Opinion
Civil 17-944 18-1 17-1446
05-17-2018
TOWN OF WELLESLEY DEPARTMENT OF PUBLIC WORKS, WATER DIVISION, Plaintiff v. The MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL PROTECTION, Defendant Town of Hamilton, Plaintiff v. The Massachusetts Department of Environmental Protection, Defendant Town of Needham Department of Public Works, Water and Sewer Division, Plaintiff v. The Massachusetts Department of Environmental Protection, Defendant
Date Docketed: May 22, 2018
MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS AND FOR SUMMARY JUDGMENT
Peter B. Krupp, Justice of the Superior Court
The municipal plaintiffs in these consolidated actions seek declaratory and mandamus relief to compel the Massachusetts Department of Environmental Protection ("DEP") to promulgate a current renewal registration statement form under the Massachusetts Water Management Act ("the WMA"), G.L. c. 21G, or to deem the registration renewal statements filed by each of the municipalities as accepted; rather than to construe each municipality’s prior renewal registration statement as having been extended by four years under the Permit Extension Act ("the PEA"), St. 2010, c. 240, § 173, as amended by St. 2012, c. 238, §§ 74-75. Because of the particularly broad language of the PEA, plaintiffs’ motions for judgment on the pleadings must be denied, and summary judgment must be entered for defendant.
BACKGROUND
The relevant factual background is neither disputed, nor complicated.
All three of the plaintiff towns, Wellesley, Needham and Hamilton (together, the "Towns"), have historically drawn water to provide for their residents. In 1987, after the WMA was enacted, each of the Towns filed a registration statement with DEP on the appropriate form under G.L. c. 21G, § 5, para. 1, alerting DEP to its historical water usage and claiming its grandfathered rights to continue to draw water under the WMA. Thereafter, each of the Towns filed renewal registration statements on the forms promulgated by DEP under G.L. c. 21G, § 5, para. 5, to extend their grandfathered rights for ten-year intervals.
At the time, DEP was known as the Department of Environmental Quality Engineering.
The WMA defines "water" to include "water beneath or on the surface of the ground." G.L. c. 21G, § 2.
Each of the Towns were scheduled to file their next decennial registration statement in 2017 and asked DEP to provide it with DEP’s currently approved form for that purpose. DEP informed the Towns that it had not promulgated a renewal registration statement in or for 2017 because each of the renewal registration statements in existence between mid-July 2008 and mid-July 2012, including those of each of the Towns, was extended by four years by the PEA. DEP takes the position that, as a result of the PEA, each of the Towns’ next renewal registration statement under the WMA is not due until 2021. These consolidated actions followed.
DISCUSSION
This case is so much inside baseball. Zealously guarding their statutorily grandfathered rights to pump groundwater from their wells, the Towns are loathe even to be relieved for four years of the burden of filing a renewal registration statement to claim their grandfathered rights to withdraw water for a decade if the four-year deferral comes with any suggestion that DEP has any approval or permitting power over their grandfathered rights. This case turns, however, not on the narrow scope of DEP’s review of a renewal registration statement by a grandfathered municipality, but on the extraordinarily broad language of the PEA.
I begin with the PEA. The PEA was approved in 2010 as part of legislation designed to stimulate job growth and ease limitations on business operations. The PEA, as amended, states in relevant part that "[n]otwithstanding any general or special law to the contrary, an approval in effect or existence during the tolling period shall be extended for a period of 4 years, in addition to the lawful term of approval." The tolling period was originally structured as the two-year period between August 15, 2008 and August 15, 2010. St. 2010, c. 240, § 173(a). It was later doubled to four years, from August 15, 2008 through August 15, 2012. St. 2012, c. 238, § 74.
As originally enacted, the PEA extended for two years any approvals in effect or existence during the tolling period. St. 2010, c. 240, § 173(b)(1). In 2012, the length of the extension was doubled to four years. St. 2012, c. 238, § 75.
The PEA broadly defines the term "approval" to include "any permit, certificate, order, excluding enforcement orders, license, certification, determination, exemption, variance, waiver, building permit, or other approval or determination of rights from any ... state governmental entity, concerning the use or development of real property." St. 2010, c. 240, § 173(a) (emphasis added). See, e.g., Kaplan v. Ramsdell, 2015 WL 7196465 at * 8 (Land Ct. Nov. 16, 2015) (PEA "defines the kind of ‘approval’ to which it applies very broadly").
The question in this case is whether the required filing of a renewal registration statement to reconfirm grandfathered rights to withdraw water under the WMA, and DEP’s determination that the renewal registration statement complies with applicable regulatory requirements, constitutes an "approval" by DEP as that term is broadly defined under the PEA. Plaintiffs vigorously argue that it does not. DEP, which is charged with enforcing the WMA, contends that it does. To answer this question requires a brief review of the requirements of the WMA.
The WMA provides for two different procedures-permits and registrations. See generally Water Dep’t of Fairhaven v. Department of Envt’l Protection ("Fairhaven"), 455 Mass. 740, 746-748 (2010). This case involves only the latter, as all three of the Towns had withdrawn more than 100, 000 gallons of water per day on average during the five years prior to January 1986, and they each filed a compliant registration statement with DEP prior to January 1, 1988. See G.L. c. 21G, §§ 4, 5, and applicable definitions in G.L. c. 21G, § 2. Because each of the Towns filed an initial registration statement, each was entitled to its grandfathered level of water withdrawal for a period of ten years. Thereafter, each of the Towns was entitled to, and did, file renewal registration statements "to continue existing withdrawals specified in the registration statement." G.L. c. 21G, § 5, para. 5. Each renewal was good "for a period of 10 years." Id.
DEP has a role to oversee and review the filing of the renewal registration statements. As the SJC said in Fairhaven:
Because the registrant’s entitlement to existing withdrawals is grandfathered, the registrant is not required to obtain permission to continue existing withdrawals; it is simply required to provide information in the registration statement specified by the department’s regulations.... [T]he only decision the department needs to make is to ensure that the form, contents, and filing of the registration statement or renewal satisfies the regulatory requirements. (Emphasis added).455 Mass. at 747 (emphasis added). The WMA provides certain requirements for the contents of registration statements, G.L. c. 21G, § 6, as do DEP’s applicable regulations. 310 C.M.R. §§ 36.06, 36.07, 36.10.
Plaintiffs argue DEP does not approve anything, pointing to § 5 of the WMA, which states that "upon the filing of a renewal registration statement," each registrant entitled to withdraw water under the grandfathering provisions of the WMA "shall be entitled ... to continue existing withdrawals specified in the registration statement for a period of ten years." G.L. c. 21G, § 5, para. 5. This view of the renewal registration process as self-executing ignores DEP’s role and decision-making recognized both in its own regulations and by the Supreme Judicial Court. DEP has a proper role in monitoring and reviewing the registration renewal process, collecting the applicable fee, and reviewing and determining the compliance and completeness of the information supplied on a registrant’s renewal registration statement. See 310 C.M.R. § 36.10(3). As the SJC recognized, "the [ ] decision the department needs to make is to ensure that the form, contents, and filing of the registration statement or renewal satisfies the regulatory requirements." Fairhaven, 455 Mass. at 747 (emphasis added).
The language of DEP’s regulations is still more active, characterizing registration statements as "[r]equests to renew a registration statement," 310 C.M.R. § 36.10(2), specifying the terms under which DEP will "accept any request to renew a registration statement," 310 C.M.R. § 36.10(3), and making clear that it has to the power to "den[y] a request for renewal." 310 C.M.R. § 36.10(4).
Against this regulatory structure, the question is whether DEP, which is charged with construing the WMA, was reasonable in applying the PEA to the Towns’ renewal registration statements which were existing between August 15, 2008 and August 15, 2012. It was. The broad language of the PEA covers the decision-such as it is-that DEP must make in reviewing the renewal registration statements. This is so for several reasons.
First, it is a basic principle of statutory construction that the words of a statute are generally to be construed in light of their ordinary meaning. Dorrian v. LVNV Funding, LLC, 479 Mass. 265, 271 (2018); Millis Public Schools v. M.P., 478 Mass. 767, 775 (2018). The definition of "approval" in the PEA is very broad, applying, among other situations, to "any ... determination ... or other approval or determination of rights" by DEP. As the parties and the courts have recognized, the term "any" is expansive. Doe v. Williston Northampton School, 766 F.Supp.2d 310, 312 (D. Mass. 2011) (" ‘any’ means without limitation or ‘indiscriminately of whatever kind," quoting Merriam-Webster (2011)); Cabot CSC Corp. v. Aearo Technologies LLC, 91 Mass.App.Ct. 1120, 2017 WL 1842570 (May 8, 2017) (Rule 1:28 decision) ("the word ‘any’ means ‘all’ or ‘every’ and imports no limitation," quoting Zion v. Kurtz, 50 N.Y.2d 92, 104 (1980)). Similarly, the terms "approval" and "determination" broadly apply to encompass any decision, no matter how perfunctory. See, e.g., Webster’s II New College Dictionary at 56 ("approve" means "[t]o regard favorably" or "[t]o confirm or agree to officially"), 309 ("determine" means "decide or settle"); Black’s Law Dictionary at 102 (6th ed. 1990) ("approve" means "[t]o be satisfied with; to confirm, ratify, sanction, or consent to some act or thing done by another. To sanction officially; to ratify; to confirm; to pronounce good; think or judge well of; admit the propriety or excellence of; be pleased with."). See Commonwealth v. Bell, 442 Mass. 118, 124 (2004) (courts look to dictionary definitions for plain meaning of statutory terms).
Second, applying the plain meaning of these terms is consistent with the broad remedial purposes of the PEA to stimulate job growth and lessen the regulatory burden on businesses and other employers in the Commonwealth.
Third, although in receiving renewal registration statements DEP does not have to issue a permit or license, it does have a decision to make under the existing statutory and regulatory structure. It must determine if a renewal registration statement is compliant in form and content, and meets the regulatory requirements. DEP’s construction of its role under the WMA is entitled to deference. Provencal v. Commonwealth Health Ins. Connector Auth., 456 Mass. 506, 514 (2010). Accord Fairhaven, 455 Mass. at 748 (DEP has "broad authority ... to issue regulations to carry out the [WMA]’s purpose of water management"). The narrow decision DEP must make with respect to the renewal registration statements, see, supra, at 4-5, does constitute an "approval" or "determination" under the PEA.
Nothing in this opinion alters or expands DEP’s role in regulating, reviewing or monitoring the filing of renewed registration statements under the WMA.
Although it is hardly the core of their concern, plaintiffs also argue that any "approval" required by DEP under the WMA does not "concern[ ] the use or development of real property" as that phrase is used in the PEA. St. 2010, c. 240, § 173(a). I disagree. In this regard, DEP has the better of the argument. Any grandfathering of historic levels of groundwater withdrawal under the WMA "concern[s]" the authorization of the "use ... of real property" for wells and/or pumping facilities. Registrants must specify in their renewal registration statements the particular real estate from which they plan to withdraw water, and are thereafter only authorized to withdraw water from those locations, G.L. c. 21G, § 6; 310 C.M.R. § 36.06, and obviously to withdraw water the Towns must use buildings or structures on the real estate (e.g., pumps, associated housing, etc.).
ORDER
Plaintiffs’ Motion for Judgment on the Pleadings (Docket # 14.0 in Civil No. 17-944; Docket # 14.0 in Civil No. 18-1; and Docket # 8.0 in Civil No. 17-1446) is DENIED . Defendant’s Cross-Motion for Summary Judgment (Docket # 14.2 in Civil No. 17-944; Docket # 14.2 in Civil No. 18-1; and Docket # 8.2 in Civil No. 17-1446) is ALLOWED .
It is hereby DECLARED and ADJUDGED that the Permit Extension Act, St. 2010, c. 240, § 173, as amended by St. 2012, c. 238, §§ 74-75, extended until December 31, 2021 the term of the Massachusetts Water Management Act renewal registration statements that were existing between August 15, 2008 and August 15, 2012.
Final judgment shall enter accordingly.