Bill H.255 187th (2011 - 2012)
An Act relative to sustainable water resources
By Mr. Smizik of Brookline, a petition (accompanied by bill, House, No. 255) of Frank I. Smizik and others relative to establishing standards for restoring and maintaining stream flows, water levels and hydrologic regimes that protect natural aquatic life in rivers and streams. Environment, Natural Resources and Agriculture.
Whereas, the Commonwealth’s water resources are public resources that require sustainable management practices for economic growth, the well being and safety of our citizens, and protection of the natural environment; and
Whereas, it is the policy of the Commonwealth to protect the chemical, physical and biological integrity of its surface waters and their beneficial uses for the citizens of Massachusetts; and
Whereas, natural stream flows and adequate water levels are necessary for protection and procreation of fish and wildlife; maintenance of aquatic ecosystems, support of recreational activities; preservation of aesthetic values; protection of groundwater and public water supplies; the reduction of pollution; and to guard against climate change impacts; and
Whereas, it is in the public interest to adopt criteria and regulations to protect and restore stream flows and water levels, and for communities to create sustainable water resource funds.
SECTION 1. Section 2 of Chapter 21G of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by inserting after “Department” the following definition:-
“Division”, the division of fisheries and wildlife.
SECTION 2. Section 3 of said chapter 21G, as so appearing, is hereby further amended by inserting, in line 67, after the phrase “chapter twenty-one”, the following sentences:—
“Pursuant to chapter 30A, the department, after consultation with the advisory committee and with the approval of the commission and the director of the division, shall adopt, and thereafter from time to time may amend, regulations establishing standards for restoring and maintaining stream flows, water levels and hydrologic regimes that are protective of natural aquatic life for all rivers and streams in the commonwealth and ensure a balance among competing water withdrawals and uses, as well as preservation of the water resource itself. Said regulations, which shall incorporate the criteria, goals and conditions established by the division pursuant to section 42A of chapter 131, shall be promulgated within 1 year of the division’s establishment of the criteria and shall be used in the administration of this chapter. The department’s regulations shall allow the department in consultation with the division to establish such standards protective of natural aquatic life for a specific river or stream.”
SECTION 3. Section 7 of said chapter 21G, as so appearing, is hereby further amended by inserting at the end thereof the following sentence:-
(11) All feasible means to avoid, or if not possible, to minimize and mitigate impacts of the withdrawal on the natural environment have been taken.
(12) Consistency with the standards adopted by the department pursuant to section 3.
SECTION 4. Section 8 of said chapter 21G, as so appearing, is hereby further amended by inserting, in lines 21-22, after word “applicant” the following sentences:-
(10) A demonstration that all feasible means to avoid, or if not possible, to minimize and mitigate impacts of the withdrawal on the natural environment have been taken or will be taken. Mitigation shall occur upstream in the same sub-basin as the withdrawal to the maximum extent practicable, and within the same basin as the withdrawal if such impacts cannot be offset in the same sub-basin. Permittees may enter into agreements with third parties, including the Department of Fish and Game, to implement mitigation required herein.
SECTION 5. Section 38 of chapter 40 of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by inserting, after the second paragraph, the following sentences:-
Notwithstanding any general or special law to the contrary, no source of water supply and no lands necessary for protecting and preserving the purity of the water shall be sold by a city or town to a private corporation without first obtaining the advice and consent of the department of environmental protection.
SECTION 6. Section 39J of chapter 40 of the General Laws, as so appearing, is hereby amended by inserting, in line 15, after the word " protection," the following words:- “all costs or measures to ensure the long-term sustainability of the water supply,”.
SECTION 7. Said chapter 40, as so appearing, is hereby further amended by inserting after section 39L the following section:-
Section 39M. Establishment of Sustainable Water Resource Fund.
Notwithstanding any general or special law to the contrary, a city, town, board of water or sewer commissioners, officers performing like duties, or water or sewer district may collect a reasonable fee to be used exclusively to offset and remedy impacts of water withdrawals, sewering, or impairment of recharge of groundwater on the natural environment through depletion of ground or surface waters, and to sustain the quantity, quality and ecological integrity of waters of the commonwealth. Such measures for water return or water loss prevention shall include without limitation, local recharge of stormwater and wastewater, reuse of water, removal of infiltration and inflow, water savings achieved by retrofitting existing development with low impact development methods or water-saving devices, dam removal and land acquisition only for 1) wellhead protection of a public water supply or 2) for siting a decentralized wastewater treatment facility.
The fee, which may be based on retaining within the basin or saving at least one gallon, but no more than ten gallons, for every gallon of increased water or sewer demand, or net impairment of recharge shall be assessed in a fair and equitable manner, and separate uniform fees may be established for residential and commercial uses.
All such fees shall be deposited in a separate account classified as a "Sustainable Water Resource Fund." This Fund shall not be used for any purpose not provided in this section. The Fund may also receive monies from public and private sources as gifts, grants, and donations to further water conservation, water return or water loss prevention; from the federal government as reimbursements, grants-in-aid or other receipts on account of water infrastructure improvements; or fines, penalties or supplemental environmental projects. Any interest earned from whatever source shall be credited to and become part of said Fund.
SECTION 8. Chapter 40 of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by adding the following section:
(a) Any city or town which accepts the provisions of this section may elect to acquire by gift, purchase, eminent domain or otherwise, any dam, as defined by section 44 of chapter 253 of the General Laws, located within the town, including any real property appurtenant thereto, if such dam and any appurtenant real property is not at the time of such acquisition owned or held in trust by the commonwealth. In connection with such an acquisition the town may, subject to appropriation, repair, reconstruct and make improvements to a town-owned dam as may be necessary, in the judgment of the board of selectmen, or the town council, each manager in a city having a Plan D or Plan E form of charter or the mayor, with the approval of the city council or board of aldermen in any other city, to maintain, repair or improve such dam, and to accept and expend grants or gifts for such purposes in accordance with section 53A of chapter 44 upon approval of the board of selectmen without further appropriation.
(b) Upon a two-thirds vote of the voters present and voting at a meeting duly called, the municipality or public authority may borrow funds for the purposes authorized in this section. Any such borrowing shall be repaid within 40 years of its date of issue, and shall be outside the limit of indebtedness prescribed in section 10 of chapter 44. Except as provided in this act, any borrowing pursuant hereto shall be subject to the requirements of said chapter 44.
(c) Any dam owned by the municipality or public authority shall constitute public improvements for purposes of chapter 80 and, subject to the approval of the town, the selectmen, or the town council, each manager in a city having a Plan D or Plan E form of charter or the mayor, with the approval of the city council or board of aldermen in any other city, may assess betterments to pay any and all costs, of or relating to, acquiring, owning, maintaining or improving any such dam. Such betterments may be assessed upon properties benefiting from the acquisition, ownership, repair, maintenance or improvement of such a dam and in such amounts as the authorized board or official shall determine. Except as otherwise provided by this act, any betterment so assessed shall be subject to said chapter 80. Any betterment assessed pursuant to this act may be apportioned for a maximum term of 40 years.
(d) Notwithstanding any general or special law to the contrary, the municipality or public authority shall have no liability for or related to the presence, release or threat of release of oil or any hazardous material with respect to any dam or dams acquired by the town in accordance with section that occurred prior to the date any such dam or dams were acquired by the town.
SECTION 9. Chapter 131 of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by inserting, after section 42, the following section:-
Section 42A. Consistent with Sections 3 of Chapter 21G of the General Laws, which provides for establishing a mechanism for managing ground and surface water in the commonwealth as a single hydrological system and ensuring, where necessary, a balance among competing water withdrawals and uses and that factors are considered, the division shall establish:
(1) Aquatic habitat criteria that define specific attributes necessary to maintain and restore stream flows, water levels and hydrologic regimes that are protective of natural aquatic life for all rivers and streams in the commonwealth. Such criteria shall be based on the best scientific evidence and methodologies available and shall be based on and provide for the natural variation of stream flows, and water levels adequate to ensure their chemical, biological and physical integrity. The criteria shall:
(a) Protect and restore the natural hydrological cycle and its natural variability including, but not limited to its seasonality, magnitude, frequency, duration, timing and rate of change.
(b) Be based to the extent practical on the site specific attributes of water sources and the river and coastal watersheds within which they are contained and shall provide, to the extent possible, site-specific guidelines and monitoring requirements at the appropriate ecologic and hydrologic scales.
(c) Include specific criteria designed to protect the most limiting hydrologic condition at which water quality criteria must be applied at the appropriate ecological scale in rivers and streams with permitted wastewater discharges.
These aquatic habitat criteria shall be based on and support the attainment of aquatic habitat goals for water sources defined at an appropriate ecological scale. The division shall, in consultation with the Department of Environmental Protection, the Department of Conservation and Recreation and the Department of Agricultural Resources, define goals necessary to support aquatic health, defined as native, naturally diverse community of aquatic dependent flora and fauna. These goals shall be based on the best available science about the conditions necessary to support native, naturally diverse communities of aquatic dependent flora and fauna including, but not limited to, fluvial, coldwater and migratory fish, found, or expected to be naturally found, in the water sources and the river and coastal watersheds within which they are found.
The division shall describe and define the range of existing aquatic habitat conditions currently found in Massachusetts, and shall, as necessary, update this condition assessment. Such conditions shall be based on the best available and using appropriate and generally accepted statistical methods.
Within one year of the effective date of this act, the division shall adopt these criteria, goals and condition descriptions for all rivers and streams.
SECTION 10. Definitions.
(a) Section 44 of chapter 253 of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by adding after line 2 the following new definition:“Abandoned”, a dam that has no identifiable owner or a dam whose owner fails to respond to the owner’s obligations under sections 44 to 48, inclusive, based on any emergency action taken by the commissioner pursuant to section 47, and the creation of a lien upon the lot or lots of land on which the dam is situated and upon the buildings and structures on said lot or lots pursuant to section 48.
(b) Section 44 of chapter 253 is further amended by inserting in line 9 after the word “any” the following words: “manmade”
(c) Section 44 of chapter 253 of the General Laws is further amended by inserting in line 17 after the words “property or safety” the following words: “or which could cause significant harm to the aquatic ecosystem”.
(d) Section 44 of chapter 253 is further amended in line 32 by striking the words “environmental management” and inserting in place thereof the following words: “conservation and recreation”
(e) Section 44 of chapter 253 is further amended by adding after the definition of “Owner” the following definition: “Remove,” or “Removal,” the controlled dismantlement or breaching of a dam to the extent that water is not impounded or diverted by the dam and fish passage is no longer impeded and which is dismantled in compliance with applicable laws and regulations of the Commonwealth; provided, that a minimal degree of impoundment needed for agricultural uses to retain wetlands and open water conditions may be allowed following controlled dismantlement or breaching of a dam, while removing any impediment to fish passage or alleviating threats to safety or property.
SECTION 10. Dam Removal.
(a) Section 46 of said chapter 253 of the General Laws, as appearing in the 2010 Official Edition, is hereby amended in line 14 by inserting after the words “to be unsafe” the following words: “or abandoned”
(b) Section 46 of said chapter 253 is further amended in line 22 by inserting after the words “the dam into a safe condition” the following words: “or safely remove the dam”.
(c) Section 46A of said chapter 253 is hereby amended in line 1 by inserting 35 after the word “removed” the following word: “repaired,”
(d) Section 46A of said chapter 253 is further amended by inserting in line 5 after the words “the owner approving” the following words: “or safely removing”
(e) Section 46A of said chapter 253 is further amended by deleting in line 7 the words “life and property,” and inserting in place thereof the following words: “safety, property or the environment.”
(f) Section 47 of said chapter 253 is hereby amended by inserting in line 6 after the words “operational condition,” the following words: “or remove the dam”
SECTION 11. Enforcement.
Section 47 of said chapter 253 is hereby amended by striking in line 22 the words “not to exceed $500” and inserting in place thereof the following words: “up to twenty five thousand dollars.”
SECTION 12. Administration.
Chapter 253 of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by inserting, after section 47, the following section:-
Section 47A. Administration
(a) The commissioner of the department of conservation and recreation (hereinafter referred to as the commissioner), in conjunction with the commissioner of fish and game, the division of fish and wildlife and the riverways program shall on or before July 1, 2011, complete a detailed inventory of all dams on public and private property in the Commonwealth. The commissioner shall update such dam inventory on an annual basis. The commissioner shall submit the inventory in a report to the joint committee on environment, natural resources and agriculture and to the senate and house committees on ways and means. This report shall include the following detailed information:
(1) A comprehensive list of the person, agency, municipality, or entity that owns and operates every dam and the location of every dam where such ownership or operation has been registered with the Office of Dam Safety.
(2) A list of specific owners who have failed to meet regulatory requirements, including but not limited to, registration and inspection requirements.
(3) A classification of the status of all hazardous dams that pose a threat to public health, safety, welfare, and property or the environment and when or whether they have been repaired, including, where applicable, the presence of polluted and/or hazardous underwater sediment present in the retained area of a dam.
(4) A comprehensive list of dams that are abandoned as defined in section 44 of chapter 253 of the General Laws.
(5) A comprehensive list of all dams whose existence, condition or operation pose a threat to freshwater animal and plant and resident or migratory fish species habitat or movement.
(a) The commissioner must ensure Emergency Action Plans are developed for all High Hazard Dams and Significant Hazard Dams, as defined in regulation. An Emergency Action Plan template shall be developed and available for all dam owners. The commissioner shall ensure that necessary local and state dam safety officials have immediate access to such Plans in the event of a potential dam failure.
(b) The commissioner shall develop an inspection schedule, as required by dam safety regulations, to ensure that all High Hazard, Significant Hazard, as Low Hazard Dams, as defined in regulation, are inspected no less than every five years.
(c) The Commissioner shall review the hazard classifications of all dams at least every five years, to ensure the accuracy of the dam classification.
(d) The Secretary of the Executive Office of Environmental Affairs shall ensure capital funds are available for dam assessment, repair and removal of all dams statewide.
(e) The Secretary of Environmental Affairs shall write and implement a $20,000,000 revolving loan fund for private dam owners to inspect, repair, and remove dams, with the assistance of the Secretary of Administration and Finance. Such Fund shall be paid for through the Capital budget.
SECTION 13. Construction.
Nothing in this chapter shall be interpreted in any way to alter or amend any permitting requirements, reporting requirements, allocation procedures, or other requirements set forth in any other provision of the general laws.
Petitioners: Frank I. Smizik, James M. Cantwell, Jason M. Lewis, Sean Garballey, Angelo J. Puppolo, Jr., Linda Campbell, Ruth B. Balser, Stephen Kulik, Peter V. Kocot, James B. Eldridge, William N. Brownsberger, Lori A. Ehrlich, Tom Sannicandro, Joyce A. Spiliotis, Jennifer E. Benson, Paul J. Donato, Jonathan Hecht, Patricia D. Jehlen, Alice K. Wolf, Cheryl A. Coakley-Rivera, Jay R. Kaufman, Louis L. Kafka, Kay Khan, Theodore C. Speliotis, Stephen L. DiNatale