New septic laws aim for more protection of state lakes, rivers

New rules around septic systems on shoreline properties have been in place for one month, and conservationists and environmental professionals are optimistic they’ll contribute to the protection of Lake Winnipesaukee. 

The new law, which went into effect Sept. 1, requires septic systems within the protected shoreline to be reviewed by a state-licensed evaluator and, depending on the circumstances, by a state-permitted designer before a transfer of waterfront property can take place. Septic systems determined to be failing would need to be replaced.

In eliminating the prior requirement for waterfront site assessments, the new law shifts responsibility to have an evaluation conducted onto the buyer, not the seller of a property during the course of a sale or other mode of transfer. 

Within the law, there are provisions for a buyer to accept an evaluation completed for the seller, if they so choose. Those provisions are meant to save both buyer and seller from conducting redundant evaluations, reducing overall costs. 

The protected shoreline includes all land within 250 feet of all lakes and ponds greater than 10 acres in size, all fourth order and greater streams and rivers and most designated rivers, including sections less than fourth order and all waters subject to the tide.

The state stream order classification system ranks streams in order of how many others feed into them, and all fourth order and greater streams and rivers are protected under the Shoreland Water Quality Protection Act.

Philip Trowbridge, New Hampshire Department of Environmental Services land resources management program manager, said it’s too early to tell if the new changes to law will have a large impact, but he and others are optimistic.

“It’s still really early,” he said. “With any kind of water quality issue, it requires as many tools as you’ve got within the tool box.”

Trowbridge said there are many factors which impact water quality, but the change in law regarding waterfront septic systems inspections needed to be addressed.

“We think that this is one of those low-hanging fruit approaches that will net some benefits,” he said.

In times past, waterfront site assessments indicated the amount of wastewater that could be treated by the soil on a lot of property, but didn’t include a detailed investigation and description of the state of existing septic systems. Untreated wastewater, a symptom of a failing septic system, can pollute groundwater and other bodies of water, posing potential health risks for people and wildlife alike. Phosphorus and nitrogen, present in septic waste, contribute to the acceleration of algal blooms and the growth of cyanobacteria.

According to the new law, if the septic system evaluator or designer determines a given system is failing, the burden befalls the buyer who must replace the septic system within 180 days. If the system is determined to be in failure, the buyer must authorize the evaluator to notify the New Hampshire Department of Environmental Services and the local health officer. The law includes extensions of up to 180 days if the buyer can show there are extenuating circumstances that have prevented them from replacing the septic system, such as adverse weather conditions or complications with the closing date.

Brie Stephens of Lake Life Realty said Monday her firm hasn’t had to deal with the new rule changes yet, but they anticipate those will come into play soon, when a property in Moultonborough hits the market. Over the last month, they’ve been working on educating buyers and sellers about the changes to law.

“That will be our first,” she said of the Moultonborough property.

Stephens said the cost of replacing a septic system, if necessary, may be included in negotiations between the buyer and seller of a given listing. 

“I don’t foresee people putting it in their offer for the seller to have that done,” she said. 

She also noted the cost of replacing a system within 180 days will be an impact felt by the buyer and the timeframe may be somewhat unrealistic, noting the steps in the process may take longer than 180 days, especially when designers and installers are in high demand.

According to the new law, a buyer can skip the process entirely if they plan to have a new septic system constructed. Once a new system is constructed or the old system is otherwise replaced, the buyer must notify DES and the local health officer.  

Properties with septic systems that do not have state approval or that do have state approval received before 1989 require the assistance of a designer. For older systems approved before 1989, designers must determine the elevation of the system relative to the seasonal high-water table to ensure enough separation.

Real estate transaction concerns aside, regional conservationists supported the change in law and are also optimistic those changes will help protect the water quality of Lake Winnipesaukee and other bodies. Pat Tarpey, president of the Lake Winnipesaukee Alliance, said members of that organization were happy to see the changes.

“It was one of those loopholes that our organization was interested in seeing closed,” Tarpey said. “It’s a great change in the law.”

Tarpey said before the change, property sales represented a sort of “buyer beware” situation, and there were certainly waterfront properties with failing septic systems. The change in law will help pinpoint which and how many properties and septic systems those are.

“This is great for our lake,” Tarpey said. “It’s great for all of our water bodies.”

And Frank Roche of Roche Realty Group said Monday the legal changes were favorable to the environment but may require some adjustment on the part of agents, buyers and sellers who are used to doing things the old way.

“We just had one closing on the lake that happened on the day the law went into effect,” Roche said, noting they followed both the old requirements and the new ones over the course of that transaction.

“We all want to see the lake protected,” he said. 

But Roche pointed out that, while ensuring the viability of septic systems within the protected area close to the shoreline is a good step toward conservation, there are also properties well away from the shoreline that contribute to the pollution of Lake Winnipesaukee through drainage. He also noted many of the islands are home to properties with failing septic systems.

“All drainage gets down to the lowest point, to the lake,” Roche said. “Even far away from the lake.”

He agreed with Stephens the expense associated with the changes may be negotiated as part of a property sale and added there may be cases where a buyer and seller agree to split the costs. 

“It will all be part of the negotiating process,” he said.