Victory! CRWA advocacy reinstates river protections; DEP 'safe yield' determination suspended!

Updated November 3, 2009

A month ago, the Massachusetts Department of Environmental Protection (DEP) announced a new interpretation of the technical tern “safe yield” in the Water Management Act that would have seriously undercut river protection.  Safe yield is the cornerstone of the Act, which governs large water withdrawals, establishing a limit on the amount of water cumulatively that can be withdrawn from a river basin while maintaining ecological integrity. 

CRWA and three other groups appointed by the governor to advise DEP on its implementation of the Water Management Act found it necessary to resign from the advisory committee.  In a letter to Governor Patrick we argued that DEP’s new approach did not comport with the law and would substantially weaken river protection. Click here for more information on the proposed new safe yield interpretation.

Thanks to the efforts of CRWA’s members and environmentalists across the state who sent emails and letters protesting DEP’s actions, Governor Patrick and DEP heard our concerns and have suspended their safe yield approach!   On November 3, DEP clarified that “environmental protection, including the ecological health of river systems,” is a factor in calculating safe yields for Massachusetts river basins, along with hydrology.  The state also announced plans to move forward immediately to work with stakeholders to develop interim safe yield determinations to be used for permitting on a short-term basis until final safe yields can be calculated, expected within the year.

The new safe yield methodology will be promulgated as a regulation under the Water Management Act, with the intent that it be applicable to all new permits immediately, and all existing permits, including permits issued during the interim period, no later than the next five year review period for each permit.

This is a clear win for the environment and river protection across the state. 

We also understand that the Executive Office of Energy and Environmental Affairs intends to have stream flow standards ready for public review within the year.

Following a meeting with Governor Patrick on November 3, the four organizations that resigned from DEP’s Advisory Committee - CRWA, Conservation Law Foundation, Ipswich River Watershed Association, and Clean Water Action - have rejoined the Committee to work through the careful assessments and science necessary to establish true, ecologically-protective safe yields for each of the 27 river basins in the state.  CRWA's science, developed over 16 years, and its advocacy will ensure that these new safe yield determinations and standards for streamflows protect our rivers and streams for generations to come. 

Click here to read the DEP's statement. Under the suspension agreement, DEP

• suspends its new safe yield interpretation and the safe yield determinations;
• now says the term safe yield under the Water Management Act includes environmental protection factors including ecological health of river systems, as well as hydrologic factors;
• commits to developing an interim safe yield method and a final method through regulations within one year (pre-election). 

CRWA thanks its members for their quick response to our Action Alert on this issue. The Governor received hundreds of emails and letters. Your voices were heard, and we and the rivers of Massachusetts are deeply grateful. 

Read the November 4 Boston Globe article, Watershed groups rejoin state panel.

Background on DEP's proposed - and suspended - 'safe yield' interpretation

On October 8, DEP announced a new method of determining “safe yield” under the Massachusetts Water Management Act (WMA), which governs large water withdrawals. Its new methodology limited river protection and did not comport with the WMA statutory scheme, its regulations or how DEP has interpreted the term for the past 23 years.  With no input from the environmental community or its own WMA Advisory Committee, DEP presented its new approach to determining the safe yields for watersheds at meetings of both the Water Management Act Advisory Committee and Water Resources Commission.  

As a result of a lawsuit brought by CRWA on behalf of the Ipswich River Watershed Association, DEP has been under a Superior Court order since July 2007 to re-determine the safe yield of the Ipswich River Watershed, which experiences very low, and at times, no-flow conditions during the summer in large part due to water withdrawals by municipalities. 

However, DEP’s new interpretation removed all environmental considerations from safe yield, making it simply the amount of water available during a drought.  In a filing with the court, DEP announced that the safe yield of the Ipswich was now two times more than its previous determination.  The new safe yield for the Charles was three times more than current water allocations.  Some basins were as much as ten times greater than current allocations!

Executive Office of Energy and Environmental Affairs Announces "Integrated Water Initiative”

Also on October 8, EEA announced that three agencies (DEP, Department of Fish and Game and Department of Conservation and Recreation) will "team up to launch a new interagency effort to better protect Massachusetts streams and rivers."  EEA plans to work with two appointed advisory committees of stakeholders, one on the technical side and one on the policy side, to develop "a practical, science-based method to protect and sustainably manage water resources." The initiative, according to EEA's press release, "will develop appropriate streamflow criteria, which will factor into water resource decisions under the state's Water Management Act and other statutes."

This is welcome news since CRWA and other environmental groups have been advocating for the establishment of streamflow standards for years.  The Sustainable Water Resources Act, House Bill 834, now before the legislature would require DEP to adopt streamflow standards based on criteria developed by the Department of Fish and Game to be used in decisions under the WMA. 

However, at this point EEA has not explained its process, timing, or the desired end products, of the initiative.  DEP’s disastrous safe yield method makes the need for stream flow standards even more critical.  While we are hopeful that this process will lead to more protection for rivers, without clear enforceable standards and a time table for adopting them, there is no certainty.  Until stream flow standards are actually in place, it is extremely important to continue to support the Sustainable Water Resources Act.

The Sustainable Water Resources Act (H.B. 834), now pending in the state legislature, would create a process for establishing stream flow standards. Cliick here for a fact sheet on this bill.

Click here to read EEA’s press release on its Integrated Water Initiative.

News articles on the state's change in water policy

Watershed groups rejoin state panel - Boston Globe, November 4, 2009

River formula creates ripples - Boston Globe, October 22, 2009

Rethink policy on river water - leave some for fish - Boston Globe editorial, October 18, 2009

Conservationists rip water policy, quit state panel - Boston Globe, October 15, 2009

Environmental advisers resign in protest over river policy change - Daily News Tribune, October 15, 2009

Water watchdogs resign to protest new policy - Ipswich Chronicle, October 14, 2009

Environmental groups quit Mass. advisory panel - WBUR, October 14, 2009