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 The issue for the Supreme Judicial Court was whether the Water Management Act implicitly repealed the 1884 special statute.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.