History:
As a part of the comprehensive environmental protection legislation passed in 2010, SB 550 established a septic tank evaluation and appraisal program to be implemented by the Department of Health (DOH). The program requires the evaluation of all septic tanks in Florida once every five years, and provides minimum effluent levels and drainfield separation distances. The 2010 law also authorizes rulemaking by the DOH on specific procedures, standards, and enforcement of the program. This new environmental policy caused a great deal of concern among septic tank owners, many of whom were facing economic hardships, unemployment, and a diminution in property values. At a minimum, they argued, a pump-out would cost hundreds of dollars, with repairs likely to cost thousands. These concerns were conveyed to state legislators who expressed their intent to repeal the law.
2011 Session
The Bills: The House bill (HB 13 – Coley) would have repealed in its entirety the evaluation and appraisal program set forth in SB 550 last session. As a result, counties would have retained the home rule authority to adopt comprehensive septic tank regulations to meet their specific goals and objectives.
The Senate bill (SB 1698 – Dean) also repealed the SB 550 program, but replaced it with a new program. As initially filed, the Senate bill would have preempted all local ordinances providing for the evaluation and repair of septic tanks. This would have encompassed all existing regulations including those provisions requiring point-of-sale inspections and/or performance-based systems. Furthermore, the bill would have created an unfunded mandate by requiring counties to implement the program and to fund its administration, data collection, and computer tracking components – all with a maximum prescribed fee.
The evaluation program itself was limited, requiring only a pump-out and visual inspection and expressly prohibiting the requirement of soil testing or the consideration of drainfield separation distances. Any (narrowly defined) “failure” would have to be repaired only to the standards in effect at the time of installation or permitting. Not only would counties be unable to regulate the evaluation of septic tanks, but it was questionable whether the new law would impact the ability to address nutrient contributions to water quality or to require connections to centralized sewer systems.
FAC and its coalition partners worked all session to ensure that counties would maintain the ability to address water quality and public health issues, and to preserve existing regulations. FAC’s efforts were instrumental in getting amendments to the Senate bill to provide: i) a grandfather clause for existing ordinances; ii) the flexibility to implement the mandatory programs (in counties with First Magnitude Springs) in “portions” of those counties; iii) the authority to regulate septic tanks outside the scope of the evaluation and appraisal program to address public health or water quality issues; and iv) irrefutable authority to require connection to central sewer systems.
Due in large measure to the disparity in the Senate and House positions, both bills failed. Rather than implementing the undesired provisions of SB 550, however, language was added to a budget conforming bill (SB 2002) which provided that the Department of Health must complete Phases II and III of its Nutrient Reduction Study prior to taking any action, and that no state funds would be allocated until DOH Workload and Funding Plans were approved by the Legislative Budget Commission. This essentially suspends implementation of SB 550 until further action of the Legislature.
We certainly expect this issue to be revisited early in the 2012 Regular Session.