(2) Nutrient Removal Projects. Subject to the limits on contract assistance provided in M.G.L. c. 29C, § 6, a Local Governmental Unit applying for financial assistance for a Nutrient Removal Project, as defined in 310 CMR 44.03, on the Intended Use Plan for calendar year 2009 to calendar year 2069, is eligible for loans and other forms of financial assistance at the financial equivalent of a loan made at an interest rate at 0% if the Local Governmental Unit demonstrates to the Department's satisfaction that it meets all of the following criteria:

1. (a) the Local Governmental Unit is not currently subject, due to a violation of a nutrient-related total maximum daily load standard or other nutrient based standard, to a Department enforcement order, administrative consent order or unilateral administrative order, enforcement action by the EPA or subject to a state or federal court order relative to the proposed project, excluding any such order or action establishing a schedule for coming into compliance with more stringent effluent limitations contained in a NPDES renewal permit or permit modification;
2. (b) the Local Governmental Unit has a CWMP that has been approved by the Department or the Department determines that the project is consistent with a 208 Plan;
3. (c) the project is consistent with the regional water resources management plan including, but not limited to, a 208 Plan, if such a plan exists, as evidenced by written notice of such by the Regional Land Use Planning Agency for the region where the Local Governmental Unit is located; and
4. (d) the Local Governmental Unit demonstrates in accordance with 310 CMR 44.07(3) to the Department's satisfaction, in consultation with the Massachusetts Department of Housing and Community Development and, where applicable, the Regional Land Use Planning Agency for the region where the Local Governmental Unit is located, that it has adopted Land Use Controls that ensure the overall wastewater flow amount in the community will not increase as a result of sewering beyond the flow amount authorized under the Land Use Controls that were in effect on the date the Secretary issued a MEPA certificate for the CWMP or, if none exists, the date of a 208 Plan, if such a plan exists.

(3) Flow Neutral Land Use Controls. To demonstrate that it has adopted adequate Land Use Controls to ensure that the overall wastewater flow in the community will be "flow neutral", as required by M.G.L. c. 29C, § 6, and 310 CMR 44.07(2)(d), a Local Governmental Unit must estimate wastewater flow volume to demonstrate that overall wastewater flow in the sewered watershed will not increase as a result of the project for which a zero rate of interest is sought. A Local Governmental Unit will be deemed to have established such "flow neutral" Land Use Controls if the Local Governmental Unit has a Department-approved CWMP or 208 Plan that includes a watershed benchmark flow, and the Local Governmental Unit has established Land Use Controls that limit future wastewater flow volume to the watershed benchmark flow contained in the Department-approved CWMP or 208 Plan. Such Land Use Controls must be in effect prior to closing to receive zero rate of interest loans. In demonstrating that it has established such "flow neutral" Land Use Controls, a Local Governmental Unit may use either one of the two methods in 310 CMR 44.07(3)(a) or (b). In doing so, the Local Governmental Unit should express all flow volumes as an annual average in gallons per day per acre.

1. (a) Method 1: Presumptive Determination of Flow Neutrality. To demonstrate that the Local Governmental Unit has established Land Use Controls that limit future wastewater flow volume to the watershed benchmark flow, the Local Governmental Unit shall establish as the watershed benchmark flow the total flow volume for all parcels of land within the nutrient sensitive watershed subject to the Local Governmental Unit's jurisdiction, as identified in the CWMP or 208 Plan, excluding only those parcels whose owners have been allowed to opt out in accordance with M.G.L. c. 83, § 1B, calculated as follows:

   1. 1. Flow Volume for the Developed Residential Parcels. The Local Governmental Unit shall utilize actual water meter flow data to establish the annual average flow volume for the developed residential parcels. If no actual water meter flow data exists to establish an annual average residential flow, then the Local Governmental Unit shall utilize actual water meter flow data for comparable developed residential parcels in the same or similarly-sized city or town or watershed to estimate the annual average flow volume for the developed residential parcels.
   2. 2. Flow Volume for the Undeveloped Residential Parcels. The Local Governmental Unit shall utilize actual water meter flow data for comparable developed residential properties in the same city or town or watershed to estimate the annual average flow volume for the undeveloped residential properties under the local Land Use Controls in effect as of the date the Secretary issued a MEPA certificate for the CWMP or the date of a 208 Plan.
   3. 3. Flow Volume for the Developed Non-residential Parcels. The Local Governmental Unit shall utilize actual water meter flow data to establish the annual average flow volume for the developed non-residential parcels. If no actual water meter flow data exists to establish such annual average flow volumes, then the Local Governmental Unit shall utilize actual water meter flow data for comparable developed non-residential parcels in the same city or town or watershed to estimate the annual average flow volume for the developed non-residential parcels under the local Land Use Controls in effect as of the date the Secretary issued a MEPA certificate for the CWMP or the date of a 208 Plan.
   4. 4. Flow Volume for the Undeveloped Non-residential Parcels. The Local Governmental Unit shall utilize actual water meter flow data for comparable developed non-residential parcels in the same city or town or watershed to estimate an annual average flow volume for the undeveloped non-residential properties under the local Land Use Controls in effect as of the date the Secretary issued a MEPA certificate for the CWMP or the date of a 208 Plan.

2. (b) Method 2: Non-presumptive Determination of Flow Neutrality. As an alternative to Method 1, a Local Governmental Unit may elect to establish flow neutrality by demonstrating that future total wastewater flow volume under full build-out conditions will not exceed the total wastewater flow volume under full build-out conditions in effect as of the date the Secretary issued a MEPA certificate for the CWMP or the date of a 208 Plan. Under this alternative, the watershed benchmark flow is considered the total wastewater flow volume under full build-out conditions in effect as of the date the Secretary issued the MEPA certificate for the CWMP or the date of a 208 Plan. To demonstrate that the Local Governmental Unit has established Land Use Controls that limit future wastewater flow volume to the watershed benchmark flow, the Local Governmental Unit shall prepare two separate build-out analyses for all parcels of land within the nutrient sensitive watershed subject to the Local Governmental Unit's jurisdiction, as identified in the CWMP or the 208 Plan, excluding only those parcels whose owners have been allowed to opt out in accordance with M.G.L. c. 83, § 1B, as follows:

   1. 1. The first build-out analysis shall establish wastewater flows based on a full build-out under the local Land Use Controls in effect as of the date the Secretary issued a MEPA certificate for the CWMP or the date of a 208 Plan (i.e., the "pre-sewer build-out").
   2. 2. The second build-out analysis shall establish wastewater flows based on a full build-out under the local Land Use Controls in effect at the time construction of the project for which a zero rate of interest is sought is expected to be completed (i.e., the "post-sewer build-out").
   3. 3. For both the pre-sewer and post-sewer build-out analyses, the residential and non-residential flows must be calculated utilizing actual water meter flow data to establish the annual average flow volume. For the pre-sewer build-out analyses, if no actual water meter flow data exists, then the Local Governmental Unit shall utilize actual water meter flow data for comparable parcels in the same city or town or watershed to estimate the annual average flow volume or the flow volume allowable under local Land Use Controls in effect as of the date the Secretary issued a MEPA certificate for the CWMP or the date of the 208 Plan, whichever is less. For the post-sewer build-out analysis, if no actual water use data exists, then the Local Governmental Unit shall utilize actual water meter flow data for comparable parcels in the same city or town or watershed or the flow volume allowable under local Land Use Controls at the time construction of the project for which a zero rate of interest is sought is expected to be completed, whichever is less.
   4. 4. Each build-out analysis shall include an analysis of all built and buildable parcels, including redevelopment potential, and a rigorous analysis of typical exceptions to Land Use Controls, such as use/dimensional variances, special permits, waivers, expansion and change of use in preexisting nonconforming uses, M.G.L. c. 40A, § 3, exempt uses, municipal uses and vested rights.
   5. 5. All assumptions made in the build-out analyses shall be clearly identified and explained. Future infrastructure needs, such as parking, wastewater infrastructure, landscape, and driveways, shall be factored into the build-out analyses and include the source and rationale for any ratios, multipliers or variables used in calculating such needs.

(4) Qualifying Designated Projects.

1. (a) Subject to the limits on contract assistance provided in M.G.L. c. 29C, § 6, a Local Governmental Unit applying for financial assistance for a Qualifying Designated Project, as set forth in 310 CMR 44.07(4), on the Intended Use Plan for calendar year 2017 or later, unless otherwise authorized by the Legislature, is eligible for additional financial assistance in accordance with 310 CMR 44.07(4)(b) that may include loans and other forms of subsidies at the financial equivalent of a loan made at an interest rate less than 2% or other additional subsidies such as principal forgiveness, as determined by the Trust, if the Local Governmental Unit demonstrates to the Department's satisfaction that it meets all of the following criteria:

   1. 1. the project is consistent with the current priorities established by the Trust, as set forth in the Department's annual project solicitation;
   2. 2. the project implements Best Management Practices; and
   3. 3. the Local Governmental Unit meets the Trust's affordability criteria established pursuant to the CWA § 603(i), and 33 U.S.C. § 1383(i), but only to the extent required by federal law.

2. (b) Projects considered for the additional subsidies described in 310 CMR 44.07(4)(a) may include the following:

   1. 1. projects developed pursuant to a regional water resources management plan including, but not limited to, a 208 Plan, if such a plan exists, as evidenced by written notice of such by the Regional Land Use Planning Agency for the region where the Local Governmental Unit is located;
   2. 2. projects that are necessary to connect a local or Regional Local Governmental Unit to a facility of the Massachusetts Water Resources Authority, if the local or regional Local Governmental Unit has paid or committed to pay the entry fee of that authority;
   3. 3. Green Infrastructure Projects;
   4. 4. projects that are a direct result of a disaster affecting the service area that is the subject of a declaration of emergency by the governor; or
   5. 5. innovative water projects that utilize new technology and which improve environmental or treatment quality, reduce costs, increase access and availability of water, conserve water or energy or improve management in the areas of wastewater, storm water, groundwater or coastal resources; provided, that the technology has not been commercially deployed, other than as a pilot project, previously in the Commonwealth.