Mackie Shea Durning PC secures an important ruling on the Water Management Act

Town of Concord’s water supply at Nagog Pond.

On October 11, 2019, Judge Jennifer S.D. Roberts of the Massachusetts Land Court issued a Memorandum of Decision granting summary judgment to the Town of Concord resolving a dispute among  Littleton, Acton and Concord regarding which statutory authority governed the water withdrawal rights from Nagog Pond.

Nagog Pond has  been a source of public drinking water for Concord since it took the pond via eminent domain in 1909.  Littleton and Acton argued that a provision in an 1884 Act, which gave Concord rights to Nagog Pond, reserved withdrawal rights for the two towns where the pond is located. Concord argued its withdrawal rights were superior to any provisions of the 1884 Act, because it held a Registration under the 1985 Water Management Act, which grandfathered qualified existing water withdrawal rights.

Mackie Shea Durning PC attorneys Peter Durning, John Shea, and Gail Magenau Hire compiled an analysis of the legislative history for the Water Management Act and provided a statutory interpretation of the language of the statute to demonstrate that the Legislature intended to repeal prior special acts, like the 1884 Act, as it set up a new regulatory regime under the Water Management Act.

In her written Decision, Judge Roberts confirmed that the Water Management Act was “a comprehensive statute that was designed to address a state-wide problem – the preservation and allocation of water resources” without regard for municipal or other political boundaries.  Judge Roberts noted that in its deliberations on the scope of the Water Management Act, the Legislature was concerned with pre-existing rights created by approximately 650 prior special acts regarding water withdrawals, like the 1884 Act. Judge Roberts affirmed that the legislature “chose to address that concern by registering existing water withdrawals and continuing those registrations, upon timely renewal, ‘forever’.”  Based on the language of the two statutes, Judge Roberts concluded the “1884 Act is repugnant to and inconsistent with” the Water Management Act and that any rights granted to Littleton and Acton under the 1884 Act were extinguished.

The Land Court’s Decision to uphold Concord’s Registration to withdraw water from Nagog Pond will allow Concord’s investment in the construction of a new state-of-the-art water treatment facility to go forward without a lingering concern that Littleton and Acton might attempt to usurp Concord’s Registration which perfected and protected its withdrawal rights at Nagog Pond.

Mackie and Shea in Best Lawyers

Mackie Shea, PC, the Boston boutique law firm, is proud to announce that  Thomas A. Mackie and John F. Shea have been selected by Best Lawyers® (2020 edition) for environmental law and environmental litigation.  Tom and John each have been recognized for over ten years.

Best Lawyers® is the oldest and most respected publication in the legal profession.  Recognition is widely regarded by both clients and lawyers as a significant honor conferred on a lawyer by his or her peers.  Listing is based entirely on a transparent survey process evaluating professional abilities and the quality of legal services.

Mackie Shea, PC concentrates in environmental, land use law, and related litigation.  www.mackieshea.com

Athletic Endeavors

Not satisfied with merely competing in the court room, Tom Mackie and Peter Durning have been competing in triathlons and road races for the past several years.

Peter has done the Boston Tri for the past three years and participates in several running events during the year, including the Yankee Homecoming 10 Miler in Newburyport and the Stone Cat Trail Marathon in Willowdale State Park.

Tom and his son, Sam [pictured], have done more than just complete Tris – they are on a winning streak.   In addition to consistently high finishes in the overall standings, Sam won his age group at the 2017 Cooperstown, Lake Waramaug, Harvest and Sharon triathlons and the 2018 Polar Bear Triathlon.  Tom won his age group at the 2017 Sharon and 2018 Polar Bear and Cooperstown triathlons.

Not one to take a season off, Tom’s Wachusett Night League ski team, Haddad Auto Detail, won the 2018 Good Race!