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The Department of Environmental Protection (DEP) has proposed changes to the Title 5 septic system rules view allowing slower percolation rates for septic systems. Where the current rules require that wastewater from septic systems moves one inch in the soil within 30 minutes, the proposed rules would allow 60 minute-per-inch percolation rates. This would allow development in areas with "tight" soils, and also would require a much larger leaching field for a given system. A public hearing was held on November 20 at 1pm in DEP's offices in Boston; comments are due on December 5.

This issue has historically been a hot topic between environmentalists, engineers, and the Massachusetts Homebuilders Association. The Homebuilders have long argued that the current requirements are holding up development of housing. They also say that during the first Title 5 negotiations, DEP promised to change the rate to 60 minutes per inch. In fact, the current rules (310 CMR 15.417) provide for a pilot project to gather safety and effectiveness data -- but very few developers took advantage of the program. Further, DEP was to prepare a report on the safety of a 60-minute percolation rate under 310 CMR 15.041 but failed to do so. Finally, last year, the Environmental League of Massachusetts participated in a Subcommittee to the Governor's Commission on Barriers to Housing, where this issue was raised; the Subcommittee's recommendations included a compromise that was rejected by the Commission and later the Governor.

From May to October 2001, the Governor's Commission on Barriers to Housing charged a Title 5 Subcommittee with developing recommendations for changes to Title 5 that would ease development of new housing stock in Massachusetts. Subcommittee members included representatives from industry, developers, individual health boards, and the environmental community. The group worked several months to develop recommendations for the Commission, including recommendations regarding the proposal by the Homebuilders Association to allow a 60 minute-per-inch percolation rate for Title 5 septic systems. The Subcommittee compromised on the percolation rate issue by asking DEP to simplify the existing pilot program (see 310 CMR 15.041), so that data will be available to make an informed decision about the change in percolation rate. The Commission rejected the compromise and instead recommended that DEP change the regulations as soon as possible. Enter Acting Governor Swift, and new proposed regs. The story from there is told in an October 14, 2002 Banker and Tradesman article.

Following are the recommendations from the Title 5 Subcommittee and the actions by the Commission:

Original Recommendation: DEP should streamline the application procedure for applicants wishing construct septic systems where the percolation rate is between 31-60 minutes per inch, provide a better information packet and outreach component to explain the application procedure to developers and lending institutions, reduce the perceived risks involved, revisit the monitoring requirements and allow at least 20 but not more then 50 applications per year for two to three years. At the end of two to three years DEP should present the results of the monitoring information it has gathered to a group of stakeholders and determine if the implementation of slower percolation rates under the general provisions of Title 5 should be allowed.
Rejected by the Commission members

New recommendation by Commission for consideration: DEP should modify its regulations to provide for the implementation of slower percolation rates, not more than 60 minutes per inch, under the general provisions of Title 5.
Approved by the Commission members

Recommendation: DEP, in cooperation with the MAHB and MHOA, should gather and review information from local boards on their experience with low percolation rate systems installed for remedial purposes.
Approved by the Commission members with deletion

Recommendation: Produce guidance for the monitoring program required in slower percolating soils and prepare a new inspection form.
Not taken up by Commission members

Recommendation: DEP should implement a training program for the certification of Soil Evaluators, system designers and contractors for the design and installation of septic systems in slower soils, in anticipation of a revision to Title 5 that will accommodate up to 60 minutes per inch percolation rates.
Approved by the Commission members

Recommendation: Remove the $450 Application fee for this permit or waive the fee based on some affordability criteria.
Not taken up by Commission members