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Jun 11, 2025

Evaluate cumulative risk of SC septic tank subdivisions

Septic tanks basically bury human waste underground, which works fine on high, dry ground, where individual septic systems are far apart — at least until they fail. Septic tanks make sense on some

Septic tanks basically bury human waste underground, which works fine on high, dry ground, where individual septic systems are far apart — at least until they fail.

Septic tanks make sense on some individual tracts and in some parts of the state, where a property owner buys or subdivides some land and a few new houses get built along and along, where homes are set on acres of land with no worry about polluting neighbors’ wells, and where the land is on high ground and there are no nearby rivers that will be harmed if the tanks fail.

There are even some individual tracts in South Carolina’s coastal zone where septic tanks can make sense.

What doesn’t make sense is allowing developers to subdivide a single piece of property and install 100 septic tanks (or even 20) in order to build a subdivision where the infrastructure doesn't support it — let alone assuming that's perfectly safe.

Yet the S.C. Department of Environmental Services, like the Department of Health and Environmental Control before it, makes precisely that assumption. That’s why we’ve been urging the Legislature, at the least, to require that permits for septic-tank subdivisions be evaluated based on their cumulative effect. So far, the Legislature has refused to do that.

So while it’s disappointing that a judge didn’t wave a magic wand and right this wrongheaded status quo, we can’t fault Circuit Judge Frank R. Addy Jr.’s conclusion that state law doesn’t allow him to tell the agency to change its policy. To the contrary, we welcome his willingness to do a bit of educating on who writes laws in our government and who doesn’t.

The judge started off by explaining that he “agrees whole heartedly with Plaintiff’s underlying argument concerning the human and environmental dangers associated with installing multiple septic systems on small parcels of land." He said the fact that “developers are essentially skirting the intentions of the (Coastal Management Plan) by building tract developments without running lines to the nearest sewer system is a genuine problem that cries out to be addressed legislatively.”

He then noted that while state law gives the agency the authority to evaluate proposals for septic subdivisions as a whole rather than just individual septic tank applications, it also gives the agency the authority to decline to do that. And then he concluded: “This Court may not substitute its judgment for that of the General Assembly when it has spoken unequivocally. … DHEC has previously determined that septic systems with a capacity of less than 1,500 gallons do not pose a sufficient risk to the coastal environment or our citizens, and the General Assembly has essentially ratified that decision by adopting DHEC’s recommendations pursuant to Section 48-39-50.”

As The Post and Courier’s Toby Cox reports, even Amy Armstrong, whose South Carolina Environmental Law Center brought the lawsuit on behalf of the Charleston Waterkeeper and the Coastal Conservation League, acknowledged that what was being asked of the judge involved an "issue of first impression,” meaning “there's no law on it.”

A lot of people think nothing of trying to get our courts to interpret laws to mean things no one ever thought they meant; indeed, that’s standard practice in states such as South Carolina that aren’t as protective of our environment as they should be. But finding a new way to read our law — that is, rewriting our laws — is not the job of courts, as Judge Epps correctly noted. The job of our courts is to referee disputes and rule on questions of constitutionality. Our laws are supposed to be written by our legislative bodies and then signed or vetoed by our governors and presidents.

That’s a hard pill to swallow when we don’t agree with the politics of our legislatures and executives, but the solution isn’t a judicial end run. The solution is to do a better job convincing our lawmakers that they must change the law — or, in this case, to convince the Department of Environmental Services, since as Judge Addy pointed out, that it has the authority to take the scientific and logical approach to septic subdivisions if it chooses to.

We urge conservationists to redouble their work on both of those fronts. And if they’re still not able to convince our bureaucrats to change their approach or our lawmakers to change this law, then the solution is to elect legislators who will change the laws. That, of course, is the right way to change any law we don’t like.

No, that’s not simple or easy or quick, but that’s our governmental system, and while we often don’t like the results, and while that system, particularly at the federal level, is under unprecedented strain, it’s still the best model for governance in the world.

Click here for more opinion content from The Post and Courier.