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Environmental Advocates Move Ahead With Lawsuit Over Cape Septic Systems

A cyanobacteria bloom covers Walkers Pond in Brewster on June 25, 2020.
Gerald Beetham; Association To Preserve Cape Cod
A cyanobacteria bloom covers Walkers Pond in Brewster on June 25, 2020.

The Boston-based Conservation Law Foundation is moving forward with its lawsuit against Mashpee, Barnstable, and state environmental officials over pollution in Cape Cod bays and ponds.

The environmental advocacy firm’s lawsuit, filed in Barnstable Superior Court, alleges that the towns have failed to comply with state regulations that apply to private septic systems, and demands a temporary suspension of any new septic systems and system inspections, which could have major impacts on homeowners and home sales.

“We need to stop business as usual,” said lead attorney Christopher Kilian. The CLF wants communities to “stop simply authorizing the use of systems that we know are just going to make the problem worse.”

More than 80 percent of the Cape relies on septic systems that leak nitrogen and phosphorus through the groundwater, polluting bays and ponds across the region.

“It manifests as algae, cloudy, slimy water, fish kills,” Kilian said. “It’s a problem that threatens the foundation of the Cape’s tourism economy and property values.”

The lawsuit also calls on the Massachusetts Department of Environmental Protection (MassDEP) and the towns to tighten regulations to require modern nitrogen-reducing wastewater systems — like tight-tanks that allow for waste to be captured and transported — for both new development and as upgrades to existing systems.

“Instead of allowing continued pollution, we think that it’s long overdue and now time for MassDEP and the town to be requiring use of technology and systems that actually protect the water instead of pollute the water,” Kilian said.

CLF issued a notice of intent to sue the three parties last September, and despite “productive conversations,” said Kilian, the advocacy firm is pushing the suit along, “though we’re hopeful we could reach some kind of resolution.”

A Mashpee representative said the town would not be able to provide a comment at this time, but Barnstable disputed the claims in a prepared statement.

“The town believes that CLF’s legal claims in these lawsuits are meritless and intends to defend against them aggressively,” wrote director of communications Lynne Poyant. “The town faithfully administers the Massachusetts Department of Environmental Protection (MassDEP) regulations, but CLF’s lawsuit threatens to impose significant burdens on Barnstable’s residents and businesses.”

During Town Meeting last month, residents in Mashpee approved a $54 million project to build a sewage treatment plant and sewer collection system, possibly the largest funding proposal ever approved by the town for wastewater efforts. The goal is to clean up the water and rebuild habitats lost to nitrogen pollution over a 30-year period. The town of Barnstable is working through its own 30-year wastewater treatment plan.

CLF sued Barnstable earlier this year in federal court, alleging that the town’s sewage treatment plant in Hyannis is polluting Lewis Bay by operating “a giant septic system … in the sense that unlike lots of other wastewater treatment facilities, the Hyannis facility releases its effluent into sand beds,” Kilian said during an interview in February 2021.

The town, then and now, is forceful in its response.

“CLF’s demands in these twin lawsuits exceed any requirement of either state or federal law, disrupt Barnstable’s plans to implement the [Comprehensive Wastewater Management Plan], and carry the potential of devastating economic impact on Barnstable’s residents and businesses,” Barnstable Town Manager Mark Ells said in the town’s statement.

In its statement, a representative for MassDEP said the agency is now reviewing the complaint and is continuing to work with Cape officials to address the region's water quality problems by “developing solutions that work for their communities – rather than having solutions imposed on them by outside parties or the federal government.”

Eve Zuckoff covers the environment and human impacts of climate change for CAI.