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Volume XI, Number 216

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Massachusetts Water Rights Act in the Supreme Judicial Court

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 The issue for the Supreme Judicial Court was whether the Water Management Act implicitly repealed the 1884 special statute.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

©2021 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume XI, Number 70
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About this Author

David G. Mandelbaum, Greenberg Traurig Law Firm, Philadelphia, Environmental Law Litigation Attorney
Shareholder

David G. Mandelbaum represents clients facing problems under the environmental laws and serves as Co-Chair of the firm's Environmental Practice. He regularly represents clients in lawsuits and has also helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. David teaches Superfund, and Oil and Gas Law in rotation at the Temple Law School. He has taught Environmental Law, Climate Change and Land Use Law and Administration in the past, and he is a regular writer and speaker on the subjects.

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215-988-7813
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