Code of Massachusetts Regulations › 310 CMR - DEPARTMENT OF ENVIRONMENTAL PROTECTION › Title 310 CMR 10.00 - Wetlands Protection › Additional Regulations for Coastal Wetlands › Section 10.37 - Estimated Habitats of Rare Wildlife (for Coastal Wetlands)

Current through Register 1525, July 5, 2024
If a project is within estimated habitat which is indicated
				  on the most recent Estimated Habitat Map of State-listed Rare Wetlands Wildlife
				  (if any) published by the Natural Heritage and Endangered Species Program
				  (hereinafter referred to as the Program), a fully completed copy of the Notice
				  of Intent (including all plans, reports, and other materials required under
				  310 CMR 10.05(4)(a) and
				  (b) ) for such project shall be sent to the
				  Program via the U.S. Postal Service by express or priority mail (or otherwise
				  sent in a manner that guarantees delivery within two days). Such copy shall be
				  sent no later than the date of the filing of the Notice of Intent with the
				  issuing authority. Proof of timely mailing or other delivery to the Program of
				  the copy of such Notice of Intent shall be included in the Notice of Intent
				  which is submitted to the issuing authority and sent to the Department's
				  regional office.
Estimated Habitat Maps shall be based on the estimated
				  geographical extent of the habitats of all state-listed vertebrate and
				  invertebrate animal species for which a reported occurrence within the last 25
				  years has been accepted by the Program and incorporated into its official data
				  base.
Within 30 days of the filing of such a Notice of Intent with
				  the issuing authority, the Program shall determine whether any state-listed
				  species identified on the aforementioned map are likely to continue to be
				  located on or near the site of the original occurrence and, if so, whether the
				  area to be altered by the proposed project is in fact part of such species'
				  habitat. Such determination shall be presumed by the issuing authority to be
				  correct. Any proposed project which would alter a resource area that is not
				  located on the most recent Estimated Habitat Map (if any) provided to the
				  conservation commission, shall be presumed not to be within a rare species'
				  habitat. Both of these presumptions are rebuttable and may be overcome upon a
				  clear showing to the contrary. If the issuing authority fails to receive a
				  response from the Program within 30 days of the filing of such a Notice of
				  Intent, a copy of which was received by the Program in a timely manner, it
				  shall issue its Order of Conditions based on available information; however,
				  the fact that a proposed project would alter a resource area that is located on
				  an Estimated Habitat Map shall not be considered sufficient evidence in itself
				  that such project is in fact within the habitat of a rare species.
If the Program determines that a resource area which would be
				  altered by a proposed project is in fact within the habitat of a state-listed
				  species, it shall provide in writing to the applicant and to the Conservation
				  Commission and the Department, the identification of the species whose habitat
				  would be altered by the proposed project, and all other relevant information
				  which the Program has regarding the species' location and habitat requirements,
				  insofar as such information may assist the applicant and the issuing authority
				  to determine whether the project is or can be designed so as to meet the
				  performance standard set in 310 CMR 10.37.
Notwithstanding
				  310 CMR 10.24(7)
				   and
				  10.25 and
				  10.27 through
				  10.35,
				  if a proposed project is found by the issuing authority to alter a resource
				  area which is part of the habitat of a state-listed species, such project shall
				  not be permitted to have any short or long term adverse effects on the habitat
				  of the local population of that species. A determination of whether or not a
				  proposed project will have such an adverse effect shall be made by the issuing
				  authority. However, a written opinion of the Program on whether or not a
				  proposed project will have such an adverse effect shall be presumed by the
				  issuing authority to be correct. This presumption is rebuttable and may be
				  overcome upon a clear showing to the contrary.
The conservation commission shall not issue an Order of
				  Conditions under
				  310 CMR 10.05(6)
				   regarding any such project for at least 30
				  days after the filing of the Notice of Intent, unless the Program before such
				  time period has elapsed has either determined that the resource area(s) which
				  would be altered by the project is not in fact within the habitat of a
				  state-listed species or, if it has determined that such resource area(s) is in
				  fact within rare species habitat, rendered a written opinion as to whether the
				  project will have an adverse effect on that habitat.
Notwithstanding any other provision of 310 CMR 10.37, should
				  an Environmental Impact Report be required for a proposed project under the
				  M.G.L. c. 60, §§ 6 through 62H, as determined by
				  301 CMR
				  11.00: MEPA Regulations the performance standard
				  established under 310 CMR 10.37 shall only apply to proposed projects which
				  would alter the habitat of a rare species for which an occurrence has been
				  entered into the official data base of the Massachusetts Natural Heritage and
				  Endangered Species Program prior to the time that the Secretary of the
				  Executive Office of Energy and Environmental Affairs has determined, in
				  accordance with the provisions of
				  301 CMR
				  11.09(4), that a final
				  Environmental Impact Report for that project adequately and properly complies
				  with the M.G.L. c. 30, §§ 6 through 62H (unless, subsequent to that
				  determination, the Secretary requires supplemental information concerning
				  state-listed species, in accordance with the provisions of
				  301 CMR 11.17:
				  Transition Rules).