Permitting Dam Repair in Massachusetts

Thomas Jenkins, P.E.

Associate Principal GZA GeoEnvironmental, Inc.

Permitting Dam Repairs in

Massachusetts

More than you might anticipate ? ?

April 8, 2013

Tom Jenkins, P.E.

Jurisdictions / Authorities

Local

(351 Cities & Towns)

State

Federal

Caveat: The following discussion pertains to a typical dam repair project.

Typical State Permits & Reviews

• Wetlands & Waterways

• Rare & Endangered Species

• Historical / Archeological

• Dams / Dam Safety

• General Environmental Review

State - Wetlands & Waterways

Massachusetts Wetlands Protection Act • Applicability: Any project which will remove, dredge, fill, or alter a wetland

(including buffer zone) in Massachusetts is subject to the Wetlands Protection

Act (M.G.L. Chapter 131, Section 40). State law – administered in each town by

the local Conservation Commission.

• Permit Application: Notice of Intent (NOI) - typically filed with the local

Conservation Commission.

• Permit: Known as an Order of Conditions. Issued by the local Conservation

Commission unless it is appealed, in which case a “Superseding Order of

Conditions” may be issued by the MADEP.

• Nuance #1: Limited Project Status (i.e., allows for

discretionary approval without strict adherence to the

performance standards) – “The maintenance, repair and

improvement (but not substantial enlargement) of structures,

including dams and reservoirs and appurtenant works to

such dams and reservoirs, buildings, piers, towers,

headwalls, bridges, and culverts which existed on the effective

date of the WPA (April 1, 1983).”

• Nuance #2: Rivers Protection Act – may apply to work

downstream of the dam (adjacent to the “river”).

• Nuance #3: Stormwater Management Standards – related to runoff quality and quantity, but also applies to dams

when there are point-source discharges of stormwater.

State - Wetlands & Waterways

Water Quality Certification / Dredging Permit

• Massachusetts Wetlands Protection Act (310 CMR 10.00)

• Water Quality Certification / Dredging

Permit (314 CMR 9.00)

• Chapter 91 Waterways (310 CMR 9.00)

Regulations at 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”

Part 1:

• Discharge of Dredged or Fill Material: Any project which will impact (fill)

5,000 square feet or more of “Waters of the U.S. within the Commonwealth”. (Terminology reveals the origins of the “Water Quality Certification”—a requirement of

Section 401 of the federal Clean Water Act.)

Permit Applications (apply to the MADEP Regional Office):

• BRP WW 10 Major Project Certification

• BRP WW 11 Minor Project Certification

( If less than 5,000 SF—the Order of Conditions will suffice )

Which MADEP Region??

It matters ! !

State - Wetlands & Waterways

Water Quality Certification / Dredging Permit

• Massachusetts Wetlands Protection Act (310 CMR 10.00)

• Water Quality Certification / Dredging

Permit (314 CMR 9.00)

• Chapter 91 Waterways (310 CMR 9.00)

Regulations at 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”

Part 2:

• Dredging: The removal or repositioning of sediment or other material from below the

high water mark for inland waters.

Permit Applications (apply to MADEP Boston Office):

• BRP WW 07 Major Project Certification (5,000 cubic yards (c.y.) or greater)

• BRP WW 08 Minor Project Certification (less than 5,000 c.y. but more than 100 c.y.)

State - Wetlands & Waterways

Chapter 91 - Waterways Applicability: Primarily navigation and public access issues

“Protect and promote the public's interest in tidelands, Great Ponds, and non-tidal rivers and

streams in accordance with the public trust doctrine, as established by common law and

codified in the Colonial Ordinances of 1641-47 and subsequent statutes and case law of

Massachusetts.”

Most dams are “grandfathered”: a Chapter 91 license or permit is not required for

the “continuation of any existing, unauthorized use of fill or structures constructed prior to

1939 on any non-tidal river or stream subject to jurisdiction under 310 CMR 9.04(1)(e),

provided that no unauthorized structural alteration or change in use has occurred subsequent

to January 1, 1984.” (310 CMR 9.05 (3)(f)).

State - Rare & Endangered Species

MA Endangered Species Act (MESA) Applicability: Projects and activities located within Priority and/or

Estimated Habitat must be reviewed by the Natural Heritage and

Endangered Species Program (NHESP).

Three types of filings under MESA:

1) MESA Information Request for rare species information,

2) MESA Project Review, and

3) Conservation and Management Permit Application.

The first step for a project site located in a delineated area

is to file the MESA Information Request.

$T

$T

$T

$T$T

$T

$T $T

$T

$T

$T

$T

$T

$T$T$T

$T

$T

$T

$T

$T

$T

$T$T

$T

$T

$T$T

$T$T

$T

$T

$T

$T$T

$T

$T

$T

$T

$T

$T

$T

$T

Priority Habitat for

Rare Species

State - Historical / Archeological

Massachusetts Historical Commission Applicability: “Prior to any state body undertaking a project, or any state body

funding or licensing, in whole or in part, a private project, the state body must

notify the MHC of the project” (950 CMR 71.00)

• A Project Notification Form (PNF) must be filed with the Massachusetts

Historical Commission as per 950 CMR 71.00.

• This form alerts the MHC to the scope of the project.

• Significant changes to the general overall appearance of the dam might

trigger historic review.

• A finding of Historic Significance would not necessarily prevent work from

being done on the dam, but investigation and documentation might be

required.

IMPLICATIONS FOR OTHER APPROVALS …

State - Dams / Dam Safety

Chapter 253 - Dam Safety Permit Applicability: A Chapter 253 Permit Application must be filed with the

Massachusetts Office of Dam Safety (MADCR) for any project which proposes to

“construct, repair, alter, or remove a dam.” (302 CMR 10.09 (1))

• A final design report including relevant construction documents pertaining

to the project must be provided to the Office of Dam Safety as a part of

the permit application.

• Construction must start within two years of issuance of the permit, but the

Commissioner may extend this period upon written request.

• Once the permit is issued, it must be recorded at the Registry

of Deeds where the dam lies.

State - General Environmental Review

MA Environmental Policy Act (MEPA) Applicability: MEPA regulations (301 CMR 11.00) establish a review process

for projects that are undertaken by Agencies of the Commonwealth or require

permits from Agencies of the Commonwealth.

• Through the MEPA office, the Secretary of Energy and Environmental Affairs

conducts environmental impact review of certain projects requiring state

agency action. Agency actions include granting state permits or licenses,

providing state financial assistance, or transferring state land.

• Typical Dam Repair thresholds:

• Alteration of 500 or more linear feet of bank along a fish run or inland bank;

• Alteration of 5,000 or more square feet of bordering or isolated vegetated wetlands;

• New fill or structure or Expansion of existing fill or structure, except a pile-supported

structure, in a velocity zone or regulatory floodway;

• Alteration of ½ or more acres of any other wetland.

• Construction, reconstruction, or Expansion of an existing solid fill structure of 1,000 or

more SF base area… provided the structure occupies flowed tidelands or other

waterways.

• MEPA review of dam repairs is usually satisfied by an Environmental

Notification Form (ENF)—a full Environmental Impact Report is seldom

required.

MEPA REVIEW MUST BE

COMPLETED BEFORE ACTION BY A

STATE AGENCY CAN TAKE PLACE

Typical Federal Permits

• Wetlands & Waterways

• Historical / Archeological

• Stormwater Discharges

Federal - Wetlands & Waterways

U.S. Army Corps of Engineers Applicability:

• Section 10 of the Rivers and Harbors Act of 1899

Work and structures that are located in, under or over any navigable water

of the U.S. that affect the course, location, condition, or capacity of such

waters; or the excavating from or depositing of material in such waters.

• Section 404 of the Clean Water Act

The discharge of dredged or fill material into “Waters of the U.S.”

• General Permit or Individual Permit

• Below 5,000 SF of wetland impact—may qualify

for limited review.

• Corps may consider “indirect impacts” (e.g.,

drawdown)

Federal - Wetlands & Waterways

U.S. Army Corps of Engineers Embedded review of non-wetlands issues:

• Consultation with the Corps and/or outside experts is required when

necessary to ensure compliance with related federal laws such as the National

Historic Preservation Act (see next slide), the Endangered Species Act (ESA),

and the Wild and Scenic Rivers Act.

• For example, experts on endangered species include the U.S. Fish and

Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS).

Federal - Historical / Archeological

National Historic Preservation Act

Applicability:

• To receive a Permit from the U.S. Army Corps of Engineers, the Proponent

must show that the Project complies with Section 106 of the National Historic

Preservation Act.

• Copies of permit applications must be submitted to the Massachusetts State

Historic Preservation Officer (SHPO) and to the Historic Preservation Officer

of three Native American tribes.

Federal - Stormwater Discharges

Discharges from Construction Activities National Pollutant Discharge Elimination System (N.P.D.E.S.)

General Permit for Discharges from Construction Activities

Applicability:

• One acre or greater of land disturbance (upland area only).

• Sediment & erosion control.

• Stormwater Pollution Prevention Plan

• File “Notice of Intent” with U.S. EPA

Typical Local Permits

• Wetlands & Waterways • MA Wetlands Protection Act

• Local Wetlands Ordinances & Bylaws

• Multiple jurisdictions possible

• Historical / Archeological

• Building Permits (sometimes)

Permitting Dam Repair in

Massachusetts (recap) Typical State Permits & Reviews

• Massachusetts Wetlands Protection Act

• Water Quality Certification / Dredging Permit (possibly 2 permits)

• Chapter 91 – Waterways

• MA Endangered Species Act (MESA)

• Massachusetts Historical Commission

• Chapter 253 - Dam Safety Permit

• MA Environmental Policy Act (MEPA)

Typical Federal Permits

• U.S. Army Corps of Engineers

• National Historic Preservation Act

• Discharges from Construction Activities

Typical Local Permits

• MA Wetlands Protection Act (multiple jurisdictions possible)

• Local Wetlands Ordinances & Bylaws

• Historical / Archeological

• Building Permits (sometimes)

More than you might have anticipated ! !