TOWN OF CONCORD v. WATER DEPARTMENT OF LITTLETON et al (SJC

KeywordsWater, Municipal Corporations, Water supply, Special act. Statute, Construction, Repeal, Special law

[Excerpt] –

The Legislature passed the Water Management Act (WMA), G. L. c. 21G, in 1985, establishing a Statewide regulatory program for water withdrawals, prohibiting withdrawal of more than 100,000 gallons per day from any water source without a registration or permit.  See G. L. c. 21G, §§ 2, 4, 5, 7.  Under the WMA, an existing user of a water source could register their previous usage, and a new user had to apply for a permit.  G. L. c. 21G, §§ 2, 5, 7.  This case concerns whether the WMA impliedly repealed the special act, passed by the Legislature in 1884, that granted Concord the right to use Nagog Pond, located in Littleton and Acton, as a public water supply.  St. 1884, c. 201 (1884 act).  The 1884 act not only granted Concord the right to “take and hold” the waters of Nagog Pond for water supply purposes, but it also provided that Littleton, Acton, or both towns could take the waters of the pond if needed and that in the case of such taking, the water supply needs of Littleton and Acton “shall be first supplied” if “the supply of water in [Nagog Pond] shall not be more than sufficient for the needs of the inhabitants of the towns of Acton and Littleton.”  St. 1884, c. 201, §§ 2, 10.  In 1909, Concord exercised its rights under the 1884 act to take the waters of Nagog Pond, and it still uses the pond as a public water supply.  Littleton and Acton have not exercised their rights under the 1884 act, and the issue before us is whether those rights still exist after the passage of the WMA.

Concord commenced this action against the Littleton water department (Littleton), seeking declaratory relief in the Land Court, and Acton’s motion to intervene was allowed.  A judge concluded that the 1884 act was impliedly repealed by the WMA, thereby extinguishing Littleton and Acton’s rights under the 1884 act.  Our holding narrows the judge’s decision, as we conclude that the WMA impliedly repealed the provision of the 1884 act that provided that the needs of the inhabitants of Littleton and Acton “shall be first supplied.”  See St. 1884, c. 201, § 10.  We further determine that the WMA did not impliedly repeal the provisions of the 1884 act that granted Concord the right to “take and hold” the Nagog Pond waters, St. 1884, c. 201, § 2, and that provided Littleton and Acton with the right to take the water if needed, St. 1884, c. 201, § 10.

DOWNLOAD the SJC decision

Leave a Comment