LEN GENGEL
Data available
Environmentalists and public health officials are gearing up for a battle with developers over an effort to change a septic system-testing requirement that could free up thousands of acres for development in the state.
The controversy stems from a directive issued by Gov. Jane Swift to change the state-set “perk rate,” which is part of the Title 5 septic system regulations. A percolation, or perk, test determines the capability of soil to absorb liquid and is used to determine whether land can accommodate a septic system and therefore can be developed.
In June, Swift announced at the annual banquet of the Home Builders Association of Massachusetts that she would direct the Department of Environmental Protection to change the perk rate from a 30-minute-per-inch absorption level to 60 minutes per inch. Swift’s move was immediately praised by homebuilders and real estate developers who have long complained that the stringent perk rate makes it difficult and costly to build in Massachusetts and narrows down the amount of land that can be developed.
But environmentalists fear that the change could be harmful.
“There is not enough data … to make sure that 60-minute-per-inch septic systems won’t harm people’s drinking water,” said Pam DiBona, vice president of policy for the Environmental League of Massachusetts.
Homebuilders and engineers dispute that, saying that plenty of data has been collected.
“There is over 10 years of data in this state on repaired systems with a 60-minute perk rate,” said Len Gengel, former HBAM president.
DEP is currently working on the new regulations. Once a draft of the new regulations is ready, DEP will hold a series of public hearings.
When Title 5 regulations were amended back in 1995, DEP set up a pilot program to allow developers to install 60-minute-per-inch septic systems and have them monitored for environmental impact, said DiBona. Few developers took advantage of the program, she said, and therefore not enough data was collected to determine whether a higher perk rate would threaten ground water.
That’s particularly worrisome because some 2.7 million people rely on private or public wells for their drinking water, said DiBona, quoting statistics collected by the Executive Office of Environmental Affairs.
“Essentially, we feel that the 30-minute perk rate is more protective of the environment than the 60-minute rate,” said Marcia Benes, executive director of the Massachusetts Association of Health Boards.
Changing the perk rate would increase the opportunity for ground water contamination, she said. Last week, Benes said she didn’t understand why health boards are being “assaulted” for trying to protect their communities from environmental threats.
“We’ve constantly had to fight a political battle over what should be an engineering issue,” she said. “These matters should be decided by the engineers who work for the local boards of health.”
Benes also takes issue with the developers’ arguments that local health boards are using septic system regulations to control growth and that excessive growth isn’t a public health issue.
“We’re not anti-growth,’ said Benes, who emphasized that health boards should be concerned about sprawl because of increased traffic and pollution.
“It breaks my heart to see town after town swallowed up by inappropriate sprawl,” she said. “It is a health threat.”
Free-Market Dictate
But some homebuilders and engineers say that changing the perk rate would not have a negative environmental impact. They say towns and cities are arbitrarily setting the perk rate to control growth and not basing their decisions on “sound science.” Under Title 5 regulations, communities are allowed to adopt septic system regulations – which include the perk rate – that are stricter than state standards. Some 125 communities have already done that.
Homebuilders point out that 48 states have a 60-minute-per-inch perk rate and cite a study done for DEP in the early 1990s that showed there would be few environmental threats if the state had the same perk rate.
In fact, according to Gengel, the DEP report showed that a 60-minute perk rate was safer than a 30-minute rate.
“This is about real science. This isn’t about political science,” said Gengel, a homebuilder in Central Massachusetts.
Back in 1995 when the Title 5 regulations were revised, it was agreed that DEP would promulgate a 60-minute perk rate in three years, said Gengel. The three-year “stall,” according to Gengel, was supposed to allow communities to get their zoning in order because “many towns are using Title 5 as de facto zoning.”
Massachusetts and Maryland are the only two states that don’t have a 60-minute-per-inch perk rate. Title 5 regulations and the state’s stringent perk rate were one of the barriers to housing construction identified earlier this year in a report by a commission of developers, city leaders, public health officials and Realtors. The commission recommended a uniform application of Title 5 across the state and said DEP should review for approval any municipal regulations that were stricter than state standards, and that municipalities should be made to scientifically justify the stricter requirements.
Jeff Brem, an environmental engineer and president of Meisner Brem Corp. in Harvard, said “tons” of data have been collected on 60-minute-per-inch perk rate systems throughout the county, including the study done for DEP.
“The septic system is a simple system that involves complex variables,” said Brem. There are many variables, including the distance from the bottom of the septic system to the water table, that are much more important than a perk test when it comes to determining the safety of septic system, he said
“It [the perk rate] has minimal significance compared to the other variables,” said Brem.
Kevin Rabbitt, a land development project manager from Charlton, said because there are many safety factors built into Title 5, changing the perk rate will not pose a threat to the environment.
Currently, there are many parcels of land that are not developable because of the perk rate, he said, and the new guidelines will make those parcels available. Changing the rate will “greatly affect” the supply of housing in the state, he said.
“It’s been such a long time in coming because we are one of the last states to get this,” said Rabbitt, of K.B. Rabbitt & Assoc. “It’s so overdue and needed. I can’t stress the importance of DEP issuing these regulations.”
Massachusetts is one of the most expensive states for housing construction, said Gengel.
“If we can open up the supply of land now, we can lower the cost of housing,” said Gengel. “This is one of the major barriers to the cost of housing.”
He added: “This isn’t going to put more money in the greedy developers’ pocket. This is going to make housing more affordable for the working-class people in Massachusetts.”
Asked if there was any part of the state where it wouldn’t make sense to change the perk rate, Brem said he could think of no region in the Bay State that shouldn’t have a 60-minute perk rate.
According to some developers, many communities mistakenly believe that the perk rate can be used as a growth-control measure. But Brem said he has worked with many communities that have a perk rate that is lower than 30 minutes, and despite the perk rate, some of those communities have experienced tremendous growth.
As an example, he cited the town of Westford, which has a 20-minute perk rate and has had “an explosion of growth.”
“Attempting to use science as an excuse for land-use policy will eventually backfire because the free market will dictate where people will live,” he said.
