Tisbury board of health modifies draft nitrogen regs

The board is poised to vote on new regulations that would significantly impact property owners in the Tashmoo and Lagoon Pond watersheds.

The Tisbury board of health unanimously approved their nitrogen regulations for the Lagoon Pond and Lake Tashmoo watersheds, requiring property owners to install enhanced denitrification systems. Lake Tashmoo, shown here. — Nelson Sigelman

The Tisbury board of health has revised its latest set of draft nitrogen regulations for the Lagoon Pond and Lake Tashmoo watersheds. The latest changes, while intended to provide some relief to property owners who would be required to install advanced and costly septic systems to reduce nitrogen loading in the ponds, further complicate the regulations.

The proposal would require property owners in the two watersheds who meet one of four specific triggers to install advanced septic systems to reduce nitrogen that could cost as much as $22,000 to install and up to $2,000 annually to maintain, based on industry expert estimates.

Chairman Jeffrey Pratt called nitrogen loading an “important ecological and biological concern,” and one that shouldn’t be “brushed aside,” at a meeting of the board last Tuesday.

Board of health member Malcolm Boyd, who has had little to say over the course of recent meetings and public hearings, said he would wait to express his feelings until all members were present and they could take a vote. “It will give me time to think about it better,” he said.

Absent Tuesday was Michael Loberg, who has been at the forefront of the push to impose new nitrogen regs. The board meets next at 4 pm on Tuesday, Oct. 25, when a vote is expected. The board of health has resisted calls to bring the changes to town meeting, citing its inherent authority.

On Tuesday, Mr. Pratt said that nitrogen pollution was a public health threat and that the board was required by law to address it. With respect to town meeting, he said, “There is no precedent for a board of health regulation to be voted on by the public at large. And that includes all regulations and bylaws that govern boards of health in the state of Massachusetts.”

Advanced septic systems, or enhanced denitrification systems, are intended to remove a larger amount of nitrogen than a standard Title V septic system. The new regulations require “on-site denitrification wastewater disposal technology that is intended to meet a nitrogen groundwater discharge standard of not more than 19 milligrams per liter.”

According to the Martha’s Vineyard Commission database, there are 808 septic systems in the Lagoon Pond watershed and 1,058 in the Lake Tashmoo watersheds.

Joan Malkin of Chilmark, who has alternately described herself as an unpaid consultant and a “volunteer,” helped draft the regulations. On Tuesday, in the absence of Mr. Loberg, Ms. Malkin, who is also a member of the Martha’s Vineyard Commission, led Mr. Pratt and Mr. Boyd, along with health agent Maura Valley, through the proposed changes intended to address concerns most recently voiced by residents during the last public hearing on Sept. 13, where residents said the high cost and the uncertainty of the board of health were unfair.

“I subsequently met with Michael and went over these issues with him and tried to think of a way — I don’t want to go so far as to say solve them — but address them in a way which seem equitable to all,” Ms. Malkin said.

Modifications included town-supported subsidies for failed Title V septic systems; a sewer district proposal that could postpone the effective date for those who fell within it; and an exemption for homeowners in an approved sewer district. The board of health would also look to conduct well testing.”

Although speakers at public hearings expressed cost concerns, Ms. Malkin said it was the cost to replace failed Title V systems where the inequity was most “palpable.”

“It’s a little different than the other three scenarios, because you’re already putting on an addition to your house, or you’re already selling your house, or you’re already building a new house, where the cost to put an enhanced denitrifying system is not nearly as material,” Ms. Malkin said. “So the thought was, where the equity falls the heaviest is on those with septic failures.”

The draft states that the town could come up with a subsidy program for “eligible property owners” that would cover “some portion” of the cost of an enhanced system. Ms. Malkin specified that a subsidy program would be decided upon by the Tisbury board of selectmen and possibly would need to be approved at town meeting.

“That’s pretty magnanimous,” Mr. Boyd said.

Sewer districts

Under another proposal, the effective date to install an enhanced denitrification system would be postponed for property owners in a sewer district designated by the Tisbury wastewater planning committee or the Tisbury sewer advisory board that may eventually be approved by the town for sewering.

“You’re not totally exempt if you’re in a proposed district, but you may get a bye for awhile,” Ms. Malkin said.

If the town approves the district, those within it would be exempt from the regulation entirely. If the town doesn’t approve the district, then homeowners would be required to install an enhanced system.

In what Ms. Malkin called an “independent but related board of health initiative,” she proposed that the board reactivate current test wells to test the groundwater; however, neither Ms. Malkin nor board of health members knew where the test wells were. Ms. Valley explained to them that a testing protocol was never put into place.

The goal of the tests, according to Ms. Malkin, would be to verify the Massachusetts Estuaries Project (MEP) conclusion, which was based on computer modeling. Ms. Malkin suggested that the board relocate the test wells, based on the geography of the watershed, in order to ensure that the wells are located in an area where groundwater reaches the ponds.

“The concept of this is to test to verify that the nitrogen from septic systems is in fact the cause of the eutrophication of the ponds,” Ms. Malkin said. “Right, valuable information to have to turn to,” Mr. Boyd said.

A volunteer

Despite her prominent role, in a testy phone conversation with The Times on Tuesday, Ms. Malkin downplayed her involvement or advocacy. She said that she considered herself a volunteer, not a consultant, to the board of health. As a retired lawyer, she said she has experience in drafting and asking questions, and “likes to bring her skills to the table.”

Although written into the most recent draft, she called the changes she proposed at the meeting her ideas, and not the ideas of the board of health.

“The specifics of what I wrote, it carries no weight with anybody,” Ms. Malkin, a member of the Chilmark planning board and conservation commission, said. “I meet with them to help them think through things. I don’t make recommendations. I’m just a volunteer.”

Asked if she endorsed the proposed regulations, Ms. Malkin said, “I don’t endorse them or not endorse them. I don’t have a view.”

Asked by The Times Wednesday if she plans to install an enhanced denitrification system on her pondside Chilmark property, where she is adding a guest house, she said that it would be “uneconomical” because she is creating affordable housing and has already had her septic system approved. Ms. Malkin said that if it were required, she would be “delighted” to install one.

“Adding an enhanced denitrification system would make it uneconomical to do it,” Ms. Malkin said. “We’re making a significant contribution to the community for affordable housing.”