Sonoma County Land Rights Coalition

This is an online copy of the information from our March 2009 newsletter

AB 885 and ONSITE WASTEWATER TREATMENT SYSTEMS [OWTS]

Sonoma County Land Rights Coalition has been sending periodic postcards advising members of the issues concerning AB 885 and the State Water Resource Control Board’s proposed regulations to regulate rural septic systems and wells. Many of our members attended and spoke at the two workshops on February 9th at the Wells Fargo Center. Without exception the speakers were adamant in their opposition to the regulations, as was the audience of over 2000.

Members of Boards of Supervisors from a number of Counties, attorneys, farmers, and environmental professionals also gave testimony about the the technical inadequacies and inconsistencies of the proposed regulations and the un-enforceable nature, the lack of provision for funding, and the burdensome effect on land use of the proposed regulations.

The most oft-repeated statement was that rural citizens are clearly committed to clean water. It is their own ground water that they drink and what nourishes their vegetable gardens. Clean water is the basis for their animals’ well being and their own livelihood. Who better to oversee the proper working of the septic system and the purity of their wells than those of us who live on the land day in and day out? It is a self regulating system that, in concert with the counties’ public health agencies, is working well in most of the State.

No one wants to contaminate his own, nor his neighbor’s groundwater; but these regulations do not adequately address this potential problem.

HISTORY

AB 885 was originally designed in 1998 to “[direct] the Department of Health Services (DHS) to adopt regulations for statewide performance standards for onsite sewage treatment systems (onsite systems) in the coastal zone,” and was to “appropriate $50,000 from the General Fund” for its provisions. It was designed to to address actual pollution problems and repeated beach closings around Malibu, which did not have adequate regulation of septic systems, and along six contaminated waterways in Southern California with effluent from 2,798 septic systems.
[Source: http://info.sen.ca.gov/pub/99-00/bill/asm/ab_0851-0900/ab_885_cfa_19990412 _151248_asm_comm.html]

The 2000 Budget Act appropriated $300,000 from the General Fund for initial research and data gathering needed to begin the process of developing standards for on-site septic systems. The SWRCB estimated additional costs of up to $1,800,000 to $2,400,000 in order to complete its work by January 2004.
[Source: http://info.sen.ca.gov/pub/99-00/bill/asm/ab_0851-0900/ab_885_cfa_20000828 _092305_sen_comm.html]

On August 18, 2000 the term “the coastal zone” was removed from the text, increasing its coverage to the entire State.
[Source: http://info.sen.ca.gov/cgi-bin/postquery?bill_number=ab_885&sess= 9900&house=B&site=sen]

AB 885 was passed by both Houses on August 29, 2000 and became a part of the California Water Code, Division 7, Chapter 4.5, Section 13290 - 13291.7. The law requires the State Water Resource Control Board to “develop standards by regulation” to control contamination of ground and surface water from septic systems across the entire state.

The State Water Resource Control Board chose to take a very comprehensive approach to writing regulations instead of setting basic standards by regulation and leaving the “how to” to the local agencies.

The proposed “standards or regulations” [to be included in Title 27, Division 5 of the California Code of Regulations] are targeted for application to new and existing OWTS [onsite wastewater treatment systems - septic systems]. The statute requires that the regulations or standards shall include, but are not limited to:

1. minimum operating requirements;

2. requirements for OWTS adjacent to water bodies identified as impaired pursuant to Section 303(d) of the Clean Water Act;

3. requirements for authorizing local agencies to implement the State regulations or standards;

4. requirements for corrective action;

5. minimum requirements for monitoring to determine performance, as applicable;

6. exemption criteria to be established by the Regional Water Quality Control Boards;

7. requirements for determining when a system is subject to major repair.
[Source: http://www.waterboards.ca.gov/water_issues/programs/septic_tanks/docs/draft_eir/sor_finaldraft2.pdf]

“The SWRCB’s goal is to ensure that the discharge from new OWTS is relatively free of pathogen indicators prior to the discharge reaching groundwater.”
[Source: http://www.waterboards.ca.gov/water_issues/programs/septic_tanks/docs/draft_eir/sor_finaldraft2.pdf]

THE WAIVER

The California Water Code (CWC) section 13260(a)(1) requires that any person discharging waste, or proposing to discharge waste that could affect the quality of the waters of the State [other than a discharge into a community wastewater collection system] shall file a report of waste discharge (ROWD) with the appropriate Regional Water Board, with the accompanying fee.

That means California law requires that all private property owners who have OWTS ["Onsite Wastewater Treatment Systems" or septic systems] would have to file a report of waste discharge (ROWD). Part of the goal of the SWRCB’s proposed regulations is to set forth standards which, if met, would enable the Regional Water Resources Control Boards to give a blanket waiver to OWTS owners so they would not have to file the report and contend with other, more costly and stricter federal regulations.

Some of the details required by the report [ROWD] include, “design and actual flows, a list of constituents and the discharge concentration of each constituent, a list of other appropriate waste discharge characteristics, a description and schematic drawing of all treatment processes, a description of any Best Management Practices (BMPs) used, and a description of disposal methods,” latitude and longitude of the facility, and so on. Also required would be National Pollutant Discharge Elimination System (NPDES) permits and CEQA (California Environmental Quality Act) clearances.

California Water Code [Section 13263] also requires that a Regional Water Board prescribe waste discharge requirements (WDRs) for any existing discharge, or any material change in an existing discharge.

The State Water Board [SCWRB] will waive the requirement for owners of OWTS to submit an ROWD and to apply for or obtain WDRs “only if owners of OWTS comply with the provisions contained in” the proposed regulations.

THE PROVISIONS

Briefly, these are the provisions in the proposed regulations:

–Owners must have their septic tanks inspected for solids accumulations every five years by a qualified service provider. [the "dip stick" test]
Estimation of cost for Inspection — $325.

–Owners whose existing septic systems are within 600 feet of a surface water body that does not meet water quality standards ["impaired" water body] will be subject to special requirements.

–Owners will have to keep documentation to show that they are adhering to the regulations.

–Owners with an onsite domestic well on their property must have a state certified analytical laboratory analyze well water (groundwater) for specified constituents once every five years and report the results electronically to the State Water Board. Estimation of cost for domestic well sampling and reporting –$325.

These are the “specified constituents” that groundwater will have to be tested for:

calcium (Ca), magnesium (Mg), sodium (Na), potassium (K), iron (Fe), manganese (Mn), zinc (Zn), sulfate (SO4), chloride (Cl), nitrate (NO3), nitrite (NO2), fluoride (F), TDS, total alkalinity (as CaCO3), carbonate (CO3), bicarbonate (HCO3), MBAS (methylene blue active substances), pH and total coliforms. If a sample tests positive for total coliforms, the sample shall be analyzed for Escherichia coli bacteria.
The name of the site owner, the site address and the laboratory results shall be transmitted to the SWRCB in EDF format. The names and addresses of owners of tested domestic wells shall not be released.
[Source: APPENDIX B Proposed OWTS Regulations and Conditional Waiver
http://www.waterboards.ca.gov/water_issues/programs/septic_tanks/docs/appendix_b_proposed _owts_regulations.pdf]

THE EXPENSIVE PROCESS

The original law [CA Water Code, Division 7, Chapter 4.5, Section 13290 - 13291.7] calls for the regulations to be adopted “on or before January 1, 2004.” Unfortunately, the first set of regulations written by the State Water Resource Control Board was rejected by the public and participating agencies as an overly-complex “one-size-fits-all” solution that was unworkable. The regulations have been re-written and re-worked at least three times and the original deadline is long past.

The State Water Resource Control Board is currently re-writing these regulations for the fourth time, adding to the monumental waste of nine years worth of salaries and expenditures amounting to millions of dollars. To date, there is no benefit to the citizens of California from these nine years and millions of dollars of taxpayer’s money.

It is time for the legislature to rework the original legislation and more specifically direct the SWRCB to enact standards which protect ground water while allowing local agencies the leeway to regulate OWTS in a manner which reflects local geology and hydrology, social and land use conditions.

WHAT THE REGULATIONS AND THE LAW DO NOT ADDRESS

Neither the law nor the proposed regulations requires the Water Board to identify the source of contamination in a stream but places the burden and expense of proof on rural property owners. Expenses for mitigation or re-siting a septic system can grow to $45,000 or more for an engineered system.

There is no provision in either the law nor in any version so far of the proposed regulations for mitigation for a parcel that is deemed uninhabitable and therefore unsalable. This opens property owners to the expense of inverse condemnation [taking of property by the State without use of eminent domain and without just compensation] and burdens state taxpayers with expensive inverse condemnation lawsuits.

The regulations, as proposed, amount to a regulatory ‘taking’ and are counter to Article 1, Section 9 of the California Constitution: “A[n] … ex post facto law… may not be passed.” In other words, the State may not pass a law making something illegal which was once legal [with a permit].

County Boards of Supervisors and local Public and Environmental Health Agencies oppose the proposed regulations because they do not adequately address the administration or enforcement on behalf of the State, leaving the counties and regional agencies with the expense. The current permit and public health systems used by counties have, for the most part, worked well in partnership with property owners to issue permits, mitigate problems and inspect construction — all on a local level. Sonoma County is particularly cited in the proposed regulations having an efficient system.

The State Water Board [SCWRB] will waive the requirement for owners of OWTS to submit an ROWD and to apply for or obtain WDRs “only if owners of OWTS comply with the provisions contained in” the proposed regulations.

ALTERNATIVES

Although it may be argued that this is a Federal mandate of the EPA and the Clean Water Act, each State may refuse to implement these regulations by refusing Federal money. This is happening now with some states refusing funds from the Federal Stimulus Package. States are refusing the money to protect their sovereignty and States Rights because of the restrictions and control the Federal government has attached to the acceptance of the funds. The likelihood of the State of California refusing Federal funds is deemed to be quite low.

The State has never written alternative waste treatment regulations for composting or incinerating toilets. These alternatives to OWTS have proven effective, cost-efficient and had a positive effect on ground and surface water pollutants. The legislature must re-write the law requiring the SWRCB to recognize the effectiveness of non-water-based human waste management systems as viable alternatives to traditional septic treatment systems.

SWRCB SCHEDULE [as of 3/09 - may be changed]

• Dec. thru April 2009: Staff prepares responses to comments and makes appropriate revisions to proposed regulations, statewide waiver and DEIR.
• August 2009 – 30 day comment period ending with adoption of EIR, regulations and waiver
• Jan. 1, 2010 – Effective date of regulations
• July 2010 – Implementation date of regulations (AB 885 stipulated a six month delay)

WHAT CAN YOU DO?

SCLRC supports repeal of AB 885.

The cost for enforcement was inadequately addressed in the DEIR [Draft Environmental Impact Report] and was estimated to run to between $300 and $400 million per year. The regulations were called “self-enforcing” in the DEIR, leaving most of the expense to the regional Water Boards and local agencies without funding from the State.

One Senate analysis of the original bill stated, “…it is unclear why the state should be required to pay local agencies to conduct surveys to determine whether onsite sewage treatment systems under local jurisdiction are operating properly. These local agencies, as the bill notes, have the authority of levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated.” [Source: http://info.sen.ca. gov/pub/99-00/bill/asm/ab_0851-0900/ab_885 _cfa_20000814_103611_sen_comm.html]

Neither this State nor local agencies can afford this ridiculously expensive extra layer of state-wide regulation to fix a problem that has not been proven to exist on a state-wide basis. Nor can we afford the legal costs to fight unlawful taking of our rights.

As some action will be required under the Federal Clean Water Act and the California Porter-Cologne Water Quality Control Act, SCLRC supports the following criteria for any replacement law:

-> Standards are scientifically based, allow for diverse local geological and hydrological conditions, are clear and straightforward.

-> The regulations are written and administered on a local basis by experts in local geologic and hydrologic conditions who are responsive to citizens effected by the regulations.

-> Establish statewide standards encouraging the use of alternative waste treatment systems.

-> Regulations must not deprive property owners of the use or value of their property.

TAKE ACTION

Please write your Senator, Assemblyman and Governor supporting repeal of AB 885.

Encourage your family, friends and neighbors to do the same. If every property owner made their directions known to our elected officials.

At our website [SonomaCountyLandRights.com] you will see a link on the right-hand side called Legislators’ Addresses. There you will find the addresses for regular mail, the email web pages, and fax numbers for your legislators and the Governor.

__________________

RESOURCES FOR
FURTHER INFORMATION:

To read the proposed regulations and the DEIR [draft environmental impact report]
http://www.waterboards.ca.gov/water_issues/programs/septic_tanks/
[NB the regulations and waiver are in Appendix B. Also available are an Economic Analysis and the original studies. Question and answer pages have been added this month.]

For a history of the AB 885 including analyses from Finance and Rules Committees:
http://info.sen.ca.gov/cgi-bin/postquery?bill_number=ab_885&sess=9900&house=B&site=sen

SWRCB “Reason for Rulemaking”: http://www.waterboards.ca.gov/water_issues/programs/septic_tanks/docs/draft_eir/sor_finaldraft2.pdf

Pollution and overuse of resources stem directly from the failure of government to defend private property. If property rights were to be defended adequately, we would find that here, as in other areas of our economy and society, private enterprise and modern technology would come not as a curse to mankind but as its salvation.
~ Murray Rothbard