Category: Areas of Practice

This area of law includes use of water, access to water, use of groundwater, allocation of water, and related common law and regulatory rights and duties. Our legal practice, including litigation, spans all these subjects. We are respected water rights attorneys. We are often invited to speak and write in this field. Consequently, we have become familiar with the technical aspects of water supply, water pollution, water testing, hydrogeology, hydraulics, and related engineering. We warm to the scientific aspects.

The Water Management Act, administered by the Department of Environmental Protection (DEP) Division of Water Supply (DWS), requires registration of withdrawals of water in excess of the 100,000 gallons per day.  This is required of any source (other than a public water system which is highly regulated elsewhere), except for withdrawals in existence by January 1, 1988.  DEP approval depends on analysis of safe yields, local and regional water resource management plans, and state criteria including conservation.  Safe yield is an important and evolving term of art, involving both law and science.

Under another law known as the Interbasin Transfer Act, the Water Resources Commission (WRC) within EOEEA regulates transfers of water across river watersheds. This includes not only water supplies transporting water, but also sewer systems relocating water.

In order to protect the water supply of the metropolitan Boston area, 1992 legislation known as the Cohen Act, properly called the Watershed Protection Act, imposed land use restrictions, including density limits and prohibitions of certain uses and activities, on lands within portions of the metropolitan watershed system. Within this large watershed area encompassing several towns northwest of Worcester, the state has acquired development rights or other interests in land, imposed regulations on land use activities, and mandated that communities impose added zoning provisions to accomplish the purposes of the Act.  

The state may purchase or acquire by eminent domain easements and related access rights to waters of the Commonwealth.  An example is State Public Access Board acquisition of easements leading from public roads to what qualify as Great Ponds. This often includes a driveway and boat ramp to provide access for fishing, boating and other purposes.  The status of a body of water as a Great Pond does not automatically confer a right of access, however, or the right to trespass. The perimeter might be privately owned or controlled by agencies electing not to afford access.  

Clients retain us when they want to learn about and litigate under the Watershed Management Act, Interbasin Transfer Act, Watershed Protection Act, Great Pond statutes, or Clean Water Act. They appreciate our straightforward, practical advice, knowledge of agency organization and personnel, and ability to handle any necessary lawsuits over water rights.

For example, for a private water system in Dover, Ma., interested in continuing to function into the future at low cost for the benefit of a few homes in a rural neighborhood, we advised how to deal with unexpected contaminant levels found in routine periodic wellhead testing, whether and how the results should be verified and reported to DEP, and whom to recruit as a qualified water quality expert on the technical issues. Then we represented the homeowner association through successful resolution of threatened state enforcement and potential expensive connection to public water supplies.

We won a judgment after Superior Court trial establishing our client Brooks Pond Association, Inc. as owner of a180-acre pond in four towns near Worcester and the right to make and enforce regulations for use of pond. Trial involved enforcement of those rules against a non-compliant boat operator, who challenged pond ownership and invoked Great Pond status, and turned on the classic problem of a missing, unrecorded deed in chain of title. The Appeals Court affirmed.