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Environmental Lawsuit Targets Wastewater, Threatens Development

Cyanobacteria bloom seen in Long Pond in Marstons Mills on July 2, 2020.

The Boston-based Conservation Law Foundation has put Mashpee, Barnstable and the Massachusetts Department of Environmental Protection on notice that it plans to file a lawsuit over pollution in Cape Cod bays and ponds from septic and wastewater systems. 


“Honestly, this lawsuit is long overdue,” said CLF senior attorney Christopher Kilian.


The environmental advocacy organization’s lawsuit will seek a temporary suspension of any new septic system installations and pause all septic inspections, which could have major impacts on homeowners and home sales.  


“We need to ensure that inspection reports and new systems are not being authorized in places that simply cannot withstand the additional pollution that are already terribly degraded,” Kilian said. He added that decades of approvals are effectively “rubber stamping the same activity that has been causing the pollution problems.”


About 80 percent of the Cape Cod region relies on septic systems that allow nitrogen, phosphorus, and other nutrients to seep through groundwater into local waters, creating potentially toxic algae outbreaks, or cyanobacteria blooms. Toxic blooms have been known to sicken humans and animals with ailments ranging from gastrointestinal symptoms to neurological damage. 


Cape towns have been developing plans to selectively sewer hard-hit neighborhoods and explore cranberry bogs, shellfish, and new nitrogen-reducing septic systems to reduce the nutrient load, but many of the alternatives are expensive and time-consuming. For example, Barnstable’s sewering plan will cost $1 billion over 30 years. Still, Kilian’s not convinced. 


“The law is not structured to say, ‘Well, there are no viable upgrades so you can continue to pollute the environment,’” he said. “Discharges of effluent waste from septic systems into surface waters of the commonwealth — directly or indirectly —  is flat out illegal. And yet Mass. DEP and the towns are focused on more of a business-as-usual approach.” 


A spokesperson with the state’s environmental protection agency said it can't comment on the notice of litigation, but is continuing to work with local communities to “address water quality challenges facing Cape Cod.” 


Barnstable town manager Mark Ells wrote in an email sent by the town’s senior attorney: “Until the lawsuit is filed and the Town receives and reviews the complaint, it would be premature for the Town to comment on the suit.” The town of Mashpee did not immediately respond to a request for comment. 


Mashpee, Barnstable and the Department of Environmental Protection have 21 days to remediate the pollution problem before the suit is filed in Barnstable County Superior Court.  


“It’s time on Cape Cod,” Kilian said. “We can’t abide a situation where the very agencies responsible for protecting the public waters … are just turning a blind eye.” 

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