A challenge to Tisbury’s nitrogen regulations

Tisbury resident Dan Seidman is questioning the legality of the Tisbury board of health’s newly adopted nitrogen regulations, a controversial requirement among Realtors and homeowners who say it’s another added cost to housing and living on the Island.

Seidman, at a recent health board meeting, suggested that it was not legal for the town to force a property owner to install a new, more advanced septic system when the existing septic system is functioning just fine under Massachusetts laws.

“I don’t believe you are allowed to tell people you have to replace something if it is legally acceptable in Massachusetts,” Seidman said. “You are effectively condemning a functioning system.”

The health board’s response was that they believe the regulation is legal. If Seidman wants to challenge the regulation through the courts, so be it. But with the backing of the town’s legal counsel when the rules were passed, the board believes they are acting within the state’s guidelines. 

Tisbury’s nitrogen regulations — which the board voted through in September last year — went into effect in the beginning of 2024, and affect some 1,500 properties near Tashmoo and the Lagoon. The intention is to keep nitrogen out of the town’s already severely impaired waterways, and the buyer or seller of a home would be required to install nitrogen-removing technology — often called innovative alternative systems, or I/A systems. The technology can be quite expensive, as much as $50,000, some in the inspection field say.

Seidman isn’t the first to caution the board against implementing the regulations. The Cape Cod and Islands Realtors Association urged the board to reconsider last year, noting that it would ultimately increase housing prices even more, and make Tisbury that much more unattainable.

But health board members have maintained that cleaning up and keeping the Island’s watersheds clean is imperative. Aside from its being the right thing to do environmentally, without action from the town, the state could impose its own will.

At the board of health meeting, Tisbury resident and former select board member Melinda Loberg said that the state has already imposed new wastewater rules on Cape Cod, and could do the same on the Vineyard. The Cape regulations — where water quality is in far worse condition than on the Island — requires towns to come up with a mitigation plan to treat impaired watersheds, or else require every homeowner near coastal embayments to upgrade their septic systems with special nitrogen-removing technology within two years.

Board of health members said that instead of requiring the shift to the nitrogen-removing technology overnight, they are implementing the changes gradually, and only when a home is transferred.

During a back-and-forth, board chair Malcolm Boyd said they would wait to see Seidmen in the courts, if he were to challenge the move. Seidman responded that it was unfair to have him pay the legal fees to challenge the rules, and instead suggested contacting the state attorney general to see if the regulations were legal. He said that he has tried multiple times to ask the state’s highest attorney, but hasn’t received a response. “That’s your tax dollars at work,” he said.