© 1999

BY

William B. Honachefsky, P.L.S., P.P., QEP

The courts have recently reminded a number of municipalities that implementing a Well Head Protection Program (WHPP) is more than simply delineating well head protection (WHP) area boundaries, and then, through ordinances, strictly prohibiting certain land uses within the confines of those boundaries. It is this latter point, that is causing the courts some concern,  particularly the stringency of  the allowable land uses within these WHP areas, which too often are lacking substantial scientific justification for curtailing those uses.

Long before WHP ordinances are put to paper, a significant amount of preparatory work must be done, if the WHP ordinance is to withstand, often withering challenge and judicial scrutiny.  We will assume for the purposes here, that the municipality has the ability, through the use of various models and geological investigations, to accurately delineate the protective boundaries for its water supply wells, which are generally described by 2, 5, and 12 year times of travel.  We will also assume that these boundaries have in fact been calculated.  Now what, you may ask?

The initial step is to overlay the WHP area boundaries onto the municipal property parcel or tax map using GIS.  Following this, the combined WHP area/property parcel map should be incorporated into the municipality’s Master Plan (MMP). This will become the base map for the WHPP.  It is from the MMP that all land use ordinances, protective or otherwise, must evolve. As part of the incorporation process, the WHP area boundaries need to be described by metes and bounds, or in lieu of this, delineated using tax map property parcel lines or tax map block boundaries. This detailed delineation will enhance public recognition of the WHP area boundaries as well as provide the required public noticing as to which properties will be directly affected by those delineations.  The next step is to calculate the number of property parcels included within the delineated WHP area boundaries and to sort them, either by current use, or in the case of vacant parcels, by current zoning (i.e. residential, commercial, industrial, office building etc.). The percentages of each land use type should be calculated (i.e. 20% low density residential, 10% high density residential, 40% commercial etc.).  Dedicated open space parcels (i.e. parks or similar) would be put in a separate category. Third, the areas within the WHP area, calculated to have the highest groundwater recharge potential should be determined and delineated . These will be a GIS overlay on the combined WHP area/ property parcel map. It is these areas that will be given the most stringent protection allowable under any WHPP ordinance.  Following this, a buildout analysis should be performed, with particular attention being paid to calculating the maximum amounts of paved/impervious surfaces that would occur from land uses presently allowed under existing zoning in the WHP area.  If the amount of impervious surface approaches or exceeds 20%, some serious reconsideration of current zoning would be in order.

The fourth step is to identify those property parcels within the WHP area boundaries which may have a documented groundwater contamination problem.  These parcels will be red-flagged in the MMP maps as hotspots within the WHP area, and will  receive special recognition in the WHPP ordinance, particularly as it relates to any ongoing remediation or regulatory actions. Likewise, any property parcels/ sites, including agricultural, within the WHP area which have regulated discharges, either effluent, sludges or other residues, to the groundwater or land should be delineated. Similarly any property parcels with uncovered outdoor storage of potential contaminants (such as salt or pesticides) should also be identified.  Lastly, any portion of the delineated WHP area that is on septic systems, along with any sanitary surveys documenting septic system failures in certain areas or on certain lots should be delineated. A nitrate dilution model would be a helpful addition here, to calculate the potential for  existing or new septic systems to further contaminate groundwater in the WHP area. Operating mines and quarries in the delineated area, whose operations are in contact with the regional groundwater table should likewise be delineated.

Having compiled all of the above data, it is now time to reassess the current  zoning for all of the parcels within the WHP area.  Consideration should be given as to whether the current zoning/zones provide the level of protection desired for the groundwater aquifer, and ultimately the town’s water supply well.  If not, now is the time to change those zones and readopt.  Perhaps, vacant parcels, currently zoned commercial and /or industrial or office building, all of which generally produce substantial amounts of impervious ground cover,  could be rezoned to less intense uses such as large lot residential.  Some parcels could be acquired to expand the town’s inventory of open space. In lieu of these zoning changes and outright acquisitions, performance standards could be enacted, to be applied in the event of an expansion of an existing use or of a proposed new use.  Such performance standards would include a strict limitation on the amount of impervious cover allowed as well as the capture and treatment of stormwater runoff  with greater  emphasis on recharge and diminution of pollutants.  Other possible standards include those for spill prevention control and containment plans, however, such plans usually come under the jurisdiction of state statutes and regulations. Therefore , in order to avoid conflicts, it might be wise to defer to and/or incorporate those standards by reference.