Perhaps this March edition of the Miyares and Harrington LLP newsletter will help you forget the misery of your busted March madness brackets. Have you gotten your vaccination yet?
 
Bryan Bertram and Ray Miyares successfully defended the Town of Littleton’s water rights to Nagog Pond embodied in a nineteenth century Special Act. The Supreme Judicial Court agreed with Littleton that its rights to withdraw water were not extinguished by passage of the Water Management Act. This case, of interest to the many municipalities with water rights conferred by Special Act, is summarized below. Congratulations, Bryan and Ray!

This month's newsletter features:
  • Municipal Water Rights by Special Act are not Wholly Extinguished by the Water Management Act

  • Mosquito Bites? Not in our Municipality!

  • Make Sure Your Floodplain Bylaws/Ordinances are Up to Date

  • Rapid Fire Update: Updated Guidance on Betterments and Special Assessments

  • Trivia
Municipal Water Rights by Special Act are not Wholly Extinguished by the Water Management Act
In 1985, the General Court enacted the Water Management Act, creating a regulatory system to manage water withdrawals across the Commonwealth through registrations and permits. But before that Act, the General Court had enacted many hundreds of Special Acts, as far back as the 1800s, giving municipalities many and varied rights to take (by eminent domain) and otherwise use water bodies, including Great Ponds. In a recently decided case, Concord v. Water Department of Littleton, the Supreme Judicial Court addressed the question of how the Water Management Act's passage affects those Special Act rights: Do they remain in effect or were they repealed?
 
The case arose from a dispute among three Towns—Littleton, Acton, and Concord. Through a Special Act passed in 1884, each Town was given the right to “take and hold” (by eminent domain) and use Nagog Pond, a Great Pond located in Littleton and Acton. Littleton and Acton were given the right to be “first supplied” over Concord if the Pond’s waters proved not to be sufficient for all three Towns. Concord took the Pond’s waters in 1909.
 
Following the passage of the Water Management Act, Concord registered its historical Concord River Basin water withdrawals across several withdrawal points, including Nagog Pond. Faced with a growing need for water, Littleton recently explored the exercise of its own rights to use Nagog Pond. That prompted Concord to sue Littleton arguing that the Water Management extinguished Littleton's and Acton's unexercised rights in the Pond. 

The Land Court agreed with Concord and held that the Water Management Act impliedly repealed all of Littleton’s and Acton’s rights. But the SJC mostly disagreed with that holding. According to the SJC, each of the Towns’ respective rights to “take and hold” Nagog Pond—a right to take property by eminent domain—remains intact. Littleton and Acton may therefore exercise their rights in the future along with Concord, with all three Towns obligated to follow the Water Management Act’s regulatory program. The only aspect to Littleton's and Acton's rights that the SJC decided was impliedly repealed by the Water Management Act was the Special Act provision that Littleton and Acton would be "first supplied." The SJC found that that provision might interfere with MassDEP’s Water Management Act registration and permitting of water withdrawals. 
 
This decision’s principal takeaway is that the Water Management Act did not broadly sweep away municipalities’ Special Act rights to take, hold, or otherwise withdraw water from various water bodies. It is only in narrow circumstances in which a specific provision of a Special Act cannot be reconciled with the Water Management Act where a right embodied in a Special Act might be in jeopardy.
Mosquito Bites? Not in our Municipality!
The Executive Office of Energy and Environmental Affairs was tasked in 2020 with creating a process by which municipalities can opt out of mosquito control spraying by the State Reclamation and Mosquito Control Board (SRMCB). On March 19, 2021, the EOEEA issued its process. The Select Board or City Council must vote to opt out of spraying. It then must submit a copy of the certified vote with the municipality’s alternative mosquito control plan to EOEEA for approval of the request to opt out. The submission to the EOEEA must be made electronically by May 15.
 
Both the vote to opt out and the adoption of an alternative plan must be made after a public hearing at which comments from the local board of health and the public should be solicited. While the process states that comments “should” be solicited, the request to opt out may be denied if the municipality does not solicit public and board of health input. The alternative plan must include an educational/public outreach plan.
 
Note that this opt-out process does not apply to spraying by any mosquito control program conducted by a district or program other than the SRMCB. The optout is effective only for calendar year 2021. 
Make Sure Your Floodplain Bylaws/Ordinances are Up to Date
If your community participates in the National Flood Insurance Program (NFIP), you should be aware that the Department of Conservation and Recreation (DCR), the state agency that administers the program in Massachusetts, is in the process of reviewing the floodplain bylaws and ordinances of all participating municipalities to ensure that they are in compliance with Federal Emergency Management Agency (FEMA) regulations.  
 
FEMA administers the NFIP to allow property owners in participating communities to purchase flood insurance. In order to participate or continue participating, a community must adopt local laws that enforce federal floodplain management standards and that incorporate specific requirements of federal law. Importantly, those laws must reference data provided by the Federal Insurance Administrator. To that end, the Administrator issues Flood Insurance Rate Maps delineating zones in a community by flood hazard level. The Administrator periodically updates these maps on a county-by-county basis and provides notice to communities when their map updates are in progress.  Currently, Flood Insurance Rate Map revisions are underway for Plymouth County, Norfolk County, and Suffolk County.    
 
The DCR Flood Hazard Management Program is responsible for determining that local regulations comply with the federal requirements. DCR issued a model bylaw in 2020 and has advised that communities revise their floodplain bylaws to conform to the model at their earliest convenience (and, for any community for which FEMA issues a new Flood Insurance Rate Map, by the effective date of the new map). The model floodplain management bylaw, as well as an FAQs describing state requirements and contact information for DCR FHMP staff, are available at https://www.mass.gov/guides/floodplain-management.  
Rapid Fire Update:
Updated Guidance on Betterments and Special Assessments
 
Be sure to review the Division of Local Services’ latest Informational Guideline Release, IGR-2021-1, Betterments and Special Assessments, Assessment and Collection Procedures, if your municipality is contemplating such assessments. If not done according to the rules, your efforts to collect may be unavailing.

Trivia!
 
Question: Expedia has identified the top 20 Friendliest U.S. Cities of 2021. The list is misnamed because it includes towns (hint). Which municipality in Massachusetts made the list?
 
Last issue's question: Massachusetts is privileged to lay claim to the first-in-the-nation public coeducational and integrated high school. What school is it and, for a bonus point, when was it founded?
 
Answer: Lowell is justly proud that Lowell High School, opened in 1831, was the first coeducational and racially integrated high school in the nation.
 
Winner: For the first time in a long time, we had no correct answers, only good guesses. We suggest that LHS work on its marketing.

MiyaresHarrington
Local options at work.
 
— — —
THIS NEWSLETTER MAY BE CONSIDERED ADVERTISING UNDER MASSACHUSETTS SUPREME JUDICIAL COURT RULES. This newsletter is intended for clients and friends of Miyares and Harrington LLP. It provides general information about legal developments and should not be used as a substitute for professional advice on your particular legal situation.

Address: 40 Grove St, Wellesley, MA 02482, USA
Phone:  (617) 489-1600