John Osborn: What was your role with protecting the Aquifer?
Ken Lustig: In 1972 Panhandle Health’s director Larry Belmont hired me. I had just finished at the University of Idaho with a masters degree in vertebrate zoology and ecology and was looking at a PhD program. An EPA grant funded my first work, which was working on garbage. We had 55 open dumps in north Idaho. We closed the dumps and replaced them with landfills. That was my first experience with groundwater pollution because of leachates.
JO: The Clean Water Act of 1972 Section 208 required states to write plans and implementation schedules. How did this impact Aquifer protection on the Idaho side of the Aquifer and what was your role?
Ken: Larry Belmont asked me to serve as project coordinator for the 208 work. At the time Panhandle Health was the agency responsible for issuing permits to locate septic tanks and drain fields over the aquifer. Our premise was that if our permits damaged the drinking water supply, then that could be malfeasance on the part of Panhandle Health. Also remember that each of Idaho seven health districts could promulgate their own regulations, recognizing the diversity of the state and resulting from the work of Coeur d’Alene attorney Scott Reed.
We said, “we need to know if septic systems are harming the aquifer.” Defining the issue is the first stage that would eventually lead to needed regulation. So the first step was for us to define the issue.
JO: Not unlike providing care for patients: making the diagnosis is the first step to treatment.
Ken: Yes. If we determined that septic systems over the aquifer would harm drinking water, then the only scalpel we had was the regulatory one.
Our work needed to be meticulous. From 1974 through 1976 we checked 42 wells on a monthly basis and analyzed water samples for contaminants. We were able to retain a USGS retiree, Fred Jones, as a part time consultant. He helped us design our sample network and develop proper protocols for sampling.
JO: Looking back, what do you consider to be your major contribution?
Ken: Remember that the problem definition has to be linked to risk. No risk? Then no justification for regulatory structure. The greater the risk (and in science risk is defined as probability of harm) … the greater the probability of harm, the larger the imperative of establishing the regulatory structure.
The turning point for us was that after about two years of intense sampling, we started to pull the data for interpretation. That was the point when it became clear: there was a significant impact of septic systems on groundwater between Coeur d’Alene and Post Falls. Our report took about 14–15 pages to present the graphs and made clear beyond a shadow of the doubt that septic systems were the causative agent for the deterioration of groundwater.
Now, we had problem definition and risk analysis (i.e. probability of harm). The next two stages before you get to drafting a regulation are public involvement and political support. I gave my technical presentation to the board of Panhandle Health and we published our report and sent it along to EPA as part of the 208 program. EPA responded: “what are you going to do with this? How are you going to resolve this issue?” The function of 208 was for local entities to define under the Clean Water Act the most prevalent issues. 208 was a tool that allowed us to act to protect drinking water for the public health.
JO: In the 1970s Sierra Club and others petitioned the US Environmental Protection Agency to designate the Aquifer as a “Sole Source Aquifer” because we are dependent on this single source for our drinking water. In 1978 EPA made the designation. Your work predated the Sole Source Aquifer designation.
Ken: Yes. On the Idaho side of the Aquifer we already had good evidence of impact. Larry Belmont, who was the director of the district, knew we had to speak to the community about the problem. So we spent over a year taking our slide show on the road – Kiwanis, Rotary, American Association of University Women, and many others. And we kept coming back. First we presented on what we were doing. People became aware of the aquifer, how it was formed, it’s significance to the community. We then came back, and said this is what the data are showing and that septic systems were an issue. Then we came back again and said that we believe a local regulatory structure is the best way forward to protecting our drinking water.
In the following decade we moved into industrial issues. But our first real step forward in protecting the Aquifer was septic systems. There was political maneuvering. The state was saying, “this is a state issue.” We said, “No, this is a local issue. You can’t manage septic systems in south Idaho the same as in the north.” At the time ours was the only aquifer under consideration for Sole Source designation.
Let’s go back to the stages: we had defined the problem and assessed the probability of harm. We had reached out to the public and asked for their support. The fourth stage is the political will.
We had a task force that worked for nearly six months to draft a set of unique regulations. These allowed the development of contracts that were called “Sewage Management Agreements” - SMAs. There were nine cities over the aquifer, each at different stages of density. In order not to use septic systems, one had to have access to sewer. Some of these cities weren’t dense enough – including the City of Coeur d’Alene – to expand its sewer system. But the septic tanks and fields sitting on top of the aquifer were causing problems. While the deterioration had not yet violated the maximum contaminant levels, the gradient of decay in water quality was apparent over the prior 10-12 years.
We were able to say to the cities: “Within the confines of your city limits we as the Health District will take the risk of issuing enough permits for septic systems within your existing city limits, so that you can afford to sewer.” The SMAs required of the cities two commitments: the cities could not expand their city limits, and they must require all new subdivisions to put in sewer infrastructure, called “dry sewering”.
This was the philosophy adopted by the Board of Directors for Panhandle Health: we will assume the liability of using an antiquated technology (septic) in order to aggravate the problem so as to solve it. You have now created a confine of growth – each with a name of a city - and driving the growth into the City until the density becomes sufficient economically to drive the needed sewering.
The second prong of this regulatory structure is this: if you live outside of the city limits, then the minimum lot size is 5 acre - “the 5 acre rule.” We knew it would not be economic to sewer these homes then and into the future.
The building industry brought a lawsuit alleging that Panhandle Health was depriving it of livelihood. The federal 9th Circuit Court of Appeals came back and said Panhandle Health would have been remiss in its duties if it had not promulgated the regulatory control.
The bottom line is that we as an agency were impeached by our own data. Panhandle Health was issuing the permits for septic systems. We had to take some kind of precautionary action. You couldn’t persist in this behavior and not accrue liability. At some point people living down-gradient would start losing their drinking water to pollution and then point to Panhandle Health as the permitting agency. The liability would not rest with the developer – but with our agency.
By that time, Bob Turner and Stan Miller and Spokane County had begun to piggy-back on our research. We could not have not have done it without them and the political power of Spokane -- and the help of Tom Foley. Foley helped bring consistent funding for about a 5 year window. Once we were on the path, we could hold to the course.
In all of this our Board of Health and Larry Belmont, as director, demonstrated the will and strength. Mary Lou Reed as a member of the board was an incredible champion for drinking water protection – she later served in the Legislature. Within five or six years every city of significance on the Rathdrum Prairie had a sewer system. It was done because Panhandle Health and its directors distinguished themselves from economic development and political expediency. The Board of Health said: “we are taking action for the public health, and have a moral duty to protect the public health. Our job is public health. Septic systems are not a good sole source technology and are threatening our drinking water.”
