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April 18, 2014
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Groups threaten suit over Act 41; Septic systems in Wayne/Pike watershed


NORTHEAST, PA — Elected officials at every level were supportive of Act 41, which Governor Tom Corbett signed on July 2. The act stipulated that properly designed septic systems are automatically in compliance with Pennsylvania’s anti-degradation requirements, which are mandated by federal law.

The law came in response to a new proposed policy by the Pennsylvania Department of Environmental Preservation (DEP) that would have imposed what many considered to be burdensome regulations on septic systems installed in exceptional-value and high-quality watersheds, which applies to most of Wayne and Pike counties.

Critics said the DEP policy would have added thousands of dollars to the cost of building a house. In some cases, the policy would have required an underground barrier to surround a septic system to prevent the spread of nitrates into the environment.

The DEP crafted the policy in response to a determination the Pennsylvania Environmental Hearing Board (EHB) in 2011 that the method the DEP used to review septic systems in watersheds with exceptional-value and high-quality waters was not adequate.

County and township politicians in Pike and Wayne were universally opposed to the proposed policy, as were builders and contractors. The Upper Delaware Council (UDC) was also opposed, and in May wrote a letter to the DEP, saying, “The UDC and its members in Wayne and Pike counties say the implementation of the policy would likely decrease land values because the most valuable land—adjacent to lakes and streams—would become unbuildable, undevelopable and unusable for most purposes.”

Local politicians contacted their representatives in Harrisburg about the proposed matter, and the general assembly quickly adopted a new law that essentially said on-lot septic systems that comply with the state’s Sewage Facilities Act are automatically considered to be in compliance with the state’s anti-degradation program, which must be approved by the federal Environmental Protection Agency (EPA). Before ACT 41, DEP was required to review on-lot septic systems to ensure they were in compliance with the anti-degradation policies, but that review is now not required.

Now three environmental organizations have written to the EPA saying that the organization should review and reject Act 41, and instead, “in its place promulgate new standards for Pennsylvania that specifically override Act 41.” The groups say that Act 41 constitutes a violation of the Clean Water Act.

The three groups, which are the Pine Creek Valley Watershed Association, the Raymond Proffitt Foundation, and the Delaware Riverkeeper Network, issued a press release on August 23 which said, “If the EPA fails to act, the three organizations may bring legal action against the EPA for its failure to perform its legal obligations under the law.”

“The governor (Corbett) did not like a recent ruling from the EHB that required anti-degradation review of on-lot systems as a source of potential contamination to exceptional-value waters, and so rather than comply with the law, the governor decided he was above the law and could simply rewrite the rules. But he does not have that right, he is not the king, and it is the EPA’s obligation to ensure that the Clean Water Act is complied with and that all residents of Pennsylvania are protected from such callous disregard of our water protection laws,” said Maya van Rossum, the Delaware Riverkeeper.

A spokesperson for the EPA did not immediately respond to a request for comment.