The Septic System Quagmire: Septic System Regulation in Minnesota

September 16, 2013  |  Joan M. Quade

The rules regarding septic system regulation in Minnesota can be confusing and costly for those buying or selling property. Despite the amount of development and state and local governments’ best efforts to provide city sewer and water for most metropolitan areas, there remains mostly private septic systems in outstate and many areas of the metro. Septic systems are highly regulated by both state and local governments, as a faulty system poses both environmental and health concerns. Septic systems are essentially an on-site wastewater management system in areas with no public sewer system. Due to the widespread use of septic tanks in both residential and commercial areas, understanding the regulation of septic systems in Minnesota is crucial to ensure compliance with the law and to fully protect those who are buying and selling property or those using such a system.

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Septic tanks are regulated by Minnesota Rules 7080-7083 and Minnesota Statute § 115.55. However, since all counties in Minnesota are required to adopt and implement SSTS (subsurface sewage treatment system) ordinances, septic systems are largely regulated on a county by county basis in Minnesota. To make it even more confusing, cities also have ordinances related to septic systems. The inspection of a septic system is required for all new construction or when a new system is installed. (Minn. Stat. § 115.55, subd. 5(a)). Additionally, if a home is being remodeled to include additional bedrooms, a permit is required and the septic must be inspected as part of the permit process. (Minn. Stat. § 115.55, subd. 5(b)). Ordinances regulating commercial septic tanks, MSTS (Mid-Sized Septic Tank Systems), are based on capacity requirements of the tank as well as how the tank is used. (Minn. R. 7081.0020, subpt. 4). Call the commercial litigation team of BGS today with your commercial litigation questions at (763) 780-8500.
Additionally, regardless of the county, septic tank ordinances must include two specific requirements. (Minn. R. 7080.1500, subpt. 4.; Minn. R. 7082.0100, subpt. 1(A) & (B)). First, if an owner of a septic system receives a notice of noncompliance that a system is failing to protect the groundwater, they are required to upgrade, replace, repair, or stop using the system within a certain period of time. (Minn. R. 7080.1500, subpt 4; Minn. Stat. § 115.55, subd.5a(e)). Second, if an owner of a septic system receives a notice of noncompliance stating that a system represents an imminent threat to public health or safety they are required to upgrade, replace, repair, or stop using the system within ten months of receiving the notice, or within a shorter period of time in some cases. (Minn. R. 7080.1500, subpt. 4).
Many people wonder what their responsibilities are with regards to the septic system when selling or transferring property. For example, is it necessary to tell a buyer about the septic system? Is it necessary to have the septic system inspected before selling it? Certain disclosures must be made under law about a septic system. Minnesota Statute § 115.55, subd. 6, requires a seller or transferor of property to disclose to the buyer in writing how the sewage on the property is managed. This disclosure to the buyer must state either that (a) the sewage goes to a facility permitted by the agency, or (b) the sewage does not go to a permitted facility, and is therefore subject to certain requirements.
For sewage that does not go to a permitted facility, the disclosure to the buyer must contain the following information:
• A description of the property, including the legal description of the property,
• The county where the property is located,
• A map showing the location of the system,
• Any information concerning a possible abandoned sewage system on the property, including a map showing the system’s location,
• Any knowledge available regarding the compliance status of the system,
• Whether a straight-pipe system exists (if the property owner has this knowledge), and
• Any information or paperwork regarding last/previous inspection(s) by licensed inspection business or certified local inspector.
(Minn. Stat. § 115.55, subd. 6).
Any compliance or previous inspection paperwork must be attached to the disclosure statement given to the buyer. (Minn. Stat. § 115.55, subd. 6). This disclosure statement itself to the buyer is not a compliance inspection. (Minn. Pollution Control Agency, Guide to Subsurface Sewage Treatment System Disclosure at Property, In order to obtain a compliance certificate, a septic tank inspector will look at (1) sewage discharge to surface water, (2) sewage discharge to ground surface, (3) sewage back up, or (4) any other situation with the potential to threaten the public health and safety. (Minn. Stat. § 115.55, subd. 5a(b)). Following inspection and assuming that a system does not need to be upgraded, replaced, or its use discontinued, an inspector will issue a compliance certificate. (Minn. Stat. § 115.55, subd. 5b). Compliance certificates for existing septic systems are good for three years from the date of issue, while compliance certificates for new systems are good for five years from the date of issue. (Minn. Stat. § 115.55, subd. 5(c) & (d)). Having a septic tank pumped out or maintained is not the same as having a compliance inspection conducted, although it is recommended that both be done approximately every three years.
Septic system inspections are required for any new construction or replacement of a system, and to obtain building permits for a new bedroom. (Minn. Stat. § 115.55, subd. 5). However, Minnesota state law does not require a compliance inspection of the septic tank before property is transferred to the buyer. That said, many local ordinances do require inspection.
For example, the following counties do require compliance inspections before transfer of property:
• Benton (If the seller has a compliance certificate older than five years, a compliance inspection is required. Benton County Ordinance No. 338, § 9.6.23).
• Dodge (Subsurface Sewage Treatment System Ordinance No. 4).
• Carver (Carver County Ordinance 67-2010, § 52.169).
• Ramsey (Ramsey City Code 8.30.04 (3)).
• Rice (A septic system must be inspected before transfer of property, unless the existing system was installed within the past five (5) years or if a compliance certificate has been issued for the existing system in the past three (3) years. Rice County Sewage Treatment Ordinance § 713.03).
• St. Louis (St. Louis County Individual Treatment Systems, Ordinance 55, § 6.04(B)(3)).
• Wilkin (Wilkin County Zoning Ordinance § 19.3).
• Washington (Unless the septic system is less than five years old, in which case no compliance inspection is necessary before transfer of property. Washington County Development Code, § 8.102).
Compliance Inspections are required of property located in a Shoreland area, which is generally within 1000 feet of a lake or 300 feet landward of a creek, river, or connecting flood plain.
Some counties, like Wright County (Wright County Ordinance No. 11-02,§ 4.00, subd. 1(a)), and Sibley County (Sibley County Ordinance 300., require that the property have a valid certificate of compliance before transfer. Certificates are usually considered valid for three (3) to five (5) years from the original inspection date, depending on the county and the age of the septic system. Therefore, if a property owner’s compliance certificate is invalid, he would be required to have a compliance inspection done. Some counties do not specifically require an inspection, but because they require a compliance certificate, it is highly likely an inspection must be done before transfer of property.
Anoka and Hennepin Counties, on the other hand, do not require inspection of a personal septic system before transfer of property in general, only disclosure of the existence of a septic system. (Anoka County Environmental Services, Know the Flow, Septic System Information for Residents; Hennepin County Individual Sewage Treatment System Program, Ordinance 19). Under Minn. Stat. § 115.55, subd. 5a(c), existing systems built before April 1, 1996, are considered in compliance if two feet of soil separation is provided and it is not classified as an “imminent threat.” In these counties, inspections are normally only conducted on new systems, repairs done on existing systems, and existing systems that may be subject to a complaint. (Anoka County Environmental Services, Know the Flow, Septic System Information for Residents; Hennepin County Individual Sewage Treatment System Program, Ordinance 19). Despite these county rules, Anoka County has delegated its septic tank regulating authority to its cities and townships. Id. That means even within Anoka County cities’ rules may differ. Id. For instance, the city of Andover does not require inspection before transfer of property, but the city of Blaine DOES require inspection. (City of Andover Building Department; City of Blaine, BCO 34-241 thru 34-246).
Even if a county or city does not require inspection, make note of the fact that buyers may and should nonetheless require a thorough inspection before taking property, and most lending agencies require an inspection before they will approve a mortgage. In order to transfer property to a buyer smoothly, always check with the local government to determine county, city, or township requirements. Remember, a seller of property may be held liable to a buyer if he has knowledge that a septic system is in noncompliance or is not operational and doesn’t disclose this information to the buyer before transfer of the property. (Minn. Stat. § 115.55, subd.6(b)).
If you are concerned about a commercial septic system, inspection requirements are no different whether the property is commercial or residential. However, when attempting to use a MSTS for a purpose other than what it was designed for, be careful to check the design specifications or serious problems could arise.
This article gives you only brief overview of septic tank regulation in Minnesota. If you are experiencing septic tank issues, either because you have specific problems with county regulations or you are interested in transferring property and want to ensure you are adhering to applicable laws, or make sure that you have an inspected and working system before buying, please call Joan M. Quade for legal assistance.