Summary
This Massachusetts Appeals Court decision reviews a facial challenge to Department of Environmental Protection regulations requiring water suppliers with existing withdrawal rights to restrict nonessential outdoor water use during droughts. The court concluded that the regulations govern water consumption rather than the physical act of withdrawal, thereby falling within the agency's broad statutory authority under the Massachusetts Water Management Act. Applying a highly deferential standard of review, the court found the rules neither ultra vires nor arbitrary and capricious, affirming the lower court's judgment on the pleadings.
Topics
Practice areas
Questions Presented
- Whether the regulation § 36.07(2)(c) conflicts with the Massachusetts Water Management Act and is ultra vires
- Whether the regulation § 36.07(2)(c) is arbitrary and capricious
Holdings
- The regulation does not infringe the plaintiffs' entitlement to existing withdrawals and is therefore within the Department's statutory authority.
- The regulation is not arbitrary and capricious; the Department considered relevant factors and acted within its discretion.
Key quotations
“A highly deferential standard of review governs a facial challenge to regulations promulgated by a government agency.” (at 1)
“Section 36.07(2)(c), in other words, is a regulation of use, not withdrawals.” (at 1)
Factual background
The Massachusetts Water Management Act allows water suppliers with pre‑existing withdrawal rights to register and continue withdrawing water at historic volumes. In 2023 the Department of Environmental Protection amended its regulations to require registrants to impose enforceable restrictions on nonessential outdoor water use during droughts. The plaintiffs, a group of registered water suppliers, argued that this requirement infringed their statutory withdrawal rights and was arbitrary and capricious.
Procedural history
The Superior Court granted judgment on the pleadings in favor of the Department of Environmental Protection; the water commissions appealed to the Massachusetts Appeals Court.