Green Acton Position on Town Meeting Article 26: Great Road Water Supply

Article 26 for Acton Town Meeting 2018 is a non-binding resolution which asks Town Meeting to approve an inter-municipal agreement between Acton and Concord.  In this agreement, Concord agrees to continue to provide water service to customers along Great Road (Rt 2A) in Acton.  In return, Acton agrees to allow Concord to build their proposed Water Treatment Plant on Nagog Pond, and to forebear from efforts to secure water from Nagog for Acton or to limit Concord’s Nagog withdrawals.

The Agreement “shall not take effect unless and until Acton Town Meeting approves” it, so your attendance, voice and vote are very important.

• The signed Inter-municipal Agreement
• Town Meeting Warrant:  see Article 26, page 62.

Green Acton has adopted the following position in opposition to Article 26.

Position:

Article 26 would (1) prevent Acton from exercising its priority rights to the waters of Nagog Pond for between 20 and 25 years, (2) prevent Acton from even taking steps to explore exercising its water rights in the future, (3) prevent Acton from limiting Concord’s water withdrawals from Nagog Pond, and (4) contractually cap the amount of future water that Concord will be obligated to supply along Route 2A. These provisions are in violation of the non-binding resolutions that passed at 2017 Town Meeting, directing Acton to explore a regional solution to utilizing Nagog Pond as a drinking water source. Because Article 26 severely limits Acton’s future water sources at a time of water vulnerability, with little benefit town-wide, and is in contravention of the direction for regionalization provided at last year’s Town Meeting, Green Acton urges Acton citizens to vote no on Article 26.

Rationale:

[As guidance for their formal vote on this position, the Green Acton Directors considered the following rationale, which was finalized on Sunday, March 25, 2018.  There have been more recent developments; see below under Updates.]

Acton’s Potential Need for Nagog Pond Water: The Acton Water District (AWD) Commissioners testified on March 19, 2018 at the Acton Board of Selectmen meeting that the AWD opposes Article 26. Their formal statement, read by Chair of the Board of Commissioners Len Phllips was:

The non-binding resolution regarding the Great Road Water Supply does not adequately reflect the position of the Acton Water District Commissioners. We have testified that while we have no immediate need for Nagog Pond as a water source, this did not mean that we would not consider utilizing Nagog Pond as a water source for the next 20 to 25 years or for a larger period of time. Nagog Pond is a delicate and finite resource. We support monitoring and the sharing of data on Nagog Pond’s use, withdrawals and environmental impacts. We also support regionalization in allocating Nagog Pond as a water resource. [text provided in March 22, 2108 email from AWD Commissioners’ Chairman Len Phillips to Kim Kastens]

In responding to questions at the March 19, 2018 meeting of the Board of Selectmen, Chairman Phillips described threats to Acton’s water supply from a toxic plume of 1,4-dioxane impacting its Assabet well-field, and other threats to continuity of supply. Even if no catastrophe strikes Acton’s existing wells, the normal course of development and population growth will put additional pressure on Acton’s water supply. At the March 5, 2018 meeting of the Board of Selectmen, the Water Resources Advisory Committee projected the future water demand from planned and potential development within Acton to far exceed current usage. With threats to water quality and pressure on water quantity, it is unwise to agree to limit Acton’s water options for a quarter of a century.

Section 3. Concord to supply water to customers along Route 2A in Acton.   Concord agrees to provide water service to new and expanded uses, up to a total commitment of 61,000 gallons per day. Concord’s expanded water treatment plant is sized to produce up to 1.5 million gallons per day. Thus the Acton customers would be receiving only 4% of the water produced at the new water treatment plant. This 96:4:0 split among Concord, Acton and Littleton is certainly a bit fairer than a 100:0:0 split. However, given the terms of the Law of 1884, we think the Acton Board of Selectmen should be arguing for a one third : one third : one third split.

Section 4a. Forbearance agreement: Under state law (Chapter 201 of the Acts of 1884), Concord, Littleton and Acton all have rights to draw water from Nagog Pond, but Littleton and Acton have priority rights over Concord. The Intermunicipal Agreement would require the Town of Acton to forebear from seeking to exercise those rights for 20 to 25 years.

The Forbearance Agreement (section 4.a) explicitly specifies that it does not “constrain or bind” the Acton Water District. However, the Law of 1884 grants Nagog Pond water rights to the Town of Acton, not to the AWD–which did not exist in 1884.

5a. Termination Option and Triggering Events:

This section of the agreement gives Concord the option to terminate the agreement with written notice if any of a wide range of triggering events occurs. There is no symmetrical listing of triggering events under which Acton can terminate the agreement.

5.a(ii): This paragraph specifies a triggering event shall have occurred if legislation is introduced in the General Court seeking authorization for Acton or Littleton [emphasis added] to withdraw water from Nagog Pond, or to modify or amend the terms of the 1884 Act, or to otherwise restrict [emphasis added] Concord’s rights to withdraw water from Nagog Pond. Acton has no control over the actions of Littleton, and thus this paragraph leaves Acton at the whims of forces beyond our control. The phrase “to otherwise restrict Concord’s rights to withdraw water from Nagog Pond” is excessively broad and could be construed to include even such an ordinary activity as providing comments to the MassDEP on a Water Management Act Permit application.

5a(iii): This paragraph similarly sets up the opportunity for Acton to be penalized for the actions of Littleton, over which we have no control.

5b: Written Notice of Termination: The Intermunicipal Agrement allows Concord to terminate the Intermunicipal Agreement, with one year’s notice.   Commissioner Phillips of the AWD stated at the BoS meeting on March 19, 2018, that the time required for the AWD to plan and implement water service to 2A properties, in the event that Concord stopped supplying these customers, would be two years. Thus the one-year written notice of termination is insufficient to protect our Great Road neighbors in the event that Concord decides to take action against Acton.

What happens at the end of the agreement?  The term of the agreement is for 20 years, with one possible extension for five more years, and no provision for further extensions.   Citizens should contemplate what will happen at the end of 20 or 25 years. A likely scenario is that Concord would say that they need the water for their own town, and would (after appropriate notice) terminate service to Acton customers. This scenario is made more likely by known plans for ambitious development in Concord, including the remediated NMI Superfund site. After 20-25 years, it would be even more expensive for the AWD to install a water main along 2A, and even more difficult to secure water within Acton to service these parcels.

What to do instead: Green Acton urges the Selectmen, instead, to negotiate an Intermunicipal Agreement that complies with the 2017 Town Meeting resolutions, and negotiate with Concord and Littleton on a three-town agreement recognizing Nagog Pond as a regional water source.

Updates:

Things move quickly in the world of Acton water.  Since the Rationale quoted above was written and circulated to the Green Acton Directors, there have been several new developments:

• At their meeting on Monday March 26, the Acton Water District Commissioners once again discussed  their position with respect to Article 26.  Board of Selectman Chair Janet Adachi attended this meeting, along with Special Counsel Jeff Roelofs, AWD staff, and many citizens.  After lengthy deliberations, the Commissioners decided to support Article 26 after all, despite reservations.
• Meanwhile, a new version of the draft modified special permit decision on Concord’s application to expand their Water  Treatment capacity at Nagog Pond emerged from the closed-door negotiations associated with Concord’s lawsuit.
• Land Court remanded the special permit matter back to the Acton Board of Selectmen, requiring them to conduct another round of public hearings and deliberations.
• The Remand hearing  was originally scheduled for Thursday, March 29, before Town Meeting.
• The Remand Hearing has now been postponed.  The new date will be after Town Meeting, most likely in  mid-April. Documents related to the Remand hearing can be found in the docushare.