Code of Massachusetts Regulations › 321 CMR - DIVISION OF FISHERIES AND WILDLIFE › Title 321 CMR 10.00 - Massachusetts Endangered Species Act › Part I - General Provisions: Definitions, Listing, Taking Permits, Responsibilities of State Agencies › Section 10.05 - Responsibilities of State Agencies

Current through Register 1525, July 5, 2024
(1) All state
				agencies shall utilize their authorities in furtherance of the purposes of MESA
				and
				321 CMR 10.00: review,
				evaluate and determine the impact on Endangered, Threatened and Special Concern
				species or their habitats of all works, projects or activities conducted by
				them; and use all practicable means and measures to avoid or minimize damage to
				such species or their habitats. For the purposes of 321 CMR 10.05, "state
				actions" means any work, project, or activity either directly undertaken by a
				state agency, or if undertaken by a person, which seeks the provision of
				financial assistance by an agency or requires the issuance of permits by an
				agency (but not including a grant of aid for medical services or personal
				support, such as welfare or unemployment funds) to a person or a third party on
				behalf of a person, and "activities" means any acts carried out by a state
				agency which could affect any state listed species or their habitats.
(2) The following types of state actions
				shall be considered in compliance with MESA and 321 CMR 10.05(1):
(a) State actions that have received any
				permits required pursuant to MESA and
				321 CMR 10.00.
(b) State actions that are part of a project
				which has been reviewed under MEPA and the Secretary of EOEA has issued either
				a certificate on an ENF stating that project does not require the preparation
				of an EIR or a certificate on a Final EIR stating that the EIR fully and
				adequately complies with MEPA, provided, however, that said project has been
				reviewed under MEPA regulations (
				301 CMR
				11.00 ) that have incorporated review thresholds for
				permits issued under
				321 CMR 10.00 and that no
				taking will occur or that a Conservation and Management Permit has been
				issued.
(c) State actions occurring
				on state-owned land that are in conformance with a management plan which was
				developed in accordance with the following inventory and planning procedures
				and management policies:
1.
Inventory Procedures
. State agencies shall request and
				the NHESP shall provide information on the location, biology, and habitat
				requirements of state listed species documented by the NHESP as occurring on
				said agency's lands. NHESP shall also provide to state agencies such
				information and recommendations as are necessary to allow said agencies to use
				all practicable means and measures to avoid or minimize damage to state listed
				species or their habitats.
2.
Planning Procedures
. State agencies shall submit to
				NHESP any draft management plans they prepare for state-owned lands on which
				state listed species are known to occur. NHESP shall review such draft plans
				and provide comments and recommendations to the state agency concerning the
				protection, conservation, and restoration of the listed species on the land
				subject to the plan. Such review and recommendations shall be repeated at least
				once every five years or every time the land management plan is updated,
				whichever is sooner.
3.
Management Policies
. Unless specifically required
				otherwise by statute, localities on state-owned lands that provide habitat for
				state listed species shall be managed for the benefit of such listed species.
				Said agencies shall give management priority to the protection, conservation,
				and restoration of Endangered, Threatened, and Special Concern species
				occurring on state-owned lands. All practicable means and measures shall be
				taken to resolve conflicts between the protection, conservation, and
				restoration of state listed species on state-owned lands and other uses of such
				lands in favor of the listed species.
(d) All other state actions that do not
				require a permit under MESA, are not subject to review under MEPA, and do not
				involve actions on state-owned lands shall be presumed to be in compliance with
				321 CMR 10.05(1), unless the Secretary of EOEEA initiates the following review.
				The Secretary of EOEEA may initiate a review of a state action when he/she
				determines that such a state action may damage state listed species or their
				habitats. Such state actions for which the Secretary has initiated such review
				and which fulfill the consultation and review procedures described below shall
				be considered in compliance with 321 CMR 10.05(1):
1. Upon notification by the Secretary of
				EOEEA that a state action may damage state listed species or their habitats the
				affected agency shall initiate consultation with NHESP. Said agency shall
				submit to NHESP such information that is necessary for the NHESP to determine
				the location and nature of the proposed state action.
2. NHESP shall review the information
				submitted by the agency and determine if the state action is likely to result
				in damage to any state listed species or their habitats. If the NHESP
				determines that the state action is likely to damage state listed species or
				their habitats the NHESP shall provide to the agency such guidance and
				information that is necessary to allow the agency to avoid such damage. If
				NHESP determines that the state action is not likely to result in damage to
				state listed species or their habitats the NHESP shall provide a written
				opinion to the agency that such state action is in compliance with MESA and 321
				CMR 10.05(1). An agency that receives guidance and information from NHESP
				regarding the avoidance of damage to state listed species and their habitats
				shall take all practicable means and measures to modify their actions to avoid
				such damage.
3. Said agency shall
				submit to the Secretary of EOEEA and NHESP evidence that all practicable means
				and measures have been taken to avoid damage to state listed species and their
				habitats. The Secretary shall certify that the state action is in compliance
				with 321 CMR 10.05(1) if she finds that the agency has taken all practicable
				means and measures to avoid damage to state listed species and their habitats
				pursuant to the recommendations of NHESP.