§ 28-3-6. Aquifer Protection (AP) District.

(a)

Purpose of the AP District. The AP District is established for the purpose of protecting the quality and quantity of groundwater resources available to be used as current or future drinking water supplies in the City of Concord. This District is intended to:

(1)

Maintain public health and welfare by protecting existing and potential sources of groundwater supplies;

(2)

Prevent land use practices and development that could reduce the amount of recharge available to aquifers identified as current or potential sources of drinking water;

(3)

Prevent land use practices and development that could contaminate or adversely impair the quality of groundwater within aquifers identified as current or potential sources of drinking water;

(4)

Provide for future growth, in accordance with the City of Concord Master Plan, by protecting the long-term availability of clean, safe public water; and

(5)

Identify land uses that can safely be sited in aquifer recharge areas and proximal to water supply wells.

(b)

Authority for the AP District. The AP District is established in accordance with the provisions of RSA 674:21, Innovative Land Use Controls. Wherever a conditional use permit is authorized in this section, the authority to administer or grant conditional use permits shall be vested in the Planning Board.

(c)

Limits of the AP District. The AP District, as displayed on the Zoning Map pursuant to Section 28-2-3(b), The Zoning Overlay District Maps, of this ordinance, shall include the following areas within the City:

(1)

Community Water Systems Protection Area. Within the AP District, an area comprised of the following groundwater development zones and wellhead protection areas:

a.

The entirety of the land area which comprises the four (4) primary groundwater development zones identified on the Aquifer Protection District Map as APD-1, APD-2 (a and b), APD-3 and APD-4, together with any land within four hundred (400) feet of the perimeter of each zone.

b.

That portion of the Wellhead Protection Area between Route 106 and the Soucook River and northerly of North Pembroke Road, identified on the Aquifer Protection District Map as APD-7, related to the City of Concord public water supply wells which are located easterly of the Soucook River in Pembroke.

c.

That portion of the Pembroke Water Works Wellhead Protection Areas/Groundwater Reclassification Areas located westerly of the Soucook River adjacent to Manchester Street and to Route 106 in Concord, identified on the Aquifer Protection District Map as APD-5 and APD-6.

(2)

Non-Transient, Non-Community (NTNC) Water Systems Protection Area. Within the AP District, a circular area centered on any single NTNC water supply well serving the system, with the radius of the circular area being equal to that defined for the Sanitary Protection Area established for a NTNC well by the New Hampshire Department of Environmental Services or by calculations of daily water use based upon the intended land use.

(3)

Transient, Non-Community (TNC) Water Systems Protection Area. Within the AP District, a circular area centered on any single TNC water supply well serving a water system, with the radius of the circular area being equal to that defined for the Sanitary Protection Area established for a TNC well by the New Hampshire Department of Environmental Services.

(4)

Domestic Water Systems Protection Area. Within the AP District, a circular area centered on any single domestic water supply well serving a water system, with the radius of the circular area being equal to seventy-five (75) feet.

(d)

AP District—Community Water Systems Protection Area.

(1)

Performance Standards.

a.

For any land use that will render impervious the ground surface for more than fifteen (15) percent of a total lot area or for more than two thousand five hundred (2,500) square feet of any lot, whichever is the greater, a stormwater management plan shall be prepared consistent with the requirements and standards contained in New Hampshire Stormwater Manual Volumes I—III, New Hampshire Department of Environmental Services, December 2008, as most recently revised.

b.

For a use for which a conditional use permit is authorized pursuant to Section 28-3-6(d)(4), Conditional Use Permits Required for Certain Uses in the AP District—Community Water Systems Protection Area, of this ordinance, a stormwater management and pollution prevention plan shall be prepared which shall include information consistent with the requirements and standards contained in Developing Your Stormwater Pollution Prevention Plan: A Guide for Industrial Operators, US EPA, February 2009, as most recently revised, and New Hampshire Stormwater Manual Volumes I—III, New Hampshire Department of Environmental Services, December 2008, as most recently revised. The plan shall demonstrate that the use will:

1.

Minimize, through a source control plan (that identifies pollution prevention measures), the release of regulated substances into stormwater.

2.

Demonstrate that stormwater infiltrated or discharged to the ground has been treated with the best available technology appropriate to mitigate all likely contaminants associated with the proposed use or activity.

3.

Stipulate that expansion or redevelopment activities shall require an amended stormwater plan and may not infiltrate stormwater through areas containing contaminated soils without completing a Phase I Assessment in conformance with ASTM E 1527-05, also referred to as All Appropriate Inquiry (AAI).

4.

Demonstrate that all infiltration and groundwater recharge of stormwater from conditional uses shall be in compliance with state rules set forth in Chapter Env-Wq 1500.

c.

For a use for which a conditional use permit is authorized pursuant to Section 28-3-6(d)(4), Conditional Use Permits Required for Certain Uses in the AP District—Community Water Systems Protection Area, of this ordinance, that will render impervious the ground surface for more than one acre of any lot not including any building lot coverage, a deicing management plan shall be prepared in a manner consistent with the requirements and standards contained in Chapter 4, Section 4-2, subsection entitled Snow and Ice Management of the New Hampshire Stormwater Manual Volume II, New Hampshire Department of Environmental Services, December 2008, as most recently revised.

d.

All uses for which a conditional use permit is authorized pursuant to Section 28-3-6(d)(4), Conditional Use Permits Required for Certain Uses in the AP District—Community Water Systems Protection Area of this ordinance, shall be controlled using best management practices pertinent to the specific use according to local, State, and Federal regulations.

e.

Chloride salt use for deicing shall be restricted to the minimum amount needed for public safety.

f.

Streets, roads and parking areas shall be constructed so that direct application of road salt is the minimum amount possible while maintaining safety.

g.

Non-point source pollution shall be minimized through implementation of practices that use or mimic natural processes to infiltrate, evapotranspirate (the return of water to the atmosphere either through evaporation or by plants), or reuse runoff on the site where it is generated.

h.

Animal manures, fertilizers, and compost shall be stored in accordance with Manual of Best Management Practices for Agriculture in New Hampshire, New Hampshire Department of Agriculture, Markets, and Food, July 2008, as most recently revised.

i.

All regulated substances stored in containers with a capacity of five (5) gallons or more shall be stored in product-tight containers on an impervious surface designed and maintained to prevent flow to exposed soils, floor drains, and outside drains.

j.

Facilities where regulated substances are stored shall be secured against unauthorized entry by means of a door or gate that is locked when authorized personnel are not present and shall be inspected periodically by the facility owner or designee.

k.

Outdoor storage areas for regulated substances, associated material or waste shall be protected from exposure to precipitation and shall be located at least fifty (50) feet from surface water or storm drains, at least seventy-five (75) feet from private wells, and outside the Sanitary Protective Radius (SPR) of potable supply wells used by public water systems.

l.

Secondary containment shall be provided for outdoor storage of regulated substances if any of the regulated substances is stored in a container with the capacity to hold five (5) or more gallons. The containment structure must include a cover to minimize accumulation of water in the containment area and contact between precipitation and storage containers.

m.

Containers in which regulated substances are stored shall be clearly and visibly labeled and must be kept closed and sealed when material is not being used or transferred from one container to another.

n.

Prior to any alteration of terrain associated with implementation of any building or site development, all inactive wells on the property not in use or properly maintained shall be considered abandoned and must be sealed in accordance with We 604 of the New Hampshire Water Well Board Rules.

o.

All new subsurface disposal systems shall be designed and installed in compliance with New Hampshire Department of Environmental Services Rules and shall only receive discharges typical of residential domestic wastewater.

p.

An applicant for a new groundwater withdrawal within the AP District shall provide copies to the City of all application materials submitted to the New Hampshire Department of Environmental Services for approval of new groundwater withdrawals.

q.

All submittals to the New Hampshire Department of Environmental Services for Registered Water Uses within the AP District shall also be submitted to the City by the owner of the registered water use.

r.

Any on-site blasting shall conform to best management practices contained in the New Hampshire Department of Environmental Services document "Rock Blasting and Water Quality Measures That Can Be Taken To Protect Water Quality and Mitigate Impacts", 2010, as most recently revised.

(2)

Spill Prevention, Control and Countermeasure (SPCC) Plan. For all uses for which a conditional uses [sic], as authorized pursuant to Section 28-3-6(d)(4), Conditional Use Permits Required for Certain Uses in the AP District—Community Water Systems Protection Area, of this Ordinance, where regulated substances are to be stored or used, a Spill Control and Countermeasure (SPCC) Plan shall be submitted which the Planning Board finds contains adequate and sufficient measures to prevent, contain, and minimize releases from ordinary or catastrophic events such as spills, floods or fires that may cause large releases of regulated substances. A SPCC shall, as a minimum, include:

a.

A description of the physical layout and a facility diagram, including all surrounding surface waters, water supply wells, and Wellhead Protection Areas.

b.

Contact list and phone numbers for the facility response coordinator, cleanup contractors, and all appropriate Federal, State, and local agencies that must be contacted in the event of a release to the environment.

c.

A list of all regulated substances in use and locations of use and storage on the premises.

d.

A prediction of the direction, rate of flow, and total quantity of regulated substance that could be released where experience indicates a potential for equipment failure.

e.

A description of containment and/or diversionary structures or equipment to prevent regulated substances from infiltrating into the ground.

f.

If the conditional use permit is granted, then the information required to be included in the SPCC Plan shall be updated annually, and a copy of the updated SPCC Plan shall be provided to the City.

(3)

Prohibited Uses. The following uses are prohibited in the AP District—Community Water Systems Protection Area:

a.

The development or operation of a hazardous waste disposal facility as defined under RSA 147-A.

b.

The development or operation of a solid waste landfill, defined under RSA 149-M;

c.

The outdoor storage of road salt or other deicing chemicals in bulk;

d.

The development or operation of a junkyard;

e.

The development or operation of a snow dump;

f.

The development or operation of a wastewater or septage lagoon;

g.

The development or operation of a petroleum bulk plant or terminal;

h.

The development or operation of gasoline stations;

i.

The development or operation of dry cleaning or laundry facilities using or storing dry cleaning chemicals on site;

j.

Subsurface storage of petroleum products, except for propane;

k.

Disposal by burial of tree stumps or brush which are transported from off site;

l.

The development or operation of a commercial animal feedlot;

m.

The development or operation of automotive repair, servicing, or autobody repair facilities;

n.

Excavation of sand and gravel and other mining within 4 feet of the high water table; and

o.

The above-ground storage of petroleum products, except for propane, in excess of a total of five hundred (500) gallons on any lot.

(4)

Conditional Use Permits Required for Certain Uses in the AP District—Community Water Systems Protection Area.

a.

The Planning Board may grant a conditional use permit for the following uses:

1.

Storage, handling, and use of regulated substances in quantities exceeding one hundred (100) gallons or eight hundred (800) pounds dry weight at any one time, subject to the provision of an adequate Spill Prevention, Control and Countermeasure (SPCC) Plan, in accordance with the provisions of Section 28-3-6(d)(2), Spill Prevention, Control and Countermeasure (SPCC) Plan, of this ordinance.

2.

Any use that will render impervious more than fifteen (15) percent or two thousand five hundred (2,500) square feet of any lot, whichever is greater.

3.

Any activities that involve blasting of bedrock.

b.

Prior to granting a conditional use permit, the Planning Board must find said use shall be in compliance with performance standards listed in Section 28-6-3(d)(1), Performance Standards, of this ordinance, as well as all applicable local, State, and Federal requirements. The Planning Board may impose conditions to the extent the Board concludes such conditions are necessary to minimize any adverse effect of the proposed use or activity upon groundwater, consistent with the intent of this ordinance, and to ensure compliance with State and Federal Drinking Water Quality Standards. The Planning Board may, at its discretion, require a performance guarantee or bond, in an amount and with surety conditions satisfactory to the Board, to be posted to ensure completion of construction of any facilities required for compliance with the performance standards.

(5)

Nonconforming Uses. Existing nonconforming uses may continue provided that there is no expansion of the nonconforming use or any change of use to anything other than a conforming use.

(6)

Exemptions.

a.

The following uses shall be exempt from the provisions of Section 28-3-6, Aquifer Protection (AP) District, of this ordinance as long as they remain in compliance with applicable local, State and Federal requirements:

1.

The sale, transportation, and use of pesticides as defined under RSA 430:29 XXVI.

2.

Agricultural and horticultural operations.

b.

The following uses shall be exempt from the provisions Section 28-3-6(d)(1), Performance Standards, subsections (j) through (m), of this ordinance as long as they remain in compliance with applicable local, State and Federal requirements:

1.

Any business or facility where regulated substances are not stored in containers with a capacity of five (5) gallons or more.

2.

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.

3.

Storage and use of office supplies.

4.

Temporary storage of construction materials on a site where they are to be used within six (6) months of their being brought on site.

5.

Household hazardous waste collection projects regulated under New Hampshire Code of Administrative Rules Env-Hw 401.03(b)(1) and 501.01(b).

c.

Storage of heating fuels for on-site use or storage of fuels for emergency electric generation is exempt from the provisions of Section 28-3-6(d)(1), Performance Standards, subsection (j), of this ordinance, provided that storage tanks are located indoors on a concrete floor or have corrosion control, leak detection, and secondary containment in place.

d.

Underground storage tank systems and above ground storage tank systems that are in compliance with applicable State rules are exempt from the provisions of Section 28-3-6(d)(7), Maintenance and Inspection, of this ordinance.

e.

Any single-family or two-family dwelling is exempt from the provisions of Section 28-3-6(d)(1), Performance Standards, of this ordinance.

(7)

Maintenance and Inspection.

a.

For uses requiring Planning Board approval for any reason, a narrative description of future maintenance requirements for structures to continue to comply with Section 28-3-6(d)(1), Performance Standards, of this ordinance, shall be recorded at the Merrimack County Registry of Deeds. The description of maintenance requirements so recorded shall comply with the requirements of RSA 478:4-a.

b.

Except for those facilities where the storage of all regulated substances is exempt from this ordinance, all properties within the AP District known to the City as using or storing regulated substances in containers with a capacity of five (5) gallons or more shall be subject to inspection.

c.

Where inspections are required in order to verify compliance with Section 28-3-6(d)(1), Performance Standards, of this ordinance, the City shall perform such inspections at reasonable times with prior notice to the landowner.

(e)

AP District—Non-Transient, Non-Community (NTNC) Water Systems Protection Area.

(1)

Performance Standards.

a.

The AP District shall be left in an undisturbed and unaltered state to the greatest extent possible.

b.

All proposed land use activities within the AP District shall conform to Env-Ws 373 Design Standards for Non-Community Water Systems, as well as other applicable State and Federal regulations.

c.

Drainage from impervious surfaces including parking areas or storage areas shall be sloped to drain away from a NTNC water supply well and outside the AP District.

d.

A distance of at least fifty (50) feet shall be maintained from a NTNC water supply well to the nearest edge of a road right-of-way, driveway, or parking area in order to minimize contamination from deicing salts.

e.

Wastewater piping must be composed of ductile iron or an approved equivalent pressure-type pipe that is tested for water-tight construction after installation.

(2)

Prohibited Uses. The following uses are prohibited in the AP District—Non-Transient, Non-Community Water Systems Protection Area:

a.

The installation or operation of wastewater disposal systems, including septic tanks, grease traps, and effluent disposal areas;

b.

The use of fertilizers;

c.

The location, installation, or operation of dumpsters for the temporary disposal of solid waste or grease;

d.

The installation or operation of retention ponds or infiltration basins;

e.

The installation or operation of storage tanks for oil, gasoline, or other toxic chemicals or regulated substances; and

f.

The location or operation of any use which involves or is in any way associated with regulated substances.

(3)

Maintenance, Testing, and Inspection Requirements.

a.

Inspections of NTNC water systems may be conducted by the City in order to verify compliance with all local, State and Federal groundwater quality requirements. The City shall perform such inspections at reasonable times with prior notice to the landowner.

b.

The owner of the NTNC water supply well shall submit to the City copies of all information submitted to the NHDES in compliance with the wellhead protection requirements and groundwater withdrawal permit for the NTNC well.

c.

On-site wastewater disposal systems situated within the Sanitary Protective Area of a NTNC water system well shall be inspected by a qualified licensed professional engineer or NHDES licensed subsurface disposal systems designer prior to any sale or conveyance of such property. A report describing the engineer/designer's findings relating to the current condition of the on-site wastewater disposal system shall be filed with the City prior to said sale or conveyance.

d.

Water quality testing of groundwater samples from NTNC water supply wells shall be performed by a qualified individual prior to any sale or conveyance of said property. The findings resulting from said testing shall be filed with the City prior to said sale or conveyance. At a minimum, said water quality testing shall evaluate each sample for the presence and concentration of radon, volatile organic compounds (VOCs using EPA method 524.2), nitrate, nitrite, lead, arsenic, sodium, chloride, iron, manganese, hardness, fluoride, pH and bacteria.

e.

In the event of the installation of a new NTNC water system to serve a new land use for which building permits have been issued, prior to the issuance of a certificate of occupancy for that land use, the NTNC water system shall be subject to the same testing requirements as specified in Section 28-3-6(e)(3)d. for the sale or conveyance of a property served by a NTNC water systems, with the test results of the constituent analysis provided to the City.

f.

Where inspections are required in order to verify compliance with sections 28-3-6(e)(1) and (2), Performance Standards, and Prohibited Uses, respectively, of this ordinance, the City shall perform such inspections at reasonable times with prior notice to the landowner.

(4)

Nonconforming Uses. Existing nonconforming uses may continue provided that there is no expansion of the nonconforming use or any change of use to anything other than a conforming use. Best management practices shall be utilized to prevent groundwater contamination resulting from existing nonconforming uses.

(f)

AP District—Protection of Transient Non-Community (TNC) Water Systems Protection Area.

(1)

All land uses upon property served by a transient, non-community (TNC) water system well shall comply with all pertinent local, State and Federal groundwater quality requirements in order to prevent the contamination of groundwater proximal to the TNC.

(2)

All onsite wastewater disposal systems upon the property on which a TNC water system well is located shall be properly maintained and kept in good working order.

(3)

In the event of a discontinuance for more than one hundred eighty (180) days of a land use served by a transient, non-community (TNC) water system, or the expansion or change of such a land use, and prior to the sale or conveyance of said property on which such a land use is located, all TNC water systems shall have water samples collected from them by a qualified individual and the sample subjected to analysis by an accredited lab for the following constituents: arsenic; bacteria; chloride; copper; fluoride; hardness; iron; lead; manganese; nitrate/nitrite; pH; and sodium. A copy of the results of the constituent analysis shall be provided to the City.

(4)

In the event of the installation of a new transient, non-community (TNC) water system to serve a new land use for which building permits have been issued, prior to the issuance of a certificate of occupancy for that land use, the TNC water system shall be subject to the same testing requirements as specified in Section 28-3-6(f)(3) for the sale or conveyance of a property served by a TNC water systems, with the test results of the constituent analysis provided to the City.

(g)

AP District—Protection of Domestic Water Systems.

(1)

All land uses upon property served by a domestic water system shall comply with all pertinent local, State and Federal groundwater quality requirements in order to prevent the contamination of groundwater proximal to the domestic wells.

(2)

All on-site wastewater disposal systems upon the property on which a domestic water system well is located shall be properly maintained and kept in good working order.

(3)

In the event of a sale or conveyance of a property on which a domestic well is located, the seller of the property shall have a water sample collected from the domestic well by a qualified individual and the sample subjected to analysis by an accredited lab for the following constituents: arsenic; bacteria; chloride; copper; fluoride; hardness; iron; lead; manganese; nitrate/nitrite; pH; and sodium. A copy of the results of the constituent analysis shall be provided to the City.

(4)

In the event of the installation of a new well to serve a new land use for which building permits have been issued, prior to the issuance of a certificate of occupancy for that land use, the well shall be subject to the same testing requirements as specified in Section 28-3-6(g)(3) for the sale or conveyance of a property served by a domestic well, with the test results of the constituent analysis provided to the City.

(Ord. No. 2808, § III, 12-13-10; Ord. No. 2852, § I, 10-11-11)