Code of Massachusetts Regulations › 980 CMR - ENERGY FACILITIES SITING COUNCIL › Title 980 CMR 11.00 - Licensing Of Hydropower Generating Facilities › Section 11.01 - General

Current through Register 1525, July 5, 2024
(1)
Scope
.
			 980 CMR 11.00 shall apply to
			 actions taken by the Council under M.G.L. c. 164, § 69H½, which
			 deals with licensing of hydropower generating facilities.
(2)
Statutory
			 Authority
.
			 980 CMR 11.00 is promulgated
			 pursuant to M.G.L. c. 164, § 69H½ and M.G.L. c. 30A, §§ 2
			 and 9.
(3)
Purpose
. The purpose of
			 980 CMR 11.00 is to implement
			 the policy and provisions of M.G.L. c. 164, § 69H½ which requires
			 the Energy Facilities Siting Council to coordinate the permitting and licensing
			 of hydropower generating facilities by simplifying requirements for permits and
			 licenses in Massachusetts. To this end, the Council has established preliminary
			 notification forms and other forms to be employed for permitting and licensing;
			 will conduct pre-licensing conferences between developers and these agencies
			 jointly with the Secretary of the Executive Office of Environmental Affairs;
			 will assist in resolving disputes between developers and agencies concerning
			 the form, content, level of detail and schedules of information and data
			 requirements; will increase cooperation between the state and federal licensing
			 agencies and will serve as a forum for final administrative appeal for any
			 party aggrieved by a permitting and licensing agency's action or failure to
			 act.
A developer should use the procedures established by this new
				hydropower statute and regulations. If he does not enter and follow this
				process, starting with filing one of the new forms - the Hydropower Preliminary
				Notification Form or the Environmental Notification Form and Hydropower
				Supplement, he cannot use the appeal section,
				980 CMR
				11.05.
It is to be noted that
				980 CMR 11.00, promulgated
				under M.G.L. c. 164, § 69H½, do not affect the responsibilities of
				the Executive Office of Environmental Affairs under M.G.L. c. 30, §§
				62 through 62H. They do not affect deadlines for final orders imposed upon the
				Department of Environmental Quality Engineering under M.G.L. c. 131, § 40.
				Nor do they affect the "federal consistency" review authority of the
				Massachusetts Coastal Zone Management Office under
				16 U.S.C. Sec.
				1451
et seq
.
Developers who have already begun the state licensing process
				when
				980 CMR 11.00 become
				effective may utilize the procedures of
				980 CMR 11.00, but cannot
				utilize the appeal section,
				980 CMR
				11.05, unless they have gone through an
				informal Council-run pre-licensing conference similar to that described in
				980
				CMR
				11.03(6).
(4)
Application of
			 980 CMR 2.00 and
			 1.00
.
			 980 CMR 2.00 shall apply to
			 980 CMR 11.00 except to the
			 extent that
			 980 CMR 2.00 and
			 980 CMR 11.00 are in
			 conflict. In the event of a conflict,
			 980 CMR 11.00 shall prevail
			 over
			 980 CMR 2.00. For the
			 application of
			 980 CMR 1.00 to appeals under
			 908 CMR 11.00, see
			 980 CMR
			 11.05(2).
(5)
Application of
			 980 CMR 11.00 to Final Orders
			 of the Department of Environmental Protection
. Notwithstanding
			 other provisions of
			 980 CMR 11.00, the Department
			 of Environmental Quality Engineering shall act on a request for a final order
			 within the time limitations specified by M.G.L. c. 131, § 40.
(6)
Definitions
. For
			 the purpose of
			 980 CMR 11.00 the following
			 definitions shall apply unless the context or subject matter requires and
			 specifies a different interpretation.
Action
or
failure to
				act
occurs when:
(a) a
			 permitting and licensing agency grants or denies an approval, permit, license,
			 certificate or permission to a developer,
(b) an agency fails to grant or deny an
			 approval, permit, license, certificate or permission within a time limit set by
			 the Council under
			 980
			 CMR 11.03(12), or
(c) an information deadlock is established,
			 as described in
			 980
			 CMR 11.03(9).
Agency
means one of the "permitting
				and licensing agencies" as defined in M.G.L. c. 164, § 69H½.
				"Permitting and licensing agencies" are defined there as "all agencies,
				authorities, and departments of the Commonwealth, and local conservation
				commissions whose approval, order, order of conditions, permit, license,
				certificate, or permission in any form is required prior to or for construction
				of a hydropower generating facility, except the Secretary of Environmental
				Affairs acting under the provisions of M.G.L. c. 30, §§ 62 through
				62H and shall include, but not be limited to, the Department of Environmental
				Protection including the Division of Water Pollution Control, the Department of
				Environmental Management, the Department of Fisheries, Wildlife and
				Recreational Vehicles, the Conservation Commission with jurisdiction over the
				proposed site, the Massachusetts Historical Commission, the Department of
				Public Utilities, and any other agency, authority, or department of the
				Commonwealth, county, city or town government, as may from time to time be so
				designated by the Energy Facilities Siting Council."
Appeal
means an appeal under
				980 CMR
				11.05 from an action or failure to act on the
				part of a permitting and licensing agency.
Conduit
means an enclosed water
				conveyance facility used primarily as a water supply aqueduct or sewer
				pipe.
Dam
means any structure for impounding
				water which is usable for electric or mechanical power generation, if the
				impoundment supplies all, or the substantial part of, the total hydraulic
				pressure (head) developed for such generation.
Days
means calender days; provided
				that in computing time periods under these regulations, such periods shall
				exclude the day of the event which triggers the time period. It is further
				provided that should the last day of a period fall on a Saturday, Sunday, legal
				holiday or declared state of emergency day, such period shall be extended to
				the close of business on the next business day.
Developer
means any person,
				corporation, partnership, municipality, utility or other entity which is
				attempting to obtain the permits and licenses required prior to or for the
				construction or start-up of a hydropower generating facility.
ENF
is an Environmental Notification
				Form as defined in the Massachusetts Environmental Policy Act regulations under
				M.G.L. c. 30, §§ 62 through 62H.
Existing Dam
means any dam which does
				not require any construction or enlargement of impoundment structures (other
				than repairs or reconstruction) in connection with the installment of any small
				hydropower generating facility.
Flashboards
means any appurtenant
				structure to a dam consisting of a set of boards or gates attached to the top,
				or crest, of such damso as to impound water to a higher elevation than the dam
				alone, but being designed to bend or otherwise fail or allow removal or
				mechanical lowering of such boards or gates under conditions of high flow of
				water, or water and ice, in the impounded waterway.
Hearing Officer
means any person
				designated by the Council or its Executive Director to conduct hearings of
				appeals pursuant to
				980 CMR
				11.05.
Hydropower Generating Facility
means
				any electric or mechanical power generating unit whose power source is water
				flow and which is not a facility as defined in M.G.L. c. 164, §
				69G.
HPNF
is the Hydropower Preliminary
				Notification Form established by the Council as the developer's preliminary
				filing form under
				980
				CMR 11.04.
Hydropower Supplement
is the form
				established by the Council to be filed along with the ENF as the developer's
				preliminary filing form under
				980
				CMR 11.03.
Land Subject to Flooding
is as defined
				in M.G.L. c. 131, § 40 and implementing regulations.
MEPA Unit
is that branch of the
				Executive Office of Environmental Affairs which implements the Massachusetts
				Environmental Policy Act and regulations thereunder.
Pre-licensing Conference
means the
				meeting between the developer and the agencies to be called, noticed and
				conducted under
				980
				CMR 11.03(4)  to
				11.03(6).
				Whenever possible, this conference will be combined with the MEPA "scoping
				session", held under M.G.L. c. 30, §§ 62 through 62H and implementing
				regulations, in a single meeting.
Waterway
is as defined in M.G.L. c. 91
				and implementing regulations.
Wetland
is a wetland, swamp, marsh,
				salt marsh, or flat as each term is defined in M.G.L. c. 131, § 40 and
				implementing regulations.