Part 2: Are Barnstable + Mashpee Breaking the Law?

Part 2 of a 2-Part Series on the Validity of the CLF Lawsuit

In Part 1 [read], we considered the basis for the Conservation Law Foundation’s lawsuit against Barnstable, Mashpee, and the Mass. Department of Environmental Protection [DEP] — whether these entities have been violating Title 5 law by sanctioning septic systems that far exceed the limitations for nutrient pollution in Nitrogen Sensitive Areas [NSA]. Here, we look at potential changes in the law, suggest our own remedies, and call for Citizen Action to keep the pressure on lawmakers to act now to reverse the decline of our most fragile waterways.

What’s Happening at the State Level?
It seems like the DEP paid attention to the CLF and has embarked on proposed language updates within the Title 5 regulations for wastewater systems in Nitrogen Sensitive Areas. In its re-do of Title 5 regulations, referenced in Part 1 of this series, draft language currently reads:

Any system permitted, constructed, and in operation on or before July 1, 2021 that serves a facility in a Nitrogen Sensitive Area must be upgraded to incorporate the best available nitrogen reducing technology approved by the Department, pursuant to 310 CMR 15.280 through 15.288 on or before December 31, 2026.

MA-DEP Proposed Changes to Title 5 Approvals

This language is an improvement, but we at Save Our Shoestring humbly propose stronger, more reasonable language that says:

The Department (DEP) shall require the replacement of existing Title 5 systems sited within Nitrogen Sensitive Areas, built before July 1, 2021, be subject to the new regulations of discharging <10 mg/l of Nitrogen, independent of flow rates (no minimum flow rates.) All properties within the Nitrogen Sensitive areas shall be subjected to an upgrade window of either interconnection to municipal sewering or showing the permit to perform the installation of an approved Nitrogen Reducing Technology by December 31, 2032 (the Performance Period). No exceptions.

Save Our Shoestring Suggested Changes to Title 5 Approvals

We Think the CLF is Right: Title 5 Law is Broken with Impunity
As I hope we’ve made clear in these posts, CLF’s lawsuit charging Barnstable, Mashpee, and the MA-DEP with violating Title 5 regulations regarding Nitrogen Sensitive Areas is likely spot-on. In our opinion, if the parties continue to fight the suit, the courts will likely find that CLF’s allegations have merit and could impose steep fines on the defendants. Alternatively, if the Towns and DEP choose to settle with the CLF, the judicial system can mediate reasonable accommodations and point to a reasonable legal remedy.

The remedy, in our humble opinion, should be:

  • Mandate the immediate halt to siting and/or replacing Title 5 septic systems in these fragile (Nitrogen Sensitive) ecosystems where sewer infrastructure will be unavailable for decades.
  • Expedite and approve the use of High Performance Innovative/Alternative technologies [HPIA] to mitigate the Title 5 deficiencies within NSA’s.

Citizen Action – What You Can Do Now
While we wait for the wheels of justice and local government to grind on, residents can be the catalyst to expedite the process. We ask that you:

I.    Lobby Your Town Management
Ask your local Representatives to:

  • Amend your Town’s CWMP to allow the installation of HPIA systems within NSA’s — both new and retrofits — as a substitute for a future (20+ years out) sewer interconnection that may or may not occur in our lifetimes. This will allow property owners to comply with the forthcoming DEP regulations and kick-start the recovery of our waterways. 
  • Craft language within the CWMP to allow property owners who install HPIA systems to sidestep the sewer infrastructure/interconnection costs (requiring HPIA systems to remain in compliance.) Town management’s [mis]interpretation of Title 5 got us into this nitrogen pollution mess; they must be receptive to technology that cuts new sources of nitrogen by 90%+.

II.   Lobby your Town Health Department
Demand that your Town STOP the illegal permitting of Title 5 septic systems (within NSA’s) now. Mashpee and Barnstable continue to approve the installation and replacement of these systems in Nitrogen Sensitive Areas without regard for the law.

III.  Support Organizations to Save the Cape’s Waterways

In Closing...
Our suggested language for the DEP’s action plan is consistent with its own proposed changes, allowing the conversion of existing Title 5 systems to enhanced nitrogen removal (HPIA) systems, providing a 10-year runway to get it done (DEP offered a five-year period of performance) for every property owner within NSA’s.

The cost of HPIA systems is steep (but on-par with the sewer interconnection and landscape restoration fees). The whole process could be made affordable by leveraging the low-interest loan program offered by the Barnstable County Community Septic Management Loan Program. With on-property bill financing for up to 20 years, this is an excellent alternative for retired folks and property owners of more modest means.

If Towns continue to approve the polluting Title 5 septic systems within NSA’s with impunity, Popponesset, Shoestring, and the Three Bays area will continue to be the most nutrient-compromised embayments on the Cape. Sadly, water conditions within Popponesset Bay are already so bad that locals have nicknamed it “Pooponesett Bay.” But this is no laughing matter. Without immediate remedial action, ecosystems will continue to degrade to the point of no return. The clock is ticking and we don’t have 20+ years to wait for sewer infrastructure to come to the rescue while nitrogen dumping continues unabated.
Your participation is appreciated!

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