Judge Rejects Motion To Dismiss Wychmere Pollution Suit

By: William F. Galvin

Topics: Groundwater protection

A federal judge has denied a request by the Wychmere Beach Club to dismiss a suit filed by the Conservation Law Foundation charging the resort with illegally discharging pollutants into Wychmere Harbor. The resort is located on the edge of the Wychmere Harbor channel. WILLIAM F. GALVIN PHOTO

HARWICH — A federal judge has ruled a lawsuit filed by the Conservation Law Foundation charging Wychmere Beach Club with discharging pollutants into Nantucket Sound can move forward.

Conservation Law Foundation filed two suits in August, one against Wychmere Beach Club and the other against Wequassett Resort and Golf Club, charging the waterside resorts with illegally discharging nitrogen from sewage disposal systems into marine waters.

Wychmere Beach Club filed a motion to have the case dismissed, but federal District of Massachusetts Judge William Young denied the motion in a hearing last Thursday. The suit filed against the Wequassett Resort was previously stayed.

“CLF is currently in discussions with Wequassett. The goal of the discussions is to resolve the case,” Jake O'Neill, press secretary for CLF, said in an email on Friday.

The suits allege the resorts violated the federal Clean Water Act by conveying pollutants from sewerage disposal systems through groundwater into marine waters without National Pollution Discharge Elimination System (NPDES) permits. The suits seek declaratory judgment, injunctive relief and other relief appropriate to remedy violations of the Clean Water Act.

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

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

In a statement issued on behalf of the Wychmere Beach Club, ML Strategies, a government relations consulting firm in Boston, said, “This baseless suit should be dismissed because the federal Clean Water Act does not apply to septic systems and EPA (Environmental Protection Agency) has never required septic systems to have a federal permit. If EPA took such a position, countless system owners in Massachusetts would be impacted.”

“Nitrogen pollution is destroying Cape Cod's bays and beaches and damaging the Cape's economy,” Chris Kilian, vice president of Strategic Litigation at CLF, stated in a press release. “Illegal sewage discharge from Wychmere Beach Club is wreaking havoc on the water quality. CLF looks forward to continuing this fight and holding polluters accountable for harming our environment.”

“It was wonderful to hear Judge Young emphasize the importance of the case,” added Heather Govern, Director of CLF's Clean Water Program, who argued the motion in Thursday's hearing.

O'Neill said the next step in the Wychmere Beach Club case is a planned filing within the next two weeks of a proposed joint schedule and that will lead into a final hearing in September. He said the judge has ordered the case to be placed on the September 2019 trial calendar.