BASE Files a Declaratory Ruling – NCDEH

Unfortunately, one of members in New Hanover County has been embroiled in an issue over the past year with local Health Department staff—and subsequently DENR– which has cost this 16 lot project over a year in delays and a cost increase of $100,000. This issue has elevated to a discussion with DENR in Raleigh where they backed up their position with a “verbal opinion” from an unnamed employee in the AG’s office. This is not a sufficient factual explanation for something which will impact a large number of existing lots in North Carolina.

The issue revolves around the setbacks required for septic systems and a “verbal opinion” that treats easements the same as property lines—requiring a 10 foot setback. The crux of the issue is outlined in an email from DENR staff from the summer of 2010 which ostebsibly provides a new interpretation of 18A .1950(a)(12), identifying “our attorney” as the source,:

The interpretation provided by our attorney’s [sic] regarding the horizontal separation distance/setback from any part of the sanitary sewage treatment and disposal system (initial and/or repair area) to a “right-of-way/encroachment agreement/easement” is to maintain at least a 10-foot horizontal setback (5-foot horizontal setback for lots/tracts that comply with the criteria per Rule .1951(a); 25-foot horizontal setback for systems exceeding 3,000-gallons per day) to the nearest edge of an existing or proposed right-of-way/encroachment agreement/easement.

If the “easement” is designated as a “drainage easement” maintain at least a 25-foot or a 50-foot horizontal setback from any part of the sanitary sewage treatment and disposal system (initial and/or repair area) to the nearest edge of an existing or proposed easement.  In order to determine which horizontal setback distance to apply (25- or 50-foot) to the site the applicant/property owner must provide your office/department detail plans/information to your office for review as part of the application package (e.g., approved stormwater plans per the Division of Water Quality – plans must be stamped by their office as approved, etc.)

The previous interpretation/guidance regarding “drainage easements” had been to measure your horizontal separation distance to the nearest edge of the existing or proposed location of the drainage device inside the easement metes and bounds.  Per our attorney’s interpretation this is no longer approved/acceptable.

Unfortunately, this “interpretation” has significant legal holes. Interpreting the term “property line” to include the boundaries of easements lacks any basis or correlation to the statutory authority provided by N.C. Gen. Stat. § 130A-335.  Establishment of a setback from the boundary of an easement is thus not authorized, and the boundary of an easement cannot therefore be lawfully included within the term “property line.”

To that end, BASE attorney Craig Bromby (Hunton & Williams) has drafted a Petition for Declaratory Ruling before the NC Commission of Public Health. BASE will continue to address this issue and seek resolution.