The settlement, signed March 29, 2006, resolved the appeals of the towns of Danvers and Middleton, and involved the Ipswich River Watershed Association and MassDEP. The agreement provides greater environmental protection for the river and ensures that the towns will be able to meet their needs for a safe and sustainable water supply, while accommodating new development.

"This settlement strikes the right balance between competing uses of the water - it protects the environment, while allowing continued economic growth in the Commonwealth," MassDEP Commissioner Robert W. Golledge Jr. said. "The agreement provides each community with the ability to deliver a clean and reliable source of drinking water, while ensuring that the water will be used wisely to protect and possibly restore one of the state's most severely stressed rivers."

The settlement includes new conditions applied to their water withdrawal permit, which offers the towns greater flexibility in managing their supplies, while requiring strict water conservation and demand mitigation measures that are needed to avoid damage to the river. The permit takes effect immediately.

Among the permit conditions are:

• Danvers and Middleton may pump up to 3.72 million gallons a day from their reservoirs and wells, but must shut off the wells, rely upon water stored in the reservoirs, and restrict outdoor water use during low-flow periods.
• Private wells in Middleton are subject to the same restrictions as apply to public water supply customers.
• The towns will implement an innovative "water usage mitigation program" to offset water demand from new or expanded development.
• Performance standards apply to residential water use, unmetered water, and summer use; MassDEP will consider the town's progress towards meeting those standards before taking any enforcement action.

MassDEP Adopts ALJ Decision For Hamilton, Wenham and Topsfield

On March 27, 2006, Commissioner Golledge also adopted the recommended decision of an administrative magistrate, saying that the proposed Water Management Act permit conditions - such as those included for Hamilton, Topsfield and Wenham - are necessary and appropriate to begin to restore adequate flows in the river.

Commissioner Golledge specifically stated that MassDEP may include conditions in the permits establishing conservation requirements to alleviate the flow situation in the Ipswich River during the summer months.

"Conditions to reduce water use, even where withdrawals are already below authorized volumes and the safe yield of the basin remains uncertain, are justified to prevent 'no flow' conditions in the Ipswich River," Commissioner Golledge wrote.

The Commissioner also noted the "commendable efforts" of the towns to manage their supplies - or more accurately to manage their customers, by limiting water use such as residential lawn watering - more efficiently.  

One issue was whether permit conditions may affect withdrawal volumes that were registered in the late 1980s when the statute was passed. While there are important distinctions between registration and permits under the Water Management Act, registered withdrawals are not beyond the scope of MassDEP authority. Particularly where safe yield appears to be compromised and conditions on permits are insufficient to sustain flows, Commissioner Golledge concluded that "the Department has not only the authority but the obligation to act."  

Commissioner Golledge stated that MassDEP anticipates including conditions on registrations as well to further promote conservation. Under the statute, MassDEP may condition registrations to specify conservation measures to be instituted by the registrant. Implementation of conservation measures should lower actual withdrawals without lowering the volume authorized under a registration statement. Under the statute, the Water Resources Commission has the responsibility for the development of conservation guidelines and its Water Conservation Standards would provide appropriate measures for registrations at renewal in 2008.

Commissioner Golledge also expressed concern about the time and expense of litigation of Water Management Act permits and suggested that MassDEP consider issuing draft permits for public comment prior to issuance and any appeal proceedings.

Although Massachusetts is relatively rich in groundwater and surface water supplies, many communities are facing water use restrictions and seasonal low-flow in their rivers and streams. MassDEP regulates water withdrawals under the Water Management Act, legislation passed in 1985 to manage ground and surface water in a single hydrologic system and to balance the competing needs of water users. Most water supplies and other large water users are covered by Water Management Act permits. Water users at the time the Act was passed could register their water use. Permits are required for new or increased withdrawals. Permits are subject to review every five years.

The amount of water withdrawn within a basin may not exceed the basin's safe yield. The Water Management Act prohibits the issuance of new permits if the combined volume of existing, permitted and proposed withdrawals will exceed safe yield and it allows permit applicants to purchase unused volumes held by registrants.

Ipswich River Faces Severe Low-Flow Conditions

For many years, the Ipswich River has experienced severe low-flow conditions in the summer time, at times running dry for almost half of its 45-mile length. When permits initially issued in 1991 were reviewed, it was clear that modifications were necessary to include more stringent conditions to address low-flow problems. MassDEP commissioned the United States Geological Survey (USGS) to study both hydrologic and ecologic aspects of the river to better understand the cause of the low flows and evaluate management alternatives. In 2003, MassDEP issued modified permits to municipal water suppliers within the Ipswich basin.

The permits for public water suppliers in the Ipswich basin contained water conservation requirements, including a limit on residential water use of 65 gallons per person per day, a limit on unaccounted for water of 10 percent or less of overall water use, and a cap on summer water withdrawals. Some permit restrictions were linked to specific stream flows to address the summer shortfalls, and allow alternate approaches to restrictions on summer water use.

Most municipal suppliers in the Ipswich basin - Hamilton, Wenham, Topsfield, Danvers, Middleton, Lynnfield, Lynn, North Reading, Peabody, Salem, Beverly and Wilmington - appealed their modified permits, claiming that the conditions were too stringent. The Ipswich River Watershed Association, Essex County Greenbelt Association, and a 10-citizen group intervened to become part of the case, and the Massachusetts Audubon Society participated in the case as well.

The appeals have been under ongoing review before an administrative magistrate at the state Division of Administrative Law Appeals, where hearings on appeals of MassDEP permits are now held. In late January, Administrative Magistrate James Rooney issued a ruling in the first three appeals - Topsfield, Hamilton and Wenham. Rooney's recommended decision upheld the MassDEP conditions as initially proposed, with small modifications to the water restriction notice in each permit.

As per the standard process for permit appeals, this recommendation was sent to Commissioner Golledge for a final decision. On March 27, 2006, Commissioner Golledge adopted the recommended decision and two prior rulings on legal issues that had been raised by the parties. In his decision, he stated that the stringent Water Management Act permit conditions may even affect a water supplier's access to "registered" water volumes and conservation measures are appropriately part of the registration process as well as permitting.

Finally, difficulties in determining "safe yield"- the amount of water that can safely be withdrawn from the basin - have contributed to uncertainty about the amount of water available for withdrawal. Research into this issue is underway, and the safe yield for the Ipswich River basin will be evaluated after adoption of a revised methodology.

Copies of the recommended and final decisions on this case can be found on the MassDEP website at: www.mass.gov/dep/water/resources/permits.htm

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