MDC Pauses Proceedings Seeking to Remove DPH Jurisdiction over Future and Emergency Water Supplies

Colebrook Reservoir
Colebrook Reservoir

Water companies are critical conservation partners in Connecticut, collectively the second largest owners of open space land in the state. So, Save the Sound was concerned when the Metropolitan District Commission (MDC) submitted a request for a declaratory ruling on June 14, 2022, challenging CT Department of Public Health’s (DPH) oversight of future and emergency water supplies, along with the lands that protect them, in order to sidestep the abandonment approval process. Save the Sound intervened, arguing that a ruling in favor of MDC would put these water supplies and the thousands of acres protecting them at risk.

Water companies own land for the purposes of protecting and purifying their public drinking water supply sources, making conservation a good business decision. But land conservation only makes sense for the water company so long as it needs the protected water source. CT state law ensures that water company lands are protected by limiting the types of uses and sale, but under certain circumstances, a water company may assert that a source is no longer necessary to serve its ratepayers. Such a decision has great consequences for both the ongoing conservation of the public drinking water supply and the surrounding “source protection” lands. The classification of a public drinking water supply is the linchpin to an entire web of critical state environmental laws that ensure smart planning for future water supply, ensuring both quantity and quality. As such, by law, a water company cannot make that decision unilaterally. The water company is required to obtain an abandonment permit from DPH—a regulatory proceeding that considers the need for the resource not just for the water company applying for the abandonment, but for other water companies and the state as a whole. DPH also considers the source protection lands surrounding the water source: How protected is this source, and how well is its quality ensured?

MDC has the rights to 13.5BG in Colebrook Reservoir, 10BG of which are allocated through a contract between MDC and the United States Army Corps of Engineers (USACE). This reservoir is an emergency and potential future supply, and it’s surrounded by over 12,000 acres of source protection open space land in CT and MA. MDC, in order to limit its financial obligations under this contract and due to a belief that this supply is not necessary for its ratepayers, seeks to terminate the contract and relinquish its rights to those 10BG. Rather than apply for an abandonment permit, as is statutorily required and would allow for a full evaluation of the need to protect this supply for some future use, MDC submitted the aforementioned request for a declaratory ruling, arguing that DPH has no jurisdiction over any inactive supplies, including emergency and future sources. For Colebrook, such a ruling could open the door for future sale and development of the surrounding 6,490 acres of watershed land in Connecticut.

A DPH hearing was held on January 5, 2023. Save the Sound participated as a limited intervenor and argued that state law clearly sets forth DPH’s authority over inactive sources and that such authority to classify or abandon drinking water supply sources is at the heart of the entire statutory scheme that ensures that CT residents have a water supply sufficient in quantity and quality at present and in the face of climate change.

After a morning of evidence and testimony, MDC voluntarily withdrew its request for a declaratory ruling and to file an abandonment permit regarding the 10BG at issue (that decision was ratified by the MDC Board on February 13). DPH agreed to consider this permit application and make a decision within the 90-day timeframe after its submission, but they also made clear they would evaluate the petition completely on its merits with no pre-determined outcome. Bottom line: MDC agreed to follow the clear regulatory process, through which DPH can exercise its expertise and authority to fully evaluate the proposed change in classification of this water supply and its surrounding source protection lands.

Save the Sound will continue to track these proceedings to ensure that the criteria are fully evaluated and that the public’s perspectives are heard. We will also continue to seek to permanently protect the 6,490 acres of source protection open space land, in case the water supplies are ultimately abandoned.

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