SESSION OBJECTIVES Regulatory requirements Permitting process by the BOH Technical Legal Tools for the job: 310 CMR MassDEP’s Guidelines for Title 5 Aggregation of Flows and Nitrogen Loading, dated 7/01/98
BUT BEFORE WE START… Bylaws or regulations? Approve? Legal review?
REGULATORY 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 IIs Nitrogen Sensitive Embayments
IWPA A protective radius around the public water supply well, typically based upon the pumping rate of the well.
Zone II An area of an aquifer which contributes water to a well under the most severe pumping and recharge conditions. Based on soils and geology.
440 gpd/acre Defined Design flow/acreage of facility Acre = 40,000 sf (310 CMR ) Rules of thumb: 1 bedroom needs 10,000 sf
TECHNICAL REVIEW 3-bedroom house 43,560 sf lot = 1.09 ac (under T5) 330 gpd/1.09 ac = 303 gpd/ac < 440 gpd/ac If in an IWPA/Zone II or private well area, does the lot meet 440 gpd/acre?
Let’s say it exceeds 440 gpd/acre in an IWPA, Zone II or private well area… Options: 1) use an I/A (660 gpd/acre); or 2) acquire credit land. 3-bedroom house 20,000 sf lot = 0.5 ac 330 gpd/0.5 ac = 660 gpd/ac > 440 gpd/ac
Credit 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; and Does 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.
Additional Requirements for Credit Land IWPA or Zone II Area Credit land must be some where else in that same IWPA or Zone II. Private Well Area Credit land must be adjacent to the facility land; and If design flow is 2,000 gpd or greater, the credit land must be downgradient of the facility land.
Land Use Restrictions Land use restrictions must be recorded in appropriate Registry of deeds to ensure that the 400 gpd/acre equivalency is met across: 1) facility land; and 2) nitrogen credit land 310 CMR (5) (b)
Documents – 3 Types Grant of Title 5 Nitrogen Loading Restriction and Easement on Facility Land Always required Grant of Title 5 Nitrogen Loading Restriction and Easement on Nitrogen Credit Land When facility owner does not own credit land Grant of Title 5 Nitrogen Loading Restriction and Easement When facility owner owns the credit land Two of these will always be required for all Nitrogen Aggregation Plans.
Restriction 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; and Running to the benefit of the municipality acting through its BOH and to the facility land
Grant of Title 5 Nitrogen Loading Restriction and Easement on Facility Land Mandatory 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 bedrooms
Grant of Title 5 Nitrogen Loading Restriction and Easement on Nitrogen Credit Land Must be recorded when the owner of the facility does not own the credit land; Sets aside an easement with restrictions (discussed later); and Essentially no wastewater or nitrogen may be loaded on the credit land.
Grant 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.
Conservation Restriction Option Grant of Title 5 Nitrogen Loading Restriction and Easement on Nitrogen Credit Land; or Grant of Title 5 Nitrogen Loading Restriction and Easement. Instead of either of these: The Grant of Title 5 Nitrogen Loading Restriction and Easement on Facility Land is still required.
Conservation Restriction Must be granted to municipality acting though its BOH Must be approved by Secretary of EEA Must 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 restriction EEA Secretary must also approved release of restriction
Tools for Nitrogen Aggregation 310 CMR 310 CMR – Nitrogen Limitations 310 CMR NSA Definition 310 CMR – Aggregate Determinations (4) Community Aggregation Plans (5) Facility Aggregation Plans MassDEP’s Guidelines for Title 5 Aggregation of Flows and Nitrogen Loading, dated 7/01/98 er/a-thru-n/nagg95p.pdf
Some Unique Situations Facility is located in more than one Zone II, IWPA or combo Ideally credit land should be in the same NSAs More than 1 credit land Whose PWSs are affected? Where is the discharge? Zone II or IWPA? and location within the NSA. I/A may be a solution. Facility is in one municipality but credit land is another Perfectly acceptable Location within the same NSA is the key – municipal boundaries don’t come into play. Communication is key – other BOH should know what’s happening.