A Guide to the Massachusetts Endangered Species Act Requirements, Process, and Compliance

The Massachusetts Endangered Species Act (MESA) plays a crucial role in protecting the state's most vulnerable plant and animal species, while also shaping the regulatory landscape for development projects across the Commonwealth. This comprehensive guide delves into the key provisions, compliance obligations, and enforcement mechanisms of the MESA, providing essential insights for navigating the complexities of this pivotal environmental law. From understanding the act's applicability and scope to staying informed about recent developments and regulatory outlooks, readers will gain a solid foundation in the MESA's core principles and practical implications. By exploring the nuances of regulatory standards, limitations, and permitting processes, as well as monitoring, reporting, and recordkeeping obligations, this guide empowers readers to effectively manage projects while ensuring compliance with the MESA's conservation goals. Armed with the knowledge and resources presented herein, stakeholders can confidently approach development initiatives with a keen understanding of their responsibilities under this critical piece of environmental legislation.

GENERAL INFORMATION

Key Details of the Massachusetts Endangered Species Act

Issuing Agency: Massachusetts Division of Fisheries and Wildlife (MassWildlife)

Year Established: 1990

Last Amended: 2010

Statutory Authority: Massachusetts Endangered Species Act (MESA)

Primary Legal Reference: Massachusetts General Laws Chapter 131A¹

Overview of the Massachusetts Endangered Species Act

The Massachusetts Endangered Species Act (MESA) is a state-level regulation that operates within the broader framework of the Massachusetts Environmental Policy Act (MEPA). MESA complements the federal Endangered Species Act (ESA) by providing additional protections for endangered, threatened, and special concern species and their habitats within the state of Massachusetts.

The primary goals of MESA are to conserve, protect, and restore the state's native biodiversity, particularly species that are at risk of extinction. The Massachusetts Division of Fisheries and Wildlife (MassWildlife) is the primary agency responsible for administering and enforcing MESA, with support from other state agencies such as the Massachusetts Department of Environmental Protection (MassDEP).

MESA was first enacted in 1990 and has undergone several amendments, most notably in 2010, to strengthen its protections and streamline its permitting processes. The regulation achieves its goals through a combination of species listing, habitat designation, and a permitting system for activities that may impact protected species or their habitats.

MESA applies to all lands and waters within the state of Massachusetts, including both public and private property. However, certain activities, such as agricultural and forestry practices, are exempt from MESA's permitting requirements.

What does the Massachusetts Endangered Species Act protect?

The Massachusetts Endangered Species Act protects native plant and animal species that are listed as endangered, threatened, or of special concern within the state of Massachusetts. These species are protected from "take," which includes harming, harassing, killing, or disrupting the breeding, feeding, or sheltering of the species. MESA also protects the critical habitats of these species, which are designated as "significant habitats" under the regulation. By prohibiting the take of listed and the alteration of their significant habitats without a permit, MESA helps to conserve and restore the state's biodiversity.

REGULATORY SCOPE & JURISDICTION

Regulated Activities & Entities

The Massachusetts Endangered Species Act (MESA) regulates activities that may impact the viability of endangered, threatened, and special concern species listed under the act. The law applies to both public and private entities engaging in projects or activities that could potentially "take" a protected species, which includes harming, killing, or disrupting the animal's behavior patterns.²

MESA covers a wide range of industries and activities that could impact protected species and their habitats, such as:

• Construction and development projects
• Forestry and agricultural practices
• Recreational activities
• Scientific research and collection

Under MESA, the following activities are prohibited without a permit:³

1. Taking: It is illegal to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect any species listed as endangered, threatened, or of special concern.

2. Habitat Modification: Altering or disrupting the habitat of a protected species in a way that could impair its ability to survive or reproduce is prohibited.

3. Possession: Possessing, selling, offering for sale, delivering, carrying, transporting, or shipping any protected species taken illegally is not allowed.

These prohibitions are essential for protecting the most vulnerable species in Massachusetts and preserving biodiversity. By regulating activities that could harm protected species or their habitats, MESA plays a crucial role in maintaining the ecological balance and health of the state's natural resources.

Structure and Key Provisions

The Massachusetts Endangered Species Act is structured into several key sections that outline the law's purpose, definitions, prohibitions, permitting requirements, and enforcement provisions. Some of the most important sections include:⁴

Section 2: Definitions

This section defines key terms used throughout the act, such as "endangered species," "threatened species," "species of special concern," and "take."

Section 4: Prohibitions

Section 4 outlines the activities that are prohibited under MESA, including taking, possessing, and selling protected species, as well as altering their habitats.

Section 5: Permits

This section establishes the permitting process for activities that may result in the taking of protected species. It outlines the requirements for obtaining a permit, the criteria for permit approval, and the conditions that may be attached to permits.

Section 6: Enforcement

Section 6 details the enforcement provisions of MESA, including penalties for violations, the authority of enforcement officers, and the process for appealing enforcement actions.

COMPLIANCE REQUIREMENTS & STANDARDS

Regulatory Standards & Limitations

The Massachusetts Endangered Species Act (MESA) establishes various standards and limitations to protect and conserve endangered, threatened, and special concern species and their habitats⁵. These standards may include:

• Prohibitions on the "take" of listed species, which includes harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting the species⁶.
• Restrictions on activities that may result in the alteration or destruction of significant habitat for listed species⁷.
• Requirements for projects to avoid, minimize, and mitigate impacts to listed species and their habitats⁸.

The Massachusetts Division of Fisheries and Wildlife (MassWildlife) is responsible for implementing and enforcing these standards through its regulatory review process and permitting authority under MESA⁹.

Monitoring, Reporting & Recordkeeping Obligations

Under MESA, regulated entities may be subject to various monitoring, reporting, and recordkeeping requirements, depending on the nature and location of their projects¹⁰. These obligations may include:

• Conducting surveys and assessments to identify the presence of listed species and their habitats in the project area¹¹.
• Preparing and submitting habitat assessments, conservation and management plans, and other project-related documentation to MassWildlife for review and approval¹².
• Maintaining records of project activities, monitoring data, and compliance with permit conditions¹³.

Developers and consultants should work closely with MassWildlife to understand and fulfill the specific monitoring, reporting, and recordkeeping requirements that apply to their projects under MESA¹⁴.

Enforcement Actions & Penalties

MassWildlife has the authority to take enforcement actions for violations of MESA and its implementing regulations¹⁵. These actions may include:

• Issuing notices of violation or non-compliance¹⁶.
• Issuing administrative orders requiring corrective actions or cessation of activities¹⁷.
• Imposing civil penalties of up to $25,000 per violation¹⁸.
• Seeking criminal penalties, including fines and imprisonment, for knowing violations of MESA¹⁹.

To avoid enforcement actions and penalties, it is crucial for developers and consultants to proactively comply with MESA requirements and engage early with MassWildlife to ensure their projects are designed and implemented in a manner consistent with the conservation of listed species and their habitats²⁰. Readers should consult the full text of MESA and its implementing regulations and work closely with MassWildlife to understand the specific enforcement provisions and penalty structures that may apply to their projects²¹.

ADDITIONAL RESOURCES

Recent Developments & Regulatory Outlook

In recent years, the Massachusetts Endangered Species Act (MESA) has undergone several notable developments that have shaped the current regulatory landscape. One significant change was the amendment of the MESA regulations in 2010, which clarified and streamlined the review process for projects that may impact state-listed species.

Another important development was the Massachusetts Supreme Judicial Court's decision in the case of Pepin v. Division of Fisheries and Wildlife in 2015. This ruling upheld the Division of Fisheries and Wildlife's authority to enforce the MESA and require mitigation measures for projects that impact protected species.

Looking ahead, stakeholders should be aware of potential changes to the MESA as the state continues to balance economic development with the protection of endangered species. The Massachusetts Division of Fisheries and Wildlife periodically updates its list of protected species, which may affect the scope and applicability of the MESA.

To stay informed about these developments, stakeholders can:

1. Monitor the Massachusetts Division of Fisheries and Wildlife website for updates and announcements
2. Join the agency's mailing list to receive notifications about proposed become more involved in relevant changes and public comment periods
3. Engage with industry associations, such as the Massachusetts Association of Conservation Commissions, which often provide guidance and resources related to the MESA

By staying informed and engaged, developers and environmental consultants can better navigate the evolving regulatory landscape and ensure compliance with the MESA as they pursue projects in Massachusetts.

Additional Resources

Massachusetts Endangered Species Act - Full Text: The complete text of the Massachusetts Endangered Species Act, including all amendments to date.

Massachusetts Division of Fisheries and Wildlife - MESA Regulations: The official regulations implementing the MESA, as promulgated by the Massachusetts Division of Fisheries and Wildlife.

Massachusetts Association of Conservation Commissions - MESA Resources: A collection of resources and training materials related to the MESA, developed by the Massachusetts Association of Conservation Commissions, a non-profit organization dedicated to supporting conservation efforts in the state.