2SESSION OBJECTIVES Regulatory requirements Permitting process by the BOHTechnicalLegalTools for the job:310 CMRMassDEP’s Guidelines for Title 5 Aggregation of Flows and Nitrogen Loading, dated 7/01/98
3BUT BEFORE WE START…Bylaws or regulations?Approve?Legal review?
4REGULATORY REQUIREMENTS 310 CMR :No system serving new construction in Nitrogen Sensitive Areas … shall be designed to receive or shall receive more than 440 gallons of design flow per day per acre.No system served by both a well and septic system shall receive more than 440 gallons of design flow per day per acre. (a.k.a. “private well areas”).310 CMR , defines NSAs:Interim Wellhead Protection Areas (IWPAs)Zone IIsNitrogen Sensitive Embayments
5IWPAA protective radius around the public water supply well, typically based upon the pumping rate of the well.
6Zone IIAn area of an aquifer which contributes water to a well under the most severe pumping and recharge conditions. Based on soils and geology.
7440 gpd/acre Defined Design flow/acreage of facility Acre = 40,000 sf (310 CMR )Rules of thumb:1 bedroom needs 10,000 sf
8TECHNICAL REVIEWIf in an IWPA/Zone II or private well area, does the lot meet 440 gpd/acre?3-bedroom house43,560 sf lot = 1.09 ac (under T5)330 gpd/1.09 ac = 303 gpd/ac < 440 gpd/ac
9Let’s say it exceeds 440 gpd/acre in an IWPA, Zone II or private well area… Options:use an I/A (660 gpd/acre); oracquire credit land.3-bedroom house20,000 sf lot = 0.5 ac330 gpd/0.5 ac =660 gpd/ac > 440 gpd/ac
10Credit Land Requirements No man-made sources of nitrogen;No artificially created impervious surfaces;Not located within a velocity zone or regulatory floodway identified by FEMA;Not be located under a surface water body such as a river, pond, stream, lakes, or the ocean (credit land can include bordering vegetated wetland areas);Cannot also serve as credit land for another Facility Aggregation Plan; andDoes not have to be located in the same municipality.Caution should be exercised if there is already an easement of any sort on the credit land.
11Additional Requirements for Credit Land IWPA or Zone II AreaPrivate Well AreaCredit land must be some where else in that same IWPA or Zone II.Credit land must be adjacent to the facility land; andIf design flow is 2,000 gpd or greater, the credit land must be downgradient of the facility land.
12Land Use RestrictionsLand use restrictions must be recorded in appropriate Registry of deeds to ensure that the 400 gpd/acre equivalency is met across:1) facility land; and2) nitrogen credit land310 CMR (5) (b)
13Documents – 3 TypesGrant of Title 5 Nitrogen Loading Restriction and Easement on Facility LandAlways requiredGrant of Title 5 Nitrogen Loading Restriction and Easement on Nitrogen Credit LandWhen facility owner does not own credit landGrant of Title 5 Nitrogen Loading Restriction and EasementWhen facility owner owns the credit landTwo of these will always be required for all Nitrogen Aggregation Plans.
14Restriction Documents Substantially identical to those contained in MassDEP’s Guidelines for Title 5 Aggregation of Flows and Nitrogen Loading, 310 CMR , with revision date of 6/03/2009;Perpetual; andRunning to the benefit of the municipality acting through its BOH and to the facility land
15Mandatory for all Nitrogen Aggregation Plans; Recorded at the Registry of Deeds;Restricts the wastewater design flow on the facility land;For residential, limits the number of bedroomsGrant of Title 5 Nitrogen Loading Restriction and Easement on Facility Land
16Must be recorded when the owner of the facility does not own the credit land; Sets aside an easement with restrictions (discussed later); andEssentially no wastewater or nitrogen may be loaded on the credit land.Grant of Title 5 Nitrogen Loading Restriction and Easement on Nitrogen Credit Land
17Grant of Title 5 Nitrogen Loading Restriction and Easement Must be recorded when the owner of the facility owns both the facility and the credit land;Creates an easement with land use restrictions;Essentially no wastewater or nitrogen may be loaded on the credit land.
18Conservation Restriction Option Instead of either of these:Grant of Title 5 Nitrogen Loading Restriction and Easement on Nitrogen Credit Land; orGrant of Title 5 Nitrogen Loading Restriction and Easement.The Grant of Title 5 Nitrogen Loading Restriction and Easement on Facility Land is still required.
19Conservation Restriction Must be granted to municipality acting though its BOHMust be approved by Secretary of EEAMust comply with other applicable requirements set forth in M.G.L. c. 184, sections 31, 32 and 33.BOH must provide notice and hold a public hearing to release restrictionEEA Secretary must also approved release of restriction
20Tools for Nitrogen Aggregation 310 CMR310 CMR – Nitrogen Limitations310 CMR NSA Definition310 CMR – Aggregate Determinations(4) Community Aggregation Plans(5) Facility Aggregation PlansMassDEP’s Guidelines for Title 5 Aggregation of Flows and Nitrogen Loading, dated 7/01/98er/a-thru-n/nagg95p.pdf
21Some Unique Situations Facility is located in more than one Zone II, IWPA or comboFacility is in one municipality but credit land is anotherIdeally credit land should be in the same NSAsMore than 1 credit landWhose PWSs are affected?Where is the discharge? Zone II or IWPA? and location within the NSA.I/A may be a solution.Perfectly acceptableLocation within the same NSA is the key – municipal boundaries don’t come into play.Communication is key – other BOH should know what’s happening.