[HISTORY: Adopted by the Town Board of the Town of Brookhaven 6-9-2016 by L.L. No. 14-2016, effective 6-21-2016; amended in its entirety 4-27-2017 by L.L. No. 5-10-2017. Subsequent amendments noted where applicable.]
As supported by information and data in the 2015 Suffolk County Comprehensive Water Resources Management Plan, the Town of Brookhaven (Town) hereby finds and determines that the impact of Superstorm Sandy underscored the already well-known importance of Long Island's water resources, the fragility of its water supplies, and the vulnerability of the wetlands which serve as the last line of Long Island's natural defense against storm surge.
The Town further finds and determines that nitrogen contamination poses a real threat to both drinking water supplies and coastal marine habitat and resources because nitrogen-induced nutrient loading and eutrophication can lead to many negative impacts on estuarine environments, including harmful algal blooms, hypoxia (little oxygen) or anoxia (no oxygen).
The Town also finds that the adverse impact of nitrogen pollution is best exemplified by the 93% decline in the clam harvest in the Great South Bay, over the past 25 years, which resulted from recurring brown tides fed by nitrogen seepage from septic systems and cesspools. This decline, in turn, caused the destruction of an entire industry and the concomitant loss of approximately 6,000 jobs. (Note: 2015 Suffolk County Comprehensive Water Resources Management Plan pg. ES-1.)
The Town also determines that the bay scallop fishery on eastern Long Island and the hard clam fishery in the south shore bays were two of the largest in the entire United States and that experts have concluded that the bay scallop collapse was almost entirely due to nitrogen-caused algal blooms while over-harvested hard clams have failed to recover largely due to recurrent brown tides. (Note: 2015 Suffolk County Comprehensive Water Resources Management Plan pg. ES-1.)
The Town further finds that the vast majority of Suffolk County residents utilize on-site wastewater disposal systems that discharge into groundwater and approximately 350,000 sub-and non-performing septic/cesspools in Suffolk County account for more than 75% of the homes in the County. If septic systems are flooded or submerged in groundwater, they do not function as designed and they fail to properly and adequately treat pathogens. The excess nitrogen from the sewage then compromises valuable natural resources, coastal defenses, and human health. (Note: 2015 Suffolk County Comprehensive Water Resources Management Plan pg. ES-4.)
The Town also determines that 68% of the total nitrogen entering the Great South Bay originated from wastewater, including wastewater from septic systems and sewage effluent discharges. (Note: 2015 Suffolk County Comprehensive Water Resources Management Plan pg. 8-109.)
The Town further finds and determines that:
Long Island's entire sixty-mile-long South Estuary Reserve was declared impaired by the New York State Department of Environmental Conservation (NYDEC) in 2008, with nitrogen from wastewater cited as a reason for the designation;
According to the NYSDEC, there was an 18% to 36% loss of tidal wetlands in Suffolk County between 1974 and 2001;
Wetlands have been proven to reduce vulnerability to storm surge by reducing wave heights by over 80% over short distances by reducing the energy of waves as they travel over vegetation; (Note: 2015 Suffolk County Comprehensive Water Resources Management Plan pg. 7-25.)
All three major estuaries in Suffolk County are suffering from dissolved oxygen impairments and recurring harmful algal blooms which diminish county wetlands, the second line of defense to storms; (Note: 2015 Suffolk County Comprehensive Water Resources Management Plan pg. 8-29.)
Excessive nitrogen has a direct effect on seagrass by promoting the growth of microalgae which shade it and macroalgae which out compete it; (Note: 2015 Suffolk County Comprehensive Water Resources Management Plan pg. ES-17.)
The New York State Seagrass Task Force estimates that the 200,000 acres of seagrass in Long Island bays and harbors have been diminished by nearly 90% since 1939, with only 22,000 acres remaining;
NYSDEC has concluded that cesspools, septic systems, and sewage treatment plants cause eutrophication, resulting in lower oxygen levels and persistent algal blooms;
Experts have identified the Forge River in Moriches, Brookhaven, as one of the worst cases of anoxia (absence of oxygen) known; (Note: 2015 Suffolk County Comprehensive Water Resources Management Plan pg. ES-3.)
Although 87% of all community supply wells in Suffolk County had nitrogen concentrations less than or equal to 6 mg/L, between 1987 and 2005, there were large increases of nitrogen concentrations in all of Suffolk County's groundwater aquifers. Nitrogen concentrations in the Upper Glacial aquifer rose by 40%, and levels in the Magothy aquifer rose by 70%; and
Parts of Suffolk County's groundwater exceed maximum contaminant levels, caused by unsewered, substandard sized lots, especially in Huntington, Smithtown, and northern Brookhaven, with nitrate levels ranging from 8 mg/L to 12mg/L in certain Magothy wells in Northport and East Northport.
The Town acknowledges that restrictions on nitrogen contamination via cesspools and sanitary systems cannot solve the entire problem of contamination of Brookhaven's water supplies, natural habitat, and water resources but must, instead, be viewed as an incremental component of a larger and more comprehensive plan to reverse this contamination.
Therefore, the purpose of this chapter is to begin an incremental rollback of the discharge of nitrogen from sanitary waste into the ground by enacting more stringent standards for sanitary systems installed on residential properties for the construction of a new dwelling or structure, or construction that fully replaces demolished existing structures, located within 500 feet of a body of water, by requiring a sanitary system nitrogen standard averaging no greater than 19 mg/L, beginning January 1, 2017.
The following words shall have the following meanings for the purposes of this chapter:
- CONSTRUCTION PROJECT
- The building of a dwelling designed for residential purposes and arranged or intended to be occupied by one family, or two families living independently of each other.
- The Town of Brookhaven Department of Planning, Environment and Land Management, or any successor department thereto.
- INDIVIDUAL SANITARY SYSTEM
- A single system of piping, tanks, or other facilities serving only a single parcel and disposing of sewage or other liquid waste into the soil of such parcel, which is commonly referred to as an innovative and alternative on-site wastewater treatment system (I/A OWTS.)
- NITROGEN PROTECTED ZONE (NPZ)
- Encompasses an area within 500 feet of surface waters such as the Atlantic Ocean, Long Island Sound, the Great South Bay, the Forge River, the Carmans River, and other rivers, lakes, streams, ponds, ditches or canals within the Town of Brookhaven, this being that area in which nitrogen discharged from sanitary systems has the shortest travel time to surface waters. Properties within 500 feet of surface waters tend also to lie within flood zones or coastal erosion hazard areas and are subject to flooding and/or collapse if on a bluff or dune that may result in nitrogen and pathogens from sanitary systems affecting surface waters to a greater degree than properties located further from surface waters.
- An individual, owner, firm, corporation, company, parent company, subsidiary, limited-liability company, substantially owned affiliated entity, association, partnership, joint venture, institution, public body, entity, joint-stock association, partnership, joint venture, legal representative, agent or any other form of doing business or any other group of individuals and/or entities and includes the plural as well as the singular.
- Water-carried wastes from residences, institutions, businesses and commercial and industrial buildings and establishments, or a combination thereof, together with such groundwater, surface water and stormwater as may be inadvertently present. The admixture of sewage with industrial wasters or other wastes shall also be considered "sewage" within the meaning of this definition.
Any person who proposes, undertakes, or engages in the creation of a new construction project, on or after the effective date of this chapter, which construction project: 1) is located within a NPZ; and 2) requires the installation of an individual sanitary system, pursuant to Articles five and/or six of the Suffolk County Sanitary Code or any successor article thereto, shall install an I/A OWTS that discharges into the ground no more than 19 milligrams of nitrogen per liter of effluent (19 mg/L) on average as measured over 12 samples taken one per month for a year.
Any person who proposes, undertakes, or engages in the creation of a replacement construction project, on or after the effective date of this chapter, which construction project: 1) entirely demolishes an existing construction project and replaces it with a new construction project, or additions to an existing residential structure that exceeds 50% of the floor area of the existing structure as indicated on the most recent certificate of occupancy, or the equivalent; and 2) is located within a NPZ; and 3) requires the installation of an individual sanitary system, pursuant to Articles 5 and/or 6 of the Suffolk County Sanitary Code or any successor article thereto, shall install an I/A OWTS that discharges into the ground no more than 19 milligrams of nitrogen per liter of effluent (19 mg/L) on average as measured over 12 samples taken one per month for a year.
In the event an existing construction project must be replaced due to damage caused by winds, torrential rainfall, flooding and/or storm surge from hurricanes or natural disaster, any person required to install an I/A OWTS pursuant to this chapter may seek a waiver from such installation requirements, from the Board of Zoning Appeals , which waiver may be granted only upon a showing of undue financial hardship. The Board of Zoning Appeals is authorized to grant relief in conformance with this section, and may grant such application, impose such reasonable conditions upon its grant of approval of any such relief as it deems appropriate, or may deny the application.
[Amended 8-10-2017 by L.L. No. 21-2017, effective 8-18-2017]
Any applicant/owner of a construction project shall submit a copy of a Suffolk County Department of Health Services approval for an I/A OWTS prior to the issuance of a building permit.
Permitting and reporting. The Division of Environmental Protection may, at any time, require an owner of an I/A OWTS to submit a monitoring report, engineer's report, and/or performance and maintenance report demonstrating compliance with the provisions of this chapter.
Any owner of real property within the Town of Brookhaven who incurs a documented cost in connection with complying with Chapter 78A of the Brookhaven Town Code may apply for reimbursement of the cost of the installation of a residential I/A OWTS pursuant to § C12-2D(2) of the Suffolk County Charter (SCC). The request for such reimbursement shall be made to the Suffolk County Sewer Infrastructure Committee ("Committee") which was established by § C12-2D(4) of the SCC to review all applications for funding of sewer infrastructure, sewage treatment projects, and the installation of I/A OWTS, and to make advisory recommendations to the County Executive and the County Legislature as to which projects should receive funding. This section of the SCC was approved at public referendum by the voters of Suffolk County in 2014 and authorizes this funding stream through 2021.
This chapter shall apply to all actions occurring on or after January 1, 2017, subject to the provisions set forth in Subsection B.
The sanitary system nitrogen standard set forth in this chapter is based upon a written statement of the Commissioner of the Suffolk County Department of Health Services (SCDHS). The Town shall be authorized to alter the nitrogen standard following future written statements containing a determination by the Commissioner of the SCDHS that the technology exists to improve such standard by decreasing the milligrams per liter of effluent. The Department shall submit a written request to the Commissioner of SCDHS on a yearly basis, commencing on December 1, 2017, and each year thereafter. In those years that the SCDHS determines in writing that the technology exists to decrease the milligrams per liter of effluent, the Town is authorized to mandate the limits of nitrogen effluent milligrams per liter to the applicable standard set by the SCDHS. Such authorization shall be by resolution of the Town Board, and shall take effect within 30 days after approval.
Penalties and fines.
Any person who violates any provision of this chapter shall, for the first offense, be guilty of a violation punishable by a fine of not less than $500 nor more than $1,000, and for a second and each subsequent offense, be punishable by a fine of not less than $1,000 nor more than $2,000. Each offense shall be a separate and distinct offense, and, in the case of a continuing offense, each day's continuance thereof shall be a separate and distinct offense.
Any corporation which violates any provision of this chapter shall, for the first offense, be guilty of a violation punishable by a fine of not less than $500 nor more than $1,000, and for a second and each subsequent offense, be punishable by a fine of not less than $1,000 nor more than $2,000. Each offense shall be a separate and distinct offense, and, in the case of a continuing offense, each day's continuance thereof shall be a separate and distinct offense.
Equitable relief. The Town of Brookhaven shall have the right to seek equitable relief to restrain any violation or threatened violation of any provisions of this chapter.
If any clause, sentence, paragraph, section or item of §§ 78-1 through 78-8 shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not impair nor invalidate the remainder hereof; but such adjudication shall be confined in its operation to the clause, sentence, paragraph, section or item directly involved in the controversy in which such judgment shall have been rendered.