Decision  Matter of Town of Ipswich, No. 2002-109 (DALA 2009)

Date:	04/30/2009
Organization:	Division of Administrative Law Appeals
Docket Number:	2002-109

• Petitioner: Department of Environmental Protection
• Respondent: Town of Ipswich
• Administrative Magistrate: Natalie S. Monroe

Remand Order

This appeal involves a water withdrawal permit that the Department of Environmental Protection (the "DEP") issued to the Town of Ipswich under the Water Management Act, G.L. c. 21G, and its implementing regulations, 310 CMR 36.00. For the reasons set forth below, I remand the permit to the DEP to calculate the safe yield of the Parker River basin or the Egypt/Rowley sub-basin in compliance with G.L. c. 21G, §§ 7, 11 and 310 CMR 36.31. I also instruct the DEP to determine whether the combined volume of existing, permitted and proposed withdrawals exceeds the safe yield of the relevant water source.

Statutory Framework

In 1985, the Legislature passed the Water Management Act, G.L. c. 21G (the "WMA" or the "Act"), which established a system for planning and managing water use and conservation in the Commonwealth. The WMA vested the Massachusetts Water Resources Commission with the authority to set the principles, policies and guidelines governing the system, while the DEP was charged with implementing the system. G.L. c. 21G, § 3.

The WMA gave the DEP the authority to regulate all water withdrawals in excess of 100,000 gallons per day from a single "water source." G.L. c. 21G, § 4. The WMA defines a "water source" as any natural or artificial aquifer or body of surface water, including its watershed where ground and surface water sources are interconnected in a single hydrological system. Id. at § 2. Existing water users in 1985 were required to register with the DEP all existing water withdrawals above the threshold volume of 100,000 gallons per day. Id. at § 5. Those wishing to make a new water withdrawal over the threshold volume must obtain a water withdrawal permit from the DEP. Id. at § 7.

The WMA further provides that when the DEP reviews a water withdrawal application, the agency must consider, among other things, the "safe yield" of the water source from which the water would be withdrawn. G.L. c. 21G, § 7. The Act defines "safe yield" as follows:

the maximum dependable withdrawals that can be made continuously from a water source, including ground or surface water, during a period of years in which the probable driest period or period of greatest water deficiency is likely to occur; provided, however, that such dependability is relative and is a function of storage and drought probability.

Id. at § 2. The Act further states that,

[i]f the department finds that the combined volume of existing, permitted and proposed withdrawals exceeds the safe yield of a water source … it shall deny all applications for permits for withdrawals from that water source. Id. at § 11 (emphasis added). The Regulations similarly provide that every permit "shall be conditioned on at least the following: … that the withdrawal in combination with other registered and permitted withdrawals shall not exceed the safe yield of the water source." 310 CMR 36.28(1)(j). See also 310 CMR 36.30(2) (the DEP "shall deny any and all permit applications" for a water source if the combined permitted, registered and proposed withdrawals exceeds the safe yield of the water source).
The WMA does not contain a procedure or formula for calculating the safe yield of a water source, but the Regulations do. They provide that, in computing safe yield, the DEP "may … consider at least the following:"

(a) minimum streamflow guidelines as developed by the Department of Environmental Management and the [Massachusetts Water Resources] Commission;

(b) the water balance of the water source;

(c) the hydrologic impacts of proposed, existing and permitted withdrawals;
(d) the safe yield of any isolated or severely impacted subbasin within the water source; [and]

(e) any additional applicable information.

310 CMR 36.31(1). The Regulations further provide that, "[i]n water sources deemed appropriate by the [DEP]," the agency shall use a "water streamflow analysis" to determine safe yield. 310 CMR 36.31(2). The "water streamflow analysis" utilizes three inputs: the average daily stream flows in the water source in the summers of 1980 and 1981, the size of the drainage area of the water source, and a "reference streamflow value" for the water source developed by the Water Resources Commission. Id. Finally, the Regulations provide that for purposes of calculating safe yield, a water source may be determined by the [DEP] to be either a river basin, or a hydrologically distinct portion thereof, dependent on information satisfactory to the [DEP] for the establishment of safe yield…. 310 CMR 36.03.

Procedural and Factual Background

On May 24, 2002, the DEP issued a water withdrawal permit to the Town of Ipswich authorizing the Town to withdraw 340,000 gallons of water per day from the Parker River basin. Before issuing the permit, the DEP did not calculate the safe yield of the Parker River basin or any "hydrologically distinct" sub-basin. See G.L. 21G, § 7; 310 CMR 36.03. Nor did the DEP determine whether "the combined volume of existing, permitted and proposed withdrawals exceeds the safe yield of [the applicable] water source…." G.L. c. 21G, § 11. See also 310 CMR 36.28(1)(j); 310 CMR 36.30(2).

On June 19, 2002, the petitioner, a group of ten citizens, filed this appeal to challenge several aspects of the permit, including the DEP's compliance with the safe yield requirements in the Act and Regulations. On November 8, 2002, Administrative Law Judge Mark Silverstein held a pre-hearing conference. Following the conference, ALJ Silverstein issued a pre-hearing conference report which, among other things, established a pre-hearing schedule and identified the following issues for adjudication:

1. (a) What are the streamflow requirements for maintaining interests protected by G.L. c. 21G in the Parker River Basin, including fisheries and water quality?

(b) Does the permit reasonably protect these interests?

2. (a) What is the applicable safe yield?

(b) Does the permit allow a water withdrawal in excess of the safe yield?

3. (a) What were the projected water demand and water requirements for the Town of Ipswich at the time the permit was issued?

(b) Does the permit authorize a water withdrawal that is needed to meet the projected water demand and water requirements?

4. What permit conditions are needed to protect the Egypt River and the Ipswich River?

See Pre-hearing Conference Report, dated November 12, 2002.

On February 6, 2003, Administrative Law Judge Kristin Palace granted the parties' joint motion to stay the case to allow them to explore settlement. When more than two years had passed and no settlement had been reached, the stay was lifted. After ruling on motions to dismiss and for summary decision, I held a hearing from December 5, 2006 to December 7, 2006. The parties filed post-hearing briefs on February 21, 2007.

During the hearing and in closing briefs, the parties continued to dispute the DEP's obligation to perform a safe yield calculation before issuing the permit. As part of this disagreement, the parties disputed whether the "water source" for the permit was the Parker River basin or one of its sub-watersheds, called the Egypt/Rowley sub-basin. The DEP contended that, even though the permit states that the water source is the Parker River basin, the Egypt/Rowley sub-basin is the actual water source for the permitted withdrawals. The petitioner advocated for the Parker River basin, arguing both that the permit was issued for the Parker River basin and that the Egypt/Rowley sub-basin is not hydrologically distinct.
On July 13, 2007, the Superior Court issued its decision in Town of Hamilton v. Department of Environmental Protection, C.A. No. 06-745 (Mass. Super. Ct., July 13, 2007). That case involved an appeal of a water withdrawal permit that the DEP had issued to the Town of Hamilton authorizing water withdrawals from the Ipswich River basin. In its decision, the Superior Court held that both the WMA and Regulations require the DEP to perform two "safe yield" functions before issuing a water withdrawal permit: (1) calculate the safe yield of the relevant water source; and (2) ensure that the combined volume of existing, permitted and proposed withdrawals does not exceed the safe yield of the water source. Slip op. at pp. 17-20. The Court explained that these are statutory and regulatory mandates that the DEP must follow prior to granting a permit. Id. The Court then remanded the matter to the DEP for a recalculation of the safe yield of the Ipswich River basin "as soon as is reasonably possible." Id. at 20.

As previously discussed, the DEP has never calculated the safe yield of either the Parker River basin or the Egypt/Rowley sub-basin. In light of Hamilton, therefore, I ordered the DEP to show cause why the Town's permit should not either be vacated or remanded to the agency to calculate safe yield. The show cause order also provided a schedule for the petitioner and the Town to respond to the order.
For the reasons set forth below, I conclude that the Town's permit must be remanded to the DEP to (1) calculate the safe yield of either the Parker River basin or the Egypt/Rowley sub-basin; and (2) determine whether the combined volume of existing, permitted and proposed withdrawals exceeds the safe yield of the relevant water source.

Discussion

The DEP maintains that the case should proceed to a final decision, despite the Superior Court's ruling in Hamilton. The agency contends that it could not calculate safe yield in this case because the Water Resources Commission (the "WRC") never approved a reference streamflow value for the Parker River basin or the Egypt/Rowley sub-basin. The DEP states that, in any event, it properly issued the permit because it had no information that the Ipswich permit would exceed the safe yield of the Egypt/Rowley sub-basin. It further states that, instead of computing safe yield, the agency considered comments from other state agencies and the public. The Town agrees with the DEP and asserts that this case should proceed to a final decision. It argues both that Hamilton is not binding precedent and also is distinguishable on the facts. It further maintains that the DEP was neither required nor permitted to calculate the safe yield of the water source in this case.

The petitioner argues that the permit cannot be upheld because it was issued in contravention of the Act. It also disputes the DEP's claim that the agency could not calculate safe yield. While it agrees that the DEP did not have a reference streamflow value from the WRC, it maintains that the DEP could have used an alternate method to compute safe yield. Finally, the petitioner disagrees with the DEP's contention that there was no evidence that the Town's withdrawals would exceed the safe yield of the Parker River basin or the Egypt/Rowley sub-basin.
The petitioner's position is correct.

A. The Permit Was Issued in Violation of the Act and Regulations.

The Superior Court's ruling is clear and unequivocal: the DEP cannot issue a water withdrawal permit unless it both calculates the safe yield of the water source and ensures that the total withdrawals from that water source will not exceed the safe yield. Hamilton, slip op. at pp. 18-19. Despite the Town's argument to the contrary, the Superior Court's ruling concerning safe yield is binding on this tribunal.

Moreover, the Court's ruling in Hamilton is consistent with established Massachusetts law. The WMA states that the DEP "shall" consider the safe yield of the water source at issue in the permit application and "shall deny" the application if the combined volume of existing, permitted and proposed withdrawals exceeds the safe yield. G.L. c. 21G, §§ 7, 11. The Massachusetts Supreme Judicial Court has held that when the Legislature directs that an agency or other political subdivision "shall" act in a specified manner, actions taken contrary to the statutory directive are not lawful. See, e.g., Massachusetts Soc. of Graduate Physical Therapists, Inc. v. Board of Registration in Med., 330 Mass. 601, 603, 116 N.E.2d 264, 266 (1953) ("shall [is] a word of command"); Johnson v. District Atty. for the Northern Dist., 342 Mass. 212, 215, 172 N.E.2d 703, 705 (1961) ("The word 'shall' in a statute is commonly a word of imperative obligation and is inconsistent with the idea of discretion"). The statute need not explicitly state that noncompliance is unlawful. See, e.g., Phipps, 387 Mass. at 690 n.1, 443 N.E.2d at 117 n.1; Hashimi v. Kalil, 388 Mass. 607, 609-10, 446 N.E.2d 1387, 1389-90 (1983).

Thus, under Massachusetts law, the safe yield calculation is a mandatory prerequisite to issuing a water withdrawal permit. Moreover, the DEP cannot grant a permit unless it also determines that the total withdrawals in the water source will not exceed the safe yield. See, e.g., Massachusetts Soc. of Graduate Physical Therapists, 330 Mass. at 603, 116 N.E.2d at 266. Furthermore, there is no dispute that before it issued the subject permit to the Town of Ipswich, the DEP did not compute the safe yield of the Parker River basin or the Egypt/Rowley sub-basin. Consequently, the permit was issued in violation of the WMA. See Hamilton, slip op. at pp. 17-20.

Nor did the DEP follow its own regulations when it issued the permit. See 310 CMR 36.28(1)(j) (every permit "shall be conditioned on at least the following: … that the withdrawal in combination with other registered and permitted withdrawals shall not exceed the safe yield of the water source"); 310 CMR 36.30 (the DEP shall deny a permit if the combined permitted, registered and proposed withdrawals exceeds the safe yield of the water source).

Finally, safe yield is not a minor aspect of the Water Management Act, but is a cornerstone of both the Act and its implementing regulations. The Preface to the Regulations provides:

The concept of safe yield is fundamental to the proper management of a water source, taking into account the natural variability of streamflow, and serves as the principal regulatory basis for determining the scope of the permitted water withdrawals of the water source. 310 CMR 36.00 (Preface). The DEP also has stated:

The principal basis for controlling permitted water withdrawals under the Water Management Act is the concept of safe yield. Safe yield is the volume of water that can be removed from surface or groundwater without unreasonable damage to the water source.

DEP's Water Management Policy for Permit and Permit Amendment Applications and 5-Year Reviews, dated April 2, 2004. Thus, this is not a situation where the DEP's failure to comply with a statutory mandate could be considered trivial or de minimis.

1. The DEP's arguments.

In concluding that the permit violates the WMA, I considered the DEP's contention that it could not compute the safe yield of the Parker River basin or Egypt/Rowley sub-basin because it did not have a reference streamflow value from the WRC. Nothing in the WMA or Regulations requires the DEP to use a reference streamflow value from the WRC, however. Rather, the Regulations provide that the DEP shall use the WRC reference streamflow value "[i]n water sources deemed appropriate by the [DEP]." 310 CMR 36.31(2). The Regulations give the DEP discretion to compute safe yield by other methods. See 310 CMR 36.31(1)-(2). In any event, the absence of a reference streamflow value does not excuse the DEP from complying with a statutory mandate.

I also considered, but was not persuaded by, the DEP's argument that it properly issued the permit because it had no information indicating that the permit would exceed the safe yield of the Egypt/Rowley sub-basin. Both the WMA and the Regulations require the DEP to (1) calculate safe yield and (2) to ensure that the proposed water withdrawal does not exceed that safe yield. An absence of information does not meet those statutory or regulatory obligations. Indeed, the DEP's approach directly contradicts the WMA because it allows the DEP to issue a permit unless it receives proof that safe yield would be exceeded. The WMA demands the opposite: before issuing a permit, the DEP must affirmatively determine that safe yield will not be exceeded.

Finally, in its reply brief, the DEP argues that it used alternative methods to determine the safe yield of the Egypt/Rowley sub-basin. See Department's Reply to Petitioner and Town's Responses to Department's Motion to Show Cause at p. 2. The testimony that the DEP cited in support of this contention demonstrates that the agency did not calculate the safe yield of the sub-basin, but instead elicited comments from interested public agencies, private organizations and individuals. See Pre-filed Testimony of Duane Levangie at ¶¶ 15-18, 23-29; Pre-filed Testimony of Kellie O'Keefe at ¶¶ 13-15. Although valuable, seeking input from others is not equivalent to calculating the total quantity of water than can be withdrawn safely from a water source. See G.L. c. 21G, § 2 (defining "safe yield"); 310 CMR 36.03 (same). Stated differently, the DEP cannot consider the safe yield of a water source in its permitting decision unless it knows what the safe yield is, i.e., unless it has actually numerically calculated the safe yield. The DEP also cannot decide whether it must deny a permit because combined withdrawals exceed a water source's safe yield without knowing what the safe yield is. The DEP never calculated the safe yield in this case, and never determined whether the combined withdrawals exceeded safe yield.

2. The Town's arguments.

The Town contends that Hamilton is distinguishable because the Town withdraws some of its water from two reservoirs, while the Town of Hamilton used only groundwater wells. The Town explains that because it utilizes reservoirs, the DEP was required only to calculate the safe yield of the reservoirs, which it did. The Town is confusing the difference between a water source and the withdrawal points within that water source. The permit allows the Town to withdraw 340,000 gallons of water per day from the Parker River basin (or the Egypt/Rowley sub-basin). The permit further states that this 340,000 gallons can be withdrawn from three specific locations, or "withdrawal points," within the basin. Two of the withdrawal points are wells (the Mill Lane and Browns wells) and one is a dual reservoir (the Dow and Bull Brook reservoirs).

Section 11 of the WMA mandates that the DEP calculate the numeric safe yield of the water source at issue, which in this case is either the Parker River basin or the Egypt/Rowley sub-basin. See G.L. c. 21G, § 11. See also 310 CMR 36.31. When reviewing a permit application, the DEP also may calculate the safe yield of the withdrawal points - both reservoirs and wells - that a town intends to use and then may limit the amount of water that can be taken from a particular withdrawal point. See, e.g., 310 CMR 36.31(6). This second-level calculation does not supplant the WMA's directive to compute the numeric safe yield of the entire water source. See G.L. c. 21G, § 11. Indeed, the purpose of determining the safe yield of the entire water source is to ensure that the combined registered and permitted withdrawals from all water users do not overtax the water source. Id. Identifying the safe yield of individual withdrawal points does not serve this purpose (or comply with the plain language of the WMA).

As a variation of its previous argument, the Town next argues that the DEP does not have the authority to calculate the safe yield of the Parker River basin because the Town's withdrawals are from both reservoirs and wells. It states:
[T]he regulations are silent as to how the Department is to consider permit applications when the public water supply uses both reservoirs and wells, and this tribunal cannot write a new requirement into the regulations as part of this proceeding.

Town of Ipswich's Reply to Department's Motion to Show Cause at p. 2. The Town is again mixing apples and oranges. The WMA requires the DEP to compute the safe yield of every water source, regardless of the types of withdrawal points within the water source. G.L. c. 21G, §§ 7, 11.

B. Should the Permit Be Vacated or Remanded to the DEP?

Both the DEP and the Town argue that, even if the agency has to calculate safe yield, I should adopt the approach taken in Hamilton and decide the merits of the appeal while simultaneously remanding the safe yield determination to the DEP. This option is not viable. The Superior Court has the authority and discretion to craft equitable remedies that this tribunal does not possess. As part of the administrative review process, I cannot sustain a permit that was issued in contravention of the WMA and Regulations.

The DEP and Town's approach also would be highly inefficient. One of the issues for adjudication (Issue No. 2) asks the very questions that are being remanded to the DEP: what is the applicable safe yield and does the permit allow a water withdrawal in excess of safe yield? Additionally, safe yield is directly relevant to the other issues for adjudication, especially Issue Nos. 1 and 4. Finally, the DEP's safe yield calculation could cause the agency to modify permit conditions, such as the amount of water Ipswich can withdraw. This could change the current issues for adjudication and/or raise new issues.

The petitioner, on the other hand, states that I must vacate the permit because it was issued in violation of the statute. Vacating the permit, however, would impose a real hardship on the Town. See, e.g., Department's Motion to Show Cause at pp. 4-5. It also would subject the parties to the time and expense of filing and reviewing a new water withdrawal application.

I conclude that the permit must be remanded to the DEP for the calculation of the safe yield of the Parker River basin or Egypt/Rowley sub-basin. This would maintain the status quo pending the DEP's safe yield review. Moreover, a remand is within the discretion of this tribunal. See, e.g., Matter of Todesca Equip. Co., Inc., Remand Decision, 4 DEPR 233 (Dep. Envtl. Prot., Dec. 31, 1997), adopted by Final Decision, 4 DEPR 243 (Dec. 31, 1997). A remand also is consistent with Magistrate Rooney's ruling in Matter of Danvers, et. al., Ruling on Issues to Be Adjudicated: Safe Yield, 11 DEPR 59 (Div. Admin. Law App., Apr. 2, 2004). He stated in that decision:

If it could be shown that the DEP needed to recalculate the safe yield of the Ipswich River basin in order to fulfill its obligations when modifying the water withdrawal permits in a basin, the result would not be a new calculation of safe yield by an Administrative Magistrate, but a return by the magistrate of the appeals to DEP to determine safe yield. Id. at 60.

C. What is the Appropriate Water Source?

As previously discussed, the parties dispute whether the appropriate water source is the Parker River basin or the Egypt/Rowley sub-basin. The Regulations provide that for purposes of calculating safe yield,

a water source may be determined by the [DEP] to be either a river basin, or a hydrologically distinct portion thereof, dependent on information satisfactory to the [DEP] for the establishment of safe yield….

310 CMR 36.03. Thus, the DEP has the discretion, within the confines set forth in 310 CMR 36.03, to determine whether to calculate the safe yield of the Parker River basin or the Egypt/Rowley sub-basin. Id.

Conclusion

Section 7 of the WMA requires the DEP to consider the safe yield of a water source when it reviews a water withdrawal permit application for that water source. G.L. c. 21G, § 7. Section 11 of the WMA requires the DEP to deny all applications for permits for a water source if the combined volume of existing, permitted and proposed withdrawals exceeds the safe yield of that water source. Id. at § 11. Thus, Sections 7 and 11 make safe yield the gatekeeper for withdrawals, and the DEP must calculate the safe yield of a water source before granting any water withdrawal permits for that water source. Before issuing the subject permit to Ipswich, the DEP did not calculate the safe yield of either the Parker River basin or the Egypt/Rowley sub-basin.

Accordingly, I hereby remand this appeal to the DEP to (1) calculate the safe yield of either the Parker River basin or the Egypt/Rowley sub-basin; and (2) determine whether the combined volume of existing, permitted and proposed withdrawals exceeds the safe yield of that water source. The DEP shall file and serve a status report when it has completed its work. At that time, I will schedule a status conference to discuss the next steps in this appeal.

Dated: April 30, 2009

_____/s/________________
Natalie S. Monroe
Administrative Magistrate