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Bureau Of Resource Protection

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Bureau Of Resource Protection

    COMMONWEALTH OF MASSACHUSETTS

    EXECUTIVE OFFICE OF ENERGY & ENVIRONMENTAL AFFAIRS

    DEPARTMENT OF ENVIRONMENTAL PROTECTION

    ONE WINTER STREET, BOSTON, MA 02108 617-292-5500

     DEVAL L. PATRICK IAN A. BOWLES Governor Secretary TIMOTHY P. MURRAY LAURIE BURT Lieutenant Governor Commissioner Implementation Of Zone I Requirements

    Effective Date: 3/10/2008

    Amended Date: 3/10/2008 DWP Policy 94-03

    Program Applicability:All BRP Programs

    Supersedes Policy #: 94-03A

    Approved by: ___________________________

     Glenn S. Haas, Acting Assistant Commissioner, BRP

    Purpose

     1Policy 94-03 provides guidance on the implementation of the Zone I requirements established under

    MA Drinking Water Regulation, 310 CMR 22.21(3)(b). This regulation requires public water systems (PWS) to own or control the Zone I of their wells and to limit activities to those directly related to the provision of the water supply, or to activities that will have no significant adverse impact on drinking water quality. This policy should be used in conjunction with MA Drinking Water Regulations 310 CMR 22.00 and MassDEP’s ‘Guidelines and Policies for Public Water Systems”.

    This policy amends Policy 94-03A by removing the 1994 date for grandfathering newly identified unregistered wells. This policy applies to existing wells, newly discovered wells and proposed new wells where specified. This policy also incorporates and amends Policy 95-04 ‘Control of Zone I

    Within Publicly Owned Lands’.

    Policy

    It is the policy of the MassDEP to use the following information when determining the approval status of a public drinking water well:

    1. The following, in order of preference, are the options available to a PWS for satisfying the

    requirement to own or control the Zone I

    A. Ownership of the Zone I by the PWS; OR

    B. Control of the Zone I through a land use Restriction and Easement pursuant to M.G.L 2c.184 s. 32 (listed in order of preference):

     1 The Zone I is a 100’ – 400’ protective radius around the wellhead that must be owned or controlled by the PWS. 2 It is the Department's opinion that these types of restrictions are not appropriate for most non-community public water systems (NTNCs and TNCs). Therefore MassDEP may exempt non-community systems from the requirement to control the Zone I through a conservation restriction. MassDEP may howeverrequire non-community systems to execute an easement pursuant to M.G.L c.184 s 26-30.

    This information is available in alternate format. Call Donald M. Gomes, ADA Coordinator at 617-556-1057. TDD Service - 1-800-298-2207.

    MassDEP on the World Wide Web: http://www.mass.gov/dep

    Printed on Recycled Paper

    A Conservation Restriction AND easement granting the PWS access to and across the Zone (1)

    I in order to install, operate, monitor, repair and maintain a public drinking water well and to

    perform other water supply related activities necessary for the system’s compliance with 310

    CMR 22.00. The Conservation Restriction must run in favor of the PWS and limit activities

    and uses within the Zone I to those directly related to the provision of the public water system

    or to those that will have no significant adverse impact on drinking water quality in

    accordance with 310 CMR 22.21(3)(b). Conservation Restrictions must be approved by

    MassDEP and the Executive Office of Energy and Environmental Affairs.

(2) A Watershed Preservation Restriction AND easement granting the PWS access to and

    across the Zone I in order to install, operate, monitor, repair and maintain a public drinking

    water well and to perform other water supply related activities necessary for the system’s

    compliance with 310 CMR 22.00. The Watershed Preservation Restriction must run in favor

    of the PWS and limit activities and uses within the Zone I to those directly related to the

    provision of the public water system or to those that will have no significant adverse impact

    on drinking water quality in accordance with 310 CMR 22.21(3)(b). Watershed Preservation

    Restrictions must be approved by MassDEP and the MA Division of Conservation Services.

(3) An Agricultural Preservation Restriction AND easement granting the PWS access to and

    across the Zone I in order to install, operate, monitor, repair and maintain a public drinking

    water well and to perform other water supply related activities necessary for the system’s

    compliance with 310 CMR 22.00. The Agricultural Preservation Restriction must run in favor

    of the PWS and limit activities and uses within the Zone I to those directly related to the

    provision of the public water system or to those that will have no significant adverse impact

    on drinking water quality in accordance with 310 CMR 22.21(3)(b). Agricultural Preservation

    Restrictions must be approved by MassDEP and the MA Department of Agricultural

    Resources.

    If the PWS with a newly discovered well is able to meet the Zone I requirements, the initial baseline testing for applicable water quality contaminants will be required as soon as possible after identification of the well as a public water supply source. Additional monitoring may be required as deemed necessary by MassDEP due to water quality problems or land use concerns.

2. When the PWS is in Non-Compliance with the Zone I Requirement

    A. All PWS with newly discovered wells or existing wells that do not meet the Zone I

    requirements will be informed of their non-compliance status during the source approval

    process or at the time of a sanitary survey or inspection or whenever MassDEP has such

    information available. See endnote on page 6 of this policy for non-compliance inotification language to be used with sanitary surveys or inspections. MassDEP will

    notify the PWS in writing that they will not be allowed to expand or modify their system

    without first obtaining MassDEP approval AND that such approval will be contingent

    upon meeting the Zone I requirements. MassDEP will send copies of this notice to the

    local Board of Health, Planning Board, Building Inspector and other local entities. In

    accordance with 310 CMR 22.04(1)(a)(6), MassDEP may require that the PWS record at

    the appropriate Registry of Deeds a certified affidavit describing the PWS status and

    specific expansion limitations, if any. An affidavit template is available in Appendix B of

    MassDEP’s ‘Guidelines and Policies for Public Water Systems’.

    Drinking Water Policy 94-03 Page 2 of 6

    B. If the PWS with a newly discovered well does not meet the Zone I requirements the PWS

    will be required (as a condition of a MassDEP enforcement and/or permit action) to

    explore specific options, including: removing potential sources of contamination,

    connecting to municipal water or another MassDEP approved PWS, buying more land

    and/or relocating the well. In the event that these options are infeasible, MassDEP will

    conduct a susceptibility evaluation of the well to determine if the source can be approved

    with additional monitoring or with treatment and increased monitoring. Based on the

    susceptibility evaluation and the potential risk to public health, MassDEP will determine if

    the well is approvable.

     33. Waiver of the Zone I Ownership/Control Requirements

    For newly discovered wells or for existing wells where a PWS cannot obtain ownership or control of the entire Zone I and options in Section 2.B of this policy have been determined by

    MassDEP to be infeasible; MassDEP may waive the Zone I ownership/control requirement cited in 310 CMR 22.21(3)(b). The decision to grant a waiver will only be made when it is determined that additional requirements will minimize threat to water quality. Additional requirements may include:

    (1) Additional monitoring at the source or at monitoring wells(s) to be installed in a

    MassDEP specified location(s);

    (2) Drainage requirements;

    (3) No salt requirements for existing roads within the Zone I;

    (4) Additional treatment of the source as necessary;

    (5) A requirement that the PWS obtain an amount of upgradient acreage equal in area to

    that portion of the Zone I which the PWS is unable to own or control;

    (6) Capacity requirements, such as maintaining emergency funding in an escrow account;

    and

    (7) Other source protection tools as determined appropriate and necessary.

    4. Passive Recreational Use of Zone I

    MA Drinking Water Regulation 310 CMR 22.21(3)(b) requires current and future land uses within the Zone I to be limited to those directly related to the public water supply well or those activities demonstrated to have no significant adverse impact on water quality. MassDEP requires that all passive recreational activities have no significant adverse impact on drinking water quality.

    Passive recreation is defined as walking, hiking, cross-country skiing, and bicycling. These activities may be allowed in the Zone I upon MassDEP written approval. Other recreational activities may be considered on a case-by-case basis and require MassDEP written approval. No picnic areas may be established or maintained in a Zone I due to MassDEP’s desire to

    avoid concentrated human activity in the Zone I.

     3 MassDEP approval of a Zone I waiver is not an indication of full compliance with the Zone I requirements, 310

    CMR 22.21(3)(b). Therefore, PWS that receive a Zone I waiver are not allowed to expand the capacity of their

    facility or to increase water withdrawals in exeedance of the assigned MassDEP approved pumping rate.

    Drinking Water Policy 94-03 Page 3 of 6

    MassDEP approval requires the PWS to demonstrate that the proposed activity will have no

    significant adverse impact on water quality. MassDEP approval may include requirements

    such as the PWS posting signs identifying the Zone I as a water supply protection area and/or

    providing public educational information.

    For new and existing wells, the PWS must notify MassDEP in writing of any plans to

    introduce land uses in a Zone I. MassDEP reserves the right to reject any such proposals or

    require modifications on PWS controlled lands. All decisions by MassDEP will be made in

    writing and copied to the appropriate municipal officials.

5. Change in Zone I Ownership or Land Use

    In accordance with 310 CMR 22.24, a PWS must obtain MassDEP approval for any change in

    ownership or use of the Zone I land including obtaining MassDEP’s approval for conveyance

    of any portion of the land. If the PWS owns or controls land outside the Zone I and that land

    was acquired for water supply purposes, these same requirements apply.

6. Easements in Zone I

    Pursuant to 310 CMR 22.24(3), MassDEP will not approve any grant of easement (in which

    the PWS is the Grantor) for pipelines, or other conduit, carrying liquid petroleum products

    within a Zone I. For other public utility easements within a Zone I, MassDEP may require as

    a condition of an express perpetual prohibition on the use of fertilizers, pesticides, herbicides,

    and other non-mechanical means of vegetation control within the easement area.

7. Sewer Lines in Zone I

    This Policy is consistent with MassDEP Policy WS P03-1, which prohibits installation of

    sewer lines within a Zone I unless necessary to eliminate existing or potential sources of

    contamination to a public drinking water well.

8. When the Zone I is Publicly Owned

    When some or all of the Zone I is publicly owned (such as by a municipal, federal or state

    governmental body) and options in Section 1.B of this policy are determined by MassDEP to

    be infeasible; the PWS may, with MassDEP approval, use one of the following options (listed

    in order of preference) to satisfy the Zone I requirement:

     4A. Easement by Contractual Agreement

     5An easement pursuant to M.G.L. c.184 s 26-30 granting the PWS the right of

    access to and across the Zone I in order to install, operate, monitor, repair and

    maintain a public drinking water well and to perform other activities necessary for

    water quality protection and for compliance with MA Drinking Water Regulations

     4 A contract is a legally enforceable agreement between two or more parties that creates an obligation to do or not do particular things. 5 These easements do not require approval by EOEEA.

    Drinking Water Policy 94-03 Page 4 of 6

    310 CMR 22.00. Easements must include language in which the PWS and the landowner agree to limit land uses and activities to those that will have no significant impact on drinking water quality.

    B. Long Term Lease

    A long term lease from the governmental entity (as lessor) to the PWS (as lessee) whereby the PWS has possession of the property comprising the Zone I and the right to install, operate, monitor, repair and maintain a PWS system within the Zone I and perform other activities necessary for the system’s compliance with 310 CMR 22.00. The minimum time period for such a lease shall be 30 years. The long-term lease shall be renewable and shall prohibit any activity inconsistent with the use of the area as a public water supply.

    The long-term lease shall not be renewed if the well has been formally abandoned with MassDEP approval or the well has not served as a source of public drinking water for five or more years, unless the PWS demonstrates a commitment to reactivating the well within a time frame that is acceptable to MassDEP and the lessor. If the PWS does not demonstrate a commitment to reactivating the well, MassDEP will require the PWS to officially abandon the source.

     6C. Memorandum of Understanding or Other Acceptable Written Agreement

    A Memorandum of Understanding (MOU) or Memorandum of Agreement (MOA) between the PWS and the governmental entity owning the property within the Zone I. At a minimum such documents shall be notarized and include the following:

    (1) Provision for the PWS to enter and cross the Zone I as needed in order to

    install, operate, monitor, repair and maintain the public drinking water supply

    and to perform other activities necessary for protecting drinking water quality

    and to comply with MA Drinking Water Regulations 310 CMR 22.00;

    (2) A stated agreement that the government entity will not allow or engage in

    activities or land uses that are inconsistent with the use of the land as a public

    drinking water supply or pose a threat to water quality; and

(3) Renewal language.

     6 Also called Memorandum of Agreement (MOA). MOUs and MOAs are legal documents expressing a convergence of will

    between parties, indicating an intended common line of action but does not necessarrly imply a legal commitment. These

    types of agreements are formal alternatives to ‘Letters of Intent’, but lack the binding power of a contract.

    Drinking Water Policy 94-03 Page 5 of 6

     *iii Notes:

    For a PWS with a Zone I non-compliance status, MassDEP will add the following language to

    sanitary survey reports, Consent Orders, or other compliance documents as appropriate.

    (1) When the Zone I is not Owned or Controlled by the PWS

    Please note that the (PWS Name) lacks ownership or control of the required (# of feet)

    Zone I protective radius around Well/Source (ID #). Pursuant to 310 CMR 22.21(3)(b),

    310 CMR 22.21(1)(a) and 310 CMR 22.04(1), the owners or designated representative

    of (PWS Name) must notify MassDEP prior to a change in facility ownership, or a

    change in landuse within the Zone I, or any change that can impact the quality or

    quantity of the drinking water supply. The owners or designated representative of

    (PWS Name) must obtain MassDEP approval prior to modifying or expanding the

    facility, or replacing any well or source. MassDEP will not approve any proposed

    modifications or expansions resulting in water withdrawals that exceed the designated

    MassDEP approved pumping rate.

    (2) When Inappropriate Land Uses are Located in a Zone I Owned/ Controlled by the

    PWS

    The (PWS Name) is hereby notified that Well (ID #) is in non-compliance with

    MassDEP’s requirement, 310 CMR 22.21(3)(b), that Zone I activities be limited to

    those directly related to the provision of public water or will have no significant

    adverse impact on drinking water quality. Well/Source (ID #) will remain in non-

    compliance status until (specify action to be performed). Pursuant to 310 CMR

    22.04(1) and 310 CMR 22.21(1)(a), the owners or designated representatives of (PWS

    Name) must notify MassDEP prior to a change in facility ownership or a change in

    landuse within the Zone I, or any change that can impact the quality or quantity of the

    drinking water supply. The owners or designated representative of (PWS Name) must

    obtain MassDEP approval prior to modifying or expanding the facility, or replacing

    any well or source. MassDEP will not approve any proposed modifications or

    expansions resulting in water withdrawals that exceed the designated MassDEP

    approved pumping rate.

    Drinking Water Policy 94-03 Page 6 of 6

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