Everything is wrong with DEP’s Cape proposal

ON CAPE COD, 85 percent of homeowners rely on title 5 on-site septic disposal systems to treat their home’s wastewater. And right now, 100 percent of those homeowners are extremely concerned about a draft regulation rolled out by the state’s Department of Environmental Protection last month.

The state agency is proposing that owners of every title 5 system located within the watershed of a coastal estuary on Cape Cod, the Islands, and the South Coast dig up their yard and install an innovative/alternative nitrogen reducing (I/A) system within five years. Without installing an I/A, homeowners wouldn’t be able to add on to their homes, or even to sell them.

Just about everything is wrong with this DEP proposal.

First, it would cost too much. A current title 5 system, installed, costs around $15,000, and can climb as high as $50,000. Adding an i/a system changes that range from $30,000 to $60,000. No federal, state, or local subsidies are being offered to help homeowners, except loans.  I/A systems have substantial annual maintenance, testing, and reporting requirements, all expensive and all to be paid by the homeowner.

In Falmouth more than 15,000 homeowners would be impacted by this mandate. At $30,000 each, that adds up to over $450 million. And at a time when engineers, excavators, and plumbers are already scarce, the idea of mandating 15,000 I/A installations in five years is a clear impossibility.

Second, the DEP’s approved I/A systems won’t solve the problem. DEP has given general use approval to six I/A systems that are supposed to reduce nitrogen by 50 percent. But they don’t. A study of the most frequently installed I/A systems showed roughly 86 percent of them reduced nitrogen much less than projected. Even if the I/As did perform as they are supposed to, a 50 percent reduction would not remove enough nitrogen to meet the estuaries’  reduction targets.

Andrew Gottlieb, executive director of the Association to Protect Cape Cod, put it this way. “This would raise the cost to the individual homeowner to no particular environmental benefit,” he said.

Third, the DEP doesn’t really want to take this step. Requiring tens of thousands of Cape homeowners to install these systems is politically unacceptable, financially and logistically impossible, and environmentally inadequate. DEP’s worst nightmare would be if the agency actually had to implement this proposal.  Gottlieb puts it bluntly: “DEP actually doesn’t want the five-year, I/A requirement to go into effect.”

What DEP really wants is for the Cape towns to sign on to an alternative proposal dealing with watershed permits – binding commitments by the towns, enforceable by DEP, to spend hundreds of millions of dollars on implementing  a rigid 20-year timetable for the construction of sewer systems.

By “volunteering” for the watershed permit option, the towns avoid implementation of the five-year I/A option. But by doing so, to quote Gottlieb again, DEP is “trying to incentivize you as a municipality to voluntarily put your head in the noose.”  It is a too-clever subterfuge to avoid the Proposition 2 ½ “unfunded mandate” provision requiring any state mandate imposed on the towns to be paid for by the state.

In developing these options, DEP sought advice from a “stakeholders group” comprised of 12 DEP functionaries, four commercial real estate developer representatives, four engineering consultant firms, four representatives of environmental advocacy organizations,  the Cape Cod Chamber of Commerce, the Cape Cod Commission, and one elected Cape official.

Not one elected or appointed official from any of the towns that would bear the enormous cost of these proposals was at the table.

But behind this is a lawsuit filed against DEP by the Conservation Law Foundation, demanding exactly the measure DEP is now proposing. CLF’s proposal for this drastic mandate failed in federal court twice before, but  DEP apparently surrendered to CLF’s demands rather than contest them in court.

The faulty premise in all this is that our coastal communities won’t do what needs to be done to reduce nitrogen overload to their estuaries without being bludgeoned into it. Actually, most of the communities are taking action. In the past four years, the Cape towns alone have submitted over $185 million in nitrogen reduction projects to the state revolving fund, with many more in the pipeline.

Proposing a regulation that is politically unacceptable, financially impossible, and environmentally inadequate in the hope that it would never be implemented is a cynical subterfuge to get around the “unfunded mandates” law. It’s also wrong to surrender to an extreme environmentalist demand and use a draft environmental regulation as a club to force 30 coastal communities to address a problem many of them are already addressing.

This is an abuse of the regulatory process. DEP should be ashamed, and this ill-conceived regulation should be withdrawn.

Chris Michaud is director of public health in Dartmouth. Eric Turkington is a former state representative and chair of the Falmouth Water Quality Management Committee.