Procedures

(1) Advisory Rulings. (a) Request for Advisory Ruling. Any person Owning an Interest in Real Property may, by written request to the Division at the address posted on its website by certified mail or hand delivery, request an Advisory Ruling as to: 1. whether such Person's property is located within an area regulated by St. 1992, c. 36 or 313 CMR 11.00; or 2. whether existing or proposed Structures, Uses or Activities on such Person's property are permitted under St. 1992, c. 36 or 313 CMR 11.00 by virtue of the exemptions set forth in 313 CMR 11.05. (b) Information Required. Such written request shall identify the property by street address and include: 1. a copy of the current Assessor's Map showing the location of the property or reference to the applicable Assessor's Map by sheet and parcel number; 2. a copy of (or reference to) the most recent edition of the Massachusetts Geographic Information System (MassGIS) map based on the United States Geological Survey (USGS), 1 to 25,000 scale, quadrangle maps, showing the location of the property; 3. a copy of such Owner's deed as recorded in the applicable registry of deeds; and 4. copies of any plans, mortgage inspection plans and tape surveys of the property which are available. (c) Issuance of Advisory Ruling. Within 30 days of the Date of Submission of a Request for Advisory Ruling, the Division may issue a written Advisory Ruling to the Person who submitted the request, or in its sole discretion, the Division may notify such Person that a Request for Watershed Determination of Applicability is required pursuant to 313 CMR 11.06(2). (d) Remedy. The Person to whom an Advisory Ruling is issued shall have no right to appeal such ruling, but may at such Person's election, submit a request for Watershed Determination of Applicability or an Application for Variance in accordance with 313 CMR 11.06. A Person who has not been issued an Advisory Ruling within 30 days of the Date of Submission may, at such Person's election, resubmit the request, or submit a request for Watershed Determination of Applicability or an Application for Variance in accordance with 313 CMR 11.06. (e) Authorization; limitations. Any Advisory Ruling hereunder shall be issued by the Division pursuant to and subject to the limitations of M.G.L. c. 30A, § 8. (2) Requests for Watershed Determinations of Applicability. (a) Filing. Any Person Owning an Interest in Real Property who desires a Determination as to whether or not: 1. such Person's property is located within an area regulated by St. 1992, c. 36 or 313 CMR 11.00; 2. proposed Structures, Uses or Activities on such Person's property are permitted under St. 1992, c. 36 or 313 CMR 11.00; 3. a reconstruction, extension or structural change constitutes a substantial change or enlargement or one which will degrade the quality of water under 313 CMR 11.05(2); 4. Alterations within areas described in 313 CMR 11.04(1)(a) and (b) in connection with construction permitted under 313 CMR 11.05(3) are possible; 5. the maintenance, repair or replacement activities described in 313 CMR 11.05(9), (10) or (11) will impair or materially impair the quality of the water in the Watersheds; or 6. a new municipal Sewage Treatment Facility or new municipal water system will have an adverse impact on water quality under 313 CMR 11.05(16), may submit a Request for Watershed Determination of Applicability to the Regional Director of the watershed in which such property is located. Submission for a Determination should be addressed to the appropriate Reservoir office posted on the Division’s website. Submissions are accepted via certified mail or hand delivery. (b) Land Surveyor Determination. Any request for determination under 313 CMR 11.06(2)(a)1. shall be accompanied by a written determination of a land surveyor registered with the Board of Registration of Professional Engineers and Land Surveyors of the Commonwealth as to whether such Person's real property interests are located within areas regulated by St. 1992, c. 36 or 313 CMR 11.00. (c) Related Statement. Requests for Watershed Determinations other than those in 313 CMR 11.06(2)(a)1. shall include a detailed description of the Structures, Uses and Activities which are proposed. (d) Additional Materials. All surveys and additional materials or studies required to make a determination, whether or not requested by the Division, shall be prepared and delivered at the sole cost of the Person desiring the determination. (e) Issuance of Applicability Decision. Within 60 days of the Date of Submission of such request for Watershed Determination of Applicability, the Division shall issue a written Applicability Decision to the Person who submitted such request, in form suitable for recording in the registry of deeds or registration in the registry district of the land court where the property is located (313 CMR 11.12), which shall contain a brief statement of the reasons for the Decision. If the Division fails to issue the Applicability Decision within such 60 day period, the Division shall be deemed to have: 1. concurred with the land surveyor's determination set forth in a request for Determination under 313 CMR 11.06(2)(a)1.; or 2. determined that the proposed Structures, Uses and Activities on such Person's property described in the request for Determination are permitted by St. 1992, c. 36 and 313 CMR 11.00; or 3. determined that such Structures, Uses and Activities will not impair or materially impair the quality of water in the Watersheds. (f) Appeal. A Person to whom the Division's Applicability Decision has been issued, who seeks to appeal such Decision, shall file a Notice of Claim for an Adjudicatory Proceeding with the Commissioner at the address posted on its website within 21 days from the Date of Issuance of the Decision by the Division. The procedures for appeal before the Commissioner shall be as set forth in 801 CMR 1.00: Standard Adjudicatory Rules of Practice and Procedure. At the time of filing of such Notice of Claim, a copy shall also be filed with the Division. (3) Variances (a) Variances. The Division may grant a variance from the provisions of St. 1992, c. 36 and 313 CMR 11.00 with respect to particular Structures, Uses and Activities, and shall grant, upon request, a variance with respect to crossings of Tributaries and Bordering Vegetated Wetlands, where the Division specifically finds that owing to circumstances relating to the soil conditions, slope, or topography of the land affected by such Structures, Uses or Activities, desirable relief may be granted without substantial detriment to the public good and without impairing the quality of water in the Watersheds. (b) Presumptions and Standards for Required Findings. 1. There shall be a presumption that granting a variance from the applicability of St. 1992, c. 36 and 313 CMR 11.00 to specific Structures, Uses and Activities is contrary to the achievement of the purpose of St. 1992, c. 36. This presumption may be rebutted only by the submission of credible evidence by the Person submitting the application for variance that such variance may be granted without substantial detriment to the public good and without impairment of water quality in the Watersheds. 2. The standard of substantial detriment to the public good shall mean a factual determination by the Division of the overall effect of the proposed Structure, Use or Activity at a particular location in relation to the purpose of St. 1992, c. 36. 3. The standard of impairment of water quality shall mean: a. the risk of water quality impairment presented by Structures, Uses and Activities which are permissible under all other relevant federal, state and local laws, but would not be permissible under 313 CMR 11.00 without a variance; and b. the cumulative risk of water quality impairment from all Structures, Uses and Activities allowed under current regulations over time. (c) Applications. Any Person Owning an Interest in Real Property may make an application for variance to the Division (see 313 CMR 11.12) by filing the same by certified mail or hand delivery with the Division at the address posted on its website. A copy of the application for variance shall be sent to DEP at the address specified on its website. (d) Detailed Statement. The application for variance shall include a detailed description of the Structures, Uses and Activities proposed on such Person's property. The application for variance shall include detailed information regarding each specifically enumerated factor stated in 313 CMR 11.06(3)(a). Detailed information regarding each factor shall be provided as follows: 1. Soil Conditions. A map prepared at a minimum scale of 1"=100' indicating the soil types as mapped by the USDA Natural Resources Conservation Service (“NRCS”) shall be provided. Site specific soils data, including borings, test pits and percolation tests, may be submitted including copies of all field logs, notes, observations, conclusions and test methods employed. A detailed analysis of the soil characteristics of erodibility and permeability shall be provided. Permeability should be described in terms of percolation rate measured as minutes per inch as specified in 310 CMR 15.00: The State Environmental Code, Title 5: Standard Requirements for the Siting, Construction, Inspection, Upgrade and Expansion of On-site Sewage Treatment and Disposal Systems and for the Transport and Disposal of Septage. 2. Slope. Calculations of the ground slope at all lands within the areas that would be subject to St. 1992, c. 36 if the variance were not granted shall be provided. The results of such calculations shall be presented graphically on a map prepared at a scale of 1"=100' or larger, expressed as percent slope. Where applicable, the average slope of a Tributary measured as the change in elevation divided by the distance in stream miles from the upstream point of the Tributary at or near such Person's property to the downstream point of the Tributary at or near such Person's property shall also be stated. 3. Topography. A topographical plan at a minimum scale of 1"=100' or larger showing contour elevations at two foot intervals shall be submitted. Said plan shall be prepared and stamped by a professional surveyor or engineer registered in the Commonwealth of Massachusetts and shall show the location of all areas which would be subject to St. 1992, c. 36 if the variance were not granted. The plan shall show the location of all Ground Water, soil and percolation test locations. Such topographic information as depth to the maximum annual high Ground Water table, depth to ledge or refusal, and distances from all mapped and unmapped streams, ponds and water bodies shall also be provided. 4. Water Quality. The application shall include a detailed analysis of the impacts on Surface Water and, where applicable, Ground Water quality of any proposed Structure, Use or Activity which would be allowed if the variance is granted. An evaluation of the potential impact of such proposed Structure, Use or Activity on water quality by reference to DEP’s Surface Water Quality Standards for Class A Surface Waters and Outstanding Resource Waters of the Commonwealth, set forth in 314 CMR 4.00: Massachusetts Surface Water Quality Standards, and/or where applicable, the Massachusetts Ground Water Quality Standards, set forth in 314 CMR 5.00: Ground Water Discharge Permit Program shall be provided. The application shall include the water quality data and results to support each analysis and shall provide a detailed description of any methodology employed in performing such analysis to show that water quality will not be impaired by the Structure, Use and Activity for which the variance is being requested, whether during construction or upon continued use or operation of such Structure, Use or Activity. 5. Mitigating Measures. The application shall include an analysis of any mitigating measures that will be used which would enable the Division to grant a variance without substantial detriment to the public good and without impairing the quality of water in the Watersheds. (e) Additional Materials. All surveys and additional materials or studies required to act on an application for variance, which may include an analysis of alternatives (as described in 301 CMR 11.07(4)(f), whether or not requested by the Division, shall be prepared and delivered at the sole cost of the Person submitting the application. (f) Public Hearing. Within 30 days of the Date of Submission of the application for variance with the Division, the Division shall hold a public hearing. The date, time, and place of the public hearing shall be set by the Division, and the Division shall create a notice thereof. Such notice shall be given by the person who submitted the application, at their expense, not less than five days prior to such hearing by publication in a newspaper of general circulation in the city or town where the property in question is located and by mailing a copy of such notice to the Building Inspector, Conservation Commission, and the Board of Health in such city or town. Failure by the applicant to give such notice shall result in the calculation of the 30 day notice period to re-commence from the scheduled date of the public hearing, subject to such applicant providing the required notice as outlined in 313 CMR 11.06(3)(f). At the request of the applicant, at least two days before the date of the scheduled hearing, the date of the hearing may be rescheduled to a time which is mutually convenient for the applicant and the Division, provided that such rescheduled time shall permit re-publication of notice as provided in 313 CMR 11.06(3)(f). The public hearing may be continued, with the consent of the Person who submitted the application, to a mutually agreeable date, which shall be announced at the hearing. At the public hearing, such Person may be represented by counsel and/or professional consultants and may present oral or written evidence, including the presentation of witness testimony. (g) Variance Decision. Within 30 days of the close of the public hearing, the Division shall issue a written Variance Decision on the application for variance. If the variance is granted, the Division may impose in the Variance Decision such reasonable conditions, safeguards and limitations as it may find desirable in its sole discretion, which, based on the application for variance and the evidence presented at the public hearing, are necessary to protect the water in the Watersheds. If a variance is denied, the Variance Decision shall contain a brief statement of the reasons for the denial. The granting of a variance is limited to the provisions of St. 1992, c. 36. No activity may be conducted three years after the date the Variance Decision is issued without written approval by the Division. All other applicable laws, regulations and ordinances shall not be affected by the granting of a variance. (h) Recording of Variance Decision. No variance granted hereunder shall take effect until a Variance Decision (see 313 CMR 11.12) shall have been recorded and indexed in the grantor index in the registry of deeds or registered in the registry district of the land court for the county or district where the property is located, containing any conditions applicable thereto and describing the land by metes and bounds or by reference to a recorded or registered plan showing the property's boundaries. (i) Appeal. A Person to whom a Variance Decision is issued, who seeks to appeal the Division's Variance Decision, shall file a Notice of Claim for an Adjudicatory Proceeding with the Commissioner at the address posted on its website within 21 days from the Date of Issuance of the Variance Decision by the Division. The procedures for appeal before the Commissioner shall be as set forth in 801 CMR 1.00: Standard Adjudicatory Rules of Practice and Procedure. At the time of filing of such Notice of Claim, a copy shall also be filed with the Division. (4) Exemption of a Tributary. (a) Exemption of a Tributary. The Division, in consultation with DEP, may exempt a Tributary, or portions thereof, upon a determination that such exemption will pose no significant risk to the quality of water, after taking into account the following factors: 1. rate of flow; 2. slope; 3. soil characteristics; 4. proximity to a Reservoir or the Ware River above the Ware River intake; 5. the current level of water quality; and 6. the current degree of development. (b) Presumptions and Standards for Required Findings. 1. The standard of no significant risk to the quality of water refers to: a. the risk of water quality impairment presented by Structures, Uses and Activities which are permissible under all other relevant state, federal and local laws, but would not be permissible under 313 CMR 11.00 without an exemption; and b. the cumulative risk of water quality impairment from all Structures, Uses and Activities allowed under current regulations over time. 2. There shall be a presumption that exempting a Tributary or portion thereof is contrary to the achievement of the purpose of St. 1992, c. 36. The presumption may be rebutted only by the submission of credible evidence by the Person submitting the request for Exemption to establish that such exemption will pose no significant risk to the quality of water, taking into account the factors enumerated at 313 CMR 11.06(4)(a). (c) Requests for Exemption. 1. A request for Exemption of a Tributary may be made by: a. An affected landowner; b. Any state agency or regional planning commission; c. The Board of Selectmen, City Council, Mayor, Planning Board or Conservation Commission of any city or town which would be affected by the exemption; or d. The Governor or any member of the General Court. 2. A request for Exemption of a Tributary shall be made to the Division (see 313 CMR 11.12) by filing the same by certified mail or hand delivery with the Division at the address posted on its website. A copy of the Request for Exemption of a Tributary shall be sent to DEP at the address posted on its website. (d) Detailed Statement. The request for Exemption of a Tributary shall include detailed information regarding each specifically enumerated factor listed in 313 CMR 11.06(4)(a)1. through 6. Such detailed information shall be provided based on conditions existing as of the time of the request and based on conditions which would, or may, result if such exemption were granted and if development occurred to the maximum extent and type allowed by current law. Detailed information on each factor shall be provided as follows: 1. Flow Rate. The request shall include the flow rate of the Tributary stated as the annual average daily stream flow, reported as cubic feet per second ("cfs") as measured at the downstream point of discharge for the Tributary or portion thereof, taking into account the entire contributing drainage area. Such flow rate may be based on field data collected in accordance with accepted stream flow measurement methods as established by the United States Geologic Survey, or estimated based on procedures established by the United States Geologic Survey. The request shall describe, in depth, the basis and method employed for the reported flow rate to assess full build-out scenarios. 2. Slope. The request shall state the average slope at the Tributary measured as the change in elevation divided by the distance in stream miles from its source to the downstream point of discharge. The ground slope of all lands adjacent to the Tributary within the areas that would be subject to St. 1992, c. 36 if the exemption were not granted shall be calculated and the results of such calculations shall be presented graphically on a map prepared at a scale of 1"=100' or larger, expressed as percent slope. 3. Soil Characteristics. A map prepared at a minimum scale of 1"=100' shall be submitted indicating the soil types as mapped by the NRCS. Site specific soils data supporting or contradicting the NRCS soil mapping including borings, test pits and percolation tests may be submitted including copies of all field logs, notes, observations, conclusions and test methods employed. A detailed analysis of the soil characteristics of erodibility and permeability shall be provided. Permeability should be described in terms of a percolation rate measured as minutes per inch as specified in 310 CMR 15.00: The State Environmental Code, Title 5: Standard Requirements for the Siting, Construction, Inspection, Upgrade and Expansion of On-site Sewage Treatment and Disposal Systems and for the Transport and Disposal of Septage. 4. Proximity to a Reservoir or the Ware River above the Ware River Watershed. Proximity of the Tributary proposed to be exempted to a Reservoir or the Ware River above the Ware River intake shall be indicated by reference to the Protection Zone, defined by the DEP's Division of Water Supply, Watershed Resource Protection Plan Policy, as Zone A, Zone B and Zone C. The measured distance in stream miles from the downstream discharge point of the Tributary or portion thereof in question from that Tributary's ultimate point of confluence with a Reservoir or stream miles above the Ware River intake shall be stated. 5. Water Quality. The request shall include water quality monitoring data for the Tributary consisting of, at a minimum, monthly samples for a continuous one year period at a sampling station located at or near the downstream point of discharge of the Tributary or portion thereof for which exemption is requested. Water quality data of the Division and DEP may be utilized in satisfaction of this requirement where such data is available. Minimum analysis shall include fecal coliform bacteria, color, turbidity, temperature, pH, dissolved oxygen, total suspended solids, total phosphorus, ammonia nitrogen and chloride. A detailed analysis of the water quality data with reference to DEP’s Surface Water Quality Standards for Class A Surface Waters and Outstanding Resource Waters of the Commonwealth, 314 CMR 4.00: Massachusetts Surface Water Quality Standards., shall be provided. The request shall include a detailed analysis of the impact on water quality of any potential Structures, Uses or Activities allowed if the exemption is granted. 6. Development. A general plan showing existing land use within the contributing drainage area upstream at the point of discharge of the Tributary or portion thereof shall be provided. The request shall include a calculation of the percent imperviousness of the contributing drainage area based on the existing land uses shown and shall indicate the change of percent imperviousness which may result from any Structures, Uses or Activities allowed or proposed if the exemption is granted. 7. Other Information. The request shall include a detailed description of the Structures, Uses and Activities which are or may be proposed to occur within those areas which would be subject to the Wetlands Protection Act, M.G.L. c. 131, § 40, without the exemption and shall include an analysis of any mitigating measures which will be used which would ensure that granting the exemption would present no substantial risk to the quality of water. (e) Additional Materials. All surveys and additional materials or studies required to act on a request for Exemption of a Tributary, whether or not requested by the Division, shall be prepared and delivered at the sole cost of the Person submitting the request. (f) Public Hearing. Within 30 days of the Date of Submission of the Request for Exemption of a Tributary with the Division and DEP, the Division and DEP shall hold a public hearing. The date, time, and place of the public hearing shall be set by the Division, and the Division shall create a notice thereof. Such notice shall be given by the person who submitted the application at their expense, not less than five days prior to such hearing, by publication in a newspaper of general circulation in the city or town where the property in question is located and by mailing a copy of such notice to the Building Inspector, Conservation Commission and Board of Health in such city or town. Failure by the Person who submitted the application to give such notice shall result in the calculation of the 30 day notice period to re-commence from the scheduled date of the public hearing, subject to such Person providing the required notice as outlined in 313 CMR 11.06(9)(f). At the request of the Person who submitted the request filed with the Division at least two days before the date of such hearing, the date of the hearing may be rescheduled to a time which is mutually convenient for such Person, the Division and DEP, provided that such rescheduled time shall permit re-publication of notice as provided in 313 CMR 11.06(4)(f). The public hearing may be continued, with the consent of the Person who submitted the request, to an agreed upon date, which shall be announced at the hearing. At the public hearing, such Person may be represented by counsel and/or professional consultants and may present oral or written evidence, including the presentation of witness testimony. (g) Exemption Decision. Within 60 days of the close of the public hearing, the Division shall issue a written Exemption Decision regarding the request for Exemption of a Tributary. If the exemption is granted, the Division may impose in the Exemption Decision such reasonable conditions, safeguards and limitations as it may find desirable in its sole discretion, which, based on the request for Exemption of a Tributary and the evidence presented at the public hearing, are necessary to protect the water in the Watersheds. If the exemption is denied, the Exemption Decision shall contain a brief statement of the reasons for the denial. The granting of an exemption is limited to the applicability of the Wetlands Protection Act, M.G.L. c. 131, § 40. All other applicable laws, regulations and ordinances shall not be affected by the granting of an exemption. (h) Notice of Exemption. Notice of the Exemption Decision shall be mailed to the Person who submitted the request, and to the City Council or Board of Selectmen in the city or town where the Tributary is located. Notice shall also be published once in a newspaper of general circulation in such city or town, provided, however, that a failure to publish shall not affect the validity of the Exemption Decision. A record of the Exemption Decision shall be kept on file with the Division and, if a Tributary or portion thereof is exempted, the affected area shall be shown on the most recent edition of the Massachusetts Geographic Information System Map (see 313 CMR 11.07). (i) Appeal. A Person to whom an Exemption Decision is issued, who seeks to appeal the Division's Exemption Decision, shall file a Notice of Claim for an Adjudicatory Proceeding with the Commissioner at the address posted on its website within 21 days from the Date of Issuance of the Exemption Decision by the Division. The procedures for appeal before the Commission shall be as set forth in 801 CMR 1.00: Standard Adjudicatory Rules of Practice and Procedure. At the time of filing of such Notice of Claim, a copy shall also be filed with the Division. (5) Work Pending Appeal of Applicability Decision, Variance Decision or Exemption Decision. No Alterations shall be made or Structures, Uses or Activities commenced until a final administrative or judicial determination has been made and all appeal periods shall have expired if the Division issues: (a) an Applicability Decision that the property is located in an area regulated by St. 1992, c. 36, that the Structures, Uses or Activities proposed are prohibited by St. 1992, c. 36 under 313 CMR 11.04(3), or that the Structures, Uses or Activities will impair or materially impair the quality of water in the Watersheds; or (b) a Variance Decision denying the variance requested in an application for variance; or (c) an Exemption Decision denying a request for Exemption of a Tributary. (6) Access to Property by Division. Any Person making a request for Watershed Determination of Applicability, an Application for Variance or a request for Exemption to the Division shall, upon request, allow the Division or its duly authorized representatives to inspect the property in question in order to assist the Division in the determination which is to be made. Personnel of the Division may enter, at reasonable times, any property, public or private, for the purpose of investigating or inspecting any condition relating to the discharge or possible discharge of Pollutants into the Watershed System and may make such tests as may be necessary to determine the existence and nature of such discharge as provided in M.G.L. c. 21E, § 4.