On July 20, 2022, U.S. District Court Judge Allison D. Burroughs dismissed the lawsuit filed on February 16, 2021 by the Conservation Law Foundation (“CLF”) against the Town of Barnstable alleging violations of the federal Clean Water Act (“CWA”).
Commenting on the ruling, Barnstable Town Manager Mark S. Ells said, “We are pleased with the Judge’s decision to dismiss this unfounded suit against the Town. The Town is committed to preserving the environmental health of the waters of Cape Cod, and we are appreciative that the Judge recognized the Town’s efforts to protect those waters through the implementation of the Town’s Comprehensive Wastewater Management Plan to reduce nitrogen in the waters of the Town of Barnstable, including the Lewis Bay Watershed.”
CLF had alleged that the Town was violating the CWA because nitrogen from effluent released from the Town’s Wastewater Treatment Facility (the “Facility”) eventually reached the waters of the Lewis Bay Watershed. In granting the Town’s motion to dismiss, Judge Burroughs noted that the Facility’s groundwater discharges are properly subject to regulation by the state and further noted that the Town’s Facility is fully permitted under the state regulatory framework for groundwater discharges. Judge Burroughs agreed with the Town that nitrogen in effluent that travels through groundwater for more than 21 years over a distance of more than 1.5 miles before it reaches navigable waters cannot be considered the “functional equivalent of a direct discharge” into those waters. She therefore concluded that such discharges do not fall within Clean Water Act jurisdiction.