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February 2002

Federal And State Septic Reform Imminent;

Fair Warning To State And Marin

By Elena Belsky

Near the top of the governmental food chain, the US Environmental Protection Agency (USEPA) is releasing a revised set of guidelines for "De-Centralized Waste Water Management." In this technical manual for policy and performance-based criteria for onsite wastewater treatment systems, the USEPA evaluates options, creates models, and establishes specific methods for appropriate and safe management of wastewater systems.

In general, federal and state determinations set the framework for local governments to promulgate detailed regulations for implementation of state and federal goals. Local ordinances and regulations must follow the framework as a minimum set of requirements, with the option to establish more stringent codes and protocols, where justifiably appropriate.

The EPA models presented have, as basic components, routine maintenance and inspection requirements, with local agency requirements including performance standards for use of system technologies, knowledge of system locations, oversight to ensure systems are properly sited and installed, regular monitoring and reporting, protocols for issuance, renewals and revocation of operating permits, among other provisions. The County of Marin has historically skirted these issues, and Supervisor Kinsey's "SepTAC" (Septic Technical Advisory Committee) fared little better at considering these essential elements.

The new guidelines also state that, even in view of the potential of new, alternative technologies, "Some sites will still be unbuildable for onsite systems," where there is no soil, very high groundwater table, or inadequate space to comply with setbacks. There will be no use of new technologies without monitoring to prove that the water quality will not be degraded.

A federal survey found that 35% of the US population is using onsite wastewater systems, and the latest California Department of Health Service, "Drinking Water Source Assessment," shows that nitrates are the most common well contaminant in preliminary findings for almost 10% of assessed public drinking water system sources. These same studies indicate septic systems as the primary "potentially contaminating activities" (PCAs), with agriculture and sewer collection lines as contributing sources.

First California-wide Septic Laws To Be Written

California Assembly bill AB 885 began as coastal-protection legislation in central California, by a group called Heal the Bay and the California Conference of Directors of Environmental Health (CCDEH), and was passed in September 2000. AB 885 required State baseline regulations for onsite sewage treatment systems in consultation with the state Environmental Health Department, CCDEH, the California Coastal Commission, and other stakeholders; it allows for local and regional requirements to be more restrictive; and specifically targets septic systems that are failing, reconstructed, must undergo major repairs, and newly constructed systems. Specifically, the bill mandates that the new requirements must include, as a minimum, specified provisions related to siting, design, construction and performance standards, rules for sites adjacent to 303d listed waterbodies, Program Authorization; requirements for corrective actions of failing systems; minimum monitoring and evaluation of systems; Regional Board exemption criteria; definition of when a system needs major repair; and a loan assistance program for repairs costing over 0.5% of the property value.

A draft Memorandum of Understanding (MOU) for the state Regional Water Quality Control Boards (RWQCBs) to use with Counties has already been written, and is under peer review; also a state-commissioned working draft of a Model Ordinance has been produced by California State University at Chico. Public and peer review; California Environmental Quality Act (CEQA) environmental review will continue through 2002; resultant regulations will be checked by the state legal department from early to mid-2003. Statewide septic regulations must be enacted by January 1, 2004.

Marin County SepTAC: Recommendations Into Regulations?

Meanwhile, Marin's Septic Technical Advisory Committee has disbanded after producing a set of recommendations as requested by the Board of Supervisors. The SepTAC was purportedly created as the Board of Supervisors' response (mandatory under the law) to the Marin Civil Grand Jury's scathing review of the Environmental Health Department and the County's handling of onsite sewer systems.

It is unclear without a complete and thorough comparison of the Grand Jury Report and SepTAC's final recommendations, to determine whether the SepTAC achieved their goals and mandate as set forth by the Board of Supervisors. The Grand Jury Report contained a detailed list of items that needed attention; did the SepTAC adequately answer the charges? If they did not, who will? It is also not clear, in light of the imminent State septic Regulations whether the SepTAC's recommendations as written into County regulations will stand, after the new laws are in place.

With conflict of interest being a major concern regarding some of the SepTAC appointees, including Supervisor Kinsey, himself, the SepTAC was fraught with internal strife and disagreements throughout its arduous process. In the final stages, the Committee abandoned early goals for a consensus-based process, and still was unable to resolve a number of major problems enough to even offer comments on topics such as the following: operations and maintenance of onsite septic systems; inspection, monitoring and evaluation criteria; the probability that using alternative technology will allow increased development; amnesty program for illegal systems; and creation of a definition for a "functioning" system, essential for performance-based criteria.

The final SepTAC recommendations offered are often inconsistent, and contradictory from one page to the next, and leave doubt as to whether it can be translated into rational regulations, let alone regulations that would be an improvement over existing rules. Complicating matters for whoever might attempt a set of draft regulations, SepTAC states that their recommendations were "formulated as a package," and that, "if it is decided to remove, ignore, or modify major components of the recommendations, then SepTAC will be concerned that the overall integrity of the recommendations may be threatened."

SepTAC was formed as an "ad hoc" subcommittee of the Board of Supervisors (which may convene for only one year, rather than a standing commission. In an apparent attempt to extend its influence beyond the limited term of an hoc committee, without the scrutiny commensurate with becoming a standing committee, the SepTAC document requests that the Board of Supervisors convene a workshop just for SepTAC members with County staff, so it might "give SepTAC members the opportunity to work with staff to help ensure that the policy direction has been adequately captured in the proposed regulations." Given that the term allowed to them as a committee has ended, it would be more proper for SepTAC members to avail themselves of the same opportunity to comment as other citizens, when the required California Environmental Quality Act (CEQA) process begins.

At the final SepTAC meeting, Supervisor Kinsey produced a "timeline" showing the past history of the group, then projecting January 2002 for the Board of Supervisor's adoption of the report, with subsequent drafting of related regulations and public review to be concluded in September of 2002. It is an ambitious timeline, considering the complexity of the issues, admitted lack of County expertise to address the highly technical issues, and the fact that the County must also get everything approved by the California State Regional Water Quality Control Board (RWQCB). Other agencies also have jurisdiction, and may choose to comment and participate in the review process, for example, US EPA, National Marine Fisheries Service, State Dept. of Fish and Game. Due to the sensitive location of most Marin septic systems, near Federally listed habitat, streams and wetlands, it is quite likely that an Environmental Impact Review will be required.

If quality is the goal, a more realistic timeline for new regulations would put the County process well into 2003, and within a few months of the completion of the state's onsite septic regulations which are mandated by AB 885 to be adopted by November 2003, and implemented by January 1, 2004 at which time, the new County regulations may have to be completely revised, unless they thoroughly comply with the new state framework.

While there is little question that County septic regulations are in need of change, common sense would preclude a radical overhaul in advance of finding out what restrictions the State of California will impose.

Contact janes.Elizabeth@epa.gov to receive a notice of publication of the EPA's Onsite Wastewater Treatment Systems Manual. To join the state's listserv on AB885, go to WWW.swrcb.ca.gov, click on News/Media Info, then subscribe to Press Release E-mail List, and then choose AB885. Go to Yahoo.com to subscribe to the SepTAC listserv. ForAB 885 updates from the California Onsite Wastewater Association go to www.cowa.org.

 

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