Ordinance 19 108 - New Castle County
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6/15/2021
Ordinance 19‐108
TO AMEND NEW CASTLE COUNTY CODE CHAPTER 40 (ALSO KNOWN AS
THE UNIFIED DEVELOPMENT CODE OR “UDC”), ARTICLE 22 (“DRAINAGE,
UTILITIES, SEPTIC SYSTEMS, PARKING, LOADING, AND LIGHTING”),
REGARDING ON‐SITE WASTEWATER TREATMENT (SEPTIC) SYSTEMS
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Why Ordinance 19‐108
• Culturally competent alternative to a permanent moratorium on septic systems that
balances the priorities across our Urban‐Rural Divide.
• Provides a Fair and Equitable approach to protect water quality and address concerns
with lack of maintenance for the 14,008 existing septic systems permitted (13K+ Active?).
• Science Based Approach
• Highly protective of water quality based on watershed loading considerations.
• Provides strong incentive for development in growth zone without arbitrary use of
“septic systems” as basis for “downzoning”.
• Reduces disenfranchisement of rural landowners & community by eliminating the zero‐
sum thinking about wastewater and land use planning.
• Avoids inequitable two‐class system for rural owners of SR & S zoning without sewer.
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Prepared by Councilman Carter
June 15, 2021 1
6/15/2021
Key Legislative Components
• Re‐instates some of the past septic code using DNREC
regulations that DLU believes are the cause of the problem
due to Ordinance 13‐097.
• Acknowledges an improved understanding of septic system,
their regulation by the State, their management, and recent
scientific studies (rather than using 30+ year old data).
• Adjust lot sizes in an abundance of caution to significantly
reduce the pollution loading to levels well documented in
scientific literature to be effective.
• Takes bold step to significantly reduce nutrient load due to
lack of maintenance in the estimated 14,008 permitted
septic systems1 in NCC, rather than ignore the problem.
• Builds upon, integrates, and utilizes extensively revised
regulatory requirements enacted by DNREC in recent years.
1 DNREC, Division of Water Resources (April, 2021). Downloaded 4/3/2021 from https://data.delaware.gov/Energy‐and‐Environment/Permitted‐Septic‐Systems/mv7j‐tx3u
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Adjust Lot Sizes in an Abundance of Caution
WHEREAS, the WATBUG nitrogen load model (1992) cited in both studies completed under contract by the NCC Department of
Land Use in response to the temporary moratorium on septic systems provided by Ordinance No. 18-093 estimated a 2 acre minimum lot
size for septic systems would be protective of water quality assuming a 1 in 20-year failure rate (5%) and an allowable nitrogen
concentration in groundwater of 10 mg/l. This is a much larger lot size than indicated by more recent peer-review scientific literature of
studies in Delaware that suggested smaller lots might be adequate (Kasper, Denver, York; 2015), notwithstanding this, the 2-acre average
lot size is an established precautionary guideline to ensure the protection of water quality; and
40.22.365
Table 40.33.360. Minimum lot sizes for size of subdivision.*
Subdivision Size (# of Cumulative Incremental Acres Min. Avg. Max. Avg.
lots) # of lots Increase in # per Lot Size in Lot Size in
of Lots Lot Subdivision Subdivision
10 lots or less 10 10 1 1.00 1.00
Additional 11-25 lots 25 15 2 1.09 1.55
Additional 26-99 lots 99 84 3 1.85 2.95
> 99 lots Not Allowed n/a n/a n/a n/a
Note: 99 lot limit reinforces DNREC Regulatory Prohibition of more that 100 lots on septic in a subdivision (Regulations Governing
The Design, Installation and Operation of On‐site Waterwater Treatment Systems, Section 6.2, 2014, page 108).
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Prepared by Councilman Carter
June 15, 2021 26/15/2021
Source: Kaufmann & Homsey (2019). White Paper: Southern
New Castle County Wastewater Plan. Prepared for New Castle
County Department of Land Use. Page 30.
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Requirement to Improve Water Quality – System Maintenance
WHEREAS, it is stated in both reports completed in response to Ordinance No. 19‐093 and it is widely
acknowledged in credible scientific studies that, as a general matter, regular inspections and maintenance,
including tank pump‐outs, are major contributors to the functionality and longevity of septic systems and
septic tank pump‐outs do significantly reduce pollutant loads from septic systems;
Sec. 40.22.350. Maintenance, Inspection, and Notification. Reserved.
A. Maintenance and notification requirements for all existing, future, and replacement septic
systems.
1. Maintenance. All septic systems shall be inspected and maintained by a State licenced
Class F Liquid Waste Hauler or a Class H System Inspector at least once every three
years and done in accordance with DNREC’s onsite wastewater treatment and
disposal regulations.
2. Documentation of maintenance must be provided to New Castle County within 3
months of completion of maintenance activity.
3. Failure to provide documentation of septic system maintenance is a violation of Code
with a penalty of $100 per year.
4. It shall be the responsibility of the homeowner to have periodic maintenance of the
system completed and to submit documentation of such maintenance to the
Department.
5. It shall be the responsibility of the homeowner to rotate the disposal fields of a dual
field system on a monthly basis.
6. Failed systems. DNREC and NCC Department of Public Works shall be notified
within 72 hours by any property owner of the failure of a septic system.
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June 15, 2021 36/15/2021
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Prepared by Councilman Carter
June 15, 2021 46/15/2021
New Castle County Septic System Permits
in DNREC Database
• 14,008 Septic Permits on Record in New Castle County based upon
the DNREC permit database.1
• These “legacy systems” were installed prior to improved
regulation.
• The older systems are those believed to be most problematic.
• Currently, NCC does nothing to ensure regular maintenance.
• Previous Proposed Permanent Moratorium affected roughly 4,800
septic units at ½ acre lot size (182 properties). Current is much
less (est. 1,000?/ and much lower w/West Wing Expansion)
• O19‐018 only allows a maximum of about 2,000 units (if all built
out on septic) but would be significantly reduced with Southern
Sewer Expansion to the west wing (currently in NCC Capital
Budget) and any land preservation implemented.
1Source: DNREC, Division of Water. (2021). Downloaded on April 3, 2021 from
https://data.delaware.gov/Energy‐and‐Environment/Permitted‐Septic‐Systems/mv7j‐tx3u .
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Planned Changes/Substitute Ordinance
• Section 40.22.340. Removal of dual drain field requirement language in ordinance
based on input from technical experts and from DNREC. Also clarify “spare area”
instead of reserve area consistent with DNREC regulations.
• Section 40.22.350. Removal of #5. Responsibility to rotate dual field system.
• Section 40.22.350. Clarification of reliance on State licensed Class F Liquid Waste
haulers for routine maintenance and inspection or Class H System Inspectors.
• Table 40.33.360. Change to 40.22.365. Add text to clarify that these are additional
restrictions on lot sizes that apply in cases where zoning permits smaller lot sizes.
The larger lot requirements of either Table 40.33.360 (40.22.365) or those in table
40.04.110 shall apply (SR,SE, NC2A), which may change for some based‐on number
of lots proposed. Can also remove the min./max. test that was intended for
illustration of outcome of average lot sizes to show unlikely impact to water quality.
• Table 40.33.360. Clarification of prior subdivision stipulation, which is intended to
remove the potential to subdivide in a way to circumvent State On‐site Regulations,
Chapter 6.
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June 15, 2021 56/15/2021
Planned Changes/Substitute Ordinance – Removal of Dual Drain Field Requirements
& Clarification of “Spare Area” instead of “reserved” area.
Sec. 40.22.340. Standards Reserved.
Standards for all septic systems permitted by this Article.
1. Site evaluations. Site evaluations shall be conducted on the native soil within each lot on which the disposal fields are
proposed to be located to determine the type of septic system that may be permitted.
2. Disposal fields. All septic systems shall be installed in accordance with Delaware DNREC Regulations Governing the Design,
Installation, and Operation of On‐Site Wastewater and Disposa system. Pursuant to these regulation, sufficient ground area
must be reserved for the later installation of a single field replacement system. This area shall be a spare area set aside for
construction of a second absorption facility with the equivalent design capacity of the operational absorption facility to be used
in the event the operational absorption facility becomes inoperable. The spare area shall be kept vacant, free of site
improvements, livestock, vehicular traffic (including construction trafficking) and soil modifications. All septic systems shall be
installed with dual alternating disposal fields. Sufficient ground area must be reserved for the later installation of a single field
replacement system. Should there not be adequate ground available to accommodate the dual field primary system, then an
area shall be reserved for a single field replacement system, and the primary system shall consist of a single disposal field that
has been expanded to the greatest possible extent to permit the various laterals to be alternated.
Sec. 40.22.350. Maintenance, Inspection, and Notification. Reserved.
A. Maintenance and notification requirements for all existing, future, and replacement septic systems.
1. Maintenance. All septic systems shall be inspected and maintained at least once every three years and done in accordance
with DNREC’s onsite wastewater treatment and disposal regulations.
2. Documentation of maintenance must be provided to New Castle County within 3 months of completion of maintenance
activity.
3. Failure to provide documentation of septic system maintenance is a violation of Code with a penalty of $100 per year.
4. It shall be the responsibility of the homeowner to have periodic maintenance of the system completed and to submit
documentation of such maintenance to the Department.
5. It shall be the responsibility of the homeowner to rotate the disposal fields of a dual field system on a monthly basis.
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Planned Changes/Substitute Ordinance – Clarify Inspection & Maintenance
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June 15, 2021 66/15/2021
Planned Changes/Substitute Ordinance – Clarify of Language intended to eliminate
efforts to circumvent the 99‐lot maximum via subdividing large parcels.
(May delete if determined that circumvention of code via subdivision is not expected to be a problem.)
Table 40.22.365 40.33.360. Minimum lot sizes for size of subdivision.*
Subdivision Size (# of Cumulative # Incremental Acres Min. Avg. Max. Avg.
lots) of lots Increase in # per Lot Size in Lot Size in
of Lots Lot Subdivision Subdivision
10 lots or less 10 10 1 1.00 1.00
Additional 11-25 lots 25 15 2 1.09 1.55
Additional 26-99 lots 99 84 3 1.85 2.95
> 99 lots Not Allowed n/a n/a n/a n/a
*Subdivision of a parcel must be done in strict conformity in all respects with the limitations
established by Table 40.22.365 40.33.360. Moreover, subdivision of a parcel in a manner that
may circumvent Table 40.22.365 or otherwise does not strictly conform with the limitations set
forth in Table 40.22.365 is prohibited. By way of example and not limitation, if a parcel has
previously been subdivided after the passage and approved for septic systems in accordance with
this Code, any subsequent subdivision of that parcel will be limited by and strictly subject to the
maximum lot limitation established by Table 40.22.365, which shall represent the cumulative
maximum number of lots with septic systems for the original undivided parcel.
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Planned Changes/Substitute Ordinance – Clarify Inspection & Maintenance
Table 40.22.365 40.33.360. Minimum lot sizes for size of subdivision.*
• Change section and add text to clarify that these are additional
restrictions on lot sizes that apply in cases where zoning permits
smaller lot sizes.
• The larger lot requirements of either Table 40.22.365 40.22.360 or
those in table 40.04.110 shall apply (SR, SE, NC2A), which may change
for some properties based on number of lots proposed.
Potential Text as Example
A. On any subdivision lot where a septic system is allowed by this Article, the minimum lot
areas shall be scaled in a cumulative manner to provide variable lot sizes with increasing
average lot sizes for larger developments, as reflected in the following table, except where
zoning standards require larger lots. The larger lot requirement of either the zoning
classification or table 40.22.365 shall apply.
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Cumulative Effect on Rural Disenfranchisement:
Continued Long Standing Bias Affecting Rural Community
• Inequitable restriction of land use since it is unfairly and arbitrarily set at 5 lots,
unlike an actual rezoning that applies an equitable standard to use of the land
regardless of parcel size (acreage).
• Serious Lack of Services in Rural Area will be perpetuated.
• No NCC Policing for most rural residents due to jurisdictional assignment that omits single driveway homes.
• Unserved for Community Services, despite high income inequity. (high Median Income, Very Low Per Capita)
• Local Private Market Services Constrained
• Political/Policy Voice Suppressed due to lower voter density
• Limited Broadband Access (disproportionally impacting rural students & remote work opportunities)
• Rural Underserved/Lower Resourced Community Members often fall through the
cracks due to lack of social service infrastructure in rural area.
• Removal of Most Economic Opportunity except Farming, compounding the
economic challenges for agriculture due to cumulative effects.
• Excessive Farm Building Assessments
• Challenges with State law on “farmland assessment” for smaller farms.
• Lack of clear definition of farming and agricultural tourism.
• Comprehensive Planning & Master Planning hyper‐focused on new Development,
not Rural Community needs; and failure to utilize intergovernmental coordination.
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Questions?
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June 15, 2021 8You can also read
