DARTMOUTH — Town officials who were critical of the state’s new septic system regulations say they were snubbed for being excluded from a committee formed to help revise the draft rules.
The state Department of Environmental Protection sparked an intense controversy late last year when it proposed new rules to control nitrogen pollution in southern Massachusetts. The regulations could force homeowners on the South Coast, Cape Cod, and islands to upgrade to expensive nitrogen-filtering septic systems within a few years, unless their town puts together a comprehensive plan to control nitrogen in its watersheds.
The agency is in the process of revising the proposed regulations after receiving over 900 written comments and hearing from dozens of residents and multiple local officials at public meetings. It expects to finalize the regulations by the end of June.
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In the meantime, it has assembled a new committee to review the feedback and discuss possible revisions. The Title 5 Advisory Committee, named for the law the regulations would alter, met for the first time on Thursday.
It’s made up of engineers, environmental advocates, real estate professionals, wastewater regulators, and local government representatives. Westport is represented on the committee. So are Barnstable, Falmouth, and Martha’s Vineyard. Why not Dartmouth?
“It’s a very purposeful selection of individuals, because if you select the right people you get a certain outcome,” said Dartmouth Health Director Chris Michaud, one of the leading critics of the regulations from the South Coast. “My gut feeling is that, unfortunately, we brought some things to their attention that they need to address and it’s made life difficult for them.”
Some of the most vociferous criticism of the proposed regulations has come from Dartmouth residents and officials. They have objected to the cost the regulations could impose on homeowners and local taxpayers, and they have called the state’s process for crafting the policy secretive, disingenuous, and even corrupt.
The Dartmouth Select Board was “deeply troubled” that the town wasn’t invited to the committee, according to a letter that Town Administrator Shawn MacInnes sent to DEP Commissioner Bonnie Heiple on May 11. He also wrote that it was “disconcerting” that the town only found out about the committee from public court filings.
MacInnes asked the agency to reconsider. But the state never got back to them, Michaud said. An agency spokesperson did not respond to The Light’s requests for comment on the letter.
The proposed regulations are related to a lawsuit brought by the Conservation Law Foundation in Barnstable Superior Court. The environmental group sued the state and the towns of Barnstable and Mashpee for failing to protect bays and estuaries on the Cape from nitrogen pollution. The foundation has agreed to pause the lawsuit while the state works on its new rules.
The lawsuit and new regulations target nitrogen pollution. Septic systems are one major source of it, though critics of the rules point out that it can also come from other sources like fertilizers and composting. When nitrogen runs off or leaches into bays and estuaries, it leads to algae blooms, which can seriously harm ecosystems — the algae takes up oxygen and blocks sunlight, making it hard for other plants and animals to survive.
The proposed regulations lay out two options for towns to address their nitrogen pollution. If the towns do nothing, homeowners will have five years to upgrade their septic systems to new models that filter out nitrogen. Those systems cost an estimated $20,000 to $35,000 apiece, with annual operating expenses of $1,000 to $2,000.
The other option for towns is to get a watershed permit, which requires them to develop a watershed management plan. The town would be allowed to develop its own strategies to get nitrogen under control in its watersheds over the course of 20 years. But that will involve management, data collection, and engineering work, and the state hasn’t guaranteed any funding to pay for it.
The regulations target towns by declaring certain polluted watersheds as “nitrogen sensitive areas,” or NSAs. Much of the Cape would immediately be designated as NSAs once the regulations are finalized, but the state has also identified areas on the South Coast and islands that it might designate as NSAs in the future. They include parts of Westport, Dartmouth, New Bedford, Fairhaven, and Acushnet.
Critics on the South Coast have said they shouldn’t be lumped in with the Cape because their watersheds have different nitrogen sources and geological conditions. During Thursday’s Title 5 Advisory Committee Meeting, DEP Deputy Commissioner for Operations Gary Moran said the agency agrees.
“We are really very seriously considering the extent of the comment and concern on this particular issue from both the public and the municipal officials,” Moran said. “At a minimum, it has reinforced the need for additional communication and work we need to do with some of these communities prior to getting into serious discussions about the potential for the NSA designations.”
Moran said the agency is considering focusing its efforts on areas that are “ready” for NSA designation, which only include the watersheds on the Cape.
The committee also discussed the need to better define which nitrogen-filtering septic systems would be approved under the new regulations. The current draft would require homeowners to install the “best-available, nitrogen-reducing technology,” but they don’t include any numbers specifying the threshold for an acceptable system.
George Heufelder, a project specialist for the Massachusetts Alternative Septic System Test Center who sits on the committee, said that uncertainty is causing anxiety.
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“What would be very good to put in the regulation, at this point, is how that ‘best’ number will be determined,” he said. “And it could be a technical advisory committee formed by the governor, or the pope, or whoever, but somehow to let the public and let the people who are going to be affected know that there is a process, it will be transparent, and this is how it will be done.”
Mike Hugo, who represented the Massachusetts Association of Health Boards, agreed that the state should include some numbers in its definition of the “best” technology, and added that the state could be vulnerable to lawsuits if its standard is seen as subjective.
“Without setting values, you’re inviting disaster,” he said.
Other revisions the agency is considering include extending the amount of time homeowners will have to comply with the new septic requirements, grandfathering in more septic systems that were installed before the regulations go into effect, and streamlining the watershed permit process for towns that have already done some watershed management work.
Moran said the agency is considering how to help homeowners pay for septic upgrades or help communities pay for watershed management plans, but didn’t provide many specifics.
It’s still uncertain what the final regulations will look like. When one committee member pushed Moran for details on how the agency plans to revise its proposed rules, Moran said the agency is still having internal discussions on that, but the public comments and committee feedback were helpful to them.
“We’re in a spot where we can’t necessarily say, ‘This is what the final regulation will entail,’” he said.
Email Grace Ferguson at firstname.lastname@example.org.
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