Section 10.13 - Eligibility Criteria for Restoration Order of ConditionsNotwithstanding the provisions of 310 CMR 10.25 through 10.35, 10.54 through 10.58, and 10.60, an Ecological Restoration Project shall be permitted by a Restoration Order of Conditions provided that the project meets all applicable eligibility criteria in 310 CMR 10.13. Ecological Restoration Projects permitted by a Restoration Order of Conditions may result in the temporary or permanent loss of Resource Areas and/or the conversion of one Resource Area to another when such loss and/or conversion is necessary to the achievement of the project's ecological restoration goals.
(1) An Ecological Restoration Project shall be permitted by a Restoration Order of Conditions if it meets all of the following eligibility criteria: (a) The project is an Ecological Restoration Project as defined in 310 CMR 10.04, is a project type listed in 310 CMR 10.13(2) through (7), and the applicant has submitted a Notice of Intent that meets all applicable requirements of 310 CMR 10.12.(b) The project will further at least one of the interests identified in M.G.L. c. 131, § 40.(c) The project will not have any short-term or long-term adverse effect, as identified by the procedures established by 310 CMR 10.11, on specified habitat sites of Rare Species located within the Resource Areas that may be affected by the project or will be carried out in accordance with a habitat management plan that has been approved in writing by the Natural Heritage and Endangered Species Program and submitted with the Notice of Intent.(d) To the maximum extent practicable, the project will: 1. avoid adverse impacts to Resource Areas and the interests identified in M.G.L. c. 131, § 40, that can be avoided without impeding the achievement of the project's ecological restoration goals;2. minimize adverse impacts to Resource Areas and the interests identified in M.G.L. c. 131, § 40, that are necessary to the achievement of the project's ecological restoration goals; and3. utilize best management practices such as erosion and siltation controls and proper construction sequencing to prevent and minimize adverse construction impacts to Resource Areas and the interests identified in M.G.L. c. 131, § 40(e) The project will not have significant adverse effects on the interests of flood control and storm damage prevention in relation to the built environment (i.e., the project will not result in a significant increase in flooding or storm damage affecting buildings, wells, septic systems, roads or other human-made structures or infrastructure).(f) If the project will involve the dredging of 100 cubic yards of sediment or more or dredging of any amount in an Outstanding Resource Water, the Notice of Intent includes a Water Quality Certification issued by the Department in accordance with 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.(g) The project will not substantially reduce the capacity of a Resource Area to serve the habitat functions identified in 310 CMR 10.60(2). A project will be presumed to meet this eligibility criteria if the project as proposed in the Notice of Intent will be carried out in accordance with any time of year restrictions or other conditions recommended by the Division of Marine Fisheries for coastal waters, and by the Division of Fisheries and Wildlife for inland waters in accordance with 310 CMR 10.11(3) through (5). As set forth in 310 CMR 10.12(3), a person submitting a Notice of Intent for an Ecological Restoration Project that meets the requirements of 310 CMR 10.12(1) and (2) is exempt from the requirement to perform a wildlife habitat evaluation in accordance with 310 CMR 10.60. (h) If the Ecological Restoration Project involves work on a stream crossing, the stream crossing has been designed in accordance with 310 CMR 10.24(10) for work in coastal resource areas and 310 CMR 10.53(8) for work in inland resource areas, as applicable.(i) The Ecological Restoration Project will not result in a discharge of dredged or fill material within 400 feet of the high water mark of a Class A surface water (exclusive of its tributaries unless the project is conducted by a public water system under 310 CMR 22.00: Drinking Water or a public agency or authority for the maintenance or repair of existing public roads or railways in accordance with 314 CMR 4.06(1)(d)1. (j) The Ecological Restoration Project will not result in a discharge of dredged or fill material to a vernal pool certified by the Division of Fisheries and Wildlife. (k) The Ecological Restoration Project will not result in a point source discharge to an Outstanding Resource Water. (l) The Ecological Restoration Project will not involve the armoring of a Coastal Dune or Barrier Beach.(2)Additional Eligibility Criteria for Dam Removal Projects. If the Ecological Restoration Project is a dam removal project, the project shall be presumed to meet the eligibility criteria set forth in 310 CMR 10.13(1)(d), if the project is consistent with the Department's guidance entitled Dam Removal and the Wetlands Regulations, dated December 2007. If the Ecological Restoration Project is a dam removal project, the Ecological Restoration Project shall be approved by a Restoration Order of Conditions, provided that in addition to the eligibility criteria set forth in 310 CMR 10.13(1), the project meets all of the following eligibility criteria: (a) The project will not involve the removal of a dam that was constructed or is managed for flood control by a municipal, state or federal agency(b) The project will not adversely impact public water supply wells or water withdrawals permitted or registered under the Water Management Act, M.G.L. c. 21G, and 310 CMR 36.00: Massachusetts Water Resources Management Program within the reach of the stream impacted by the impoundment.(c) The project will not adversely impact private water supply wells including agricultural or aquacultural wells or surface water withdrawal points.(d) The project provides for the removal of the full vertical extent of the dam such that no remnant of the dam will remain at or below the streambed as determined prior to commencement of the dam removal project, or if such determination cannot be made at that time, as determined during construction of the project.(e) The project provides for the removal of enough of the horizontal extent of the dam such that after removal no water will be impounded during the 500 year flood event.(f) The project will not involve a hydroelectric facility requiring a Federal Energy Regulatory Commission (FERC) license or an amendment to a FERC license.(g) The applicant has obtained from the Department of Conservation and Recreation Office of Dam Safety a written determination that the dam is not subject to the jurisdiction of the Office under 302 CMR 10.00: Dam Safety, a written determination that the dam removal does not require a permit under 302 CMR 10.00: Dam Safety or a permit authorizing the dam removal in accordance with 302 CMR 10.00: Dam Safety has been issued.(h) If the project is exempt from the requirement to obtain a license or permit under 310 CMR 9.05(3)(n), the project will not have an adverse effect on navigation or on any docks, piers or boat ramps authorized under 310 CMR 9.00: Waterways.(3)Additional Eligibility Criteria for Freshwater Stream Crossing Repair and Replacement Projects. If the Ecological Restoration Project is a freshwater stream crossing repair or replacement project, the Ecological Restoration Project shall be approved by a Restoration Order of Conditions, provided that in addition to the eligibility criteria set forth in 310 CMR 10.13(1), the project meets all of the following eligibility criteria: (a) The width of the structure will be at least 1.2 times bankfull width to facilitate the movement of fish and other aquatic organisms and wildlife species that may utilize riparian corridors.(b) The structure will be an open-bottom span where practicable or if an open-bottom span is not practicable, the structure bottom will be embedded in a substrate that matches the substrate of the stream channel and that shall be designed to maintain continuity of aquatic and benthic elements of the stream including appropriate substrates and hydraulic characteristics within the culvert (water depths, turbulence, velocities, and flow patterns).(c) The structure will have an Openness Ratio of at least 0.82 feet, or as close to 0.82 feet as is practicable.(4)Additional Eligibility Criteria for Stream Daylighting Projects. If the Ecological Restoration Project is a stream daylighting project, the Ecological Restoration Project shall be approved by a Restoration Order of Conditions, provided that in addition to the eligibility criteria set forth in 310 CMR 10.13(1), the project meets all of the following eligibility criteria: (a) The project will meet the applicable performance standards for Bank, 310 CMR 10.54, and Land under Water Bodies and Waterways, 310 CMR 10.56. As set forth in 310 CMR 10.12(3), a person submitting a Notice of Intent that meets the requirements of 310 CMR 10.12(1) and (2) for a stream daylighting project is exempt from the requirement to perform a wildlife habitat evaluation in accordance with 310 CMR 10.60, notwithstanding the provisions of 310 CMR10.54(4)(a)5., 10.56(4)(a)4., and 10.60.(b) To the maximum extent practicable, the project is designed to include the revegetation of all disturbed areas with noninvasive indigenous species appropriate to the site.(5)Additional Eligibility Criteria for Tidal Restoration Projects. If the Ecological Restoration Project is a Tidal Restoration Project designed to restore tidal flow that has been restricted or blocked by a man-made structure, the Ecological Restoration Project shall be approved by a Restoration Order of Conditions, provided that in addition to the eligibility criteria set forth in 310 CMR 10.13(1), the project meets all of the following eligibility criteria: (a) If the project will involve work in a Coastal Dune and/or a Coastal Beach, the project meets the applicable performance standard(s) at 310 CMR 10.27 and/or 10.28.(b) The project will not include a new or relocated tidal inlet/breach through a Barrier Beach or additional armoring of a Barrier Beach, but may include the modification, replacement or enlargement of an existing culvert or inlet through a Barrier Beach.(c) The project will not involve installation of new water control devices (i.e., tide gates, flash boards and adjustable weirs) or a change in the management of existing water control devices, when the existing or proposed function of said devices is to prevent flooding or storm damage impacts to the built environment, including without limitation, buildings, wells, septic systems, roads or other human-made structures or infrastructure.(d) The project's physical specifications are compatible with passage requirements for diadromous fish runs identified at the project location by the Division of Marine Fisheries.(6)Additional Eligibility Criteria for Rare Species Habitat Restoration. If the Ecological Restoration Project is a Rare Species habitat restoration project, the Ecological Restoration Project shall be approved by a Restoration Order of Conditions, provided that in addition to the eligibility criteria set forth in 310 CMR 10.13(1), the project meets all of the following eligibility criteria:(a) The project is exempt from review under 321 CMR 10.00: Massachusetts Endangered Species Act Regulations as a project that involves the active management of Rare Species habitat for the purpose of maintaining or enhancing the habitat for the benefit of Rare Species. A project that involves the active management of Rare Species habitat and is exempt from review under 321 CMR 10.00: Massachusetts Endangered Species Act Regulations may include without limitation the mowing, cutting, burning or pruning of vegetation or the removal of exotic or invasive species.(b) The project is carried out in accordance with a Habitat Management Plan that has been approved in writing by the Natural Heritage and Endangered Species Program and submitted with the Notice of Intent.(7)Additional Eligibility Criteria for Restoring Fish Passageways. If the Ecological Restoration Project involves the restoration or repair of a fish passageway as identified by the Division of Marine Fisheries in its Marine Fisheries Technical Reports, TR 15 through 18, dated 2004, the Ecological Restoration Project shall be approved by a Restoration Order of Conditions, provided that in addition to the eligibility criteria set forth in 310 CMR 10.13(1), the applicant has submitted a Fishway Permit Application to the Division of Marine Fisheries, pursuant to M.G.L. c. 130, §§ 1 and 19, and 322 CMR 7.01(4)(f) and (14)(m), and the fish passageway will be operated and maintained in accordance with an Operation and Maintenance Plan approved by the Division of Marine Fisheries.Adopted by Mass Register Issue 1272, eff. 10/24/2014.