Introduction to Water Resource Protection in Massachusetts

Because water is a highly regulated resource, the health of our rivers depends on a myriad of federal, state and local laws. These laws, and ensuing policies and programs address pollution, water withdrawals, dams, transfers of water from one part of the state to another, and protection of wildlife habitat.

The regulatory landscape of water protection is layered, with specific roles for federal, state and local entities. The federal government provides an overarching umbrella framework within which the state and local governments work. Federal laws, like the Clean Water Act, http://www2.epa.gov/laws-regulations/summary-clean-water-act (CWA), create programs to protect water resources and set minimum standards that states must meet. States design and implement programs to meet or exceed these standards; they cannot provide less protection.

Many states take responsibility for implementing CWA protection programs themselves, with oversight from the federal government (this is called having ‘primacy’ or having a program ‘delegated’ to the state). Massachusetts is one of a few states that has chosen not to seek primacy for the CWA, and instead the federal government, in most cases the EPA, implements the programs. However, the state still sets standards and has other responsibilities as explained below.

Federal and state governments both consider public involvement an important part of these regulatory programs. Citizens may review, comment and appeal decisions. The Massachusetts Rivers Alliance and many of its members actively track state and federal actions that affect rivers in Massachusetts.

In Massachusetts, local governments manage threats to water resources that are very closely related to land use issues, such as wetlands protection and septic system regulation. In these cases, the state and/or federal government provides a framework and minimum standards that guide local governments in creating programs.

Non-regulatory approaches supplement the regulations designed to protect water resources in Massachusetts. Using guidance documents, design standards, grant programs and policy, the state provides education and incentives as other ways to protect resources. Sometimes these approaches are more appropriate to address site-specific, or regional issues. Non-regulatory programs may stimulate innovation and new approaches to addressing a particular issue and may encourage activities that reach beyond the minimum required by law.

Wastewater Regulation and Why it Matters for Massachusetts Rivers

Wastewater from municipal and industrial sources has historically been one of the most serious threats to water quality, discharging nutrients, bacteria, industrial waste products, pharmaceuticals and a myriad of other waste products into water sources. The nutrients have contributed to excessive plant growth in our rivers, and depleted oxygen necessary to support aquatic species health. The chemical products have accumulated at levels high enough to harm species living in or along the rivers, and have also affected communities using rivers as a drinking water source downstream. Unfortunately, many Massachusetts waterways still suffer from nutrient pollution from wastewater treatment plants, including the Assabet and Blackstone Rivers.

The Clean Water Act, passed in 1972, created the National Pollution Discharge Elimination System (NPDES) Program to address these ‘point’ sources of discharge.
In Massachusetts the NPDES program is responsible for successful efforts to restore and protect the Assabet River, which has four municipal wastewater treatment plant discharges along its course and very high levels of phosphorus in its water. To learn more about wastewater issues on the Assabet, go to http://www.oars3rivers.org/threats/water-pollution/tmdl.

The health of the Charles River, the Nashua, the Blackstone, and Boston Harbor have also greatly improved, thanks to the NPDES program.

Federal

The Clean Water Act identifies various threats to our waterways and categorizes them as ‘point’ sources, which are from a specific location, and ‘nonpoint source’ which is pollution from a diffuse source. Regulatory programs are created in the Act to address each of type of pollution.

The following link is a great outline of important parts of the Clean Water Act:
http://www.toxicsaction.org/sites/default/files/tac/information/citizens-guide-to-the-clean-water-act.pdf

The National Pollution Discharge Elimination System (NPDES) program addresses pollution from point sources, such as wastewater treatment plants. Under this program, permits are issued that specify the effluent limits for each pollutant in the wastewater. These limits are set based on water quality standards.

http://www.epa.gov/npdes

State

Many states have ‘primacy’ from the federal government and administer their own NPDES program. Massachusetts does NOT do this, and EPA, in cooperation with the state, is responsible for issuing these permits. EPA also takes the lead on enforcement of these permits as well as any appeals that are filed. Massachusetts is still responsible for setting water quality standards and monitoring water quality. The state periodically evaluates the feasibility of taking on this program, but has consistently declined to do so, due to cost concerns.

Massachusetts sets water quality standards based on designated uses of the water body, i.e. fishing, swimming, boating, etc. The state then determines water quality criteria required to meet these uses. Some criteria are numeric; for example, a water body can contain no more than a specified concentration of a specific pollutant; while other criteria are narrative and describe the qualities the water body should have, such as ‘free from excessive algae blooms’. These standards and criteria form the basis of permits, which protect water quality. This link provides an overview of water quality standards:
http://www.epa.gov/standards-water-body-health

The Clean Water Act requires states and EPA to protect water quality and not allow it to degrade from its current designated use. To do this Massachusetts sets antidegradation policies to ensure that water quality does not degrade over time. Follow this link to learn more about Massachusetts water quality standards and antidegradation policy: http://www.epa.gov/wqs-tech/water-quality-standards-regulations-massachusetts

Massachusetts is also responsible for completing planning efforts required by the Act, like total maximum daily loads (TMDLs), to determine the resiliency of a river when accepting wastewater (or stormwater). Specifically, the TMDL determines how much of a pollutant a waterbody can receive and still meet water quality standards for that pollutant. Only waters that are classified as ‘impaired’, because they do not meet their water quality standards are required to have a TMDL.

This link to EPA’s website provides an overview of the TMDL program:
http://www.epa.gov/tmdl

This link is specific to Massachusetts and not only explains the program but provides a status report on TMDLs required within the state. Phosphorus and bacteria are common causes for impairment of MA waters, and many TMDLs focus on these contaminants.
http://www.mass.gov/eea/agencies/massdep/water/watersheds/total-maximum-daily-loads-tmdls.html#21

TMDLs require an intensive effort by the state to monitor, model and evaluate river impairments. Once completed, they provide a target for restoration, and ideally, a specific plan to reach these targets. Unfortunately, MassDEP’s resource constraints have prevented the agency from developing TMDLs at the speed that many advocates would prefer and which the CWA outlined.

TMDLs are a powerful tool for Mass Rivers and its member organizations, and have helped to guide restoration efforts on many rivers. On the Charles River, a TMDL for the Upper Charles communities focused attention on excessive nutrients from combined sewer overflows and formed the basis for an aggressive monitoring and remediation program. By 2015, the river is virtually always safe for boating and considered swimmable 70% of the time, something that could not be imagined twenty years ago.

Although not required by the CWA, Massachusetts issues permits for wastewater discharges over 10,000 gallons per day into groundwater. This helps maintain quantity of water in a watershed, and in many cases contaminants in the water are attenuated in the ground (as with a septic system). Proximity to surface water needs to be evaluated, though. The Eel River Watershed Association appealed a groundwater discharge permit in Plymouth because research showed that the nitrogen in the wastewater would lead to increased algal blooms in the river. http://www.eelriverwatershed.org/risk.html
The following link provides background information on the groundwater discharge permit program:
http://www.mass.gov/eea/agencies/massdep/water/wastewater/groundwater-discharge-permitting.html

Massachusetts does set standards for septic system disposal through Title 5 of the MA State Environmental Code. These regulations are implemented at the local level with oversight by the state. The following link provides general information about Title 5:
http://www.mass.gov/eea/agencies/massdep/water/wastewater/septic-systems-title-5.html

Local

Local Boards of Health generally are responsible for implementing septic system regulations. When ownership is transferred through a home sale, the septic system must be inspected to determine if the system is in compliance with Title 5. At other times local boards of health respond to complaints and provide guidance to homeowners. There are a variety of guidance documents available for homeowners to help them understand and manage their septic systems so that water quality is protected. Here are a few examples.

http://www.nesc.wvu.edu/pdf/ww/septic/pl_fall04.pdf

http://www.mass.gov/eea/agencies/massdep/water/wastewater/caring-for-septic-system-reference-guide-for-homeowner.html

Septic systems are a great way to dispose of sanitary waste when they are operated properly. They return water to the ground, replenishing groundwater; and they disperse waste so that the nutrients from the waste can attenuate and bind with soils, thereby not reaching rivers and lakes. However, if they are not working properly, septic systems can be a source of contamination to ground or surface water.

Wetland Protection and Why it Matters for Massachusetts Rivers

Wetlands are perhaps the most diverse and life-abundant areas in a river system. When they function as they should, they provide important habitat to many species. They provide flood storage in times of heavy precipitation, and buffer high flows moving downstream. They are also able to settle contaminants from the water and act as natural filtration systems.

The Neponset River Watershed Association recognized the significance of its saltwater wetland resources and undertook two restoration projects. The area has a long history of industrial development and its wetlands were either completely lost or severely degraded. With multiple partners, NepRWA has been able to restore these resources and bring back important habitat.

https://www.neponset.org/projects/ecological-restoration/salt-marsh/cres

Federal

Wetland Regulation Strategies to protect wetlands are multi-tiered and include federal, state and local governments working together. Section 404 of the Clean Water Act establishes the federal authority to regulate ‘waters of the U.S.’ and creates a permitting program to control dredge and/or fill activities in a wetland. It is administered by the Army Corps of Engineers in cooperation with EPA.

State

The Massachusetts Wetland Protection Act reached beyond the federal requirements and created a program that identifies wetland resources and the protections afforded to them. For each municipality, the local conservation commission implements provisions of the Act by ensuring that wetland activities protect public and private water supply, groundwater supply, land containing shellfish, wildlife habitat, flood control, storm damage prevention, prevention of pollution, and fisheries.

The Massachusetts Rivers Protection Act protects nearly 9,000 miles of Massachusetts riverbanks – helping keep water clean, preserving wildlife habitat, and controlling flooding. The law creates a 200-foot riverfront area that extends on both sides of rivers and streams. In certain urban areas, the riverfront area is 25 feet.

The law did not create a new permitting process, but rather built on the strength of existing procedures under the Wetlands Protection Act. The local conservation commission or the state Department of Environmental Protection (MassDEP) reviews projects to ensure that the riverfront area is protected for the eight interests in the Wetlands Act. The law also establishes the policy of the state to protect the natural integrity of rivers and to encourage and establish open space along rivers.
http://www.mass.gov/eea/agencies/massdep/water/regulations/massachusetts-rivers-protection-act-about.html

Local

Municipal Conservation Commissions, a Massachusetts innovation, were created by a 1957 act of the state legislature, enabling towns to establish them by a vote of the local legislative body. The Wetland Protection Act, enacted in 1972, significantly increased the responsibilities of the commissions and requires a more advanced level of expertise than commissioners had needed previously.

The Berkshire Environmental Action Team has compiled a thorough explanation of the wetland protection regulatory history as well as current framework in Massachusetts. Check these links:

http://www.thebeatnews.org/BeatTeam/history-federal-wetland-protection/

http://www.thebeatnews.org/BeatTeam/agencies-regs/laws-and-regs/wetlands-protection-act-1/

The Massachusetts Association of Conservation Commissions also has a wealth of information about the Wetland Protection Act, including model bylaws for communities wishing to strengthen their wetland protection, and a guidebook (available for purchase): http://maccweb.org/resources.html

Water Quantity and Why it Matters for Massachusetts Rivers

Maintaining sufficient water in our rivers and streams to support natural species, habitat, and river recreation is an important goal for the Massachusetts Rivers Alliance and its members. There are many competing demands for water use from direct river withdrawals and also from groundwater resources that are hydrologically connected to river waters. It is an ongoing challenge for the state to balance these demands while also providing adequate streamflow for wildlife and habitat. Especially in the eastern portions of Massachusetts where population continues to grow and demand for water with it, natural streamflow is threatened, and has led to degraded fisheries, wetlands, water-based recreation and compromised water supplies.

Federal

The federal government doesn’t regulate water quantity (stream flows) or drinking water quality, and responsibility for implementing the federal Safe Drinking Water Act (1974) has been delegated to the states.

State

The need for water in eastern Massachusetts was recognized years ago, when the Quabbin Reservoir in western Massachusetts was built in the 1930’s to supply drinking water to Boston and surrounding towns. This was, and continues to be, the largest interbasin transfer of water within the state. The Massachusetts Water Resources Authority’s website has a good history of the development of its water system, including the Quabbin: http://www.mwra.com/04water/html/hist1.htm

The purpose of the Interbasin Transfer Act (1984) is to assure that any transfer of water or wastewater from a river basin protects the water-dependent resources of the donor basin. It is administered by the Massachusetts Water Resources Commission, and though it does not prohibit such transfers, it requires a review. More information can be found at: http://www.mass.gov/eea/agencies/dcr/water-res-protection/interbasin-transfer-act/

The purpose of the Water Management Act, passed in 1986, is to regulate water withdrawals so that Massachusetts has sufficient water to provide for its various needs, including the needs of the environment. All water users seeking to withdraw 100,000 new or additional gallons per day or more must apply for a permit from MassDEP.The duration of the permits is 20 years, with five-year reviews, and permits are issued on a rotating, watershed-wide basis in the state’s 28 major river basins. Water suppliers must comply with certain permit conditions, such as water use restrictions during droughts, and requirements to control “unaccounted for water use.” Municipalities can’t use more water than the Department of Conservation and Recreation (DCR) predicts they will need within the 20-year permit period, according to that agency’s Water Needs Forecast for each town.

The exceptions to these rules are “registered” water uses, which were existing uses grandfathered in when the Water Management Act was passed in 1986. About 80% of the state’s water use, including the Massachusetts Water Resources Authority’s water use, is registered. Registered water users do not need permits, and are not currently subject to the same kinds of requirements. MassDEP would need to promulgate new regulations in order to require these users to comply with conservation conditions, but this would not require a legislative change. Registrations must be renewed every 10 years.

New regulations for the Water Management Act were promulgated in 2014, as a result of a nearly five-year long multi-stakeholder “Sustainable Management Initiative,” in an effort to better balance human water demand against the needs of the environment for water, and to prevent streams from drying up in the summer due to excessive water use. The new regulations created new “Sustainable Yields” for each basin that river advocates feel are unrealistically large (and not sustainable). The new regulations also created new rules requiring large water users impacting streams to decrease their water use, and communities seeking large increases to “mitigate” their use by implementing water recharge projects or other actions to improve stream health.

You can find information about the Sustainable Water Management Initiative, including scientific reports upon which the new policy is based, and watershed maps here: http://www.mass.gov/eea/waste-mgnt-recycling/water-resources/preserving-water-resources/sustainable-water-management/

You can find the Water Management Act, its regulations, policies, and Guidance, here: http://www.mass.gov/eea/agencies/massdep/water/watersheds/water-management-act-program.html

Water Conservation – Massachusetts created a set of Conservation Standards in 2006. These are periodically updated.

http://www.mass.gov/eea/docs/dcr/watersupply/intbasin/waterconservationstandards.pdf

Stream Continuity and Why It Matters for Massachusetts Rivers

Animals that live in or along rivers and streams need to be able to move within and along these streams in order to survive (and often, reproduce). Dams and roads serve as often insurmountable barriers to wildlife movement, with severe impacts on the health and viability of our wildlife populations. For more detail on the ecological importance of stream continuity, visit this excellent site: https://www.streamcontinuity.org/aquatic_connectivity/index.htm

The Massachusetts Rivers Alliance organized a series of six workshops for municipalities across the state, together with members of the River Continuity Partnership in 2013; the presentations are available in our online document library: http://massriversalliance.org/resources/document-library/

Massachusetts is part of a larger North Atlantic Aquatic Continuity Collaborative working together on these issues. More information is available at: https://streamcontinuity.org/MA/index.htm

Dams

Massachusetts has over 3,000 small dams on it waterways. Many of these are old, built to support mills or to generate hydropower, and are not actively used today. Some of them pose a threat to public safety and are a burden for owners to maintain. The dams have created a lot of ponded habitat, at the expense of free flowing river habitat. Massachusetts is working with many local entities and nonprofit partners to remove some of these dams and restore the natural river ecosystem. A coalition of local partners, for example, has worked with the state to restore the Miller River, a tributary to the Taunton. Two dams have been removed and fish passage was added to another dam. Learn more at: http://savethetaunton.org/issues/fishpassage.htm

In 2013 Massachusetts created the Dam and Seawall Repair Program to address the public safety issues posed by deteriorating dams and seawalls. A grant program was established to provide funds for removal or repair.
http://www.mass.gov/eea/waste-mgnt-recycling/water-resources/preserving-water-resources/water-laws-and-policies/water-laws/draft-regs-re-dam-and-sea-wall-repair-or-removal-fund.html. The first round of grants were made in October 2015 and included over $600K for removal of a dam on the Westfield River. The highest priority dams for removal in this program are those whose removal would increase public safety and restore priority aquatic habitat.

Bridges and Culverts

Highway engineers know full well the challenges of sizing a culvert under a roadway to channel streams. If the culvert design does not accommodate high flows in the stream (and these high flows are increasing with climate change), flooding and erosion occurs. Fish and other wildlife may be unable to use the stream or streambed and become displaced. The goal of restoring river continuity is to reduce impediments to movement of fish, wildlife and other aquatic life that use the river corridor to travel. The River Continuity Partnership is a collaborative effort with the state’s Division of Ecological Restoration (part of the Department of Fish and Game), the University of Massachusetts Extension, The Nature Conservancy, and other nonprofit and agency partners. The Partnership has developed several guidance documents useful to project engineers and conservation commissions to assess culverts, and also a handbook to guide culvert construction. The guidelines are required as part of Army Corps of Engineers permits for dredge and fill in a stream. This page has links to the handbook and other guidance.
http://www.mass.gov/eea/agencies/dfg/der/aquatic-habitat-restoration/river-restoration/river-continuity-program.html

Wild and Scenic Rivers in Massachusetts

The National Wild and Scenic Rivers System was created by Congress in 1968 to preserve certain rivers with outstanding natural, cultural, and recreational values in a free-flowing condition for the enjoyment of present and future generations.

Federal

The Wild and Scenic Rivers Act was passed by Congress in 1968 in response to the damming of America’s spectacular rivers. The Act, among other things, protects a designated river’s free flow. The undammed sections of three rivers have been designated by Congress as National Wild and Scenic Rivers because of their ‘outstandingly remarkable’ resources. The Sudbury, Assabet and Concord Rivers (considered one river system), Taunton, and Westfield have each been designated, and the Nashua River is currently being studied for inclusion in the system. The Wild and Scenic River System is a federal program that recognizes and helps to protect river resource values. Each of these rivers is a ‘partnership river,’ meaning that management for the program is shared in partnership with state, local and non-profit entities. A committee comprising each of these rivers was established when the river was designated, and reviews projects, develops education and outreach programs, and supports monitoring and other studies.

While the designation itself provides some impetus to care for the river resources, the Wild and Scenic Rivers Act also affords some added statutory protection for these rivers from any federal project that could harm the river’s free flow or other “resource values.” Federal projects are those that require a federal permit, federal funding, or are carried out by a federal agency. These commonly include bridge construction or rehabilitation that affects the river banks, requires dredging or otherwise requires a permit from the Army Corps of Engineers (CWA Section 404 permit), wastewater treatment plant permits, NEPA reviews, and cell tower placements that require FCC approvals.

More information is available at

http://www.rivers.gov
http://www.nps.gov/pwsr/index.htm