Petitioners Push For Nitrogen Metrics For Nauset Estuary

ORLEANS – A petition prepared for November’s special town meeting seeks to direct the town to work with the state to develop a target for the amount of nitrogen needed for removal from the Nauset Estuary. 

The petition seeks $300,000 “for studies and expenses necessary to establish TMDL (total maximum daily load) standards” for the estuary, with those standards to be set “no later than Dec. 31, 2030.”

In a memo to the select board dated Aug. 31, co-petitioners Charlie Carlson, Bill Amaru and Bill Brotherton asked that town counsel review the petition to confirm that it will be “actionable,” as written, at the Nov. 16 special town meeting. The petitioners also asked the board and Town Manager Kim Newman to determine how the $300,000 would be funded.

Carlson told the select board Sept. 9 that the TMDL standards are needed so that the town can go about preparing a plan for how best to remove nitrogen from the waterway.

“The [TMDL] standards tell us how far we need to go to restore the estuary’s health,” Carlson said. “Today, we don’t have a target for remediation, and we don’t know our progress toward remediation at this time. That’s the problem.”

Carlson touted the economic benefits tied to cleaning up the estuary, as well as the broad support he says exists in the community for pursuing the requested TMDL targets. But the town can’t move forward on that process by itself. Instead, it needs the cooperation from the state Department of Environmental Protection and the federal Environmental Protection Agency.

“The town does not have the authority to start a TMDL process,” said George Meservey, the town’s director of planning and community development. “Only the state can do that.”

Mike Giggy of Wright-Pierce, the town’s wastewater consultant, said there needs to be a “scientific basis” for establishing a TMDL for the estuary that Mass DEP and the EPA can consider. That could come by the way of the Massachusetts Estuaries Report, but Giggy said the most recent update of the report from 2012 was poorly vetted and is largely looked at across the state as an “incomplete document.”

“The real focus should be updating this report,” he said.

Complicating matters further, the Massachusetts Estuaries Program has since run out of funding. However, Giggy said that the Nauset Estuary would be looked at as a “high priority” for the state should the program resume.

Orleans would also need to work with Eastham, with whom it shares jurisdiction of the waterway, in establishing TMDL standards and a subsequent watershed permit for the estuary. Despite an existing intermunicipal agreement that exists between the towns, Carlson said there has been a lack of progress in pursuing a permit. Meservey said Eastham officials are currently focused on launching the first phase of the town’s sewering efforts.

Meservey said if the two towns were to proceed toward a watershed permit for the estuary, it would take about six months for the state to make a determination on a TMDL for the waterway. The towns would then have two years in which to prepare and file their permit with the state. From there, the town would have 20 years to reduce the nitrogen load in the estuary by 75 percent, he said.

Otherwise, Merservey said more stringent demands could be placed on the towns, such as an order to use innovative-alternative technologies on properties near the estuary.

“I’m hoping we can have some substantive talks with Eastham as soon as possible so that we can get on board with everything else,” said Mark Mathison of the select board.

An email to Eastham Town Manager Rich Bienvenue was not responded to as of The Chronicle’s Tuesday deadline.

Concerns also were raised about how pursuing the TMDL will impact the town’s existing wastewater management plan for Pleasant Bay. The town recently broke ground on the third of 16 total phases of sewering due to take place through 2067.

“To change that schedule or anticipate that we’re going to insert other things in there that would push that schedule back…potentially threatens the Pleasant Bay requirements that we currently have,” Meservey said.

Carlson stressed that the intention behind the petition is not to disrupt plans for sewering around Pleasant Bay. But acknowledged what he saw as the town’s prioritization of cleaning up the bay over the estuary.

“It has nothing to do with equity,” said select board member Kevin Galligan, who chairs the town’s wastewater management advisory committee. “It has nothing to do with fairness. It has to do with the fact that Pleasant Bay is the most significant estuary on the East Coast, and DEP recognized that.”

Galligan said the committee is “right on the same page” with the petitioners, except for uncertainty around Eastham’s share of the project cost and the proposed 2030 deadline, he said.

Instead, Galligan said the committee unanimously voted Aug. 27 not to support the petition, and to move forward with the town’s wastewater management plan. He said about 45 percent of the “assumed load reduction” is already occurring in the estuary due to sewering.

“We’re going to miss this deadline, and I don’t want to be part of missing a deadline,” Galligan said. “I want to keep up the progress, do it judiciously, and do it in a cost-effective way for this town.”

Giggy also recommended that the town stay the course with its wastewater management plan, noting that Mass DEP recognizes Orleans as one of the Cape communities that has gone about reducing its nitrogen loading the right way.

Procedurally, there may also be issues with how the petition is written. Newman said that the petition may need to be reworded to include a source for the $300,000 in order for it to be actionable on town meeting floor. That could also require that the petitioners go back and get the estimated 200 signatures that they have in support of the petition.

“I don’t want to have to go back to 200 people,” Carlson said. “That is a huge effort.”

“I’m trying to give you enough time to make that change so that it is actionable if it makes it to the floor,” Newman said.

Carlson said petitioners have consulted Chatham’s town moderator William Litchfield, an attorney, who said he believed the petition to be actionable as worded. Newman said she also would consult with Orleans’ legal counsel about the petition. But the question still remained about what the town could do with the $300,000 if it were to be approved in November.

“What I’m hearing is with that $300,000, the town of Orleans really can’t go forward and do anything substantive until the DEP does their job,” Mathison said.

“It is clear from this petition article that the expectation is that we will go through the steps to establish a TMDL, and that includes updating the state report,” Carlson said.

The warrant for the Nov. 16 fall town meeting closed Sept. 23. Town Clerk Kelly Darling said in a Sept. 21 email that her office had not yet received any citizen petitions to certify for the warrant.