Conservation Law Foundation and Buzzards Bay Coalition Press EPA for Action on Cape Cod Clean-up with Second Lawsuit

Samantha Caravello

CONTACT:
Karen Wood, CLF, (617) 850-1722, kwood@clf.org
Rob Hancock, Bay Coalition, 508-999-6363, x222, hancock@savebuzzardsbay.org

BOSTON, MA  September 19, 2011 – Pressing forward with their effort to effect decisive action on the clean-up of Cape Cod’s severely polluted bays, Conservation Law Foundation (CLF) and Buzzards Bay Coalition (the Bay Coalition) today filed a federal Clean Water Act (CWA) lawsuit holding the Environmental Protection Agency (EPA) accountable for failure to fulfill its obligation to oversee an Areawide Water Quality Management Plan (Areawide Plan) for Cape Cod that, if implemented, might have averted the Cape’s nitrogen pollution crisis, or addressed it earlier and at much lower cost. The lawsuit states that EPA’s failure to annually approve and require needed updates to the plan allowed nitrogen pollution to continue unabated, resulting in the serious degradation of water quality on Cape Cod. The lawsuit also states that EPA’s failure to abide by the planning process resulted in millions of taxpayer dollars being expended on projects in a manner that cannot be determined to be consistent with the Clean Water Act and that have failed to adequately address the nitrogen problem Cape-wide. The plaintiffs filed a 60-day notice of intent to sue in August 2010.

Under the Clean Water Act, the Section 208 planning program is intended to identify the water quality management problems of a region and to develop cost-effective and environmentally sound approaches to deal with those problems on an area-wide basis. The Areawide Plan for Cape Cod was developed in 1978 and has not been updated since. The plan predicted that nitrogen pollution from septic systems would cause an ecological crisis on of Cape Cod, if the problem was not adequately managed.

Christopher Kilian, vice president and director of CLF’s Clean Water and Healthy Forests Program, stated, “Cape Cod is on brink of ecological disaster. We need enforceable regulatory commitments to ensure that the clean-up happens before it is too late. The discussions of what solutions will work and how to pay for them are critical and must continue, but they can’t go on forever. We intend to hold EPA accountable for its obligations to review, update and enforce a working, time-bound plan to stop the flow of nitrogen-laden wastewater and stormwater into the Cape’s bays. It is the keystone of this clean-up effort.”

The lawsuit, filed today in U.S. District Court of Massachusetts, seeks to establish a binding schedule for EPA to take the legally-required and necessary steps to control nitrogen pollution and clean up Cape Cod’s bays. This includes ordering EPA to require submission of an updated and certified Areawide Plan within one year of the Court’s Order, including a fully enforceable program to regulate both point and nonpoint sources of nitrogen. In addition, the lawsuit calls into question funding for water pollution activities through the Commonwealth’s State Revolving Fund, citing EPA’s lax oversight of the fund. EPA allowed the state to award funds without an updated, approved 208 Plan in place.

Mark Rasmussen, president of the Buzzards Bay Coalition, said, “In the absence of a legally enforceable, coordinated blueprint to clean up the Cape, the clean-up effort is subject to arbitrary decision-making, haphazard and expensive solutions that may or may not solve the problem, and endless delays. EPA must be held accountable to the citizens of the Cape and everyone who uses the Cape’s waters to ensure they are clean and safe. Our very way of life on Cape Cod depends on it.”

Background on CLF and Bay Coalition’s Efforts to Clean Up Cape Cod’s Bays

In August 2010, Conservation Law Foundation and the Buzzards Bay Coalition took action to expedite a much-needed clean up of Cape Cod’s coastal waters by holding federal and county authorities accountable for reducing nitrogen pollution, a present and growing threat to the fragile bays and estuaries that support the Cape’s economy. In a lawsuit filed on August 24, 2010, CLF and the Bay Coalition said that EPA had attempted to sidestep its legal requirements under the federal Clean Water Act by misallocating pollution in pollution budgets, termed Total Maximum Daily Loads, for the discharge of nitrogen into 68 waterways on Cape Cod.

The complaint focuses on the sources of nitrogen pollution and how those sources are defined and regulated. Currently, discharges from septic systems, stormwater drainage and wastewater treatment facilities through groundwater account for the majority of controllable nitrogen inputs into the bays on the Cape. These discharges are not subject to the stringent controls required under EPA’s permitting program for direct, or “point” sources. In the August, 2010 complaint, CLF and the Bay Coalition argued that the EPA violated both the Clean Water Act and the Administrative Procedure Act when it approved 13 nitrogen pollution budgets across the Cape that did not identify these sources as point sources, and therefore did not seek to reduce their contribution to nitrogen pollution, as required by law.

The parties will commence a mediation process known as Alternative Dispute Resolution on Wednesday, September 21 at EPA’s offices in Boston. The deadline for a resolution is December 6, 2011.

Unique Geology

On Cape Cod, nitrogen pollution is caused primarily by untreated or insufficiently treated human wastewater from septic systems, stormwater systems and wastewater treatment plants flowing through groundwater into the coastal waters.

Septic systems can be an effective method of wastewater treatment that protects waterways from pollution while replenishing groundwater supplies. However, on the Cape, wastewater from septic systems moves through the coarse, sandy soils very quickly into the imperiled bays. As a result, wastewater, still laden with the pollutant nitrogen, flows into the Cape’s high groundwater table and travels untreated into bays and estuaries.

Excess nitrogen acts like a fertilizer, causing massive algae blooms that choke off oxygen and threaten animal and plant species. Excessive algae growth can render the Cape’s bays unsafe for swimming, boating and shellfish consumption, and can also cause widespread fish kills, such as the one in Orleans, MA in November 2008.

Conservation Law Foundation (CLF) protects New England’s environment for the benefit of all people. Using the law, science and the market, CLF creates solutions that preserve natural resources, build healthy communities, and sustain a vibrant economy region-wide.  Founded in 1966, CLF is a nonprofit, member-supported organization with offices in Maine, Massachusetts, New Hampshire, Rhode Island and Vermont.

The Buzzards Bay Coalition (www.savebuzzardsbay.org) is a private, non-profit membership organization dedicated to the protection, restoration, and sustainable use of Buzzards Bay and its watershed. The organization works to improve the health of the Bay ecosystem for all through education, conservation, research and advocacy and is supported by more than 8,000 members.

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