Water Scarcity in Massachusetts: Em erging Legal Issues Harvard Law - - PowerPoint PPT Presentation

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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

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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

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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 Today

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Water Shortages – 20 11

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Water Shortages

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Stressed Basins in Massachusetts (2001)

High Stress Medium Stress Low Stress No Data Gauging Station Basin Boundary

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Water Shortages

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Desalination Plant … in Dighton, Massachusetts

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Massachusetts Water Dem and

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 Dem and

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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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Water Scarcity Factors

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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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Water Scarcity Factors

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Lack of Conservation Measures MA Goal: 65 gpcd MA Actual Use: 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

Water Scarcity Factors

Groundwater pumping Sea level rise

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Water Scarcity Factors

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Pollution

Well Well at risk Pollution source Unusable well Plume Ground water

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Water Scarcity Factors

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Irrigation 20 0 5 ■ 6.90 acre-feet per acre ■ Highest application rate in USA! 20 10 ■ 3.87 acre-feet per acre ■ 5th highest (after AZ, MT, WY, and ID)

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Water Scarcity Factors

Drought

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Massachusetts Water Rights

■ 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.”

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Surface Water – reasonable use

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Massachusetts Water Rights

■ 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.”

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Groundwater – absolute ow nership*

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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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Massachusetts Water Law

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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Massachusetts Water Law

■ 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

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Water Management Act (1985)

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Massachusetts Water Law

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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Massachusetts Water Law

■ 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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Massachusetts Water Law

■ 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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Massachusetts Water Law

Bills

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 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
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Massachusetts Water Law

Massachusetts Constitution, Art. XCVII (1972)

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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.

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Fram ingham

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Fram ingham – Proposed Birch Road Water Quality Facility

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Fram ingham – 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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Fram ingham – 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

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Ipswich River

Photo from Charles River Watershed Association, Water Resource Conservation and Restoration in Massachusetts (2006)

Ipswich River Watershed

Ham ilton

74 Mass. App. Ct. 1129 (2009)

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Ham ilton

■ 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)

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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
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Sustainable Water Managem ent Initiative – Final Fram ework

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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’ entitlem ent to existing withdrawals.”

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Fairhaven

455 Mass. 740 (2010)

Supreme Judicial Court

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Concord Bottled Water Ban

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■ April 20 10 – 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 20 10 – Attorney General declined to review ban

  • Not a valid bylaw
  • Not enforceable

■ April 20 11 – Ban failed by 7 votes (272 to 265)

  • Resolution passed to “discourage” the sale or use of disposable single-

serving bottled water

■ April 20 12 – Residents voted to ban single-serving PET bottles (403 to 364) ■ Septem ber 20 12 – Attorney General approved ■ January 20 13 – Ban took effect

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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 Reserv oir Silv er La ke

Plympton Kingston Halifax

Hanson Whitman

  • E. Bridgewater

Monponsett Pond Furnace Pond

Pembroke

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

  • Cooling water from wastewater reclamation facility

 Project Change Filing in 2010

  • Cooling water from Brockton municipal water supply

 Brockton Municipal Water Supply

  • Traditional sources (Silver Lake + Brockton Reservoir)
  • Dighton Desalination Plant

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Brockton

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

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 Brockton Power Co.

  • Municipal supply requires less treatment, and less

volume

  • Water will come from Desal Plant, not traditional

sources  EFSB

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

minimum impact on the environment

  • Project Change DENIED

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Brockton

EFSB 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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Brockton

469 Mass. 215 (2014)

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Em erging Issues

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■ Fram ingham – groundwater ■ Ham ilton – summertime cap, safe yield ■ Fairhaven – conditions on renewals ■ Concord – bottled water ban ■ Brockton – power plant water supply

Recap of Cases

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Em erging Issues

 You need water to produce energy  You need energy to produce water  Water for new power plants?

  • Renewables use much less water
  • Desalination?

 Lack of symmetry: EFSB vs. WMA

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Energy-Water Nexus

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Em erging Issues

Privatization

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Em erging Issues

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

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How water disputes are settled in Arizona