Believe It Or Not, Sometimes MassDEP Does Things of Which the SJC Does Not Approve

Those of us who advise clients regarding compliance with environmental regulations have often been in the awkward position of agreeing with clients that the agency position is, shall we say, misguided, yet at the same time advising against legal challenge, because the judicial review deck is stacked so heavily in favor of the agency. (In another time or place, one might ask why this is so.)

Nevertheless, occasionally, the agency loses and, when it does, that loss can be instructive. Yesterday, the Massachusetts Supreme Judicial Court ruled that MassDEP may not impose conditions on registrations under the Water Management Act without first promulgating regulations to guide its discretion in imposing such conditions.

Under the WMA, withdrawals existing as of the date of Act were grandfathered and persons with such withdrawals are allowed to maintain them by registering the withdrawal with MassDEP. Such registrations must be renewed periodically, but MassDEP may not reduce the size of the withdrawal. (New or increased withdrawals, on the other hand, require a permit and are subject to more stringent regulation.)

In the last round of registration renewals, MassDEP began imposing conditions on the registrations in order to increase water conservation. However, while the statute authorizes MassDEP to impose conditions on permits, similar language does not exist with respect to registrations. 

The SJC spent some time discussing MassDEP’s authority to promulgate regulations that would impose conservation requirements on registrants, but made clear that the plain language of the statute did not seem to authorize MassDEP to impose conditions on registrants absent regulations.

What’s the lesson here? With respect to the WMA, it’s “no shortcuts.” If MassDEP wants to impose conservation requirements on registrants, it must do so pursuant to validly promulgated regulations. What’s the broader lesson? Challenging the agency may be an uphill battle, but legislative language does matter and, where the language is clear, the courts will – at least sometimes – enforce it.

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