How to Restore Our Coastal Ponds and Estuaries:
In 1995, Massachusetts Department of Environmental Protection (DEP), instituted new regulations for onsite septic systems. Called Title 5, they were supposedly meant to reduce the pollution that was being caused by the older septic designs.
However, this backfired badly, because it turned out that these Title 5 septic systems would enable much more nitrogen pollution to seep into the groundwater, which drains into our coastal ponds. The DEP scientists knew from the beginning that this would result in suffocating algae infestations, and they knew that this would cause great harm to these essential marine ecosystems.
BUT, in spite of knowing this from the very beginning, 1995, DEP has kept forcing us ever since to install many thousands Title 5 septic systems, at threat of $500/fine for non-compliance.
How do we know that DEP was fully aware of this nitrogen threat from the very beginning? We know it because, at the same time, in 1995, they also instituted a new program for testing innovative/alternative (I/A) systems capable of reducing that nitrogen pollution.
However, this testing program is in fact brutally discouraging, requiring two years or more at a remote military site on Cape Cod, costing at least $100,000, before getting permit to install on any real-world existing onsite Title 5 systems.
Consequently, the result is that, after 27 years of this DEP testing program, and many millions spent, there are still only a very few DEP-approved I/A systems on the Vineyard.
Over the years, several top officials of the Massachusetts Department of Environmental Protection (DEP) have urged us to formulate a proposal for a wastewater management plan for the Vineyard, with the primary goal of reducing the nitrogen that is released into our groundwater by Title 5 septic systems.
Among these State officials have been Trudy Coxe and Ellen Roy Herzfelder (while they each at different times held the post of Executive Secretary of Massachusetts Executive Office of Environmental Affairs, including the DEP), as well as Karl Honkonen, Robert O’Leary, and several other high-ranking government officials.
These officials all said the following (and I am paraphrasing):
“We urge you to bring us a proposal for a wastewater management plan for the
Vineyard. Such a proposal will have to come from you, the people of the Vineyard,
whose ponds are being harmed by the nitrogen released by current Title 5
regulations. It would be in your own best interest to do it soon, before the DEP
lays down demands that would likely be much more costly."
In accordance with these requests from The State, I have, over the past two decades, been developing a proposal that would encourage the rapid, safe and affordable development and testing of innovative tehnologies that may be capable of reducing nitrogen.
Over the years, I presented preliminary versions of this proposal to the Martha's Vineyard Water Alliance - but, sadly, it was never followed by any discussion or action. The objections were that we have no choice except to comply with DEP regulations, and it would be impossible to change the State regulations.
I agree - we would not be able to change the State regulations -
HOWEVER, as I will show: we actually have no obligation to comply with DEP regulations, for the simple reason that it is actually our own local boards of health that have the ultimate responsibility for ensuring that we comply with the Federal Clean Water Act of 1972, and thereby protect our health and our waters. This is a game changer that will enable us to save our ponds.
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This is a proposal for doing exactly what DEP is now finally requiring:
"Reduce nitrogen pollution from all Title 5 septic systems
located within any of the watershed areas of our ponds,
by at least 75%, within 5 years - using I/A technologies
capable of reducing nitrogen by an average of at least 75%."
Here's the Federal Clean Water Act law, enacted in 1972, in order to:
"...to ensure that drinking water is safe,
and to restore and maintain oceans, watersheds, and their aquatic ecosystems
to protect human health, support economic and recreational activities,
and provide healthy habitat for fish, plants, and wildlife".
And here the same, in the Massachusetts DEP Title 5 regulations:
And here's the ugly truth: Over the past 27 years,
DEP has been forcing us to violate both Federal and State law,
under threat of $500/day fine for noncompliance with Title 5.
The common assumption all along has been that:
"Our boards of health do not have the power
to permit anything that has not been approved by DEP"
Actually, this is not true.
The fact seems to be that it is actually our own local boards of health, not the State DEP,
that have the ultimate responsibility and duty to comply with the Clean Water Act,
as follows:
Here are the key words:
"... the legally designated health authority of any town ... may adopt any rules and regulations containing requirements stricter than those contained in this code."
There you have it!
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This is the time for us to step up and do what we know we can do, and must do, in order to save our ponds and our economy. It's high time we and our chosen boards of health stop cowtowing to the destructive regulations forced upon us by The State DEP.
That means we must now stand up and tell the DEP:
"No, we will no longer obey your demand
to use only those I/A technologies that have been permitted by you, DEP."
So far, this community has never been willing to stand up for our inalienable rights
to protect our own water.
Now we must finally dare to stand up against DEP, and with full commitment tell them: "We declare that we have the basic right to protect our own water.
Therefore we will no longer abide by the DEP regulations, which have caused such great harm to our ponds and our economy over these past 27 years.
Instead, we will do what we know is best."
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In order to find the least costly, most effective and reliable I/A technologies, we must start by establishing an All-Island On-Site Wastewater Treatment Authority,
under our local boards of health - which would be in charge of encouraging, permitting, inspecting and testing innovative on-site technologies that may be capable of reducing nitrogen by at least 75%, and that also appear to be highly unlikely to pose any threat to public health or the environment. All systems will be strictly supervised and tested.
Here's the latest update of this proposal. I hope it will lead to meaningful discussions and a committed collaboration to evolve this preliminary proposal to become the best we can imagine, followed as soon as possible by full implementation.
The main point is as follows:
We want to manage our wastewater in ways that comply with the Federal Clean Water Act law, enacted in 1972, "...to ensure that drinking water is safe, and to restore and maintain oceans, watersheds, and their aquatic ecosystems to protect human health, support economic and recreational activities, and provide healthy habitat for fish, plants, and wildlife".
In order to accomplish this goal in ways that pose the least risk to our health, our environment, and our economy, I propose that we establish an entity called something like “M.V. On-Site Wastewater Management Authority”, or the “Wastewater Authority” for short, which would be in charge of encouraging, permitting, inspecting and testing innovative on-site technologies.
This Wastewater Authority would be a regional Board consisting of some 12 Vineyard residents drawn from a broad range of our population. No particular expertise required, just an open mind, a positive encouraging attitude, and a passion for protecting our drinking water and our ponds.
The Wastewater Board
This Board will issue Test Permits to Applicant Teams (a Team consisting of the Owner of the property and the Innovator/Proponent of the System) for the installation of any innovative technology that may be capable of reducing nitrogen by at least 75%, including those I/A technologies that have not been involved in any previous testing or permitting process.
The Permitting Process
The Applicant Team will submit a proposal to the Board. This will include existing site plan, location of the existing Title 5 septic system, and proposed placement of the new I/A system, as well as separation from well, structures and property lines, and depth to groundwater.
The Board will not pre-judge any proposed Innovative System as to whether or not it may function as well as the Team may hope. Unlike Title 5 regulations and the DEP I/A Pilot Program, this plan has a built-in safety factor that will offer reliable protection of public health and the environment, namely: inspections that will measure performance, as frequently as the situation warrants, thereby catching any failure before it has chance to do any harm.
Permission to continue using the Innovative System shall be based entirely upon performance, and any system that reduces nitrogen by at least 75%, and treats bacteria at least as well as standards of Title 5, shall be allowed to remain.
Thus, the Board shall not be responsible for ascertaining the functionality of any Innovative System prior to issuing the Test Permit, but the Board shall be responsible for ascertaining that, after start-up and for as long as it remains in use, the Innovative System poses no greater risk to public health or the environment than standard Title 5 Systems.
The Proponent of the Innovative System must be allowed to freely experiment and adjust in any way (s)he sees fit in order to try to develop the least costly and most reliable on-site wastewater management methods that reduce nitrogen release into the groundwater by an average of at least 75%, and protect public health better than standard Title 5 systems.
The details of designs and modifications of the I/A technology shall remain the property of the Proponent, and shall not be divulged by the Board or the Inspectors to anyone without the Proponents approval.
Notification at Start-Up of the Innovative System
The Team shall notify the Board upon the start-up of the Innovative System, after which the Board and/or its Agent shall have the right to enter the property at any reasonable time in order to inspect the System, and to draw samples for testing - a procedure requiring less than 15 minutes.
Inspection and Testing
Inspectors, trained on-island for this purpose, shall make random on-site inspections in order to:
1) Check for any signs of failure, such as pooling effluent, odor, potentially harmful insects, ac- cessibility by children or pets, or other event that could in any way constitute hazard to public health. Any Innovative System that shows any failure must be immediately corrected, and after more than 3 failure occurrences the Board shall have the right to withdraw the permit and to order that the system be terminated.
2) Collect 2 samples of effluent, one pre-System and one post-System, for the purpose of testing the effectiveness of N-reduction. This on-site inspection/testing/sampling procedure will require less than 15 minutes per site.
Staff Requirements
One Director - in charge of coordinating inspections and sample collection, sending samples to certified lab, recording and organizing all data. Also, dissemination of information to the Waste- water Board, the local Boards of Health and the Massachusetts DEP, as well as responding to all inquiries and keeping Vineyard residents informed about developments and performance of all new and existing Innovative Technologies for on-site wastewater management.
Trained Certified Inspectors - to perform on-site inspections and record any signs of failure, and to collect samples.
This Testing Program will be well publicized in order to inform the public about this potential for reduction of nitrogen pollution. There may be less than a dozen new I/A systems installed within the first few months, and therefore the staffing will need to be increased as the number of I/A installations increase.
Funding the work of the MVWA
The numbers are based on an est. 10,000 existing Title 5 systems, to be retrofitted with I/A technologies to reduce nitrogen by at least 75%, over 5 years - say, 2000 systems/year.
The Budget to pay for the Director and Inspectors, the testing, gathering and organizing of data, the public interaction, etc, can be paid from the following sources:
1) Fees for permits for all I/A systems:
Suggested permit fee $200 x 2000 I/A retrofits the first year = $400,000
2) Fees for supervizing and testing all 2000 I/A systems:
Suggested first-year fee: $400 x 2000 systems = $800,000
3) Annual fees on all Title 5 septic systems on the Vineyard.
Say, $200 (at minimum). Rational: Those are the septic systems that are still
causing 70-80% of the nitrogen pollution that is killing our ponds, and, after all,
people who are on town sewers or have a DEP- approved I/A system technologies
have to pay annual fees of $1500 - $10,000.
Say, 10,000 Title 5 septic systems x $200 = $2,000,000
This would provide a budget of $3,800,000 annually, which would pay for all operating expenses, including testing, and would also fund revolving zero-interest loans for the installation of I/A systems.
I recommend staying away from any potential State and Federal funding. They come with crippling strings and conditions attached. We know this because of our many years of experience with all our failing and extremely costly State-imposed municipal projects. If the Vineyard can demonstrate that effective and affordable nitrogen reduction can be done with only modest local funds, then other communities can follow suite, and save so much money.
Important final note: The use of N-reducing technologies permitted by Wastewater Authority for any property shall not in any way provide the right to increase building density beyond what is allowed under standard Title 5 regulations or current zoning bylaws.
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