Sustainable Water Resources Project

Introduction | CRWA in the Ipswich |Safe Yield Blows Up | Sustainable Water Management Initiative | Permits and Registrations | Legislation

Traditionally "water-rich," Massachusetts receives about 45 inches of rain every year. Yet eastern Massachusetts is literally running out of water. The result: low streamflows that cannot support fish and habitat, increased water pollution, decreased water quality,  the spread of aquatic nuisance plants, dwindling water supplies, and a steady decline in the ecological integrity of our water resources.  These problems will intensify with climate change impacts on water resources.  Building in resiliency to reduce these impacts and to protect the natural water environment  is critical and requires immediate action.     

Over the past decade CRWA has identified the root causes of the water shortages occurring in the Charles River watershed and other urban-suburban basins. Uncontrolled, high impact development and traditional approaches to water supply, wastewater collection and treatment, stormwater management, and zoning have dramatically altered the natural water cycle and natural streamflow regimes. Recent studies have shown that both increased urbanization with its proliferation of impervious cover and streamflow depletion have resulted in significantly altered fluvial fish populations in the Charles and throughout Massachusetts.  To read more about these impacts on river-type fish, click here.

Recognizing that many towns in the watershed are pursuing water resource practices that are unsustainable, drying up tributaries and dewatering aquifers, CRWA launched a comprehensive campaign to reverse these outcomes.  We have designed and promoted solutions such as local wastewater treatment and infiltration near where the water was originally drawn, and using cisterns and drywells to water lawns and to reconnect rainwater to the ground to replenish aquifers. CRWA also developed planning tools to help communities identify and protect critical areas for water resource protection, design sustainable water supply and wastewater management solutions, and make sound infrastructure plans. We also developed sub-basin "water budgets."  The goal of our Sustainable Water Resources project is to recreate, or mimic, the natural hydrologic cycle in the urban environment and to restore natural streamflow.

CRWA developed its Blue Cities™ initiative to incorporate environmentally-sensitive urban design that sustains and restores water resources in development and redevelopment projects. We also design and promote low impact development techniques for stormwater management such as green roofs, rain gardens, biofiltration swales and "green streets." A number of stormwater retrofit projects are now under way.  To learn more about this work, visit our Blue Cities™ page.

Because good science and sound design were not alone capable of changing outcomes at the necessary pace, we also turned to the law. In late 2002, CRWA launched a multi-year effort to reform state water law, policy and practice to protect aquatic habitat and streamflows. We identified both gaps in existing laws and regulations and failures by state agencies to implement them fully.

An obvious failure involved the Water Management Act (WMA), G.L. c. 21G, administered by the MA Department of Environmental Protection (MassDEP), which governs large water withdrawals over 100,000 gallons per day. While communities in the Metro Boston area receive their water from the Massachusetts Water Resources Authority's Quabbin system (except Cambridge which has its own reservoir), those outside Route 128 and in the upper watershed are dependent on groundwater wells and reservoirs for their water supply.  While these withdrawals are regulated under the WMA, MassDEP has failed for over a decade to implement the Act's key proscription against permitting withdrawals that exceed the "safe yield," or the amount of water that can be withdrawn from a basin while maintaining reasonable flows for ecological protection. The result: dry streambeds, declining river fish species, aquatic habitat destruction and higher pollutant loadings to rivers and streams.

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CRWA goes to the Ipswich

In 2003, CRWA's counsel, representing Ipswich River Watershed Association (IRWA), Essex County Greenbelt Association, and concerned citizens, filed suit against MassDEP for its violations of the WMA in the Ipswich basin. The upper Ipswich River regularly goes dry in the summer -- a major culprit is the volume of water withdrawals authorized by MassDEP.

Low flows in the Ipswich River

Administrative Decisions and information on Wenham, Topsfield, Hamilton and Lynnfield cases:

• Administrative Magistrate's recommended final decisions

• DEP Commissioner's final decisions

• Superior Court Decisions in Topsfield and Hamilton

• Appeals Court Decision in Hamilton

For more information about the Ipswich permit cases, visit the Ipswich River Watershed Association's website

DEP responded with revised WMA permits that for the first time required reduced outdoor lawn watering when streamflows are low, a total cap on summer water withdrawals, performance standards for residential use and "unaccounted for water," and a water bank (a program to offset new water demand) if water use exceeds a community's total allocation.

All 11 public water suppliers withdrawing in the Ipswich watershed -- municipalities and water boards -- challenged their permits administratively.  Because outcomes in the Ipswich would set the bar for water management in the Charles and across the state, CRWA intervened in all of the appeals on behalf of environmentalists. We tried six appeals involving groundwater withdrawals before an Administrative Magistrate, and settled another two, and Conservation Law Foundation stepped in to handle the three surface water withdrawal appeals. We argued that given the dire condition of the Ipswich River and its over-allocation for water withdrawals, the WMA permits needed to be stronger.

MassDEP's new conservation-oriented conditions were upheld every step of the way. Click here to read the Legal Rulings and Administrative Magistrate's Recommended Final Decisions in appeals by Wenham, Topsfield, Hamilton and Lynnfield. While the Magistrate also ruled that MassDEP's system for determining how much water can be removed from a basin without environmental damage, or its "safe yield," is "utterly broken," he declined to order the agency to do anything about it.

MassDEP’s Commissioner adopted the Magistrate's decisions and two towns, Hamilton and Topsfield, appealed to Superior Court. The Commissioner's Final Decisions can be read by clicking here. The environmentalists also appealed the Hamilton decision on the grounds that the safe yield of the basin was being exceeded.

The Superior Court issued a decision in the Topsfield case upholding the permit's water conservation requirements and the creation of a water bank that, at a minimum, will save two gallons of water for every gallon of new demand, if the town’s water demand increases.

The Hamilton decision, issued in July, 2007 is a landmark ruling on river protection. The decision upheld the conservation-based permit requirements and also ordered MassDEP to determine the "safe yield" of the Ipswich River "as soon as possible." The Court agreed with our claim that the WMA required MassDEP to make such a determination at the time it issued a revised water withdrawal permit to Hamilton.  These decisions are a great victory for the Ipswich River, conservationists, and others concerned about preserving river flow throughout the Commonwealth. Hamilton appealed to the Appeals Court and CRWA cross-appealed on behalf of IRWA on the grounds that the judge should have ordered Hamilton to implement an immediate water banking program while MassDEP re-determines the Ipswich basin's safe yield. The Appeals Court remanded the case to MassDEP in 2009 to re-determine the safe yield of the Ipswich River watershed and warned the agency that its failure to do so expeditiously might well result in its being in violation of its own regulations. The Court declined to rule on the water banking issue given its remand on safe yield.  

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Safe Yield Blows Up

Although MassDEP has been under orders since 2007 to re-determine the safe yield of the Ipswich, it dragged its feet until the Appeal Court’s decision.  Thereafter, it went into black box mode, excluding all input, including from its own appointed WMA Advisory Committee.  In October, 2009 MassDEP announced a new safe yield methodology for withdrawals that would have drained most rivers.  Despite clear evidence that the Ipswich was already over-allocated for withdrawals, the new safe yield was 22 million gallons more, and in the Charles, the permissible allocations were almost doubled! In protest, CRWA and the other environmental members of MassDEP’s WMA Advisory Committee resigned in a letter to the Governor. Read our letter and press release.  Our resignations quickly became a front page story in the Globe.

Following this, MassDEP quickly suspended its new safe yield methodology and issued a “Clarification of Safe Yield” explaining that its “interpretation of the term safe yield under the Water Management Act includes environmental protection factors, including ecological health of river systems, as well as hydrologic factors.”  MassDEP also committed to working with stakeholders to develop a sound methodology for calculating safe yield.  To read CRWA’s legal summary of safe yield and the court decisions, click here.

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Sustainable Water Management Initiative

As a result of our efforts, the Secretary of the Executive Office for Energy and Environmental Affairs launched the Sustainable Water Management Initiative (SWMI) in early 2010.  This is an intensive effort staffed by the state environmental agencies with Advisory and Technical committees  composed of a  broad range of stakeholders that have been meeting monthly for the past 18 months.  CRWA sits on both of these committees.  The goals of SWMI are to develop a safe yield methodology, streamflow criteria protective of aquatic life, and a sustainable water allocation scheme.  In the first instance, the streamflow criteria will be used in WMA permitting.  To read the environmentalists’ comments on calculating safe yields and the integration of streamflow standards, click here.

The Department of Fish and Game developed a statewide classification system for river segments based on relative fluvial fish abundance, with Category 1 being the healthiest and Category 5 the most degraded.  Fundamental to CRWA and other environmental groups is ensuring that already severely degraded segments (Categories 4 and 5) are improved over time and that mitigation measures commensurate with withdrawal impacts are required in permitting.  

As currently proposed, MassDEP would only require mitigation when a permitee is seeking an increased withdrawal volume.  Since recent water demand projections show that the majority of permitees will use less water over the next 20 years than they are currently permitted for, CRWA is opposed to any tiered WMA permitting scheme that has the effect of locking in the status quo, rather than addressing already impaired waterways. Offsets, or mitigation, that will “keep water local,” such as infiltration of treated wastewater, stormwater recharge measures, removal of inflow and infiltration in sewer pipes and  water reuse are the kind of measures that can begin to balance the water budget in flow-impacted sub-basins. In 2007, CRWA and other environmental groups proposed an offset matrix, which credits different offset measures and provides enhanced credit for measures undertaken in the same sub-basin or upstream of the withdrawal.  CRWA opposes the state’s most recent proposal requiring only that permitees select several mitigation measures from a “pick list” in consultation with the agencies because this fails to ensure that mitigation actually offsets withdrawal impacts.

In the SWMI process, CRWA has tried to forge new bonds with the water suppliers, finding commonalities and solutions to shared water concerns.  We recognize that water sustainability will require municipalities to expend scarce fiscal resources and that water conservation, absent appropriate water pricing, will result in falling revenues.  These are problems that must be addressed if we are to be successful.        

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Registered Water Withdrawals

Top Court Rules On MassDEP’s Registration Conditions 

About 85% of all water withdrawals regulated under the Water Management Act were registered when the WMA was enacted in 1989.  Until recently, these 863 registered withdrawals - for public water supply, agriculture, golf courses and businesses - have been virtually unregulated by MassDEP.  In December 2007, DEP renewed registrations across the state for ten years and imposed exceedingly reasonable conservation conditions on these withdrawals aimed at reducing nonessential outdoor watering, curbing residential use, and reducing water lost in leaky distribution pipes. 

Registered users challenged the new conservation conditions both in court and in administrative appeals, arguing they were entitlements, not subject to any conditions, that could be renewed in perpetuity. The Superior Court disagreed with CRWA’s argument that the WMA required, and environmental conditions compelled, imposition of these conservation measures.  A case of first impression. the decision was appealed to the Supreme Judicial Court (SJC).  CRWA filed an amicus brief on behalf 15 environmental groups across the state supporting the Attorney General’s argument that DEP’s conditions were lawful. Click here to read CRWA’s amicus brief. In Water Department of Fairhaven v. Department of Environmental Protection, 455 Mass. 740 (2010), the SJC ruled that while MassDEP does have the authority to impose conservation conditions on registered withdrawals; it must do so through regulations. Unfortunately, the SJC also ruled that registrations are “entitlements” that cannot be reduced by MassDEP. While MassDEP has stated its intention to move forward with registration regulations, it has yet to issue them.

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Charles River Water Withdrawal Permits

CRWA pushed for MassDEP to adopt the Ipswich WMA permit conservation requirements for the Charles' permits. Many of the Ipswich conditions have now been adopted in state WMA policy and guidance.  Under MassDEP’s guidance, towns have several years to bring residential water use down to 65 residential gallons per capita day (rgpcd) and to reduce water losses (unaccounted for water) to 10% or less. CRWA urged MassDEP to require reduced nonessential outdoor watering when flows are low and to establish summertime limits on overall water use; however, to date, MassDEP has taken the position that the 65-rgpcd performance standard is adequate to control outdoor watering.

Although MassDEP is required to review the 20-year water permits every five years under its regulations, this review for the Charles River watershed permits was delayed due to the protests by public water suppliers, who have fought continuously against the more environmentally-protective permit conditions. 

To counter water suppliers’ claims (widely circulated) of “junk science” and the ineffectiveness of water conservation, CRWA issued a paper, Water Resource Conservation and Restoration in Massachusetts, explaining the importance of water conservation and the engineered impacts to the natural water cycle.

Click on the image on the left to see a graphic of the natural water cycle; click on the image on the right to see a graphic of the engineered/urban water cycle. (Images courtesy Auckland City Council, New Zealand)

In 2009, the 14 Charles water permits were up for renewal.  CRWA submitted extensive comments on the permit renewal process and on each of the draft permits (see side bar).  Final Charles water permits were issued in February, 2010.  These permits contained the new water conservation conditions, further conditions if the permitee failed to achieve the conditions, a place saver for a new safe yield determination, and offset feasibility study requirements triggered by an increase in “baseline” water use. To read a representative permit, click here for the Town of Millis’ permit.  Although Milford Water Company’s permit is yet to be issued, for the first time, permits with conservation conditions are now in effect for the other 13 public water suppliers in the Charles.     

CRWA challenged Natick’s permit administratively before MassDEP on the grounds that the permit conditions will fail to protect the river from the impacts of these streamside withdrawals at Elm Bank and violated the WMA.  Natick also appealed its permit and both appeals are currently pending.     

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CRWA Comment Letters

Legislation

Public water suppliers took their grievances to the legislature, which in June, 2005, created a "blue ribbon" panel to study the effectiveness of the WMA policy. The panel heard presentations on the lawfulness of the policy, the supporting science, and pro and con economic arguments, and then issued an "interim" report. The WMA Blue Ribbon Panel report is mainly a recitation of the suppliers' concerns and contains no recommendations. A cover letter to the report by then Office of Commonwealth Development Director Andrew Gottlieb, however, provides a perceptive and succinct summary of the real issues. Gottlieb concluded that the WMA policy basically "got it right" and identifies the loss of revenue from conservation as the real issue. Click here to read Gottlieb's letter. CRWA's letter to the panel on behalf of many environmental groups discussing the legal requirement of safe yield can be read by clicking here. In January, 2006, MassDEP capitulated and issued new WMA guidance that weakened requirements to reduce summertime lawn watering.

Several years ago, CRWA joined with other environmentalists on a bill that would require MassDEP to develop streamflow standards protective of aquatic life, to clarify towns’ authority to establish water banking programs and to put dam removal on par with dam repair.  The Sustainable Water Resources Act (SB.349/HB.255) was reintroduced by Senator Eldridge and Representative Smizik in the new legislative session, and will be heard before the Joint Committee on Environment, Natural Resources and Agriculture on July 14, 2011 in Room B-2 at 10:00 a.m.    CRWA will be testifying at the hearing and working hard to ensure passage of the act.

• Sustainable Water Resources Act
• Fact Sheet on Sustainable Water Resources Act

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