APCC Supports Proposed DEP Water Quality Improvement Regulations

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The Massachusetts Department of Environmental Protection has drafted proposed regulations that significantly strengthen the rules governing the use of septic systems and encourage and incentivize towns to obtain watershed management permits. Both sets of regulations are critical, time sensitive and warrant support. It has been evident for decades that septic systems, even legal ones compliant with state and local rules, are the source of, not the solution to, the deterioration of water quality in the Cape’s marine estuaries and bays. Updating the regulation of septic systems has been difficult, as the lack of public wastewater infrastructure in most Cape towns has perpetuated reliance on septic systems even when there was no such system that reduced nutrients sufficiently to meet the needs of our water resources. With the creation of new financing mechanisms over the last decade it is now possible for towns to afford to build the needed collection and treatment systems. At the same time, technological advances in septic technology allow their use in certain areas as a complement to core sewering in dense areas.

title-5-watershed-permit-apcc

Recognizing that the world of wastewater management has changed, DEP has proposed these two regulations (described more fully below) in tandem to provide a pathway to improving water quality on Cape Cod. While the changes to the septic rules are badly needed and are drawing the most attention, the watershed permit regulations are of equal, or greater, importance. APCC shares MassDEP’s perspective that it is most advantageous for each town on Cape Cod to obtain a watershed permit that memorializes a comprehensive, locally determined solution to improving water quality than to have every homeowner upgrade their septic system. While that homeowner-targeted requirement is the default, it can be nullified when and if the town seeks a watershed permit for its plan. The permit provides the towns with time to phase in their solutions and protects the individual homeowner from unnecessary expense. In exchange, the towns agree to a binding implementation schedule that ensures that water quality goals will be met. Achieving water quality standards in almost all cases on Cape Cod requires municipal involvement, and in that regard these regulations hit the nail on the head and should be supported.

The rules for septic systems have not been substantially updated in 28 years. If we miss this opportunity to insist that these regulations be approved right now, we may well wait another 28 years for the stars to line up for another set of regulations to be proposed. By then it will be too late. While these regulations may not be perfect, they are a strong step forward.

Overview of the Regulations

Title 5 Regulation Amendments (a.k.a. “Nitrogen Sensitive Area regulation”)

  • Creates a new Nitrogen Sensitive Areas (NSAs) designation for water bodies, which allows MassDEP to take action to protect more water bodies
  • When this regulation goes into effect, certain water bodies where nitrogen limits are already known to be exceeded will automatically be declared to be Nitrogen Sensitive Areas
  • For MassDEP to designate a new area a Nitrogen Sensitive Area, it must provide public notice, including the scientific and regulatory rationale for the designation, and include a 60-day comment period
  • Requires that all septic systems within a nitrogen-impaired area, i.e. NSA, be upgraded to include technology that eliminates or reduces the amount of nitrogen emitted
  • Applies to new construction and existing buildings
  • Upgrades must be made within 5 years of an NSA declaration unless a town acts to pursue and obtain a watershed permit
  • The only exception to the upgrade requirement is if the property is in a community that applies for and receives a watershed permit, as defined under the new watershed permit regulations (described below)
  • If a community submits a notice of intent within 18 months of an NSA designation, the 5 years to upgrade is paused for buildings in that community

Watershed Permit Regulations (these are new!)

  • Creates a new permit that is available to communities in Nitrogen Sensitive Areas
    – The Watershed Permit regulation allows communities to apply to receive a permit from MassDEP that will exempt the community from the Nitrogen Sensitive Area regulation’s 5-year upgrade requirement
  • If a community applies for a Watershed Permit within 18 months of being designated a Nitrogen Sensitive Area, then the Nitrogen Sensitive Area regulation’s 5-year upgrade requirement is paused until the permit is granted or denied
    – Watershed Permits are effective for 20 years
  • To receive a Watershed Permit, a community must create a plan (or update and adapt an existing plan) to meet the water quality standards in its area and prove to MassDEP that the plan will be effective
    – To be granted a Watershed Permit, communities must show MassDEP that their plans will achieve complete compliance with water quality standards within the life of the permit (20 years)
    – The only exception to the complete compliance requirement is if a community can show MassDEP evidence that it is not possible to achieve complete compliance and that its plan will achieve at least 75% compliance within 20 years
  • Most towns on Cape Cod have a Comprehensive or Targeted Watershed Management Plan (“CWMP” or “TWMP”), and this regulation aims to strengthen these plans to restore and protect water quality
    – If a watershed has an existing limit on nitrogen discharge to the waterbody, called a Total Maximum Daily Load (TMDL), then the plan must be designed to achieve compliance with that limit within the life of the Watershed Permit
  • What happens if someone lives in a Nitrogen Sensitive Area that doesn’t have or didn’t receive a Watershed Permit?
    – Any building in a Nitrogen Sensitive Area that does not have a Watershed Permit (or a permit application pending) must upgrade its septic system within 5 years, per the new amendments to Title 5 regulations, i.e., the Nitrogen Sensitive Area regulation

More information:

In response to requests made during the public hearings already held, the public comment period for the Massachusetts Department of Environmental Protection’s (MassDEP) draft amendments to the Title 5 regulations, 310 CMR 15.000, and the new, related Watershed Permit regulations at 314 CMR 21.00, has been extended until January 30, 2023. 

MassDEP has proposed these amendments and regulations to enhance protection of embayments and estuaries—particularly on Cape Cod, the Islands, the southern portion of the South Shore and the South Coast in Southeastern Massachusetts—from nitrogen pollution originating primarily from wastewater. The proposed amendments will allow MassDEP to designate new Natural Resource Area Nitrogen Sensitive Areas (NSA) and add nitrogen reduction provisions within these areas for Title 5 systems. The new Watershed Permit regulations at 314 CMR 21.00 provide a voluntary watershed permitting approach for communities to control nitrogen and other pollutants from entering the embayments and estuaries. 

The draft regulations are published on the MassDEP website at: https://www.mass.gov/info-details/massdep-public-hearings-comment-opportunities and at: 310 CMR 15.000: Septic Systems (“Title 5”) | Mass.gov and 314 CMR 21.00: Watershed Permit Regulations | Mass.gov 

Recordings of previously held information sessions and public hearings can also be found here: 310 CMR 15.000: Septic Systems (“Title 5”) | Mass.gov

Please submit your comments. It matters! The comment period ends Monday, January 30th at 5:00 p.m.