East Hampton Considers New Laws Mandating Nitrogen-Reducing Sanitary Systems and Offering Rebates to Replace Existing Systems

by Farrell Fritz, P.C.
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The Town Board of the Town East Hampton (“Town Board”) is considering progressive new legislation that will require advanced nitrogen-reducing sanitary systems for all new commercial and residential construction and major renovation projects.  This law, loosely modeled after a similar law adopted by the Town of Brookhaven for projects located within the environmentally-sensitive Carmans River watershed, imposes regulations designed to supplement those required by the Suffolk County Department of Health Services (“SCDHS”), pursuant to Article 6 of the Suffolk County Sanitary Code.  At the February 7, 2017, Town Board work session, Supervisor Larry Cantwell justified the need for the law by declaring that “we need to find a way to replace these antiquated cesspools and septic systems that are clearly a threat to the quality of life and the quality of life that we have in the town.”

Under the proposed law, a new, low-nitrogen sanitary system will be mandated in one of three circumstances.  The first is where a proposal involves new commercial or residential construction.  The second is where there is an existing sanitary system, but there is evidence that it is failing. The third circumstance involves the substantial expansion of an existing structure.  Pursuant to East Hampton Town Code § 255-1-20(A), “substantial expansion” occurs where a building addition increases its gross floor area by 50% or more or where the cost of an addition, reconstruction, rehabilitation or other improvement to a structure equals or exceeds 50% of the market value of the structure prior to making or undertaking the addition, reconstruction, rehabilitation or other improvement.

At the outset, a qualifying “Low-Nitrogen Sanitary System” will be defined as one that is approved by the SCDHS and proven to reduce nitrogen levels in wastewater to 19 milligrams or less per liter.  However, the law contemplates that as technology advances and new systems are approved by the SCDHS that reduce nitrogen levels even further, future systems will be required to reduce nitrogen levels to 10 milligrams or less per liter.  By comparison, conventional systems release about 50 milligrams per liter of nitrogen into groundwater.

Since low-nitrogen systems, by design, need ongoing monitoring and maintenance in order to function properly, the law will require that owners of these systems maintain them in accordance with the manufacturer’s recommendations.  The Town will also require inspections of these systems at least once every three years by qualified persons employed by or for the Town, or at anytime the Town’s Sanitation Inspector has reason to believe that a system is malfunctioning, has been illegally modified or expanded, or is being operated beyond its design limits.

In order to encourage the use of low-nitrogen sanitary systems, the Town Board is also considering a companion law entitled “Low-Nitrogen Sanitary System Rebate Program,” which creates a multi-tiered system of rebates to incentivize qualifying homeowners to voluntarily replace their aging cesspools and conventional septic systems with new sanitary systems that reduce nitrogen emissions.  The rebates would be paid from the Community Preservation Fund (“CPF”), a portion of which is available for water quality improvement projects.  The CPF, which is funded by a 2 percent tax on real estate transactions, is anticipated to have between $4 and $5 million available to fund the rebate program each year.

The largest rebate, covering 100% of the replacement cost of the system up to $15,000, would be offered to all homeowners in a Town Water Protection District, where shallow groundwater tables and proximity to tidal water bodies causes nitrogen in wastewater to quickly reach surface waters.  Homeowners with cesspool systems who are not located in a Water Protection District will be eligible for a 50% rebate, up to $10,000, and if their household income meets the Town’s threshold to qualify for affordable housing, the rebate increases to 75 percent.  Homeowners who are not eligible for either a cesspool or Water Protection District rebate, but wish to replace existing sanitary systems with new, advanced technology systems are eligible for rebates of 25% of the cost, up to a maximum of $5,000.  In order to qualify for the rebate program, the property owners must have an annual household income below the State’s STAR exemption threshold of $500,000.

At the conclusion of the February 7, 2017 Town Board work session meeting, Supervisor Cantwell indicated that both laws are likely to be discussed at a subsequent Town Board work session meeting prior to scheduling a public hearing on the legislation.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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