Massachusetts’s New Sustainable Water Management Initiative Disappoints | Conservation Law Foundation

Massachusetts’s New Sustainable Water Management Initiative Disappoints

Peter Shelley | @peashell47

In 2010, CLF and three other Massachusetts conservation groups walked away from water policy discussions, terminally frustrated that the talks would produce any meaningful change that would stem the increasing trend of streams being drawn dry by public and private water suppliers.  To his credit, Governor Patrick encouraged us to come back to the table with a promise that the fundamental protection for fish provided under the water supply law, the so-called “safe yield” limit, would be interpreted by the state to protect fish populations.

The Commonwealth of Massachusetts has now released the long-awaited fruits of those renewed discussions: the “Sustainable Water Management Initiative” Framework. The Commonwealth promotes this initiative, called SWMI, as a “substantial improvement” on the regulatory framework for providing for essential public water supply services while protecting the Commonwealth’s freshwater fish and other aquatic populations. But is it? What benefits does SWMI produce over current conditions? Does this effort still fall short of the Governor’s promise?

On the positive side, SWMI vaults Massachusetts into the forefront in the country in my opinion with respect to its knowledge base of its rivers and streams. The state’s partnership here with the U.S. Geological Survey has produced a set of stream and stream flow analytical tools and a streams data base that allow the state to understand the ecological impacts of various flow regimes  in a stream, very close to the gold standard.

Similarly, Massachusetts regulators and biologists are now much better informed on the risk to wildlife and river ecosystems associated with water withdrawals for water supplies. It turns out that these aquatic biological communities are much more sensitive to stream flow fluctuations than previously assumed. While this linkage might have been qualitatively suspected before, the last two years of analytical work have now unequivocally quantified that fragile connection.

Massachusetts also has demonstrated through this process that it has some remarkable and dedicated public employees who performed the work with the highest level of professional skill. The Commonwealth is in very good hands at a technical level.

Finally, this initiative will help ensure that some of the highest quality streams in the Commonwealth will be protected to a greater degree than they are today against degradation. While the additional levels of protection will depend on the regulations that are ultimately passed and the implementation of those regulations by the agency, SWMI will provide another level of protection to those near-pristine stream segments.

Where the technical side of SWMI is robust and innovative, however, the policy side of SWMI is compromised and unlikely to produce significant ecological protection in more heavily impacted stream segments or restore stream flows to rivers that are currently being drawn dry by water supply withdrawals.

The “safe yield” tool in SWMI, which the Governor Patrick assured us would include an environmental protection factor, doesn’t really protect the environment. “Safe yield” is a stream flow calculation that is meant to set a maximum amount of water that can be diverted from a water source without adversely affected native biota.

SWMI throws out this tool as a regulatory limit for all practical purposes in many rivers including, for example the Ipswich River, an important water body that water suppliers drain every year in the summer. This results from the fact that SWMI averages the safe yield calculation over the whole watershed and on an annual basis. Because this averaging includes the late winter and spring floods, it shows high levels of safe yield even when a river is going dry in August.  It just isn’t a protective approach in any sense.

SWMI and the Commonwealth rely on other tools and regulatory tactics to avoid this result by requiring water suppliers to minimize their adverse stream impacts “to the maximum extent practicable.” The policy also goes to great length to protect water allocations from the 1980’s when the water supply law was first passed. There is nothing in the law that requires this continued grandfathering of water withdrawals in situations where there is harm to streams and such an outcome is just not good enough.

Massachusetts is fortunate to have abundant natural water supplies, receiving some 44 inches on average a year–Los Angeles gets about 10-11 inches. There is no real conflict between essential water services and healthy stream flows in Massachusetts that cannot be technically solved at reasonable costs. Unfortunately, however, while the framework may drive water use down, SWMI seems to reduce rather than increase the incentives water suppliers and municipalities have to use water smarter. All CLF can do at this point is wait to see whether the Commonwealth demonstrates through its implementation of SWMI that CLF’s concerns are misplaced.

MassDEP and the Executive Office of Energy and Environmental Affairs worked hard to find a path forward that municipalities and conservationists could both embrace. And the answers, needless to say, are not easy. The politics of water supply in Massachusetts are complex and often confrontational as they are in most states. Nevertheless, we had hoped for more for the Commonwealth’s rivers and streams.

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