(BOSTON) — Conservation Law Foundation (CLF) and the US Environmental Protection Agency (EPA) filed a Settlement Agreement today, which provides stricter monitoring of the Areawide Water Quality Plan, a major wastewater management plan for the peninsula. If approved by the court, the proposed settlement provides the legal framework for resolving CLF’s two Clean Water Act lawsuits against the EPA for failing to take actions to reduce harmful nitrogen pollution on Cape Cod. The lawsuits were intended to spur EPA to implement its obligations to review, update and enforce a working and time-bound plan to stop the flow of nutrient wastewater and stormwater into the Cape’s bays.
“Nitrogen pollution is driving the Cape to the brink of ecological disaster and how we enforce wastewater management is critical to restoring the Cape’s water to health,” said Christopher Killian, Vice President of CLF’s Clean Water and Healthy Forests Program. “It is clear that without an adequate update of the Areawide Water Quality Plan, any attempt to clean up the bays will remain mired in inaction. CLF is heartened that our advocacy has led to the ongoing Areawide Plan update process, which will ensure a judge is watching, stakeholders are following, and we are able to move forward in cleaning up the Cape.”
The Clean Water Act intends Areawide Plans to facilitate region-wide solutions to water quality management problems that could not be solved at the local level and requires regular updates of the Plans. The current Areawide Plan for Cape Cod was developed in 1978 and not touched for the next thirty-five years, despite the fact that it predicted the current nutrient pollution crisis from septic system discharge. CLF’s 2011 lawsuit alleging that EPA violated its mandatory duty to require updates to the Areawide Plan stimulated a $3.35 million State and Federal investment in updating the Areawide Plan.
Under the Settlement Agreement, the suits will only be dismissed if EPA legally approves an update to the Cape’s Clean Water Act Section 208 Areawide Wastewater Management Plan (Areawide Plan) by September 2015.l
Under the proposed settlement, EPA commits to notify the Cape Cod Commission and the Massachusetts Department of Environmental Protection of the legal requirements for an Areawide Plan update, particularly the requirement for the Plan update to designate a waste management agency or agencies with the power to incur debt, raise revenue, and spend money in order to carry out the Plan. EPA also commits to assess the actions taken by the management agencies over the first six years of the updated Plan implementation and notify the agencies and the Commonwealth of the need for further action or further updates to the Plan.
Background on the Problem and the Areawide Plan Update
The saltwater bays and freshwater streams and ponds of Cape Cod are in the midst of a well-documented water quality crisis caused by excess nitrogen, which quickly moves from the Cape’s septic systems through its uniquely porous soil to water bodies. Algae and bacteria proliferate by feeding on the nitrogen, choking the waterways with green and brown sludge and killing other aquatic life.
CLF’s 2011 lawsuit also alleged that EPA had been unlawfully approving state expenditures of federal funding for water pollution-related projects on the Cape in the absence of an updated Areawide Plan. While money from the federal program was available to the Cape’s towns, the nutrient pollution crisis was only getting worse. It was clear that town-level action was not capable of solving the Cape’s nutrient problem.
CLF’s suit prompted the Commonwealth in 2013 to grant the Cape Cod Commission $3.35 million in funds from that federal program to update the Areawide Plan. CLF’s Areawide Plan suit was stayed by the court in early 2014 based on sworn commitments to executing a successful Areawide Plan update from the Executive Director of the Cape Cod Commission, the Commissioner of the Massachusetts Department of Environmental Protection, and the head of EPA Region 1’s Director of the Office of Ecosystem Protection. The proposed settlement would resolve the stayed Areawide Plan lawsuit as well as CLF’s re-filed lawsuit challenging EPA’s approval of state documents assigning sources of pollution to point and non-point categories on the Cape (TMDLs).
The Clean Water Act requires the new Areawide Plan to include regulatory programs strong enough to actually achieve implementation of the pollution controls required to solve the Cape’s pollution crisis, identification of sufficient funding to build needed facilities, and designation of the agencies that will implement its provisions.
The Cape Cod Commission’s Areawide Plan update process is coming to a head, with public comments closing on November 20th and a final draft expected to be sent to the Governor for state certification in January. After this, the certified Plan update will be sent to EPA Region 1 for review. The proposed settlement should put the Cape on notice that the court is watching the update process and expects to see results consistent with the requirements of the Clean Water Act.