Harwich Sues State DEP Over Drinking Water Provisions

by William F. Galvin

            HARWICH – The town has filed suit in Barnstable Superior Court against the state Department of Environmental Protection over the agency’s placement of new conditions on the issuance of the decennial public water supply withdrawal permit.

            The suit was filed on behalf of the town by attorney Jeffrey T. Blake of Kopelman and Paige, P.C. It seeks judicial review of the administrator order issued by the commonwealth regarding the Water Management Act approved by the Legislature in 1985 and new conditions placed on the town.  

The sign on the fence at the water department’s main well fields on Chatham Road states the importance of the resource to the community. WILLIAM F. GALVIN PHOTO

           “We don’t want to be blindsided by restrictions that will have a tremendous impact on the community,” Water Department Superintendent Craig Wiegand said on Monday.

            DEP is seeking to place a 65 gallon per day per capita limit on the use of water in communities, to establish unaccounted-for water loss limits, and restrict seasonal nonessential outdoor water use, Wiegand said.

            “They want us to set up standards for unaccounted-for water use, but they (DEP) have no guidelines for it,” Wiegand said. “How can we set that up?”        

The Water Management Act was promulgated in 1985 to “assure comprehensive and systematic planning and management of water withdrawals and use … recognizing that water is both finite and renewable; and to allow continued and sustainable economic growth throughout the commonwealth and increase social and economic well being and safety of the commonwealth’s citizens and of its work force.”

The act allowed the continued withdrawal by entities in operation prior to its adoption as long as they registered with the state Department of Environmental Protection. The Harwich Water Department has been in operation since 1936.

The town operates four wells under pre-existing provisions of the act with an annual maximum withdrawal of 438 million gallons and is permitted for nine wells subsequent to the act, allowing a total annual withdrawal of 818 million gallons. In 2007 the town used 772,525,325 gallons.

The town has not exceeded its withdrawal permit, yet the state wants communities to accept the 65 gallons per person per capital per day standard. Wiegand said DEP is setting policy on the basis of regulations fitting all communities across the state. The superintendent said if a Western Massachusetts community identifies a drought situation all communities across the state would be required to invoke drought management procedures.

“You just can’t make one situation fit all,” Wiegand said. “You’re talking surface water there and we’re groundwater here.”

Wiegand said the 65-gallon provision did not initially take into account the seasonal influx of tourists on towns on the Cape. Presently, he said Harwich uses 71 gallons per day per capita under a formula established by DEP that measures the peak population and calculates it in conjunction with year-round residents, for a median population of 21,250.

After a year of pressure from water departments, Wiegand said DEP relented for the time being on the 65-gallon per day provision. But the state wants adherence to other newly proposed conditions, he said.

The water superintendent said reduced consumption of water would produce a 15 percent reduction in revenues for the water department’s enterprise funds and would have a major impact on future projects facing the department.

“DEP made changes without telling anybody and we can’t live with them,” Wiegand said. “So we made the decision to appeal them.”     

The only conditions on the initial permit issued in 1988 required the town to calibrate all water meters annually and keep withdrawal records on a monthly basis. In 1998 the state renewed the permit without any additional conditions.

“The new performance standards lack clear criteria in that the town is required to limit water consumption to 65 residential gallons per capita day and 10 percent unaccounted-for ‘as soon as feasible’ and as long as the town is not in compliance with the performance standards, it must document that it is ‘making demonstrated progress’ toward meeting the performance standard,” the suit states.

Absent proof of demonstrated progress, “DEP reserves the right to commence enforcement against the town if the town has not implemented an annual compliance plan that is ‘reasonably’ designed to meet performance standards,” the suit states.

Under the seasonal demand plan, the town is required to restrict outdoor water use when the Massachusetts Drought Management Task Force declares a drought advisory, drought watch, drought warning, or drought emergency for the region.

“When it created the performance standards, DEP did not take into account any local conditions affected by the town’s withdrawals nor did DEP demonstrate any nexus between the imposition of the performance standards and the interests it is charged with protecting,” the town’s attorney charges.

The suit states DEP has incorporated identical performance standards into renewal registration statements for every public water supplier in the state “without regard for the specific facts and circumstances faced by each individual community.”

It also charges DEP evaded the rule-making requirements for public notice and comments and violated requirements of the Water Management Act which requires that DEP “consider recommendations from local officials before making findings with respect to water withdrawal permits and presumably renewals of registration statements.”

The suit charges DEP, by circumventing the public notice and comment process, “has failed to properly balance all competing uses of the water supply as required by the statute.” The document contends DEP should have investigated other approaches before imposing these conditions.

The suit charging DEP’s decision exceeded its authority, “was based on a substantial error of law that affects the material rights of the town, was made upon unfounded procedure, was unsupported by substantial evidence, was unwarranted by the facts on the record, and was arbitrary, capricious and an abuse of discretion.”

Wiegand said 48 communities across the commonwealth have filed appeals of the DEP conditions. Several communities on the Cape are among those municipalities challenging the state agency, he said.

2/28/08