Department Still Struggling With Anti-Degradation Ruling

February 2010Newsletters In The Zone

In May 2008, the Pennsylvania Environmental Hearing Board rendered an opinion which continues to throw the state of on lot septic systems into the unknown. In its opinion in Lipton v. Pine Creek Valley Watershed Association, the court upheld the Pennsylvania Department of Environmental Protection's rescission of an approved sewage module for a residential land development project in an Exceptional Value watershed. The court found that on lot septic systems have the potential to degrade a protected water, and that discharges through an absorption area does not necessarily demonstrate compliance with the Clean Waters Act. The court found that the Department must require an the applicant to study and demonstrate that the proposed sewage treatment systems, and their respective plumes, will not adversely affect the protected waters.

The Department has struggled to develop a coherent policy to address this new requirement of sewage module proposals. To date, the DEP has taken the approach of leaving the review to each regional office's best professional judgment which will allow for the consideration of unique soils and site conditions. However, this has produced very different approaches region-to-region; and, a general reluctance on the part of regional offices to act in absence of clear guidance from Central office.

To complicate matters more, the efforts made by the Department and the applicant in Lipton to comply with the EHB's decision have been called into question again by the Pine Creek Valley Watershed. An appeal of their remedy is currently being contested before the EHB. Another adverse decision could leave little choice for those seeking to utilize on lot sewage disposals in special protection watersheds.

Contact: Robert W. Gundlach, Jr.