Public Notice and Participation Requirements

(1) Notice Requirements. (a) Public notice shall be issued by the Department but distributed and published by the applicant. The date of the public notice and, when required, the date of the public hearing, shall be determined by the Department. The applicant shall send a notice of license or permit application as described in 310 CMR 9.13(1)(c), by first class mail, return receipt, and provide proof of such notification to the Department, to: 1. the municipal official, the planning board, the conservation commission, and the harbormaster, if any, in the city or town where the project is located; 2. if the application is for a proposed bridge, dam or similar structure across a tidal river, cove or inlet, the municipal official, the planning board, the conservation commission, and the harbormaster of every municipality into which the tidewater of said river, cove, or inlet extends; 3. the Martha's Vineyard Commission or the Cape Cod Commission, if the project is located within an area subject to the jurisdiction of said Commission; 4. CZM, if the project is located within the coastal zone; DCR, if the project is located in an Ocean Sanctuary; and the Department of Fish and Game. 5. the Environmental Monitor for all projects exceeding M.G.L. c. 30, §§ 61 through 62H review thresholds for Waterways activities; 6. all landowners and easement holders of the project site and abutters thereto, as identified pursuant to 310 CMR 9.11(3)(b)1.; and 7. U.S. Army Corps of Engineers, New England Division. (b) At least 45 days prior to issuance of a license, or 21 days prior to issuance of a permit, the applicant shall cause, at his own expense and at the direction of the Department, notice as described in 310 CMR 9.13(1)(c)1. through 9., to be published in one or more newspapers having circulation in the area affected by the project. (c) Notice shall contain: 1. the name and address of the applicant and the applicant's representative, if any; 2. a description of the location of the project, including whether it is located in an ACEC, DPA, or an Ocean Sanctuary; 3. a description of the project including a listing of uses and the Department's determination of water-dependency; 4. for nonwater-dependent use projects, and for any water-dependent use project for which the Department decides to hold a hearing, the time, place and location of the public hearing and the date on which the public comment period ends; 5. for other water-dependent use projects, a statement that within 30 days of the notification date of a license application or within 15 days of the notification date of a permit application, written comments will be accepted, and that a public hearing may be held upon request by the municipal official; 6. the address where the application may be viewed, where a copy of the draft license conditions may be obtained if applicable, and where public comments regarding the application may be sent; 7. a statement that a municipality, ten citizen group or any aggrieved person that has submitted written comments before the close of the public comment period may appeal and that failure to submit written comments will result in the waiver of any right to an adjudicatory hearing; 8. the notification date, as defined in 310 CMR 9.02; 9. for applications submitted under 310 CMR 9.11(2)(b)2. and 4., the date that copies of the Department’s draft license conditions will be available seven days prior to the public hearing; and 10. an 8½" x 11" copy of the site plan, including a locus insert, of the project site. (d) An applicant for a license, permit or other written approval pursuant to 310 CMR 9.00 and whose project is also subject to 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 and/or 310 CMR 10.00: Wetlands Protection may provide joint public notice by appending to the notice required under 310 CMR 10.05(5): Public Hearings by Conservation Commissions or 314 CMR 9.05(3): Public Notice of an Application a statement that an application for a license, permit or other written approval pursuant to 310 CMR 9.00 is pending before the Department, provided that the joint notice contains the information required by 310 CMR 9.13(1)(c). An applicant may provide a joint public notice even if the application is not a Combined Application. (2) Participation by CZM or DCR. (a) Within the public comment period specified in 310 CMR 9.13(4), CZM may participate in license or permit proceedings for nonwater-dependent projects subject to federal consistency review identified in to 301 CMR 21.04: Activities Subject to Federal Consistency Review, when the Department requests CZM participation for nonwater- dependent projects in writing, or for other nonwater-dependent projects in the coastal zone that the Secretary has issued a final MEPA Certificate specifying that CZM shall participate in such license or permit proceedings, or when the Secretary otherwise directs CZM to participate. CZM participation is limited to those issues identified in writing to the Department in the public comment period and necessary for making a federal consistency determination, or for those nonwater-dependent projects identified by the Department in writing or by the Secretary in a final MEPA Certificate for CZM participation or when the Secretary otherwise directs CZM to participate, necessary to determine consistency with CZM Program policies. In license or permit proceedings for such projects, CZM shall submit a written statement to the Department as to whether the project is consistent with the policies of the CZM Program prior to issuance of the written determination, license, permit or draft thereof by the Department pursuant to 310 CMR 9.14 for its consideration. The Department shall presume that a project is consistent with CZM Program policies for projects other than those identified in 310 CMR 9.13(2)(a), and for those projects which CZM does not submit written comments during the public comment period. The Department will make a determination regarding the consistency of the project with the Massachusetts coastal zone program when issuing the license determination. (b) Within the public comment period specified in 310 CMR 9.13(4), DCR, for projects in an Ocean Sanctuary, may notify the Department in writing that it intends to participate in license or permit proceedings. DCR’s notice shall identify issues relevant to the Ocean Sanctuaries Act, M.G.L. c. 132A, §§ 13 through 16 and 18, and participation shall be limited to identified issues. A copy of any such notice shall be sent to the applicant. If DCR files such notice, the Department shall give DCR an opportunity to participate in all meetings between the applicant and the Department concerning issues identified in the notice. If DCR has filed a notice of participation regarding a license or permit proceeding, DCR shall prepare a written statement as to whether the project complies with M.G.L. c. 132A, §§ 13 through 16 and 18, the Ocean Sanctuaries Act, prior to issuance of the written determination, license, permit, or draft thereof by the Department pursuant to 310 CMR 9.14. The Department shall presume that a project is consistent with the Ocean Sanctuaries Act unless DCR submits a notice of its intent to participate and written comments during the public comment period. (3) Public Hearing (a) For nonwater-dependent use projects, the Department shall hold a public hearing in the city or town in which the project is located. (b) For water-dependent use projects, the municipal official in the city or town in which the project is located may, within the public comment period specified in 310 CMR 9.13(4), request that the Department conduct a public hearing on the application. If such a request is filed, a hearing shall be conducted in said municipality if reasonable arrangements for such hearing are made by the municipality. (c) The Department may conduct a public hearing on a project for which a hearing is not otherwise required. Any person requesting that the Department exercise its discretion to conduct such hearing must file a written request, including a statement of reasons, within the public comment period specified in 310 CMR 9.13(4). (d) In the event that the project requires a federal action which is subject to CZM federal consistency review under 301 CMR 21.00: Coastal Zone Management Program Federal Consistency Review Procedures and CZM determines a public hearing related to consistency certification is appropriate pursuant to 301 CMR 20.04: Consistency Review of Federal Actions with Coastal Effects, CZM and the Department may conduct a joint hearing. The Department may also conduct joint hearings on the project with the US Army Corps of Engineers. (e) The public hearing shall be noticed in accordance with 310 CMR 9.13(1), and shall be scheduled no later than 20 days after the notification date. For projects requiring an EIR, such public hearing generally will occur after issuance by the Secretary of a Certificate stating that the final EIR adequately and properly complies with M.G.L. c. 30, §§ 61 through 62H, unless otherwise deemed appropriate by the Department. (f) In the event that a project is located in more than one municipality, the Department may conduct a single public hearing in one of such municipalities. (g) For projects identified pursuant to 310 CMR 9.13(2) for participation by CZM or DCR the Department shall give CZM or DCR the opportunity to co-chair said hearing. (4) Public Comment Period and Intervention (a) If a public hearing is held, any person may submit written comments to the Department on the license or permit application within 20 days of the close of the public hearing or within any additional public comment period granted by the Department. (b) If no public hearing is held, any person may submit written comments to the Department on a license application within 30 days, or on a permit application within 15 days of the notification date or within any additional public comment period granted by the Department. (c) A municipality, ten citizen group, or any aggrieved person that has submitted written comments before the close of the public comment period specified above may appeal in accordance with 310 CMR 9.17. Failure to submit written comments will result in the waiver of any right to an adjudicatory hearing. (5) Planning Board Recommendation (a) Within 30 days of receipt of a license application for a project on tidelands and Great Ponds, the planning board of the municipality where the project is located may hold a public hearing. (b) Within 15 days of conducting said public hearing, or within 45 days of receipt of the license application if no public hearing has been conducted, the planning board shall submit a written recommendation to the Department stating whether and why said planning board believes the project: 1. would not be detrimental to the public rights in tidelands and Great Ponds; and 2. serves a proper public purpose, except in the case of water-dependent use projects entirely on private tidelands. (c) If the planning board provides a written recommendation as provided above, the Department shall take into consideration the recommendation in making its decision whether to grant a license. If the planning board fails to conduct a public hearing or submit a written recommendation as provided in 310 CMR 9.13(5)(a) and (b), the Department may proceed to make a determination whether to issue a license without the benefit of the planning board's recommendation.