Minutes
Comprehensive Wastewater Management Planning Committee
Approved (8/7/18) Meeting Minutes
Meeting
May 17th, 2018
Posted: 7:00
Posted Location: Wellfleet COA
715 Old Kings Hwy, Wellfleet MA 02667
ATTENDEES:
Alex Hay, Chair
Curt Felix
Patrick Winslow
Richard Wulsin
Fred Vanderschmidt
GUESTS:
Select Board -Helen Miranda Wilson, TA Dan Hoort, BOH Janet Drohan, Tom Flynn
Old Business:
Next Meeting Scheduled For:
No date set
Minutes:
Approval of Minutes from 4/16/2017
Moved Alex Hay
Second Pat Winslow
Approved 5 -0
New Business:
208 Plan Update Obtaining a Consistency Determination:
A review of the requirements of the 208 Consistency Determination took place.
See Appendix
The need of a Water Management Authority in Wellfleet was determined.
A long discussion ensued regarding what person or entity would assume responsibility as the WMA:
Person – Staff/New Hire
- < >< >< >< >
Looking at what the other county towns are doing.
Potential for DPW/Natural Resources Joint Effort
Implementation Committee?
Do we need to form one?
Motion to adjourn 8:30 PM
Moved Alex Hay
Seconded Pat Winslow
Approved 5-0
Appendix:
Guidance on Section 208 Plan Update
Obtaining a Consistency Determination
April 2018
Exceptional development pressure in the latter half of the 20th century motivated Cape Cod
residents to seek a coordinated regional land use approach to protect the region’s natural
resources from the consequences of uncoordinated growth. As a result, the Cape Cod
Commission (Commission) was created by the Cape Cod Commission Act (Act) in January 1990.
The Cape Cod Commission is Barnstable County’s regional planning and regulatory agency and,
through the Act, is responsible for balancing the protection of the region’s unique environmental
resources with appropriate economic development.
Specifically, one purpose of the Commission is to protect groundwater, surface water and ocean
water quality. Through the Act, the Commission is responsible for furthering the provision of
adequate capital facilities, coordinating those facilities with the achievement of other goals, and
anticipating, guiding and coordinating the rate and location of development with the capital
facilities necessary to support such development.
In 2013, in response to overwhelming evidence that nitrogen from septic systems across the
region are impacting coastal water quality, the Commonwealth of Massachusetts directed the
Cape Cod Commission to update the Area Wide Water Quality Management Plan (208 Plan),
pursuant to Section 208 of the Federal Clean Water Act. Recognizing that Cape Cod
communities had, in many cases, identified strategies to address this issue but had struggled
with implementation, the Commission committed to an extensive stakeholder engagement
process to help identify barriers to success. A key barrier identified was the mismatch between
the planning and regulatory framework and the unique and shared nature of the water resources
impacted. Planning and regulation traditionally occurred at the town-wide scale; however, 32 of
the 53 watersheds to sensitive coastal embayments on Cape Cod are shared by more than one
town.
Municipal Comprehensive Wastewater Management Plans (CWMPs) have traditionally been
reviewed as Developments of Regional Impact (DRIs), which are defined by the Act as a
development which, because of its magnitude or the magnitude of its impact on the natural or
built environment, is likely to present development issues significant to or affecting more than
one municipality. DRI review is not well-suited for town water quality improvement initiatives
which are systemic, not necessarily associated with any particular parcels of land, might not
involve ‘development’ in its traditional sense, and which may not have discrete permitting and
implementation timelines. Water quality initiatives are often long-term projects subject to
changing conditions over time and include municipal infrastructure necessary to support
development. One of the most important determinations the Commission makes during DRI
review is whether there are inherent benefits from a project to the region. Given the region’s
pressing water quality issues, the benefit of these town water quality efforts should be
presumed.
Guidance on Section 208 Plan Update – Obtaining a Consistency Determination Page 2
The unique and multijurisdictional nature of the issue on Cape Cod called for a new approach.
The 208 Plan, which was certified and approved by the Commonwealth of Massachusetts and
the Environmental Protection Agency in September 2015, provides a streamlined regulatory
pathway for more efficiently and effectively achieving water quality goals through the
development of targeted watershed management plans that address nutrient remediation
through a variety of approaches.
One aspect of the streamlined regulatory approach is the Commission’s review of municipal
water quality plans and projects, which are no longer reviewed as DRIs, but instead for
consistency with the 208 Plan. The following provides guidance on obtaining and maintaining
consistency with the 208 Plan.
DEFINITIONS
The following are definitions of terms referenced in this document.
208 Plan: The Cape Cod Area Wide Water Quality Management Plan, developed pursuant to
Section 208 of the Clean Water Act.
Development of Regional Impact (DRI): A development which, because of its magnitude or the
magnitude of its impact on the natural or built environment, is likely to present development
issues significant to or affecting more than one municipality.
Waste Treatment Management Agency (WMA): The entity, or entities, designated as the
responsible party for planning and implementation of local water quality improvement plans, as
required by Section 208 of the Clean Water Act. On Cape Cod, the 15 Cape Cod towns are the
designated WMAs.
Water Quality Improvement Plan: A plan proposed by a WMA that describes the extent of the
nutrient related issues within a town, watershed, or subwatershed and a program for
implementing the necessary infrastructure and strategies to reduce nutrient impacts on the
quality of coastal waters.
Water Quality Improvement Project: A project proposed by a WMA intended to reduce nutrient
impacts on the quality of coastal waters.
REGIONAL REGULATORY REVIEW
The 208 Plan recommended that the Commission revise its regulations to provide a simpler and
more supportive process for the review of municipal water quality improvement plans and
projects.
After much consideration, it was determined that these types of plans and projects should be
reviewed exclusively for consistency with the 208 Plan. The 2017 Implementation Report, an
addendum to the 208 Plan which documents successes to date and next steps at the local and
regional levels, recommended that the Commission adopt regulatory amendments to allow for
Guidance on Section 208 Plan Update – Obtaining a Consistency Determination Page 3
208 Plan consistency review in place of traditional DRI review for municipal water quality and
wastewater capital plans and projects.
In February 2018 the Commission proposed amendments to Chapter A of the Cape Cod
Commission Regulations: Enabling Regulations Governing Review of Developments of Regional
Impact (Enabling Regulations). In April 2018 the amendments were approved by both the
Barnstable County Assembly of Delegates and Board of Regional Commissioners.
The revised enabling regulations exempt towns from DRI review for water quality plans and
projects that have nutrient remediation as a primary purpose. The amendment applies equally
to plans and projects previously reviewed and approved by the Commission as DRIs, and
modifications to such plans or projects will not require further DRI review.
The Commission proposed that DRI review be replaced with a Commission staff-level review
and approval through a determination by the Commission’s Executive Director that local plans
and projects are consistent with the 208 Plan.
This new review and approval process allows the Commission to be more supportive and
collaborative with towns in their development of solutions to water quality problems. This
process also provides a better platform to deal with multiple towns on common water quality
solutions in shared watersheds, and promotes public engagement at earlier stages of planning
and plan development which should increase community support for these plans and projects.
208 CONSISTENCY CRITERIA
The 2017 Implementation Report provided draft guidance on the specific criteria by which local
plans and projects will be reviewed, which include:
WMA assumes responsibility for controllable nitrogen for any part of the watershed
within its jurisdiction
Plan meets applicable nutrient reduction targets
Planning occurs at a watershed level with consideration of a hybrid approach
Public was engaged to gain plan consensus
Plan includes proposed strategies to manage nitrogen loading from new growth
Plan includes adaptive management approach
Plan includes pre- and post-implementation monitoring program
Plan includes a description and assessment of the town’s proposed funding strategy
WMA commits to regular 208 Plan Update Consistency reviews until water quality goals
are achieved, generally reviewed atleast every five years
In shared watersheds, WMA seeking 208 Consistency Review collaborates with
neighboring WMA(s) on nitrogen allocation, shared solutions, and cost saving measures
Guidance on 208 consistency criteria is attached to this document.
INSTANCES REQUIRING A 208 CONSISTENCY DETERMINATION
There are several instances that will require a WMA to obtain a 208 consistency determination.
Depending on the plan or project, a 208 consistency determination may be requested more than
Guidance on Section 208 Plan Update – Obtaining a Consistency Determination Page 4
once, at different stages of planning, project development and plan implementation. Instances
requiring a 208 consistency determination include:
Modification of an Existing DRI Permit: WMAs with an existing DRI permit will not
require further DRI review. Requests for modifications to DRI permits shall undergo
208 consistency review in place of DRI review concurrent with the DRI modification
action.
Massachusetts Environmental Policy Act (MEPA): Water quality improvement plans and
projects that require review under MEPA and therefore are typically reviewed by the
Cape Cod Commission as a DRI, shall instead be reviewed for consistency with the 208
Plan. This applies to filings of Environmental Notification Forms (ENFs),
Environmental Impact Reports (EIRs), Phase 1 and other Waivers, Notices of Project
Change, and applications for any special review procedure.
Massachusetts Clean Water State Revolving Fund (SRF) Loans (310 CMR 44.00,
effective January 27, 2017): Plans and projects for which SRF funding is sought must be
consistent with the 208 Plan Update. WMAs that choose to request SRF loans for plan
or project implementation must first obtain a 208 consistency determination. This
applies to 0% and 2% interest loans and eligibility for principal forgiveness.
Massachusetts Department of Environmental Protection (MassDEP) Watershed Permits:
MassDEP has issued guidance on watershed permitting which states that plans and
projects for which a WMA is seeking nitrogen credit through a watershed permit require
a 208 consistency determination. WMAs seeking a watershed permit with DEP shall
also first obtain a 208 consistency determination from the Commission.
Instances requiring a 208 consistency determination. In most cases, a consistency determination is
required pre-filing; however, a consistency determination may be obtained concurrent with the MEPA
filing of an ENF, EIR, Notice of Project Change or Phase 1 or other Waiver.
Guidance on Section 208 Plan Update – Obtaining a Consistency Determination Page 5
REQUESTING A 208 CONSISTENCY REVIEW
Key to ensuring consistency of local plans and projects with the 208 Plan is early consultation
with the Commission. Communities initiating planning processes and developing project
specific proposals should request a meeting and/or assistance from the Commission in the early
phases of plan or project development. Initial review for consistency with the 208 Plan is
process oriented, with progress measured and reviewed over time, via reporting on
implementation and during the five-year consistency review process. The 208 Plan provides a
framework for a process that engages stakeholders in plan development, considers a broad
range of strategies and utilizes decision support tools to help determine an approach to the
problem that best suits local needs. Early consultation with the Commission will help to ensure
appropriate steps are taken at the local level, during the planning process to ensure consistency
with the regional plan and public support for implementation.
Through early consultation, Commission staff will work with the WMAs designee(s) to identify
208 consistency criteria applicable to the plan or project and discuss options and opportunities
for achieving consistency with those criteria. Applicable criteria may vary from request to
request, including for requests made for plans versus projects. For example, a project may be
proposed by a WMA that is anticipated to achieve a percentage of the nitrogen reduction
required in a given watershed. At the time of consistency review for the project, the Commission
will not require that the project fully meet the watershed nitrogen reduction target. However,
the Commission would anticipate that the project should ultimately be incorporated as one part
of a comprehensive or targeted watershed management plan, which should anticipate achieving
the nitrogen reduction required for the respective watersheds addressed in such plans.
Requests for a meeting to discuss consistency criteria applicable to a local plan or project,
requests for watershed team technical assistance for plan or project development, and/or
requests for a 208 consistency review and determination should be submitted in writing to the
Cape Cod Commission Executive Director from the WMA (Town Manager or Administrator,
Board of Selectmen, or Town Council). Projects or plans proposed through a cooperative effort
by two or more WMAs should be submitted jointly by all parties involved.
WMA(s) may request determinations for individual projects, specific watersheds, or for town
wide plans; however, in all cases, the Commission will apply a watershed-based approach to
consistency review of such requests.
ISSUANCE OF 208 CONSISTENCY DETERMINATIONS
A 208 consistency determination is effective per the terms, conditions and duration set out in
the determination. In most cases, the Commission will issue determinations for plans or
projects in recurring five-year intervals. Upon the expiration of the then current effective
period, the WMA must submit updates for the respective project or plan, pursuant to its
adaptive management plan and other 208 consistency criteria, in order to maintain 208
consistency and obtain an updated determination for the succeeding period. In certain cases,
once a 208 consistency determination is issued, subsequent requests for a determination or
project or plan updates within the five year timeframe may simply warrant a letter from the
Commission confirming that associated plan or project is consistent with the 208 Plan.
Guidance on Section 208 Plan Update – Obtaining a Consistency Determination Page 6
MAINTAINING CONSISTENCY WITH THE 208 PLAN
Annual reporting
Each 208 consistency determination will require that the WMA(s) commit to annual reporting.
Annual reports shall include data collected during the reporting period, such as technology
performance monitoring and/or embayment monitoring data, and a progress update on
implementation. Details on data submission requirements may vary based on the proposed
project or plan and will be included in the 208 consistency determination.
Annual reports will be used to update watershed reports, which were issued as part of the 2017
Implementation Report. Annual reporting and watershed reports will be used to complete 208
compliance reports. Compliance reports will be issued annually at the OneCape Summit,
typically held in the Spring.
Adaptive Management and Five-year Consistency Determinations
To maintain a 208 consistency determination for a given project or plan, the WMA(s) must
undergo consistency review atleast every five years until water quality goals are achieved, or as
otherwise established by the Commission and the WMA(s) in a determination. The intent of
periodic consistency reviews is to allow for adaptive management. WMAs should have the
flexibility to be responsive to changes in environmental quality, relative effectiveness of
implemented approaches, identification of new technology, and unforeseen community needs.
Five-year consistency determinations allow WMAs to change the course of action identified,
based on the best available data and stakeholder feedback, and submit a modified
implementation plan as part of an adaptive management report, if necessary.
Subsequent consistency determinations will focus on progress toward originally identified goals
and changes to the implementation plan outlined through an adaptive management report.
Stakeholder Engagement
Six to twelve months prior to expiration of a consistency determination, the WMA(s) shall
convene a stakeholder group to discuss implementation activities to date and any potential
changes necessary. Stakeholder groups should include representation from town staff, elected
officials, local watershed associations, civic groups, and interested professional groups, such as
realtors, homebuilders, and/or businesses. The stakeholder group composition is subject to
variation. The Cape Cod Commission shall be engaged in this effort.
The purpose of the stakeholder process will be to review implementation efforts, consider
changes in water quality as identified through ongoing embayment water quality monitoring,
and come to consensus on potential changes to the implementation plan, if necessary.
Based on an agreed upon path forward, the WMA shall develop a public engagement and
outreach plan for successful implementation of the revised plan or project. As part of the fiveyear
208 consistency review, the WMA shall submit the public engagement and outreach plan
along with the revised plan or project details.
Guidance on Section 208 Plan Update – Obtaining a Consistency Determination Page 7