Septic Systems Near Significant Wildlife Habitats
Alec LeSher (author), Jonathan Rosenbloom & Christopher Duerksen (editors)INTRODUCTION
Many rural areas lack access to sewage collection and treatment plants.[1] These areas are often served instead by septic tanks and drain fields.[2] Septic tanks and drain fields typically work by separating the waste and directing it to settle in one or more septic tanks, while the wastewater rises to the surface inside the tank and is pumped to a drain field through underground pipes.[3] Ideally, these septic tanks and drain fields are designed to ensure that the waste and wastewater do not reach ground or surface water.[4]
Many rural areas where septic tanks are common are also home to significant wildlife habitats. The definition of a “significant wildlife habitat” may vary by jurisdiction and can depend on various factors, including location, types of wildlife found in that area, and migratory species.[5] Many jurisdictions have adopted regulations that seek to balance the need to address waste in rural areas with the need to ensure biodiversity and protect significant wildlife habitats. Balancing these needs is particularly important as human settlements continue to grow in rural areas. Challenges raised by rural septic systems can be especially troubling on smaller lots that are part of a subdivision. For example, instead of one septic system on a thirty-acre lot, the subdivision may consist of fifteen two-acre or thirty one-acre lots and fifteen or thirty septic systems, raising significant challenges for preserving wildlife habitat and biodiversity.
The proposed regulations set forth a variety of options to restrict septic systems that range from requiring local government approval, to prohibiting septic systems depending on the need and habitat sensitivity.[6] Such restrictions should take into account other sustainable development practices in rural areas, such as limiting development in rural areas near natural habitats, true rural large-lot zoning (e.g., 160 acres/lot minimum), and the findings of impact analysis prior to a project being started. For a brief pertaining to wildlife habitat impact analyses see Require Wetland Habitat Impact Analysis in this chapter.
EFFECTS
“The most common wastewater treatment system used in rural areas is the septic tank-soil absorption system”[7] “Even a properly operating [septic] system will discharge nutrients (phosphates and nitrates) and some bacteria or viruses to the groundwater.”[8] Such bacteria and nutrients can adversely affect and even destroy aquatic habitats.[9] Approximately a quarter of U.S. homes use septic systems, leading to the disposal of more than 4 billion gallons of wastewater per day into these systems.[10] It is well documented that nutrients from septic systems which enter ground water and reach wildlife habitats can cause significant damage, including excessive plant growth.[11] Such excessive growth can block sunlight and kill beneficial plants, which in turn may deplete a major food source for some animals and fish.[12] Because affecting one species can have a cascading impact, wildlife and biodiversity up and down the food chain may be harmed.
While such pollution is dangerous to humans and livestock, it is particularly harmful to ecology and biodiversity. Nitrogen and phosphate, for example, harm lakes and rivers at significantly lower levels than levels that pose risks to humans.[13] Due to this disparity between threat levels between humans and ecology, precautions to protect humans are often insufficient to adequately protect ecology and biodiversity.[14] In many jurisdictions, human settlements and septic systems have expanded into rural areas, often having a higher negative impact on ecology than on humans.[15] Because there is a close link between expansion and increased ecological harm, the restrictions set forth in this proposed ordinance are designed to decrease ecological harm, increase biodiversity, and protect wildlife habitats.
EXAMPLES
As stated above, septic tank limitations may vary in how restrictive they are, ranging from prohibiting septic systems, to permitting them under limited circumstances, to requiring local government approval based on where and what sort of septic system is necessary to protect sensitive habitat areas. These restrictions may be implemented separately or in conjunction with one another. Below, we set forth examples of both strict restrictions and the creation of a review board and accompanying standards.[16]
Restricted Areas Examples
Lebanon, NH
Partially to protect wildlife habitats near wetlands, Lebanon created Wetland Conservation Districts.[17] Lebanon rates the value of its wetlands (i.e. low, medium, high, very high) using multiple criteria that address some of the “functional values of wetlands”, including, “ecological integrity,” “wetland wildlife habitat,” “production export,” “aquatic life support,” “educational potential,” “scenic quality,” “floodwater storage,” and “shoreline anchoring,” among others.[18] Lebanon prohibits the construction of septic tanks and leach fields within 100 feet of wetlands rated high or very high value and within 75 feet from wetlands rated low to medium value.[19] The ordinance recognizes that some septic tanks and leach fields may have been constructed prior to the implementation of the ordinance. Under these conditions, Lebanon requires those already in place and in violation of the new ordinance to “be replaced either in-kind or in a way that is less non-conforming, subject to State and local approval.”[20] By creating a separation between septic systems and wetlands, Lebanon minimizes the detrimental impact which septic systems and leach fields inflict upon the habitats and wildlife, while still allowing development in designated areas, and protecting those that have already built in such areas.
To view the provisions, see Zoning Ordinance of the City of Lebanon, NH §§ 401.1 – 401.6. (current through 2018)
Hybrid Restricted Areas and Board Approval Examples
Tuscaloosa, AL
The state of Alabama requires persons installing septic systems to be licensed by a board.[21] This requirement is specifically associated with more building in rural areas and the increased environmental hazard created by such action.[22] In order to mitigate the damage, Alabama requires the Alabama Onsite Wastewater Board “to examine, license, and regulate persons engaged in the manufacture, installation, or servicing of onsite sewage systems in Alabama.”[23] However, Alabama makes an exemption for those “installing, servicing, or maintaining an onsite sewage system on their own property with a one-family or two-family residence used as their primary residence so long as the owners of the property with an onsite sewage system complete all installation, cleaning, servicing, or maintenance themselves, without help, at their primary residence.”[24]
Due to Tuscaloosa’s special need to protect Lake Tuscaloosa, Lake Nicol, and Harris Lake, the City determined that the state law exemption should not apply in Tuscaloosa.[25] In addition, Tuscaloosa requires those with septic systems to register with the Lakes Division. The ordinance also restricts the ability to install septic systems within three hundred feet of the lakes, unless those systems were licensed prior to a specific date.[26] This provision of Tuscaloosa’s code was challenged as being inconsistent with state law. An appeals court determined that Tuscaloosa’s additional restrictions did not conflict with the state law and allowed the code to stand.[27]
To view the provisions, see Tuscaloosa Municipal Code 13-51 (2005); see also Ala. Code §§ 34-21A-1–10 (2010).
ADDITIONAL EXAMPLES
Additional Examples of Restricted Areas
Effingham County, GA, Code of Ordinances § 30-259 (d) (4) (2012) (allowing construction of septic tanks in buffer zones but prohibiting drain fields in buffer zones).
Columbus, WI, Code of Ordinances § 102-206 (1978) (prohibiting the creation of any new septic systems or other sewage disposal systems within city limits and declaring septic systems a public nuisance).
Additional Examples of Hybrid Restricted Areas and Board Approval
Tiverton, RI Code of Ordinance §23-39 (2003) (requiring board approval for rural developments, board evaluates “suitability in all of its design aspects including septic systems”).
Portsmouth, VA Code of Ordinance §§ 38-311 to 38-316 (current through 2018) (requiring the director of public health to give approval for installation, repair, maintenance, location, capacity and drain tile of septic tanks).
CITATIONS
[1] Water and Rural Residences: Helpful Guide to Septic Systems, Drinking Water, Streams, Lakes, and Floodplains, U. Idaho, https://perma.cc/23SE-96BK.
[2] Id.
[3] Id.
[4] Id.
[5] Ontario Ministry of Natural Resources and Forestry, Significant Wildlife Habitat Mitigation Support Tool 9-10 (2014), https://docs.ontario.ca/documents/4773/mnr-swhmist-accessible-2015-03-10.pdf.
[6] ENVIRONMENTAL ISSUES, ML MA-CLE 14-1.
[7] Platte County Health Department, Homeowner’s Guide to On-Site Sewage Systems, https://perma.cc/9ZGU-L5N6 (last visited Jan. 14, 2019).
[8] Long Island Sound Study, The Impact of Septic Systems on the Environment, https://perma.cc/KJ97-F3VT (last visited June 6, 2018).
[9] Massachusetts Energy and Envtl. Affairs, How Failing Septic Systems Can Be Hazardous to Your Health, https://perma.cc/BL86-VSXZ (last visited June 6).
[10] Envtl. Prot. Agency, A Homeowner’s Guide to Septic Systems 5 (2005), https://perma.cc/74TU-XNX6.
[11] Id.; Long Island Sound Study, supra note 9.
[12] Massachusetts Energy and Envtl. Affairs, supra note 10.
[13] Tri-State Water Quality Council, Septic System Impact on Surface Waters: A Review for the Inland Northwest 5 (2005), https://perma.cc/92Y9-M64K.
[14] Id.
[15] Id. 6-8.
[16] See e.g., Gwinnett Cty., GA § 270-20.5 (current through 2018).
[17] Zoning Ordinance of the City of Lebanon, NH § 401.1 (current through 2018).
[18] Rick Van de Poll, Phase II Natural Resource Inventory for the City of Lebanon, at 84, 2010.
[19] Zoning Ordinance of the City of Lebanon NH § 401.6(B) (1) (current through 2018).
[20] Id. at § 401.6(B) (2).
[21] Ala. Code § 34-21A-1 (2010).
[22] Id.
[23] Id.
[24] Id. at § 34-21A-10.
[25] Tuscaloosa Municipal Code § 13-51 (2).
[26] Tuscaloosa Municipal Code § 13-51 (3) – (4).
[27] Peak v. City of Tuscaloosa, 73 So. 3d 5, 9 (Ala. Crim. App. 2011).