Septic-tank rules cloud the real estate market in Orleans

ORLEANS—Twenty years ago, Augusta McKusick could step outside of her home on Ares Pond in Orleans and dig up as many clams as she liked. But no more. “They’re not there now,” she says. “They’re gone. The eelgrass is gone. In the summer there are big mats of scummy green algae floating in the pond.” Orleans, like most Cape Cod towns, is struggling to find ways to arrest and, ultimately, reverse the degradation of its coastal waterways. But when health board members tried to convey the seriousness of the situation to homeowners, they learned that short-term economic considerations often win out over long-term environmental protection.

Although the primary issue is ecological health, cleaning up waterways is also a matter of economic survival. The Cape’s economy, dependent on tourism and second-homeowners, is inexorably tied to its environment.

“We are a water-based economy,” says McKusick, a member of the Orleans Board of Health. Ares Pond is part of the 9,000-acre Pleasant Bay Estuary, a state-designated “area of critical environmental concern” that’s popular with boaters; it’s also important as a fish and shellfish spawning area. “If that goes,” McKusick says of Pleasant Bay, “the economy goes.”

Orleans Quick Facts

Incorporated: 1797
Population: 6,652
Town Meeting: Open


  • Orleans covers 13.94 square miles and is 88 miles from Boston. It’s bordered on the south and west by Brewster and on the north by Eastham.
  • On the eastern edge of town is the Pleasant Bay Estuary, a 9,000-acre state-designated “area of critical environmental concern” shared with Harwich, Brewster, and Chatham.
  • There are 5,160 homes in Orleans with a median assessed value of $475,000 and an average sale price of $640,000. Orleans has 23 real estate companies and more than 500 brokers and real estate agents registered with the state.

For several years now, Cape officials have been working feverishly to develop long-term wastewater treatment plans as well as short-term regulations that deal with the chief cause of water degradation: nitrogen. Excess nitrogen in drinking water can cause health problems for infants (“blue baby syndrome”), the elderly, and those with weakened immune systems. And even small amounts of nitrogen can be devastating for marine life. It can cause excessive algae growth, choke off oxygen, kill eelgrass, and degrade fragile habitats such as fish-spawning grounds and shellfish beds.

Some 90 percent of the nitrogen build-up comes from septic systems, with the rest from fertilizers or natural sources. Virtually all of the Cape’s wastewater is disposed of through on-site septic systems, which do little to reduce harmful levels of nitrogen. For years now, that nitrogen has been spreading inexorably toward the ocean, where it can become trapped in poorly flushed bays and inlets. The problem began to reach a critical level in the 1990s, as the nitrogen from three decades of development began reaching estuaries.

Cape towns face massive expenditures to get the problem under control. In Chatham, a figure of $30 million to expand and upgrade the town’s 1970s-era sewage treatment system has been floated. Orleans, with a year-round population of 6,652 that swells to 22,000 in the summer, currently has no municipal sewer system. But officials know that in the most impaired watersheds, homeowners will need to abandon on-site septic systems in favor of municipal sewers or small neighborhood treatment facilities.

The town is in the process of developing a comprehensive wastewater plan that could take two years. In the meantime, the Orleans health board found itself with two choices for regulating sewage disposal in areas of town where traditional septic systems were not up to task. According to Orleans health agent Robert Canning, the town could employ traditional land use controls, perhaps increasing the minimum-square-footage requirements triggered by each additional bedroom (nitrogen levels are computed based on the number of bedrooms in a dwelling); or mandate that all new and upgraded septic systems incorporate nitrogen-removing technology. Innovative alternative systems, as they are called under the state’s septic-system regulations, cost $5,000 to $10,000 more than a traditional system. They also require regular monitoring and maintenance, and since they require a consistent volume of wastewater to be effective, they generally don’t work well in seasonal homes. But Orleans officials also knew that the comprehensive plan could trump whatever interim standards they set.

“[The board of health] didn’t want to be premature, but we were uncomfortable issuing permits and not notifying people that something else may be down the road,” says Canning, noting that a property owner might install an expensive, cutting-edge system only to have to abandon it if required to do so under the eventual wastewater plan. After extensive discussions at public meetings, the board chose a third option. To ensure that homeowners knew about the pending wastewater plan, permits for new or upgraded septic systems would require a deed rider. Enacted through a covenant signed by the property owner, the rider stipulated that the owner must bring the septic system into full compliance with the town’s wastewater management plan within 24 months of notification by the town.

The regulation, which went into effect February 23, caused an uproar, but not at first. Only 180 permits for new or upgraded septic systems were issued last year, so the regulation didn’t immediately affect many of the town’s 5,160 single-family homes. And, with the real estate and construction industries enjoying boom times, it took more than a month for new homebuyers to realize they were being asked to commit to an unknown expense that could be imposed at any time. When they caught on, the effluent hit the fan.

“I heard from the real estate market and the mortgage originators,” says Kyle Hinkle, executive director of the Orleans Chamber of Commerce. “There were people who were backstepping on their plans and thinking of not going through with purchases.”

“We did lose a sale,” says James Trainor, a real estate agent with the Orleans office of Kinlin Grover Real Estate. The property was a condominium, and the covenant would have committed all of the owners to an unknown future cost, he says. “The seller didn’t want to put his neighbors in that position.”

Although approved by the town attorney, the regulation took local officials by surprise. “None of the selectmen were aware of the covenant,” says Margie Fulcher, chairman of the board of selectmen, who suddenly found her ear bent by more than a few constituents angry at the health board’s new requirement. “I was extremely upset.” Before April was over, the regulation was suspended.

The Orleans sewage issue has been percolating for some time. In 2000, the town’s wastewater management steering committee began laying the foundation for a townwide solution to the nitrogen problem. Like 39 other communities in southeastern Massachusetts, Orleans is working with the state’s Estuaries Project, a collaboration between the Department of Environmental Protection and the School of Marine Science and Technology at the University of Massachusetts­Dartmouth. The program aims to help communities determine the level of nutrients flowing into 89 estuaries across the region. The studies will result in a set of numbers known as total maximum daily loads —a federal Environmental Protection Agency-imposed limit on the amount of nitrogen and other nutrients that a watershed can contribute to an estuary before the water quality begins to degrade.

Orleans has been promised those figures next June, says McKusick. Only then can the town look at solutions. The final implementation plan must then be approved by the state DEP and endorsed and funded by town meeting. Orleans has spent about $375,000 on the study to date —only a fraction of the more than $1 million spent on a wastewater study by its neighbor Chatham, which is two years further along in the process.

Because the requirements will be watershed-specific, a homeowner might be forced to upgrade an existing septic system, connect to a town sewer—or do nothing, if he or she is lucky enough to live in an area that doesn’t have high nitrogen levels. But there is no way of knowing before the studies are complete and a plan is put into place. The deed rider was intended to ensure that new owners know about their obligation to comply with the pending wastewater plan, says McKusick.

But the public process the board of health went through turned out not to be public enough. Despite three public hearings and a legal notice published in the local newspaper, “the message never got out in a clear and rational fashion,” McKusick concedes. On April 1, the Cape Cod Times printed a front-page story on the growing outrage in the real estate and development community. By that time, the regulation had been in effect for more than a month; 25 covenants had been approved and signed, but only one recorded at the registry of deeds, according to Canning.

Opponents of the regulation acknowledge they were caught napping, but they also fault the board for pulling a fast one. “Communications is the issue,” says the Chamber of Commerce’s Hinkle. “They knew it wasn’t going to be well-received, so they just snuck it under the rug.”

“When you have something of this magnitude, you can’t rely on a two-inch legal ad,” says selectman Fulcher, who says she agrees with the goal of the regulation. “This is too big of an issue.”

Down the road in Chatham, a similar, though less forceful, covenant provision has been in place for several years. Unlike the Orleans regulation, the Chatham covenant applies only to upgraded septic systems that need a variance from the board of health, but, like Orleans, it requires homeowners to comply with the town’s comprehensive wastewater management plan, whatever it recommends for the particular neighborhood, says Dr. Robert Duncanson, Chatham’s director of health and the environment.

“Based on my experience, I think the development community understands the reason for it,” says Duncanson. “I don’t want to say it was completely accepted, but we hear very little argument over it.”

The rules in Chatham inadvertently led to increased home development.

The Chatham board of health has worked to reduce nitrogen levels for nearly a decade, contemplating everything from a moratorium on new construction to drastic increases in lot size. But as the board tightened regulations—by, for example, limiting the number of bedrooms allowed in new homes—the effect was the opposite of what officials hoped to achieve. Development actually increased.

“When they talked about a moratorium, a lot of people were coming in expressly saying they wanted to take out permits before [the regulations] changed,” says Kevin McDonald, Chatham’s director of community development and building commissioner. Land surveyor Terry Eldredge had a client who had no plans to develop an 11-lot subdivision in South Chatham, but upon hearing the board might limit the number of bedrooms allowed on parcels, the owner decided to get septic permits and put the lots on the market.

“They were gone in six months,” says Eldredge. The board’s actions “certainly accelerated development, just the opposite of what they wanted to achieve. People were afraid they were going to lose whatever value they had in their property.”

One of the problems with approaches taken in Chatham and Orleans is that they target new construction and home expansion, while the majority of the nitrogen flowing into estuaries comes from existing homes. “The impact of a new system is miniscule,” says Chatham land use attorney William Riley. “The board of health is trying to do this one house at a time, when this is a problem that should be dealt with by the body politic. The town as a whole should be dealing with it.”

Some believe even that isn’t good enough; wastewater should be dealt with on a countywide level. Last year, the Cape Cod Business Roundtable, a group of 28 business and civic leaders, recommended a regional approach to wastewater infrastructure. The group concluded that because the problem was so significant and reached across municipal boundaries, cooperation was the only way the Cape’s 15 towns could make meaningful progress. But some towns, especially those with wastewater plans underway, are balking at the regional idea.

“The better a job the town is doing, the more they saw this as a threat to their sovereignty,” says Elliot Carr, president of the Cape Cod Five Cents Savings Bank and the roundtable’s moderator.

To explore the concept further, the Barnstable County Assembly of Delegates—a county legislative body that is unique in the state—named a blue-ribbon panel to study the idea of attacking the problem regionally. Meanwhile, the Barnstable County Commissioners established a wastewater implementation committee (WIC) as a regional forum where towns could share wastewater information and coordinate treatment approaches. Working with grants from the Executive Office of Environmental Affairs and the county, the WIC and the Cape Cod Commission, the county’s land-use regulatory agency, hired engineers Wright-Pierce to do four case studies. The results will demonstrate the application of different wastewater management tools that towns could adopt while waiting to implement wastewater plans. That report, entitled No Free Flush and scheduled for release in late June, was expected to recommend that towns adopt regulations like those in Chatham and Orleans to warn residents who are upgrading or installing new septic systems that more may be required of them in the future.

“It’s really intended to help people make sensible investments now about wastewater infrastructure,” says Margo Fenn, executive director of the Cape Cod Commission. “Because, absent that, they could invest a lot of money and be required later, when a wastewater plan is adopted, to make further improvements that will cost them even more money.” Orleans was right on track, she adds. “I think people overreacted.”

Nonetheless, on April 20, the Orleans health board suspended enforcement of the deed rider regulation. Although it remains on the books, for the time being those getting new septic system permits don’t have to record a deed rider at the registry of deeds. Instead, they’ll be asked to sign a disclosure form confirming they’ve been told about the pending wastewater management plan.

Real estate agent Trainor thinks the health board did the right thing in response to the outcry. But he doesn’t think that, in the long run, the threat of future septic upgrades will do much to dampen what remains a hot real estate market. Carr, president of one of the Cape’s largest residential mortgage lenders, agrees. “Bankers are much more concerned with long-range value,” he says. “Anything that improves the wastewater system removes one of the bigger clouds over the future value of some properties.”

But in Orleans, future board of health meetings are likely to be better attended. “I think we all should pay closer attention” to the regulatory process, Trainor admits.

“It was a big learning curve” for both the public and town officials, Fulcher says of the episode. And the education isn’t over yet. With tourists flocking to Pleasant Bay and the town’s other beaches and waterways, the health board is determined to protect the town’s coastal environment and plans to revisit the regulation this summer.

Meet the Author
“It’s taken us a long time to get here,” says health agent McKusick. “We’re not going to turn it around overnight.”

Timothy J. Wood is editor of The Cape Cod Chronicle, a weekly based in Chatham.