Can a Virginia locality impose stricter rules than the state Board of Health on alternative onsite septic systems?

Plain-English summary

In March 2012, Attorney General Kenneth Cuccinelli responded to a question from Delegate L. Scott Lingamfelter about how far a Virginia county or town could go in regulating alternative onsite sewage systems (the engineered systems used when conventional septic will not work for soil, density, or proximity reasons). The opinion drew a line: localities could be tougher than the state on most matters, but not on maintenance.

The driver was § 15.2-2157(D), which says localities "shall not require maintenance standards and requirements for alternative onsite sewage systems that exceed those allowed under or established by the State Board of Health pursuant to § 32.1-164." The Delegate had identified a county ordinance that required system owners to post a bond, letter of credit, or cash escrow to pay for future maintenance, repair, or replacement, something the Board of Health's regulations did not require. The AG read that bond requirement as a maintenance requirement, and so found it preempted.

The broader question was whether the word "maintenance" in subsection (D) reached every kind of local requirement or only those tied to maintaining the system. The AG concluded it was the narrower reading. Under standard grammatical canons, the adjective "maintenance" modified both "standards" and "requirements" that followed. Read together with § 15.2-2157(A), which expressly lets localities "regulate and inspect onsite sewage systems," and § 32.1-163.6(H), which preserves local ordinance authority under Chapter 21 of Title 15.2, the General Assembly had intended for localities to keep playing a role beyond pure maintenance.

The opinion then validated the specific example the Delegate raised: a local ordinance that imposed horizontal and vertical setbacks and reserve-area requirements stricter than the Board's regulations. Those were not maintenance rules, so localities could keep them, with one important caveat: the local rules could not function as a de facto ban on a system the state had approved.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Virginia regulates onsite sewage systems through the Department of Health under Title 32.1. A conventional onsite system uses one or more septic tanks feeding a gravity, pumped, or siphoned drainfield. An alternative onsite sewage system is anything that treats sewage and does not discharge to a point source but is not a conventional system. Alternative systems are common where soils are poor, density is high, or groundwater or surface water is too close.

In 2009, the General Assembly amended § 15.2-2157 to add subsections (C) and (D). Subsection (C) prevents localities from banning alternative systems where sewers are not available. Subsection (D) is the maintenance-only preemption at the heart of this opinion. At the same session, § 32.1-163.6 was amended to require certain engineer-designed treatment works to conform to Board of Health regulations, while subsection (H) of that statute preserves locality authority under Chapter 21 of Title 15.2. The Board of Health's regulations named in the opinion are the Sewage Handling and Disposal Regulations and the Emergency Regulations for Alternative Onsite Sewage Systems.

The opinion leaned heavily on statutory construction principles: plain meaning, in pari materia reading, avoiding superfluous language, the grammatical canon that an adjective modifies each noun in a series that follows it, and treating the General Assembly as having chosen its words with care.

Common questions

Q: Could a Virginia locality require a bond or escrow to cover future septic maintenance?
A: Per this opinion, no, if the system is an alternative onsite sewage system and the requirement was framed as ensuring maintenance, repair, or replacement. That fell within § 15.2-2157(D)'s ban on local maintenance rules that exceed the Board of Health's.

Q: Could a locality require setbacks greater than those in the state Sewage Handling and Disposal Regulations?
A: Yes, according to the opinion. Setback requirements are design and siting standards, not maintenance standards. A locality could adopt larger horizontal and vertical setbacks, as long as the cumulative effect did not amount to a de facto ban on a state-approved alternative system.

Q: Could a locality refuse all alternative systems?
A: No. § 15.2-2157(C) prevents a locality from banning Department of Health–approved alternative systems where sewers or sewage disposal facilities are not available. The opinion noted localities have general authority to deny individual applications if they have adopted a master plan for sewers, but they cannot categorically forbid alternative systems.

Q: Why did the AG read the preemption narrowly?
A: Two reasons. Grammar: "maintenance" preceded "standards and requirements" without an intervening comma or "or," so it modified both nouns. Statutory context: § 15.2-2157(A) and § 32.1-163.6(H) both preserve local authority, and a broad reading of (D) would render those provisions empty.

Q: What counts as "maintenance"?
A: The opinion does not spell out a definition. It refers to "maintenance as defined by the Code" and treats the bond/escrow requirement (for "maintenance, repair or replacement" of the system) as a maintenance requirement, while horizontal and vertical setbacks and reserve-area requirements are design and siting standards, not maintenance. For the precise regulatory definition, consult the Board of Health's regulations directly.

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2012/11-100_Lingamfelter.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

March 9, 2012

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

The Honorable L. Scott Lingamfelter
Member, House of Delegates
5420 Lomax Way
Woodbridge, Virginia 22193

Dear Delegate Lingamfelter:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether, pursuant to § 15.2-2157, a locality may adopt requirements and standards other than maintenance requirements for alternative onsite sewage systems that are in addition to or more stringent than those set forth by the Board of Health in the Sewage Handling and Disposal Regulations and the Emergency Regulations for Alternative Onsite Sewage Systems.

Response

It is my opinion that a Virginia locality can adopt standards and requirements for alternative onsite sewage systems that are in addition to or more stringent than those promulgated in regulations by the Board of Health, provided such standards or regulations do not relate to maintenance issues.

Applicable Law and Discussion

Alternative onsite sewage systems, as well as conventional systems, are regulated by the Virginia Department of Health. Section 32.1-163 defines a conventional onsite sewage system as, "a treatment works consisting of one or more septic tanks with gravity, pumped, or siphoned conveyance to a gravity distributed subsurface drainfield." An alternative onsite sewage system is defined as, "a treatment works that is not a conventional onsite sewage system and does not result in a point source discharge." Alternative systems are often utilized in circumstances where soils are unsuitable for conventional septic systems, there are too many conventional septic systems in one area, or the systems are too close to groundwater or surface waters.

Pursuant to § 15.2-2157(A), a locality "may require the installation, maintenance and operation of, regulate and inspect onsite sewage systems" in order to protect public health. Further, while a county or town also has the general authority to deny applications for onsite sewage systems when the locality has adopted a master plan for sewers, § 15.2-2157(C) specifically prohibits any locality from otherwise banning, "[w]hen sewers or sewerage disposal facilities are not available, . . . the use of alternative onsite sewage systems that have been approved by the Virginia Department of Health . . . ." Additionally, subsection (D) provides that localities "shall not require maintenance standards and requirements for alternative onsite sewage systems that exceed those allowed under or established by the State Board of Health pursuant to § 32.1-164."

In your opinion request, you specifically refer to a county ordinance that requires a bond, letter of credit or cash escrow to be paid by the owner prior to the issuance of an operation permit for an alternative onsite sewage system, in order to provide for the maintenance, repair or replacement of the system. The Department of Health's regulations applicable to maintenance of onsite sewage systems do not include a provision for a requirement of posting such a bond. You therefore ask whether a locality can adopt such an ordinance, in light of the restriction set forth in § 15.2-2157(D). The example you provide clearly involves a maintenance requirement, so based on the express prohibition against a locality's adoption of maintenance standards and requirements exceeding those established by the Board of Health, I conclude that the locality is precluded from enforcing such a bond requirement.

Your inquiry, nonetheless, is broader in scope. You ask whether the restriction on local regulation applies solely to maintenance standards or whether it also limits a locality's ability to impose additional requirements of any nature. You seek the proper construction of the phrase "maintenance standards and requirements" as used in § 15.2-2157(D).

The primary objective in statutory construction is to give effect to the legislature's intent, as manifested through the plain language of the statute. Rules of construction or extrinsic aids are resorted to only when the words of the statute are ambiguous. Words and phrases should be construed according to the rules of grammar and common usage; nonetheless, they must be read in context and not in isolation. Further, statutes are to be interpreted in pari materia, and interpretations rendering part of an enactment superfluous are unreasonable.

First I note that, generally, absent evidence of a contrary legislative intent, courts construe adjectives that precede more than one noun to modify each of the nouns that immediately follow the adjective. Applying this rule, and because there are no intervening commas or other modifiers and no "or" to indicate that "requirements" is to be treated separately, I conclude that "maintenance" modifies both "standards" and "requirements" so that a locality may impose additional requirements on alternative onsite sewage systems, provided those requirements do not concern the maintenance of such systems.

This construction is bolstered by reading § 15.2-2157(D) in conjunction with other provisions relating to onsite systems. Section 15.2-2157(A) expressly authorizes localities to "regulate and inspect onsite sewage systems;" and § 32.1-163.6, in establishing a scheme for the Department of Health's review of permit applications by professional engineers, explicitly provides in subsection H that "[t]his section shall not be construed to prohibit any locality from adopting or enforcing any ordinance duly enacted pursuant to Chapter 21 [] of Title 15.2[,]" which includes § 15.2-2157. Clearly, the General Assembly intended the localities to be able to play a role in the regulation of alternative onsite systems. Reading § 15.2-2157(D) to restrict local governments from imposing any requirement in excess of the Department of Health's regulations thus not only controverts the language of the statute, but also strips these other provisions of most of their meaning.

Furthermore, these provisions were amended in 2009. The restrictions on localities contained in subsections (C) and (D) were added to § 15.2-2157, and § 32.1-163.6 was amended to require treatment works designs permitted under it to conform to certain Board of Health regulations. While the legislature, with its enactment of the these amendments, clearly intended to establish certain statewide minimums and to limit the areas in which a locality could impose its own, different regulations, §§ 15.2-2157(A) and 32.1-163.6(H) remain. Had the legislature wanted to establish a single, statewide set of standards or requirements it could have done so. Instead, the General Assembly chose to retain the provisions granting localities general authority to regulate onsite sewage systems, limiting this authority only in the field of maintenance.

In your letter, you relate that a locality has adopted an ordinance that requires horizontal and vertical setback requirements as well as reserve area requirements that are in excess of those found in the Board of Health's regulations. Such requirements do not pertain to maintenance as defined by the Code. Therefore, provided they do not function so as to in effect ban use of an alternative system where the state regulations would allow for its operation, the locality is free to impose them pursuant to § 15.2-2157(A).

Conclusion

Accordingly, it is my opinion that a Virginia locality can adopt standards and requirements for alternative onsite sewage systems that are in addition to or more stringent than those promulgated in regulations by the Board of Health, provided such standards or regulations do not relate to maintenance issues.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General