Suffolk County Closes Grandfathering Loophole For Residential Cesspools

The Suffolk County Legislature last week adopted a package of new regulations that will close loopholes that had frequently allowed long-outlawed cesspools to be replaced in kind, rather than upgraded.

The new regulations will bring an end to “grandfathering” of septic uses on commercial properties by the County Department of Health staff and require homeowners whose decades-old cesspools are failing to replace them with code-compliant systems, though not the latest nitrogen-reducing technology.

But the legislation, as adopted, backed away from provisions that had put limits on how long a homeowner could continue to maintain a malfunctioning cesspool without replacing it.

Legislator Bridget Fleming, who co-sponsored the legislation with County Executive Steve Bellone, said this week that certain progressive provisions of the original proposal were removed to satisfy the concerns of legislators about the cost the new regulations would impose on constituents.

Nonetheless, the bill failed to win the support of five of the legislature’s six Republicans. The lone Republican vote came from Tom Barraga, whose district includes Fire Island, who joined 12 Democrats in supporting it.

“I am really pleased that we took this first regulatory step to move away from cesspools after all these years,” Ms. Fleming said. “I don’t think it’s surprising that since it’s such a huge change, there was a lot of concerns, so in order to get the buy-in that we needed, we met those concerns.

“But we’ve known since 1973 that [cesspools] are basically pollution devices—we’re burying our waste in the ground,” she added. “That’s a huge issue for a coastal community that is tied to the water economically. And yet we’re halting a practice of getting rid of a major source of water pollution, and most of the Republicans felt they should oppose that. It’s very surprising to me.”

The amendments approved also will require that any commercial property that undergoes a change of use, expands or conducts any substantial new construction must upgrade to a nitrogen-reducing septic system. In the past, County Department of Health staff had routinely allowed commercial properties undergoing major expansions or redevelopment to continue using septic designs approved decades ago, including cesspools—a practice that some county officials have called “moral failures” on the part of the Department of Health staff.

The practice was spotlighted by environmental advocates at Defend H20 and the Concerned Citizens of Montauk in the wake of the permitting of extensive renovations at what is now Arbor restaurant in Montauk. An article in the Press in 2016 spotlighted the application and others around the East End that had been granted grandfathered septic allowances, or were asking for them. Mr. McAllister said he was relieved that the county halted a practice that should have been outlawed years ago, but still urged more action.

“I don’t understand why they have to wait on the requirements for new [residential] construction and failing systems—but there won’t be any more Ponquogue Manors,” Mr. McAllister said, referring to a Hampton Bays condominium development that was given approvals for a major redevelopment based on decades-old septic approvals for the small seasonal motel it replaced. So that's positive."

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