Lawmakers seek to address state-ordered ban on new Hamilton County sewer authority hookups in Ooltewah

In this Sept. 20, 2016, staff file photo, Sen. Todd Gardenhire speaks during the Education Mini-Summit 2016 at the Volkswagen Conference Center, where Tennessee legislators from Hamilton County and local education officials discuss the county's public school system.

NASHVILLE - A moratorium in Ooltewah banning new sewer connections to Hamilton County's wastewater system is overflowing into issuance of residential septic tank permits for new home construction in affected areas.

With concerns over the impact on property owners and residential developers, the latest controversy in the years-long struggles of the county's Water and Wastewater Treatment Authority is now moving into the General Assembly.

At the behest of the Homebuilders Association of Greater Chattanooga, Sen. Todd Gardenhire, R-Chattanooga, and Rep. Patsy Hazlewood, R-Signal Mountain, hope to plug the latest leak with legislation.

photo In this Sept. 20, 2016, staff file photo, Sen. Todd Gardenhire speaks during the Education Mini-Summit 2016 at the Volkswagen Conference Center, where Tennessee legislators from Hamilton County and local education officials discuss the county's public school system.

It's scheduled for consideration this week in House and Senate committees. Worried environmental groups, however, already are asking questions about the potential impact of any new septic tank approvals on drinking water quality.

WWTA's latest woes stem from the Tennessee Department of Environment and Conservation's November directive to the sewer authority to impose a moratorium in areas of eastern Hamilton County, one of the fastest-developing sections of the entire county.

The issue there, TDEC officials said, is the WWTA's illegal release of two million gallons of raw sewage into Rogers Creek in a single year. State regulators informed the sewer authority that it had to impose a moratorium on new sewer connections in the Ooltewah area because of the overflows.

WWTA officials had been planning to build a new sewage treatment plant on Mahan Gap Road to handle increased demand from new development. But amid an uproar from nearby residents, a majority of Hamilton County commissioners refused to issue a special permit for the plant.

So the sewer authority said it would defer any decision on a future site - and the money to pay for it – to the commission. Meanwhile, WWTA officials are exploring expanding capacity in their system, as well as those of Collegedale and Chattanooga, to cope with expected rapid growth and fix leaks and spills.

And the agency already faces a looming federal consent decree that could cost $245 million to remedy years of Clean Water Act violations and millions of gallons of sewage spilled into local creeks and streams.

Gardenhire's and Hazlewood's bill is scheduled for consideration this week in House and Senate committees. Environmental groups, however, have questions about the potential impact of new septic tank approvals on drinking water quality.

"Basically, with all this stuff going on with the sewer moratorium and the WWTA and the sewer conflict with EPA, the county is not issuing any [septic tank] permits," Gardenhire said. "This just allows somebody to build a home with a septic tank."

Hazlewood said as she understands current law, "if you're in an area that's served by a sewer where there's a moratorium, you can't get a permit for a septic tank prior to the sewer being available."

State law requires homeowners with septic tanks to connect to a sewer system if the service is available. The conundrum here is that, although the county sewer system is technically available in parts of east Hamilton, the moratorium prevents new hook-ups to the system.

The race is on to do something.

In addition to allowing septic tanks to be used in areas impacted by the moratorium, the bill requires property owners and home builders to tie into a sewer system within 90 days of the moratorium being lifted.

Asked about the bill, TDEC spokeswoman Kim Schofinski said department officials "are currently reviewing the bill and do not have a position at this time."

Environmental groups worried

The lawmakers' Senate Bill 178/House Bill 16 deals with people unable to connect to a public sewer system due to a moratorium. It doesn't impact just Hamilton County, it would apply to any similar situation across the state where there is a moratorium.

The bill is scheduled for discussion Tuesday in the House Agriculture & Natural Resources Subcommittee and on Wednesday in the Senate Energy, Agriculture & Natural Resources Committee.

Scott Banbury, conservation program coordinator for the Sierra Club's Tennessee chapter, said last week the group has several concerns about the bill as drafted.

"Places like Hamilton County have taken over responsibility for septic fields because it's better to handle this stuff via an actual sewage treatment system," Banbury said.

Septic tanks, typically placed underground, are used to collect sewage. They allow waste to decompose through bacterial activity before draining it by means of a leaching field intended to purify the water.

Banbury said he and others are worried about problems such as when underground limestone is eroded.

"Putting in septic tanks can sometimes work and sometimes not work," he said.

Banbury also said the group wants to ensure any permits issued "follow the best guidelines, the rules that the state of Tennessee has set up in terms of doing soil testing, what we call 'perc' testing."

That's intended to ensure a septic field "would actually be able to capture that waste and not have it drop out or fall underground into waters that might re-emerge in surface waters," Banbury said.

Otherwise, he cautioned, it could "possibly cause problems in terms of the intake of drinking water supplies." Moreover, he said, leaking or overcapacity might occur in areas where there has been "overbuilding" of subdivisions with houses relying on septic systems.

"Then property values go down," Banbury said. "Nobody wants to buy a house that has like a stinky swamp behind it."

As filed, the bill says that "if any person is unable to connect to a public sewer system because the department or a local government places a moratorium on any further connections to the public sewer system, then the commissioner shall issue a permit to the person for the installation of a subsurface sewage disposal system."

The bill then says a permit holder "shall discontinue service to the subsurface sewage disposal system and connect to the public sewer system within ninety (90) days of the moratorium being lifted."

Bill Moll of Red Bank, the Sierra Club's conservation chairman, said Sunday that group has a number of concerns, including the bill's language that the commissioner "shall" issue a permit for a septic tank.

Moll noted the bill as filed also says nothing about prospective homeowners being notified about the requirement to hook up to the county sewer system if and when problems are resolved.

"We're not saying we oppose the bill," he said. "We have some questions."

Moll is also concerned the bill has no requirement that prospective buyers be notified that they won't be able to use their septic systems when WWTA is able to handle it and be personally liable for paying costs to hook up to the sewer system. Tying into the system can be expensive, he said.

Bill amendment with protections expected

Hazlewood, Gardenhire and local home builder Ethan Collier, president and CEO of Collier Construction, say they hope to resolve concerns with an amendment to the bill that is expected to be filed as early as Monday.

The amendment should "clarify that any kind of permitting" for septic tanks "will have to meet all state and local requirements," Hazlewood said. "This will just be an opportunity for somebody who has a lot and they want to build a house on it but there's a sewer moratorium."

To get a permit "you'll have to put in the right kind of system for the property and there may be some that can't be permitted, I don't know, but you'd have to meet all those requirements," Hazlewood said. She noted that once a sewer is available "you have to tap into it," describing the bill as "kind of an interim to allow development."

Gardenhire said changes also would require disclosure to prospective home buyers about the moratorium as well as the requirement to hook up to the county sewer within 90 days once issues are resolved.

"That way the buyer is not blindsided," he said. "There will be a disclosure statement that everyone has to sign."

Collier, who is governmental affairs director for the Homebuilders Association of Greater Chattanooga and also vice president of the Home Builders Association of Tennessee, said he's talked to home builders across the state who are impacted by moratoriums.

"If there's a sewer moratorium, you can't build that house under current state law because you can't connect to that sewer as long as there's a moratorium in place. This legislation allows you to still build your house and install septic systems instead of the requirement that you be connected to the sewer, which you would be unable to do in the event of a moratorium."

While "technically a moratorium on connecting to the sewer, it is practically a moratorium on new home construction," Collier said. Septic tanks are nothing new in a state where there are any number of rural counties as well as rural portions of urban counties, he noted.

The expected amendment should address concerns, Collier said.

WWTA Executive Director Mark Harrison said while he has "limited understanding of the bill," the "goal is to allow people to use their property, to build a home on their property. The WWTA doesn't want to take someone's choice to build on their property away from them."

Based on the sewer authority's understanding of the bill, Harrison said, "this is a good compromise for someone who's stuck in that conundrum, who's unable to build because we have a moratorium."

He said, however, that the agency would prefer flexibility on the 90-day requirement for new homes to tie into the sewer system when it can handle them.

"If it turns out 180 days are better, we don't have to change state law, we can change authority policy," he said.

The new hookup moratorium is only the latest setback to the local sewer authority.

In addition to that and the county commission's refusal to approve the recommended sewage treatment plant in Ooltewah, the agency also faces an anticipated consent decree with the federal government, expected to cost some $245 million due to years of Clean Water Act violations.

Meanwhile, current delays in locating the planned $45 million sewage treatment center in Ooltewah are spurring the agency to look at building storage tanks for wastewater and bigger lines to ship the waste to Chattanooga's Moccasin Bend Sewage Treatment Plant from existing lines, as well as new ones expected to be needed.

But there's also talk about selling off the WWTA to private interests, a move Rep. Mike Carter, R-Ooltewah, believes worthy of exploring, the Times Free Press reported last month.

Contact Andy Sher at or 615-255-0550. Follow on Twitter @AndySher1.