What’s In The BAT Repeal Regulations?

As previously reported on Conduit Street, Governor Lawrence (Larry) Hogan announced at the 2016 MACo Summer Conference that the Maryland Department of the Environment (MDE) would be proposing regulations to repeal the requirement that new or expanded capacity septic systems located outside of a Critical Area use best available nitrogen removal technology (BAT). MDE has released a copy of the proposed regulations and an explanation sheet on MDE’s broader approach to septic systems (links to both below).

Previously, MACo has raised concerns about the “one size fits all” approach, questionable nitrogen reductions, and increasing in affordable housing costs that accompanied the outside the Critical Area BAT requirement. The BAT issue was one of the key concerns MACo raised in its comments to the Regulatory Reform Commission in 2015.

BAT Regulation Reform

The proposed regulations will include the following changes:

  • Repeal: Repeal the mandatory use of BAT or equivalent systems outside of a Critical Area except for newly constructed large septic systems with a design flow of 5,000 gallons per day or greater
  • Local Flexibility: Authorize a local government to enact BAT requirements outside of a Critical Area in order to protect public health or the waters of the State
  • Critical Area BAT Requirement: Incorporate the current statutory requirement for BAT systems within a Critical Area for new construction or replacement systems into the regulations
  • Definition of New Construction: Specify the definition of “new construction” does not include the renovation or repair of an existing residence
  • Maintenance Contract & Warranty: Require all new BAT systems (inside or outside of a Critical Area) to include a two year operation and maintenance contract and a two year warranty, effective from the date of initial installation
  • BAT Maintenance: Clarify that if a property owner with a BAT systems choses to have an approved management entity operate and maintain the system, the management entity must do both (all other existing maintenance and service provider requirements are retained)
  • Stylistic Changes: Make several stylistic or non-substantive changes to wording, grammar, or terminology

MDE Septic System Strategy

However, the BAT regulation reform is only part of a broader 3-pronged effort that MDE is undertaking regarding septic systems. From MDE’s explanation sheet:

This BAT septic system regulatory reform is one part of the Department’s broader effort to meet clean water goals in the most effective, efficient, and equitable ways. The broader effort includes:

Reforming the BAT regulations – as described above.

Re-tooling inspection and enforcement efforts. The Department is committing to enhance compliance assistance and enforcement efforts with an emphasis on failing septic systems statewide.

Re-thinking the septics vs. sewer decisions. In many cases counties and communities are seeking financial, legal, and regulatory assistance to help connect failing septic systems to public sewer. MDE and the Maryland Department of Planning (MDP) will participate in a workshop for local governments and other interested parties in the coming months on opportunities for septic to sewer projects, including financial and technical assistance the Departments can offer for such efforts.

MDE Secretary Ben Grumbles: “We are fully committed to clean water progress and meeting Chesapeake Bay goals and requirements. This is a measured step to reduce regulatory burden and build public support for a smarter and more effective septics program across the state. We are customizing the statewide requirement to meet local watershed needs more effectively while still insisting on excellent environmental results. Innovation and collaboration at the local level, rather than locking into one particular technology, will lead to more success in protecting and sustaining Maryland’s precious environment. We will work hard to make sure it happens through regulatory reform, education, compliance assistance and enforcement.”

The proposed regulations will be published in an upcoming issue of the Maryland Register and be subject to a 30 day public comment period from the date of publication.

Useful Links

MDE 2016 Proposed BAT Septic Regulations

MDE Handout Explaining Proposed BAT Regulations & General Septic System Strategy

Conduit Street Coverage of Governor Hogan’s BAT Announcement

Conduit Street Coverage on MACo Letter to Regulatory Reform Commission

Prior Conduit Street BAT Septic Coverage