Can a Virginia locality require stricter rules for alternative septic systems than the Virginia Department of Health does, where public sewer isn't available?

Plain-English summary

A state senator asked whether a Virginia locality could impose stricter rules on alternative onsite sewage systems (the kind of advanced septic system used in rural areas where public sewer isn't available) than the Virginia Department of Health (VDH) had already established. The senator described several real-world examples: localities suspending applications because they wanted greater separation from the water table than VDH required, larger drainfield footprints, duplex pumps for all residential subdivision septic fields, and a 50% overdesign requirement for systems serving dwellings over 7,500 square feet.

The AG concluded that a Virginia locality cannot adopt requirements for alternative onsite sewage systems that are in addition to or more stringent than VDH's when two conditions are present: (i) no public sewer or sewerage facility is available, and (ii) the alternative system has been approved by VDH for use in the particular circumstances. Section 15.2-2157(C) tells localities that "[w]hen sewers or sewerage disposal facilities are not available, a locality shall not prohibit the use of alternative onsite sewage systems" approved by VDH. Section 15.2-2157(D) bars localities from imposing maintenance standards stricter than VDH's regardless of whether sewer is available.

The AG harmonized two earlier opinions. The December 3, 2010 opinion said localities could not require a special exception to install an alternative system where sewer was unavailable. The March 9, 2012 opinion to Delegate Lingamfelter said localities could not adopt stricter maintenance standards under § 15.2-2157(D), but didn't reach whether non-maintenance stricter standards were okay where sewer is unavailable. The AG read the two together: where sewer is available, localities can impose stricter non-maintenance standards. Where sewer is not available and VDH has approved the system, any local standard exceeding state regulations would effectively ban the use of an approved system, which is what § 15.2-2157(C) forbids.

Virginia's Dillon Rule does the rest of the work. Localities have only expressly granted powers, fairly implied powers, or essential and indispensable powers. Section 15.2-2157(A) gives localities general authority over onsite sewage, but subsections (C) and (D) restrict that authority precisely in the rural-no-sewer-available pattern. Stricter local rules in that pattern exceed the authority granted.

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.

Common questions

What counts as "no sewer available"?
The opinion didn't define this in detail. It tracked the statutory test: the locality has no sewer or sewerage disposal facility available to the property. That determination is fact-specific and often turns on whether a service connection is feasible.

Can localities ever impose stricter standards?
Yes, sometimes. Where public sewer is available, the March 2012 AG opinion let localities impose stricter non-maintenance standards. The December 2010 and November 2012 opinions, together, say localities cannot impose stricter standards (maintenance or otherwise) where sewer is unavailable and VDH has approved the system, because doing so effectively bans an approved system.

What about maintenance standards specifically?
Section 15.2-2157(D) is unconditional: localities cannot require maintenance standards or requirements for alternative onsite sewage systems that exceed those allowed under or established by the Board of Health under § 32.1-164. That applies regardless of sewer availability.

Does this affect special exceptions, surety bonds, or other indirect rules?
The opinion was about substantive standards. But the December 2010 opinion specifically said that a special exception requirement was invalid in the no-sewer-available pattern, because it effectively let the locality prohibit the system. Indirect mechanisms that achieve a prohibition would face the same problem.

What if a system is "marginal" for the site conditions?
The opinion was about systems VDH had approved for the particular circumstances at issue. The premise was that VDH itself had cleared the system. If VDH wouldn't approve, the issue would not arise.

Background and statutory framework

The Virginia Department of Health regulates onsite sewage systems through the Board of Health's Sewage Handling and Disposal Regulations and the Alternative Onsite Sewage Regulations, which supplement them. In 2009 the General Assembly directed the Board to adopt regulations establishing performance requirements and horizontal setbacks for alternative onsite sewage systems, with operation and maintenance requirements consistent with § 32.1-164. Section 32.1-164 authorizes Board regulations on design, construction, installation, modification, and operation, plus nitrogen performance requirements for alternative systems.

Section 15.2-2157 sets local authority. Subsection (A) is the general grant: localities may regulate, inspect, and require installation and maintenance of onsite sewage systems within their boundaries. Subsection (C), added in the same 2009 session, says: "When sewers or sewerage disposal facilities are not available, a locality shall not prohibit the use of alternative onsite sewage systems that have been approved by the Virginia Department of Health." 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."

Virginia's Dillon Rule requires that local powers be expressly granted, fairly implied, or essential and indispensable, and when a local ordinance exceeds the scope of that authority, the ordinance is invalid. The opinion applies that rule: where sewer is unavailable, a more stringent local standard exceeds the authority granted by § 15.2-2157(C) and (D) and violates the Dillon Rule.

Citations

• Va. Code § 2.2-505 (Attorney General opinions)
• Va. Code § 15.2-2128 (denial of application where master plan exists)
• Va. Code § 15.2-2157 (locality onsite sewage authority and limits; subsections (A), (C), (D))
• Va. Code § 32.1-164 (Board of Health design and operation standards)
• December 3, 2010 AG opinion (referenced; special exception bar)
• March 9, 2012 AG opinion to Delegate Lingamfelter (referenced; maintenance standards)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2012/12-045_Martin.pdf

Original opinion text

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

November 9, 2012

The Honorable Stephen H. Martin
Member, Senate of Virginia
Post Office Box 700
Chesterfield, Virginia 23832

Dear Senator Martin:
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 a Virginia locality may adopt and apply any ordinance, standard or other requirement to an alternative onsite sewage system that is more stringent than, in addition to, or otherwise exceeds the regulations, standards and requirements of the Virginia Department of Health, where the failure to satisfy the local ordinance, standard or requirement could result in the denial of the right to install such a system, when sewers or sewerage disposal facilities are unavailable and when the proposed system is of a type that has been approved by the Virginia Department of Health for use in the particular circumstances and conditions in which it is to be operating.

Response
It is my opinion that a Virginia locality cannot adopt requirements and standards for alternative onsite sewage systems that are in addition to or more stringent than those enacted by the Board of Health and administered through the Virginia Department of Health when the conditions set forth in § 15.2-2157(C) exist, namely that (i) there is no sewer or sewerage disposal facility available and (ii) the alternative onsite sewage system has been approved by the Virginia Department of Health for use in the particular circumstances and conditions in which the proposed system is to be operating.

Background
Alternative onsite sewage systems, as well as conventional systems, are regulated by the Virginia Department of Health. In 2009, the General Assembly directed the Board of Health to "adopt regulations establishing performance requirements and horizontal setbacks necessary to protect public health and the environment for alternative systems permitted pursuant to the Board's regulations implementing this chapter. Such regulations ... shall contain operation and maintenance requirements consistent with the requirements for alternative onsite sewage systems contained in § 32.1-164." Pursuant to this enactment language, the Board of Health did enact regulations for alternative onsite sewage systems. During the same legislative session, the General Assembly also amended Virginia Code § 15.2-2157 specifically to prohibit localities from banning "the use of alternative onsite sewage systems that have been approved by the Virginia Department of Health" in areas where sewers or sewerage disposal facilities are not available. The amendments to § 15.2-2157 further provided in subsection (D) 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 2010, you asked this Office whether § 15.2-2157(C) operated to prevent a locality from requiring, by ordinance, that a landowner obtain a special exception to the zoning ordinance in order to construct an alternative onsite sewage system under the circumstances contemplated by subsection (C). In response, this Office opined that § 15.2-2157(C) precluded such a local requirement provided that (i) there was no sewer or sewerage disposal facility available and (ii) the alternative system had been approved by the Department for use in the circumstances and conditions in which the proposed system is to operate. In so opining, this Office observed the following:

Pursuant to [Va. Code § 15.2-2157(A) and (C)], the special exception requirement may be valid only if a public sewer is available and offered to the individual seeking to install the alternative onsite sewage system. The locality retains the general authority pursuant to § 15.2-2157(A) and § 15.2-2128 to regulate, inspect, and deny applications for onsite sewage systems where a public sewer or sewerage facility is available; but § 15.2-2157(C) clearly states that when "sewers or sewerage disposal systems are not available, a locality shall not prohibit the use of alternative onsite sewage systems. . . ." To require a special exception application for an alternative onsite sewer system that meets the conditions set forth in § 15.2-2157(C) effectively would give the local governing body the option to prohibit the system, a result not permitted by that subsection.

Subsequently, this Office received an opinion request letter from Delegate L. Scott Lingamfelter, asking:

1) Are the strictures in Virginia Code Section § 15.2-2157 limited to maintenance standards and maintenance requirements as argued by the Attorney for Fauquier County?

2) Does the general language in Code Section § 15.2-2157(A) authorize a County to adopt requirements other than maintenance requirements in addition to or stricter than those set forth in the Department of Health regulations?

This Office responded by letter dated March 9, 2012, opining in response to the first question that a locality may not adopt a maintenance standard that exceeds the standards set by the State Board of Health and, thus, that the specific bond requirement detailed in the facts of the letter was impermissible pursuant to § 15.2-2157(D). In response to the second question, this Office opined that a non-maintenance standard that exceeds state regulations is not a violation of § 15.2-2157(C), "provided ... [such standards] do not function so as to in effect ban the use of an alternative system where the state regulations would allow for its operation."

You indicate that certain localities have interpreted the March 9, 2012, opinion of this Office to authorize the adoption and enforcement of ordinances requiring more stringent standards for alternative onsite sewage systems than those required by the Virginia Department of Health where there is no sewer or sewerage disposal facility available. Specifically, you relate that a developer in a locality for which sewage facilities are not available wishes to develop his property for homesites requiring the use of alternative onsite sewage systems. Further, you state that although the proposed alternative sewage systems meet the criteria established by the Virginia Department of Health for use in the particular circumstances and conditions in which they are to be operating, the locality has informed the applicant developer that it is suspending indefinitely the disposition of his applications for alternative systems where the applications do not meet the locality's more stringent requirements for the systems, specifically, that there be fewer than 10 inches from the water table for mound systems and fewer than 12 inches from the water table for drip systems. You conclude that, for this property, the application of the locality's more stringent ordinance effectively prohibits the use of alternative onsite sewage systems.

You also report other examples of localities implementing more stringent requirements for alternative onsite sewage systems than those required by the Virginia Department of Health, with these more stringent local requirements being applied in circumstances where no sewer or sewerage disposal facility is available. You note that among such more stringent local requirements are: a larger minimum square footage for alternative drainfield size; duplex pump systems for all septic fields in residential subdivisions; and a requirement that the treatment system for a dwelling exceeding 7,500 square feet in living area must be over-designed by 50 percent.

Applicable Law and Discussion
Pursuant to Virginia Code § 15.2-2157(A), when sewers or sewerage facilities are not available, a locality has the general authority to regulate, inspect, and require the installation and maintenance of onsite sewage systems in order to protect public health. 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.

Although localities have the authority to regulate onsite sewage systems, § 15.2-2157(C) specifically prohibits them from banning "the use of alternative onsite sewage systems that have been approved by the Virginia Department of Health" in areas where sewers or sewerage disposal facilities are not available. Furthermore, in subsection (D) the legislature mandated 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." Section 32.1-164 provides that the regulations of the State Board of Health may include "standards for the design, construction, installation, modification and operation of sewerage systems" as well as "performance requirements for nitrogen discharged from alternative onsite sewage systems that protect public health and ground and surface water quality." The Board's Alternative Onsite Sewage Regulations, which are a supplement to its Sewage Handling and Disposal Regulations, provide a definition of maintenance and prescribe certain maintenance and performance standards, vertical separation, and horizontal setback requirements which must be met by the owner and designer of the sewage system. The Sewage Handling and Disposal Regulations also provide for minimum reserve area requirements for the design of a system.

As noted above, localities do have the general authority pursuant to § 15.2-2157(A) to regulate sewage systems within their boundaries as long as that regulation does not provide for maintenance standards or requirements in excess of those articulated in the Board of Health Regulations, as required by § 15.2-2157(D). The December 3, 2010, Opinion of this Office delineated permissible and impermissible local ordinance requirements for alternative systems. First, the Opinion found that localities may not adopt maintenance standards for alternative systems that exceed those promulgated by the Board of Health. Second, localities are authorized to regulate, inspect and deny applications for alternative systems pursuant to §§ 15.2-2128 and 15.2-2157(A), but this authorization is substantially limited by § 15.2-2157(C) in cases where public sewer facilities are unavailable. Third, where public sewer facilities are unavailable, and a property owner meets the Board of Health's regulatory requirements, a local ordinance exceeding such standards is without authorization from the General Assembly if its enforcement could result in the denial of such an application.

The March 9, 2012, Opinion of this Office is consistent with the December 3, 2010, Opinion in that it finds that where public sewage facilities are available to a landowner, localities may indeed adopt standards and regulations for alternative systems that exceed those promulgated by the Board of Health and implemented through the Virginia Department of Health, provided that those standards are not related to alternative system maintenance. In response to Delegate Lingamfelter's first question, the March 9, 2012, Opinion found that a locality may not adopt a maintenance standard that exceeds the standards set by the Board of Health and, thus, that the specific bond requirement detailed in the facts of the letter was impermissible pursuant to § 15.2-2157(D). In response to the second question, this Office opined that a non-maintenance standard that exceeded state regulations is not a violation of § 15.2-2157, "provided [such regulations] do not function so as to in effect ban the use of an alternative system where the state regulations would allow for its operation."

Delegate Lingamfelter did not ask, and the Opinion did not address, whether the local non-maintenance standards exceeding the regulations promulgated by the Board of Health contemplated in his question were permissible in cases where sewers or sewerage disposal facilities were not available. Rather, the question presented in Delegate Lingamfelter's letter was silent as to whether sewage facilities were available. Therefore, the 2012 Opinion is consistent with the findings of the 2010 Opinion, and the two can be read together as holding that localities cannot enact ordinances with standards or requirements greater than those of the state regulations where sewers or sewage facilities are not available.

The Commonwealth follows the Dillon Rule of strict construction, which "provides that 'municipal corporations have only those powers that are expressly granted, those necessarily or fairly implied from expressly granted powers, and those that are essential and indispensable.'" Thus, "[w]hen a local ordinance exceeds the scope of this authority, the ordinance is invalid." Where sewers or sewage facilities are not available, Virginia Code §§ 15.2-2157(C) and (D) prohibit a locality from establishing standards and requirements for the use of alternative onsite systems which exceed those established by the Alternative Onsite Sewage Regulations administered by the Department of Health. Any local ordinance that requires more stringent standards than those found within the state regulations would act, in effect, to ban the use of an alternative system where the state regulations would allow for its operation. Therefore, to the extent that public sewer facilities are unavailable and there are any requirements for alternative systems in a locality's ordinance which are in excess of the requirements set forth in the Board of Health's regulations, the ordinance exceeds the scope of the authority granted to localities pursuant to §§ 15.2-2157(C) and (D) and violates the Dillon Rule.

Conclusion
Accordingly, it is my opinion that a Virginia locality cannot adopt requirements and standards for alternative onsite sewage systems that are in addition to or more stringent than those enacted by the Board of Health and administered through the Virginia Department of Health when the conditions set forth in § 15.2-2157(C) exist, namely that (i) there is no sewer or sewerage disposal facility available and (ii) the alternative onsite sewage system has been approved by the Virginia Department of Health for use in the particular circumstances and conditions in which the proposed system is to be operating.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General