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Barnstable asks federal judge to dismiss lawsuit over wastewater treatment plant

Association to Preserve Cape Cod

The town of Barnstable is hitting back against an environmental group’s lawsuit that claims the Hyannis Wastewater Treatment Plant violates the federal Clean Water Act.

Last Friday, the town filed a motion to dismiss the Conservation Law Foundation’s (CLF) lawsuit, which claims the town’s sewage treatment plant is polluting nearby coastal waters with nitrogen, which can cause serious algae outbreaks. In the suit, the Boston-based environmental firm says the town needs to update its technology at the facility and obtain a special federal permit issued under the Clean Water Act to discharge treated wastewater, or effluent, into the ground.

A statement issued by the town maintains that CLF is basing its claim on the idea that discharge from the plant is the “functional equivalent” of a pipe pouring waste directly into the ocean, but town officials say that’s not the case.

The arguments largely hinge on how the two parties interpret a recent Supreme Court case.

In April 2020, the Supreme Courtruled on a case involving a treatment plant in Maui, Hawaii, that used injection wells to pump treated sewage into groundwater about a half-mile from the Pacific Ocean. Injection wells force treated waste into porous rock deep underground. Some of the pollutants eventually reached the ocean.

In County of Maui v. Hawaii Wildlife Fund, the court ruled 6-3 to return the case to a federal appeals court for reconsideration under a newly established standard: an Environmental Protection Agency permit is required when a discharge -- such as one into groundwater -- is the “functional equivalent” of a direct discharge into navigable water bodies like streams, lakes, or oceans.

The CLF lawsuit seeks to apply that standard to the Hyannis Wastewater Treatment Plant, but Barnstable officials disagree.

“Their discharge there [in Maui] was through injection wells, which is different from what we have,” said Dan Santos, director of Public Works for the town of Barnstable.

The Supreme Court’s decision left room for interpretation of what could be considered direct discharge, but Santos said the Hyannis plant’s methods do not fall under that definition.

“They were going to consider [six] things as to whether this was the functional equivalent to a direct discharge.” Santos said, “The most important being time and distance. … The concern being, primarily, that in the Maui case, if you are not far … from the coast, the water body, then there's no opportunity for there to be any attenuation of any contaminants.”

In Hyannis, time and distance are in abundance, according to the town.

“Anything that's put on the ground surface in Hyannis … can take 20 to 30 years to reach the coast,” Santos said. “That's just a function of looking at the hydrogeology and the type of material that's in the ground and how fast water moves through it.”

As a result, Santos said, additional federal permits aren’t required.

Santos also drew a distinction between the injection wells used in Hawaii and the methods used in Hyannis.

“We have a system where we discharge our treated wastewater to the ground via rapid infiltration beds,” he said. “That’s considered a groundwater discharge.” Because of that approach, Santos said, the Hyannis plant is regulated by the Massachusetts Department of Environmental Protection and would not be required to obtain a National Pollutant Discharge Elimination System permit.

In response, CLF says the town is trying to shirk its responsibility to clean up local waters and has “grossly misrepresented” the legal standard that applies.

The reality on the Cape is that nitrogen that is discharged from this facility inexorably and without fail reaches the surface waters in the bays and causes the pollution that everyone is suffering through,” said CLF senior attorney Christopher Kilian.

“Thankfully, the Supreme Court didn't say, ‘Well, you know, if it takes a long time to get into the surface water, you're scot free under the Clean Water Act,’” he said. “[The town’s] view is entirely designed to avoid responsibility. And it would be a terrible outcome for not only the bays on Cape Cod, but for clean water generally, if the view that the town has espoused is adopted by a court.”

Kilian says the firm will respond in court by next Friday.

“We will be asking the judge to hold oral argument to consider the motion,” he said. “Not surprisingly, we think the motion is ill-conceived and just flat wrong. And so we'll be asking the judge to allow the case to proceed.”

While the lawsuit “threatens to undermine the Town’s efforts,” according to a press release, town officials say they maintain hope for a resolution outside of the courtroom.

“While we would prefer that CLF work with the Town as a partner toward achieving these important goals instead of diverting the Town’s resources from these efforts,” said Town Manager Mark Ells, “we will vigorously defend against CLF’s misguided attempt to impose inapplicable federal requirements on our Town and its residents.”

The Hyannis treatment plant has received all required permits under state law, and the town is working on a $1.4 billion wastewater treatment plan that includes upgrades to the plant and sewer service to about 12,000 additional homes over the next 30 years.

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