SECTION 8:               AQUIFER PROTECTION ORDINANCE (APO)

(Adopted March 13, 1990)

8.1              Authority and Purpose.

Pursuant to RSA 674:16‑21, the Town of Deering adopts an Aquifer Protection District and accompanying regulations in order to protect, preserve, and maintain potential groundwater supplies and related groundwater recharge areas within known aquifers identified by the Town. The objectives of the Aquifer Protection District are:

a.                   to protect the public health and general welfare of the citizens of Deering

b.                  to prevent development and land use practices that would contaminate or reduce the recharge to the identified aquifers.

c.                   to assure the availability of public and private water supplies for future growth of the Town in accordance with the Master Plan.

d.                  to encourage uses that can appropriately and safely be located in the aquifer recharge areas.

8.2              Administration

a.                   General: The provision of the Aquifer Protection District shall be administered by the Planning Board. All development proposals (within this District), other than single or two‑family residential construction not involving the subdivision of land, shall be subject to subdivision and/or site plan review and approval in accordance with Planning Board rules and regulations and this APO. Such review and approval shall precede the issuance of any building permit by the Town.

b.                  Enforcement: The Board of Selectmen shall be responsible for the enforcement of the provisions and conditions of the Aquifer Protection District, pursuant to the provisions of Section 7. (Amended March 12, 2002)

8.3              Definitions

a.                   Animal Feedlot, Permitted: A commercial agricultural establishment where a concentration of animals are confined and fed simultaneously and acceptable animal waste management practices are exercised in accordance with the U.S. Soil Conservation Service publication AAnimal Waste Management@.

b.                  Animal Feedlot, Non‑Permitted: A commercial agricultural establishment where a concentration of animals are confined and fed simultaneously and no acceptable animal waste management practices are exercised according to the U.S. Soil Conservation Service publication AAnimal Waste Management@.

c.                   Aquifer: For the purpose of this Ordinance, aquifer means a geologic formation, group of formations, or part of a formation that is capable of yielding sustainable quantities of groundwater usable for municipal or private water supplies.

d.                  Dwelling Unit: A room or group of rooms located within a dwelling and forming a single, habitable unit with facilities which are used or intended to be used for living, sleeping, cooking, and eating.

e.                   Groundwater: All the water below the land surface in the zone of saturation or in rock fractures capable of yielding water to a well.

f.                    Groundwater Recharge: The infiltration of precipitation through surface soil materials into groundwater. Recharge may also occur from surface waters, including lakes, streams and wetlands.

g.                   Hydrogeologist: A professional listed by the State of N.H., Department of Environmental Services.

h.                   Impervious to Groundwater Infiltration: The addition of pavement, cement or other ground cover which prevents water from flowing through to subsoil layers.

i.                     Leachable Wastes: Waste materials, including solid wastes, sludge and agricultural wastes that are capable of releasing contaminants to the surrounding environment.

j.                    Mining of Land: The removal of geologic materials such as topsoil, sand and gravel, metallic ores, or bedrock to be crushed or used as building stone.

k.                  Non‑Conforming Use: Use of land, building or premise which is not a use permitted by the provisions of this ordinance for the Aquifer Protection District in which such land, building or premise is situated.

l.                     Non‑Municipal Well: Any well not owned and operated by the Town of Deering or its agent.

m.                 Recharge Area: The land surface areas from which groundwater recharge occurs. Sludge: Residual materials produced by the sewage treatment process.

n.                   Solid Waste: Any discarded or abandoned material including refuse, putrescible material, septage, or sludge, as defined by New Hampshire Solid Waste Rules Env-Wm 101-300 & 2100 - 3700. Solid waste includes solid, liquid, semi‑solid, or contained gaseous waste material resulting from residential, industrial, commercial, mining and agricultural operations and from community activities. (Amended March 11, 2003)

o.                  Structure: Anything constructed or erected, except a boundary wall or fence, the use of which requires location on the ground or attachment to something on the ground.

p.                  Toxic or Hazardous Materials: Any substance or mixture of such physical, chemical or infectious characteristics as to pose a significant, actual or potential hazard to water supplies, or other hazard to human health, if such substance or mixture were discharged to land or waters of this Town. Toxic or hazardous materials include, without limitation: volatile organic chemicals, petroleum products, heavy metals, radioactive or infectious wastes, acids and alkalies, and include products such as pesticides, herbicides, solvents and thinners, and such other substances as defined in Groundwater Management and Groundwater Release Detection Permits, Env-Wm 1403.05. Wastes generated by, but not limited to, the following commercial activities are presumed to be toxic or hazardous, unless and except to the extent that anyone engaging in such an activity can demonstrate the contrary to the satisfaction of the Planning Board:

(1)               Airplane, boat and motor vehicle service and repair;

(2)               Chemical and bacteriological laboratory operation;

(3)               Dry cleaning;

(4)               Electronic circuit manufacturing;

(5)               Metal plating, finishing and polishing;

(6)               Motor and machinery service and assembly;

(7)               Paint production, wood preserving and furniture stripping;

(8)               Pesticide and herbicide production;

(9)               Photographic processing;

(10)           Printing.

(Amended March 11, 2003)

8.4              District Boundaries

a.                   Location: The extent of the Aquifer Protection District shall be shown on the Aquifer Protection District Map and shall be the outermost edge of the surficial extent of all aquifer deposits presently designated as stratified drift (high and medium potential) as supported by the information derived from the USGS Water Resources Investigations Reports (WRIR) 92‑4154 entitled Geohydrology and Water Quality of Stratified Drift Aquifers in the Contoocook River Basin, South‑Central New Hampshire, as prepared by Philip T. Harte and William Johnson and dated 1995, and 92-4192 entitled Geohydrology and Water Quality of Stratified-Drift Aquifers in the Middle Merrimack River Basin, South-Central New Hampshire, as prepared by Joseph D. Ayotte and Kenneth W. Toppin. This map is to be used in conjunction with the tax map and/or other maps of the Town as an overlay district. (Amended March 11, 2003)

b.                  Recharge Areas:

(1)               The direct recharge area for the identified aquifer is considered to be co‑terminus with that aquifer. The indirect recharge areas are those areas that contribute to groundwater recharge of the aquifer from outside the aquifer boundaries.

(2)               When development is proposed in indirect recharge areas which are tributary to the Aquifer Protection District, such as areas including a tributary stream, or on slopes adjacent to the Aquifer Protection District, the Planning Board may hire, at the developer=s expense, a qualified hydrogeologist to assess the potential impact on groundwater quality and recharge rates of the aquifer  from such development.

c.                   Appeals:

(1)               Where the bounds of the identified aquifer or recharge area, as delineated, are in doubt or in dispute, any landowner aggrieved by such delineation may appeal the boundary location to the Planning Board. Upon receipt of such appeal, the Planning Board shall engage, at the land owner=s expense and request, a qualified hydrogeologist to conduct an investigation and prepare a report determining the proper location and extent of the aquifer and recharge area relative to the property in question. This report shall include but not be limited to:

(a)                A detailed topographic layout of the subdivision and/or area to be developed, prepared by a registered land surveyor.

(b)               The aquifer boundary as shown on the Aquifer Protection District Map shall be overlaid on the plat and the newly proposed boundary location shall be indicated on the same plat by a broken line.

(c)                Any additional mapping, hydrogeologic reports or information which becomes available as a result of recent or on‑going scientific investigation of the location and extent of aquifers, performed by the US Geological Survey; NH State agencies or boards, or the Town of Deering or the agents of any of the above.

(2)               The Planning Board may, based upon the findings of paragraph 8.4 c (1) above, adjust the boundary or area designation of the Aquifer Protection District or reduce or expand the area so designated so as to more correctly define the location and extent of the aquifer on a site‑specific, case‑by‑case basis.

(3)               The Planning Board shall reserve the right to withhold action on such plat pending the results of an on‑site and/or other investigation by that Board or its appointed agent and shall act to approve or disapprove the final plat within 90 days of the acceptance of the application or such further time as deemed necessary and as provided for by NH State statute.

8.5              Use Regulations

a.                   Minimum Lot Size. The minimum lot size within the Aquifer Protection District for each dwelling unit if a residential use, or each principal building if a non‑residential use, shall be two (2) acres, or 87,120 square feet.

b.                  Hydrogeologic Study.

(1)               For development proposals within the Aquifer Protection District, a hydrogeologic study shall be performed by a qualified hydrogeologist. This study shall evaluate the development=s impacts to groundwater within both  the parcel to be developed and the surrounding land. The groundwater quality beyond the property lines of said site shall not be degraded by polluting substances such as nitrates, phosphates, bacteria, etc. Larger lots may be required based on the findings of said study.

(2)               This information will be required for proposed subdivisions of four (4) lots or greater. For subdivisions of three (3) lots or less the Planning Board will determine, on a case‑by‑case basis, the need for a hydrogeologic study. Particularly sensitive sites may include areas that have septic systems in close proximity to wells, or may contain excessively drained soils or steep slopes.

c.                   Prohibited Uses.  The following uses are prohibited in the Aquifer Protection District except where permitted to continue as a non‑ conforming use:

(1)               Disposal of solid waste.

(2)               Storage and disposal of hazardous waste.

(3)               Disposal of liquid or leachable wastes except that from one or two‑family residential subsurface disposal systems, or as otherwise permitted as a conditional use.

(4)               Subsurface storage of petroleum and other refined petroleum products.

(5)               Industrial uses which discharge contact type process waters on‑site. Non‑contact cooling water is permitted.

(6)               Outdoor unenclosed storage of road salt or other de‑icing chemicals.

(7)               Dumping of snow containing de‑icing chemicals brought from outside the district.

(8)               Animal feedlots ‑ Unpermitted.

(9)               Automotive service and repairs shops, junk and salvage yards.

(10)           All on site handling, disposal, storage, processing or recycling of hazardous or toxic materials except for materials used for normal residential, agricultural or silvicultural activities.

(11)           Drycleaning or laundry facilities.

d.                  Permitted Uses.  The following activities shall be permitted provided they are conducted in accordance with the purposes and intent of this APO:

(1)               Land development, per the Deering Zoning Ordinance, except as prohibited in paragraph 8.5 c of this APO.

(2)               Activities designed for conservation of soil, water, plants and wildlife.

(3)               Outdoor recreation, nature study, boating, fishing and hunting where otherwise legally permitted.

(4)               Normal operation and maintenance of existing water bodies and dams, splash boards and other water control, supply and conservation devices.

(5)               Foot, bicycle, and/or horse paths and bridges.

(6)               Maintenance, repair of any existing structures.

(7)               Farming, gardening, nursery, forestry, harvesting and grazing, provided that fertilizers, herbicides, pesticides, and other leachables are used appropriately at levels that will not cause groundwater contamination and are stored under shelter.

(8)               De‑icing chemicals may be used by the road agent subject to the approval of the Board of Selectmen.

e.                   Septic System Construction.     The following more stringent requirements shall apply to all septic system construction:

(1)               There will be no filling of wetlands allowed to provide the minimum distance of septic to wetlands.

(2)               The seasonal high water table will be at least 2 feet below the original ground surface.

(3)               There will be at least 3 feet of natural permeable soil above any restrictive soil layer.

(4)               There will be at least 4 feet of natural soil above bedrock.

(5)               There will be at least 125 feet setback for septic systems from wetlands as defined in the Deering Wetlands Conservation District.

(6)               Standards for fill material: Fill material consisting of organic soils or other organic materials such as tree stumps, sawdust, wood chips and bark, even with a soil matrix shall not be used. The in place fill should have less than 15% organic soil by volume. The in place fill should not contain more than 25% by volume of cobbles (6 inch in diameter). The in place fill should not have more than 15% by weight of clay size (.002mm and smaller) particles. The fill should be essentially homogeneous. If bedding planes and other discontinuities are present, detailed analysis is necessary.

8.6              Special Exceptions

a.                   The following uses are permitted as Special Exceptions within the APO (in compliance with Deering Zoning Ordinance):

(1)               Industrial and commercial uses not otherwise prohibited in paragraph 8.5 c unless and except to the extent that anyone proposing to engage in such prohibited uses can demonstrate to the satisfaction of the Zoning Board of Adjustment that the proposed use will not pose a threat to the aquifer. (Amended March 11, 2003)

(2)               Multi‑family residential development. Minimum lot size to be determined by using Section 2 of the Deering Zoning Ordinance.

(3)               Sand and gravel excavation and other mining provided that such excavation or mining is not carried out within eight (8) vertical feet of the seasonal high water table and that periodic inspections are made by the Planning Board or its agent to determine compliance.

b.                  The Zoning Board of Adjustment may grant a special exception for those uses listed above only after written findings of fact are made that all of the following are true:

(1)               The proposed use will not detrimentally affect the quality of the groundwater contained in the aquifer by directly contributing to pollution or by increasing the long‑term susceptibility of the aquifer to potential pollutants;

(2)               The proposed use will not cause a significant reduction in the long‑term volume of water contained in the aquifer or in the storage capacity of the aquifer;

(3)               The proposed use will discharge no waste water on site other than that typically discharged by domestic waste water disposal systems and will not involve on‑site storage or disposal of toxic or hazardous wastes as herein defined;

(4)               The proposed use complies with all other applicable paragraphs of this section.

c.                   The Zoning Board of Adjustment may require that the applicant provide data or reports prepared by a professional hydrogeologist to assess any potential damage to the aquifer that may result from the proposed use. The Zoning Board of Adjustment may engage such professional assistance as it requires to adequately evaluate such reports and to evaluate, in general, the proposed use in light of the above criteria. Costs incurred shall be the responsibility of the applicant.

8.7              Design and Operations Guidelines

Where applicable the following design and operation guidelines shall be observed within the Aquifer Protection District:

a.                   Safeguards. Provision shall be made to protect against toxic or hazardous materials discharge or loss resulting from corrosion, accidental damage, spillage or vandalism through measures such as: spill control provisions in the vicinity of chemical or fuel delivery points; secured storage areas for toxic or hazardous materials; and indoor storage provisions for corrodible or dissolvable materials. For operations which allow the evaporation of toxic or hazardous materials into the interiors of any structures, a closed vapor recovery system shall be provided for each such structure to prevent discharge of contaminated condensat into the groundwater.

b.                  Location. Where the premises are partially outside of the Aquifer Protection District, potential Pollution Sources such as on‑site waste disposal systems shall be located outside the Aquifer Protection District to the extent feasible.

c.                   Drainage. All runoff from impervious surfaces shall be recharged on the site, and diverted toward areas covered with vegetation for surface infiltration to the extent possible. Dry wells shall be used only where other methods are not feasible, and shall be preceded by oil, grease, and sediment traps to facilitate removal of contaminants.

d.                  Inspection. All special exceptions granted under paragraph 8.6 may be subject to annual inspections by the Building Inspector or other agent designated by the Selectmen. The purpose of these inspections is to ensure continued compliance with the conditions under which approvals were granted. (Amended March 11, 2003)

8.8              Non‑Conforming Uses

a.                   Any non‑conforming use may continue and may be maintained, repaired or improved, unless such use is determined by the Board of Selectmen to be an imminent hazard to public health and safety. No non‑conforming use may be expanded, changed to another non‑conforming use, or renewed after it has been discontinued for a period of 1 year or more.

b.                  Any non‑conforming lot of record existing before the effective date of this Article may be used in accordance with paragraph 8.5, subparagraphs c & d of this APO.

8.9              Rules

The Planning board is hereby authorized and empowered to adopt rules or organization and procedures as are necessary for the efficient administration and enforcement of this ordinance.

8.10          Effective Date

This Section shall become effective upon passage at Town Meeting March 1990.