Conservation Law Foundation sues Barnstable, Masphee and state over wastewater cleanup
Doug Fraser
Cape Cod Times
June 25, 2021
BARNSTABLE — In a lawsuit filed last week, the Conservation Law Foundation went right to the heart of the wastewater problem on Cape Cod: septic systems.
Approximately 80% of properties on Cape Cod rely on septic systems, which are permitted under state Department of Environmental Protection Title 5 regulations. But Title 5 systems are not required to remove nitrogen and phosphorus, the primary contaminants causing runaway algal growth and degraded water quality in our coastal and inland water bodies.
The litigation filed in Barnstable Superior Court on Wednesday charges that the state Department of Environmental Protection and the towns of Barnstable and Mashpee have known for decades that these nutrients were the source of declining water quality and have been violating their own regulations in allowing it to continue.
The suit asks the court for a temporary suspension of permitting of conventional septic systems when they are part of new construction or replacement of an existing system. It also wants the court to suspend approval of existing systems during property transfers.
“Title 5 says that direct or indirect discharge of effluent into surface waters of the Commonwealth is prohibited,” said Christopher Kilian, CLF vice president of strategic litigation. “The lawsuit points out that DEP and towns have been ignoring the requirements of Title 5 … for years in authorizing thousands of (septic) systems that have caused this (wastewater) problem.”
‘A lot of the things … are baseless’: Barnstable officials respond to wastewater suit
Kilian said that permitting conventional septic systems and allowing them to be installed while crafting large town-wide plans that roll out over decades, ignores the reality that towns are allowing the nitrogen and phosphorus to continue to build up in groundwater that eventually reaches ponds and coastal water bodies.
CLF wants DEP and towns to require innovative technologies to be installed when septic systems are installed or replaced or when property is transferred.
The lawsuit charges that the state and towns were obligated under the law to stop the pollution and that by permitting septic systems “they have authorized further pollution.”
“Unfortunately, rather than stop the problem, the DEP and the towns are continuing to approve and authorize systems that are known to pollute and don’t work on the Cape,” Kilian said.
CLF targeted Barnstable and Mashpee due to polluted water bodies
CLF was focused on Barnstable and Mashpee because of several compromised water bodies such as North, West and Cotuit bays, Lewis Bay, Popponessett Bay and freshwater ponds that have been experiencing toxic algae blooms. Plus, CLF has already sued Barnstable in federal court earlier this year alleging that its Water Pollution Control Facility needed a federal discharge permit under the Clean Water Act because the treated wastewater discharged into the ground is reaching Lewis Bay.
In my view, this reflects a misunderstanding of local conditions on the ground and what is needed to solve this problem. The Conservation Law Foundation needs to go back and do their homework and find out what needs to be done and what technology is available. Andrew Gottlieb
The lawsuit filed Wednesday asks that defendants develop a five-year plan, using a consent decree, to upgrade all septic systems that drain into Mashpee and Barnstable southern Cape coastal waters, and that no installation, modification or passing inspection be authorized until the plan is developed.
Mashpee Selectman Andrew Gottlieb, who is also executive director of the Association to Preserve Cape Cod, was concerned that the litigation would complicate the wastewater management plans that towns are developing or implementing. This spring Mashpee voters approved $54 million to build a wastewater treatment facility as part of Phase 1 of their wastewater plan.
Gottlieb said that alternative technologies for nitrogen removal from septic systems have not developed to the point where they lower the amount in effluent low enough to meet the amounts required by the state under approved plans. Plus, he said they don’t deal with phosphorus, which is the primary driver of algae growth in ponds and rivers.
“This would raise the cost to the individual homeowner for no particular environmental benefit,” Gottlieb said. “In my view, this reflects a misunderstanding of local conditions on the ground and what is needed to solve this problem. The Conservation Law Foundation needs to go back and do their homework and find out what needs to be done and what technology is available.”
Gottlieb worried that litigation tended to drag out the timeline on implementing solutions.
“The Town believes that CLF’s legal claims in these lawsuits are meritless and intends to defend against them aggressively,” Barnstable Communications Director Lynne Poyant wrote in a press release Thursday.
Town Manager Mark Ells said in the press release that Barnstable was “committed to doing everything in our power to preserve the health of the waters surrounding the Cape.”
Ells said they enforce Title 5 regulations and have had their Comprehensive Wastewater Management Plan (CWMP) approved by the DEP.
“By implementing the CWMP, Barnstable will achieve the nitrogen reduction called for in the Total Maximum Daily Load (determined by Massachusetts Estuaries Project scientists) documents and developed by the (DEP) and approved by the federal Environmental Protection Agency,” Ells wrote in the press release.
A DEP spokesman said that his agency is reviewing the lawsuit.
“MassDEP continues to work with Cape local officials and stakeholders to ensure that timely action is taken to address the region’s water quality problems by developing solutions that work for their communities,” the DEP spokesman said.
Urgency needed to reduce nitrogen and phosphorus
But Kilian said there was a driving need to act now and not let nitrogen and phosphorus continue to build up in groundwater, while still going forward with longer-term solutions.
“It’s time to turn the faucet off, time to stop the madness,” said Kilian, adding that even if nitrogen removal technologies did not meet what was required under approved wastewater plans, it still meant less contamination flowing into groundwater.
“It seems upside-down to me to forestall the use of systems that can reduce nitrogen, even if imperfect, (and continue) the use of systems that don’t reduce nitrogen at all,” Kilian said.
Requiring nitrogen removal technology in onsite septic systems would reduce contaminant loading in areas that wouldn’t see any wastewater improvement for decades, if at all, under approved plans, he said.
Negotiations with towns and DEP on how to address existing and new septic systems are what CLF hopes to see rather than a court order.
“I’m hopeful we will continue to see progress and that we will have productive dialogue with the towns and the Department of Environmental Protection,” Kilian said.
Follow Doug Fraser on Twitter:@dougfrasercct
Clean waters: CLF sues Barnstable over pollution in Lewis Bay