Sources: Massachusetts General Laws Annotated 1991, Chapters 21, 131, 131A; 1992 Cumulative Annual Pocket Part.
STATE WILDLIFE POLICY: None.
PROTECTED SPECIES OF WILDLIFE
A person, except the owner or authorized agent, shall not detain, hunt, injure or interfere with a homing or carrier pigeon, or remove an identification mark, band or other thing (131-84).
Except as otherwise provided, no person may take, possess, transport, export, process, sell or offer for sale, buy or offer to buy, nor shall a common or contract carrier knowingly transport or receive for shipment, a plant or animal listed as endangered, threatened or of special concern or listed under the Federal Endangered Species Act. Except as otherwise provided in this chapter, no person may alter significant habitat (131A-2).
The Director shall conduct investigations and consult with the Nongame Advisory Committee to determine if a species constitutes an endangered or threatened species or species of special concern. Criteria for determining such status shall be based on biological data including, but not limited to: reproductive and population status and trends; whether the species is native or has been introduced; vulnerability, determined by threats to the species or its habitat; specialization, determined by unique habitat requirements; restricted distribution, determined by limited or disjunct geographic range; rarity, determined by a limited number of occurrences or numbers. The Director shall list endangered, threatened and special concern species and review the list at least once every five years for listing or delisting. The burden of proof for delisting species is on the person requesting such change in status. The establishment of the list and proposed changes shall be by regulation after a public hearing and subject to the provisions of Chapter 30A. By regulation the Director shall designate significant habitats of endangered or threatened species populations, after a public hearing, and subject to provisions of Chapter 30A, after taking into consideration the following criteria: current and foreseeable threats to the population or its habitat; population size; potential benefits of designation to the population and to the status and welfare of the species generally; current and foreseeable uses of the land. The Director shall review yearly and designate significant habitats and may revise them by regulation (131A-4).
The location of designated significant habitats shall be marked on maps, and affected record owners shall be notified by certified mail not less than 30 days before public hearing. Upon designation, the Director shall record a document identifying the location of each habitat, together with a list of the owners of such lands, in the proper registry of deeds and shall send notification by certified mail to each record owner. Significant habitat maps shall be made available to local zoning boards, planning boards and conservation commissions, or to the local board of selectmen or mayor and city council, in communities where such habitats occur. Local zoning or planning boards or conservation commissions shall notify the Director in writing, within 21 days of filing, of petitions, requests or applications for permits, orders or approvals regarding proposed activity within significant habitats. Record owners of lands or interests in land containing significant habitat may appeal a designation to the Secretary of the Office of Environmental Affairs within 21 days. The Secretary shall hold a hearing no later than 120 days from designation, make a determination within 60 days, and reverse the decision only upon a finding that such decision was without substantial basis in fact. In addition to the appeal, owners of land containing significant habitat may petition the Director to consider purchasing such habitat. After a public hearing and in accordance with procedures in Chapter 30A, the Division shall adopt regulations to implement this chapter, to be promulgated with the advice and assistance of a Technical Advisory Committee of nine persons appointed by the Director. This committee shall consist of: two university or college professors, with expertise in endangered species biology; a member of a Massachusetts environmental organization; a member from the Nongame Advisory Committee; a member of the sporting community; a utilities industry representative; a real estate development industry representative; a Department of Highways staff member; an agricultural representative. Regulations shall include, but not be limited to: criteria to be applied in determining which activities will reduce the viability of significant habitat to support endangered or threatened species; criteria to further define alteration of a significant habitat; regulations to carry out the purposes of this chapter. This provision does not affect existing regulations listing species. Agencies, departments, boards, commissions and authorities shall utilize their authorities in furtherance of this chapter and determine the impact on listed species of their works, projects or activities and use all practicable means and measures to avoid or minimize damage to such species (131A-4).
HABITAT PROTECTION
For the purpose of protecting a species of useful fish, birds or mammals and for aiding propagation, the Director may acquire in fee by purchase, gift or devise, or may lease, or with the consent of the owners may control land, water or shore, or the right to use, as a wildlife sanctuary. With the approval of the Governor, the Director may receive in trust for the commonwealth any grant or devise of land or a gift or bequest of personal property for aiding in the propagation and protection of useful fish, birds or mammals. Unless approved by the general court, no obligation shall be imposed on the commonwealth to expend more than the income of the trust property, or more than the income and principal thereof. In respect to a territory mentioned in section 131-7 or 131-59, with the consent of the appropriate authorities, the Director may make use of the land, water or shore for improving the feeding and nesting environment of birds or mammals, and may make rules and regulations which when approved by the Governor have the force of law. The Director with like consent may liberate birds within territories, and when advisable, cooperate with landowners in experiments in propagation of birds and mammals. If the Director establishes a wildlife sanctuary, a copy of the order shall be published once a week for two successive weeks, and the order shall be posted within the cities and towns, and also within the limits of the territory itself. If a great pond or part, or a seashore is included within the territory, a copy of the order shall be filed in the office of the clerk of each bordering city and town, and with the state secretary. Orders shall take effect when posted, and shall contain a full description of the territory and the period. Whenever a wildlife sanctuary has been established, except as authorized by the Director, no person shall hunt, trap or take a bird or mammal; nor enter with a firearm, trap, snare, or other device for killing, taking or injuring birds and mammals; nor take, molest, disturb or destroy a nest, eggs or young or mammals or remove eggs or young from the nest (131-7 through -10).
The Executive Office of Environmental Affairs, the Department or Department division may designate as a nature preserve real property owned by the commonwealth and under the care and control of one of these offices. After a determination that the parcel qualifies as a nature preserve, the Division shall hold a public hearing, and shall file with the Executive Office of Environmental Affairs a statement dedicating a nature preserve which includes why the parcel qualifies as a nature preserve and a plan for its preservation and protection. A nature preserve shall be monitored and maintained as nearly as possible in its natural condition, and shall be used in a manner and under limitations consistent with its status, without impairment or artificial development, for present or future scientific research and education, for providing a habitat for plant and animal species, communities and other natural objects, and preservation of areas representative of significant habitats and ecosystems of the commonwealth (131-10A). A Nature Preserve Council (Council) shall consist of seven members appointed by the Secretary of the Executive Office of Environmental Affairs: four shall be members of the Nongame Advisory Committee; two shall be trained in plant ecology, and represent colleges, universities, outdoor education programs, primary and secondary schools, science museums, and arboreta; and one shall be knowledgeable in natural history and represent the general public. Terms are three years and members are eligible for reappointment. Duties include advising the Division on policies and rules and regulations concerning nature preserves, consulting regarding nomination of potential nature preserves, assisting in preparation of such plans, and advising the Division on related budgetary matters. The Council shall submit a biennial report to the Governor, describing the condition of each nature preserve, outlining actions taken by the Council, and making recommendations related to the nature preserve program (131-10B). In consultation with another department or division within the Executive Office of Environmental Affairs which has control of such parcel, the Division shall consider the public interest in conservation and preservation of the preserve, and any federal, state or local program in furtherance thereof, any state, regional or local comprehensive land use or development plan affecting said parcel, and a proposal by a governmental body for its use. The Division shall promulgate rules and regulations to effectuate the nature preserve program (131-10D).
No person shall remove, fill, dredge or alter a bank, fresh water wetland, coastal wetland, beach, dune, flat, marsh, meadow or swamp bordering on the ocean or on an estuary, creek, river, stream, pond, or lake, or land under said waters or land subject to tidal action, coastal storm flowage, or flooding, other than in the course of maintaining, repairing or replacing, but not substantially changing, an existing lawfully located structure or facility used to serve the public and to provide electric, gas, water, telephone, telegraph and other telecommunication services, without filing written notice of intention to act, including plans describing the proposed activity and its effect on the environment and without receiving and complying with an order of conditions [terms of filing of notice, receipt, copies and fees provided]. No such notice shall be sent before all permits, variances, and required approvals have been obtained, except that the notice may be sent after the filing of an application(s) for such permits, variances, and approvals. The notice shall include information describing the effect of the proposed activity on the environment. Within 21 days of receipt by a conservation commission of a written request, the Commission shall make a written determination as to whether this section is applicable to any land or work thereon. The conservation commission, selectmen or mayor receiving notice shall hold a public hearing on the proposed activity within 21 days of receipt of notice [details of time and place of hearing given]. The conservation commission and its agents, officers and employees and the Commissioner of Environmental Protection and agents and employees, may enter upon private land to perform their duties under this section. No conditions shall be imposed, nor a determination be rendered by a conservation commission without a quorum. If after the hearing the conservation commission, selectmen or mayor, determines that the area on which the proposed work is to be done is significant to public or private water supply, groundwater supply, flood control, storm damage prevention, prevention of pollution, protection of land containing shellfish, protection of wildlife habitat or protection of fisheries, they shall by written order within 21 days impose conditions, and all work shall be done in accordance therewith. If it is determined that the proposed activity does not require such conditions, the applicant shall be notified within 21 days after the hearing. If a conservation commission within 21 days has failed to hold a hearing; or after such hearing has failed to issue an order; or upon a written request by a person to determine whether this section is applicable to any work, has failed to make said determination; or where an order does issue; the applicant, an aggrieved person, or owner of land abutting the land, or ten residents of the city or town in which the land is located, within 10 days may request the Department of Environmental Protection to determine whether the area is significant to public or private water supply, groundwater supply, flood control, storm damage prevention, prevention of pollution, protection of land containing shellfish, the protection of wildlife habitat or the protection of fisheries. The Commissioner of Environmental Protection or a designee also may request such a determination within 10 days [further details provided]. As used in this section "wildlife habitat" shall mean those areas subject to this section which, due to their plant community composition and structure, hydrologic regime or other characteristics, provide important food, shelter, migratory or overwintering areas, or breeding areas for wildlife (131-40). For preservation and promotion of the public safety, private property, wildlife, fisheries, water resources, flood plain areas and agriculture, the Commissioner of Environmental Protection shall adopt, amend or repeal orders regulating, restricting or prohibiting dredging, filling, removing or otherwise altering or polluting inland wetlands. In this section, "inland wetlands" includes the definition of "freshwater wetlands" and that portion of a bank which touches inland waters of a freshwater wetland, and freshwater wetland subject to flooding (131-40A).
If fisheries in inland waters are of sufficient value to warrant prohibition or regulation of the discharge of waste or other material from any source, which may directly or indirectly injure such fisheries, the Director may give written notice to the Director of the Division of Water Pollution Control, who shall take appropriate action (131-41). A person shall not put, throw, discharge or permit to be discharged or to escape into inland waters waste or other material in violation of section 131-40 or of the Massachusetts Clean Water Act, which may directly or indirectly injure or kill fish or fish spawn, nor shall a person alter or manipulate or permit to be altered or manipulated the flows or water levels in inland waters to the extent that directly or indirectly injures or kills the fish or spawn, except as provided in section 131-48. This section does not apply to agents or persons authorized to use any method for sampling, eradication or management of fish and fish habitat, nor does it prohibit the use of explosives for engineering, construction, fish sampling and public welfare providing the appropriate permit has been given by US, state or municipal government. This section does not apply to providing water for public water supply purposes. Contrary to a provision of this section, except as otherwise provided, whoever does or allows an act that directly or indirectly injures or kills or causes damage to fish or spawn in inland waters is liable in tort, in twice the amount of the damage done, to the commonwealth through its Division of Fisheries and Wildlife. The Director shall establish the value of injured, killed or damaged fish or spawn employing current commercial values. In determining the remuneration for injured, killed or damaged fish or spawn the Director may negotiate a settlement of the amount of such remuneration. If such settlement cannot be negotiated to the Director's satisfaction, the superior court shall upon petition of the Director establish the value of fish or spawn (131-42).
No riparian proprietor of a natural pond other than a great pond, or of an artificial pond or nonnavigable stream, shall enclose waters within those premises without furnishing a suitable passage for anadromous fish naturally frequenting such waters to spawn; nor shall a riparian proprietor enclose the waters for artificial propagation, cultivation and maintenance of fish, except shiners as authorized, without a propagator's license. Without written consent of the proprietor/lessee of a natural pond which is not a great pond, or of an artificial pond or nonnavigable stream, where fish are lawfully propagated or maintained under a license, a person shall not take or attempt to take, fish (131-47).
A person shall not hunt, molest or destroy a bird or mammal within the boundaries of a reservation, park or common, or land owned or leased by the commonwealth or political subdivision, or land held in trust for public use. Authorities or persons having control of such reservations, parks, commons or other lands may permit hunting within the boundaries during open season. Authorities having control of reservations, parks, commons or land owned or leased or held for public use; the Director, deputy directors, chiefs and deputy chiefs of Law Enforcement; environmental police officers and deputies; wardens and state police in areas over which they have jurisdiction; and officers qualified to serve criminal process shall enforce this section. This section does not apply to state forests, or to state parks and reservations under control of the Division of Forests and Parks of the Department of Environmental Management. Nothing in this section prohibits an agency of the commonwealth or its political subdivisions from permitting hunting during open season, in an area owned or leased by it, or from entering into agreements with the Director to establish wildlife management areas (131-59).
Before a person alters a significant habitat, except as provided, the person shall submit to the Director the following: full plans and a complete description of the project and the anticipated use; alternatives to the proposed project and anticipated use; impacts of the proposed project and anticipated use on the subject species; full plans for protection of endangered or threatened species present and mitigation measures to be taken to provide amelioration of the impact; the potential economic effects of the proposed project on the person and the community. No alteration of a significant habitat may commence without a written permit issued by the Director. The Director shall render a decision within 45 days of receiving all required information. A permit shall be granted only upon a finding that the proposed action will not reduce the viability of the significant habitat to support the endangered or threatened species population involved (131A-5). (See PROTECTED SPECIES OF WILDLIFE for other significant habitat provisions.)
Any work, project or activity for which a final environmental impact report has been issued and certified by the Secretary of Environmental Affairs as complying with the provisions of Chapter 30, or for which an environmental notification form has been filed and the Secretary has certified that an environmental impact report is not required, and for which the Natural Heritage and Endangered Species Program has reviewed the project and made recommendations, and for which the project proponent has incorporated such measures, shall be issued a permit by the Director, except that the permit may be conditioned upon implementation of the measures. Failure of the program to make recommendations within the following time periods is equivalent to the issuance of a permit by the Director: if an environmental impact report is not required, 90 days after the Secretary issues a notice of the receipt of an environmental notification form; if an environmental impact report is required, prior to certification by the Secretary that the final report complies with Chapter 30. Record owners of lands or interests in lands aggrieved by a decision of the Director or by the Director's failure to act may appeal to the Secretary by sending, by certified mail, a notice of appeal within 21 days of such decision. The Secretary shall hold a hearing no later than 120 days from the date of decision, shall consider the information and testimony presented, and shall make a determination within 60 days. The Secretary shall reverse only upon a finding that the decision was without substantial basis in fact, but shall examine fully on the merits an appeal involving the Director's failure to act. This section does not apply to work performed in the normal maintenance or improvement on land in agricultural or aquacultural use. In addition to appeal, a landowner aggrieved by a decision of the Director may file an action in superior court to determine whether such decision constitutes a taking requiring compensation under the US Constitution (131A-5).
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New Mexico Center for Wildlife Law
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