Case 1:21-cv-10258-ADB Document 1 Filed 02/16/21 Page 1 of 25
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`Plaintiff,
`
`Case No. ______
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`_______________________________
`
`
`
`
`
` )
`CONSERVATION LAW
`)
`FOUNDATION, INC.,
`)
`
`)
`
`)
`) COMPLAINT FOR
`) DECLARATORY AND INJUNCTIVE
`) RELIEF AND CIVIL PENALTIES
`)
`
`)
`
`
` )
`
`
`)
`TOWN OF BARNSTABLE,
`)
`MASSACHUSETTS,
`)
`
`
`)
`
`Defendant.
`_______________________________ )
`
`
`
`v.
`
`
`
`
`
`
`
`
`
`
`
`February 16, 2021
`
`
`(Federal Water Pollution Control Act,
`33 U.S.C. §§ 1251 to 1388)
`
`
`
`
`
`INTRODUCTION
`
`1.
`
`Conservation Law Foundation brings this citizen suit to enforce the Clean Water
`
`Act against the Town of Barnstable (“Defendant”), which discharges nitrogen-laden septic
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`wastewater from the Barnstable Water Pollution Control Facility in Hyannis, Massachusetts to
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`the coastal waters of the Lewis Bay Watershed System.
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`2.
`
`At the Hyannis Facility, Defendant collects and partially treats raw sewage from
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`thousands of properties in and around Hyannis.
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`3.
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`Defendant pours the partially treated sewage water (termed “effluent”) into sand
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`beds on the Facility’s premises. Even after partial treatment, the Facility’s effluent has high
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`concentrations of dissolved pollutants, including nitrogen.
`
`4.
`
`5.
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`Defendant pours 1.46 million gallons of effluent into the sand beds every day.
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`Defendant discharges effluent from the Facility via the sand beds, out and down
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`through the sandy soils beneath and around the Facility, where the pollutants are transferred
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`Case 1:21-cv-10258-ADB Document 1 Filed 02/16/21 Page 2 of 25
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`quickly and over a short distance by groundwater to the surface waters of the Lewis Bay
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`Watershed System, including to Lewis Bay, Hyannis Inner Harbor, Snows Creek, Stewarts Creek
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`and Halls Creek, among other waterbodies.
`
`6.
`
`Historically, the bays and estuaries of the Lewis Bay Watershed System had
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`teemed with diverse aquatic life, and many of these waterbodies were carpeted with meadows of
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`eelgrass—one of nature’s most valuable and productive marine habitats.
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`7.
`
`These waterbodies and the natural systems they support are treasured by the
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`residents of and visitors to Cape Cod, including CLF members.
`
`8.
`
`Today, the Lewis Bay Watershed System suffers from a severe nitrogen-pollution
`
`crisis. As a result of nitrogen pollution, invasive algae have experienced population explosions,
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`eelgrass meadows have been extirpated, rotting detritus starves the seafloor of sunlight, and algal
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`blooms offer only putrid smells and unsightly scums.
`
`9.
`
`According to the Massachusetts Department of Environmental Protection
`
`(MassDEP), failure to reduce and control nitrogen pollution to these waters could result in
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`complete replacement of eelgrass by macro-algae, a higher frequency of extreme decreases in
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`dissolved oxygen concentrations and fish kills, widespread occurrence of unpleasant odors and
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`visible scum, and a complete loss of benthic macroinvertebrates throughout most of the system.
`
`10.
`
`Indeed, according to MassDEP, as a result of nitrogen pollution, many
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`commercial and recreational uses of the Lewis Bay Watershed System will be greatly reduced
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`and could cease altogether.
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`11.
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`Defendant’s discharge from the Hyannis Facility is the largest individual source
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`of nitrogen polluting the waters of the Lewis Bay Watershed System: Defendant discharges
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`12,947 kilograms of nitrogen into these waters annually.
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`12.
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`Under the Clean Water Act, no person may discharge pollutants from a point
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`source to the waters of the United States unless so authorized by the Environmental Protection
`
`Agency under a National Pollutant Discharge Elimination Scheme permit.
`
`13.
`
`Defendant does not have—and has never had—authorization from EPA to
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`discharge pollutants from the Hyannis Facility to the waters of the Lewis Bay Watershed
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`System.
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`14. Without an order from this Court, the ecological toll of Barnstable’s unlawful
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`pollution of the Nation’s waters will only grow. Barnstable has plans dramatically to expand the
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`Hyannis Facility in coming years, increasing the flow of effluent through its sand beds, and thus
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`the load of nitrogen it will discharge into the rivers, creeks, ponds, bays, and estuaries of the
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`Lewis Bay Watershed System.
`
`15.
`
`To address this unlawful and ongoing damage to this Nation’s waters, CLF
`
`respectfully requests declaratory, injunctive, and other relief the Court deems just and
`
`appropriate, to remedy Barnstable’s violations of the Clean Water Act.
`
`JURISDICTION AND VENUE
`
`16.
`
`CLF brings this civil suit under the citizen suit provision of the Clean Water Act.
`
`33 U.S.C. § 1365.
`
`17.
`
`The Court has subject matter jurisdiction as CLF’s action arises under the laws of
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`the United States, namely the Federal Water Pollution Control Act (“Clean Water Act” or “the
`
`Act”). 33 U.S.C. § 1365(a)(1); 28 U.S.C. § 1331 (federal question).
`
`18.
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`The Court also has jurisdiction to declare the rights and other legal relations of the
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`Parties with the force and effect of a final judgment or decree, to enjoin Defendant to abate its
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`unlawful acts and remediate past violations of federal law, and award further necessary or proper
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`Case 1:21-cv-10258-ADB Document 1 Filed 02/16/21 Page 4 of 25
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`relief. 28 U.S.C. §§ 2201-02 (declaratory judgment); 33 U.S.C. § 1365(a) (injunctive relief and
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`civil penalties); id. § 1365(d) (litigation costs).
`
`19.
`
`CLF has satisfied the Clean Water Act’s notice requirement. On August 5, 2020,
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`CLF notified Defendant of its intention to file suit for violations of the Clean Water Act. 33
`
`U.S.C. § 1365(a)(1); 40 C.F.R. § 135.2.
`
`20.
`
`A true and accurate copy of Plaintiff’s Notice Letter (the “Notice Letter”) is
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`appended as Exhibit A.
`
`21. More than 60 days have elapsed since CLF’s notice to Defendant.
`
`22.
`
`During the intervening time, neither the EPA nor the Commonwealth of
`
`Massachusetts has commenced an action to redress the violations alleged in this Complaint. 33
`
`U.S.C. § 1365(b)(1)(B).
`
`23.
`
`As the source of the violations is located within this judicial district, venue is
`
`proper. 33 U.S.C. § 1365(c)(1).
`
`THE PARTIES
`
`24.
`
`Plaintiff, CLF, is a nonprofit, member-supported, regional organization dedicated
`
`to protecting New England’s environment.
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`25.
`
`CLF is incorporated under the laws of Massachusetts with a principal place of
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`business at 62 Summer Street, Boston, Massachusetts.
`
`26.
`
`For fifty years, CLF has worked to protect the health of New England’s
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`waterways, including addressing the significant water quality impacts of sewage pollution. CLF
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`has a history of working to protect the waters of Cape Cod.
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`Case 1:21-cv-10258-ADB Document 1 Filed 02/16/21 Page 5 of 25
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`27.
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`CLF actively seeks federal and state agency implementation of the Clean Water
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`Act and, where necessary, directly initiates actions on behalf of itself and its members to enforce
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`the Act.
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`28.
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`CLF has over 5,400 members, including more than 2,900 members in
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`Massachusetts.
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`29.
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`CLF members use and enjoy New England’s waterways for recreational and
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`aesthetic purposes, including boating, swimming, fishing, hunting, and sightseeing.
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`30.
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`The waters used and enjoyed by CLF’s members include, but are not limited to,
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`the waters of the United States adversely affected by Defendant’s unpermitted discharges of
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`pollutants.
`
`31.
`
`32.
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`Defendant is a municipality and therefore a person under the Clean Water Act.
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`Defendant owns and/or operates the Barnstable Water Pollution Control Facility
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`in Hyannis, Massachusetts.
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`The Clean Water Act’s NPDES Regime:
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`LEGAL BACKGROUND
`
`33.
`
`In 1972, Congress passed the Clean Water Act “to restore and maintain the
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`chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).
`
`34.
`
`In service of this purpose, the Clean Water Act forbids the “discharge of a
`
`pollutant” from a “point source” to “navigable waters” without the appropriate permit from the
`
`Environmental Protection Agency (EPA). 33 U.S.C. § 1311(a); 33 U.S.C. § 1362(12)(A).
`
`35.
`
`“Navigable waters” refer to “the waters of the United States, including the
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`territorial seas.” 33 U.S.C. § 1362(7); 40 C.F.R. § 120.2.
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`36.
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`“Waters of the United States” include “[a]ll waters which are currently used, were
`
`used in the past, or may be susceptible to use in interstate or foreign commerce, including all
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`waters which are subject to the ebb and flow of the tide.” 40 C.F.R. § 120.2; 40 C.F.R. § 122.2.
`
`37.
`
`“Territorial seas” refer to “the belt of the seas measured from the line of ordinary
`
`low water along that portion of the coast which is in direct contact with the open sea and the line
`
`marking the seaward limit of inland waters, and extending seaward a distance of three miles.” 33
`
`U.S.C. § 1362(8)
`
`38.
`
`The category “pollutant” includes “sewage,” “sewage sludge,” “biological
`
`materials,” and “chemical wastes.” 33 U.S.C. § 1362(6).
`
`39.
`
`The Act defines “point source” broadly to include “any discernible, confined and
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`discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well,
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`discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or
`
`other floating craft, from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14).
`
`40.
`
`A “discharge of a pollutant” includes “[a]ny addition of any pollutant or
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`combination of pollutants to . . . the ocean from any point source other than a vessel or other
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`floating craft . . . includ[ing] additions of pollutants into waters of the United States from . . .
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`discharges through pipes, sewers, or other conveyances . . . which do not lead to a treatment
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`works.” 40 C.F.R. § 122.2; U.S.C. § 1362(12) (“[a]ny addition of any pollutant to navigable
`
`waters from any point source”).
`
`41.
`
`The Act requires the owner and/or operator of a “point source” to obtain a permit
`
`from EPA “when there is a direct discharge from a point source into navigable waters or when
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`there is the functional equivalent of a direct discharge.” Cty. of Maui, Hawaii v. Hawaii Wildlife
`
`Fund, 140 S. Ct. 1462, 1476 (2020).
`
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`42.
`
`To determine whether a discharge of a pollutant is the functional equivalent of a
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`direct discharge from a point source into navigable waters, the Court considers relevant factors
`
`including:
`
`(a) “transit time” id.;
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`(b) “distance traveled” id.;
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`(c) “nature of the material through which the pollutant travels” id.;
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`(d) “the extent to which the pollutant is diluted or chemically changed as it travels”
`
`id.;
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`(e) “the amount of pollutant entering the navigable waters relative to the amount of
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`the pollutant that leaves the point source” id.;
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`(f) “the manner by or area in which the pollutant enters the navigable waters” id. at
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`1476-77;
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`(g) “the degree to which the pollution (at that point) has maintained its specific
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`identity” id.at 1477.
`
`43.
`
`The Court also considers the “underlying statutory objectives” of the Clean Water
`
`Act: a determination of whether a discharge is functionally equivalent to a direct discharge
`
`should not “create loopholes that undermine the statute’s basic federal regulatory objectives.” Id.
`
`Citizen Enforcement of the Clean Water Act:
`
`44.
`
`As described by the Environmental Protection Agency:
`
`The Clean Water Act (CWA) is the primary Federal statute
`regulating the protection of the nation’s water. The CWA aims to
`prevent, reduce, and eliminate pollution in the nation's water in
`order to "restore and maintain the chemical, physical, and
`biological integrity of the Nation's waters", as described in CWA
`section 101(a). A stated goal of the CWA is to eliminate discharge
`of pollutants into navigable waters, as that term is defined in CWA
`§ 502(7) and corresponding case law.
`
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`Environmental Protection Agency, Clean Water Act (CWA) and Federal Facilities (visited Feb.
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`16, 2021) https://www.epa.gov/enforcement/clean-water-act-cwa-and-federal-
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`facilities#:~:text=The%20CWA%20aims%20to%20prevent,CWA%20section%20101(a).
`
`45.
`
`In passing the Clean Water Act, Congress provided for “[p]ublic participation in
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`the development, revision, and enforcement of any regulation, standard, effluent limitation, plan,
`
`or program established . . . under this chapter.” 33 U.S.C. § 1251(e).
`
`46.
`
`The Act authorizes any interested citizen to bring an action in a federal district
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`court against any “person” in violation of an “effluent standard or limitation . . . or an order
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`issued by the Administrator or a State with respect to such a standard or limitation.” 33 U.S.C.
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`§ 1365(a)(1).
`
`47.
`
`Congress provided that an interested citizen may seek remedies for unauthorized
`
`point source discharges of pollutants into navigable waters. 33 U.S.C. §§ 1342, 1365(f).
`
`48.
`
`Congress provided the federal district courts jurisdiction “to enforce such an
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`effluent standard or limitation, or such an order, or to order the Administrator to perform such act
`
`or duty, as the case may be, and to apply any appropriate civil penalties.” 33 U.S.C. § 1365(a)(2).
`
`49.
`
`A “person” includes a municipality, which is “a city, town, borough, county,
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`parish, district, association, or other public body created by or pursuant to State law and having
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`jurisdiction over disposal of sewage, industrial wastes, or other wastes.” 33 U.S.C. §§ 1362(4)–
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`(5).
`
`50.
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`Each separate violation of the Clean Water Act subjects the polluter to a penalty:
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`up to $56,460 per day per violation for all violations of the Clean Water Act that occurred or
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`occur after November 2, 2015, where the penalties are assessed on or after December 23, 2020.
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`33 U.S.C. § 1319(d); 40 C.F.R. §§ 19.1–19.4.
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`Case 1:21-cv-10258-ADB Document 1 Filed 02/16/21 Page 9 of 25
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`FACTUAL BACKGROUND
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`The Soils of Barnstable:
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`51.
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`Cape Cod’s aquifer has been accurately characterized through decades of
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`scientific study.
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`52.
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`The United States Geological Survey has completed accurate documentation of
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`the characteristics of Cape Cod’s groundwater system, including of the soils of Barnstable
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`County.
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`53.
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`54.
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`The Town of Barnstable is located in Barnstable County.
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`The Town of Barnstable is situated on a sandy glacial outwash aquifer, a land
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`formation of permeable soil components including sand and gravel.
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`55. Water moves rapidly through this type of soil.
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`56.
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`Due to the fast percolation rate of water through a sandy glacial outwash aquifer,
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`where discharged into such soil, effluent moves rapidly to groundwater.
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`57.
`
`Due to the fast percolation rate of water through a sandy glacial outwash aquifer,
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`where effluent is discharged into such soil and such effluent includes dissolved nitrogen, little to
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`no nitrogen is attenuated from the effluent before it reaches groundwater.
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`58.
`
`No nitrogen is attenuated from effluent between the time the effluent reaches
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`groundwater and the time the effluent-polluted groundwater reaches a surface water.
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`59. Wastewater effluents from wastewater treatment facilities that release effluent
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`into the ground on a sandy glacial outwash aquifer, enter the groundwater system and are
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`transferred to surface water bodies.
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`60.
`
`In the sandy soils of Barnstable County, effluent that has entered the groundwater
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`travels towards the coastal waters at an average rate of one foot per day.
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`61.
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`Cape Cod has a high groundwater table associated with an upwelling, highly
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`oxygenated, aquifer.
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`62.
`
`On Cape Cod, surface and groundwater flows are pathways for the transfer of
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`land-sourced nutrients to coastal waters.
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`63.
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`Nitrogen, primarily as plant-available nitrate, is readily transported through
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`oxygenated groundwater systems on Cape Cod.
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`The Barnstable Water Pollution Control Facility:
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`64.
`
`Defendant owns and operates the Barnstable Wastewater Treatment Facility (“the
`
`Facility”), located on Bearses Way, in Hyannis.
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`65.
`
`The Facility serves as primary wastewater treatment facility for approximately
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`2,900 properties in Hyannis.
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`66. Wastewater is gathered and brought to the Facility by a network of 55 miles of
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`pipes and 27 pumping stations.
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`67.
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`Once wastewater enters the Facility, it passes through stages of partial treatment,
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`including septage handling, pretreatment, primary treatment, secondary treatment, and
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`disinfection facilities.
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`68.
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`The treatment processes at the Facility partially denitrify raw sewage and then
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`pour the partially treated wastewater—“effluent”—to the Facility’s sand beds.
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`69.
`
`Defendant releases effluent from the sand beds, through their boundaries, out of
`
`the Facility, and into the sandy soil below.
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`70.
`
`An average 1.46 million gallons of wastewater flow through the Facility daily.
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`Discharges from the Facility:
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`71.
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`At the Facility, Defendant discharges pollutants, including but not limited to
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`nitrogen (which may be present in the form of ammonia, nitrate, nitrite, and/or Total Kjeldahl
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`Nitrogen (TKN)) to the waters of the Lewis Bay Watershed System.
`
`72.
`
`73.
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`There is no NPDES permit that covers discharges from the Facility.
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`Barnstable operates the Facility under a MassDEP-issued state Groundwater
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`Discharge Permit.
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`74.
`
`This state Groundwater Discharge Permit regulates nitrogen discharges with a
`
`view to protecting public drinking water supplies.
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`75.
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`In order to protect drinking water supplies, the state permit sets a nitrogen
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`concentration limit of 10 mg/L. This is the maximum concentration that state authorities and
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`EPA set to protect infants from methemoglobinemia or blue-baby syndrome, a potentially fatal
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`blood disorder that can result from high levels of nitrate.
`
`76.
`
`The state permit’s nitrogen limit is not intended to, and does not protect the
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`integrity of surface waterbodies.
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`77.
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`Discharges with a nitrogen concentration of 10 mg/L limit are concentrated
`
`enough to cause eutrophication, algae blooms, and fish kills in coastal waters.
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`78.
`
`The state Groundwater Discharge Permit is issued under state law. It is not—and
`
`does not substitute for—a NPDES permit issued pursuant to the Clean Water Act.
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`79.
`
`For this reason, compliance with the state Groundwater Discharge Permit does not
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`equate to compliance with federal law, including the Clean Water Act.
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`80.
`
`The state Groundwater Discharge Permit requires Defendant regularly to monitor
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`and report the concentration of nitrogen in the effluent it releases from the Facility’s sand beds to
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`groundwater.
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`81.
`
`According to the reported information, since 2016, Defendant has continually
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`discharged effluent containing pollutants, including nitrogen, from the Facility.
`
`82.
`
`The Massachusetts Estuaries Project is a collaborative effort between local and
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`federal governmental entities, and non-profit and academic institutions, including MassDEP, the
`
`University of Massachusetts, the United States Geological Survey, the Cape Cod Commission,
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`with support from, among others, Defendant.
`
`83.
`
`The Massachusetts Estuaries Project was formed to conduct studies of
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`waterbodies in the Commonwealth to “help determine current nitrogen loads to southeastern
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`Massachusetts estuaries and evaluate reductions that would be necessary to support healthy
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`ecosystems.”
`
`84.
`
`In 2006, the Massachusetts Estuaries Project completed a technical report
`
`evaluating nitrogen pollution within the Lewis Bay Watershed System.
`
`85.
`
`According to the Massachusetts Estuaries Project’s 2006 report, the median
`
`nitrogen concentration of effluent Defendant discharges from the Facility ranges between 4 to 8
`
`mg/L, with an average total nitrogen concentration of 5.51 mg/L.
`
`86.
`
`Public records dating back to 2016 show that concentrations of total nitrogen in
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`effluent that Defendant discharges from the Facility has monthly averages reaching as high as
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`12.79 mg/L.
`
`87.
`
`The Massachusetts Estuaries Project estimated that the Facility discharges a load
`
`of 12,947 kilograms of nitrogen in its effluent annually.
`
`Nitrogen Crisis in the Lewis Bay Watershed System:
`
`88.
`
`The Facility is located within the drainage of the Lewis Bay Watershed System.
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`89.
`
`The Lewis Bay Watershed System is a complex estuary located within the towns
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`of Barnstable and Yarmouth on Cape Cod, Massachusetts. Its southern shore is bordered by
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`Nantucket Sound.
`
`90.
`
`The Lewis Bay Watershed System includes multiple surface waters, including
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`Lewis Bay, Hyannis Inner Harbor, Snows Creek, Stewarts Creek and Halls Creek, among other
`
`waterbodies.
`
`91.
`
`After the Facility’s partially treated effluent leaves the sand beds, this wastewater
`
`pours through the sandy soil below to reach groundwater.
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`92.
`
`Groundwater then transports the effluent with its nitrogen load into the surface
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`waters of the Lewis Bay Watershed System.
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`93.
`
`Nearly all of the nitrogen within the Facility’s effluent reaches these surface
`
`waters, without any chemical changes.
`
`94.
`
`The Facility’s sand beds are located approximately 1.5 miles from surface waters
`
`within the Lewis Bay Watershed System, including Stewarts Creek and Hyannis Inner Harbor.
`
`95.
`
`The pollutant-laden groundwater beneath and around the Facility moves at an
`
`average rate of one foot per day.
`
`96.
`
`Drawing upon groundwater modeling conducted by the United State Geological
`
`Survey, the Massachusetts Estuaries Project determined which surface waters received
`
`groundwater flow from effluent discharged at the Facility and the magnitude of the nitrogen
`
`load.
`
`97.
`
`The Massachusetts Estuaries Project determined that Defendant’s effluent
`
`discharges from the Facility contributed:
`
`•
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`627 kilogram of nitrogen per year to Hyannis Inner Harbor;
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`Case 1:21-cv-10258-ADB Document 1 Filed 02/16/21 Page 14 of 25
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`•
`
`•
`
`•
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`988 kilograms of nitrogen per year to Halls Creek;
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`4,219 kilograms of nitrogen per year to Snows Creek;
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`7,112 kilograms of nitrogen per year to Stewarts Creek.
`
`98.
`
`From these surface waters, nitrogen from the Hyannis Facility mixes with other
`
`connected waters of the watershed, contributing to elevated nitrogen concentrations and the
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`nitrogen crisis in the Lewis Bay Watershed System.
`
`99.
`
`Nitrogen pollution from the Facility threatens the Lewis Bay Watershed System’s
`
`ecological integrity and continued use of these waters by individuals, including CLF members.
`
`100.
`
`In coastal waters, nitrogen is a limiting nutrient for algal populations. This means
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`that algal populations increase in direct proportion to increases in available supplies of nitrogen.
`
`101.
`
`In a process known as “eutrophication,” when levels of nitrogen increase, algae
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`and aquatic plant concentrations can reach densities that overwhelm the natural ecosystem.
`
`102.
`
`In waters experiencing eutrophication, plants and algae can generate “blooms,”
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`meaning they experience explosive population growth.
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`103. Eutrophic blooms can have severe crowding-out effects on the native aquatic
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`ecosystem, and estuary systems are particularly sensitive to such effects.
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`104. Blooms result in large quantities of rotting organic matter in the waterbody. The
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`resulting processes of decay exhaust available supplies of dissolved oxygen in the water and
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`render the water so turbid that sunlight cannot reach the seafloor.
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`105. Fish and shellfish can die from the deprivation of dissolved oxygen.
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`106. High nitrogen levels also cause red tides, phenomena that occur when toxin-
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`producing algae grow at out-of-control rates.
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`Case 1:21-cv-10258-ADB Document 1 Filed 02/16/21 Page 15 of 25
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`107. Algal blooms and red tides are harmful to both animal and human water-users,
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`frequently causing fish kills and beach closures.
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`108. Eutrophic waterbodies, with algal blooms and red tides, are aesthetically
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`unappealing.
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`109. Water clarity is reduced in such waterbodies.
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`110. Algae appear on the surface of the water as a green, green-blue, brown or red
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`film.
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`111. Algal growth and decay also lead to unpleasant odors.
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`112. Under Section 303(d) of the Federal Clean Water Act, the Commonwealth of
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`Massachusetts is required to identify waters for which effluent limitations normally required are
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`not stringent enough to attain water quality standards and to establish “total maximum daily
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`load” allocations (“TMDLs”) for such waters in connection with the pollutants of concern.
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`113. The Commonwealth’s TMDLs establish the maximum loadings of the pollutant of
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`concern, from all contributing sources, that a waterbody may receive and still meet and maintain
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`its water quality standards and designated uses.
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`114.
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`In setting a TMDL for a body of water, the Commonwealth must determine
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`present water quality conditions in the waterbody and determine whether the waterbody is
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`presently meeting its water quality standards and designated uses, and, if not, the sources of the
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`pollutants of concern.
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`115. Where a TMDL is necessary, the Commonwealth must submit a proposed TMDL
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`to EPA for the federal agency’s approval.
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`116.
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`In March 2015, MassDEP submitted a final TMDL (“the Lewis Bay TMDL”)
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`regarding the Lewis Bay Watershed System to EPA.
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`Case 1:21-cv-10258-ADB Document 1 Filed 02/16/21 Page 16 of 25
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`117. The pollutant of concern for MassDEP’s Lewis Bay TMDL was nitrogen.
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`118.
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`In the Lewis Bay TMDL, MassDEP determined that the Lewis Bay Watershed
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`System is eutrophic and at risk of further eutrophication from nitrogen loads in the groundwater.
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`119. MassDEP determined that ecological damage occurs in these waterbodies at a
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`nitrogen concentration above 0.38 mg/L.
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`120. MassDEP found that nitrogen concentrations in the surface waters of the Lewis
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`Bay system range from 0.42 mg/L to 1.92 mg/L.
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`121. Nitrogen concentrations are particularly high in waterbodies polluted by the
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`Facility: 1.25 mg/L in Stewarts Creek and 1.57 mg/L in Snows Creek.
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`122. MassDEP found that groundwater contributed the principal nitrogen load to the
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`Lewis Bay Watershed System.
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`123. According to MassDEP, nitrogen pollution is causing “degraded water quality,
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`adverse impacts to ecosystems, and limits on the use of water resources” in the Lewis Bay
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`Watershed System.
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`124. MassDEP reports algal blooms, depleted oxygen, elimination of eelgrass
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`meadows, crashes in biodiversity due to nitrogen pollution—including from Defendant’s
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`discharges of effluent from the Facility—within the surface waters of the Lewis Bay Watershed
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`System.
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`125.
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`In the surface waters of the Lewis Bay Watershed System, nitrogen pollution
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`from the Facility has contributed to eutrophication, with algal blooms followed by extreme
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`decreases in dissolved oxygen concentrations.
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`126. These changes threaten aquatic life and reduced species diversity.
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`Case 1:21-cv-10258-ADB Document 1 Filed 02/16/21 Page 17 of 25
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`127. The Facility’s nitrogen pollution has contributed to the near loss of the benthic
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`community in the Lewis Bay Watershed System.
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`128. The Facility’s nitrogen pollution has contributed to unpleasant odors and scums
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`from blooms in the Lewis Bay Watershed System.
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`129.
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`In the Lewis Bay TMDL, MassDEP found that:
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`Coastal communities, including Barnstable . . . rely on clean,
`productive, and aesthetically pleasing marine and estuarine waters for
`tourism, recreational swimming, fishing, and boating, as well as for
`commercial fin fishing and shellfishing. Failure to reduce and control
`[nitrogen] loadings could result in complete replacement of eelgrass by
`macro-algae, a higher frequency of extreme decreases in dissolved
`oxygen concentrations and fish kills, widespread occurrence of
`unpleasant odors and visible scum, and a complete loss of benthic
`macroinvertebrates throughout most of the system. As a result of these
`environmental impacts, commercial and recreational uses of Lewis
`Bay waters will be greatly reduced, and could cease altogether.
`(emphasis added).
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`130. More than five years have elapsed since MassDEP made this finding, however,
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`Defendant continues to discharge effluent including pollutants such as nitrogen from the Facility
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`to the surface waters of the Lewis Bay Watershed System on each day of the five years
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`preceding the date of this complaint.
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`Defendant’s Plans for Intensified Discharge from the Facility:
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`131. Based on, inter alia, MassDEP’s Lewis Bay TMDL, Defendant adopted an
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`“Interim Regulation for the Protection of Saltwater Estuaries” into its regulations, incorporating
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`findings from the Lewis Bay TMDL as Defendant’s own determinations.
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`132.
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`In the Interim Regulation, Defendant states that “[t]he findings of a state-wide
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`estuary investigation indicate that a substantial portion of the Town’s saltwater estuaries are in
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`jeopardy from the long-term buildup of nitrate-nitrogen, primarily from the subsurface discharge
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`of sewage effluent.”
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`Case 1:21-cv-10258-ADB Document 1 Filed 02/16/21 Page 18 of 25
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`133.
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`In the Interim Regulation, Defendant states “most of the nitrate-nitrogen in these
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`watersheds is from subsurface discharge of sewerage effluent into the groundwater that flows to
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`these embayments,” and recognize “the adverse impact to these estuaries from such discharges.”
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`134.
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`In November 2020, Defendant submitted a final Comprehensive Wastewater
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`Management Plan (“the Barnstable Plan”) and associated environmental impact report to the
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`Commonwealth’s Department of Environmental Protection for review.
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`135.
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`In the Barnstable Plan, Defendant relies upon and incorporates the findings of the
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`Massachusetts Estuaries Project’s 2006 report and the Lewis Bay TMDL.
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`136. By submitting the Barnstable Plan, Defendant again incorporated all findings
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`from the Lewis Bay TMDL as Defendant’s own determinations.
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`137. According to Defendant, “once fully implemented,” the Barnstable Plan “will
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`satisfy the nutrient removal targets to achieve the TMDLs in the Town’s embayments.”
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`138.
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`“The Plan is primarily focused on [a] sewer expansion program which will be
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`completed in three (3), 10-year phases, for a total of a 30 years.”
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`139. The planned sewer expansion—if realized—would increase the flow of raw
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`sewage into the Hyannis Facility.
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`140. The Barnstable Plan anticipates that sewering will more than double the current
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`flow to the Hyannis Facility.
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`141. Defendant also expects modest population growth over the coming decade.
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`142. Defendant’s “realistic” expectation is that buildout in the Lewis Bay watershed
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`will generate an additional flow 123,670 gallons of wastewater per day from residences, and an
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`additional 433,500 gallons per day from commercial properties.
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`Case 1:21-cv-10258-ADB Document 1 Filed 02/16/21 Page 19 of 25
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`143. The Hyannis Facility’s current effluent disposal capacity is insufficient to
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`accommodate the volume of effluent anticipated to pass through the Facility under the
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`Barnstable Plan.
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`144. To reach nitrogen reduction targets in the Lewis Bay watershed, in the Barnstable
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`Plan Defendant states that the Hyannis Facility must be upgraded to reduce average effluent
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`nitrogen concentrations to 3 mg/L.
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`145. Specifically, Defendant states “[e]xpansion of the aeration system to
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`accommodate the new flows will be required within the first 3-5 years of the plan.”
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`146. Defendant also expects to complete “evaluation, design and construction” of new
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`nutrient removal technologies for the Facility “in years 1-5 of the plan.”
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`147. The Barnstable Plan also requires Defendant to identify and develop additional
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`effluent disposal sites.
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`148. Defendant has reason to doubt that the Hyannis Facility’s capacity for effluent
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`disposal matches the volume of effluent th