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Town of Wellesley Department of Public Works v. Massachusetts Department of Environmental Protection

Superior Court of Massachusetts, Norfolk

May 17, 2018

TOWN OF WELLESLEY DEPARTMENT OF PUBLIC WORKS, WATER DIVISION, Plaintiff
v.
The MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL PROTECTION, Defendant Town of Hamilton, Plaintiff
v.
The Massachusetts Department of Environmental Protection, Defendant Town of Needham Department of Public Works, Water and Sewer Division, Plaintiff
v.
The Massachusetts Department of Environmental Protection, Defendant

          Date Docketed: May 22, 2018

          MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS AND FOR SUMMARY JUDGMENT

          Peter B. Krupp, Justice of the Superior Court

         The municipal plaintiffs in these consolidated actions seek declaratory and mandamus relief to compel the Massachusetts Department of Environmental Protection ("DEP") to promulgate a current renewal registration statement form under the Massachusetts Water Management Act ("the WMA"), G.L. c. 21G, or to deem the registration renewal statements filed by each of the municipalities as accepted; rather than to construe each municipality’s prior renewal registration statement as having been extended by four years under the Permit Extension Act ("the PEA"), St. 2010, c. 240, § 173, as amended by St. 2012, c. 238, §§ 74-75. Because of the particularly broad language of the PEA, plaintiffs’ motions for judgment on the pleadings must be denied, and summary judgment must be entered for defendant.

         BACKGROUND

         The relevant factual background is neither disputed, nor complicated.

         All three of the plaintiff towns, Wellesley, Needham and Hamilton (together, the "Towns"), have historically drawn water to provide for their residents. In 1987, after the WMA was enacted, each of the Towns filed a registration statement with DEP[1] on the appropriate form under G.L. c. 21G, § 5, para. 1, alerting DEP to its historical water usage and claiming its grandfathered rights to continue to draw water under the WMA.[2] Thereafter, each of the Towns filed renewal registration statements on the forms promulgated by DEP under G.L. c. 21G, § 5, para. 5, to extend their grandfathered rights for ten-year intervals.

         Each of the Towns were scheduled to file their next decennial registration statement in 2017 and asked DEP to provide it with DEP’s currently approved form for that purpose. DEP informed the Towns that it had not promulgated a renewal registration statement in or for 2017 because each of the renewal registration statements in existence between mid-July 2008 and mid-July 2012, including those of each of the Towns, was extended by four years by the PEA. DEP takes the position that, as a result of the PEA, each of the Towns’ next renewal registration statement under the WMA is not due until 2021. These consolidated actions followed.

         DISCUSSION

         This case is so much inside baseball. Zealously guarding their statutorily grandfathered rights to pump groundwater from their wells, the Towns are loathe even to be relieved for four years of the burden of filing a renewal registration statement to claim their grandfathered rights to withdraw water for a decade if the four-year deferral comes with any suggestion that DEP has any approval or permitting power over their grandfathered rights. This case turns, however, not on the narrow scope of DEP’s review of a renewal registration statement by a grandfathered municipality, but on the extraordinarily broad language of the PEA.

         I begin with the PEA. The PEA was approved in 2010 as part of legislation designed to stimulate job growth and ease limitations on business operations. The PEA, as amended, states in relevant part that "[n]otwithstanding any general or special law to the contrary, an approval in effect or existence during the tolling period shall be extended for a period of 4 years, in addition to the lawful term of approval." The tolling period was originally structured as the two-year period between August 15, 2008 and August 15, 2010. St. 2010, c. 240, § 173(a). It was later doubled to four years, from August 15, 2008 through August 15, 2012.[3] St. 2012, c. 238, § 74.

         The PEA broadly defines the term "approval" to include "any permit, certificate, order, excluding enforcement orders, license, certification, determination, exemption, variance, waiver, building permit, or other approval or determination of rights from any ... state governmental entity, concerning the use or development of real property." St. 2010, c. 240, § 173(a) (emphasis added). See, e.g., Kaplan v. Ramsdell, 2015 WL 7196465 at * 8 (Land Ct. Nov. 16, 2015) (PEA "defines the kind of ‘approval’ to which it applies very broadly").

         The question in this case is whether the required filing of a renewal registration statement to reconfirm grandfathered rights to withdraw water under the WMA, and DEP’s determination that the renewal registration statement complies with applicable regulatory requirements, constitutes an "approval" by DEP as that term is broadly defined under the PEA. Plaintiffs vigorously argue that it does not. DEP, which is charged with enforcing the WMA, contends that it does. To answer this question requires a brief review of the requirements of the WMA.

         The WMA provides for two different procedures-permits and registrations. See generally Water Dep’t of Fairhaven v. Department of Envt’l Protection ("Fairhaven"), 455 Mass. 740, 746-748 (2010). This case involves only the latter, as all three of the Towns had withdrawn more than 100, 000 gallons of water per day on average during the five years prior to January 1986, and they each filed a compliant registration statement with DEP prior to January 1, 1988. See G.L. c. 21G, §§ 4, 5, and applicable definitions in G.L. c. 21G, § 2. Because each of the Towns filed an initial registration statement, each was entitled to its grandfathered level of water withdrawal for a period of ten years. Thereafter, each of the Towns was entitled to, and did, file renewal registration statements "to continue existing withdrawals specified in the registration statement." G.L. c. 21G, § 5, para. 5. Each renewal was good "for a period of 10 years." Id.

         DEP has a role to oversee and review the filing of the renewal registration ...


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