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.