Coldwater Fish Resource, Minimization, and Mitigation Planning Requirements

(1) The plans described at 310 CMR 36.22(4) through (7), including a timetable for implementation, shall be submitted for review and written approval by the Department as part of an application for a new or renewed permit as required by 310 CMR 36.21. 310 CMR 36.22(4) through (7) specify the minimum requirements for each component. (2) The Department may, in consultation with the EOEEA agencies, specify additional or alternative requirements to address cumulative impacts of tier 2 and tier 3 withdrawals in a water source. (3) All required planning components may be combined in a single written plan. (4) Coldwater Fish Resource Optimization Review: An applicant with a withdrawal point(s) impacting a coldwater fish resource(s) shall, after consultation with the Department and EOEEA agencies, submit an evaluation of options for shifting withdrawals to the applicant’s other withdrawal points, if any, to minimize impacts at the coldwater fish resource. (5) Minimization Plan: A groundwater applicant with a withdrawal point(s) in a subbasin(s) having August net groundwater depletion of 25% or greater shall submit a plan to minimize the impacts of the withdrawals to the greatest extent feasible, including but not limited to: (a) minimizing depletion of groundwater during the late summer bioperiod (July-September) by optimizing use of the applicant’s withdrawal points located in subbasins that are less groundwater depleted, if any, or by use of any feasible alternative source(s) or interconnection(s); (b) releasing water from surface water supply impoundments and other measures that return water to the subbasin or water source to improve streamflow taking into consideration the ability of the applicant to meet demand; (c) adopting restrictions on nonessential outdoor water use more stringent than those required by the permit conditions described at 310 CMR 36.28(4)(c)4.; (d) adopting water conservation measures, consistent with health and safety, more stringent than those required by the permit conditions described at 310 CMR 36.28(4)(c)1., 2., and 3; (e) adopting agricultural, horticultural or industry-specific best management practices as applicable. (6) Mitigation Plan for Tier 2: A tier 2 applicant shall submit a plan to mitigate the withdrawal above baseline that must be offset, as determined at 310 CMR 36.21(3)(b) or (4)(b), to the greatest extent feasible, as follows: (a) First, the applicant shall evaluate direct mitigation activities that can be volumetrically quantified and compared to the applicant’s mitigation volume including, but not limited to: 1. releases from any surface water impoundments that enhance downstream flows; 2. activities that return stormwater to groundwater, including but not limited to, physically disconnecting or removing impervious areas directly connected to surface water; 3. activities that physically return wastewater to groundwater; 4. improvements to wastewater conveyance systems that reduce infiltration and inflow; and 5. activities or releases that will offset impacts to coldwater fish resources as applicable. (b) If the applicant cannot achieve all the mitigation required through direct mitigation, then the applicant must evaluate indirect mitigation activities that will improve fluvial habitat, but which cannot be volumetrically quantified including, but not limited to: 1. culvert repair/replacement to meet stream crossing standards; 2. removal of a dam or flow barrier; 3. fish passage improvement; 4. streambank restoration; 5. stream channel restoration; 6. streamside buffer restoration; 7. habitat restoration; 8. development and implementation of stormwater bylaw with recharge requirements; 9. development and implementation of a stormwater utility; 10. implementation of MS4 requirements; and 11. development and implementation of low impact development bylaws. (c) The proximity of the proposed mitigation to the withdrawal point(s) and the net groundwater depletion of the receiving subbasin(s) will be considered by the Department in determining the equivalence of mitigation measures to withdrawal impacts. (d) Mitigation measures implemented since 2005 that the applicant demonstrates will mitigate the impact of the proposed withdrawal may be credited toward an applicant’s mitigation obligation. (7) Alternative Demonstration and Mitigation Plan for Tier 3. (a) A tier 3 groundwater applicant shall demonstrate that there is no feasible alternative source that is less environmentally harmful than the withdrawal point(s) identified in the application. In order to make this demonstration, the applicant must show that: 1. all alternative groundwater sources are in subbasins in groundwater withdrawal category 4 or 5; or 2. taking additional withdrawals from an alternative groundwater source would result in an adverse change to that source’s subbasin’s biological category, groundwater withdrawal category or seasonal groundwater withdrawal category; and 3. taking additional withdrawals from an alternative surface water supply source would result in unacceptable streamflow impacts or affect the permittee’s ability to meet demonstrated water needs. In determining whether an alternative surface water supply source is a feasible alternative, the Department may consider reservoir release plans, downstream flow impacts and other operational considerations on a case-by-case basis. (b) If a tier 3 groundwater applicant demonstrates there is no feasible alternative source that is less environmentally harmful, then the applicant shall submit a plan for mitigation commensurate with the impact of their additional withdrawal as described in 310 CMR 36.22(6). The Department shall consider the adverse change in the subbasin’s biological category, groundwater withdrawal category or seasonal groundwater withdrawal category in determining the scope of commensurate mitigation. If the applicant is unable to provide commensurate mitigation through direct mitigation and demand management, the Department shall require the applicant to provide a higher ratio of indirect mitigation when feasible. (c) The proximity of the proposed mitigation to the withdrawal point(s) and the net groundwater depletion of the receiving subbasin(s) will be considered by the Department in determining the equivalence of mitigation measures to withdrawal impacts. (d) Mitigation measures implemented since 2005 that the applicant demonstrates will mitigate the impact of the proposed withdrawal may be credited toward an applicant’s mitigation obligation. (8) Implementation Timetable: An implementation timetable shall be submitted as part of any coldwater fish resource, minimization, and mitigation plan. (a) An applicant may phase the implementation of the mitigation plan, provided that the measures associated with specific increases in withdrawals are implemented prior to those increases. (b) If demonstrated water needs exceed the baseline prior to issuance of the permit, an applicant may request additional time during the first five years of a permit to implement the mitigation plans. (9) The fact than an activity fulfills one or more of the permittee’s obligations under another regulatory program shall not preclude such activity from receiving mitigation credit in water management permitting, provided such activities meet the objectives of 310 CMR 36.22. (10) The final plan(s) as approved by the Department will be included as a condition of any permit issued by the Department authorizing the requested withdrawal.