United States: Nitrogen Discharges To Great Bay: Deadline For Public Comment Imminent

If you use fertilizer for lawns, playing fields, open spaces or for agriculture; if you use a septic system; if you are responsible for large paved areas, or are concerned about storm water runoff in your community; and, if you live or do business anywhere in the Great Bay Estuary watershed, then you may not realize it but time is running out to submit comments to the New Hampshire Department of Environmental Services (NHDES) on a draft report of critical significance. NHDES has established August 16, 2013 at 4 PM as the deadline for the public to comment on its draft Great Bay Nitrogen Non-Point Source Study, a report likely to form the basis for imposition of future regulatory controls.

Discharges of waste water that cause impacts to Great Bay have been in the news for several years. Significant attention has been focused on infrastructure costs that will need to be expended to upgrade public waste water treatment plants in order to reduce the level of nitrogen and other pollutants that are discharged into Great Bay pursuant to federal and State permits. It has been estimated that the costs associated with that infrastructure upgrade process could reach $1 Billion region-wide. Those waste water treatment plant discharges are referred to by the law and by regulators as "point source" discharges, meaning in most instances that they emanate from a pipe. It is the pipe that is subject to federal and State permitting, and upgrade costs will largely be paid for through increased user fees.

Now, NHDES has issued a draft report evaluating non-point (non-pipe) source discharges of nitrogen into and affecting Great Bay. Here, NHDES is focusing here not on pipes or other channeled discharge, but instead from sources such as atmospheric deposition (rain and Stormwater), fertilizer runoff, septic systems, and animal waste. The NHDES non-point source study, in its current draft form is available for public review on the NHDES Website at HTTP://des.nh.gov//organization/divisions/water/wmb/coastal/great-bay-estuary.html. The draft report describes a model used by NHDES to determine the non-point source "nitrogen load" entering  Great Bay on a yearly basis. Once the "nitrogen load" is finally determined, regulations may be enacted to reduce or eliminate components of that "load" over time.

The draft report finds that approximately 900 tons per year of nitrogen enters Great Bay from non-point sources: 33% from atmospheric deposition; 27% from septic systems; 27% from fertilizer runoff from lawns, agricultural and recreational fields; and, 13% from animal waste. NHDES is accepting written comments on this draft, its methodology and conclusions only through mid-August. This is a critical opportunity for the public, industry groups, municipalities and others with an interest in non-point source nitrogen issues to make their voices heard and perhaps change aspects of the report.

The importance of this report can be seen in economic projections of the types of steps that may need to be taken in the future to reduce non-point nitrogen in Great Bay. Preliminary estimates are that septic system upgrades needed to reduce human waste contributions to the nitrogen load may cost $20,000 per septic unit. Storm water upgrades and other infrastructure retrofits are estimated to cost between $10,000 and $30,000 per acre of impervious land. Significant costs may also be seen with regard to fertilizer use for agricultural areas and on recreational fields.

During the public comment period, any issues that anyone opposing or supporting the draft wants to raise must be submitted. If issues or concerns are not raised during this window, with limited exceptions, those issues will not be considered by NHDES. No one can wait to see what the final report looks like, and then decide to raise concerns. The more detailed, specific, and scientifically supported the comments are, the better the chances those comments will have of being taken account of in the final report.

This is a point in the regulatory process where all citizens have the ability to affect the final outcome and language of a critical regulatory process. This is an opportunity that cannot be taken lightly, and a deadline that cannot be missed.

Michael Quinn is a Director in the McLane Law Firm's Portsmouth office and former chair of the New Hampshire Bar Association's Environmental Law Section.

Published in the Portsmouth Herald, July 2013

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