7 Del. Admin. Code § 7101-3.0

Current through Register Vol. 28, No. 4, October 1, 2024

Section 7101-3.0 - General Standards, Prohibitions And Provisions

3.1 Each and every owner of real property is jointly and severally responsible for:

3.1.1 Disposing of wastewater in conformance with all applicable regulations; and

3.1.2 Connecting all plumbing fixtures on that property, from which wastewater is or may be discharged, to a central wastewater system or on site wastewater treatment and disposal system approved by the Department; and

3.1.3 Maintaining, repairing, and/or replacing the system as necessary to assure proper operation of the system.

3.2 No permit may be issued by the Department under these Regulations unless the county or municipality having land use jurisdiction has first approved the activity through zoning procedures provided by law.

3.3 Any governmental unit may assume responsibility and authority for administering its own regulatory program for on site wastewater treatment and disposal systems pursuant to7Del.C.§ 6003(d) if the delegated program establishes standards no less stringent than the standards established in these Regulations.

3.4 Administrative and judicial review and the enforcement under these Regulations shall be in accordance with the provisions of7Del.C.Ch. 60.

3.5 If any part of these Regulations, or the application of any part thereof, is held invalid or unconstitutional, the application of such part to other persons or circumstances, and the remainder of these Regulations, shall not be affected thereby and shall be deemed valid and effective.

3.6 These Regulations, being necessary for the health and welfare of the State and its inhabitants, shall be liberally construed in order to preserve the land, surface water and groundwater resources of the State.

3.7 At the sole discretion of the Department, if the proposed operation of a system may cause pollution of public waters or create a public health hazard, system installation or use shall not be authorized.

3.7.1 In no case shall an active OWTDS be installed over or dispose of wastewater on top of an existing OWTDS without sand-lining or properly abandoning the old system.

3.8 All wastewater shall be treated and disposed of in a manner approved by the Department.

3.9 No person shall dispose of wastewater at any location other than those authorized by the Department under applicable laws and regulations for such disposal.

3.10 Discharge of untreated or partially treated wastewater or septic tank effluent directly or indirectly onto the ground surface or into groundwater and/or surface waters of the State, unless authorized by a permit issued by the Department, constitutes a public health hazard and is prohibited.

3.11 Except where specifically allowed within these Regulations, no person shall connect a dwelling or commercial facility to a system if the total projected wastewater flow would be greater than that allowed under the original system construction permit. In no case shall more than one reduction (low flow, advanced treatment, or gravel-less chambers) be used in determining minimal absorption facility sizing requirements.

3.12 Except as provided in these Regulations, the spare area shall be kept vacant, free of site improvements, livestock, vehicular traffic (including construction trafficking) and soil modifications.

3.13 All systems shall be operated and maintained so as not to create a public health hazard or cause water pollution.

3.14 No person shall cause or allow construction or repair of a system, or any part thereof, without a permit issued by the Department. An exception may be allowed for certain emergency repairs as set forth in these Regulations.

3.15 The Department shall impose, in any permit, standards for evaluating treatment system performance and compliance with these Regulations. The standards may be in the form of limitations on flow and pollutant concentrations and/or mass loadings. The standards shall reflect the utilization of best management and operational practices.

3.16 When performance standards have not been achieved on an annual average basis after the appropriate system start-up period, as defined in the regulations and/or applicable on-site system permit, those persons may qualify to participate in a nutrient offset program subject to review and approval by the Department on a site specific basis.

3.17 In no cases will underdrains or artificial drainage be considered for the siting of any on-site wastewater treatment and disposal system.

3.18 In the event that these regulations are revised by the Department, permits may be reopened and modified accordingly after notice and opportunity for a public hearing.

3.19 The permittee shall at all times properly maintain and operate all structures, systems, and equipment for treatment, control and monitoring, which are installed or used by the permittee to achieve compliance with the permit and these Regulations.

3.20 The permittee shall take all necessary actions to eliminate and correct any adverse impact on public health or the environment resulting from permit noncompliance.

3.21 All electrical connections and components utilized in an OWTDS, must, at a minimum, comply with National and Delaware Electric Code (Admin. Code, Title 24, § 1400).

3.22 FEMA guidelines must be adhered to when siting OWTDS' in flood prone areas designated as "V" zones prior to permitting.

3.22.1 Certification by a registered professional engineer (Class C) that all new and replacement on-site wastewater treatment and disposal systems, including holding tanks, are located and designed to minimize or eliminate flood damage, infiltration of floodwaters into the tank and discharges from the system into floodwaters. New and replacement on-site wastewater treatment and disposal systems shall be located so as to minimize alterations to sand dunes which would increase potential flood damage.

3.23 Moratorium Areas

3.23.1 When the Department determines that construction of on-site wastewater treatment and disposal systems should be limited or prohibited in an area, it shall issue an order limiting or prohibiting such construction.

3.23.2 The order shall be issued only after a public hearing which shall insure that 20 days notice is given.

3.23.3 The order shall contain a specific description of the moratorium area and shall be limited to the area immediately threatened with groundwater or surface water contamination if construction in that area continues.

3.23.4 In issuing an order under this Section the Department shall consider the factors contained in7Del.C.§ 6001.

3.23.5 The moratorium shall be limited to a period of five (5) years after which re-establishment of the moratorium may be considered.

3.24 Whenever the preparation of reports or other documents required by these regulations involves the practice of engineering, geology or other recognized profession under Delaware law, sufficient evidence of appropriate certification or registration in accordance with24Del.C. must be submitted by the preparer.

3.24.1 In accordance with29Del.C.§§ 501 et seq., retention of reports or other documents may be paper and/or electronic records.

3.25 All Occupational Safety and Health Act (OSHA) regulations must be complied with during all phases of system installation and inspection. OSHA regulations can be found at www.osha.gov or by contacting the U.S. Department of Labor.

3.26 Enforcement

3.26.1 The provisions of these regulations shall be enforced by the Department as provided in7Del.C.Ch. 60. Such enforcement may include suspension or revocation of any license for cause.

3.26.2 The failure of the Department to enforce any of the provisions of these regulations shall not constitute a waiver by the Department of such provisions.

3.26.3 The Department will initially attempt to gain voluntary compliance in accordance with7Del.C.§ 6019.

3.27 Exhibits A through NN are incorporated into these Regulations by reference.

3.28 The Department continues to encourage development of new systems, processes, and techniques for eliminating, reusing, or recovering resources from wastewater. These techniques include, but are not limited to greywater collection and use, nutrient recovery, and source reduction of wastewater. These innovative technologies are subject to review and approval by the Department.

3.29 Number of Plan Reviews

3.29.1 The Department will review no application more than three (3) times. If after the third review the plan is not approved, the application will be denied, and the reasons for plan denial will be sent to the applicants.

3.29.2 In order for a plan to be reconsidered, the Department may, at its discretion:

3.29.2.1 Require a new application package and review fee in order to continue to review the application. The second application will be reviewed no more than three (3) additional times.

3.30 All new and replacement systems permitted within 1,000 feet of the Chesapeake Bay tidal waters, as displayed by the map in Exhibit NN, shall meet the Performance Standards for Nitrogen and Phosphorus as defined in these Regulations. Small systems use PSN3 and large systems see Exhibit MM. This requirement shall become effective one (1) year from the date of promulgation of these Regulations.

3.31 General Standards, Prohibitions and Provisions for small systems (< 2,500 gpd) only

3.31.1 No person shall construct, install, modify, rehabilitate, or replace an on site wastewater treatment and disposal system or construct or place any dwelling, building, mobile home, manufactured home or other structure capable of discharging wastewater on site unless such person has a valid permit issued by the Department pursuant to these Regulations.

3.31.2 Each system shall have adequate capacity to properly treat and dispose of the maximum projected daily wastewater flow. The projected quantity of wastewater must be determined from Exhibit D. Other projected wastewater quantities may be approved by the Department.

3.31.3 A recorded utility easement is required whenever a system crosses a property line separating property under different ownership. The easement must accommodate that part of the system, including setbacks, which lies beyond the property line, and must allow entry to install, maintain and repair the system.

3.31.4 No cooling water, air conditioning water, groundwater, oil, water softener backwash (regeneration water) or roof drainage shall be discharged into any system without specific authorization of the Department.

3.31.5 If a site has received an approved site evaluation and is free of encumbrances which could prevent the installation or operation of the system from being in conformance with these Regulations then a permit may be issued.

3.31.6 Whenever real property is recorded as two separate lots under common ownership and an on site wastewater treatment and disposal system crosses the common boundary of the recorded lots, the owner shall execute and record, in the appropriate county office of Recorder of Deeds, an affidavit which notifies prospective purchasers of this fact on a form approved by the Department.

3.31.7 No person shall transfer any portion of real property if the transfer would create a lot boundary which would cross an existing system or any part thereof including required setbacks and isolation distances unless a utility easement approved by the Department is granted to the owner of the existing system and recorded in the appropriate county office of Recorder of Deeds.

3.31.8 No person shall transfer any portion of real property after the issuance of a permit pursuant to these Regulations if the transfer would result in the use of the permitted on site system on a lot which does not comply with these Regulations and the terms of the permit, including but not limited to density, set back and isolation distance requirements.

3.31.9 A central wastewater system shall be deemed physically available if its nearest connection point from the property line or boundary to be served is:

3.31.9.1 For all single family dwellings or establishments within 200 feet;

3.31.9.2 For a proposed subdivision or group of two (2) to five (5) single family dwellings not further than 200 feet multiplied by the number of dwellings or dwelling equivalents.

3.31.9.3 For proposed subdivision or other developments with more than five (5) single family dwellings, or equivalents, the determination of central wastewater availability shall be at the sole discretion of the Department.

However, a central wastewater system shall not be considered available by the Department if topographic or manmade features make connection impossible or a waiver is obtained from the municipality or governmental authority.

3.31.10 A central wastewater system shall be deemed legally available if the system is not under a Department connection permit moratorium and the wastewater system owner is willing or obligated to provide sewer service.

3.31.11 When a central wastewater system is deemed both physically and legally available, as outlined in Sections 3.31.9 and 3.31.10, the connection must occur within a timeframe as set forth by the wastewater system owner. The existing system must be abandoned in accordance with Section 5.4.8.

3.31.12 All cesspools and seepage pits are prohibited and when found must be replaced within one (1) year in accordance with these regulations.

3.31.13 For all properties utilizing an OWTDS that are sold or otherwise transferred to other ownership, the persons must have the system pumped out and inspected by a Class F and Class H licensee, respectively, prior to completion of the sale. An extension will be given to sheriff sales, auctions, short sales and cash sales for a period not to exceed 90 calendar days from date of sale. All inspections of on-site wastewater treatment and disposal systems shall be submitted to the Department on forms approved by the Department (see Exhibit A). These forms shall be submitted within 72 hours of inspection completion.

3.31.13.1 For transfers of new property, the certificate of completion will suffice if issued within the previous 24 months, or;

3.31.13.2 If an inspection has occurred within the previous 36 months and the property owner can provide proof of the pump out and inspection and the system is not a cesspool or seepage pit, then the inspections referred to in Section 3.31.13 will suffice, or;

3.31.13.3 If the owner of an individual OWTDS provides proof of a licensed operator or has a service contract with a certified service provider then the requirements referred to in Section 3.31.13 have been met.

3.31.14 Timers or other electrical on/off delay devices shall be installed on all pressurized systems to ensure dosing frequencies and volumes. Appliance timers are not acceptable.

3.31.15 Siting Density

3.31.15.1 The following maximum siting densities shall be maintained:

3.31.15.1.1 For residential dwellings, the maximum siting density shall be one (1) dwelling unit per one half (1/2) acre.

3.31.15.1.1.1 For single family residences, only the area within the property lines of the lot shall be considered.

3.31.15.1.1.2 For multiple family dwellings or where more than one (1) dwelling is to be served by an on site wastewater treatment and disposal system, the maximum siting density shall be based on the net pervious area (e.g., unpaved, without structures) available for groundwater recharge after total project completion. The following criteria shall be utilized in determining the maximum siting densities:

3.31.15.1.1.2.1 For projects utilizing only a septic tank for treatment prior to discharge to the absorption facility, the maximum siting density shall be one (1) dwelling unit per one half (1/2) acre of pervious area.

3.31.15.1.2 For commercial facilities the maximum siting density shall be established by dividing the projected design flow by 500 gallons per day per one half (1/2) acre and shall be based on the net pervious area (e.g., unpaved, without structures) available for groundwater recharge after total project completion. Campgrounds intended for overnight or transient use are evaluated as commercial facilities as opposed to manufactured home communities, which are evaluated as single family residential facilities.

3.31.15.1.3 In establishing maximum siting densities the Department may consider impervious areas where it can be demonstrated that through the establishment of an acceptable stormwater management plan, all runoff will be recharged to the groundwater of the State within the boundaries of the project site. Stormwater management plans shall be based upon the sediment and stormwater regulations.

3.31.15.2 If the deed or instrument, under which an owner acquired title to a lot or parcel, was of record prior to April 8, 1984 and if such lot or parcel does not conform to the requirements of Section 3.31.15.1.1, then the Department may approve a feasibility study and/or issue a construction permit for an on site wastewater treatment and disposal system. This system is to serve a single family dwelling or for multiple systems to serve dwellings to be situated within an area which has been given final site plan approval prior to April 8, 1984 for single or multi family dwellings provided that:

3.31.15.2.1 The number of dwelling units per net pervious area (e.g., unpaved, without structures) does not increase from those approved prior to April 8, 1984 by the local governmental unit having jurisdiction; and

3.31.15.2.2 At the time the permit is issued or feasibility study is approved, the lot or parcel complies with the requirements of Section 3.0 through Section 6.0 of these Regulations.

When it may be necessary to increase the net pervious area or reduce the number of dwelling units within a lot or parcel and thus create a new date of recordation or final site plan approval, the Department shall utilize the previous date of recordation or approval in determining conformance with these Regulations. The owner shall provide, prior to any action by the Department, all documentation determined by the Department to be necessary in establishing conformance with this Section.

3.31.16 All new and replacement small systems requiring advanced treatment units must adhere to the performance standard nitrogen level 3 (PSN3). These performance standards shall become effective one (1) year from date of regulation promulgation.

3.32 General Standards, Prohibitions and Provisions for large systems (<= 2,500 gpd) only

3.32.1 Whenever the preparation of reports or other documents required by these regulations involves the practice of engineering, geology or other recognized licensed profession under Delaware law, sufficient evidence of appropriate certification or registration in accordance with24Del.C. shall be dated and bear the signature and seal of the licensee(s) who prepared or approved them.

3.32.2 For large systems which serve communities that experience a significant variation in flow on an annual basis, the permittee shall provide the Department with specific criteria in the permit for taking certain treatment units out of service during periods of low flow. The criteria will establish procedures for winterization, restart and the minimum levels of treatment which must be provided at all times. In no event shall it be less than the level of treatment provided by a conventional on-site wastewater treatment and disposal system.

3.32.3 Unless otherwise required by a permit the permittee and operator, if applicable, must coordinate with the Department for all annual large system inspections and applicable fees.

3.32.4 The basic performance criteria for a large system is the system does not present a public health problem.

3.32.5 The permittee shall furnish to the Department within a specified period of time, any information including copies of records, which may be requested by the Department to determine whether cause exists for modifying, revoking, reissuing, or terminating the permit, or to determine compliance with the permit and these Regulations.

3.32.6 The permittee shall allow the Department entry and access, consistent with7Del.C.Ch. 60, to:

3.32.6.1 Enter the permitted facility.

3.32.6.2 Inspect any records that must be kept under the conditions of the permit.

3.32.6.3 Inspect any facility, equipment, practice, or operation permitted or required by the permit.

3.32.6.4 Sample or monitor for the purpose of assuring permit compliance of any substance or any parameter at the facility.

3.32.6.5 The permittee shall report to the Department under the circumstances and in the manner specified in this Section:

3.32.6.5.1 In writing 30 days before any planned physical alteration or addition to the permitted facility or activity if that alteration or addition would result in any significant change in information that was submitted during the permit application process.

3.32.6.5.2 In writing 30 days before any anticipated change which would result in noncompliance with any permit condition or these regulations.

3.32.6.5.3 Orally within 24 hours from the time the permittee became aware of any noncompliance which may endanger the public health or the environment at telephone numbers provided in the permit by the Department.

3.32.6.5.4 In writing as soon as possible but within five (5) days of the date the permittee knows or should know of any noncompliance unless extended by the Department. This report shall contain:

3.32.6.5.4.1 A description of the noncompliance and its cause;

3.32.6.5.4.2 The period of noncompliance including to the extent possible, times and dates and, if the noncompliance has not been corrected, the anticipated time it is expected to continue; and

3.32.6.5.4.3 Steps taken or planned to reduce or eliminate reoccurrence of the noncompliance.

3.32.6.5.5 In writing as soon as possible after the permittee becomes aware of relevant facts not submitted or incorrect information submitted, in a permit application or any report to the Department. Those facts or the correct information shall be included as a part of this report.

3.33 Property owner's responsibilities shall:

3.33.1 Ensure septic tank risers, distribution box risers and dosing chamber/lift station risers, if applicable, remain above grade after final grading of property;

3.33.2 Maintain the on-site wastewater treatment and disposal system or any component thereof in accordance with these regulations and in compliance with all applicable OWTDS permit conditions; and

3.33.3 Hire an appropriately licensed Class E system contractor to repair/replace any components of the OWTDS.

7 Del. Admin. Code § 7101-3.0

17 DE Reg. 752 (1/1/2014) (Final)