Our Letter to the MD Legislature; No to Renewed BAT Regulations

The 2017 Maryland General Assembly considered a pair of bills that would have re-instituted statewide Best Available Technology (BAT) requirements for new on-site sewage disposal systems (OSDS), colloquially known as septic systems.  Our January 2017 correspondence to the legislature and subsequent February 2017 testimony before two legislative committees was instrumental in tabling this economically onerous and scientifically unnecessary legislation.  Here is one of the letters we furnished in opposition to Senate Bill 266 of the 2017 session.

“… Both as a small business owner and as an environmental professional, we oppose SB-266 because the requirements within this bill are wholly unnecessary to protect the Chesapeake Bay and its tributaries. It also further impairs an important sector of the economy, on which my firm and many like us continue to (at least partially) depend. SB-266 harms the housing and construction industries and those who support and depend on it.

“When Governor Hogan wisely lifted the costly and unnecessary BAT requirement last year, the decision represented a small step back toward a more fair and equitable balance between environmental, agricultural and property rights interests. An appropriate balance between these interests benefits the economy of Maryland as a whole. However, the economy has suffered and will continue to do so because of an imbalance which arose from the Sustainable Growth and Agricultural Preservation Act of 2012 (the 2012 Act). SB-266 tips those scales of imbalance even further.

“As background, in 2011 the Maryland General Assembly considered a bill that would have banned development of most new residential subdivisions served by on-site sewage disposal systems (OSDS, commonly called septic systems). While that bill did not pass, a subsequent gubernatorial task force recommended the similar but even more sweeping 2012 legislation, which required counties to limit new residential subdivisions to seven lots or less in most areas of rural Maryland. Advocates of the 2012 Act promoted it as both agricultural preservation and Chesapeake Bay protection.”

We offered “… four semi-independent perspectives on these motivations, which seem the same motivations behind SB-266:

  • “Negligible Environmental Benefit of BATs – The 2012 Act was heralded as a necessary component of Chesapeake Bay protection. Then as now, the science backing this assertion was and remains dubious at best. According to the facts supporting the Act (not the skewed view presented to the legislature by its supporters), and now SB-266, Maryland OSDS (i.e., septic systems), without BATs, constitute less than 2% of overall Bay pollution. This percentage only will lessen in the future because agriculture and urban stormwater constitute expanding nitrate sources, both in Maryland and elsewhere, but nitrates from septic systems do not grow because their nitrates are attenuated at or near their points of generation. In fact, an acre of cultivated farmland discharges much more nitrate than the same acre with a household septic system, even without a BAT system. Professionally peer-reviewed studies repeatedly show that nitrates of septic origin are diluted through percolating rainwater on an acre of land and (2) biomats naturally form beneath septic systems, and these biomats absorb and break down nitrates before they reach the water table.
  • “The Fear of non-BAT Septic Discharges is Overstated – The overwhelming majority of the potentially allowable residential septic systems in Maryland have been constructed. The 2012 Act and the subsequent expiration of its grandfathering hastened the end of major subdivisions supported by individual septic systems. The 2012 Act established October 2016 as the “sunset” date for its grandfathering provision. That date has come and gone. Now and per the 2012 Act, no major subdivision (over 7 lots in most counties) can be countenanced for the expansive “Tier 4” areas as defined under the 2012 Act. Only recently has the slow economic recovery begun to be enjoyed by builders and by owners of land that once had development potential. This slow, uneven pace of recovery was not foreseen at the time the grandfathering provision within the 2012 Act was added. In fact, many projects remained halted for a lack of funding necessary to complete entitlement work and secure preliminary plan approval in time to secure grandfathering under the Act. The sunset date of October 2016 came and went and many if not most of these previously planned subdivisions were canceled as a consequence. Their previously proposed locations remain farmland, forest or pasture. New septic systems will be few in number, limited in areal concentration and inconsequential in terms of Bay nitrate impact.
  • “Economics – As born and raised Baltimoreans, we watched less-educated people (i.e., high school or less) in our parents’ generation hold and then lose manufacturing jobs. Despite what President Trump may hope, think and do, those employment opportunities are gone and are not coming back. We watched people secure jobs in construction and related fields, often directly or indirectly supporting new residential housing. The 2012 Act has combined with other marketplace factors to limit those employment opportunities, which SB-266 will reduce further by making new residential homes even costlier. SB-266 will lessen employment opportunities and can only further harm the residential construction industry and those that both serve and depend on it, which we  understand to be 22% of Maryland’s overall economy. … Furthermore, that SB-266 would require BAT retrofits to existing homes simply for adding a bedroom or replacing an existing septic system (which can cost $30,000 even before BATs) is economically outrageous. The economic harm SB-266 would foist upon such homeowners would greatly exceed the speculative environmental benefit of a BAT retrofit as SB-266 requires.
  • “Sociology – … Right out of college, many young professionals seek to live in urban places with a vibrant night life. As they age they settle down, get married and start families. Many then seek to buy houses in outer suburban or rural locations. This predilection toward outward migration will not be solved by placing restrictions on the allowableness, feasibility and cost of rural residential construction. The Maryland legislature may seek to create urban housing demand and to stimulate economic growth in cities as a consequence of land use and environmental statutes restricting (and/or increasing the cost and availability of) outer suburban and rural housing, but simply desiring inner suburban or urban housing demand does not itself create said demand. Socio-economic solutions to urban depopulation cannot be achieved merely by rural land use statutes and regulations promoted in the name of agricultural preservation and/or environmental protection. There are many reasons people choose not to live in urban areas, and it is their motivation that requires address. If affordable outer suburban and rural housing is unavailable to this highly-trained professional work force because of environmental and related restrictions, many will take their families and talents out of state. Some have already, and more will.

“The 2012 Act harmed land owners, builders, developers and the 22% of the Maryland economy reliant thereon…  The collective harm to these employers and their employees cannot be undone any more than a bell can be un-rung. However, before the 2017 legislature now is SB-266, which can only increase that harm. Further, SB-266 appears technically unsupported, punitive and draconian. Some semblance of fairness and balance between environmental and rural real estate interests benefits all Marylanders. We implore the legislature to do the responsible thing, stop punishing the building community for Bay pollution, and reject SB-266.”
ALWI expects that BAT legislation will return in future legislative sessions.  We’ll remain active in this issue, as appropriate considering the science of the issue and the interests of our clientele.

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