Criteria for the Evaluation of Applications for Discharge of Dredged or Fill Material

(1) No discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge that would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences. (a) Where the activity associated with the discharge does not require access or proximity to or siting within wetlands and waters to fulfill its basic purpose (i.e., is not "water dependent"), practicable alternatives that do not involve the discharge of dredged or fill material are presumed to be available, unless clearly demonstrated otherwise. In addition, all practicable alternatives to the proposed activity, which do not involve a discharge, are presumed to have less adverse impact on the aquatic ecosystem unless clearly demonstrated otherwise. (b) The scope of alternatives to be considered shall be commensurate with the scale and purpose of the proposed activity, the impacts of the proposed activity, and the classification, designation and existing uses of the affected wetlands and waters in the Surface Water Quality Standards at 314 CMR 4.00: Massachusetts Surface Water Quality Standards. 1. For activities associated with access for one dwelling unit, the area under consideration for practicable alternatives will be limited to the lot. For activities associated with the creation of a real estate subdivision, the area under consideration will be limited to the subdivided lots and any adjacent lots the applicant formerly owned, presently owns, or can reasonably obtain an ownership interest. 2. For any activity resulting in the loss of more than one acre cumulatively of bordering and isolated vegetated wetlands and land under water, alternative sites not presently owned by the applicant which could reasonably be obtained, utilized, expanded or managed will be considered by the Department, but only if such information is required in an Environmental Impact Report or in an alternatives analysis conducted by the Corps of Engineers for an individuals 404 permit. (c) For discharges of dredged or fill material associated with an Ecological Restoration Project, the alternatives analysis shall include a consideration of the following: 1. Any time of year restrictions or other conditions recommended by the Division of Marine Fisheries for coastal waters and the Division of Fisheries and Wildlife for inland waters. 2. The condition of the existing ecosystem and the wetlands and waters contained therein. 3. The magnitude and significance of the benefits of the Ecological Restoration Project in improving the capacity of the affected ecosystem and the waters and wetlands contained therein to sustain their designated uses, as identified in 314 CMR 4.00: Massachusetts Surface Water Quality Standards. 9.06: continued 4. The magnitude and significance of the impacts of the Ecological Restoration Project on the existing ecosystem and the wetlands and waters contained therein and the extent to which the applicant will: a. avoid adverse impacts to the existing ecosystem that can be avoided without impeding the achievement of the project's ecological restoration goals; b. minimize adverse impacts to the existing ecosystem that are necessary to the achievement of the project's ecological restoration goals; and c. utilize best management practices such as erosion and siltation controls and proper construction sequencing to avoid and minimize adverse construction impacts to the existing ecosystem and the waters and wetlands contained therein. (2) No discharge of dredged or fill material shall be permitted unless appropriate and practicable steps have been taken which will avoid and minimize potential adverse impacts to the bordering or isolated vegetated wetlands, land under water or ocean, or the intertidal zone. However, no such project may be permitted which will have any adverse effect on specified habitat sites of Rare Species. (a) For discharges to bordering or isolated vegetated wetlands, such steps shall include a minimum of 1:1 restoration or replication. The Department may waive the requirement for 1:1 restoration or replication for Ecological Restoration Projects and for maintenance or repair (but not replacement, reconstruction, or substantial enlargement) of existing and lawfully located dams. (b) An applicant proposing a discharge of dredged or fill material in connection with the construction, repair, replacement or expansion of a stream crossing shall be presumed to be taking appropriate and practicable steps to avoid and minimize potential adverse impacts to the bordering or isolated vegetated wetlands, land under water or ocean or the intertidal zone provided that: 1. The applicant demonstrates to the satisfaction of the Department that he or she has developed and will implement an operation and maintenance plan to ensure that the crossing will function as designed; 2. If the project includes the construction of a new non-tidal crossing, the applicant demonstrates to the satisfaction of the Department that the crossing complies with the Massachusetts Stream Crossing Standards; 3. If the project includes the construction of a new tidal crossing, the applicant demonstrates to the satisfaction of the Department that the project is designed in a manner that does not restrict tidal flow over the full natural tidal range; 4. If the project includes work on an existing non-tidal crossing, the applicant demonstrates to the satisfaction of the Department that the crossing complies with the Massachusetts Stream Crossing Standards to the maximum extent practicable; and 5. If the project includes work on an existing tidal crossing that restricts tidal flow, the applicant demonstrates to the satisfaction of the Department that tidal restriction will be eliminated to the maximum extent practicable. This presumption may be overcome by credible evidence from a competent source showing that based on site considerations, impact on the resource, or cost considerations, compliance with all applicable provisions of 314 CMR 9.06(2)(b)1. through 5. is not practicable. (3) Except as otherwise provided in 314 CMR 9.06(3), no discharge of dredged or fill material shall be permitted to Outstanding Resource Waters. The discharge of dredged or fill material to an Outstanding Resource Water in association with an activity listed in 314 CMR 9.06(3)(a) through (k) may be permitted without requiring the applicant to obtain a variance in accordance with 314 CMR 9.08 provided that the Department determines that the discharge of dredged or fill material may be permitted in accordance with 314 CMR 9.06(1), (2), (4), (5), and (7), and is not identified in 314 CMR 9.06(4) as a discharge of dredged or fill material that requires a variance. (a) Projects conducted or approved by public or private water suppliers in the performance of their responsibilities and duties to protect the quality of the water in the watersheds, or to maintain, operate and improve the waterworks system, provided that such projects are implemented in accordance with applicable federal and state laws, regulations, and requirements; (b) Ecological Restoration Projects; 9.06: continued (c) Maintenance, repair, replacement or reconstruction but not substantial enlargement of existing and lawfully located structures or facilities including buildings, roads, railways, utilities, dams, and coastal engineering structures; (d) Where the designation was for public water supply purposes, activities subject to the comprehensive public water supply protection program enacted by the legislature for the Ware, Quabbin, and Wachusett watersheds in the Watershed Protection Act, St. 1992 c. 36 and M.G.L. c. 92. Any activity for which an applicant has been granted a variance by the Department of Conservation and Recreation pursuant to 350 CMR 11.06(3): Variances or for a discharge of dredged or fill material into a tributary that the Department of Conservation and Recreation has exempted pursuant to 350 CMR 11.06(4): Exemption of a Tributary. A span or other bridging technique shall be presumed to be a practicable alternative. This presumption may be overcome by credible evidence from a competent source. The Department will consult with the Department of Conservation and Recreation in reviewing the alternatives. (e) Access for the construction of dwelling units and associated utilities: 1. For the loss of more than 5,000 square feet cumulatively of bordering and isolated vegetated wetland and land under water for access to any number of dwelling units, a span or other bridging technique is presumed to be practicable. 2. For the loss of less than 5,000 square feet cumulatively of bordering and isolated vegetated wetland and land under water for access to any number of dwelling units, an embedded culvert, span or other bridging technique is presumed to be practicable. These presumptions may be overcome upon a showing of credible evidence from a competent source that based on site considerations, impact on the resource, or cost considerations, a span or other bridging technique is or is not practicable. (f) Construction of utilities, public or private roadways or other access except as specified in 314 CMR 9.06(3)(e), railroad track and rail beds and facilities directly related to their operation. These activities require use of a span or other bridging technique, unless the Department determines, based on information contained in a Department 401 alternatives analysis, a Corps of Engineers Section 404 alternatives analysis, or an Environmental Impact Report and the Secretary's certificate, that this alternative is not practicable, would not have less adverse impact on the aquatic ecosystem, or would have other significant adverse environmental consequences. (g) Operations to clean up, prevent, assess, monitor, contain, or mitigate releases of hazardous materials or wastes, including landfill closures and activities undertaken in accordance with M.G.L. c. 21E and 310 CMR 40.0000: Massachusetts Contingency Plan. (h) Projects which have received a variance under 310 CMR 10.05(10): Variance provided that consideration has been given to the Outstanding Resource Water designation in the variance analysis. (i) Access to land in agricultural or aquacultural use, of a nature suitable to the use as defined in 310 CMR 10.04: Definitions. (j) Operations to clean up, prevent, assess, monitor, contain, or mitigate releases of oil or hazardous materials or wastes, including landfill closures under M.G.L. c. 111, § 150A through 150A½ and 310 CMR 16.00: Site Assignment Regulations for Solid Waste Facilities and 19.000: Solid Waste Management and activities undertaken in accordance with M.G.L. c. 21E and 310 CMR 40.0000: Massachusetts Contingency Plan. (k) Maintenance, repair, replacement, or reconstruction of structures or facilities for water- dependent uses. In addition, the enlargement of structures or facilities for water-dependent uses is allowed only in following limited circumstances: 1. in an Outstanding Resource Water that is designated for purposes other than a public water supply; or 2. in an Outstanding Resource Water that is located within an Area of Critical Environmental Concern provided that if there is a resource management plan for the ACEC that has been adopted by the municipality and approved by the Secretary, the Department determines that: the enlargement of structures or facilities is consistent with said plan and the fill or structure associated with the enlargement activity is located entirely within an area of previously filled tidelands. 9.06: continued (4) The discharge of dredged or fill material into wetlands or waters of the Commonwealth within 400 feet of the high water mark of a Class A surface water (exclusive of tributaries) requires a variance issued by the Department pursuant to 314 CMR 9.08 unless the discharge of dredged or fill material is associated with an activity conducted by a public water system under 310 CMR 22.00: Drinking Water or by a public agency or authority for the maintenance or repair of existing public roads or railways. The discharge of dredged or fill material to a vernal pool certified by the Division of Fisheries and Wildlife requires a variance pursuant to 314 CMR 9.08. (5) No discharge of dredged or fill material is permitted for the impoundment or detention of stormwater for purposes of controlling sedimentation or other pollutant attenuation. Discharge of dredged or fill material may be permitted to manage stormwater for flood control purposes only where there is no practicable alternative and provided that best management practices are implemented to prevent sedimentation or other pollution. No discharge of dredged or fill material is permitted for the impoundment or detention of stormwater in Outstanding Resource Waters for any purpose. (6) (a) Except as otherwise provided in 314 CMR 9.06, stormwater discharges shall be provided with best management practices to attenuate pollutants and to provide a setback from the receiving water or wetlands in accordance with the following Stormwater Management Standards as further defined and specified in the Massachusetts Stormwater Handbook: 1. No new stormwater conveyances (e.g. outfalls) may discharge untreated stormwater directly to or cause erosion in wetlands or waters of the Commonwealth. 2. Stormwater management systems shall be designed so that post-development peak discharge rates do not exceed pre-development peak discharge rates. This Standard may be waived for land subject to coastal storm flowage as defined in 310 CMR 10.04: Definitions. 3. Loss of annual recharge to ground water shall be eliminated or minimized through the use of infiltration measures including environmentally sensitive site design, low impact development techniques, stormwater best management practices, and good operation and maintenance. At a minimum, the annual recharge from the post- development site shall approximate the annual recharge from pre-development conditions based on soil type. This Standard is met when the stormwater management system is designed to infiltrate the required recharge volume as determined in accordance with the Massachusetts Stormwater Handbook. 4. Stormwater management systems shall be designed to remove 80% of the average annual post-construction load of Total Suspended Solids (TSS). This Standard is met when: a. Suitable practices for source control and pollution prevention are identified in a long-term pollution prevention plan and thereafter are implemented and maintained; b. Structural stormwater best management practices are sized to capture the required water quality volume determined in accordance with the Massachusetts Stormwater Handbook; and c. Pretreatment is provided in accordance with the Massachusetts Stormwater Handbook. 5. For land uses with higher potential pollutant loads, source control and pollution prevention shall be implemented in accordance with the Massachusetts Stormwater Handbook to eliminate or reduce the discharge of stormwater runoff from such land uses to the maximum extent practicable. If through source control and/or pollution prevention all land uses with higher potential pollutant loads cannot be completely protected from exposure to rain, snow, snow melt and stormwater runoff, the proponent shall use the specific structural stormwater BMPs determined by the Department to be suitable for such use as provided in the Massachusetts Stormwater Handbook. Stormwater discharges from land uses with higher potential pollutant loads shall also comply with the requirements of the Massachusetts Clean Waters Act, M.G.L. c. 21, §§ 26 through 53, and 314 CMR 3.00: Surface Water Discharge Permit Program, 4.00: Massachusetts Surface Water Quality Standards and 5.00: Ground Water Discharge Permit Program. 9.06: continued 6. Stormwater discharges within the Zone II or Interim Wellhead Protection Area of a public water water supply and stormwater discharges near or to any other critical area require the use of the specific source control and pollution prevention measures and the specific structural stormwater best management practices determined by the Department to be suitable for managing discharges to such area as provided in the Massachusetts Stormwater Handbook. A discharge is near a critical area, if there is a strong likelihood of a significant impact occurring to said area, taking into account site-specific factors. Stormwater discharges to Outstanding Resource Waters and Special Resource Waters shall be removed and set back from the receiving water or wetland and receive the highest and best practical method of treatment. A "storm water discharge" as defined in 314 CMR 3.04(2)(a)1. or (b) to an Outstanding Resource Water or Special Resource Water shall comply with 314 CMR 3.00: Surface Water Discharge Permit Program and 4.00: Massachusetts Surface Water Quality Standards. Stormwater discharges to a Zone I or Zone A are prohibited, unless essential to the operation of the public water supply. 7. A redevelopment project is required to meet the following Stormwater Management Standards only to the maximum extent practicable: Standard 2, Standard 3, and the pretreatment and structural stormwater best management practice requirements of Standards 4, 5, and 6. Existing stormwater discharges shall comply with Standard 1 only to the maximum extent practicable. A redevelopment project shall also comply with all other requirements of the Stormwater Management Standards and improve existing conditions. 8. A plan to control construction related impacts including erosion, sedimentation and other pollutant sources during construction and land disturbance activities (construction period erosion, sedimentation and pollution prevention plan) shall be developed and implemented. 9. A long-term operation and maintenance plan shall be developed and implemented to ensure that the stormwater management system functions as designed. 10. All illicit discharges to the stormwater management system are prohibited. (b) The Stormwater Management Standards set forth in 314 CMR 9.06(6)(a)1. through 10. shall not apply to: 1. A single-family house; 2. Housing development and redevelopment projects comprised of detached single-family dwellings with four or fewer lots provided that there are no stormwater discharges that may affect a critical area; 3. Multi-family housing development and redevelopment projects, with four or fewer units, including condominiums, cooperatives, apartment buildings, and townhouses, provided that there are no stormwater discharges that may potentially affect a critical area; and 4. Emergency repairs to roads or drainage systems. (c) The Stormwater Management Standards shall apply to the maximum extent practicable to the following: 1. Housing development and redevelopment projects comprised of detached single-family dwellings with four or fewer lots that have a stormwater discharge that may potentially affect a critical area; 2. Multi-family housing development and redevelopment projects with four or fewer units, including condominiums, cooperatives, apartment buildings and townhouses, that have a stormwater discharge may potentially affect a critical area; 3. Housing development and redevelopment projects comprised of detached single- family dwellings, with five to nine lots, provided there is no stormwater discharge that may potentially affect a critical area; and 4. Multi-family housing development and redevelopment projects of five to nine units, including condominiums, cooperatives, apartment buildings, and townhouses, provided there is no stormwater discharge that may potentially affect a critical area. 5. Marinas and boatyards provided that the hull maintenance, painting, and service areas are protected from exposure to rain, snow, snow melt, and stormwater runoff; and 6. Footpaths, bikepaths and other paths for pedestrian and/or nonmotorized access. 9.06: continued (d) For phased projects the determination of whether the Stormwater Management Standards apply is made on the single and complete project including all phases. When proposing a development or redevelopment project subject to the Stormwater Management Standards, proponents shall consider environmentally sensitive site design that incorporates low impact development techniques in addition to stormwater best management practices. (e) Project proponents seeking to demonstrate compliance with some or all of the Stormwater Management Standards to the maximum extent practicable shall demonstrate that: 1. They have made all reasonable efforts to meet each of the standards; 2. Theyhave made a complete evaluation of possible stormwater management measures including environmentally sensitive site design and low impact development techniques that minimize land disturbance and impervious surfaces, structural stormwater best management practices, pollution prevention, erosion and sedimentation control and operation and maintenance of stormwater best management practices; and 3. If full compliance with the Standards cannot be achieved, they are implementing the highest practicable level of treatment. (f) Compliance with the Stormwater Management Standards set forth in 314 CMR 9.06(6)(a) to the extent that they are applicable in accordance with 314 CMR 9.06(6)(b) through (d) does not relieve a discharger of the obligation to comply with all applicable Federal, State and local laws, regulations, and permits including without limitation all applicable provisions of 310 CMR 10.00: Wetlands Protection, 314 CMR 3.00: Surface Water Discharge Permit Program, 4.00: Massachusetts Surface Water Quality Standards, and 9.00, local land use controls adopted to comply with 310 CMR 22.21: Ground Water Supply Protection or the NPDES General Permit for Small Municipal Separate Storm Sewer Systems, and the terms and conditions of NPDES General Stormwater Permits such as the Construction General Permit and the Multi-sector General Permit. (7) No discharge of dredged or fill material shall be permitted in the rare circumstances where the activity meets the criteria for evaluation but will result in substantial adverse impacts to the physical, chemical, or biological integrity of surface Waters of the Commonwealth.