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.
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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 ! !