Waiting to pick up our coffee orders, a neighbor and a veteran of 30 seasons as a little league coach groused that his perennial champs had no practices in April due to the heavy rains, making the fields soggy and unsafe. Knowing my expertise as an environmental lawyer, he asked me if it was due to climate change, or is that “fake” science as POTUS claims, or is it real and the denial is one of his many lies. I assured him that climate change is real and was recently supported in the March 4, 2019 United Nations 6th Global Environmental Outlook Report. I told him to expect more rain in May and extreme weather conditions like the severe drought we experienced in 2016, and suggested the baseball season be scheduled for warmer months.
If I had more time, I would have educated him on the 2019 revised Drought Management Plan (“DMP”) prepared by the Massachusetts Water Resources Commission. Massachusetts is relatively water-rich with annual precipitation averaging 48 inches a year, ranging from 31 to 61 inches. There were 6.9 inches of rainfall on the baseball fields in April 2019 (the norm is 3.9). Annual precipitation in Massachusetts is expected to rise as a result of climate change and extreme precipitation events are on the rise. However, large storms do not mean significant groundwater recharge or steady stream flows. They mostly result in localized flooding and rapid stormwater flows.
Massachusetts has suffered major droughts over the years, including 2016-2017, which was characterized by a rapid decline in conditions from month to month, known as a “flash drought.” The nine year drought from 1961-1969 is the most severe on record, and communities responded with water-use restrictions and emergency supplies. I remember when Great Pond in South Weymouth turned into a mud flat, killing my favorite fishing spot.
The 2001 DMP was developed in response to a period of low precipitation from April 1999 to March 2000. It was revised and updated over time in consultation with the Drought Management Task Force (“DMTF”) and issued as a formal plan in 2013. During the 2016-17 drought, the 2013 DMP was used and lessons learned. EEA and MEMA are responsible for coordinating response efforts and communications with the public. The DMTF has 18 members from environmental agencies and organizations, public health officials and public safety officials. The DMTF provides a comprehensive assessment of drought situations based on six drought indices (precipitation, stream flow, groundwater, lakes and impoundments, fire danger and evapotranspiration), establishes four index severity levels, forecasts of rain and temperature, and updates the DMP as needed.
MassDEP has significant responsibilities through its Water Management Act (“WMA”), Drinking Water, and Wetlands programs to oversee water supplies, allocations and resource protection. MassDEP imposes water conservation measures and water use restrictions in withdrawal permits under the WMA. Each permit holder must develop a water conservation program to comply with Water Conservation Standards, and a Water Loss Control Program. In a declared water emergency, MassDEP may require a public water supplier to submit a plan with provisions for shutting off water, upgrades to WMA conservation measures, loss control plans, audits, system rehabilitation, building permit moratoria, and bans or restrictions on certain water uses (e.g., don’t water the ballfields).
The Massachusetts Water Works Association comments on the 2019 draft revisions to the DMP argue for local, systems-specific Water Resiliency or Drought Response Plans instead of mandates from the state DMP. There is no one-size-fits-all Drought Plan. Water suppliers assert that drought declarations must be based on scientific facts and not subjective judgment from non-water supply professionals. Water suppliers want the DMP to encourage the development of new sources to provide redundancy opportunities and to increase the resiliency of the water supply systems. The DMP should discuss the development of new or supplemental sources, rather than focus exclusively on conservation and restrictions.
The DMP is considered to be a living document to be updated and revised based on experiences. The DMP is a critical component in tackling climate change impacts on water supplies: more extreme weather events from storms and droughts.
Comparing Water Management in Massachusetts and Mendoza, Argentina
As an environmental lawyer with vocational zeal, every opportunity to travel and see new places triggers a fascination with environmental policy. During a recent trip to Mendoza, Argentina, issues related to water rights were front and center.
You could literally trip over the issue, because most sidewalks have irrigation ditches or “acequias” on the curbs and sidewalks to transport water throughout the region.
Though Mendoza sits on the very arid eastern leeward side of the Andes Mountains, the regional planners conceived a complex web of irrigation channels designed to bring fresh Andean snowmelt into the city, agricultural lands, and now the sprawling suburbs.
As with many of our environmental law projects, some of the most important work is performed by engineers. In 1889, the government of Mendoza recruited an Italian engineer, César Cippoletti, to improve the region’s hydrologic system. Cippoletti designed and supervised the construction of a dam to hold water from the Mendoza River and redirect the flow of the mountain run-off in the river through a series of directional canals. Just past the dam, one of the simplistic, yet elegant, structures designed by Cippoletti is a four-quadrant inverted cone. As the dammed water rises above the lip of the structure, it is channeled into one of four curved funnels. The water descends through the curved quadrants, gathering speed and direction toward different parts of the Mendocino irrigation system.
With this complex irrigation infrastructure, the arid region boasts a cornucopia of agricultural riches, including large potato, garlic, tomato, and butternut squash farms. But the true pride of Mendoza, is its burgeoning wine industry. High-quality wines provide a fantastic export crop with an accompanying economic boom for agro-tourism in Mendoza and the vineyards in the neighboring Uco Valley.
The arid conditions and well-developed irrigation systems are excellent for controlling the grapes’ exposure to water. In addition to regulating water, the daily temperature variations in the region have beneficial influences on the growth of a robust skin on the grapes. The grape skin is a primary driver of flavor and color in the wine-making process. Thus, these strong-skinned grapes of the Uco Valley provide good ingredients for bold wines, including Malbec, which is the primary driver of the region’s reputation.
For all of the ingenuity and planning for the advanced irrigation system, water is still a finite resource in the region. Overtaxing the system could lead to dramatic impacts for all users. To preserve and protect the region’s water resource, Argentina developed a comprehensive nation-wide regulatory scheme. Argentina adopted a Water Law in 1916, which is similar to Massachusetts’ Water Management Act(“WMA”). The Argentinian law grandfathered existing users through a system which is similar to WMA Registrations. Argentina’s Water Law accommodated new users with licenses that operate like permits in Massachusetts. Just as the Massachusetts Department of Environmental Protection (“MassDEP”) oversees water withdrawals from the various river basins in the Commonwealth, the water management system in Argentina is administered by the Departamento General de Irrigación (DGI). The DGI approves and regulates irrigation licenses, oversees allocations among historic surface water users, regulates temporary projects or discharges, and evaluates and authorizes proposed new users.
This legal structure in Argentina is very similar to the modern WMA in Massachusetts, which centralizes the administration of water rights in the professional staff of the MassDEP, rather than be subject to the whims of the political actors in the State Legislature. Like Argentina’s 1916 Water Law, the WMA creates tiers of rights between active users, at the time the law was adopted, and new users, who came on-line following the statutory observation period for registrations from 1981 through 1985. Different sections of the WMA – and the corresponding regulatory section of 310 CMR 36.00 – establish different requirements for registrations and permits, which are grounded in the WMA’s statutory purpose of protecting and preserving the Commonwealth’s precious water resources.
Managing Water as Demand Grows and Supply Is Strained
While agriculture, industry and residential development can flourish side-by-side when resources are abundant, there are tensions between users when scarcity occurs. Even with their well-developed infrastructure and generally plentiful mountain run-off, the Mendoza region still experiences drought and supply problems. The authorities simply cannot approve all proposed projects.
During our time in Mendoza, we observed a planned housing development in an advantageous location near a major arterial highway that stood fallow. Though the developer began designating internal roadways and had launched a marketing effort for new homes on the outskirts of the metropolitan area, the entire project was abandoned, because the water authority did not approve an extension of the canal system to provide water to this location. There are no potential alternate water sources. Thus, without access to the regional water distribution channels, the project was doomed. The development’s abandoned footprint sits like the shadow of a ghost town that never was, and serves as a stark warning of the perils of stretching a limited resource.
Water allocation in Massachusetts is not nearly as dire. Unlike Mendoza, Argentina, or even many communities in the Western United States, Massachusetts enjoys a temperate climate. Water management issues in the Commonwealth do not occur against a backdrop of desert conditions. And yet, drought conditions can occur and strain a community’s ability to keep water in the taps – for industrial, agricultural, and residential users.
Additionally, the forces of impending climate change are not linear or neatly predictable. Some models forecast the climate of Massachusetts as being very wet, but there are also predictions of more pronounced swings between periods of plentiful rain and extended periods of drought. Against this backdrop, managing our water resources in times of relative abundance may influence how successful we are in navigating periods of water scarcity.
While Massachusetts is currently experiencing an uptick in residential and industrial development, proper planning and water needs forecasting must be part of the statewide effort to ensure there are adequate resources to support public water supplies, agricultural activity, and natural ecosystems. Like Argentina’s DGI, which has authority over irrigation licenses and can preserve resources for existing uses and ensure the system is not overtaxed, MassDEP has the power within the structure of the WMA to exercise informed professional discretion to protect our public water supplies, provide flexibility for emerging industrial needs, and preserve our shared natural resources. Though it may create some harsh outcomes – like the abandoned housing complex outside Mendoza, MassDEP also needs to be able to say “No” when users seek to over-exploit a resource.
With the WMA, Massachusetts has a strong statewide regulatory structure to provide stewardship and achieve a fine balance among residential, industrial, and agricultural users on a watershed basis.