The Massachusetts Department of Environmental Protection (MassDEP) has introduced new regulations that amend Title V for Nitrogen Sensitive Areas (NSAs) in Barnstable County. This move aims to bolster the protection of embayments and estuaries on Cape Cod from nitrogen pollution originating primarily from wastewater. These regulations are the result of a settlement between the Conservation Law Foundation, MassDEP, the Town of Barnstable, and the Town of Mashpee.
What is a Watershed Permit?
The new voluntary Watershed Permit program offers an approach to control nitrogen and other pollutants from entering coastal embayments and estuaries in Barnstable County. Watersheds within the designated NSAs have the option to obtain a Watershed Permit, which, if successfully granted, will exempt the area from the new Title V Regulations.
The Watershed Permit establishes performance standards, authorized activities, and timeframes under an adaptive management framework. These measures are aimed at achieving necessary nutrient load reductions to meet specific water quality and habitat restoration goals identified in a watershed analysis. The goal is to meet the designated uses of the Massachusetts Surface Water Quality Standards concerning the identified nutrients in the watershed analysis.
Towns in Barnstable County have a two-year window from July 7, 2023, to file a notice of intent to obtain a Watershed Permit. This notice will delay the effect of the new Title V Regulations for NSAs.
New Title V Regulations for NSAs
The amended Title V Regulations mandate existing septic systems in the affected areas to be upgraded to an Innovative Alternative (IA) septic system within five years after the two-year window for obtaining a Watershed Permit if the town fails to secure one. For most regions on Cape Cod, the NSA designation takes effect on July 7, 2023. This means that unless a town files an intent to obtain a Watershed Permit by July 7, 2025, homeowners in the affected area would need to upgrade to an IA septic system by July 7, 2030. If a town successfully files for and obtains a Watershed Permit by July 7, 2025, homeowners would not need to upgrade to an IA system by the 2030 deadline.
As of July 7, 2023, the definition of NSAs in Barnstable County will be updated by MassDEP. These areas are primarily located on the south side of Barnstable County. Watersheds falling within this newly designated NSA will have two years from the date of becoming an NSA to obtain a Watershed Permit. If a Watershed Permit is sought and granted, individual properties will be exempt from the new Title V Regulations.
Both Chapter 93A and the new Title V Regulations mandate the disclosure of properties in NSAs to affected property owners. Before any transfer of title, the transferor must disclose to the transferee and Board of Health whether the facility is subject to an upgrade requiring Best Available Nitrogen Reducing Technology. This disclosure applies to all properties located within the newly designated NSAs, even if the town watershed has already received a Watershed Permit.
Local Title V Updates
As the timeline progresses under the new Title V regulations, the Cape Cod & Islands Association of REALTORS® (CCIAOR) will monitor updates in local towns. Here are the local updates as of July 7, 2023:
- Provincetown: The town is currently exempt from the new DEP Title V regulations due to its natural flushing capacity and early implementation of a municipal sewer in 2003.
- Orleans, Chatham, Brewster, and Harwich: are covered by a Pleasant Bay Watershed Permit, granting them at least 20 years to reduce nitrogen loading in their bays and estuaries.
- Brewster: The town has three nitrogen-sensitive areas in addition to Pleasant Bay. Future development within the Herring River watershed will be managed through a new 20-year watershed permit under the state regulations.
Other towns, including Barnstable, Sandwich, Falmouth, Mashpee, Yarmouth, Dennis, Harwich, Chatham, and Orleans, have completed Comprehensive Wastewater Management Plans that could aid in applying for permits for other watersheds. The DEP has allowed all towns to apply for a single permit covering multiple watersheds, which benefits towns like Falmouth with numerous watersheds within its boundaries. Wellfleet and Truro have also submitted plans aimed at managing their harbors over the next 20 years.