The proposed regulatory changes at 12VAC5-613 for alternative, onsite sewage systems (AOSS) are an improvement over the earlier, emergency regulations that expire on April 6, 2011.  In response to citizen input and analysis by VDH staff, these improvements make the proposed, final regulations more acceptable.

Wetlands Watch, and legislation in the last General Assembly (HB 132), emphasized the need for these regulations to: 1) prevent AOSS from being installed in wetlands;  2) allow localities to respond to the need for nutrient reduction in the Chesapeake Bay impaired tributaries by regulating AOSS permits; 3) require a 50 foot setback from the shoreline of an impaired watershed; 4) require a one-foot vertical separation between an AOSS treatment zone and the groundwater, and: 5) ban direct discharge of effluent into groundwater.

The proposed regulations meet some of these standards:

1)    AOSS treatment areas are banned from wetlands (proposed regulations 12VAC5-613-90. Performance requirements; ground water protection. Paragraph E) and there must be a five foot horizontal separation between wetlands and the soil treatment area of an AOSS (proposed regulations: 12VAC5-613-200. Horizontal setback requirements. Paragraph 4)

2)    Systems installed within the Chesapeake Bay Watershed (broadly defined as the watersheds of all of the tributaries flowing into the Chesapeake Bay) must achieve a 50% reduction in Nitrogen from traditional septic systems (proposed regulations 12VAC5-613-90. Performance requirements; ground water protection. Paragraph D). While this does not restore localities’ rights to regulate their own affairs on placement of AOSS (a right taken away by the General Assembly in prior legislation), it does recognize the need to protect the Bay and imposes Nitrogen reductions.

We support the decision to not issue an operation permit unless the owner has hired a qualified operator as provided in proposed regulations 12 VAC5-613-60 (Operation permits and land records) Subsection A.  We also support the requirement that a permit not issue until the owner  records an instrument identifying by reference the applicable maintenance regulations for each component of the system in the land records of the clerk of the circuit court as provided in proposed regulations 12 VAC5-613-60 (Operation permits and land records) Subsection B.

The regulations still allow for advanced septic systems to be set directly above groundwater, but they impose some additional conditions on the design of those systems [proposed regulations 12VAC5-613-80. Performance requirements; general. Paragraph 13(a)].  The conditions, if properly adhered to, would minimize the potential for groundwater pollution, but there are still significant gaps in those standards and we continue our objections to this provision.  For example, the standards say that the site should not be flooded during a “wet season.” However there is no definition of what a “wet season” is.  Rainfall patterns vary around the state and “wet seasons” do as well.  

Even outside of a “wet season” a site can flood due to intense rainfall, ponding due to ice and snow, and a number of other reasons.  Are these flooding events permissible?  How many a year would be permitted without constituting a risk?  Without a quantifiable standard set in regulation, there is still a large potential for groundwater pollution as engineers, septic system installers, and landowners are left to guess what the local “wet season” is.  Virginia Department of Health staff are at a similar disadvantage.  

It takes only one flooding event to cause problems for a septic system that is not functioning correctly or for flooding to damage the operation of a system.  It makes more sense that none of these systems be installed directly above groundwater, without a zone of dry insitu soil between the treatment zone and the groundwater, if there is a potential for flooding in any season.  

As well, these septic systems are allowed to discharge sewage effluent directly into groundwater.  We object to these provisions. The proposed regulations state that, “The AOSS shall not pose a greater risk of ground water pollution than systems otherwise permitted pursuant to 12VAC5-610.” [proposed regulations12VAC5-613-90 (A)]  Yet the accompanying analysis of the regulations done by the Virginia Department of Planning and Budget states clearly, “The proposed standards for direct dispersal systems appear to be less stringent than Sewage Handling and Disposal Regulations (SHDR) standards.” DPB Study, p.8.

Thus, the proposed regulations say that the new systems should not pose a greater risk to groundwater than existing systems while the Virginia Department of Planning and Budget analysis is that the restrictions on new systems are not as stringent as those imposed on existing systems.

Preventing direct discharge of sewage effluent into groundwater provides added benefits of nutrient pollution reduction to the Chesapeake Bay.  While nutrient pollution is the purview of the Virginia Department of Environmental Quality and while these regulations seek a 50% reduction in nitrogen in the effluent, the direct release to groundwater is troubling.  The US Geologic Survey has found that 48% (on average) of the nitrogen in surface waters in the Chesapeake Bay watershed comes from groundwater.

In summary, we support the prohibition on installation of AOSS in wetlands, we support the additional nutrient reduction standards, and we support the mandatory operation and maintenance requirements.

We do not support the placement of these systems above groundwater with no zone of dry insitu soil separation.  We view the proposed conditions on the placement of these systems in those situations as inadequate to protect public health.  We see no definition of “wet season” that would guide the installation of these systems and object to any septic system being installed on a site that is flooded at any time.  We do not support the allowance of direct dispersal of sewage effluent into groundwater.