Appeals court weighs challenge by public water suppliers to DEP conservation regulations

The Massachusetts Appeals Court heard extended argument in a multi‑party administrative appeal brought by public water suppliers and an industry association challenging amended Massachusetts Department of Environmental Protection (DEP) conservation regulations under the Water Management Act.

Attorney Peter Durning, arguing for 18 public water suppliers and an industry association, contended the DEP’s amended regulations effectively deny or infringe registrants’ statutory withdrawal entitlements by curtailing end‑use demand when drought conditions are declared. Durning said the regulations are not time‑limited and quoted an agency official who told a superior‑court hearing that the goal was to “keep the water in the ground,” arguing that, on its face, a regulation that prevents a registrant from delivering water to customers amounts to an infringement of the registrant’s rights under the Act.

Assistant Attorney General Louis Stunden, arguing for the DEP, said the statutory scheme distinguishes permittees and registrants and that the Water Management Act and Fairhaven precedent allow the agency to impose conservation conditions tied to drought declarations without eliminating a registrant’s right to withdraw water. Stunden told the court that registrations remain annual volume entitlements and that the regulations limit certain end uses during declared droughts but do not turn off the ‘‘proverbial spigot’’ for registrants.

Intervenor counsel Harley Rasor, representing the Charles River Watershed Association, argued the regulations fall well within DEP’s broad authority to adopt conservation measures to protect water supplies and aquatic habitats under Fairhaven. Rasor highlighted climate and drought risks and said the measures are tied to declared droughts, limited to nonessential end uses and include exceptions; he also noted registrants can store or sell water and that registrants historically have not always withdrawn their full annual entitlements.

The justices questioned whether an interpretation that treats any reduction in demand as an infringement would produce absurd results—e.g., preventing reasonable conservation measures such as leak detection and infrastructure upgrades—and asked about the statutory emergency pathway in Section 15. Appellants emphasized the legislative bargain that registrants’ withdrawal rights are grandfathered and said Section 15 (water emergencies) does not delegate to the secretary the authority the DEP now claims in the regulations.

After extensive argument from the parties and amici, the panel took the matter under advisement.