Water Dept. Fairhaven v. Environmental

Decision Date14 January 2010
Citation920 N.E.2d 33,455 Mass. 740
PartiesWATER DEPARTMENT OF FAIRHAVEN v. DEPARTMENT OF ENVIRONMENTAL PROTECTION (and thirteen companion cases<SMALL><SUP>1</SUP></SMALL>).
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Marguerite Reynolds for town of Hamilton.

Robert S. Troy for Town of Duxbury.

Nancy Kaplan & Cheryl Blaine for Town of Medfield & another.

Margaret Van Deusen & Michael Baram, for Conservation Law Foundation & others, amici curiae, submitted a brief.

Present: MARSHALL, C.J., IRELAND, SPINA, CORDY, BOTSFORD, & GANTS, JJ.

GANTS, J.

These consolidated appeals concern the authority of the Department of Environmental Protection (department) under the Massachusetts Water Management Act (Act), G.L. c. 21G, to impose conservation measures on registered water suppliers (registrants) and to provide an administrative remedy to registrants aggrieved by those conservation measures.2

The plaintiffs represent fourteen Massachusetts cities and towns and their public water departments. Under the Act, each person (including the fourteen plaintiff cities and towns) that withdraws water from a water source in excess of the "threshold volume" of 100,000 gallons per day "shall file a registration statement" on or before January 1, 1988, setting forth its "existing withdrawal."3 G.L. c. 21G, § 5. "[N]o person shall be deemed to have an existing withdrawal unless such person files a registration statement...." G.L. c. 21G, § 2. Once the registrant files its registration statement, the registrant is entitled to continue its existing withdrawal until the expiration of the registration statement, which may not exceed a term of ten years. G.L. c. 21G, § 5. On the expiration of a registration statement, "the registrant shall be entitled, upon the filing of a renewal registration statement, to continue existing withdrawals specified in the registration statement for a period of ten years." Id. The Act thereby guarantees that any registrant that registered before January 1, 1988, and timely renewed its registration statement may continue forever to withdraw water at the rate of its existing withdrawal.4

On or before January 1, 1988, the plaintiffs filed registration statements with the department in accordance with the Act. In 1998, the plaintiffs renewed their registrations for another ten-year period, which expired on January 1, 2008. Both the initial registrations and the 1998 renewals required the plaintiffs to meet basic metering, record-keeping, and reporting requirements. The plaintiffs were otherwise unrestrained with respect to usage of their existing withdrawals of water, provided they did not exceed the registered volumes.

In administering the 2008 renewal process, the department has imposed new "registration conditions" on all registrants. These conditions are, in effect, conservation measures. By December 31, 2017, each registrant's water consumption is to be limited to sixty-five residential gallons per capita per day, and unaccounted-for water loss is to be no more than ten per cent of the total usage. If the registrant fails to demonstrate adequate progress toward meeting these performance standards, "the [r]egistrant shall develop and implement an annual compliance plan" designed to meet them. The conditions also mandate adherence to the department's seasonal demand management plan by May 1, 2009, which restricts outdoor water use from May through September when the drought level is above normal. The department reserves the right to commence enforcement measures against the registrant if it does not make "demonstrable progress towards meeting these performance standards, or if it has not developed and implemented an annual compliance plan that is reasonably designed" to meet them.5 In imposing these new conservation requirements as conditions for registration renewal, the department is seeking to restrict the manner in which water is used, but it does not seek to decrease the registrants' total water usage below the existing withdrawals to which they are entitled.

In announcing the new conditions, the department informed registrants of their opportunity to request an administrative hearing if they were aggrieved by any part of the registration renewal process. The plaintiffs challenged in the Superior Court the department's authority under the Act to impose these conditions on registration renewals and to create an adjudicatory process to resolve grievances regarding these conditions. The cases were consolidated and heard on cross motions for summary judgment. The Superior Court judge awarded declaratory relief to the plaintiffs under G.L. c. 231A, concluding that the department had exceeded its authority both in imposing the conditions and in creating the adjudicatory process. Furthermore, the judge concluded that, because the administrative remedy was not statutorily authorized, the plaintiffs could not be required to exhaust their administrative remedies before filing suit. The department appealed, and we granted its application for direct appellate review.

Discussion. This case presents a question of statutory construction. "We review questions of statutory interpretation de novo.... We give substantial deference to a reasonable interpretation of a statute by the administrative agency charged with its administration enforcement...." (Citations omitted.) Commerce Ins. Co. v. Commissioner of Ins., 447 Mass. 478, 481, 852 N.E.2d 1061 (2006). See Massachusetts Med. Soc'y v. Commissioner of Ins., 402 Mass. 44, 62, 520 N.E.2d 1288 (1988) ("Where the [agency's] statutory interpretation is reasonable ... [we do] not supplant [its] judgment"). However, in deferring to the administrative body, we do not abdicate our judicial responsibility. See Town Fair Tire Ctrs., Inc. v. Commissioner of Revenue, 454 Mass. 601, 605, 911 N.E.2d 757 (2009). "An incorrect interpretation of a statute by an administrative agency is not entitled to deference." Kszepka's Case, 408 Mass. 843, 847, 563 N.E.2d 1357 (1990), and cases cited. "The duty of statutory interpretation rests ultimately with the courts." Town Fair Tire Ctrs., Inc. v. Commissioner of Revenue, supra, and cases cited.

Our primary duty in interpreting a statute is "to effectuate the intent of the Legislature in enacting it." International Org. of Masters v. Woods Hole, Martha's Vineyard & Nantucket S.S. Auth., 392 Mass. 811, 813, 467 N.E.2d 1331 (1984). We begin with the language of the statute, as "the principal source of insight into legislative intent." Providence & Worcester R.R. v. Energy Facilities Siting Bd., 453 Mass. 135, 142, 899 N.E.2d 829 (2009), quoting New Bedford v. Energy Facilities Siting Council, 413 Mass. 482, 485, 597 N.E.2d 1032 (1992), S.C., 419 Mass. 1003, 644 N.E.2d 963 (1995). Where the words are "plain and unambiguous" in their meaning, we view them as "conclusive as to legislative intent." Sterilite Corp. v. Continental Cas. Co., 397 Mass. 837, 839, 494 N.E.2d 1008 (1986). Where the meaning of a statute is not plain from its language, we consider "the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated." DiFiore v. American Airlines, Inc., 454 Mass. 486, 490, 910 N.E.2d 889 (2009), quoting Industrial Fin. Corp. v. State Tax Comm'r, 367 Mass. 360, 364, 326 N.E.2d 1 (1975). See Oxford v. Oxford Water Co., 391 Mass. 581, 588, 463 N.E.2d 330 (1984), quoting Commonwealth v. Welosky, 276 Mass. 398, 401-402, 177 N.E. 656 (1931), cert. denied, 284 U.S. 684, 52 S.Ct. 201, 76 L.Ed. 578 (1932) ("Statutes are to be interpreted ... in connection with their development, their progression through the legislative body, the history of the times ..."). "Where possible, we construe the various provisions of a statute in harmony with one another, recognizing that the Legislature did not intend internal contradiction." DiFiore v. American Airlines, Inc., supra at 491, 910 N.E.2d 889.

1. The background of the Act. The Act was a direct response to calls for action issued by two separate studies, one commissioned by the executive branch and the other by the Legislature, that reviewed the Commonwealth's water supply and related policies in the late 1970's and early 1980's. The study commissioned by the Executive Office of Environmental Affairs began:

"In reviewing Massachusetts' water situation, it is evident that a far better balance is needed between water use and water conservation. The uses are many, the demands are growing, and thus far the state-local management response has been solely toward accommodating demand. In future years, if all reasonable uses are to be accommodated, if resource and environmental values are to be protected, a new response in the form of managing demand will be required."

Massachusetts Water Supply Policy Statement: Summary Report 2 (1978) (1978 Water Supply Policy Statement). While acknowledging that "conflicts in water use are inevitable," the 1978 Water Supply Policy Statement expressed dismay over the lack of a comprehensive approach to water conservation in the Commonwealth, as well as "the lack of public awareness of the limitations of the water supply and the compromises necessary to assure a continued supply." Id. at 4. The study recommended the implementation of a centralized Statewide water conservation program. Id. at 22.

In 1977, the Legislature established a Special Legislative Commission on Water Supply (special commission), see Res. 1977, c. 13, that contracted with an independent law firm with expertise in environmental law "to research...

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