RICHARD DILS
Not a ‘zoning tool’

For Bay State homebuilders and Realtors who argue that the housing shortage is driving home prices up, a proposed change in a septic system-testing requirement would be a major boost because it could free up more land for development.

According to some environmental groups and local public health officials, however, the change would do nothing to create more affordable housing but much to harm the water supply and promote sprawl, growth and additional traffic.

Those were the arguments repeated at public hearings held by the Department of Environmental Protection last week to discuss a change in the state-set percolation rate.

Under current state regulations, when a developer wants to install a septic system on a parcel of land, a percolation – or “perk” test – must be conducted. Land where at least an inch of water is absorbed into the land within 30 minutes is considered developable. But in June, Gov. Jane Swift directed DEP to change that rate to 60 minutes per inch – a standard that 48 states currently use.

Homebuilders and Realtors have pushed for the change for years, saying that there were no sound scientific reasons to have such a stringent rate. They contend that local health boards are approving septic system regulations that exceed state standards without providing scientific proof or evidence that they are needed, and have called on lawmakers to pass a statewide uniform Title 5 code. More than 125 communities in the Bay State have a septic system code that differs from the state.

Some communities, like Ipswich and Westford, have perk rates that exceed the state standard. Even with the rate change, communities will still be able to have rates that are different from the state-set rate. The majority of Bay State towns and cities, however, currently abide by the state rate.

According to builders and Realtors, communities are using the state health code to block new housing construction, and as a result driving up the costs of housing.

“Title 5 is not now, nor has it ever been, intended to be used as a zoning tool,” said Richard Dils, chairman of the Massachusetts Association of Realtors government affairs committee.

Despite environmentalists’ concerns, the regulation change has drawn broad support. Last week even engineers and groups like MassHousing and the Greater Boston Chamber of Commerce came forward to support the rate change because of the believed impact it would have on housing production.

“Changing to a 60-minute-per-inch percolation rate will not compromise public health and will aid in the moderation of land costs by increasing buildable acreage in Massachusetts,” MassHousing Executive Director Thomas R. Gleason wrote in a letter to DEP. “It is an important first step in removing regulatory barriers to the development of affordable housing and to alleviating Massachusetts’ unenviable distinction of being the least affordable state in which to live.”

Yet, groups like the Metropolitan Area Planning Council and the Charles River Watershed Association say that there isn’t enough information on how the change would affect land use and the water supply. They urged the DEP to complete an environmental impact report that addresses how the new rate would affect water quality, housing, land use and traffic across the state.

“MAPC is concerned that [the] Title 5 amendment is being put forward with no accompanying technical justification as to its impact on water quality,” said Martin Pillsbury, MAPC’s manager of regional planning services.

Pillsbury said that state officials must research whether states with slower rates have had problems with septic system failures. “System failures could impair surface water,” he said.

MAPC is also worried about the amount of land that will be used up if the rate changes. The Boston metropolitan region loses about 7.6 acres per day and the new rate would only increase the loss, according to MAPC. The rate change would actually force builders to use more land because the septic systems would require larger leaching fields, according to Pillsbury, and that would increase, not reduce, the cost of housing.

However, some engineers, who spoke in favor of the change, disputed that more land would need to be used with a slower rate.

‘Intellectual Dishonesty’

Others said DEP should delay implementation of the new regulation because of the uncertainty over how much land would be opened up for development once the new rate takes effect.

“That in itself is a sort of a nightmare,” said Alexandra Dawson, a Hadley resident and member of the Massachusetts Association of Conservation Commissions. Dawson said DEP should analyze how much land would be affected.

Some scoffed at the suggestion of further studies, citing reports and data that 60-minute-per-inch perk rate systems aren’t harmful.

Kevin Sweeney, president of the Home Builders Association of Massachusetts, said opponents used the same arguments seven years ago when the state’s Title 5 regulations were being revised. At that time, it was agreed that the rate would change to 60 minutes per inch by 1998, according to Sweeney.

“This [is] intellectual dishonesty that’s continuing to crop up,” said Sweeney, a Maynard builder.

Several who spoke at last week’s hearing in Boston cited a report done for the state several years ago that showed that a slower rate would not harm groundwater or public health. They also referred to a report released in January that identified barriers to housing production and offered recommendations on removing them. The report clearly identified Title 5 and the perk rate as one of the barriers and recommended changing the rate.

The Massachusetts Audubon Society, a group known for its environmental preservation efforts, does not oppose the rate change. But in a letter to DEP, the group’s regional specialist asked state officials to help local health boards in implementing the septic system regulations and “make them [towns] aware of the appropriate tools” they can use to manage land use and growth.

“Mass. Audubon has long maintained that Title 5 engineering standards should not be used as a land use tool,” wrote Lou Wagner. “We continue to hold this view and we do not object to the proposed revision of the percolation rate.”

The DEP will continue to collect comments on the proposed change through Dec. 6.