USA v. M.D.C., et al

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 85-489-RGS
UNITED STATES OF AMERICA
v.
METROPOLITAN DISTRICT COMMISSION, et al.
CIVIL ACTION NO. 83-1614-RGS
CONSERVATION LAW FOUNDATION
OF NEW ENGLAND, INC.
v.
METROPOLITAN DISTRICT COMMISSION
ORDER ON
THE CHARLES RIVER WATERSHED ASSOCIATION’S and
THE MYSTIC RIVER ASSOCIATION’S
MOTION TO INTERVENE
January 7, 2026
STEARNS, D.J.
Before the court is a 	motion filed jointly 	by the Charles River
Watershed Association and the Mystic River Association (the Associations)
to intervene pursuant to Fed. R. Civ. P. 24 in this now four-decades-old
litigation, either as a matter of right or by permission of the court. 	After
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careful review of the extensive briefing, the motion will be denied for the
reasons stated below.
As a formal matter, the motion is untimely, and in fact replicates a
nearly identical motion denied by my predecessor Judge A. David Mazzone
in what is now colloquially known as the Boston Harbor Case some 37 years
ago. As Judge Mazzone observed then, and it remains true today, a motion
to intervene is at its most vulnerable when the litigation phase of a case has
been concluded by a judgment of the court, and where the late introduction
of new parties to the litigation “will fundamentally change the dynamics of
the processes at work . . . .” 	See United States v. Metro. Dist. Comm’n, 679
F. Supp. 1154, 1164 (D. Mass. 1988).
The court adds the following thoughts. Based on what is said in the
pleadings, I believe that the concerns expressed by the Associations are
based on a misapprehension of the roles of the Massachusetts Water
Resources Authority (MWRA) staff, its Board of Directors, and the existing
parties, and ultimately that of the court, in arriving at a final determination
of alterations, if any, that will (or need) be made to the Long-Term [CSO]
Control Plan as the result of the presently underperforming outfalls on the
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Charles and Mystic Rivers.1 At present, the MWRA staff is in the process, as
the court understands it, of developing a range of remedies that includes, at
one end of the spectrum, increased limits for CSO discharges into the rivers.
and a reclassification of the Charles and Mystic Rivers from a Class B to a
lower Class B (CSO) level, to, at the other end of the spectrum, the adoption
of the full-throated remediation to which the Associations are committed.
This commitment, while understandable, underscores for the court
that the primary motive of the Associations in seeking to join the litigation
as parties is not to offer engineering or scientific expertise that is not already
available to the court (in abundance), but to enhance their ability to promote
their preferred outcome in the negotiations (undertaken with the court’s
encouragement) in the “expectation of a comprehensive agreement resolving
or at least narrowing [the] outstanding issues.” Dkt. # 1942 at n.2. The court
shares the MWRA’s concern that the injection of these advocacy groups as
1 The Associations state in their Memorandum that “[n]ow that the
MWRA’s long-term CSO strategy is known, the significant prejudice to the
[Associations] and their members . . . is imminent and undeniable.” 	Dkt.
#1942 at 11. 	As the MWRA accurately responds, this concern comes “too
soon” as the staff recommendations are only that, a draft plan that is not
complete and will not be complete until approved or disapproved by the
Massachusetts Department of Environmental Protection sometime after
January 2027 and “possibly not until August 2029.” MWRA Opp’n, Dkt #
1951 at 2.
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additional parties in these negotiations will, at this delicate turn, “seriously
jeopardize 	and 	potentially 	delay 	the 	resolution” 	of 	the 	outstanding
disagreements. 	MWRA Opp’n, Dkt # 1951 at 13. 	Let me stress that this
model of encouraging the parties to collaborate confidentially with a view
towards simplifying the issues the court needs address is not a late invention,
but the model that Judge Mazzone implemented at the very outset of the
Boston Harbor case and one that this court faithfully has followed since.2
Third, the court does not accept the Associations’ argument that its
interests are not adequately represented by the existing parties, particularly
the Conservation Law Foundation (CLF), in the outcome of the case. Ass’n
Mem., Dkt # 1942 at 9-10.3 Nor is there any heft to the suggestion that the
2 As the court observed in its Boston Harbor Progress Order 253 (June
10, 2024), Dkt # 1915 at n.5: “The court appreciates the constructive tone of
the Response of the United States and the Environmental Protection Agency.
The United States and EPA acknowledge the impressive progress made by
the MWRA in meeting the mandate of the Clean Water Act (if “not there yet”)
and 	reminds 	us 	that 	the 	parties 	have 	over 	the 	years 	been 	able 	to
collaboratively resolve any disagreements over implementing the required
statutory and regulatory controls in a manner satisfactory to the court and
the Stipulations of the parties.”
3 Despite the CLF’s lukewarm acquiescence to this view, see CLF Mem.,
Dkt # 1950 at 6, based on my years of experience with the strength of the
CLF’s advocacy in this case, I disagree. I also note that the CLF’s position is
based on the constraints of its being a participant in the confidential
negotiations that it suggests hampers its ability to serve as an untrammeled
public spokesperson for the Associations’ views, an argument I do not agree
with in the first instance. 	I also note that the issue of public constraint on
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court has not been open to (and has indeed encouraged) the Associations to
express their views fully in the litigation by way of amici briefing (which the
court has always in the past and will continue to accept). The court has also
consistently encouraged the MWRA to meet regularly with the Associations
both to inform them of progress with the implementation of the LTCP and to
take their views into account. I have no reason to doubt but that the MWRA
has followed the court’s instructions in this regard, as it reports in its
Opposition to the Motion to Intervene. See Dkt # 1951 at 10-12, n.11.
Finally, 	I remind the Associations (and all parties) that the final
decision on the scope of any alterations to the existing LTCP remains vested
in the court. The court has made general observations on the considerations
that it may well bring to bear on any final proposal(s) as guidance to the
parties.4 	However, it will not make any final determination until that
presentation is made, be it in 2027 0r 2029.
what can be said, to the extent there is such, is not remedied by inserting the
Associations into the very same negotiations under which they would be
expected to be bound by the same considerations of confidentiality.
4 	See 	Boston Harbor Progress Order 253 (June 10, 2024) at 	4
(“Recognizing that the history of this now decades-long project has not been
static, nor has every insoluble problem encountered over its course remained
unsolved, the court will reserve judgment on the problem outfalls until the
final milestone is reached. I recognize, as the MWRA posits, that there may
come a point of diminishing return at which spending an additional $100 for
a $1 incremental benefit would make no sense from a public policy view.”).
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ORDER
For the forgoing reasons, the Motion to Intervene is DENIED.
SO ORDERED.
/s/ Richard G. Stearns__________
UNITED STATES DISTRICT JUDGE
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