King County Proposed Septic System Ordinance Final CAPR Comments

By Cindy Alia 10/20/24

The King County Department of Health has been drafting proposed ordinance for On-site Septic Systems (OSS).   CAPR has been following the process of and evaluating the stated goals of the Department of Health in the proposed ordinance and has now had the opportunity to read and analyze the formal draft ordinance produced on September 17.   King County has set a public comment deadline of Monday October 21, 2024.  

As a brief overview of what we perceive as potential negative aspects of the draft ordinance:

1. Ambiguity in Enforcement: Terms like "surface water" or "critical aquifer recharge areas" are broad and could lead to inconsistent enforcement, making it difficult for property owners to understand how regulations apply.
2. Unclear Repair vs. Replacement Rules: While repairs are prioritized in SB 5503, the draft ordinance could be viewed as forcing sewer connections unnecessarily, particularly in areas where repairs should be allowed.
3. Property Rights Issues: Expanding shoreline and separation requirements may infringe on owners' ability to use or develop their property, potentially leading to devaluation.
4. Overregulation: The ordinance may disproportionately affect rural homeowners by limiting development options and increasing costs, especially with stringent horizontal separation and soil evaluation requirements.

A more comprehensive look at the ordinance follows:

CAPR has compiled a formal public comment on the draft ordinance for OSS as presented by the King County Department of Health.

Now is the time for you to submit your public comment.  If any of your concerns are presented in CAPR's formal public comment, please feel free to use the comments as a guide.  We have looked extensively at the draft code for OSS and are providing this information to you.

PUBLIC COMMENT SHOULD ALSO BE ACCEPTED AT THESE EMAIL ADDRESSES:  A formost concern with the process of the draft proposed OSS ordinance is the brief span of time allowed between the publication of the draft on the King County website and the closure of acceptance of public comment on October 10

Meagan Jackson, Environmental Health Services  mejackson@kingcounty.gov  and Lynn Schneider King County Department of Health Lynn.Schneider@kingcounty.gov

For your reference this link takes you to the draft ordinance language.  It is important to read the draft as there are several changes to code that will impact you!

Following is a comprehensive overview of the draft ordinance for OSS.  

Please see these final comments from CAPR to the King County Department of Health.  We are also providing these comments the the King County Board of Health, which has placed this ordinance on its agenda for November 21.  This is the email for the King County Board of Health.  KCBOHAdmin@kingcounty.gov Please put OSS draft ordinance in the subject line when providing comment. 

Citizens' Alliance for Property Rights Comments to the King County Department of Health Re: R&R DRAFT – BOH Title 13 – On-site Sewage Systems - 2024-09-17

We are concerned about the ordinance costs, compliance with State Statute created in SB 5503, and the impact to current OSS owners future OSS on property, and the ability to develop a property.  We must be concerned the draft and final ordinance is meant to reasonably regulate OSS and not diminish property rights through loss of use or value.

CAPR is concerned about the insufficient processes employed while promulgating the proposed and draft OSS ordinance making for the King County Department of Health.  Considerable time was spent gathering public comment prior to the publication of the draft ordinance on September 17, 2024.  As a result, we are concerned that much of the public comment that may be recorded by the county for this ordinance will be comment considered to be adequately informed comment which is based wholly on work sessions that were more conversational than factual presentations.  There is a distinct difference between such comments made during work sessions and the formal informed public comment after a draft ordinance was published.  The county seems to have blurred the line regarding the differences between the two forms of comment.

CAPR is concerned the required “plain language summary” which is provided at public meetings does not reflect the impact to OSS owners.

CAPR is concerned the draft language in the R&R DRAFT – BOH Title 13 – On-site Sewage Systems - 2024-09-17 is not inclusive of what can be expected where such terms as “waivers” and “additional information” are used in code.  There are sections in the draft language where supporting code language is used but supporting code sections are not referenced.

CAPR is concerned that the ordinance making process has been and continues to be rushed leading to the provided draft language relaying inadequate and inconclusive information.  This was discussed as late as the final public meeting on October 9, held at the Enumclaw library, also held the day prior to the formal closure of public comment.  The county has posted on its website and has verbally transmitted the information that the public comment period has been extended to October 21, 2024, yet the draft language document still refers to the October 10^th date.  Those attending meetings prior to the change of date after the Maple Valley meeting of October 3, 7 pm to 8:30 pm, Tahoma Elementary School (Gym), 24425 SE 216th St, Maple Valley, WA 98038 will be unaware of the date change to October 21^st for public comment. 

CAPR is concerned the county is not providing specific language regarding the term “waivers”, or the health officer may grant waivers according to WAC 246-272A-0420, or 246-272A WAC. 

1. Page 7, line 134 through 139.  New Section, Section 2

“Chapter 13.04 to read as follows:

Equity impact review. Whenever the health officer performs review of an on-site sewage system local management plan under WAC 246-272A-0015, the health officer will conduct an equity impact review in accordance with King County Ordinance16948 and report the results of the review to the King County Board of Health before approving a revised local management plan.”

This awkward language is confusing to the reader.In stating the local management plan will be under WAC 246-272A-0015 does the county mean to exempt from the decision making on a local management plan any ordinance language in the draft or final ordinance that is more stringent than the applicable law in the WAC?What assurance is there in code that an equity impact review will be applied equitably in all local management plans?

2. Page 8, line 152 through 159, Chapter 13.04 Section 3, B reads: “ B. For existing development located within ((or outside)) the Urban Growth Area and which is within two hundred feet of a public sewer, where an on-site sewage system is operating, the owner shall abandon the on-site sewage system in accordance with WAC 155 246-272A-0300 and connect the sanitary drainage system to the public sewer when the sewering authority permits such connection and when: 1. Repair, modification or replacement of the on-site sewage system is necessary, or the existing on-site sewage system has failed and an on-site sewage system fully conforming to this title cannot be designed and installed; or”

The language presented in the draft ordinance here conflicts with SB 5503, Chapter 21, Laws of 2019, which reads:

“NEW SECTION. Sec. 2. A new section is added to chapter 43.20 RCW to read as follows: (1) Rules adopted by the state board under RCW 43.20.050(3) regarding failures of on-site sewage systems must: (a) Give first priority to allowing repair and second priority to allowing replacement of an existing conventional on-site sewage system, consisting of a septic tank and drainfield, with a similar conventional system; (b) Not impose or allow the imposition of more stringent performance requirements of equivalent on-site sewage systems on private entities than public entities; and (c) Allow a system to be repaired using the least expensive alternative that meets standards and is likely to provide comparable or better long-term sewage treatment and effluent dispersal outcomes.

The phrase in the proposed ordinance stating an on-site sewage system fully conforming to this title cannot be designed and installed; appears to disregard the language and intent of SB 5503 and the ordinance language must be eliminated or revised to conform to the statute SB 5503.

Disregarding the statute allowing repair or replacement of OSS in the proposed code is damaging to property rights with this additional language in the proposed code in Chapter 13.04, lines 171 through 176

“E. The health officer is authorized to grant waivers from specific requirements of this section in accordance with WAC 246-272A-0420, as amended.”

“F. A decision of the health officer requiring connection of a property’s wastewater drainage to a public sewer and denying an application to repair or replace the failing on-site sewage system shall be subject to the administrative appeals process under RCW 36.01.330, as amended.”

Clearly the proposed ordinance language would impose the kind of circumstances denying the ability to use and own OSS and more stringent requirements of an OSS owner in seeking waivers or administrative appeals than is intended by the legislature in SB 5503.

3. Page 18, line 367 through 389 defines “Minor repair” and states which OSS components may be replaced, added, or altered.  There is no mention of a permit for such work listed.  May a homeowner do these repairs or hire the work done without going through the permitting process?  This must be specified clearly in code!
4. Page 21, line 433 through 439 state the definition of “Surface water”.  The term springs has been included as new language for the draft code.  At public meetings the definition of surface water has been debated and it has been stated by county representatives that the definition needs improvement.  The inclusion of springs as a term for surface water should be removed or more descriptively defined.
5. Page 24 Line 508 through Page 26 Line 552 addresses “Permits general”.  Line 509 through 520 is not clear as to what is allowed to be done by the homeowner without an installation permit because it states “Unless otherwise specified in this title, it is unlawful to construct, install, repair or modify an OSS without an approved OSS installation permit.  Further, it is stated “Any person, other than the owner of the property where the OSS is located, who constructs, installs, repairs, or modifies any part of an OSS without an approved OSS installation permit, including but not limited to replacing a drainfield, will be subject to the assessment of civil penalty fines of up to fifteen thousand dollars per violation. The owner of the property where the OSS is located will be subject to the assessment of civil penalty fines of up to five thousand dollars per violation for performing the work without an approved OSS installation permit. The health officer may reduce or waive the penalty assessed against the property owner under this section after a permitted OSS installation or repair has been completed and the health officer has approved the installation or repair.”   The waiver process referred to in this section is not expressed in code is the waiver a health officer may apply to a property owner based on an RCW, WAC, or King County Code?  If so, the code used for the waiver process should be included in this section of the title.

The language does not make clear where in this title it is otherwise specified that it is not unlawful to construct, install, repair, or modify any part of an approved OSS installation permit.

6. On line 536 the added code reads “The applicant for an OSS installation permit may not also be the designer named on the site application unless the work to be done consists solely of OSS failure repair.”

This is confusing and seems to contradict other language in code, for example on Page 25 line 533 through 535“E. Unless otherwise provided in this title, the applicant for an OSS installation permit shall be a certified master installer and shall be responsible for all work done under that permit”  In this and throughout the proposed changes document, any instance of the phrase “unless otherwise provided in this title”should have a reference to the title, section, chapter that otherwise provided refers to.

It seems this requirement in the proposed draft code stating an applicant for an OSS installation permit may not also be the designer named on the permit would complicate and create unnecessary additional expense to the process of installing an OSS.The code language in the permit general section is confusing and needs to be written clearly so it can be widely understood by the reader.

7. Page 35 line 733 and 744 read in the section headed Resident owner design, construction and monitoring. : 5. The system primary area and reserve area are not less than two hundred feet from surface water; this is added language derived from what other law, statute, or study?  The table shown on page 57, through 58 calls for a horizontal separation or set back of 100 feet from surface water.  Why does the text differ from what is represented in the table?  The county in this language creates a more stringent horizontal set back based on the fact the resident owner is the designer, constructor, or monitor of the property while not forcing in code the same standard on all other design, construction, and monitoring for other than resident owner.  This is a clear example of a regulatory exaction that singles out and applies a standard to a single class of land owner and not any other.  This code language must be eliminated.

8.  Additionally, on line 732,  4. The property is not adjacent to a ((marine)) shoreline; a resident owner is singled out for a more stringent compliance level than all other OSS builds as the county has eliminated the word marine from the phrase marine shoreline, thus making all shorelines subject to the more stringent features for a resident owner design, construction or monitoring while not applying that standard in any other code language in a comparable build.  This language is a regulatory over-reach that has no stated purpose or need.  The elimination of the word marine in the draft code in this section must be corrected so as to not place an additional burden on a landowner without corresponding studies that reveal specific scientific standard requiring expanded or doubled buffers that would not apply to the land otherwise.

Another standard applying only to Resident owner design, construction and monitoring is found on page 34, line 727: 1. The area where the drainfield and reserve area are to be located has a minimum of four feet of original permeable soil, and a minimum vertical separation of three feet is maintained.This sentence again requires a standard called out only in the circumstance of a resident owner design, construction and monitoring.

If a resident owner must apply for a permit, and have an engineered design which includes soils testing, there would appear to be no other differences in the OSS permitting process other than that of ownership, the expansion of a horizontal set back from 100 to 200 feet, and any shoreline based on an owner’s design, and the requirement of an unattainable 48 inches of original permeable soil, for a resident owner design, construction or monitoring is capricious and arbitrary if not based on fact, law, and scientific study.

9. Page 64, line 1325 through 1461 describes design standards that include increased tank sizes, and increased flow standards.  It is not clear if the design standards are to apply to replacement of OSS considered to have failed.  Failure is defined on page 17, lines 350 through 364.  The ordinance does not provide code that describes the standards for replacement of an OSS to non-failure status.  On page 42, line 888 calls for” a plan that demonstrates that the standards required in this title are met.”  But it does not specifically state where in code those standards are located.  It could be assumed the section on page 82, beginning on line 1730 “Repairs of failing OSS.”  Could be the standard referred to on page 42, but it is not clear if that is what is intended in code.  This should be made clear in code language if this is the standard referred to on page 64.

Submitted comments by Cindy Alia

On behalf of Citizens’ Alliance for Property Rights

10/21/24

CAPR Members and Supporters:

You can view the draft ordinance for OSS by clicking this link.

This is a list of features in the ordinance we find problematic and reference to where in the draft ordinance you can view the restrictions and regulation.  Each reference ties into specific restrictions outlined in the draft ordinance, and these sections are where potential additional costs could arise for property owners.

1. Mandatory sewer connections: Section 3B.
2. Increased inspection frequency: Title 13, Section 10.
3. Shoreline and surface water setbacks: Section on Shoreline (revised language on all shorelines, Section 5).
4. Soil evaluations by professionals: Section 6, referencing WAC 246-272A.
5. Abandonment of on-site systems: Section 3B (referencing WAC 246-272A-0300).
6. Permit fees: Section on application for permits (Section 24).
7. Professional design requirements: Resident Owner Design Section.
8. CARA compliance costs: Section 24, Item C.
9. Connection to sewer when repairs not allowed: Section 3B.
10. Setback requirements reducing usable land: Section 5 (shoreline and surface water requirements).
11. Reporting and documentation requirements: Section on structured inspections (Section 10).
12. Stricter requirements near shorelines: Sections addressing non-marine shorelines (Section 5).
13. Penalties for non-compliance: General enforcement provisions (Section 18).
14. Delays in health officer review: Section 24 (additional information requirements).
15. Engineering fees for development: Section on development application (Section 24).
16. Subdivision and development restrictions: Section 24.
17. Professional certifications for repairs: Section on septic failures and repairs (Section 10).
18. Wastewater treatment upgrades: Section 10 on necessary system upgrades.
19. Third-party certification fees: Section on third-party certifications (Section 10).
20. Limits on self-repairs: Resident Owner Design Section.
21. Standards for development in critical areas: Section 24, CARA compliance.
22. Costs for system removal/abandonment: Section 3B.
23. Fines for missed inspections: General enforcement provisions (Section 18).
24. Environmental impact studies: Section addressing system designs in sensitive areas (Section 6).
25. Aquifer recharge zone restrictions: Section 24, CARA compliance.
26. Costly upgrades instead of repairs: Section 3B on required sewer connections.
27. Alternative system engineering costs: Section on approved designs and modifications (Section 6).
28. Future development restrictions due to setbacks: Section 5.
29. Impact on resale value: Implied throughout due to cumulative restrictions (particularly Section 5 on setbacks and sewer mandates).
30. Property devaluation due to septic limits: Section 3B.

Thank you CAPR members and supporters for your attention to this important ordinance information, and your assistance in evaluation and comment on the ordinance!