Water Scarcity in Massachusetts: Emerging Legal Issues...Jun 02, 2015 · Irrigation 2005 6.90...

Water Scarcity in Massachusetts:Emerging Legal Issues

Harvard Law SchoolWater Law Study Group

December 3, 2015

H. David [email protected]

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Agenda

■ Hydrology■ Water Scarcity■ Legal Framework■ Recent Disputes■ Emerging Issues

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The Hydrologic Cycle

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Water Scarcity in the U.S.

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Massachusetts

Average rainfall: 45.12 inches per year

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Water Shortages in Boston

■ Wells contaminated by privies■ Cisterns contaminated by soot

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Water Shortages Today

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Water Shortages – 2011

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Water Shortages

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Stressed Basins in Massachusetts (2001)

High StressMedium StressLow StressNo DataGauging StationBasin Boundary

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Water Shortages

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Desalination Plant

… in Dighton, Massachusetts

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Massachusetts Water Demand

Thermoelectric power (saline): 2,340

Public supply: 793

Irrigation: 145

Industrial: 112

Thermoelectric power (fresh): 107

Domestic: 40.5

Aquaculture: 44.4

Mining: 10.7

Livestock: 1.86

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Total water withdrawals by use (MGD)

Thermoelectric power (saline)

Public supply

Irrigation

Industrial

Thermoelectric power (fresh)

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Massachusetts Water Demand

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Metro area water demand projected to increase by 47 MGD by 2030

Source: ELM, State of the Environment (2006)

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Water Scarcity Factors

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Aging Infrastructure

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Development

Source: Federal Interagency Stream Restoration Working Group, Stream Corridor Restoration: Principles, Processes, and Practices (1998).

Impervious Surface Levels

Source: USGS, Preliminary Assessment of Factors Influencing Riverine Fish Communities in Massachusetts (2010), http://www.mass.gov/eea/docs/eea/wrc/wrc‐update‐re‐sust‐water‐mgmt‐18nov2010.pdf.

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Lack of Conservation Measures

MAGoal:65 gpcd

MAActualUse:82 gpcd

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Saline Intrusion

Well

Well

Well

Salt water

Salt water

Salt water

Salt water

Fresh water

Fresh water

Fresh water

Fresh water


Groundwater pumping

Sea level rise

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Pollution

WellWell at risk

Pollution source Unusable well

PlumeGroundwater

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Irrigation

2005■ 6.90 acre-feet per acre■ Highest application rate

in USA!

2010■ 3.87 acre-feet per acre■ 5th highest (after AZ,

MT, WY, and ID)



Drought

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Massachusetts Water Rights

■ Stratton v. Mt. Hermon Boys’ School, 216 Mass. 83 (1913):“[P]roprietor may make any reasonable use of the water of the stream in connection with his riparian estate and for lawful purposes within the watershed, provided he leave the current diminished by no more than is reasonable, having regard for the like right to enjoy the common property by other riparian owners.”

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Surface Water – reasonable use

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Massachusetts Water Rights

■ Greenleaf v. Francis, 35 Mass. 117 (1836):“[T]he owner of the soil may lawfully occupy the space … below the surface, to any extent which he pleases, unless he has made some grant or agreement or there has been some statute or police regulation to the contrary.”

■ *Prince v. Stockdell, 397 Mass. 843 (1986): “In another case, we might be inclined to reexamine the doctrine which gives the owner of the overlying land absolute control over subsurface water on such land.”

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Groundwater – absolute ownership*

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Massachusetts Water Law

Wetlands Protection Act (1972)

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Con Coms may regulate proposed activity: Within “wetlands” and surrounding buffer zones Drilling Pumping Access to water withdrawals

Within 200-ft riverfront areas Groundwater use with potential impacts on

stream flows

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Interbasin Transfer Act (1984)

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■ WRC may prohibit transfers between watersheds■ “Significant” transfers (1+ MGD) may be denied ■ Evaluation criteria

Potential impacts on in-stream flows Other environmental impacts Proposed conservation efforts

■ Conditions Monitoring Efficiency requirements

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■ 100,000-gpd threshold■ Groundwater / surface water■ Registration for grandfathered uses

Based on use between 1981 and 1985Must be filed on or before Jan. 1, 1988 Must be renewed every 10 yearsMust meet metering, reporting, recordkeeping

requirements

■ Permit for new withdrawalsMust be denied if safe yield is exceeded

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Water Management Act (1985)

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Watershed Management Act (1992)

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■ Goals Protect and preserve the quality of pure water Assure availability for future generations

■ Prohibitions “Alterations within 200 feet of the bank of a

tributary or surface water” within designated watersheds

Alterations that will hinder purpose of protecting the public water supply

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■ State projects ■ Private projects requiring state permits/funding■ Thresholds New withdrawals or expansions

• 0.1 MGD (new water sources requiring construction)• 0.5 MGD (existing systems)• 1.5 MGD (groundwater)• 2.5 MGD (surface water)

New interbasin transfers• 1.0 MGD• “Significant”

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Mandatory EIR

MEPA (1977)

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■ Reliable energy supply■ Lowest possible cost■ Minimum impact on the environment■ M.G.L. ch. 164, sec. 69J1/4

(Construction of generating facility) Review project impacts, including water impact Establish performance standards reflecting best

available and most efficient technology to control and reduce water withdrawals

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Energy Facilities Siting Board

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Bills

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House No. 834 (2009) – An Act Relative to Sustainable Water Resources House Committee on Environment, Natural

Resources and Agriculture recommended ought NOT to pass, recommended further study (2010)

Senate No. 405 (2015) – An Act to Mitigate Water Resources Impacts / House No. 657 (2015) – An Act Providing for the Establishment of Sustainable Water Resource Funds Hearings held in October 2015

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Massachusetts Constitution, Art. XCVII (1972)

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The people shall have the right to clean … water … and the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose.

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Framingham

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Framingham – Proposed Birch Road Water Quality Facility

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Framingham – Birch Road Wellfield

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■ Proposal: 4.3 MGD

■ Registered volume under WMA: 3.17 MGD

■ Reduced proposal to 3.17 MGD

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Framingham – Birch Road Wellfield

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■ Opposition Other ratepayers Anti-privatization Environmental community

■ MEPA required Supplemental EIR to study: Reduction of flows in Sudbury River Reduced water levels in Lake Cochituate

■ Recovery Act deadline passed ($5M)■ March 2011: Project scheduled for construction in 2015■ January 2015: New deal with MWRA


Ipswich RiverPhoto from Charles River Watershed Association, Water Resource Conservation and

Restoration in Massachusetts (2006)

Ipswich River Watershed

Hamilton74 Mass. App. Ct. 1129 (2009)

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Hamilton

■ Registered volume under WMA: 0.92 MGD■ Additional permitted volume: 0.11 MGD■ 2003 MassDEP summertime water use cap: 0.70 MGD■ Magistrate: Cap OK (still can average 0.92 MGD)■ Superior Court: Cap OK

MassDEP must determine Safe Yield of Ipswich River

■ Appeals Court: Affirmed

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74 Mass. App. Ct. 1129 (2009)


Post-Hamilton■ October 2009 – MassDEP defined “Safe Yield” as “the

amount of water that would be present during a drought year” Environmental groups protested Withdrawals will increase in already-stressed basins No protection for in-stream flows or other environmental

considerations■ November 2009 – MassDEP suspended new definition■ October 2010 – Deadline for new definition■ February 2012 – Sustainable Water Management

Initiative Draft Framework■ April 2012 – Written comment period ended

Water suppliers Conservation Commissions Individuals Government agencies

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Sustainable Water Management Initiative –Final Framework

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Safe Yield =55% of Drought

Basin Yield + Reservoir Storage

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Fairhaven

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455 Mass. 740 (2010)

Town of Fairhaven (+ 13 other cities and towns) WMA registrations came up for renewal in 2008

MassDEP sought to impose conservation requirements as conditions of renewal

Fairhaven challenged conditions Can’t impinge on grandfathered rights

MassDEP 85% of all withdrawals authorized under WMA are

registered uses WMA would be “lobotomized” if MassDEP could not

use it to regulate registered uses

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■ Look at WMA: MassDEP “shall adopt such regulations as it deems necessary to carry out the purposes of this chapter”

■ MassDEP must adopt regulations before it can impose conservation measures

■ But … conservation measures may not deny registrants their entitlement to existing withdrawals (for instance, by limiting a registrant’s water use to less than the existing withdrawal)

■ “[U]nder the Act, the department has broad authority under § 3 to issue regulations to carry out the Act’s purpose of water management, including water conservation, provided it does not infringe the registrants’ entitlement to existing withdrawals.”

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Fairhaven455 Mass. 740 (2010)

Supreme Judicial Court

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Concord Bottled Water Ban

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■ April 2010 – Residents voted to ban bottled water sales “To determine whether the Town will vote to ban the sale of water in

plastic bottles in Concord starting January 1, 2011, or take any other action relative thereto.”

■ July 2010 – Attorney General declined to review ban Not a valid bylaw Not enforceable

■ April 2011 – Ban failed by 7 votes (272 to 265) Resolution passed to “discourage” the sale or use of disposable single-

serving bottled water■ April 2012 – Residents voted to ban single-serving PET

bottles (403 to 364)■ September 2012 – Attorney General approved■ January 2013 – Ban took effect


Concord Bottled Water Ban

■ Equal Protection Clause

■ Commerce Clause

■ Takings■ Preemption

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Brockton

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EFSB 07-7A/D.P.U. 07-58/59 (2011)

Brockton

Brockton Reservoir

Silver Lake

Plympton

KingstonHalifax

HansonWhitman

E. Bridgewater

Monponsett Pond

Furnace PondPembroke

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350-MW natural-gas-fired power plantWater required for cooling: 1.1 to 2.1 MGD Approved in 2009

Cooling water from wastewater reclamation facility

Project Change Filing in 2010Cooling water from Brockton municipal water supply

Brockton Municipal Water SupplyTraditional sources (Silver Lake + Brockton Reservoir)Dighton Desalination Plant

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BrocktonEFSB 07-7A/D.P.U. 07-58/59 (2011)

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Brockton Power Co.Municipal supply requires less treatment, and less

volumeWater will come from Desal Plant, not traditional

sources EFSB

City has long history of water supply problemsCity has never had customer this big beforeBrockton Power can’t say where water will come from Brockton Power didn’t show project would have

minimum impact on the environmentProject Change DENIED

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BrocktonEFSB 07-7A/D.P.U. 07-58/59 (2011)

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Brockton appealed EFSB decision to SJC

SJC affirmed EFSB decision in all respects

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Brockton469 Mass. 215 (2014)

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Emerging Issues

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■ Framingham – groundwater■ Hamilton – summertime cap, safe yield■ Fairhaven – conditions on renewals■ Concord – bottled water ban■ Brockton – power plant water supply

Recap of Cases

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Emerging Issues

You need water to produce energy You need energy to produce waterWater for new power plants?

Renewables use much less waterDesalination?

Lack of symmetry: EFSB vs. WMA

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Energy-Water Nexus

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Emerging Issues

Privatization

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Emerging Issues

■ Erosion of Absolute Ownership■ Constitutional Issues■ Definition of “Reasonable”■ Application of “Safe Yield”■ Disputes between Private Parties■ New Legislation

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Water Scarcity in Massachusetts: Emerging Legal Issues...Jun 02, 2015 · Irrigation 2005 6.90...

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