Living with Endangered Species
Outer Cape Environmental Initiative
Safe Harbor, 2007
Click HERE to download a pdf of this publication
This publication is a Safe Harbor Environmental Initiative, providing basic, introductory information about the newly revised Massachusetts Endangered Species Act (MESA) and the Natural Heritage & Endangered Species Program (NHESP), a division of Massachusetts Division of Fish & Wildlife that administers it. This information was developed at an Outer Cape Environmental Roundtable, hosted by Safe Harbor on November 8, 2006 at the Wellfleet Senior Citizens’ Center, between NHESP representatives, town officials, conservation agents, realtors, contractors, architects, environmental consultants, and others. Our goal is to improve communication between applicants and NHESP. This is an informational document only. Use the Natural Heritage and Endangered Species Program web site at NHESP.org for more permitting information.
WHAT YOU NEED TO KNOW
HABITAT = An area which, due to its physical or biological features, protects or provides important elements for the growth and survival of plants or animals such as food, shelter, or living space, and includes breeding, feeding, resting, migratory, or overwintering areas.
PRIORITY HABITAT = the mapped geographical extent of known habitat for all state-listed rare species, both plant and animal. These maps are prepared species by species, based on the best scientific evidence that is less than 25 years old, and are updated every two years. Priority Habitat maps are used for determining whether or not a proposed project must be reviewed by NHESP for MESA compliance.
ESTIMATED HABITAT = A portion of Priority Habitat, which applies only to animals whose habitat includes wetlands, as defined under the Wetlands Protection Act, administered by local Conservation Commissions, but reviewed by NHESP.
LISTED SPECIES = A species’ status, based on a number of factors, including, but not limited to, its rarity, reproductive trends, distribution, specialization and habitat requirements, and vulnerability. There are three listed categories, which follow:
ENDANGERED SPECIES = A native species in danger of extinction from all or part of its range in Massachusetts.
THREATENED SPECIES = A native species likely to become endangered in the foreseeable future, or which is declining or rare.
SPECIES OF SPECIAL CONCERN = A native species documented to have suffered a decline that could threaten it if allowed to continue unchecked, or which occurs in such small numbers or with such restricted distribution or specialized habitat requirements that it could easily become threatened within Massachusetts.
TAKE = A legal term that refers to the impacts on species, that includes the obvious (for animals: “harass, harm, hunt, kill, capture…” and for plants: “collect, pick, kill, transplant…”), but also refers to these effects as the result of “modification, degradation, or destruction of Habitat.” All projects submitted for review are evaluated in regard to “TAKE”.
WHAT YOU NEED TO DO
1. DETERMINE JURISDICTION is your site is in Priority Habitat?
- The Natural Heritage Atlas and maps, available at town hall/library
- On CD, available from NHESP (www.mass.gov/dfwele/dfw/nhesp/nhpubs.htm) for a cost of $15.00
- Online, an interactive mapping program uses MassGIS. (http://maps.massgis.state.ma.us/massgis_viewer/index.ht)
2. UNDERSTAND EXEMPTIONS Determine whether the project would be exempted from MESA regulations. The full list of exemptions can be found at www.mass.gov/dfwele/dfw/nhesp/nhenvexemptions.htm There are 12 exemptions listed on this website, including:
o Agriculture and aquaculture
o Maintenance, repair, or replacement of existing buildings
o Vertical expansion or additions that do not exceed 50% of the footprint of existing single-family or two-family homes within existing paved areas and lawfully developed and maintained lawns or landscaped areas
o Vertical expansion or additions that do not exceed 20% of the footprint of existing commercial, industrial, multifamily, or mixed-use structures within existing paved areas and lawfully developed and maintained lawns or landscaped areas
o Construction of sheds and other out-buildings within existing paved areas and lawfully developed and maintained lawns or landscaped areas
o Construction and repair of septic systems, utility lines, sewer lines, and water supply wells within existing paved areas and lawfully developed and maintained lawns or landscaped areas
o Maintenance, repair, or replacement of existing paved roads
o Maintenance and replacement of existing lawns/landscaping
3. GET MORE INFORMATION
If the property is within priority habitat and the exemptions do not apply, the property owner or representative can submit an Informational Request Form to NHESP. Forms are available on line at NHESP.org. The applicant will receive information within 30 days, about any rare species for which that particular site has been mapped. The cost is $50.00. This may assist you in developing your plans as you assess how to avoid impacting rare species, however it is not required.
Filings need to include good information to get good information, therefore, including an accurate site plan will enable the NHESP staff to provide more accurate and site specific information.
4. FULL REVIEW FOR PRIORITY HABITAT
The results from the Information Request will be used in the official MESA review. This form can be found at NHESP.org. A determination by NHESP will follow within 90 days of filing. NHESP has been working very hard to make a final determination within 30 days, if they have received all the necessary information, and will continue to strive to make determinations in such a timely fashion. The application cost for an area of potential disturbance under five acres is $300.00.
Filings must include the following information.:
• Proof of property’s actual ownership
• Accurate site plan,
• Assessor’s map with scale
• USGS topographical map, 1:25000
• Photographs of existing site conditions, with orientation of photos noted
• Written description of existing site
• Written description, plans, location of project
• Narrative (what, when, where, and how)
If your project involves Estimated Habitat as well, a copy of the Notice of Intent (NOI) you already need to file with your Conservation Commission, can be submitted along with your MESA filing to streamline the process. NHESP has worked with DEP to develop new NOI forms, encouraging applicants to submit all necessary materials at once to streamline the filing process. If all necessary materials are received in one filing, NHESP will send a response under both the Wetlands Protection Act and the MESA within 30 days. See the DEP website for more information on this new policy.
MOST FREQUENTLY ASKED QUESTIONS
1. What are the possible responses to a filing?
There are three possible NHESP responses in a MESA determination. They are:
1. No Take, 71% of responses
2. No Take w/conditions, 21%
3. Take: redesign necessary, 8%
2. How might conditions affect construction activities?
Conditions will depend on the species’ biology and needs. Auditory and visual impacts might be considered, in addition to direct impacts to habitat. No Take w/Conditions might specify a seasonal window for construction, use of animal bypasses in erosion control systems, or site enclosures.
3. Is there a time frame for approved projects?
Projects must start within three years of being permitted.
4. Would property sales require a MESA review?
No. There must be a proposed alteration of the habitat, in other words, a proposed project. A sale is not an activity requiring review.
5. Can a lot be pre-approved, that is certified as “build able”?
No. Each proposed project must be evaluated, based on the details of the proposal, the footprint, and the species involved at that time. Each MESA determination is project-specific.
6. Is relocation of a species an option?
Generally, relocation is not an acceptable option, although it might depend on the species.
7. Who is legally responsible for work done without permits?
It is the responsibility of the property owner or representative to determine if a project falls within Priority or Estimated Habitat. Unpermitted work is performed at the property owner’s risk.
8. How many different species need to be considered?
There are currently 178 species of animals (invertebrates as well as vertebrates) and 264 species of plants listed as endangered, threatened, or of special concern in the state. No other area of the state has quite so many assemblages of rare fauna and flora, or development, than the Outer Cape.
WE SUGGEST using the Natural Heritage & Endangered Species website for additional information NHESP.org
WE SUGGEST getting your basic information together before contacting NHESP. They can be more helpful when your information about the site and the proposed project is detailed and complete.
WE SUGGEST once your basic information has been obtained, taking advantage of the partnership opportunities with NHESP staff. Their program has made a commitment to prioritize outreach and interaction with applicants. They answer the phone and return phone calls.
WE SUGGEST contacting the NHESP in the early design stages of project planning. Early stage information can be more effective in facilitating a successful permit. Late contact can escalate project costs and cause delays.
This is an informational document only. Go to NHESP.org for direct permitting information and forms.
Safe Harbor works with environmental planning, permitting, education and advocacy; offering innovative, low impact techniques for construction, demolition, erosion control, storm water management and habitat restoration We would like to acknowledge Dennis Minsky, for invaluable assistance with this booklet, Laura Watts for the Diamond Back Terrapin photo and NHESP for their supportive review of our material. This material may be reproduced for educational purposes. Contact Gordon Peabody for more information. 508-237-3724
Endangered Species Regulations may or may not affect your property and even if your property is listed, the regs may or may not impact your project. Safe Harbor offers free consultation regarding your Endangered Species questions, anywhere in Massachusetts.
Click here to send us your questions gordonsafeharbor@yahoo.com
For additional information and photos on this topic, go to Seminars Page