State can limit water use, AG’s office argues
In a case that could have a major impact on water use in Massachusetts, the attorney general’s office argued before the state’s highest court yesterday that the Department of Environmental Protection can impose limits on the amount of water municipalities draw from aquifers, rivers, and lakes.
Fourteen municipalities countered that the state has no authority to impose such limits, a position affirmed by a Norfolk Superior Court judge last year.
The case, which the Supreme Judicial Court did not immediately rule on, stems from a state policy adopted in 2007 that allows the department to limit residential water use to 65 gallons a day per person for basins at risk of drought and 80 gallons a day per person for those with less risk. The policy limited the amount of “unaccounted for’’ water municipalities could claim and required they develop plans to reduce water use in the summer, when use increases.
State officials as well as environmental groups have argued that the policy is vital to ensure the state conserves water and reduces its exposure to drought.
“The question before the [Supreme Judicial Court] is vitally important for the Commonwealth,’’ Secretary of Energy and Environmental Affairs Ian Bowles said in a statement after the hearing. “We simply cannot preserve our precious water resources for human health, habitat protection, and economic growth if the state is unable to attach reasonable conservation requirements to the 80 percent of water withdrawn by municipalities by right.’’
The municipalities - Brockton, Duxbury, Fairhaven, Hamilton, Harwich, Lynn, Mashpee, Mattapoisett, Medfield, Millis, North Reading, Sandwich, Manchester-by-the-Sea, and Wellesley - argue that they should be exempt because the Massachusetts Water Management Act, a 24-year-old allocation scheme, monitors their water use.
They said they have been following those rules, registering their water use every decade, as required.
In a brief to the SJC, Gregg J. Corbo, a Boston attorney representing the municipalities, argued that the state was violating the Water Management Act.
“The department claims that it has discretion . . . to impose the challenged conditions . . . but this argument is a bridge too far,’’ he wrote. “The Legislature has specified how the department can exercise its authority and has specifically protected registered [water] rights to continue existing withdrawals. The department thus exceeded its authority.’’
In questioning Corbo and another attorney representing the municipalities, Chief Justice Margaret H. Marshall suggested that municipalities were more concerned about using all the water they had been allotted than ensuring other towns have access to water.
“They are acting as if there’s no shortage of water,’’ Marshall said of the municipalities.
The lawyers said the issue was not whether municipalities were abusing the state’s water supply but whether the department had the authority to limit their use.
David Abel can be reached at dabel@globe.com. 
