Green Acton Position for April 2018 Nagog Pond Hearing

The controversy over Concord’s application to expand its water treatment plant at Nagog Pond has entered a new phase. Negotiators from the Acton and Concord Select Boards have brought forward another draft of the modified special permit decision, with a new set of terms and conditions. The Land Court has remanded the case back to the Acton Board of Selectmen, who will hold a hearing on April 26. A new round of public comments will be accepted, and the BoS will deliberate, and then vote.

If a supermajority (4 out of 5) of the Selectmen vote Yes, then the permit will have been approved with these new terms and conditions. Green Acton has taken a position urging the Selectmen to vote “no.” Our rationale for this position is explained below, followed by links to relevant documents.

Position:

Because the March 2018 draft Modified Special Permit Decision fails to protect the quantity and quality of Acton’s water, in clear opposition to the Acton 2020 Master Plan and the will of the citizenry as expressed at 2017 Town Meeting, Green Acton urges our Board of Selectmen to vote no on Concord’s application to expand its water treatment capacity at Nagog Pond.

Rationale:

The criteria for granting the permits that Concord needs to proceed with expansion of its Nagog Pond water treatment facility state that the plan must be consistent with Acton Master Plan. The Acton 2020 Master Plan includes, as objective 2.1: “Protect the quality and quantity of Acton’s water.”

The original terms and conditions that the Acton Board of Selectmen included in their March 2017 approval of Concord’s application included safeguards aimed at protecting the quality and quantity of Acton’s water. These safeguards were largely removed during the settlement negotiations carried out between March 2017 and November 2017. Green Acton therefore opposed the initial revised permit in November of 2017. The new March 2018 revised permit does not restore these safeguards, and therefore Green Acton must once again oppose the permit.

In spring of 2017, Town Meeting voted unanimously in favor of three non-binding water articles that direct the Board of Selectmen to take certain actions aimed at protecting the quality and quantity of Acton’s water. The draft modified permit document fails to protect Acton’s interests with respect to issues that were central to each of the three Town Meeting water articles.

Town Meeting Article 26 of 2017 requested the Board of Selectmen to commission a long-range study of Acton’s water, including assessing water needs, resources, and threats to water quality and quantity. However, the March 2018 draft modified permit document, like the November 2017 version, has stricken the entire water monitoring program (the original section 3.3.7). The monitoring program would have made it possible to test whether increased water withdrawals from Nagog Pond were harming Acton’s drinking water wells and natural water systems, and would have contributed to understanding of the regional hydrology.

The March 2018 revised permit (section 3.3.7) does require Concord to provide Acton with a copy of the mandated withdrawal reporting that it provides to the state. However, Acton has full access to that public-domain information without incorporating this language into the permit. Concord is not agreeing to provide any meaningful, useful, additional monitoring information to Acton beyond what it is obligated to provide to the state. Supplying only publicly available data does not provide the level of data that Green Acton feels is necessary to assess the impact of Concord’s increased withdrawals on the quality and quantity of Acton’s waters.

Town Meeting Articles 27 and 28 of 2017 requested that the Board of Selectmen engage with the towns of Littleton and Concord, the Acton Water District, and the Commonwealth of Massachusetts to reach an accord on equitable access to water from Nagog Pond, and to seek an affirmation of Acton’s legal right to draw water from the pond. But the draft modified permit document has gutted the section originally called “3.3.10 Regional Planning.” The November 2017 document removed the requirement that before issuance of a building permit for the project, Concord shall participate in discussions with Acton, Littleton, and state officials concerning the short- and long-term water supply needs and functions of all three communities, and develop a regional water supply agreement. Also gone is the requirement that Concord shall coordinate in good faith with Acton, Littleton, and state officials with respect to the complicated legal issues associated with the use of water from Nagog Pond. These provisions would have kept open the possibility that Acton and Concord could share water from Nagog Pond, if at some future date Acton needed an additional water supply — which could happen because of pollution of our existing wells, population growth, and/or climate change. None of these Regional Planning terms and conditions has been reinstated in the March 2018 document.

There is a new clause [subsection 3.3.8(ii)] in the March 2018 revised permit that requires Concord to operate the facility “in a manner that appropriately prevents significant damage to the environment in or adjacent to Nagog Pond.” This is an intriguing addition. However, the permit expressly recognizes Concord’s opposition to subsection(ii), and states that Concord could, in the future, challenge the validity and enforceability of this subsection. Therefore, Green Acton views this clause as meaningless.

Links:

• Green Acton’s recap of events up until March 2018 and analysis of new permit
• All Green Acton coverage of Nagog Pond
• Town of Acton Docu-share for Remand Hearing
• A clean copy of the new Permit decision
• A red-lined version showing changes between  the original (March 2017) and the new version.
• A red-lined version showing changes between the November 2017 version and the  new version.