Zoning Laws and Land Use
Controls
Cities and towns can pass zoning laws to protect
groundwater and public water supply wells by restricting
certain districts (residential, retail/commercial, or
industrial) from areas near water supply wells. Over 75 New
Hampshire communities have chosen to create such zoning
districts that prevent or restrict industrial and
businesses in important aquifer areas.
Some have argued that by limiting what people can do with
their land, the government is "taking" the land. Court
rulings have consistently shown that while there are limits
to how far zoning can go, it is still a good way to protect
the public from the wrong land use in the wrong place.
While zoning is a good tool to use in protecting
groundwater, it doesn't take care of every situation.
First, while zoning can prevent new threats, it can not
eliminate existing threats, because existing uses are
"grandfathered" when zoning laws take effect. Second, some
communities may want to allow development to take place in
aquifer areas, but to review development on a site-specific
basis.
Below are several good examples of local groundwater/aquifer protection zoning ordinance. They include a number of the provisions suggested within the DES Model Groundwater Protection Ordinance (2006). However, they also include other provisions developed by local planners based upon local development conditions and trends.
 Raymond Groundwater Conservation District
Newmarket Aquifer Protection Ordinance
Exeter Aquifer Protection District Ordinance
Reviewing New Development Projects
In addition to keeping high-risk activities out of
sensitive areas through acquisition, easements, or zoning,
a municipality may wish to exercise some level of control
over new development. Site plan and subdivision review,
typically performed by municipal planning boards for new
developments, may include consideration of potential
impacts to groundwater quality, particularly in sensitive
areas.
Site Plan Review
Site plan reviews are performed to evaluate commercial,
industrial, and multi-family development proposals prior to
construction. These are typically required when an existing
use that does not conform to local zoning laws is being
expanded or changed to another use. Local site plan review
regulations are typically implemented by planning boards in
communities where the local legislative body (e.g. town
meeting) has granted that authority and the municipality
has both a zoning ordinance and subdivision regulations.
Site plan review can cover a wide range of issues
surrounding the relationship between the proposal and the
surrounding area. Among those issues is the management of
existing and potential threats to groundwater and surface
water.
Site plan review regulations include standards for site
design. Among those standards, the planning board will
probably include compliance with applicable state laws as
well as local zoning laws. Since state BMP (Best Management
Practices) rules for potential contamination sources apply
throughout the state (even outside wellhead or groundwater
protection areas), local planning boards can help ensure
that those BMPs are being implemented through site plan
review. DES can also offer recommendations in addition to
the BMPs. For example, DES recommends that local officials
discourage or prohibit direct infiltration of stormwater
from industrial and petroleum-related sites within
groundwater protection areas.
Site plan review occurs before a site is developed or
expanded, or the use changed. If necessary, the planning
board would typically place conditions on approval of a
site plan to ensure that groundwater resources are
adequately protected. If those conditions are violated, the
municipality may take enforcement action as with any zoning
violation.
Subdivision
Regulations
Subdivision regulations describe local requirements and
limitations on how land may be subdivided. Subdivision
regulations cover a wide variety of issues, including water
supply and wastewater disposal. For groundwater protection,
the regulations should ensure that on-site wastewater
disposal systems (septic systems) and stormwater
infiltration structures do not contaminate groundwater.
For more information on alternatives for subdivision and
site plan review regulations, contact your regional
planning commission or the N.H. Office of State Planning at
271-2155.
Stormwater
Regulations
When reviewing subdivisions and site plans, a major
water-related concern is stormwater management. While
projects that alter 100,000 square feet or more (50,000
square feet or more of protected shoreland) require a
permit from DES’s Alteration of Terrain (Site
Specific) program, municipalities may set more stringent
standards, and should also regulate projects that fall
below the Site Specific threshold. While local regulation
of stormwater management has long been concerned with
preventing erosion and sedimentation of waterways, there
has been growing concern about infiltrating stormwater into
the ground in order to recharge groundwater. For more
information, see Managing
Stormwater as a Valuable Resource (PDF).
Health Regulations and
Ordinances
One regulatory tool for local management of potential
threats is a health regulation or health ordinance. The
state law that describes the powers of local health
officers provides the authority to enact regulations.
Some New Hampshire towns and cities have adopted health
regulations which require businesses that handle
significant quantities (more than typically found in a
home) of hazardous substances to implement management
practices which prevent the occurrence of groundwater
contamination. Proper procedures are specified in the DES
Best Management Practices (BMP) rules, which can be applied
locally through a health regulation.
Local health regulations typically provide the local health
officer with authority to inspect handling practices for
hazardous substances at certain types of businesses. In
some communities, the regulations provide the authority to
some other local official such as a water department
employee, fire official, code enforcement officer, or
building inspector.
The purpose of inspections is not to catch business owners
who are not following the rules. The purpose is to educate
business owners about the right practices and to make sure
they are following them. If business owners refuse to
cooperate after repeated requests, the municipal official
may take enforcement action to protect the public's
interest in clean drinking water.
One of the drawbacks of health regulations is that local
funds may be needed if enforcement actions become
necessary. Health ordinances, which are similar to health
regulations but require passage by the local legislative
body, enable municipalities to raise money through permit
fees.
New Hampshire's Drinking Water Source Protection Program,
in conjunction with the N.H. Office of State Planning, has
prepared a guide for the development and use of health
ordinances to protect groundwater. The guide includes a
sample health ordinance that can be adapted for local use.
For more information call DES at 271-7061.
Gravel Excavation
Regulations
Large deposits of sand and gravel can be valuable sources
of construction materials. Because of their permeability,
the ability to allow water to flow through, sand and gravel
deposits also tend to be good sites for water supply wells.
Permeability also makes sand and gravel deposits very
vulnerable to contamination; once contaminants are spilled
or dumped, they can quickly spread. Therefore, special
attention should be given to regulating land uses over sand
and gravel deposits.
Municipalities issue permits for gravel excavation under
RSA 155E. The local regulator (usually the planning board)
also has the authority to adopt regulations that apply to
gravel excavation. These regulations, along with the
process of reviewing permit applications for gravel removal
areas, should be designed to ensure that fuels and
lubricants used by earth moving equipment are handled
properly and the areas are secured against illegal dumping.
Gravel pit owners should be reminded that future uses of
the land could be limited if excavation extends too close
to the water table. For example, if the land is to be used
for residential development after the gravel is removed,
enough material should be left behind to allow for the
construction of properly designed septic systems.
Septic Systems
Ordinance
To address the concerns of local health officers seeking
specific guidance regarding their role in regulating
on-site wastewater disposal systems (OSDS), the N.H. Office
of State Planning (OSP) has developed a model health
ordinance which can be adapted to local needs. The model
ordinance addresses local review of applications to
construct OSDS, local inspection of systems, operation and
maintenance, and enforcement procedures for violations. For
more information call OSP at 271-2155.
Underground Storage Tanks
Regulations
Since many underground storage tanks (USTs), such as
1,000-gallon residential tanks, are exempt from state
regulations, towns may regulate those tanks to reduce the
chance of groundwater contamination. Although local
regulation of USTs is rare in New Hampshire, towns might
consider requiring testing of state-exempt USTs and removal
of tanks that fail the test.
Regulations for the Management
of Fertilizer and Wastewater Residuals
Some municipalities may also regulate the application of
fertilizer, manure, septage, and sludge in order to protect
groundwater as well as surface water.
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