Legal Action Could Force Stricter Regulation of Cape Septic Systems

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By: Elise R. Hugus
Published: 08/27/10

Federal and county authorities received a push this week from the Conservation Law Foundation and the Coalition for Buzzards Bay to start enforcing federal Clean Water Act provisions regarding nitrogen pollution—or face legal action.

In a complaint filed Tuesday at United States District Court in Boston, the environmental advocacy groups charged the US Environmental Protection Agency with not fulfilling its legal requirements to regulate nitrogen discharges to sensitive coastal bays and estuaries on Cape Cod and Nantucket.

The plaintiffs allege the EPA violated its own Clean Water Act and Administrative Procedure Act when it approved pollution control budgets—known as Total Maximum Daily Loads, or TMDLs—for 13 watersheds without identifying septic systems, wastewater treatment facilities, and stormwater systems as pollution “point sources,” which are subject to stringent water quality standards.

The EPA defines a "point source" as any discernible, confined and discrete conveyance, including any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural storm water discharges and return flows from irrigated agriculture.

Unlike pollution from industrial and sewage treatment plants, nonpoint source (NPS) pollution comes from many diffuse sources, according to the EPA. NPS pollution is caused by rainfall or snowmelt moving over and through the ground. As the runoff moves, it carries away natural and human-made pollutants, finally depositing them into lakes, rivers, wetlands, coastal waters and ground waters. 

Intended to spur action on the part of the EPA and county government, the potential lawsuit could cause the federal government to allocate money to help Cape communities meet the TMDLs.

By law, municipalities must pay for the costs of reducing nitrogen, usually by replacing septic systems with sewers and improved wastewater treatment systems.

“It is well documented where this pollution is coming from. Based on this incredible wealth of information, it’s absolutely clear that these are point sources of pollution that should meet regulator requirements,” said Christopher Kilian, vice president of the Conservation Law Foundation, which successfully filed suit against the City of Boston in 1983, prompting the cleanup of Boston Harbor.

A majority of nitrogen loading to Cape Cod bays and estuaries comes from groundwater, which collects the nitrogen percolating through the region’s sandy soil from septic systems, stormwater, and wastewater treatment facility plumes.

The best possible outcome of the legal action would be if the EPA begins regulating septic systems on Cape Cod as point sources of pollution to coastal waterways, said Mark P. Rasmussen, executive director of the Coalition for Buzzards Bay.

“That’s being realistic,” he said. “When that happens is when we can start broader discussion” about septic alternatives.

A Cape Cod precedent

Because the complaint is specific to Cape Cod, it is not intended to set a national precedent on the regulation of septic systems, wastewater treatment facilities, and stormwater systems, said Mr. Kilian. Nor is it intended to dispute the logic of TMDL models, which have been developed for the region under the Massachusetts Estuary Project, he said.

Although the CLF disputes the EPA’s rationale for determining point sources in the TMDLs, Mr. Kilian said the only thing the plaintiffs seek to change about the 13 TMDL reports is how septic systems, stormwater systems, and wastewater facilities are categorized. If the EPA accepts these sources of nitrogen as “point sources,” they would fall under “wasteload allocation,” subject to EPA water quality standards, he said.

“This has huge regulatory significance, if [these sources] are required by law to be regulated by the Clean Water Act,” Mr. Kilian said.

According to Falmouth Wastewater Superintendent Gerald C. Potamis, who also worked at the EPA for 37 years, it will be a difficult task for the plaintiffs to convince a judge that septic systems should fall under the National Pollutant Discharge Elimination System (NPDES) permit program, which regulates point sources that discharge pollutants into waters of the United States.


“If they think EPA will start issuing NPDES permits to all septic systems, they’re not going to get anywhere,” Mr. Potamis said, suggesting that the complaint may eventually be resolved through a settlement.


Ecosystem economics

For the coalition, a nonprofit organization that has been collecting water quality data from Buzzards Bay estuaries for the past 18 years, dealing with nitrogen pollution now will have immediate and long-lasting effects on sensitive watersheds—and local economies that depend on clean water to support the housing and tourism industries.

“Unlike the Gulf of Mexico and Chesapeake Bay, we’ve had the benefit of being ahead of this issue. We’re losing that,” Mr. Rasmussen said.

In their complaint, the plaintiffs also allege that the EPA was “unlawfully deficient” in approving the TMDLs without analyzing the impacts of climate change on coastal ecosystems. The “uncertainty [of climate change] gives rise to the need for a wider margin of safety in the Cape Cod TMDLs, which would accommodate the lack of knowledge concerning the relationship between pollution controls and water quality in the future,” the document states.

“By turning a blind eye to climate change’s impact on water quality in the Cape Cod region, EPA disregarded mounting scientific evidence on climate change and unlawfully approved TMDLs that did so as well.”

County Faces Suit

In a separate but related legal action, the environmental groups also filed a 60-day notice of intent to sue the EPA, the Cape Cod Commission, and the Barnstable Country Commission for failure to implement a regional Water Quality Management Plan, which they say is also in violation of the Clean Water Act.

According to Paul J. Niedzwiecki, director of the Cape Cod Commission, the commission has been working with the Cape Cod Water Protection Collaborative for the past year and a half to develop a regional wastewater plan.

Although he was not at liberty to discuss pending litigation, he said the legal action is based on a 1978 water quality management plan drawn up by the Cape Cod Planning and Economic Development Commission and the EPA, which is “less than clear” as to how to deal with nitrogen loading.

Taking a regional approach to wastewater management will help solve the long-term ecological and economic problems associated with nitrogen contamination, Mr. Niedzwiecki said.

“We do understand that we have wastewater management responsibilities,” he said. “We need to get serious about a regional system here, and approach the problem collaboratively.”

To that end, he said, the commission and the collaborative will “roll out” its regional management plan on September 23, at a location to be announced within Barnstable’s Three Bays watershed.

“It is the beginning of the regional plan, but not a capital plan,” Mr. Niedzwiecki said. “Money is the big drawback. There’s not enough help from the state or federal government.”

Mr. Rasmussen agreed that funding is the major stumbling block for communities like Falmouth, which faces a $400 to $650 million price tag to implement a wastewater treatment plan for the whole town. He pointed out that the 15 towns on Cape Cod are taking initiative in areas where regional, state, and federal government has failed.

“The case deliberately does not take action against the towns,” Mr. Rasmussen said, also noting that if further legal action is taken, towns will still have discretion as to how nitrogen is removed from the groundwater.

Although they had not yet received the notice in hand earlier this week, county representatives were not caught completely off guard by news of the registered complaint.

“It was in anticipation of this action that the County has been urging towns to continue their wastewater planning,” Mr. Gottlieb wrote in an e-mail to the Enterprise.

“The best way to blunt the possible effects of this pending suit is to render it moot by continuing to make progress solving our wastewater problems.”

Asked whether the county was planning to fight or cooperate with the legal challenge, Barnstable County Commission chairman Mary (Pat) Flynn said she could not answer any questions until she and her fellow commissioners had a chance to read the notice of intent, which was sent by certified mail on Tuesday.

A statement released by the EPA Region 1 office in Boston also said the agency would be unable to comment until officials had a chance to review the complaint.

“Reducing nitrogen is a complicated problem, and all levels of government—local, state, and federal—have a role to play. EPA is committed to do our part, and to work closely with others to ensure that all appropriate steps are taken,” the statement reads.

The “silver lining” to nitrogen pollution, Mr. Rasmussen said, is it can be removed from wastewater relatively easily, if action is taken quickly.

“Just because nitrogen is invisible doesn’t mean it’s not killing our coast. The more invisible it is, the easier it is to ignore. This case is about exposing this invisible problem.”

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