Title V Regulations for Nitrogen Sensitive Areas

The Massachusetts Department of Environmental Protection (MassDEP) has recently promulgated new regulations amending Title V for new Nitrogen Sensitive Areas (NSAs) in Barnstable County.

Background

Title V in Massachusetts governs the construction and maintenance of septic systems and the transport of septic-system waste.

The MassDEP has recently promulgated new regulations amending Title V for new NSAs in Barnstable County. The new regulations are designed by MassDEP to enhance protection of embayments and estuaries on Cape Cod from nitrogen pollution originating primarily from wastewater. Taken together, these new regulations constitute the settlement of a lawsuit between the Conservation Law Foundation and MassDEP, the Town of Barnstable, and the Town of Mashpee.

Additionally, MassDEP created a new voluntary watershed permit program for towns in Barnstable County as part of the new regulations. If a town chooses to pursue and is subsequently granted a watershed permit, the existing construction within that watershed are EXEMPT from the new Title V regulations as the town will be deemed to be making significant progress towards reducing nitrogen pollution.

This new voluntary Watershed Permit provides a watershed permitting approach to control nitrogen and other pollutants from entering the Commonwealth's coastal embayments and estuaries for Barnstable County.

Watersheds within the NSAs will have the option to obtain a Watershed Permit. If a town successfully files for and receives Watershed Permit, the amended Title V Regulations will not take effect in that watershed.

A Watershed Permit establishes performance standards, authorized activities, and the timeframes that will be utilized under an adaptive management framework to achieve nutrient load reductions that are necessary to meet the specific water quality and habitat quality restoration goals that have been identified in a watershed analysis as being necessary to meet the designated uses of the Massachusetts Surface Water Quality Standards, for the nutrients identified in the watershed analysis.

A town has 2 years from July 7, 2023 to file a notice of intent to obtain a Watershed Permit. Doing so, will stay the effect of the new Title V Regulations for NSAs.

The amended Title V Regulations require existing septic systems to be upgraded to an Innovative Alternative (IA) septic system within 5 years of the two-year window for the Watershed Permit should the town fail to receive one. This means that if a town fails to file notice to obtain a Watershed Permit within two years of being determined to be a Nitrogen Sensitive Area, then homeowners in the affected area would have 5 years from that date to upgrade their septic system to an IA septic system.

For the majority of the affected regions on Cape Cod, the NSA takes effect on July 7, 2023 - meaning that unless a town files an intent to obtain a Watershed Permit by July 7, 2025 - homeowners in the affected area would be required to upgrade to a IA septic system by July 7, 2030. If the town successfully files for and obtains a Watershed Permit by July 7, 2025, then homeowners would NOT need to upgrade to an IA system by the 2030 deadline.

On July 7, 2023, there will be an updated definition for NSAs in Barnstable County from MassDEP. These areas are mostly contained on the south side of Barnstable County.

The watersheds in this newly designated area will have two years from becoming a NSA to obtain a Watershed Permit and if they do seek a permit, the individual properties will be exempt from the new Title V Regulations.

Click the button below to check if an address is in a Nitrogen Sensitive Area

Both Chapter 93A and the new Title V Regulations require disclosure of the property in a NSA for those affected properties.

The disclosure requirement reads,

"Prior to any transfer of title for property where the facility is located, the transferor shall disclose to the transferee and Board of Health whether the facility is subject to an upgrade requiring Best Available Nitrogen Reducing Technology."

For all properties that are in the newly designated NSAs, you need to disclose prior to closing that the property is within the area - even for properties already under contract.

CCIAOR has provided a disclosure for you to use, below.

Barnstable Comprehensive Wastewater Disclosure

The disclosure should be given for all properties that fall within the Natural Resource NSAs regardless if the town watershed has already received a Watershed Permit.

Watch a full video recap of our recent webinar on the new Title V regulations.

As the timeline progresses under the new Title V regulations, CCIAOR will be tracking updates in local towns. Click here to view the updated town-by-town tracker as of January 31, 2024.

Provincetown is currently exempt from the new DEP Title 5 regulations: "They are not facing the same problems in terms of nitrogen pollution," according Gary Moran of DEP. The town has a Harbor that naturally flushes things out. It also was ahead of the pack by being the first town on the Cape to begin operating a municipal sewer in 2003. These two factors helped with the DEP determination to exempt the town. Click here to read more

Pleasant Bay Watershed Permit will buy time for Orleans, Chatham, Brewster and Harwich. There are four towns that are part of the Pleasant Bay Watershed Permit already in place. According to the Cape Cod Commission, all four towns have at least 20 years to reduce nitrogen loading in their bays and estuaries. This watershed permit focuses on regional solutions to reduce nitrogen pollution and includes 21,600 acres in the four towns;
41% in Orleans
30% in Chatham
16% in Brewster
13% in Harwich

According to Brewster Town Manager Peter Lombardi: Brewster has three nitrogen sensitive areas in addition to Pleasant Bay - Herring River, Swan Pond, and Bass River. Lombardi said that the town will need to only manage future development within the Herring River watershed through a new 20-year watershed permit under the new state regulations. He said Brewster's contributions to Swan Pond and Bass River are considered 'de minimis.'

What about the other towns? Many towns have completed Comprehensive Wastewater Management Plans that would help when applying for a permit for other watersheds:

• Barnstable
• Sandwich
• Falmouth
• Mashpee
• Yarmouth
• Dennis
• Harwich
• Chatham
• Orleans

The DEP has said that all towns can apply for a single permit that covers multiple watersheds. This will help a town like Falmouth that has numerous watersheds within the town lines.

According to the Cape Cod Commission, Wellfleet submitted a Targeted Watershed Management Plan for Wellfleet Harbor that is organized into four phases over 20 years. The town will also apply for a watershed permit. Truro is also expected to submit a similar plan to Wellfleet's.