The Commonwealth of Massachusetts Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900 Boston, MA 02114 Charles D

The Commonwealth of Massachusetts Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900 Boston, MA 02114 Charles D. Baker GOVERNOR Tel: (617) 626-1000 Karyn E. Polito Fax: (617) 626-1081 LIEUTENANT GOVERNOR http://www.mass.gov/eea Kathleen A. Theoharides SECRETARY

March 26, 2021

CERTIFICATE OF THE SECRETARY OF ENERGY AND ENVIRONMENTAL AFFAIRS ON THE ENVIRONMENTAL NOTIFICATION FORM

PROJECT NAME : Cobbs Pond Bedrock Source Development PROJECT MUNICIPALITY : Littleton PROJECT WATERSHED : Concord River EOEA NUMBER : 16309 PROJECT PROPONENT : Littleton Water Department DATE NOTICED IN MONITOR : January 6, 2021

Pursuant to the Massachusetts Environmental Policy Act (MEPA; M.G.L. c. 30, ss. 61-62I) and Section 11.06 of the MEPA regulations (301 CMR 11.00), I hereby determine that this project does not require an Environmental Impact Report (EIR).

Project Description

As described in the Environmental Notification Form (ENF), the project consists of construction of a new water supply source and a pump station adjacent to Cobbs Pond to supply additional drinking water in Littleton. Future water consumption estimates from the Water Capacity Analysis (completed in 2017) indicate the need for additional water to supply the Town of Littleton’s (Town) growing water demands due to increased population and industrial and residential development. The project is proposed to expand the sources of supply, improve water quality, and provide operational flexibility that will increase redundancy and resiliency in the municipal water supply system to meet future demand.

The project includes the installation of three public drinking water bedrock wells referred to as the Cobbs Wells (Cobbs-1, Cobb-2, and Cobbs-3); a 1,000-square foot (sf) pump station which will process water from the three wells using chemical treatment; and approximately 1,100 linear feet (lf) of EEA# 16309 ENF Certificate March 26, 2021

water main from the pump station to the existing water distribution system on Nashoba Road. An existing gravel road, which will be paved, will provide access to the wellfield and pump station.

The Proponent is seeking approval from the Massachusetts Department of Environmental Protection (MassDEP) of a new public groundwater supply source to withdraw up to 0.55 million gallons per day (MGD) of groundwater from the proposed site within the Concord River Basin. Permits and registrations issued by MassDEP’s Water Management Program authorize the Proponent to withdraw an average of 1.464 MGD from six active wells (combined maximum daily approved rate of 2.21 MGD) in the Merrimack River Basin under the Water Management Act (WMA). Actual annual average and maximum withdrawals from 2012 to 2016 ranged from 0.90 to 1.10 MGD and from 1.71 to 1.88 MGD, respectively. Unaccounted for Water (UAW) ranged from 10 to 16 percent and residential per capita usage ranged from 52 and 63 gallons per day (gpd) during that same period. The Proponent is not applying for an increase in its total authorized withdrawal nor expansion of the public water system distribution area.

Project Site

The 7.8-acre project site is located off Cobbs Lane and includes two Town-owned parcels which abut and form the southern shoreline of Cobbs Pond. It consists mainly of forested watershed associated with Cobbs Pond and wetlands. Specifically, the parcels are owned by the Littleton Conservation Commission (LCC) and are subject to a Conservation Restriction (CR) that is held by the Littleton Conservation Trust (LCT), which is a private non-profit entity. The ENF identifies an easement on these parcels for water supply purposes (to be used for water supply and distribution), which is managed and controlled by the Littleton Water Commissioners. The site is accessed from Cobbs Lane.

The site contains the three installed test wells (Cobbs-1, Cobbs-2, and Cobbs-3), which will be the final production wells, and a gravel access road. The proposed wellfield is located within the Concord River Basin. The proposed wells will pump groundwater from the bedrock aquifer. The proposed 400-foot Zone I radii for the wells are currently owned by multiple private and public entities. The Cobbs Wells are located adjacent to Cobbs Pond. Nagog Pond, an Outstanding Resource Water (ORW), is located approximately 1,500 feet to the southeast. A Coldwater fishery (CWF) stream located approximately 2,000 feet southwest of Cobbs-1 flows into Nagog Pond. Five Certified Vernal Pools are located approximately 1,000 to 1,500 feet west and northwest of the Cobbs Wells. The Proponent operates six water supply wells at Spectacle Pond, Beaver Brook, and Whitcomb Avenue, all of which are active.

Environmental Impacts and Mitigation

Environmental impacts associated with the project include alteration of less than one acre of land; creation of less than one acre of impervious area; alteration of approximately 1,000 sf of buffer zone to Bordering Vegetated Wetlands (BVW); construction of 0.3 miles of water mains; and withdrawal of up to 0.55 MGD of water at a new source. As described more fully below, the project will require conversion of Article 97 land in order for the Proponent to gain control of the approximately 21- acre Zone I area. Temporary impacts are associated with the construction period. Measures to avoid, minimize and mitigate environmental impacts include avoiding direct impacts to wetland resource areas, use of an existing access road, and sedimentation and erosion controls during construction.

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The effects of climate change, including changes in precipitation and increases in temperatures may affect the Town’s water supply over time. The Town participates in the Municipal Vulnerability Preparedness (MVP) grant program. The MVP program is a community-driven process to define natural and climate-related hazards; identify existing and future vulnerabilities and strengths of infrastructure, environmental resources and vulnerable populations; and develop, prioritize and implement specific actions the Town can take to reduce risk and build resilience.

Permitting and Jurisdiction

The project is subject to MEPA review and preparation of an ENF pursuant to 301 CMR 301 CMR 11.03(1)(b)(3) and 301 CMR 11.03(4)(b)(1) because it requires an Agency Action and it will result in conversion of land held for natural resources purposes in accordance with Article 97 of the Amendments to the Constitution of the Commonwealth of Massachusetts (Article 97) to any purpose not in accordance with Article 97 and will result in a new withdrawal or expansion of withdrawal of 100,000 or more gpd from a water source that requires new construction for the withdrawal. The project requires the following permits from MassDEP:

• Approval of Pumping Test Report for Source of 70 gallons per minute or greater (BRP WS 19); • Approval to construct a source of 70 gallons per minute or greater (BRP WS 20); • Approval to construct a Water Treatment Facility of 200,000 gpd or more and less than 1 MGD (BRP WS 23C); • Sale or Acquisition of Land for Water Supply Purposes (BRP WS 26); • Water Management Withdrawal Permit (BRP WM 03).

The project will require an Order of Conditions from the LCC (or in the case of an appeal, a Superseding Order of Conditions (SOC) from MassDEP). If the project construction activities disturb one or more acres of land, the project will require a National Pollutant Discharge Elimination System (NPDES) Stormwater General Permit for Construction Activities from the U.S. Environmental Protection Agency (EPA).

Because the Proponent is not seeking Financial Assistance from the Commonwealth for the project, MEPA jurisdiction extends to those aspects of the project that are within the subject matter of required or potentially required Agency Actions and that may cause Damage to the Environment as defined in the MEPA regulations.

Review of the ENF

The ENF includes a description of the project, project plans, an alternatives analysis, the Permit Application for Approval of the Pumping Test (August 25, 2017), and the Source Final Report (August 12, 2020). It identifies measures to avoid, minimize and mitigate project-related impacts. The Proponent submitted supplemental information on February 8, 2021 to respond to comments and requests for additional information identified at the MEPA virtual site visit on January 19, 2021; March 16, 2021 to respond to comments from the Town of Concord (dated March 1, 2021); March 16, 2021 to provide a framework in which to achieve compliance with the Zone I requirements pursuant to the Drinking Water Regulations; and March 25, 2021 to respond to supplemental comments from the Town of Concord (dated March 18, 2021).

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I acknowledge the comments from the Town of Concord which identify concerns with the analysis presented in the ENF regarding the potential impact of the project on Concord’s WMA Registration, particularly with regards to the Massachusetts Supreme Judicial Court (SJC) decision on rights to the waters of Nagog Pond by the Towns of Littleton, Acton, and Concord.1 However, based on a review of the ENF, supplemental information, and comment letters, I do not find that a discretionary EIR is warranted. I note that the issuance of this Certificate does not signify the conclusion of the public engagement process for this project. The WMA and New Source Approval review processes include additional opportunities for public review and comment and MassDEP has sufficient regulatory authority to address outstanding issues during permitting. MassDEP comments do not recommend further MEPA review.

Alternatives Analysis

According to supplemental information, the Proponent conducted an extensive test well exploration program in the 1980s, at which time the Spectacle Pond well was identified as a new source and is now the Proponent’s largest producer of water. While the program also identified a number of other moderately favorable sites, these had minimal yield. Based on a review of aquifer maps available from MassGIS, it was determined that the Proponent already had wells in all of the high-yielding aquifers in Littleton with the exception of one that is located in the center of the Aggregate Industries quarry; however, that site is unavailable for purchase at this time. Subsequently, the Cobbs Pond site was determined to be the best location for installation of highest-yielding wells on a parcel that the Proponent would be able to develop as a new water supply. The only other alternative for supplementing the supply of water to the system is the use of surface water from Nagog Pond, which the Proponent would prefer to avoid at this time.2

The development of bedrock wells at Cobbs Pond was determined to be necessary to provide sufficient water under maximum demand conditions due to rapid growth in town and the reopening of a previously closed commercial beverage plant, which at one time accounted for 25 percent of the Proponent’s daily demand. The plant closed in 2015 but was reopened a few years later as a Pepsi manufacturer. Following consultation with the owner of the beverage plant, it was determined that the plant would soon exceed historical demands. In terms of redundancy, if the Proponent were to remove its largest source from service, it would not be able to meet current maximum day demand. Supplemental information notes that per-and poly- fluoroalkyl substances (PFAS) were found in the largest source water and emergency treatment was required to keep the well in service. The Massachusetts Department of Conservation and Recreation (DCR) completed a Water Needs Forecast in 2017, which identifies an increase in service population and water demand over existing withdrawals by 2034. A Water System Capacity Assessment, completed in 2017, also indicated that the current well sources are insufficient to supply a conservative estimate for maximum day demand for 2037. In addition, the assessment concluded that the wells at Whitcomb Avenue and Spectacle Pond were not operating at their maximum withdrawal capacities due to various issues. Subsequently, the Whitcomb Avenue wells have been replaced and a pump station modification is in progress at that site; and the

1 See Massachusetts Supreme Judicial Court (SJC) Decision dated March 11, 2021 (SJC-12947) Town of Concord vs. Water Department of Littleton & another. 2 Ibid.

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wells at Whitcomb Avenue and Spectacle Pond will soon be treated by a combined water treatment plant at Whitcomb Avenue (EEA# 16151).

As part of the permitting process, MassDEP will determine if the alternatives analysis provided by the Proponent sufficiently demonstrates that there is no feasible alternative to the project that would be less environmentally damaging given that the increased withdrawal will worsen the Groundwater Withdrawal Category (GWC) from GWC 3 (310 CMR 36.22(7)).3

The ENF includes analysis of the following alternatives: No Action; Individual Pump Stations; and the Preferred Alternative. The No Action alternative was rejected because it would not meet the project goal of meeting future demand, improving water quality or improving redundancy and reliability of the water system. The Proponent requires additional sources of supply to keep up with growing water demands in the Town because existing water supplies have reached the limit of their capacities. The Proponent considered construction of individual pump stations for each of the three Cobbs Wells, which would require three separate 1,000-sf structures to house flow measurement and chemical feed systems at each location. This alternative would result in the greatest environmental impact, cost and operation and maintenance (O&M). The Preferred Alternative would construct a single pump station where water from each well can be metered separately prior to combining for a single point of chemical treatment. This alternative minimizes the impacts to the environment as well as capital and O&M costs.

The Source Final Report indicates that the Preferred Alternative (proposed bedrock water supply wells in the Concord River Basin) offers advantages to meeting increased future demand including: existing sources already in all of the high-yielding sand and gravel aquifers in Littleton, except one currently occupied by Aggregate Industries; lower iron and manganese concentrations present in bedrock source water and an additional chlorinated source of water on the far end of the distribution system will improve overall water quality; less impact from bedrock wells on stream flow during critical periods than sand and gravel wells; development of an additional, alternate source of groundwater in a less densely populated part of town is less likely to be impacted by emerging contaminants associated with existing or potential contamination sources (such as PFAS, which has been found in all of the Proponent’s existing sources); and, existing sand and gravel public water supply wells, located on the western side of Town, are located within two stressed basins of the Merrimack River Basin, categorized by the Sustainable Water Management Initiative (SWMI) as a Category 5 (greater than 55 percent net groundwater depletion).

Wetlands and Stormwater

A portion of the project will impact buffer zone to BVW. The LCC will review the project to determine its consistency with the Wetlands Protection Act (WPA), the Wetlands Regulations (310 CMR 10.00), and associated performance standards, including stormwater management standards (SMS). The Notice of Intent should describe work in relation to any wetland resource areas, quantify impacts, and describe best management practices (BMPs) to be included during construction. MassDEP may provide additional comments on the NOI regarding compliance with performance standards pursuant to 310 CMR 10.00.

3 MassDEP’s Approval of the Pumping Test (November 2, 2017) indicates that the proposed withdrawal is located in SWMI subbasin 12047 which is a GWC 3. An increase in withdrawal of only 0.045 MGD will worsen the GWC.

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The NOI should include documentation to demonstrate that source controls, pollution prevention measures, erosion and sediment controls, and the post-development drainage system will be designed in compliance with the stormwater elements of the 310 CMR 10.00, applicable standards, and the Stormwater Management Handbooks. The Proponent should use precipitation data specified in Technical Report 55 (TR-55) or that required by the local municipality, whichever is more conservative, for the purposes of preparing the stormwater analysis. MassDEP comments recommend that the potential impact of increased precipitation frequency and volume due to climate change be considered during the design of the stormwater management system.

Water Supply

MassDEP will review the project for its consistency with the WMA regulations (310 CMR 36.00) and the Drinking Water Regulations (310 CMR 22.00). The Proponent proposes development of a new water supply wellfield at the Cobbs Pond site. The Proponent submitted a BRP WS 19 Pumping Test application (Source Final Report) and a BRP WM 03 WMA Permit application to MassDEP to add the three Cobbs Pond bedrock wells in the Concord River Basin to its authorized withdrawals in the Merrimack River Basin. Additional drinking water applications (e.g. water treatment) are required, in addition to a BRP WS 20 application for approval to construct the sources. The Proponent will be required to address concerns regarding water supply such as production capacity, impact to existing users, and water quality during the permitting process. The Source Final Report for approval of the pumping test was submitted to MassDEP in August 2020. The requested approvable yield from the wellfield is calculated to be 380 gallons per minute (GPM) (0.55 MGD). The Proponent has a WMA Permit for its existing wells in the Merrimack River Basin. The sum of registered and permitted average annual withdrawals of 1.464 MGD. The Proponent is not applying for an increase in its total authorized withdrawal.

MassDEP comments indicate that it will not issue an approval to construct the wells until the Proponent has sufficiently demonstrated ownership or control of the 400-foot Zone I protective radius around each well in accordance with 310 CMR 22.00. The Zone I areas extend across seven parcels with multiple public and private owners; therefore, the Proponent must submit a BRP WS 26 Sale or Acquisition of Land for Water Supply Purposes application to MassDEP. The BRP WS 26 application should describe how the Proponent will obtain ownership or control of the Zone I areas. Ownership or control may include various methods of acquisition, including purchases, CRs, donations, and eminent domain takings. As further discussed below, the Proponent is in consultation with the property owners, MassDEP, and the EEA Division of Conservation Services (DCS) regarding a solution to the complicated land ownership issues involving the Zone I area.

MassDEP authorized a 15-day pump test with a target pumping rate of 750 GPM, which was unable to be sustained (ultimately a pumping rate of 506 GPM was sustained). The pump test was conducted in June 2018. The proposed wells are located on land adjacent to Cobbs Pond. The Proponent conducted an extensive water level monitoring program to assess the effects of pumping the Cobbs Wells on the nearby water resources, including the bedrock aquifer and private wells relying on this source, the sand and gravel (overburden) aquifer, wetlands, and surface waters, including vernal pools, Cobbs Pond, and Nagog Pond, a drinking water reservoir for the Town of Concord. The monitoring program included the installation of water level measurement devices in private wells, and the installation of piezometers, observation wells, staff gauges, and seepage meters.

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Table 5 (Water Level Data) of the Source Final Report indicates that there was no drawdown effect in Nagog Pond due to pumping associated with piezometer (PZ-4), surface water staff gauge (SG- 4, and surface water in Nagog Pond at the Dam. The pumping test data identifies a response in water levels in Cobbs Pond to the pumping of the wells. The Proponent submitted a long-term monitoring plan for Cobbs Pond as part of the pumping test report that will be reviewed by MassDEP as part of the WMA application review process. MassDEP has performed a preliminary review of the pumping test and indicates that any impacts to Cobbs Pond can be evaluated through a long-term monitoring plan and the WMA permit process. MassDEP comments do not recommend further MEPA review.

Eleven private wells were also monitored during the pumping test and six of the eleven private wells experienced drawdown (all six of these wells are located less than 2,400 feet from the Cobbs Wells). The pumping test report estimated water levels in the private wells after 180 days of pumping with no effects from precipitation (i.e. no recharge), compared those levels to the well depths for the six wells, and the Proponent concluded that there is little risk of dewatering a private well below the pump intake. However, the Proponent is committed to taking appropriate measures to mitigate this occurrence, including resetting pumps to a lower depth, deepening wells, or providing a connection to the Proponent’s water system for the impacted private well owners.

Analysis of water samples indicates that the source yields water suitable for public consumption, with the exception of manganese, which exceeds the Secondary Maximum Contaminant Level (SMCL).4 Radon is not currently regulated, however the action level defined by MassDEP recommends treatment for concentrations above 10,000 picocurries per liter (pCi/L). While the blended levels measured at the well site do not exceed the recommended limits, provisions for the incorporation of an aeration tower will be included in the design of the pump station for the removal of radon. The proposed pump station will also include chemical addition for pH adjustment, disinfection, corrosion control, and sequestration of iron and manganese. The pump station will be designed to accommodate an expansion to provide filtration for the removal of iron and manganese if required. The Proponent also sampled for PFAS for which MassDEP recently proposed a Maximum Contaminant Level (MCL) of 20 parts per trillion (ppt). Of the six PFAS compounds now regulated by MassDEP, only one was detected at concentrations of 3 ppt (Cobbs-1) and 2 ppt (Cobbs-3).

Article 97

As previously mentioned, MassDEP requires a public water supplier to own or control the Zone I protective radius around a groundwater source, which, in this case, is a 400-foot radius around each of the three proposed Cobbs Wells. Property within the Zone 1 Area (the “Property”) includes seven parcels and lots of land including: Parcels B and D, Lot 9, Lot 10, Lot 11, Lot 13 and Lot 14 by reference to the Sketch Plan provided in supplemental information. 5 The Property is also subject to various CRs (Primary CR and four additional CRs). Furthermore, it was determined that most of the lots and parcels comprising the Property (except two privately held Lots 13 and 14) are deemed Article 97

4 A secondary standard is one that addresses aesthetic concerns as opposed to public health concerns. 5 Information relative to parcels of land and easements is identified on a set of plans entitled “Open Space Development Plan of Land in Littleton, Mass. Prepared for Emily B. Cobb Trust B” dated April 2001 recorded with the Registry as Plan No. 1180 or 2001 (the “Cobb Plan”) with particular attention to referenced Parcels B (including portions of Cobb’s Pond), and D, Lot 9, Lot 10, Lot 11, Lot 13 and Lot 14 (collectively the “Property”).

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land. Any disposition (lease, conveyance, grant of easement, etc.) of land and/or proposed change in use of land subject to Article 97 will require a 2/3 vote of the Massachusetts Legislature approving of such disposition or change in use through the filing of special legislation.

The Proponent provided a framework to establish how it will achieve compliance with and implementation of Zone I requirements pursuant to 310 CMR 22.00. The framework is based on review of information authored by Miyares Harrington dated January 16 and March 7, 2018 to MassDEP focusing on review of records maintained at the Middlesex South District Registry of Deeds (the Registry) to parcels of land and easements.6 The framework proposes to obtain ownership or control of the Zone I Area and operational management of the Zone I requirements through the following:

1. Collaborate with the LCT and other stakeholders (the Town, LCC, etc.) to amend the Primary CR to: add LWD as a holder; add the Zone I requirements to the stated purposes and prohibitions of the Primary CR; remove any provisions in the Primary CR in conflict with the Zone I requirements; vest in the Proponent, exclusively, all control and management responsibilities of the Zone I requirements and ownership of all of its public water supply appurtenances and equipment; establish sufficient Zone I Area protections; and limit the property description referenced in the Primary CR to the Zone 1 Area. The Primary CR property may be amended to either add reference to the Zone I Area or limit it entirely to the Zone I Area depending on discussions with the LCT. In either case the result to grant the Proponent control over the Zone I Area is not changed. 2. Review the other CRs (CR-2, CR-3, CR-4 and CR-5) to ensure no provision or value will conflict with the Zone I requirements and collaborate with other stakeholders (the Town, LCC, etc.) to create necessary consistencies. 3. The Town is the holder of CR-4. As it was created in 1978, it may need to be subordinated to the Primary CR which was created in 2002. Review all other CRs to ensure no other subordinations are needed. 4. Undertake several procedural steps and approvals in accordance with each organization’s legal requirements by the LCT (corporate/trust authority), the Town (Town Administrator/Board of Selectmen/Town Meeting approvals), LCC (vote by a necessary quorum of Commission members) and executions of instruments by private property owners. 5. Once all Stakeholders are aligned, the Proponent will engage in the Article 97 process involving the Littleton legislative delegation and will simultaneously move toward completing the local approval processes with the LCT, the Town and LCC and obtaining the proper permissions by the private property owners to ensure the framework is in place, and on track to ensure passage of the required Article 97 special legislation to accomplish amending the Primary CR enabling completion of the project.

Comments from the DCS identify support for this approach and confirm they will work with MassDEP to address concerns its concerns. MassDEP comments indicate that the Proponent’s proposed framework for addressing ownership/control issues in the context of Article 97 jurisdiction reflects the parties’ recent discussions and MassDEP concurs with DCS that the approach seems appropriate. Comments from the LCT indicate that it looks forward to collaborating with the Proponent in achieving their goal of demonstrating control over the Zone I and working with stakeholders to ensure that

6 Ibid.

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conservation values are preserved. In accordance with the EEA Article 97 Policy, the Proponent will be required to demonstrate that there are no other alternatives available, that the minimum necessary area of Article 97 land will be converted and that appropriate mitigation will be provided.

Construction Period

All construction and demolition (C&D) activities should be managed in accordance with applicable MassDEP’s regulations regarding Air Pollution Control (310 CMR 7.01, 7.09-7.10), and Solid Waste Facilities (310 CMR 16.00 and 310 CMR 19.00, including the waste ban provision at 310 CMR 19.017). The Proponent will install erosion and sedimentation BMPs. The project should include measures to reduce construction period impacts (e.g., noise, dust, odor, solid waste management) and emissions of air pollutants from equipment, including anti-idling measures in accordance with the Air Quality regulations (310 CMR 7.11). I encourage the Proponents to require that its contractors use construction equipment with engines manufactured to Tier 4 federal emission standards, or select project contractors that have installed retrofit emissions control devices or vehicles that use alternative fuels to reduce emissions of volatile organic compounds (VOCs), carbon monoxide (CO) and particulate matter (PM) from diesel-powered equipment. Off-road vehicles are required to use ultra-low sulfur diesel fuel (ULSD). If oil and/or hazardous material are identified during construction, the Proponent should notify MassDEP in accordance with the Massachusetts Contingency Plan (MCP; 310 CMR 40.0000). The Proponent should prepare a spills contingency plan. All construction activities should be undertaken in compliance with the conditions of all State and local permits.

Conclusion

The ENF has adequately described and analyzed the project and its alternatives, and assessed its potential environmental impacts and mitigation measures. Based on review of the ENF and comments received on it, and in consultation with State Agencies, I have determined that an EIR is not required. MassDEP has sufficient regulatory authority to address outstanding issues during permitting.

March 26, 2021 Date Kathleen A. Theoharides

Comments Received

03/01/2021 Town of Concord (supplemental comments 03/18/2021 and 03/19/2021) 03/16/2021 Littleton Conservation Trust (LCT) 03/16/2021 Robert O’Connor, EEA Division of Conservation Services 03/16/2021 Massachusetts Department of Environmental Protection (MassDEP)/ Central Regional Office (CERO)

KAT/PPP/ppp

March 1, 2021

VIA ELECTRONIC AND FIRST CLASS MAIL

Ms. Purvi P. Patel, EIT Massachusetts Environmental Policy Act (MEPA) Office Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900 Boston, MA 02114 [email protected]

Re: Littleton – Cobbs Pond Bedrock Source Development, EEA No. 16309

Dear Ms. Patel:

On behalf of the Town of Concord (“Concord”), I am submitting comments on the Littleton Water Department’s (“LWD”) Environmental Notification Form (“ENF”) for the Cobbs Pond Bedrock Source Development Project (the “Project”) for three bedrock public water supply wells located near Cobbs Pond in Littleton (the “Cobbs Pond Wells”).

Concord has a vested interest in the Cobbs Pond Wells, because the three proposed bedrock wells are located within the same aquifer as Nagog Pond, which is part of Concord’s public water supply. Nagog Pond is located in the towns of Acton and Littleton. Concord received an authorization to use Nagog Pond as a water supply from the General Court in Chapter 201 of the Acts of 1884 (the “1884 Act”). Concord has used Nagog Pond as an active water supply since 1909. Following the adoption of the Water Management Act in 1985 (the “WMA”), Concord received a Registration for its withdrawal from Nagog Pond.

Concord’s concern about this Project is not trivial. Concord has relied on Nagog Pond as a water supply for over a century, and it has been aware of LWD’s interest in exploring bedrock wells near Cobbs Pond for a decade. For the past ten years, Concord has tried to offer frank and direct advice to LWD about its long-range plans and the importance of selecting appropriate analytical tools and frameworks to assess the viability of bedrock wells at this location, given the regional hydrology and the relationship between the groundwater in bedrock fractures and the source waters for Nagog Pond. As stated in its March 21, 2011 letter to LWD, Concord has been willing to cooperate with LWD and provide data and information that might aid LWD in its assessment of the viability of the Cobbs Pond Wells as a water supply, but always “with the understanding that such effort does not compromise Concord’s long-range water supply interests and investments.” A copy of Concord’s March 21, 2011 letter is attached as Exhibit 1.

Ms. Purvi P. Patel, EIT March 1, 2021 Page 2

Given the importance of Concord’s water supply at Nagog Pond and the proximity of the Cobbs Pond Wells, Concord closely followed Littleton’s plans and consistently communicated its concerns about the potential impact the Cobbs Pond Wells might have on Nagog Pond. In 2017, as LWD moved forward with its planning for a pumping test, Concord continued to provide constructive comments to influence the analytical exercise, so it would yield objective data that all parties could assess and rely on to understand the impacts of the proposed wells in this interconnected hydrologic system. In its comment letter, dated June 22, 2017, Concord expressed strong objections [and] reservations given that “Cobbs Pond and Nagog Pond…will be major contributors of water to the [Cobbs Wells] relative to other surface water bodies in the area.” A copy of Concord’s June 22, 2017 letter is attached as Exhibit 2. Concord submitted many other comment letters to provide information and technical support to LWD and the Massachusetts Department of Environmental Protection (“MassDEP”), as the parties worked to develop a proper pumping test protocol, and how to best analyze the pumping test data in order to understand and quantify the impact from the proposed Cobbs Pond Wells on Nagog Pond and Cobbs Pond. The following selection of Concord’s comment letters are attached as reference exhibits:

Exhibit # Comment Letter by Date 1 March 21, 2011 2 June 22, 2017 3 September 27, 2017 4 November 13, 2018 5 November 21, 2018 6 December 10, 2018 7 February 1, 2019 8 February 15, 2019

In response to Concord’s comment letters, LWD disputed the extent to which Concord’s WMA Registration and its protected right to withdraw water from Nagog Pond could reach and apply to LWD’s proposed bedrock wells near Cobbs Pond. In addition, in the past, LWD has argued that, even if the Cobbs Pond Wells intercept and diminish flow to Nagog Pond, that impact to Nagog Pond was permissible, because the Town of Littleton was granted a reservation to withdraw water from Nagog Pond under the 1884 Act. Eventually, this intractable dispute led Concord to seek a declaratory judgment in the Land Court, seeking a determination whether Concord’s right to withdraw water from Nagog Pond under its WMA Registration was superior to any claim Littleton might have under the 1884 Act. On October, 11, 2019, Associate Justice of the Land Court, Jennifer S.D. Roberts, ruled that “[b]ased on the language of the WMA and its history, this court concludes both that the 1884 Act is repugnant to and inconsistent with the WMA and that the WMA is a comprehensive statute that was designed to address a state-wide problem−the preservation and allocation of water resources−for a resource that does not respect municipal or other political boundaries.” A copy of the Decision is attached as Exhibit 9. LWD and the Town of Acton appealed the Land Court Decision to the Supreme Judicial Court. The SJC heard oral arguments on the matter on December 2, 2020. A decision is anticipated later this year.

Ms. Purvi P. Patel, EIT March 1, 2021 Page 3

Concord’s Registered Withdrawal Must be Respected

The Decision in the Land Court, and the likely conclusion of the SJC, reinforces Concord’s emphasis on the importance of its WMA Registration and the paramount concern expressed by the state when it adopted the WMA to establish a “mechanism for managing ground and surface water in the commonwealth as a single hydrologic system.” M.G.L. c. 21G, § 3. Concord’s requests to MassDEP throughout the Cobbs Well permitting process have been to encourage MassDEP to exercise the authority the General Court expressly gave to MassDEP through the WMA, to assess impacts to prior approved withdrawals – with particular consideration for those withdrawals, like Concord’s withdrawal from Nagog Pond, which were grandfathered and protected by obtaining a registration under Section 5 of the WMA. M.G.L. c. 21G, § 5.

The issue of the impact from the proposed Cobbs Pond Wells on a Registered withdrawal should be a major concern for the review by the MEPA Office. Though LWD provided a copy of its submittals to MassDEP for New Source Approval and a WMA Permit, LWD’s presentation of the information was not sufficient to assess the nature and extent of the proposed Cobbs Pond Wells on Concord’s WMA Registration. Pursuant to 301 CMR 11.06(5), the Secretary should request additional information from LWD regarding the impact of the Project on Concord’s WMA Registration.

In response to comments and recommendations from Concord during the development of the pumping test protocols, LWD repeatedly attempted to discredit or deflect the analysis from Concord’s consultants, and claimed that the operation of the Cobbs Wells would not infringe on Concord’s WMA Registration. For example, as noted in Concord’s letter, dated February 15, 2019, following the presumed productive technical consultation between the parties on January 24, 2019, Concord observed that LWD made public comments attempting to minimize the potential impact from the Cobbs Wells with the following statements:

a. “Littleton has no intention of operating the Cobbs Wells on a daily basis.” b. “The Cobbs Wells would serve as a supplementary source in order for Littleton to optimize its well pumping strategy.” c. “There is therefore very little risk that the [Area of Influence] within the Nagog Pond watershed would ever expand beyond the area shown in the attached figure, since Littleton would not likely operate these wells for more than 15 continuous days before providing time for recharge.”

Though LWD made these “concessions” during the review of the pumping test information, these representations were not included in either the ENF, the New Source Approval, or MWA permit application. On the contrary, LWD’s WMA Form A General Information seeks approval to withdraw 0.55 MGD every day for 20 years:

Ms. Purvi P. Patel, EIT March 1, 2021 Page 4

Similarly, in the ENF, LWD describes the proposed uses as having an “average daily withdrawal of 0.55 mgd.”

In contrast, as noted in Concord’s February 15, 2019 letter (a copy of which is attached as Exhibit 8), these modest measures offered by Littleton would not achieve meaningful protections. Concord observed that “Littleton has not demonstrated that there will not be long-term impact to Nagog Pond. The extent of the cone of depression due to the Cobbs Wells over the long term is not represented by the pumping test results alone, and unquestionably will be larger than observed in this test. No one can determine from the information presently at hand the magnitude of the impact that the wells will have on Nagog Pond, but one can conclude that it will occur and that it will likely be substantially larger than observed during this test.” (emphasis added)

Concord’s comments from February 15, 2019 still hold today. LWD has not performed a sufficient analysis of the continuous operation of the Cobbs Wells on Cobbs Pond or Nagog Pond.

Despite Concord’s record of commenting and proposing approaches that would yield a collaborated technical effort, with costs shared between the two communities, LWD has gone forward with this ENF and its New Source Application, without putting forth sufficient effort to quantify the impact that operation of the proposed Cobbs Pond Wells will have on Nagog Pond or Cobbs Pond. Accordingly, Concord has decided to undertake a separate hydrologic study of its own. Concord is proceeding with the work and will either provide supplemental comments to LWD and MassDEP during the Department’s evaluation of the Application or, alternatively, preserve the data and technical opinion for submission during the anticipated adjudicatory hearing to challenge any grant of a New Source Approval and/or WMA Permit, which will infringe on the available waters in Nagog Pond, and correspondingly disrupt Concord’s exercise of its WMA Registration.

Even without the more advanced study of the hydrologic phenomena observed in the pumping test, and analysis of the long-term repercussions of continuous operation of the wells as proposed in the ENF, the data provided in LWD’s Source Final Report, Application for Approval of Pumping Test for a New Source 70 gpm or Greater, prepared by Geosphere Environmental Management, Inc. (“Geosphere”), dated August 12, 2020, documents that there is a direct impact Ms. Purvi P. Patel, EIT March 1, 2021 Page 5 on Nagog Pond from the Cobbs Pond Wells. As presented in the February 22, 2021 letter, prepared by Raymond A. Ferrara, Ph.D. from Kleinfelder, and George F. Pinder, Ph.D. from the University of Vermont, a copy of which is attached as Exhibit 10, the Geosphere report “inaccurately characterizes the impact on Nagog Pond from pumping of the Cobbs Wells.” Messrs. Ferrara and Pinder demonstrate that LWD’s pumping test data actually shows “pumping during the 15-day test was responsible for approximately 8 million gallons of water lost from Nagog Pond.” In their analysis, Messrs. Ferrara and Pinder rebut Geosphere’s conclusion that the influence from the pumping test approaches, but does not intercept Nagog Pond. Geosphere based this position on their interpretation of the evidence that there is “relatively little drawdown on the perimeter of Nagog Pond and therefor there is no leakage from it,” but Messrs. Ferrara and Pinder explain that “[o]ne should not expect to see significant drawdown in the groundwater level adjacent to the pond…[,] because the pond is providing the water demanded by the wells and therefore additional water from aquifer storage is not required.”

By this comment letter, Concord once again calls on MassDEP to exercise its authority under the MWA to deny or, at a minimum, condition any approval of a new source at the Cobbs Pond Wells in a manner which preserves and protects Concord’s WMA Registration to withdraw public drinking water from Nagog Pond. Concord raises this important issue in the context of the ENF, because the Secretary should be aware of this critical issue, and the data gaps and inaccurate conclusions by LWD as EOEEA reviews any comments from MassDEP as a Participating Agency in the ENF. The Secretary has discretion to order LWD to complete an Environmental Impact Report with a Scope which will address the impacts from the proposed Cobbs Pond Wells on Concord’s WMA Registration at Nagog Pond. Through this comment letter, Concord formally requests that the Secretary order LWD to complete an Environmental Impact Report.

Negative Impacts on Cobbs Pond, Wetlands and Watersheds

While the primary thrust of Concord’s past comment letters has been to highlight the impact on Nagog Pond and Concord’s WMA Registration, the MEPA Office and MassDEP need to consider the significant impact the Cobbs Wells will have on Cobbs Pond, the adjacent wetlands within the Cobbs Pond surface watershed, and the outflow from Cobbs Pond, which is a contributing tributary to the Nashoba Brook watershed.

The comment letter from Messrs. Ferrara and Pinder, dated January 7, 2021, and attached hereto as Exhibit 11, demonstrates that the operation of the Cobbs Wells will have a significant impact on Cobbs Pond and its associated wetlands resources. Based on the hydrologic budget constructed by Messrs. Ferrara and Pinder, even if only a small portion of the water that will be withdrawn by the Cobbs Wells comes from the Cobbs Pond watershed, the impact will be significant. As a result, they conclude there will be “a dramatic effect on Cobbs Pond and the surrounding wetlands, with the clear opportunity for Cobbs Pond to become completely dry during parts of some years.” Messrs. Ferrara and Pinder also conclude that their water budget calculations “show that the Cobbs Wells will intercept water normally available to support water levels in the wetlands in the local watershed.” They warn that “[i]t is probable that there will not be sufficient shallow groundwater to sustain the wetlands in their current condition.” If these wetlands are deprived of groundwater that is otherwise drawn to the Cobbs Wells, “a diminution and possibly a Ms. Purvi P. Patel, EIT March 1, 2021 Page 6 complete elimination of these wetlands will occur.” Lastly, they observe that “the extended operation of the Cobbs Wells will also have a negative impact on Nashoba Brook.”

LWD simply does not address these important environmental impacts. In the Wetlands, Waterway and Tidelands Section of the ENF, LWD acknowledges that the Project will require an Order of Conditions, but it fails to provide any information which would “estimate the extent and type of impact that the project will have on wetland resources, and indicate whether the impacts are temporary or permanent.” The ENF is lacking and the Secretary should demand additional information on these significant environmental impacts.

After receiving a copy of Geosphere’s Source Final Report, Messrs. Ferrara and Pinder refined their analysis to note that “the Cobbs Wells pumping during the 15-day test was responsible for approximately 2.6 million gallons of water lost from Cobbs Pond. Exhibit 10. Consistent with their January 7, 2021 letter, in their more recent analysis on February 22, 2021, Messrs. Ferrara and Pinder conclude “continued pumping would have a more significant impact on the water surface elevation in” Cobbs Pond.

LWD’s ENF Does Not Provide an Adequate Alternatives Analysis

One of the hallmarks of an ENF is the Applicant’s alternatives analysis. LWD’s alternatives analysis in the ENF was short-sighted and lacking any serious consideration for alternate approaches that might mitigate the impacts to Cobbs Pond and Nagog Pond, which is already a registered source for public drinking water. The Secretary should exercise her authority under 301 CMR 11.06(5) to request additional information about viable alternatives and/or operational controls to minimize impacts on the environment from the Cobbs Pond Wells.

In its discussion of impacts to the surrounding natural resources, the ENF only discusses construction mitigation measures. It does not consider or properly quantify the impacts from the operation of the proposed water supply wells on Cobbs Pond or the associated wetlands systems, including Nashoba Brook. Nor does it discuss the impacts to Nagog Pond.

The October 28, 2020 ENF from LWD does not make any attempt to quantify the Project’s direct or indirect impacts during the Project; it only addresses construction mitigation measures. Though the ENF instruction notes the discussion on project impacts should include “construction period impacts,” that should not be the only focus. The ENF instructions direct the Applicant to address the project’s direct and indirect impacts in terms of their magnitude, geographic extent, duration and frequency, and reversibility, as applicable. There is no discussion of these environmental impacts in the ENF, and there is no consideration in the alternatives analysis of the Project’s impacts on Cobbs Pond or Nagog Pond.

LWD’s discussion of the Project alternatives did not present any alternative involving sites other than the Cobbs Pond Wells. Nor did LWD provide any alternative solutions, such as joining MWRA or purchasing water from another provider. Although LWD did include a “Do Nothing” alternative, the ENF did not present any serious attempt to meet the objective of the MEPA review Ms. Purvi P. Patel, EIT March 1, 2021 Page 7 process, which is to ensure that the Project minimizes damage to the environment to the greatest extent feasible.

The ENF was similarly limited in its explanation of the preferred alternative. Again, the discussion of the preferred alternative only focused on pump station design issues. The presentation on the preferred alternative was almost exclusively concerned with stormwater management issues associated with the pump station structure. There was no consideration for the damage to the environment, which will occur at Cobbs Pond and its watershed, or the impact to Nagog Pond and Concord’s WMA Registration.

Conclusion

In sum, the ENF does not provide sufficient information to assess the environmental impacts from the proposed Cobbs Pond Wells. Based on the analysis provided by Ray Ferrara and George Pinder, it is evident that the operation of the Cobbs Pond Wells will be detrimental to the integrity of Cobbs Pond and its associated wetlands. In addition, Concord warns, yet again, that the proposed Cobbs Pond Wells will intercept and divert water from Nagog Pond, which will have a deleterious impact on Nagog Pond, which will interfere with Concord’s WMA Registration. Balancing water withdrawal allocations between users was one of the core goals of the Water Management Act. The MEPA Office and MassDEP should exercise their regulatory discretion over this Project to demand a more detailed hydrologic analysis from LWD regarding the long- term impacts from these three wells on Nagog Pond and Cobbs Pond, and if the Project is allowed to proceed, to impose conditions on its operation which will protect and preserve Concord’s Registration from Nagog Pond.

Very truly yours,

Peter F. Durning

Enclosure cc: (via electronic mail) Martin Suuberg, Commissioner, MassDEP Duane Levangie, WMA Section Chief and Northeast Regional Contact, MassDEP Bruce Bouck, Section Chief, MassDEP Drinking Water Program Technical Services Rachel Freed, Deputy Regional Director, Bureau of Water Resources, MassDEP/NERO Marielle Stone, Deputy Regional Director, Bureau of Water Resources, MassDEP/CERO Robert Bostwick, Section Chief, MassDEP/CERO Drinking Water Program Rebecca Tobin, Office of General Counsel, MassDEP/CERO Steve Hallem, MassDEP Alan H. Cathcart, Director, Concord Public Works John H. Rogers, Superintendent, Concord Public Works Ms. Purvi P. Patel, EIT March 1, 2021 Page 8

Stephen Crane, Town Manager, Town of Concord Nick Lawler, General Manager, Littleton Electric Light and Water Departments Thomas Mahanna, P.E., Vice President, Tighe & Bond Raymond Talkington, Ph.D., P.G., Principal Hydrogeologist, Geosphere Environmental Tom Harrington, Esq. Ray Miyares, Esq.

Exhibit 1

Exhibit 2

EXHIBIT A

COMMENTS ON

BRP WS-17

PERMIT APPLICATION FOR APPROVAL

REQUEST FOR SITE EXAM AND PUMPING TEST PROPOSAL

FOR A NEW SOURCE 70 GPM OR GREATER

LITTLETON , MA

PREPARED BY :

GEORGE F. PINDER , PH.D. UNIVERSITY OF VERMONT

AND

RAYMOND A. FERRARA , PH.D. KLEINFELDER

JUNE 21, 2017

Research Park, 321 Wall Street, Princeton, NJ 08540 p | 609.924.8821 f | 609.924.8831

PRI17P61491

Comments on BRP WS-17 Permit Application for Approval Request for Site Exam and Pumping Test Proposal For a New Source 70 gpm or Greater, Littleton, MA June 21, 2017

Table of Contents I. BACKGROUND ...... 1 A. Introduction ...... 1 B. Hydrologic Characterization of the Area in the Vicinity of the Proposed Wells ..... 1 II. MEASURING IMPACT ...... 7 A. Measuring Whether Nagog Pond is Impacted by the Cobbs Wells ...... 8 1. Observation Wells ...... 8 2. Seepage Meters ...... 8 3. Pond Discharge ...... 9 4. Pond Elevation ...... 10 5. Modeling ...... 10 6. Isotope Measurements ...... 10 III. PRELIMINARY MODELING ...... 12 IV. RECOMMENDATIONS ...... 13

List of Figures Figure 1: Cobbs Wells Location Map ...... 6 Figure 2: Seepage Meter Configuration ...... 9 Figure 3: Location Map for Proposed Wells ...... 14

Comments on BRP WS-17 Permit Application for Approval Request for Site Exam and Pumping Test Proposal For a New Source 70 gpm or Greater, Littleton, MA June 21, 2017

I. BACKGROUND

A. Introduction

The Littleton Water Department (Littleton) has submitted the above-referenced permit application 1 and pumping test proposal in support of approval for three new bedrock public water supply wells (Cobbs-1, Cobbs-2, and Cobbs-3; collectively referred to as the Cobbs Wells) in the Town of Littleton, Massachusetts. Littleton proposed the Cobbs Wells to supplement its existing public water system. The proposed wells are located adjacent to Cobbs Pond, to the north of Nashoba Road and Nagog Pond within the Town of Littleton as depicted in Figure 1. The potential yield of the three proposed wells is in excess of one million gallons per day (1 MGD).

Notice of a “Request for a Site Examination” was posted by the Massachusetts Department of Environmental Protection (DEP) in the Environmental Monitor on May 24, 2017. Pursuant to the Notice, “written comments on the granting of a DEP permit to conduct additional testing at the site for a new or expanded water supply withdrawal” must be filed within thirty (30) days of publication of the notice in the Environmental Monitor. In response to the Notice, the comments herein are submitted in accordance with that schedule and on behalf of the Town of Concord, MA. Concord is concerned that pumping of groundwater from the Cobbs Wells will have a negative impact on nearby Nagog Pond which serves as a principal water supply source for Concord and for Acton customers along Route 2A. The comments contained herein discuss the potential for such impact, and make recommendations to improve Littleton’s pumping test proposal so that it provides additional data to quantify the impact of the Cobbs Wells on Nagog Pond.

B. Hydrologic Characterization of the Area in the Vicinity of the Proposed Wells

The subject area is depicted in Figure 1. If the proposed Cobbs Wells are permitted to pump, they will draw water from the area surrounding the wells. Initially this water will come primarily from the very minimal expansion of water in the openings in the bedrock due to the decrease

1 BRP WS-17, Permit Application for Approval, Request for Site Exam and Pumping Test Proposal For a New Source 70 gpm or Greater , Littleton Water Department, Proposed Bedrock Source of Supply, Cobbs- 1, Cobb-2, and Cobbs-3, Cobbs Lane, Littleton, MA 01460, May 8, 2017

Comments on BRP WS-17 Permit Application for Approval Request for Site Exam and Pumping Test Proposal For a New Source 70 gpm or Greater, Littleton, MA June 21, 2017

in pressure caused by the effect of the well pumping. Next the openings in the bedrock (i.e., the pores and fractures) will contribute primarily through drainage via these openings. Finally, as the effect of the Cobbs Wells expands, a “cone of depression” will become established, and the influence of the wells will reach surface water bodies within the wells’ influence.

To understand the probable response of the groundwater to pumping in the neighborhood of the Cobbs Wells, it is helpful to understand the geology in this area. The surface layer of materials was found during drilling of the Cobbs Wells to be from 14 to 18 feet below the ground surface. These deposits are primarily glacially derived. Beneath this layer is fractured bedrock consisting of intrusive granites, and schists and gneisses of metamorphic origin. The bedrock units are described as fractured, and an analysis of lineaments suggests a series of fractures trending (a) north-northwest south-southeast and (b) northeast southwest. The north-northwest south-southeast trending series provides potential preferential pathways from Nagog Pond and the Cobbs Wells. Such pathways could enhance the impact of the proposed pumping on Nagog Pond. The results of the preliminary pumping test indicate a relatively high hydraulic conductivity attributable to the fractures in the bedrock.

As wells pump at a generally steady rate, eventually a near steady state situation will be realized where nearly all the water entering the wells will come from a decrease in flow to surface water bodies connected to groundwater. The closer a surface water body is to the wells, the greater the effect will be on that surface water body. Water will be provided to the wells via a corresponding decrease in the flow entering and currently sustaining water levels in surface water bodies. Impoundments such as lakes and ponds with their large stored volumes of water in comparison to streams will become a significant source of water for the wells.

For the proposed Cobbs Wells, the closest impounded surface water bodies are Cobbs Pond and Nagog Pond. It is expected that these two water bodies will be major contributors of water to the wells relative to other surface water bodies in the area. In other words, it is expected that the decrease in water levels in Cobbs Pond and Nagog Pond will be greater than for other surface water bodies as a result of the groundwater withdrawal that will occur due to pumping of the proposed Cobbs Wells.

Comments on BRP WS-17 Permit Application for Approval Request for Site Exam and Pumping Test Proposal For a New Source 70 gpm or Greater, Littleton, MA June 21, 2017

In considering the effect of the proposed wells on Nagog Pond and Cobbs Pond, it is important to recognize that impact to the ponds can occur in multiple ways. Obviously, water leaving the ponds via groundwater flow from the ponds to the wells is one mode of impact. Perhaps more importantly, the wells pumpage of groundwater in the area surrounding the wells may decrease the flow of water entering the ponds. As such, each pond can be impacted even though no water actually leaves either of the ponds to travel directly to the wells.

This impact without any water leaving the ponds can occur because the addition of the pumping for the Cobbs Wells will create an imbalance in the current hydrology of the ponds. In general, without the pumping for the Cobbs Wells, there is currently a balance between the water entering and leaving the ponds. Contributors to the volume of water in the ponds may include surface streams, precipitation, surface runoff, shallow groundwater and deep groundwater. Possible losses of water from the ponds include discharge to a downstream surface water body, evaporation, and leakage to groundwater from the ponds. If any one of these components is changed, the volume of water in the ponds will change. If the groundwater entering the ponds is decreased or if the groundwater recharge to streams that enters the ponds is decreased, there will be a corresponding decrease in the volume of water in the ponds unless another of the input components increases or one of the other output components decreases so as to compensate for the loss. Again, such a decrease in the volume of water in a pond does not require that water actually leave the pond at a different rate. It can occur if the amount of water entering the pond is decreased.

As noted earlier, after initial startup of a new well, the area that contributes water to the well will gradually increase until a new equilibrium is established for all components of the hydrologic system. Since the wells result in a new net withdrawal of water from the hydrologic system, there must be a corresponding decrease in water somewhere else in that system. That decrease will manifest itself as a lowering of water levels in surface water bodies within the cone of depression of the wells. This can take place whether or not water moves physically from the surface water body towards the wells.

In summary, the physical response of the hydrological system to new or increased well pumping can be summarized as follows:

1. As pumping at the well is initiated, water begins to leave the hydrological system.

Comments on BRP WS-17 Permit Application for Approval Request for Site Exam and Pumping Test Proposal For a New Source 70 gpm or Greater, Littleton, MA June 21, 2017

2. Initially, the well draws water from the immediate area around the well and sends a pressure pulse radially to induce water to move in the direction of the well. This message is sent very quickly, on the order of seconds to hours and may travel long distances (hundreds to thousands of feet).

3. Water consequently begins to move towards the well within a gradually increasing area of influence.

4. Water that would normally be discharging to surface water bodies will consequently be reduced. Water may still be entering surface water bodies, but at a lower rate due to the influence of the pumping drawing water to the wells.

5. The slope of the water table will change (i.e., downward toward the wells) resulting in less groundwater recharge to surface waters and/or increased recharge from surface waters to groundwater. The net effect is movement of water toward the wells and away from surface water bodies.

6. While the pressure pulse due to startup of a well is fast, the movement of the water itself is very slow, typically on the order of feet per day. Thus, water from a pond may not actually reach the well for a very long time, on the order of months to years. An analogy is the following. Consider an open outdoor tap that is connected to a hose full of water that has been sitting in the sun for a long time. As soon as you open the nozzle on the hose, warm water begins to leave the hose. The cold water from the tap does not reach the end of the hose for some time, perhaps minutes. In a natural hydrologic setting, the same phenomenon occurs although the time delay is of course much longer. When the new wells start pumping, groundwater near the wells is pumped out first, but water at significant distances away starts to flow toward the wells. The pressure pulse is fast, but the movement of the water is relatively slow.

7. Water from the surface water body eventually reaches the well, and the well water’s chemistry reflects the arrival of that surface water since the two will typically have a different chemical composition. However, as noted above, water from a particular surface water body may never actually leave that water body and travel to the well, even though the water level in the surface water body may be impacted by the well

Comments on BRP WS-17 Permit Application for Approval Request for Site Exam and Pumping Test Proposal For a New Source 70 gpm or Greater, Littleton, MA June 21, 2017

operation. In such a case, the surface water body chemistry will not influence the well water chemistry at all.

8. The water level in the surface water bodies influenced by the well operation will decrease until a new equilibrium between inflows and outflows is established.

These concepts will be at work if the Cobbs Wells are approved and come on-line. The pumping at the wells will draw groundwater toward the well and create a “cone of depression” that will influence water to move toward the wells. This influence will be strongest close to the wells, but it will radiate out and will likely influence groundwater that currently flows to Nagog Pond. As discussed in greater detail below, the site exam and pumping test proposal must take into consideration impacts on Nagog Pond so that the information generated by the pumping test provides sufficient data to understand the significance of introducing a new one million gallon per day withdrawal in this critical hydrologic system. Considering that the above observations are indicative of the physical system in the Nagog Pond-Cobbs wells system, there is ample reason to be concerned about the possible long-term impact of the pumping of the Cobbs Wells on Nagog Pond.

5 FIGURE 1: COBBS WELL LOCATION MAP

Cobbs Pond Wells

G Littleton, Massachusetts Cobbs re a t Pond R o a d

Cobbs-2 (R >! Cobbs Pond Wells t ! 11 > 9 Municipal Boundary >! / Cobbs-3 2A Cobbs-1 >! )

N Nagog ash oba Pond Rd Notes: Cobbs Pond Well locations digitized/georeferenced from "BRP WS-17 Permit Application for Approval Request for Site Exam and Pumping Test Proposal for a New Source 70 gpm or Greater" by Geosphere, dated 05/08/2017.

Sources: 2014 Orthoimagery 2017 MassDEP Municipal Boundaries

PROJECT NO.: 6587/6587A

DRAWN: JUN 2017 DRAWN BY: ELD CHECKED BY: RAF N Littleton FILE NAME: S:\Concord HydroGeo GIS Support\GIS\Figures\Figure_Aerial.mxd ag o Fort g H Pond ill 0 1,000 2,000 R d [ Feet

The information included on this graphic representation has been compiled from a variety of sources and is subject to change without notice. Kleinfelder makes no representations or warranties, express or implied, as to accuracy, completeness, timeliness, or rights to the use of such information. This document is not intended for use as a land survey product nor is it designed Acton or intended as a construction design document. The use or misuse of the information contained on this graphic representation is at the sole risk of the party using or misusing the information.

Grassy Pond 321 Wall Street, Princeton, NJ 08540 Tel: 609-924-8821 " www.kleinfelder.com

Comments on BRP WS-17 Permit Application for Approval Request for Site Exam and Pumping Test Proposal For a New Source 70 gpm or Greater, Littleton, MA June 21, 2017

II. MEASURING IMPACT

As explained above, a new well can decrease the input to a surface water body like a lake or a pond in a matter of hours to days, although water from the surface water body may not reach the well for months to years, and possibly never. Thus, the following scenarios can occur:

1. If surface water is found in the pumping well discharge, the surface water body has certainly been impacted.

2. If surface water is not found in the pumping well discharge, the surface water body may still have been impacted.

3. If the slope of the water table is from the surface water body to the pumping well along the line connecting them, water is moving from the surface water body to the well and the surface water body is being impacted.

4. If the slope of the water table is not continuously downward from the surface water body to the pumping well, the surface water body may still be impacted.

5. If the water table elevation decreases near or at the perimeter of the surface water body in response to the well, the surface water body is impacted.

6. If the water table along the line between the pumping well and the surface water body is not impacted (changed) during a pumping test, the impact may still occur but is delayed.

With regard to Nagog Pond, a strategy to measure whether any of the potential scenarios described above occurs must consider two primary aspects:

a) Is the pond impacted by pumping the Cobbs Wells?

b) If so, what is the magnitude of the impact?

Comments on BRP WS-17 Permit Application for Approval Request for Site Exam and Pumping Test Proposal For a New Source 70 gpm or Greater, Littleton, MA June 21, 2017

A. Measuring Whether Nagog Pond is Impacted by the Cobbs Wells

1. Observation Wells

Water level changes in observation wells in response to pumping from a water supply well indicate impact. Thus, if water levels in wells near Nagog Pond decline in response to the pump test, Nagog Pond is being impacted. Because the aquifer in the area of interest is primarily fractured bedrock, measuring water level change during a pump test is difficult. If the observation well intersects a fracture that, in turn, intersects the pumping well, either directly or via a network of fractures, then the observation well will record the event. If the observation well does not intersect such fractures, there may be very little response in the observation well. Because of the uncertainty in accessing fractures that respond to the pumping well there are two important factors to consider:

1. Observation wells must be placed in a direct line between the pumping well and Nagog Pond, and their numbers and locations will be dictated by the number and locations of existing wells that can be used for recording water level response, and,

2. The number of observation wells should reflect the need to intersect fractures that connect with the pumping well, because if an observation well does not intersect with a fracture network that intersects the pumping well, it may not respond to the pumping test.

Thus, a response in an observation well indicates an impact in the area of that observation well, but a lack of response does not indicate no impact in the same general area.

2. Seepage Meters

The rate of recharge of groundwater to a pond can be measured directly. The apparatus that is used to do this is called a seepage meter. As seen in Figure 2, the seepage meter is constructed by cutting a 50 gallon drum so as to provide a device that can be imbedded into the pond bottom. Groundwater entering the device fills it and then discharges it through a ’vent tube’. Water is collected in a plastic bag. Periodically, the bag is collected and the amount of water entering the pond over the area of the cross-section of the barrel is measured. The result is the rate of water discharge via groundwater to the pond (volume of water collected divided by the time period of the collection). If the discharge to the pond

Comments on BRP WS-17 Permit Application for Approval Request for Site Exam and Pumping Test Proposal For a New Source 70 gpm or Greater, Littleton, MA June 21, 2017

changes in a systematic fashion over the period of a pump test, then the pumping well has decreased flow to the pond and the pond volume is being depleted.

The measurement is only applicable to the cross-sectional area of the drum. To get a better estimate of the overall impact of the pumping, multiple seepage meters would need to be installed in selected locations. A comparison of discharge before, during and after the pump test should reveal the minimum impact to the pond due to the pumping test.

Figure 2: Seepage Meter Configuration (http://edis.ifas.ufl.edu)

3. Pond Discharge

If the well pumping is impacting the pond, water leaving the pond may eventually be reduced due to leakage from the pond to groundwater. The water entering the pond may also decrease. Collectively, these will result in a smaller discharge from the pond. If devices capable of measuring the output of the pond are installed (weirs), then a measured decrease in pond discharge due to well pumping can be determined. A potential problem with this strategy is that over the small period of time of the pump test, the discharge may not change enough to be detected.

Comments on BRP WS-17 Permit Application for Approval Request for Site Exam and Pumping Test Proposal For a New Source 70 gpm or Greater, Littleton, MA June 21, 2017

4. Pond Elevation

The elevation of the water surface in the pond will drop in response to the decrease in groundwater or surface water input due to the pumping well. As in the case of the pond discharge, this change may not be detectable over the period of the pump test given the large volume of water in the pond relative to the amount pumped during the pumping test.

5. Modeling

Once the pumping test that includes observations wells, seepage meters and measurements for pond discharge and elevation is conducted, a mathematical model can be constructed that will indicate the long-term impact of the pumping on the pond. The mathematical model is an a posteriori action since the pumping test data needs to be collected before a model can be constructed and verified for this specific application.

6. Isotope Measurements

It is probable that, as reported, the isotope composition and indeed the overall chemical composition of water from the ponds will be different from that in the pumping wells, especially bedrock wells relatively distant from the ponds. Thus, if water of the composition of Nagog Pond arrives at the pumping wells, it is a reasonable indication that water from the pond has entered the well. However, the inverse is not true. The lack of evidence of water in the pumping wells does not indicate that the well withdrawal has not impacted the pond. As explained above, water captured before it enters the pond can decrease the pond water volume. Without water actually leaving the pond, just by redirecting water that would otherwise travel to the pond, the imposition of pumping for new groundwater wells can have a significant impact on surface water bodies. Furthermore, travel through the subsurface can change the chemical composition of water that may travel from the pond to the wells, so again the composition of the water arriving at the wells is not sufficient evidence of the extent of the impact from the proposed groundwater wells.

While water may eventually move from the pond towards the wells, this may be delayed for weeks or months depending upon the permeability (hydraulic conductivity) of the

Comments on BRP WS-17 Permit Application for Approval Request for Site Exam and Pumping Test Proposal For a New Source 70 gpm or Greater, Littleton, MA June 21, 2017

fractured bedrock. Collecting water samples and analyzing them for isotope composition can be useful, but unless a change is noted that indicates water from the Nagog Pond has reached the Cobbs Wells, such tests will not be conclusive. Again, if no isotopic changes are detected at the wells, it does not mean Nagog Pond has not been impacted by the pumping wells.

Comments on BRP WS-17 Permit Application for Approval Request for Site Exam and Pumping Test Proposal For a New Source 70 gpm or Greater, Littleton, MA June 21, 2017

III. PRELIMINARY MODELING

To further assess whether the Cobbs Wells, when pumping continuously, will impact Nagog Pond due to the various mechanisms described above, a preliminary mathematical model of an area inclusive of Nagog Pond and Cobbs Pond was constructed using data previously collected by the Applicant. This preliminary modeling exercise demonstrated that it is probable that the Cobbs Wells, when used for continuous water supply and pumped a discharge rate of 750 gal/min., will impact Nagog Pond and Cobbs Pond.

Comments on BRP WS-17 Permit Application for Approval Request for Site Exam and Pumping Test Proposal For a New Source 70 gpm or Greater, Littleton, MA June 21, 2017

IV. RECOMMENDATIONS

All of the strategies described in Section II above are viable alternatives. More specifically we recommend consideration of the following:

1. A minimum of five observation wells should be located and drilled to the depth of the pumping well along the shortest line between the pumping well and Nagog Pond. (See Figure 3.) Water level measuring devices capable of continuous measurement should be placed in these wells to record water level elevations for the duration of the pumping test.

2. Pumping test duration should be a minimum of ten days.

3. Seepage meters should be placed in Nagog Pond a week prior to the pumping test and the discharge into the pond as measured by these devices should be determined and recorded prior to the pump test.

4. Seepage meter measurements should be made during the pump test at time intervals determined by the results of the a priori measurements. Measurements should continue for a minimum of a week subsequent to the end of the pump test.

5. Weirs or other devices suitable for measuring flow should be placed at the entrances and exits of Nagog Pond so that discharges to and from the pond can be measured prior to and after the initiation of pumping.

6. Water level recorders should be placed in Nagog Pond to determine any changes in water level elevation.

7. Rainfall events should be measured and recorded during the pumping test.

8. A mathematical simulation model (e.g., as discussed above in Section 3 of this document) should be constructed and verified with data collected during the pump test. The geographic extent of the model must include Nagog Pond. The time period of the simulation should be multiple years.

9. A long-term water balance on Nagog Pond should be completed. The information collected in the pump test along with the findings from the simulation model can be useful in preparing the water balance.

13 G FIGURE 3: ( re R a t t 1 R PROPOSED ADDITIONAL 1 o 9 a /2 d A OBSERVATION WELLS )

Cobbs Pond Wells Littleton, Massachusetts

0# Additional Proposed Observation Wells >! Cobbs Pond Wells Cobbs Pond Roads Municipal Boundary

Cobbs-2 >! Cobbs-3 >!

Cobbs-1 >! 0#

0# Notes: 1. Cobbs Pond Well locations digitized/georeferenced from "BRP WS-17 Permit Application for Approval Request for Site Exam and PumpingTest Proposal for a New Source 70 gpm or 0# Greater" by Geosphere, dated 05/08/2017.

Sources: 2014 Orthoimagery 2017 MassDEP Municipal Boundaries 0# 2014 MassDOT Roads

PROJECT NO.: MW180580

0# DRAWN: JUN 2017 DRAWN BY: ELD d CHECKED BY: RAF a R ob sh FILE NAME: Na S:\Concord HydroGeo GIS Support\GIS\Figures\Figure_PropSamples.mxd

0 350 700

Nagog [ Feet

Pond The information included on this graphic representation has been compiled from a variety of sources and is subject to change without notice. Kleinfelder makes no representations or warranties, express or implied, as to accuracy, completeness, timeliness, or rights to the use of such information. This document is not intended for use as a land survey product nor is it designed or intended as a construction design document. The use or misuse of the information contained on this graphic representation is at the sole risk of the party using or misusing the information.

321 Wall Street, Princeton, NJ 08540 Tel: 609-924-8821 " www.kleinfelder.com

EXHIBIT B

1884. — Chapter 201 171

twenty-nine of the Public Statutes and any acts in amendment thereof or in addition thereto so far as the same are applicable. Section 4. This act shall take effect upon its accept- subject to ac

ance by a two-thirds vote of the voters of said town pres- two'.thi^ds^vote. ent and voting thereon at a legal town meeting called for the purpose within two years from its passage. Approved April 30, 1884.

An Act to authorize the town of concord to increase its Cha2?.201 water supply.

Be it enacted, etc., as follows:

Section 1. The town of Concord, in addition to the May increase "''»*«'" supply. powers now conferred upon it by law, is hereby authorized to supply itself and its inhabitants and other persons, towns and corporations on the line of its water works with pure water to extinguish tires, generate steam and for domestic and other purposes, and may establish public fountains and hydrants and regulate their use, and dis- continue the same, and may collect rates to be paid for the use of the water. Section 2. Said town, for the purposes aforesaid. May take waters may take and hold the waters of Nagog Pond, so called, •„^&/^°'"^ in the towns of Acton and Littleton and the waters which •"•"d Lutieton. flow into and from the same, and may also take and hold by purchase or otherwise all necessary lands for raising, holding, diverting, purifying and preserving such waters, and conveying the same to any and all parts of said town of Concord, and may erect thereon proper dams, reser- voirs, buildings, fixtures and other structures, and make excavations and embankments, and procure and operate machinery therefor ; and for such purposes may construct and lay down, dig up and repair conduits, pipes and other works in, under or over any lands, water courses or rail- roads, and along any street, highway, alley or other way, in such manner as not unnecessarily to obstruct the same, and may dig up, raise and embank any such lands, street, highway, alley or other way in such manner as to cause the least hindrance to travel thereon. Section 3. Instead of taking the entire waters of said Quantity of wa-

Nagog Pond, said town of Concord may, if it shall so lubject'toa^vote elect, take a part of said waters, such election to be made oft^etown. by a vote of said town declaring the quantity or proportion of said waters to be so taken. 172 1884. — Chapter 201.

To file in regis- Section 4. Within ninety days after the tinae of tak- try of deeds a description of ing any lands, waters or water courses as aforesaid, other- land and water taken. wise than by purchase, said town shall file in the registry of deeds for the southern district of the county of Middle- sex a description thereof suflBciently accurate for identification, with a statement of the purpose for which thesanae is taken, signed by a majority of the water commissioners

of said town ; and if said town shall have made the election authorized by section three of this act, said description and statement shall be accompanied by a copy of the vote of said town signifying such election. May, by vote, take an in- Section 5. Said town of Concord, if it shall have creased propor- made the election authorized by section three of this act, tion of waters. may thereafter from time to time, if it shall so elect, take an increased proportion of said waters, each successive election to be made by a vote of said town declaring the additional quantity or proportion of said waters to be so taken, and upon each such successive election and within ninety days thereafter said town shall file in said registry of deeds a description, statement and copy of the vote therefor as provided for in section four of this act. Water to be 6. measured. Section If said town shall make the election authorized by section three of this act, said town shall provide a reliable means or method of measuring and registering the amount of water taken, such register or record to be at all times accessible to any interested parties. Liability for shall all damages. Section 7. The said town of Concord pay damages sustained by any person in property by the taking of any land, right of way, water, water source, water right or easement, or by any other thing done by said

town under the authority of this act ; said damages to be based and proportioned in case of the taking of water or water rights upon the amount of water taken as aforesaid. Any person or corporation sustaining damages as aforesaid under this act, who fails to agree with said town as to the amount of damages sustained, may have the damages assessed and determined in the manner provided by law when land is taken for the laying out of highways, on application at any time within, three years from the time when the water is actually withdrawn or Application for diverted, and not thereafter. No application for the damages not to be made until assessment of damages shall be made for the taking of any water is actually withdrawn. water, water right, or for any injury thereto, until the 1884. — Chapter 201. 173

water is actually withdravvu or diverted by said town under the authority of this act. Section 8. Said town of Concord, for the purposes May borrow money and Issue , . .1.1 p J.' xi.' V, herein authorized, may from time to time borrow money bonds, etc. and issue notes, bonds or scrip therefor to an amount not exceeding fifty thousand dollars in addition to the amount already authorized by law in the manner and under the restrictions provided by section four of chapter one hundred and eighty-eight of the acts of the year eighteen hundred and seventy-two. of commissioners of said Section 9. The board water ^n'gr8To°hTve town of Concord shall execute, superintend and direct the charge of works. performance of all the works, matters and things mentioned in this act and exercise all the rights, powers and privileges hereby granted to said town and not otherwise specifically provided for herein, subject to the vote of said town. The provisions of sections seven, eight, nine and ten of chapter one hundred and eighty-eight ot the acts of the year eighteen hundred and seventy-two shall apply to this act as if inserted herein. Section 10. Nothing contained in this act shall pre- Acton and lu- vent the town of Acton nor the town of Littleton from ve\te"dfrom'^^" "^ taking the waters of said Nagog Pond whenever said towns Nagol PonT or either of them may require the same for similar purposes, and in case of such taking by either of said towns or both of them, if from any reason the supply of water in said pond shall not be more than sufficient for the needs of the inhabitants of the towns of Acton and Littleton, then the needs of the inhabitants of said towns shall be first

if water is tak- supplied ; and if either of said towns of Acton or Little- ton shall hereafter be authorized to take and shall take the Just pTopVtion'^ 'damages. waters of said Nagog Pond or any part thereof which the °^ town of Concord may have taken under this act, said town so taking shall pay to said Concord a just and proportionate part of whatever sums the said town of Concord shall have paid or become liable to pay for water damages to any persons or corporations for the taking of water rights from said pond or the outlet thereof, to be ascertained, if the parties shall fail to agree, by three commissioners to be appointed upon the application of either party by the supreme judicial court ; the report of said commissioners made after hearing the parties, and returned to and accepted by said court shall be final between the said parties. 174 1884 — Chapter 202.

Commonwealth Section 11. The Commonwealth of Massachusetts may take water from Nagog shall have the right to take from said Nagog Pond, for use Pond. in buildings owned by said Commonwealth in the town of Concord, an amount of water not exceeding two hundred thousand gallons per day, and the said right is hereby reserved. If the said Commonwealth shall take from said pond its waters, or any part thereof, which the town of Concord may have taken under this act, otherwise than by contract with said town of Concord, the said Common- wealth shall pay to said town of Concord a just and proportionate part of whatever sums the said town of Concord shall have paid or become liable to pay for water damages to any persons or corporations for the taking of water rights from said pond or the outlet thereof, to be ascertained and determined as is provided for in section

Contract be- ten of this act. But if upon the expiration of the contract tween Concord and the Com- made on the first day of October in the year eighteen hun- monwealth. dred and eighty-three between the said town of Concord and said Commonwealth to provide for the delivery of water from the Concord water works for use within the walls of the state prison, said town of Concord by its water commissioners shall renew said contract for five years on the terms named therein, or shall tender to the governor of the Commonwealth a renewal of said contract for five years on the terms named therein, with the option upon the part of said Commonwealth of a further renewal for a term of twent}'^ years upon said terms, then the right of said Commonwealth herein provided for shall cease.

Subject to ac- Section 12. This act shall take effect upon its passage, ceptance by town of Concord but shall become void unless it is accepted by a vote of within one year. said town of Concord at a legal meeting held for the purpose within one year from its passage. Approved April 30, 1S84.

An Act to incorporate the highland congregational church Cha:p.20^ in lowell.

Be it enacted, etc., as follows:

Corporators. Section 1. James G. Buttrick, William [L. Davis, Cyrus B. Emerson, John T. Carter, Hamden Spiller, Lucy R. Carter, Almira Sturtevant, Clara S. Spiller and all other members of the Highland Cong^regational Church in Lowell, and their successors as members of said

Exhibit 3

Exhibit 4

November 13, 2018

Peter F. Durning Mackie Shea, PC 20 Park Plaza, Suite 1118 Boston, MA 02116

RE: Comment on the Impact of the Cobbs Pond Bedrock Wells on Nagog Pond

Dear Peter:

On behalf of the Town of Concord, we reviewed Geosphere Environmental Management, Inc.’s October 10, 2018 Memorandum to the Massachusetts Department of Environmental Protection (“MassDEP”) regarding the Zone II Delineation Methodology, Cobbs Pond Bedrock Wells (the “Littleton Zone II Methodology”). We also performed an initial, cursory review of the limited set of pump test data that Corey Godfrey of the Littleton Water Department provided to Concord on July 17, 2018 (the “Cobbs Wells Pump Test Data”) and the MassDEP’s Guidelines for Public Water Systems: Chapter 4 - Groundwater Supply Development and Source Approval Process, Section 4.5.2 (MassDEP, March 2008 last update).

The Cobbs Wells Pump Test Data consists of a file containing information on seepage meters, observation well water level elevations, piezometer water levels, precipitation, and lake stage elevations for the period May 27, 2018 to June 25, 2018. The period May 27, 2018 until June 5, 2018 preceded the pumping test which took place from June 6, 2018 until June 20, 2018. From June 21, 2018 until June 25, 2018, observations represent the period after pumping had ceased (i.e., the recovery period).

As presented in Littleton’s original “Request for Site Exam and Pumping Test Proposal” and exhibited in Figure 5, Preliminary Zone II Delineation included within this same proposal, it has been suggested that the higher water table beneath a topographic divide may act as a barrier to groundwater flow and thus preclude water from the area beyond the topographic high (further from the pumping wells) from reaching the pumping wells. This conceptual assessment appears to have been invalidated as the actual pump test demonstrates that such a barrier does not exist in the presence of pumping wells. Note that although a topographic high lies between OBS-6BRD / OBS-6BRS and the pumping wells, the observation wells responded to the pumping wells. This would not have occurred had there been an intervening flow barrier. In fact, the water levels in observation wells OBS-5BRS, OBS-5BRD, OBS-6BRS and OBS-6BRD were indeed impacted by pumping in the bedrock wells near Cobbs Pond.

The following two figures contain water level response curves that document the pre-pumping period (May 27 through June 5), the pumping period (June 6 through June 20) and the recovery period (June 21-25). The vertical axis records the drop in water level relative to the top of the well casing. Thus, larger numbers mean lower water elevations. The actual elevations of the water levels can be determined by subtracting the plotted numbers from the elevations of the top of the well casings. For our purposes, the change in water table elevation such as shown in the following figures is adequate for the purposes of this brief report.

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Peter F. Durn ing Page 2 November 13, 2018

Assessment of Water Level in OBS-5BRS and OBS-5BRD

The data in Figure 1 shows that after a period of little water level change in observation wells OBS-5BRS and OBS-5BRD during the pre-pumping period there is a dramatic drop in the water level as pumping is initiated at the production wells. The shape of this curve is a textbook example of a drawdown curve caused by pumping one or more wells located close together such as is the case in this pump test. The water level drops more slowly as time of pumping increases, but the water level does not “level off” during the pumping period. The fact that the water level did not “level off” during the pump test indicates that drawdown is occurring throughout the pump test and would continue to do so if pumping had continued for a longer period of time. Once pumping ceases, the drawdown at the pumping well also ceases. At that point the water levels in the observation wells OBS-5BRD and OBS-5BRS rapidly rebound. This is a textbook example of recovery curves. In summary, the graph shown for wells OBS-5BRD and OBS-5BRS is consistent with what would be expected given the location of the wells and the duration of the pump test. At the time the pumps were turned off, the system was not at steady state since the drawdown was still increasing.

In addition, the graph in Figure 1 shows that the deep and shallow wells exhibited self- consistent responses off set in time. Prior to pumping, the deep well appears to have the lower elevation although we can’t be certain because the preliminary data did not provide the elevations of the top of the well casings. Without the casing elevation values, it is uncertain if the flow is up or down at this location prior to pumping. But what is evident is that the gradient is reversed during pumping. Given the topography of the area, it is probable that water normally moved upwards prior to pumping and reversed during pumping. Under these circumstances, there is a vertical, as well as horizontal component of flow towards the pumping wells in the shallow aquifer. Any meaningful assessment of the Zone II delineation must take these directional factors into account and model the three dimensional impacts from the Cobbs Wells.

Assessment of Water Level in OBS-6BRS and OBS-6BRD

Wells OBS-6BRD and OBS-6BRS are located further from the Cobbs Wells and closer to Nagog Pond and respond differently than observation wells OBS-5BRD and OBS-5BRS. The curve in Figure 2 reveals less drawdown in OBS-6BRS and OBS-6BRD and does not exhibit the sudden drawdown in early time that was observed in OBS-5BRS and OBS-5BRD.

While no well is located at the boundary of Nagog Pond, it is possible to extrapolate the drawdown observed at OBS-6BRD and OBS-6BRS to the surface water body using well hydraulic formulae. While approximate due to the complexity of the area around the pumping wells such an extrapolation indicates that even after this short pumping period it is more probable than not that Nagog Pond has been impacted by the pumping wells. Based on the conditions observed in the Cobbs Wells Pump Test, it is evident that for longer pumping periods the impact will increase. A quantitative estimate of the impact will require computer modeling of this complicated system.

According to the definition of Zone II as specified in the Massachusetts Drinking Water Regulations, Section 310 CMR 22.02, the pumping test results indicate that the Zone II boundary will be coincident with the boundaries of Nagog Pond which is a recharge boundary and the only known hydrogeologic boundary that exists between Nagog Pond and the proposed Cobbs Pond well field. As discussed above, given the characteristics of this hydrological setting a complete delineation of the Zone II boundary will require a three dimensional, numerical,

Kleinfelder, Research Park, 321 Wall Street, Princeton, NJ 08540 p | 609.924.8821 f | 609.924.8831

Peter F. Durn ing Page 3 November 13, 2018

computer based flow model. MODFLOW, a commonly employed model maintained by the U.S. Geological Survey, may serve as a useful tool for conducting this modeling to understand the impacts from the Cobbs Wells in the Nagog Pond watershed.

In summary, the pumping wells will generate an expanding cone of depression until such time as the water being pumped is supplied by surface-water-bodies through infiltration induced by the pumping wells. Since the drawdown observed during the pump test is similar for both deep and shallow observation wells, the data indicate that there is a clear connection between the deep and shallow groundwater. Furthermore, since the shallow groundwater is readily connected to surface waters in the area, there is an effective connection between pumping of deep groundwater and surface water bodies. To establish the contribution of each surface water body requires the use of a valid groundwater model. Such a model can estimate the contribution of each surface water body to discharge being extracted from the production wells and is necessary to define the Zone II boundary.

Please feel free to contact us if you should have any questions about these findings.

Sincerely, Sincerely,

Raymond A. Ferrara, Ph.D. George F. Pinder, Ph.D. Principal, Kleinfelder University of Vermont

Kleinfelder, Research Park, 321 Wall Street, Princeton, NJ 08540 p | 609.924.8821 f | 609.924.8831

Feet from top of 15 Casing

OBS-5BRD 10 OBS-5BRS

Date

Figure 1 - Water Level Response Curves for OBS-5BRS and OBS-5BRD 30

Feet from top of 15 Casing

10 OBS-6BRD OBS-6BRS

Date

Figure 2 - Water Level Response Curves for OBS-6BRS and OBS-6BRD

Exhibit 5

November 21, 2018

VIA FIRST CLASS AND ELECTRONIC MAIL

Susan Connors Massachusetts Department of Environmental Protection Water Management Act Program, Central Region 8 New Bond Street Worcester, MA 01606

Re: Littleton Water Department, Proposed Bedrock Source of Supply, Cobbs-1, Cobbs- 2, and Cobbs-3, Cobbs Lane, Littleton, MA

Dear Ms. Connors:

I am filing formal written comments on behalf of the Town of Concord (“Concord”) with respect to the November 16, 2018 letter signed by the Littleton Water Department (“LWD”), Geosphere Environmental Management, Inc. (“Geosphere”) and Tighe & Bond (collectively with LWD and Geosphere, “Littleton”). In this letter, Littleton expressed its aversion to conducting a 3-D numerical model to understand the extent of any impacts from the proposed Cobbs Pond Bedrock Wells on Nagog Pond, a registered public water supply for Concord. In response to Littleton’s November 16, 2018 letter, I am forwarding a response letter prepared by Kleinfelder discussing the limitations inherent in the analytical models Littleton proposed and advocating for a “valid three-dimensional computer simulation model to fully and properly assess the potential for the proposed Cobbs Wells to have an adverse impact on Nagog Pond.” Concord’s position with regard to the importance of this modeling has been consistent. Starting with Concord’s comments on the proposed pump test protocol, which culminated in a meeting with all parties and MassDEP on November 29, 2017. After a healthy exchange of ideas in the November 29, 2017 meeting, Concord agreed to pay for the installation of observation wells along bedrock fractures between the proposed wells and Nagog Pond. In exchange, Littleton agreed to incorporate the data from the observation wells in the pump test data. In addition, as noted in LWD’s December 21, 2017 letter to MassDEP, LWD had “no objection to Concord’s involvement in the discussion between Littleton and MassDEP on the design of an analytical/modeling approach to delineate the groundwater capture zone.” Despite the overture to collaboration in December 2017, on October 10, 2018 without any discussion or consultation with Concord regarding the design of an analytical/modeling

Susan Connors November 21, 2018 Page 2

approach, Geosphere submitted its Zone II Delineation Methodology for the Cobbs Pond Bedrock Wells to MassDEP. Geosphere’s October 10, 2018 Memorandum presented a very limited approach to the complex issues involved in modeling impacts from pumping in bedrock fractures. Concord responded on November 13, 2018 transmitting a letter from its hydrogeologic consultants, Kleinfelder, laying out a strong justification for the need for three-dimensional numerical modeling based on the noticeable drawdowns in the observation wells during the June pump test activity. In response to Concord’s November 13, 2018 letter re-iterating the importance of modeling, MassDEP noted that was “reasonable to request a three dimensional, numerical model.” Concord appreciated your comment that you thought that modeling “was the direction that Littleton was going to take.” Indeed, based on the prior course of dealing and the November 20, 2017 meeting in particular, Concord always assumed that if the observation wells exhibited drawdown impacts during the pump test then three-dimensional numerical modeling was going to be required to understand the extent and nature of the hydrogeologic connection between the proposed wells and Nagog Pond. As discussed in the November 20, 2018 letter from Kleinfelder, a valid three-dimensional computer simulation model is the appropriate technical tool for this situation. We understand Littleton’s concern regarding bias in the development of the model, which is why we have advocated for the towns and their consultants to discuss and agree on the parameters and assumptions for the model up front. Such collaboration was a cornerstone of the agreement coming out of the November 29, 2017 meeting. With both parties agreeing to base inputs for the model, the objective results will be the same and not subject to attacks based solely on suspicions of bias. We welcome MassDEP’s involvement in this process and are willing to attend a joint meeting with Littleton and MassDEP to work through these issues and advance the understanding of the Nagog Pond watershed so Littleton can proceed with its evaluation and permitting process for the Cobbs Wells with comprehensive and objective data. Sincerely,

Peter F. Durning

Enclosure

Susan Connors November 21, 2018 Page 3

cc: (via electronic mail) Duane Levangie, MassDEP WMA Section Chief and Northeast Regional Contact Nick Lawler, Littleton Electric Light and Water Departments, General Manager Richard Reine, Concord Public Works, Director Alan H. Cathcart, Concord Public Works, Superintendent Christopher Whelan, Concord Town Manager

November 20, 2018

Peter F. Durning Mackie Shea, PC 20 Park Plaza, Suite 1118 Boston, MA 02116

RE: Response to Littleton Letter to Susan Connors dated November 16, 2018 Zone II Delineation and Impact Analysis

Dear Peter:

Please accept the following in response to the above referenced matter. Littleton’s letter of November 16, 2018 was prepared in response to your letter to Susan Connors dated November 13, 2018 which included our letter to you dated November 13, 2018. In the latter, we provided our assessment of the initial pump test data collected by Littleton in May and June 2018. We also offered our opinion on the need for a valid three-dimensional computer simulation model to fully and properly assess the potential for the proposed Cobbs Wells to have an adverse impact on Nagog Pond.

While several methods are available to calculate the impact of a pumping well on the water level elevations in neighboring wells, mathematical models based upon either analytical mathematics or numerical methods are most commonly encountered in the scientific literature. The first analytical models were developed for very idealized physical systems in 1905 and were actively used until the early 1960’s when digital computers became generally available and numerical models were introduced. Currently analytical models, because of their limited range of applicability, are not widely used in practical applications, and numerical models are the state of the art in groundwater modeling.

The reason for the replacement of analytical models by numerical models is because the latter are not limited by the simplifying assumptions relied upon by analytical models. These restrictions include: 1) the hydraulic conductivity and storage coefficient (parameters required for modeling) everywhere in the modelled area must be the same (homogeneity); 2) there can be no preferential directions in the hydraulic conductivity (anisotropy), 3) the aquifer must be uniform in thickness; 3) any surface water boundaries must be represented by straight lines and are fully penetrating (the bottom elevation of the surface water body is at or less than the base of the aquifer), and water levels in surface water bodies that act as recharge boundaries must be constant in time and space; 4) any impermeable boundaries must be represented by straight lines; 5) any precipitation must be uniform and constant over the period of analysis; 6) any geological horizons that contribute water to the aquifer must be of constant thickness, hydraulic conductivity must be homogeneous and isotropic, and the storage coefficient constant everywhere; 7) flow in the aquifer must be horizontal (no significant vertical flow components); and 8) flow exists only in the saturated zone (flow in partially saturated materials is neglected).

Of the above 8 restrictions on the use of analytical models, none are satisfied by the geologic setting of interest with regard to the Cobbs Wells. However, all can be accommodated by a numerical model. Consequently, it is apparent that a numerical state of the art groundwater model is the only way to properly simulate the potential for impact from the Cobbs Wells. And

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Peter F. Durning Page 2 November 20, 2018

therefore, such a model must be used in this instance to determine the impact to Nagog Pond (or other surface waters potentially impacted by the Cobbs Wells).

Furthermore, it is important to note the potential for reaching faulty conclusions based on Geosphere’s approach using data from random existing wells to plot “maximum observed drawdowns versus distance (distance-drawdown) to determine zero-drawdown distances in all directions”.1 The approach seeks to minimize the importance of measuring drawdown at strategically placed observation wells, and instead seeks to minimize effort and expense by relying on drawdown data from existing wells. While data from existing wells can indeed be useful, such data are not necessarily sufficient to reach defensible conclusions about drawdown from the proposed Cobbs Wells. Concord through a careful fracture trace analysis installed two sets of observation wells, OBS-5BR and OBS-6BR, and these indeed provide meaningful data about the degree of drawdown that occurred during the limited duration pump test completed by Littleton in May and June of 2018. To expect that there would have been a significant measurable change in the water surface elevation in Nagog Pond during such a limited test, suggests a flawed understanding of the volumes of water involved and the dynamics of groundwater and surface water interaction. The observed drop in water elevations in Concord’s strategically placed observation wells point to a substantial effect on Nagog Pond if long term pumping of the Cobbs Wells was permitted.

Please feel free to contact us if you should have any questions about the above.

Sincerely, Sincerely,

Raymond A. Ferrara, Ph.D. George F. Pinder, Ph.D. Principal Consultant

1 Memorandum dated October 10, 2018 from David Niemeyer and Raymond Talkington of Geosphere to Susan Connors of MassDEP.

Kleinfelder, Research Park, 321 Wall Street, Princeton, NJ 08540 p | 609.924.8821 f | 609.924.8831

Exhibit 6

December 10, 2018

VIA FIRST CLASS AND ELECTRONIC MAIL

Susan Connors Massachusetts Department of Environmental Protection Water Management Act Program, Central Region 8 New Bond Street Worcester, MA 01606

Re: Littleton Water Department, Proposed Zone II Delineation Methodology for the Proposed Bedrock Source of Supply, Cobbs-1, Cobbs-2, and Cobbs-3, Cobbs Lane, Littleton, MA

Dear Ms. Connors:

On behalf of the Town of Concord (“Concord”), I am writing to respond to your email dated Monday, December 3, 2018 (a copy of which is attached as Exhibit A). While Concord was encouraged that MassDEP continued its support for a numerical model to assess the impact of Littleton Water Department’s three proposed bedrock wells near Cobbs Pond (the “Cobbs Wells”), Concord was very disappointed that rather than convene a meeting to have an open exchange and discussion about modeling the impact of the proposed Cobbs Wells, MassDEP appears to be closing the discussion and creating some ambiguity regarding the approach and parameters that will inform the modeling process. In particular, Concord remains concerned by MassDEP’s position which appears to discount the information from the bedrock observation wells and does not require Littleton to model the impacts through the bedrock. The June pump test results obtained at observation wells OBS-5BRS and OBS-5BRD irrefutably show a direct and immediately responsive connection between the bedrock and overburden. The observation well locations were deliberately selected along a lineament through the bedrock that appears to directly impact Nagog Pond itself. Concord does not disagree that drawdown in the overburden may have an impact to surface waters, but Concord objects to a modeling procedure that only focuses on the overburden as such an approach will miss the important role that bedrock fractures play in this particular project in this particular hydrogeological setting. Despite the evidence of a responsive connection between the bedrock and overburden, Littleton continues to advocate for an analytical solution (two dimensional model) as opposed to a three dimensional model. It is not clear from MassDEP’s December 3rd email whether the agency will accept Littleton’s approach going forward. Concord opposes reliance on an analytical model

Susan Connors December 10, 2018 Page 2 and argues that such an approach would only be appropriate where specific requirements are met including the following: 1. The flow of groundwater does not have a significant vertical component. 2. Any wells introduced are fully penetrating and screened from the surface to the bottom of the aquifer (requirement for horizontal flow in the aquifer). 3. Hydraulic conductivity must be representable by a meaningful vertical average. This generally requires that the various geohydrologic units constituting the aquifer either be isotropic or have the same degree of anisotropy. 4. Storativity must be representable by a meaningful vertical average. 5. Water entering the aquifer being modeled from above or below is properly accommodated.

The hydrogeological system at the Cobbs Wells does not match these characteristics. The site violates the above assumptions as follows: 1. While the groundwater may have a small vertical component prior to pumping, the pump test results demonstrate that once pumping begins there is a significant vertical gradient as evidenced by the different head values in shallow and deep aquifers during pumping. 2. The three proposed wells are located in the deep aquifer. If the model is designed based solely on the shallow aquifer, the location of the wells will not be represented properly. 3. The pump test results show that both the shallow and deep aquifers respond to the pumping by the proposed wells. Thus, both aquifers constitute one connected hydrogeologic system with different hydrogeologic properties. This arrangement is not representable by a meaningful vertical average. 4. Assuming the shallow aquifer is the one modelled, it will be necessary to accurately estimate, and specify in the model, the vertical flow from the deep aquifer to the shallow aquifer. This is probably not possible to achieve with the limitations of the analytical model.

In summary, this is a complex system that exerts an influence on both the shallow and deep aquifers. The fundamental assumptions that are required to obtain reliable results from an analytical solution are not present here. This is a complex hydrogeologic system that requires three dimensional modeling to present the attributes of hydrogeology and a flow system that are not captured in an analytical model, especially in the presence of pumping and possible leakage from surface water bodies.

Concord is also disappointed that, after its demonstrated concern and significant dedication of time and resources to forge an approach to the modeling exercise that will provide reliable results that will be respected and accepted by all parties, based on MassDEP’s December 3rd email, the agency appears to be departing from its prior commitment to bring the two towns together in a

Susan Connors December 10, 2018 Page 3 collaborative process. If MassDEP follows the process outlined in the December 3rd email, Concord will be left out of the conversation with many remaining questions, including the following, about MassDEP’s proposed model that may go unanswered:  If MassDEP believes that the numerical model will not provide a means to extrapolate the drawdown conditions that have been documented in the bedrock observation wells, what analysis will DEP require to assess that aspect of the proposed wells?

 Is MassDEP of the opinion that the surface water bodies are not hydrologically connected to the bedrock and therefore the bedrock aquifer may not be important?

 How will the contribution of groundwater from bedrock be included in the model, as the overburden and bedrock appear to function as one hydrologic system in those zones where they both occur, as the pumping tests revealed? Concord is also concerned with MassDEP’s posture because, rather than convene a meeting to have the parties confer and agree on a model, MassDEP is effectively excluding Concord from the discussion by inviting Littleton to confer directly with Steve Hallem to understand some additional undisclosed “specific requirements” for the modeling. In sum, MassDEP and Littleton appear to be moving forward with a modeling exercise that deliberately excludes, or at least minimizes, consideration of the role of bedrock fractures for the eventual assessment of a Water Management Act permit for three groundwater wells located in bedrock fractures. This decision is terribly shortsighted and will likely create grounds for a successful appeal. Concord has been direct and transparent with Littleton and MassDEP throughout this process. If proper comprehensive modeling shows that there is no impact on Nagog Pond from the three proposed bedrock wells, then Concord will not oppose Littleton’s permits. If, however, the modeling shows that the three proposed bedrock wells will have an impact on Nagog Pond, MassDEP will necessarily have to consider the permit in light of Concord’s WMA registration for the entire firm yield of the pond. Lastly, if the modeling Littleton relies on for its permit application process is manifestly flawed, and associated findings are used to conclude that there is no impact on Nagog Pond or its contributing watershed, Concord will have no option but to appeal to defend its rights. This has been Concord’s consistent position. If Littleton was concerned about the potential for an appeal, the approach outlined in the December 3rd email from MassDEP makes an appeal more likely. In closing, Concord respectfully re-iterates its urgent suggestion that MassDEP convene a meeting with Littleton and Concord to hopefully craft an approach to the modeling exercise that will have confidence and support from all interested parties.

Susan Connors December 10, 2018 Page 4

Sincerely,

Peter F. Durning

Enclosure cc: (via electronic mail) Martin Suuberg, Commissioner MassDEP Duane Levangie, MassDEP WMA Section Chief and Northeast Regional Contact Bruce Bouck, MassDEP Drinking Water Program Technical Services, Section Chief Rachel Freed, MassDEP NERO Deputy Regional Director, Bureau of Water Resources Marielle Stone, MassDEP CERO Deputy Regional Director, Bureau of Water Resources Robert Bostwick, MassDEP CERO Drinking Water Program, Section Chief Rebecca Tobin, MassDEP CERO Office of General Counsel Steve Hallem, MassDEP Richard Reine, Concord Public Works, Director Alan H. Cathcart, Concord Public Works, Superintendent Christopher Whelan, Concord Town Manager Nick Lawler, Littleton Electric Light and Water Departments, General Manager Thomas Mahanna, P.E., Tighe & Bond, Vice President Raymond Talkington, Ph.D., P.G., Geosphere Environmental, Principal Hydrogeologist Tom Harrington, Esq. Ray Miyares, Esq.

EXHIBIT A From: Connors, Susan (DEP) [mailto:[email protected]] Sent: Monday, December 03, 2018 9:09 AM To: Corey Godfrey ([email protected]); Alan Cathcart Cc: Hallem, Stephen (DEP); Bouck, Bruce (DEP) Subject: Cobbs Pond Zone II and impact analysis

Corey and Alan,

MassDEP has reviewed Littleton's proposal on the Cobbs Pond pumping test analysis, the comments submitted by Concord, and all subsequent letters. MassDEP agrees that a numerical model can help assess potential impacts to sensitive receptors and to drawdown in the unconsolidated aquifer. A numerical model is typically required for pumping tests that exceeded the streamflow criteria in the Guidelines. We believe the model can be run to properly depict drawdown in overburden observation wells and piezometers, but that it may not be usable to mimic drawdown in any bedrock observation wells. MassDEP had previously explained that how the pumping test affects drawdown in the overburden is more indicative of a potential impact to surface waters than drawdown in bedrock wells.

MassDEP has some specific requirements on how the model should be run and therefore Littleton's modeler should contact Steve Hallem at 617‐292‐5681 in MassDEP’s Boston office to discuss the specifics. The input data files should be made available to MassDEP electronically if we need to review the model and the parameters used when we receive the report. The report must include a description of the model parameters and accompanying graphics of the grid, with one figure of the model grid superimposed on a USGS Topographic Map of the area. It also facilitates the review if a figure of each layer in the model has color coded grids of what the Transmissivity for that grid was modeled at. A table of the flux of water in each grid could be presented using a gradational color scheme would facilitate the review. A table should also be included of model convergence with the residual sum of squares shown.

Please be aware that MassDEP is a neutral party in this review and our Technical Services Branch has extensive expertise in hydrogeology and modeling and we are prepared to review the impacts to all sensitive receptors in the area of the Cobbs Pond wells with our unbiased, technical opinion.

Thanks, Susan

Susan Connors MassDEP, Central Regional Office Drinking Water and Water Management Programs 8 New Bond, Worcester MA 01606 phone: 508.767.2701 fax: 508.849.4035 [email protected]

Exhibit 7

EXHIBIT 8

EXHIBIT 9 COMMONWEALTH OF MASSACHUSETTS LAND COURT DEPARTMENT OF THE TRIAL COURT

. ~:- , <_.(", .. - - _.,-, 18 MISC 000596 (JSDR) 'MIDDLESEX, ss.

TOWN OF CONCORD,

Plaintiff,

V. MEMORANDUM OF DECISION GRANTING PLAINTIFF'S MOTION LITTLETON WATER DEPARTMENT, FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS' CROSS- Defendant MOTIONS FOR SUMMARY And JUDGMENT

TOWN OF ACTON,

Intervenor-Defendant.

INTRODUCTION

This action was commenced by plaintiff Town of Concord ("Concord") with the filing of a complaint on November 8, 2018 against the defendant Littleton Water Department ("LWD") 1 seeking a declaration as to the extent to which LWD's claimed right to withdraw water from

N~gog Pond pursuant to Chapter 201 of the Acts of 1884 (''the 1884 Act"),§ 10, has been superseded by the Water Management Act, G.L. c. 21G ("WMA"), and, more particularly, the extent to which Concord's registration of rights under the WMA negates L WD's rights under the

1884 Act. On January 8, 2019, the Town of Acton ("Acton") filed a motion to intervene on the

1 In an earlier decision in this matter, the court noted that Concord had named L WD, not the Town of Littleton ("Littleton"), as a defendant and requested that Concord determine whether L WD was the proper party to these proceedings. No motion to substitute was made thereafter, and so, for purposes of this memorandum of decision, the court treats LWD as representing Littleton's interests herein. 1 grounds that it, too, had rights under the 1884 Act comparable to those of Littleto~~ which

motion was allowed by the court on March 14, 2019.2

At a hearing on March 14, 2019 on LWD's motion to dismiss this action,-u\e p_arties '. ·-- . . ;"./ ._,. . .. \, : agreed that the action should be transferred to the Superior Court, rather than dismissed, if .

L WD's motion was granted and that a briefing schedule for cross-motions for summary judgment should be established, to be filed and heard in this court if the motion to dismiss was

denied, and to be transferred and heard in the Superior Court if the motion to dismiss was

granted. A schedule was set, the motion to dismiss was denied by order dated March 19, 2019,

motions and cross-motions for summary judgment and supporting papers were filed and a

hearing was held on July 11, 2019. The parties thereafter filed supplemental memoranda and

affidavits addressing issues raised at that hearing.

For the reasons set forth below, this court concludes that the 1884 Act was impliedly

repealed by the WMA, as a result of which any rights granted to L WD and Acton under the 1884

Act were extinguished.

THE UNDISPUTED MATERIAL FACTS3

Concord petitioned the state legislature in the late 19th Century for authorization to

withdraw water from Nagog Pond, a fresh water pond located along the border of the towns of

Littleton and Acton. PSUMF ,r 1. In 1884, the General Court passed An Act to Authorize the

2 A motion to intervene was also brought on behalf of the Acton Water Department and was denied as to that entity by order dated March 19, 2019. 3 These are taken from Plaintiffs Statement Of Undisputed Material Facts ("PSUMF"), and were either admitted by L WD and Acton or were objected to by L WD on the grounds that the statements were irrelevant, that L WD had not undertaken discovery in this case, and that it should not be required to expend resources to investigate the accuracy of an immaterial statement. To the extent that the court disagrees with L WD's assessment of the relevance of these statements, it is noted that LWD did not seek relief pursuant to Mass. R. Civ. P. Rule 56(f) and did not file a motion to strike those statements. For purposes of these cross-motions only, the court accepts those statements as true. To the extent that L WD objected on the grounds that the statements were not based on admissible evidence, 'and the court agreed, those statements have been omitted.

2 Town ofConcord to Increase its Water Supply, which gave Concord authorization to withdraw water from Nagog Pond and to undertake acquisitions by eminent domain to support its water withdrawal efforts. PSUMF ,r,r 2-3.

In 1909, Concord recorded an instrument of taking in the Middlesex Registry of Deeds,

Book 3457, Page 221. PSUMF ,r 4. Since 1909, Concord has periodically obtained other parcels abutting Nagog Pond, installed an intake pipe and a dam to hold the water in Nagog

Pond, and constructed a pump house, water mains, and an ozone treatment facility. PSUMF ,r,r

5, 10, 22. Concord completed a major renovation of the dam at Nagog Pond in 2012. PSUMF ,r

23. Presently, Concord owns approximately 40 acres ofland in Littleton and 60 acres ofland in

Acton abutting Nagog Pond, which it acquired pursuant to the 1884 Act. PSUMF ,r 7. Concord is presently in the process of replacing the intake pipe and constructing a new water treatment plant. Supplemental Affidavit of Alan H. Cathcart, sworn to on September 27, 2019, at ,r,r 30-

35.

In 1985, Massachusetts adopted the WMA. PSUMF ,r 11. Pursuant to the WMA, the

Massachusetts Department Of Environmental Protection ("the DEP") adopted the regulations it deemed necessary to establish a "mechanism for managing ground and surface water in the commonwealth in a single hydrologic system ... " M.G.L. c. 21G, § 3. PSUMF ,r 12. The DEP

published regulations pursuant to the WMA at 310 CMR 36.00. PSUMF ,r 13.

Prior to the January 1, 1988 deadline established in G.L. c. 21G, § 5, Concord filed with the DEP its registration statement documenting its historic use ofNagog Pond. PSUMF ,r 14. In

its registration statement, Concord sought registration for an aggregate of 2.1 million gallons per

day ("MGD") for its six historic water withdrawal resources, including surface and groundwater

resources. PSUMF ,r 15. Based on the underlying withdrawal volumes recorded by Concord

3 during the WMA Registration Eligibility Period, the volume attributable to Nagog Pond was

0.89 MGD. PSUMF ,r 16.

DEP issued Concord a registration for Nagog Pond on May 30, 1991 and Concord has timely renewed its registration since then. PSUMF ,r,r 20-21. L WD did not comment on any of

Concord's registration renewals. PSUMF ,r 34.

L WD did not seek to exercise any water withdrawal rights to Nagog Pond under the 1884

Act prior to the enactment of the WMA. PSUMF ,r 30. LWD did not attempt to exercise any water withdrawal rights to Nagog Pond during the period from 1981 to 1985. PSUMF ,r 31.

L WD did not submit any comments on Concord's WMA registration statement to limit or condition Concord's registration in an effort to preserve rights that Littleton may have claimed to withdraw water from Nagog Pond under the 1884 Act. PSUMF ,r 32. LWD registered four groundwater wells in Littleton, but did not establish or assert any active use of Nagog Pond in its registration statement. PSUMF ,r 33.

L WD commissioned a water capacity analysis, the results of which are contained in a report entitled Water System Capacity Analysis Prepared For: Littleton Water Department

Littleton MA dated July 31, 2017 ("Littleton Water Analysis"). Affidavit Of Nick Lawler In

Support Of Defendant Town Of Littleton's Supplemental Memorandum In Support Oflts

Motion For Summary Judgment, sworn to September 26, 2019 ("Lawler Aff."), at ,r 8 and Ex. A.

The Littleton Water Analysis projects that L WD will need additional capacity to meet expected demand on its water resources. Id at ,r 10. According to the General Manager of Littleton's

Electric, Light & Water Department, Mr. Nick Lawler, any use ofNagog Pond by L WD will require a substantial commitment of time and money, as a result of which "it is imperative that

Littleton and [LWD] extinguish, prior to commencing that process, the Town of Concord's

4 incorrect claims that Littleton lacks legal right and authority to exercise its rights to take, hold and use Nagog Pond's waters." Id. at 14.

On or about February 20, 2018, L WD gave notice to Concord of L WD' s intent to exercise its rights under Section 10 of the 1884 Act. LWD Statement of Material Facts

("DSUMF"). Through correspondence and in meetings at various times in 2018, L WD and

Concord discussed that notice of intent. DSUMF ,r 3 7. L WD and Concord were unable to resolve their differences concerning the rights, interests and priorities to use the water from

Nagog Pond. DSUMF ,r 38.

Littleton is currently engaged in permitting new groundwater wells, known as "Cobbs

Wells," at a site not far from Nagog Pond. Lawler Aff. ,r 15. In proceedings before DEP,

Concord has questioned the issuance of a permit for the Cobbs Wells because of a groundwater connection between those proposed wells and Nagog Pong. Id. at ,r 16.

DISCUSSION

The central issue raised by these cross-motions for summary judgment is whether the

WMA impliedly repealed the 1884 Act, such that LWD's and Acton's rights under the 1884 Act were thereby extinguished. There is, however, a threshold issue: whether this case presents an

actual controversy ripe for resolution pursuant to G.L. c. 23 lA, § et seq., because neither L WD

nor Acton has yet applied to use the waters ofNagog Pond under the WMA, a statute to which

both entities agree they are subject and under which they may be denied permits for reasons

having nothing to do with the 1884 Act. As is set forth below, this court concludes that this

action presents an actual controversy, and that the WMA impliedly repealed the 1884 Act.

5 Actual Controversy

As described in Town ofHingham v. Dep 't ofHous. & Cmty. Dev., 451 Mss. 501, 505

(2008), quoting Massachsuetts Ass 'n ofIndep. Ins. Agents & Brokers, Inc. v. Commissioner of

Ins., 373 Mass. 290,291 (1977) and G.L. c. 23 lA, § 9, "[t]he purpose of declaratory judgment is

'to afford relief from uncertainty and insecurity with respect to rights, duties, status and other legal relations.'" "However, in order for a court to provide declaratory relief, an actual controversy- that is, a controversy appropriate for judicial resolution- must exist." Id.

An actual controversy arises "where there is 'a real dispute caused by the assertion by one party of a legal relation, status or right in which he has a definite interest, and the denial of such assertion by another party also having a definite interest in the subject matter, where the circumstances attending the dispute plainly indicate that unless the matter is adjusted such antagonistic claims will almost immediately and inevitably lead to litigation."' Libertarian

Ass 'n ofMass. v. Sec '.Y ofthe Commonwealth, 462 Mass. 538, 546-547 (2012) quoting School

Comm. Of Cambridge v. Superintendent ofSch. Of Cambridge, 320 Mass. 516,518 (1946).

"The phrase 'actual controversy' is, however, to be 'liberally construed.'" Wells Fargo Fin.

Massachusetts, Inc. v. Mulvey, 93 Mass. App. Ct. 768, 771 (2018), quoting Boston v. Keene

Corp., 406 Mass. 301,304 (1989).

Here, all parties contend that there is an actual controversy between: them that is ripe for resolution. While their consensus is not determinative, see Perini Corp. v. Building Inspector of

North Andover, 7 Mass. App. Ct. 72, 76-77 (1979) (declining to issue declaration of rights despite request of both parties), the supplemental briefs and affidavits filed by the parties satisfy this court that there is a real dispute between them as to their respective rights under the 1884

Act and the WMA having immediate consequences. Concord continues to expend significant

6 time and resources preparing for the replacement of the original intake pipe at Nagog Pond and the construction of a new water treatment facility based on its right to draw water from Nagog

Pond under the WMA, efforts that may be worthless if Littleton and Acton have superior rights to the waters of Nagog Pond. Littleton is currently engaged in permitting new groundwater wells in the vicinity ofNagog Pond with the DEP, and Concord has questioned that permitting in view of the impact of the proposed wells on Nagog Pond, a position that loses its merit if Concord's rights in Nagog Pond are subsidiary to Littleton's rights. Littleton also has longer range water needs that it must address, and having clarity as to its rights in Nagog Pond is important as

Littleton expends significant time and money pursuing additional water resources. An actual controversy exists here.

Implied Repeal

In determining whether one statute repeals another, "it is the duty of the court to ascertain the legislative intent and to effectuate it." Doherty v. Commissioner ofAdministration, 349

Mass. 687, 690 (1965). "[T]he touchstone is 'the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied, and the main object to be accomplished, to the end that the purpose of its framers may be effectuated."' Skawski v.

Greenfield Investors Property Development LLC, 473 Mass. 580, 586-587 (2016), quoting

Weems v. Citigroup, Inc., 453 Mass. 147, 153 (2009), quoting Boston Police Patrolmen 's Ass 'n v. Boston, 435 Mass. 718, 720 (2002).

Generally speaking, more recent statutes do not repeal earlier statutes absent express

language to that effect or clear implication. Skawski, 473 Mass. at 586, quoting Commonwealth

v. Palmer, 464 Mass. 773, 777 (2013) ("It is well established that '[a] statute is not to be deemed

7 to repeal or supersede a prior statute in whole or in part in the absence of express words to that effect or of clear implication."). Repeal by implication is not favored. Doherty, 349 Mass. at

690 (principle of implied repeal "is one which the court, in deference to the Legislature, does not regard with favor and applies with caution"); Homer v. Fall River, 326 Mass. 673,676 (1951)

("ordinarily the repeal of a statute by implication is not favored by the law"). Implied repeal must be by an "implication so clear that it overcomes our 'strong presumption against implied repeal of a prior law.'" Skawski, 4 73 Mass. at 586, quoting Dartmouth v. Greater New Bedford

Reg'[ Vocational Tech. Sch. Dist., 461 Mass. 366,374 (2012).

However, "[i]mplied repeal is clear where 'the earlier statute is so repugnant to and inconsistent with the later enactment covering the subject matter that both cannot stand.'"

Skawski, 473 Mass. at 586, quoting Dartmouth, 461 Mass. at 374-375, and Doherty, 349 Mass. at

690. Accord Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Bd, 457 Mass.

663,673 (2010), quoting Dedham Water Co., v. Dedham, 395 Mass. 510,518 (1985) ("The

longstanding test for the principle of implied repeal is whether the prior statute is so repugnant to, and inconsistent with, the later enactment that both cannot stand. Only then is the former

statute repealed."); Boston Housing Authority v. Labor Relations Com., 398 Mass. 715, 718

(1986). "Repugnancy and inconsistency may exist when the Legislature enacts a law covering a particular field but leaves conflicting prior prescriptions unrepealed." Town ofDartmouth, 461

Mass. at 375, quoting Doherty, supra and citing Homer, 326 Mass. at 676. See also IA

Sutherland Statutory Construction§ 23.9 (7th ed.) ("It has been held that courts will infer the repeal of a statute only when: (1) it is clear that a subsequent legislative act conflicts with a prior

act; or (2) a subsequent act of the legislature clearly is intended to occupy the entire field covered by a prior enactment.").

8 The issue of conflicts between a comprehensive statute and prior laws was addressed at some length in Town ofDartmouth:

"Where such a conflict does appear it is the court's duty to give effect to the Legislature's intention in such a way that the later legislative action may not be futile. The earlier enactment must give way." Doherty v. Commissioner ofAdmin., supra. In such circumstances, "the legislative intent to supersede local enactments need not be expressly stated for the State law to be given preemptive effect." Boston Teachers Union, Local 66 v. Boston, supra. "Where legislation deals with a subject comprehensively, it 'may reasonable by inferred as intended to preclude the exercise of any local power or function on the same subject because otherwise the legislative purpose of the statute would be frustrated." Id, quoting Bloom v. Worcester, 363 Mass. 136, 155,293 N.E.2d 268 (1973). See Warr v. Hodges, 234 Mass. 279, 281-282, 125 N.E. 557 (1920). "Thus, a statute designed to deal uniformly with a Statewide problem 'displays on its face an intent to supersede local and special laws and to repeal inconsistent special statutes." Boston Teachers Union, Local 66 v. Boston, supra, quoting McDonald v. Superior Court, 299 Mass. 321,324, 13 N.E.2d 16 (1938).

461 Mass. at 375-376.

In Town ofDartmouth, the Education Reform Act of 1993 was found to be a comprehensive statute governing school funding that impliedly repealed St. 1971, c. 428, which authorized the formation of a vocational regional school district and provided for an agreement between the municipalities in that district as to, among other things, the apportioning of school district expenses. In lvfcDonald v. Superior Court, 299 Mass. 321 (193 8), the dispute was over whether a member of the licensing board of Pittsfield could only be removed under the provisions of the special act creating the city charter, St. 1932, c. 280, § 30, which required action by the mayor and city council, or whether the act regulating alcoholic beverages passed in

1933 as St. 1933, c. 376, G.L. c. 138, providing for removal by the mayor acting alone, governed. According to the McDonald court:

The circumstances attendant upon the enactment of the new c. 138 show that it was the legislative purpose to deal with the whole liquor problem for the entire Commonwealth. It was enacted to take effect upon the repeal of the Eighteenth Amendment to the Constitution of the United States. Its manifest design was to deal with the problem of the control of intoxicating liquor as an entirety. That problem was State-wide. There was

9 importance to the uniformity in the law to govern the administration of the subject. A statue of that nature displays on its face an intent to supersede local and special laws and to repeal inconsistent special statutes. Brown v. Lowell, 8 Met. 172, 174. Copeland v. Mayor & Aldermen ofSpringfield, 166 Mass. 498,504, 44 N.E. 605. O'Connor v. Boyden, 268 Mass. 111. 114, 167 N.E. 268.

299 Mass. at 324.

For other cases of similar import, see Bond Liquor Store, Inc. v. Alcoholic Beverages

Control Com., 336 Mass. 70 (1957) ("The scope of the new section 25C, which is constitutional, is such as to suggest strongly an intention 'to cover the whole subject to which it relates.'")

(citations omitted) (holding that G.L. c. 138, § 23A, was impliedly repealed by G.L. c. 138, §

25C); Doherty, 349 Mass. at 690-691 ("We think that by St. 1962, c. 757, the Legislature, establishing the Executive Office for Administration and Finance, intended to cover comprehensively its structure, methods of operation and procurement of personnel) (holding that

G.L. c. 7, § 4D, impliedly repealed G.L. c. 8, § 4); Boston Housing Authority, 398 Mass. at 719

("the comprehensive nature of G.L. c. 150E must prevail over any limitations which might be read into G.L. c 121B, § 29"). See also Skawski, 473 Mass. at 588 ("The comprehensive scope of the act ... suggests that the Legislature intended to be equally comprehensive in declaring which court departments would have original jurisdiction to adjudicate major development permit appeals.") (holding that the 2006 enactment of G .L. c. 185, § 3 A, establishing a permit session in the Land Court, impliedly repealed G.L. c. 40A, § 17, insofar as the latter statute gave jurisdiction to the Housing court to hear permit appeals).

Turning, then, to the language of the WMA,4 § 3 requires that DEP and the water resources commission of the Executive Office of Environmental Affairs ("the Commission")

4 There have been only minor modifications to the statute since its enactment, the most notable of which are a 1990 amendment to § 5 adding provision allowing for the registration of water withdrawals of 10,000 to 99,999 gallons per day and a 2009 addition to the statute, G .L. c. 21 G, § 20, requiring that well diggers and drillers be certified by DEP. 10 "cooperate in the planning, establishment and management of programs to assess the uses of water in the commonwealth and to plan for future water needs." The Commission is required to

"adopt principles, policies and guidelines necessary for the effective planning and management of water use and conservation in the commonwealth ... as necessary and proper to ensure an adequate volume and quality of water for all citizens of the commonwealth, both present and future." Those principles, policies and guidelines "shall be designed ... to assure comprehensive and systematic planning and management of water withdrawals and use in the commonwealth." DEP "shall adopt such regulations as it deems necessary to carry out the purposes of this chapter, 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" ( emphasis added). With reference to this language, the Supreme Judicial Court stated: "In short, water management, including water conservation, is an important purpose of the Act." Water Dep 't ofFairhaven v. Dep 't ofEnvtl.

Prof., 455 Mass. 740, 747 (2010).

Section 4 sets a withdrawal volume threshold of 100,000 gallons per day ("GPD").

Section 5 requires that any "person"5 making an existing withdrawal in excess of the threshold volume file a registration statement with DEP on or before January 1, 1988 and bars any person from continuing an existing withdrawal in excess of the threshold volume after that deadline, unless the person has complied with the requirements of the WMA and the regulations promulgated thereunder. Section 5 further requires DEP to specify a schedule of expiration dates applicable to each water source from which there are existing withdrawals for which registration

5 A "Person" is defined in§ 2 of the act as "any agency or political subdivision of the federal government or the commonwealth, any state, public or private corporation or authority, individual, trust, firm, joint stock company, partnership, association, or other entity, or any officer, employee or agent of said person, or any group of said persons." 11 statements can be filed, and further provides that registration statements filed for existing withdrawals from the water source shall authorize withdrawals until the next applicable expiration date, not to exceed a term of ten years. "Upon the expiration of any initial or renewal registration statement under this section, the registrant shall be entitled, upon the filing of a renewal registration statement, to continue existing withdrawals specified in the registration statement for a period often years." Id. With reference to this language, the Fairhaven court - stated that "[t]he Act thereby guarantees that any registrant that registered before January 1,

1988, and timely renewed its registration statement may continue forever to withdraw water at the rate of its existing withdrawal," 455 Mass. at 742, and that "the Act 'grandfathered' a registrant's entitlement to existing withdrawals, provided the registrant timely filed a registration

statement and renewals." 455 Mass. at 747.

In contrast to the grandfathered status granted to persons who registered their existing withdrawals, new users of more than the threshold volume of water were barred from making those withdrawals ''unless such person obtains a permit in accordance with the regulations

adopted by the department." WMA, § 7. The WMA sets forth a number of criteria and

standards for obtaining permits, including "[t]he impact of the proposed withdrawal on other water sources which are hydrologically interconnected with the water source from which the

withdrawal is to be made" id. at§ 7 (1), "[t]he water available within the safe yield of the water

source from which the withdrawal is to be made," id. at§ 7(3), and "[t]he use to be made of the

water proposed to be withdrawn and other existing, presently permitted or projected uses of the

water source from which the withdrawal is to be made." Id. at§ 7(5). As noted in Fairhaven,

[t]he department, in its sound discretion, "may issue permits for any new withdrawal of water if it determines that the withdrawal will conform to the regulatory standards established," but it must deny a permit if the proposed withdrawal would exceed the water source's safe yield. G.L. c. 21G, § 11. In granting a permit, the department may

12 attach any conditions it deems necessary to further the Act's purposes or to assure compliance with its regulations. Id

455 Mass. at 4 78.

Section 14 of the WMA authorizes DEP to issue such enforcement orders "as are reasonably necessary to aid in the enforcement provisions of this chapter." Those orders include, but are not limited to "orders modifying, suspending or revoking permits, well driller certifications under section 20 of this chapter, and orders requiring persons to cease any activity which is in violation of the provisions of this chapter or any regulations adopted hereunder."

While this provision does not purport to be exhaustive, the absence of any order modifying, suspending or revoking a registration is notable.

The history behind the WMA was described by the Supreme Judicial Court in Fairhaven:

The Act was a direct response to call for action issued by two separate studies, one commissioned by the executive branch and the other by the Legislature, that reviewed the Commonwealth's water supply and related policies in the late 1970's and early 1980's. . . . While acknowledging that "conflicts in water use are inevitable," the 1978 Water Supply Policy Statement [commissioned by the Executive Office of Environmental Affairs] expressed dismay over the lack of a comprehensive approach to water conservation in the Commonwealth, as well as "the lack of public awareness of the limitations of the water supply and the compromises necessary to assure continued supply. The study recommended the implementation of a centralized Statewide water conservation program.

In 1977, the Legislature established a Special Legislative Commission on Water Supply (special commission), that contracted with an independent law firm with expertise in environmental law "to research existing Massachusetts and federal groundwater law to identify gaps which needed to be filled in the Commonwealth, to look at laws of other states, and to make recommendations concerning legislation which would provide a suitable water resources management framework for Massachusetts with regard to identification of water use, protection of existing users, allocation of water among competing demands, and the integration of ground and surface water as a single hydrologic system." The resulting report found the existing legal framework to be inadequate to promote water conservation in the Commonwealth. To rectify the inadequacy, it proposed legislative adoption of the Act, which the Legislature in 1985 enacted essentially as proposed.

455 Mass. at 745-746 (citations omitted) (emphasis added).

13 The referenced report6 ("the 1983 Report") includes other statements relevant to the present controversy. In its description of the WMA in its introduction, the 1983 Report states that "[t]he Act's requirement of water withdrawal permits for subsequent new users above the threshold amount would not apply to existing withdrawals of water at the time of its effective date." 1983 Report at 7. Furthermore, "DEQE [now DEP] regulations under this Act will establish a mechanism for managing ground and surface waters as a single hydrologic unit, in order to ensure, where necessary, an appropriate balance among competing interests." Id. at 8.

"Institutional and legal inadequacies" were among the "groundwater problems" identified

by the 1983 Report:

Despite the many state, regional and local authorities whose activities are focused on pieces of water management process, no coherent overall management program exists in Massachusetts. Two shortcomings of particular concern are the failure to manage ground and surface water as a single interconnected system, and the lack of a program for the management of water allocation and use in the areas where aquifer stress may make this necessary. Although some local authority· exists to deal with allocation and demand management problems, particularly during water shortage emergencies, local authority is geographically limited and often does not match the regional span of underground aquifers and other water sources.

1983 Report at 12. According to the 1983 Report, "[f]or Massachusetts to develop a coherent

water management program," the Commonwealth needed to address the problem areas identified

in the 1983 Report and, more particularly, "address four essential management problems," one of which was "how to assure that water is allocated properly among those users." Id. at 13.

In addition, the 1983 Report included, as "a key finding of this report," that ground and

surface water are part of a single hydrological system and "whatever restrictions are imposed on

surface water withdrawals and use should be applied equally to groundwater." 1983 Report at

6 Report of the Special Commission Established (Under Chapter 13 of the Resolves of 1977 and Most Recently Revived and Continued by Chapter 9 of the Resolves of 1982) To Make Investigation and Study Relative to Determining the Adequacy of the Water Supply of the Commonwealth. Senate, January 27, 1983. 14 17. After canvassing the available mechanisms for protecting groundwater, including the

Zoning Act and the Wetlands Protection Act, the 1983 Report concluded that "[l]ocal zoning and non-zoning controls exist and their use to promote water management goals can be supervised by the state, but state regulation of the groundwater system, fully integrated with other state regulatory programs, appears to be called for." Id. at 27.

The 1983 Report also considered existing methods of groundwater allocation under the common law with respect to private land owners, and under specific statutory enactments allowing public entities to withdraw or alter the flow of water, and found them to be inadequate.

The authors of the 1983 Report described the WMA, with its limited requirement of a water withdrawal permit only for new withdrawals and not existing withdrawals, as "the minimum level of allocation regulation consistent with its management objectives. The resulting data gathering, registration and permitting system would enable comprehensive regulation of ground and surface water withdrawals in Massachusetts." 1983 Report at 50.

In addition to the 1983 Report, the record in this proceeding also contains documents

from the State Library of Massachusetts-Special Collections Department, Special Collection of

Senator Carol C. Amick, including materials maintained by Sen. Amick as Senate Chair of the

Special Commission that authored the 1983 Report. A review of those documents indicates that members of the Special Commission were aware of pre-existing water rights in Massachusetts,

aware that New Jersey had done away with such rights in its statute and was expecting "massive

litigation" as a result,7 and informed by their consultant, Mr. Miyares, that the proposed

7 Affidavit of Gail E. Magenau Hire, Esq., in Support of Plaintiff's Motion for Summary Judgment dated April 17, 2019 ("Hire Aff."), Ex. C, Memorandum from Lee Dane to Special Legislative Commission on Water Supply dated September 24, 1982. 15 legislation (what would become the WMA) would grandfather existing withdrawals except under emergency conditions. 8

Based on the language of the WMA and its history, this court concludes both that the

1884 Act is repugnant to and inconsistent with the WMA and that the WMA is a comprehensive statute that was designed to address a state-wide problem-the preservation and allocation of water resources-for a resource that does not respect municipal or other political boundaries.

Regarding the conflict between the two statutes, a grant to Littleton and Acton of the right to take the waters ofNagog Pond "whenever said towns or either of them require the same" and authorizing them to "take the waters ofNagog Pond or any part thereof which the town of

Concord may have taken under this act" cannot be reconciled with either the WMA's registration of Concord's existing water withdrawal, described in Fairhaven as a right that "continue[s] forever" so long as the registration is timely renewed, or the WMA's imposition of permitting requirements on Littleton and Acton, under the terms of which Littleton and Acton may, or may not, be permitted to take waters from Nagog Pond.

Regarding the comprehensive nature of the WMA and the state-wide issue-water management-that it was intended to address, the language of the statute and the history of the

Act are replete with references to both. Of particular note are § 3 's requirement that the

Commission adopt principles, policies and guidelines designed "to assure comprehensive and systematic planning and management of water withdrawals and use in the commonwealth," and the WMA's regulation of all water withdrawals by any "person" above the threshold within the

Commonwealth, whether by way of registration or permit. The WMA "displays on its face an

8 Hire Aff. Ex. F, Memorandum from Lee Dane to Special Legislative Commission on Water Supply dated November 8, 1982. 16 intent to supersede local and special laws and to repeal inconsistent special statutes." McDonald,

299 Mass. at 324.

The history of the WMA further supports this conclusion. The 1983 Report identified the lack of a comprehensive water management program as a key problem: "no coherent overall management program exists." The 1983 Report described what the authors saw as necessary "to develop a coherent water management program" and recommended, among other things, that

"state regulation of the groundwater system, fully integrated with other state regulatory programs, appears to be called for."

Part of that history also includes a concern for pre-existing rights created by special acts of the Legislature, such as the 1884 Act here. The General Court chose to address that concern by registering existing water withdrawals and continuing those registrations, upon timely renewal, "forever," presumably to avoid the "massive litigation" expected by New Jersey. The decision to grandfather pre-existing withdrawals appears to have had the desired effect: in the 34 years since the WMA was enacted, and with the exception of this case, research has not revealed any other case in the courts of Massachusetts where a party has relied on water rights granted by a special act, as opposed to the WMA, as the source of their right to take water.

A review of the special acts provides further support for the Legislature's choice.

Research has revealed approximately 650 special acts enacted between 1840 and 1984 granting the right to take and hold waters in the Commonwealth.9 The subjects of these acts are various: permitting municipalities to take waters within their own borders; permitting one municipality to take waters situated within another municipality's borders; permitting one or more municipalities to take water from a particularly identified body of water; and acts incorporating water

9 These special acts are compiled in an appendix attached to this memorandum of decision. 17 companies so that they might do the same. To the extent that the recipients of those water rights were actually using them and, upon enactment of the WMA, registered their water withdrawals pursuant to them, the special acts and the WMA are consistent. Because of this grandfathering, there was no need to repeal the special acts, and the prospect of litigation over pre-existing rights was substantially diminished.

Of the approximately 650 special acts identified, this court found only four where one town was granted the right to take water from a source located in another or other towns and where those other towns were granted a priority if the water supply proved insufficient: the 1884

Act at issue here; St. 1872, c. 188, An Act To Supply The Towns Of Concord And Lincoln With

Pure Water; St. 1911, c. 438, An Act to Regulate The Drawing Of Water From Sandy Pond By

The Towns OfConcordAndLincoln; and St. 1910, c. 450,AnAct To Authorize The Town Of

Sudbury To Supply ItselfAnd Its Inhabitants With Water. In another four special acts, the

Legislature specified priorities between municipalities for withdrawals from a source located within or partially within the municipality's borders. 10 And, in two other special acts, a water company was granted the right to take waters located within the borders of its municipality and to supply other municipalities, with the other municipalities being granted priority. 11

10 St. 1872, c. 335, An Act To Supply The Towns Of Wakefield And Stoneham With Water (granting Wakefield priority over Stoneham for waters located in Wakefield); St. 1879, c. 139, An Act To Incorporate The Hingham Water Company (also authorized to supply part of Hull but Hingham granted priority for waters located partially in Hingham); St. 1881, c. 59, An Act In Addition To "An Act To Incorporate The Hingham Water Company" (authorizing extension of service into Hull and Cohasset, but Hingham and then Hull granted priority); and St. 1912, c. 361, An Act To Authorize The Town OfPaxton to Supply ItselfAnd Its Inhabitants With Water (granting Paxton authority to take the waters of Asnebumskit Pond located within its borders, but reserving sufficient water from Leicester to supply itself). 11 St. 1883 c . .160, An Act To Incorporate The East Weymouth Water Company (granted the right to take waters from Weymouth Great Pond and to connect to the Hingham Water Company, with the Hingham, Hull and Cohasset granted priority); St. 1884, c. 108, An Act To Incorporate The Lancaster Water Company (granted the right to take waters from Spectacle Pond in Lancaster and can connect to the Clinton water supply, with Clinton granted priority). 18 In sum, out of the 650 special acts identified, only ten establish priorities between municipalities with regard to water resources. Leaving aside the 1884 Act, there is no evidence in the record as to whether any of the municipalities granted priority withdrawal rights under the other nine acts registered those rights under the WMA, thus obviating any conflict between those special acts and the WMA insofar as the allocation of water is concerned. Only one special act, the 1884 Act, has been the subject of litigation over how the grant of water rights contained therein exists within the construct of the WMA.

L WD argues, among other things, that the lack of express language repealing the special acts indicates a legislative intent not to repeal them and that the Legislature's concern about litigation if the special acts were terminated "provides a practical reason for the General Court's being in no rush to tinker with hundreds of prior Special Acts."12 To the contrary, it appears that the Legislature concluded that, with the grandfathering of existing withdrawals, repeal was unnecessary and litigation would be avoided. It is reasonable to infer, instead, that the

Legislature impliedly repealed the 18 84 Act to the extent that it grants priority to L WD and

Acton over Concord to the waters ofNagog Pond in derogation of the requirements of the

WMA.

CONCLUSION

For the foregoing reasons, Plaintiff's Motion For Summary Judgment is ALLOWED and

The Littleton Water Department's Cross-Motion For Summary Judgment Pursuant to Mass. R.

Civ. P. 56 and Acton's Cross-Motion For Summary Judgment are DENIED. Judgment shall

12 The Littleton Water Department's Brief In Support Oflts Cross-Motion For Summary Judgment And In Opposition To The Town Of Concord's Motion For Summary Judgment at pp. 8, 10, 14. 19 enter on Concord's complaint declaring that the WMA impliedly repealed the 1884 Act and any rights granted to Littleton and Acton thereunder.

Dated: October 11, 2019

EXHIBIT 10 SENT VIA EMAIL ONLY

February 22, 2021

Peter F. Durning Mackie Shea Durning. PC 20 Park Plaza, Suite 1001 Boston, MA 02116

RE: Comment on BRP WS-19 – Source Final Report, Application for Approval of Pumping Test for a New Source 70 gpm or Greater, Geosphere, August 12, 2020

Dear Mr. Durning:

In reviewing the above-referenced report (the Geosphere report), we determined that Geosphere inaccurately characterizes the impact on Nagog Pond from pumping of the Cobbs Wells. Geosphere concluded that the pumping test conducted in June 2018 had no impact on Nagog Pond. They drew upon the data collected prior to, during and subsequent to the pumping test, and its interpolation, to conclude that an area of impact due to the pumping comes very close to but does not intersect Nagog Pond. This is illustrated in Figure 10 of the Geosphere report. As is shown below, this conclusion is not consistent with the facts.

Geosphere installed a surface water gauge, SG-4, along the northern perimeter of Nagog Pond to measure water levels in the pond. Data from this gauge are plotted in the last page of Appendix A to the Geosphere report. This figure indicates that prior to pumping, Nagog Pond’s water surface elevation was decreasing at a rate of approximately 0.1 inches per day as determined from the slope of a line drawn through the data in their figure. During the pumping test, the rate of decrease increased to approximately 0.2 inches per day. Hence, the rate of decrease during the pumping test was approximately twice the rate of decrease prior to the pumping test, i.e., the water level in Nagog Pond during the pumping test was going down at a rate twice as fast as it was going down prior to the pumping test.

The data collected from SG-4 indicate that some phenomenon or phenomena accelerated the loss of water from Nagog Pond during a period coincident with the Cobbs Wells pumping test. In pursuit of an explanation for this accelerated loss consider first that the total amount of water withdrawn during the pumping test was approximately 11 million gallons (506 gallons per minute over 15 days). Next note that the Nagog Pond water surface elevation is reported by Geosphere to have fallen by a net total of 0.18 feet during the pumping test.1 Multiplication of this drop in elevation by the surface area of Nagog Pond, which is approximately 280 acres in area, reveals that this water level decrease corresponds to a net loss of water from the pond of approximately 16.4 million gallons. It is of interest, however, that this measured loss would have been even greater but for a precipitation event near the end of the 15-day pumping test that noticeably raised the water level in Nagog Pond. In other words, but for this rainfall event the evidence shows that

1 See Table 5 of the Geosphere Report.

150 College Road West, Suite 100, Princeton, NJ 08540 p | 609.924.8821 f | 609.924.8831 Peter F. Durning Page 2 of 3 February 22, 2021 the drop in the Nagog Pond water surface elevation would have been noticeably greater than 0.18 feet.

Next consider that the amount of water in Nagog Pond is a function of several phenomena including flow in and flow out of the pond, evaporation, precipitation, naturally occurring transfer of water into and out of the groundwater aquifer, withdrawals from the pond by the Town of Concord for potable water supply purposes, etc. Taking these additional phenomena into consideration, we determined that the Cobbs Wells pumping during the 15-day test was responsible for approximately 8 million gallons of water lost from Nagog Pond. We also determined that the Cobbs Wells pumping during the 15-day test was responsible for approximately 2.6 million gallons of water lost from Cobbs Pond.

Based upon the above observations and calculations one is forced to conclude that the water lost from Nagog Pond and Cobbs Pond collectively is remarkably close in volume to the water pumped out of the aquifer by the Cobbs Wells during the pumping test. This is logical inasmuch as the water removed by the Cobbs Wells must come from somewhere, and the two ponds that are proximate to the wells are readily accessible obvious choices. Nagog Pond and Cobbs Pond during the pumping test were (and would continue to be if the Cobbs well field were to be pumped as proposed) a primary source of water to be harvested by the Cobbs Wells.

In coming to their conclusions, it appears that Geosphere failed to realize that, because of its aerial extent, even a small drawdown in the Nagog Pond water surface elevation (e.g., a few inches) corresponds to a large volume of water. A conclusion implied in the Geosphere report is that there is relatively little drawdown along the perimeter of Nagog Pond and therefore there is no leakage from it. That conclusion is not consistent with the observed facts and deductions as presented herein. One should not expect to see significant drawdown in the groundwater level adjacent to the pond over the 15 days of the pumping test. This is because the pond is providing the water demanded by the wells and therefore additional water from aquifer storage is not required.2 Once the cone of depression generated by the well field reaches the pond, the pond provides the water needed to satisfy the well field demand at that location over the limited 15 day pumping test conducted. Consequently, there is not a significant decline of the groundwater elevation near Nagog Pond during the limited period of the pumping test. The drawdown was small enough that Geosphere discarded it as an effect. Ultimately, continued pumping would have a more significant impact on the water surface elevation in the ponds.3

Please feel free to contact us if you should have any questions regarding the above.

Sincerely, Sincerely,

Raymond A. Ferrara, Ph.D. George F. Pinder, Ph.D. Chief Professional, Kleinfelder University of Vermont

2 As noted above the change was 0.18 feet or about 2.2 inches and would have been somewhat more but for the precipitation event that occurred near the end of the pumping test. 3 We have previously demonstrated this with our hydrologic balance for Cobbs Pond.

Kleinfelder, 150 College Road West, Suite 100, Princeton, NJ 08540 p | 609.924.8821 f | 609.924.8831 Peter F. Durning Page 3 of 3 February 22, 2021 cc: (via electronic mail) Alan Cathcart Stephen Crane Eric Kelley John Rogers John Shea

Kleinfelder, 150 College Road West, Suite 100, Princeton, NJ 08540 p | 609.924.8821 f | 609.924.8831

EXHIBIT 11

SENT VIA EMAIL ONLY

January 7, 2021

Peter F. Durning Mackie Shea Durning. PC 20 Park Plaza, Suite 1001 Boston, MA 02116

RE: Littleton’s Proposed Cobbs Wells Impact to Cobbs Pond

Dear Mr. Durning:

You have asked us to consider the potential for hydrologic impact to Cobbs Pond and adjacent wetlands from Littleton’s proposed Cobbs Wells. Littleton has proposed three wells known as the Cobbs Wells to be located on the south side of Cobbs Pond. In our previous work on the matter of these proposed wells, we focused our effort on evaluating the potential for impact to Nagog Pond. This letter will augment that work by focusing on the potential for impact specifically to Cobbs Pond and adjacent wetlands within the Cobbs Pond surface watershed.

The surface watershed tributary to Cobbs Pond is depicted in Figure 1. The locations of the three proposed wells are also shown in Figure 1. The surface watershed boundaries as defined by the surface topography were interpolated from analysis of topographic data in the 2019 USGS National Elevation Dataset (NED) and the 2018 USGS 7.5 Minute Topographic Quad Map. The Pond was created more than seventy years ago via the placement of an embankment at the downstream end of the current pond. Within the embankment is a concrete overflow weir approximately five feet wide. The elevation of the crest of the weir effectively controls water level in Cobbs Pond. Flow over the weir proceeds in a northeasterly direction through an existing drainageway with relatively flat topographic features subsequently draining to Nashoba Brook. On the south side of Cobbs Pond, flow enters via drainageways through which water flows in a generally northerly direction into Cobbs Pond. The 2018 Mass DEP Land Use/Land Cover maps show wetlands located along these entrance drainageways as well as along the outlet channel receiving discharge from Cobbs Pond over the weir in the embankment. Adjacent to Cobbs Pond on its west and east sides, topography is relatively steep contributing overland flow and groundwater discharge to Cobbs Pond.

The Cobbs Pond surface watershed defined by surface topography is not difficult to delineate. But, as we have noted in our prior reports 1, surface watershed boundaries do not necessarily coincide with subsurface watershed boundaries, especially in areas impacted by well withdrawal. The subsurface system in this vicinity is characterized by overlying glacial deposits approximately 15 feet deep underlain by fractured bedrock. Our previous reports have opined that the Cobbs Wells will draw groundwater from well beyond the Cobbs Pond surface watershed boundary. It is clear that ultimately, pumping of the Cobbs Wells will impact surface waterbodies in the area. Due to its proximity to the wells, water level in Cobbs Pond will be especially impacted.

1 For example, see our reports dated June 21, 2017, September 27, 2017, and November 13, 2018.

150 College Road West, Suite 100, Princeton, NJ 08540 p | 609.924.8821 f | 609.924.8831

Peter F. Durning Page 2 of 3 January 7, 2021

To further illustrate this, we constructed a hydrologic budget (i.e., a water balance) for Cobbs Pond. The budget considers the inflows to and outflows from the Pond. For current conditions, inflows include (a) the net watershed contribution to Cobbs Pond due to overland flow, stream flow and groundwater discharge into the pond, and (b) direct precipitation onto the water surface of Cobbs Pond. Outflows from Cobbs Pond include (a) evaporation from the pond surface, and (b) flow over the outlet weir. We completed a hydrologic budget from readily available data calculating inflows, outflows and resultant water level in Cobbs Pond on a daily basis for a five year period (2015 through 2019).2 The results calculated for existing conditions during the five year period are illustrated in Figure 2. While a more refined hydrologic budget could be prepared with a much more extensive effort, the preliminary hydrologic budget provides realistic results. In general, for most of each year there is some flow over the outflow weir. However, during the dryer times of some years (e.g., summer of 2016), the water surface elevation dips several inches below the weir elevation and there is no flow over the weir. Inflow from groundwater nevertheless may be capable of sustaining some of the important wetland areas.

Figures 3 and 4 illustrate the Cobbs Pond response to pumping from the proposed Cobbs Wells. For the same five year period (2015 – 2019) the hydrologic budget for Cobbs Pond was completed with the addition of a term representing groundwater withdrawal due to the Cobbs Wells. The applicant’s requested Cobbs Wells withdrawal rate is 0.55 million gallons per day 3. Figure 3 illustrates the Cobbs Pond water surface elevation response if only 10% of that is taken from the Cobbs Pond water budget. It is probable that more than 10% of the wells’ withdrawal will come from the local Cobbs Pond watershed. Figure 4 illustrates the response if 20% of the withdrawal will come from the Cobbs Pond watershed. Clearly there is a dramatic effect on Cobbs Pond and surrounding wetlands, with the clear opportunity for Cobbs Pond to become completely dry during parts of some years. During the withdrawal of water by the Cobbs Wells, and particularly during those lengthy periods when Cobbs Pond may be completely dry, the associated wetlands will suffer deprivation due to lack of water. As the dry conditions persist, the nature of these wetlands could be diminished, potentially to the point where they cease to exhibit wetland characteristics. Lastly, extended dry periods would also prevent water from overtopping the Cobbs Pond weir which will have a significant adverse effect on Nashoba Brook which currently receives water from the Cobbs Pond system.

This hydrologic budget calculation further supports our previously expressed opinion that the proposed Cobbs Wells will substantially impact local water resources, and in particular surface water impoundments like Cobbs Pond and Nagog Pond. Furthermore, and perhaps more important, these calculations show that the Cobbs Wells will intercept water normally available to support water levels in the wetlands in the local watershed It is probable that there will not be sufficient shallow groundwater to sustain the wetlands in their current condition. Certainly, a diminution and possibly a complete elimination of these wetlands will occur, and the extended operation of the Cobbs Wells will also have a negative impact on Nashoba Brook.

2 Transect depth data reported in Appendix G to an October 28, 2011 Geosphere Memorandum entitled Project Status Report I Cobb’s Pond Bedrock Wells, Littleton, MA was used to characterize the shape for Cobbs Pond. 3 December 7, 2020 email notification from Susan Connors, Mass DEP, regarding Littleton’s application for a new WMA Permit.

Kleinfelder, 150 College Road West, Suite 100, Princeton, NJ 08540 p | 609.924.8821 f | 609.924.8831

Peter F. Durning Page 3 of 3 January 7, 2021

Please feel free to contact us if you should have any questions regarding the above.

Sincerely, Sincerely,

Raymond A. Ferrara, Ph.D. George F. Pinder, Ph.D. Chief Professional, Kleinfelder University of Vermont

cc: (via electronic mail ) Alan Cathcart Stephen Crane Eric Kelley John Rogers John Shea

Kleinfelder, 150 College Road West, Suite 100, Princeton, NJ 08540 p | 609.924.8821 f | 609.924.8831 >! Cobbs-2 >! Cobbs-3 >! Cobbs-1

FIGURE 1: >! Cobbs Pond Wells PROJECT #: 6587 COBBS POND WATERSHED Cobbs Pond Watershed DRAWN: January 2021 Land Use Land Cover (2016 MassDEP) DRAWN BY: ELD

Palustrine Emergent Wetland CHECKED BY: RAF

Cobbs Pond Palustrine Forested Wetland FILE NAME: Littleton, MA Palustrine Scrub/Shrub Wetland \\azrgisstorp01\GIS_Projects\Client\Concord\Figure1.mxd [ 0 750 1,500 2018 USGS 7.5 Minute Topographic Quad Map 150 College Road West, Suite 100, Princeton, NJ 08540 2016 MassDEP Land Use/Land Cover 609-924-8821 " www.Kleinfelder.com Feet Figure 2: Cobbs Pond Water Surface Elevation Versus Time (Outlet Weir Elevation at 0.0) 1

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Cobbs Pond Bottom @ -4.50 -4.5 8/14/2013 12/27/2014 5/10/2016 9/22/2017 2/4/2019 6/18/2020 Time (day) Figure 3: Cobbs Pond Water Surface Elevation Versus Time (Outlet Weir Elevation at 0.0) (Withdrawal at 10% of 0.55 MGD) 1

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Cobbs Pond Bottom @ -4.50 -4.5 8/14/2013 12/27/2014 5/10/2016 9/22/2017 2/4/2019 6/18/2020 Time (day) Figure 4: Cobbs Pond Water Surface Elevation Versus Time (Outlet Weir Elevation at 0.0) (Withdrawal at 20% of 0.55 MGD) 1

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Cobbs Pond Bottom @ -4.50 -4.5 8/14/2013 12/27/2014 5/10/2016 9/22/2017 2/4/2019 6/18/2020 Time (day)

March 18, 2021

VIA ELECTRONIC AND FIRST CLASS MAIL

Ms. Purvi P. Patel, EIT Massachusetts Environmental Policy Act (MEPA) Office Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900 Boston, MA 02114 [email protected]

Re: Littleton – Cobbs Pond Bedrock Source Development, EEA No. 16309

Dear Ms. Patel:

On behalf of the Town of Concord (“Concord”), I am submitting comments on the Littleton Water Department’s (“LWD”) Environmental Notification Form (“ENF”) for the Cobbs Pond Bedrock Source Development Project (the “Project”) for three bedrock public water supply wells to be located near Cobbs Pond in Littleton (the “Cobbs Pond Wells”). This comment letter is a supplement to Concord’s prior submittal on March 1, 2021.

As noted in the March 1, 2021 letter, Concord anticipated a decision from the Supreme Judicial Court on LWD’s appeal of Judge Jennifer S.D. Roberts’ decision in the Land Court. On March 11, 2021, the SJC issued its decision in Town of Concord v. Water Dept. of Littleton & another, SJC-12947 (March 11, 2021) (hereinafter, “Concord v. LWD”). A copy of the slip opinion in Concord v. LWD is attached as Exhibit A.

Counsel for Littleton observed in their March 16, 2021 letter to the MEPA Office that the SJC decision confirmed that Littleton and Acton retain the ability to be authorized to take water from Nagog Pond; however, LWD de-emphasized the core holding from the SJC decision: that the priority provision in Section 10 of the 1884 Act “is repugnant to the WMA because it directly interferes with the WMA’s comprehensive regulatory provisions.” Concord v. LWD, slip op. at 13. The SJC concluded that “should Littleton, Acton, or both, choose to exercise their rights to take the waters of Nagog Pond and apply for a permit under the WMA, the 1884 act will not provide it with a priority right over Concord’s registration.” Concord v. LWD, slip op. at 14.

The SJC’s decision confirming that the WMA impliedly repealed the priority provision in Section 10 of the 1884 Act is significant to the MEPA Office’s review of the Project. Prior to the recent SJC decision, LWD maintained that it held superior rights to Nagog Pond and that it was authorized by the 1884 Act to make withdrawals that would interfere with Concord’s exercise of its Registration. Based on this posture, LWD could blithely assert that, even if the Cobbs Pond Ms. Purvi P. Patel, EIT March 18, 2021 Page 2

Wells intercepted Nagog Pond water, LWD enjoyed a priority right to take water from Nagog Pond ahead of Concord under Section 10 of the 1884 Act, and therefore the impact was of no concern. The SJC decision in Concord v. LWD provides a definitive ruling that LWD does not enjoy any priority under the 1884 Act with respect to withdrawals from Nagog Pond. Accordingly, any withdrawal at the Cobbs Pond Wells, which as discussed in greater detail below, necessarily impacts Nagog Pond, will interfere with Concord’s exercise of its registered withdrawal under the WMA, and should be a concern for the MEPA Office and MassDEP.

In its March 1, 2021 letter, Concord respectfully requested that the Secretary use her discretion to “request additional information from LWD regarding the impact of the Project on Concord’s WMA Registration” pursuant to 301 CMR 11.06(5). Concord renews this request. The information LWD has provided to date simply does not address the impact of its proposed Cobbs Pond Wells on Concord’s Registration.

In contrast, technical professionals that Concord has engaged to evaluate and model the impacts the Cobbs Pond Wells will have on Nagog Pond have concluded that the Project will impact the water resources in Nagog Pond and, consequently, Concord’s Registration. These conclusions are found in the February 15, 2019 and February 22, 2021 comment letters from Raymond A. Ferrara, Ph.D. from Kleinfelder, and George F. Pinder, Ph.D. from the University of Vermont, which were included in Concord’s initial comment letter on March 1, 2021.

Concord’s comment letters have stressed the direct impact the Project’s withdrawal will have on Nagog Pond. In its February 15, 2019 letter, Concord emphasized the following observations from its technical team:

Littleton has not demonstrated that there will not be long-term impact to Nagog Pond. The extent of the cone of depression due to the Cobbs Wells over the long term is not represented by the pumping test results alone, and unquestionably will be larger than observed in this test. No one can determine from the information presently at hand the magnitude of the impact that the wells will have on Nagog Pond, but one can conclude that it will occur and that it will likely be substantially larger than observed during this test.

In the absence of Littleton’s willingness to conduct this important investigation, Concord had its technical team assess the magnitude of the impact the Cobbs Pond Wells will have on Nagog Pond.

Specifically, in addition to the analysis of Littleton’s own pump test data that was presented in Concord’s February 22, 2021 letter, Messrs. Ferrara and Pinder utilized “a groundwater model of the region using the three-dimensional, finite-difference, computer code MODFLOW-2000” to conduct a simulation of the subsurface flow in the region encompassing Cobbs Pond, Nagog Pond, and the proposed Cobbs Pond Wells. Their findings are presented in their March 17, 2021 letter, a copy of which is attached as Exhibit B. As Messrs. Ferrara and Pinder note, “MODFLOW is the industry standard for calculation of the impact of well pumping on groundwater systems.”

Ms. Purvi P. Patel, EIT March 18, 2021 Page 3

Significantly, Messrs. Ferrara and Pinder found that, “[b]ased on the water balance calculation, the [MODFLOW] model indicates the rate of water flowing from Nagog Pond to the Cobbs Wells during the pump test was approximately 326 gpm.” They also observe that “[o]ver a 15 day period (which was the duration of the pump test) a total of approximately 7 million gallons of water would flow from Nagog Pond to the Cobbs Wells.”

In light of the SJC’s holding that LWD does not enjoy any priority over Concord with respect to withdrawals from Nagog Pond, Concord asserts that, based on this strong technical information demonstrating a material impact to Nagog Pond, MassDEP’s permit review and the this current review by the MEPA Office must take into account how the Project’s impact to Nagog Pond will have a detrimental impact on Concord’s exercise of its WMA Registration. But even more fundamental to the MEPA review of the Project’s Damage to the Environment pursuant to 301 CMR 11.03, the Secretary should scrutinize the long-term impacts from the Cobbs Pond Wells on the regional watershed, including Nagog Pond.

LWD has denied that its proposed Cobbs Pond Wells will have any impact on Nagog Pond. Even in its March 16, 2021 submission, LWD’s consultants assert that “it is our professional opinion that the results of the 15-day pumping test that was conducted on the Cobbs Pond Wells document that groundwater influence from the wells approaches but does not intercept Nagog Pond.” (emphasis added).

However, the February 22, 2021 and March 17, 2021 comment letters from Messrs. Ferrara and Pinder demonstrate that LWD’s assertion of no impact on Nagog Pond is simply not accurate. In the February 22 letter, Messrs. Ferrara and Pinder demonstrated that the Applicant’s own data indicates the Cobbs Pond Wells did intercept Nagog Pond water during the 15-day pump test. In the March 17 letter, they presented the further MODFLOW analysis (the same analysis which Concord urged MassDEP to direct the Applicant to complete in its comment letters following LWD’s pumping test) which demonstrates that, if LWD is permitted to operate the Cobbs Pond Wells as presented in their MEPA filings, the long-term impact on the watershed and the environmental conditions in Nagog Pond will be profound. As noted by Messrs. Ferrara and Pinder, “the applicant has not proven there would be no impact on Nagog Pond” and, on the contrary, the modeling described in their March 17, 2021 letter “provides yet another scientific demonstration that the Cobbs Wells will have a substantial impact on Nagog Pond.”

Based on the wealth of scientific data and analysis Concord has provided to MassDEP and the MEPA Office, Concord respectfully requests that the Secretary consider the potential damage to the environment the Cobbs Pond Wells will have at Nagog Pond.

In addition to the substantial impact the Cobbs Pond Wells will have on Nagog Pond, the LWD has also not responded to the technical information Concord provided regarding the direct impact to Cobbs Pond. In its March 16, 2021 submittal, LWD dodges Kleinfelder’s January 7, 2021 analysis of the hydraulic impact on Cobbs Pond and asserts that it will respond in the context of the MassDEP permit review process. This response is not sufficient. The hydraulic analysis performed by Kleinfelder shows that the Cobbs Pond Wells “will intercept water normally available to support water levels in the wetlands in the local watershed” connected to Cobbs Pond, Ms. Purvi P. Patel, EIT March 18, 2021 Page 4 and that “[i]t is probable that there will not be sufficient shallow groundwater to sustain the wetlands in their current condition.” In their January 7, 2021 comment letter, Messrs. Ferrara and Pinder also concluded that there is the “opportunity for Cobbs Pond to become completely dry during parts of some years,” and that “the extended operation of the Cobbs Wells will also have a negative impact on Nashoba Brook.” When Cobbs Pond dries up, the Cobbs Pond Wells will likely increase the impermissible withdrawal from Nagog Pond.

In closing, Concord renews its comment that LWD’s ENF does not provide sufficient information to assess the environmental impacts from the proposed Cobbs Pond Wells. Based on the analysis provided by Ray Ferrara and George Pinder, including their January 7, 2021 hydraulic analysis which has gone unanswered by the Applicant, it is evident that the operation of the Cobbs Pond Wells will be detrimental to the integrity of Cobbs Pond and its associated wetlands. In addition, Concord warns, yet again, that the proposed Cobbs Pond Wells will intercept and divert water from Nagog Pond, which will have a deleterious impact on Nagog Pond, and will improperly interfere with Concord’s WMA Registration. This opinion is bolstered by the additional model of simulated groundwater flow presented with this comment letter.

Concord respectfully requests that the MEPA Office and MassDEP exercise their regulatory discretion over this Project to demand a more detailed hydrologic analysis from LWD regarding the long-term impacts from the Project on Nagog Pond and Cobbs Pond, and if the Project is allowed to proceed, to impose conditions on its operation which will protect and preserve Concord’s registered withdrawal from Nagog Pond.

Very truly yours,

Peter F. Durning

Raymond Talkington, Ph.D., P.G., Principal Hydrogeologist, Geosphere Environmental Thomas J. Harrington, Esq., Miyares and Harrington LLP J. Raymond Miyares, Esq., Miyares and Harrington LLP

S:\CONCRD\CONCRD.03\LWD Cobbs Wells\MEPA\[2021.03.18] Town Of Concord Supplemental Comment Letter To MEPA On LWD's ENF For Cobbs Pond Wells.Docx

EXHIBIT A NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; [email protected]

SJC-12947

TOWN OF CONCORD vs. WATER DEPARTMENT OF LITTLETON & another.1

Suffolk. December 2, 2020. - March 11, 2021.

Present: Budd, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.

Water. Municipal Corporations, Water supply, Special act. Statute, Construction, Repeal, Special law.

Civil action commenced in the Land Court Department on November 8, 2018.

The case was heard by Jennifer S.D. Roberts, J., on motions for summary judgment.

The Supreme Judicial Court granted an application for direct appellate review.

Bryan F. Bertram for the defendant. Jeffrey L. Roelofs for the intervener. Peter F. Durning for the plaintiff.

CYPHER, J. The Legislature passed the Water Management Act

(WMA), G. L. c. 21G, in 1985, establishing a Statewide regulatory program for water withdrawals, prohibiting withdrawal

1 Town of Acton, intervener. 2 of more than 100,000 gallons per day from any water source without a registration or permit. See G. L. c. 21G, §§ 2, 4, 5,

7. Under the WMA, an existing user of a water source could register their previous usage, and a new user had to apply for a permit. G. L. c. 21G, §§ 2, 5, 7. This case concerns whether the WMA impliedly repealed the special act, passed by the

Legislature in 1884, that granted Concord the right to use Nagog

Pond, located in Littleton and Acton, as a public water supply.

St. 1884, c. 201 (1884 act). The 1884 act not only granted

Concord the right to "take and hold" the waters of Nagog Pond for water supply purposes, but it also provided that Littleton,

Acton, or both towns could take the waters of the pond if needed and that in the case of such taking, the water supply needs of

Littleton and Acton "shall be first supplied" if "the supply of water in [Nagog Pond] shall not be more than sufficient for the needs of the inhabitants of the towns of Acton and Littleton."

St. 1884, c. 201, §§ 2, 10. In 1909, Concord exercised its rights under the 1884 act to take the waters of Nagog Pond, and it still uses the pond as a public water supply. Littleton and

Acton have not exercised their rights under the 1884 act, and the issue before us is whether those rights still exist after the passage of the WMA.

Concord commenced this action against the Littleton water department (Littleton), seeking declaratory relief in the Land 3

Court, and Acton's motion to intervene was allowed. A judge concluded that the 1884 act was impliedly repealed by the WMA, thereby extinguishing Littleton and Acton's rights under the

1884 act. Our holding narrows the judge's decision, as we conclude that the WMA impliedly repealed the provision of the

1884 act that provided that the needs of the inhabitants of

Littleton and Acton "shall be first supplied." See St. 1884, c. 201, § 10. We further determine that the WMA did not impliedly repeal the provisions of the 1884 act that granted

Concord the right to "take and hold" the Nagog Pond waters,

St. 1884, c. 201, § 2, and that provided Littleton and Acton with the right to take the water if needed, St. 1884, c. 201,

§ 10.

Background. 1. Concord's use of Nagog Pond. In the late

Nineteenth Century, Concord, a neighboring town of Acton, petitioned the Legislature to authorize Concord to withdraw water from Nagog Pond. In 1884 the Legislature passed "An Act to authorize the town of Concord to increase its water supply."

St. 1884, c. 201. The 1884 act allowed Concord to "take and hold" the waters of Nagog Pond and adjacent land necessary for

"raising, holding, diverting, purifying and preserving such waters, and conveying the same." St. 1884, c. 201, § 2.

A provision of the 1884 act related to the reservation of rights of Littleton and Acton, providing that nothing in the 4

1884 act prevented the towns from taking the waters of Nagog

Pond "whenever said towns or either of them may require" for water supply purposes. St. 1884, c. 201, § 10. It further provided that "if from any reason the supply of water in [Nagog

Pond] shall not be more than sufficient for the needs of the inhabitants of the towns of Acton and Littleton, then the needs of the inhabitants of said towns shall be first supplied"

(priority provision). Id.

In 1909, Concord exercised its rights under the 1884 act.

It registered an instrument of taking in the Middlesex registry of deeds for all the waters of Nagog Pond, all the land beneath it, and certain plots and rights of way around the pond.

Concord since has obtained more land in Acton and Littleton in connection with its water supply needs.

2. Water Management Act. The Legislature passed the WMA in 1985, in "direct response to calls for action issued by two separate studies, one commissioned by the executive branch and the other by the Legislature, that reviewed the Commonwealth's water supply and related policies in the late 1970's and early

1980's." Water Dep't of Fairhaven v. Department of Envtl.

Protection, 455 Mass. 740, 745 (2010) (Fairhaven). The studies identified the need for an improved legal framework and management of demand to accommodate users and protect water conservation. See id., quoting Massachusetts Water Supply 5

Policy Statement: Summary Report 2 (1978) ("if all reasonable uses are to be accommodated, if resource and environmental values are to be protected, a new response in the form of managing demand will be required"), and 1983 Senate Doc. No.

1826. The Legislature established a special commission, which hired an independent law firm, to research the existing groundwater legal structure and identify areas for improvement.

Fairhaven, supra at 745. The Legislature adopted the commission's proposed legislation "essentially as proposed" as the WMA. Id. at 746. See G. L. c. 21G.

The WMA established a Statewide regulatory program with a registration and permitting framework, with registration reserved for users with existing2 water usage and permits for new users. See G. L. c. 21G, §§ 2, 5, 7; Fairhaven, supra at 747.

Pursuant to the WMA, Concord submitted a registration for its historic water withdrawal from Nagog Pond, and the Department of

Environmental Protection (department) issued Concord a registration in 1991.

3. Present proceedings. Littleton commissioned a report on its water needs, completed in 2017, which concluded that "to meet future water demands, additional withdrawals at existing

2 "Existing withdrawals" are those that were in place and registered with the predecessor to the Department of Environmental Protection on or before January 1, 1988. G. L. c. 21G, §§ 2, 5. See note 5, infra. 6 well facilities or permitting of withdrawals at new facilities will be necessary." Littleton identified Nagog Pond as a potential new source of water and notified Concord that it intended to exercise its rights under St. 1884, c. 201, § 10.

Concord objected and, after negotiations did not resolve the issue, commenced this action in the Land Court for declaratory judgment. Concord sought a "judicial determination on the extent to which the WMA repealed and superseded the 1884

[a]ct and the extent to which Concord's [r]egistration pursuant to the WMA is superior to any assertion by Littleton that it has rights to Nagog Pond."

The parties filed cross motions for summary judgment, and the judge granted Concord's motion and denied Littleton and

Acton's motions. The judge concluded that "the 1884 [a]ct was impliedly repealed by the WMA, as a result of which any rights granted to [Littleton] and Acton under the 1884 [a]ct were extinguished." She further determined that to the extent that the holders of water withdrawal rights under special acts3

3 A special act usually refers to "legislation addressed to a particular situation, that does not establish a rule of future conduct with any substantial degree of generality, and may provide ad hoc benefits of some kind for an individual or a number of them." Commissioner of Pub. Health v. Bessie M. Burke Memorial Hosp., 366 Mass. 734, 740 (1975). In the memorandum of decision, the judge noted that "[r]esearch has revealed approximately 650 special acts enacted between 1840 and 1984 granting the right to take and hold waters in the Commonwealth. The subjects of these acts are various: permitting 7 preceding the WMA, including the 1884 act, "were actually using

[those rights] and, upon enactment of the WMA, registered their water withdrawals pursuant to them, the special acts and the WMA are consistent." Littleton and Acton timely appealed, and we granted the parties' joint application for direct appellate review.

Discussion. "As the case was decided below on motions for summary judgment on an undisputed record, one of the moving parties is entitled to judgment as a matter of law" (quotation and citation omitted).4 Arias-Villano v. Chang & Sons Enters.,

Inc., 481 Mass. 625, 627 (2019). "The single issue raised is one of statutory interpretation, and we review the motion judge's decision de novo" (citation omitted). Id.

In addition, "[q]uestions of statutory construction are questions of law, to be reviewed de novo." Meyer v. Veolia

Energy N. Am., 482 Mass. 208, 211 (2019), quoting Bridgewater

State Univ. Found. v. Assessors of Bridgewater, 463 Mass. 154,

municipalities to take waters within their own borders; permitting one municipality to take waters situated within another municipality's borders; permitting one or more municipalities to take water from a particularly identified body of water; and acts incorporating water companies so that they might do the same."

4 The judge noted that Littleton and Acton objected to certain statements in Concord's statement of undisputed material facts but did not seek relief pursuant to Mass. R. Civ. P. 56 (f), 365 Mass. 824 (1974), and did not file a motion to strike those statements. 8

156 (2012). "We interpret a statute according to the intent of the Legislature, which we ascertain from all the statute's words, 'construed by the ordinary and approved usage of the language' and 'considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished.'" Meyer, supra, quoting Harvard

Crimson, Inc. v. President & Fellows of Harvard College, 445

Mass. 745, 749 (2006). "Ordinarily, where the language of a statute is plain and unambiguous, it is conclusive as to legislative intent." Meyer, supra at 211-212, quoting Cianci v.

MacGrath, 481 Mass. 174, 178 (2019).

1. Implied repeal. "[T]he provisions of a special act generally prevail over conflicting provisions of a subsequently enacted general law, absent a clear legislative intent to the contrary." Dartmouth v. Greater New Bedford Regional Vocational

Tech. High Sch. Dist., 461 Mass. 366, 374 (2012), quoting Boston

Teachers Union, Local 66 v. Boston, 382 Mass. 553, 564 (1981).

The WMA does not contain an express provision repealing the 1884 act, and therefore we must look to whether the WMA impliedly repealed the 1884 act.

Repeal of a statutory enactment by implication is disfavored under our jurisprudence. See Dartmouth, 461 Mass. at

374, and cases cited. See also George v. National Water Main

Cleaning Co., 477 Mass. 371, 378 (2017), quoting Commonwealth v. 9

Harris, 443 Mass. 714, 725 (2005) ("Where two statutes appear to be in conflict, . . . we 'endeavor to harmonize the two statutes so that the policies underlying both may be honored'").

"This strong presumption against implied repeal of a prior law is overcome only when the earlier statute 'is so repugnant to and inconsistent with the later enactment covering the subject matter that both cannot stand.'" Dartmouth, 461 Mass. at 374-375, quoting Doherty v. Commissioner of Admin., 349 Mass.

687, 690 (1965). Implied repeal may also exist "where the subsequent legislation comprehensively addresses a particular subject and impliedly supersedes related statutes and common law that might frustrate the legislative purpose" (citation omitted). Skawski v. Greenfield Investors Prop. Dev. LLC, 473

Mass. 580, 586 (2016). See Dartmouth, supra at 375, quoting

Doherty, supra ("[r]epugnancy and inconsistency may exist when the Legislature enacts a law covering a particular field but leaves conflicting prior prescriptions unrepealed"). However, the comprehensive nature of a statute alone does not automatically result in implied repeal; "[i]n the absence of irreconcilable conflict between an earlier special statute and a later general one the earlier statute will be construed as remaining in effect as an exception to the general statute."

Dartmouth, supra at 375, quoting North Shore Vocational Regional

Sch. Dist. v. Salem, 393 Mass. 354, 359 (1984). 10

2. Scope of the WMA. It is clear from the statutory text that the WMA is comprehensive as it relates to the regulation of water withdrawals. As discussed supra, the Legislature passed the WMA in 1985 to address the framework for management of the demand for the Commonwealth's water resources. Fairhaven, 455

Mass. at 745. At the time of the WMA's passage, there was no

Statewide regulatory system to coordinate water withdrawals.

1983 Senate Doc. No. 1826. The Legislature therefore created a program to regulate water withdrawals, which was to be overseen by the department and the Water Resources Commission.5 Id. at 7-

8. See G. L. c. 21G, § 3.

Through the WMA's regulatory system, private and public water suppliers could withdraw water by registration or by permit.6 See G. L. c. 21G, §§ 2, 5, 7; Fairhaven, 455 Mass. at

747. Users who had taken from a water supply before the WMA's passage went through the registration process, whereas new users went through the permitting process. G. L. c. 21G, §§ 2, 5, 7.

If a registrant timely filed a registration statement and renewals, the registrant was entitled to existing withdrawals.

Fairhaven, supra ("registrant is not required to obtain

5 At the time of the WMA's passage, the department was known as the Department of Environmental Quality Engineering.

6 The act only regulates water withdrawals of 100,000 gallons per day or more. G. L. c. 21G, § 4. 11 permission to continue existing withdrawals"). See G. L. c. 21G, §§ 2, 5. By registering and timely renewing, a registrant "may continue forever to withdraw water at the rate of its existing withdrawal," except in the case of a declared water emergency. Fairhaven, supra at 742 & n.4. See G. L. c. 21G, §§ 5, 15, 17.

Unlike the process established for withdrawal by registration, potential users who previously had not established water usage needed a permit from the department, which required the applicant, among other things, "to detail the anticipated environmental impact of the proposed withdrawal and to consider alternatives to lessen that impact." Fairhaven, 455 Mass. at

748. See G. L. c. 21G, §§ 2, 7, 8; Fairhaven, supra at 747

("Withdrawal by registration is treated very differently from withdrawal by permit").

3. Repugnancy and inconsistency. We next look to whether the 1884 act is within the comprehensive nature of the WMA described above, and if so, whether any part of it is "repugnant to and inconsistent with the [WMA]." Dartmouth, 461 Mass. at

374-375, quoting Doherty, 349 Mass. at 690. The parties make various arguments in support of their positions, which can be distilled to the following. Littleton argues that the two acts can be harmonized, and specifically that the priority provision is not in conflict with the WMA because the priority provision 12 relates to Littleton's and Acton's power to take ownership rights and interest in Nagog Pond, and not to administrative regulation of withdrawals. Acton similarly contends that there is not an implied repeal and that the "statutory rights established in the 1884 [a]ct . . . are separate and distinct from the [WMA's] regulatory rights and requirements." Concord disagrees, arguing that the WMA impliedly repealed Littleton's and Acton's unexercised withdrawal rights and the priority provision in the 1884 act. We conclude that the priority provision is inconsistent with and repugnant to the WMA, and therefore that the WMA resulted in a partial repeal of the 1884 act.

The priority provision provides that "in case of such taking by [Acton or Littleton], if from any reason the supply of water in [Nagog Pond] shall not be more than sufficient for the needs of the inhabitants of the towns of Acton and Littleton, then the needs of the inhabitants of said towns shall be first supplied." St. 1884, c. 201, § 10. By providing that Littleton and Acton "shall be first supplied," this provision falls within the WMA's comprehensive regulatory scheme.

Littleton argues that this priority provision provides it and Acton with a reserved property right, and because the WMA concerns regulatory registration and permitting -- not property rights -- harmony between the acts is straightforward. The 13 priority provision, however, is repugnant to the WMA because it directly interferes with the WMA's comprehensive regulatory provisions. See Dartmouth, 461 Mass. at 374-375. Rather than the department following the WMA's provisions to allocate water withdrawals through the registration and permitting process, the priority provision would in effect require the department to allow Littleton and Acton to begin withdrawals based on the towns' needs. Depending on the water needs of Acton, Littleton, or both, their prioritization could require the department to displace partially or completely Concord's water usage, overriding the procedures put in place by the WMA. See G. L. c. 21G, §§ 5, 7.

On the other hand, the 1884 act's provisions providing

Concord the right to "take and hold" Nagog Pond, St. 1884, c. 201, § 2, and of Littleton and Acton to take the waters of

Nagog Pond when they may require them for water supply purposes,

St. 1884, c. 201, § 10, are not repugnant to the WMA. Unlike the priority provision, these rights differ from the allocation of water withdrawals and can be handled by the department through the WMA's registration and permitting process. The 1884 act's provision allowing Littleton and Acton to take the waters of Nagog Pond if they so require just puts Littleton and Acton into the WMA's regulatory process -- it does not force the department's hand to prioritize water withdrawal rights in 14 contravention of the WMA. Similarly, the continued validity of the provision allowing Concord to "take and hold" the waters of

Nagog Pond does not interfere with the WMA's regulatory scheme, as it also simply resulted in Concord taking part in the WMA's regulatory process. Therefore, these provisions are not within the comprehensive scope of the WMA and are consistent with it.

Conclusion. For the foregoing reasons, we conclude that the WMA impliedly repealed the priority provision in St. 1884, c. 201, § 10, but that it did not impliedly repeal the provisions of the 1884 act that granted Concord the right to

"take and hold" the Nagog Pond waters, St. 1884, c. 201, § 2, and that provided Littleton and Acton the right to take the water if needed, St. 1884, c. 201, § 10. Therefore, should

Littleton, Acton, or both, choose to exercise their rights to take the waters of Nagog Pond and apply for a permit under the

WMA, the 1884 act will not provide it with a priority right over

Concord's registration.

So ordered.

EXHIBIT B

SENT VIA EMAIL ONLY

March 17, 2021

Peter F. Durning Mackie Shea Durning. PC 20 Park Plaza, Suite 1001 Boston, MA 02116

RE: Groundwater Modeling to Assess Impact from Cobbs Wells

Dear Mr. Durning:

In our continuing effort to assess the potential for impact to Nagog Pond from Littleton’s proposed Cobbs Wells, we have prepared a groundwater simulation model of subsurface flow for the area in question. As you will see upon reading our presentation below, once again, our findings demonstrate that a significant portion of the water that will be pumped out of the ground by the Cobbs Wells will come from Nagog Pond. Our latest demonstration is not surprising and is consistent with our previous findings regarding the potential for impact to regional water resources from the Cobbs Wells. The following provides a summary of some of our earlier findings:

 Our early reports on this matter dated June 21, 2017 and September 27, 2017 provided recommendations regarding the conduct of the pump test and indicated the importance of preparing a mathematical simulation model of groundwater flow in the region. We also recommended that a water balance be conducted for Nagog Pond.

 In our letter of February 15, 2019 to Alan Cathcart we argued that Littleton had failed to properly assess the results from its pump test, and that it was incumbent upon Littleton as the applicant to complete a better assessment of the impact to Nagog Pond. We recommended that they do that via a groundwater simulation model, but to our knowledge such was not done by the applicant nor was it required by the Massachusetts DEP.

 In our January 7, 2021 letter to you, we evaluated the potential impact specifically to Cobbs Pond and adjacent wetlands from the proposed Cobbs Wells. We demonstrated that pumping of the wells has the potential to substantially drain water from Cobbs Pond with possible complete draining of the Pond during parts of some years. Furthermore, the withdrawal of water by the proposed wells will intercept water normally available to support water levels in the local wetlands.

 In our February 22, 2021 letter to you we evaluated the data collected by Geosphere (Littleton’s consultant) in connection with the Cobbs Wells pump test that Geosphere

150 College Road West, Suite 100, Princeton, NJ 08540 p | 609.924.8821 f | 609.924.8831 Peter F. Durning Page 2 of 3 March 17, 2021

conducted. Our evaluation demonstrated that the 15 day pump test was responsible for approximately 8 million gallons of water lost from Nagog Pond and 2.6 million gallons of water lost from Cobbs Pond. This demonstration proved that the two ponds will be a primary source of water to be harvested by the Cobbs Wells.

Throughout all of the above, we consistently concluded that the Cobbs Wells would take water from Nagog Pond. Our calculations, using data collected by the applicant as noted above, proved that to be the case. These calculations also demonstrated that the impact would not just be to Nagog Pond, but that Cobbs Pond and regional wetlands would also suffer.

We also consistently recommended that the results of a groundwater simulation model would provide very useful information to demonstrate the impact from pumping of the wells. We understand that groundwater simulation modeling may not normally be required by Massachusetts DEP in connection with an application for new water supply wells, but the circumstances associated with this matter made it evident that modeling would be a useful, and even a necessary, step. Consequently, the Town of Concord, at its own expense, proactively authorized us to undertake preparation of a groundwater model.

We built a groundwater model of the region using the three-dimensional, finite-difference, computer code MODFLOW-2000. MODFLOW is the industry standard for calculation of the impact of well pumping on groundwater systems. It was developed by the US Geological Survey and has been verified and shown to be appropriate for the modeling of groundwater behavior. The objective of this initial modeling effort was to calculate the equilibrium groundwater elevations that would result in the area of impact from steady pumping of the Cobbs Wells at a rate equal to that which occurred during the pump test. We recognize that the rate of pumping during the test exceeds that for which Littleton is seeking permission by approximately one-third. However, using the pump test withdrawal rate in this initial simulation exercise enables us to calibrate the model using both the data collected during the pump test and our separate independent calculations of the amount of water taken from Nagog Pond. The latter is presented in our letter of February 22, 2021, which also used the data collected during the pump test. Another objective of the model was to estimate the rate of flow from Nagog Pond during pumping of the wells.

In summary, the model simulated groundwater flow over an area of approximately 16 square miles which included the Cobbs Wells, Cobbs Pond and Nagog Pond. (See Figure 1.) The model simulates flow in the surficial soil deposits and the underlying bedrock from which the Cobbs Wells will be withdrawing water, and accounts for the connections between surface water bodies and the subsurface groundwater aquifer. Model parameters such as hydraulic conductivity were estimated using data collected during the pump test and confirmed as appropriate using scientific literature values characteristic of the geology in this area. Figure 2 shows a comparison between the model calculated water pressure (also commonly referred to as ‘head’) and the pressure measured during the pump test at various observation wells throughout the area. The agreement between model and data is excellent.

Figure 3 provides a particle flow path trace which represents the path that marker particles flowing in the groundwater would take on their way to the Cobbs Wells. The particle flow paths define the zone of capture of the Cobbs Wells including Nagog Pond. One can see from Figure 3 that most of the particles come from an area around Nagog Pond. The mass balance of the groundwater model for the zone of capture of Nagog Pond indicates that a large portion of the water withdrawn by the Cobbs Wells originates at Nagog Pond. Based on the water balance

Kleinfelder, 150 College Road West, Suite 100, Princeton, NJ 08540 p | 609.924.8821 f | 609.924.8831 Peter F. Durning Page 3 of 3 March 17, 2021 calculation, the model indicates the rate of water flowing from Nagog Pond to the Cobbs Wells during the pump test was approximately 326 gpm. Over a 15 day period (which was the duration of the pump test) a total of approximately 7 million gallons of water would flow from Nagog Pond to the Cobbs Wells. The agreement with our separate independent calculations using staff gauge data collected by Geosphere during the pump test is remarkable (i.e., 7 million gallons calculated via the model versus 8 million gallons calculated via the staff gauge data). This exercise provides yet another scientific demonstration that the Cobbs Wells will have a substantial impact on Nagog Pond. On the other hand, the applicant has not proven there would be no impact on Nagog Pond.

In conclusion, each step along our path to the assessment of the impact of the proposed Cobbs Wells on Nagog Pond has affirmed our original findings. These wells will certainly be taking water from Nagog Pond. And the impact extends beyond Nagog Pond to Cobbs Pond and the local wetlands. The local surface water bodies during the pump test were (and would continue to be if the Cobbs Wells were to be pumped as proposed) a primary source of water to support the demand from the Cobbs Wells.

Please feel free to contact us if you should have any questions regarding the above.

Sincerely, Sincerely,

Raymond A. Ferrara, Ph.D. George F. Pinder, Ph.D. Chief Professional, Kleinfelder University of Vermont

cc: (via electronic mail) Alan Cathcart Stephen Crane John Rogers John Shea

Kleinfelder, 150 College Road West, Suite 100, Princeton, NJ 08540 p | 609.924.8821 f | 609.924.8831 Cobbs Pond Cobbs-2 .! .!.! Cobbs-3 Cobbs-1

Nagog Pond

FIGURE 1: .! PROJECT #: 6587 AREA SIMULATED WITH Cobbs Extraction Wells GROUNDWATER MODEL Model Domain DRAWN: March 2021 DRAWN BY: ELD

Groundwater Modeling CHECKED BY: RAF to Assess Impact From FILE NAME: Cobbs Wells \\azrgisstorp01\GIS_Projects\Client\Concord\Model Figures\Figure1.mxd [ 0 3,000 6,000

150 College Road West, Suite 100, Princeton, NJ 08540 2021 ESRI Basemaps 609-924-8821 " www.Kleinfelder.com Feet FIGURE 2: CALCULATED VS OBSERVED PROJECT #: 6587 HEADS AT OBSERVATION WELLS DRAWN: March 2021 DRAWN BY: ELD

Groundwater Modeling CHECKED BY: RAF to Assess Impact From FILE NAME: Cobbs Wells \\azrgisstorp01\GIS_Projects\Client\Concord\Model Figures\Figure2.mxd

150 College Road West, Suite 100, Princeton, NJ 08540 609-924-8821 " www.Kleinfelder.com Cobbs Pond

Cobbs-2 .! .! Cobbs-3 .! Cobbs-1

Nagog Pond

FIGURE 3: .! Cobbs Extraction Wells PROJECT #: 6587 PARTICLE FLOW PATHS Flow Path Lines DRAWN: March 2021 DRAWN BY: ELD

Groundwater Modeling CHECKED BY: RAF to Assess Impact From FILE NAME: Cobbs Wells \\azrgisstorp01\GIS_Projects\Client\Concord\Model Figures\Figure3.mxd [ 0 1,000 2,000

150 College Road West, Suite 100, Princeton, NJ 08540 2021 ESRI Basemaps 609-924-8821 " www.Kleinfelder.com Feet

March 19, 2021

VIA ELECTRONIC AND FIRST CLASS MAIL

Ms. Purvi P. Patel, EIT Massachusetts Environmental Policy Act (MEPA) Office Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900 Boston, MA 02114 [email protected]

Re: Littleton – Cobbs Pond Bedrock Source Development, EEA No. 16309

Dear Ms. Patel:

On behalf of the Town of Concord (“Concord”), I am writing to respond to the March 18, 2021 email from Nick Lawler of the Littleton Water Department (“LWD”) regarding Concord’s Supplemental Comment Letter, dated March 18, 2021, with respect to the Environmental Notification Form (“ENF”) for the Cobbs Pond Bedrock Source Development Project (the “Project”) for three bedrock public water supply wells to be located near Cobbs Pond in Littleton (the “Cobbs Pond Wells”).

Concord acknowledges that its Supplemental Comment Letter was after the March 16, 2021 public comment deadline. This delay was the result of an error in monitoring the public comment deadline, but it was also a result of Concord’s technical team needing time to complete their work on the groundwater modeling analysis. As we stated in our letter on March 1, 2021 Concord was proceeding with its own hydrologic analysis. We were not certain when the analysis would be complete, but when our consultants reported their findings to us on March 17, 2021 we wanted to get that information into the record on the MEPA process and to provide the Secretary and MassDEP the benefit of this information.

Pursuant to 301 CMR 11.06(3), “[t]he Secretary may accept a late comment, provided it is received prior to the Secretary's decision on the ENF.” Assuming that our letter on March 18, 2021 was received prior to the Secretary’s decision, we are formally requesting that the Secretary accept Concord’s late filed comment. We also note that in his March 18, 2021 email, Nick Lawler requested an opportunity to respond to Concord’s Supplemental Comment Letter. Concord has no objection to providing LWD such additional time to comment.

Very truly yours,

Peter F. Durning Ms. Purvi P. Patel, EIT March 19, 2021 Page 2

cc: (via electronic mail) Martin Suuberg, Commissioner, MassDEP Duane Levangie, WMA Section Chief and Northeast Regional Contact, MassDEP Bruce Bouck, Section Chief, MassDEP Drinking Water Program Technical Services Rachel Freed, Deputy Regional Director, Bureau of Water Resources, MassDEP/NERO Marielle Stone, Deputy Regional Director, Bureau of Water Resources, MassDEP/CERO Robert Bostwick, Section Chief, MassDEP/CERO Drinking Water Program Rebecca Tobin, Office of General Counsel, MassDEP/CERO Steve Hallem, MassDEP Alan H. Cathcart, Director, Concord Public Works John H. Rogers, Superintendent, Concord Public Works Stephen Crane, Town Manager, Town of Concord Nick Lawler, General Manager, Littleton Electric Light and Water Departments Thomas Mahanna, P.E., Vice President, Tighe & Bond Raymond Talkington, Ph.D., P.G., Principal Hydrogeologist, Geosphere Environmental Thomas J. Harrington, Esq., Miyares and Harrington LLP J. Raymond Miyares, Esq., Miyares and Harrington LLP

Patel, Purvi (EEA)

From: O'Connor, Robert (EEA) Sent: Tuesday, March 16, 2021 5:02 PM To: Jason Panos; Patel, Purvi (EEA) Cc: Corey Godfrey; Tobin, Rebecca (DEP); Cohen, Andy (DEP); Stone, Marielle (DEP); Connors, Susan (DEP); Pigsley, MaryJude (DEP); Sulla, Jennifer (EEA); Gioia, John (EEA) Subject: Re: Littleton Water Department MEPA Certification

Hi Purvi,

We are supportive of this approach at EEA but will work with DEP if they have concerns.

Bob

From: "Jason A. Panos" Date: Tuesday, March 16, 2021 at 4:58 PM To: "Patel, Purvi (EEA)" Cc: Corey Godfrey , "O'Connor, Robert (EEA)" , "Tobin, Rebecca (DEP)" , "Cohen, Andy (DEP)" , "Stone, Marielle (DEP)" , "Connors, Susan (DEP)" , "Pigsley, MaryJude (DEP)" Subject: Littleton Water Department MEPA Certification

CAUTION: This email originated from a sender outside of the Commonwealth of Massachusetts mail system. Do not click on links or open attachments unless you recognize the sender and know the content is safe.

Hello Purvi‐ Attached is the framework to accomplish the Zone I Protection approvals using Article 97 with attached Exhibit. We understand that confirmation by EEA and DEP of the attached is forthcoming and all parties are copied to this email appropriately. Please let us know if you have any questions. Thanks, Jason

Jason A. Panos, Esq. THE PANOS LAW GROUP 246 Andover Street, Suite 301 Peabody, MA 01960 (P) 978-406-9979 (C) 617-319-0774 (F) 978-406-9979 [email protected]

This email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed. If 1 you are not the intended recipient you are notified that disclosing, copying, distributing or taking any action in reliance on the contents of this information is strictly prohibited. If you have received this email in error please notify mail to: [email protected] immediately and delete this e- mail from your system.

IRS Circular 230 Disclosure: We are required to advise you that any tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used by any taxpayer (i) for the purpose of avoiding any penalties that may be imposed under the Internal Revenue Code, or (ii) in promoting, marketing or recommending any entity, investment plan or arrangement, or any other transaction or matter discussed herein to any taxpayer other than the intended recipient hereof.

Please consider the environment before printing this e-mail.

RE: Cobbs Pond Bedrock Source Development Project, MEPA File EEA 16309 From: Littleton Conservation Trust, Littleton, MA Donald MacIver, President and Trustee 43 Foster Street, Littleton, MA 01460 [email protected] To MEPA, Project Analyst Purvi Patel, [email protected] Date: March 16, 2021 ~~~~~~~~~~~~~~~~~~~~~~ To Secretary Kathleen Theoharides, the Secretary of Energy and Environmental Affairs, and all others concerned:

The Littleton Conservation Trust (LCT), an all-volunteer not-for-profit, 501 (c) 3, public-interest conservation land trust, looks forward to collaborating with the project proponent, the Littleton Water Department, a Public Water Supply, in achieving their goal of demonstrating control over Zone 1 districts for their three existent deep bedrock water wells for providing needed drinking water quality for the Town of Littleton. We look forward to working with all involved stakeholders, private and public, in the spirit of the current conservation restrictions CRs) and associated public trail and subordinate documents, recognizing that amendments are needed to achieve these goals and to ensure that conservation values are preserved, and if an Article 97 Amendment provision is needed and invoked, that it delivers net positive conservation values, agreed to by all parties concerned.

It should be recognized that the current CRs are approximately 20 years old, before the entire proposed 18 residential lot areas were acquired by third parties, and built upon or protected, by private homeowners, public agencies (e.g. LWD, Conservation Commission) or other conservation entities. Now that the entire property has achieved full build out (i.e., built upon or protected), some minor modifications of CR provisions are in need (e.g., including extinguishing CR exclusion areas set aside for dwelling units), all for preserving net positive conservation values.

LCT is the Conservation Restriction grantee (from the Emily B Cobb Trust B grantor) for two CRs: one for the 45 acre Cobb property surrounding Cobb’s Pond (including where the three wells are located) and another for the centrally located Cobb’s Pond, approximately 19 acres. Both contain Zone 1 districts. LCT also is an abutting conservation property owner, additionally impacted by Zone 1. Additionally, LCT maintains the Robert C and Emily B Cobb Memorial Trail, that traverses the entire Cobb Conservation Property, which also overlies the parcels of concern and additionally is impacted by the project proponent’s proposed activities and Zone 1 districts.

Thank you for the opportunity to comment.

Charles D. Baker Kathleen A. Theoharides Governor Secretary

Karyn E. Polito Martin Suuberg Lieutenant Governor Commissioner

March 16, 2021

Secretary Kathleen A. Theoharides Executive Office of Environmental Affairs 100 Cambridge Street, 9th Floor Boston, MA 02114

Attention: MEPA Unit – Purvi Patel

Re: Environmental Notification Form (ENF) Cobbs Pond Bedrock Source Development Littleton EEA #16309

Dear Secretary Theoharides,

The Massachusetts Department of Environmental Protection's (“MassDEP”) Central Regional Office has reviewed the ENF for the Cobbs Pond Bedrock Source Development (the “Project”). The Littleton Water Department (the “Proponent”) is proposing to construct three new public drinking water bedrock wells and a 1,000-square-foot pump station on 7.8 acres of land adjacent to Cobbs Pond in Littleton. The pump station will process the water from the three wells using chemical treatment, including pH adjustment, corrosion control, and disinfection. Piping from the Project will connect to the existing water distribution system on Nashoba Road approximately 1,100 linear feet from the new pump station.

The Project is on land owned by the Littleton Conservation Commission that is subject to a Conservation Restriction held by the Littleton Conservation Trust, a private non-profit agency. The site contains Nagog Pond, an Outstanding Resource Water, and five vernal pools.

The Project is under MEPA review because it meets or exceeds the following review threshold:

• 310 CMR 11.03(4)(b)(1) - New withdrawal or expansion in withdrawal of 100,000 or more gallons per day (gpd) from a water source that requires new construction for the withdrawal.

The Project requires the following State Agency Permits:

This information is available in alternate format. Contact Michelle Waters-Ekanem, Director of Diversity/Civil Rights at 617-292-5751. TTY# MassRelay Service 1-800-439-2370 MassDEP Website: www.mass.gov/dep Printed on Recycled Paper

MassDEP Comments – EEA# 16309 Page 2 of 3

• MassDEP - Approval of Pumping Test Report for Source of 70 gallons per minute or greater (BRP WS 19); • MassDEP - Approval to construct a source of 70 gallons per minute or greater (BRP WS 20); • MassDEP - Approval to construct a Water Treatment Facility of 200,000 gallons per day or more and less than 1 million gallons per day (BRP WS 23C); • MassDEP – Sale or Acquisition of Land for Water Supply Purposes (BRP WS 26); • MassDEP - Superseding Order of Conditions (if local Order of Conditions is appealed); • MassDEP – Water Management Withdrawal Permit (BRP WM 03).

MassDEP offers the following comments:

Water Supply

The Proponent has submitted a BRP WS 19 Pumping Test application and a BRP WM 03 Water Management Act (WMA) Permit application to MassDEP to add three bedrock wells in the Concord River Basin to its authorized withdrawals. Additional drinking water applications (for example, water treatment) are required, in addition to a BRP WS 20 application for approval to construct the sources.

MassDEP will not issue an approval to construct the wells until the Proponent has sufficiently demonstrated ownership or control of the 400-foot Zone I protective radius around each well in accordance with the Drinking Water Regulations at 310 CMR 22.00. The Zone I areas extend across several parcels with multiple public and private owners; therefore, the Proponent must submit a BRP WS 26 Sale or Acquisition of Land for Water Supply Purposes application to MassDEP. The WS 26 application will describe how the Proponent will obtain ownership or control of the Zone I areas. Ownership or control may include various methods of acquisition, including purchases, conservation restrictions, donations, and eminent domain takings. The Proponent is in discussions with the property owners, MassDEP, and the EEA Division of Conservation Services regarding a solution to the complicated land ownership issues involving the Zone I area. MassDEP recently received a proposed framework from the Proponent for addressing ownership/control issues in the context of Article 97 jurisdiction. The framework reflects the parties’ recent discussions and MassDEP concurs with the Division of Conservation Services that the approach seems appropriate.

The proposed wells are located on land adjacent to Cobbs Pond. The pumping test data indicates a response in water levels in Cobbs Pond to the pumping of the wells. The Proponent submitted a long-term monitoring plan for Cobbs Pond as part of the pumping test report that will be reviewed by MassDEP as part of the WMA application review process. MassDEP has performed a preliminary review of the pumping test and believes that any impacts to Cobbs Pond can be evaluated through a long-term monitoring plan and the WMA permit process without additional MEPA review.

Eleven private wells were also monitored during the pumping test and six of the eleven private wells experienced drawdown. The pumping test report estimated water levels in the private wells after MassDEP Comments – EEA# 16309 Page 3 of 3

180 days of pumping with no recharge, compared those levels to the well depths for the six wells, and concluded that there is little risk of dewatering a private well below the pump intake. However, the Proponent is committed to taking appropriate measures if that were to occur, including resetting pumps to a lower depth, deepening wells, or providing a connection to the Proponent’s water system for the affected private well owners.

Wetlands

Alteration of Buffer Zone associated with the Project will require the filing a Notice of Intent (NOI) with the Littleton Conservation Commission and MassDEP. Upon review of the NOI, MassDEP may provide additional comments pertinent to the Project and compliance with the performance standards established under the Massachusetts Wetlands Protection Act Regulations (310 CMR 10.00).

Stormwater

The NOI should include documentation to demonstrate that source controls, pollution prevention measures, erosion and sediment controls, and the post-development drainage system will be designed in compliance with the stormwater elements of the Massachusetts Wetlands Protection Act regulations (310 CMR 10.00), applicable standards, and the Stormwater Management Handbooks. The Proponent should use precipitation data as specified in TR-55 or that required by the local municipality, whichever is more conservative, for the purposes of preparing the stormwater analysis. MassDEP recommends that the potential impact of increased precipitation frequency and volume due to climate change be considered during the design of the stormwater management system.

MassDEP appreciates the opportunity to comment on the Project. If you have any questions regarding these comments, please do not hesitate to contact JoAnne Kasper-Dunne, Central Regional Office MEPA Coordinator, at (508) 767-2716.

Very truly yours,

Mary Jude Pigsley Regional Director cc: Commissioner’s Office, MassDEP