Q & A on BoS Nagog Pond hearing

The dispute over Concord’s application to expand its water treatment capacity at Nagog Pond has entered a new phase. The Massachusetts Land Court remanded the issue back to the Acton Board of Selectmen for an additional round of public input and deliberation. New questions are emerging, and this post makes a start at answering some of them:

• What is happening now?
• How did this project get through its environmental impact review?
• Does Concord really have the right to withdraw water from Nagog Pond “forever”?
• Did Concord game the system to get a higher WMA registration?
• What is Acton Water District’s position?

Other relevant background is provided in our previous post. If you have additional questions after reading this post and the previous one, please enter your question into the Comments field at the bottom of this post, and we will try to provide an answer. This Nagog Pond situation has been a steep learning curve for the Green Acton Water Committee, so if you see something that you think is in error, please put that into the Comments field, as well.

Q: What’s happening now?

To recap: In March 2017, Acton’s Board of Selectmen (BoS) voted to approve Concord’s application to enlarge its water treatment facility at Nagog Pond, but with terms and conditions. Concord sued for judicial relief from the “onerous, arbitrary, and capricious” terms and conditions. The Land Court told Acton and Concord to talk to each other and see if they could work out an agreement. Acton and Concord entered into months of closed-door negotiations, in which Acton was represented by Selectmen Janet Adachi and Peter Berry. Out of those negotiations emerged the Modified Draft Special Use Permit, from which many of the terms and conditions had been excised or weakened. The Land Court received this document, and remanded the issue back to the Acton Board of Selectmen, directing them to hold a public hearing, accept public comment, and deliberate.

The November 20, 2017 hearing was the public hearing required when the Land Court remanded the issue back to the Acton BoS. The hearing was very well attended by Acton residents, with standing room only. Many Acton residents spoke and/or wrote in opposition to Concord’s plan. Green Acton’s official position was read into the record by Co-President Jim Snyder-Grant. Water-related issues that were raised included: the danger to the Nagog Brook coldwater fishery if the brook flow is diminished by increasing Nagog Pond withdrawals; the US Geological Survey estimate of reservoir firm yield that is much below the proposed treatment capacity; and the location of the lower intake on the proposed pipe that is 25 feet below the spillway.

Citizens’ comments, from a large number of speakers on a wide range of topics, continued until shortly after 11pm. At that point, the Selectmen decided that it was too late to begin deliberations. They continued the hearing until Wednesday, November 29, at 7 pm in Room 204 of Acton Town Hall (472 Main Street). Please come: the Selectmen need to know that residents are paying attention as they deliberate and vote.

The conditions under which the hearing has been continued are that the Board of Selectmen are not accepting any new information into the record, except in response to questions that they themselves raise. They are doing their best to digest what they already have in hand! Residents are, however, always free to speak or write informally to individual Selectmen on any topic at any time.

Q: If this development would have the injurious impacts on the pond and the downstream fishery that were described in the November 20 public comments, then how did it ever get through its environmental impact review?

This is a paraphrase of a question that was raised by Selectman Berry at the Nov. 20 hearing.

The short answer to the question comes from the “About MEPA” website of the MA Energy and Environmental Affairs office. As established during Carolyn Kiely’s presentation at the November 1, 2016 hearing:

“MEPA [Massachusetts Environmental Policy Act] review is not a permitting process. MEPA requires public study, disclosure, and development of feasible mitigation for a proposed project. It does not pass judgment on whether a project is environmentally beneficial, or whether a project can or should receive a particular permit. Those decisions are left to the permitting agencies.”  

The longer answer has to do with what was said and not said in Concord’s Environmental Impact Report (EIR):

• Although the EIR described in detail the steps by which the new intake pipe was going to be installed, and provided a strong justification for why the old rusty pipe has to be replaced, it did not say how long the new pipe would be or how deep the intakes would be. A statement that the lower input would be at 200.7 feet elevation, or 25 feet below the spillway, might have raised red flags about how low the pond level could be drawn down when the plant was operating at full capacity.
• The EIR stated repeatedly that the new plant would have the same 1.5 MGD “hydraulic capacity” as the old plant. That just means that the pipe can carry 1.5 MGD and the pumps can pump that much; it doesn’t mean that the plant can treat that much water. It did not mention how much water Concord has actually been processing through the existing plant in recent years. A statement that the existing Ozone Disinfection Facility has been treating only 0.1 to 0.3 MGD in recent years, contrasted with the 1.5 MGD proposed for the new plant, might have raised red flags about whether the increased withdrawals would have adverse effects on the pond itself or on downstream ecosystems.
• The EIR has a substantial discussion of potential damage to fish, and reports on discussion with the MA Division of Fisheries and Wildlife on this issue. However, potential damage to the fish are considered only during the construction of the plant and intake system. Provisions are made to prevent stranding of fish during the dewatering of the cove, and excessive release of turbid or warm water into Nagog Brook during the dewatering and refilling of the cove. However, the potential that the coldwater fishery of Nagog Brook might be harmed by increased withdrawals from the pond, the danger raised in the Nov 20 public comment of Dr. Peter Shanahan of OARS, was not addressed at all.
• Table 4 of the EIR (Summary of Proposed Mitigation Measures) does list “Increasing withdrawal from Nagog Pond” as one type of impact that does potentially need to be mitigated. However, the table states that “the mitigation requirements for water withdrawals from Nagog Pond will be determined as part of the DEP Water Management Act permit renewal.” The EIR makes no further mention of this type of impact. The MWA renewal process for the Sudbudy-Assabet-Concord Basin is scheduled for 2018, and the timetable presented in the EIR anticipated that construction would have already begun on the new water treatment plant in the first half of 2017.
• The EIR does not mention that in 2011, the U.S. Geological Survey and MassDEP released a report on firm yield for reservoirs across Massachusetts, including a firm yield for Nagog Pond of 0.86 MGD. Firm yield is the rate of water withdrawal which will lead to failure of the reservoir in a severe drought. “Failure” of a reservoir means that the reservoir level is drawn down to the level of the intake pipe. Good reservoir management practices call for withdrawals to stay below the firm yield. The authors of the Nagog Pond EIR definitely knew about this finding, because they include the report (Levin, Archfield & Massey, 2011) in the list of references at the end of the EIR, although it is not cited in the text.

Q: Does Concord really have the right to withdraw 1.5 million gallons of water per day (MGD) from Nagog Pond “forever”?  

“Forever” is a very long time, especially in a region of complex hydrology and in a time of climate change.

This “forever” statement, which Concord made in both its media coverage and lawsuit, is based in the Massachusetts Water Management Act (WMA). The WMA came into effect in 1986. Water withdrawals that were already established at that time were “grandfathered” into the WMA system, and were called “registrations.” New water withdrawals were called “permits” and were subject to much stricter constraints.

The legal landscape concerning WMA registrations is in flux. Whether or not WMA registrations can be challenged or diminished has been adjudicated all the way up to the MA Supreme Judicial Court (SJC), and more challenges can be expected. Jane Ceraso’s citizen’s comment submission to the BoS prior to the Nov. 20 hearing lays out the legal situation, including the intriguing statement from the SJC’s Chief Justice Marshall that it may be appropriate for MassDEP to reduce registered water uses under some circumstances, such as if a community with registered withdrawals was profligate while its neighbors faced shortages.

Concord has both a registration and a permit covering Nagog Pond. When a water supplier has both a permit and a registration, the two allocations are administered together. In commenting on Concord’s Draft Environmental Impact Report, MassDEP stated, “If the Town seeks to install the new water intake at a lower depth than the old intake, then it will need to obtain an amendment to its Water Withdrawal Permit.” Concord’s WMA permits, together with those of all water suppliers in the Sudbury-Assabet-Concord watershed, come up for renewal in 2018.

The 1884 law establishing rights to withdraw water from Nagog Pond states that that “if from any reason the supply of water in said pond shall not be more than sufficient for the needs of the inhabitants of Acton and Littleton, then the needs of the inhabitants of said towns shall be first supplied.” How Acton’s claim under the 1884 law would stack up against Concord’s claim under the 1986 WMA has not been tested.

Q: Did Concord game the system to get a higher Water Management Act (WMA) registration for Nagog Pond?

The person who asked this question after the adjournment of the Nov. 20 hearing was referring to this graph, from the public comment of Kim Kastens:

The questioner’s hypothesis was suggested by the anomalous nature of the sharp, narrow spike up to 2.0+ MGD, unique in the 104-year-long time series. But other explanations are possible; for example, Concord may have been having trouble with their other water sources at that time. Given that WMA registrations were set in place based on water usage between 1981 and 1985, more than 30 years ago, we may never know.

But what we can say with certainty, based on this graph, is that 1.5 MGD does not represent Concord’s historical usage from Nagog Pond, which had been the intent when the WMA historical usages were grandfathered in under the WMA “registration” system. Historical usage ranged from approximately 0.5 MGD to 1.0 MGD.

Q: What is Acton Water District’s position in all of this?

Acton Water District (AWD) gave a substantial presentation at the Nov. 20 hearing, with sections delivered by AWD manager Chris Allen, Environmental Manager Matt Mostoller, and Commissioner Steve Stuntz. They educated Acton residents on the challenges of delivering water to the town and thanked the townspeople for their vigilance in conserving water. In addition, they reiterated and clarified points that they had made in the previous round of hearings, advocating for: continued water service by Concord along Rt. 2A, interconnections between towns especially for emergency use, and a clear plan for how rights to Nagog Pond under the Law of 1884 can be exercised.

The final AWD slide, presented by Commissioner Stuntz, foregrounded several additional important points: that Nagog Pond should be maintained as a regional water supply, that we [Acton] have statutory rights to it, and that we may need it someday.