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  • Miyares and Harrington, LLP

DEP Set to Adopt New Regulations Impacting Septic Systems and Water Management Act Registrations

We are closely monitoring two sets of regulatory amendments proposed by the Department of Environmental Protection (the “Department”). The first change impacts regulations governing septic systems, 310 CMR 15.000. The Department will accept written comments on these changes until 5 p.m. on January 30, 2023. The second proposed regulatory amendment affects municipal water withdrawals under the Water Management Act, 310 CMR 36.00. The Department’s comment period is now officially closed for these regulatory revisions, and we expect a decision from the Department soon. Stay tuned for additional information!

Septic System (Title 5) Regulations

The Department’s proposed changes to the Title 5 regulations are designed to address nitrogen pollution from septic systems in coastal areas. The regulations mandate that owners of septic systems within Nitrogen Sensitive Areas replace or upgrade their existing systems to utilize Best Available Nitrogen Reducing Technology (“BANRT”), unless their water district has obtained a Watershed Permit for the watershed or filed a Notice of Intent for a Watershed Permit. A map of Nitrogen Sensitive Areas is available here. As proposed, a facility owner, that is, the owner of the septic system, will need to upgrade their system within five years from the adoption of the regulation if the system is located within a Nitrogen Sensitive Area, or within five years from the Department designating the watershed as a Nitrogen Sensitive Area if not already in such an area.

Under the draft regulations, once a facility owner has installed BANRT, they will not be required to upgrade to subsequent BANRT unless the system has failed and must be upgraded, there is an alteration to or change in use of the facility such that it is determined to be new construction, or the system is failing to protect the public health, safety and the environment. Likewise, there is a limited exemption for facility owners that installed a new system within one year of adoption of the regulation. New construction is also required to incorporate BANRT. A waiver is available for new construction if the water district holds the required Watershed Permit.

As stated above, municipalities can seek a Watershed Permit to relieve individual facility owners of the replacement/BANRT requirement. To receive a Watershed Permit the applicant(s) would be required to demonstrate that: (1) necessary nitrogen pollutant loads will be achieved within the 20-year life of the permit; or (2) that reasonable progress towards those reductions will be achieved. Reasonable progress criteria include consideration of financial costs, environmental impacts, feasibility, and at least a 75% reduction in the nitrogen loads necessary to achieve compliance, or other reduction levels approved by the Department based upon circumstances preventing full compliance. The stated goal is that municipalities will create approved watershed protection plans and help to relieve residents from the need to upgrade their septic systems.

As mentioned above, written comments may be submitted until January 30 at 5 p.m. If you would like assistance crafting comments, please do not hesitate to contact us.

Water Management Act Regulations

The Water Management Act (the “Act”) regulations establish standards, criteria, and procedures to manage water withdrawals throughout the Commonwealth. Withdrawals may be made pursuant to registrations or permits, with registration reserved for users with a certain level of water usage that registered their withdrawals as of January 1, 1988. Withdrawal by registration under the Act is treated differently from withdrawal by permit. Specifically, the Act protects a registrant's entitlement to existing withdrawals, provided the registrant timely filed a registration statement and renewals. The current regulations include two conditions on registrations only – metering and reporting requirements.

The Department proposes to further condition registrations by restricting nonessential outdoor water use by registrants during times of drought. Nonessential outdoor water use includes lawn watering, filling swimming pools, washing cars by means of a hose, and washing down buildings, parking lots, driveways and sidewalks. Essential water uses would be exempt from the restrictions. Essential uses would include uses for health and safety purposes, the core function of a business, food and fiber production, including vegetable gardens and watering livestock, and water use required by a statute or regulations.

We will continue to monitor the state of these regulations and follow up with a newsletter article.



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