Permitting Ecological Restoration Projects under the Massachusetts Wetlands Protection Act
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Permitting Ecological Restoration Projects under the Massachusetts Wetlands Protection Act


Permitting Ecological Restoration Projects
under the Massachusetts Wetlands Protection Act is
presented by the Massachusetts Department of Environmental Protection Wetlands and Waterways
Program. And funded in part by a Federal Clean Water Act Wetland Program Development Grant
from United States Environmental Protection Agency. Hello and welcome!
Massachusetts Department of Environmental Protection is working to develop adaptive
strategies to address climate change and integrate them into the Massachusetts Wetlands Protection
Act regulatory framework. One such effort is to encourage wetland restoration projects
that further ecological connectedness and resilience, adaptation to sea level rise,
and flood and storm damage protection for private property and public infrastructure.
In October of 2014, MassDEP incorporated a General Permit into the wetland Protection
Act regulations that is designed specifically to insure that the restoration projects will
be permitted. This presentation explores 1. The Regulatory additions implemented for
Ecological Restoration (Ecological Restoration); 2. It looks at what defines an ecological
restoration project; and 3. What type of projects can be permitted
as ecological restorations; 4. And finally we will walk through each step
of the permitting process as an example. Several new additions enhance the regulations
for ecological restoration projects.  There are two new definitions added to
310 CMR 10.04, one is a definition of an Ecological Restoration project and the second, a definition
for Ecological Restoration Limited Projects.  We’ve added FOUR new sections for Ecological
Restoration Permitting in 310 CMR 10.11 thru 310 CMR 10.14.
 New sections have been added to the Coastal and Inland Limited Projects regulations that
deal with Ecological Restoration limited projects specifically: These can be found in 310 CMR
10.24(8) and 310 CMR 10.53(4) The Wetland Protection Act regulations now
define an Ecological Restoration Project as A project whose primary purpose is to restore
or otherwise improve the natural capacity of a Resource Area(s) to protect and sustain the interests identified
in M.G.L. c. 131, § 40, when such interests have been degraded or
destroyed by anthropogenic influences. (310 CMR 10.04) Ecological Restoration Limited Projects are
those that specifically meet the eligibility criteria outlined in 310 CMR 10.24, section
8 of the Coastal General Provisions or the eligibility criteria outlined in 310 CMR 10.53
section 4 of the Inland General Provisions. Ecological Restoration Projects do not include
mitigation for the alteration of a Resource Area authorized by a Final Order of Conditions
or a 401 Water Quality Certificate. Ecological Restoration projects do not include
dredging projects for which a 401 Water Quality Certificate has been issued pursuant to 314
CMR 9.00 unless the project is by definition an Ecological Restoration. Ecological Restoration projects do not include
Natural disasters Acts of God or enforcement actions requiring
restoration. There are six Ecological Restoration project
types that may be eligible for a General Permit also known as Restoration OOC. These include
Dam Removal. This is an image of Amethyst Brook in Pelham
before the dam was removed. And this is the same location on Amethyst
Brook only one week after the dam was removed. Other types of ecological restoration projects
include  Freshwater Stream Crossings  Stream daylighting projects  Culvert replacement projects to eliminate
tidal restrictions.  Shellfish habitat restoration and  Fish passage and rare species habitat
restoration. There are several advantages for a wetland
permit applicant to obtain an Ecological Restoration General Permit. The Ecological Restoration General Permit,
also known as the Restoration Order of Conditions provides advantages for both Conservation
Commissions and Wetland permit applicants. For example the General Permit is a faster
& more predictable permitting process because;  It identifies key issues for review.
 Is front loaded so all the necessary information is already included with the Notice of Intent
at the time of submittal to the conservation commission.
 It doesn’t require a 401 Water Quality Certification unless project involves dredging.
 The Restoration Order of Conditions also includes standard template conditions for
each of the specific ecological restoration project types. Another advantage of applying for an Ecological
Restoration General Permit includes an exemption from Massachusetts Environmental Policy Act
(MEPA) review unless they are publicly funded. However, a notice still needs to be published
in the Environmental Monitor before submitting the Notice of Intent to the conservation commission. Ecological restoration projects that meet
the requirements of 310 CMR 10.12(1) and (2) are exempt from conducting a wildlife habitat
evaluation under 310 CMR 10.60. It’s important to note that there is an
underlying principle for Ecological Restoration Projects. It is understood that these kinds
of projects may result in the temporary or permanent loss of a resource area or the conversion
of one resource area to another resource type, when that loss is fundamentally necessary
to achieve the project’s ecological restoration goals. We’ve developed a Flow Chart for the Ecological
Restoration Permitting process to emphasize its structure. The visual outline that a Flow
Chart provides can help to clarify our understanding of the permitting process for Restoration
Orders of Conditions and for Ecological Restoration Limited Projects.
We will use the Flow Chart to walk through each step of an NOI filing. First, to determine which permitting process
a Notice of Intent should follow, the applicant must first decide if the project is an Ecological
Restoration. This question can be answered by comparing
the project to the regulatory definition found in 310 CMR 10.04 which defines an Ecological
Restoration as “A project whose primary purpose is to restore
or otherwise improve the natural capacity of a Resource Area(s) to protect and sustain
the interests identified in M.G.L. c. 131, § 40, when such interests have been degraded
or destroyed by anthropogenic influences.” If the project DOES NOT meet the definition
for an Ecological Restoration project as defined in 310 CMR 10.04, then the NOI is a regular
wetland filing and not an Ecological Restoration Project. In that case, the applicant should
file the Notice of Intent using the regular WPA Form 3 – Notice of Intent. If the project meets the regulatory definition
of an Ecological Restoration, then the NOI is an Ecological Restoration Project. The
next step in the permitting process is to determine if the Ecological Restoration project
is eligible for a Restoration OOC or whether it can be permitted as an Ecological Restoration
Limited Project. So, what criteria allow the project to be
eligible for a Restoration Order of Conditions? First the project must be an Ecological Restoration
as defined in 310 CMR 10.04 as we’ve just discussed. It must further at least one of the interests
of the Act. To the maximum extent practicable the project
must  Avoid and minimize adverse impacts to
Resource Areas and other interests of Act, and
 Use erosion and siltation control Best Management Practices to minimize construction
impacts, The project will not result in a significant
increase in flooding or storm damage affecting buildings, wells, septic systems, roads and
man-made structures or infrastructure. If the project involves dredging of 100 cubic
yards of sediment or more or dredging in an outstanding resource water, the applicant
must obtain a 401 Water Quality Certificate (pursuant to 314 CMR 9.00). The project will not substantially reduce
the capacity of a resource area to serve habitat functions if carried out according to Time
of Year restrictions and conditions on the project from Division of Marine Fisheries
for coastal waters and from the Division of Fish and Wildlife for inland waters. If the project is a freshwater stream crossing,
it must be designed to meet the stream crossing standards. Tidal Crossings must be designed to eliminate
tidal restrictions to the Maximum Extent Practicable (See 310 CMR 10.24(10) for more details). The project does not include
 armoring of a Coastal Dune or Barrier Beach.
 A discharge of dredged or fill material to a certified vernal pool, or
 A point source discharge to ORWs, If the project is within rare wetland wildlife
habitat, a written Determination from NHESP is required indicating that either
 the project will not have an adverse effect on specified habitat sites within the resource.
 Or that the Project will be carried out in accordance with a Habitat Management Plan
or Conservation and Management Permit approved by NHESP. If the project meets the definition for an
Ecological Restoration project and, after reviewing the Eligibility Criteria in 310
CMR 10.13, we find that the project meets all of the criteria required for a Restoration
OOC, then the applicant 1. would use the NEW WPA Form 3A-Notice of
Intent to obtain a Restoration Order of Conditions, also known as the General Permit and
2. follow the process outlined on the left side of the Restoration Flow chart and on
the slides below. If the project meets the definition for an
Ecological Restoration project and, after reviewing the Eligibility Criteria in 310
CMR 10.13, the applicant finds that the project does NOT meet all of the criteria required
for a Restoration OOC, then the Ecological Restoration project may still be permitted
as an Ecological Restoration Limited Project. In that case the applicant would
1. use the regular WPA Form 3 Notice of Intent and
2. follow the detailed permitting process on the right side of the flow chart and slides
below. The Restoration Permitting Flow Chart is available
on the MassDEP web site. A link to web location is provided at the end of the presentation. This is the new WPA Form 3A – Notice of Intent
that should be used to file for a Restoration OOC.
This new form was designed using checklists that mirror the actions required in the regulations
for restoration General Permit projects. After identifying the correct form to file,
projects eligible for Restoration OOC must 1. Complete the Ecological Restoration Project
Description in WPA Form 3A, Section C. This section includes a check box for each eligibility
criteria listed in 310 CMR 10.13 as part of the project description. And sign the Certification of Eligibility
in Section G. Projects that do not meet ALL the eligibility
criteria required for a Restoration OOC may still be permitted as an Ecological Restoration
Limited Project. In this case, the applicant should use WPA
Form 3 – Notice of Intent. And complete [WPA Form 3] Section A.7b. Then as indicated in Section A.7.b, Complete
the Ecological Restoration Limited Project checklist in Appendix A. And on Appendix A p. 16, Sign the Certification
of Eligibility for Ecological Restoration Limited Projects. With the eligibility criteria checklists finished
and certified, the next step in the filing process is to complete the Required Actions
Checklist. The Required Actions are listed in the regulations 310 CMR 10.11 and must
be completed BEFORE submitting the NOI. To fill out the Required Actions Checklist
for a Restoration OOC 1. Complete Form 3A, Section D AND
1. Complete Form 3A, Appendix 1 To fill out the Required Actions Checklist
for a Restoration Limited Project 1. Skip Form 3, Section C and
2. Complete Pages 10 through 14 in Appendix A The required actions checklist in Appendix
A replaces Section C of the Notice of Intent WPA Form 3. They cover the same material as
Section C but in more detail. The required actions include the following;
1. Publish a notice in Environmental Monitor, Obtain the appropriate determinations from
the Natural Heritage and Endangered Species Program, also known as NHESP. If the project
is within the Estimated Habitat as shown on the most recent version of their “Estimated
Habitat Map of State-listed Rare Wetlands Wildlife”. If the project requires NHESP review, in the
case of a Restoration OOC  Complete Form 3A, Section D,
 Complete Appendix 1, pp. 14-18. For an Ecological Restoration Limited Projects
 Skip Form 3, Section C,  Complete Appendix A: pp. 10-14. If the project will occur within a coastal
waterbody with a restricted Time of Year, as identified in Appendix B of the Division
of Marine Fisheries Technical Report TR 47 entitled Marine Fisheries Time of Year Restrictions
for Coastal Alteration Projects dated April 2011, the applicant shall obtain a written
determination from the Division of Marine Fisheries as to whether the proposed work
requires a Time of Year restriction, and if so, the written determination shall specify
the recommended TOY restriction and any other recommended conditions on the proposed work. For a Restoration OOC –
1. Complete Form 3A, Section D AND, 2. Complete Form 3A, Appendix 1, pp. 14-18. For a Restoration Limited Project –
1. Skip Form 3, Section C, 2. Complete Form 3, Appendix A, pp. 10-14. If the project may affect a diadromous fish
run as identified in the Division of Marine Fisheries Technical Reports TR 15 through
18, dated 2004, the applicant shall obtain a written determination from the Division
of Marine Fisheries as to whether the design specifications and operational plan for the
project are compatible with the passage requirements of the fish run. For a Restoration OOC –
1. Complete Form 3A, Section D, AND 2. Complete Form 3A, Appendix 1, pp. 14-18. And for a Restoration Limited Project –
1. Skip Form 3, Section C, 2. Complete Pages 10 through 14 in Appendix
A. If the Ecological Restoration Project involves
dredging of 100 cubic yards or more in a Resource Area or dredging of any amount in an Outstanding
Resource Water, the applicant must obtain a Water Quality Certification pursuant to
314 CMR 9.00. The applicant must Insure that the project
complies with all other applicable limited project provisions of 310 CMR 10.24 or 310
CMR 10.53. For a Restoration OOC –
1. Complete Form 3A, Section D AND 2. Complete Form 3A, Appendix 1, pp. 14-18 And for a Restoration Limited Project –
1. Skip Form 3, Section C 2. Complete Pages 10 through 14 in Appendix
A – Ecological Restoration Projects are exempt
from having to conduct a Wildlife Habitat evaluation if they meet the requirements of
CMR 10.12(1) and (2). Lastly, collect all the documentation acquired
during the process, attach it all to the NOI, and submit the application package to the
Conservation Commission for review. For a Restoration OOC:
 Complete Form 3A, Section E, pp. 11-12  Complete Form 3A, Appendix 2, pp. 19-20 And for an Ecological Restoration Limited
Project  Skip Form 3, Section D, pp. 7-8
 Complete Form 3, Appendix A pp. 14-15 The minimum required documents to file with
the NOI is listed in 310 CMR 10.12 and includes 1. The Ecological Restoration Goals
2. The Ecological Restoration Project location, 3. Documentation of the project Construction
sequencing, 4. Maps of permanent alteration, rare species
habitat, 5. Flood impact study for the built environment. 6. Plan for controlling invasive species.
7. Natural Heritage and Endangered Species written determinations.
8. Time of year restrictions or conditions. 9. Proof that notice was published in Environmental
Monitor. 10. Eligibility criteria certification.
11. Operation & Maintenance plan for the infrastructure. 12. The 401 Water Quality Certification if
needed. 13. Info to show a stream crossing design
meets requirements of 310 CMR 10.24(10) for coastal or 10.53(8) for inland resource areas.
14. Stream crossing baseline documentation, and
15. The Stormwater Report. For Ecological restoration projects that meet
ALL the eligibility requirements in 310 CMR 10.13 , the Conservation must issue a Restoration
OOC. The Restoration OOC is a new form WPA Form
5A. The Restoration Order of Conditions contains
the General Conditions 1-23 that are common to all Orders of Conditions and including
Stormwater. The Restoration Order of Conditions also contains
conditions that specifically apply to each ecological restoration project type listed
in the regulations. As with all Orders of Conditions, there is
a section in the form for Findings under the Municipal Wetlands Bylaw or Ordinance. However,
there are no provisions for conservation commissions to attach special conditions under the State
Wetlands Protection Act. Projects that meet the eligibility criteria
set forth in 310 CMR 10.24(8) or 310 CMR 10.53(4) may be permitted as an ecological restoration
limited project. (Use WPA Form 5) Unlike the Restoration Order of Conditions,
there is no requirement for a Conservation Commission to permit a Ecological Restoration
Limited project. The regulatory language gives Conservation Commissions discretionary authority. Requests for Departmental Action on Restoration
OOCs must be limited to claim(s) that the applicant did not comply with one or more
of the applicable procedural requirements of 310 CMR 10.05 and/or the conservation commission
issued the General Order of Conditions even though the applicant failed to meet one or
more of the applicable eligibility criteria. The request for Department action shall specifically
identify any procedural requirements and eligibility criteria that the person requesting Department
action alleges have not been met. The Conservation Commissions should use the
normal WPA Form 5 – Order of Conditions for Ecological Restoration Limited projects. This concludes our review of the Ecological
Restoration Permitting process. For additional information please contact
Nancy Lin at [email protected] or Alice Smith at [email protected]

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