Last night, Clarke County Supervisors took a step forward on yet another decree from Richmond that will likely prove costly and complex for local governments to implement. Despite health and maintenance concerns associated with Alternative Onsite Septic Systems (AOSS), in March 2010 the General Assembly deferred to real estate lobbyist demands by explicitly requiring local governments to allow AOSS usage. While the Code of Virginia does allow localities some regulatory oversight for AOSS, outright bans are no longer allowed. Faced with how best to handle the health and hydrology challenges the Clarke lawmakers grappled with murky problems and complex solutions.
“The State of Virginia has bowed down to the housing lobby. This move means that parcels of poor land that shouldn’t be developed now can be,” complained Supervisor David Weiss (Buckmarsh).
AOSS systems are used for homes and businesses where an existing septic field has failed or the soils cannot support a traditional septic field. AOSS systems differ from traditional septic field systems by employing complex technology and requiring ongoing maintenance. AOSS solutions are also much more costly to install, typically between $20K – $70K.
Richmond’s decree is partly due to Virginia Association of Realty (VAR) lobbying that overturned an AOSS usage ban implemented by Loudoun County in 2009. Alternative septic systems had become so problematic that Loudoun Supervisors imposed a five-year ban on approval of new systems (except in special cases) and required annual inspections for existing systems.
Reacting to the Loudoun ban, special interest groups vowed revenge. Builders, developers and landowners enlisted the Virginia Association of Realtors to craft legislation overturning the Loudoun County moratorium. The legislation won easy approval by the General Assembly and was implemented in early 2010.
Instead of providing technical guidance and funding to help localities solve the complexities of potentially significant groundwater and public health issues surrounding AOSS, the House of Delegates elected instead to please lobbyists at the expense of taxpayers by ignoring the costs to localities associated with defining detailed regulations. Clarke County, like other municipalities, has been left on its own to struggle with and pay for solving the complex issues necessary to safely implement Richmond’s unfunded mandate.
The AOSS decree is only one example of the General Assembly’s lack of leadership on complex issues facing the Commonwealth. In another recent example, the Virginia Retirement System decided to balance its money management fund woes on the backs of localities by eliminating retirement contributions for employees hired after July 1st.
While everyone at last night’s public hearing seemed to agree that Clarke County’s complex geology and hydrology make regulating the safe use of AOSS difficult, at least one Clarke County alternative soil consultant questioned the Supervisor’s authority to establish criteria for AOSS implementation.
“Remember that Virginia is a Dillon Rule state,” soil consultant Frank Lee told the Board of Supervisors. “The State says that you have to allow these systems. The State legislature did not say that you can establish implementation criteria.”
Virginia’s Dillon Rule refers to the doctrine of limited authority for local governments used in interpreting law when there is a question of whether or not a local government has a certain power. The Dillon Rule narrowly defines the power of local governments such that if there is any reasonable doubt whether a power has been conferred on a local government, then the power has not been conferred.
Virginia courts have widely held that local governments in Virginia have only those powers that are specifically conferred on them by the Virginia General Assembly.
At last night’s meeting, Clarke County Natural Resource Planner Allison Teetor presented the Board of Supervisors with draft regulations for managing the use of AOSS in Clarke County’s complex geology and hydrology. In addition to septic experts and soil scientists, last night’s meeting attendees included representatives from the Virginia Department of Health.
Bob Marshall, a septic field expert with Berryville’s Cloverleaf Environmental, said Teetor’s recommendation that, as part of the permit process, homeowners be required to demonstrate an understanding of how their AOSS operated was the wrong approach.
“The educational approach is wrong. You need to require an operation and maintenance agreement with a professional operator for every system,” Marshall said.
Marshall told the Board that he estimates 30-40% of the wells in Clarke County are already contaminated. “And that’s before we start allowing AOSS. Are we satisfied with this?”
Little consensus was reached over a wide range of topics including whether mandating different installation criteria based on underlying geology was advisable, soil testing versus reliance on soil book categorization, requirements for fencing AOSS areas, tree removal in AOSS areas and dispersal line depths.
After the lengthy and technical public comment period Supervisor John Staelin (Millwood) attempted to summarize the information provided during the course of the evening into a series of impromptu changes to the regulations offered by Teetor. Staelin’s language changes included fencing and landscape requirements to prevent vehicular or livestock damage to AOSS areas and mandatory soil testing over reliance on the Clarke County soil book.
Perhaps the most striking aspect of last night’s public hearing was the depth of professional experience among the public speakers combined with the lack of clear recommendations about AOSS best practices. While the Board of Supervisors worked hard to codify the complexities of AOSS, the legislative result of their work appeared to be a “best-guess” compromise destined for further refinements in the future.
“I’m concerned that you’re rewriting regulations that have evolved over 15 years,” Bob Marshall said.
Frank Lee echoed Marshall, “I’m just concerned that the new regulation will require me to install AOSS systems in ways that I know aren’t the best solution.”