Can you build on land that failed a perc test?
Sometimes, yes. A percolation test is only one of many criteria Virginia uses to judge soil for sewage, and a site denied a conventional septic system can still try a written appeal, a variance, a conditional permit or an alternative onsite system designed to work with less natural soil. An unfavorable result starts a second evaluation; by itself it does not end the question.
An unfavorable perc result is one criterion, not the verdict
It can be, and the reason starts with how the regulation weighs the test. Virginia's soil evaluation rule does not let a percolation test decide suitability on its own.
Percolation tests shall be analyzed as only one of many criteria in determining soil suitability for absorption of treated sewage.
12VAC5-610-450, Soil evaluations
A conventional system asks a lot of the ground. An in-ground system, conventional septic tank drainfield systems included, places the infiltrative surface 18 inches or more below the original surface, and where it receives septic tank effluent the 18 inches of soil immediately below the installation depth may not show a limiting factor such as bedrock, a seasonal or permanent water table, or pans. Ground that cannot meet that has fallen short for one kind of system, not for every kind.
The approval that matters comes from the Virginia Department of Health (VDH), not the county. Requests for a sewage disposal construction permit go first to the district or local health department, and under Va. Code 32.1-165 no county, city or town may issue a permit for a building designed for human occupancy without the Commissioner's prior written authorization, given on finding that safe, adequate and proper sewage treatment is or will be made available to the building, or that the Review Board has approved the permit. The soil procedure itself is on how perc tests and soil evaluations work, and the rest of what makes a site workable, from access to the building permit, is under what makes a lot buildable.
Start with the denial letter and the appeal it names
A denial arrives in writing, and the writing is where the options begin.
Under 12VAC5-610-290, when a construction permit is denied the owner is notified in writing of the basis for the denial, and the notice states that the owner has the right to appeal. Va. Code 32.1-164.1 adds that the applicant is advised in writing of the administrative remedies available to obtain a reversal of the denial or a modification or elimination of its conditions.
Appeals of onsite sewage permit denials go to the Sewage Handling and Disposal Appeals Review Board. Under Va. Code 32.1-166.6 the Review Board hears those appeals and, in its discretion, may develop recommendations for alternative solutions to the conditions behind the denial and send the case back to the Department of Health for reconsideration.
Read the basis
The written denial says why the site was refused, which tells an evaluator what a second design has to solve.
Note the remedies
The notice names the administrative remedies and the right to appeal.
Weigh the other doors
A variance, a conditional permit or an alternative onsite system may answer the stated basis without an appeal.
Put the site back in front of a licensed professional
A licensed onsite soil evaluator, or a professional engineer working with one, judges whether a new evaluation or design is worth filing.
A variance for one owner, or a permit whose conditions stay with the land
The next two doors trade something for the permit, and anyone buying the land needs to know what each one trades.
The variance
Under 12VAC5-610-190, the Commissioner may grant a variance when a thorough investigation shows that the hardship the regulations impose, which may be economic, outweighs the benefit to the public, and the variance does not subject the public to unreasonable health risks. The same section limits who keeps it.
All variances granted to any sewage handling or disposal facility are nontransferable.
12VAC5-610-190, Variances
The conditional permit
Under 12VAC5-610-250, conditional construction permits may be issued for reduced water flow from permanent water-saving plumbing devices, limits on the number of persons occupying or using the dwelling, intermittent or seasonal use, or temporary use for a specified period of no more than one year. The holder has to record the conditional permit in the land records, and Va. Code 32.1-164.1 binds later holders who acquire the land to its conditions unless they obtain an additional permit for new use conditions.
So the variance rule and the conditional permit rule point in opposite directions: the regulation calls every variance nontransferable, while the statute binds later holders of a conditional permit to its conditions. Land bought on the strength of either one has to be read with that difference in mind.
Hauling is not a way around either door. Under 12VAC5-610-599, pumping and hauling for over one year counts as permanent and is prohibited unless done under the auspices and supervision of a government entity. 12VAC5-610-410 requires a special permit for a definite time period for pump and haul, although no separate special permit is needed where pump and haul is a maintenance requirement of an approved system, such as pumping septage from a septic tank.
An alternative septic system built for less natural soil
The last door is a different kind of system, and it answers the thin-soil problem directly.
Virginia's statute, Va. Code 32.1-163, defines an alternative onsite sewage system as a treatment works that is not a conventional onsite sewage system and does not result in a point source discharge. A separate chapter of the health regulations governs the design, construction and operation of these systems, and its performance section sets how much natural soil each kind of effluent needs.
| Naturally occurring soil above the limiting feature | Effluent the soil treatment area may receive |
|---|---|
| At least 18 inches | Septic tank effluent |
| Under 18 inches down to 12 inches, with at least 6 inches of naturally occurring, undisturbed soil | TL-2 effluent |
| 0 to under 12 inches | TL-3 effluent with standard disinfection |
That table is why an unfavorable result for a conventional system is not the end of the reading. Where the soil above bedrock or a water table is too thin for septic tank effluent, the regulation requires treated effluent instead, at a treatment level tied to how much natural soil there is.
What owning one involves once it is in the ground is covered under what an alternative septic system is. Whether a particular site qualifies for one, or for a conditional permit or a variance, is a question for a licensed onsite soil evaluator or professional engineer and the local health department.
Ground no design reaches, and a drainfield on another owner's land
Some limits are written as flat prohibitions, and a decision about a denied site starts by ruling them in or out.
- Subsurface soil absorption trench systems may not be placed on slopes greater than 50 percent unless terraced.
- A subsurface soil absorption system may not be placed at the low point of a sink hole.
- Subsurface soil absorption systems may not be placed in flood plains subject to annual or more frequent sustained (24 hours) flooding.
Those three come from 12VAC5-610-593. Where the trouble is the parcel's own ground rather than all the ground nearby, the regulations also allow the absorption system onto other land. Under 12VAC5-610-700, where all or part of a subsurface soil absorption system is proposed on property other than the owner's, an easement in perpetuity has to be recorded with the clerk of court before the construction permit issues, and what that easement has to make room for is part of what a septic reserve area takes off a lot. A drainfield on someone else's land is a real option only with that recorded easement in place.
If you are under contract on the land rather than owning it, whether the denial lets you leave the deal is a contract question, answered under whether a buyer can back out when a perc test fails. If you own the land and the sewage question is settled, the builder conversation comes next, and it starts with finding a builder for your land.
Holding a septic denial or an unfavorable soil report?
Send the tract and whatever paperwork you have, and Lowell will go through it with you and name the office or licensed professional who decides each remaining option. No cost, no obligation.
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Questions this raises
Does a septic variance carry over when the land is sold?
Not by the regulation's own terms. Under 12VAC5-610-190, all variances granted to any sewage handling or disposal facility are nontransferable, and a variance rests on a thorough investigation showing that the hardship outweighs the benefit to the public without unreasonable health risks. How that applies to a particular sale, and whether a new owner can seek one, are questions for the local health department.
Can sewage be pumped and hauled away instead of building a drainfield?
Not as a permanent plan. Under 12VAC5-610-599, pumping and hauling for over one year is treated as permanent and is prohibited unless done under the auspices and supervision of a government entity. A special permit for a definite time period is required for pump and haul, although no separate special permit is needed where pump and haul is a maintenance requirement of an approved system, such as pumping septage from a septic tank.
Does a conditional septic permit bind the next owner?
Yes. The holder of a conditional construction permit has to have it recorded and indexed under the holder's name in the circuit court land records, and Va. Code 32.1-164.1 binds any later holder who acquires the land to the permit's conditions unless that holder obtains an additional permit to modify the system for new use conditions.
Where this page's facts come from
Every rule, office and figure above traces to one of these. Rules change; check the office before you act on one.
- 12VAC5-610-450: soil evaluations, and the percolation test as one of many criteria Virginia Department of Health
- 12VAC5-610-594: in-ground systems and limiting factors Virginia Department of Health
- 12VAC5-610-250: construction permit requests and conditional construction permits Virginia Department of Health
- Va. Code 32.1-165: no building permit without the Commissioner's written authorization Virginia General Assembly
- 12VAC5-610-290: denial in writing and the right to appeal Virginia Department of Health
- Va. Code 32.1-164.1: administrative remedies, and conditions binding later holders Virginia General Assembly
- Va. Code 32.1-166.6: the Review Board hears appeals of permit denials Virginia General Assembly
- 12VAC5-610-190: variances, and their nontransferability Virginia Department of Health
- 12VAC5-610-599: permanent pumping and hauling Virginia Department of Health
- 12VAC5-610-410: special permits for pump and haul Virginia Department of Health
- Va. Code 32.1-163: definitions, including alternative onsite sewage system Virginia General Assembly
- 12VAC5-613-80: performance requirements, natural soil and treatment levels Virginia Department of Health
- 12VAC5-613-40: plans sealed by a Virginia-licensed professional engineer Virginia Department of Health
- 12VAC5-613-30: scope, and operation and maintenance for all alternative systems Virginia Department of Health
- 12VAC5-610-593: slope, sink hole and flood plain limits Virginia Department of Health
- 12VAC5-610-700: absorption systems on another owner's property and the perpetual easement Virginia Department of Health