New Mandates Loom for Massachusetts’ Vacationland

Property Owners Subject to Septic Upgrades
By Christopher R. Vaccaro
Special to Banker & Tradesman

Changes are com­ing to regulations affecting waste­water management on Cape Cod and south­eastern Massachusetts, but the scope of these changes and their po­tential impact on prop­erty owners are still taking shape.

The Massachusetts Department of Envi­ronmental Protection is responsible for reg­ulating private on-site sewage disposal sys­tems, commonly known as septic systems. For decades, DEP has regulated septic sys­tems through Title 5 of the State Environ­mental Code. Conventional septic systems collect wastewater in watertight septic tanks where solids, grease, and fats are sep­arated from liquids, and partial treatment of solid waste occurs. Liquids are then distrib­uted over subsurface leaching fields, where microbial action removes some pollutants before the liquids seep into the soil and groundwater.

Nitrogen, usually in the form of ammo­nia, is a major pollutant found in wastewa­ter. Septic systems are designed to use bac­teria to convert nitrogen compounds into harmless nitrogen gas, a relatively inert molecule that is the primary component of the earth’s atmosphere. However, conven­tional septic systems only reduce nitrogen pollution by an unimpressive 5 to 10 per­cent. The untreated pollutants seep into the groundwater, and often into nearby wet­lands. The results of incomplete pollutant reduction are notable on Cape Cod, where water quality in many harbors, estuaries and marshes is already significantly de­graded, and getting worse.

To address this problem, DEP seeks to enhance pollution prevention standards on septic systems serving Cape Cod and south­eastern Massachusetts, by amending Title 5 and adding new watershed permit regula­tions. DEP’s initiative would identify water­sheds vulnerable to nitrogen pollution, and designate them as “nitrogen sensitive areas”

(NSAs). DEP has not completed its designa­tion of NSAs, but towns on Cape Cod from Bourne to Orleans would certainly have NSAs, and much of Martha’s Vineyard, Nan­tucket and the western shore of Buzzards Bay would likely be included. DEP’s pro­posed amendment to Title 5 would require all septic systems located in NSAs, includ­ing existing systems, to be upgraded to em­ploy “best-available nitrogen-reducing tech­nology” within five years.

However, if a community obtains, or files a notice of intent for, a “watershed permit” from DEP, the community’s property own­ers would be exempt from the upgrade re­quirement.

Expensive New Technology Required

DEP’s website offers helpful information on different kinds of septic systems that use the best available nitrogen-reducing technol­ogy, or BAT, for short. BAT systems can re­duce nitrogen pollutants by over 70 percent, a significant improvement over the lacklus­ter performance of conventional systems.

But BAT systems are expensive, and may cost over $35,000 each. If thousands of property owners are required to install BAT systems, the overall financial burden would be exorbitant. Whether there are enough qualified professionals available to com­plete thousands of upgrades within five years is questionable. The upgrade mandate would also likely have an adverse effect on construction and housing costs on Cape Cod. State government would probably have to create new funding sources and loan programs for property owners to pay for upgrades.

DEP is sensitive to these concerns. The proposed regulations would offer communi­ties a way to shift the upgrade requirement from individual property owners to the community in general, using watershed per­mit regulations. Under DEPs proposed reg­ulations, communities could seek a 20-year permit to implement long-term wastewater planning for entire watersheds. This would give communities time to develop innova­tive approaches to better wastewater man­agement, including possible expansions of public sewer systems. Individual property owners would not be required to upgrade their septic systems during the 20-year pe­riod that the watershed permit is in effect.

Communities seeking watershed permits would be expected to commit to wastewa­ter management plans demonstrating that at least 75 percent of the necessary pollutant reduction levels would be achieved within 20 years. Those communities would have to provide annual progress reports to DEP, and implement adaptive management pro­grams to produce the necessary reductions. If a community fails to satisfy the require­ments of its watershed permit, DEP could terminate or revoke the permit and reim­pose the Title 5 upgrade requirement on in­dividual property owners. DEP’s initiative is clearly intended to encourage communities to take a holistic and proactive approach to wastewater treatment in NSAs, so individ­ual property owners are not saddled with upgrade costs.

DEP held public meetings last year and in January seeking comments on its proposed regulations. While many participants at those meetings expressed concerns about upgrade costs, many others supported DEP’s efforts to improve water quality on Cape Cod. The time for comments is now over, and Cape communities will soon learn what will be expected of them to achieve that goal.

Download the article as seen in  Banker & Tradesman on March 27, 2023. Learn more about Christopher R. Vaccaro.