The Carlisle Mosquito Online

Friday, May 5, 2000


Special counsel outlines Carlisle's position regarding bog water rights

Carlisle's special counsel on water rights, attorney Frank DiLuna, commanded the full attention of the Chelmsford Conservation Commission and that town's privately-owned Water District representatives on April 25 at the Chelmsford Town Hall. Following an hour of technical jousting between commission and district engineers as to whether pumping up to 360,000 gallons of water per day from the Chelmsford portion of the Cranberry Bog Reservation would adversely affect the Heart Pond wetland system that feeds Carlisle's Cranberry Bog, DiLuna rose with a concise but telling exposition of his clients' position. He stated up front that his analysis was based on the conviction that the Chelmsford Water District's proposed Barnes Terrace wellfield project would have "a disastrous effect" on the Carlisle Cranberry Bog.

Ironically, the attorney's testimony began with a summary of an environmental analysis prepared for the town of Chelmsford in 1983 when the two towns were first considering the subsequent purchase of the Lowell Cranberry Company land. That report, as referenced by DiLuna, confirmed the bog's water rights at Heart Pond and stated that the aquifer potential was limited. Further, it indicated that the general area lacked resources for other than "single-family homes" or other "very small water consumption." It concluded that any wells would "draw directly from the wetlands," and that pumping of 2.2 million gallons from the targeted basin would result in "the total drying up of the streams that feed the bog during normal non-raining periods."

DiLuna highlighted several features of the water district's proposal, which had also been questioned by the Chelmsford commission. For example, he noted that the district had described the project as addressing water requirements in periods of peak demand, particularly in times of drought, and that 70 to 100 percent of the withdrawal would come from the wetlands that form Carlisle Cranberries' holding ponds. As did the commissioners, DiLuna deplored "a lack of documentation" to support the district's contention that "the present water levels within the surface water features should not be affected at the highest allowable pumping rate." Further, he criticized the absence of a valid plan for water conservation in times of scarcity.

A number of requests

Revisiting the basic facts that the portion of the wetlands located in Carlisle are used for the production of cranberries, that the wetlands in Chelmsford provide the water for that agricultural operation and that the town of Carlisle possesses the water rights in Heart Pond, the attorney presented a number of requests, in part as follows:

· First, the town of Carlisle asks that the Chelmsford Conservation Commission not approve the withdrawal of water from the Cranberry Bog Reservation.

· That, owing to their clearly expressed concern about the technical process used in gathering data relating to the probable impact of the proposed withdrawals, Carlisle requests a peer review of said data by qualified hydrologists now, before the project starts.

· If the Chelmsford commission should decide to permit such withdrawals, a state-defined monitoring system should be established for Heart Pond. Whenever the pond level fell below a scientifically predetermined point, all withdrawals from the wellfield would cease. Should a "catastrophic event" drop it even further, Chelmsford would no longer be able to operate the wellfield without the permission of the town of Carlisle.

· To assure a water supply for the bog, the town of Chelmsford would "by state statute" be required to contribute funds to maintain dams and dikes and to improve reservoirs associated with the bog.

· Finally, since Carlisle believes that there is strong evidence that the proposed project will adversely affect wetlands in Carlisle, a Notice of Intent must be submitted to the Carlisle Conservation Commission by the Chelmsford Water District.

It was obvious that DiLuna's legal exposition, which was delivered in a friendly, informative tone, nevertheless had conveyed a serious message. It was equally clear that there exists a wide area of agreement between the Chelmsford commissioners and their Carlisle counterparts.

Chelmsford chair, David McLachlan, had earlier closed the discussion between the commission and water district by asserting, "As a commission, our first question is our responsibility under the Wetlands Protection Act. Second, is our responsibility to all the people of Chelmsford." Further, as noted above, there was a close concordance between many of the questions posed in DiLuna's testimony and those directed to the water district representatives by commission members at this and two previous sessions. McLachlan, who had already publicly revealed his support for a peer review of the district's data, was informed by Chelmsford development coordinator Andrew Sheehan that a request for proposals (RFP) had been drafted. Asked how soon it could be awarded and accomplished. Sheehan guessed, no earlier than June 1.

Responding to DiLuna's description of Chelmsford's possible legal obligations should they decide to approve the Barnes Terrace project, McLachlan observed, "I think we may also need to have expert legal counsel, because this could become contentious." However, he concluded, "It appears we may need to determine the water rights situation before, not after, we act." It could be a long summer.

2000 The Carlisle Mosquito