Designation of Nitrogen Sensitive Areas

(1) The following areas have been determined by the Department to be particularly sensitive to the discharge of pollutants from on-site sewage disposal systems and are therefore designated Nitrogen Sensitive Areas: (a) Public and Private Water Supply Protection Areas: 1. Department-approved Zone IIs for wells or wellfields used by public water systems as defined in 310 CMR 22.02 and, in the absence of a Department-approved Zone II, the Interim Wellhead Protection Area (IWPA) for a public water system’s well or wellfield as defined in 310 CMR 22.02; and 2. Any areas where the use of both on-site systems and wells that are not regulated as public water supplies under 310 CMR 22.00: Drinking Water serve facilities. (b) Natural Resource Areas: 1. any watershed to an embayment or sub-embayment that on July 7, 2023 is the subject of a nitrogen Total Maximum Daily Load (TMDL) approved by the EPA and an Area Wide Water Quality Management Plan approved by the EPA for Cape Cod in 2015 pursuant to Section 208 of the Federal Clean Water Act, 33 U.S.C. § 1251 et. Seq. (“208 Plan”), addressing nitrogen pollution. For any such watershed that is subject to an approved nitrogen TMDL and an approved 208 Plan as of July 7, 2023, the effective date of designation is July 7, 2023. A Nitrogen Sensitive Area designation for watersheds subject to the 208 Plan that receive an EPA-approved TMDL after July 7, 2023 becomes effective on the date EPA approves the TMDL. 2. any watershed to an embayment or sub-embayment subject to the 208 Plan as of July 7, 2023 that the Department designates as a Nitrogen Sensitive Area after a public review process based on: a. a Massachusetts Estuary Project Report demonstrating nitrogen impacts; or b. a Scientific Evaluation demonstrating nitrogen impacts. Nitrogen impacts include, but are not limited to: nitrogen related eutrophication; nitrogen related adverse ecological and habitat impacts; nitrogen concentrations that would cause or contribute to impairment of existing or designated uses pursuant to 314 CMR 4.00: Massachusetts Surface Water Quality Standards; or nitrogen concentrations that exceed site-specific criteria developed by the Department pursuant to 314 CMR 4.00: Massachusetts Surface Water Quality Standards. The Department may accept a Scientific Evaluation commenced prior to July 7, 2023. If the Scientific Evaluation will not be conducted by or on behalf of the Department, a scope of work for the proposed Scientific Evaluation shall be submitted to the Department for its review and approval before the evaluation commences, by: i. submitting a draft scope of work for the Scientific Evaluation in accordance with the Department's guidelines; ii. within 21 days of submitting the draft scope of work to the Department, placing a public notice in the Environmental Monitor that the draft scope of work has been submitted to the Department for review and approval; iii. conducting a joint pre-scoping meeting with the Department and appropriate representatives of the municipalities within the evaluation area to discuss the proposed scope of work and set a timeline for routine update meetings; and iv. submitting to the Department a copy of the public notice published in the Environmental Monitor; a proposed final scope of work for Department review; and a proposed plan and website to provide periodic informational updates regarding the Scientific Evaluation process to the community(ies) that may be affected. (2) A public review process shall precede a final Nitrogen Sensitive Area designation pursuant to 310 CMR 15.214(1)(b)2. and shall include, at a minimum, the following: (a) Public Notice. The Department shall provide public notice of its intent to formally designate the Nitrogen Sensitive Area. Public notice shall afford a public comment period of at least 60 days after the date of publication in the Environmental Monitor. The Department may elect to extend the public comment period. If the Department provides such an extension, the Department shall post notice thereof on the Department’s website and provide electronic copies of the notice to anyone who requests it. (b) The Department shall publish public notice of the intended designation in the Environmental Monitor and in a local or regional newspaper with the largest readership distribution both online and in hardcopy, if hardcopy exists, within the area that may be affected by the designation. The Department will request that notice be published in the local town or city hall and on the website of the community or communities that may be affected. The Department will also post notice on the Department’s webpage. In municipalities with Environmental Justice Populations where the preceding method for publishing public notice does not specifically serve the Environmental Justice Population(s), public notice shall be provided by the Department to at least one additional news organization that primarily serves the Environmental Justice Population(s) within the area that may be affected by the designation. The public notice shall be translated into other languages that are prevalent in areas with persons of limited English proficiency. (c) The Department shall send a copy of the public notice to the chief municipal elected official and the Board of Health of any municipality that may be affected by the intended designation. (d) The public notice shall contain the following minimum information and any additional information the Department deems appropriate: 1. identification of the watershed or sub-watershed to be addressed by the intended designation; 2. a link to a website that includes a detailed factual and scientific basis and regulatory rationale explaining how the watershed satisfies the criteria for the intended designation under 310 CMR 15.214(1)(b)2.; and 3. the time within which the public may comment or request a public hearing. (e) Public Hearings. If the Department determines a public hearing to be in the public interest, then the Department shall schedule and conduct such hearing in a community within the area that may be affected by the designation. Public notice of the public hearing shall be published in the same manner as the public notice for the public comment period. When a public hearing is held, the public comment period shall be extended to the conclusion of the public hearing or such later date as may be established by the Department. (f) Determination. After the conclusion of the public comment period, the Department may issue or deny a final designation, which will be published on the Department’s website. The effective date of the designation shall be the date of issuance and the requirements of 310 CMR 15.215 take effect upon that date. (g) Appeals. Any person aggrieved by a Department final determination to designate a Nitrogen Sensitive Area pursuant to 310 CMR 15.214(1)(b)2.a. or b. and who also participated in the public comment period or public hearing may request an adjudicatory hearing in accordance with 310 CMR 1.00: Adjudicatory Proceedings and M.G.L. c. 30A within 21 days of the designation’s issuance but only with respect to whether there is a sufficient factual or scientific basis for the Nitrogen Sensitive Area designation under 310 CMR 15.214(1)(b)2.a. or b. Participating in the public comment period or public hearing means verbally commenting during the public hearing or submitting written information to the Department prior to close of the public comment period.