Long Island’s potable water supply comes from one place: aquifers. And as the population of Long Island continues to grow steadily upward, this vital subterranean resource faces both a growing demand and a growing threat of pollution from human-driven sources. Consequently, the issues of groundwater quality and groundwater protection have been rising to the top of the list of concerns for many Long Island communities for some time.

At a recent meeting of the Shelter Island Town Board, the problem of groundwater pollution was once again up for discussion. Shelter Island, unlike some other Long Island communities, does not have public water. It also does not have public sewers. Accordingly, its residents rely on private wells and septic systems for the water supply and wastewater disposal. This reality makes Shelter Island residents particularly vulnerable to issues that arise when pollutants from septic systems—namely, nitrogen—find their way into the groundwater.

In 2017, Shelter Island’s Town Board created a rebate program to incentivize owners of residential property to voluntarily replace old septic systems with new low-nitrogen septic systems. Intended to supplement Suffolk County’s septic system grant program, the Town rebate is funded by the Town’s Community Preservation Fund and offers residential-property owners reimbursement of up to $15,000 for eligible septic system upgrades. Other East End towns, such as the Town of Southampton, have implemented similar programs.

Perhaps dissatisfied with the rate of response to its rebate program, the Town is now considering a new idea to speed up the installation of low-nitrogen septic systems. During their work session on December 11, 2018, Town Board members discussed the possibility of legislation that would require a low-nitrogen septic system to be installed on any improved residential real property in the Town that changes owners and does not already have a low-nitrogen system in place. The Board members also discussed the possibility of extending the Town’s rebate program to help fund those projects.

As of yet, there is no actual bill before the Town Board for its consideration, and as was made clear during its discussion on December 11th, the proposed legislation raises a number of questions that will need to be addressed:

  • Would such a mandate be lawful?
    • Some could argue that the legislation would impose an illegal restriction on a property owner’s ability to convey title to their property.
  • What title transfers would trigger the obligation to install a low-nitrogen septic system?
    • For example, in instances of inheritance, the law could impose an unexpected and potentially unaffordable financial obligation on family members.
    • Would a long-term lease trigger the need for an upgrade?
  • In the event of a sale, who is obligated to fund and perform the system upgrade as between the buyer and the seller?
    • The requirement to install a new septic system in conjunction with a sale will likely become a bargaining point during contract negotiations.
  • Must an upgrade be completed before or after title changes hands?
    • If before, the law could result in the delay of certain transfers while the responsible party pursues permits, grants/rebates, and completion of the project.
    • If after, how will the Town ensure that the upgrade is completed, and what will it do if it is not?
  • How will the Town ensure that transferors and transferees are aware of the law and its requirements in advance of the transfer of title?
    • What happens when unknowing parties conclude a transaction that would have required a new system to be installed?

Whatever the answer to these questions will be, the proposed legislation, if enacted, would represent a proactive and unique approach to combatting groundwater pollution on Long Island. This office will be monitoring the progress of the law if and when the legislation makes its way before the Board.

On March 28, 2018, the Babylon Town Board adopted a moratorium on any new land use applications that seek to increase a parcel’s wastewater limits established by the Suffolk County Department of Health Services (“SCDHS”) by utilizing Pine Barrens Credits (“PBC”), which effectively transfer development rights from other parts of Suffolk County to properties within the Town of Babylon.  During the period of the moratorium, the Town plans to study the potential impacts to groundwater from allowing developers to increase development density by acquiring PBCs.

The concept of transferring development rights using PBCs derives from the Long Island Pine Barrens Maritime Reserve Act, which was adopted in 1993 for the purpose of protecting approximately 100,000 acres of the Long Island Pine Barrens located within the towns of Brookhaven, Riverhead and Southampton.  As one method of land preservation, the Act authorizes the creation of a transfer of development rights (“TDR”) program, the specifics of which are set forth in the Central Pine Barrens Comprehensive Land Use Plan (“Plan”).  Under the TDR program, a PBC can be used to transfer the development potential from a parcel of property within the protected Pine Barrens Core Preservation Area (“Core”), or other environmentally-sensitive area identified in the Plan (a “sending parcel”), to a parcel in a designated area outside the Core (a “receiving parcel”).  Upon acceptance of the PBC, the sending parcel’s development rights are transferred to the receiving parcel, which may now be developed more intensely.  For a more detailed discussion of the Pine Barrens TDR program, see John Armentano’s blog post, Pine Barren Credits – There’s Money In Those Trees.

Historically, PBCs have been accepted by several towns and by the SCDHS to permit a new development project, or an expansion or change of use of an existing building, that will result in a wastewater discharge (effluent loading) that exceeds the SCDHS’s allowable sanitary flow rate for parcels that are served by an individual on-site sewerage system (i.e., not connected to a municipal sewer system).  The allowable flow rate for a particular parcel is set forth in Article 6 of the Suffolk County Sanitary Code and is calculated based on the proposed use, and size of the building and the parcel on which it sits, as well as the hydrogeological (groundwater recharge) zone in which the parcel is located.  A PBC may be used to permit additional effluent loading up to a maximum of twice the allowable density.

Following the recent approval of two development projects in North Babylon and Deer Park, the Town has decided to take a closer look at the environmental consequences of allowing for increased density.  According to Richard Groh, the Town’s chief environmental analyst, the Town’s planning and environmental control departments have formed a working group to study the impacts to groundwater that will result from continuing the practice of accepting PBCs to increase development density.  Upon completion of the study, the group will submit its recommendations to the Town Board for consideration.