Town of Barnstable, MA Article XV Protection of Saltwater Estuaries

[Adopted 6-30-2008]

§ 360-45 Interim regulations.

[Amended 2-10-2009]

A. Purpose.

(1) The findings of a state-wide estuary investigation indicate that a substantial portion of the Town's saltwater estuaries are in jeopardy from the long-term buildup of nitrate-nitrogen, primarily from the subsurface discharge of sewage effluent. These findings have caused the Massachusetts Department of Environmental Protection to establish total maximum daily loads (TMDL) for nitrogen for the watershed areas of these estuaries. "Watershed" is defined as the area of land from which water flows downhill into a particular body of water. In these nitrogen-impaired estuaries the TMDL will require an actual reduction in the amount of nitrate-nitrogen discharged into these embayments. Since most of the nitrate-nitrogen in these watersheds is from subsurface discharge of sewerage effluent into the groundwater that flows to these embayments, and since it is likely that a plan for corrective action will take years to formulate and implement, the Board is adopting the following interim regulations to mitigate the adverse impact to these estuaries from such discharges. The Town has long recognized the need to protect its water resources and has imposed discharge limits on subsurface disposal of sewage in other nitrogen-sensitive areas. The restrictions proposed herein are similar to those imposed by Town ordinance and/or Board of Health regulation in other nitrogen sensitive areas in the Town. These regulations are temporary and will be in effect only until the Town adopts and implements a Comprehensive Plan to address the nitrogen reduction required in these estuary systems by the proposed TMDL.

(2) To date, final reports have been produced for Popponesset Bay, Three Bays and the Centerville River watersheds. All three of these estuary systems will require a reduction in total nitrogen discharge in order to meet the state-mandated TMDL. Further reports are expected on Lewis Bay and Barnstable Harbor.

B. Restrictions. No permit for the construction of an individual sewage disposal system on any building lot shall be granted within the watersheds for the estuaries that have been identified as requiring a reduction in the current TMDL of nitrate-nitrogen as identified by the map entitled "Massachusetts Estuary Project, Zones of Contribution to Saltwater Estuaries, Town of Barnstable, March 10, 2008," unless the following standards are met:

(1) The maximum allowable discharge of sanitary sewage, based on the sewage design flow criteria listed in 310 CMR 15.203, Title 5, of the State Environmental Code, shall not exceed 440 gallons per 40,000 square feet of lot area, with the following exceptions:

(a) For approved building lots on which no building currently exists and that are less than 30,000 square feet in area, the maximum allowable sewage discharge shall be 330 gallons.

(b) For parcels with existing buildings, the maximum allowable flow shall be either 440 gallons per 40,000 square feet, except as described in Subsection B(1)(a) above or whatever is currently permitted, whichever is greater.

(2) Nothing in this regulation shall prohibit the approval by the Board of Health of any application involving the maintenance, repair or alteration of an existing individual sewage disposal system, provided that said application does not involve an increase in design flow as defined by existing Board of Health regulations. Where an increase in design flow is involved, the applicant must demonstrate compliance with this regulation.

C. Variances. A variance from this regulation may be granted by the Board of Health only if the applicant can demonstrate that:

(1) Connection to Town sewer is not available; and

(2) That enforcement thereof would do manifest injustice; and

(3) The alternative proposal will provide the same degree of environmental protection as a design in full conformance with this regulation. This standard shall be met by a site/septic design which results in equilibrium concentrations of nitrate/nitrogen at the down-gradient property line not exceeding five ppm, utilizing the Cape Cod Commission formulas found in its Technical Bulletin 91-001 (final). In undertaking this calculation, the applicant may utilize off-site lands located elsewhere in the Estuaries Contribution Area as defined by the map entitled "Massachusetts Estuary Project, Zones of Contribution to Saltwater Estuaries, Town of Barnstable, March 10, 2008," provided that:

(a) The existing nitrogen loading for the off-site property is included in the calculations; and

(b) A deed restriction limiting the off-site property to the current nitrogen loading as stated in the calculations and running to the Barnstable Board of Health or other entity suitable to that Board is recorded at the Barnstable Registry of Deeds in the titles to both the subject property and the off-site property. The restriction shall be in a form suitable to the Barnstable Town Attorney. Proof of recording shall be provided to the Board of Health, the Town Assessing Department and the Town Building Department prior to the issuance of a DWIP for the subject property.

D. Craigville Beach District implementing regulation. Notwithstanding anything to the contrary contained in Subsections A through C above, this interim regulation shall apply to all properties within the Craigville Beach Zoning District as a Craigville Beach District implementing regulation unless and until a property is connected by a building sewer to the public sewer system. In all other respects, the provisions of Subsections A through C above shall apply to all properties within the Craigville Beach District.

[Adopted 1-19-2011 by Ord. No. 11-01 of the Barnstable County Assembly of Delegates pursuant to Ch. 716 of the Acts of 1989 (Cape Cod Commission Act)]