Model Nitrogen Loading Bylaws

Related Pages:     Town of Wareham Info  |   Wareham River Estuary Nitrogen Loading

Nitrogen Management Made Simple

Sewering as a solution

In the early 1990s, the Buzzards Bay NEP recognized that many estuaries were excessively overloaded with nitrogen from development. Even then it was clear that for many watersheds, widespread sewering might be the only answer. This early assessment is now being affirmed by DEP’s Massachusetts Estuaries Project, which is finding that sewering may be the only realistic solution for many Cape Cod watersheds.

However, the price tag for some comprehensive sewering solutions may be beyond reach of many communities. The Town of Falmouth has developed a preliminary estimate of $500 million dollars to sewer the most densely developed portions of town and build a new facility. The cost of implementing such a plan could be $50,000 to $100,000 per home. A similar municipal sewer facility and sewer expansion in Chatham is projected to cost $300 million, or potentially $150,000 per dwelling sewered. Such costs would be a difficult burden to residents, whether they pay the costs through taxes, or the betterment fees.

Although it is highly likely that a new municipal wastewater treatment facility constructed to handle discharges from 10,000 homes will likely cost $100 million or more, the costs described above have been criticized as being unrealistic and speculative. Some recent less ambitious projects can help shed light on community wastewater systems and sewer expansion costs (separate from new plant construction costs).


Advanced Onsite Systems

Besides widespread municipal sewering, the only other option for reducing wastewater nitrogen loading to coastal waters is to require the use of individual, shared, or community level innovative nitrogen removal wastewater treatment systems. Conventional gravity sewering is expensive, perhaps exorbitantly so for areas zoned 1 acre and greater (which covers 60% or more of many Buzzards Bay towns). In these areas innovative onsite wastewater systems may offer a solution. One problem with single-unit alternative onsite systems is that with current technologies, it is difficult to achieve the high levels of nitrogen removal possible with larger and better-managed treatment works. Another obstacle is that they have a higher cost to operate and maintain than conventional septic systems. Conventional septic systems have nominal operating costs, and are often ignored by homeowners after they are installed, until a problem arises, of course. Despite higher costs of innovative systems over conventional septic systems, the long-term costs to homeowners could, in some situations, be far less than that a conventional sewering project, especially in less densely developed areas.

More preferable to numerous individual onsite systems would be to have local bylaws and regulations that promote community-level shared wastewater treatment systems for new subdivisions, or to build smaller systems that serve just a portion of a community. This would offer an intermediate solution between single home units, and multi million-gallon-a-day municipal treatment works. These shared systems can achieve high levels of nitrogen removal.

The logistics of managing numerous innovative wastewater systems is another challenge for towns, but Barnstable County created a new approach by requiring contractor participation in an internet-based reporting system to manage the 1,300 alternative septic systems on Cape Cod. The operating costs and performance of shared systems is often far superior to individual onsite systems, but many towns have not worked out liability issues for their maintenance, repair and replacement of these community systems. Shedding further light on the importance of operation and maintenance of these systems for their proper operation, in 2007 Barnstable County Report titled “Performance of innovative alternative onsite septic systems for the removal of nitrogen in Barnstable County, Massachusetts 1999-2007” Go to our MASSTC webpage to read the report.

Wareham Nitrogen Bylaw Articles

The Town of Wareham is one Buzzards Bay watershed community that has been struggling with these issues. The recent upgrade of the town’s wastewater facility to meet stringent discharge limits, together with the town’s efforts to expand sewering to dense villages near shore is expected to dramatically improve water quality, especially in the Wareham River estuary. However, the town has tremendous growth potential, with thousands of new septic systems that could be constructed. These new septic systems will eventually negate the benefits achieved by the town’s new sewering and wastewater facility upgrade.

In the summer of 2006 we drafted a nitrogen-loading bylaw for the Wareham Planning Board that we modeled after others we have seen on Cape Cod and elsewhere. Town officials found the 12 page-long regulations too complicated and cumbersome.

In January 2007, we went back to the drawing board and came up with a one-page nitrogen loading general bylaw that we believed was far easier to understand and implement. This draft bylaw also met the goals of the Board of Selectmen to place greater reliance on advanced onsite wastewater systems. Moreover it was designed so that market forces and the property owner, particularly for larger projects, could develop their own solutions. In other words, you could comply with the bylaw, not just by using nitrogen removal septic systems, but also by using other innovative approaches, like protecting land elsewhere in the town, and compliment other bylaws being considered, like transfer of development rights (TDRs). We believe flexible bylaws would work best in a town like Wareham, and could be modified at future town meetings based on any new findings of the Massachusetts Estuaries Project.

In February 2007, the Wareham Board of Selectmen voted to place this General Bylaw on the April 30, 2007 Town Meeting Warrant for a vote. The bylaw established a loading standard that translated into 2.5 bedrooms per acre equivalent allowable loading for conventional wastewater disposal, and allowed for three bedroom homes on any lot (that was already buildable) with the installation of a nitrogen removal system. (see note 1). At the request of the Board of Selectmen, BBNEP Executive Director Dr. Joe Costa presented the bylaw at Town Meeting. It was argued that the proposed bylaw was flexible enough to encourage innovative solutions, and compliment other bylaws being considered, like transfer of development rights (TDRs) and open space protection nitrogen credits. If a single-lot property owner could not make the standard, they would need to install a nitrogen removal system for new construction, or when they needed to replace failed systems, or when adding bedrooms on small lots. Property owners would be guaranteed an as of right of 3 bedrooms per acre, no matter how small the lot (assuming it was building under other laws), as long as you installed a nitrogen removal system. The bylaw exempted all sewered areas, and areas planned to be sewered under the town’s wastewater facility plan.

This was a General Bylaw, and only required a simple majority to pass. By a vote of 177 to 119, the article failed.

In response to the failure of the spring 2007 Town Meeting to pass the bylaw, the Board of Selectmen, and other town officials, during a joint meeting in July 2007, requested that the bylaw be revised for the fall 2007 Town Meeting to create more exemptions for existing homes. Specifically, the town officials wanted to create more exemptions in order to avoid hardships to homeowners living on fixed incomes. This issue was believed to be an important reason in the defeat of the measure in the Spring 2007 Town Meeting. This updated general bylaw, and our cover letter, are available in the link in the box at the top of this page.

The Fall 2007 bylaw article is nearly identical to the Spring 2007 bylaw except the additional exemptions for existing septic systems are provided, essentially “grandfathering” all of them. Only in certain circumstances would an existing septic system need to be replaced with a nitrogen removal septic system. Situations where a nitrogen removal system would need to be installed include a) at the time of property transfer, but only if the Board of Health says it is a failed system that needs to be replaced anyhow, and b) residential additions that exceed three bedrooms per acre, but again only if the Board of Health says the septic system is inadequate and needs to be replaced or upgraded. Other changes to the bylaw include changing the standard to three bedrooms per acre (18 pounds per acre) because the previously proposed 2.5 bedrooms per acre was confusing (see note 1), especially because 3 bedrooms per acre was established as an as of right construction limit. Other changes in the Fall 2007 bylaw included providing more flexibility to the Board of Health in defining types of innovative onsite wastewater treatment systems that meet the bylaw requirements.

The Selectmen also requested two other bylaws be drafted; one to address cranberry bog discharges, and a “no net nitrogen increase” bylaw that would require nitrogen offsets for larger development projects.

Will this wastewater nitrogen loading bylaw restore Wareham’s waters?

No! This bylaw principally reduces new additions of nitrogen from new development. For the past decade, the Wareham River has had poor water quality. Water quality in the Wareham River estuary began to improve dramatically when the sewage treatment facility was upgraded in 2006, and water quality will continue to improve as the effects of the sewer expansion are felt in the bay. However, the town has the potential for 1000s of new units to be built outside of the planned sewered areas. These new homes cannot be tied into the existing wastewater plant because it will soon be at capacity. If all these new homes have conventional systems installed, it will eliminate all the benefits achieved through tens of millions of dollars in sewer plant improvements and town sewering.

Preliminary results from the Massachusetts Estuaries Project suggest that nitrogen inputs from existing development is still too high, and many existing septic systems may still need to be either sewered or eventually replaced with more advanced nitrogen removing systems.

Cranberry Bog Construction Performance Standards Bylaw

Both Wareham town officials and residents have expressed a desire to better manage the release of nutrients and pesticides from cranberry bogs. The BBNEP has noted at previous meetings with town officials that existing cranberry bogs (in fact any land in agriculture production) is largely exempt from local bylaws and zoning. However, land not in agricultural production does not have such an agricultural exemption. Based on this legal landscape, the BBNEP drafted a Cranberry Bog Construction Performance Standards general bylaw (link above right) to set standards for the construction of new bogs, and expansion of old bogs not exempt from state wetland laws. This bylaw will require that bogs be constructed according to guidelines prepared by the UMass Cranberry Experiment station to minimize the release of fertilizer and pesticides to the environment (see link above right). The key provision of this bylaw is that all new bogs need to be constructed above the water table. This requirement, together with the requirement for organic matter in the soils below them creates a confining layer beneath the bog that will help minimize the leaching of fertilizer and pesticides in the water table. A variance process was created to allow bog owners to come up with alternative designs that are as equally protective. The board of health is identified as the enforcement board for this bylaw because one of its principal duties is to identify water table elevations for the installation of septic systems.

Info for Fall 2007 Wareham Town Meeting

October 22, 23, and 30, 2007

BBNEP presentation to Selectmen on 9 October 2007 (617 kb pdf file).

Barnstable County Department of Health and Environment has issued an important report on the performance of nitrogen removal onsite systems on Cape Cod. It is titled Performance of innovative alternative onsite septic systems for the removal of nitrogen in Barnstable County, Massachusetts 1999-2007 (365 kb pdf). Read also our cover letter alerting the town about the report.

September 9, 2007 Cover Letter from BBNEP discussing the proposed draft bylaws.

Article 36 Fall 2007 Article: Wastewater Nitrogen Management (53 kb pdf file).

Article 37 Fall 2007 Article Cranberry Bog Construction Standards (46 kb pdf file).

Link to the Full Town of Wareham Fall 2007 Warrant

UMass Cranberry Experiment Station Mineral Soil Bog Construction fact sheet (150kb pdf).

These nitrogen articles failed by a narrow margin and the cranberry bog article was tabled. The Wareham Board of Selectmen reintroduced new nitrogen management articles at the Fall 2008 (a similar comprehensive article requiring N-removal septic systems for new construction) and Spring 2009 town meetings (requiring N-removal new septic systems with discharges between 2,000 and 10,000 gpd, i.e. large businesses, large housing projects, etc.). These articles also lost by narrow margins.

Read this 2009 nitrogen bylaw article for large septic systems.

Read this resident-produced outreach flyer for the 2009 article.

  • A small community wastewater system will soon be built in North Falmouth, that will serve 200 homes, at a average cost of more than $62,000 per unit. Taxpayers approved at town meeting to pay 20% of this cost, with the remaining $40,000 per home being charged to each homeowner connected to the system (in a 20 year betterment).
  • The Town of Wareham recently upgraded its wastewater facility at a cost of $38 million. The upgrade enabled the plant to discharge as little as 4-ppm nitrogen during eight months of the year. It also enabled the town to expand sewering to additional areas of town. In a recent sewer expansion in Wareham, the betterment costs to bring sewer to the village totaled $20,000 per home (paid on the homeowner’s tax bill over 20 years). In addition to the betterment tax assessment, there was a one-time sewer connection fee of $3,500, and an annual sewer service fee of $662.
  • A recently approved sewer betterment in the Town of Marion to connect more homes to the existing sewage treatment facility will cost each homeowner $30,000.


2006 Model Zoning Bylaw

This link shows the detailed, but complex model nitrogen loading zoning bylaw that we proposed to the Wareham Planning Board in 2006. (Like all bylaws, this example is written in the standard “legalese” of a Zoning Bylaw. An important concept in this bylaw is that it set nitrogen standards only for the watersheds of threatened embayments. It also allowed more loading in upper portions of the watershed to account for natural losses.)

No Net Nitrogen Increase Bylaw

Because of the complexity of creating a no-net increase nitrogen bylaw, the Buzzards Bay NEP requested that the Board of Selectmen establish a subcommittee to help guide the BBNEP on a number of issues for the eventual development of a warrant article for the Spring 2008 town meeting. Issues that must be resolved include the size of a development to which the bylaw would apply, the role of Transfer of Development Rights, and a number of other zoning issues.

Note 1: The original bylaw used a per capita load of 3 lbs per person. This is the actual wastewater loading with an assumed 50% loss term or attenuation of the nitrogen in the upper watershed during its transit to the bay for an upper water contribution. The loading standard of 7.5 pounds per acre in the spring 2007 article also had this loss term, and the standard was put forth as 2.5 bedrooms times 3 pounds per bedroom is 7.5 pounds per acre. We had used this loading model for proposed Wareham subdivision regulations in 2002. The new bylaw does not include this loss term, and the bedroom loading rate is set at 6 pound per person (the actual number is 5.9, but the bylaw rounds up as a margin of safety and to simplify the calculations). Thus the new standard is 3 bedrooms times 6 pounds per bedroom or 18 pounds per acre. The way the bylaw is written, any commercial development not tied into the sewer system can more easily achieve the standard.