Massachusetts’ highest court decided a water rights case on March 11. Town of Concord v. Water Dep’t of Littleton, SJC-12947 (Mass. Mar. 11, 2021). These things don’t happen very often, so we thought to make note of it.

Concord draws water from Nagog Pond. In 1884, a special statute granted Concord the right to take that water, subject to rights of Littleton and Acton also to take water and to have priority in the event the supply was insufficient for all. However, in 1985 the Commonwealth adopted the Water Management Act, Mass. Gen. Laws ch. 21G. The Water Management Act authorized continuation of any existing withdrawals upon registration, and Concord registered. New withdrawals require a permit.

Littleton and Acton sought to exercise their right to withdraw water from Nagog Pond, and to do so with priority over Concord. The issue for the Supreme Judicial Court was whether the Water Management Act implicitly repealed the 1884 special statute.

The court drew a distinction between the right to take the water, which was not preempted, and the right to priority. The right to priority would interfere with the allocation scheme of the Water Management Act through registrations and permits. Accordingly, Littleton and Acton could not assert a right to a priority withdrawal and had to go through the permitting process. You can own it, but whether you can get it depends on your permit.

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Photo of David Mandelbaum David Mandelbaum

David G. Mandelbaum represents clients facing problems under environmental laws. He regularly represents clients in lawsuits and also has helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. A Fellow of the American College of Environmental Lawyers, David teaches Superfund, and…

David G. Mandelbaum represents clients facing problems under environmental laws. He regularly represents clients in lawsuits and also has helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. A Fellow of the American College of Environmental Lawyers, David teaches Superfund, and Oil and Gas Law in rotation at the Temple University Beasley School of Law as well as an environmental litigation course at Suffolk (Boston) Law School.

Since United States v. Atlas Minerals, the first multi-generator Superfund contribution case to go to trial in 1993, Mr. Mandelbaum has been engaged in matters involving allocation of costs among responsible parties, especially under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  He has tried large cases and resolved others as lead counsel.  He has written, spoken, and taught extensively on the subject.  More recently he also has been engaged to assist lead counsel from this firm and others:

  • to develop cost allocation methodologies;
  • to craft expert testimony in support of a favored methodology (given a definition of “fairness,” why one methodology better tracks it than another);
  • to develop efficient case management approaches; and to assist private allocation as part of the neutral team.

Concentrations

  • Air, water and waste regulation
  • Superfund and contamination
  • Climate change
  • Oil and gas development
  • Water rights