Regulatory History of Stream Crossing Standards

1. Regulatory History of Stream Crossing Standards Army Corps adopted Standards in 2005 Programmatic General Permit. MassDEP amended WQC Regulations in 2008 to require new subdivision projects to meet Stream Crossing Standards Wetlands Regulations for Bank and Land Under Waterways says projects shall not impair: the water carrying capacity of the channel; or the capacity of the Bank to provide breeding habitat, escape cover and food for fisheries; or the capacity to provide important wildlife habitat functions Meeting the stream crossing standards meets the regulatory standards

2. MassDEP supports stream crossing improvements • MassDEP has implemented the Stream Crossing Standards through its permitting actions • MassDEP had participated in numerous workshops • MassDEP assessed ~400 crossings last year • MassDEP will assess ~200 crossings this year

3. MassDEP is evaluating design standards • MassDEP is working with USGS to evaluate recent precipitation and streamflow data. • Data suggests that precipitation intensity and storm return frequency has increased. • New Standards for calculating runoff and streamflow may be warranted.

6. Improved crossings will help to protect fish, wildlife and infrastructure • 2012 FEMA decision refused to reimburse Townsend, VT for cost of improving crossing damaged in Irene • Stream crossing standards help prevent problems at new crossings and alleviate impacts to environment and infrastructure at replacement crossings. • MassDEP is seeking to work with FEMA to assist Towns in getting reimbursement for upgrading damaged crossings

7. MassDEPhas proposed regulatory amendments • Current regulatory standard provides disincentive to upgrade crossings • Notwithstanding the provisions of 310 CMR 10.54 through 10.58 and 10.60, the Issuing Authority may issue an Order of Conditions and impose such conditions as will contribute to the interests identified in M.G.L. c. 131, § 40 permitting the following limited projects • (i)   The maintenance, repair and improvement (but not substantial enlargement except when necessary to meet the Massachusetts Stream Crossing Standards) 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 310 CMR 10.51 through 10.60 (April 1, 1983).

8. Proposed Regulatory Reform • Wetlands Regulations will require new crossings to meet the stream crossing standards • Wetlands Regulations will require replacement crossings to evaluate ability to meet the standards • If standards cannot be fully met, they will have to be met to the maximum extent practicable • Evaluation of upstream and downstream constrictions will be needed

9. MassDEP is proposing regulatory amendments • 310 CMR 10.53 (8) Any person proposing a stream crossing shall demonstrate to the Issuing Authority that there are no practicable alternatives to the crossing, that the impacts of the crossing have been minimized and that mitigation measures have been provided to contribute to the protection of the interests identified in M.G.L. c. 131, § 40. An applicant will be presumed to have made this showing if the project is designed as follows: • (a) If the project includes the construction of a new non-tidal crossing, the applicant demonstrates to the satisfaction of the Issuing Authority that the crossing complies with the Massachusetts Stream Crossing Standards. • (b) If the project includes the construction of a new tidal crossing, the applicant demonstrates to the satisfaction of the Issuing Authority that the project is designed in a manner that does not restrict tidal flow over the full natural tidal range. • (c) If the project includes work on an existing non-tidal crossing, applicant demonstrates to the satisfaction of the Issuing Authority that the crossing complies with the Massachusetts Stream Crossing Standards to the maximum extent practicable. • (d) If the project includes work on an existing tidal crossing that restricts tidal flow, the applicant demonstrates to the satisfaction of the Issuing Authority that tidal restriction will be eliminated to the maximum extent practicable. • This presumption may be overcome by credible evidence from a competent source that the impacts of the crossing have not been designed in a manner that avoids, minimizes and mitigates adverse impacts to the maximum extent practicable.