The following requirements shall apply to all persons to
protect groundwater used as sources of public drinking water supply from
contamination:
(1)
Source
Approval
(a) No public water
supply well, wellfield, or spring shall be constructed, expanded or replaced,
and no water supply well, wellfield, or spring shall be placed on-line in a
public water system, without the prior written approval of the Department.
Persons seeking such approval are directed to follow the procedures set forth
in the Drinking Water Program's
Guidelines and Policies for Public
Water Systems.
All requests for source approval, or approval of Zone II and
III delineations, shall be submitted to the Department's Regional Office
serving the area where the proposed well, wellfield, or spring is
located.
In determining whether to grant such approval, the Department
shall apply the criteria set forth in 310 CMR 22.21 and the Guidelines
and Policies for Public Water Systems. Copies of the
Guidelines and Policies for Public Water Systems are available
for a nominal fee from the State Bookstore, State House, Room 116, Boston,
Massachusetts and 436 Dwight Street, Springfield, Massachusetts.
(b) No public water supply well or
wellfield designed to withdraw, or spring which flows, less than 100,000
gallons per day shall be constructed, expanded or replaced, or placed on-line,
unless the Department finds in writing:
1.
that the proponent has satisfactorily complied with the Drinking Water
Program's Guidelines and Policies for Public Water
Systems;
2. that the
source of water supply for the well, wellfield, or spring will achieve all
applicable water quality standards set forth in the Massachusetts Drinking
Water Regulations, 310 CMR 22.00;
3. that the proponent has properly determined
the Zone I of the proposed well, wellfield, or spring;
4. that the Zone I of the proposed well,
wellfield, or spring is owned or controlled by the supplier of water;
and
5. that current and/or future
land uses within the Zone I are limited to those directly related to the
provision of public drinking water or will have no significant adverse impact
on water quality.
In addition, the Department may require the proponent to
delineate Zones II and III, and submit a groundwater monitoring well program
plan for approval if the Department finds that existing or proposed land uses
within the Interim Wellhead Protection Area of the proposed well, wellfield, or
spring, determined in accordance with 310 CMR 22.21(1)(i), may pose a threat to
water quality.
(c) No public water supply well, wellfield or
spring designed to withdraw, or spring which flows, 100,000 gallons per day or
more shall be constructed, expanded or replaced unless the Department finds in
writing:
1. that the proponent has met all the
requirements set forth in 310 CMR 22.21(1)(b)1. through 5.;
2. that the proponent has properly delineated
the Zones II and III of the proposed well, wellfield, or spring;
3. that the proponent has submitted a
groundwater monitoring well program plan designed to evaluate the water quality
impacts of land uses within the Zone II of the proposed well, wellfield, or
spring; and
4. that the proponent
has drafted wellhead protection zoning or nonzoning controls that prohibit
siting within the Zone II the land uses set forth in 310 CMR 22.21(2)(a) and
(b) unless designed in accordance with the performance standards specified in
310 CMR 22.00, and has complied with the nitrate management requirement of 310
CMR 22.21(2)(d).
(d) No
public water supply well, wellfield or spring designed to withdraw, or spring
which flows, 100,000 gallons per day or more shall be placed on-line unless:
1. a groundwater monitoring well program plan
approved by the Department has been fully implemented (i.e.
the monitoring wells are operational and the sampling frequency and parameters
have been approved by the Department); and
2. the cities and towns in which any part of
the Zone II of the proposed well, wellfield, or spring is located have wellhead
protection zoning or nonzoning controls in effect that prohibit siting within
the Zone II the land uses set forth in 310 CMR 22.21(2)(a) and (b) unless
designed in accordance with the performance standards specified in 310 CMR
22.00. If the public water system is owned or controlled by an entity other
than a municipality, the proponent must demonstrate to the Department's
satisfaction that it has used its best efforts to have all cities and towns in
which the Zone II is located establish such zoning or nonzoning
controls.
(e)
Notwithstanding 310 CMR 22.21(1)(d)2., no public water supply well, wellfield
or spring designed to withdraw, or spring which flows, 100,000 gallons per day
or more that will be used in a public water system owned or operated by a
municipality, and is located within that municipality, shall be placed on-line
unless the municipality has wellhead protection zoning or nonzoning controls in
effect that prohibit siting within the Zone II the land uses set forth in 310
CMR 22.21(2)(a) and (b) unless designed in accordance with the performance
standards specified therein. If the Zone ll of a municipal public water system
extends into another municipality, the water supplier must also demonstrate to
the Department's satisfaction that it has used its best efforts to have all
cities and towns into which the Zone II extends establish such zoning or
nonzoning controls within the Zone II.
(f) Notwithstanding any other regulatory
provision to the contrary, the Department may waive the requirement that the
proponent of a public water supply well, wellfield, or spring delineate the
Zone II, provided:
1. the proponent has
properly delineated the Zone III;
2. each city and town in which the Zone III
of the proposed well, wellfield, or spring is located has wellhead protection
zoning or nonzoning controls in effect that prohibit within the Zone III the
land uses set forth in 310 CMR 22.21(2)(a) and (b) unless designed in
accordance with the performance standards specified in 310 CMR 22.00;
3. the proponent has submitted a groundwater
monitoring well program plan designed to evaluate the water quality impacts of
land uses within the Zone III of the proposed well, wellfield, or spring;
and
4. the desired relief can be
granted without substantial detriment to the public good.
In the event the Department waives the requirement that the
proponent delineate the Zone II of a proposed public water supply well,
wellfield, or spring, the supplier of water shall fully implement the
groundwater monitoring well program plan approved by the Department before
placing the well, wellfield, or spring on-line (i.e. the
monitoring wells shall be operational and the sampling frequencies and
parameters shall have been approved by the Department).
(g) In determining whether a
proponent has properly determined the Zone I or delineated the Zones II or III
of a well, wellfield, or spring, or adequately designed a groundwater
monitoring well program plan, the Department shall apply the criteria set forth
in the Drinking Water Program's Guidelines and Policies for Public
Water Systems.
(h) Any
person who receives Department approval for a public water supply well,
wellfield or spring designed to withdraw, or spring which flows, 100,000
gallons per day or more that is not a replacement withdrawal point shall obtain
a permit for any withdrawal, in accordance with the Water Management Act,
M.G.L. c. 21G, and 310 CMR 36.00: Massachusetts Water Resources
Management Program.
(i)
If the Department has not approved the Zone II for a public water supply well,
wellfield, or spring, the Department will utilize the Interim Wellhead
Protection Area as defined in 310 CMR 22.02.
(j) The proponent may meet the requirements
set forth in 310 CMR 22.21(1)(d)2. by demonstrating that existing rights in
perpetuity or for a specific period of years stated in the form of a
restriction, easement, covenant or condition in a deed or other instrument
prohibit the siting of the land uses set forth in 310 CMR 22.21(2)(a) and (b)
within the Zone II.
(k) The
proponent may meet the requirements set forth in 310 CMR 22.21(1)(f)2. by
demonstrating that existing rights in perpetuity or for a specific period of
years stated in the form of a restriction, easement, covenant or condition in a
deed or other instrument prohibit the siting of the land uses set forth in 310
CMR 22.21(2)(a) and (b) within the Zone III.
(l) No public water supply well, wellfield or
spring designed to withdraw, or spring which flows, 100,000 gallons per day or
more approved after the effective date of 310 CMR 22.21 shall remain on-line
following the amendment or repeal of a wellhead protection zoning or nonzoning
control pertinent to that well, wellfield, or spring, or the expiration of any
such period of years stated in a deed or other instrument approved pursuant to
310 CMR 22.21(1)(j) or (k), unless the Department finds in writing that the
supplier of water meets the requirements set forth in 310 CMR 22.21(1)(d) or
(e), whichever is applicable, or grants a variance in accordance with 310 CMR
22.21(5). Any source of supply removed from service shall be maintained by the
supplier of water as an emergency source of water supply unless the Department
finds in writing that the source is not needed by the supplier of water for
present or future water supply.
(m)
Notwithstanding any other regulatory provision to the contrary, the Department
may exempt a supplier of water from any of the requirements set forth in 310
CMR 22.21(1)(d) while a state of water emergency declared pursuant to M.G.L. c.
21G, § 15, is in effect. In the event that the Department grants such an
exemption, the well, wellfield, or spring shall remain on-line only for the
duration of the state of water emergency, as determined by the
Department.
(2)
Wellhead Protection Zoning and Nonzoning Controls
(a) Wellhead protection zoning and nonzoning
controls submitted to the Department in accordance with 310 CMR 22.21(1), shall
collectively prohibit the siting of the following land uses within the Zone II,
or Zone III if the criteria of 310 CMR 22.21(1)(f) have been met, of the
proposed well, wellfield, or spring, whichever is applicable:
1. landfills and open dumps, as defined in
310 CMR 19.006: Definitions;
2. landfills receiving only wastewater
residuals and/or septage (wastewater residuals "monofills") approved by the
Department pursuant to M.G.L. c. 21, § 26 through 53; M.G.L. c. 111,
§ 17; M.G.L. c. 83, §§ 6 and 7, and any regulations promulgated
thereunder.
3. automobile
graveyards and junkyard, as defined in M.G.L. c. 140B, § 1;
4. stockpiling and disposal of snow or ice
removed from highways and streets located outside of Zone II that contains
sodium chloride, chemically treated abrasives or other chemicals used for snow
and ice removal;
5. petroleum, fuel
oil and heating oil bulk stations and terminals, including, but not limited to,
those listed under Standard Industrial Classification (SIC) Codes 5171 (not
including liquified petroleum gas) and 5983. SIC Codes are established by the
U.S. Office of Management and Budget and may be determined by referring to the
publication, Standard Industrial Classification
Manual;
6. treatment or
disposal works subject to 314 CMR 5.00:
Ground Water Discharge Permit
Program for wastewater other than sanitary sewage. This prohibition
includes, but is not limited to, treatment or disposal works related to
activities under the Standard Industrial Classification (SIC) Codes set forth
in 310 CMR 15.004(6) (Title 5), except the following:
a. the replacement or repair of an existing
system(s) that will not result in a design capacity greater than the design
capacity of the existing system(s); and
b. treatment works approved by the Department
designed for the treatment of contaminated ground or surface waters and
operated in compliance with 314 CMR 5.05(3) or (13); and
c. publicly owned treatment works, or
POTWs.
7. facilities
that generate, treat, store or dispose of hazardous waste that are subject to
M.G.L. c. 21C and 310 CMR 30.000:
Hazardous Waste, except for
the following:
a. very small quantity
generators, as defined by 310 CMR 30.00: Hazardous
Waste;
b. household
hazardous waste collection centers or events operated pursuant to 310 CMR
30.390: Special Provisions for Accumulation of Household Hazardous
Waste And/or Hazardous Waste Generated by Very Small Quantity
Generators;
c. waste oil
retention facilities required by M.G.L. c. 21, § 52A; and
d. treatment works approved by the Department
designed in accordance with 314 CMR 5.00: Ground Water Discharge Permit
Program for the treatment of contaminated ground or surface
waters.
8. any floor
drainage systems in existing facilities, in industrial or commercial hazardous
material and/or hazardous waste process areas or storage areas, which discharge
to the ground without a DEP permit or authorization. Any existing facility with
such a drainage system shall be required to either seal the floor drain (in
accordance with the state plumbing code, 248 CMR 10.00: Uniform State
Plumbing Code), connect the drain to a municipal sewer system (with
all appropriate permits and pre-treatment), or connect the drain to a holding
tank meeting the requirements of all appropriate DEP regulations and
policies.
(b) Wellhead
protection zoning and nonzoning controls submitted to the Department in
accordance with 310 CMR 22.21(1), shall collectively prohibit the siting of the
following and uses within the Zone II, or Zone III if the criteria of 310 CMR
22.21(1)(f) have been met, of the proposed well, wellfield, or spring,
whichever is applicable, unless designed in accordance with the performance
standards specified below in 310 CMR 22.21(2)(b)1. through 7.:
1. storage of sludge and septage, as defined
in 310 CMR 32.05: Definitions, unless such storage is in
compliance with 310 CMR 32.30: Requirements for Any Storage of Sludge
or Septage and 32.31: Additional Requirements for Long-term
Storage of Sludge or Septage;
2. storage of sodium chloride, chemically
treated abrasives or other chemicals used for the removal of ice and snow on
roads, unless such storage is within a structure designed to prevent the
generation and escape of contaminated runoff or leachate;
3. storage of commercial fertilizers, as
defined in M.G.L. c. 128, § 64, unless such storage is within a structure
designed to prevent the generation and escape of contaminated runoff or
leachate;
4. storage of animal
manures, unless such storage is within a structure designed to prevent the
generation and escape of contaminated runoff and leachate;
5. storage of liquid hazardous materials, as
defined in M.G.L. c. 21E, and/or liquid petroleum products unless such storage
is:
a. above ground level;
b. on an impervious surface; and
c. either:
(i) in container(s) or above-ground tank(s)
within a building; or
(ii) outdoors
in covered container(s) or above-ground tank(s) in an area that has a
containment system designed and operated to hold either 10% of the total
possible storage capacity of all containers, or 110% of the largest container's
storage capacity, whichever is greater; however, these storage requirements
shall not apply to the replacement of existing tanks or systems for the
keeping, dispensing or storing of gasoline provided the replacement is
performed in a manner consistent with state and local requirements.
6. the removal of soil,
loam, sand, gravel or any other mineral substances within four feet of the
historical high groundwater table elevation (as determined from monitoring
wells and historical water table fluctuation data compiled by the United States
Geological Survey), unless the substances removed are redeposited within 45
days of removal on site to achieve a final grading greater than four feet above
the historical high water mark, and except for excavations for the construction
of building foundations or the installation of utility works, or wetland
restoration work conducted in accordance with a valid Order of Condition issued
pursuant to M.G.L. c. 131, § 40;
7. and land uses that result in the rendering
impervious of more than 15% or 2500 square feet of any lot or parcel, whichever
is greater, unless a system for artificial recharge of precipitation is
provided that will not result in the degradation of groundwater
quality.
(c) The
proponent shall give written notice to the Department of any and all local
by-laws, ordinances, rules and regulations that allow for the grant of a
variance, waiver or exemption from any of the wellhead protection zoning or
nonzoning controls submitted to the Department for approval in accordance with
310 CMR 22.21 before placing the proposed well, wellfield, or spring
on-line.
(d) The Department may
require as part of the Source Approval process requirements of 310 CMR
22.21(1)(c), the completion of a nitrogen loading analysis for the new well,
wellfield, or spring's Zone II. A nitrogen loading analysis shall be required
when, in the Department's judgement, the type and level of land use within the
Zone II or other information reasonably indicates that nitrate concentrations
in the well, wellfield, or spring may or will exceed five mg/l nitrate.
Public water systems required by their Water Management Act
M.G.L. c. 21G permits issued under 310 CMR 36.00: Massachusetts Water
Resources Management Program to define Zone IIs and implement land use
controls shall be required to conduct a nitrate loading analysis as part of the
Zone II delineation for well, wellfield, or springs that have exceeded five
mg/l nitrate.
Public water systems whose required nitrate loading analysis
predicts>five mg/l nitrate or whose well, wellfield, or spring has exceeded
five mg/l nitrate must prepare a nitrate management plan, subject to the
Department's approval, which seeks to maintain nitrate levels below five mg/l
for the subject well in the long-term.
(3)
Requirements for all New and
Existing Groundwater Sources
(a)
Sources for Community Systems. Any person who obtains
Department approval for a community public water system that relies entirely
upon groundwater sources shall provide additional wells, wellfield, or springs
and pumping equipment, or the equivalent, capable of producing the same volumes
and quality of water as the system's primary well, wellfield, or spring at all
times, or shall provide the storage capacity equivalent to the demand of at
least two average days if approved by the Department, unless an interconnection
with another public water system has been provided which can adequately provide
the quantity and quality of water needed.
(b)
Zone l. All
suppliers of water shall acquire ownership or control of sufficient land around
wells, infiltration galleries, springs and similar sources of ground water used
as sources for drinking water to protect the water from contamination. This
requirement shall generally be deemed to have been met if all land within Zone
I is under the ownership or control of the supplier of water. Current and
future land uses within the Zone I shall be limited to those land uses directly
related to the provision of the public water system or to other land uses which
the public water system has demonstrated have no significant impact on water
quality. The Department may require greater distances or permit lesser
distances than the Zone I distances set forth at 310 CMR 22.02, if the
Department deems such action necessary or sufficient to protect public health.
No new underground storage tanks for petroleum products shall be located within
Zone I.
(4)
Inspection and Enforcement
(a) Each supplier of water shall annually
survey the land uses within Zones I, II and III, or within the Interim Wellhead
Protection Area, for each well and wellfield under its control.
(b) A supplier of water shall submit to the
Department an annual report that identifies for each well and wellfield under
its ownership and control the presence of new land uses within the Zones I, II
and III, or within the Interim Wellhead Protection Area, that could adversely
impact water quality. The annual reports shall be submitted on Department
approved forms by January 31st for the preceding
calendar year. The annual reports shall be submitted to the Department's Office
of Water Supply at the Regional Office that serves the area where the well,
wellfield, or spring is located.
(c) A supplier of water shall notify the
local board of health or health department within 48 hours of detection of any
violation of a statutory or regulatory requirement that may adversely effect
its water supply or distribution system, and shall notify the inspector of
buildings, building commissioners or local inspector, or the person charged
with enforcement of local zoning and nonzoning controls, within 48 hours of
detecting any violation of applicable land use restrictions that may adversely
effect its water supply or distribution system. Such notices should include the
following information:
1. the name of the
person in violation;
2. the
location where the violation is occurring;
3. the date when the violation was
observed;
4. a description of the
violation;
5. the legal citation of
the requirement or restriction violated; and
6. a description of the actions necessary to
remove or remedy the violation and the deadlines for taking such actions.
In addition, the supplier of water shall notify the
Department's Office of Water Supply at the appropriate Regional Office upon
giving any notice required by 310 CMR 22.21(4)(c).
(d) A supplier of water shall take
appropriate action to determine whether the violation has been removed or
remedied and shall notify the Department's Office of Water Supply at the
appropriate Regional Office upon finding that the violation has been removed or
remedied.
(5)
Variances
(a) The
Department may grant a variance from the requirements of 310 CMR 22.21(1)(e) to
a proponent that, despite its best efforts, is unable to adopt one or more of
the requirements set forth in 310 CMR 22.21(2)(a) and (b) if the Department
finds that strict compliance with such requirements would result in an undue
hardship and would not serve to further the intent of 310 CMR 22.21.
(b) The Department shall consider the
following factors in making the finding necessary to grant a variance pursuant
to 310 CMR 22.21(5):
1. the reasonableness of
available alternatives to the proposed well, wellfield, or spring;
2. the overall effectiveness of existing land
use controls and other protective measures on the proposed well, wellfield, or
spring and any other water supply sources used by the supplier of
water;
3. the nature and extent of
the risk of contamination to the proposed well, wellfield, or spring that would
result from the granting of the variance; and
4. whether the variance is necessary to
accommodate an overriding community, regional, state or national public
interest.
These factors need not be weighed equally, nor must all of
these factors be present for the Department to grant a variance. The presence
of any single factor may be sufficient for the granting of a variance.
(c) A variance granted
pursuant to 310 CMR 22.21(5) shall be conditioned on such monitoring or other
requirements as the Department may prescribe.
(d) Requests for variances shall be made in
writing and clearly state the provision or requirement from which the variance
is sought and the reasons and facts that support the granting of a variance,
and shall include an evaluation of the reasonableness of alternatives to the
proposed well, wellfield, or spring.
(e) Within 14 days of filing a request for
variance under 310 CMR 22.21(5)(a), the person filing the request shall notify
persons served by the supplier of water by direct mail and by publication on
not less than three consecutive days in a newspaper of general circulation in
the service area of the supplier of water. The notice shall include:
1. the provision or requirements from which
the variance is being sought;
2.
the identity of the proponent of the well, wellfield, or spring;
3. the identity of the person requesting the
variance, the address where a copy of the request for variance will be
available for public inspection, and the times it will be available;
and
4. a statement that the
Department will receive written comments concerning the request from the public
for a 30 day period commencing on the last date of newspaper
publication.
(f) Each
person submitting a request for variance shall submit to the Department a copy
of the public notice required by 310 CMR 22.21(5)(e) and affidavits attesting
to the fact that the notices have been given. The Department will receive
written comments concerning the request from the public for a 30 day period
commencing on the last date of newspaper publication.
(g) Within 30 days of the close of the
comment period, each person requesting a variance under 310 CMR 22.21(5)(a)
shall respond in writing to all reasonable public comments received by the
Department.
(h) The Department may
schedule a public hearing on any request for variance submitted in accordance
with 310 CMR 22.21(5) if it determines on the basis of the public comments
received that such a hearing is in the public interest. In the event that the
Department schedules a hearing, the person filing the request shall notify
persons served by the supplier of water of the hearing by publication on not
less than three consecutive days in a newspaper of general circulation in the
service area of the supplier of water. In addition, the person filing the
request shall notify each person who submitted written comment concerning the
request to the Department by direct mail. The person filing the request shall
submit to the Department a copy of the public notices required by 310 CMR
22.21(5)(h), and an affidavit attesting to the fact that the notices have been
given, prior to the hearing. Persons filing a request for a variance under 310
CMR 22.21(5) shall pay the full the cost of all notifications and public
hearing scheduled.
(i) Within 30
days of the grant of a variance under 310 CMR 22.21(5), any person that
receives a variance shall notify persons served by the supplier of water of the
granting of the variance, including any conditions imposed by the Department,
by direct mail and by publication on not less than three consecutive days in a
newspaper of general circulation in the service area of the supplier of water.
The person that receives the variance shall submit to the Department a copy of
the public notices and an affidavit attesting to the fact that the notices have
been given upon completion of the public notification.