Mass. DEP Takes a Baby Step

On June 1, 2022 the Mass. Department of Environmental Protection (DEP) issued the much-awaited draft of its “let’s fix Title 5” Fact Sheet [download] entitled “MassDEP Regulatory Strategy for Estuaries Impaired by Nitrogen.” The proposed rules could “require upgrades of all existing systems to add nitrogen removal technology within five years of the regulation’s approval or for the town to apply for a watershed permit from the DEP [as reported in Wicked Local],” which would give communities up to 20 years to meet new goals for significant nitrogen pollution reduction. As stated in the DEP Fact Sheet, “Unless a community is the subject of a Watershed Permit…any system serving a new construction, or an existing facility must incorporate Best Available Nitrogen Reducing Technology within five years of the effective date of the NSA designation of the watershed in which they are located.”

With this preliminary move, the DEP may have tossed a small hand grenade into Cape towns’ painstakingly crafted CWMP’s [Comprehensive Wastewater Management Plan], whose “sewering or bust” approach have timetables that creep into the 30-year zone.

Ok, so that’s the good news. The bad? The DEP is taking baby steps when what’s required is a giant leap forward. Following is Save Our Shoestring founder Gary Markowitz’s letter to Mass. DEP Secretary Bethany Card outlining his concerns about the draft document.

The bottom line is that saving our estuaries must be on an expedited timeline that can’t only focus on a single solution because the financial proforma works for the Town’s tax base model.

Gary Markowitz, Save Our Shoestring

“Good morning Secretary Card,

I’m a part-time resident of Cotuit along Popponesset/Shoestring Bay. Each year, the water quality within our bays gets worse with all the signs of over-nitrification/eutrophication in plain sight. I’ve chosen to write to you as a well-informed citizen ( to comment on the recently published document “MassDEP Regulatory Strategy for Estuaries Impaired by Nitrogen Fact Sheet.” The document proposes new rulemaking that would certainly improve the response to the damage that Title-5 has wrought on our Cape Cod estuaries. I’m encouraged by the document but am concerned that it falls short of what’s needed.

The information and proposed rulemaking presented within the Fact Sheet just doesn’t address the urgent need to halt the damage to Severely Impaired Waterways like Popponesset/Shoestring Bay.  Watersheds such as these suffer from water quality so poor that their estuaries could likely fail within the next 7-10 years.

State and Local Agencies have known about the downside of Title 5’s failure to handle high nutrient loads since the early 1990’s. But since then, we’ve been essentially stuck in the “kick the can down the road” gear mostly due to the painful cost of mitigating the problem. Yes, the Cape Cod Commission’s 208 Plan gave way to initiatives like the Barnstable CWMP & others, but the mitigation plan runway is just too long & uncertain when considering the water quality within bays like Popponesset. The MassDEP’s Regulatory Strategy is a very good first step but it needs to specifically address the excessively poor water quality of Severely Impaired Waterways. Barnstable and Mashpee continue to ‘grandfather’ Title-5 and Cesspool systems (for replacement and new installations) within what can be considered Nitrogen Sensitive Areas while touting that sewering is the only way forward within their long-range plans (like Barnstable’s CWMP].  Mitigation within Severely Impaired Waterways needs to be addressed now; not in 20 or 30 years (as explained in the town mitigation plans). The bottom line is that saving our estuaries must be on an expedited timeline that can’t only focus on a single solution because the financial proforma works for the Town’s tax base model.

I’ve been deeply engaged in this issue for several years; here’s what I’m suggesting:

  1. The MassDEP might consider interacting with Town leadership to establish a moratorium on Title 5 within Nitrogen Sensitive Areas for all new building, renovation and septic replacement permits. No ‘grandfathering’.  This will end the use of Title 5 within Nitrogen Sensitive Areas.
  1. The MassDEP must establish clear definitions and map where Nitrogen Sensitive Areas exist. Our suggestion is “A Nitrogen Sensitive area is any property contiguous (within 100 yards) to an Impaired or Severely Impaired Waterway (ponds, lakes, rivers, streams, brooks, embayments oceans). No exceptions.
  1. Initiate an Emergency Use Authorization for High Performance Innovative Alternative Septic Systems (HPIA) like NitROE, SanTOE or equal, with a consistent performance of emitting less than 11 mg/l of nitrogen within their effluent, using standardized monitoring & maintenance procedures. This provides a reasonable alternative to the sewering-only approach in meeting the 75% of TMDL reductions stated within the Regulatory Strategy.
  1. Within Severely Impaired Waterways and Nitrogen Sensitive Areas, property owners would be offered two alternatives:      
    • Where sewering infrastructure is made available within one (1) year, property owners would be offered the option of waiting (delaying replacement, build-out or major repair) the one (1) year.  Or…
    •  Leverage new HPIA technology and maintain the system in compliance, using real-time monitoring.

I applaud the towns touting their sewering infrastructure plans but for some waterways, like Popponesset Bay/Shoestring Bay, the plans are insufficient to resolve water quality issues now.  While the taxpayers in Cotuit wait for phantom sewering infrastructure (currently hinging upon ill-placed assumptions, on a 25+ year timetable), our waterway continues to creep slowly towards death.  The CWMP being implemented under an existing Watershed Permit fails the residents of Cotuit and Mashpee.  Continued permitting allows property owners to install outmoded septic system technology, allowing more nitrogen to seep into the soil column and water table causing further damage to estuaries and enabling a slow-moving environmental tragedy

I’m not a credentialed environmental marine scientist, but I know the science. 

The timeline for corrective actions as suggested within the MassDEP Strategy (30 years), is just not sufficient to meet the moment for our Severely Impaired Waterways. As a respected resource, Dr. Brian Howes (UMass SMAST Chancellor Professor at UMass Dartmouth) refers to Popponesset Bay as the most impaired estuary on Cape Cod.

Gary Markowitz, Save Our Shoestring

Without additional language to the MassDEP Strategy addressing the actions required to tackle our Severely Impaired Waterways, timelines like the Town of Barnstable’s CWMP will likely result in a devastating estuarial decline within Popponesset Bay to near-total habitat failure (miniscule levels of DO) within the next 7-10 years.

I would welcome the opportunity to share my views and suggestions via a public forum venue or with a call to someone in your office.”

The DEP plans to open the draft rules for public comment in the fall. We ask our concerned Cape Cod neighbors to please let the DEP know how important expediting the timetable for nitrogen pollution removal is to you and your community. Email the DEP at: We’ve subscribed to the DEP Notifications update and will let you know when public comment on the June 1 Fact Sheet is open.

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