Rochester City Zoning Code
ARTICLE 10
Aquifer Protection Overlay District APOD
[Amended 6-16-2015]
§ 275-10.1 Authority.
The City of Rochester hereby adopts this article pursuant to the authority granted under RSA 674:16, in particular RSA 674:16, II, relative to innovative land use controls.
§ 275-10.2 Purpose.
The purpose of this article is to preserve, maintain, and protect from contamination existing and potential groundwater supply areas that may be available for use as a current or future source of supply for Rochester's municipal water system. This article serves as a public education tool to provide residents and small businesses awareness on typically unrecognized hazards.
§ 275-10.3 Definitions.
As used in this article, the following terms shall have the meanings indicated:
AQUIFER
A geologic formation composed of rock, sand, or gravel that contains significant amounts of potentially recoverable water. (NHDES Model Groundwater Protection Ordinance, Chapter 2.5, Protection of Groundwater and Surface Water Resources, Innovative Land Use Planning Techniques)
FUEL STORAGE
See Article 2 of this chapter.
GASOLINE STATION
See Article 2 of this chapter.
GROUNDWATER
Subsurface water that occurs beneath the water table in soils and geologic formations. (RSA 485-C:2, VIII, the Groundwater Protection Act)
HOUSEHOLD HAZARDOUS WASTE COLLECTION PROJECT
Any location that accumulates, collects, transfers, or otherwise manages household hazardous waste. (Section Env-Hw 103.66, New Hampshire Code of Administrative Rules).
IMPERVIOUS SURFACE
A surface through which regulated substances cannot pass when spilled. The term includes concrete and asphalt unless unsealed cracks or holes are present, but does not include earthen, wooden, or gravel surfaces or other surfaces that could react with or dissolve when in contact with the substances stored on them. [Section Env-Wq 401.03(c), New Hampshire Code of Administrative Rules]
JUNKYARD
See Article 2 of this chapter.
REGULATED CONTAINER
Any device in which a regulated substance is stored, transported, treated, disposed of, or otherwise handled with a capacity of greater than or equal to five gallons. [Section Env-Wq 401.03(g), New Hampshire Code of Administrative Rules]
REGULATED SUBSTANCE
Any of the following, with the exclusion of all substances used for the treatment of drinking water or wastewater at facilities approved by the Department of Environmental Services[1] [Section Env-Wq 401.03(h), New Hampshire Code of Administrative Rules]:
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
A.
Petroleum products and their by-products of any kind, and in any form, including but not limited to petroleum, fuel, sludge, crude oil refuse or oil mixed with wastes and all other liquid hydrocarbons regardless of specific gravity and which are used as motor fuel, lubricating oil, or any oil used for heating or processing. Shall not include natural gas, liquefied petroleum gas or synthetic natural gas regardless of derivation or source. (RSA 146-A:2, III, Oil Discharge or Spillage in Surface Water or Groundwater); or
B.
Any substance that contains a regulated contaminant for which an ambient groundwater quality standard has been established pursuant to RSA 485-C:6; or
C.
Any hazardous substance listed in 40 CFR Part 302, Table 302.4. Reportable quantities of hazardous substances as listed in 40 CFR Part 302, Table 302.4, under column heading final RQ pounds (Kg).
ROCHESTER MUNICIPAL WATER SYSTEM
The public treatment and distribution system, which consists of water treatment plants, water main pipes, storage tanks, booster stations, and service connections that convey potable water for domestic, fire protection, and other community uses.
SANITARY PROTECTIVE RADIUS
Area around a public water supply well which must be maintained in its natural state as required by Section Env-Dw 301.06 (small community wells) and Section Env-Dw 302.06 (large community wells), New Hampshire Code of Administrative Rules.
SEASONAL HIGH WATER TABLE
The depth from the mineral soil surface to the uppermost soil horizon that contains 2% or more distinct or prominent redoximorphic features that increase in percentage with increasing depth as determined by a licensed hydrogeologist, soils scientist, wetlands scientist, engineer or other qualified professional approved by the Planning Board or the shallowest depth measured from ground surface to free water that stands in an unlined or screened borehole for a period of one week or more.[2] (Section Env-Wq 1502.49, New Hampshire Code of Administrative Rules, NHDES Alteration of Terrain)
SNOW DUMP
A location where snow is placed for disposal from any off-site location (i.e., cleared from roadways and/or motor vehicle parking areas). (NHDES Model Groundwater Protection Ordinance, Chapter 2.5, Protection of Groundwater and Surface Water Resources, Innovative Land Use Planning Techniques)
STRATIFIED DRIFT AQUIFER
A geologic formation of predominately well-sorted sediment deposited by or in bodies of glacial meltwater, including gravel, silt, or clay, which contains sufficient saturated permeable material to yield significant quantities of water to wells. (RSA 485-C:2, XIV, the Groundwater Protection Act)
WELLHEAD PROTECTION AREA
The surface and subsurface area surrounding a water well or well field supplying a community public water system, through which contaminants are reasonably likely to move toward and reach such water well or well field. (RSA 485-C:2, XVIII, the Groundwater Protection Act)
[1]
Note: These chemicals are excluded from the definition of regulated substances within State Administrative Rules Chapter Env-Wq 401 because they are used in the treatment of wastewater and drinking water supplies and are not considered to pose a significant risk to groundwater.
[2]
Note: This definition includes a focus on both soil morphology and groundwater hydrology.
§ 275-10.4 District boundaries.
The Aquifer Protection Overlay District (APOD) is an overlay district that is superimposed over the existing zoning. The APOD shall impose additional requirements and restrictions beyond the base zoning. Boundaries of the APOD shall be referenced by the latest edition of the map titled "City of Rochester Aquifer Protection Overlay District." The district shall include:
A.
All delineated wellhead protection areas around existing and potential municipal production water wells, including a protective radial distance of 1,000 feet[1] around those wells (see definition for "wellhead protection area" in § 275-10.3).
[1]
Note: The protective radius around the municipal production wells pertains to rock blasting activities.
§ 275-10.5 Applicability.
This article applies to all uses in the Aquifer Protection Overlay District, except for those uses exempt under this article (see § 275-10.11).
§ 275-10.6 Performance standards.
The following performance standards apply to all uses in the Aquifer Protection Overlay District unless exempt under this article (see § 275-10.11):
A.
For any use that will render impervious more than 20%[1] of any lot or 5,000 square feet of land disturbance of any lot, whichever is greater, a stormwater management and erosion control plan, approved by the Planning Board and prepared in accordance with Chapter 218, Stormwater Management and Erosion Control, of the City Code shall be provided.
[1]
Note: Two times the percentage of impervious surface area at which stream quality decreases (USGS, 2005).
B.
Animal manures, fertilizers, and compost must be stored in accordance with the Manual of Best Management Practices (BMPs) for Agriculture in New Hampshire, New Hampshire Department of Agriculture, Markets, and Food, revised June 2011, and any subsequent revisions.[2]
[2]
Note: See http://www.agriculture.nh.gov/publications-forms/documents/bmp-manual.pdf.
C.
All regulated substances within regulated containers or hazardous substances listed under 40 CFR 302.4 with a capacity equal to or greater than the reportable quantity must be used and stored in accordance with Part Env-Wq 401, Required Best Management Practices for Groundwater Protection, New Hampshire Code of Administrative Rules.
D.
All activities related to rock blasting must adhere to NHDES WD-10-12, Best Management Practices for Blasting, Rock Blasting and Water Quality Measures That Can Be Taken To Protect Water Quality and Mitigate Impacts, prepared 2010, and any subsequent revisions.
§ 275-10.7 Permitted uses.
All uses permitted by right or allowed by special exception in the underlying district are permitted unless they are prohibited uses or conditional uses in the Aquifer Protection Overlay District. All uses must comply with the performance standards unless specifically exempt under this article (see § 275-10.11).
§ 275-10.8 Prohibited uses.
The following uses are prohibited in the Aquifer Protection Overlay District:
A.
Development or operation of a solid waste facility.
B.
Outdoor storage of road salt or other deicing chemicals in bulk.
C.
Development or operation of a junkyard.
D.
Development or operation of a snow dump.
E.
Development or operation of a wastewater or septage lagoon.
F.
Development or operation of a petroleum bulk plant or terminal.
G.
Development or operation of gasoline stations.
H.
Use of powdered ammonium nitrate fuel oil and explosives that contain perchlorate during blasting activities.
§ 275-10.9 Conditional uses.
The Planning Board may vary the provisions herein by granting a conditional use permit in accordance with RSA 674:21, II, to allow for a use which is otherwise permitted in the underlying district. The following conditions shall apply to all uses in the Aquifer Protection Overlay District:
A.
Storage, handling, and use of regulated substances in quantities exceeding 55 gallons per container or 660 pounds per container[1] at any one time provided that an adequate regulated materials response plan has been submitted. This plan must address:
(1)
Description of the physical layout and a facility diagram, including all surrounding surface waters and wellhead protection areas.
(2)
Contact list and phone numbers for the facility response coordinator, cleanup contractors, and all appropriate federal, state, and local agencies which must be contacted in case of a release to the environment.
(3)
List of all regulated substances in use and locations of use and storage.
(4)
Description of containment and/or diversionary structures or equipment to prevent regulated substances from infiltrating into the ground.
(5)
List of positions within the facility that require training to respond to spills of regulated substances.
(6)
Prevention protocols that are to be followed after an event that causes large releases of any regulated substance.
[1]
Note: According to the Pipeline and Hazardous Materials Safety Administration's Emergency Response Guidebook, large spills are defined as containers that are greater than 55 US gallons (208 liters) for liquids and greater than 660 pounds (300 kilograms) for solids with regard to initial isolation and protection action distances. This is a standard that is used by the bulk of the voluntary first responder organizations.
B.
Any use that will render impervious more than 20% of any lot or 5,000 square feet of land disturbance, whichever is greater, provided that an adequate stormwater management plan has been submitted. This plan shall be prepared in accordance with Chapter 218, Stormwater Management and Erosion Control, of the City Code.
C.
Projects that will excavate more than a total of 5,000 cubic yards of bedrock through rock blasting activities within a two-year period or are within a radial distance of 1,000 feet from a municipal production well, provided that an adequate groundwater monitoring plan has been submitted.
(1)
This plan must address:
(a)
Identification of potential sensitive receptors and evaluation hydrogeological background information.
(b)
Identification of monitoring well locations and install monitoring wells, where appropriate.
(c)
Collection of background water quality samples to identify, or rule out, preexisting groundwater contamination issues and to establish background chemistry levels and performance criteria for groundwater quality.
(d)
Collection of periodic groundwater samples, including but not limited to nitrite/nitrates, as well as standard analysis for inorganic chemical, volatile organic chemical, and synthetic organic chemical contaminates as designated in Parts Env-Dw 703 through Env-Dw 705, and ambient groundwater quality standards as designated in Part Env-Or 603, New Hampshire Code of Administrative Rules, from the groundwater monitoring points during blasting, as well as collect water level data, when pertinent.
(e)
Collection of post-blast groundwater samples (conducting multiple rounds of sampling may be prudent, and/or sampling could be ongoing for extended periods if contamination is detected as a result of the blasting).
(2)
The Planning Board may, at its discretion, require a performance guarantee or bond in an amount and with conditions satisfactory to the Board to be posted to ensure completion of construction of any facilities required for compliance with the performance standards.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
§ 275-10.10 Existing nonconforming uses.
Existing nonconforming structures and uses are exempt from this article under RSA 674:19. Any existing nonconforming structures and uses must be in compliance with Article 30 of this chapter.
§ 275-10.11 Exemptions.
The following uses are exempt from the specified provisions of this article as long as they are in compliance with all applicable local, state, and federal requirements:
A.
Any private residence, excluding home occupations, is exempt from all performance standards.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
B.
Any business or facility where regulated substances are stored in regulated containers with a capacity of five or less gallons or where hazardous substances are stored in containers with a capacity of less than the reportable quantity is exempt from § 275-10.6C.
C.
Storage of heating fuels for on-site use or fuels for emergency electric generation, provided that storage tanks are indoors on a concrete floor or have corrosion control, leak detection, and secondary containment in place, is exempt from § 275-10.6C.
D.
Storage of motor fuel in tanks attached to vehicles and fitted with permanent fuel lines to enable the fuel to be used by that vehicle is exempt from § 275-10.6C.
E.
Storage and use of office supplies is exempt from § 275-10.6C.
F.
Temporary storage of construction materials on a site where they are to be used is exempt from § 275-10.6C if incorporated within the site development project within six months of their deposit on the site.
G.
The sale, transportation, and use of pesticides as defined in RSA 430:29, XXVI, are exempt from all provisions of this article.
H.
Any non-reoccurring household hazardous waste collection projects regulated under New Hampshire Code of Administrative Rules Sections Env-Hw 401.03(b)(1) and 501.01(b) are exempt from § 275-10.6C.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
I.
Underground storage tank systems and aboveground storage tank systems that are in compliance with applicable state rules are exempt from inspections under this article (see § 275-10.13).
§ 275-10.12 Relationship between state and local requirements.
Where both the state and the municipality have existing requirements, the more stringent shall govern.
§ 275-10.13 Maintenance and inspection.
A.
For uses requiring Planning Board approval for any reason, a narrative description of maintenance requirements for structures required to comply with performance standards shall be recorded so as to run with the land on which such structures are located at the Registry of Deeds for Strafford County. The description so prepared shall comply with the requirements of RSA 478:4-a.
B.
Inspections shall be required to verify compliance with performance standards. Such inspections shall be performed by City staff at reasonable times with prior notice to the landowner.
C.
All properties in the Aquifer Protection Overlay District known to City staff as using or storing regulated substances in regulated containers with a capacity greater than five gallons or hazardous substances with a capacity greater than the reportable quantity, except for facilities where all regulated substances storage is exempt from this article (see § 275-10.11), shall be subject to inspections.
D.
If applicable, a fee schedule shall be established by the City Council as provided for in RSA 41:9-a. The Rochester City Council shall require the fee be billed at an hourly rate as determined by the City of Rochester Public Works Department for compliance inspections. The fee shall be paid by the property owner.
E.
City staff shall develop reporting and tracking criteria for properties in the Aquifer Protection Overlay District that are subject to compliance inspections. Property owners shall submit reports to the City on a biennial (every other year) basis.
§ 275-10.14 Enforcement procedures and penalties.
Any violation of the requirements of this article shall be subject to the enforcement procedures and penalties detailed in RSA 676 or 485-C.
§ 275-10.15 Severability.
If any provision of this article is found to be unenforceable, such provision shall be considered separable and shall not be construed to invalidate the remainder of the article.
§ 275-10.16 Repeal.
All ordinances or parts of ordinances in conflict with this article are, to the extent of the conflict, hereby repealed.
§ 275-10.17 When effective.
This article shall be effective upon adoption by the Rochester City Council.