Drought rules proper, judge says in suit brought by water departments - MassLive.com

Drought rules proper, judge says in suit brought by water departments - masslive.com

BOSTON — The regulations directing how the state conserves water during various stages of drought do not encroach on water departments’ right to withdraw water from the state’s natural resources, a judge has ruled.

After the Massachusetts Department of Environmental Protection issued amended regulations in January 2023, a group of water departments — including five in the Pioneer Valley — challenged the new regulations in court, arguing the department lacked the authority to issue them and they were entitled to collect a certain amount of water a year.

But last week, Judge Catherine H. Ham of the Suffolk County Superior Court said the regulations were needed to ensure residents of the state had access to water and the natural resource was protected well into the future.

“The purpose of the Amended Regulations was to address the water shortage issue before a Water Emergency is declared and is more of a specific plan of conserving water rather than the drastic measure of banning and restricting any and all water uses,” Ham wrote in the 16-page decision.

The case was filed on Feb. 17, and was brought by 19 plaintiffs. They included the Springfield Water and Sewer Commission, Fall River Water Department, Amherst Water Department, South Hadley Fire District No.2 Water Department and Holyoke Water Works.

The group was represented by attorneys Peter F. Durning, John Shea, Jr. and Peter Vetere, of Burns and Levinson LLP. They claimed the state Department of Environmental Protection’s new regulatory provisions that relate to water withdrawal restrictions in times of drought were “unlawful and arbitrary and capricious.”

In the 1980s, the state legislature passed the Water Management Act that allowed water departments that withdrew more than 100,000 gallons a day to file a registration statement. They were then entitled to continue to withdraw the same volume every year, barring a state-declared water emergency.

The Massachusetts Department of Environmental Protection can declare a state of water emergency if there is a shortage of water severe enough to endanger public health, safety or welfare. During an emergency, the department can control the amount of water that is distributed to certain users, including stopping the withdrawal of water completely, Ham wrote.

At the beginning of 2023, the decision reads, the department issued some amended regulations that sought to manage “nonessential outdoor water use” during a declared drought. A mild drought would restrict nonessential water use to one day a week, excluding the watering of plants and gardens, which could be watered every day. A significant drought bans all nonessential outdoor water use, except for the watering of plants, and a critical drought or a drought emergency bans all nonessential outdoor water use.

The plaintiffs claimed the amended regulations infringed upon their entitlement to the withdrawal amount. They claimed that the nonessential use condition would limit their annual withdrawal because drought regions vary drastically from actual conditions present in the area served by some water departments.

The court ruled that although the plaintiffs were correct that the Department of Environmental Protection could not change their entitlement to existing withdrawals or lessen the existing yearly withdrawal volume, the legislature gave the department the ability to oversee water conservation and management.

The regulations were justly related to the goals of water conservation and had a purpose of establishing a more rational and specific plan of water conservation instead of banning and restricting any and all water uses.

The court also ruled that the water departments’ yearly withdrawal volume was not infringed upon because the regulations are only enacted during a drought, at which time all citizens are responsible for conserving water.

The Springfield Water and Sewer Commission, the Holyoke Water Works, Amherst Water Department and the Massachusetts Department of Environmental Protection did not immediately return requests for comment.