Hidden in Judge’s Ruling on Cape Cod Water Pollution: A Slap to EPA’s Hand on the Clean Water Funding Spigot


Mismanagement has led to the current Cape Cod water pollution crisis.

A recent federal court decision in Conservation Law Foundation’s and Buzzards Bay Coalition’s lawsuit against EPA addressing nitrogen pollution in Cape Cod bays has major implications for the way local water pollution control projects are funded in the Commonwealth.

The impact of nutrient pollution on the streams and bays of Cape Cod was identified as a looming problem in the 1978 Areawide Wastewater Management Plan written by a predecessor to the Cape Cod Commission. Despite the Plan’s requirement of annual updates, it sat untouched for over thirty years as the looming threat of nutrient pollution became a present crisis. Spurred by a lawsuit filed by CLF and the Buzzards Bay Coalition in 2011, the 1978 Plan is finally being updated by the Cape Cod Commission.

The importance of the current planning process’s successful completion was thrown into stark relief on August 23, when Senior Judge Mark L. Wolf of the United States District Court of Massachusetts ordered that a central claim in CLF’s and BBC’s 2011 Areawide Wastewater Management Plan lawsuit could go forward.

The lawsuit contends that EPA’s annual approvals of loans and grants for local projects from the State Revolving Fund – a pool of federal and state funds dedicated to reducing water pollution—must be consistent with applicable Areawide Wastewater Management Plans. The claim states that it is not possible for EPA to make funding decisions based on the present Plan because its 35-year-old recommendations are no longer relevant to solving current water quality problems.

Judge Wolf’s order held that EPA must determine every year that Massachusetts is only providing water pollution control funding to those projects that are consistent with a current management plan for a particular area. Congress required this annual review in order to assure that water pollution control projects are planned, funded, and implemented based on an up-to-date understanding of local water pollution problems. The Judge’s ruling stemmed from the fact that the Cape Cod plan is so outdated that money is being spent haphazardly, rather than funding projects that will address the current problems.  The rampant and continuing pollution in Cape Cod’s bays is a result of this inconsistency.

Studies have indicated that the total cost of cleaning up the polluted bays will range from $3-6 billion.  In FY2012 alone, the State Revolving Fund provided $164.7 million for clean water projects in communities across the state, according the 2012 Annual Report prepared by the Commonwealth.

To get that money flowing to projects that will be effective in controlling Cape Cod water pollution, it is imperative that Areawide Plan be updated. As the Court opinion states, “If EPA determines that the state is not complying with the SRF provisions …, the agency must cease to provide SRF funding, unless the state rectifies its actions and complies with the statute.”  The real world implications of this order are clear and significant—the future of money for local governments disbursed under the State Revolving Fund program depends on an updated and approved Areawide Plan.

The Cape Cod Commission is currently in the process of gathering stakeholder input for the Plan update. If you’re a Cape resident, check out the meeting schedule, or sign up to participate in the next round of their online public engagement tool. This stakeholder process, scheduled to be complete this December, will form the basis of the Commission’s new draft Plan.



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