On January 20, 2023, the Massachusetts Department of Environmental Protection (“MassDEP”) promulgated final revisions to the Water Management Act (“WMA”) regulations at 310 CMR 36.00. A copy of the new regulations published in the Massachusetts Register is available here.
These regulations impose new conditions on water systems holding a WMA registration from MassDEP. The new conditions restrict certain activities deemed to be non-essential outdoor water uses during times of declared drought. In 2010, the Supreme Judicial Court rejected MassDEP’s previous attempt to impose conservation measures on registered systems in Water Dept. of Fairhaven v. Dept. of Environmental Protection, 455 Mass. 740 (2010). In Fairhaven, the SJC concluded the intent of the WMA was to create a class of users (registrants) who “may continue forever to withdraw water at the rate of [their] existing [registered] withdrawal.” Id. at 742. The SJC recently reiterated this protection in Town of Concord v. Water Dept. of Littleton, 487 Mass. 56, 61-63 (2021).
Despite the clear statutory and judicial pronouncements regarding the special role of registrations with the Commonwealth’s approach to water management, the new regulations will significantly affect registrants’ entitlement to their registered withdrawal amounts. In particular, the new regulations at 310 CMR 36.07(2)(c) direct registrants to implement enforceable restrictions on “non-essential outdoor water use” – including limiting the times when private lawn watering can occur, prohibiting the filling of private swimming pools, and limiting car and building washing– when a “drought declaration by the Secretary [of Energy and Environmental Affairs] for the drought region where the registrant’s withdrawals are located” is issued.
These new regulations elicited intense public comment from water suppliers throughout the Commonwealth. Water suppliers are concerned that the new regulations will impose operational hardships and force them to police the activities of residents and other end-users. In addition, the restrictions will seriously impact the operating budgets of many water utilities. The regulations, in effect, impose region-wide restrictions on water systems without making any specific assessment of a system’s ability to manage its water supply during drought conditions.
