July 10, 2014

MassDEP Bureau of Resource Protection
Water Management Regulatory Comment Box
One Winter Street, Fifth Floor
Boston MA 02108

Attention: Elizabeth McCann

Re: Sustainable Water Management Initiative (SWMI) regulatory changes to 310 CMR 36.00

Dear Ms. McCann,

I am submitting comments on the March 26, 2014 public comment draft regulations and Water Management Act Permit Guidance Document on behalf of the Connecticut River Watershed Council (CRWC). Since 1952, CRWC has been the principal nonprofit environmental advocate for protection, restoration, and sustainable use of the Connecticut River and its watershed. Our river is the longest in New England, and its tributaries are used to supply water to the Boston metropolitan area (through Quabbin Reservoir), the Springfield Water and Sewer Commission (Cobble Mountain Reservoir), as well as numerous smaller and medium-sized water supplies that use groundwater and surface water. Some of our communities have a public water supply, while others largely use individual private wells. We have some of the most pristine water bodies in the state, but we also have a large degree of urbanized and agricultural land. The Connecticut River and its larger tributaries (four of which are managed by DEP as major basins) are used to cool power plants and are also dammed for hydroelectric power. Therefore, managing water in a sustainable and comprehensive way is of paramount importance to our organization; we also look at the issue from many different perspectives.

In the late 1970’s, the Metropolitan District Commission (MDC) proposed to divert the Connecticut River to the Quabbin Reservoir because of projected water needs. Many organizations and individuals were galvanized to oppose this plan, and in the end, the MDC made up for the water need by fixing leaks and improving conservation. The end result was beyond anyone’s dreams: the MDC and now Massachusetts Water Resources Authority (MWRA) did such an effective job, that for the last several years the MWRA and its Advisory Board have been saying they need to find more customers for its “excess water.” The decision to go with leak fixing and conservation rather than the Connecticut River diversion also meant that the water quality at Quabbin has been consistently of the highest quality, and it must have saved millions upon millions of dollars in ongoing water treatment costs and infrastructure building and long-term maintenance. Meanwhile, plentiful water has been one factor making Boston a flourishing economic engine for the rest of Massachusetts through the 1980’s, the 1990’s, and beyond.

This is an example of how good water management can be good for the economy, for protection of drinking water quality, and for the environment. The Interbasin Transfer Act (IBTA) and the Water Management Act (WMA) were passed in the early 1980’s and both laws helped us avoid major water problems like those experienced recently in the Atlanta, Georgia area and in California. However despite these laws, one-fifth of Massachusetts streams now suffer from low or no flow during dry summers as a result of water withdrawals, which highlights the need for implementation of the Sustainable Water Management Initiative (SWMI) through these regulations.

Water sustainability is essential for public health, the economy, and the environment, and I would like to thank the Patrick Administration for taking on this critical issue. The SWMI effort is the next step in the important process of managing our water in a sustainable way.

While we support many of the SWMI regulatory changes, the proposed regulations need strengthening in order to provide meaningful protection of our natural water resources. Our general comments are immediately below, followed by specific comments. We also note that CRWC is an organizational member of the Massachusetts Rivers Alliance, and we strongly endorse the comprehensive comments submitted by the Alliance.

GENERAL COMMENTS

We support:

1. A scientific basis for water allocations. The USGS study linking August flow alteration and percent impervious cover to aquatic health in 1,400 subbasins in Massachusetts was used to develop 5 groundwater level and 5 biological habitat categories. We like this science-based approach, and we are pleased to see streamflow criteria included in the regulations.

2. Good principles. The SWMI process involved three main principles: “no backsliding for healthy streams,” “mitigation commensurate with impact” for new and increased withdrawals, and feasible improvement for flow-depleted streams. These are important values on which to base regulation changes.

3. The regulations will drive water conservation and encourages towns to restore streams near withdrawal points. We support requirements that water users should first exhaust opportunities for water conservation before using more water. This will help to lower water bills and enable our communities to avoid very expensive capital expenditures in the future. We also agree with the mitigation “hierarchy” specifying that mitigation should be as close as possible to the withdrawal point, and that mitigation actually returning water to the subbasin is prioritized over “indirect” mitigation.

4. Mitigation before additional water is withdrawn. We support the requirement that mitigation activities be implemented before additional water over baseline can be withdrawn.

5. Special consideration for high quality streams. The Connecticut River watershed has many coldwater fisheries, and we appreciate that water suppliers in basins with cold water fisheries will be required to consult with Department of Fisheries and Wildlife staff to ensure that impacts to these valuable streams are adequately addressed in mitigation.

We support the basic idea, but improvements are needed:

1. Minimization needs a goal. The “minimization” requirement to improve flow-depleted subbasins should have a goal. Without a metric for improvement, it is difficult for communities to know what they need to do to minimize their impacts, and it will be impossible for them – and MassDEP — to know when they have succeeded.

2. Surface water withdrawals should be minimized. Surface water-only permittees should be required to implement feasible minimization if they are upstream of flow-depleted subbasins or requesting significant new water withdrawals.

3. Mitigation should truly be commensurate with impact. The mitigation requirements need to be strengthened. By giving credit for “indirect mitigation” activities such as compliance with stormwater regulations, MassDEP will be trading away actual gallons of water in exchange for measures that may not produce needed results.

We oppose:

1. The Safe Yield as proposed. The safe yield methodology proposed here is seriously flawed. The annual safe yields in the draft regulations allow extremely large withdrawals, at any location within a sub-basin, during any season. They also don’t take into account basins that experience large subdaily river fluctuations from, for example, peaking hydropower facilities. The Safe Yields as drafted do not sufficiently protect water reliability or the environment. We do think there is a need to have an established methodology for safe yields, since the implementation of this concept has been widely variable up to now. However, since the SWMI process has not resulted in safe yields that accomplish the original goal of SWMI itself, we suggest that the Safe Yields as described in 310 CMR 36.13 be omitted from the regulations, and that MassDEP task USGS with the job of developing science-based safe yields that protect the environment.

2. The lack of efficiency requirements for registered water use. The SWMI regulations as drafted apply to water permits only and not water registrations. If the numbers in the April 3, 2014 draft “Safe Yield and its Components by Water Source” table are correct, registered withdrawals account for 86% all regulated withdrawals in the state. The 2010 Supreme Judicial Court decision on the Water Department of Fairhaven v. DEP (and 13 companion cases) stated, “..this means that the department, by regulation, may impose conservation measures on all water users, including registrants…” We suggest DEP impose conservation measures on registrations through regulation by adding the following condition to 36.07(2) : “(c) reasonable conservation requirements.” After all, water conservation lowers water bills, and all ratepayers deserve to have the financial and environmental benefit of an effective efficiency program.

3. The addition of 5% to the baseline. By giving water suppliers an additional 5% over the year of highest use from 2003-2005 before requiring any mitigation, MassDEP is allowing streamflow across the state to deteriorate. This is a clear violation of SWMI’s own “no backsliding” principle.

4. An exemption for redundant wells. We disagree with the exemption of redundant wells from common-sense water conservation requirements. See below for more detailed comments.
SPECIFIC COMMENTS

Comments on the revisions to 310 CMR 36.00

• 36.02 Purpose. The first two paragraphs of the “Introduction” language in the current version of the regulations should be incorporated into the early paragraphs of this section to provide more background on the regulations and the WMA .

• 36.16(3). We aren’t sure why a specific statement about cranberry cultivation or golf course irrigation is needed here. If they do not exceed the permit threshold of 100,000 gallons per day, they don’t need a permit and if they do exceed the threshold, they do need a permit. Presumptions are not necessarily helpful.

• 36.19, Determining Permit Tier for an Application. One of the weaknesses of the regulation as drafted is that once a category 5 subbasin is at that level, there lack protections against further backsliding. One way of adding protection would be to automatically consider category 5 subbasins Tier 3 for groundwater withdrawals and Tier 2 for surface water withdrawals.

• 36.20 (1) Data refinements. We suggest adding a new criteria to this list: “e) Actual streamflow data collected by any individual, organization, or using accepted methods under a Quality Assurance Project Plan.”

• 36.26 6(d) and 7(d). If mitigation measures implemented since 2005 are credited, then any conditions that may undo the mitigation, such as increased impervious cover, should also be considered.

• 36.28(4)c. Redundant wells should not be automatically exempt from water conservation requirements.

Take, for example, Westfield’s MEPA filings for redundant Well9A (EEA#14594). In 2012, Westfield filed a draft environmental impact report (DEIR) with MEPA for redundant well 9A citing its need for better distribution of water to the areas of the city that need it. The August 31, 2012 DEIR Certificate stated, “According to the DEIR, the City does not have a Conservation Program, does not conduct annual water audits of the system, does not complete a full leak detection program every two years (these happen very 15-20 years), does not provide educational literature or offer retrofit or rebate services to customers, and does not have a Seasonal Water Demand plan.” Our own comment letter on the DEIR noted that summer water consumption was double that of winter months. According to the 2013 Annual Statistic Report for the Westfield public water supply, the City still does not meet the 65/10 residential gallon per capita per day (RGPCD) and unaccounted for water (UAW) performance standards — in 2013, Westfield reported its RGPCD was 77 and its UAW was 16%. The city has a flat rate billing system as well. The DEIR Certificate appropriately required, among other things, that the FEIR, “…include a clear commitment by the City to promote conservation efforts within the entire water supply system moving forward.” The City has not submitted a final EIR to date. Westfield clearly could and should be doing more to minimize water use before installing a redundant well, and exempting the city from such a requirement is unjustified.

As a solution to this weakness, we concur with the Massachusetts Rivers Alliance’s comment that the definition of redundant well should be changed to following suggested language: “…(a) that is constructed to address a public health and safety concern and provide a net environmental benefit

• 36.35 A provision should be added to this section stating, “(5) A nonconsumptive use statement shall identify whether or not the nonconsumptive use ever is equal to or exceeds the flow from a surface water source at the time and location of withdrawal and/or discharge. In such cases, the Department may require additional review.”

• 36.37 (2), Appeals. The following deleted sentence should be retained: “For the purpose of 310 CMR 36.00, an aggrieved person is any person who may become a party to or who may intervene in the proceeding in accordance with 310 CMR 1.00.” As an organization that appealed the Water Management Act permit for Russell Biomass in 2008, we firmly believe that ten-person and watershed groups have a strong interest in protecting public resources impacted by water withdrawals, and should continue to be eligible for full party status as an aggrieved person in appeals.

Comments on the Water Management Act Permit Guidance Document.

• In the Connecticut River watershed during the past 7 years, applications for new or increased withdrawals for WMA permits submitted to MassDEP has included two agricultural withdrawals (Chang Farms and Nourse Farms) and one power plant (Russell Biomass). An additional request for determination under the ITBA was submitted for another power plant (Pioneer Valley Energy Center). No such requests have come from public water supplies. Therefore, we believe the Guidance Document should also be tailored to accommodate different types of permittees, particularly in table formats like Tables 4, 5, and 6.

• Table 9: The term Mass Water Indicators (MWI) August affected flow should have a more defined reference so that readers would know how to determine this parameter.

• Table 10. So many communities use a flat rate for water billing (although perhaps the majority of these communities have registrations rather than permits, which will be untouched by this guidance document as proposed). The statement, “Evaluate rate structure every two years and increase rates for the highest rate block” should be re-written to encourage flat rate communities to adopt increasing block rates.

• We aren’t sure how this policy might apply to a permittee like Chang Farms, which has a permitted groundwater withdrawal that impacts Sugarloaf Brook, a small tributary to the Connecticut River for which there are no streamflow criteria in the SWMI interactive map. In 2012, DEP amended the 2006 WMA permit for this facility to allow for increase permitted withdrawals from 150,000 gallons per day (gpd) to 650,000 gpd. The water is used for soaking and washing mung bean sprouts. What is considered “baseline” for this withdrawal, which had no permit in the 2003-2005 baseline period? With no streamflow criteria and an allowable increase since 2005, what tier might this permit fall into when the Connecticut River basin permits go up for renewal in 2017? If only safe yield of the major basin as drafted applies here, it appears a stream like Sugarloaf Brook could be allowed to be 100% withdrawn.

• 9e. Stormwater Recharge. If direct mitigation credit is to be given for stormwater recharge enhancements for impervious surfaces, then certainly any new impervious surfaces created must be taken into account, or clearly there is no net benefit.

Thank you for the opportunity to comment. We appreciate the very significant work that has gone into the development of the Initiative and these proposed rules. If you would like to contact me, I can be reached at 413-772-2020 x. 205 or adonlon@ctriver.org.
Sincerely,
Andrea Donlon
River Steward

cc: Julia Blatt, Massachusetts Rivers Alliance
MA Representatives and Senators in the watershed