ORDINANCE IMPLEMENTATION: WELLHEAD PROTECTION

ORDINANCE IMPLEMENTATION: WELLHEAD PROTECTION

Everything you need to know about implementing a wellhead protection

ordinance in your town.

The Stony Brook-Millstone Watershed Association

Since 1949, our member-supported organization has worked on behalf of local residents to protect, preserve and enhance our local environment. We are dedi-cated to caring for the integrity of the natural ecosystems of the 265-square miles of central New Jersey drained by the Stony Brook and the Millstone River. We focus on environmental education, watershed stewardship and water resource advocacy – helping future generations understand the wonders and workings of the natural world we are preserving on their behalf. We are headquartered on a 830-acre nature reserve in Pennington that includes a community supported organic farm, nature center, pond, and a 14-mile trail sys-tem that leads visitors through our woodlands, wetlands, and fields. Many activities within our watershed affect the quality of streams, wetlands, ground water and forests. By changing how we carry out these activities, we can improve our environment and our quality of life. So whether at home, work or play, we can all make a difference.

If you have questions about this report or want to learn more about

membership support, volunteer opportunities, and new programs please contact us at: (609) 737-3735.

31 Titus Mill Road Pennington, NJ 08534

www.thewatershed.org

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. WHAT IS GROUNDWATER? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. WHAT IS WELLHEAD PROTECTION? . . . . . . . . . . . . . . . . . . . . . . . C. WHY WORRY ABOUT GROUND WATER CONTAMINATION? . . . . III. LEGAL AUTHORITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. CONSTITUTIONAL AUTHORITY . . . . . . . . . . . . . . . . . . . . . . . . . . . B. SUPPLEMENTAL AUTHORITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. FOUNDATION & PROCESS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. ORDINANCE STRUCTURE AND REGULATION . . . . . . . . . . . . . . . . . . VI. GLOSSARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VII. ACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VIII. RESOURCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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APPENDIX A: EXAMPLE WELLHEAD PROTECTION ORDINANCES APPENDIX B: SIGNIFICANT CATEGORIES OF GROUND WATER POLLUTANT SOURCES IN NJ APPENDIX C: STATE DEVELOPMENT AND REDEVELOPMENT PLAN SUPPORT FOR

ADOPTION OF WELLHEAD PROTECTION ORDINANCES APPENDIX D: EXAMPLES OF REFERNCES IN THE TEXT APPENDIX E: WELLHEAD PROTECTION ORDINANCES: AT-A-GLANCE

Table of Contents

1New Jersey Geological Survey. Open File Report OFR 03-1. Guidelines for Delineation of Wellhead Protection Areas in New Jersey. New Jersey Department of Environmental Protection, 2003. *Italicized words can be found in the Glossary

L ocal governments have a significant role in directing New Jersey’s future in environmental issues. The protection and health of a watershed relies a great deal on the land use laws and policies that municipalities enact. In the past, the Stony Brook-Millstone Watershed

Association (the Association) received requests from various municipalities for assistance with drafting ordinances, improving zoning, and increasing local environmental quality. In addition to responding to these requests, the Association sought to provide a more comprehensive ordinance analysis for local municipalities. Thus, we developed a series of ordinance implementation packages to assist municipalities in their efforts to protect, preserve, and enhance water quality in their communities. These implementation packages can aid municipalities in their development of proactive measures that establish the necessary regulatory structure to preserve natural resources. This Wellhead Protection Ordinance Implementation Package is the second in this series. Almost 42% of New Jersey’s population depends on ground water for some of its drinking water supply. While most ground water supplies are provided through public water systems, approximately 13 percent of homes rely on domestic wells. The ability of many municipalities to provide clean drinking water to New Jersey citizens is contingent on the proper protection of its ground water resources. Direct contamination of a water supply is known as point source pollution*, while pollution that is not traceable to an identifiable source is known as non-point source pollution. Potential point and non-point source contamination to the ground water supply could limit the amount of safe drinking water available to New Jersey citizens, and could result in significant harms to human health and the environment. Communities that rely heavily on ground water as a source of drinking water should work to ensure that pollution of these resources never occurs.

A Wellhead Protection Ordinance (WHPO) assists municipalities in this effort by preventing the pollution of wells, and the areas from which they draw water. This package includes tools and techniques that arm local planning boards with key information necessary when introducing this protective and proactive ordinance. The sections that follow detail the specific elements that make up an effective WHPO, provide the scientific rationale for wellhead area protection, clarify a municipality’s authority for implementing such an ordinance, and analyze existing and model ordinances that can aid in the development of a WHPO in your municipality.

Please note that any municipality interested in enacting this kind of land conservation tool is advised to seek competent legal counsel to review the information and ordinances presented herein in more detail.

“Almost 42% of New Jersey’s population depends on

ground water for some of its drinking water supply. ..”

I. INTRODUCTION

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II. BACKGROUND: WHAT IS GROUND WATER?

G round water is a natural resource of great importance to humans for its contribution to drinking water

supplies. Through precipitation, water infiltrates the ground and is stored in small air pockets between rock and soil particles below the surface. Near the surface, spaces between rocks and soil are not fully saturated. This area is known as the unsaturated zone. As water seeps into the ground, it trickles down through rock and soil particles, eventually reaching a layer of rock or other materials that is impervious to water. Here, deep underground, the pore spaces in sediment or rock can become fully saturated with water, creating an underground water supply known as an aquifer. The point at which the pore spaces in sediment or rock become fully saturated is known as the water table. The water table divides the unsaturated zone and the saturated zone. In an unconfined aquifer, the upper aquifer boundary is the water table. If there is an impermeable, or confining, layer of rock or other materials between the aquifer and the surface or water table, it is known as a confined aquifer.

Many water supply utilities draw upon ground water from these underground aquifers to meet the needs of the communities they serve. In order to access water stored in underground aquifers, wells are installed. Wells are holes dug or drilled through unsaturated rock, soil, or sediment and into an aquifer. Pipes and pumping equipment are used to draw water out of aquifers. A well, and the area around the well from which water is drawn, is known as a wellhead. The purpose of wellhead

protection is to minimize the risk of well pollution due to discharges to or over-extraction of aquifers, and to focus on the prevention of new discharges sources of pollution that could impair future well water quality.

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W ellhead protection is a process and program that protects drinking water supply wells from contamination. The Federal Safe Drinking Water Act Amendments of 1986 (Section 1428)

required that each State develop and seek USEPA approval of a Wellhead Protection Program Plan. New Jersey’s plan was adopted in 1991. As required by federal law, it addressed public community water supply wells (greater than 15 service connections or 25 people in permanent residence) and public noncommunity wells (greater than 25 people using the supply but not as regular users). The NJ Department of Environmental Protection (NJDEP) also explored concepts for protecting clusters of domestic (residential) water supply wells, using a case study in Cape May. However, the State’s plan was never modified to address that issue. During the 1990’s the New Jersey Geological Survey (a part of the NJDEP) delineated the area – known as Wellhead Protection Areas (WHPA) – around each public community water supply well that contributes water to the well over a 12-year period. With passage of further Safe Drinking Water Act amendments that required each State to complete an inventory of potential pollutant threats to each public water supply – known as Source Water Assessments – the two programs were joined. Source Water Assessments for each of many hundreds of public water supply systems were developed by NJDEP and released in early 2004. These assessments relied heavily on the WHPA delineations, for public systems that rely on ground water. However, there is no provision of the Safe Drinking Water Act that requires any action be taken to reduce pollutant threats found during the Source Water Assessment. While NJDEP regulates some pollutant sources, it has no regulatory program for many others or for the impacts of many kinds of new development within a WHPA. Municipalities can help fill this gap for the protection of its own residents. NJDEP has already delineated WHPAs for each public community water supply well and each public noncommunity-nontransient water supply well. The former are mostly municipal water supply wells, but also include investor-owned and community association-owned wells for public supply. The latter are mostly large institutional facilities, such as hospitals, as well as major office buildings and the like where people do not reside, but are routinely drinking the water supplied at that facility.

II. BACKGROUND: WHAT IS WELLHEAD PROTECTION?

◊ Delineation of the aquifer volume from which a well draws its water, known as a Wellhead Protection Area (WHPA)

◊ Identification of potential pollutant sources within that WHPA ◊ Development of a management approach to protect well water quality from pollutants ◊ Implementation of the management approach and monitoring of effectiveness

According to the Safe Drinking Water Act: Wellhead protection requires the following major steps...

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T he WHPAs can be adopted by the municipality by reference and used as technically sound delineations. The NJDEP uses a three tiered

ranking for WHPAs based on the amount of time water takes to move in the ground to the well. The underlying concept is simple – the more time it takes water to reach a well, the more time contaminants in the water will take to reach the well. Time may allow for contaminants to degrade, dilute, attach to the aquifer’s geologic materials, etc. Time also allows for mitigation when contamination is identified. The NJDEP delineation methods are available on the Web: http://www.state.nj.us/dep/njgs/pricelst/index.htm

NJDEP has also identified many of the major potential pollutant sources within the WHPAs, through its Source Water Assessment Program, and also evaluated more broadly the potential pollutants from land uses (such as residential housing using septic systems) within the WHPA. However, many minor sources will not be included, and there is no commitment or funding for NJDEP to update the Source Water Assessment.

Tier 1 – Two years time of travel. This tier is especially important because pollution within it allows for very little reaction time, and is g e n e r a l l y c o n s i d e r e d insufficient to screen out all harmful viruses. Virus and bacteria pollution from outside this tier will generally be removed before reaching the well. Tier 2 – Five years time of travel. Within this tier, attention turns to ensuring that toxic, carcinogenic and conservative pollutants are not discharged. If such pollutants are discharged, they may not be caught and remedied in time to save the well from contamination. Tier 3 – Twelve years time of travel. Within this tier, the primary focus is on ensuring that continuous discharges (such as septic systems) do not pollute the well, and that any pollution problems are caught and remedied before they reach the well.

NJDEP Wellhead Protection Area Ranking System

“...the more time it takes water to reach a well, the more time contaminants in the

water will take to reach the well…”

GW Flow Path

Figure1: Distance from wellhead correlates with amount of time water and pollutants take to move in the ground to the well.

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II. BACKGROUND

T he management approach can use a combination of techniques, including existing NJDEP regulatory program,

regulation of new land uses within the WHPA (see Appendix A), education of landowners, and regulation of existing land uses by the municipal Board of Health to the extent that the regulation of these potential pollutant sources is not preempted by State or Federal legislation. NJDEP, for instance, has sole authority over larger underground storage tanks, but does not regulate small heating oil tanks that are commonly used for residential heating fuel.

Appendix B includes two tables from the 1991 Wellhead Protection Plan detailing which types of pollutant sources were subject to NJDEP regulatory authority and which were not, at that time. A wide variety of techniques can be used. None of these approaches will be applicable to every municipality, and no municipality will want to make use of all of these approaches. However, they all should be considered and used where relevant and appropriate.

POLLUTANT SOURCE CONTROLS AND APPLICATION METHODS

Minimize Hazardous Substance Use Minimize Hazardous Substance Storage

Physical Controls on Potential Discharges Pollution Removal, Degradation, Attenuation

Discharge Limitations Source Discharge Monitoring

Density Controls Source Prohibition

Purchase/Removal of Source Hydraulic Controls on Pollution Plumes

Minimize Waste Generation

Categories of Pollutant Source Controls

Education Guidance

Training Technical Assistance

Planning Assistance Demonstration Projects

Financial Incentives Financial Disincentives

Legal and Financial Liability Mandatory Best Management Practices

Source Registrations Permits

Financial Assurances Inspections

Municipal Zoning Public Funding

Methods of Application


Tables adapted from the 1991 Wellhead Protection Plan

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O ver half of New Jersey’s population depends on ground water for some of its drinking water supply. Some areas rely solely upon ground water as the principal source of their drinking water. The United States Environmental Protection Agency (EPA) defines a

sole or principal source aquifer as one that supplies at least fifty percent of the drinking water consumed in the area overlying the aquifer. These areas have no alternative drinking water source(s), which could physically, legally, and economically supply all of those who depend upon the aquifer for drinking water.2 Seven of the nation’s seventy-two designated sole source aquifers are found in New Jersey3 (see figure 2). These are the Buried Valley, Coastal Plains, Fifteen Basins, Highlands, Ramapo River Basin, Ridgewood Area, and the Rockaway River Area Aquifers. Together these aquifers serve well over one-third of New Jersey’s eight million citizens. Sole source aquifers provide drinking water for parts of the following NJ counties: Atlantic, Bergen, Burlington, Camden, Cape May, Cumberland, Essex, Gloucester, Hunterdon, Mercer, Middlesex, Monmouth, Morris, Ocean,

Passaic, Salem, Somerset, Sussex, and Warren. The lack of alternative drinking water supplies within sole source aquifer regions means that wellhead protection is especially important in these areas. An additional justification for preventative protections within WHPAs is the use of ground water in agriculture and industry. In New Jersey, ground water is a source of irrigation water for approximately 80,000 of the 650,000 acres of farmland4. Ground water is also used for watering livestock. Water contamination threatens these uses, and could impose substantial treatment costs on industrial operations that require large inputs of water (such as mining, food processing, steel manufacturing, and pulp and paper production). Obviously, humans directly benefit from their extractive use of ground water. Less obvious are the various ecosystem services that ground water performs in situ (in the wild). Ground water contamination or overuse potentially endangers many natural functions and human services. See the following page for a more detailed listing.

II. BACKGROUND II. BACKGROUND: WHY WORRY ABOUT GROUND WATER CONTAMINATION?

2United States EPA. “Sole Source Aquifer Protection Program Overview.” Online Resource. Last accessed March 30, 2004. URL: http://www.epa.gov/safewater/swp/ssa.html 3United States EPA. “Designated Sole Source Aquifers in EPA Region 2.” Online Resource. Last accessed March 30, 2004. URL: http://www.epa.gov/safewater/swp/ssa/reg2.html 4 Associated Press. “Recent rain in New Jersey won’t help some crops.” Trenton, NJ. 09/01/2002. Online Resource. Last accessed March 30, 2004. URL: http://www.usatoday.com/weather/news/2002/2002-09-01-njraincrops.htm

“The lack of alternative drinking water supplies within

sole source aquifer regions means that wellhead protection is

especially important…”

Figure 2: Shading denotes areas surved by sole source aquifers.

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S Prevention of land subsidence: Aquifer overuse can deplete water that provides support for the surface above. This causes land subsidence, or a sinking of the ground due to the removal of subsurface support. Subsidence can range in magnitude from moderate losses of surface elevation to substantial losses of several feet. Land subsidence can result in damage to buildings and an increased risk of flooding. This has the potential to impose substantial costs on property owners and/or taxpayers. S Water purification: Microorganisms in ground water provide a number of services to the benefit of humans. These include rendering human pathogens harmless and breaking down organic wastes. The net result of these processes is the purification of ground water resources. Contamination can kill microorganisms essential to the water purification process, thus diminishing ground water’s natural purification capabilities. S Prevention of salt-water intrusion: Depletion of ground water resources can cause the intrusion of salt water into ground water sources, particularly in coastal areas. Water drawn out of a well creates a void that must be filled. This is done by pulling in water from the area around the well creating what is called a cone or zone of depression. In the coastal areas, as the cone of depression increases, the aquifer level lowers below sea level, causing saltwater to be pulled into the aquifer. In New Jersey, salt-water intrusion has been a problem since the 1960s, when two public wells in Cape May’s Cohansey Aquifer had to be abandoned5. Salt-water intrusion continues to threaten the ground water resources of the Cohansey Aquifer, as well as those of the Potomac-Raritan-Magothy Aquifer along the Delaware River and the Old Bridge Aquifer in Monmouth County, NJ6. (See Figure 2). S Provision of surface water stream flow: Although aquifers are found underground, they are often connected to nearby surface waters. Approximately one-third of the nation’s stream flow is fed by water discharged from unconfined aquifers7. (Confined aquifers are less likely to provide stream flow because they are, by definition, separated from the surface by an impermeable or only slightly permeable layer of soil, sediment, or other materials.) In Ocean County, New Jersey, approximately ninety percent (90%) of the base flow, or stream flow, of coastal waterways are fed by ground water sources8. During dry periods, when precipitation is minimal, ground water is a particularly important source of surface water. Surface water originating from ground water helps ecosystems support wildlife populations, riparian vegetation and wetland environments. Riparian and wetland environments play a critical role in filtering runoff and controlling erosion and floods9.

II. BACKGROUND: WHY WORRY ABOUT GROUND WATER CONTAMINATION?

5Jacques Cousteau National Estuarine Research Reserve. “Water Supply Issues and Uncertainties in New Jersey’s Atlantic Coastal Region.” Online Resource. April 20 and 21, 1999. Last accessed June 23, 2003. URL: www.jcnerr.org/coastal_training/resources/workshops/water_supply_workshop.pdf 6EPA. “New Jersey Coastal Plain Aquifer: Support Document.” May 1988. Online Resource. Last accessed March 30, 2004. URL: http://www.epa.gov/region02/water/aquifer/coast/coastpln.htm 7National Research Council, Committee on Valuing Ground Water. Valuing Ground Water: Economic Concepts and Approaches. National Academy Press. Washington, DC. 1997.

8Supra, footnote 5. 9Schultz, Tom. “Biodiversity and Sustainability through Riparian Management Systems.” Iowa Sierran Article. Summer 2002.

Potential Hazards of Groundwater Contamination

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II. BACKGROUND: WHY WORRY ABOUT GROUND WATER CONTAMINATION?

A dditionally, ground water remediation is frequently a last resort as it is a financially and technically imposing on a municipality. Protecting ground water at the source prevents costs to the municipality for treatment as long as the appropriate controls are applied.

An Environmental Protection Agency (EPA) survey of seven sites in six states (LA, MA, ME, OH, PA, WA) found that, on average, dealing with contamination of the ground water supply may be thirty to forty times more costly than implementing a preventative local program for wellhead protection.10 An entity should first decide on how ground water is used in the community to

determine how best to treat the source. For instance, if ground water is solely used for drinking water, it may be more cost-effective to protect that part of the aquifer rather applying universal protection.11 Whatever the method used for ground water protection, it eliminates the need for water treatment and is less expensive in the long run. The standard treatment for ground water contamination is “pump-and-treat” technology, where water is pumped into the site, and, at a separate well, pumped out and treated to remove contaminants. This is the only remediation technique employed at ninety-three percent (93%) of contaminated Superfund sites.12 Unfortunately, this treatment also introduces oxygenated ground water into and mixes ground water within an aquifer, thereby homogenizing the oxidation-reduction (redox) potential of the system. Less degradation and purification services will occur in the resulting redox environment than would have occurred in a healthy, more diversified environment.13

10 Ron Bergman. “Benefits and Costs of Prevention: Case Studies of Community Wellhead Protection.” November 30, 1995. Source Water Protection, Business and Economic Series. Report Number 2. EPA 813B95005. Office of Ground Water and Drinking Water, US Environmental Protection Agency. 11Global Water Partnership, GW-MATE Briefing Note Series. Ground water Quality Protection: Defining Strategy and Setting Priorities. Published by the World Bank. Washington, D.C. 2002.

12National Research Council, Committee on Innovative Remediation Techniques. Innovations in Ground Water and Soil Cleanup: From Concept to Commercialization. National Academy Press. Washington, DC. 1997.

13Herman, J., D. Culver, and J. Salzman. “Ground water Ecosystems and the Service of Water Purification.” 20 Stanford Environmental Law Journal 479 (2001).

Figure 2: United States Geological Survey. “Quality of Ground Water.” Online Resource. http://capp.water.usgs.gov/GIP/gw_gip/quality.tml

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III. LEGAL AUTHORITY

I n New Jersey, there are currently 612 community water systems with 2,434 community water supply wells. The New Jersey Department of Environmental Protection (NJ DEP), in conjunction with the United States Geological Survey (USGS), has used a global positioning

system to locate all of 2,434 these community wells. Collected data for each well includes: the well permit number, well drilling record, the depth of the well, and the aquifer that is the source of the water. NJ DEP is also working with the USGS to determine the hydrogeologic susceptibility of public water supply wells. After the sensitivity of all community water supply wells has been classified on a scale of low to high sensitivity, NJ DEP will work to inventory all potential contaminant sources within a wellhead protection area. New Jersey’s source water assessment is complete and can be accessed at: http://www.state.nj.us/dep/swap/. While source water assessments and contaminant inventories are essential to learning about the threats to ground water sources, they do not necessarily entail mitigation of these threats. Proactive measures are necessary for municipalities seeking to protect their water supply. Whether voluntary or regulatory (specifically, enacting a Wellhead Protection Ordinance), these measures are frequently easiest to enact at a community level where citizens have a stake in local water quality concerns. Municipalities play a key role in our efforts to protect regional watersheds that provide critical natural services to sustain or enrich our daily lives. Watersheds supply drinking water for a number of citizens, critical habitat for plants and animals, areas of natural beauty, water bodies for recreation and relaxation, and ground water recharge areas, to name a few. Communities around the nation are implementing watershed protection to sustain the important ecological and community values they stand to lose as growth and development occur without thoughtful or proactive planning. Regional cooperation is also key to successful watershed pr otection. It is important to reach out to surrounding municipalities and counties to ensure that the first steps in regional cooperation are taken. The Association is one resource in helping and coordinating a dialogue to ensure watershed protection. This section outlines the legal authority a municipality has to enact a WHPO. It is divided into two sections: Constitutional and Supplemental Authority. Constitutional authority is a municipality’s fundamental right to enact laws and policies that are the foundation of a healthy community. Under the New Jersey State Constitution, New Jersey state law and the municipal governments have broad police powers (the power to legislate for the common good) to protect local citizens. If a WHPO is challenged, a municipality’s support comes from Public Health Regulations, the NJ Municipal Land Use Law, and Case Law regarding previously challenged WHPOs. Supplemental authority implies regulations that municipalities may use for extra support in upholding their WHPO. For example, the Water Supply Management Act, the Coastal Zone Management Rules, the Flood Hazard Areas Control Act, the State Development and Redevelopment Plan, and the Delaware and Raritan Canal Commission guidelines all act as support for wellhead protection.

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Under the NJ Constitution, the State of NJ has the authority to exercise police power and regulate local land use. The State of NJ delegates this authority to municipal governments in the New Jersey Municipal Land Use Law (MLUL N.J.S.A. 40:55D-1 et seq.). The statute defines the responsibilities of local Planning and Zoning boards with the stated purpose of encouraging municipal action to guide the

appropriate use or development of all lands in this state. The MLUL provides municipalities the right to enact zoning ordinances if a current Master Plan is prepared. The planning board of a municipality may choose to adopt a zoning ordinance that is “substantially consistent with the land use plan element and the housing plan element of the master plan or designed to effectuate such plan elements.” (N.J.S.A. 40:55D-62) Protection of water quality is an essential aspect of the intent and purposes of the New Jersey Municipal Land Use Law, which is the legal foundation for the municipal planning and zoning process.

III. LEGAL AUTHORITY: CONSTITUTIONAL AUTHORITY

T he New Jersey Statutes give the local board of health the specific authority to “pass, alter or amend ordinances and make rules and regulations in regard to the public health within its jurisdiction.” (N.J.S.A. 26:3-31) Title 26

specifically states that an acceptable purpose for regulation is “to protect the public water supply and prevent the pollution of any stream of water or well, the water of which is used for domestic purposes, and to prevent the use of or to close any well, the water of which is polluted or detrimental to the public health.” (N.J.S.A. 26:3-31a)

New Jersey Municipal Land Use Law

Public Health Regulations

MLUL Declarations of Intents and Purposes for the Protection of Water Quality

� “To encourage municipal action to guide the appropriate use or development of all lands in this State, in a manner which will promote the public health, safety, morals, and general welfare” (N.J.S.A. 40:55D-2a) � “To secure safety from fire, flood, panic and other natural and man-made disasters” (N.J.S.A. 40:55D-2b) � “To ensure that the development of individual municipalities does not conflict with the development and general welfare of neighboring municipalities, the county and the State as a whole.” (N.J.S.A. 40:55D-2d) � “To promote the establishment of appropriate population densities and concentrations that will contribute to the well-being of persons, neighborhoods, communities and regions and preservation of the environment.” (N.J.S.A. 40:55D-2e) � “To promote the conservation of historic sites and districts, open space, energy resources and valuable natural resources in the State and to prevent urban sprawl and degradation of the environment through improper use of land.” (N.J.S.A. 40:55D-2j)

Municipalities with a local board of health should use their explicit authority to implement a wellhead area protection ordinance through the board of health. If a municipality does not have a local board of health, no explicit authority to regulate wellhead protection areas is

granted. However, several of the following sections demonstrate that local wellhead protection ordinances can support state efforts to protect ground water resources.

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I nclusion of a conservation plan element in the master plan that calls for the protection of the water supply, rivers and

other waters will establish a reasoned basis for the passage of a wellhead protection ordinance. New Jersey case law makes it clear that zoning ordinances are “insulated from attack” by a presumption of validity, unless that presumption is overcome by showing that the zoning ordinance is “clearly arbitrary, capricious or unreasonable, or plainly contrary

to the fundamental principles of zoning or the statute.” Riggs v. Township of Long Beach, 109 N.J. 601, 610-611 (1988). Developing a strong ordinance with clear language will help minimize the likelihood of it being challenged. There are two ways to strengthen the likelihood of the ordinance being upheld. The first way is to ensure that the use in question is consistent with the master plan. The second is to build a “record” that demonstrates both the need for the ordinance and the thoughtfulness used in its design. Inclusion of a conservation plan element in the master plan that calls for

the protection of the water supply, rivers and other waters will establish a reasoned basis for the passage of a wellhead protection ordinance. This principle applies to a municipality’s authority to pass land use ordinances designed to protect the environment. However, it should be noted that in the Township of Franklin v. Hollander (172 N.J. Super 147 (2002) p. 11) it was determined that the New Jersey Right to Farm Act (N.J.S.A. 4:1C-1-10) “preempts municipal land use authority over commercial farms.” Therefore, municipalities may not pass

land use ordinances directly dealing with commercial farms. Discussion of these four cases helps demonstrate how municipalities can successfully implement land use ordinances to protect the environment. Inclusion of a conservation plan element in the master plan that calls for the protection of the water supply, rivers and other waters will establish a reasoned basis for the passage of a wellhead protection ordinance.


Case Law

“Inclusion of a conservation plan element in the master plan that calls for the protection of the water supply, rivers, and

other waters will establish a reasoned basis for the passage of a wellhead protection ordinance…”

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I n Kirby v. Township Committee of Bedminster, (341 N.J. App. Div. 276

(2000), a zoning ordinance was passed in part to preserve the environmental health of the municipality. The municipality rezoned a portion of the township from an R-3 Rural Residential Zone, which permitted one residence for every three acres, to an R-10 Rural Residential Zone, which permits one residence for every ten acres. The planning board determined that lower density would serve a number of resource protection objectives. The Township Committee also consulted the State Planning Commission (SPC) for its opinion on the rezoning. The SPC found that both Bedminster’s Master Plan and the rezoning provisions were consistent with the State Development and Redevelopment Plan. The trial judge found the steps taken by the Township demonstrated “an orderly consideration of all the relevant material, consultation with experts, dialogue with Somerset and New Jersey planning officials, and solicitation of public input – all leading to the enactment of the R-10 zone.” Kirby at 287.

Like many zoning cases, Kirby demonstrates that a thorough record of the reasons for the zoning will make any ordinance more likely to withstand a challenge in court. In Dock Watch Hollow Quarry Pit v. Township of Warren, 142 N.J. Super. 103 (1976), an ordinance regulating the operation of quarries within the Township was challenged. The quarry in question had been operating at the time the Townsh ip pa s sed the ordinance and was declared a nonconforming use and a l l o w e d t o c o n t i n u e operation. The owners of the quarry argued that because the quarry was already found to be a nonconforming use it was immune from any future zoning restrictions. The court rejected this argument, stating “[n]onconforming uses are clearly subject to such police power regulations, including those designed for the p r e s e r v a t i o n o f t h e env i ronment and the protection of ecological values.” (Dock Watch at 117.) Thus, a municipality’s discretion to exercise its police power to protect the public health and welfare of its residents is likely to be

recognized by a court and environmentally related ordinances could be found valid on these grounds. In Rumson Estates, Inc. v. Mayor and Council of the Borough of Fair Haven et al, A-159 (177 N.J. 338 (2003) p. 12), and Ferraro Builders, LLC v. Borough of Atlantic Highlands Planning B o a r d, A - 4 5 ( 2 0 0 2 ) , (consolidated in the New Jersey Supreme Court in 2003) the court upheld a soil erosion and sediment control ordinance on the grounds that it was seeking to promote the public health, safety, morals, and general welfare. This recent holding reaffirmed the legitimacy of using municipal police power authority to regulate land use through zoning boards for the protection of environmental resources. This case shows that wellhead protection ordinances that can seek to promote the public health, safety, morals, and general welfare would probably be viewed as a valid exercise of police powers in the New Jersey Supreme Court.

Case Law


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I n Fuel Merchants Association of New Jersey v. Washington Township, NJ Superior Court, the presiding judge, George Stranger, struck down a wellhead protection ordinance passed by Washington Township. The Ordinance was passed after unsafe levels of radium were

found in some community water supply wells. The Superior Court Order indicates that the Ordinance was struck down for the following reasons:


Case Law

When implementing a wellhead protection ordinance, municipal planners should take care to: give proper notice to citizen’s when land use restrictions are imposed,

get permission from DEP for imposing stricter standards for underground fuel storage tanks than DEP does, and tailor the ordinance as narrowly as possible while making sure to include detailed justifications for exercising police power authority.

� Failure to provide notice in accordance with N.J.S.A. 40:55D-62.1 prior to enactment. � Said ordinance conflicts with or is preempted by the following State Regulations:

New Jersey Underground Storage Tank Law, N.J.S.A. 58:10A-31 et seq. New Jersey Right to Farm Act, N.J.S.A. 4:1C-1 et seq. New Jersey Water Quality Planning Act, N.J.S.A . 58:11A-1 et seq. New Jersey Soil Erosion and Sediment Control Act N.J.S.A. 4:24-39 et seq. New Jersey Solid Waste Management Act, N.J.S.A. 13:1E-99 et seq.

� Ordinance exceeds municipal powers designated under the MLUL, N.J.S.A. 40:55D-1 et seq.

� “The Ordinance is unconstitutionally vague and overly broad, failing to provide suffi-cient standards and norms.”

� “The Ordinance imposes hopelessly burdensome and unconstitutionally vague reporting and administrative requirements.”

� “The inclusion of various uses as Regulated Land Uses is arbitrary and unreasonable.” � “The Court has specifically found the definition for ‘Regulated Substances’ to be fatally

deficient and to infect the entirety of the Ordinance.”

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T he federal Safe Drinking Water Act Amendments (SDWA) of 1986 (Section 1428, P.L. 93-523, 42 USC 300 et. seq.) mandate that states develop a Wellhead Protection Plan (WHPP) for public ground water drinking sources. Specific elements of a WHPP

include: defining the land area to be protected, identifying and locating potential contaminant sources within the delineated area, managing contaminant sources, and planning for emergencies and future demands. In 1991, the United States Environmental Protection Agency (EPA) approved New Jersey’s Wellhead Protection Plan. 15 In 1996, the SDWA was further amended to include a requirement for states to develop a Source Water Assessment Program (SWAP) to monitor all sources, surface and ground water, of drinking water used by public water systems. These amendments obligate states to determine the susceptibility of drinking water systems to inventoried contaminants, in addition to taking the wellhead protection measures required by the 1986 Amendments to the SDWA. Moreover, states are obliged to release the results of source water assessments to the public.

III. LEGAL AUTHORITY: SUPPLEMENTAL AUTHORITY

In 1981 the New Jersey legislature adopted the Water Supply Management Act (N.J.S.A. 58:1A-1 et seq.) in recognition of the need to ensure an adequate, clean, and reliable water supply for New Jersey citizens. This statute authorizes the Commissioner of the New Jersey Department of Environmental Protection (NJDEP) to “adopt, amend, or repeal, pursuant to the “Administrative Procedure Act,” P.L.1968, c. 410 (N.J.S.A. 52:14B-1 et seq.) rules and regulations to control, conserve, and manage the water supply of the State and the diversions of that water supply to assure the citizens of the State an adequate supply of water under a variety of conditions and to carry out the intent of this act.” NJ DEP issued rules and regulations may include, but are not limited to: S “Standards and procedures to be followed by diverters to ensure that… The water quality of the water source is maintained and the water standards for the use of the water are met.” S “Standards and procedures to be followed to maintain the minimum water levels and flow necessary to provide adequate water quantity and quality.” S “Standards and procedures governing the maintenance of adequate capacity by, and withdrawal limits for, water purveyors.” S “[Measures to] Evaluate and determine the adequacy of ground and surface water supplies and develop methods to protect aquifer recharge areas.” (N.J.S.A. 58:1A-15m). Although this statute gives NJ DEP authority over water supply management, it clearly demonstrates legislative support for the protection of ground water resources. Municipal wellhead protection ordinances can aid NJ DEP in ensuring an adequate, clean, and reliable water supply.

15United States EPA. “Summary of State Biennial Reports of Wellhead Protection Program Progress. October 1995-September 1997.” Online Resource. Last accessed June 30, 2003. URL:http://www.epa.gov/safewater/protect/gwr/doc2.pdf

Water Supply Management Act

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Coastal Zone Management Rules

T he NJ DEP established in Chapter 7E of the New Jersey Administrative Code the substantive rules regarding the use and development of coastal resources. Section 8.6 states: “Coastal

development shall demonstrate, to the maximum extent practicable, that the anticipated ground water withdrawal demand of the development, alone and in conjunction with other ground water diversions proposed or existing in the region, will not cause salinity intrusions into the ground waters of the zone, will not degrade ground water quality, will not significantly lower the water table or piezometric surface, or significantly decrease the base flow of adjacent water sources. Ground water withdrawals shall not exceed the aquifer's safe yield.” (N.J.A.C. 7:7E-8.6) A municipal WHPO could limit ground water overextraction, and aid in the prevention of saltwater intrusion in coastal areas, thus supporting the administrative intent of the Coastal Zone Management Rules.

State support for wellhead protection is also found in the Flood Hazard Area Control Act (N.J.S.A. 58:16A-50 et seq.), which creates state standards for identifying flood hazard areas and controlling flooding in these areas. The Act, implemented by the Flood Hazard Area Regulations (N.J.A.C. 7:13-1 et seq.), gives the NJDEP exclusive jurisdiction to establish minimum standards for the adoption of local rules and regulations concerning the

development and use of land within a flood fringe area. Wellhead protection ordinances supplement, and can help to satisfy, requirements of this Act. While exclusive jurisdiction is granted to the NJDEP to set minimum standards for adoption of local rules, municipalities may adopt more restrictive standards than the DEP requirements. (N.J.S.A. 58:16A-56) The Flood Hazard Area Control Act does not apply to development along the Delaware and Raritan Canal, except insofar as such activities affect watercourses that flow into, over, under, or parallel to the canal. (N.J.A.C. 7:13-1.3c) Lands regulated pursuant to The Wetlands Act of 1970 (N.J.S.A 13:9A-1 et seq.), The Waterfront and Harbor Facilities Act (N.J.S.A. 12:5-1 et seq.), or The Coastal Area Facility Review Act (CAFRA, N.J.S.A. 13:19-1 et seq.) are not subject to regulations or acts stemming from The Flood Hazard Area Control Act. (N.J.A.C. 7:13-1.13d).

Flood Hazard Area Control Act

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T he MLUL specifies that the master plan must “include a specific policy statement indicating the relationship of the proposed development of the municipality, as developed in the master plan to… the State Development and Redevelopment Plan.” (N.J.S.A.

40:55D-28d) Water resource protection has significant support in the State Development and Redevelopment Plan (SDRP, March 2001). This plan offers a “Statewide Policy” of relevance to a wellhead protection ordinance. Policy Number 11 entitled Water Resources seeks to “protect and enhance water resources through coordinated planning efforts aimed at reducing sources of pollution and other adverse effects of development, encouraging designs in hazard-free areas that will protect the natural function of streams and wetland systems, and optimizing sustainable resource use.” A list of specific policies within the Statewide Policy Number 11, that support municipalities’ adoption of wellhead protection ordinances, is available in Appendix C.


State Development and Redevelopment Plan

At the regional level, the Delaware and Raritan Canal Commission has jurisdiction to review governmental and private projects within its “Review Zone” that have the potential to cause an adverse impact on the Delaware and Raritan Canal State Park (N.J.A.C. 7:45-1 et seq.). All major projects that fall within designated sections of the “Review Zone” are subject to review by the Commission. The Commission has the authority to review the application of any project with the potential to affect the water quality of the region. (N.J.A.C. 7:45-1.3). Additionally, the New Jersey Administrative Code specifies that in these

areas, municipalities may adopt local ordinances to establish stricter water quality standards than those set forth in the Administrative Code. (N.J.A.C. 7:45-5.4i) A wellhead protection ordinance designed to protect the base flow of ground water to surface waters, and ground water resources in general, is permissible under these regulations.

Delaware and Raritan Canal Commission

“Water resource protection has

significant support in the State Development and Redevelopment Plan…”

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The process of ground water contamination can begin with a simple raindrop. The same rain that provides water to recharge aquifers may bear other, less desirable, elements as well water. Precipitation that infiltrates the ground may carry or pick up contaminants trapped in the pores between soil and other materials. Impervious surfaces, such as parking lots or compacted soils, can expedite the flow of contaminated runoff into nearby waterways and prevent infiltration completely. Low Impact Development (LID) strategies that use pervious paving with underlying filters can help remedy this situation by infiltrating water for recharge, while treating it on the way down. LID varies from site to site, but the concept remains constant: storm water management that aims to mitigate development impacts to land, water, and air.14

The layer of soil or rocks overlying the water table is an aquifer’s primary protection against harmful bacteria, sediment, chemicals, or other forms of pollution. The soil may react directly with, or contain plants or microorganisms that use, some potential pollutants, preventing or slowing the migration of these pollutants into

ground water. However, serious contamination can harm plants and microorganisms, decreasing the time it takes for a contaminant to reach an aquifer. Factors affecting the rate at which recharge reaches ground water, and thus the potential for contamination, include precipitation, soil and aquifer characteristics.

The risk of ground water contamination is also affected by the characteristics of the pollutant in question.

Pollutants that dissolve in water easily, or are water soluble, pose a greater risk of contamination than those that are insoluble, or do not dissolve in water. Additionally, some chemicals are adsorbed, or tightly held, by soil particles. The properties of the element in question and soil characteristics affect adsorption. High adsorption rates mean less pollution reaches ground water. Finally, the volatility of a substance can affect its ability to contaminate an aquifer. If a contaminant is highly volatile, it vaporizes readily, and is more likely to be lost to the atmosphere. However, highly water soluble but volatile contaminants may still reach ground water.

IV. FOUNDATION & PROCESS

14 Low Impact Development Center. Municipal Guide to Low Impact Development. Beltzville, Maryland.

Scientific Rationale

I n developing a WHPO there are two initial steps that will help lay the foundation for the ordinance’s implementation. Ensure that your municipality has the scientific background to support the need for the ordinance. Geologic and hydrologic studies are examples of studies

that will display the extent to which a WHPO is necessary in your municipality. The second step is to ensure that your master plan’s land use section supports such an ordinance. Goals and objectives stating the desire to protect ground water must be clearly stated in the master plan. Policies to implement a WHPO should also be included to strengthen language even further.

“Contamination can harm plants and microorganisms living in soil...which is

an aquifer’s primary protection …”

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FACTORS AFFECTING GROUND WATER RECHARGE

� Texture: the relative proportions of sand, silt, and clay determine the texture of a soil. Sandier, coarser soils tend to have larger spaces between soil particles, allowing contaminated water to percolate through the soil faster than it would in finer textured soils like clay. � Structure: soil containing organic material tends to hold water, and contaminants, in the root zone where they are available to plants for degradation. � Cover: plants and vegetation may be able to biodegrade some contaminants before they reach the water supply.

� Intensity: high intensity precipitation means that more runoff or water is likely to infiltrate the soil, eventually reaching ground water. � Duration: long periods of rainfall tend to saturate soils, allowing contaminants to move more freely throughout ground water. � Frequency: a higher frequency of occurrence means a higher potential for contamination.

� Depth: the closer the water table is to the surface, the less time it will take for a contaminant to reach ground water. This means that there is less time for biodegradation to occur in the unsaturated zone where plants and microorganisms live. � Geologic conditions: Aquifers confined by an impermeable layer of rock or other materials are less susceptible to contamination than unconfined aquifers.

S Precipitation

S Soil Characteristics

S Aquifer Characteristics

Figure 3: Robert Stone and James Myslik. "Assessing the Potential for Ground Water Contamination on Your Farm.” Online Resource. http://www.gov.on.ca/OMAFRA/english/engineer/facts/97-017.htm

P olicy makers should take all of these factors into consideration when deciding what measures to undertake to

protect wells and wellhead areas from contamination. Understanding the area surrounding an aquifer can help policy makers

to understand the magnitude of the threats posed by contamination. Understanding the chemical characteristics of potential pollutants can aid regulators in deciding which pollutants need to be regulated.

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T he municipal master plan is a document created to express a community’s vision. What does the municipality wish to

accomplish and how will they go about obtaining the vision? These questions are answered by the master plan’s several plan elements. The master plan and its elements, through the goals and objectives, guide development to appropriate locations and decide where to preserve critical areas, in order to create or enhance community character. In developing a master plan, a municipality comes to understand what it has, what it wants to preserve, and why. Statements in the master plan should be fairly general to allow flexibility as new information and techniques are developed. Yet, they should be specific enough to be easily and clearly understood by all. The Municipal Land Use Law outlines the required and optional elements of a master plan. There are fourteen elements outlined, but only two (Land Use Element, and Housing Plan Element) are required. The language used in the municipality’s master plan should be specific enough to lay the groundwork for adding a WHPO. A strong Environmental Resource Inventory and Conservation Plan Element will be essential tools in providing the basis and background for the land use element and also for any health ordinance adopted by the municipality. Each Conservation Plan should include strategies to protect water supplies through management of land uses within WHPAs. A municipality that performs an Environmental Resource Inventory should inventory potential pollutant sources for WHPAs within the municipality, using NJDEP’s Source Water Assessment and available local information. Good textual examples from master plans of some New Jersey municipalities are included in the sidebar. In order to protect ground water resources from contamination, a municipality should provide a discussion on (1) Statement of Purpose, (2) Land Use Element, and (3) Conservation Element.


Master Plan � Statement of Purpose [N.J.S.A. 40:55D-28b (1)] that clearly articulates the community’s goals and vision for the future. Stating Goals and Objectives also shows how the master plan draws from the supporting studies and then moves directly to a statement of strategies for later action. (See Appendix D for examples). � Land Use Element [N.J.S.A. 40:55D-28b(2)] describes the land use in relationship to natural features such as topography, soils, geology, ground water recharge, streams, floodplains, wetlands and woodlands. It can include maps of e x i s t i n g a n d p r o p o s e d development in relation to current and proposed zoning ordinances, and recommends standards for development densities. � Conservation Plan Element is an optional element that the MLUL provides for (N.J.S.A. 40:55D-28b.8) which reads as follows: “A conservation plan element providing for the preservation, conservation, and utilization of natural resources, inc luding, to the extent appropriate, energy, open space, water supply, forests, soil, marshes, wetlands, harbors, rivers and other waters, fisheries, endangered or threatened species wildlife and other resources, and which systematically analyzes the impact of each other component and element of the master plan on t h e p r e s e n t a n d f u t u r e preservation, conservation and utilization of those resources.”

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T he Model Ordinance provides a number of ideas for protecting water supply wells in your municipality.

Each municipality should determine its needs through the Environmental Resource Inventory, the Conservation Plan Element, and the Master Plan, and then consider whether and to what extent adoption of the Model Ordinance or some modification of it is appropriate. Municipalities should then discuss the types of wells and activities they want to regulate with their ordinance, examples include: S Public community water supply wells – these may be owned and operated by entities as diverse as mobile home parks, homeowner associations, municipalities, municipal utility authorities, county utility authorities, and investor-owned water utilities. S Public non-community water supply wells – these may be owned by hospitals, schools, municipalities, other institutions, and businesses (for employee and client use). S Clusters of domestic wells – though individually small, can supply as much water as a public community water supply well when clustered. If they are tightly clustered, then many people can be at risk from pollution events. S Individual domestic wells – other residential wells that are not clustered; these are the hardest to protect because they tend to be scattered across the municipality. Other factors that municipalities should discuss include: delineation of wellhead protection areas, impacts on and requirements for land use, as well as integrating protection areas.

WHPA Delineation Methods: NJGS has established technically defensible delineation methods for public community and noncommunity water supply wells, and indeed has completed thousands of WHPA delineations across the State. Using these delineations can help protect a municipality’s delineations from challenge. Less work has been completed on clusters of domestic wells, but most of the scientific rationale for WHPA delineations affecting public supply wells can be applied to domestic well clusters. The model ordinance developed by the Hunterdon County Environmental Toolbox project provides some possible approaches to this delineation question. Impacts on Proposed Land Uses: Municipalities must decide whether the WHPO will prohibit, allow with restrictions, or allow specific types of new land uses within the WHPA. New land uses are easier to control than existing land uses. Some types of land uses are intrinsically in conflict with wellhead protection, such as septic systems within Tier 1 (the closest tier) because of bacterial and virus contamination, or major hazardous waste facilities. Others can be allowed if additional requirements are imposed, ranging from sequestration of hazardous materials to extra monitoring to upgraded spill response capabilities. Examples in Appendix E provide additional ideas.


Policy

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Policy (Continued)

Integration with Land Preservation: Municipalities may decide to preserve lands where WHPAs include unpreserved, undeveloped parcels. This step ensures that future use of the properties will be sensitive to ground water protection. Municipalities may also require that large subdivisions or construction projects within WHPAs must move buildings out of the WHPA onto adjacent parts of the property. Through either mechanism, the WHPA can be protected from harmful land uses in perpetuity, and will also tend to maximize clean ground water recharge within the WHPA.

Requirements for Existing Land Uses: Zoning, subdivision and site plan ordinances cannot impose new requirements on existing land uses, unless a proposal is made to change the land use in a way that triggers Planning Board or Zoning Board of Adjustment review. For all other existing land uses, the municipality can trigger new requirements through a health ordinance or another ordinance approach that uses the municipality’s police power (see Section III.A.1). The local Board of

Health, fire department or other police power agency can be involved in im-plementing the ordinance. The largest difference in WHP approaches for new and existing land uses is that harmful new land uses can be prohibited, but existing land uses cannot be regulated out of existence – they are better regulated to ensure that hazardous substances on site are sequestered, treated before discharge, or prevented from entering the ground water if released. Monitoring requirements should be considered as well.

Adopting a Wellhead Protection Ordinance To pass a WHPO in your municipality it must be introduced, or have a first reading, at which time a public hearing date is set. A public hearing or second reading must take place at least ten days after the introduction or first reading of the ordinance and notice of the hearing must be given in the official newspaper ten days in advance of the hearing. If the ordinance imposes substantial limitations on varying types of land use, tantamount to a zoning change, a municipality may be required to give proper notice to affected residents. After the ordinance is introduced, the planning board is given 35 days to review and comment. The ordinance must be published in an official newspaper by title and include either a summary of the substance or the entire text of the ordinance. Informal copies of the proposed ordinance must be made available to the public at the municipal offices. After the public hearing or second reading, the ordinance is then voted on and is passed, defeated or revised. If significant changes are made to the ordinance during the public hearing, it will have to be reintroduced. After the ordinance is passed, the governing body must publish the title and include either a summary of the substance or the entire text of the ordinance. Failure to meet these procedural requirements could result in the ordinance being struck down if it were challenged in court.

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When introducing a wellhead protection ordinance, your municipality should consider implementing a public information campaign to explain the benefits of a WHPO, and how it could mitigate the adverse impact of human activity on ground water resources. When undertaking public education, community leaders should make sure to inform the public about the specific components of their wellhead protection plan. Distributed information should include identifications of the potential WHPAs and descriptions of threats to these areas. It might also include “how to” information on mitigating threats to WHPAs. These materials might target issues such as water conservation, proper waste disposal, alternatives to hazardous fertilizers or pesticides, and best management practices of land in WHPAs. When citizens understand the importance of ensuring high levels of water quality, wellhead protection ordinances and programs will be more likely to succeed. Options for educating citizens about wellhead

protection include: public meetings, radio, newspaper, television advertisements, or newspaper editorials on wellhead protection. Information can also be distributed through mailings or utility bill stuffers, and at school assembly programs. Ordinances protecting ground water resources should be viewed as part of a larger picture, which includes meaningful conservation of the environment in a municipality. As a result of the interconnections in the environment, additional ordinances or land use “tools” should be considered as complementary to the wellhead protection ordinance in order to better ensure that a community achieves its desired conservation objectives. Your community needs to determine what its goals are for protecting the environment and the next steps it should take to reach these goals. See Appendix E for an Implementation Checklist that will assist your municipality in ensuring the appropriate steps are taken.


Implementation

� Stream Corridor Protection � Soil Erosion & Sediment Control � Stormwater Management � Usable Lot Restrictions � Clustering/Lot Size Averaging

� Impervious cover limitations � Shade Tree/Woodland Protection � Ground Water Recharge � Septic System Maintenance & Monitoring

Additional supporting land use ordinances include, but are certainly not limited to:

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T here are several ways to design a wellhead protection ordinance and the approach taken by the municipality should reflect the amount of control it wishes to retain over the wellhead protection area. While townships and boroughs may decide to adopt measures specifically

suited to their particular community, generally the organization of a WHPO will have the same basic structure including a purpose section, administration, definitions, design standards, procedure, enforcement, and penalties sections.

TYPICAL WHPO STRUCTURE: I. The Title II. The Authority Section III. The Legislative Purpose Section IV. The Administration Section, or Applicability Section V. The Definitions Section VI. The Performance Standards Section VII. The Procedure Section VIII. The Regulated Land Uses IX. The Conditional Land Uses Section X. The Exemptions Section XI. The Maintenance and Inspection Section XII. The Enforcement Procedures and Penalties Section

The Title, in addition to identifying the municipality, may include the identification number and a clear indication of to what the ordinance pertains. For example, if there are separate sets of regulations for the wellfields and the zone of contribution for the zone of recharge, use Wellhead Operation District for wellfields and Wellhead Protection District for the zone of contribution. The Authority Section specifies the enabling legislation for a wellhead protection program. The N.J. Statutes Annotated (N.J.S.A. 26:3 et seq.) specifically authorizes the local Board of Health to implement a wellhead area protection program. Refer to the Authorities Section of this implementation package for more information.

V. ORDINANCE STRUCTURE AND REGULATION

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The Legislative Purpose Section clearly states the municipality’s intentions for enacting wellhead protection. Purposes include, but are certainly not limited to any of the following general goals: protecting potable water supplies, protecting industrial and agricultural water supplies, controlling subsidence or pollution, protecting ecosystem resources and services, and promoting the safety, public health and general welfare of the community. This section can be short and general, however, it may also continue with a list of specific purposes such as: improving the water quality in aquifers, preserving ground water resources, reducing public expenses used to fix impaired waterways, and increasing the taxable value of property by maintaining the environmental surroundings. Because the purpose section justifies the ordinance and can be referred to in a court if necessary, the specific list of purposes may prove helpful.

“It is hereby declared that ground water pollution is a detriment to the health, welfare, and comfort of the residents of the County of Bergen. For the purposes of preventing and reducing ground water pollution, it is hereby declared to be the policy of the County of Bergen to minimize ground water pollution through encouragement of intermunicipal and interagency cooperation as described herein. Since ground water is not constrained to municipal boundaries, it is critical that all municipalities and agencies with jurisdiction over the primary recharge areas jointly seek to enforce the provisions of aquifer protection programs, such as this Wellhead Protection Ordinance.” Wellhead Protection Ordinance of the County of Bergen. 1998. “The purpose of the Wellhead Protection Overlay District is to protect public health, welfare and safety of the citizens and institutions that are customers of the Washington Township Municipal Utilities Authority (WTMUA) and community water systems in neighboring communities, by regulating the land use and the storage, handling, use and/or production of regulated substances within Wellhead Protection Areas for existing and proposed municipal wells. The intent of this Ordinance is to protect community water supplies from contamination. This Ordinance is also meant to encourage coordinated protection efforts within neighboring municipalities.” An Ordinance Establishing A Wellhead Protection Overlay District. Washington Township, Gloucester County. 2002.

Examples:


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The Administration Section can include several subsections one of which, the applicability section, identifies who shall be accountable for approving conditional use under the ordinance. There can be a subsection here about amendments to the plan and who has the authority to approve such amendments. Not all ordinances have an administration section, as there are ways to include this information in other sections.

The Definitions Section lists the key terms used within the ordinance. Definitions should be clear and understandable as they are the fundamental building blocks for other sections of the ordinance. Any special terms introduced within an ordinance should be thoroughly explained in this section. Also, any rules applying to the text may be listed here, for example indicating that the word “shall” infers something mandatory and the word “may” connotes something optional.

“Sec. 3 Applicability a. This Section applies to all uses and activities located or proposed within the

areas designated as Wellhead Protection Areas on an overlay district map entitled “Wellhead Protection Area Delineation”, adopted by the Council of the Township of Washington on September 5, 2002, and as defined in Section 2.

b. It shall be the responsibility of any persons owning real property and/or owning or operating a business within Washington Township to make a determination of the applicability of the Wellhead Protection Area Delineation as it pertains to the property and/or business under his ownership or operation, and his failure to do so shall not excuse any violations of this Section.

c. Where the boundary of any Tier within a Wellhead Protection Area Delineation divides any property, respective portion(s) of the property shall be considered to lie within the corresponding Tier or Tiers defined in the Wellhead Protection Area Delineation.”

An Ordinance Establishing A Wellhead Protection Overlay District. Washington Township, Gloucester County. 2002.

Example:


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The Performance Standards Section delineates the general guidelines to be followed within wellhead protection areas. These may include actions such as implementing best management practices, or standards such as those permissible for storing hazardous substances. This section should be written with as much background information as possible. Scientific data will help support the section as well.

“Section V: Commercial/Industrial Performance Standards A. Best Management Practices 1. All commercial and industrial properties located either wholly or partially within a Wellhead Protection Area shall operate in a manner consistent with the Best Management Practices described in the applicable guidance document(s) from the following list:

NJ DEP Stormwater and Nonpoint Source Pollution Control Best Management Practices Manual. NJ DEP Discharge Prevention Containment and Countermeasures (N.J.A.C. 7:1E-4.2) USEPA Spill Prevention Control and Countermeasures (40 CFR 112.3 et seq.)”

Wellhead Protection Ordinance of the County of Bergen. 1998.

Example:

The Procedure Section necessitates acquiring a land use permit before undertaking a project of potential threat to the quality or quantity of the ground water supply. This section mandates the submittal of some sort of development plan or an environmental assessment to outline any control measures a developer will take. Mostly, municipalities explain the aspects to be included in a plan, and delegate who will conduct inspections of the site to assure that the control measures are being followed.

“A. As of the date of adoption of this Ordinance, within a Wellhead Protection Area Delineation, certain land uses shall be considered regulated Land Uses, and shall be prohibited in Tiers 1, 2, 3 or may be permitted only by a Conditional Use Approval by the Planning Board… even if they are permitted uses in the underlying Area Delineations.

B. The uses prohibited in the Wellhead Protection Area Delineation Tiers 1, 2 or 3, or that may be allowed by a Conditional Use approval by the Planning Board, represent the state of knowledge and the most common description of said uses. To screen for uses, no use shall be permitted in this District without first submitting its site and operational plans to the Washington Township Environmental Commission (WTEC) and Washington Township Environmental Engineer for review and Planning Board for review and approval.”


Example:


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The Regulated Land Uses specifies which activities are prohibited within a wellhead protection area. See Appendix E, Wellhead Protection Ordinances: At-A-Glance, for a comparison of commonly prohibited land uses for various New Jersey statutes.

The Conditional Land Uses Section specifies which activities conducted within a wellhead protection area require a land use permit. This section should detail the conditions under which a planning board or other local authority may authorize a conditional use permit approval. See Appendix E, Wellhead Protection Ordinances: At-A-Glance, for a comparison of common land uses for which Conditional Use Permits are required.

The Exemptions Section specifies persons (such as local, state, or federal government agencies) or activities (such as residential fertilizer application) that are exempt from the provisions of the ordinance. This section frequently exempts existing nonconforming land uses. Some ordinances, such as that proposed by the South Branch Watershed Association, require the persons practicing existing nonconforming land uses to meet best management practices. See Appendix E, Wellhead Protection Ordinances: At-A-Glance, for a comparison of common exemptions from Wellhead Protection Ordinance provisions.

The Maintenance and Inspection Section specifies who will maintain all wellhead area protection measures, how long the measures should be maintained, and how the measures ought to be implemented. Additionally, this section specifies who has the authority to inspect each project and how to go about inspections.

Example:

“Section VIII: Duties of the Director; Section IX: Inspections and Right of Entry

1) Emergency inspections may be authorized without warrant if the Director has reason to believe that a condition exists, which poses an immediate threat to life, health or safety...”



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The Enforcement Procedures and Penalties Section creates a list of penalties for violating any aspect of the ordinance. Enforcement procedures are also explained here. A municipality should set forth the legal proceedings to be followed for an ordinance violation.

“Section X: Enforcement 1) The appropriate personnel shall make prompt investigation if there is a

belief that any person is in violation hereof. 2) Civil action may take place if, upon inspection, a condition which is in

violation of this Ordinance is discovered. 3) Nothing in this Ordinance shall be construed to preclude a

municipality’s right, pursuant to N.J.S.A. 26:3A-25, to initiate legal proceedings hereunder in Municipal Court.

4) Each violation is a separate offense.” “Section XI: Penalty Determination

1) Any person, who violates any of the provision of this Ordinance, or fails to comply therewith or with any of the requirements thereof, shall receive a penalty. 2) Each day is a separate offense. 3) A prior violation of the same provision having occurred within five (5) years immediately preceding the current violation shall be considered in determining the rank of the current violation.”

“Section XII: Violations Subject to Penalty

1) Non-notification of a spill, discharge, or release within a Wellhead Protection Area.

2) Failure to comply with additional well water sampling as directed by the BCDHS.

3) Cause, suffer, allow, or approve a prohibited use in a Wellhead Protection Area.

4) Failure to comply with applicable Best Management Practices manual as directed by the BCDHS.

5) Failure to provide entry or access for the purpose of inspection.” An Ordinance Establishing A Wellhead Protection Overlay District. Washington Township, Gloucester County. 2002.

Example:


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VI. GLOSSARY

Aquifer - An underground geological formation of sand, soil and gravel, able to store and yield water. Base flow - Streamflow coming from ground water seepage into a stream or river. Ground water flows underground until the water table intersects the land surface and the flowing water becomes surface water in the form of springs, streams/rivers, lakes and wetlands. Baseflow is the continual contribution of ground water to rivers and is an important source of flow between rainstorms. Confined aquifer - An aquifer that has an impermeable, or confining, layer of rock or other materials between the aquifer and the surface or water table Non-point Source Pollution - Pollution that is not traceable to an identifiable source Point Source Pollution - Direct contamination of a water supply. Unconfined aquifer - An aquifer in which the upper aquifer boundary is the water table. Water table - The top of an unconfined aquifer; indicates the level below which soil and rock are saturated with water. The upper surface of the saturation zone. Wellhead - A protected surface and subsurface zone surrounding a well or well field supplying a public water system to keep contaminants from reaching the well water.

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VII. ACKNOWLEDGEMENTS

We wish to thank the Geraldine Dodge Foundation and the Fund for New Jersey for their generosity in funding this project. Special thanks are also owed to our intern Stephanie Tatham, Board of Trustee member, Bart Bennett, and our Executive Director, George Hawkins, for their support and suggestions. We would also like to thank the Groundwater Subcommittee of the Hunterdon County Toolbox Committee for a great deal of prep work already accomplished for the Hunterdon County municipalities. In combining our efforts to create a model Wellhead Protection Ordinance, we have designed a most comprehensive model that will benefit the municipalities of the Stony Brook-Millstone Watershed.

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VIII. RESOURCES

Publications of Interest Hunterdon County Profile: Natural Resources, prepared by the Hunterdon County Planning Board (December 2003 download from the Web site http://www.co.hunterdon.nj.us/planning/smarthgrowth/hunterdonprofile.htm New Jersey Department of Environmental Protection, Source Water Assessment Program. www.state.nj.us/dep/swap/.

New Jersey Department of Environmental Protection, 1991, Wellhead Protection Program Plan New Jersey Geological Survey, Guidelines for Delineation of Wellhead Protection Areas in New Jersey. (Adobe PDF file) www.state.nj.us/dep/njgs/pricelst/index.htm (last accessed on March 30, 2004). Raritan Basin Watershed Management Plan: www.raritanbasin.org/management_plan.htm Raritan Basin Technical Reports: www.raritanbasin.org/technical_reports.htm Upper Delaware Technical Reports: www.upperdelaware.org/Documents/tech_rep/index.htm

Organizations of Interest Hunterdon County Department of Health: www.co.hunterdon.nj.us/health.htm Hunterdon County Planning Board: www.co.hunterdon.nj.us/planning.htm New Jersey Geological Survey: www.nj.gov/dep/njgs North Jersey Resource Conservation & Development Council: www.northjerseyrcd.org/ Raritan Basin Watershed Alliance: www.raritanbasin.org Stony Brook-Millstone Watershe Association: www.thewatershed.org South Branch Watershed Association: www.sbwa.org United States Geologic Survey, New Jersey Water Division: http://nj.water.usgs.gov/ Upper Delaware Watershed Management Project: www.upperdelaware.org/ Upper Raritan Watershed Association: www.urwa.org

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APPENDIX A: EXAMPLES OF MODEL WELLHEAD PROTECTION ORDINANCES

MODEL MUNICIPAL WELL HEAD PROTECTION ORDINANCE Prepared by Passaic Valley Ground Water Protection Committee 2003

The purpose of this Ordinance is to protect the public health, safety and welfare through the protection of the ground water resources underlying the municipality, and to ensure a supply of safe and healthful drinking water for the present and future generations of local residents, employees and the general public in this municipality, as well as users of these water supplies outside this municipality. Areas of land surrounding each public community well, known as Well Head Protection Areas (WHPAs), from which contaminants may move through the ground to be withdrawn in water taken from the well, have been delineated. Through regulation of land use, physical facilities and other activities within these areas, the potential for ground water contamination can be reduced. The purpose of the regulations contained in this ordinance is to prevent the migration of potential pollutants from areas within a WHPA into ground water that is withdrawn from a public community well. Any applicant for a permit requesting a change in land use or activity which is subject to review under the provisions of the Municipal Land Use Law and other pertinent regulations, which is located within a delineated WHPA, and which involves a Potential Pollutant Source (PPS) shall comply with the requirements of this ordinance. This ordinance requires the following: ? Any change in land use or activity that introduces a Major or Minor PPS shall be prohibited within a Tier 1 WHPA. ? Any change in land use or activity that introduces a Major PPS shall be prohibited within a Tier 2 WHPA. ? Any change in land use or activity that involves any PPS within any WHPA, that is not prohibited, shall comply with Best Management Practice Standards. This ordinance applies to future activities, not existing uses.

Funding for this information sheet was provided under a Section 319 (h) Grant by the New Jersey Department of Environmental Protection, Division of Watershed Management. For further information about the Model Municipal Well Head Protection Ordinance, contact: Louisa Lubiak, Passaic River Coalition 246 Madisonville Rd., Basking Ridge, NJ 07920 Phone/Fax (908) 766-7550 E-mail: [email protected]

SECTION I. STATEMENT OF FINDINGS The governing body of [municipality] finds that: A. The ground water underlying this municipality is a major source of existing and future water supplies, including drinking water. The ground water underlying this municipality lies within the Buried Valley Aquifer Systems of the Central Passaic River Basin, which are designated as a "sole source" aquifer under Section 1424(e) of the federal Safe Drinking Water Act of 1974. B. The ground water aquifers are integrally connected with, are recharged by, and flow into the surface waters, lakes and streams, which also constitute a major source of water for drinking, commercial and industrial needs. C. Accidental spills and discharges of toxic and hazardous materials may threaten the quality of these ground water supplies and related water sources. D. Contaminated water from any source is a detriment to the health, welfare and comfort of the residents of this municipality, and other users of these water resources. E. Spills or discharges of hazardous substances or hazardous wastes may contaminate or pollute water. As a preventive measure, the proximity of such materials to sources of water supplies, such as public community wells, should be restricted so that there will be sufficient time to find and clean up such spills or discharges before water supplies become contaminated.

SECTION II. PURPOSE

The purpose of this Ordinance is to protect the public health, safety and welfare through the protection of the ground water resources underlying the municipality to ensure a supply of safe and healthful drinking water for the present and future generations of local residents, employees and the general public in this municipality, as well as users of these water supplies outside this municipality. Areas of land surrounding each public community well, known as Well Head Protection Areas (WHPAs), from which contaminants may move through the ground to be withdrawn in water taken from the well, have been delineated. Through regulation of land use, physical facilities and other

Section I. Statement of Findings Section II. Purpose Section III. Statutory Authority Section IV. Definitions Section V. Establishment of Well Head Protection Areas and Maps

Section VI. Regulation of Well Head Protection Areas for Public Community Wells

Section VII. Potential Pollutant Sources Listed Section VIII. Best Management Practice Performance Standard Section IX. Operations and Contingency Plan Section X. Enforcement Section XI. Severability Section XII. Effective Date Appendix A. Types of Facilities that are Major Potential Pollutant Sources Appendix B. New Jersey Department of Environmental Protection Delineations of

Well Head Protection Areas around Public Community Water Supply Wells

activities within these areas, the potential for ground water contamination can be reduced. The purpose of the regulations contained in this ordinance is to prevent the migration of potential pollutants from areas within a WHPA into ground water that is withdrawn from a public community well.

SECTION III. STATUTORY AUTHORITY

The municipality of [municipality] is empowered to regulate these activities under the provisions of the New Jersey Municipal Land Use Law, N.J.S.A 40:55D-1 et seq., which authorizes each municipality to plan and regulate land use to secure a safe and adequate drinking water supply for its residents. The Board of Health of this municipality has autonomous power granted by the State Legislature to develop this Ordinance to protect public health, safety and welfare, as set forth in the New Jersey Local Boards of Health Law, N.J.S.A. 26:3-1 et seq., and the New Jersey County Environmental Health Act, N.J.S.A. 26:3A2-21 et seq.

SECTION IV. DEFINITIONS

Administrative Authority-- The Planning Board or Board of Adjustment and the Board of Health, acting jointly and in consultation, with all of the powers delegated, assigned, or assumed by them according to statute or ordinance. Applicant-- Person applying to the Board of Health, Planning Board, Board of Adjustment or the Construction Office proposing to engage in an activity that is regulated by the provisions of this ordinance, and that would be located within a regulated Well Head Protection Area. Aquifer-- A formation, group of formations, or part of a formation that contains sufficient saturated permeable rock, sand, or gravel which is capable of storing and transmitting usable quantities of water to wells and springs. Best Management Practices (BMP) -- These are performance or design standards established to minimize the risk of contaminating ground water or surface waters while managing the use, manufacture, handling or storage of hazardous substances or hazardous wastes. Contamination-- The presence of any harmful or deleterious substances in the water supply. Development-- The carrying out of any construction, reconstruction, alteration of surface or structure or change of land use or intensity of use. Discharge-- Any intentional or unintentional action or omission, unless pursuant to and in compliance with the conditions of a valid and effective Federal or State Permit, resulting in the releasing, spilling, pumping, pouring, emitting, emptying or dumping of a hazardous substance into the waters or lands of the State or into waters outside the jurisdiction of the State when damage may result to the lands, waters or natural resources within the jurisdiction of the State. Ground Water-- Water contained in interconnected pores of a saturated zone in the ground, also known as well water. A saturated zone is a volume of ground in which the voids in the rock or soil are filled with water at a pressure greater than atmospheric. Hazardous Substance-- Any substance designated under 40 CFR 116 pursuant to Section 311 of the Federal Act, the Spill Compensation and Control Act, N.J.S.A. 58:10-23.ll et seq., or Section 4 of the State Act. Substances listed include petroleum, petroleum products, pesticides, solvents and other substances. Hazardous Waste-- Any solid waste that is defined or identified as a hazardous waste pursuant to

the Solid Waste Management Act, N.J.S.A. 13:1E et seq., N.J.A.C. 7:26-8, or 40 CFR Part 261. Maximum Contaminant Level-- Maximum permissible level of a contaminant in water which is delivered to any user of a Public Community Water System. NJDEP-- New Jersey Department of Environmental Protection. Person-- Any individual, public or private corporation, company, partnership, firm, association, owner or operator, political subdivision of this State, and any state, Federal or interstate agency or an agent or employee thereof. Polluted Water-- In the content of drinking water, water is polluted when a pollutant is present in excess of a maximum contaminant level or bacteriological limit established by law or regulation. Potential Pollutant Source (PPS)-- Activity or land use which may be a source of a pollutant that has the potential to move into ground water withdrawn from a well. For the purposes of this ordinance Potential Pollutant Sources are defined in Section VII. PPS-- Potential Pollutant Source Public Community Well-- A public water supply well which serves at least 15 service connections used by year-round residents or regularly serves at least 25 year-round residents. SIC-- Standard Industrial Classification. Sole Source Aquifer-- Any drinking water aquifer upon which more than 50% of a population group depends and for which there is no practicable or affordable alternate water supply, as certified by the United States Environmental Protection Agency. Time of Travel (TOT)-- The average time that a volume of water will take to travel in the saturated zone from a given point to a pumping well. Tier 1 Well Head Protection Area-- That area of land within a WHPA from which ground water may enter the well within 2 years. (See maps referenced under Section V.) Tier 2 Well Head Protection Area-- That area of land within a WHPA from which ground water may enter the well within 5 years. (See maps referenced under Section V.) Tier 3 Well Head Protection Area-- That area of land within a WHPA from which ground water may enter the well within 12 years. (See maps referenced under Section V.) Well Head-- The well borehole and appurtenant equipment. Well Head Protection Area (WHPA)-- An area described in plan view around a well, from which ground water flows to the well and ground water pollution, if it occurs, may pose a significant threat to the quality of water withdrawn from the well. WHPA-- Well Head Protection Area. SECTION V. ESTABLISHMENT OF WELL HEAD PROTECTION AREAS AND MAPS A. Well Head Protection Area Maps: 1) The delineations of Well Head Protection Areas for public community wells, which were published by the New Jersey Geological Survey of the New Jersey Department of Environmental Protection, are incorporated herein and made a part of this Ordinance. They are designated as follows: New Jersey Well Head Protection Areas, Edition 2, Geospatial Data Presentation, New Jersey Digital Data Series, DGS02-2, dated 18 June 2002. A description of these data, which has been excerpted from these materials, is appended as Appendix B. A map of the Well Head Protection Areas located within [municipality] is included as part of this Ordinance, is appended as Figure [?], and is adopted as of [date]. Maps of the municipality on which these delineations have been overlain shall be on file and maintained by the offices of the Clerk of [municipality], and of the Board of Health of [municipality].

2) Well Head Protection Areas, as shown on the maps described in Section V.A(1), shall be considered to be superimposed over any other established zoning district. Land in a Well Head Protection Area may be used for any purpose permitted in the underlying district, subject to the additional restriction presented herein. B. Assignment of Restriction within Well Head Protection Areas:

Properties located wholly or partially within a Well Head Protection Area shall be governed by the restrictions applicable to the Well Head Protection Area.

C. Inclusion of Well Head Protection Area Zoning into Master Plan: The municipal Master Plan provides the legal basis for zoning and land use regulation at the local level. The technical foundation for local well head protection in this municipality should be incorporated into the Master Plan. A technical report on the need for well head protection in [municipality] may be adopted as part of the Master Plan (N.J.S.A 40:55D-28b(11)). The technical report should include the following information:

1) A statement setting forth the rationale and need to protect the public water supply through a program of well head protection for public community wells. 2) Reference to the method used to delineate the Well Head Protection Areas (WHPAs) according to the "tiered" level of protection for public community wells based upon the time of travel (TOT) of ground water, as developed by the New Jersey Geological Survey.

SECTION VI. REGULATION OF WELL HEAD PROTECTION AREAS FOR PUBLIC COMMUNITY WELLS

A. The Administrative Authority for administering the provisions of this Ordinance shall be the Planning Board or Board of Adjustment and the Board of Health of [municipality] acting jointly and in consultation. B. Any applicant for a permit requesting a change in land use or activity, which is subject to review under the provisions of the Municipal Land Use Law and other pertinent regulations of [municipality], [code references], and which is located within a delineated WHPA, as defined in Section V, that involves a Potential Pollutant Source (PPS), as defined in Section VII, shall comply with the requirements of this ordinance. C. Any applicant for a permit requesting a change in land use or activity, which is subject to the requirements of this ordinance, shall file an Operations and Contingency Plan, as required by Section IX, with the Administrative Authority. No permit that allows a change in land use or activity, which is subject to the requirements of this ordinance, shall be granted unless an Operations and Contingency Plan for the proposed change has been approved by the Administrative Authority. Any plan approved by the Administrative Authority shall be kept on file in the office of the [office] of [municipality], and shall be available to the public for inspection. D. Any change in land use or activity that introduces a Major or Minor Potential Pollutant Source (PPS), as defined in Section VII, shall be prohibited within a Tier 1 WHPA. E. Any change in land use or activity that introduces a Major PPS, as defined in Section VII, shall be prohibited within a Tier 2 WHPA. F. Any change in land use or activity that involves any PPS, as defined in Section VII, within any WHPA, that is not prohibited pursuant to Section VI.D. or VI.E., shall comply with the Best Management Practice Standards, as defined in Section IX. G. This Ordinance is supplementary to other laws and Ordinances in this municipality. Where

this Ordinance or any portion thereof imposes a greater restriction than is imposed by other regulations, the provisions of this Ordinance shall supersede. These Rules and Regulations shall in no way effect the limitations or requirements applicable in the underlying municipal land use and zoning districts. SECTION VII. POTENTIAL POLLUTANT SOURCES LISTED

The following are Major and Minor Potential Pollutant Sources (PPS) subject to the requirements of this Ordinance. This listing is consistent with the New Jersey Safe Drinking Water Act, N.J.A.C. 7:10-11.7 through 12.12. A. Major PPSs include: 1) Permanent storage or disposal of hazardous wastes, industrial or municipal sludge or radioactive materials, including solid waste landfills. 2) Collection and transfer facilities for hazardous wastes, solid wastes that contain hazardous materials, and radioactive materials. 3) Any use or activity requiring the underground storage of a hazardous substance or waste in excess of an aggregate total of 50 gallons. 4) Underground fuel and chemical storage and oil tanks regulated by NJDEP under provisions of the Underground Storage of Hazardous Substances Act (N.J.S.A. 58:10A-21 et seq.). 5) Above-ground storage facility for a hazardous substance or waste with a cumulative capacity greater than 2,000 gallons. 6) Any industrial treatment facility lagoon. 7) Any facility with a SIC Code number included under the New Jersey Safe Drinking Water Act Regulations at N.J.A.C 7:10A-1.14, Table II(N), with a toxicity number of II or greater. (See Appendix A.) 8) Automotive service center (repair & maintenance). 9) Landfill. 10) Dry cleaning facility. 11) Road salt storage facility. 12) Cemetery. 13) Highway maintenance yard. 14) Truck, bus, locomotive maintenance yard. 15) Site for storage and maintenance of heavy construction equipment and materials. 16) Site for storage and maintenance of equipment and materials for landscaping. 17) Livestock operation. 18) Quarrying and/or mining facility. 19) Asphalt and/or concrete manufacturing facility. 20) Junkyard/auto recycling and scrap metal facility. 21) Residential or agricultural motor fuel in NJDEP exempted underground storage tanks (i.e., under 1,000 gallons). B. Minor PPSs include: 1) Underground storage of hazardous substance or waste of less than 50 gallons. 2) Underground heating oil storage tank with a capacity of less than 2,000 gallons. 3) Sewage treatment facility. 4) Sanitary sewer system, including sewer line, manhole, or pump station. (See conditions in

Section VII.C.) 5) Industrial waste line. (See conditions in Section VII.C.) 6) Septic leaching field. 7) Facility requiring a ground water discharge permit issued by the NJDEP pursuant to N.J.A.C 7:14A et seq. 8) Stormwater retention-recharge basin. 9) Dry well. (See conditions in Section VII.C.) 10) Storm water line. (See conditions in Section VII.C.) 11) Waste oil collection, storage and recycling facility. 12) Agricultural chemical bulk storage and mixing or loading facility including crop dusting facilities. 13) Above-ground storage of hazardous substance or waste in quantities of less than 2,000 gallons. C. Conditions: 1) Sanitary sewer lines, industrial waste lines and storm water lines may be located no closer than 100 feet to a regulated well, and only if they are constructed of watertight construction (that is steel, reinforced concrete, cast iron, PVC or other suitable material). 2) Manhole and/or connections to a sanitary sewer system are prohibited within 100 feet of a regulated well. 3) Dry wells dedicated to roof runoff and serving residential properties or commercial or industrial properties with SIC codes not listed in Appendix A may be located no closer than 100 feet to a regulated well. SECTION VIII. BEST MANAGEMENT PRACTICE PERFORMANCE STANDARD

Any applicant proposing any change in land use or activity that involves any PPS, as defined in Section VII, that would be located either wholly or partially within any WHPA shall comply with and operate in a manner consistent with the following Best Management Practices: A. All portions or areas of a facility in which hazardous substances or hazardous wastes are stored, processed, manufactured or transferred outdoors, shall be designed so that the discharges of hazardous substances will be prevented from overflowing, draining, or leaching into the ground water or surface waters. B. Outdoor storage, dispensing, loading, manufacturing or processing areas of hazardous substances or hazardous wastes must be protected from precipitation, stormwater flows or flooding. C. Wherever hazardous substances are stored, processe d, manufactured or transferred outdoors, the design features shall include secondary containment and/or diversionary structures which may include but not be limited to: 1) Containers, dikes, berms or retaining walls sufficiently impermeable to contain spilled hazardous substances, for the duration of a spill event. 2) Curbing. 3) Gutter, culverts and other drainage systems. 4) Weirs, booms and other barriers. 5) Lined diversion ponds, lined lagoons and lined retention basins, holding tanks, sumps, slop tanks and other collecting systems. 6) Drip pans. D. Secondary containment and/or diversionary systems, structure or equipment must meet the

following standards: 1) The system must block all routes by which spilled hazardous substances could be expected to flow, migrate, or escape into the ground water or surface waters. 2) The system must have sufficient capacity to contain or divert the largest probable single discharge that could occur within the containment area, plus an additional capacity to compensate for any anticipated normal accumulation of rainwater. 3) In order to prevent the discharge of hazardous substances into ground water, all components of the system shall be made of or lined with impermeable materials sufficient to contain the substance for the duration of a spill event. Such material or liner must be maintained in an impermeable condition. 4) No manufacturing area, processing area, transfer area, dike storage area, or other storage area, or secondary containment/diversion system appurtenant thereto shall drain into a watercourse, or into a ditch, sewer, pipe or storm drain that leads directly or indirectly into a surface or subsurface disposal area, unless provision has been made to intercept and treat any spilled hazardous substances in an NJDEP approved industrial wastewater treatment or pre-treatment facility, or other NJDEP approved facility. 5) Catchment basins, lagoons and other containment areas that may contain hazardous substances should not be located in a manner that would subject them to flooding by natural waterways. E. Stormwater shall be managed so as to prevent contamination of ground water, and so as to be in

accordance with applicable laws and regulations of the State of New Jersey, and of [municipality].

SECTION IX. OPERATIONS AND CONTINGENCY PLAN A. Any applicant proposing any change in land use or activity that involves any PPS, as defined in

Section VII, that would be located either wholly or partially within any WHPA shall submit an Operations and Contingency Plan to the Administrative Authority. This Operations and Contingency Plan shall inform the Administrative Authority about the following aspects of the proposal:

1) Types of PPS proposed for the site; 2) Types and quantities of hazardous substances or hazardous wastes that may be used or stored on site; 3) Means to be employed to contain or restrict the spillage or migration of hazardous substances or hazardous wastes from the site into ground water; 4) Means to be used to contain or remediate accidental spillage of such materials; 5) Means to notify administrative authority about any accidental spillage of such materials; 6) Demonstration that the proposed use and/or activity would employ, to the maximum extent possible, best management practices as set forth in Section VIII, to protect ground water quality in the WHPA and minimize the risk of potential ground water contamination. B. The Administrative Authority shall review, and shall approve or reject any Operations and

Contingency Plan prior to approving or denying the application for a land use change or activity. C. Any Operations and Contingency Plan submitted shall be available for public review and

comment.

SECTION X. ENFORCEMENT

A prompt investigation shall be made by the appropriate personnel of the Health Department of [municipality] , of any person or entity believed to be in violation hereof. If, upon inspection, a condition which is in violation of this Ordinance is discovered, a civil action in the Special Part of the Superior Court, or in the Superior Court, if the primary relief sought is injunctive or if penalties may exceed the jurisdictional limit of the Special Civil Part, by the filing and se rving of appropriate process. Nothing in this Ordinance shall be construed to preclude a municipality's right, pursuant to N.J.S.A 26:3A-25, to initiate legal proceedings hereunder in Municipal Court. The violation of any section or subsection of this Ordinance shall constitute a separate and distinct offense independent of the violation of any other section or subsection, or of any order issued pursuant to this Ordinance. Each day a violation continues shall be considered a separate offense.

SECTION XI. SEVERABILITY

If any section, sentence, clause or phrase of this Ordinance is held to be invalid or unconstitutional by any court of competent jurisdiction, then said holdings shall in no way affect the validity of the remaining portions of this Ordinance.

SECTION XII. EFFECTIVE DATE

This Ordinance shall take effect upon final adoption and publication in accordance with the law on [date]. Appendix A Not Available. Appendix B New Jersey Department of Environmental Protection (NJDEP) Delineations of Well Head Protection Areas (WHPAs) around Public Community Water Supply

Wells Excerpts from: New Jersey Geological Survey, New Jersey Department of Environmental Protection, New Jersey Public Community Water Supply Well Head Protection Areas, Edition 2, Geospatial Data Presentation, New Jersey Digital Data Series, DGS02-2, dated 18 June 2002. Description of WHPAs: A Well Head Protection Area (WHPA) is an area calculated around a Public Community Water Supply (PCWS) well in New Jersey that delineates the horizontal extent of groundwater captured by a well pumping at a specific rate over two-, five-, and twelve-year periods of time. The area of capture is defined using line boundaries and polygon areas generated with the ARC/INFO Geographic Information System (GIS). GIS coverages are produced for each PCWS well and for the set of all PCWS wells in a county using the ARC/INFO UNION command on individual coverages. WHPA delineation methods are described in "Guidelines for Delineation of Well Head Protection Areas in New Jersey (<http://www.state.nj.us/dep/njgs/whpaguide.pdf>). An ARC/INFO point coverage of associated PCWS wells is available as N.J. Geological

Survey Digital Geodata Series DGS97-1 (<http://www.state.nj.us/dep/njgs/geodata/dgs97-1.htm>). Internet Address:

<http://www.state.nj.us/dep/njgs/geodata/dgs02-2.htm> NJDEP Data Distribution Agreement: The Data provided herein are distributed subject to the following conditions and restrictions. I. Description of Data to be Provided: For all data contained herein, NJDEP makes no representations of any kind, including, but not limited to, the warranties of merchantability or fitness for a particular use, nor are any such warranties to be implied with respect to the digital data layers furnished hereunder. NJDEP assumes no responsibility to maintain them in any manner or form. II. Terms of Agreement: 1. Digital data received from the NJDEP are to be used solely for internal purposes in the conduct of daily affairs. 2. The data are provided, as is, without warranty of any kind and the user is responsible for understanding the accuracy limitations of all digital data layers provided herein, as documented in the accompanying cross-reference files (see Section 1.14 CROSS_REFERENCE). Any reproduction or manipulation of the above data must ensure that the coordinate reference system remains intact. 3. Digital data received from the NJDEP may not be reproduced or redistributed for use by anyone without first obtaining written permission from the NJDEP. This clause is not intended to restrict distribution of printed mapped information produced from the digital data. 4. Any maps, publications, reports, or other documents produced as a result of this project that utilize NJDEP digital data will credit the NJDEP's Geographic Information System (GIS) as the source of the data with the following credit/disclaimer: "This (map/publication/report) was developed using New Jersey Department of Environmental Protection Geographic Information System digital data, but this secondary product has not been verified by NJDEP and is not state-authorized." 5. Users shall require any independent contractor, hired to undertake work that will utilize digital data obtained from the NJDEP, to agree not to use, reproduce, or redistribute NJDEP GIS data for any purpose other than the specified contractual work. All copies of NJDEP GIS data utilized by an independent contractor will be required to be returned to the original user at the close of such contractual work. Users hereby agree to abide by the use and reproduction conditions specified above and agree to hold any independent contractor to the same terms. By using data provided herein, the user acknowledges that terms and conditions have been read and that the user is bound by these criteria. Process Description:

The WHPA delineations were created using the methods outlined in "Guidelines for Delineation of Well Head Protection Areas in New Jersey" available as a download at <http://www.state.nj.us/dep/njgs/whpaguide.pdf>. Coordinate files delineating each WHPA boundary were generated using a custom MS-DOS program on-file at the offices of the N.J. Geological Survey. The MS-DOS coordinate files are formatted as ARC/INFO coverages and contain line attributes specifying each time of travel tier for groundwater to the well. Each coverage was built as both a line and a polygon coverage having both arc and polygon attributes for the three Time of Travel (TOT) tiers. PCWS

wells were located using a Global Positioning System (GPS). WHPA delineations are considered to have an accuracy of plus or minus 40 feet in any direction from the mapped location. WHPA delineations for wells completed in the glacial sand and gravel aquifer were clipped to a custom hydrologic boundary. Sand and gravel aquifers occur where deposits are more than 50 feet thick. The hydrologic boundary is generated as a 2000 foot buffer around the polygon representing the contact of the sand and gravel aquifer for those areas where the aquifer is less than 50 feet thick. This distance was selected based on an average distance between the 50 and 100 foot thickness contours of the sand and gravel aquifer. The average inter contour distance was doubled to provide a conservative estimate of the thickness variation. Therefore, any portion of the WHPA delineation that lies beyond this extent is clipped.

Township of Denville

COUNTY OF MORRIS

STATE OF NEW JERSEY

CHAPTER XIX

LAND USE

Current through Ordinance No. 18-02, adopted October 1, 2002

Coded Systems Corporation has been authorized by Mayor Gene Feyl and the Township Council of the Township of Denville to publish Chapter XIX, Land Use, of the Revised General Ordinances of the Township of Denville.

COPYRIGHT © 2002 BY CODED SYSTEMS CORPORATION

120 MAIN STREET AVON, NEW JERSEY 07717

ARTICLE 5 - ZONE REGULATIONS 19-5.1 ZONING REGULATIONS ESTABLISHED.

Pursuant to N.J.S.A. 40:55D-62, Chapter 291, Laws of N.J. 1975, the Zoning Ordinance of the Township of Denville adopted July 22, 1964, as amended including every amendment thereof, here-tofore passed, is hereby further amended in its entirety so that the same shall read as follows. (Ord. #2-77, §19-5.1)

19-5.2 PURPOSE.

In interpreting and applying this Article, the provisions hereof shall be held to be minimum require-ments adopted for the promotion of the public health, safety, morals and general welfare of the Township. Among other purposes, the provisions of this Article are intended to provide for ade-quate light, air, open space and convenience of access; to lessen congestion in the streets; to secure safety from fire and othe r dangers; to avoid undue concentration of population by regulating and limiting the use of land and the height and bulk of buildings wherever erected; to limit and deter-mine the size of yards and other open spaces; to regulate the density of population and to conserve the value of property and encourage the most appropriate use of land throughout the Township. (Ord. #2-77, §19-5.2)

19-5.3 SCOPE.

It is not intended by this Article to repeal, abrogate, annul or in any way impair or interfere with ex-isting provisions of other laws or ordinances, except those specifically or impliedly repealed by this Article, or any private restrictions placed upon property by covenant, deed or other private agree-ment unless repugnant hereto. Where this Article imposed a greater restriction upon the use of buildings or premises or upon the height of buildings or lot coverage, or required greater lot area, or larger yards or other open spaces than are imposed or required by such rules, regulations or permits, or by such private restrictions, the provisions of this Article shall control. (Ord. #2-77, §19-5.3)

19-5.4 ZONES ESTABLISHED.

For the purpose of this Article, the Township of Denville is hereby divided into twenty-nine (29) zones known as:

C – Conservation District R-C – Residential Conservation District R-1 – Residence District R-1A – Residence District R-1B – Residence District R-2 – Residence District R-2A – Residence District R-3 – Residence District R-4 – Residence District A-1 – Garden Apartment Residence District AH – Affordable Housing Zone ASCH – Affordable Senior Citizen Housing District A-O-B – Apartment-Office-Business District ASA – Aquifer Sensitive Area Overlay Zone District POS – Public Open Space District B-1 – Central Business District B-2 – Highway Business District B-2A – Highway Business District B-3 – General Business District B-4 – Neighborhood Shopping Center District OB-1 – Office Building District OB-3 – Office Building District OB-4 – Office Building District I-1 – Industrial District I-2 – Industrial District T-1 (T-54) – Townhouse Zone T-3 – Townhouse District T-4 – Townhouse District PARC – Planned Age-Restricted Community District

(Ord. #2-77, §19-5.4; Ord. #16-79, §1; Ord. #26-82, §1; Ord. #18-83, §1; Ord. #27-86, §2; Ord. #7-87, §2; Ord. #10-88, §1; Ord. #19-88, §1; Ord. #10-89, §1; Ord. #4-90, §2; Ord. #10-90; Ord. #28-97, §1; Ord. #36-99, §1; Ord. #3-2000, §1; Ord. #18-01, §1; Ord. #27-01, §1)

19-5.27 ASA - AQUIFER SENSITIVE AREA OVERLAY ZONE DISTRICT. 19-5.2701 ESTABLISHMENT OF AN OVERLAY ZONE. There is hereby established an ASA - Aquifer Sensitive Area Overlay Zone District to provide sup-plemental development regulations in the area so designated to permanently protect the source of Denville Township water supply from additional contamination originating from man's activities. Due to the extraordinary vulnerability and sensitivity of the aquifer resource to contamination, these regulations contain additional protective measures. This ordinance therefore applies to any person, firm or corporation within the ASA Overlay Zone that establishes or proposes to establish additional land use or development activity.

(Ord. #10-89, §3)

19-5.2702 OBJECTIVES OF THE OVERLAY ZONE. The objective of the ASA - Aquifer Sensitive Area Overlay Zone District are:

a. To protect the aquifer from water quality degradation due to land use changes or development activity;

b. To define the responsibilities of implementing and enforcing land use controls for the protection of aquifer water quality;

c. To establish strict performance standards for use, handling, or storage facilities or associated ma-terials which have the potential for contaminating the aquifer;

d. To establish land use intensity limitations, in accordance with the availability of sanitary sewers.Ord. #10-89, §3)

19-5.2703 DEFINITION OF AQUIFER SENSITIVE AREA OVERLAY ZONE. The ASA - Aquifer Sensitive Area Overlay Zone District will be applicable to all areas in the Town-ship of Denville noted to be within the sole source aquifer as identified in studies prepared by Ger-aghty and Miller, Inc. entitled "An Evaluation of Groundwater Resources of the Rockaway River Valley Within the Communities of Denville, Boonton Township, Town of Boonton, Montville and Mountain Lakes," dated August 1978 and the Geonics study "Water Resource Study of the Rock-away Valley," dated February 1, 1980 and as delineated by the ASA - Aquifer Sensitive Area Overlay Zone District Map, which is incorporated in Section 19-5.4 of this Article. The standards as provided within the ASA Overlay Zone shall be considered more restrictive than the underlying zone, where applicable. (Ord. #10-89, §3)

19-5.2704 STANDARDS AND CONDITIONS FOR RESIDENTIAL DEVELOPMENT WITHIN THE AQUIFER SENSITIVE AREA. Within an ASA Overlay Residential Zone in the Township of Denville, any new residential develop-ment shall, as a condition of approval, be required to connect to a central sewer system prior to oc-cupancy, or if sewers are not available, development shall be conditioned on all new residential de-velopments maintaining a minimum lot size of three (3) acres per dwelling unit.

If public sewers are available and there is adequate sewer gallonage, then the underlying zone regula-tions shall be applicable subject to the additional regulations and performance standards provided herein. (Ord. #10-89, §3)

19-5.2705 STANDARDS FOR NON-RESIDENTIAL, PUBLIC AND INSTITUTIONAL USES WITHIN THE AQUIFER SENSITIVE AREA. All non-residential development, including public and institutional uses as a condition of approval within the Aquifer Sensitive Area shall be required to either connect to a centralized sanitary sewer system or utilize a closed holding tank disposal system approved by the Department of Environ-mental Protection. This shall apply to any site plan, subdivision, variance or request for a building permit. (Ord. #10-89, §3)

19-5.2706 GENERAL PROVISIONS. a. The provisions in this Section are not intended to re-peal, abrogate, or annul any portion of these regulations, or existing County, State or Federal regulations. In any case, where there is a con-flict, whichever imposes the more stringent restrictions shall apply.

b. All uses that are permitted in the underlying zones shall be permitted in the Aquifer Sensi-tive Area Overlay Zone with the following exceptions and restrictions:

1. The disposal, storage, or treatment of hazardous and solid waste material as defined by the New Jersey Department of Environmental Protection.

2. Utilization or storage of sodium chloride salts or other road salts other than calcium chloride salts.

3. Dry wells directly connecting to any floor drain, wash basin, sink or paved parking areas.

4. Gasoline stations, except existing gas stations.

5. Underground fuel storage tanks shall be permitted subject to the following conditions: (a) Any applicant proposing to install an under-ground fuel storage tank shall obtain an applica-tion and permit from the Construction Code Official and shall receive written approval and authori-zation of the Fire Chief, Township Engineer and Health Officer. The applicant shall notify the appro-priate code officials at least forty-eight (48) hours in advance of all work.

(b) All underground tanks where approved shall be double-hulled steel or fiberglass encased in a concrete vault and shall be installed in accordance with BOCA regulations. (c) When a question arises as to a proposed use (principal and/or accessory) and its potential to de-grade or contaminate the aquifers designated for protection herein, the Approving Authority shall solicit input from the State Department of Health Services. Each application shall include any and all necessary Federal or State permits. (Ord. #10-89, §3) 19-5.2707 ENVIRONMENTAL IMPACT STATEMENT. Any application for development within the Aquifer Sensitive Area not served by a centralized sani-tary sewer system shall require the submission of an Environmental Impact Statement. Excluded from this requirement are all single and two-family structures seeking building permits and all minor subdivisions.

All applicants filing an Environmental Impact Report shall prepare such a report in accordance with the provisions of this Section. In such instances, the report shall provide additional information to the Township, demonstrating that the applicant can comply with all standards of this Section, or that one (1) or more of such standards would not be applicable, given the conditions of the applicant's property or existing uses thereon.

The format and contents of the Environmental Impact Report shall be as follows:

a. Description of Existing Conditions. This Section shall present a description of existing characteristics of the property with respect to geology, topography, ground and surface water hydrology, soils, vegetation, and existing improvements and uses.

b. Description of the Proposed Action. This Section shall describe the proposed action including types, locations and phasing of proposed site disturbance and construction, as well as proposed future use, ownership and maintenance of the property and the proposed improvements. Plans describing the proposed action shall also be included within the Environmental Impact Report.

c. Proposed Measures to Control Potential Adverse Environmental Impacts. This Section shall describe all measures proposed by the applicant to control all ad-verse impacts that may occur as a result of the proposed action. It shall address all impacts cited by the Township Engineer and all other designated experts by the Township in the report on the application, prepared in accordance with procedures described herein.

d. List and Qualification of Preparers. The names, addresses, telephone numbers and qualifications of persons directly responsible for preparing the Environmental Impact Report shall be provided.

e. Appendices. Any additional information the applicant wishes to provide may be included in one (1) or more appendices to the report. f. The Environmental Impact Report must be received by the Township no later than thirty (30) days prior to the date of the public hearing as required by law. The report shall be submitted in twenty (20) copies to the Township. (Ord. #10-89, §3)

19-5.2708 STANDARDS AND PERFORMANCE CRITERIA. No structure, land or water shall be used or developed, and no structure shall be located, ex-tended, converted, or structurally altered in the Aquifer Sensitive Area unless the applicant takes all reasonable measures to minimize any impact of the proposed action, as set forth below.

a. All below-ground storage tanks for heating oil and gasoline (for gas stations), shall be required to place such tank(s) in concrete vault, install other impervious liners, and install monitoring devices in any area designated as an ASA zone. The applicant shall also demonstrate compliance with all other applicable regulations of this ordinance.

b. There shall be no use of fill containing any material that would represent a potential contamina-tion hazard to ground or surface waters. Materials shall be defined wastes identified as hazardous by the New Jersey Department of Environmental Protection. c. Land grading or construction of buildings or other site improvements shall not directly or indirectly dimin-ish the flow of natural springs. As required by the Environmental Impact Statement report, water table data from observation wells shall be provided by the applicant. (Ord. #10-89, §3) 19-5.2709 MODIFICATIONS PERMITTED. Where by reason of extraordinary and exceptional situation uniquely affecting a minor subdivision or a minor site plan, or the construction of no more than two (2) residences or for site plan for non-residential development of no more than one thousand five hundred (1,500) square feet, the Plan-ning Board may provide a waiver for some or all of the standards provided herein. (Ord. #10-89, §3)

19-5.28 RESERVED.

19-5.29 RESERVED.

19-5.30 VIOLATIONS AND PENALTIES. 19-5.3001 PENALTY. Any owner or agent, and any person or corporation who shall violate any of the provisions of this Article or fail to comply therewith or with any of the requirements thereof or who shall erect, structurally alter, enlarge, rebuild, or move any building or buildings or any structure or who shall put into use any lot or land in violation of any detailed statement or plan submitted hereunder, or who shall refuse reasonable opportunity to inspect any premises, shall be liable to a fine of not more than five hundred ($500.00) dollars or to imprisonment in the County Jail for not more than ninety (90) days, or both, in the discretion of the Municipal Magistrate. Each and every day such violation continues shall be deemed a separate and distinct violation. (Ord. #2-77, §19-5.2401; Ord. #19-88, §7)

19-5.3002 LIABILITY OF OTHERS. The owner of any building or structure, lot or land or part thereof, where anything in violation of this Article shall be placed or shall exist, and any architect, builder, contractor, agent, person or corporation in connection therewith and who assists in the commission of such violation shall each be responsible for compliance with the provisions of this Article and shall each be liable to the fine or imprisonment or both specified in subsection 19-5.2401 above for a violation hereof. (Ord. #2-77, §19-5.2402; Ord. #19-88, §7)

19-5.3003 CIVIL ACTION. In case any building or structure is erected, constructed, altered, repaired, converted, or maintained or any building, structure or land is used in violation of this Article, the municipality, in addition to other remedies, may institute any appropriate action or proceedings to prevent such unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance or use to restrain, correct or abate such violation, to prevent the occupancy of said building, structure or land or to prevent any illegal act, conduct business or use in or about such premises. (Ord. #2-77, §19-5.2403; Ord. #19-88, §7)

19-5.31 SEVERABILITY.

If any Section or part of this Chapter shall be declared to be unconstitutional or invalid, in whole or in part, by a Court of competent jurisdiction, such Section or part shall, to the extent that it is valid, remain in full force and effect and no such determinations shall be deemed to invalidate the remaining Sections or parts of this Chapter. (Ord. #2-77, §2)

19-5.32 REPEALER.

All ordinances or parts of ordinances heretofore enacted which are inconsistent with any provision of this Chapter to the extent of such inconsistency, are hereby repealed. (Ord. #2-77, §3)

19-5.33 EFFECTIVE DATE.

This Chapter shall take effect as provided by law. (Ord. #2-77, §4)

APPENDIX B: SIGNIFICANT CATEGORIES OF GROUND WATER POLLUTANT

SOURCES IN NJ

SIGNIFICANT CATEGORIES OF GROUND WATER POLLUTANT SOURCES IN NJ**

**SOURCES SUBJECT TO EXISTING POLLUTION CONTROL AUTHORITIES OF THE NJ DEP

Source Category Description of Regulation I. Source designed to discharge pollutants

Domestic Septic Systems NJDEP regulations implemented locally for individual sys-tems, primarily for control of design and setback from wells.

Commercial/Industrial and Multi-family Residential Septic Systems

Treatment works approval required, with NJPDES permit if over 2,000 gpd. Discharge of non-sanitary wastes re-quires NJPDES permit as an underground injection well, for any flow.

Underground Injection Wells NJPDES permit required; Class V well permitting antici-pated.

Land Application of Sewage Effluent and Sludge

NJPDES permit required.

Sanitary and Industrial Infiltration/ Percolation Lagoons


Sanitary and Industrial Spray Irrigation & Overland Flow Systems


II. Sources designed to store, treat and/or dispose of pollut-ants; discharge through un-planned release

Landfills NJPDES and solid waste facility permits required.

Open Dumps, Junkyards Open dumps prohibited for most waste types. Junkyards subject to NJPDES but not currently in permit system.

Surface Impoundments NJPDES permit required. Waste Piles NJPDES and solid waste or RCRA Subtitle C permits re-

quired, as appropriate. Aboveground Storage Tanks Spill Compensation and Control Act requires discharge pre-

vention plans for petroleum and hazardous substance stor-age tanks at major facilities. Others may be subject to NJPDES.

Hazardous Waste Containers Some units subject to RCRA (based on size and holding pe-riod). Other containers subject to spill response require-ments and discharge prevention plan requirements.

II. Sources designed to store, treat and/or dispose of pollut-ants; discharge through un-planned release (continued)

Materials Stockpiles Non-waste stockpiles (including road salt) do not generally require NJDEP permits, but spill responses required. Stockpiles of hazardous substances subject to discharge pre-vention plan requirements.

Underground Storage Tanks Tanks storing petroleum products or hazardous chemicals are subject to controls. Exempt are heating oil tanks 2,000 gallons or less, and residential and farm motor fuel tanks less than 1,100 gallons. All tanks (both state-regulated and exempt) are subject to requirements of the Uniform Con-struction Code (Department of Community Affairs).

Open Burning Prohibited for most waste types. Radioactive Disposal Sites High-level wastes controlled by federal government.

NJDEP regulates other sites. III. Sources designed to retain substances during transport or transmission

Hazardous Materials Transport NJDEP manifest required for surface transport. Also, Board of Regulatory Commissioners licenses for waste haulers and Division of State Police regulations for safety of all materials transport apply.

Solid Waste Transport Subject to NJDEP and county waste flow controls; BRC license for waste haulers required.

Pipeline Transport Transmission pipelines for hazardous substances subject to discharge prevention plan requirements. Rerouting around WHPAs for new pipelines; improved monitoring of exist-ing pipelines in WHPAs. Sleeving or other exfiltration controls for sewer mains.


IV. Sources discharging pollutants as a consequence of other planned activities

Commercial and Agricultural Pesticide Applications

Registration, training and reporting required by NJDEP

Stormwater Infiltration . NJPDES permit required at most industrial and major com-mercial facilities. All below-grade wicking systems (e.g., french drains) regulated as underground injection wells.

V. Sources providing conduit or inducing discharge through al-tered flow patterns

Water Supply Wells Water allocation and water supply system construction per-mits review potential for induced flow of pollution.

Production Wells for Petroleum Hy-drocarbons

Not a significant source.

Construction Excavation Major dewatering activities require a water allocation per-mit.

VI. Naturally occurring sources whose discharge is created and/or exacerbated by human activity

Ground Water/Surface Water Interac-tions

NJDEP implements EPA mandates regarding flow of sur-face water to public community water supply wells, and any needed treatment.

Salt-water Intrusion Critical Water Supply Area regulations provide mechanism to identify and control salt-water intrusion. Water supply studies lead to alternative supplies or conservation.

Natural Leaching Water allocation and water supply system construction per-mits review potential for induced flow of natural contami-nants.


APPENDIX C: STATE DEVELOPMENT AND REDEVELOPMENT PLAN

SUPPORT FOR ADOPTION OF WELLHEAD PROTECTION ORDINANCES

Policy #3 – Watershed Resource Planning Institute a watershed-based resource planning and permitting program which addresses sustainability of ground and surface water resources including, at a minimum: water quality, water supply, wastewater management, land-use planning and regulation, nonpoint and point source pollution abatement, flood control and effects of inter-basin transfers. Policy #4 – Prevention of Water Pollution Prevent pollution by managing the character, location and magnitude of development based on direct and indirect, individual and cumulative impacts on ground and surface water quality as measured by recognized scientific methods. Policy #6 – Toxic and Hazardous Materials Manage the location and design of land uses and structures that involve use, storage, treatment, or disposal of toxic and hazardous materials to prevent contamination of ground and surface water. Policy #8 – Nonpoint source pollution Reduce and wherever feasible eliminate the volume and toxicity of pollution in surface and ground waters from nonpoint sources. Policy #9 – Integrating Land-use Planning and Natural Resource Information Integrate county and municipal land-use planning with information on carrying capacity of natural systems and landscape units (for example, watershed), including aspects of the local or regional hydrologic system. Policy # 10 – Protecting Ground Water Sources Include policies and standards for managing development and redevelopment in county and municipal master plans and development regulations to protect aquifer recharge areas and wellheads of public and private potable water supply systems. Policy #11 – Aquifer Recharge Areas Delineate prime and locally important aquifer recharge areas and include them in municipal and county plans to protect ground water resources and improve the statewide coordination of planning efforts. Policy # 14 – Managing Development for Water Quality Protect ground water quality by assuring proper siting, design and installation of on-site wastewater or stormwater treatment systems that would not drain directly into areas of limestone, porous soils, high water tables, and fresh and saltwater wetlands. Policy #15 – Aquifer Protection Manage the character, location and magnitude of development and redevelopment in aquifer recharge areas to avoid potential contamination or saltwater intrusion and to otherwise avoid adversely affecting the quantity and quality of water in the aquifer.

STATE DEVELOPMENT AND REDEVELOPMENT PLAN SUPPORT FOR ADOPTION OF WELLHEAD PROTECTION ORDINANCES

STATEWIDE POLICY NUMBER 11, “WATER RESOURCES”

Policy # 16 – Wellfield Protection Manage the character, location and magnitude of development and redevelopment to prevent the discharge of pollutants that may adversely affect wellfields and areas designated as existing or future water supply sources. Policy # 22 – Development and Water Supply Establish the character, location, magnitude and timing of development and redevelopment based on, and linked to, the quantity of water that is available without adversely affecting water-dependent habitats and ecosystems and without exceeding the sustainable yield of the water source. Policy # 23 –Water Supply and Facilities Capacity In areas experiencing stressed water supply resources, improve current systems and manage water use and development intensity, to minimize the need for additional water supply facilities. Policy # 24 –Water Supply Planning Coordinate the Statewide Water Supply Master Plan with the State Plan, and coordinate state, regional and local land use with the Statewide Water Supply Master Plan to ensure that water demands of new development do not exceed or degrade water resources. Policy # 25 –Water Conservation Encourage appropriate use of indigenous plants in landscaping, water-saving design, building standards and construction techniques, agricultural best management practices, water reclamation and reuse, peak and off-peak period pricing, and water conservation measures to reduce demand for water. Policy # 26 – Agricultural Water Supply Consider the water needs of the agricultural industry in water supply planning at all levels of government. Policy # 29 – Natural Systems and Nonstructural Methods Use naturally functioning systems and nonstructural methods for stormwater management and flood control in public and private development, wherever practicable. Policy # 30 – Stormwater Management Systems Plan for stormwater management and flood control systems on a watershed basis, incorporating where feasible natural systems and nonstructural methods, including increased filtration. Policy # 33 – Managing Development and Redevelopment outside of Flood Plains Design and construct new development so that there is no net increase in the runoff rate or flood peak to prevent increases in flooding and damage to stream corridors.

STATE DEVELOPMENT AND REDEVELOPMENT PLAN SUPPORT FOR ADOPTION OF WELLHEAD PROTECTION ORDINANCES

STATEWIDE POLICY NUMBER 11, “WATER RESOURCES”

APPENDIX D: EXAMPLES OF REFERENCES IN THE TEXT

EXAMPLES OF REFERENCES IN THE TEXT

Examples: “To protect ground water supply and quality through the adoption of aquifer management programs, including relevant standards for wellhead protection programs, and standards to protect and enhance ground water recharge areas, such as impervious cover limitations.” - 2002 Master Plan. Township of Hopewell, Mercer County, NJ. Goals and Objectives: Natural Resources. “Protect the quality of ground water and surface waters to safeguard its use for drinking water supply, recreation, and natural habitats.” - 1996 Master Plan. Princeton Community Master Plan. 1996-2001 Conservation Goals. “· To protect environmental resources which contribute to the rural character of the Township, including but not limited to steep slopes, ridgelines, trout streams, wetlands, stream corridors, potable water supplies, watersheds, aquifers, rivers, viewsheds, forests and other vegetation, habitats of threatened and endangered species and unique natural systems. · To limit the intensity of development, in areas relying on ground water supplies and on-site sewage disposal, based on conservative estimates of available water resources and the ability of the soil and ground water to sustain on- lot disposal systems without degrading or impairing the water quality. · To protect ground water supply and quality through the adoption of aquifer management programs, including relevant standards for wellhe ad protection programs, and standards to protect ground water recharge areas, such as impervious coverage limitations. · To protect ground water resources to meet the demands of the Township and as a resource to the region.” - Lebanon Township Master Plan.

Statement of Purpose [N.J.S.A. 40:55D-28b (1)]

Land Use Plan Element [N.J.S.A. 40:55D-28b(2)]

Examples: “The ground water management strategy…seeks to limit the degradation of ground water while also permitting appropriate uses of land.” - 2002 Master Plan. Township of Hopewell, Mercer County, NJ. Land Use Element: Valley and Mountain Resource Conservation Districts. “All Township residents are dependent upon the Township’s underlying ground water resource for their potable water supply whether they are served by public water lines or individual wells. Its protection must be one of the Township’s primary land use planning concerns in terms of both quantity (capacity) and quality (minimizing pollution). The limited capacity of the resource is determined by underlying geologic characteristics. Its quality is directly affected by the density of development in relation to soil and geologic characteristics because most Township residences (about 90%) are served by individual septic systems, which collectively reduce the quality of ground water. For many years there has been increasing concern, based upon anecdotal reports from many sources, that the Township’s ground water is under stress and that both the quality and quantity of the ground water is being compromised by land development pressures. Residents have reported lost capacity on private wells, wells running dry, and wells becoming fouled by pollutants commonly associated with individual subsurface septic discharges…As of the end of 1999 the Township has a total of 1912 dwellings, a number very near the maximum sustainable total. Development densities on the remaining subdividable land must be limited for the protection of the public health. Best Management Practices (BMP) and Best Available Technology (BAT) that are conservative of, or enhance, surface and ground water supplies must be employed in all land development activities.” - 2002 Township Master Plan. Mendham Township, Morris County, New Jersey. Land Use Plan: Ground water Resource Limitations That Should Affect Future Development. (NOTE: while this municipality relies essentially entirely on domestic wells, the issues raised here are relevant to municipalities with public water supply wells, also.)


Examples: “The ground water resources of the Township provide irrigation and potable water supplies to the Township’s rural areas. In addition, ground water provides base flow to rivers and streams during low flow periods and sensitive plant and animal communities are dependent upon this surface hydrology… The Township should consider the establishment of a wellhead protection program to protect community water supply systems, and should examine similar management strategies for development activities occurring over the Hopewell Fault. This unique geologic feature should be identified and designated a critical water resource protection zone in order to maintain its functions.” - 2002 Master Plan. Township of Hopewell, Mercer County, NJ. Conservation Plan Element: Ground water. “Protect the quality of ground water and surface water to safeguard its use for drinking water supply, recreation and natural habitats. 1. Encourage the development of a comprehensive management plan in a cooperative effort with the surrounding communities that border Lake Carnegie and the D & R Canal to address such issues as retaining views to and from the lake and canal, preserving green buffers, maintaining water quality, and allowing appropriate public access and recreational usage. 2. Require Best Management Practices to control the use of pesticides and fertilizers on properties that drain into waterways. 3. Encourage new practices in stormwater detention to increase water quality and minimize environmental disturbances. 4. Protect water supplies from non regenerative uses.” - 1996 Master Plan. Princeton Community Master Plan. 1996-2001 Conservation Element: 1996-2001 Strategies

Conservation Plan Element (N.J.S.A. 40:55D-28b.8)


Examples: “Mendham Township's predominate source of potable water is private wells. There are limited areas in the eastern part of the township that are serviced by public water purveyed/managed by the Southeast Morris County Municipal Utilities Authority, the New Jersey American Water Company, and Randolph Township Municipal Utilities Authority. Recharge areas, such as the permeable soils that overlay upland areas of the Township, and sites where the water table is high, must be protected to ensure that rain and surface water can infiltrate back into the ground to replenish drinking water supplies. Over-development of these sensitive areas reduces the amount of pervious surfaces and results in greater stormwater runoff. Another threat to drinking water occurs when the amount of household pollutants discharged into septic systems exceeds the ability of the infiltrating precipitation and ground water to remediate and dilute the pollutants. Maintaining and caring for individual septic systems and minimizing the use of hazardous household chemicals will help prevent contamination of the aquifer. Because Mendham Township’s ground water supply is limited due to underlying geologic formations, it is essential that the Township protect ground water from degradation and overuse. This can be achieved by requiring that all land developments result in a zero net increase in stormwater runoff; that development densities do not exceed the nitrate dilution and remediation capacity of the overlying soils; and that ground water recharge rates are not exceeded by ground water withdrawal. Best Management Practices for stormwater management should be employed, especially those practices that require infiltration of stormwater runoff to recharge the aquifers. The Township should monitor new technologies that protect ground water quality and be open to new ordinances that will provide this protection.” (Emphasis in original) - 2002 Township Master Plan. Mendham Township, Morris County, New Jersey. Conservation Plan: Ground water.

Conservation Plan Element (N.J.S.A. 40:55D-28b.8) (CONTINUED)


Examples: “The ground water resources of the Township provide irrigation and potable water supplies to much of the Township's rural areas. In addition, ground water provides the base flow to rivers and streams during low flow periods, and sensitive plant and animal communities are dependent upon this surface hydrology. The importance of ground water resources is highlighted in the report The Ground Water Resources of Lebanon Township, prepared by M2 Associates for the Planning Board. The following activities are recommended to protect and maintain this critical resource: a. A public education program should be established to provide information to septic system owners concerning the proper maintenance of these facilities. An improved septic testing ordinance also should facilitate better operation of septic systems. b. Ongoing public education should be directed at preventing the discharge of toxic and hazardous pollutants to ground water. c. The Environmental Commission, in conjunction with the Health Department, should conduct an environmental inventory of ground water quality, including an analysis of existing ground water samples and an identification of existing facilities which could adversely impact ground water. Among the facilities that should be mapped and inventoried are the following: 1. Underground storage tanks. 2. Gas, fuel, and sewer line locations. 3. Large septic systems for commercial/industrial users. 4. Permitted community septic systems. 5. Hazardous substance storage areas and facilities. 6. Permitted NJPDES ground water or surface discharge facilities. d. The Township should consider the establishment of a wellhead protection program. e. Landscaping standards should require the use of native and locally adapted plants, and designs, which minimize irrigation, maintenance and turf areas and require mulches to preserve soil moisture. f. The Township’s aquifer testing ordinance should be monitored and periodically reviewed to ensure that it accomplishes the goal of assuring adequate water supply. g. Reductions in residential density and commercial/industrial impervious coverage standards will serve to protect the availability and potability of ground water.” – Lebanon Township Master Plan (2001)

Conservation Plan Element (N.J.S.A. 40:55D-28b.8) (CONTINUED)


APPENDIX E: WELLHEAD PROTECTION ORDINANCES: AT–A–GLANCE

WELLHEAD PROTECTION ORDINANCES: AT–A–GLANCE

Regulated LAND UseS

BERGEN COUNTY -

2 YEAR TOT

STAFFORD – 1000 FT

WELLHEAD RADIUS

WASHINGTON -TIER 1

(2 YEAR TOT)

WASHINGTON -TIER 2

(5 YEAR TOT)

WASHINGTON -TIER 3

(12 YEAR TOT)

SOUTH BRANCH –

500 FT WELLHEAD

RADIUS

SOUTH BRANCH –

100 FT WELLHEAD

RADIUS Application, disposal or unenclosed storage of de-icing materials (road salt)

X (application of road salt permitted)

X (CU permit for

storage)

X (CU permit for

storage)

X X (any storage

or application permitted)

X (any storage

or application permitted)

Cemeteries X X X X X X Class V injection Well X X X X Commercial auto body, repair, washing, and/or sales activities

CU X (car

washing/sales facilities

allowed)

X (car

washing/sales

facilities allowed)

Commercial dry cleaners / laundries

X X CU X X

Gasoline stations X X CU Golf courses X CU CU Junk or salvage yard X X X X X X Livestock animals X X X X X Petroleum products terminal

X X X X

X = Prohibited X* = Prohibited with modifications, see ordinance for details CU = Conditional Use, approval required (usually granted by the planning board)

E = Exempted E* = Exempted with conditions (such as Best Management Practices - BMP, see ordinance for details)

WELLH

EAD PRO

TECTION O

RDINANCES: AT–A

–GLANCE

REGULATED LAND USES

BERGEN COUNTY -

2 YEAR TOT


WELLHEAD RADIUS

WASHINGTON -TIER 1

(2 YEAR TOT)

WASHINGTON -TIER 2

(5 YEAR TOT)

WASHINGTON -TIER 3

(12 YEAR TOT)

SOUTH BRANCH –

500 FT WELLHEAD

RADIUS

SOUTH BRANCH –

100 FT WELLHEAD

RADIUS Quarries and mining operations

X X X X X

Recycling centers X X X X Sanitary landfills X X X X X X Sewage or wastewater disposal pond

X X X CU

Storm water management basins

X CU CU X

Uses involving the collection, manufacture, storage, use, transportation or disposal of regulated substances or hazardous and radioactive materials

X (manufacture and disposal)

X (underground storage greater than 300 gallons)

X X (CU permit for use, storage, and mixing of regulated substances)

X (CU permit for use, storage, and mixing of regulated substances)

X (above-ground storage of 2000+ gallons)

X (storage of bulk agricultural chemicals or above-ground storage of 2000+ gal.)

EXEMPTIONS Municipal, county, or state governments

E

Pre-existing regulated land uses

E* E* E* E* E* (must meet BMP within 18 months)

E* (must meet BMP within 18 months)



WELLH

EAD PRO

TECTION O

RDINANCES: AT–A

–GLANCE

REGULATED LAND USES

BERGEN COUNTY -

2 YEAR TOT


WELLHEAD RADIUS

WASHINGTON -TIER 1

(2 YEAR TOT)

WASHINGTON -TIER 2

(5 YEAR TOT)

WASHINGTON -TIER 3

(12 YEAR TOT)

SOUTH BRANCH –

500 FT WELLHEAD

RADIUS

SOUTH BRANCH –

100 FT WELLHEAD

RADIUS Exemptions Police, fire and emer-gency medical services

E

Retail sales establish-ments that store and resale hazardous or regulated substances in their original and un-opened containers

E

Transport of hazardous materials

E*

Uses of hazardous ma-terials solely as fuel or lubricants for a vehicle

E



WELLH

EAD PRO

TECTION O

RDINANCES: AT–A

–GLANCE