Arguments from a homeowner in the San Geronimo Valley and confusion from staffers in Alameda County spurred the regional water board to clarify that Bay Area agencies need not adhere to stringent septic system standards outlined in a state policy passed in 2013.
Local governments can instead continue to apply their own regulations as they prepare Local Agency Management Plans, drafts of which must be sent to the state by the spring of 2016 for approval. Marin’s plan will look largely like its current regulations, albeit with a few tweaks, according to county environment health specialist Armando Alegria, who is in charge of writing the draft.
According to county officials, that’s a good thing; it would have been virtually impossible to approve any septic systems in Marin under the new state standards.
But Brady Wedman, a pilates instructor who lives in Forest Knolls, has argued that the state policy—often referred to by its legislative name, A.B. 885—requires compliance from local agencies when its guidelines are more strict than local rules.
Though he did not convince the water board of his reading, Mr. Wedman did score one victory. When he contacted the board, he also raised issues about his neighbor’s proposed septic system, which was approved by the county after Mr. Wedman and other neighbors lost appeals up to the Board of Supervisors. The water board has said it will review the proposed system.
“I feel that it is our duty as a public agency to be responsible to a member of the public that is significantly concerned,” said Christine Boschen, who works with the water board’s onsite wastewater treatment program. “We want to answer a simple question: Is the proposed septic system and dispersal area going to be likely to leak out into the surface water?… And if it looks like to us that it is, then we will [act].”
State septic policy
A.B. 885 created a statewide policy for new, replacement or failing onsite wastewater treatment systems—commonly known as septic systems—in California. In Marin, there are 7,000 or 8,000 septic systems, many of which are in West Marin.
The policy is divided into tiers characterized by different rules. Tier 1 outlines rules for new or replacement systems that pose a low risk to water quality; the rules guide how much vertical distance should be between a waste system and the groundwater, which can vary depending on the character of the soil, among other things. Tier 2 is for the same kinds of low-risk systems, but its rules will be described in the state-approved local plans, which agencies will tailor to their particular conditions. Tier 3—which went into effect immediately with the bill’s passage—imposes rules on new or replacement systems within 600 feet of impaired water bodies, such as Tomales Bay, Lagunitas Creek, Walker Creek and the Pacific Ocean at Bolinas Beach. Tier 4 applies to failing systems, and is also already in effect.
The policy gives local agencies five years to have local management plans approved. If agencies don’t write their own plans, they must abide by Tier 1 rules.
Mr. Wedman argued to the water board that the policy says local governments must abide by Tier 1 regulations if they are stricter than local rules until a local plan is approved. When there is no state-approved local plan—and there is a “conflict” between local rules and Tier 1—“the more restrictive standards shall govern,” the policy states.
But the water board reads that section differently. During a phone interview in December, Ms. Boschen pointed to the preceding sentence, which says local governments can keep implementing current septic rules for up to five years. For Mr. Wedman, that sentence means that in the five-year interim, agencies can apply their own rules when there is no conflict, or when local rules are more protective.
If Marin was bound to the state guidelines for septic systems, some systems would need to be at least eight vertical feet or more from the groundwater table, depending on the soil. County guidelines allow for a much shorter distance: sometimes three feet, or even two feet for alternative systems that pretreat wastewater. Tier 1 rules also prohibit systems on slopes greater than 25 percent; the project Mr. Wedman has protested is on a 37 percent grade.
Rebecca Ng, the chief of Environmental Health Services for Marin, said it would be impossible to permit Marin septic systems under Tier 1 regulations, particularly because of groundwater separation rules. “There’s no place in Marin that can meet that criteria. A lot of California cannot meet that criteria. That’s why… [our local criteria] was allowed,” she said.
In response to queries from both Mr. Wedman and county staffers in Alameda County, who were confused about whether they needed to follow the Tier 1 rules, the Bay Area water board sent a memo to local agencies in December.
The memo said counties must notify the regional water board whenever they wanted to approve septic systems that didn’t meet state guidelines. It didn’t say they had to comply, but that the board could check proposals to ensure that systems didn’t impair water quality.
But outcry from agencies led the board last month to reverse its position, saying it would not require counties to alert the board about projects that didn’t comply with the state rules; instead, they could continue to simply apply their own
regulations.
Ms. Boschen admitted that the language in the policy is “muddy.”
A.B. 885, she said, does not expressly prohibit regional water boards from asking local agencies to compare their current regulations to Tier 1. But Ms. Boschen added, what became clear after the December memo went out was that there was, in fact, a “verbal agreement that counties wouldn’t be compared to Tier 1 in this five-year grace period, where they were given that time to develop their LAMPs.”
The local plan process, she added, is a good time to make sure Marin’s staffers are evaluating how they intend to regulate undeveloped lots. Like other counties, she said, most parcels left to develop are on steep hillsides, like the one Mr. Wedman is contesting.
Mr. Alegria, the county environment health specialist, said the policy is clear: county rules are the law of the land until a local plan is approved. That December memo, he said, was “an error in interpretation of what the policy said.”
Still, Mr. Wedman is considering taking legal action to require the implementation of Tier 1 standards. But he would want a suit to consist of a coalition of groups. “It’s not a personal issue for me—it’s more of an issue of wanting to see our government do what it’s supposed to do,” he said. “I will explore every option I have at this point. I’m kind of committed.”
Forest Knolls project
Mr. Wedman’s insistence on the particulars of state code originated in his fight against a septic system just a few feet away from his home in Forest Knolls.
In 2014, he appealed the design review approval for a home and septic system at 110 Rosario Road, based on what he says are local regulations that weren’t followed—as well as the Tier 1 rules it violated.
The system, which will be installed on an undeveloped lot with a steep average slope, is an alternative system that will pretreat wastewater before it is sent to the leach field. Alternative systems are used when traditional septics cannot be installed because of site constraints, such as high groundwater.
At the April hearing at which supervisors denied Mr. Wedman’s appeal, Supervisor Steve Kinsey said he did not want to second guess septic engineers and Environmental Health Services, which had endorsed the project. He added that alternative systems are a way for people in tricky areas to process waste. The systems “have opened up an opportunity for this type of irrigation solution…in a community with high groundwater,” he said.
Mr. Wedman said that once he began looking at codes, he was led “down a trail to see many ways that the county was ignoring those codes and allowing for this project to go forward.” For instance, he said leach fields are supposed to be sited at least 75 feet from intermittent streams.
An intermittent stream is defined as a water course or stream channel “which carries water only part of the year and is dry the remainder of the year.” The stream in question is narrow and nestled between the road and the hillside; a video Mr. Wedman sent to the Light last month shows it flowing after a storm. And he said last week there was still some water in it, over two weeks after the last big storm. His fear, he said, is that wastewater will make its way into the watershed.
Jock Smith, the environmental health staffer who oversaw the septic system application, said in an email to Mr. Wedman, shown to supervisors at the hearing, that the channel was a “roadside ditch,” and didn’t require the stringent buffer. (In response to a Light inquiry, Mr. Smith would only say that the project was in full compliance with county code).
Mr. Wedman has also raised concerns about the history of percolation rates on the parcel. A percolation rate is the speed at which soil absorbs water; to determine the rate, water is poured into a test hole. The rate, typically measured in minutes per inch, can vary widely depending on the soil type.
Recent tests at 110 Rosario found a percolation rate of six minutes per inch. Based on a 1980 E.P.A. manual that describes typical rates for various soils, Mr. Wedman argued that the rate could not have been accurate for the type of soil at the property. He also pointed out that tests conducted at the property in 1985 showed a much different rate—10 times slower. And most of the test holes from 1991, in the wet season, failed altogether because the water wouldn’t drain.
Last April, he asked supervisor for more tests, to ensure the percolation rate was accurate and the site truly safe for a septic system. (Mr. Smith countered that the percolation tests had been properly conducted; the differences could be attributed to the fact that tests in the ’80s were conducted five to seven feet deep, for a standard septic. The new tests were one to two feet deep, for the shallow alternative drip system.)
There were further disputes about the vertical distance between the proposed system and the groundwater. Vertical buffers are meant to ensure that wastewater is thoroughly treated by the soil before it interacts with groundwater.
For Mr. Wedman, the two-foot buffer between the proposed system and groundwater isn’t enough; Mr. Smith argues it is adequate because a drip system would be used to spread effluent. The geologist for the project, Noadiah Eckman, wrote to the county that a drain would also mitigate “potential perched groundwater” around the leach field.
But the county’s responses did not shake Mr. Wedman’s belief that the system could contaminate local waters. So he went to the regional water board.
Though the board doesn’t have the authority to tell the county what to do right now, it can regulate anyone discharging wastewater.
It is rare for the regional water board, which devotes just a few employees to the wastewater treatment program, to review a septic system for a home. Ms. Boschen said the fact that it is in the San Geronimo Valley—where millions of dollars have been spent to protect habitat for coho salmon—plays into their decision. “That really drives a higher level of sensitivity and concern about what choices are made in the watershed,” she said.
It’s entirely possible, Ms. Boschen added, that a review—which will likely consist of getting the homeowner’s plans and conducting a site visit—could find the system is sufficient. But if it is not, the board can ask the homeowner to come up with a new septic plan.