RAPID/Roadmap/9-MA-a
Massachusetts State Environmental Review (9-MA-a)
MEPA imposes both procedural and substantive requirements when projects that will likely impact the environment require state action. MEPA seeks to ensure that state agencies are aware of the proposed projects potential environmental impacts before taking action (e.g., issuing a permit or approval, granting financial assistance, or undertaking a development project). MEPA also seeks to ensure that, before taking action with respect to the proposed project, state agencies use “all feasible means to avoid damage to the environment or, to the extent damage to the environment cannot be avoided, to minimize and mitigate damage to the environment to the maximum extent possible.” 301 C.M.R. § 11.01(1)(a). The state agency with jurisdiction over the proposed project must determine whether the project requires MEPA review. If the jurisdictional state agency determines or the Secretary of the Massachusetts Executive Office of Energy and Environmental Affairs (MOEEA) requires MEPA review, the proposed project must go through MEPA review before the state agency may take action on the project. 301 C.M.R. § 11.12(2).
The reviewing state agency and the Secretary of the Massachusetts Executive Office of Energy and Environmental Affairs (MOEEA) regulate MEPA reviews pursuant to Massachusetts – 301 CODE MASS. REGS. §§ 11.00 et seq., Massachusetts Environmental Policy Act Regulations and Massachusetts – MASS. GEN. LAWS ch. 30 §§ 61 et seq., Massachusetts Environmental Policy Act.
If the project also requires National Environmental Policy Act (NEPA) compliance, the developer may submit NEPA compliance documents to meet requirements under MEPA. If the developer submits NEPA documents for MEPA compliance, the MOEEA Secretary determines whether those NEPA documents satisfy requirements under MEPA. Massachusetts – MEPA Office Memorandum Introducing Federal National Environmental Policy Act Practitioners to the Massachusetts Environmental Policy Act.
State Environmental Review Process
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9-MA-a.1 – Consult with MOEEA and/or State Agency (Optional)
A developer may consult with the Massachusetts Executive Office of Energy and Environmental Affairs (MOEEA) or the jurisdictional state agency to determine any MEPA review thresholds the project may meet or exceed and any state agency action it may require. 301 C.M.R. § 11.05(1).
9-MA-a.2 – Consider MEPA Review Thresholds
The jurisdictional state agency must determine whether the proposed project requires MEPA review. 301 C.M.R. § 11.12(2). A project is subject to MEPA review if: 1) there is MEPA jurisdiction over the project, and 2) the project meets or exceeds one of the review thresholds. 301 C.M.R. § 11.01(2).
MEPA establishes jurisdiction over a project undertaken by a state agency, or aspects of project that require a permit from a state agency, or projects that involve assistance from or a land transfer by a state agency. 301 C.M.R. § 11.01(2)(a)(1). A project includes “work, project, or activity either directly taken by an agency, or if undertaken by a person, which seeks…financial assistance by an agency, or requires the issuance of a permit by an agency…” M.G.L. c. 30 § 62. A permit includes “a permit determination, order or other action, including the issuance of a lease, license, permit, certificate, variance, approval or other entitlement for use, granted to any person, firm, or corporation…or other forms of business by an agency for a project…” M.G.L. c. 30 § 62.
A project meets or exceeds one of the review thresholds if the project or aspects of the project's nature, size or location are likely to directly or indirectly cause damage to the environment. 301 C.M.R. § 11.01(2)(b)(1). The review thresholds address projects that will impact a wide variety of environmental mediums, including land, air, and water, as well as projects involving certain substances or activities posing a risk to the environment. The review thresholds, in part, include:
- Construction of electric transmission lines with a capacity of 69 kV or more, provided the transmission lines are one miles in length along new, unused, or abandoned right-of-way; and
- Direct alternation of 25 or more acres of land, unless consistent with generally accepted agricultural or forestry practice.
For a complete list of review thresholds, see: 301 C.M.R. § 11.03.
In determining whether the project is subject to MEPA jurisdiction or meets or exceeds any review thresholds, the developer, any participating state agency and the Secretary MOEEA must consider the “…entirety of the project, including any likely future expansion, and not separate phases or segments…” A project may not phase or segment a project to evade, defer, or curtail MEPA review. 301 C.M.R. § 11.01(2)(c).
The Secretary of MOEEA may impose a Fail-Safe MEPA review of the project. Fail-Safe Review is a mechanism by which the Secretary of MOEEA may require the proposed project requiring state action, to undergo MEPA review even if the project does not meet or exceed a review threshold. 301 C.M.R. § 11.04.
Upon written petition by one or more state agencies or ten (10) or more persons, or at the initiative of the Secretary of MOEEA the Secretary may require that projects that do not meet or exceed any review thresholds undergo MEPA review pursuant to the Fail-Safe MEPA review provisions. 301 C.M.R. § 11.04(1). In making a Fail-Safe MEPA Review decision, the Secretary of MOEEA must find that:
- The project is subject to MEPA jurisdiction;
- The project has the potential to cause damage to the environment and the potential damage to the environment either:
- could not reasonably have been foreseen prior to or when Massachusetts – 301 CODE MASS. REGS. §§ 11.00 et seq., Massachusetts Environmental Policy Act Regulations were promulgated; or
- would be caused by a circumstance or combination of circumstances that individually would not ordinarily cause damage to the environment; and
- The filing of an Environmental Notification Form (ENF) or other compliance with MEPA and Massachusetts – 301 CODE MASS. REGS. §§ 11.00 et seq., Massachusetts Environmental Policy Act Regulations:
- is essential to avoid or minimize damage to the environment; and
- will not result in undue hardship to the project developer.
9-MA-a.3 – Environmental Notification Form (ENF)
The developer must submit a complete Massachusetts Executive Office of Energy and Environmental Affairs – Massachusetts Environmental Policy Act: Environmental Notification Form (ENF) to MOEEA at least ten (10) days after filing an application for a state agency permit or approval or for state financial assistance. When a project involves a land transfer, the developer must file the ENF before the closing of the land transfer. 301 C.M.R. § 11.05(1); M.G.L. c. 30 § 62A. The ENF must include, at minimum:
- A concise, accurate description of the project;
- Identify any review thresholds that the project may meet or exceed; and
- Any state action required for the proposed project.
Expanded ENF
In addition to filing a completed ENF and the required attachments, the developer may file more extensive and detailed information describing and analyzing the project and its alternatives, and assessing its potential environmental impacts and mitigation measures. The developer must provide this additional information if requesting a Single EIR, or to establish a special review procedure. 301 C.M.R. § 11.05(7).
9-MA-a.4 to 9-MA-a.5 – Provide Copies of ENF
The developer must also provide copies of the ENF to the persons and state agencies identified and in the manner prescribed in 301 C.M.R. § 11.16(2). 301 C.M.R. § 11.05(1).
The developer must also publish public notice of the ENF in a newspaper of local circulation in each municipality affected by the project, or in a newspaper of statewide circulation if an affected municipality is not served by a local publication. The developer must publish the public notice in accordance with 301 C.M.R. § 11.15(2). 301 C.M.R. § 11.15(1).
9-MA-a.6 to 9-MA-a.7 – Review ENF Materials for Completeness
MOEEA must review the ENF for administrative and technical completeness. MOEEA may reject an incomplete ENF. If MOEEA rejects an incomplete ENF, the developer must file and circulate a new ENF, and publish a new public notice on the new ENF. 301 C.M.R. § 11.05(1).
9-MA-a.8 to 9-MA-a.9 – Publish Notice of ENF
Once MOEEA receives and accepts a complete ENF, the Secretary of MOEEA must publish certain portions of the ENF in the MOEEA’s Environmental Monitor pursuant to 301 C.M.R. § 11.06(1). The publication in the Environmental Monitor also calls for public comment.
The publication in the Environmental Monitor starts the required 20 to 30 day public comment period. The general public and state agencies may submit written comments to MOEAA regarding the ENF. MOEEA must receive public written comments into the review record. 301 C.M.R. § 11.06(3)-(4).
9-MA-a.10 to 9-MA-a.12 – Review ENF for Environmental Impact Report (EIR) Determination
MOEEA must review the ENF to determine whether an Environmental Impact Report (EIR) is required, and if so what to require in the scope of the EIR. 301 C.M.R. § 11.06(2).
The 30 day review period starts once the ENF is filed within the Environmental Monitor. 301 C.M.R. § 11.06(1). The review period for an expanded ENF requesting a single EIR or special review procedure lasts for 37 days from the time MOEEA files the ENF in the environmental reporter. 301 C.M.R. § 11.06(1).
MOEEA must schedule and conduct a project site visit. 301 C.M.R. § 11.06(2).
The developer and the MOEEA must also hold a public consultation session regarding the proposed project. Any agency or person may inquire of the MOEEA as to the date, time, and location of the consultation session. 301 C.M.R. § 11.06(2).
9-MA-a.13 to 9-MA-a.14 – Certificate of EIR Determination
Depending on the review threshold exceeded, the impacts identified in the ENF, the reaction by the Secretary of MOEAA to the ENF, and comments on the ENF, the developer may also need to prepare EIR. 301 C.M.R. § 11.03. After the close of the public comment and on or before the last day of the ENF review period, MOEEA must issue a written certificate stating whether an EIR is required. 301 C.M.R. § 11.06(7).
A mandatory EIR is required for the construction of electric transmission lines with a capacity of 230 kV or more, if the transmission lines are five or more miles in length along new, unused, or an abandoned right-of-way. 301 C.M.R. § 11.03(7)(a)(4). For a complete list of projects that require a mandatory EIR see: 301 C.M.R. § 11.03.
MOEEA also has the discretion to require a mandatory EIR for a project even if the project does not meet the thresholds defined in 301 C.M.R. § 11.03.
MOEEA’s failure to issue a certificate constitutes determination that no EIR is required unless the project meets or exceeds a review threshold mandating an EIR. 301 C.M.R. § 11.06(7).
9-MA-a.15 – Submit Notice of Intent to Commence Action (Optional)
An agency, person, or the developer may submit a Notice of Intent to Commence Action (NOI) alleging that the Secretary of MOEEA improperly decided that a project requires an EIR within 60 days of the publication of notice of the Secretary’s decision in the Environmental Monitor in accordance with 301 C.M.R. § 11.15(2). 301 C.M.R. § 11.14(1).
9-MA-a.16 – Determine Scope of EIR
If an EIR is required, MOEEA must determine the scope of the EIR. The scope of the EIR dictates the form, content, and level of detail required for the EIR. 301 C.M.R. § 11.06(7), (9). MOEEA must limit the scope of the EIR to those aspects of the project that are likely to cause environmental damage, but in the case of a proposed project requiring either one or more permits or a land transfer (but not financial assistance). The scope must also include the potential environmental impacts of the project that are within the subject matter of any required permit or within the land transfer are, regardless of whether or not those aspects meet or exceed review thresholds. 301 C.M.R. § 11.06(9)(a)-(b).
9-MA-a.17 – Draft EIR (DEIR) or Single EIR (SEIR)
When issuing the scope of the EIR the Secretary of MOEEA ordinarily requires the developer to prepare and submit a Draft EIR (DEIR) and a Final EIR (FEIR). However, the Secretary of MOEEA may allow a Single EIR (SEIR), provided that the developer’s requested a SEIR, provided adequate information to supplement the ENF filing, and Secretary finds that the ENF:
- Describes and analyzes all aspects of the project and all feasible alternative regardless of any jurisdictional or other limitation that may apply to the scope;
- Provides a detailed baseline in relation to which potential environmental impacts and mitigation measures can be assessed; and
- Demonstrates that the planning and design of the project use all feasible means to avoid potential environmental impacts.
If an EIR is mandatory or MOEEA otherwise requires an EIR, the developer must submit a complete Draft EIR (DEIR) or Single EIR (SEIR) (if allowed) to MOEEA, unless the scope indicates otherwise. 301 C.M.R. § 11.07(3). The DEIR/SEIR must comply with the format and scope outlined in 301 C.M.R. § 11.07(6).
The developer must file a DIER or SEIR with the Secretary of MOEEA as soon as is reasonably possible, taking into consideration the nature, size, and status of the project, after MOEEA issues the scope. 301 C.M.R. § 11.07(1).
In accordance with the scope, the DEIR or SEIR must present a reasonably complete and stand-alone description of the project, any alternatives to the project, and its potential environmental impacts and mitigation measures. 301 C.M.R. § 11.07(3). The DEIR or SEIR must include, at minimum:
- The status of the project planning and design;
- The type and size of the project;
- The requirements of any state agency action; and
- The availability of reasonable alternatives and methods to avoid or minimize potential environmental impacts and the opportunity to assess environmental impacts and to identify appropriate mitigation measures.
9-MA-a.18 to 9-MA-a.20 – Provide Copies of DEIR or SEIR
The developer must provide copies of the DEIR or SEIR to each person or agency who previously commented on the ENF and to any other person or agency identified in the scope. 301 C.M.R. § 11.16(3).
As with the review of the ENF, the Secretary of MOEEA publishes notice of the DEIR or SEIR in the Environmental Monitor. 301 C.M.R. § 11.08(1).
Notice of the DEIR or SEIR in the Environmental Monitor includes notice that the public or any interested party may submit comments to MOEEA regarding the DEIR or SEIR. The filing of the notice in the Environmental Monitor starts the thirty (30) day public comment period. 301 C.M.R. § 11.08(1).
The general public and state agencies may submit written comments to MOEAA regarding the DEIR. MOEEA must receive public written comments into the review record. 301 C.M.R. § 11.08(4).
9-MA-a.21 to 9-MA-a.22 – Publish Notice of Public Information Meeting (If Applicable)
MOEEA may hold or may require the developer to hold a public information meeting or meetings. Meetings can include a public hearing, informal workshops, or public meetings at appropriate times before and during the preparation of an EIR. MOEEA or the developer must provide notice of the public informational meeting at least seven (7) days before any hearing, workshop, or meeting to allow any state agency or person to prepare adequately and to make informed comments at the hearing, workshop, or meeting. 301 C.M.R. § 11.08(3).
9-MA-a.23 to 9-MA-a.24 – Review DEIR or SEIR
The agency with jurisdiction over the proposed project must review a DEIR or SEIR. If it appears that the project requires agency action (e.g., issuing a permit) or that the project may significantly affect any interest of the state agency or any statutes or regulations administered by the agency, the state agency must:
- File comments with the Secretary in accordance with 301 C.M.R. § 11.08(4); and
- Specify in its comments:
- any agency action required to be taken by the agency for the project;
- any aspect of the project or issue requiring additional description or analysis; and
- any opportunity to maximize consistency and facilitate coordination between the state agency action and MEPA review or any other agency actions.
9-MA-a.25 – Review DEIR or SEIR
The filing of the DEIR or SEIR in the Environmental Monitor starts the thirty-seven (37) day review period. 301 C.M.R. § 11.08(1). During the review period, the Secretary of MOEEA must also receive into the record comments from the public or any state agency. 301 C.M.R. § 11.08(4). MOEEA reviews the DEIR or SEIR to determine if a Final EIR is required and/or if the developer’s project proposal complies with MEPA.
9-MA-a.26 to 9-MA-a.31 – Certificate of DEIR or SEIR Determination
In reviewing a DEIR or SEIR, the Secretary of MOEEA may determine that the DEIR or SEIR is adequate, or may determine that the DEIR or SEIR is inadequate and requires the developer to file a FEIR or a Supplemental DIER or SEIR. 301 C.M.R. § 11.08(8)(b)(1)-(3)(d)(1)-(3).
The Secretary of MOEE must issue a written DEIR or SEIR Certificate determining whether or not the DEIR “adequately and properly” complies with MEPA within seven (7) days of the close of the comment period. 301 C.M.R. § 11.08(8)(a).
If the Secretary of MOEEA finds that the DEIR or SEIR is inadequate, the Secretary may require the developer to file a Supplemental DEIR or a FEIR. 301 C.M.R. § 11.08(8)(b), (d).
DEIR
With respect to a DEIR, the Secretary may determine that the DEIR is adequate, that no additional substantive issues need to be addressed, and may either give notice that the DEIR will be reviewed as a Final EIR (FEIR) (which occurs rarely) or require the project developer to respond to comments on the DEIR and publish notice that those responses and findings will be reviewed as the FEIR. 301 C.M.R. § 11.08(8)(b).
SEIR
In accordance with 301 C.M.R. § 11.06(8) the Secretary must determine that the SEIR is adequate, even if certain aspects of the project or issues require additional analysis of technical details, provided that:
- The Secretary finds that the aspects and issues have been clearly described and their nature and general elements analyzed in the EIR or during MEPA review;
- That the aspects and issues can be fully analyzed prior to any state agency issuing findings; and
- That there will be meaningful opportunities for public review of the additional analysis before any agency taking agency action on the project.
If no FEIR is required, the developer must respond to comments on the SEIR and publish notice that those responses and findings will be reviewed as the FEIR.
9-MA-a.32 – Final EIR (FEIR)
If an FEIR is required, the developer must submit a complete FEIR to MOEEA, unless the scope indicates otherwise. 301 C.M.R. § 11.07(3).
The Secretary of MOEEA may limit the scope of the FEIR review to aspects of the project or issues that require further description or analysis and a response to comments, instead of requiring a stand-alone document that meets all of the form and content requirements for an EIR. 301 C.M.R. § 11.07(6). The draft and final EIRs must present a complete and definitive description and analysis of the project, project alternatives, and assessment of the project’s potential environmental impacts and mitigation measures. 301 C.M.R. § 11.07(4).
The FEIR must comply with the format and scope outlined in 301 C.M.R. § 11.07(6).
The developer must file a FEIR with the Secretary of MOEEA as soon as is reasonably possible, taking into consideration the nature, size, and status of the project, after MOEEA issues the scope. 301 C.M.R. § 11.07(1).
9-MA-a.33 to 9-MA-a.35 – Provide Copies of FEIR
The developer must provide copies of the FEIR to each person or agency who previously commented on the ENF and to any other person or agency identified in the scope. 301 C.M.R. § 11.16(3).
As with the review of the ENF, the Secretary of MOEEA publishes notice of the FEIR in the Environmental Monitor. 301 C.M.R. § 11.08(1).
Notice of the FEIR in the Environmental Monitor includes notice that the public or any interested party may submit comments to MOEEA regarding the FEIR. The filing of the notice in the Environmental Monitor starts the thirty (30) day public comment period. 301 C.M.R. § 11.08(1), (4).
The general public and state agencies may submit written comments to MOEAA regarding the FEIR or Single EIR. MOEEA must receive public written comments into the review record. 301 C.M.R. § 11.08(4). If a project requires state agency action (e.g., permit approval), that agency must file appropriate comments with the Secretary of MOEEA. 301 C.M.R. § 11.08(7).
9-MA-a.36 to 9-MA-a.37 – Publish Notice of Public Information Meeting (If Applicable)
MOEEA may hold or may require the developer to hold a public information meeting or meetings. Meetings can include a public hearing, informal workshops, or public meetings at appropriate times before and during the preparation of a FEIR. MOEEA or the developer must provide notice of the public informational meeting at least seven (7) days before any hearing, workshop, or meeting to allow any state agency or person to prepare adequately and to make informed comments at the hearing, workshop, or meeting. 301 C.M.R. § 11.08(3).
9-MA-a.38 – Review FEIR
The filing of the FEIR in the Environmental Monitor starts the 37 day review period. 301 C.M.R. § 11.08(1). During the review period, the Secretary of MOEEA must also receive into the record comments from the public or any state agency. 301 C.M.R. § 11.08(4). MOEEA reviews the FEIR to determine if a Supplemental FEIR is required and/or if the developer’s project proposal complies with MEPA.
9-MA-a.39 to 9-MA-a.41 – Certificate of FEIR Determination
The Secretary of MOEE must issue a written FEIR determining whether or not the DEIR “adequately and properly” complies with MEPA within seven (7) days of the close of the comment period. 301 C.M.R. § 11.08(8)(a).
In reviewing the FEIR, the Secretary of MOEEA may determine that the FEIR is adequate or may determine that the FEIR is inadequate and requires the developer to file a Supplemental FEIR. 301 C.M.R. § 11.08(8)(c). The Secretary must find that the FEIR is adequate, even if certain aspects of the project or issues require additional analysis of technical details, provided that:
- The Secretary finds that the aspects and issues have been clearly described and their nature and general elements analyzed in the EIR or during MEPA review;
- That the aspects and issues can be fully analyzed prior to any state agency issuing findings; and
- That there will be meaningful opportunities for public review of the additional analysis before any agency taking agency action on the project.
9-MA-a.42 to 9-MA-a.43 – Publish Notice of MEPA Compliance Decision (If Applicable)
The Secretary of MOEEA must publish notice of whether the EIR, SEIR, or FEIR complies with MEPA in the Environmental Monitor in accordance 301 C.M.R. § 11.15(2).
9-MA-a.44 – Notice of Commencement to Construct (If Applicable)
The developer must submit a Notice of Intent to Construct to MOEEA for any project the Secretary required an EIR. 301 C.M.R. § 11.08(10).
9-MA-a.45 – Submit Notice of Intent to Commence Action (Optional)
An agency or person alleging that the Secretary of MOEEA improperly decided that a SIER or FEIR complies with MEPA and Massachusetts – 301 CODE MASS. REGS. §§ 11.00 et seq., Massachusetts Environmental Policy Act Regulations must submit a Notice of Intent to Commence Action to MOEEA. 301 C.M.R. § 11.14(1).
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Regulations
References
- Massachusetts Executive Office of Energy and Environmental Affairs – Massachusetts Environmental Policy Act: Environmental Notification Form
- Environmental Monitor
- Massachusetts – MEPA Office Memorandum Introducing Federal National Environmental Policy Act Practitioners to the Massachusetts Environmental Policy Act
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Massachusetts Executive Office of Energy and Environmental Affairs
Department of Environmental Protection
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