards or greater.
(13) Any activity not listed in
			 314 CMR
			 9.03 or 9.04 is an activity requiring an
			 application subject to the requirements of
			 314 CMR
			 9.05 and
			 9.06
			 through
			 9.13
			 as applicable.