Saugus appeals decision on sewer hook-up fee

The town of Saugus has asked the Supreme Judicial Court to review a lower court decision that invalidated sewer hook-up fees the town imposed on new development in order to help fund system improvements.

The town instituted the sewer “inflow and infiltration fee” to help it comply with a 2005 consent order from the Department of Environmental Protection, which directed the town to remedy inadequacies in its aging sewer system. The system was prone to becoming overloaded with stormwater and groundwater, causing untreated sewage to flow into the Saugus River at times.

Saugus worked with the DEP to create the fee on new hook-ups to help fund necessary improvements. The DEP also helped the town develop a “sewer bank,” which grants the town credits for the amount of stormwater and groundwater that is prevented from entering the sewer system and then allows the town to withdraw those credits for new connections related to development.

Four local developers challenged the town’s inflow and infiltration fee, calling it an unfair tax. They argued that the problems with the sewer system were pre-existing and improvements should not be paid for by new businesses.

In May 2009, a Superior Court judge directed the town to refund more than $670,000 in fees plus accrued interest, which could increase the total bill to more than $1 million. The state Appeals Court upheld the decision in January.

In a Feb. 17 letter to the Supreme Judicial Court, the Conservation Law Foundation called for further appellate review of the decision. The letter cites a DEP policy directive pointing out that sewer system overflows create serious health hazards resulting from pathogens, metals and other pollutants that mix with surface water or seep into the ground.

The letter points out that Saugus is prohibited from allowing new users to connect to its sewer system until the infiltration and inflow has been sufficiently reduced.

The DEP-approved sewer bank policy, according to the letter, gave developers the opportunity to gain access to the town’s sewer system and “proceed with their developments on a reasonable and predictable timeline.”