(Originally published in the July 2013 Housing Journal)

Changes Coming to NM Liquid Waste (Septic) Regulations

After several years of revisions and hearings, the New Mexico Environment Department (NMED) has set September 1, 2013 as the effective date for the latest revisions to the Liquid Waste (Septic) Regulations. This will allow time to train installers across the state on the new regulations. The revisions were in response to Governor Susana Martinez’s request that all departments review their regulations to see where they could become more “friendly” to small businesses. The results are that several changes can result in savings of $600-$1,000 on installation costs, and cut the monitoring costs for Alternative Treatment Systems (ATSs) in half. The implementation of an Installer Specialist program for select installers to become self-inspecting will be a big time-saver for rural installations and installations that are last-minute modifications for inspections on transfer for existing home sales.


Cluster or Multiple Systems on One Parcel

In addition to some of the cost-saving changes for conventional systems, there were two changes that benefit those that are designed for cluster systems or in rural areas where there are several buildings (such as six vacation cabins or five homes in a mobile home park) on one large plot.

First, changes to the setback requirements and Single-Lot interpretation allow multiple systems (of conventional, cluster, or alternative treatment systems) on one large lot provided they comply with a complex engineering formula to separate each system. Previously landowners had to subdivide their property into several lots in order to be approved for more than one 2,000 gallons per day (gpd) system on their land. With the recent changes in the Subdivision Act, availability of drinking water may limit a land owner’s ability to subdivide their land to accommodate the current liquid waste regulations.

Second, previous regulations required anyone seeking a permit that required a design (regardless of the actual amount discharged) to accommodate over 2,000 gpd on one parcel (of any size) to get an individual Groundwater Discharge Permit. These permits can take a year to acquire, and sometimes require monitoring wells (at approximately $20,000 each) to ensure the effluent is not reaching drinking water. The new regulations would allow systems that actually discharge up to 2,000 gpd to remain under the Liquid Waste Regulations, saving a lot of time and money on the cost of installation. Proving compliance may be as simple as reporting on incoming water use (this may mean installing a meter on a domestic well) to prove the installation stays within the Liquid Waste Program instead of shifting to the Groundwater Bureau. Adjustments may be made for landscape irrigation, if necessary.


Lot Size Requirement Changes

The basic requirement is still that the minimum lot size allowed is ¾ acre. However, there are a couple of changes that would allow for conventional septic systems on smaller lots.

The first change is in areas where the roadway is by an easement across the owner’s land, as contrasted to those roadways that are deeded to the municipality, and the lot line starts at the edge of the public street. Previous language made no distinction between the two cases – roadways could not be included in the land calculation for lot sizes. Now easements for roadways do not have to be deducted from the lot size for calculating design flow. This may free up a few lots for construction.

The second change allows exceptions to the lot size limitation when the following hydrogeologic conditions show groundwater is not at risk:

(1) groundwater does not exist;

(2) the uppermost groundwater contains a total dissolved solids concentration greater than10,000 milligrams per liter:

(3) the uppermost groundwater occurs under confined conditions;

(4) the uppermost groundwater occurs at a depth between 400 and 600 feet with one or more geologic strata in the vadose zone that may act as a capillary barrier: and

(5) the uppermost ground water occurs at a depth greater than 600 feet.

To determine water depth, the NMED Drinking Water Bureau is beginning to map areas of the state where the ground water is at a depth of more than 400 feet. They are starting in Angel Fire, and then will work their way around the state. In areas that have not been identified and mapped by the department, the applicant must demonstrate one of the above conditions exists prior to the issuance of a permit. The Liquid Waste Bureau has said well data that shows the depth to ground water would work to satisfy #5, and in some areas of Rio Rancho where there are municipal wells that have been routinely tested, those test results (which must show no contamination) would be enough to satisfy #2. In areas where mining maps show a “limiting layer” between the bottom of a disposal field and the ground water, those maps would work for #4.

Eventually NMED hopes to have the mapping project completed for the entire state. Then lot size will be irrelevant in some areas of the state.


Clarifying the Permit Process

In addition to changes to setbacks for single lots and roadway easements, NMED has clarified what to do when it is discovered a neighbor has drilled a well too close to an existing disposal field. Also, the process for changing the septic installer contractor mid-project has been addressed.

There have been a few instances where a homeowner sought to replace a failed tank or disposal field, and then discovered the newer home next door had drilled their well too close to the existing tank or disposal field. The general opinion is the pre-existing installation site should not have to be modified due to the well-driller’s mistake. The new regulations set procedures for notification of the well owner’s problem and allow NMED to ignore the setback violation for the septic system owner.

NMED is developing forms to allow a contractor to withdraw from a permit. The permit will be suspended until a new contractor submits an application for a permit under the new license.


Inspection on Property Transfer

This section has been re-named “Evaluations” instead of inspections – largely to differentiate the fact that the evaluations are to be accomplished by third-party installers, and inspections are completed by NMED staff.

The chief difference is a change in mindset for NMED. Instead of the practice of bringing existing systems up to current requirements, the new language makes it clear the existing installations would have to meet the regulations in effect at the time of their initial installation or subsequent modification, or the current regulation; whichever is less stringent.

There are too many nuances to go into the details here, but the language has been modified to clarify some situations where interpretations of existing language resulted in completely new systems being installed when existing systems might have still been functional. For example, the current language requires the tank be water tight and comply with IAPMO standards. Most tanks installed in New Mexico do not have an IAPMO stamp, and if they do, the stamp is in some obscure spot where it can only be found after digging the entire tank up. New language specifies a “non-invasive” evaluation will be conducted, and says the tank simply has to be water tight, functioning properly, and have a capacity within one tank size of current requirements.

Current language is adamant that the seller of a property is required to have the system in working condition before the property is transferred. With all of the short sales and bank-owned “as-is” sales going on across the state, some of the banks have been refusing to comply with this requirement. As a result, this new language will allow the transfer as long as the buyer is aware of the failed system and their responsibility to bring it into compliance.


New Installer Specialist Certification

NMED has developed qualification requirements, application forms, and a re-certification process for a class of installers to be able to be self-inspecting for their own installations. The Installer Specialist would notify NMED two days prior to installation/modification of a system, and if no NMED inspector shows up within one hour of the notified time of completion, then the installation may be completed by the installer after taking digital photos of all components of the installation. The Installer Specialist simply has to complete a form provided by NMED and send (either email or regular mail) to NMED within five working days following the completion of the installation.

This process is expected to save a lot of time on installations by reducing the number of days on-site for the installer and any backhoe/Bobcat operator. Long-time installers are excited about this new certification, anticipating it will differentiate their services from the less-qualified competition.


Disposal Field Design and Sizing Changes

The new language in this section of the regulations is where the single largest savings for installation of a conventional septic system is realized. In areas such as Santa Fe and Alamogordo, gravel is expensive, and the cost to have it trucked in nearly doubles the cost of what those in the Albuquerque area pay. The new regulations reduce the amount of gravel in the design of a conventional system, and will save either a modest or large amount of money, depending upon the locale.

Prior to the 2001 amendments to the regulations, a trench that was 2 feet wide with 2.5 feet of gravel under the distribution pipe counted as 7 feet of absorption credit. The 2001 amendment to not give credit for the first 6 inches under the pipe meant longer/deeper/wider disposal fields to achieve the required disposal field area. That, coupled with the increase in Minimum Absorption Area tables for disposal fields, meant a large increase in the cost of conventional septic systems for everyone. This one change is estimated to save from $600-$1200 just in the gravel cost for a three-bedroom house.

In addition to going back to giving “sidewall” credit for the entire disposal field, the requirement for a Replacement Area (required in case the original disposal field fail to function at some point in the future) has been deleted. The concept sounded good, but homeowners were paving over the Replacement Area, building departments were approving sheds or room additions in the designated area, and it would be 15-20 years before anyone should reasonably expect to need that Replacement Area. By the time a replacement disposal field was needed, these designated areas were frequently landscaped, and the homeowner didn’t want the greenery demolished. In the end, often installers wound up removing the contaminated dirt and gravel and replacing the disposal field in the same location as the original anyway.

Lack of sufficient space for a Replacement Area also restricted the use of conventional systems on lots with large changes in elevation, making alternative treatment systems the only option for building a new home. The difference in Farmington between a $7,000 conventional system and a $20,000 alternative treatment system sometimes meant the house didn’t get built.


Upgrades for Modifications on Existing Systems

Access risers and effluent filters have been required on all new installations since the 2001 revision of the regulations, but not necessarily required on modifications to an existing system. The new regulations require the addition of these features when any part of the system is modified. There are also requirements that the access risers be fastened to the tank with a water tight connection, and that risers longer than 24 inches have to be wider than shorter risers.


Monitoring for Alternative Treatment Systems

Current regulations require owners of an ATS to have an agreement with a Maintenance Service Provider (MSP), at an average base cost of $300 a year. This does not include having the MSP staff collect samples of the effluent quarterly and personally deliver them to a testing laboratory. If the samples are collected in an area (such as Farmington) where there are no testing labs, then the MSP must drive the samples to the closest lab (which may be in Albuquerque), charging mileage each way. Many times the samples can’t be mailed to the lab because the sample must be maintained within a specific temperature range, so the personal delivery must be within a day of collection. This could require six hours of driving in one day.

The new regulations will allow on-site test kits or field instruments to be utilized by the MSPs in many instances. This new language will cut the cost of a contract with an MSP substantially, and the cost of the testing at least in half.

NMED is going to develop a series of policy documents to clarify interpretations of some sections of the new regulations. These policy documents will be developed with the assistance of stakeholders from the installers, home builders, and real estate industries.

The complete Rules are available at the NMED website here: http://www.nmenv.state.nm.us/fod/LiquidWaste/documents/2073-draftfinalversion-2013.pdf   Anyone who wishes to see the strike-through version that shows what was deleted and what was added to the previous version of the regulations may receive one by contacting Melanie Lawton at melanie@nmhba.org.