The Massachusetts Department of Environmental Protection Issues New Septic Regulations for Cape Cod | Nutter McClennen & Fish LLP

On June 21, the Massachusetts Department of Environmental Protection (MassDEP) issued final regulations to address nitrogen pollution from septic tanks on Cape Cod. The regulations require landowners in “nitrogen-sensitive areas” on the Cape to modernize their sewage systems within seven years, it said unless the landowner’s city applies for a watershed permit to comprehensively combat nitrogen pollution. The new rules go into effect July 7 and will affect most cities in Cape Cod.

background

Nitrogen pollution has long been a problem for many of Cape Cod’s water bodies. Excess nitrogen in a body of water can lead to eutrophication, which is when invasive plants and algae invade the environment and deprive existing plants and animals of the oxygen they need to survive. MassDEP assumes that wastewater treatment plants make a significant contribution to this nitrogen surplus.

MassDEP has been considering regulatory approaches to tackling septic tank nitrogen since at least 2017, when it established a Title 5/Groundwater Discharge advocacy group to consider revisions to its septic tank regulations (known as “Title 5” regulations), including a specially created subcommittee on possible regulatory approaches to nitrogen to tackle During that review, the Conservation Law Foundation (CLF) sued MassDEP in 2021 to force the department to address nitrogen pollution on Cape Cod. CLF paused the lawsuit in 2022 after MassDEP began the rulemaking process that led to these new regulations. MassDEP received over 1,000 written and oral comments during the public process, which included five public hearings.

regulations

The regulations establish a three-pronged regulatory system to combat nitrogen pollution on Cape Cod.

Designation of nitrogen sensitive areas on Cape Cod –The first is to redefine “nitrogen sensitive areas”. In addition to areas near public drinking water supplies (which were previously subject to nitrogen regulations), these areas include any area on Cape Cod with a limit on the amount of nitrogen that can enter a body of water without affecting its environmental quality (known as the “overall maximum”) daily limit ‘ or ‘TMDL’). MassDEP has published the areas covered on its website. The regulations also provide for a public process for MassDEP to designate other areas as nitrogen-sensitive areas.

Upgrade septic tank systems –The second part (unless an exemption is granted as described below) requires property owners in these sensitive areas to upgrade or replace sewage systems within seven years using the “best available nitrogen-reducing technology” specified in the regulations. Any new construction in these areas must also have upgraded systems installed within six months of the July 7 ordinance taking effect. The requirement does not apply to “upgrades using Department-approved nitrogen reduction technology installed in the ten years prior to the effective date of these regulations.”

Exception for Cities with Watershed Permits –The third part provides an exception to the requirements for the improved sewage treatment plant if the landowner’s city applies for and implements a watershed permit for the affected nitrogen-sensitive area. A watershed permit has a 20-year term and “enables communities to design and implement wastewater solutions that are tailored to the specific watershed and community needs.” The goal of such permits is to reduce the controllable excess nitrogen in the first 20-year period Reduce approval time by 75 percent. A common solution a city can implement is to connect more homes to centralized wastewater treatment plants, which are more efficient than sewage treatment plants at removing nitrogen. Other alternative approaches could include aquaculture, permeable reactive barrier walls, and fertilizer reduction. The regulations specifically address an existing watershed permit developed by Orleans, Chatham, Harwich and Brewster to reduce nitrogen pollution in Pleasant Bay.

Costs and possible financing

The new regulations will have significant cost implications for affected landowners and cities. MassDEP estimates that upgraded sewage systems will cost homeowners approximately $25,000 to $35,000, although the actual cost could be much higher. Annual operating costs are also incurred for these systems. Cities that opt ​​for a watershed permit could spend tens of millions (or more) on sewerage infrastructure and facility improvements to reduce excess nitrogen, among other things. Ultimately, these costs are passed on to interest and taxpayers.

MassDEP identified several potential funding sources for wastewater treatment and watershed projects, including the Massachusetts State Revolving Fund/Clean Water Trust, the Cape and Island Water Protection Fund, and the Southeast New England Program Watershed Implementation Grant. Governor Healey and the Legislature are also considering tax credit proposals to offset the cost of new sewer systems. Gov. Healey proposed tax breaks of between $6,000 and $12,000 for modernizing sewage treatment plants in her tax break program released earlier this year. The Senate increased the maximum possible refund to $18,000 in its recently passed tax proposal.

Impact and Analysis

The regulations represent a major extension of the MassDEP rule for septic tanks. Previously, there were no government regulations addressing nitrogen in sewage treatment plants, except near drinking water wells. The new regulations cover most of Cape Cod, a much larger area. Currently, the regulations only apply to the Cape (MassDEP has removed draft regulations proposing a procedure for certain areas outside the Cape), but MassDEP could expand the scope of the regulation in the future.

Like the current Title 5 regulations, the new requirements will be primarily enforced by local health authorities (in collaboration with MassDEP). Affected health departments should review and amend their current local regulations to reflect these new government requirements and/or clarify where local regulations are more stringent and remain in effect.

The regulations also raise a novel issue of state governance. MassDEP concedes that it “has no legal authority to require municipalities to obtain watershed permits.” Presumably, requiring watershed permits without funding would violate the state’s local mandate statute MGL c . 29, §27C, which prevents an agency from imposing costs on a city unless it (or the legislature) provides the means to meet those costs. So, in essence, MassDEP is using its regulatory powers over wastewater treatment plants to give cities an “incentive” to opt for a watershed permit, which MassDEP cannot dictate. During the commenting phase, some commenters questioned whether MassDEP should have instead sought the approval of the Massachusetts Legislature and the necessary funds for cities to comply with the regulations.

This advisory was created by Matthew Connolly, Eliza Cox, Michael Leon, Matthew SnellAnd Sarah Turano-Flores at Nutter real estate department. If you would like more information please contact a member of our real estate department or your Nutter Attorney at 617.439.2000.

This update is for informational purposes only and should not be construed as legal advice as to any specific fact or circumstance. Under the rules of the Massachusetts Supreme Court, this material may be considered advertising.

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