HB 1395 – AS INTRODUCED
2006 SESSION
06/01
HOUSE BILL 1395
AN ACT relative to public drinking water protection.
SPONSORS: Rep. M. Martin, Hills 26; Rep. Crane, Hills 21; Rep. Balboni, Hills 21; Rep. Spang, Straf 7; Rep. Hall, Hills 5; Sen. Johnson, Dist 2
COMMITTEE: Resources, Recreation and Development
This bill:
I. Requires additional protections for surface drinking water supplies.
II. Prohibits certain activities within 300 feet of a surface drinking water supply and regulates nonconforming uses.
III. Requires public utility water companies that acquire land as a buffer for a public water supply to hold such lands in trust as the property of the ratepayers.
IV. Adds surface water supply sources and their tributaries to the shoreland protection act.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
06-2598
06/01
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Six
AN ACT relative to public drinking water protection.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Subdivision; Protection of Surface Water Supply Sources and Watersheds. Amend RSA 485 by inserting after section 61 the following new subdivision:
Protection of Surface Water Supply Sources and Watersheds
485:62 Purpose. The general court finds that:
I. There is an urgent need to preserve the purity and supply of drinking water to protect public health and to lower public water supply treatment costs.
II. Of 20,000 acres owned or controlled by public water systems in New Hampshire, 85 percent of the land protects surface drinking water supplies.
III. One half of the state’s surface drinking water sources do not have protection.
IV. Rapid growth will have deleterious consequences for water quality and the natural replenishment of surface water supplies.
V. New Hampshire needs to protect public drinking water sources. The federal Safe Drinking Water Act amendments of 1996 place stricter standards on the treatment of drinking water from surface sources making it all the more important to keep drinking water sources clean.
VI. Protecting a strip of land surrounding a drinking water source and its direct tributaries will help to preserve the purity of public drinking water.
VII. Land uses outside of the protected buffer zone also impact a drinking water source and need to be addressed in other legislation relative to land use ordinances and regulations.
485:63 Definitions. In this subdivision:
I. “Best management practices” means temporary and permanent erosion control measures delineated in the August 1992 edition of “Stormwater Management and Erosion and Sediment Control Handbook for Urban and Developing Areas in New Hampshire” by the New Hampshire department of environmental services, the Rockingham conservation district and the United States Department of Agriculture Soil Conservation Service, or any subsequent edition of the same manual or another manual adopted by the department’s alteration of terrain program under RSA 485-A:17, I.
II. “Direct tributary” means that portion of any stream shown on the current version of the United States Geological Survey 7 ½ minute topographic maps, that does not flow into or through a pond, lake, reservoir, or impoundment of 5 acres or more before reaching a surface water supply source. The department shall maintain a list of tributaries and make it available.
III. “Junk yard” means “junk yard” as defined in RSA 236:112.
IV. “Low phosphate, slow-release nitrogen fertilizer” means nitrogen fertilizer containing less than 5 percent phosphorus by dry weight.
V. “Person” means a corporation, company, association, society, firm, partnership, or joint stock company, as well as an individual.
VI. “Protected area” means the area within 300 feet of the reference line of a surface water supply source and within 200 feet of the reference line of any direct tributary to a surface water supply source.
VII. “Reference line” means “reference line” as defined in RSA 483-B:4, XVII.
VIII. “Restricted area” means the area within 200 feet of the reference line of a surface water supply source and within 100 feet of the reference line of any direct tributary to a surface water supply source.
IX. “Surface water supply source” means any water body, area, or location designated as such on a list to be drawn up, maintained, and made available by the department which shall be reviewed for accuracy and applicable best available science at least annually.
X. “Watershed” means the area from which surface water drains into a surface water supply source, including areas that drain to any water body from which water is diverted to a surface water supply source.
485:64 Area Affected. This subdivision shall be effective within the watershed of all surface water supply sources.
485:65 Restricted Area; Prohibitions and Restrictions. Within the restricted area:
I. No person shall generate, store, dispose, or discharge waste or pollutants, including stormwater and sanitary wastewater, other than single-family on-site wastewater disposal systems set back from the reference line as required by RSA 483-B:9, V(b)(2).
II. No person shall apply septage, sewage sludge, animal manure, or fertilizer to the land.
III. No person shall build a structure or road or allow soil to be eroded by runoff concentrated as a result of land clearing or disturbance.
IV. Where existing, a natural woodland buffer shall be maintained according to the standards established in RSA 483-B:9, V (a), in the entire restricted area.
485:66 Protected Area; Prohibitions and Restrictions. Within the protected area, no person shall:
I. Dispose of pollutants from sewage treatment facilities other than on-site subsurface disposal systems.
II. Construct or replace a septic system leaching field less than 4 feet above maximum water table.
III. Store liquid petroleum products, or liquids containing a portion thereof, excluding normal residential use and heating fuels for on-premise use.
IV. Generate, store, use, treat, or dispose of hazardous waste, excluding generation or storage for incidental residential use.
V. Store or dispose of solid waste, excluding storage related to incidental residential use.
VI. Store road salt or de-icing chemicals, excluding incidental residential use.
VII. Store fertilizers, herbicides, or pesticides outdoors.
VIII. Store manure or sewage sludge outdoors in such a way that rain or snowmelt runoff may become contaminated by it.
IX. Service, wash, or repair boats or motor vehicles, excluding incidental residential use.
X. Operate a junk yard or salvage yard.
XI. Render impervious more than 10 percent of any lot or 2,500 square feet on any one lot, whichever is greater.
XII. Allow or cause to be discharged to the surface or to groundwater any stormwater or runoff that has not been treated by best management practices.
XIII. Discharge or deposit fill or dredged material.
XIV. Conduct any activity which is likely to degrade the quality of water in a surface water supply source.
485:67 Nonconforming Uses. An existing nonconforming land use within the protected area shall be governed by the following:
I. A nonconforming land use existing as of the effective date of this subdivision may be continued, subject to the following:
(a) Land within 50 feet of a surface water supply source shall be allowed to return to and remain in its natural state, with no cutting or removal of soil or vegetation, or shall be revegetated with a healthy, well-distributed stand of saplings, shrubs, and groundcover.
(b) On lawns or areas with grass that are more than 50 feet from a surface water supply source or any direct tributary thereto, no fertilizers such as lawn or garden fertilizers may be used with the exception of phosphate-free slow-release nitrogen fertilizer, or low phosphate, slow-release nitrogen fertilizer with up to 5 percent phosphate where a current soil test indicates the need for phosphates.
(c) The department shall require the use of best management practices if the department determines they are needed to restore or protect water quality.
(d) The commissioner by rule shall establish criteria for determining when best management practices shall be required.
II. Existing nonconforming land uses shall be subject to any other rules which may limit the continuance of an existing use.
III. If a change in use, including a change from seasonal to year-round use or an increase in the intensity of a land use to such an extent that the nature or magnitude of its impact on water quality can be expected to increase, occurs or is proposed, all of the requirements of this subdivision shall apply.
IV. If an existing nonconforming use is discontinued for 2 consecutive years, all of the requirements of this section shall apply.
485:68 Appeal.
I. Recognizing that circumstances may vary significantly among surface water supply sources, the commissioner may waive a protective requirement of RSA 485:65 - 485:67 upon a finding that the requirement may be waived without adverse impact upon the public water supply source. The commissioner shall weigh the importance of the public benefit conferred against the seriousness of any restriction of private benefit imposed by the requirement from which a petitioner seeks special consideration.
II. The stakeholders requesting the special consideration together with the conservation commission and the governing body of the municipality in which the special consideration is sought may petition the department for a special consideration within 2 years of the effective date of this subdivision. The signatures of the petitioner and any affected landowners shall constitute certification that the information provided in the petition is true, complete, and not misleading.
III. The department shall act upon the petition but in no case shall the department delay its decision on a special consideration for more than 5 years after the effective date of this subdivision.
IV. A special consideration granted under this section shall not continue if the use of the property changes. The special consideration shall not run with the land and is not transferable.
V. Before determining whether to grant a waiver for the special consideration requested, an employee of the department’s drinking water protection program, or its equivalent, shall investigate and determine the existence of facts necessary to determine whether a petition is reasonable.
VI. The commissioner shall grant a petition for a special consideration upon finding that:
(a) The special consideration requested shall provide at least equivalent protection to the requirement sought to be waived.
(b) If the special consideration is not equivalent to the requirement sought to be waived or other requirements of this subdivision, the special consideration is adequate to ensure that the intent of this subdivision is met and it conforms to rules adopted under RSA 485:24 and RSA 485:25.
(c) Denial of the special consideration would result in loss of all economically beneficial or productive use of an existing property.
VII. The commissioner may attach conditions to the approval of a petition for special consideration if he or she finds that the conditions are necessary to ensure that the intent of this subdivision is met to the greatest extent possible and that the special consideration conforms to rules adopted under RSA 485:23 and RSA 485:25.
VIII. The commissioner shall send a written decision on the petition for special consideration to the petitioner, the property owner if other than the applicant, the municipality in which the property is located, and any affected water supplier. If the petition is denied, the decision shall state the reasons for the denial.
IX. If a special consideration is granted, the department shall review it at least once every 10 years, using the criteria under paragraph VI and the best available science. The special consideration may be renewed.
485:69 Penalty. Any person violating this subdivision shall be guilty of a misdemeanor if a natural person or guilty of a felony if any other person.
485:70 Effect on Local Ordinances. Nothing in this subdivision shall be deemed to preempt the authority of the municipalities in the affected area, under other statutes, to enact local ordinances or regulations protecting a surface water supply source and its watershed; provided, however, that requirements imposed under this subdivision shall be considered as minimum.
2 New Paragraph; Public Utility Water Companies; Land Held in Trust. Amend RSA 362:4 by inserting after paragraph VI the following new paragraph:
VII. A public utility water company that acquires lands as a buffer for a public water supply shall hold such lands in trust as the property of the ratepayers.
3 New Subparagraphs; Shoreland Protection Act; Surface Water Supply Sources and Tributaries Added. Amend RSA 483-B:4, XVI by inserting after subparagraph (c) the following new subparagraphs:
(d) Surface water supply sources, meaning any water body, area, or location designated as such on a list to be drawn up, maintained, and made available by the department.
(e) Direct tributaries of surface water supply sources, meaning that portion of any stream, shown on the current version of the United States Geological Survey 7 ½ minute topographic maps, that does not flow into or through a pond, lake, reservoir, or impoundment of 5 acres or more before reaching a surface water supply source and is on a list of tributaries maintained by the department.
4 Effective Date. This act shall take effect January 1, 2007.