Councils might lose power over private sewage plants

Opponents say amendment violates Clean Water Act

The Legislature is considering a bill that would strip regional councils of governments of their authority to prohibit privately owned sewage treatment plants.

The legislation could clear a path toward developing rural areas with no sewer lines, like Awendaw and parts of Johns Island.

The provision came in the form of an amendment tucked into an existing bill in May, not long after the Berkeley-Charleston- Dorchester Council of Governments voted against allowing privately-owned sewage plants.

Lawmakers said the move to bar the councils from regulating private sewage plants was initiated by Charleston City Councilman Tim Mallard, who was chairman of the COG wastewater subcommittee, and disagreed with the vote against allowing private sewer plants.

According to senators on both sides of the issue, Mallard sent a letter questioning whether councils of governments had the authority to regulate such facilities.

His letter led to an opinion from the state Attorney General saying that state law does not give them such authority.

Sen. Glenn McConnell, R-Charleston, then added the controversial amendment to a bill dealing with water districts.

Opponents of the measure say it is bad policy and ignores the fact that councils of governments have the power to regulate sewage under the federal Clean Water Act.

"We'd be in violation of the Clean Water Act if this were to pass," said Sen. Chip Campsen, R-Isle of Palms, who opposes the amendment and said he's been holding up the bill.

"The effect of this bill would also be to circumvent the requirement that before a municipality gets into the sewer business, there has to be a public referendum," he said.

"You'd be opening the floodgates," Campsen said. "Do we really want the area up near the national forest to look like the bypass in Mount Pleasant?"

Some elected officials in the tri-county area who voted through the council of governments against allowing privately-owned sewage plants, such as Dorchester County Councilman Larry Hargett, said there are good reasons to oppose such operations.

"In the three-county area we have 32 or 33 systems that failed, that were privately owned or maintained, and they all had to be taken over by a public entity," he said. "In some cases they were dumping almost untreated wastewater into the Ashley River."

The council of governments has not prohibited private enterprises from building or operating treatment plants but decided that any such plant would have to be publicly owned in order to ensure accountability.

McConnell said the intent of the amendment he introduced was to make state law match "what the attorney general said the law was."

"If there's federal pre-emption, that's another matter," he said. "We may withdraw the amendment if it conflicts with federal law."

The Coastal Conservation League is among those opposing the legislation.

"This amendment would defeat all of the work that went into COG making this policy decision, to protect human health and our environment," said the League's Lisa Jones-Turansky.

Ron Mitchum, director of the Berkeley-Charleston-Dorchester COG, said planners still are trying to understand the ramifications.

"The bill was just amended last week, and we're trying to find out what's going on," he said Thursday. "We'd like to slow it down and try to find out what the consequences are."

The COG took up the issue of private sewage plants this year because several developers were seeking permission to build them.

Mike Stinson, a consultant to Low Country Utilities LLC, a company proposing to build a sewage facility in Awendaw, said he didn't think the COG's decision would halt those plans.

"It doesn't make it impossible," Stinson said. "It just makes it more difficult."

On Johns Island near Kiawah Island, developer Bennett-Hofford Construction also had sought permission for a private treatment plant.

Mallard, while chairing the COGs committee considering the issue, urged committee members to allow private ownership but in the end was out-voted.

"I'm for privatization," Mallard said at the time. "Private is better than public, in my opinion."

Mallard could not be reached for comment.

Yvonne Wenger contributed to this report.Reach David Slade at 937-5552 or dslade@postandcourier.com.