Extended Session May Fix Septic Tank Rules For Builders & Developers In Wake County

The General Assembly continued to conduct business as usual last week, albeit on a reduced schedule, as the standoff between the Governor and legislative leaders continues to unfold. The legislative budget, which the Governor vetoed on June 28 primarily over the issue of Medicaid expansion, is on hold until that issue can be resolved. Since the beginning of the State’s fiscal year on July 1, it has operated under last year’s budget, so no state government shutdown will occur. However, pay raises for teachers and state employees, new programs and increased or decreased spending for existing programs are on hold if and until an agreement can be reached on a new budget.

However, the extended session may prove to be a blessing in disguise for builders and developers in Wake County. Recently, your NCHBA legislative team learned of a local Wake County issue concerning septic tank rules which would potentially cost members and landowners millions of dollars in lost land and retrofits to onsite wastewater devices.

Like all counties, Wake has a locally-delegated onsite wastewater program which is authorized by the North Carolina Department of Health and Human Services. These locally-delegated programs must meet the minimum requirements of state rules including a rule which requires a 25-foot setback for down-slope stormwater diversions. As a result of a recent Department audit, it was determined that Wake County had, for years, only been requiring a 15-foot setback. The county began enforcing the 25-foot rule prospectively but the dilemma was what to do about lots which had previously been approved and had homes in various stages of construction. Additionally, the county made the initial determination that it would not be able to “grandfather” any land or lots where applications or development plans had previously been filed, or approved, thereby leaving the legal status of countless lots in limbo.

In recent weeks, local developers and builders joined NCHBA staff with representatives of Wake County’s Environmental Department to discuss possible solutions to this situation which, at the minimum, raised the potential for costly litigation and possible public liability. Following the meeting, it became clear that the best solution for all parties would be a legislative fix which grants relief to builders and landowners who, in good faith, had followed Wake County’s rules in the platting and installation of septic systems.

Last Monday, your legislative team spoke to Representative Mark Brody (R-Union) about the immediate need to correct this problem. Representative Brody is a home builder from the Charlotte region and fully appreciated the urgency of the situation. After working with Rep. Brody and legislative central staff, language was drafted that would allow “a minimum horizontal distance between every sanitary sewage treatment and disposal system and downslope interceptor drains, foundation drains, and stormwater diversions shall be 15 feet,” for any application or development plan submitted prior to August 1, 2019.

This language was added to SB 353 (Amend Cartway Path/Septic Tank Laws) with the full support of Senator Tom McInnis (R-Richmond) who is that bill’s prime sponsor. NCHBA’s legislative team quickly went to work briefing the Wake County delegation on the issue. All the members of the delegation that we were able to meet with were in full support of a legislative fix.

After passing out of the House Rules Committee on Wednesday, the bill was added to Thursday’s House floor calendar where it passed the House 111-2 on second reading. However, an unrelated technical amendment was added to the bill on third reading which delayed the vote on third reading until next week. After the bill passes this vote in the House, it will be returned to the Senate for a single concurrence vote, before being sent to the Governor. While NCHBA’s fix would apply statewide, it appears that Wake is the only county in the state where this rule is an issue.

Legislators will return for voting sessions in Raleigh on Tuesday of this week and SB 353 will be on the House floor calendar. Stay tuned for further developments.

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