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‘A Decade of Missed Opportunities’; Report Criticizes Cape Towns Over Septic Approvals

The towns of Barnstable and Mashpee, along with the state Department of Environmental Protection, knowingly allowed nitrogen pollution from septic systems to degrade water quality across the Cape, according to a new report by the Boston-based Conservation Law Foundation.

The report, presented as an interactive story map, documents cases over the past 10 years when the towns passed inspections, authorized construction, and granted repairs for more than 6,000 septic systems.

The report specifically looks at the neighborhoods near Centerville River, Lewis Bay, Three Bays, and Popponesset Bay.

“Not only have we lost 10 years of opportunities to clean these waters up, we have in fact made the problem significantly worse by allowing new systems to come into these waterways that are already terrible degraded,” said Chris Kilian, Vice President for Strategic Litigation. 

In the Popponesset Bay area, CLF found, 648 septic systems have passed inspection or received a permit from local officials. 

“Though it was once home to a thriving shellfishery, today, that shellfish is unsafe to eat,” the report said. Popponesset Bay is often considered the most polluted bay on Cape Cod.  

In August, CLF filed a notice of intent to sue Mashpee, Barnstable, and the state’s Department of Environmental Protection over nitrogen pollution. Private talks have continued between the CLF and public officials, but the new report, titled “Cape Cod's Polluted Bays: A Decade of Missed Opportunities,” could set the stage for a major lawsuit.   

“At this point, what we see is a decade of lost opportunities and illegal approvals, and that can’t continue,” Kilian said. 

Kilian alleges that state and local officials have known about nitrogen pollution and its link to septic systems for years. 

In 2009, Environmental Protection Agency officially found that septic systems were causing nitrogen to be discharged into local bays, leading to stark declines in water quality. 

“In fact, the towns know that septic systems pollute our waters with nearly 370,000 pounds of harmful nitrogen every year,” according to the report.

The 2009 finding led the EPA to create a pollution budget that limited how much nitrogen pollution Cape Cod waters could absorb. In response, MassDEP and the towns have recognized -- through reports and local bylaws-- that each septic system operating in the area is polluting coastal waters with nitrogen, the report said.

In addition, environmental codes like Title 5 ensure that every time a house is built or sold, the home's septic system functions in compliance with the law and does not put human health or the environment at risk.

“Town officials are legally obligated to enforce Title 5,” according to the report. “MassDEP is legally obligated to ensure that septic system inspectors do their work in compliance with the law. But the towns have treated Title 5's mandates as optional, and MassDEP has turned a blind eye to their conduct.”

The report also says that the state and the boards of health in Barnstable and Mashpee have committed an “outright violation of Massachusetts law,” and allowed thousands of homes to be built and sold without accounting for the nitrogen pollution that pours into coastal waters. 

“Thousands and thousands of missed opportunities to actually protect the water and clean the water are documented through all of these instances where, at best, these responsible officials look the other way,” Kilian said. “And at worst they illegally authorize these activities to continue.”

Lynne Poyant, who spoke on behalf of the town of Barnstable, said in an email that the town “absolutely rejects any allegations that it has violated the Title 5 [regulations] or that it has permitted failing septic systems. That is simply untrue."

In addition, she added, the town has been working on its "Comprehensive Wastewater Management Plan," which is estimated to cost over $1.2 billion and would result in over 11,800 parcels of land being sewered, which would significantly reduce the nitrogen load. 

Homeowners who hope to reduce nitrogen pollution should upgrade outdated septic systems to a modern waste system that filter more nitrogen before discharge, according to CLF. 

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