Water Scarcity in Massachusetts: Em erging Legal Issues Harvard Law School Water Law Study Group December 3, 2015 H. David Gold david.gold@wilmerhale.com
Agenda ■ Hydrology ■ Water Scarcity ■ Legal Framework ■ Recent Disputes ■ Emerging Issues WilmerHale WilmerHale
WilmerHale The Hydrologic Cycle WilmerHale
Water Scarcity in the U.S. WilmerHale WilmerHale
Massachusetts Average rainfall: 45.12 inches per year WilmerHale WilmerHale
Water Shortages in Boston ■ Wells contaminated by privies ■ Cisterns contaminated by soot WilmerHale WilmerHale
WilmerHale Water Shortages Today WilmerHale
WilmerHale Water Shortages Today WilmerHale
WilmerHale Water Shortages – 20 11 WilmerHale
Water Shortages Stressed Basins in Massachusetts (2001) High Stress Medium Stress Low Stress No Data Gauging Station Basin Boundary WilmerHale WilmerHale
Water Shortages Desalination Plant … in Dighton, Massachusetts WilmerHale WilmerHale
Massachusetts Water Dem and Total water withdrawals by use (MGD) Thermoelectric power (fresh) Industrial Thermoelectric power (saline): 2,340 Irrigation Public supply: 793 Irrigation: 145 Industrial: 112 Public Thermoelectric power (fresh): 107 supply Domestic: 40.5 Aquaculture: 44.4 Thermoelectric power (saline) Mining: 10.7 Livestock: 1.86 WilmerHale WilmerHale
Massachusetts Water Dem and Metro area water demand projected to increase by 47 MGD by 2030 Source: ELM, State of the Environment (2006) WilmerHale WilmerHale
Water Scarcity Factors Aging Infrastructure WilmerHale WilmerHale
Water Scarcity Factors Development Impervious Surface Levels Source: Federal Interagency Stream Restoration Working Group, Stream Corridor Source: USGS, Preliminary Assessment of Factors Influencing Riverine Fish Communities in Restoration: Principles, Processes, and Practices (1998). Massachusetts (2010), http://www.mass.gov/eea/docs/eea/wrc/wrc ‐ update ‐ re ‐ sust ‐ water ‐ mgmt ‐ 18nov2010.pdf. WilmerHale WilmerHale
Water Scarcity Factors Lack of Conservation Measures MA MA Actual Goal: Use: 65 82 gpcd gpcd WilmerHale WilmerHale
Water Scarcity Factors Saline Intrusion Well Groundwater pumping Fresh water Fresh water Salt water Salt water Well Well Sea level rise Fresh water Fresh water Salt water Salt water WilmerHale WilmerHale
WilmerHale Well at risk Plume Water Scarcity Factors Unusable well Pollution Pollution water source Ground Well WilmerHale
Water Scarcity Factors Irrigation 20 0 5 ■ 6.90 acre-feet per acre ■ Highest application rate in USA! 20 10 ■ 3.87 acre-feet per acre ■ 5 th highest (after AZ, MT, WY, and ID) WilmerHale WilmerHale
Water Scarcity Factors Drought WilmerHale WilmerHale
Massachusetts Water Rights Surface Water – reasonable use ■ Stratton v. Mt. Herm on Boys’ School , 216 Mass. 83 (1913): [P]roprietor m ay m ake any rea sona ble use of the “ w ater of the stream in connection w ith his rip a ria n esta te and for law ful purposes w ithin the w a tershed , provided he leave the current dim inished by no m ore than is reasonable, having regard for the like right to enjoy the com m on property by other riparian ow ners.” WilmerHale WilmerHale
Massachusetts Water Rights Groundwater – absolute ow nership* ■ Greenleaf v. Francis , 35 Mass. 117 (1836): “ [T]he ow ner of the soil m ay law fully occupy the space … below the surface, to a ny extent w hich he p lea ses , unless he has m ade som e grant or agreem ent or there has been som e statute or police regulation to the contrary.” ■ * Prince v. Stockdell , 397 Mass. 843 (1986): “ In another case, w e m ight be inclined to reexam ine the doctrine w hich gives the ow ner of the overlying land absolute control over subsurface w ater on such land.” WilmerHale WilmerHale
Massachusetts Water Law Wetlands Protection Act (1972) 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 WilmerHale WilmerHale
Massachusetts Water Law Interbasin Transfer Act (1984) ■ 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 WilmerHale WilmerHale
Massachusetts Water Law Water Management Act (1985) ■ 100,000-gpd threshold ■ Groundwater / surface water ■ Registration for grandfathered uses Based on use between 1981 and 1985 Must be filed on or before Jan. 1, 1988 Must be renewed every 10 years Must meet metering, reporting, recordkeeping requirements ■ Perm it for new withdrawals Must be denied if safe yield is exceeded WilmerHale WilmerHale
Massachusetts Water Law Watershed Management Act (1992) ■ 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 WilmerHale WilmerHale
Massachusetts Water Law MEPA (1977) ■ 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) Mandatory New interbasin transfers EIR • 1.0 MGD • “Significant” WilmerHale WilmerHale
Massachusetts Water Law Energy Facilities Siting Board ■ 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 WilmerHale WilmerHale
Massachusetts Water Law Bills House No. 8 34 (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. 40 5 (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 WilmerHale WilmerHale
Massachusetts Water Law Massachusetts Constitution, Art. XCVII (1972) The people shall have the right to clea n … w a ter … and the protection of the people in their right to the conserv a tion, d ev elop m ent a nd utiliza tion of the agricultural, m ineral, forest, w a ter , air and other natural resources is hereby declared to be a p ublic p urp ose . WilmerHale WilmerHale
WilmerHale Fram ingham WilmerHale
Fram ingham – Proposed Birch Road Water Quality Facility WilmerHale
Fram ingham – Birch Road Wellfield ■ Proposal: 4.3 MGD ■ Registered volume under WMA: 3.17 MGD ■ Reduced proposal to 3.17 MGD WilmerHale WilmerHale
Fram ingham – Birch Road Wellfield ■ 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 WilmerHale WilmerHale
Ham ilton 74 Mass. App. Ct. 1129 (2009) Ipswich River Watershed Ipswich River Photo from Charles River Watershed Association, Water Resource Conservation and Restoration in Massachusetts (2006) WilmerHale WilmerHale
Ham ilton 74 Mass. App. Ct. 1129 (2009) ■ 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 WilmerHale WilmerHale
Post- Ha m ilton ■ October 20 0 9 – 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 ■ Novem ber 20 0 9 – MassDEP suspended new definition ■ October 20 10 – Deadline for new definition ■ February 20 12 – Sustainable Water Management Initiative Draft Framework ■ April 20 12 – Written comment period ended Water suppliers Conservation Commissions Individuals Government agencies WilmerHale WilmerHale
Sustainable Water Managem ent Initiative – Final Fram ework Safe Yield = 55% of Drought Basin Yield + Reservoir Storage WilmerHale WilmerHale
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