Concern, Hope, Uncertainty About Effects Of Environmental Lawsuits In Mashpee

By: Brian Kehrl
Published: 08/27/10

Local officials greeted the lawsuits aimed at forcing faster and more aggressive action on Cape Cod’s wastewater issues with a range of reactions, from concern that they may slow down progress to hope that they will draw more attention to the issue.

“Lawsuits are never good news. I am always wary of lawsuits and having someone tell us how we have to do it. But it might have its benefits, where people will be more aware of the issue,” said John J. Cahalane, the Mashpee Board of Selectmen’s liaison to the Mashpee Sewer Commission.

The suits could draw federal money to help pay for the costly projects, but they could also force a more uniform approach on towns that prevents the incorporation of alternatives to traditional, centralized wastewater treatment plants, he said.

 The Conservation Law Foundation and the Coalition for Buzzards Bay announced on Wednesday two separate legal actions against the federal Environmental Protection Agency, Barnstable County Commission, and the Cape Cod Commission.

The suit against EPA argues in part that the federal agency should regulate septic systems and other sources of nitrogen flowing into the groundwater the same way as pollution sources discharging directly into surface water.

The environmental groups are asking EPA to recast the nitrogen pollution budgets—targets known as a Total Maximum Daily Load, or TMDL—that take into account stricter regulation of septic systems, wastewater treatment plants, and stormwater runoff, as well as the predicted stress the estuaries will see from climate change.

The EPA suit focuses on 13 separate estuaries, including both Popponesset Bay and East Waquoit Bay, the two areas that Mashpee is responsible for cleaning up.

The case against the two county agencies and EPA, for which a 60-day notice of intent to sue was filed, focuses on a 1978 plan that was approved but has not been updated, as required under the federal Clean Water Act.

Notably missing from the listing defendants, however, were any towns, which came as a surprise to Mashpee Sewer Commission Chairman F. Thomas Fudala. “My initial reaction was boy that’s strange. The county? They don’t have any authority with wastewater,” he said. “The towns have the authority to address the issue.”

Town Manager Joyce M. Mason said yesterday afternoon she was still in the process of reviewing the suit and could not comment. “I guess the good thing is that the town isn’t named in the suit,” she said.

But leaving out the towns is key, given that the financial aid package passed by the state Legislature last year, which gives towns that meet certain criteria access to zero interest loans, prevents municipalities that have wastewater-related legal cases pending from participating in the program. That package is widely considered to be the biggest assistance towns can hope for from either the state or federal government.

However, since the EPA is party to both legal actions, and the sole defendant of one of the suits, Mr. Cahalane said it does present the possibility of increased federal aid.

Financial assistance is not specifically mentioned in either of the legal documents, but the president of the Conservation Law Foundation, John Kassel, alluded to getting the federal government’s attention in a press release: “We need the Obama administration to prioritize clean-up of this treasured resource as it has with the Chesapeake Bay and for the EPA to step up to the plate and fulfill its legal obligation to control nitrogen pollution,” he said.

But there is a risk in the suits as well, Mr. Fudala said. The suits could also slow down progress being made, he said. For example, the case against EPA asks the federal court to prevent EPA from approving any more pollution budgets until it changes the regulations. Falmouth and Mashpee are waiting to receive the final TMDL for west Waquoit Bay, the portion of the watershed primarily in Falmouth.

“If that can’t be put in place, then we don’t have a target to plan around,” he said. “That could be counterproductive directly, in the sense of not having a target. And it could be counterproductive in the sense of towns saying, ‘Whoa, let’s not move ahead until we know what the final decision is with these TMDLs.’ ”

Mr. Fudala also noted that portion of the suit against EPA calls on the federal agency to take climate change into account when preparing the TMDLs, effectively requesting more stringent pollution limits on the assumption that the estuaries will be under greater stress in the future.

Brian L. Howes, lead scientist on the Massachusetts Estuaries Project and a Mashpee resident, said the section on climate change represented a small portion of the larger case, but it could be problematic for Mashpee and other towns.

The case requests a larger “margin of safety” to be built into the pollution budgets to account for uncertainties in climate change, said Dr. Howes, who has helped towns throughout southeastern Massachusetts identify sources of local nitrogen pollution.

The larger the margin of safety, the lower the pollution budget, the more nitrogen towns have to remove from the groundwater, the more expensive the wastewater projects are going to be, he said.

But the data he and other scientists have collected so far do not point to any major effects on nitrogen loading from the predicted consequences of climate change like differences in rainfall or temperatures, he said.

Dr. Howes said the main thrust of the suit against EPA, to reclassify septic systems, wastewater, and stormwater on Cape Cod as point sources of nitrogen, may be a significant regulatory shift but it should have little practical consequence for the nitrogen targets Mashpee and other towns are planning to meet.

Regardless of the threats or potential changes from the lawsuit, Dr. Howes said the sewer commission should forge ahead with its planning process. He said it will be difficult for a judge to tell a town with a plan in place to do something else.

Mr. Cahalane and Mr. Fudala both noted other potential upsides.

“I am looking at it as just another form of public education. Now people will know just how serious it is and how serious we have to take it,” Mr. Cahalane said. “It is not telling us anything we don’t know. It is not telling us anything we didn’t know we have to correct.”

Mr. Fudala: “It certainly brings the issue to the fore...I guess front page news in all the newspapers is free advertising in a way.”