CLF Files Lawsuits Against Wequassett And Wychmere Resorts

By: William F. Galvin

Topics: Wastewater treatment

The Wychmere Beach Club has been sued by the Conservation Law Foundation alleging they are polluting the harbor waters. WILLIAM F. GALVIN PHOTO

HARWICH — The Conservation Law Foundation has filed federal lawsuits against the Wequassett Inn and Wychmere Beach Club charging the town's two largest resort complexes with illegally discharging pollutants which are impairing the health of local marine waters.

“Nitrogen pollution is killing the Cape's beautiful waterways,” Christopher Kilian, vice president of strategic legislation at CLF, said in a statement about the suits last Friday. “Fish kills, unpleasant odors and scum are becoming the norm, threatening to drive away the millions of tourists that flock to the area every year. These resorts should be leaders in protecting our precious waters, instead of flushing our health and our economy down the drain.”

The suits were filed on Friday in the U.S. District for the District of Massachusetts. Under the law, citizens and organizations can sue alleged violators of the federal Clean Waters Act after first providing notice 60 days beforehand of the potential for the lawsuit. That 60-day time frame expired last week.

“The lawsuits claim the resorts are illegally discharging nitrogen that fuels noxious algae outbreaks in Wychmere Harbor and Pleasant Bay, popular destinations for fishing, boating and birding,” the CLF statement reads.

In its initial notice to the resorts, CLF extended the opportunity to discuss the issues and correct any wrong information or make plans to take steps to correct alleged violations. But that never happened.

“The resort is disappointed that the Conservation Law Foundation was not willing to meet with representatives of the resort before allegedly filing suit. CLF suggested a meeting in their original letter, and the resort responded in writing that they would be more than willing to meet. CLF never responded to this letter,” attorney Andrew Singer said in an email to The Chronicle on Monday relating to the Wequassett Resort's position. Singer said he is part of teams assisting the two businesses in this matter.

“There have been no discussions as of yet, but CLF continues to be open to meeting with both resorts to resolve these critical issues. Both resorts initially mentioned a willingness to meet, but never followed up or expressed further interest,” Kilian wrote in an email.

Speaking on behalf of the Wychmere Beach Club, General Manager Michael Sharlet stated in an email on Tuesday that he first learned of CLF's filing in the online edition of The Cape Cod Chronicle. As of Monday, the club had not yet been formally notified of any pending lawsuit, he said.

“When we were first notified by CLF in late June of this year, they suggested that they would be open to meeting and discussing their concern. We invited them (in writing) to meet with our organization back on July 26, yet this ultimately seemed to be an insincere suggestion on behalf of CLF and attorney Kilian as they never responded to our request.”

Sharlet said the club has all required licenses, permits and approvals from all applicable regulatory authorities to operate its wastewater treatment plant. As a seasonal business, operating from April through December, the busiest months of July and August rarely see days that even reach a small fraction of the 80,000 gallons per day that CLF has inaccurately reported, Sharlet said.

“We have always prided ourselves on being strong supporters of the local environment as well as our surrounding community here on Cape Cod. The issue raised within their initial complaint letter would more properly be addressed to the regulators and not the regulated,” Sharlet stated.

“The Wequassett Resort and Golf Club has not been officially served with any lawsuit at this time and therefore cannot comment on the substance of the alleged claims. The resort remains perplexed with respect to such allegations, however, because the resort believes that it is fully compliant with all the governing bodies,” he said.

The suits allege that the resorts are conveying pollutants from sewage disposal systems operated by groundwater into local marine waters without National Pollution Discharge Elimination System (NPDES) permits. The suits seek declaratory judgment, injunctive relief, fines and other relief as appropriate to remedy violations of the Clean Water Act.

When asked if other waterfront resorts on the Cape are under the same scrutiny, Kilian responded: “Third-party watershed reports prove most of the pollution flowing into the bays is coming from septic systems that discharge harmful nitrogen directly into the groundwater. There are dozens of similar large-scale polluters on Cape Cod, and they have all been identified as contributors to the problem.”

The two resorts have groundwater discharge permits issued by the state Department of Environmental Protection. Wychmere Beach Club had a permit issued in 1992 for an 80,000 gallon per day alternative treatment plant, and the Wequassett Resort has one for 45,000 gpd that was issued in 2008.

But the suits state a discharge of pollutants from a point source to navigable waters is covered by the Clean Water Act even if the route that the pollution travels from the point source to the navigable waters is underground, traveling through groundwater. The suits state such pollution traveling via groundwater that has a direct hydrologic connection to surface water requires a NPDES permit.

The Wequassett lawsuit states the treatment system doesn't function when sewage inflows from its collection component exceed its maximum capacity. In the case of Wequassett Resort, when the 45,000 gpd is exceeded, the suit clams, improperly treated and/or untreated sewage is discharged through the disposal fields.

“Defendants discharged sewage in volumes that exceeded the treatment capacity of their sewer disposal system by 8,979, 11,029 and 4,269 gpd in July, August and September 2015 respectively,” the suit states.

In the case of the Wychmere Beach Club, the suit states the sewage disposal system is located approximately 180 feet from the harbor and less than 160 feet from the channel. Groundwater below the leach field is hydrologically connected to the receiving waters, it alleges.

“The pollutant-carrying groundwater beneath the leach field discharges and adds pollution from the club to the receiving waters in under 200 days (less than seven months),” according to the suit.

Nitrogen contribution is the major concern cited in the lawsuits, but the documents further name ammonium and additional nutrients that can cause or contribute to eutrophication of downstream waters. The suit states Wychmere Harbor was also added to the list of impaired waters in Massachusetts for fecal coliform in 2016.

“Excessive nitrogen levels and eutrophication in Pleasant Bay and Round Cove caused by nitrogen pollution has negatively impacted CLF members' ability to recreate in and near Pleasant Bay and Round Cove and has decreased their enjoyment of beach and water activities,” the suit against Wequassett Resort claims.

“CLF members care about the natural environment of the receiving waters, and they worry that high nitrogen levels have damaged and will continue to damage Wychmere Harbor's ecosystem and irreparably harm local fish and scallop populations.”

On both lawsuits the relief requested includes a declaration the defendants have violated and are in violation of the Clean Water Act. CFL seeks to enjoin the defendants from discharging pollutants except as authorized by and in compliance with the NPDES permit, and for both resorts to apply immediately for the NPDES permit.

The suits further asks the court to order the resorts to reduce their discharge of nitrogen to a level commensurate with use of modern denitrification technologies in order to comply with the technology-based standards of the Clean Water Act.

The suits also seeks civil penalties beginning at $37,500 per day on Jan. 12, 2009 which increase to as high as $53,484 per day in 2018. CLF is also seeking an award of plaintiff's costs. The plaintiff did not request a jury trial.

“Taxpayers shouldn't be footing the bill alone. Private businesses that are contributing to the pollution should be doing their part to stop it. Massive pollution reduction is needed to restore the bays, and time is of the essence. We need enforceable requirements and urgent action across both public and private sectors as soon as possible,” Kilian said.