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
                                 11

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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"





                                 12

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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).
                                 14

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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).
                                 15

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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,
                                 16

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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





                                17

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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





                                 18

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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,





                                19

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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.
                                 20

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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.
                                21

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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.






                                23

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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)

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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.
                                 32

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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.
                                 33

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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.
                                36

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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.





                                38

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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
                                43

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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.
                                 45

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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
                                 46

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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.
                                49

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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

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             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.

-------

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                      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

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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

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           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

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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.

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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

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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

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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

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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

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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.

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                       . 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.

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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

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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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