Energy Challenges of Condominium Associations and Unit Owners 12/02/2025

 

Environmental Justice and the Legal Profession (Video)

Massachusetts Environmental Law From A-Z PDF (Updated August 2023)

REBA Environmental Section Co-chair Greg McGregor is sharing his comprehensive history of Massachusetts Environmental Law

from covering environmental law from "A to Z."  in PDF format, updated as of August 2023.

https://www.mcgregorlaw.com/readingroom_files/Environmental_Law_in_MA_A-Z.pdf

This presentation is the basis of his CLE presentations to practicing lawyers, corporate counsel, agency officials, and clients. Researchers find it useful as a synopsis of how the various laws work and relate.

Developed over the years, this environmental law slide show has evolved to incorporate land use, real estate, energy law, climate, and related litigation including the evolving doctrines of Article 97 preservation of public lands and regulatory takings under the state and U.S. Constitutions.

A founder and current co-chair of REBA’s Environmental Law Section, Greg McGregor is also the founder of the Boston-based environmental law firm, McGregor & Legere, PC, which handles environmental, land use, and real estate matters, plus related litigation. He is also a founding member of the Environmental Law Network, an alliance of specialty law firms in the United States and abroad, sharing expertise and experience for the benefit of their clients.   Greg can be contacted by email at gimcg@mcgregorlaw.com.

MassDEP Targets Cape Cod’s Nitrogen Pollution with New Watershed and Septic System Regulations

 Caroline E. Smith

Introduction

The Massachusetts Department of Environment Protection (“MassDEP”) has amended its Septic System (“Title 5”) Regulations

(310 CMR 15.000) and its Watershed Permit Regulations (314 CMR 21.00). These new regulations were promulgated in tandem and took effect the same day—July 7, 2023.  There are some stressed watershed designations effective immediately, timetables and options for actions applicable to Cape Cod towns, and retrofit requirements that will apply to septic system owners depending on what town you are in, what watershed, and what is your septic systems level of nitrogen compliance. 

The target of these new rules is Cape Cod nitrogen pollution well documented in waterbodies. Basically, MassDEP using its state Clean Water Act authority has required the 11 towns on the Cape to remediate the excess nitrogen in Cape Cod waters. In communities that do not do so, owners of septic systems will have new obligations to meet within deadlines a few years out.   

These new rules arose out of a settlement of a court case brought by the Conservation Law Foundation of New England, Inc. (CLF) against the Towns of Barnstable and Mashpee for alleged non-compliance with laws governing discharges of sewage. MassDEP agreed to develop and promulgate these regulations, which it has done after several months of drafting, consultation and public comment. 

These two sets of regulations work together as carrot and stick, with the Watershed Permit Regulations as the carrot and the Title 5 Regulations as the stick. Communities must follow the steps outlined in the amended Watershed Permit Regulations. Otherwise, requirements are triggered for newly constructed and existing septic systems. 

Background

The Massachusetts Clean Water Act, M.G.L. c, 32, §§ 26 through 53, charges the MassDEP with the duty to protect public health and enhance the quality and value of the water resources in the Commonwealth. Under this statute, groundwater is included as a protectable water of the Commonwealth. MassDEP fulfills its duty regarding this publicly protected resource in part by regulating septic systems and issuing watershed permits. 

A watershed is an area of land that drains into a specific body of water. Massachusetts is divided into 32 major watersheds, and many smaller watersheds. Cape Cod is its own large watershed (it all drains to the ocean) plus there are many smaller watersheds in it. MassDEP’s new Septic System Regulations and Watershed Permit Regulations only affect Cape Cod. 

The catalyst for the new regulations is nitrogen pollution in Cape Cod coastal estuaries and embayments, which is a problem also affecting the Islands and Southeastern Massachusetts. Septic systems are the major contributor of nitrogen polluting groundwater and waterbodies. On Cape Cod, 85% of waste water systems are septic systems.

Excess nitrogen in waterbodies produces eutrophication (excessive and premature aging), which causes plant life in the water (algae and invasive plants and weeds) to increase so much so that animals in the water die due to a lack of oxygen. Today, many of the bays and estuaries on Cape Cod do not comply with state water quality standards for nitrogen based on the waterbodies’ use. 

Until now there were no state regulatory requirements to reduce nitrogen from septic systems except near drinking water wells. Title 5 regulations long ago set certain limitations on the amount of nitrogen that a Title 5 system can discharge in those areas. Specifically, Title 5 designated Nitrogen Sensitive Areas to protect drinking water under 310 CMR 15.214 and 15.215.  

The recent revisions to Title 5 do not change those existing drinking water protections. They will, however, regulate a new type of Nitrogen Sensitive Area, summarized below. The amended regulations are intended to reduce nitrogen loads that impact coastal waters. 

Nitrogen Sensitive Areas

The new regulations amend the existing Title 5 regulations to reduce nitrogen from Title 5 systems in newly designated “Nitrogen Sensitive Areas” unless the community is exempt from that requirement because it files a Notice of Intent (to secure a Watershed Permit), an application for a Watershed Permit, or a De Minimis Nitrogen Load Exemption.

Automatically designated as Nitrogen Sensitive Areas are 30 watersheds on Cape Cod with nitrogen levels above those listed in the MassDEP water quality standards as areas where the discharge of nitrogen through septic systems would be detrimental to the environment or public health. Here is an online tool which MassDEP has created to find out which areas are so designated as of July 7, 2023:

https://masseoeea.maps.arcgis.com/apps/webappviewer/index.html?id=96035fe034044e2596b49168b0e35d8e 

Watersheds which are designated in the future as Nitrogen Sensitive Areas will be subject to the same Title 5 requirements after the initial community application period expires.

A Watershed Permit when issued will be valid for 20 years. It will establish performance standards, authorized activities, and a management framework to achieve nutrient load reductions that are necessary to meet specific water and habitat quality goals in order to comply with water quality standards set for the waterbody. Obtaining a Watershed Permit will exempt a watershed from a mandatory Title 5 five-year upgrade of septic systems and allow the community to take different and more flexible approaches to address nitrogen concerns. 

On the other hand, rather than a Notice of Intent or Watershed Permit, communities may apply for a De Minimis Nitrogen Load Exemption if they meet the eligibility requirements set forth in 314 CMR 21.12.

Septic System Upgrades

Septic system owners within Nitrogen Sensitive Areas already designated in these regulations will need to add nitrogen removal to their Title 5 systems within seven years from when these regulations took effect.  

This bears repeating. The upgrade requirement starts in two years, and owners have five years from then to upgrade their septic systems (a total of seven years from July 7, 2023). 

For septic systems within Nitrogen Sensitive Areas which are designated in the future, the same timeline applies with the seven years beginning to run on the date of designation.

Conclusion

Now is the time for homeowners, businesses, industry, developers, builders, engineers, consultants, lenders, investors, brokers, real estate attorneys, and public and private facilities on septic systems to get acquainted with these new regulations. Learn whether your local government intends to submit a Notice of Intent, file an application for a Watershed Permit, or seek a De Minimis Nitrogen Load Exemption. These are the three municipal options to suspend the septic system upgrade deadlines.

Rather than wait to find out what the towns will do, where your properties are located, or whether your properties become located within a later-designated Nitrogen Sensitive Area, you could plan for and make arrangements to upgrade, replace or install the nitrogen-treatment type of systems that are required under the amended Title 5. Or you could learn about and maybe facilitate connections to available or planned public or private sewerage systems (POTW). 

It is better to anticipate environmental requirements this way and plan ahead for the physical, financial, engineering and construction impacts. This is especially so if you wish your properties to remain productive, enhance their values, stay out of trouble, be marketable, and avoid the extra costs and hassles of trying to comply in a rush.

Visit the MassDEP website for more information at:

https://www.mass.gov/regulations/310-CMR-15000-septic-systems-title-5

https://www.mass.gov/regulations/314-CMR-2100-watershed-permit-regulations

Community Septic Management Loan Program:

https://www.mass.gov/guides/the-community-septic-management-program

An associate at the Boston firm of McGregor Legere & Stevens PC, Caroline Smith a member of REBA’s Environmental and Alternative Energy Law Section as well as its New Lawyers’ Section and Women’s Networking Group.  Her email address is csmith@mcgregorlaw.com.

Appeals Court Protects Great Ponds

Michael J. O’Neill, Esq.

For anyone contemplating using a right-of-way to reach a Great Pond in Massachusetts, two must-read Appeals Court decisions are Kubic v. Audette, 98 Mass. 289 (2020) (Kubic I) and Kubic v. Audette, 102

Mass. App. Ct. 228 (2023) (Kubic II). They explain the principle of ownership of accreted land bordering a Great Pond, the rights and limits of access to a Great Pond, the tests for overburdening of an easement, and the proper interpretation of easements. The result is respect for but reasonable limits on use of an easement to reach a Great Pond, reflecting both the intent of the parties in creating the original easement, as well as the traditional limits on uses of a Great Pond itself. Recall that a Great Pond is defined as a natural pond the area of which is twenty acres or more. G.L. c. 131, § 1.

Plaintiffs Vince Kubic and Paul Kubic own adjacent lots separated by a 50-foot wide unpaved right of way that extends from the street to Webster Lake, which is a Great Pond.  This is the lake with the Native American name that is reputed to be the longest: Lake Chaubunagungamaug.  Audette is the owner of an inland lot which has a deeded right of access over the right of way to get to the Lake.  Audette also purchased a release deed of the right of way from a purported heir of the original developer of the subdivision of which the properties are a part and thereafter claimed that he owned the fee in the right of way. Conflict arose when Audette began using the right of way more intensely than other easement holders historically had done.

Audette represented to the Massachusetts Department of Environmental Protection (MassDEP) that he owned the land at the end of the right of way and obtained a waterways license pursuant to G.L. c. 91, the Massachusetts Tidelands and Waterways Act.  He constructed a trident-shaped dock at the end of the right of way, thirty-five feet wide and protruding fifty feet into the lake.  He docked his boat there, which comfortably held fifteen people.  He used the right of way regularly, as much as every day during the summer.  He has a large family, who had an open invitation and were regular guests.  He graded the right of way and installed pavers to facilitate motor vehicle access. The Kubics brought an action in Land Court to quiet title in the right of way and to establish the parties’ rights to use it.  The Land Court ruled in favor of the Kubics on some of the issues and in Audette’s favor on others, but declined to rule on some issues.

The record established that, at least for a period of time that included 1948, the shoreline was submerged.  Under the legal principles governing accretion and reliction of the ocean and certain water bodies, this raised some question whether the Commonwealth might make some claim of ownership if and when it reemerged. There are many cases about who owns “new land” when it appears, or loses “their land” when it goes under water, but here the Commonwealth disavowed such a claim. The state took the position that the reemerged land would belong to the littoral owners.  This is consistent with the general rule that the waterside boundaries of littoral property generally follow the changing waterline. 

There are exceptions to this general rule that lot lines move with the water lines.  An owner cannot artificially add to his land and then claim the benefit of the addition.    In such disputes, the history (or lack thereof) of the filling, dredging or grading of such a shoreline becomes relevant or even determinative. These disputes often arise in coastal areas, where lands are affected by tidal action and by storms, so the landforms are dynamic, but also in lakes, ponds, rivers and streams where alterations may be natural or man-made.

The Appeals Court used the term “littoral,” not “riparian.” It is useful to consider the natural processes which are at work and the resulting movement of the ownership line. According to Black’s Law Dictionary, “littoral rights” are rights concerning properties abutting an ocean, sea, or lake rather than a river or stream (riparian). The accretion and reliction principles vis a vis the line of ownership, however, appear to apply equally, with variations possible from the general rule. Specifically, the decision in Kubic I stated in footnote 6: “As a general rule, a littoral owner is entitled to newly emergent land whether that land emerged as a result of accretion (the gradual buildup of material next to the existing land) or reliction (the gradual receding of the waters), while such an owner loses title to the land lost to the water through erosion.”

In the case of East Boston Co. v. Commonwealth (1909), dealing with tidal flats, the SJC had held: “Upon the doctrines applying to accretion and erosion and to the elevation and subsidence of land affecting the water line along the shore of the sea under conditions like these, the line of ownership follows the changing water line.” We observe that this rule would seem to apply to deeds and other real estate instruments describing the property as extending to, by or along “the shore,” “the water,” “the lake,” “the pond,” “the bay,” “the river,” “the ocean,” ”the sea,” and the like. This rule would not apply, it seems, if the deeds instead go along a described line or to a point, in modern times a metes and bounds, or perhaps by operation of the derelict fee statute to the midpoint of a way or water. In the latter situations, the property in question consists of specific size, dimensions and lot lines which are fixed and not flexible. 

The Appeals Court held in Kubic I that the Kubics owned the fee in the right of way down to the waterline, and the easement holders were given the right to use the right of way to gain access to the Lake, which, once there, they could use for fishing, swimming, boating, and other uses that are reserved for the public in Great Ponds.   The Appeals Court further held that it was within the Land Court’s authority to conclude that the use of motor vehicles on the right of way was reasonably necessary to full enjoyment of the access rights that the easement provided, but that this does not mean that Audette had the right to park motor vehicles on the right of way.   Rather, Audette only had the right to temporary parking on the right of way to offload people or items.   Also, Audette could not occupy the right of way by hosting social events and placement of a picnic table in it, interfering with the right of the Kubics and others to gain access to the Lake.

Kubic I, as a result, vacated the Land Court Judgment insofar as it stated that Audette and his household members have a right to park in the right of way, modified it to prohibit Audette’s actions in the shoreline area that constitute occupation of that area, and remanded the case to the Land Court to address the extent to which Audette’s use of the dock unreasonably interferes with the rights of the Kubics and people other than Audette who hold easement rights in the right of way. That remand, which came back up to the Appeals Court, resulted in Kubic II.

Kubic II framed the issue to be whether the Audette’s use of the right of way constituted an overburdening of the easement, which it defined as “use for a purpose different from that intended in the creation of the easement.”  The Appeals Court then instructs how overburdening is shown by attending to changes in the “manner, frequency, or intensity of the use.”   

Kubic II includes directions as to how the reviewing court is to determine the scope of the easement.  “We construe the scope of an easement from the parties’ intent, which we ascertain from the relevant instruments and the objective circumstances to which they refer.”  It continued to provide helpful, practical guidance: a “court may consider subsequent uses, not too remote in time or disconnected from deed, to discern parties’ intent in creating easement.”  It is not uncommon for an easement to be created merely by a brief, one- or two-sentence statement in a deed.  It is helpful that the Appeals Court in this case recognizes that evidence of the interpretation that the parties themselves gave to the easement at the time, which may be considered by the Court to assist in the determination of the intent of the parties.

The Land Court on remand did not reach the question whether the placement of the dock interfered with the use of the right of way by the Kubics and others. Rather, it determined that the intended uses of the right of way were limited to the “transient uses traditionally associated with public access to tidal waters, navigable streams, and great ponds,” such as fishing, swimming, boating, and other uses that are reserved for the public in Great Ponds.  It ruled that Audette could use the right of way for temporary parking and placement of items (for no more than fifteen minutes) to serve such purposes.  The Appeals Court affirmed that limitation in Kubic II.

Audette had argued that because the right of way was unquestionably intended to provide easement holders access to the lake for boating, it follows that it must also provide him access for a dock.  The Appeals Court rejected this argument, stating that the fact that he has a general right of way does not mean that he may exercise it in any manner he sees fit. 

Audette then argued in the Appeals Court for the first time that MassDEP’s grant of a waterways license under Chapter 91 to construct and maintain the dock necessarily implied that he has a property right to use the right of way to gain access to it.  The Appeals Court ruled that this “argument of last resort” not only was waived, but also was meritless.  “Licenses granted under c. 91 do not create property rights, nor do they authorize interference with the property rights of others.”    In footnote 5 of Kubic II, the Appeals Court stated outright that Audette’s standing and chapter 91 claims were frivolous.

Kubic I and Kubic II, taken together, strongly stand for the proposition that the holder of a right of way cannot interfere with rights of way held by others.  They reinforce the principle that a right of way is a lesser interest than ownership of the fee interest, and when the owner of a right of way uses it as if he owns the fee, he is likely to get their wings clipped.  And these cases protect Great Ponds by recognizing the uses of the easement to the water are limited by the proper uses of a Great Pond, in which the Commonwealth has an interest in protecting and managing for the benefit of the public.

Editor’s Note:  Nick Shapiro, Co-chair of the REBA Land Use and Zoning Section represented the successful plaintiffs in Kubic I and Kubic II.

Mike O’Neill is a Senior Associate of McGregor Legere & Stevens, PC. He has more than thirty-five years of experience in a wide range of litigation in all courts and in real estate and commercial law, concentrating in environmental and land use law and litigation as well as real estate and commercial law and litigation.  Mike’s email address ismoneill@mcgregorlaw.com.

21-Day Timing Provisions in the Wetlands Act Are Obligatory and Pre-Empt Local Wetland Bylaws

Gregor I. McGregor, Esq.

Local wetlands bylaw (or ordinance) jurisdiction over projects in and near resource areas depends on Conservation Commission

compliance with the 21-day deadlines for commencing public hearings and issuing decisions on Notices of Intent (NOI). Indeed, you may safely regard those timing provisions in the state Wetlands Protection Act (the Act) as binding on the Commission, with failure to meet them potentially fatal to any decision the Commission may render. 

Recall that a Commission loses its “Home Rule” wetland bylaw control (with the result that the applicant has no need for the local permit) if it fails to issue its denial, permit or other decision by the deadline of 21 days from the close of the public hearing and the applicant appeals this inaction to the Massachusetts Department of Environmental Protection (MassDEP) under the Act. This is by virtue of the Supreme Judicial Court’s 2007 decision in the Oyster Creek case. 

Now, by virtue of the Massachusetts Appeals Court’s decision in the 2022 Boston Clear Water case, the Commission loses its control, and the applicant does not need the local wetlands permit, if the Commission fails to convene the public hearing by the deadline of 21 days from the NOI being filed and the applicant appeals to MassDEP under the state Act. This is no matter what is the eventual result of any Commission hearing.

These two seminal cases, important in wetlands protection jurisprudence, are cited as Oyster Creek Preservation, Inc. v. Conservation Comm’n of Harwich, 449 Mass. 859, 866 (2007) and Boston Clear Water Company, LLC v. Town of Lynnfield, No. 21-P-166, 100 Mass. App. Ct. 657 (Mar. 23, 2022). 

The upshot of either untimely default by the Conservation Commission is that the project is no longer subject to the municipal bylaw and, in most situations where this comes up, the only wetlands permit needed for an applicant’s project is the Order of Conditions from the MassDEP on appeal under the state Act. 

These legal results are so clear from these two court cases that litigation between the applicant and city or town should not be needed in the typical situation to recognize the loss of Commission jurisdiction when it misses a deadline. A missed date to start the hearing or to issue the decision after the hearing is simply a matter of fact. 

Likewise, an appeal to MassDEP should not be needed in the occasional situations when the project is pending only under the bylaw or when the Commission has already approved (or agrees to approve) the project under the Act. A Superseding approval from the state is not necessary. Consult your counsel for tactical advice in these and other variations.

The results in Oyster Creek and Boston Clear Water came from applying the doctrine of preemption of municipal regulatory authority by the superseding authority of the Commonwealth, based on the intent of the 21-day time frames in the state Act. Home Rule authority of cities and towns, while regarded as very broad and deep in Massachusetts, is nonetheless subject to state preemption in certain circumstances. 

One such circumstance is when the Legislature has made specific provision for a procedure with which a city or town may not conflict.  The 21-day periods specified in the state Act for convening the hearing and issuing the decision, as interpreted in these two court decisions, are such specific provisions and thus critical timelines to meet for the municipality to be able to exercise its Home Rule wetlands power.

At issue in the Boston Clear Water case was whether the Lynnfield Commission’s failure to conduct a hearing within 21 days of receiving the Notice of Intent, pursuant to G. L. c. 131, § 40, and its town wetlands protection bylaw, caused it to lose its authority over the proposed project and as a result forfeit the right to apply and enforce its bylaw.

While under Home Rule principles enunciated in earlier decisions about the state Act and local bylaws, the general rule is that if provisions of a local wetland bylaw are more stringent than the Act, those provisions will apply, that freedom does not apply to the statutory time frames for opening hearings and issuing decisions. 

In other words, the Lynnfield Commission’s failure to commence its public hearing within 21 days was not discretionary, it could not unilaterally reschedule the date for later, and so the Commission lost its jurisdiction to MassDEP when the applicant appealed to the state agency. 

You may regard this as a legal forfeiture of the right which the municipality otherwise has to regulate work and activities under the Bylaw with its local requirements.  Consequently, MassDEP’s Superseding Order of Conditions controls. 

The Appeals Court described in detail the procedural setup under the Act and Lynnfield bylaw, both of which contain the 21-day period, saying:

Notably, the failure to conduct a timely hearing and the failure to issue a timely decision following a hearing result in the same consequence under the same provision of the act--in both instances, the act authorizes the applicant to request an order of conditions from the DEP. See G.L. c.131, §40.  In Oyster Creek, 449 Mass. 866, the court made explicit that “the timing provisions in the act are obligatory, and a local community is not free to expand or ignore them,” even where a conservation commission is seeking to enforce provisions of a local bylaw that are more protective than the act.

The Appeals Court saw the Supreme Judicial Court’s ruling in Oyster Creek as binding precedent as to the beginning of the public hearing, concluding: 

As a result, we are constrained under Oyster Creek to conclude that, by failing to conduct a hearing within the act's twenty-one-day mandatory time period, the commission lost the authority to regulate BCWC's project under the town bylaw. The DEP's superseding order of conditions approving the project thus controls.

It bears emphasizing what the Appeals Court found most significant in the Oyster Creek decision where that SJC observed that the Act’s "timing provisions" --in the plural--are "obligatory

The facts of the Boston Clear Water case were mostly uncontested. The applicant, owner of a public water supply, filed an NOI to construct improvements to an existing enclosed spring house that protects the spring. 

The Commission was unable to convene a quorum within 21 days, did not obtain from the applicant a waiver of the deadline, and commenced the hearing late. Even though the applicant did not participate and made clear its position that it did not need Commission approval, the Commission held several hearing sessions without the applicant and denied the OOC for lack of participation or lack of information. 

The applicant already had appealed to MassDEP the Commission’s failure to open the hearing in timely fashion, as per the Act and MassDEP Regulations, and MassDEP had issued a Superseding OOC approving the project. The court case arose because the applicant sued the Commission seeking a ruling to confirm the invalidity of its late hearing and decision. 

The Commission won in the Superior Court, but the Appeals Court overturned that short-lived victory, for the essential reason that the “timing provisions” in the Act are “obligatory,” under the Act an applicant may appeal noncompliance to the MassDEP, and the resulting Superseding OOC will govern. 

These Oyster Creek and Boston Clear Water holdings, both of which dealt with Commission disapprovals of proposed projects (either after the time for commencing the public hearing or after the time for issuing a decision), which unhappy applicants challenged, will apply as well to approvals, denials or other decisions that are late. Therefore, these cases warrant renewed close attention to the Commission’s timing of all its hearings, meetings, and decisions. 

Commissions, their staff, the applicants, their consultants, and any legal counsel involved should be sure to attend to these 21-day time periods, even though at times that can be challenging, inconvenient, difficult, and even impossible.

Fortunately, there is available the common practice, usually by mutual courtesy, where the applicant and Commission arrange to time the NOI filing to fit the Commission hearing schedule, agree to leave the hearing open (continuing it to dates certain) until all the relevant information is received for the administrative record, plan carefully the Commission meeting(s) for deliberations after the hearing has closed so as to not run out of time, manage efficiently the drafting and circulation of the OOC or other decision for vote, signature and issuance, leave time for the necessary hand delivery or US Postal Service mailing, or, if time is about to expire, secure the applicant’s written waiver of the legal deadline. We recommend it be in writing for a clear record to avoid any doubt or dispute. 

When the applicant’s consent to variation of a 21-day period is not possible, however, the Commission should attend to its obligations by some other means or risk losing its regulatory power over the project. 

We alert the reader that Oyster Creek and Boston Clear Water likely may be regarded as governing one other type of Commission action that is subject to the same 21-day deadline in the Act. The Commission must act on a Request for Determination of Applicability within 21 days of it being filed.  This does not involve convening and conducting a public hearing under the Act, as you know, just a meeting of the Commission. Because there is no hearing, this administrative task is easier to schedule. If needed, the Commission deal with it in an emergency meeting if the regular schedule does not allow.

Here is the phrasing in the Act which we think comprises the “timing provisions” the courts are referring to in making these preemption rulings: 

“If a conservation commission has failed to hold a hearing within the twenty-one day period as required, or if a commission, after holding such a hearing has failed within twenty-one days therefrom to issue an order, or if a commission, upon a written request by any person to determine whether this section is applicable to any work, fails within twenty-one days to make said determination….”

We advise that Oyster Creek and Boston Clear Water appear to govern RDAs because the 21-day deadline for the Determination of Applicability appears in the same text as the deadline for the hearing to commence and the decision to be issued which, if unmet, triggers a right to appeal the inaction to MassDEP for a superseding decision. 

We leave to another day the impact of these decisions, if any, on the other 21-day deadline in the Act, which is not appealable to MassDEP, for the Commission to act on a Request for a Certificate of Compliance. MassDEP does not entertain appeals from COC decisions. The remedy is likely an appeal to court for a writ of mandamus to compel this action by the Commission.

A founder and current co-chair of REBA’s Environmental Law Section, Greg McGregor is also the founder of the Boston-based environmental law firm, McGregor & Legere, PC, which handles environmental, land use, and real estate matters, plus related litigation. He is also a founding member of the Environmental Law Network, an alliance of specialty law firms in the United States and abroad, sharing expertise and experience for the benefit of their clients. Greg can be contacted by email at gimcg@mcgregorlaw.com.

Beyond Maui: Groundwater Guidance Still Needed

 Kenneth Reich and Stephen Reich 

In Hawaii Wildlife Fund v. County of Maui, the U.S. District Court for the District of Hawaii held on July 15 that the county of Maui's

daily discharges of millions of gallons of wastewater into groundwater wells half a mile from the Pacific Ocean were the functional equivalent of direct discharges to the ocean, thus requiring a Clean Water Act permit.[1] This is the first reported decision applying the U.S. Supreme Court's 2020 decision in County of Maui v. Hawaii Wildlife Fund.[2]

 

The Maui decision closed a loophole in the Clean Water Act, and provided useful guidance on the issue of whether to require permits for discharges to waters of the United States from groundwater. However, the standard remains muddy, and the U.S. Environmental Protection Agency or Congress needs to act to provide more clarity — through guidance, a general permit, regulation or amendment of the CWA.

 

Beyond the Maui decision, due to the significant political and economic impacts riding on the overall definition of "waters of the United States," this issue has spawned and will continue to spawn significant litigation and regulatory ping-pong, unless the opposing interests can arrive at a consensus on a congressional or regulatory fix — which is not likely to happen any time soon.

 

In Maui, the Supreme Court held that certain discharges of pollutants to groundwater that are the functional equivalent of a direct discharge to waters of the United States must obtain a CWA permit. The court ruled that this was a question of fact, based on such factors as the proximity of the discharge to the surface waters, and the time it took for the discharge to reach the surface waters.

Justice Stephen Breyer, who authored the 6-3 opinion, acknowledged that this was not a bright-line test, but rather a middle ground reflective of the vagueness of the act and the need to balance the dual interests of protecting waters of the Unied States and recognizing the states' traditional jurisdiction over their lands and waters.

 

Prior to the Supreme Court's decision, the U.S. Court of Appeals for the Fourth Circuit, in Upstate Forever v. Kinder Morgan Energy Partners LP,[3] also held that a discharge of pollutants from a point source through groundwater into a water of the United States is covered by the Clean Water Act. In that case, the discharge was a leak from an underground gasoline pipeline that traveled 400-1,000 feet via the groundwater into two tributaries of the Savannah River.

 

The Maui decision was the most recent of a number of Supreme Court opinions and federal regulations attempting to define the line between waters of the United States that are subject to federal jurisdiction, and other waters that are not.

 

For example, in Rapanos v. U.S.,[4] a plurality opinion by former Justice Antonin Scalia, former Justice Anthony Kennedy's concurring opinion defined "waters of the United States" as waters that have a "significant nexus" to navigable waters, that "alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and Kenneth Reich Stephen Reich biological integrity of other covered waters understood as navigable in the traditional sense."[5]

 

In U.S. v. Riverside Bayview,[6] the high court upheld the U.S. Army Corps of Engineers regulation of wetlands adjacent to a navigable waterbody. In SWANCC v. Army Corps of Engineers,[7] however, the court held that the fact that migratory birds inhabited an isolated wetland did not, for that reason alone, qualify the wetland as a water of the United States.

In 2015, the Obama administration EPA and Army Corps of Engineers amended the CWA regulations defining waters of the United States to arguably broaden federal jurisdiction over wetlands and similar nonnavigable water bodies — although notably, the amended regulation did not include groundwater in the new definition.[8] It used Justice Kennedy's significant nexus test with respect to defining nonadjacent wetlands.

 

In 2019, the Trump administration EPA rescinded the Obama-era rule, and, in 2020, promulgated the Navigable Waters Protection Rule,[9] which, not surprisingly, limited federal jurisdiction over certain waters and applied Justice Scalia's more restrictive Rapanos test rather than Justice Kennedy's test for nonadjacent wetlands.[10] That rule is now in limbo, as the Biden administration seeks to revoke the Trump rule and restore the Obama rule.

 

Since many of the issues in defining waters of the United States are ultimately political as well as scientific, there will always be litigation over attempts by different administrations to broaden or narrow federal jurisdiction over such waters. Is a pothole in the Midwest a regulated wetland? What about intermittently flowing ditches? Each of these regulatory definitions have tremendous economic impact.

 

However, the issue of whether a discharge via groundwater to a navigable water is covered by the CWA permitting requirements should be simpler to define, at least in theory. We start with the CWA itself, which Justice Breyer observed was not intended to regulate discharges to groundwater, an arena left primarily to the states.[11]

 

The thrust of the Supreme Court's Maui decision, and the district court's application of that decision, is rather straightforward: In the case of discharges to groundwater that are proximate to and flow directly to a water of the United States, these should be viewed as an attempt to bypass (literally) the federal CWA point source discharge permitting system and should be covered.

 

In Maui, the county apparently made a choice not to apply for a CWA discharge permit — in order to avoid the expense and complexity of building a pipe from its wastewater treatment plant to the ocean, and instituting the pretreatment that would have been required under the permit.

 

The problem is in applying the Maui standard in practice. For example, in discussing the factor of the travel distance from the initial discharge to groundwater to the ultimate discharge point to a water of the United States, Justice Breyer posited a range from clearly jurisdictional to likely non-jurisdictional discharges, spanning a few feet of travel to 50 miles.[12] These examples are not terribly helpful to the regulated community — or the regulators.

 

In the recent district court decision, the judge developed a complete and arguably bulletproof record, showing:

 

• The volume of wastewater discharged into groundwater wells — millions of gallons;

 

• The amount detected directly discharging to the ocean through dye testing and other means — thousands of gallons;

 

• The distance the contaminants traveled in groundwater — half a mile;

 

• The time of travel — 84 days to greater than a year; and

 

• The fact that the contaminants had not changed substantially in their travel through groundwater.

 

In cases where such a record must be developed, and the initial discharge point is between half a mile and 50 miles, this will require significant effort, although it is certainly doable through testing and expert opinions. This is not much different than practices with regard to other environmental permitting issues, e.g., determining whether a wet area is a wetland as defined in the regulations, or whether a proposed air emission is likely to exceed certain limits beyond the fence line of a factory.

 

However, to avoid complex and expensive permitting proceedings in most cases, and to mitigate the muddiness of Justice Breyer's opinion in Maui for the benefit of the regulated community, the regulators and the public, the EPA should provide immediate guidance on this issue, or issue a general permit, rather than proceeding through individual permitting in all cases or awaiting slow development through caselaw.[13]

 

Alternatively, the EPA could amend the waters of the United States regulations to provide a clearer definition of when discharges to groundwater require a CWA permit. But given the litigious history of the waters of the United States program, a final regulation may be a long way off. The same goes for an amendment to the CWA, which is not realistic at this date, given the current makeup of the Congress.

 

Note that under the Safe Drinking Water Act and its underground injection control program, the EPA or delegated states are authorized to issue permits for underground injections of wastewater, so long as they do not threaten a drinking water aquifer. Whether such programs are applicable to the type of discharges addressed in Maui is beyond the scope of this article.[14]

 

Conclusion

 

Maui closed a loophole in the CWA, and provided useful guidance on the issue of whether to require permits for discharges to waters of the United States from groundwater. But the devil will always be in the details, unless the EPA or Congress act to provide more clarity.

 

As to defining waters of the United States in general, due to the significant political and economic impacts riding on such a definition, affecting such diverse stakeholders as farmers, ranchers, real estate developers, industry, environmentalists, and states and municipalities, this definitional issue has spawned — and will continue to spawn — significant litigation and regulatory ping-pong, unless the different interested parties are able to agree on some sensible and clear regulatory standards, or Congress amends the CWA to provide clear definitions.

 

Realistically, that may be too much to expect at this time. So, we may have to continue to muddle through the muddied waters of a post-Maui regulatory environment.

 

Kenneth A. Reich is the principal and Stephen Reich is of counsel at Kenneth Reich Law LLC.

 

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

 

This article originally post at:

https://www.law360.com/articles/1408279/beyond-maui-groundwater-guidance-still-needed on August 11, 2021.

 

[1] Hawaii Wildlife Fund v. County of Maui, CIVIL NO. 12-00198 SOM/KJM (D. Haw. July 15, 2021).

 

[2] County of Maui v. Hawaii Wildlife Fund, 140 S.Ct. 1462 (2020) (affirming the Ninth Circuit's decision that the county of Maui required a CWA permit for its discharges).

 

[3] Upstate Forever et al. v. Kinder Morgan Energy Partners LP, 887 F. 3rd 637 (4th Cir. 2018).

 

[4] Rapanos v. U.S., 547 U. S. 715 (2006).

 

[5] Rapanos, 547 U.S. 715, 759.

 

[6] 474 U.S. 121 (1985).

 

[7] SWANCC v. Army Corps, 531 U.S. 159 (2001).

 

[8] 80 Fed.Reg. 37,053 (June 29, 2015).

 

[9] 85 Fed. Reg. 22,250 (April 21, 2020).

 

[10] Justice Scalia required proof of a direct surface connection between the subject water and a navigable water. Rapanos, 574 U.S. 715, 742. Further, "[T]he phrase ['waters of the United States'] does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall." Id. at 739.

 

[11] County of Maui, 140 S. Ct. 1462, 1472.

 

[12] Id. at 1476.

 

[13] See the discussion of EPA guidance in a recent article by Juan Carlos Rodriquez in Law360. https://www.epa.gov/uic/primary-enforcement-authority-underground-injection- control-program.

 

[14] 42 U.S.C. 300f et seq. According to EPA's website as of July 28, 2021, 33 states and three territories have received approval from the EPA to run this program. https://www.epa.gov/uic/primary-enforcement-authority-underground-injection-control-program.

Unpublished Appeals Court 2020 Decisions Involving Municipal Conservation Commissions

Gregor I. McGregor

Three selected 2020 summary decisions of the Massachusetts Appeals Court illustrate, in brief and crisp opinions, the types of

situations heard by Conservation Commissions, thorny issues the disputes can present, arguments presented by the opposing parties, court review of a tribunal’s decision, and…  how a well-maintained document record, well-run deliberation, with a well-written decision can win the day, even if years after, in litigation in the nature of certiorari.

A summary decision pursuant to the Appeals Court rules, as these three are, is labelled an unpublished disposition or opinion, may be cited for its persuasive value but, because of the limitations to it, not as binding precedent. It is a decision of the panel of judges who heard the case, limited to the facts stated, and not an opinion of the full Appeals Court. Therefore, it is educational and useful, but not legal precedent in other similar or even identical situations.

Zani v. Town of Ashland, 98 Mass.App.Ct. 1108 (August 10, 2020) Unpublished Disposition

In 2018, the parties entered into settlement negotiations, over an order of conditions, required restoration, and a large money penalty, which were memorialized in a series of e-mail messages. Zani was represented at the time by an attorney. Town counsel sent him an e-mail offering to reduce the fines to $300 as long as the plaintiff agreed to comply with the order of conditions. Zani’s attorney agreed in court, but Zani later said he did not, and anyway the settlement was never finalized.

The Appeals Court addressed whether the many emails constituted an enforceable settlement. Under the law set in early cases, “An enforceable agreement requires (1) terms sufficiently complete and definite, and (2) a present intent of the parties at the time of formation to be bound by those terms.” The first is a legal question, the second a factual issue. “Sufficient completeness depends upon the substance of the terms approved by the parties”. If an absent term was a subsidiary matter (here whether the deal turned on there being a successful meeting with the Commission about the work to be done) that did not alter the essential nature of the bargain, then there was a contract that could be enforced.

On this the Appeals Court said, “We conclude that the parties’ e-mail messages evidenced a sufficiently complete and definite agreement to settle the plaintiff’s claims. As reflected in the messages, the parties agreed that the plaintiff would dismiss his claims and comply with the order of conditions in return for the town’s reducing the $50,000 fine to $300.” Thus, the emails contained all essential terms, they did not include having a Commission meeting, and therefore the agreement was final.

On the point of Zani’s intent to be bound by those terms, the Appeals Court stated: “For similar reasons we are unpersuaded by the plaintiff’s argument that he did not intend to be bound by the settlement agreement. Although the agreement was not formally executed, “[i]f ... the parties have agreed upon all material terms, it may be inferred that the purpose of a final document which the parties agree to execute is to serve as a polished memorandum of an already binding contract.” Thus, it did not matter the deal was not reduced to a single written document signed by the parties, or that it was not submitted to the judge below. 

Won v. Creighton and Cohasset Conservation Commission, 98 Mass.App.Ct. 1107 Unpublished Disposition (August 6, 2020)

Plaintiff Won filed a certiorari complaint against the Commission seeking a declaration that the failure to issue its denial on Won’s storm water permit application, under a storm water bylaw the Commission administers with the wetland bylaw, within 21 days after the “close of the public hearing” resulted in a constructive grant of the application, that is the permit would be deemed granted. 

One Superior Court judge ruled that it was deemed granted, a second judge ruled that it was not, and the Appeals Court sidestepped the issue by ruling that Won effectively had abandoned the claim by requesting a new hearing on the application after the 21-day period had expired and then withdrew the application after the Commission indicated it had additional concerns. 

Thus, it remains to be decided in future case if, under the Cohasset storm water permit bylaw, a lapse of 21 days after the close of the hearing, constitutes a grant of the permit. In contrast, you know, inaction after 21 days under a wetlands bylaw results in loss of local-bylaw jurisdiction over the project, and the eventual Superseding Order of Conditions issued by MassDEP governs the project. 

Rochester Bituminous Products, Inc. v. Rochester Conservation Commission and Edgewood Development Corporation, LLC, 98 Mass.App.Ct. 1118 Unpublished Disposition (November 12, 2020)

Rochester Bituminous challenged a three-year extension given to Edgewood Development seven years after an older order of conditions allowing Edgewood’s asphalt plant, which had been the subject of a lengthy court appeal and also had been extended four years by the Permit Extension Act. 

The grounds alleged were that the extension was unsupported by substantial evidence because it was not based on a new wetland delineation, and it is “possible” that the wetlands had changed over the years.  You already know that extension decisions are not appealable to MassDEP, rather to Superior Court in a certiorari action. 

The regulations governing extensions of such orders, however, allow for multiple extensions for periods of up to three years each. Furthermore, the MassDEP regulations set forth criteria for denying an extension request.

Essentially the Commission (or MassDEP) may deny a request for an extension and require the filing of a new notice of intent (NOI) or notice of resource area delineation (jurisdictional ruling) in specific circumstances. Three of them apply here: where no work has begun on the project, except where such failure is due to an unavoidable delay, such as appeals, in the obtaining of other necessary permits; where new information, not available at the time has become available and indicates that the Order is not adequate to protect the interests identified in the Act; or where a resource area delineation or resource area delineation certification is no longer accurate. 

The Appeals Court upheld the Commission and the Superior Court, saying: “The substantial evidence shows that none of the articulated reasons to deny an extension was present. To the contrary, the record reveals…that the commission took reasonable steps to satisfy itself that the delineation remained accurate. Edgewood’s environmental scientist’s explanation that the wetlands at issue are highly maintained, man-made wetlands with steeply defined perimeters supports the inference that expansion of the wetlands was unlikely. Rather than rely on inference alone, however, the commission reviewed aerial photographs, conducted a site visit, questioned Edgewood’s environmental scientist, and sought the opinion of the town’s conservation agent.”

The Appeals Court noted, “In addition, no authority supports the plaintiffs’ contention that because the composition of the commission has changed, the commission should reconsider the order anew.”

Thus, the Commission won, having reviewed the facts in a record, applied the right criteria, articulated its reasons in its decision granting the extension. 

A founder and current co-chair of REBA’s Environmental Law Section, Greg McGregor is also the founder of the Boston-based environmental law firm, McGregor & Legere, PC, which handles environmental, land use, and real estate matters, plus related litigation. He is also a founding member of the Environmental Law Network, an alliance of specialty law firms in the United States and abroad, sharing expertise and experience for the benefit of their clients.   Greg can be contacted by email at gimcg@mcgregorlaw.com.