Having cleared the Conservation Commission and Planning Board, and with funding help from a $200,000 grant by the Harvard Municipal Affordable Housing Trust, local developer Lou Russo’s plan for an Ayer Road apartment and commercial building was poised to move forward, but hit a roadblock last week over its septic system, a problem that will have to be resolved by the state Department of Environmental Protection.
Expecting to win septic plan approval from the Board of Health for his planned 42-unit, over-55 apartment building, Russo left the board’s March 24 meeting in a stalemate with the board over requirements relating to “credit land” and nitrogen loading. Russo and the health board are at odds on the interpretation of Title 5 regulations relating to the linchpin of the septic design—the ability of the developer to use “credit land” borrowed from the Conservation Commission to make up for deficiencies in the lot size, and on the nature of the credit land itself. The health board is concerned with two issues: use of the 9.5 acres of credit land tainted by nitrogen-heavy fertilizer, and the proximity of wells too close to the septic system on too small a parcel of land.
Credit land is similar to the concept of buying carbon credits, which are a key component of emissions trading schemes that have been implemented nationally and internationally to mitigate the growth in atmospheric concentrations of greenhouse gases. Credit land allows the borrower the benefit of creating a plan that would otherwise not have been considered due to inappropriate proximity of nitrogen sources to wells. Credit land qualifications state that land “must be restricted to prohibit man-made sources of nitrogen, including, but not limited to, sewage discharge, [and] nitrogen-based fertilizer.” Both Russo and Conservation Commission Chairman Paul Willard acknowledged that a Littleton farmer had harvested hay on the conservation tract for years and had used nitrogen-based fertilizer on it.
According to board consultant Ira Grossman of Nashoba Associated Boards of Health, Russo’s parcel, as well as the credit land on conservation property, are located in a nitrogen-sensitive area next to Interim Wellhead Protection Areas (IWPAs). By DEP definition, this is enough to stop the development plan.
Russo’s plans call for digging three deep artesian wells to maximize distance to existing wells and his own proposed leaching areas, but Grossman said that Russo was failing to take into account the nearest public water supply (the Dunkin’ Donuts building), and that Title 5 doesn’t recognize the use of artesian wells to skirt protection of the nearest “sensitive receptors,” or wells.
However, Bruce Ringwall of Goldsmith, Prest, and Ringwall Inc., the civil engineering firm working with Russo, said that the credit land is downgradient to the trenching area, meaning that nitrogen-based fertilizer could not affect an uphill water supply.
Russo and his team are convinced that regulations around obtaining credit land provide flexibility in meeting the nitrogen-loading guidelines. “We feel we should have an opportunity to do a presentation to you and to the DEP,” he told the board. “We’re getting knocked down at the knees,” he complained. “There’s a large reluctance by the state to go forward [in such a situation],” Grossman said. “I spoke with [DEP’s] Dave Boyer, and there must be a lot of discussion to get past the guidelines.” Should the DEP give a go-ahead, he added, it would want a fourth, “tripwire” well downgradient from the septic system to monitor for outbreak of sewage into water. In addition, a recorded, restricted covenant must go with the property, he said.
The DEP will decide if the project stops dead in its tracks or if the health board must now consider the septic and water plan. Russo, an engineering consultant, health board member Lorin Johnson, and Grossman will meet with Boyer to seek a determination.
