The Hogan administration’s move to stop requiring less-polluting septic systems across most of the state has earned raves from developers and rural county officials who say it was expensive and unnecessary, and censure from environmentalists who say it will promote sprawl and degrade water quality.

One thing both sides agree on: Gov. Larry Hogan likely has the authority to relax the 4-year-old requirement, which had been a tough sell for his predecessor.

Hogan announced the rollback in August at the annual summer meeting of the Maryland Association of Counties, and his Department of the Environment followed up in mid-September by formally proposing the change.

It’s the latest of a series of steps the Republican administration has taken to ease or even eliminate laws and regulations it considers burdensome or unnecessary. The septic requirement has been unpopular with developers and rural officials since former Gov. Martin O’Malley imposed it in 2012. Hogan’s regulatory reform commission last year listed it as one of a handful of environmental rules recommended for review and possible repeal.

The new rule would exempt new homes and commercial dwellings inland from the Bay from having to install high-tech septic systems that are designed to reduce the amount of nitrogen from human waste that’s allowed to escape into groundwater, streams and rivers.

Nitrogen, along with phosphorus, are the main nutrients responsible for feeding algae blooms and fish-stressing “dead zones” in the Bay.

The new septic rule states that Maryland home builders only need to install septic systems on homes that are built within the Critical Area, the land up to 1,000 feet back from the shoreline along the Chesapeake Bay and its tidal tributaries. Homes built farther inland could go on conventional septic systems, which on average deliver about 10 times more nitrogen to waterways as homes on sewage systems. Homes built with septic systems that use “best available technology” reduce the nitrogen released by about half.

The Maryland Department of the Environment estimates that the law affects 703 homes annually — the average built on septic systems outside the Critical Area since 2013. Of more than 500,000 homes on septic systems in Maryland, only about one in 10 are in the Critical Area.

In a functioning septic system, a buried tank holds the solids, and the liquid waste seeps into a subsurface drain field via a network of pipes. The wastewater oozes through the soil, which breaks down harmful bacteria, but much of the nitrogen in the waste stream seeps out into the ground water. Enter the de-nitrifying septic, which adds technology that costs the homeowner about $7,500 more than a conventional system. Realtors and developers passed the cost on to homeowners, but the new buyers often got state assistance.

Taxpayers had already been footing the bill for high-tech septic systems. Since the Bay Restoration Fund was created in 2004, taxpayers have helped pay for 4,842 denitrifying septic systems in the Critical Area, the fund’s priority, but 3,285 systems outside of it got financial assistance, too. Households that earn less than $300,000 a year could get the state to pay for most of the system, while those earning more could still recoup 50 percent of the costs with state funds.

That money, Hogan officials said, will now be spent hooking up communities on failing septic systems to sewer lines and on hiring more inspectors to find failing systems. On Kent Island, Maryland is helping to fund the $50 million sewer line to hook up 1,500 existing homes grappling with failing or soon-to-be-failing septic systems. The state also invested in a new $19 million plant in Greensboro, which will be connected by pipeline to the town of Goldsboro, where septic systems have long been leaching pollution into local waters. In both cases, public officials have been aware of the failing septic system for decades, but never had the funds to fix the problem. 

The MDE says it figures the septic rollback will increase nitrogen pollution of the Bay by a total of 50,000 pounds over the next 10 years. Maryland will still be able to meet its Bay restoration goals without the requirement, spokesman Jay Apperson said.

But the O’Malley administration estimated a much greater benefit to the Bay from requiring less-polluting septic systems statewide. Its officials projected that putting high-tech systems on every new home built on septic until 2035 would deliver 600,000 fewer pounds of nitrogen to streams that ultimately flow into the Chesapeake.

Either way, the role septic systems play in the Bay’s woes seems a drop in the proverbial bucket. All of Maryland’s septic systems leak nearly 3 million pounds of nitrogen into the Chesapeake, or 6 percent of the state’s overall contribution of that nutrient. Agriculture, in contrast, sends 17.2 million pounds into the Bay annually, or 36.6 percent, according to Baystat, the O’Malley administration’s information clearinghouse on Bay pollution data.

Developers have seized on that apparent mismatch. A farmhouse on a septic system leaks far less nitrogen into the Bay than would a field of corn growing around it, argued Russ Dickens, a partner with Elm Street Development, which is based in Annapolis.

Yet the cost of installing expensive high-tech systems on more than 100,000 new homes — the number the O’Malley administration estimated would be built on septic through 2035 — could top $1 billion, Dickens said.

“If you’re talking about something in Frederick County, it’s never going to see the Bay,” Dickens said. “I come from a biased viewpoint here, but I think [the rollback] was common sense. It’s the right thing to do.”

But pollution from septic systems is about more than the Chesapeake Bay, rollback opponents say. The de-
nitrifying technology also reduces nutrient levels in groundwater, where it poses health risks to those who drink from wells, said Robert Summers, a former MDE secretary under O’Malley. Conventional septic systems put out 40 milligrams per liter of nitrate; the U.S. Environmental Protection Agency’s safe drinking water standard is 10 milligrams per liter. Elevated levels of nitrate in drinking water can lead to hypertension, heart disease, and, for infants, a potentially fatal blood disorder called methemoglobinemia, or “blue-baby” syndrome, which deprives the blood of oxygen.

“Rural residents and some towns that rely on groundwater for drinking water already have to treat their wells for nitrate,” he said.

Nationwide, about a fifth of households use septic systems. A 2013 paper published in Frontiers in Ecology and the Environment, titled Do Septic Systems Pose a Hidden Threat to Water Quality, showed that the systems can become a chronic water-quality problem. For decades, the U.S. Geological Survey has measured elevated nitrates in groundwater on the Eastern Shore of Maryland. Agriculture is the leading source, but in residential areas, it says, domestic septic systems are a factor. According to the EPA, 28 percent of Maryland has groundwater nitrate concentrations higher than 5 milligrams per liter; for Delaware, it is 53 percent. Maryland has the second greatest extent of contamination in the nation, after neighboring Delaware.

And while septics’ contribution to the Bay’s overall nutrient pollution may be small, the nitrogen leaking out can be a significant problem in some rivers, such as the Severn.

Other opponents of the rollback say it will contribute to rural sprawl. The high-tech septic mandate accompanied O’Malley-backed legislation that state lawmakers passed in 2012 which restricts the extent of new development on septic systems of any capacity.

The law divided land into four tiers; one served by sewer, one designated for sewer in the future, one that would be rural villages on septic, and one designated as preservation with no major subdivisions on septic systems. Each county was to submit its own maps, with state oversight.

“If we are serious about restoring the Bay, we should work together to locate new residential development in areas served by public sewer and discourage large lot subdivision using septic systems,” officials for O’Malley’s departments of planning and the environment wrote in a letter responding to builders’ concerns about the septic law.

The Hogan administration’s proposed regulation does not change the tier law, but environmental advocates worry the rollback will weaken its impact. Already, the MDE has restored planning authority to Cecil County, where local officials had refused to go along with the septic development restrictions — and O’Malley officials had responded by blocking local authority to approve large new housing projects not connected to sewers. A letter from Hogan’s deputy MDE secretary, Lynn Buhl, restored the Cecil County Health Department’s authority to approve major residential subdivisions on septic systems, wherever they are proposed.

Evan Isaacson, a policy analyst for the Center for Progressive Reform and former counsel for the committee that reviews regulations, said O’Malley officials pressed on with septic rules even though they were unpopular with rural counties. The previous administration believed the high-tech mandate was one of very few tools available to control sprawl on septic systems in a state where local jurisdictions wield most of the land-use power.

“It’s a death by a thousand cuts, as it is with a lot of these policies,” Isaacson said. “In and of itself, I don’t think it’s going to have a tremendous impact on the Chesapeake. But it’s the wrong direction to be going in for sure.”

Environmentalists have been meeting since August to determine what, if anything, they can do to reverse course on a requirement they say encourages sprawl and water pollution.

“We’re going to try, of course, to make our case. We’re not likely to win,” said Dru Schmidt-Perkins, executive director of 1,000 Friends of Maryland, a Smart Growth group. “This is a pure handout to the worst of the developers, the ones doing it on large lots outside towns. Instead of being prevented, now pollution has to be cleaned up, and it will be cleaned up by taxpayers.”