Local groups, EPA settle two Cape suits

After months of negotiations, local environmental groups have agreed to settle two federal lawsuits seeking to force the US Environmental Protection Agency to reduce pollution flowing from septic tanks into Cape Cod waters.

Details of the deal, which has yet to be filed in court, have not been disclosed, but local officials have estimated that fixing the problem could cost billions of dollars.

Republicans in Congress immediately attacked the agreement, accusing the EPA of a “disturbing trend’’ of settling lawsuits as a surreptitious way to expand federal regulatory authority.


The Boston-based Conservation Law Foundation and Buzzards Bay Coalition have argued that the EPA failed to fulfill its responsibilities under the Clean Water Act to oversee a regional water quality plan on Cape Cod. As a result, the advocates said, nitrogen and other remnants of sewage from septic tanks are seeping into the ground water and polluting estuaries, bays, and other bodies of water from Bourne to Orleans.

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The plaintiffs and the EPA disclosed in court last week that they had a deal but they have asked the US District Court in Boston to give them until May to enter the agreement in writing.

“Due to the ongoing nature of the negotiations, we will not comment on the agreement,’’ said Christopher Kilian, director of the foundation’s clean water and healthy forests program.

EPA officials acknowledged the accord but said they could not discuss its details because continuing negotiations over the final language “are confidential litigation matters.’’

“EPA shares the view that Cape Cod is an environmental treasure, and that addressing nitrogen pollution as a water quality concern is a high priority,’’ said David Deegan, an EPA spokesman in Boston. “Under the Clean Water Act, all levels of government have an important role to play to address this important issue.’’


But leading congressional Republicans have raised concerns with top EPA officials about the agreement, arguing in a letter sent last week to EPA Administrator Lisa P. Jackson that the lawsuits lacked merit.

“Since neither allegation [of the lawsuits] is true, we were very surprised to learn that EPA is choosing to settle these cases, rather than to honor the limits of its authority under the Clean Water Act and vigorously defend these cases,’’ wrote House Transportation and Infrastructure Committee chairman John L. Mica of Florida, Senate Environment and Public Works Committee ranking member James Inhofe of Oklahoma, House Water Resources and Environment Subcommittee chairman Bob Gibbs of Ohio, and Senate Water and Wildlife Subcommittee ranking member Jeff Sessions of Alabama.

They added: “We are concerned that EPA has demonstrated a disturbing trend, whereby EPA has been entering into settlement agreements that purport to expand federal regulatory authority far beyond the reach of the Clean Water Act, and has then been citing these settlement agreements as a source of regulatory authority in other matters of a similar nature.’’

The Republicans, pointing to a similar settlement to clean up pollution in Chesapeake Bay, suggested that Jackson faced “personal liability’’ if she engaged in “the expenditure of federal funds to carry out unauthorized actions.’’

EPA officials declined to respond in detail to the letter.


“EPA has received the letter and is reviewing it,’’ Deegan said.

Mark Rasmussen, president of the Buzzards Bay Coalition, called the Republicans’ allegations outlandish.

“It’s bizarre that congressional representatives from Oklahoma, Arkansas, Florida, and elsewhere think the EPA is overstepping its boundaries,’’ he said. “I think they need to come up and see what’s going on in the waterways of one of the nation’s strongest tourist economies.’’

Killian added: “It is our experience that EPA has been a formidable opponent in clean water cases, and to imply that the agency is colluding with environmental organizations to expand its own authority is preposterous.’’

Andrew Gottlieb, executive director of the Cape Cod Water Protection Collaborative, an agency of Barnstable County that has opposed a federally imposed solution, said he has seen “no evidence of an inside deal.’’

While he was unaware of the details of the settlement, Gottlieb, who observed the beginning of the negotiations, said he expected it would involve “a higher level of federal involvement’’ in managing wastewater on Cape Cod.

David Abel can be reached at Follow him on Twitter @davabel.