Massachusetts Department of Environmental Protection
Bureau of Resource Protection – Water Management Program
1 Winter St., 5th floor, Boston
Attention: WMA Regulations

Delivered Electronically

Dear Commissioner Suuberg,

On behalf of the cities and towns of the Commonwealth, the Massachusetts Municipal Association is writing to provide comments on MassDEP’s proposed regulatory changes to 310 CMR 36.00. MassDEP is proposing a new condition on registrations under the Water Management Act that would restrict nonessential outdoor water use during times of drought, when declared by the Secretary of Energy and Environmental Affairs.

The MMA has engaged extensively with our membership on this issue, and we are aware that there is a broad and diverse range of opinion on the proposed changes. Many local officials are supportive of state intervention due to their desire for communities in affected regions to respond to drought conditions in a coordinated manner and in a meaningful way to confront one of the greatest environmental challenges of our time; many have concerns and reservations due to the lack of flexibility or enforceability of a state-imposed mandate; and many are opposed to the draft due to concerns that a one-size-fits all approach will disadvantage communities that are able to manage their water supplies on their own in an environmentally sound manner. All local officials are united in their commitment to preserve and protect the natural water resources of our Commonwealth.

In the comments that follow, we attempt to capture the sum of these interests, and recommend that MassDEP allow for maximum flexibility and establish a framework that ensures true engagement with municipalities and public water suppliers at every stage of action and implementation after promulgation.

The MMA appreciates the stated rationale for the proposed regulatory changes to “ensure an appropriate balance among competing water needs and the preservation of water resources … such as streamflow, wetlands, fisheries and wildlife habitat during drought.” Water resources are a common interest held by all, with differing needs and priorities for this wide variety of uses and purposes, including, but not limited to, the provision of public water supplies. We also recognize that climate change has exacerbated weather and environmental conditions, leading to more frequent, prolonged and serious droughts, as well as more powerful and intense periods of precipitation. The MMA’s objective is to support the overarching goals of the state’s Drought Management Plan and the intentions behind this proposed regulatory change, while maintaining our position that local governments are effective stewards of their natural resources and can make reasoned decisions in support of environmental and public health.

We acknowledge that the proposed conditions are fairly limited in scope, restricting only non-essential outdoor water use during periods of regionally-declared droughts for systems that hold registrations and are not otherwise exempt. MassDEP estimates that this change will affect 63 registered public water suppliers and 87 registered golf courses, whose registrations are up for a 10-year renewal. We also recognize the value of better aligning WMA registrations with the conditions already required for WMA permit holders. Although the MMA represents municipalities as geographic and political entities with fixed boundaries, we understand and appreciate that effective water management often requires a watershed or regional approach.

From some MMA members, we have heard that state-level regulation as proposed for 310 CMR 36.00 is necessary to protect our water resources from depletion, including the opinion that the proposed changes do not go far enough in conserving water in advance of drought conditions. These members strongly believe that placing restrictions on non-essential water use is an important recognition of the varied purposes and uses of this natural resource, and does not privilege one use over another. Further, they have long-standing concerns regarding the sensitive conditions of their watershed regions, and place a premium on coordinated regional approaches to environmental stewardship.

We have also heard serious concerns from other members about the infringement of these restrictions on local control, especially for systems that are withdrawing water below their registered limits. They have expressed that the proposed regulatory change paints a broad brush and does not consider the relative quantity of water supply available to a system at any given time. Moreover, there are revenue loss concerns from limiting water usage, even for uses considered non-essential, for systems that are not at risk of exceeding their allotted withdrawal amounts. Municipalities and their local water utilities face significant financial impact if they are not able to sell water that is available to them based on their WMA registration, revenues that could be used to invest in system upgrades and efficiencies that would further conserve water supply. Again, we encourage MassDEP to apply maximum flexibility in allowing for system-specific drought management plans that account for local conditions. We note that the draft regulations appear to grant golf courses greater flexibility to account for their core business needs, yet does not consider this for public water systems.

We have also heard concerns related to local enforcement of restrictions on non-essential water use, of the challenges inherent in policing usage within one municipality while the same usage is allowed in a neighboring municipality. While a stated interest for adopting the proposed regulatory change is to “level the playing field” between communities, that is not a guaranteed outcome when MWRA communities and those served by private wells are exempt from these conditions. The MMA urges MassDEP to partner with local governments on any enforcement activities that result from promulgation of these regulations.

The MMA and our members appreciate the opportunity to engage in this complex regulatory matter, including through submission of these comments. If you have any questions or require additional information, please do not hesitate to have your office contact me or MMA Legislative Analyst Ariela Lovett at at any time.


Geoffrey C. Beckwith
MMA Executive Director & CEO