October 31, 2019: The following is an analysis of the October 11, 2019 decision of the Massachusetts Land Court about Nagog Pond water rights, courtesy of Green Acton Water Committee member Carolyn Kiely, Esq.
On October 11, a Land Court judge ruled that when the Massachusetts Water Management Act (WMA) became law in 1985, it “impliedly repealed” the 1884 Act that gave Acton and Littleton priority rights over Concord for use of water from Nagog Pond. This is a seminal ruling because it is the first such case to make the determination that the Water Management Act repealed previous laws relating to water usage in Massachusetts. Whether Littleton and/or Acton will appeal this decision is unknown at present.
According to the Court, the Water Management Act developed a system wherein prior use of water was “registered” by users, and a registration “forever” allows those users to use the water source up to their registered withdrawal amounts. The Court determined that water withdrawals and supply is a state-wide issue and, therefore, the Water Management Act was intended to be the final word on water supply in Massachusetts. However, no water case was cited as precedent for this decision — the judge relied on cases that dealt with non-water (and non-environmental) matters.
At the beginning of the Court discussion, the judge quoted other court decisions indicating that “more recent statutes do not repeal earlier statutes absent express language to that effect or clear implication.” Therefore, the judge’s ruling is a case of “first impression” — it’s the first time that a judge ruled that the Water Management Act impliedly repealed earlier water laws, and it is contrary to the court cases that state that repealing earlier laws needs to be expressly stated.
When concluding that the WMA “forever” allows water withdrawals by the registered user, the Court referred to a previous water case (Water Department of Fairhaven v. Department of Environmental Protection, 455 Mass. 740 ), which stated that the Water Management Act “guarantees that any registrant that registered (water withdrawals) before January 1, 1988, and timely renewed its registration statement may continue forever to withdraw water at the rate of its existing withdrawal.”
What does this mean? First, an appeal is possible because this is a precedent-setting decision. It is the first time that the WMA has been determined to supersede earlier laws. Second, if no appeal is made, or if an appeal is made and denied, Concord can build its water treatment plant without concern that Littleton or Acton will claim “priority rights” to the water under the 1884 law. Therefore, if Littleton or Acton wanted to withdraw water from Nagog Pond in the future, Concord’s usage of the water cannot be curtailed (i.e., Concord earned “priority rights” to Nagog Pond water “forever” through this Court decision).
When will construction begin? Concord still needs to obtain additional permits before it can move forward with site construction. Concord had been moving forward in seeking needed permits to replace its intake pipe. This decision may mean that Concord will switch gears and move forward with plant construction first. However, no information has been made public regarding Concord’s next steps.
This case has sweeping implications for towns across the Commonwealth that are utilizing a water source under authority of a law enacted prior to the WMA. The Court’s decision points to “approximately 650 special acts enacted between 1840 and 1984 granting the right to take and hold waters in the Commonwealth.” This case repeals every one of those 650 laws simply because the judge ruled that the WMA “impliedly repealed” earlier laws, even though the WMA does not expressly mention earlier laws.
See more on the recent history of the Nagog Pond issue here.