Saving Cape Cod's Waters | Conservation Law Foundation

Saving Cape Cod’s Waters

CLF is fighting to clean up the Cape’s ailing waters before nitrogen pollution pushes them past the point of no return.

Laurie O'Reilly | @LaurieOReilly Conservation Matters Summer 2018

Imagine the kind of summer day we New Englanders wait for all year – a light breeze, an azure sky, temps in the low 80s, and, best of all, low humidity. Coolers are stuffed with snacks and sandwiches, beach chairs stacked in trunks, and kids corralled into waiting cars for the traffic-jammed ride to their favorite Cape Cod beach, where the water has warmed just enough to entice even the least hardy among us.

Such a day is the stuff of cherished summer memories and Cape Cod tourism brochures. But there’s an ugly catch to this idyllic scene: The Cape’s saltwater bays are in crisis, their water quality degraded severely by excess nitrogen from wastewater. The region’s septic systems – which serve 85 percent of households – aren’t designed to eliminate nitrogen, which moves through the Cape’s uniquely porous soil and seeps into local waters.

“Nitrogen acts like a fertilizer, causing massive algae outbreaks, including blue-green algae, that float on the water’s surface,” says Christopher Kilian, CLF Director of Strategic Litigation. The outbreaks can sicken people, plants, and animals and make the Cape’s bay beaches and freshwater ponds unsafe for swimming, boating, and shellfishing. Beach closures due to algae outbreaks and high bacteria levels have become an all-too-frequent in recent years, while local swimming holes long beloved by year-round and summer residents alike are today often off-limits to their children and grandchildren.

Nitrogen pollution on the Cape is hardly a secret, says Kilian. Scientific reports show it has been getting worse year after year for decades now. The solution is also well known: Fix the region’s septic and wastewater treatment systems, and do it now.

The consequences of inaction are pretty well accepted, too: Beyond the devastating impacts to plants, fish, and wildlife, the growing “brown-slime” economy (a term coined by the region’s chamber of commerce) could overpower the Cape’s tourism economy and the millions of dollars it pumps into the region every year. After all, it’s New England, and beach lovers could easily choose to visit one of the region’s other coastal areas where the waters are clean. If the tourists go, so do the summer jobs, retail and restaurant sales, rentals, and all the ancillary businesses that depend on them – along with housing values in both the seasonal and year-round markets.

But there is good news. Thanks to a lawsuit filed by CLF against the Environmental Protection Agency (EPA), in 2015 the Cape Cod Commission updated a 30-year-old Areawide Wastewater Management Plan – called a Section 208 plan for the statute in the federal Clean Water Act that mandates it [see sidebar, below]. The updated plan outlines the legally required actions the Cape’s 15 towns must take to literally clean up their act.

Three years later, however, progress on implementing the plan has been “slow and fragmented,” says Kilian. “Some towns are making progress, and they deserve credit, but mostly what we’re seeing are fits and starts – incremental progress here and then a setback there. There’s nothing comprehensive or aggressive happening right now.”

Andrew Gottlieb, Executive Director of the Association to Preserve Cape Cod, agrees it has taken some time for many residents to understand the scope and urgency of the problem. “If you go out on these waters on a sunny, blue-sky day, everything looks good,” he says. “Because much of the problem lies below the water’s surface, it’s typically unseen by those who aren’t on or in the water on a regular basis.”

The aha moment, Gottlieb says, “comes when we have a day of cloudy weather, a fish kill, or a floating algae mass that literally brings the problem to the surface.”

He points to CLF’s litigation and the resulting publicity around the updated Areawide Wastewater Management Plan as helping to drive awareness among residents. “They’re recognizing that there’s a responsibility to take action here, and that it’s not at the towns’ discretion to just endlessly put it off.”

Gottlieb can point to half a dozen towns making important strides and thinking creatively about how to fix the problem in their community. “I can also point to a suite of communities that are spinning their wheels,” he says. A major sticking point for all is the price tag for addressing the issue.

That price tag is significant – up to $8 billion by some estimates. “We’re talking on the scale of a Boston Harbor cleanup in terms of cost,” says Gottlieb. “But we have to spread that across 250,000 people while Boston Harbor was spread across 2.5 million. That has dampened a lot of the early municipal actions.”

Like Boston Harbor, the Cape’s pollution problem didn’t get to this dire stage overnight, and “it’s not going to get cleaned up overnight,” says Gottlieb. After all, Boston’s Deer Island wastewater treatment plant wasn’t fully operational until 27 years after CLF filed the landmark lawsuit that sparked the Harbor cleanup.

But everyone recognizes that the Cape does not have 30 more years to solve its septic problem. Too much is at stake. “This is threatening the entire Cape economy – not to mention the natural resources that make the Cape a place where people want to live and visit,”
says Kilian.

This is a collective problem that crosses town lines. It needs to be solved through collective action.

The way forward, say Gottlieb and Kilian, is for towns to work together to develop solutions and spread out the costs. “This is a collective problem that crosses town lines, and it needs to be solved through collective and regional action,” says Kilian. “Individual action will result in inconsistent programs and standards, economic inefficiency, and continued delays.”

Kilian also cites the need for state-level action to help alleviate the cost burden to towns. Wastewater treatment plants and septic systems are all subject to state laws that dictate the amount of nitrogen pollution they can emit. The Massachusetts Department of Environmental Protection (DEP) is charged with permitting treatment plants, but they have done little to enforce or update those permits to reflect the current reality facing the Cape’s waters.

“It’s DEP’s job to help towns figure this out,” Kilian says in frustration. “What else do they exist for if not to protect the environment?”

With state as well federal players absent, active residents, town officials, and organizations like Gottlieb’s Association to Preserve Cape Cod are working town by town to spur action on the ground.

Mashpee, Sandwich, and Barnstable, for example, have signed an agreement to work together to curb nitrogen pollution in Popponesset Bay – creating a potential model for cross-community cooperation. Orleans voters have funded the installation of new sewer lines for its core commercial district. Other towns have also moved to fund upgrades to treatment plants, collection systems, or sewers.

Meanwhile, a bill currently under consideration in the state legislature would create a new tax on short-term rentals on the Cape and Islands. The revenue generated would go into a fund to help offset the high cost of the critical infrastructure upgrades that are needed.

Concerned by the generally slow pace of action at the town level, CLF, too, has been exploring options, including taking a closer look at some of the region’s biggest polluters – its tourist resorts.

Pleasant Bay and Wychmere Harbor [below] are being put at risk by the failure of two popular Cape Cod resorts to curb their nitrogen pollution through improved wastewater treatment systems.

In June, the organization announced its intention to sue Wequassett Resort and Golf Club and Wychmere Beach Club over their individual nitrogen pollution. Both located in Harwich, these well-known resorts’ on-site wastewater treatment systems are no more effective at stopping pollution than the average homeowner’s septic tank. The leaching pits that collect the resorts’ waste let too much nitrogen escape into nearby bays, threatening the very tourism economy on which these businesses are built.

The Wequassett and Wychmere have an opportunity to set an example for other corporate polluters on the Cape. “There is no regulatory safe harbor for these businesses just because a town itself hasn’t yet moved forward with action,” says Kilian. “These resorts are subject to clean water laws, and, as major drivers of nitrogen pollution in the town, we want to incentivize them to proactively become part of the solution.”

The summer tourism season currently underway serves as a reminder of both the issue’s urgency and the fragility of an economy based on clean, healthy waters. The tourists and summer people on whom nearly 50 percent of the Cape’s annual economy relies place a tremendous strain on the region’s already-failing waste treatment systems. Many more people means much more nitrogen leaking into bays and streams. That, in turn, leads to more beach closures and smelly, harmful algae outbreaks.

“It’s a destructive cycle that must stop,” says Kilian. “We can’t allow the Cape’s waters to degrade any further.” Because no one benefits if those glorious blue-sky days spent playing and swimming on the Cape’s white sand beaches disappear, revived only as nostalgic stories told on the coldest winter nights.


Breathing New Life into an Old Statute

You’re not alone if you’ve never heard of a Section 208 plan. It’s one of many overlapping provisions in the 1972 Clean Water Act. For  years, Section 208 plans were the primary mechanism by which EPA addressed water quality issues broadly. Then, in the mid-1980s, Congress defunded EPA’s ability to enforce Section 208, leaving hundreds of completed plans to gather dust across the country.

When CLF’s Kilian began exploring legal options for cleaning up the Cape’s waters,  he found that the region had approved a Section 208 plan back in 1977. That plan was still in effect legally, though it was hopelessly out of date for addressing the region’s current nitrogen pollution issues.

Kilian realized that the Clean Water Act required that federal and state monies intended to address water quality issues on the Cape could be spent only on initiatives specified in the existing Section 208 plan. But because the plan was so out of date, Kilian and CLF argued in court, any action EPA took today to manage water quality on the Cape was essentially violating the law.

The goal, says Kilian, was to force an update of the plan to address the region’s nitrogen pollution. That would then create legal accountability for meaningful action moving forward. The judge agreed, ordering that the Cape’s Section 208 plan be updated in 2014.

Today, the precedent set by CLF is being used by advocates across the country to revive Section 208 plans and force long-delayed action on water pollution in other communities.

Focus Areas

Clean Air & Water