Most outgoing governors try to wrap up loose ends and go on one form or another of a victory lap celebrating achievements of their administrations. Very few, in my experience anyway, launch major rulemaking initiatives taking on complex and expensive issues that could easily be left as ticking time bombs for the next Ggvernor to tackle. Giving credit where credit is due, kudos to Governor Baker and his environmental leadership team, Secretary of Energy and Environmental Affairs Beth Card, Deputy Secretary Gary Moran, Department of Environmental Protection Commissioner Martin Suuberg and numerous DEP career professionals for issuing thoughtful, progressive and much needed proposed revisions to the regulations governing septic systems.
Septic systems are regulated by Title 5 and the current rules are grossly inadequate to protect the waters of Cape Cod. In fact, the current code makes legal the pollution and ruination of the Cape’s surface waters by allowing the excessive nutrient loading that we know is the root cause of decades of water quality decline. Septic systems, as the primary means of human waste disposal on Cape Cod, are an abject failure. We have known this to be true for a long time and yet Title 5 allows more and more nutrient loading with every system installed or replaced.
Considering all the evidence that Title 5 is the cause, not the cure, to environmental harm, one might logically ask why these rules still exist. The answer is simple: Changing the rules that govern what people do to their house and yards, often a great expense, is hard and politically fraught. I was at DEP in 1994, 28 long years ago, the last time Title 5 was meaningfully revised, and I had a front row seat to the ugly politics and personal attacks endured by the staff working on the issue. Even by today’s exaggerated standards for what is seen as allowable political discourse, it was rough. The result of the compromises needed to finalize those regulations is the fundamentally flawed Title 5 we have now.
Sensing that the Cape has now both a political consensus on the need to move away from sole reliance on septic systems and the existence of new financing tools created over the last decade, the Baker Administration has realized that the time to act is now. The new rules propose scrapping the existing code as it relates to nitrogen-sensitive areas and replaces it with a dynamic new system that recognizes primary responsibility for improving water quality rests with municipalities and incentivizes them to act. Municipal action, through the pursuit of a watershed permit, will shield homeowners from bearing the burden individually of upgrading septic systems. This is as it should be, and DEP and the Baker administration deserve credit for doing what is needed to reverse the decline of Cape Cod waters.
You will be hearing a lot from us on the details of this rulemaking process in the next few weeks. We intend to make it easy for you to participate in the comment process and to voice your support for these much needed, and long overdue, rule changes. It is not often that the regulatory rulemaking process, let alone one dealing with human waste, is seen as an exciting opportunity. But if you live long enough, you will indeed see it all.
