United States
Environmental Protection
Agency
Office Of
The Administrator
(A101F)
171-R-92-026
August 1992
&EPA
EPA RKC
An Evaluation Of Overlay
For Wellhead Protection
Prmted on Recycled Papei
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Disclaimer
The work presented in this document was completed under a
student fellowship funded by the United States Environmental
Protection Agency's National Network for Environmental
Management Studies. It has not been subject to Agency review.
The opinions expressed in the document do not necessarily
reflect the opinion of the Environmental Protection Agency
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An Evaluation of Overlay Zoning for Wellhead Protection
By
Becky France
This project was funded under a grant with the
National Network for Environmental Management Studies
U.S. Environmental Protection Agency
Washington D.C.
January 1992
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An Evaluation of Overlay Zoning for Wellhead Protection
Abstract
Overlay zoning is inherently flexibility, and therefore
is a valuable tool to prevent additional land use activities
that may pose a risk to wells for public water supplies. To
successfully implement an overlay zone, communities address
issues concerning development pressures, current land uses,
delineation of the zone, and scientific verification.
Several case studies illustrate the importance of
public participation and a careful research effort to pro-
tect a public water supply. These research efforts include
an identification and prioritization of risk and concise
definition of goals.
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Acknowledgements
I wish to thank my supervisor at the EPA, Erin Flana-
gan, for her patience during a very time consuming project
and all the helpful suggestions that helped bridge the
distance between Washington, D..C. and Chapel Hill, North
Carolina. Also, my many thanks to Dr. Deborah Amaral for
advising me and providing helpful suggestions. I want to
thank my readers, Dr. Alvis Turner and Dr. Milton Heath for
their insightful comments.
ii
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Table of Contents
Introduction 1
Wellhead Protection 3
I. Advantages of Overlay Zoning 6
A. Land Use Restrictions in Overlay Zones. 7
B. Regulation of Groundwater in U.S 8
C. Difficulties Communities Encounter 10
D. Coverage or Ordinance and Jurisdiction 12
II. Wellhead Protection Programs with Overlays 16
A. Level of Development 16
B. Reducing Risks 18
C. Prioritization of Contamination Risks 19
D. Public Participation 21
III. Legal Considerations of Overlay Zoning 22
A. Police Power and "Takings" 22
B. Zoning Tools to Protect the Environment 25
1. Permit Programs 25
2 . Performance Standards 26
C. The Bargaining Process in Planning ,.28
D. Legal Accountability of Overlay Zoning 29
IV. Case Studies 33
V. Limitations of Overlay Zoning in Massachusetts..34
--Cases:
Hopkinton, Massachusetts 34
Stoughton, Massachusetts 37
iii
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VI. Preventing Degradation of the Water Supply 46
--Cases:
Rib Mountain, Wisconsin 46
Brookings, South Dakota 50
VII. Variations in the Use of Overlay Zoning 56
--Cases:
Clarke County, Virginia 56
Dare County, North Carolina 59
VIII. The Decision to Use Overlay Zoning 69
IX. Limitations of the Evaluation and Suggestions
for Further Study 71
X. Recommendations 72
Bibliography 75
IV
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List of Figures
Figure 1 States with Wellhead Protection Programs 4
Figure 2 Communities Sharing Aquifers 13
Figure 3 Stoughton Overlay Zoning District 39
Figure 4 Rib Mountain Overlay Zoning District 47
Figure 5 Aquifer Recharging Public Wells in Brookings.,.,53
Figure 6 Clarke County Aquifer Protection Area 57
Figure 7 Hatteras Island and Dare County 60
Figure 8 Dare County Area of Environmental Concern 62
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Introduction
This study examines how effective overlay zoning may be
as a tool for wellhead protection programs. First, the
paper deals with the advantages and disadvantages of this
comprehensive tool. Second, legal considerations relevent
to successful usage of overlay zoning are examined. From
this information, a criteria is set forth where overlay
zoning is the most appropriate tool for wellhead protection.
Finally, case studies illustrate these criteria and are
followed by recommendations. The case studies are represen-
tative of wellhead protection programs in several regions of
the United States.
About half the United States population relies upon
groundwater as a drinking water source. Public drinking
water supplies constitute thirty-eight percent of all
groundwater withdrawals (USEPA, 1977). Regulation of these
public water supplies has shifted from at the tap standards
to protecting at the source. Protecting groundwater at the
source is essential because once contamination is detected,
it is expensive to clean up, and the drinking water may
never be fully restored. Monitoring land use activities
that may potentially contaminate an aquifer is significant
to communities that rely upon groundwater as their sole
source of drinking water because they depend upon both good
quality and quantity of water from the aquifer.
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Groundwater pollution can not be seen so it is particu-
larly elusive to the public, and yet it has been estimated
that less than one gallon a week of leaking material can
shut down a one million gallon per day well (Miller, 1984).
Groundwater remediation is generally far more expensive than
protection, and in thirty-five Minnesota cities groundwater
remediation expenditures were over $67 million, and in all
cases "prevention was more cost effective than groundwater
cleanup" (Freshwater Foundation, 1989). Similiarly, before
instituting a groundwater protection program to protect its
spring, Clarke County, Virginia hired an engineering firm to
conduct a cost-benefit analysis. The firm assessed the
projected cost of treatment, developing alternative water
supplies, and protecting the water supply spring. The cost-
benefit ratio was found to be 3 to l or greater in favor of
a groundwater protection program. In the event of contami-
nation, replacing the spring would be seven times more
expensive than protection.
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Wellhead Protection
The 1986 Amendments to the Safe Drinking Water Act
require that States adopt wellhead protection programs for
existing wells serving community water systems and new wells
as they are developed (D'ltri, 1987). These Wellhead
Protection (WHP) Programs address guidelines and
requirements that localities must follow when protecting
public wells. "At a minimum, each State's Wellhead Program
must:
—Specify roles and duties of State agencies,
local government entities, and public water
suppliers with respect to the development and
implementation of WHP Programs;
--Delineate the wellhead protection area (WHPA)
for each wellhead, as defined in subsection 1428
(e), based on reasonably available hydrogeologic
information on groundwater flow, recharge and
discharge, and other information the State deems
necessary to adequately determine the WHPA;
--Identify sources of contaminants within each
WHPA including all potential anthropogenic sources
that may have any adverse effect on health;
--Develop management approaches which include, as
appropriate, technical assistance, financial
assistance, implementaion of control measures,
education, training, and demonstration projects
that are used to protect the water supply within
WHPAs from such contaminants;
--Develop contingency plans for each public water
supply system indicating the location and
provision of alternate drinking water supplies in
the event of well or wellfield contamination;
--Site new wells properly to maximize yield and
minimize potential contamination; and
--Ensure public participation by incorporating
processes for appropriate involvement in WHP
Program elements (Lew, 1989).
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Figure 1 States vitH
Source:
nc..,ater Protactioa Division,
October 199.) •
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Although wellhead protection programs address only public
water supplies, private wells that share recharge areas
benefit from regulatory actions addressing public wells.
Most importantly, these programs generate a heightened sense
of public awareness.
"Wellhead protection may be broadly defined as a pro-
gram that reduces that threat to the quality of groundwater
used for drinking water by identifying and managing recharge
areas to specific wells or wellfields" (USEPA, 1991).
Seventeen states have Wellhead Protection Programs.
The largest number of EPA approved programs is in the North-
east followed by the Southwest region in the Texas area
(Figure 1). These states are eligible for federal funds to
support their programs if Congress appropriates money in the
future. Many states without Wellhead Protection Programs
have provided technical assistance and policies that encour-
age voluntary protection programs. For example, Virginia
promulgated a technical advisory board to recommend wellhead
protection strategies. According to Lew (1989), nearly all
states have some form of groundwater protection plan.
Differential management within Wellhead Protection
Areas is a major component of wellhead protection programs.
Less stringent regulations are imposed in zones around the
well according to the distance and time of travel to the
well. Some prevention or remediation of pollutants occurs
so that areas further away from the well generally pose a
less immediate threat. Regardless of the overlying materi-
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al. the area closest to the well may be succeptible to
contamination. Unconfined aquifers are "In direct vertical
contact with the atmosphere through open pores" (Dunne,
1978). Confined aquifers are overlain by impermeable mate-
rial. Still, natural and anthropogenic breaks in the con-
fining layer provide a potential for contamination. For
instance, karst aquifers composed of limestone formations
often contain fissures, caves, and springs. In fact "pig
bristles from carcasses dumped in sink holes have appeared
in tap water miles away" (Dinovo, 1987). The well itself
may be treated as a potential source of contamination to the
aquifer particularly if it is not constructed properly.
Regardless of the type of aquifer, the most stringent man-
agement zone is nearest the well to keep out contamination
from microbes such as Siaxdia and £. soli. These microbes
live for a limited amount of time, and the time of travel
from outside of the protection zone to the wellhead is
longer than the life span of the microbes.
I. Advantages of Overlay Zoning
There is a clear relationship between land uses and
groundwater quality (Soyifc lasema E13D, 1985). Some commu-
nities have used overlay zoning as a tool for wellhead
protection programs. "An overlay zone is a specific geo-
graphic area that is subject to special regulations in
addition to any of an underlying zone (the basic zoning
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district)" (Dean, 1991).
Overlay zoning is inherently flexible when special
legislative acts permit its use to extend over municipal
boundaries. The format may be tailored to the area so that
only the wellhead areas are targeted and development options
may be found outside the overlay zone.
A. Land Use Restrictions in Overlay Zones
Within overlay zoning districts, planners may impose a
variety of restrictions on land uses such as requirements
that limit the volume and location of septic tanks or desig-
nate a minimum lot coverage. By limiting density, the
potential for septic tank contamination is reduced. Second,
land use prohibitions within the overlay zoning district
prevent certain uses such as junkyards, trash dumps, and
mining operations. Third, activities may be restricted for
selected businesses. For example, the type of chemical used
by a business may be the basis for the regulation. Any
businesses or industries that produce or store certain
chemicals may be required to meet performance standards or
comply with registration, monitoring, and/or inspection
requirements. Limiting land use density, prohibiting cer-
tain businesses, and imposing standards upon businessses may
be used in combination. Certain land uses may be prohibited
in areas nearest the well. In the outer most zones a few
prohibitions may be combined with performance standards.
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B. Regulation of Groundwater in United States
The past history of contamination incidents demon-
strates the need to upgrade groundwater protection efforts.
Groundwater contamination of public wells in Cheshire,
Connecticut and Provincetown, Massachusetts resulted in
costly remedial actions. Cheshire, Connecticut invested a
combined cost of $2.2 million in water treatment facilities
for two wellfields (Adams, 1988). The town of Province-
town, Massachusetts has spent $1.4 million to clean up
groundwater contamination from underground storage tanks;
the final direct and indirect costs are estimated to reach
$25 million (Gr,ouDd.waier Hazard., 1985).
Many new environmental regulations have gone into
effect but these regulations do not cover all potential
sources of contamination. Currently, industry is heavily
regulated, but accidents do occur. Spills of hazardous
materials contribute significantly to groundwater contamina-
tion. Regulatory programs cover a small volume of hazardous
materials. Enforcement of some regulations may not be
comprehensive. Due to limited resources, inspections of
hazardous waste generators are prioritized based upon size
of operation and amount of hazardous waste (Aquifer Task
Force, 1989).
Regulation of the polluter through existing or addi-
tional laws is an alternative to overlay zoning and may
include specific health department restrictions on the use
8
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of septic tanks, underground storage tanks or farm practices
(D'ltri, 1987). Source controls do not take into account
the cumulative nature of pollutants. "Those threats that
individually pose the greatest threats to nearby wells may
not pose the most significant threats to the community's
groundwater resources; less hazardous activities that cumu-
latively discharge a greater amount of pollutants may in
fact, pose greater risks to the aquifer" (Jaffe, 1987).
Rock County, Wisconsin could have adopted source control
measures to address localized threats. However, county
planners discovered that cumulatively pesticides and ferti-
lizers posed a greater potential long term risk than under-
ground storage tanks (Hollman, 1991). Rock County adopted
land use regulations because they can provide protection for
all potential threats. Florida is considering incorporating
source control regulations with locally administered well-
head protection programs.
An accident or an accumulation of small leaks can
render an aquifer unfit for use (Blatt, 1986). Monitoring
is a valuable tool for detection of recognized plumes.
However, plumes can be difficult to locate (Brieger, 1985).
Regulators may not be able to identify all the significant
contaminants in a plume. Over five hundred new synthetic
organic chemicals are produced each year, in addition to the
approximately 63,000 compounds already in use (USEPA, 1987).
Given the number of chemicals manufactured, identification
of potential sources of contamination is necessary to iden-
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tify classes of compounds that a community might monitor.
Monitoring is expensive, and in Littleton, Massachusetts it
represented the most costly part of the groundwater protec-
tion program (EPA, 1984). Monitoring programs in such areas
as Broward County, Florida are designed to "detect trace
amounts of regulated substances in wells or in the water
table before they reached the levels that would require
shutting down wells" (Morgenstern, 1989).
Acquisition of land is the clearest form of control but
its use generally is limited to the most critical areas
because government funds are limited (D'ltri, 1987). The
wellfield supplying water to Dare County, North Carolina is
the sole source of drinking water for the county. The
government has purchased 300 acres in the recharge area to
the well and plans to purchase an additional 600 acres.
These additional purchases will protect two-thirds of the
recharge area to the wellfield (Sturza, 1991). Steven's
Point, Wisconsin is also purchasing land around its wells
and is developing a wellhead protection ordinance. An
alternative to outright purchase would be the purchase of
the development rights. If a local government purchases the
development rights, a land owner maintains ownership of the
property but is restricted from any development that might
contaminate the water supply.
C, Difficulties Communities Encounter
In the communities of Manchester, Connecticut; Chices-
10
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ter, Connecticut; and Lanesborough, Massachusetts several
key zoning hurdles are being encountered and are
summarized below:
--Communities may be reluctant to support land use controls.
--Existing businesses may wish to relocate where land use
restrictions are not as stringent.
--Businesses may feel the regulations cause economic
hardship.
--The land use controls may discourage new businesses
from locating in town.
--Residents may have misconceptions about the application of
protection measures and the potential dangers to their
water supply.
Even in instances where most of the overlay zone may not be
suitable for development, citizens often do not want to be
told what they can and can not do with their land.
In a survey conducted by the planning department of
Lanesborough, Massachusetts, citizens were overwhelming in
favor of groundwater preservation. Members of the Town
Council have not been able to agreed upon a groundwater pro-
tection strategy. In the midst of this uncertainty, the
community has not agreed upon any proposed ordinance (Bean,
1991). Uncertainty was also a difficulty in Dare County,
North Carolina. The inability of state hydrologists to
agree upon an adequate radius for protection promoted many
doubts in the community regarding what is scientifically
justifiable. These doubts were expressed in the numerous
public meetings that preceeded extension of the boundaries
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for the wellfield protection area (Herdon, 1987). states
with Wellhead Protection Programs and technical guidance
support provide some uniform standard that may help locali-
ties resolve conflicting objectives. Planners in Brookings,
South Dakota could not agree upon how much land the wellhead
protection area should encompass, so they turned to state
guidance documents and finally agreed upon an arbitrary half
mile fixed radius as the interim overlay zoning district
boundary.
Before adopting wellhead protection ordinances, two
communities in Connecticut, Manchester and Cheshire, are
waiting for the completion of state guidance documents.
These communities intend to coordinate their programs with
state objectives and believe that additional state support
will facilitate passage of a wellhead protection ordinance.
But initial protection plans need not always be deferred
until other program requirements are developed. To prevent
the possibility of conflicting requirements, Spokane, Wash-
ington has used very general underground storage tank re-
quirements that will not conflict with the specificity of
additional federal regulations in terms of tank construction
requirements.
D. Coverage of Ordinance and Jurisdiction
With the enactment of special legislation, overlay
zoning districts may be used on a regional basis to "protect
environmental areas that transcend municipal boundaries"
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Communities Sharing Aquifers
WtKnted or Duller >rt«i in community A mjy
•lion WMCT «upply in communny »
o.b.c
Apprednulc loouon (X KXUTT noted w Trt4e 3-1
Figure 2 Intercommunity water resources among
towns.in the Boston, Massachusetts Area (Metro, 1989)
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(Blackwell, 1987). Zoning at a regional level is usually
"carried out by a body with Joint representation." Regional
zoning commissions appraise the overall situation and con-
trol development for the whole region (Freund, 1968). For
instance, the Chesapeake Bay Critical Area entails three
countywide overlay zones to preserve the environmental
integrity of the Chesapeake Bay (ECQEoggcL..^, 1987). Also
county and city ordinances may sometimes have overlapping
zoning authority. For instance, in Brookings, South Dakota
the city and county share a three mile joint jurisdiction
because these boundaries are contiguous with their common
water supply.
In areas where aquifer boundaries are shared by more
than one community, overlay zoning may overlap and be diffi-
cult to coordinate. A study conducted by the Metropolitan
Area Planning Council (MAPC) for eleven communities in the
Boston region determined that watersheds or aquifers cross
over one or more communities in most of the localities so
that protection strategies are essentially "fragmented among
the jurisdiction of several communities" (M.etr.o, 1989).
Potential polluters from one locality are located in the
recharge zones of another (Figure 2). The MAPC has provided
a technical study document that defines recommendations for
individual communities based upon an areawide approach.
They have made significant progress initiating regional
cooperation and memoranda of understanding between communi-
ties (M.£i£2, 1989).
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The Metropolitan Area Planning Council is one of sever-
al regional planning agencies that promote regional ground-
water protection. Some of these agencies, notably those in
Texas and Florida, have the authority to regulate ground-
water regionally. Regional protection efforts are particu-
larly important for communities that obtain their drinking
water from aquifers that extend over large areas.
Hydrogeological formations may also favor an areawide
approach because it may not be appropriate to regulate
around individual public wells. In Spokane, Washington
planners found that delineating around individual wells
would result in an overlay zone 100 x 10 yards that would be
difficult to regulate. These town planners chose to protect
the aquifer rather than individual wells (Miller, 1991).
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II. Wellhead Protection Programs Using Overlay Zoning
Localities develop wellhead protection plans based upon
very different Initial conditions. An area's current land
use patterns, the vulnerability of their wells, and the
availability of alternative sources of drinking water all
influence the degree and nature of the tools used to protect
the community's drinking water.
A proactive approach to wellhead protection prevents
contamination in the Wellhead Protection Area before it
occurs. Ideally an overlay zoning district designed to
protect public water wells would be entirely proactive and
thus minimize risks of contamination while maximizing wise
use of resources. Overlay zoning is best suited to prevent-
ing new land use activities that have the potential to
contaminate public wells. Since cumulative land uses may
pose a threat to groundwater, communities such as Hopkinton,
Massachusetts consider the capacity of the area to support
land uses when developing their comprehensive plan.
A. Level of Development
Many communities have prime industrial lands in re-
charge zones, conflicting land use objectives, and are
already heavily developed. In some areas, such as Dayton,
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Ohio, the aquifer recharge areas are along the major trans-
portation corridors and prohibiting development in these
areas is not feasible.
Often preexisting uses pose a potential threat to
groundwater. Many municipalities have realized that regula-
tions should apply to existing uses by requiring that they
comply with "requirements designed to minimize the risk of
groundwater contamination" (Aquifer Protection Task Force,
1991). Existing businesses that do not conform to the
zoning ordinance are usually "grandfathered." Under grand-
fathering provisions, nonconforming uses are generally
allowed to continue as long as they do not expand or inten-
sify their activities.
in the case of Sullivan v^. zoning iQaxd sf Adiu§im.e.n;t
(1984), the court recognized that a majority of appellate
courts have upheld amortization of nonconforming uses as a
constitutional exertion of a municipality's police power.
However, these past decisions have not resulted in consist-
ency concerning nonconforming uses. In the recent case of
HQrlh.weg£e.r.n Distcifeutocs^ IQC^. v^. Zoning fioacd of ZQXQ Qf
M,o.on (1991), the Supreme Court of Pennsylvania decided that
municipalities can not compel nonconforming uses to make a
change in nature or make additions to property as long as
these changes are not detrimental to the health and safety
of the community. Essentially, treatment of nonconforming
uses depends upon a state's zoning enabling legislation.
For example,.in Massachusetts state law requires that all
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zoning bylaws have grandfathering provisions for nonconform-
ing uses. No additional zoning requirements may be imposed
upon grandfathered activities. In states with similar state
zoning enabling legislation, zoning is a weak tool for
regulating existing land use activities that pose a risk to
a well.
Prohibiting existing uses that pose a potential threat
to the well is generally not acceptable because it prevents
a landowner from using the land as he had intended. In Rib
Mountain, Wisconsin if nonconforming uses pose a severe
threat to groundwater, they may be phased out and owners
must be compensated. Broward County, Florida chose to
remove fourteen threatening land activities from the zone in
close proximity to the public wells. These land uses were
prohibited from this zone because they used one of the
regulated substances listed in the ordinance. The county
provided compensation totalling $1.5 million for activities
involving "changes in operation to stop use of regulated
chemicals" and relocation of businesses (Morgenstern, 1989).
B. Reducing Risks
Complete elimination of risks is rarely the goal of
overlay zoning, and it is particularly infeasible in highly
developed areas. "Where a community has other goals encour-
aging development, the attainment of such a nondegradation
goal is practically impossible" (Jaffe, 1987). For example,
in Rock County, Wisconsin, Dave Hollman (1991) of the
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Environmental Health Department commented that wellhead
protection may just delay the problem for their county.
Rock County is largely agricultural except for two urban
areas with a population of 34,000 and 50,000. The entire
county area may be considered a recharge area. Groundwater
flow is from the rural areas into the central part of the
state. Protecting the entire county area is crucial to
protecting groundwater in the county, which consists of 100
private wells (Hollman, 1991). Initial steps to protect
groundwater may be incomplete but represent progress which
should be revisited as resources become available. Prelimi-
nary protection measures may include wellhead delineation by
an arbitrary fixed radius and conservative protection meas-
ures. In most cases, additional hydrogeologic studies and
any necessary revisions to the Wellhead Protection Area are
initiated as funds become available.
C. Prioritization of Contamination Risks
Communities prioritize the risks to their groundwater
differently. For example, a community with numerous small
business that each use a small quantity of hazardous materi-
als may choose to exempt many of these businesses from any
zoning ordinance requirements because they use a small
volume of the hazardous materials. However, the land use
plan adopted in Tacoma, Washington notes that "large indus-
tries may not be the most likely sources of toxic pollutants
but small businesses such as gas stations, dry cleaners,
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[and] auto shops" may pose a greater threat. These sources
can not be specifically pinpointed but cumulatively they may
pose a greater threat from improper disposal. So, these
small businesses are included in Tacoma's land use regula-
tions (Sauth. Ta.com.2 Elan, 1985).
Several innovative zoning approaches include monitoring
businesses using ordinance-defined regulated quantities of
chemicals (Spokane, Washington) and the registration and
monitoring of all industries using hazardous materials
(Stoughton, Massachusetts). Where no potential contaminat-
ing businesses are present, some of the ordinances categori-
cally prohibit all businesses using hazardous waste materi-
als and other potentially contaminating threats from the
zone of influence.
The risk prioritization scheme used by Rock County
involves a scoring of pollution risk factors which incorpo-
rate potential loading rate, toxicity, concentration, fre-
quency of discharge, and distance from the source to the
public water supply. Hollman (1991) determined that under-
ground storage tanks have the greatest short term risk
followed by old landfills that may be on the Superfund list.
The greatest long term risk is from pesticides. Once prior-
ities are established, groundwater protection strategies
must be spread out uniformly so that the strain of regula-
tion is not a serious economic disadvantage.
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D. Public Participation
As noted by Wayne Weikel of the Virginia Water Project,
"public awareness is the biggest hurdle in getting wellhead
protection started" (Water. Hews, 9/91). For this reason
Fincastle, Virginia organized a meeting in which state and
federal officials provided information to the community and
started a newsletter for local residents and government
officials.
Voluntary cooperation is an important goal of public
education and is a valuable tool to gain support for an
ordinance. For example, Texas enlists volunteers to help
them inventory potential sources of contamination. The
volunteers are knowledgeable about the area and supplement
existing records (Harris, 1991). In Tacoma, Washington a
technical advisory committee addressed concerns of the busi-
ness community (Merry, 1991), and in Spokane, Washington a
group of thirty citizens were directly involved in drafting
of a groundwater protection ordinance (Miller, 1991).
Compliance may be maintained partially through educa-
tion. Public education programs may be tailored to encour-
age proper disposal of hazardous household waste, careful
use of pesticides, and maintenance of septic tanks.
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III. Legal Considerations of Overlay Zoning Districts
A. Police Power and Regulatory "Takings"
Localities may impose reasonable restrictions upon land
uses that could potentially contaminate a public groundwater
supply. The purpose of these restrictions is to protect the
public welfare which is a recognized police power entrusted
to local governments. When developing a wellhead protec-
tion program, planners should pay close attention to the
legal defensibility and scientific validity of proposed
regulations. A great deal of uncertainity surrounds the
use of overlay zoning for wellhead protection. As ex-
pressed in the Fifth Amendment, the Federal government can
not take private property for public use without just com-
pensation. Courts have ruled that the due process clause of
the Fourteenth Amendment imposes a similiar restriction on
the States.
Within this constitutional framework, zoning is an
important envionmental protection tool. But prior to 1926,
the courts viewed zoning as class discrimination. The case
of Village ef Euclid 2*. MJ2£C Eealiy. go,. (1926) set the
precedent that zoning was to prevent a nuisance which might
be termed "the right thing in the wrong place." Zoning is
considered a constitutional use of police power as long as
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the restrictions are not arbitrary and unreasonable and have
"substantial relation to the public health, safety, morals
or general welfare." Overlay zoning allows development
options to businesses wishing to locate within a local
jurisdiction.
Several cases have addressed the constitutionality of
zoning functions that restrict a landowner's use of proper-
ty. Most land use restrictions fall far short of confisca-
tion; still these lesser invasions of property via regulato-
ry actions may be considered a regulatory "taking" and
require just compensation under some circumstances. No
consistent body of cases address regulatory "takings". The
takings issue has been further complicated because police
power functions have been broadened to encompass regulation
of the environment and public welfare.
Property may be regulated but when a regulation goes
too far it will be recognized as a "taking" requiring com-
pensation. The extent of regulation is left open for deter-
mination based upon the facts of the situation. The process
of developing land use regulations in Dare County, North
Carolina included hydrologic studies but indecision was
found amongst the experts. In the midst of this technical
uncertainity, the applicability of land use restrictions was
unsuccessfully questionned by several landowners. They
attempted to prove that the regulation had no scientific
basis applied to their property and the regulation would
leave them no -options for profitably using the land.
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Probably the most significant recent case is
CeDtcal IcansEQCtatiQD £e^ Y^ E£H x2cK Citz U9?8) which
sets forth a three part test to determine whether there has
been a "taking. A "taking" may be ruled if any of the
following occur:
1. a physical invasion of the property
2. the restriction is not "reasonably related...(to)
public benefit"
3. no reasonable return on investment in the property
Some aspects of the "takings" ruling have not changed
since the case of Had,ac.h,e_c.k. QQ^ VA Sefea.s_tia.Q in 1915. The
courts established that when the police power is reasonably
related to the public welfare, an individual may suffer
losses without compensation. In the case of Pen.DSXlvan.la.
Co.a.1 Y^. MabQD (1922), Justice Holmes agreed that "some
values are enjoyed under an implied limitation and must
yield to the police power." But, when the effect of a
regulation weighs too heavily on a single individual there
must be compensation.
Recently this three part test has been used in two
court decisions. Dufeyr. Y^. MoDtgQierx Co.... CsyBSll (1983)
found no "takings" in an agricultural zoning ordinance that
imposed lot size requirements because it was reasonably
necessary for public protection of a crucial resource. If a
plaintiff can prove that the ordinance deprived him of all
beneficial use of property he may be compensated. This was
the case with A.BDieelli v^ XfiHO Qf SGUtb KiDESlfiD (1983)
-------
where a developer was restricted from development along a
shoreline. Furthermore, in the case of Eir.s.1 EDSlisb Ey.a.nz
g£lieal LUtlie_r_2D £h.uxeh. of SleDdale v^ Qo.u.Dty_ Qf LOS. Angeles
(1987), the Supreme Court ruled that a county must provide a
forum for damage claims for present and past "takings." The
defendents claimed that a county ordinance prohibiting con-
struction with an overlay floodplain deprived then of all
use of the land. The court dismissed the "taking" issue
because the church did not exhaust all legal remedies.
A. Zoning to Protect the Environment
The zoning power of local government has grown to
include protecting the environment. For example, the re-
quirement that all lots be at least five acres within the
recharge zone for the Biscayne Aquifer because the aquifer
supplied drinking water to Dade County, Florida was chal-
lenged in Meviematic lDdu.s t£ies_ GOEE^ v^ fifiacd of SfiUDlcZ
Co.mm.iss_ionec£ (1977). However, the court ruled that ecolog-
ical preservation was a "valid exercise of the police powers
as it relates to the general welfare." The court rejected
the "taking" claim because development was still allowed and
reasonable property use right remained intact.
1. Permit Programs
Permit programs, such as those required under the
Coastal Zone Management Act impose restrictions upon land
25
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use activities. In Dare County, North Carolina much debate
stemmed from whether or not the Coastal Area Management Act
(CAMA) program was a zoning function which might ursurp
power from the local governments and deprive land owners of
their right to use their property. To withstand the legal
challenges that ensued, the permit program had to be legally
defensible. The use of the permit process has been upheld
in the case of A.d.a.ffl£ v^ 2£E3£:tmgDt Qf JiatUEal 2D3 ECGDomiC
E££fiUC££S_ (1974). The court ruled that the CAMA program did
not not constitute a regulatory "taking" unless by denying
the permit the landowner is deprived of practical use of
property. The landowner has some practical use of his
property if alternatives are available, lojals fiivgr. Affiliz
a.te.s_ Ya. EeESEtmeDt fi£ EDYiroQmgQt (1976) further explained
that a "taking" could not be granted if "reasonable develop-
ment alternatives were available to landowners." Some local
governments have used transferrable development rights to
ensure alternatives for landowners.
2. Performance Standards
The specificity of the restriction and the area that
it covers is another important consideration when adopting a
land use regulation. Land use activities that pose a risk
to an aquifer may be banned in the recharge zone or subject-
ed to performance standards. Some land use activities are
banned in an immediate zone around well and subjected to
performance standards in a designated zone further away from
26
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the well. These performance standards allow uses when
certain specifications are met which account for variations
in the "impacts of certain uses." fiufee v^ £h.iS3EQ, (1956)
upheld the constitutionality of performance standards as
long as there is no "constitutional infirmity" and there is
a "reasonable basis in available information."
Precision standards should employ a scientifically
known level of performance and measurement. Precision
standards are less likely to be questioned than primative
standards which are based upon nuisance law. Standards that
are scientifically defined generally meet J|o_ll3B v... CalifQEi:
Bis Seagtal £om.m.is_siODl§. (1986) test that land use regula-
tions maintain an adequate "nexus" with governmental land
use objectives. The Beaver. Bags. CQ^ VA Qs.b.2£De fisteygh.
(1971) case found that zoning ordinances which exclude a
particular business from a municipality must display a
greater nexus to protection of public welfare as a police
power than those that confine a "business to a certain area
in the municipality."
Although more likely to be judged as arbitrary, prima-
tive standards have been upheld in several cases such as
Dubg v^. £itx Q£ Ch_i£a.go (1955) which banned land uses caus-
ing substantial injury to neighboring property values. But
in the case of Beaver v^ gQCQUgh. ef Joh,Qsonby.rg (1976) the
standards were invalidated because no criteria was provided
for local planners to make permit decisions prohibiting
certain land uses.
27
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Another important zoning consideration is the impact of
regulations on the community. Rezoning an entire area for
environmental purposes may be held invalid as it was in the
Pine Bustl IQC^. Vj. CHx ef &lS2aDZ case because the town did
not consider the cumulative effects of development on the
area.
C. Bargaining Process in Planning
These cases show why "takings" are one of the most
unsettled areas of the law. Conflicting interests between
property owners, (particularly developers) and industries
require arbitration. Some communities have provided a forum
for incorporation of these concerns into the process of
zoning ordinance development. For instance, Tacoma, Wash-
ington, after reaching a stalemate with the provisions of
the first draft of their overlay zoning ordinance, chose to
address the concerns of the business community in a techni-
cal advisory committee which helped them when developing
subsequent revisions (Miller, 1991).
These differing perspectives are arbitrated by balanc-
ing the degree the land use impact against the burden to
private property owners. The "degree test", set forth by
Justice Holmes in the Pen.QS_y_lva,Qia Qoal case, involves a
valuation of public good and individual property rights.
Hippler (1987) argxies that the degree test constitutes a
public nuisance exemption to the "takings" clause. "If a
26
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proper public purpose exists, the state may directly arbi-
trate among competing property uses using the police power
to prevent nuisances." This arbitration process balances
concerns of land owners and the objectives of groundwater
protection.
D. Legal Accountability of Overlay Zones
The use of overlay 2oning in wellhead protection pro-
grams was recently questioned in the case of C_yrr.x Y.^ Elan.::
DiDE CoffimissiQQ of ClaxKe Cfiunty.^ Virginia (1991). Develop-
er, Arl Curry, was not granted a boundary adjustment because
he failed to meet the overlay zoning requirement. He could
not demonstrate that his proposed subdivision would not "ad-
versely affect the water quality of Prospect Hills Spring."
He filed a petition against the County claiming that the
Commission's decision was arbitrary and capricious and
represented a "taking." The court upheld the County's deci-
sion to deny a subdivison permit because the subdivision
plan failed to meet requirements of the Natural Resource
Conservation District Overlay Zoning District. The court
did not discover a "taking." The requirements except for
the bond requirement are reasonably necessary for county to
carry out its responsibilities.
Some of the competing interests in overlay zoning pro-
posals have been questioned in litigation proceedings.
Overlay zones impose additional requirements on certain land
uses. Henr_x Barth.ole.mew CP.X. v^. PciDSe Seo.rge.ls Cp.yn.ix
29
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(1991) questioned whether or not activities receiving exemp-
tions to the basic zoning ordinance could still be subject
to the same type of requirements in a overlay zoning ordi-
nance. Cox questioned whether or not density requirements
of the Critical Area Program in the Chesapeake Bay were
applicable to a building granted an exemption in the Conser-
vation Overlay District. He contended the evidence reasona-
bly met goals set forth in the Bay's Master Plan. The
exemption required a factual written justification by an
examiner. The court evaluated the decision to determine if
a "reasonable mind" would come to that conclusion. The
court upheld the exemption and required that a permit be
granted for the building. The court determined that ac-
cording to the purpose of the Critical Area Program, the
defined density criteria was applicable to any special
exceptions even though the purpose of the Critical Area
Program defined the density criteria after the zoning ordi-
nance .
iQhiskon Vallgx l£ans_£e.c lUS.^ Y^ liQicum. T.p_WQSh.ie
Zoning Eear_iQg Board (1986) refers to a boundary and defini-
tion problem of an ordinance which excluded a trash transfer
station from locating in a floodfringe overlay zone." The
case defined the exactitude of zoning district boundaries in
making land use decisions. In the decision, the boundaries
were ruled inelastic and inflexible.
The town modified its zoning ordinance but did not
specifically include trash transfer stations as permitted
3C
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uses. But the language of the ordinance still included
trash transfer stations within the category of junkyards;
therefore, trash transfer stations were by definition still
an acceptable activity. Because the definition was not
ambiguous it was binding.
Tinicum misinterpreted the floodplain provisions and
map. Their decision to exclude the transfer station from
the floodfringe was ruled arbitrary and therefore had no
legal basis. The definition of the floodplain is given as
the 100 year flood. Floodway was defined on the zoning map
as an overlay district rather than by 100 year flood. The
overlay boundaries were distinctly defined. The town had
no legal warrant to extend the overlay zoning boundaries
which would have prohibited legal activities outside the
boundaries defined in the ordinance. The court determined
that the transfer station was a permitted use. The court
ruled that zoning boundaries must appear as definite lines
on zoning maps which can not be "elastic and movable, lest
they be used as tools for non-uniform enforcement" iQbicKQD
l£ans_£er. Inc^. v^ Tinicum TownshiD Iswnshie Heating
d, 1986).
In these two cases the definitions given in the ordi-
nances were clear and unambiguous and thus precluded any
common definition or interpretive determination. In an
effort to remove any additional restrictions on potential
development, property owners often question the boundaries
of overlay zoning districts and the defined boundaries of
31
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the zone of influence to a well. To ensure that a zoning
ordinance is legally defensible, an adequate research effort
to determine boundaries of the recharge area is necessary.
Zoning to address environmental concerns is a recog-
nized activity of local governments. Permit programs,
prohibitions, and performance standards may be used to
achieve this purpose as long as a clear relationship exists
between protection of public health and scientifically
justifiable regulations.
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IV. Case Studies
Public involvement, boundary definition, clarification
of regulations, and ongoing evaluatory efforts are common
elements in the case studies of Dare County, North Carolina;
Stoughton, Massachusetts; and Brookings, South Dakota. The
case studies are divided into three sections. The first two
case studies of Hopkinton, Massachusetts and Stoughton,
Massachusetts illustrate the use of overlay districts as a
zoning bylaw and as a general bylaw in accordance with State
law. The Brookings and Rib Mountain cases emphasize the
initial involvement of public education in developing a
successful wellhead protection program. The groundwater
contamination potential varies from community to community.
So, the last two case studies concerning Dare County, North
Carolina and Clarke County, Virginia are included as exam-
ples of the combination of programs that may protect a
public drinking water supply. The Dare County, North Caro-
lina case study also shows concerns during the development
of a wellfield protection program and how different groups
responded.
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V. Limitations of Overlay Zoning in Massachusetts
Hopkinton, Massachusetts
The town of Hopkinton, Massachusetts has developed
zoning bylaws that address protection of the three public
wells and wetland buffer zones. Groundwater protection is
one component of protecting environmental quality, and
Hopkinton's master plan is resource based. Growth projec-
tions are based upon amount of development the environment
can support rather than projections based directly upon
economics and growth data. Residential land uses comprise
nearly forty percent of the land use area with sixty percent
of the remaining area forested. Industries occupy only one
percent of land and pose very little potential threat to the
water supply (Hoxie, 1991).
Many surrounding towns have experienced groundwater
contamination forcing some towns to look for alternative
sources of drinking water. The sources of potential contam-
ination in Hopkinton include road salt, underground storage
tanks, wastewater from chronic septic tank failures, hazard-
ous waste, and mining. Existing uses are grandfathered
under the provisions of the zoning bylaw.
As a nonconforming use, existing underground storage
tanks are not subject to the bylaw. The threat of potential
contamination from these tanks is clear, for in an eleven
34
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town region including Hopkinton forty-six percent of under-
ground storage tanks are over fifteen years old (detCQWgsi,
1989). The town does not currently have records of all
underground storage tanks-- only those in excess of 1000
gallons. Only twenty percent of the town is sewered and
septic tank failures occur in some areas including the
downtown area. The health department is conducting an
education campaign to encourage septic tank owners to pump
tanks frequently and dispose of hazardous waste properly.
Groundwater supplies in many of the communities may be
affected by neighboring jurisdictions. The Metropolitan
Area Planning Council has provided technical assistance
throughout the region to coordinate the development of
wellhead protection programs. The Council recommends that
communities develop memorandums of understanding to formal-
ize long term cooperation between communities.
The Metropolitan Area Planning Council prepared a
technical assistance document through funding from the Clean
Water Act. Their study provided an inventory of water
resources, land uses, potential impacts of new development,
and existing regulatory protection tools for Hopkinton and
eleven other towns in the region. Based on this information
they recommended protection and mitigation measures (MetEQ^
Wesi, 1989). The general bylaw has had a strong base of
support, for in 1990 the town passed the water resource
protection bylaw almost unanimously.
The Commonwealth of Massachusetts has zoning enabling
35
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legislation that requires zoning ordinances to have a grand-
fathering clause. Massachusetts requires that nonconforming
uses in zoning bylaws not be subject to additional require-
ments under the bylaw. Based upon the MetroWest Area
Planning Council's recommendation, Hopkinton is looking into
incorporating Board of Health regulations into its overall
groundwater protection scheme. These general regulations
could be used for monitoring and regulation of existing uses
(Hoxie, 1991). Another town, Stoughton, Massachusetts,
chose not to use a zoning bylaw. The general bylaw provides
a tool to regulate the many nonconforming businesses that
could not be addressed with a zoning ordinance.
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Stoughton, Massachusetts:
A General Bylaw
The residential town of Stoughton, Massachusetts,
population 25,000, is located in an area of low rounded
hills, plains, and valleys in eastern Massachusetts. The
town council adopted a general bylaw in 1990 to protect its
wellfield, and the Board of Health administers the bylaw.
Developed land makes up about forty percent of the town.
Residential is the primary use and most of the undeveloped
land is forested. In the residential zone, many non-resi-
dental uses are permitted including site coverage of up to
fifty percent with building areas of up to thirty percent.
Initiation of Program
Groundwater is the sole source of drinking water. The
need for groundwater protection arose from a water shortage
problems that had been recognized since 1949. Shortages of
water in 1979 led to a moratorium on additional connections
so all new development relies on private wells. Stoughton
has submitted a proposal to expand the wellfield to the
state for review. The town has had an agreement with neigh-
37
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boring communities to supply water in water emergencies. In
1980 additional well sites were investigated.
Initial wellhead protection measures were proposed
through a zoning bylaw. But because there was little public
support the regulations were not adopted. Several maps were
drawn up and rejected until a half mile radius was decided
upon. No special committees were formed to develop the
regulations; the Town Council and the Board of Health draft-
ed the bylaw. According to Phillip Farrington (1991), Town
Manager, the development of the general bylaw grew out of
the revision process of the zoning bylaw. The bylaw has the
dual focus of regulating activities around the public water
supplies and establishing storage and handling standards of
hazardous materials.
Vulnerability of Aquifer to Contamination
Seven wells located in a significant sand and gravel
aquifer provide a safe yield of 2.6 MGD and two future wells
have been developed. A proposed well is also included in
the wellhead protection program.
Potential sources of contamination include underground
storage tanks, septic tanks, road salt, leachate from a
landfill, hazardous wastes, and pesticides. Contamination
has been noted in some private wells and some low level
solvent contamination has been found near a hazardous waste
site outside of a half mile zone from the public wells.
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Stoughton, Massachusetts Overlay Zoning District
Figure 3 Stoughton Protection Area
Source: Stoughton Groundwater Study, 1987
39
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There are no business or industrial districts within the
overlay zone. But there is an industrial district partially
in an area for a potential well in the south-central section
of Stoughton. The area has many underground heating tanks
for residences that are forty or more years old. Two haz-
ardous waste landfills fall outside the half mile radius.
In the wellhead protection area risks to the public wells
are addressed through prohibitions and performance standards
(Figure 3).
Priorities
The bylaw does not prohibit all potential threats; the
primary objective is to prevent "contamination with hazard-
ous materials" (SGS, 1987). The Department of Environmental
Protection (DEP) guidance from the Massachusetts Wellhead
Protection Program defined much of the directional support
for the bylaw. The bylaw addresses the risk of hazardous
materials as the primary focus. Although underground stor-
age tanks are grandfathered, Stoughton recognizes the poten-
tial risk from these tanks and has sought funding to assist
homeowners in the removal of these tanks. State regulations
also address standards and monitoring requirements for all
new underground storage tanks. Massachusetts will soon
adopt regulations which will designate the maximum lot size
for septic tank installation and thus indirectly address the
risk of septic tank failures (McCarthy, 1991). Clearly
looking at priorities will be necessary to determine which
40
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activities need to be closely monitored.
Participation in Development and Attitudes
Intitially a study was conducted by the Metropolitan
Area Planning Council to provide technical assistance to
Stoughton. Using the Council's study, planners for Stough-
ton drafted the bylaw. The local officials had a consensus
of opinion on the delineation and the needed protection
measures. The planning staff was available for public input
and they visited organizations and submitted information to
other town bodies. The Massachusetts Department of Environ-
mental Protection (DEP)'s written review in support of the
bylaw strengthened support for the bylaw. A study of
groundwater was conducted under a grant from the Metropoli-
tan Area Planning Council. The strategy of the study was to
inventory the water resources, land uses, and sources of
contamination to recommend protection measures.
Environmentally conscious individuals played a role in
promotion of the bylaw. The active citizenry prompted the
adoption of a general bylaw which lacked provisions for
grandfathering. Approval of a hydrogeologic study via a
town meeting appropriation of $125,000 was also contingent
on approval of the bylaw.
As part of inspections during the development of the
ordinance, businesses received feedback on how they would be
affected by the regulations. So they knew what to expect
41
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and how to comply and were generally comfortable with the
regulations (McCarthy, 1991).
Determination of the Overlay Zone
The interim overlay zone, as recommended by the Common-
wealth of Massachusetts, are delineated by a half mile
radius around the wells and they include both current and
proposed water supplies. A hydrogeological study using
computer modeling was completed in 1991 to delineate a zone
II or primary recharge area.
Coverage of the recharge area to the wells that may
impact them will be more clearly defined by the hydrogeolog-
ical study. The interim protection area is necessary until
financial resources become available. Among the 1,200
public supply wells in Massachusetts, only about 10% have
received approval for the zone II determination. In terms
of protection these additional delineations are important.
Russel Cohen (1990) for the Riverways Program noted in a
letter to DEP that since wells near rivers and streams
"often receive a substantial contribution from them...it is
necessary to keep sources of pollution out of the watershed
which contributes water to the wells that is to "minimize
all sources of pollution upstream of the wellhead." Fur-
thermore, scientifically verifiable studies are necessary to
Justify any new designations. In Stoughton's case, many
delineation scheme's were rejected until DEP's recommended
42
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half mile radius was chosen as an interim standard.
The neighboring town of Sharon overlaps with the outer
boundaries of the recharge area but is primarily residential
and poses no perceived threat to drinking water in Stough-
ton. For any issue outside of its jurisdiction, local
officials can work with the state which encourages regional
cooperation. The New England Interstate Water Pollution
Control Commision provides information across state bound-
aries and facilitates wellhead protection across state
boundaries. The state can set up memoranda of understanding
and charters through legislation.
General Bylaw Regulations
The focus of the bylaw is to prevent pollution of the
environment from hazardous materials. Figure 3 shows the
aquifer protection area. All industrial and commercial
establishments within the zone are required to register
annually iwth the Board of Health and include identifica-
tion, location, and safety plans associated with hazardous
materials.
Industries were inspected during the process of the
bylaw drafting. Gena McCarthy of the Board of Health saw
the inspection program as important to gaining support from
businesses who were willing to institute protection measures
if they knew how the bylaw would affect them. The Board of
Health cannot grant variances within the Aquifer Protection
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Zone for any of the prohibited activities. For this reason,
the National Assocaition of Industrial and Office Parks,
representing the business interest of Stoughton, opposed the
general bylaw alleging a zoning bylaw was necessary to
provide provisions to industry. Provisions to prohibit auto
services and junkyards from the overlay district are includ-
ed in a separate zoning amendment which grandfathers exist-
ing facilities. Another groundwater protection tool used in
Stoughton is the implementation of a household hazardous
waste collection project.
Enforcement
Stoughton has an environmental enforcement officer who
enforces the provisions of the general bylaw and health
regulations. Seventy businesses have been registered and
legal action is being taken against a small number of viola-
tors. Some flexibility on the storage of hazardous waste
allows for variances through the Board of Health. The focus
is on "education of residents and ubsinesses in the proper
handling of hazardous materials." Through annual registara-
tions industrial practices are monitored (Me.t£o) . Six
monitoring wells have been installed one of which monitors a
hazardous waste facility which shares the cost of the moni-
toring program.
Conclusion
The bylaw is one of the first general bylaws in Massa-
chusetts to combine wellhead protection and hazardous mate-
rial regulation, and the Attorney General termed it one of
44
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the best general bylaws of the state (Farrington, 1990).
Important components of the ordinance include registration,
inspection, and monitoring requirements. The comprehensive
approach is further enhanced by the continued efforts to
amend the mapping of the zone. These efforts focus upon
strategies to minimize risks. Supporting regulations to
address other risks which may occur from septic tank failure
are also necessary.
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VI. Preventing Degradation of the Water Supply
Rib Mountain, Wisconsin
Rib Mountain is a suburb of Warsaw, Wisconsin. In 1985
the town adopted one of the first wellhead protection ordi-
nances in Wisconsin. The communities to the north and south
of Rib Mountain have experienced problems with contamination
of their wells from organic chemicals and nitrate. Rib
Mountain draws its water supply from a highly permeable
unconfined aquifer recharged directly from precipitation and
surface discharges from higher elevations. The town is
upgradient from the wellfield which lies near the Wisconsin
River. The entire basin contributes to the wells, and so
the wells are quite susceptible to contamination. For this
reason, regulating "existing sources of potential contamina-
tion, in addition to controlling new land uses" is important
(Westover, 1991). The town can not control river quality,
and so regulation of the cone of depression is necessary to
prevent river water influence. A overlay zoning ordinance
was established in conjunction with the development of three
public water wells and the public sewer system. The purpose
of the ordinance is to prevent degradation of the municipal
groundwater. The ordinance imposes restrictions on land
within the recharge area and prohibits activities that have
the potential to pollute groundwater (WissoBSin
QeslQgicalj-j-j., 1988). In zone A, the primary recharge zone,
essentially all activities that may contaminate the wells
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Rib Mountain Overlay Zoning District
Figure 1 Rib Mountain Recharge Area Overlay District
Source: Wisconsin Geological..., 1988
47
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are prohibited, and in zone B all businesses and industries
are conditional (Figure 4). Since 1985, the ordinance has
resulted in one occasion where a business was denied a
permit to locate in the primary zone (Westover, 1991).
According to the Wisconsin Department of Natural Re-
sources and the County's health department, underground
storage tanks currently pose a greater immediate threat to
municipal groundwater than any other prohibited activities.
County Planner, Joseph M. Pribanich (1985) recommends that
the town develop a program for removal and extensive moni-
toring of underground storage tanks within the zone.
The local government is now considering restricting the
use of certain pesticides and fertilizers. Because the area
was not heavily developed, the ordinance passed with rela-
tively little opposition or public involvement. Now some
development pressures are emerging, and development patterns
are being established outside the overlay zone. Information
forums are an important part of current public education
efforts (Westover, 1991). The process of developing an
overlay zoning ordinance involves a research effort, and
another community, Brookings, South Dakota has made a com-
mittment to public education as part of its protection
program.
48
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Rib Mountain
Recharge Area Overlay Zoning District
Zone A
Prohibited Uses/ Activities:
1. trash dumps
2. asphalt product manufacturing
3. automobile laundries
4. auto service stations
5. building material and production sales
6. cartage and express facilities
7. cemeteries
8. chemical storage, processing plants
9. dry cleaning operations
10. electronic circuit assembly
11. electroplating plants
12. exterminating shops
13. fertilizer manufacturing or storage
14. foundaries or forge plants
15. service garages
16. highway salt storage
17. industrial liquid waste storage
18. junk yards
19. metal reduction, refinement
20. mining operations
21. motor and machinery shops
22. motor freight terminals
23. paint product manufacturing
24. petroleum storage
25. photo studios
26. plastics manufacturing
27. printing and publishing
28. pulp and paper manufacture
29. residential dwelling greater than 15000 ft.
30. septic tank disposal sites
31. sludge disposal sites
32. manufacture or storage of hazardous materials
33. residential or commercial underground storage tanks
34. wood product manufacturing
Conditional Uses
1. animal waste storage areas and facilities
2. large scale irrigated agricultural operations
Zone B
Petroleum storage in UST for commercial, industrial, or
residential use is prohibited.
Any business or industry is conditional in Zone B.
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Brookings. South Dakota:
The Public Education Commitment
Introduction
Brookings is a trade center in South Dakota with a
population of 17,000. Approximately ninety percent of the
land within the wellhead protection area is agricultural.
Along the outer zone of contribution some light industry and
a mobile home court are located. The area is growing rapid-
ly and attracting industries. Development pressures are
increasing particularly around the major transportation
corridors (Rusten, 1991).
City and county overlay zoning ordinances were enacted
in 1986. These ordinances share a three mile joint juris-
diction. The county ordinance was revised in 1988 and the
city ordinance is currently being updated.
Vulnerability of Aquifer to Contamination
The ten public wells supply drinking water from a
shallow unconfined aquifer composed of glacial material that
is very vulnerable to contamination. Although residents of
Brookings have not been faced with contamination in their
public water system, some of the rural communities around
the area have nitrate contamination from nonpoint source
pollution (Rusten, 1991). Nearby communities of Volga and
Elkton have been forced to develop new water supplies be-
50
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cause of contamination from petroleum and nitrates respec-
tively (Brookings County Planning Commission, undated).
Residents of Brookings County widely realize the aquifer is
their greatest natural resource. Concerns among farmers led
to the ban on fall fertilizer application (Rusten, 1991).
Participation in Development
Government officials drafted and reviewed the county
ordinance. Considerable research was done before the ordi-
nance was drafted. In the two months after the ordinance
was drafted, the planning department held six public meet-
ings.
An intensive public information campaign was an
integral part of the wellhead protection program. The
county held twenty to twenty-five public meetings over a
period of a two years. Citizens with homes or businesses
within the protection zone were sent letters of notification
before any public meetings. Because development pressures
in the late 1980s were minor, the community has been able to
adopt a proactive approach to its wellhead protection pro-
gram. David Rusten, Brookings County Zoning Officer, (1991)
believes the public education campaign was largely responsi-
ble for the ordinance passing with no opposition. For
Brookings it was a countywide effort to "sell them first
about why it is important to protect the groundwater"
(Rusten, 1991). Brookings brought in experts from United
51
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States Geological Survey and the Environmental Protection
Agency into its public meetings to discuss components of
groundwater protection.
Determining the Boundary of the Overlay Protection District
The East Dakota Development District provided techni-
cal assistance to the town (Siegel, 1991). According to
Rusten (1991), adequate research is necessary to "in fact
delineate the boundaries of the aquifer and the time of
travel and be able to defend it." He feels more than a year
of research and background work is necessary before adoption
of an ordinance that can be fit a town's needs.
Engineering studies from the United States Geological
Survey which included determination of the time of travel,
computer modeling, and drilling information were used to
delineate the area to be protected. A map with a reproduci-
ble overlay has provided interested parties with easily
distinguished boundaries. Determination of the aquifer
protection boundary has been easy to differentiate between
glacial til and glacial outwash (Minutes, December 16,
1987).
Over the next 'few years Brookings would like to
purchase some of the land in the recharge area. Also the
East Dakota Water Development District has asked for a grant
that would provide Brookings with access to a Geographic
Information System and signs for the boundaries of the
-------
Aquifer Recharging Public Wells in Brooking, SD
-' •*- • •A""*«""1
.Figure 5 Aquifar supplying vat*r to Brookings, South Dakota
Source: Rusten, 1991
-------
protection area (McGrath, 1991).
Overlay Zoning Ordinance Provisions
The zoning ordinance was adopted from a model ordinance
developed by the East Dakota Development District which
comprises seven counties. The county ordinance prohibits
nearly all uses that pose a potential threat to the well-
head, except for underground storage tanks and agricultural
operations which are subject to performance standards. The
Wellhead Protection Area is divided into two zones: Zone A,
the aquifer critical impact zone (the wellhead protection
area) as determined by a ten year time of travel, and zone
B, the aquifer secondary impact zone (Figure 4).
Zone A contains a list of prohibited activities, and
zone B is an industrial zone that takes into account non-
point source pollution from the application of fertilizers.
several test wells are located in the county to detect any
pollutants before they adversely affect the public water
supply. Nonpoint source pollution is addressed through the
farm program and in wetland areas regulations prevent the
use of certain kinds of pesticides.
Conclusion
Brookings is an environmentally sensitive area and the
purpose of the city and county ordinances is to prevent
degradation of the groundwater resource. Brookings use of
54
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overlay zoning for wellhead protection is effective largely
due to the ongoing importance of public participation.
-------
-------
Brookings County
Wellhead Protection Area
ZO.Q& A
Expansion of nonconforming uses are conditional upon approv-
al by the Board of Adjustment.
Prohibited uses in zone A include:
1. new feedlots
2. disposal of solid waste except the spreading of manure
3. outside storage and disposal of road salt
4. storage of PCBs
5. car washes
6. auto service and junkyards
7. disposal of radioactive waste
8. graveyards or animal burial sites
9. open burning
10. facilities storing, transferring, or disposing of
hazardous materials
11. fall application of nitrogen fertilizer except spread
of manure
El
--Application of nitrogen fertilizer in the fall is
prohibited.
Performance Standards-:
1. secondary containment of stored materials that could
contaminate groundwater
2. if petroleum storage is greater than 55 gallons, the
tanks must be elevated and have secondary containment
3. approval of county zoning to discharge industrial
process water
4. • industries that store hazardous material must submit
a contingency plan
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VII. Variations in the Use of Overlay Districts
Clarke County, Virginia
Local officials in Clarke County determined that future
growth and development could pose a risk to Prospect Hill, the
public water supply spring. Due to soil conditions, the most
serious potential for contamination can be attributed to septic
tank failures. Development in this primarily residential area is
feasible in certain locations.
A combination of prohibitions and conditions on development
have been imposed within an overlay zoning district. Within the
overlay zone commercial drilling, mining, sanitary landfilling,
feedlots, and underground storage tanks are prohibited. Agricul-
tural operations are allowed to continue, but they may not ex-
pand. Septic tank installation is allowed based upon soil char-
acteristics in the overlay zoning district. The overlay zones
have an uniform radi ending at the drainage divide (Figure 5.).
Septic tank installation is prohibited within the first 1000 foot
radius. From 2000 feet to 3000 feet, development is allowed in
marginal soil in the recharge area because attenuation of pollu-
tion is expected. In all cases residential developments are
conditional upon minimum lot areas for septic tanks and twenty
percent or less impervious surface.
The objective of the groundwater protection ordinance is to
reduce the risk of contamination to the spring, not provide a
56
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Figure G Clarke County Aquifer Protection Area
57
-------
one hundred percent assurance of no contamination. A cost bene-
fit analysis determined that replacing the septic tanks with a
sanitary sewer would provide the best protection. But this
approach was not economically feasible. The County determined
that it would be seven times more expensive economically to
replace the spring than to institute the protection program.
Clarke County's approach to protect its groundwater supply
is based upon suitability of soil to septic tanks within an
overlay zone. This conditional standard addresses the local risk
to the groundwater. A local risk can involve several government
bodies. The discussion that follows of Dare County, North Caro-
lina addresses groundwater quality through an overlay district
that includes both state and local government involvement.
58
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Protecting the Water Supply In Buxton Woods, North Carolina:
A State and Local Approach
Groundwater protection in the area around Buxton Woods in
Dare County, North Carolina is integral to the quality of life
for a population which has increased over sixty percent from 1980
to 1988 (EC Carolina. CojaDiyailX Ecsfile, 1990). Hatteras Island
(Figure H) contains National Park Service land with the largest
maritime forest in North Carolina.
On the shores of Hatteras Island, miles of beaches, sand
dunes, wildlife, and a lighthouse attract increasing numbers of
tourists. Indeed tourism is directly responsible for persistent
development pressures. To successfully implement wellfield
protection area which included a overlay zoning district, Dare
County addressed issues concerning development pressures, bound-
ary determination, and scientific justification of the regulatory
strategy.
Consulting hydrogeologist, Ralph Heath (1988) believes "the
availability of groundwater may be the single most important
factor affecting the ultimate level of growth of the area."
According to Ries Collier (1991), park biologist, the risk to the
aquifer is profound because all development depends upon it for
water supply. There is no question that contamination would be
serious, but what poses a threat and what is adequate protection
have been the focus of much public debate. The variety of con
cerns expressed by local and private land owners, the water
59
-------
Hatteras Island and Dare County
Figure g: —Hap of tha central North Carolina coast showing
the location of Hatteras Island and Cape Hatteraa.
source: (Heath, 1987)
60
-------
utility, and developers illustrate the dynamics between economic
development and groundwater protection.
Vulnerability of the Wellfield to Contamination
Four Hatteras Island communities obtain their drinking water
from a wellfield of forty-four wells that the private utility,
Cape Hatteras Water Association (CHWA) owns (Foster, 1991). Dare
County is very dependent upon the private water supply because
most of the development is over the salty aquifer. So, it is in
the best interest of developers to protect their resource. Run-
off from roads and driveways and septic tank failures are major
concerns' (Anderson, 1987).
The aquifer is susceptable to salt water intrusion. The
shallow unconfined aquifer covers a five and a half mile area.
Currently withdrawals range from 0.8 MGD to 1.2 MGD in 1991
(Foster, 1991). By using a groundwater time of travel model and
taking into account attentuation, a much smaller area may be
designated for protection. According to Ralph Heath (1987), at
the current usage of 2 MGD, the 1 MGD per square mile recharge
flushes out saltwater so that discharge and recharge are equal.
He estimates that between 3 and 4 MGD may be withdrawn without
saltwater intrusion. "However, the Water Authority projects a
need of 4.5 MGD by 2000 based upon county growth figures (Heath,
1987). A moratorium is currently in effect until new wells are
in service (Foster, 1991).
Designation as a sole source aquifer was not considered
adequate protection because this designation would only regulate
61
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Figure 8 Dare County—Area of Environmental Concern
Figure .—Hap of the Cape Hattens area showing the »«11 field area of
environmental concern (ABC), Itnd ownenhlp, and Nell-field recharge
are«>.
Source: Heath, 1988
G 7.
-------
federal projects and development concerns on the island are
primarily private. The local government's zoning regulations
specify a special environmental district to protect the water
supply, aquifer and public health. These regulations specify
setback and density limitations but do not prohibit specific
uses. The southern part of the county's groundwater is protected
by designation as part of the Cape Hatteras Seashore (Figures').
As designated by the Coastal Area Management Act (CAMA), an Area
of Environmental Concern overlays the zoning regulations of the
county and is managed by North Carolina's Coastal Resources
Commission. The Area of Environmental Concern protects the water
supply of the area. Development may not limit the "quality or
quantity of the public water supply" or cause salt water intru-
r
sion or toxic discharge into surface water or groundwater.
Development in the Area of Environmental Concern must comply with
standards granted before receiving a CAMA permit.
Water Service Expansion
The Cape Hatteras Water Association is a private .pn6non-
profit organization that has been serving four Hatteras communi-
ties for twenty-five years. To expand the wellfield the utility
hired hydrogeologists to determine"which areas would be the most
productive with the least chance of salt water intrusion. To
determine a site for the proposed wells, the utility eliminated
study areas not meeting CAMA requirements and areas that citizens
highly opposed from the study areas. The cost of developing new
water wells was obtained from impact fees for new hookups (Fos-
63
-------
ter, 1991). Development has been a promoting factor for the
extension of the wellfield area! According to a Hatteras Island
resident, Mark Nash (1987), large high occupancy vacation homes
use a great deal of water. A plan for 480 high density dwelling
units has been cited as "indirectly responsible for the current
need for expanded wellfield protection areas." He proposed
limiting development to current wellfield capacity.
Local and state government planners work toward protection
of areas designated by the utility as wellfield sites. The Cape
Hatteras Water Authority requested expansion of the Area of
Environmental Concern to include areas designated by the utility
as future wellfield sites. The Coastal Resources Commission
approved the new boundaries of the overlay at 1500 feet from the
center of the wellfield.
Officials at the Division of Health Services recommended
that "septic tanks be prohibited without exception" (Wolter,
1987). But on July 29, 1987, Coastal Resources Commission voted
to allow septic tanks in lots platted by July 24, 1987 if no
other economical method of wastewater treatment is available and
no space is available outside the overlay district for a septic
tank. However, a "conditional use standard, which allows septic
tanks doesn't help property owners with large, unsubdivided and
unplatted parcels of land" (Wolter, 1987).
Hydrogeological consultant, Edwin Andrews III, complained of
a "lack of public availability of the complete technical data
being relied upon by extension proponents" (Owens, 1987). He
suggested that existing septic tanks posed a greater threat than
64
-------
any future development "that might be prohibited or restricted by
the declaration or extension of an AEC surrounding that northern
prong" (Owens, 1987).
Determining the Boundary of the Overlay Protection District
The County administers minor CAMA permits for the AEC that
are generally less than one acre. The state administers large
permits for land uses such as subdivisions. Designating the
boundaries of the overlay district was controversial. A consult-
ing firm conducted drawdown studies, and then the USGS completed
an indepth study of the aquifer in, 1975. The boundary extension
was based upon the sub-recharge area, mapped drainage divides,
and a safety factor to account for uncertainity of the topograph-
ic maps (Cantral, undated).
Three state hydrologists studied the aquifer to determine
the distance that the overlay should cover. The hydrologists
agreed, but not with certainty, upon a minimum distance of 500
feet. Their inability to agree promoted debate among landowners
(Herndon, 1987). Dare County Commissioner, Thomas Gray, stated
that "the scientific evidence of adversely influencing the well-
field is just simply not shown." David Owens, director of the
Coastal Resources Commission, said the state needed more data
(C23Stl2Dd llffles, 1987).
Lack of readily available conclusive scientific information
prompted much debate. Some property owners hired attorneys and
hydrogeologists to prove that their property was not within the
65
-------
overlay district and that their land uses would not contaminate
the public wellfield. For Instance, an owner of the Foreman and
Blades property used a report from the United States Geological
Survey to substantiate his claim that, due to the direction of
groundwater flow, any pollutants discharged from his property
would not pose a contamination risk to the wellfield (Lovett,
1986). A developer, William Lovett, hired consultants to show•
that the land he wanted to develop as a golf course was not
subject to AEG permitting because it was 500 feet north of the
overlay district (Wolter, 1987). Prompted by disagreement ex-
pressed by the Cape Hatteras Water Association and by absence of
a map of the original overlay designation, the Coastal Resource
Commission reversed its earlier determination concerning the
proposed golf course development (Owens, 1987).
Dare County Zoning
County zoning regulations on Hatteras Island require minimum
lots of 1500 square feet. A Special District, an overlay zone,
protect the water supply. This area is zoned for residential
development with lots of at least one acre with no more than
twenty percent clearing of vegetation cover. According to Ray
Sturza, Dare County Planner, the special district was formed in
response to pressures by interest groups and to prevent the state
from having all control over land use decisions in the Special
District which overlays the AEC.
Dare County discourages development that may have an adverse
effect upon water quality. The county administers minor CAMA
66
-------
permits while the state administers large permits for land uses
over one acre.
Role of State and Local Government
The Coastal Resources Commission, Cape Hatteras Water Asso-
ciation, Dare County Planning Department, and the National Park
Service lead strong roles supporting Dare County's wellhead
protection program. In the Area of Environmental Concern use
standards apply which prohibit septic tanks unless eligible for a
variance. The CAMA program has had a strong impact on the poli-
cies of Dare County. The 1987 update to the La.Dd. Use. £la.O a.Dd.
EQliSi££ £2C Sr.QWi.tl 2Dd Development was funded under the Coastal
Area Management Act. Studies to fine tune the program are ongo-
ing. Local government plans to provide ambient and periodically
private well testing and supports preparation of a hydrogeolocial
study of Dare County (Sturza, 1991).
Numerous studies are underway to address groundwater with-
drawals and the potential impact upon the environment. The Na-
tional Park Service has played a significant role in groundwater
protection and coordinated studies to identify groundwater con-
tamination. The Service is concerned with identifying and miti-
gating any impacts from water withdrawals. Studies are currently
underway to develop base line water quality data and to define
the link between surface water and aquifer withdrawals (Collier,
1991).
67
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Conclusion
Groundwater is important to the long term development of
Dare County. Both local and state government officials have led
important roles in wellfield protection. Justification of the
overlay zoning boundaries and contamination sources was necessary
to gain support for the regulations.
68
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VIII. The Decision to Use Overlay Zoning
A community's decision to use overlay zoning will
depend upon both the developmental objectives and present
conditions of the governmental unit. First, land use regu-
lations are particularly important for communities where
public wells constitute the sole source of drinking water,
and future development is dependent upon an adequate quanti-
ty of water. For these communities a high degree of liabil-
ity may be associated with inaction and a comprehensive
approach to groundwater management is preferrable. Second,
overlay zoning is appropriate for municipalities where
citizens support the need for wellhead protection, and
zoning is an accepted governmental function. Third, where
government leaders can reach a consensus of opinion concern-
ing groundwater protection objectives, overlay zoning may be
a strong tool. To obtain a consistent base of knowledge
much research is often needed to identify potential sources
of contamination and identify where to impose regulations.
Special studies may help planner to prioritize risks and
define the boundaries of an overlay zone. Continual evalua-
tory efforts may be necessary so that the overlay zoning
ordinance is legally defensible. Fourth, overlay zoning is
particularly suited to communities that are not heavily
developed but anticipate growth. In areas that have many
69
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existing businesses, overlay zoning is only effective if the
state enabling statute does not limit the regulation of
nonconforming uses. If regulation of nonconforming uses is
limited overlay zoning is a weak tool for protecting ground-
water quality.
70
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IX. Limitations of the Evaluation and Suggestions
for Further Study
The case studies illustrate some representative well-
head protection programs that incorporate overlay zoning.
The case studies were selected based upon available data and
documentation from government representatives. The amount
of documentation for each case study varies. Some of the
conclusions are based upon the subjective interpretations of
government officials. The evaluation gives insights as to
how useful overlay zoning may be used for communities with a
variety of development patterns and contamination risks.
Further research might include a survey that would
address questions such as whether localities need technical
assistance or regulatory assistance when planning developing
overlay zoning ordinances. The survey should determine on a
state by state basis whether or not zoning enabling legisla-
tion permits the regulation of existing businesses in zoning
ordinances. A more comprehensive analysis of case law at
the district level would be useful concerning nonconforming
uses. A recent case study of a community that did not use
overlay zoning would be helpful to contrast with a community
that used overlay zoning. Also, a nationwide listing of
communities with overlay zoning and the characteristics of
each might be useful to communities considering wellhead
protection. Lastly, one might determine how long overlay
zoning has been a tool for wellhead protection.
-------
. Recommendations
Communities with successful programs and those develop-
ing a wellhead protection program with overlay zoning may
wish to consider the following recommendations concerning
t
planning, participation, and monitoring.
1. Community involvement and education are part of an
ongoing commitment to wellhead protection. Provisions for
revising and assessing wellhead protection programs are
important to successful implementation. To select the
appropriate tool for wellhead protection and ensure that the
reasoning behind the regulations is legally justifiable
special studies may be necessary. Studies may determine
sources of contamination, prioritize risk to the wells, and
Justify the dimensions of the overlay zone.
Monitoring and some form of inspections are an impor-
tant part of ongoing evaluatory efforts. By establishing
monitoring wells, a community may be able to locate and stop
the movement of contaminants before they reach the public
water supply. Registration and reporting requirements are
easily coordinated with performance standards and provide
information to the locality about land uses. Inspections
ensure compliance with performance standards and a better
understanding of potential impacts upon wells.
-------
2. The most crucial element for successful development of a
wellhead protection program is public Involvement and educa-
tion. Ongoing community participation is necessary for
voluntary compliance and cooperation measures. These meas-
ures include proper disposal of household hazardous waste,
nonpoint source control from pesticide and fertilizer appli-
cation, proper septic tank disposal, best management prac-
r
tices, and minimization efforts for existing businesses.
Public involvement is part of the bargaining process to
address concerns that may conflict between business and
environmental concerns. Citizens may be directly involved
in the development of objectives for a wellhead protection
program or serve in an advisory capacity. Some voluntary
efforts may mobilize citizenry to aid in identification of
potential contaminating activities.
Public participation is prone to problems unless gov-
ernment leaders have done their research to carefully prior-
itize potential contaminating sources and identify overlay
boundaries. All those people involved with the planning
stages need to agree upon the objectives of the wellhead
protection program. Coordination of wellhead protection
between local, state, and federal gove/ .ments is necessary
to encourage intergovernmental efforts and provide uniform
standards for land use regulations.
3. The availability of groundwater may impose physical
limitations upon growth of an area particularly for communi-
73
-------
ties with wells providing the sole source of drinking water.
Most master plans use projected growth figures for city
planning and expand utilities accordingly. Integrated
approaches such as Hopkinton's focus upon an environmental
approach to planning, and a variety of regulatory tools may
be necessary.
Wellhead protection is part of the total picture of
environmental regulation. The coverage of wetland and
watershed regulations may overlap with groundwater protec-
tion measures. Other programs and regulatory mechanisms
may be used to compensate for limitations of overlay zoning
where zoning enabling legislation prevents nonconforming
businesses from being regulated under zoning ordinances. In
some communities such a Stoughton, health regulations can
provide performance standards for some existing uses.
Conclusion
Over the long term, the best indicator of a successful
use of overlay zoning in wellhead programs may be absence of
groundwater contamination. However, many communities are
just in the process of developing their wellhead protection
programs. With close monitoring in the next few years there
will be more information about the nature of these programs.
-------
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82'
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