Builders: Septic Bill Represents State Control Over Local Land Use

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By D. Stephen Seawright

The Sustainable Growth and Agricultural Preservation Act of 2011, or, if truth in labeling were to prevail, “The Anti-Growth and State Control Over Local Land Use Act”.

This bill is being justified as a measure to address Water Quality issues related to septic systems, when in fact, the focus of the bill is restriction of land use in rural areas of Maryland as an indirect means to force Smart Growth development.

By restricting the types and number of septic systems that can be used in rural areas, this measure provides the Maryland Department of Environment and Maryland Department of Planning with veto power over local land use decisions.

Supporters say: “Pollution from septics will increase from 8% to 34% if left unchecked” and over the next 20 years, 145,000 homes on septic will be built.
Fact: These message points are based upon two inaccurate premises.
The first is that 100% of all nitrogen arising from septic field operation makes its way into the Bay. Given variations within the Chesapeake Bay watershed in soil types, depth to water table and the distance of nitrogen source from the Bay’s tidal waters, there are significant variations in loading from different areas in the State.
The second premise is the State’s growth projection for the number of homes estimated to require septic systems. Over each of the past two years roughly 9,000 permits per year have been issued statewide for construction of single family homes, with the State estimating that 20% of those permits are issued for homes in “unplanned sewer service areas”. This means the 20 year projection is approximately 36,000 homes, not 145,000. And, if you were to double the number of septic fields built statewide over the next 20 years based on the hope that home building numbers will not always remain as low as the past 2 years (unless the Administration’s septic ban is passed), you have a projection of 72,000 homes, not 145,000.

Supporters Say: “The bill targets massive 200-300 homes subdivisions”.
Fact: The bill targets all developments of 5 units or more, describing “...5 or more…” as a major subdivision. It is unclear that any 200-300 unit project proposals would be accepted in a rural area.

Supporters say: “Three counties already have bans in place.”
Upon further scrutiny of local land use policy, there are no counties that specifically ban septic systems.

If the Administration’s goal was to address water quality issues, this bill would be unnecessary, as the Bay Clean Up process is underway.” All municipal and county jurisdictions statewide have entered into Phase II of the Watershed Implementation Plan (WIP) and the Water Resource Plan, which are now part of the General Development Plans for every jurisdiction. The Phase II process is an elaborate and extensive process having the primary objective of Water Quality improvement. In the Phase II process each jurisdiction must account for projected growth over the next 20 years and adopt programs ensuring that total nitrogen reductions from jurisdiction land uses will be sufficient to meet allowable rates of nitrogen discharge mandated by the State. The Phase II planning process has started and jurisdictions across the State must submit their draft WIPs to MDE by September, 2011.

What can be recognized from the foregoing assessment is that the proposed legislative measure has almost nothing to do with water quality and everything to do with State pre-emption and control over what should be local land use decisions. Supporters do not speak of the underlying purpose of this unwarranted legislation and treat as “acceptable collateral damage” the significantly heightened unemployment and massive damage to local tax bases that are certain to follow if this measure were passed. The Maryland State Builders Association strongly disagrees, and urges opposition to this legislation.

D. Stephen Seawright is President of the Maryland State Builders Association.
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