TOWN OF WELLESLEY DEPARTMENT OF PUBLIC WORKS, WATER DIVISION, Plaintiff
The MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL PROTECTION, Defendant Town of Hamilton, Plaintiff
The Massachusetts Department of Environmental Protection, Defendant Town of Needham Department of Public Works, Water and Sewer Division, Plaintiff
The Massachusetts Department of Environmental Protection, Defendant
Docketed: May 22, 2018
MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR JUDGMENT ON
THE PLEADINGS AND FOR SUMMARY JUDGMENT
B. Krupp, Justice of the Superior Court
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 municipalityâs 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, plaintiffsâ motions for judgment on the
pleadings must be denied, and summary judgment must be
entered for defendant.
relevant factual background is neither disputed, nor
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 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. 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.
the Towns were scheduled to file their next decennial
registration statement in 2017 and asked DEP to provide it
with DEPâs 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 Townsâ next renewal
registration statement under the WMA is not due until 2021.
These consolidated actions followed.
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 DEPâs review of a renewal registration
statement by a grandfathered municipality, but on the
extraordinarily broad language of the PEA.
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. St. 2012, c. 238, § 74.
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 âapprovalâ to which it
applies very broadly").
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 DEPâs
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.
provides for two different procedures-permits and
registrations. See generally Water Depât of Fairhaven v.
Department of Envtâl 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.
a role to oversee and review the filing of the renewal