New state regulations promulgated in 2005 are fully in effect transforming how the Department of Fisheries and Wildlife (DFW) and its Natural Heritage and Endangered Species Program (NHESP) log, map, review, and permit work affecting endangered species and their “priority habitat.”

These rules go far beyond the prior and still operative DFW rules about “fish and game” and DEP rules about HNESP review and comment on some Notices of Intent pending before Conservation Commissions affecting “estimated habitat.” These new rules implement powers under the Massachusetts Endangered Species Act, flesh out procedures, and close some loopholes recognized in a few court cases since 2002.

Here is a bare summary of these revised regulations. They are so significant that in this author’s opinion there are now three (not two) components of a proper real estate “due diligence” for a development project and its permitting: oil and hazardous material (OHM), wetlands Resource Areas, and now Priority Habitat. Worse case, these can be “deal killers.” At least, they trigger critical government approvals and public participation in permitting.

2005 REVISIONS

1. Definition of “Take” has been revised to read:  “Take, in reference to animals, means to harass, harm, pursue, hunt, shoot, hound, kill, trap, capture, collect, process, disrupt the nesting, breeding, feeding or migratory activity or attempt to engage in any such conduct, or to assist such conduct, and in reference to plants, means to collect, pick, kill, transplant, cut or process or attempt to engage or to assist in any such conduct.  Disruption of nesting, breeding, feeding or migratory activity may result from, but is not limited to the modification, degradation, or destruction of Habitat.” (Newly added language in bold).

1. Definition of “Project or Activity” has been included, and encompasses (but is not limited to):  “grading, excavating, filling, demolition, draining, dumping, dredging or discharging; the erection, reconstruction or expansion of any buildings or structures; the construction, reconstruction, improvement or expansion of roads and other ways; the installation of drainage, sewage and water systems, or; the destruction of plant life.”
2. Definition of “Priority Habitat” has been included, and provides that:  “Priority Habitat means the approximate geographic extent of Habitat for state listed species as delineated by the Division pursuant to 321 CMR 10.12.  The delineation of Priority Habitat by Division is based on records of listed species within the last 25 years and contained in the Division’s Natural Heritage and Endangered Species Program database.

1. The performance standard referred to as “Net Benefit” is defined as follows:  “Net Benefit means an action, or set of actions, that contributes, on its own or in the context of other actions, significantly to the long-term conservation of a State-listed Species and that the conservation contribution to the impacted State-listed Species exceeds the harm caused by a proposed Project or Activity.”

1. The term “Record Owner” is defined as:  “any person or entity holding a legal or equitable interest, right, or title to real property, as reflected in a written instrument or recorded deed, or any person authorized in writing by any such person.”

PRACTICAL TIPS

1. New and revised definitions should help to clarify some previously gray areas that had been illustrated by case law, such as:

1. Revised definition of “Take” in regulations should more effectively foreclose an applicant’s argument that “mere alteration of a habitat is not a take.”  Clearly, the revised definition indicates that a “Take” may result from “modification, degradation or destruction of Habitat.”  This revision codifies the Superior Court holdings in the WRT and Capolupo court decisions.

1. The new definition for “Priority Habitat” encompasses “the approximate geographic extent of Habitat for state listed species.”  It does not distinguish between species categorized as “endangered,” “threatened,” or of “special concern.”  This appears to close the loophole noted in WRT, where the Regulations formerly allowed regulation of significant habitats only when “endangered” or “threatened” species were present.

1. Broad definition of “Project or Activity” should clarify the types of work and conduct subject to regulation, which is a key to understanding jurisdiction.

1. Definition of “Priority Habitat” clarifies the scope of the revised Regulations.  The Natural Heritage Atlas illustrates both Priority and Estimated Habitat for the entire Commonwealth.  

1. New filing requirements and procedures clarify the filing process, but beware overlap with the Massachusetts DEP’s Wetlands Regulations:

1. Under MESA, project proponents must file directly with NHESP for all nonexempt projects or activities (see 321 CMR 10.14) proposed within a Priority Habitat.  This is independent of the requirement to submit a copy of a required Notice of Intent for a project located in an Estimated Habitat for Rare Wildlife (required under the Massachusetts DEP’s Wetlands Regulations).

1. Although the revisions to the MESA Regulations do not directly impact the DEP Wetland Regulations (which prohibits short or long-term adverse impacts on the habitat of rare or endangered species), it is important to be cognizant of the different performance standards in these sets of regulations, and to understand what circumstances trigger them.  

1. Process for designation of Priority Habitat has been more clearly defined, and allows procedures for appealing delineation:

1. Mapping of Priority Habitat will be based upon the totality of the circumstances, as reflected by records in the NHESP database, scientific evidence, sightings, environment conducive to support of habitat, etc.  Natural Heritage Atlas will be the authority for the existence and location of Priority Habitats.

1. DFW will review its designations of Priority Habitat every two years.

1. A “Record Owner” of property, as defined in the regulations, may seek to have a voluntary assessment to delineate Priority Habitat on her property (321 CMR 10.13).  A “Record Owner” also may seek reconsideration of designation of priority habitat (321 CMR 10.12) (as well as denial of a project due to a determination that it will constitute a “Take,” (321 CMR 10.18), or denial of a Conservation and Management Permit (321 CMR 10.23)).  

1. DFW has 30 days from receipt of a Request for Reconsideration of Priority Habitat delineation to make available to the Record Owner its records supporting the designation.

1. DFW has 45 days following receipt of a completed application for a Request for Reconsideration to issue a decision in response.

1. The DFW’s decision is subject to administrative and judicial review (321 CMR 10.25).

1. BioMap – NHESP is responsible for developing the Massachusetts BioMap Project, which is intended for use as an assessment tool to identify the areas most in need of protection to conserve the Commonwealth’s biodiversity.  Started in 2000, the goal of creating the BioMap is the promotion of strategic land protection by mapping the areas that provide suitable long-term habitat for plants and animals.  According to NHESP, the BioMap project has not been updated since 2002.  It may be used as a resource in mapping, but will not likely be definitive.

1. Constructive Approval is now a fact of life in DFW project reviews:

1. DFW has a 30-day review period, following receipt of a completed application, to issue a File Number to the project.

1. Within 60 days after a File Number is issued, DFW must issue a decision in writing.  Two 20-day extensions are possible.  The decision will state whether the project will constitute a Take, or will not constitute a Take provided conditions are met.

1. If no decision is issued within this total 100-day period, the project receives Constructive Approval.

1. For Conservation and Management Permits (which essentially allow for a “Take” to occur so long as the project is performed pursuant to an approved Conservation and Management Plan), the DFW must issue a decision within 30 days of receiving an application, with two 30-day extensions possible.

1. If no decision on the Conservation and Management Permit application is rendered within that 90-day period, the permit is constructively approved.

1. Be familiar with those types of projects or activities in Priority Habitats that are exempt from review under the new regulations (321 CMR 10.14), as well as those types of projects that are not exempt from review.

1. The regulations provide for financial or in-kind contributions toward the development and/or implementation of an off-site conservation recovery and protection plan for impacted species, designed to meet the long-term Net Benefit performance standard in lieu of mitigation at site. (321 CMR 10.23(3)).  Practically speaking, this means that a proposed project that substantially alters or destroys Priority Habitat may be allowed to proceed in exchange for funds to be used for off-site mitigation.

It’s a new world of wildlife protection out there. There are new rules, procedures, standards, fees, and property restrictions with important implications for public and private property and projects.