LOCAL ONSITE WASTEWATER MANAGEMENT: WHAT HAPPENS WHEN YOU GET AHEAD OF THE POWER CURVE

In 2001 the Loudoun County Health Department (LCHD) determined that they needed to take an active role in addressing the management of onsite wastewater treatment and dispersal systems. The Commonwealth of Virginia updated the Sewage Handling and Disposal Regulations (SHDR regulations) in July of 2000. Prior to this regulation change, the traditional septic tank and drainfield was overwhelmingly the most common onsite system in use. The change in regulations promoted the use of alternative onsite sewage treatment and dispersal systems, by requiring treatment systems capable of producing secondary effluent and trenchless dispersal systems in areas with poor soils. Simultaneous to the change in regulations, Loudoun County was experiencing the fastest growth of any county in the country. The Loudoun County Board of Supervisors (Board) had recently been elected on a smart growth platform. The Board initiated an effort that would completely revamp the zoning ordinance in the County, which would require 20 acre lots in the north and 50 acre lots in the west. The revision to the zoning ordinance ultimately passed in January of 2003. In the meantime, it generated a rush by land owners and developers to subdivide the land under the current zoning.Two factors drive developers to use onsite sewage treatment and dispersal systems – cost and time. With such a rush for housing, developers found that they could not afford to wait for an engineering firm to draw up plans and specifications for a communal wastewater collection and treatment works and then have it go through the long review time by state regulators with a high permit fee attached. They found that it was much quicker and cheaper to find drainfield sites on the property and subdivide around them. They also found that due to the change in regulations, with the new technologies, they could develop sites using onsite technology that would have previously been developed only with public sewers and a treatment plant. Subsequently the Health Department was over run with subdivisions getting platted using alternative onsite treatment and dispersal systems.As new alternative onsite treatment and dispersal systems were installed, LCHD, builders, installers, engineers, consultants and homeowners began to notice problems with the systems; some of these system problems led to system failures. One challenge was the fact that the systems were new to the parties involved and the practitioners were not accustomed to them. Another cause for concern was that no maintenance of the alternative systems was required by a regulatory agency. Lack of maintenance also led to system failures. This got the attention of stakeholders and eventually the Board.The Environmental Protection Agency (EPA) published Voluntary National Guidelines for Management of Onsite and Clustered (Decentralized) Wastewater Treatment Systems (Guidelines). The Guidelines identified five model programs, but more importantly identified 13 program elements that needed to be addressed in any management system. This information became a basis for building the management system.The County had several of the program elements in place and functioning as desired. Working with stakeholders under the umbrella of the national guidance, the LCHD proposed a management program that would (1) place all systems under an expiring operation permit; (2) require licensing of all practitioners; (3) allow for responsible management entities to manage onsite systems in subdivisions and manage large communal systems; (4) require inspection by certified and licensed inspectors upon transfer of property; (5) make technical changes to the local sewage code (6) employ a web based data system that monitors compliance; (7) provide training opportunities for citizens and practitioners; and (8) have ticketing authority for enforcement. Stakeholders determined that there were some program elements that could not adequately be performed by local government and should be performed by state or national organizations. In 2003, LCHD was about to bring the program to the Board for approval, when the Board asked us to delay it until after the election because they did not want it to become an election issue. This created a delay of seven months. The 2003 election of the Board resulted in a change in the majority of the Board to a pro growth Board. All the political ramifications of the change with pending law suits on zoning decisions by the prior Board, caused additional delay in getting acceptance by the new Board. In May of 2004, LCHD started meeting with the Supervisors and providing them with insight into the onsite wastewater treatment industry. On November 1, 2004 the Board unanimously passed a resolution endorsing the proposed program and instructed the LCHD to move to codify the program. Little did the LCHD realize that there were other hurdles just around the bend.In Virginia, a local government can only regulate that which the state allows it to. Virginia has allowed local governments to regulate wastewater treatment and disposal. However, when it comes to licenses, registrations, certifications or the like it is not as clear cut. Some occupations, like professional engineers are regulated by the Department of Professional and Occupational Regulation, others by the Virginia Department of Health (VDH), and certain contractors by local government. No one regulates onsite maintenance providers or onsite inspectors. When we presented the concept at a Virginia Onsite Wastewater Recycling Association Conference in the fall of 2004, a Delegate to the General Assembly questioned the local authority to do all we wanted to do. Involving County legal staff that was tied up in court cases associated with zoning appeals has been impossible. The County Attorney, indicates that if another jurisdiction had done this it would be a fairly easy review for them, but because we are the first in Virginia, it will be very time consuming and of course not a high priority. LCHD discovered that it did not have authority to issue civil penalties. Without the County Attorney involvement, it went to the General Assembly with a bill that was approved by the General Assembly and signed by the Governor early this year. The local code to implement our program has been drafted. We are looking at two alternatives; first we are attempting to contract with outside counsel – for which we need the County Attorney's approval – to address the legality of the licensing and real estate provisions. If that fails, the licensing and real estate provisions will be removed from the code and the balance forwarded to the Board for consideration.