City Council urges review of EPA ruling that could cost Dover, region hundreds of millions of dollars

posted on: 2/13/2020; updated: 2/16/2020

The City Council this week approved a resolution that urges additional peer review of a draft nitrogen discharge permit recently issued by the Environmental Protection Agency for Great Bay. The Great Bay Total Nitrogen General Permit, or NPDES, will regulate nitrogen levels in the Great Bay watershed, including the levels of nitrogen discharged from wastewater treatment facilities. The cost of meeting those requirements would likely exceed $100 million in Dover alone, and could top $1 billion across all communities in the Great Bay watershed.

In addition to the resolution, city and elected officials will attend an upcoming public hearing on the permit to voice their concerns. The public is also encouraged to attend. The public hearing will be held on Wednesday, Feb. 19, at 6 p.m. at the regional office of the New Hampshire Department of Environmental Services, located at NHDES Portsmouth Regional Office, located at Pease International Tradeport, 222 International Drive, Suite 175, Portsmouth, NH 03801.

The City of Dover has worked for decades to reduce nitrogen in the estuary, investing significantly in science-based wastewater technology and infrastructure.

"The City of Dover recognizes that new and innovative regulatory efforts are integral to those continuing efforts," said Community Services Director John Storer. "However, Dover and the communities that comprise the Great Bay Municipal Coalition maintain the criteria used by the EPA in its draft permit is flawed and incomplete."

The City of Dover is calling for a comprehensive and scientific peer review of the EPA’s draft permit prior to issuing the final permit.

City Manager J. Michael Joyal, Jr. said the new draft permit is a change in course from the previous draft permit, focusing now on nitrogen concentration levels for all 13 communities whose wastewater treatment facilities discharge into Great Bay. The new proposed levels and how they will be enforced have raised a number of concerns, including the cost to upgrade the wastewater and stormwater management systems to meet those requirements.

“We have a track record of reducing nitrogen that flows into Great Bay,” Joyal said, adding that city staff and the City Council have made significant wastewater system improvements that help diminish the amount of nitrogen discharged into Great Bay. “That’s the right thing to do for the health of Great Bay. Nevertheless, we have concerns that the levels being proposed in this permit are unnecessarily restrictive and, frankly, unattainable given the science as we know it today. There’s a significant cost in even trying to achieve what would be required by the permit. We’re talking on the scale of hundreds of millions of dollars.”

Following a draft permit issued for Dover by the EPA in 2011, the city has been working with the EPA, the New Hampshire Department of Environmental Services, and other municipalities in the Great Bay estuary to seek options that are less costly and scientifically sound. The Great Bay Municipal Coalition conducted a peer review of the nitrogen criteria cited by the EPA and NHDES and found the data to be unfounded.

Despite concerns and data provided to the EPA and NHDES from Great Bay municipalities, including Dover, the new draft permit calls for a theoretical reduction in nitrogen levels based on outdated studies.

Storer said the draft permit's proposed yearly nitrogen loading threshold of 100 kilograms per hectare is not based on relevant scientific studies of nitrogen levels and eelgrass growth.

"Experts have dismissed the validity of setting a theoretical loading rate without considering the unique characteristics of the estuary, and have instead recommended that a quantitative, estuary-specific analysis is required to effectively guide watershed management actions," Storer said. "It would be more scientifically objective to focus on actual measured concentration of total nitrogen within the estuary, which is what would directly impact water quality.”

Recent studies show measured total nitrogen concentrations dropping significantly and the eel grass population shows signs of rebounding.

“Our criticism of the theoretical 100 kilograms per hectare loading rate is that it does not consider what the actual nitrogen levels are within the estuary," Storer added. "Our experts suggest targeting a desired end point total nitrogen concentration, and then working to determine what loading rate protects estuary health and eel grass.”

Eel grass was flourishing in the mid-1990’s when nitrogen loading rates were documented in excess of 200 kilograms per hectare, which is more than double what is currently being proposed.

In addition, Storer said “our hope was to receive a permit that allowed for a truly adaptive management program, and one that would foster collaboration for further data collection and analysis to help improve estuary health. But the permit is mandating compliance with something we feel is impossible to achieve, nor is it supported by current science. Unless the permit is modified, it will have significant economic impacts on our community, and will act as growth limiting ordinance.”

A public comment period pertaining to the draft permit is open until March 9, 2020. Comments must be submitted by the close of the comment period either in hard copy form or electronically to: Michael Cobb (Cobb.Michael@epa.gov), U.S. EPA, Region 1, 5 Post Office Square, Suite-100 (06-1), Boston, MA 02109-3912.

At a Feb. 5 City Council workshop, Joyal and Storer reviewed the draft permit with councilors and explained the potential ramifications to taxpayers and water and sewer system ratepayers. The presentation to the City Council can be viewed in its entirety here: https://dovernh.viebit.com/player.php?hash=UfLPvLi60Xj6.