- Miyares and Harrington LLP
Municipal Water Rights by Special Act are not Wholly Extinguished by the Water Management Act
In 1985, the General Court enacted the Water Management Act, creating a regulatory system to manage water withdrawals across the Commonwealth through registrations and permits. But before that Act, the General Court had enacted many hundreds of Special Acts, as far back as the 1800s, giving municipalities many and varied rights to take (by eminent domain) and otherwise use water bodies, including Great Ponds. In a recently decided case, Concord v. Water Department of Littleton, the Supreme Judicial Court addressed the question of how the Water Management Act's passage affects those Special Act rights: Do they remain in effect or were they repealed?
The case arose from a dispute among three Towns—Littleton, Acton, and Concord. Through a Special Act passed in 1884, each Town was given the right to “take and hold” (by eminent domain) and use Nagog Pond, a Great Pond located in Littleton and Acton. Littleton and Acton were given the right to be “first supplied” over Concord if the Pond’s waters proved not to be sufficient for all three Towns. Concord took the Pond’s waters in 1909.
Following the passage of the Water Management Act, Concord registered its historical Concord River Basin water withdrawals across several withdrawal points, including Nagog Pond. Faced with a growing need for water, Littleton recently explored the exercise of its own rights to use Nagog Pond. That prompted Concord to sue Littleton arguing that the Water Management extinguished Littleton's and Acton's unexercised rights in the Pond. The Land Court agreed with Concord and held that the Water Management Act impliedly repealed all of Littleton’s and Acton’s rights. But the SJC mostly disagreed with that holding. According to the SJC, each of the Towns’ respective rights to “take and hold” Nagog Pond—a right to take property by eminent domain—remains intact. Littleton and Acton may therefore exercise their rights in the future along with Concord, with all three Towns obligated to follow the Water Management Act’s regulatory program. The only aspect to Littleton's and Acton's rights that the SJC decided was impliedly repealed by the Water Management Act was the Special Act provision that Littleton and Acton would be "first supplied." The SJC found that that provision might interfere with MassDEP’s Water Management Act registration and permitting of water withdrawals.
This decision’s principal takeaway is that the Water Management Act did not broadly sweep away municipalities’ Special Act rights to take, hold, or otherwise withdraw water from various water bodies. It is only in narrow circumstances in which a specific provision of a Special Act cannot be reconciled with the Water Management Act where a right embodied in a Special Act might be in jeopardy.