Massachusetts municipalities that seek approvals for new water supplies are entering into an intensifying public policy debate and treacherous regulatory terrain (“Tapped Out,” CW, Fall ’00). The permitting process is becoming longer and costlier, more technically complex and politically controversial, with procedures that are often redundant and results that are unpredictable. As a consequence, many communities now see water permits turning into unfunded state mandates and hazards to their economic well-being and competitiveness. Massachusetts needs a new streamlined approach to water regulation that corrects the current deficiencies while maintaining necessary environmental safeguards.
Until the mid-1980s, local public officials and regulators responsible for new public water supplies could rely on a consensus on three points: Managed growth was a good thing, public water utilities were duty bound to meet their customers’ needs, and there was an ample water supply available. This consensus no longer holds. Concerns about the limits of some regional water supplies, which draw on stressed watershed basins that exceed their safe yield and whose water quality is deteriorating from pollution, have heightened the emphasis by regulators on broader watershed management. And environmental groups challenge new water withdrawals more directly. What is lacking is an effective regulatory process that balances the needs of all parties.
Two key pieces of legislation altered the regulatory framework for water supplies. The Inter-Basin Transfer Act, passed in 1983, requires approval from the state’s Water Resources Commission (WRC) for water withdrawals of one million gallons per day or more and for transfer of water from one basin to another in the form of wastewater discharges. In 1985, the Water Management Act gave the Department of Environmental Protection (DEP) added permit authority over water withdrawals of more than 100,000 gallons per day. These laws supplement the Massachusetts Environmental Policy Act (MEPA), which gives the state’s Executive Office of Environmental Affairs broad authority (EOEA) to prevent unacceptable impacts to wetlands, habitats, and water resources.
Everyone involved recognizes that water management has become an increasingly serious matter in Massachusetts, and that the scientific issues are technically complex and not well understood. So there is a need to resolve questions about what is an allowable method of obtaining an adequate supply of water for growing communities in a way that does justice to environmental concerns and is fair to the municipalities that are trying to meet their water needs. Local officials must expect to be challenged by regulators and by outside parties. But they also deserve to know how, when, and how much it will cost before they can–appropriately–expect to overcome those challenges and win permission to obtain the water they need.
Such is not the case today. A myriad of permits and regulatory approvals from multiple agencies are required before a public water supply can be brought on-line. Chief among these are:
- an environmental notification form or environmental impact report, under MEPA, which is administered by EOEA;
- a site exam, pumping test, and new-source approval by DEP, under the Water Management Act;
- water demand projections and water conservation plans approved by the Department of Environmental Management (DEM);
- and in some cases, permission from the Water Resources Commission to extract and use water from one watershed to be discharged in another under the Inter-Basin Transfer Act.
The mix of multiple laws and agencies with overlapping jurisdiction over water supplies make what would be under the best of circumstances a demanding process even more complex, time consuming, and difficult to manage. Once a town embarks on this unpredictable, redundant, and costly process, it cannot be certain that it will succeed. “The present process has the potential to pit one agency against another and one town against another,” says John D’Agostino, town manager of Mansfield, who is one of my clients. “Consequently, a town ends up spending more tax dollars than necessary on an ill-defined process.”
State regulators have tried to make things easier. In 1999 DEP, in conjunction with the state’s other environmental agencies, developed a “site screening” worksheet for use in water permitting. This tool is intended for use early in the process to assess a proposed well site’s possible environmental impacts. The Water Resources Commission has also issued “performance standards” that tell communities up-front what its minimum requirements for “aggressive” water conservation and management plans are to qualify for inter-basin transfers. These are positive steps, but as the experience of Mansfield and Duxbury (two communities that I have worked with) shows, applicants are still at the mercy of regulators’ interpretation of imprecise data and subject to multiple agency reviews that extend the process for months, if not years.
A Tale of two towns
In 1995, the town of Duxbury, population 15,000, was in need of a new water supply to augment town wells. A well site was identified on land adjacent to North Hill Marsh that the town had already purchased. Four state agencies were involved in the regulatory review: EOEA, WRC, DEM, and DEP. The town felt prepared to face state regulators. It could demonstrate water need based on demand projections and water quality problems with existing town wells, document responsible water management based on an effective water conservation and public education program that reduced residents’ per-capita water consumption, and produce unassailable data on hydrogeological conditions.
The process started off well enough. EOEA ruled that there were no significant adverse impacts that would require a full environmental impact report, and DEP gave its approval, based on its review of the town’s scientific studies. But the final permits were held up by a challenge from the Massachusetts Audubon Society, as an abutter (Audubon had, in fact, originally owned land that included the well site) and as an advocate of water conservation. Filing suit against the water permit in Superior Court, Audubon argued that there would be adverse impacts on ecosystems, including the pond water quality, aquatic and wetlands plant communities, vernal pools, and wildlife habitat.
The case went to binding arbitration, a process that, while preferable to a trial, consumed months with an endless series of meetings between Duxbury officials, town consultants and lawyers, DEP and its lawyers, and Audubon, all facilitated by the arbitrator. The early sessions focused on educating the participants in the relevant geology, hydrology, and computer modeling of projected influences of the well on the marsh and the underlying aquifer. Later sessions involved hard-nosed negotiations. The parties would agree to a final DEP water withdrawal permit only if the town monitored wetlands vegetation for five years to ensure there was no adverse impact and only if the water level of the pond did not fall below a predetermined minimum.
To gain even this highly conditional approval, Duxbury spent over five years and more than $300,000, including the cost of the monitoring program. The monitoring found no discernable effects from pumping the well, a finding identical to the conclusions by MEPA and DEP made during the permit process. Last year, DEP allowed Duxbury to end vegetative monitoring. It had taken sound science and thorough environmental studies, as well as a strategic regulatory approach, to get Duxbury a water permit. Yet, the process necessary to achieve this outcome was unprecedented in its procedures and unpredictable in its outcome.
The town of Mansfield discovered that not even sound strategy and good technical justification are enough to eliminate red tape and delays. With a 27-percent growth rate over the last 10 years, Mansfield is one of the state’s fastest growing communities, with among the highest concentrations of children under the age of 14. These demographic factors severely tax the town’s water supply during summer months. In June 1999, the town instituted a voluntary, alternate-day water ban. By month’s end, the town had to impose a mandatory, daily water ban.
In need of an additional one million gallons a day of water, Mansfield identified a new water source at the site of an abandoned gravel quarry adjacent to Witch Pond Swamp, an area that offered protection to Atlantic white cedar and two endangered animal species. The town recognized the sensitive nature of the site and, beginning in 1997, undertook detailed hydrogeological and environmental studies to support its water permit applications.
Once again, the MEPA review determined that the water withdrawal did not warrant an impact report. But on the inter-basin transfer request, the process bogged down. DEP and DEM each performed reviews of the same technical issues, most of which should have already been covered under MEPA. Disagreements between the department staffs on various issues further complicated matters. With the regulatory process divided among several agencies, Mansfield was subjected to multiple reviews, with their rituals of comments and responses, time after time.
Belatedly, DEP and DEM recognized significant areas of overlap in their respective water-management rules and began to look for ways to improve coordination and communication. In the end, Mansfield became the first municipality to receive a permit for a new municipal water supply involving joint oversight by the two agencies. But it did so under the burden and cost of a difficult regulatory process that will have taken five years—and $400,000—by the time Mansfield begins pumping its well in 2002.
Clearing the regulatory logjam
The difficulties Duxbury and Mansfield faced getting approval for their water plans might not be so worrisome if they were extraordinary cases. But applications such as theirs are likely to become more typical in the future, not exceptions. The residential and industrial growth that Massachusetts is experiencing today is concentrated in areas served by groundwater sources that are limited and under increasing stress. Meeting the drinking water and wastewater needs of these growing communities today cannot come at the expense of environmental devastation tomorrow. So it is altogether necessary and appropriate that requests for new municipal wells in these areas be subject to strict scrutiny, and be approved only in conjunction with meaningful conservation and environmental monitoring plans.
But tying water-starved communities up in knots is not sound environmental or public policy; it’s regulation by red tape. Indeed, the more serious the environmental problem, the more important it is that it be addressed by clear, scientifically based measures enforced by a streamlined, coordinated process of administrative review. A cumbersome, duplicative process that drives up costs without providing any added measure of environmental protection does no one any good, and does municipal governments much harm.
Consolidating the state regulatory process for water supplies is the key to balancing the equally important public policy goals of protecting the environment and serving the drinking water needs of the Commonwealth’s citizens, particularly in communities where growth and development exert increasing pressure on public officials. In regions where stressed watershed basins require heightened scrutiny by regulators and greater emphasis on conservation measures, there needs to be a renewed focus on regional solutions that cross municipal boundaries, not just more hoops for local officials to jump through.
Combining separate and often repetitive agency reviews into one comprehensive process, as is supposed to occur under MEPA, would streamline permitting without sacrificing environmental protection. Listen to Mansfield town manager John D’Agostino again: “We need a mechanism that eliminates the possibility of arbitrary decisions. Going into the permit process, towns need to know that if they meet those standards, they can pump the water their constituents need.” Designating a single lead agency that will direct the others in a single-step evaluation of key technical matters–such as hydrogeological modeling, minimum safe stream flows, and wetlands and hydrology monitoring–would be one important improvement.
Measures such as this can streamline the regulatory process for new water supplies and remove the institutional barriers that lead to delays and runaway costs, without sacrificing environmental protection. With smart regulation, we can have our water and drink it, too.
Daniel Garson is senior vice president and director of environmental studies and permitting at Woodard & Curran in Dedham.