Lawsuit could disrupt real estate market in 2 Cape Cod towns

BOSTON — An impending lawsuit by an environmental advocacy organization could wreak havoc on the real estate market in the towns of Barnstable and Mashpee.

The Conservation Law Foundation has notified the Massachusetts Department of Environmental Protection and the towns of Barnstable and Mashpee of its intent to file a lawsuit to stop septic systems from pumping nitrogen and phosphorous pollution into local waterways.

The lawsuit will demand a temporary suspension of any new septic systems and a pause on passing inspections associated with the sale of properties in Barnstable and Mashpee.

Nitrogen and phosphorus pollution from the Cape’s septic and wastewater treatment systems fuels toxic algae outbreaks in bays and ponds that can sicken people and kill wildlife and pets. The outbreaks also force the closure of beaches and ponds, contributing to an adverse effect on tourism and the region’s economy.

“These three entities have utterly failed to protect Cape Cod’s waters,” said Christopher Kilian, vice president of strategic litigation at CLF. “We’ve known for years that septic systems across the Cape are dumping waste into the bays and ponds the region depends on for tourism. Until they get this problem under control, the installation of new systems and the inspection of properties that rely on septic inspections must be halted.”

Kilian said CLF wants the moratorium to remain in place until a comprehensive plan with near-term implementation targets is developed and executed.

CLF intends to sue under Massachusetts law.

“We are focused on the fact that Title 5 prohibits approval of new septic systems and does not allow a passing inspection for any septic system that would discharge effluent directly or indirectly into surface waters of the commonwealth,” Kilian said. “These towns have determined that septic systems in the watersheds of the bays on the Nantucket Sound side of Cape Cod do just that — discharge nitrogen effluent into the bays.”

Title 5 is the state regulation that governs the construction and maintenance of septic systems and the transport of septic system waste.

“Our view is that these (Title 5) systems on the Cape have failed,” Kilian said.

The lawsuit, according to Kilian, is also seeking an order requiring MassDEP to develop training materials and a standard policy for approving septic inspectors in regard to the nitrogen pollution issues affecting the Cape.

“We feel MassDEP has fallen down on the job of training inspectors when it comes to conditions in these watersheds,” he said.

Mashpee Town Manager Rodney Collins said the town has not received anything to date (from CLF), so he had no comment on the merits of the allegations.

“The town of Mashpee has an approved wastewater management plan and has taken concrete steps to implement it, including investments in shellfish propagation and sewer and treatment plant design,” Collins said. “We are committed to cleaning our waterways and will vigorously contest any assertions to the contrary.”

A request for comment from the town of Barnstable and MassDEP had not been returned as of late Wednesday.

“It only serves to distract our community from the constructive initiatives we as a community are working on that will actually clean up the Cape’s waterways,” said Ryan Castle, chief executive officer of the Cape Cod & Islands Association of Realtors, of the lawsuit. “This would only hurt homeowners and put attainable housing for year-round Cape Codders further out of reach.”

Castle says the proposed remedy of halting septic inspections and installations of new systems would not actually solve the problem, since it doesn’t make the waterways any cleaner and does not stop further polluting from those already living in the homes.

“Housing advocates and environmentalists are finally working in tandem to clean up our waterways and solve our region’s housing crisis,” Castle said. “It’s a shame a special interest group from off Cape Cod is trying to manufacture drama and stall progress on these key issues.”

Zenas Crocker, executive director of the Barnstable Clean Water Coalition, said he doesn't want the economy on Cape Cod to stop in its tracks, but wants it to move forward responsibly.

“We know where the problem comes from and for decades we have had an ostrich-like, head-in-the-sand approach to the problem,” he said. “Unfortunately, in my view we are poisoning the patient a little bit at a time and we are gradually killing the golden goose.”

Crocker says it's time for a “Title 6,” or new generation of innovative/alternative septic systems.

“We need to work aggressively on the alternatives that are right now in the process of being proven,” Crocker said. “We are close to having alternatives. The state should work with towns to invest in research and development to create systems to stop this pollution from taking place.”

State Sen. Julian Cyr, D-Truro, represents Barnstable and Mashpee.

“In recent years, I’ve been encouraged to see the steps that Cape Cod towns have taken to address the very serious environmental degradation of the region’s embayments,” Cyr said. “This work needs to continue, I’m proud the Legislature took action to establish The Cape Cod and Islands Water Protection Fund which provides stable revenue streams of state financing and support for sewer projects on Cape Cod that must be built. I’ll be watching this action closely and will have to say more to say in the coming days.”

CLF has been a longtime watchdog over water quality issues affecting Cape Cod.

A foundation lawsuit against the EPA in 2011 was the force behind the mandated creation of the Cape’s Section 208 regional water quality management plan, a coordinated effort between the Cape’s 15 towns to curb the amount of nitrogen pollution entering the region’s waterways.

Last month, the foundation announced its intent to sue the town of Barnstable and Willowbend Country Club in Mashpee in federal court for violating the federal Clean Water Act by discharging and adding pollutants into Lewis Bay and Popponesset Bay. The lawsuits are expected to be filed in the coming weeks, according to a CLF spokesman.

The foundation filed similar notices of intent against Wequassett Resort and Golf Club and Wychmere Beach Club, both in Harwich, in 2018. The Wequassett case was settled without a lawsuit. A proposed settlement is pending with Wychmere.

Under Massachusetts law, CLF is required to give 21 days notice of its intent to sue.

“We’re always open to dialogue,” said Kilian. “Never say never.”

Follow Geoff Spillane on Twitter: @GSpillaneCCT.