Category: Areas of Practice

The Division of Water Quality (DWQ) in the Department of Environmental Protection (DEP) implements the federal Safe Drinking Water Act (SDWA) in Massachusetts as well as similar state laws. DWQ approves new public wells and reservoirs (including those of municipalities) and enforces the state’s maximum contaminant levels (MCLs), mandates monitoring of water supplies, requires wellhead protection zones, and evaluates public and private projects with water supply impacts. DWQ can impose various kinds of moratoria.

In addition to monitoring drinking water, DEP has extensive authority to protect ground water from pollution. G.L. c. 21, §§ 26-53. Under its ground water discharge permit program, DEP approval is needed to discharge most pollutants, including sewage, commercial, industrial, and agricultural waste, or runoff. DEP can take several different types of enforcement actions.

DEP has authority under the Water Management Act (G.L. c.21G) to manage ground and surface water together as a statewide resource. The Act empowers DEP to deal with water supply shortages and emergencies. Each community must have a water resources management plan that incorporates conservation standards based on guidelines of the Massachusetts Water Resources Commission.

No building permit can issue for the construction of a building which would necessitate the use of water in the building, unless a supply of water is available from either a public or private water system. In addition, private well drillers must be registered annually and must submit reports about the wells they have drilled.

Private wells are under the jurisdiction of local boards of health. Owners of buildings that need a source of water for which a municipal water supply is not available must receive a permit from the board of health certifying that there is an adequate supply of potable water at the site. Although DEP provides boards of health with assistance at their request, the agency has no direct authority over the regulation of private wells. Some local boards of health have promulgated regulations, and information is available from the Massachusetts Association of Health Boards (MAHB).

Although many towns still rely, in part, on private wells, most towns in Massachusetts are served by one or more public water supply systems, from municipal wells, reservoirs, or combination. Except for communities receiving water service from the Massachusetts Water Resources Authority (MWRA), any town may vote to establish and operate its own water supply and distribution system. G.L. c.40 and c.39A. Towns may purchase water from private companies or from other communities.

Towns with a public water supply may create a board of water commissioners of three members, or the selectmen may be authorized to act as the board. In recent years, several towns with separate water commissioners and sewer commissioners have combined these boards to create a water and sewer commission. G.L.c.40N. Towns also use the legislative "special act" process to create municipal water departments and combined water and sewer commissions.

Towns with their own water systems may construct and maintain dams, wells, reservoirs, pumping and filtration plants, buildings, stand pipes, tanks, fixtures and other structures, and purification and treatment plants. The cost of purchasing, developing, and enlarging public water supplies can be financed through the issuance of bonds. A community bills the users of water, based on consumption, and the costs of maintaining and operating the system. In recent years, communities have adopted "enterprise funds," (G.L. c.44, §53) to guarantee that the revenue received for services is sufficient to meet the operation costs and capital expenditures of the water and/or water and sewer department

DEP has broad authority for monitoring and enforcing water quality standards for public water supplies and for approving sources of water, water systems, and treatment facilities. The approval regulations for new sources include requirements for controlling land use near the wells in order to protect the water quality. A public water supply is defined as a system that has at least 15 service connections, or regularly serves an average of 25 or more people at least 60 days a year. This is the threshold for regulation by the federal Safe Drinking Water Act.

DEP regularly tests public water supplies for contaminants (these levels are set by federal law.) If any water supply fails to meet the standards for drinking water safety and quality, DEP can require treatment or direct that the public be notified. In addition, water commissioners or selectmen acting as such, may impose additional controls on a water system, subject to bylaws or any rules and regulations approved by the town. G.L.c.4, §69B.

State law requires that each public water supply (municipality or district) have a state Water Management Act permit from DEP authorizing the amount of water available to the municipality. DEP has grant programs for land acquisition, addressing contamination problems, and constructing filtration plants.

We understand this demanding area of drinking water law, applied by interrelated federal, state and local laws and officials. Our clients appreciate our advice and representation in making and acting on their decisions.